U.S. v. Jordan

• Decision Date: 17 May 2007
• Docket Number: No. 06-1161.,06-1161.
• Citation: 485 F.3d 1214
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark JORDAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.3d 1214

UNITED STATES of America, Plaintiff-Appellee, v. Mark JORDAN, Defendant-Appellant.

No. 06-1161.

United States Court of Appeals, Tenth Circuit.

May 17, 2007.

Howard A. Pincus, Assistant Federal Public Defender, (Raymond P. Moore, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender, Denver, CO, for Defendant-Appellant.

Andrew A. Vogt, Assistant United States Attorney (Troy A. Eid, United States Attorney, David M. Conner, Assistant United States Attorney, Gregory Holloway, Assistant United States Attorney, and John M. Hutchins, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Before McCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Mark Jordan was convicted of stabbing to death a fellow inmate in broad daylight at the recreation yard of the federal penitentiary in Florence, Colorado. He claims the district court erred in refusing to admit evidence tending to show the stabbing was committed by another inmate. Jordan also argues the court erred in concluding that multiple armed robberies committed during a 1994 crime spree were unrelated crimes, thus making him eligible for sentencing as a career offender.

Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and (2), we AFFIRM.

I. Background

A. Facts

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 wounds were 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. Vol. XIV, at 338. After Collins watched Jordan make other stabbing motions, Stone "[t]ook off running." Id. at 339. 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. Vol. XV, at 589. 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." Vol. XIV, at 207. 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." Vol. XIV, at 309-10. 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.

B. Procedural History

Five years after the stabbing, Jordan was charged with the murder of Stone and three related offenses.¹ 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.

A presentencing report recommended Jordan receive a "career offender" enhancement based on multiple prior offenses for armed robbery. The enhancement augmented his total offense level from 33 to 37 and changed his criminal history category from IV to VI. As a career offender, the advisory United States Sentencing Guidelines range increased from 188-235 months to 360 months to life. Treating Jordan as a career offender, the district court sentenced him to 420 months on Count One, 240 months on Count Two, 120 months on Counts Three and Four (all to be served concurrently), and supervised release.

II. Analysis

On appeal, Jordan asserts one claim attacking his conviction and another challenging his sentence. First, Jordan claims the district court erred in barring the defense from introducing evidence in support of his theory that an alternate perpetrator, inmate Sean Riker, actually murdered Stone. Second, Jordan alleges that the district court erred in finding his 1994 crime spree involved two or more unrelated crimes under the Guidelines §§ 4B1.1(a), 4B1.2(c).

A. Alternative Perpetrator

The first issue is whether the district court erred in refusing to admit evidence Jordan claims would implicate another inmate in Stone's murder.

We review a district court's decision to admit alternative perpetrator evidence under an abuse of discretion standard. United States v. McVeigh, 153 F.3d 1166, 1188 (10th Cir.1998). "An abuse of discretion occurs when the district court's decision is arbitrary, capricious, or whimsical, or results in a manifestly unreasonable judgment." United States v. Weidner, 437 F.3d 1023, 1042 (10th Cir.2006). Our deference to the trial court is based upon its first-hand ability to view the witnesses and evidence and assess credibility and probative value. Id. Accordingly, the district court's decision to exclude Jordan's alternative perpetrator evidence "will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id.

1. Legal Framework

Jordan's theory of defense pits two evidentiary values against each other: (1) the admission of relevant evidence, Fed. R.Evid. 401, against (2) the exclusion of prejudicial, misleading, and confusing evidence, Fed.R.Evid. 403. The bar for admission under Rule 401 is "very low." McVeigh, 153 F.3d at 1190. This is because the degree of materiality and probativity necessary for evidence to be relevant is "minimal" and must only provide a "fact-finder with a basis for making some inference, or chain of inferences." Id.

While the burden is low, it does not sanction the carte blanche admission of whatever evidence a defendant would like. The trial judge is the gatekeeper under the Rules of Evidence. Rule 403 requires courts to "exclud[e] [even relevant evidence] if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. Such circumstances might arise when evidence suggests to the jury that it should "render its findings on an improper basis, commonly . . . an emotional one," and when "circumstantial evidence would tend to sidetrack the jury into consideration of factual disputes only tangentially related to the facts at issue in the current case." McVeigh, 153 F.3d at 1191 (internal quotes and citations omitted).

When proffered evidence deals with a defense theory of an alternative perpetrator, additional considerations arise. As the Supreme Court recently noted in reviewing the constitutionality of a South Carolina statute...