USA v. Anthony Ford

• Decision Date: 27 July 2010
• Docket Number: No. 09-2244.,09-2244.
• Citation: 613 F.3d 1263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Anthony FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

613 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee,

v.Steven Anthony FORD, Defendant-Appellant.

No. 09-2244.

United States Court of Appeals,Tenth Circuit.

July 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Gregory J. Fouratt, United States Attorney, (Terri J. Abernathy, Assistant United States Attorney, on the brief), Las Cruces, NM, for Plaintiff-Appellee.

David L. Plotsky of Plotsky & Dougherty, Albuquerque, NM, for Defendant-Appellant.

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and LUCERO, Circuit Judge.

KELLY, Circuit Judge.

Defendant-Appellant Steven Anthony Ford was convicted by a jury of being a felon in possession of firearms and ammunition, 18 U.S.C. § 922(g)(1), being a fugitive in possession of firearms and ammunition, 18 U.S.C. § 922(g)(2), and possession of stolen firearms, 18 U.S.C. § 922(j). At sentencing, the district court applied a six-level offense enhancement for assaulting a law enforcement officer during flight, under U.S.S.G. § 3A1.2(c)(1), and found that Mr. Ford's prior convictions mandated a fifteen-year minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court sentenced Mr. Ford to 360 months' imprisonment on the first count, and 120 months on each of the other two counts, all to run concurrently. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

Mr. Ford was serving a state sentence at a Kansas prison until the night of October 28, 2007. 2 R. 20-23. On that night, Mr. Ford and Jesse Lee Bell, a fellow inmate, escaped with the aid of Amber Goff, a former corrections officer with whom Mr. Ford was romantically involved. Ms. Goff had helped Mr. Ford plan the escape. 3 R. 165-70. In preparation, she stole her stepfather's .40 caliber Glock, .22 caliber pistol, and .357 revolver, obtained other supplies such as ammunition and changes of clothes, and rented a getaway car. On the evening of October 28, Mr. Ford called Ms. Goff to set their plan into action. Id. at 170-79, 188. She left the rental car at a nearby shopping center and drove to the prison in her own car. She used bolt cutters to open a gate across an access road, and then drove up to the prison's dual perimeter fences. There, she cut through the exterior fence, tossed the Glock and a set of bolt cutters over the interior fence, and left the .357 on the ground for Mr. Ford and Mr. Bell. Id. at 179-82. Ms. Goff retreated to a hiding place, until she saw the two escapees headed her way, already through the fence. They got in the back seat of the car, each carrying a gun. Ms. Goff then drove the group to the shopping center, where they transferred to the rental car and headed west. Id. at 182-84.

During the drive west, Mr. Ford often kept the Glock loaded and tucked in his waistband or in the glove compartment, and shot it from the moving vehicle at one point. At a stop in eastern New Mexico, the trio saw a story about themselves in USA Today. Concerned that police would connect Ms. Goff and the rental car, they decided to find another vehicle. Id. at 185-90. In the early hours of October 31, they entered Grants, New Mexico, looking for a car to steal in areas where people frequently come and go. They settled on an apartment complex. Mr. Bell and Mr. Ford, with the Glock in Mr. Ford's waistband, left the car to walk around the apartment complex. The men returned to the car about twenty minutes later, but at the arrival of a police car they instructed Ms. Goff to leave for a while. Police arrested Ms. Goff several blocks away. Id. at 192-95.

A resident of the apartment complex had seen two men looking into her car and called the police. Id. at 10. Two officers responded. After speaking to the resident, the officers patrolled the complex. In one indoor hallway, they saw two men. When the officers made eye contact with the men, the men stopped and then walked away quickly. The officers split up, and one officer saw the men running away from the apartment building. After unsuccessfully trying to scale a fence, the two men separated. One of the officers apprehended Mr. Bell in a field next to the apartment complex. A few minutes after the other officer joined him, they heard four gunshots fired at a “very close” range. The officers immediately ducked down and ordered Mr. Bell to the ground. The officers reported the shots by radio and requested backup. A sheriff's deputy responded and apprehended Mr. Ford in the apartment complex parking lot. Id. at 18-29.

A police detective found shell casings from the Glock about 100 feet from where the officers apprehended Mr. Bell. Id. at 130. Police recovered the Glock about 34 feet from where Mr. Ford was apprehended and found a .22 pistol on Mr. Bell. Id. at 28-29, 130.

On appeal, Mr. Ford challenges: (1) the admission of evidence of his escape from prison; (2) the § 3A1.2 enhancement for assaulting a law enforcement officer during flight; and (3) the finding that a prior Kansas conviction for criminal discharge of a firearm at an occupied building or dwelling qualifies as a violent felony, triggering the ACCA's fifteen-year mandatory minimum sentence. We address the issues in that order.

Discussion

I. Admission of Evidence of the Kansas Escape

Mr. Ford challenges the district court's admission of evidence of his Kansas escape as res gestae and not barred by Federal Rule of Evidence 403. We review evidentiary rulings for an abuse of discretion. United States v. Batton, 602 F.3d 1191, 1196 (10th Cir.2010). After considering motions in limine, the district court allowed the government to introduce evidence of Mr. Ford's escape from prison. The court found the evidence admissible under the doctrine of res gestae because it was “inextricably intertwined with the charged crimes,” particularly “the elements of Defendant being a fugitive from justice, that Defendant possessed stolen firearms and ammunition, and that Defendant had knowledge that the firearms and ammunition were indeed stolen.” 1 R. 56. Alternatively, the court would have allowed the evidence as extrinsic evidence offered for a proper purpose under Rule 404(b). Id. at 57-58.

The jury learned of Mr. Ford's escape through the testimony of two witnesses: Todd Kuzusko, a deputy United States marshal, and Ms. Goff, the former corrections officer who helped him escape. Mr. Kuzusko testified that Mr. Ford initiated a conversation while Mr. Kuzusko guarded him during a hospital visit. Mr. Ford related to Mr. Kuzusko the details of his escape and his capture, establishing that Mr. Ford was a fugitive and that he fired a gun during the police chase in Grants. 3 R. 89-96. Ms. Goff recounted her relationship with Mr. Ford, their planning of the escape, and the events from the escape until their capture in Grants. This testimony established that Mr. Ford was a fugitive, that he knew Ms. Goff stole the firearms, and that he knowingly possessed the Glock and had access to the .357 during the drive west. E.g., id. at 172-73, 183, 185-86, 189, 192-93.

An uncharged act is admissible as res gestae-intrinsic evidence not subject to Federal Rule of Evidence 404(b)-if “it was inextricably intertwined with the charged crime such that a witness's testimony would have been confusing and incomplete without mention of the prior act.” United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir.1994) (alteration, citation, and internal quotation marks); see also United States v. Parker, 553 F.3d 1309, 1314 (10th Cir.2009). “Evidence of other crimes should not be suppressed when those facts come in as res gestae-as part and parcel of the proof of the offense charged in the indictment.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir.1995) (alterations and internal quotation marks omitted).

Mr. Ford argues that the res gestae doctrine does not apply because the government could have conveyed the operative facts without referring to the Kansas escape. Aplt. Br. at 46-47. According to Mr. Ford, his offer to stipulate that he was a convicted felon obviated any need to introduce evidence of the escape. Id.; 1 R. 33. But the offered stipulation covered only one element of one of the three charged crimes, being a felon in possession of firearms and ammunition. The government still had to prove Mr. Ford's knowledge that the firearms were stolen, his possession of the firearms, and his status as a fugitive. At the very least, the government needed evidence of the escape to show that Mr. Ford was a fugitive. Further, Ms. Goff was the best witness against Mr. Ford. She offered the memory and detail of an eyewitness and partner in crime. Her testimony about the planning of the escape was necessary to show how Mr. Ford knew the firearms were stolen.

The Kansas escape could not be separated from the charged crimes. Mr. Ford's flight began with the escape, which explained his need for weapons and the circumstances of his arrest just two and a half days later. In short, the evidence of the Kansas escape is undoubtedly res gestae-intrinsic evidence inextricably connected to the charged crimes.

Despite its relevance, res gestae evidence is nonetheless subject to Rule 403's balancing test: it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. Mr. Ford argues that “no probative facts ... require an exploration of the inflammatory telling of a prison escape.” Aplt. Br. at 48. As discussed above, the circumstances of the prison escape were highly relevant to the elements of the charged crimes. Mr. Ford has not shown how the evidence of his Kansas escape presented any danger of unfair prejudice, which “makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocense [sic] of the crime charged.” United States v. Tan, 254 F.3d 1204,...