United States v. Braswell
| Decision Date | 21 August 2017 |
| Docket Number | No. 16-6092,16-6092 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY BRASWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0484n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
BEFORE: GUY, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Defendant Larry Braswell was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 235 months' imprisonment. On appeal, Defendant challenges both his conviction and his sentence. Specifically, he challenges the district court's denial of the motion to suppress the evidence of the gun, as well as the sufficiency of the evidence. Defendant further argues that the district court erred in not including a spoliation instruction in the jury instructions. Defendant also contends that there was prosecutorial misconduct based on statements made by the government during closing arguments. Finally, Defendant challenges his classification as an armed career criminal. For the reasons set forth below, we AFFIRM the judgment of the district court.
On February 23, 2014, Chattanooga Police Officer Benjamin Piazza saw Defendant Larry Braswell walking away from the bushes in front of an abandoned house in a condemned public housing project in Chattanooga, Tennessee. A car containing a female passenger was parked in front of the house. When Officer Piazza approached Braswell, he said he had come to the housing project to talk with his passenger, Jasmine Isom, and left the car in order to urinate in the bushes. Ms. Isom was visibly upset, and she told Officer Piazza that she thought she was going to jail. As Officer Piazza was talking to Braswell and Ms. Isom, he noticed a strong smell of marijuana. After searching the car with Braswell's consent and not finding anything, Officer Piazza concluded that the marijuana was either concealed in the car's center console or had just been removed from the car. The officer checked the status of Braswell's license and discovered that it had been revoked. Nevertheless, he told Braswell to leave the area and drive Ms. Isom home. He also told Braswell not to drive anymore until his license was reinstated and especially not to return to the area, or else he would go to jail.
After Braswell left, Officer Piazza returned to his patrol car, which was parked between two abandoned houses with its lights off, and began filling out paperwork regarding this interaction. Less than an hour later, another car entered the abandoned housing complex and drove along the same street where Officer Piazza had just encountered Braswell. It was now dark outside, and the car did not have its headlights on. The car also started to slow to a stop in front of the same house where Braswell had previously been seen. When Officer Piazza turned his patrol car's headlights on, the other vehicle also turned on its headlights and then drove away fairly rapidly. The car ran a stop sign in the process, after which Officer Piazza activated his emergency lights and pulled the vehicle over. Officer Piazza heard the driver say something such as "[W]ell, I guess I'm going to jail." (R. 136, Trial Tr., PageID #1852.) It turns out that Braswell was the driver, and this time he was accompanied by a male passenger.
Officer Piazza then arrested Braswell for driving on a revoked license. While conducting a search incident to that arrest, Officer Piazza found more than $1,100 in cash, as well as a digital scale covered in what appeared to be marijuana residue in Braswell's pocket. Braswell was placed in the back of the patrol car and read his Miranda rights. Officer Piazza and a K-9 officer then returned to the abandoned house where Officer Piazza first encountered Braswell walking away from the bushes after allegedly urinating. The drug-sniffing dog alerted several times on the bushes in front of that house. The officers searched the bushes and found a large bag containing approximately twenty-five grams of marijuana and a loaded .45 caliber handgun, "right on top of each other." (Id. at 1855, 1859.) The gun did not appear to have been there very long, since it was not rusted and did not have any dew or dirt on it. It did, however, have visible fingerprints on it. The officers, however, never tested the gun for fingerprints.
During the search of the abandoned property, Braswell was confined in the back of the patrol car. At various points, Braswell apparently mumbled to himself, and those statements were captured by a video recording device in the patrol car. Within seconds of the officers finding the gun and marijuana, Braswell, who had been intently watching the officers discover the contraband, said what sounded like "[Expletive], man . . . prints are all over this [expletive]." (Id. at 1879-81; Gov't Ex. 5 at 19:49:00.)
Braswell was indicted on May 28, 2014 for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following the denial of multiple motions to suppress the evidence, Braswell proceeded to trial. A jury trial was held on September 29 and 30, 2015 and resulted in a guilty verdict. Braswell was sentenced to 235 months of imprisonment, as he was determined to be an armed career criminal. Judgment was entered on June 28, 2016, and this timely appeal followed.
"When reviewing the district court's ruling on a motion to suppress," this Court "review[s] findings of fact for clear error and legal conclusions de novo." United States v. Jackson, 682 F.3d 448, 452 (6th Cir. 2012) (citing United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007). "When the district court has denied the motion to suppress, we review all evidence in a light most favorable to the Government." Id. (quoting United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006)). "A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence, is left with the definite and firm conviction that a mistake has been committed." United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007) (quotation omitted). Factual findings are not clearly erroneous "where there are two permissible views of the evidence." Id. (alterations and quotation omitted). Furthermore, this Court gives "deference to the district court's assessment of credibility inasmuch as the court was in the best position to make such a determination." United States v. Hill, 195 F.3d 258, 264-65 (6th Cir. 1999).
Jackson, 682 F.3d at 453 (quoting United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008)). "It is well established that a police officer may lawfully stop a car when he has probable cause to believe that a civil traffic violation has occurred, or reasonable suspicion of an ongoing crime." Id. (citations omitted).
Before the trial, Braswell filed a motion to suppress the evidence based on a lack of probable cause for the traffic stop. In order to resolve the motion, the magistrate judge conducted a hearing at which only one witness, Officer Piazza, testified. The officer recounted his first interaction with Braswell, and then testified regarding the traffic violations he observed during their second encounter. Specifically, Officer Piazza stated that he noticed a green car driving down the street with its headlights off, even though it was dark outside. Officer Piazza began to follow the car in his own patrol car, which also did not have the headlights illuminated. When the car began to slow down in front of the abandoned house, Officer Piazza turned on his headlights. The car rapidly sped up and, after a short distance, turned on its headlights. The car then reached an intersection and ran a stop sign. Officer Piazza then turned on his blue lights and pulled Braswell over.
In order to rebut Officer Piazza's testimony, Braswell offered into evidence a video of the second encounter between Officer Piazza and himself, during which he allegedly committed the two traffic violations. This video did not show Braswell driving with his headlights off.1 The magistrate judge, however, noted that the video "does show unequivocally that it was dark outside and that defendant ran through a stop sign making no effort to even slow down." (R. 72, R&R, PageID #583.) The magistrate judge further found Officer Piazza's testimony that Braswell had been driving without his headlights illuminated to be credible and agreed with Officer Piazza that it was dark outside and was at least thirty minutes after dusk when the incident occurred. Consequently, Braswell violated Tenn. Code Ann. § 55-9-406(a), which requires headlights to be illuminated when driving beginning thirty minutes after sunset. The magistrate judge further found that Officer Piazza had probable cause to stop Braswell because he witnessed Braswell failing to stop at a stop sign, in violation of Tenn. Code Ann. § 55-8-149(c).
After reviewing Braswell's objections to the magistrate judge's Report and Recommendation, the district court largely accepted the magistrate judge's findings of facts and denied the motion to suppress. The district court deferred to the magistrate judge's determination that Officer Piazza's testimony was credible. After independently viewing the video of the encounter, the district court further determined that the magistrate judge "did not err in finding that it was very dark at the time Officer Piazza testified that Defendant was driving without his headlights on." (R. 77, Order on Mot. to Suppress, PageID # 608). Finally, in response to Braswell's argument that the video does not...
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