United States v. Raymore

• Decision Date: 13 July 2020
• Docket Number: No. 19-3703,19-3703
• Citation: 965 F.3d 475
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory C. RAYMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

965 F.3d 475

UNITED STATES of America, Plaintiff-Appellee,

v.Gregory C. RAYMORE, Defendant-Appellant.

No. 19-3703

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 13, 2020

OPINION

NALBANDIAN, Circuit Judge.

Sometimes timing is everything. After this appeal, Gregory Raymore would almost certainly agree. A jury convicted him as a felon in possession of a firearm before the Supreme Court decided a case that heightened that offense's mens rea requirement. Understandably, he failed to challenge his indictment and the court's jury instructions on that basis until this appeal. Given that, we review those challenges only for plain error and they fail under that standard. The other arguments he raises against his conviction and his sentence also fail. So we AFFIRM.

I.

On an early summer evening in 2018, Eric McCollough visited his father in Elyria, Ohio. During that night, McCollough had his younger brother drop him off near Midview Crossings, an apartment complex where McCollough spent some time with another brother, Tyler Wells, and a close friend, Andre Hines. Together, the three left for Our Space Lounge, a club in Lorain, Ohio hosting an event that night. (R. 58, Trial Tr., PageID 354–55.)

As soon as the three arrived at the club, McCollough realized security would not let him inside because he did not have any identification on him. So he resigned himself to drinking and smoking outside the club. But Wells and Hines went in for some time before leaving and rejoining McCollough outside. After that, all three walked down an alley near the club. And not long after that, they "heard [about six] shots" and McCollough "got hit." (Id. at 362.) Hines also "got shot" and "fell right next to [McCollough]." (Id. )

After getting shot, McCollough "started [ ] crawl[ing] ... along the [side of the] white truck" "to the back ... [of] the black Nissan" near them. (Id. at 363.) While McCollough crawled, the Nissan moved and rolled over his hand slightly before it came to a stop. And during that time, McCollough also heard what he believed sounded like "a gun hitting the concrete"—a sound he recognized from his time growing up in a violent neighborhood and from his time in the military. (Id. at 363–67, 399.) So he looked around "for the gun [ ] under the truck ... [and] went along the back of the truck [ ] to see [ ] what was going on." (Id. at 368.) Doing so, he spotted "a big black guy with dreads" wearing "a hoody standing [t]here" but could not "see what [that guy] [wa]s doing ... [given] [i]t was kind of dark" out. (Id. at 367–68.) After "collaps[ing]" "on the ground ... over by [a nearby] white wall[,]" McCollough tried to get help but "couldn't ... so [he] hopped up a little more ... and [ ] saw the police talking to ... [t]he guy in the hoody." (Id. at 368–69 (explaining that McCollough "s[aw] th[at] guy run" before seeing officers stop and talk to that guy).)

Multiple officers from the Lorain Police Department (LPD) responded after hearing those gun shots. During their response, officers spotted the same man that McCollough saw and later identified as Gregory Raymore. The officers also recovered three pieces of evidence: a gun near where McCollough heard a "gun hitting the concrete[,]" .45 caliber ammunition in that gun, and a magazine with .45 caliber ammunition in the black Nissan that rolled over McCollough's hand earlier that night. Testing revealed that all the shell casings recovered from the crime scene came from another .45 caliber gun and not from the Smith & Wesson gun officers recovered. But testing and other evidence also connected the three pieces of evidence with Raymore.

So a grand jury returned a true bill on an indictment that charged Raymore as a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged that Raymore

having been previously convicted of crimes punishable by imprisonment for terms exceeding one year, those being: Possession of Drugs, ... Assault, ... Aggravated Robbery and Aggravated Burglary, ... and Felon in Possession of a Firearm, ... did knowingly possess in and affecting interstate commerce, a firearm, to wit: a Smith & Wesson, Model 1911, .45 caliber semi-automatic handgun, ... and seven (7) rounds of Fiocchi .45 caliber ammunition, one (1) round of HPR .45 caliber ammunition, and fifteen (15) rounds of Hornady .45 caliber ammunition, said firearm and ammunition having been shipped and transported in interstate commerce

in violation of §§ 922(g)(1) and 924(a)(2). (R. 1, Indictment, PageID 1–2.)

During the prosecution's case-in-chief, Raymore's cousin Sharetta Jackson testified. She explained that she had rented the Nissan found at the crime scene for Pansy Raymore, Raymore's sister. She also testified that Pansy said that she went to Our Space Lounge with Raymore that night. But as far as Jackson knew, only Pansy drove that car. McCollough also testified about his night, the events before the shooting, the shooting, and his observations from after the shooting.

The officers and detective who responded that night also explained their findings and observations to the jury. After the shooting, Officers Brian Andreas and Austin Zubko arrived at the alley together. When they got there, they saw a "muzzle flash[,]" "a lot of people scattering and running[,]" and the victim shot and lying on the alley floor. (R. 59, Trial Tr., PageID 432–33.) They then recounted seeing the man Andreas identified at trial as Raymore emerge and run "with his hands up" towards the officers. (Id. at 435–37.)

Andreas explained that he noticed Raymore because, from his experience as an officer, he could tell that Raymore "didn't appear to be scared the way the other people were." (Id. at 433–34.) By then the crowd "had [also] cleared ... out" of the alley and "[e]ssentially the only people still back there w[ere]" McCollough, Hines, and Raymore. (Id. at 475, 470 (testifying that Zubko saw no one else in the area in the alley from where Raymore emerged except for McCollough).) And Raymore "c[a]m[e] from" the other part of the alley where it "was significantly darker than the rest of the alley." (Id. at 434–35, 470.) So the officers drew their firearms at and stopped Raymore.

Andreas then ordered Raymore to the ground, to put his hands behind his back, and placed handcuffs on him. Andreas also checked Raymore for a weapon but released him after finding nothing and after a "clearly intoxicated" woman told Andreas that Raymore "wasn't involved." (Id. at 434, 453–54.) Andreas told Raymore to "get out of here[.]" (Id. at 449–50.) Despite Andreas's request, Andreas's dash cam footage showed Raymore "still in the area" after Andreas asked Raymore to leave. (Id. at 454.) After the episode with Raymore, Andreas tried to help with crowd control and medical aid.

Like Andreas and Zubko, Officer Juan Rodriguez also particularly noticed Raymore after arriving at the crime scene. (Id. at 416.) Though Rodriguez observed "four or five people standing" "a few feet away" from where the victim "was lying" on his back, Raymore especially caught Rodriguez's attention because it "seemed like [Raymore] was just there looking but wasn't concerned." (Id. at 414, 417 (explaining that Raymore "was the only one standing there" with nothing to say), 420–21.) Confirming the information on Andreas's dash cam, Rodriguez testified that he saw Raymore "leave[ ] [a]nd then ... come back ... maybe twice [ ] coming back and forth." (Id. at 414–16.) While Rodriguez treated the victim, another male also arrived near the victim, mentioned "he was related to the victim[,]" and "was very upset." (Id. at 421.)

Officer Jamie Ball also testified. He explained that he drove to the crime scene and parked his car "towards the rear of the alley[.]" (Id. at 529.) Ball then "attempted to secure the scene" by hanging up yellow caution tape and by pushing those near the victim out of the area. (Id. at 530.) While doing so, Ball found "laying on the alleyway" a pair of black leather gloves that matched those an in-club camera caught Raymore taking off earlier that night. (Id. at 531; see R. 60, Trial Tr., PageID 739–40 (explaining that an in-club camera caught Raymore with one black glove on one of his hands while holding a second in his other hand and moving as if "he was taking them off").) Other officers then marked, bagged, and tagged those gloves. And Ball used his canine to search the area but located nothing else of value.

Officer Christopher Ferenzi also drove his car to the alley and pulled in right behind another patrol car. On his sergeant's orders, Ferenzi helped check the occupied cars in the area and, once the officers "knew [those in the cars] weren't involved," the officers allowed those individuals to leave. (R. 59, Trial Tr., PageID 513.) But Ferenzi "didn't make it down [ ] to where the incident happened until ... [about] a half [h]our later or so" because Ferenzi then helped close off the area to the crowds "towards the front." (Id. at 514.)

Detective Brian Denman testified as well. He explained that, as it "start[ed] to get lighter outside" that night, Denman discovered a "Smith and Wesson SW1911" gun under the "white box truck" that McCollough had crawled next to earlier that night. (Id. at 573–74, 579.) After "render[ing] the gun safe," Denman found "a total of eight rounds" of .45 bullets—"seven [Fioche bullets]" and a "hollow point" (HPR) bullet—in the gun. (Id. at 578–80.) He also found "scrape[s] ... on the [gun's] handle and [ ] the barrel ... [or] the actual slide" on the side of the gun that had been on the pavement. (Id. at 602–603 (testifying he found no defects on "the upper portion" or "the other side of the gun").)

Officers also executed a warrant to enter and search every car in the area including the black Nissan in the alley that had slightly run over McCollough's hand earlier that night. (Id. at 581, 571 (explaining that when Denman arrived "no doors [we]...