United States v. Jordan

• Decision Date: 20 November 2015
• Docket Number: No. 15–1046.,15–1046.
• Citation: 806 F.3d 1244
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark JORDAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

806 F.3d 1244

UNITED STATES of America, Plaintiff–Appellee,

v.Mark JORDAN, Defendant–Appellant.

No. 15–1046.

United States Court of Appeals, Tenth Circuit.

Nov. 20, 2015.

Sean Connelly, Reilly Pozner, LLP (Dru Nielsenand Michael Kotlarczyk, Reilly Pozner LLP; and Laura Rovner, University of Denver Sturm College of Law, with him on the briefs), Denver, CO, appearing for Defendant–Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, appearing for Plaintiff–Appellee.

Opinion

MATHESON, Circuit Judge.

On June 3, 1999, inmate David Stone died after he was stabbed three times with a shank—a makeshift knife—while located in the recreation yard at the United States Penitentiary in Florence, Colorado (“USP Florence”). A federal grand jury indicted inmate Mark Jordan for the murder of Mr. Stone and three related assaults. In 2005, a jury found him guilty on all counts.

In 2012, Sean Riker, another inmate who was present in the prison recreation yard on June 3, 1999, confessed to stabbing Mr. Stone and agreed to provide Mr. Jordan's counsel a DNA sample. Mr. Jordan's DNA expert then linked Mr. Riker's DNA to DNA found on the murder weapon. Based on Mr. Riker's confession and the new DNA analysis, Mr. Jordan moved for a new trial under Federal Rule of Criminal Procedure 33due to newly discovered evidence.

The same district court judge who had presided over the trial held a Rule 33evidentiary hearing. The defense first presented its newly discovered evidence, calling Mr. Riker and its DNA expert to testify. The Government then called six witnesses, none of whom testified at trial. The first four testified about Mr. Stone's alleged dying declarations, which identified Mr. Jordan as the killer. A fifth witness testified he saw Mr. Jordan stab Mr. Stone. A sixth witness testified he heard Mr. Jordan make incriminating statements before the stabbing. In rebuttal, the defense offered the testimony of one Bureau of Prisons (“BOP”) official and Mr. Jordan himself. After the conclusion of the Rule 33hearing, the district court denied Mr. Jordan's motion for a new trial.

Mr. Jordan appeals on two grounds. First, he argues the district court should not have admitted and considered new government evidence. He argues that Rule 33permits consideration only of (1) evidence admitted at trial and (2) newly discovered evidence offered by the defendant. Based on these two types of evidence alone, he contends that he satisfied his burden under Rule 33to warrant a new trial. Second, he argues that, even if Rule 33permits new government evidence, the Federal Rules of Evidence and the Confrontation Clause each should have barred admission of Mr. Stone's dying declarations.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A.Trial and Conviction

The following undisputed facts are taken from our opinion affirming Mr. Jordan's convictions and sentence on direct appeal:

Mark Jordan was accused of murdering a fellow prisoner at the United States Penitentiary in Florence, Colorado. The crime occurred on the afternoon of June 3, 1999 in the maximum-security prison's recreational yard.

The victim, inmate David Stone, sat at a picnic table in the prison yard wearing only shorts and tennis shoes. Numerous other prisoners were exercising, congregating, and playing games in the outdoor sun. Near Stone were three other inmates, including Mark Jordan and Sean Riker. Both Jordan and Riker were observed walking away from the table. Minutes later, someone stabbed Stone three times. Two of the woundswere superficial, while the third was fatal. Stone was able to run across the yard before collapsing. Later that night he died.

Two inmates saw the stabbing. Gary Collins was in the recreational yard at the time of the stabbing. He observed Jordan, oddly dressed considering the heat in a khaki shirt and pants, in the vicinity of Stone. Collins saw Jordan walk behind Stone and stab him in the back. Collins described Jordan's action as “swinging a bat” in Stone's lower back. After Collins watched Jordan make other stabbing motions, Stone “[t]ook off running.” He also witnessed Jordan start running after Stone, but Stone was far ahead.

Another inmate, Tyrone Davis, was also in the yard and observed the stabbing. He saw Jordan standing by Stone, then watched as Jordan pushed or punched Stone in the back side in an underhanded manner. According to Davis, Stone then started running and Jordan gave chase. He then saw Stone on the ground near a crowd of people, but lost sight of Jordan.

Overlooking the recreational yard is the lieutenant's patio. There, Norvel Meadors, an assistant warden at the prison was taking a cigarette break. While he was smoking, he saw “two inmates sprinting across the yard out on the sidewalk.” From his vantage point, Meadors could not identify the inmates, but he noticed one was wearing only shorts and no shirt and the other was in the standard prison attire of a khaki shirt and pants. Meadors immediately recognized that the two inmates were involved in a chase, with the shirtless inmate ahead of the fully clothed one. Over the radio, he ordered a compound officer to direct the inmates to cease their action.

Meadors then observed the pursuing inmate stop, while the other one continued running and eventually collapsed to the ground. Meadors saw the inmate in the khaki shirt and pants throw “an object” on top of a housing unit and then sit down at a picnic table. Meadors watched as a compound officer approached this inmate at the picnic table, patted him down, and then took him into custody.

The officer who responded to Meadors's radio call was Benjamin Valle. After Meadors's call, he observed two inmates running, with one about fifteen yards behind the other. Valle watched the trailing inmate stop and then start walking back to a housing unit, throw something up on the roof of the housing unit, and walk over to a bench table and sit down. Valle searched the inmate and then escorted him off the yard. That inmate was Mark Jordan.

Another corrections officer, Fares Finn, Jr., observed the same incidents in nearly identical detail to Valle. A video surveillance camera also captured some of the events that afternoon, among other things (1) four inmates, including Jordan and Stone, sitting at a concrete bench approximately eleven minutes before the stabbing, (2) Jordan approaching where Stone sat immediately before the stabbing, and (3) the subsequent chase between Stone and Jordan. Because of the camera angle, it did not capture the fatal encounter.

After the stabbing, a prison official noticed a spot of blood on Jordan's left arm. Asked about the blood, Jordan claimed it originated from when “[t]hat guy [Stone] ran into me, that's how I got blood on me. I was trying to help him.” Later, authorities recovered a bloody, homemade knife or shank about eleven or twelve inches long from the roof of the housing unit. DNA from the shank was determined to belong to Stone. Additional DNA evidence was found on the handle of the knife, but its origin could not be determined. No fingerprints were found on the knife because its handle had been wrapped in cloth.

....

Five years after the stabbing, Jordan was charged with the murder of Stone and three related offenses. Count One alleged second degree murder, in violation of 18 U.S.C. § 111(a). Count Two charged assault with intent to commit murder, in violation of 18 U.S.C. § 113(a)(1). Count Three accused Jordan of assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(1). Count Four asserted assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). On August 9, 2005, a jury found Jordan guilty of all four counts.

....

At trial, Jordan did not dispute that (1) he handled the shank that caused the fatal stab woundsto Stone, (2) he was the man Meadors and Valle saw running across the yard, and (3) he threw the murder weapon on the roof. Jordan contended that he did not kill Stone, who had been his cellmate for two months at the United States Penitentiary in Atlanta. Instead, he claimed Sean Riker, who was also at the scene of the stabbing, was the actual assailant.

United States v. Jordan,485 F.3d 1214, 1216–17, 1219–20 (10th Cir.2007)(internal record citations and footnote omitted).¹

B.Appeals and Post–Conviction Motions

We affirmed Mr. Jordan's conviction and sentence on direct appeal. Id.at 1216. He then filed a motion for additional DNA testing under the Innocence Protection Act of 2005 (“IPA”), 18 U.S.C. § 3600, and a related motion to require the Government to preserve his trial evidence. The district court denied the first motion and dismissed the second as moot. We affirmed its decision as to both. See United States v. Jordan,594 F.3d 1265, 1266 (10th Cir.2010). Mr. Jordan also moved for relief under 28 U.S.C. § 2255based in part on ineffective assistance of counsel and the results he anticipated from additional DNA testing. The district court denied that motion, United States v. Jordan,No. 04–cr–00229–LTB, at 123–24 (D.Colo. Jan. 21, 2011) (unpublished), ECF No. 639, and we denied a certificate of appealability for Mr. Jordan to appeal that denial, United States v. Jordan,461 Fed.Appx. 771, 773 (10th Cir.2012)(unpublished).²

After obtaining Mr. Riker's confession and the new DNA analysis, Mr. Jordan moved for a new trial under Rule 33based on newly discovered evidence. He also moved for authorization to file a second or successive § 2255motion, which we granted. See In re Mark Jordan,No. 13–1436, at 1 (10th Cir. Nov. 14, 2013) (unpublished). Although he filed his § 2255motion, he elected to dismiss it and rely solely on his Rule 33motion for relief.

C.Rule 33Hearing

The parties presented the following evidence at the Rule 33hearing.

1. Mr. Jordan's Newly Discovered Evidence

Mr. Jordan introduced the new DNA analysis and Mr. Riker's...