United States v. Russ, 121112 FED6, 11-3997
| Opinion Judge | RALPH B. GUY, JR., Circuit Judge. |
| Party Name | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAMIEN T. RUSS, Defendant-Appellant. |
| Judge Panel | Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges. |
| Case Date | December 11, 2012 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
On Appeal from the United States District Court for the Northern District of Ohio
Defendant Damien Russ appeals his conviction and sentence for being a felon in unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and the subsequent revocation of and consecutive sentence for violation of the supervised release portion of a prior federal sentence for distributing cocaine base in violation of 21 U.S.C. § 841(a)(1).1 In these consolidated appeals, Russ contends that the district court erred in denying his motion to suppress evidence—namely, the firearm that Russ allegedly discarded while fleeing from police officers—and in rejecting his Batson objections to the government's use of three peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Russ also claims that the evidence was insufficient to support his felon-in-possession conviction, and that the sentences imposed for both the firearm conviction and the supervised release violation were unreasonable. While affirming the denial of the motion to suppress, we find error in the district court's ruling on the Batson objection that requires us to reverse both the felon-in-possession conviction and the revocation of his supervised release and remand for further proceedings consistent with this opinion.
I.
Defendant Damien Russ was arrested after fleeing from officers in the early morning hours of July 10, 2010. He was charged in a one-count indictment with being a felon in unlawful possession of a .38 caliber revolver that was recovered after a canine unit conducted a search along the path Russ had taken during his flight. Russ moved to suppress the firearm and ammunition as fruit of an illegal seizure. After an evidentiary hearing and additional briefing, the district court found (1) that the initial encounter between Russ and the officers was a consensual encounter—not a seizure for Fourth Amendment purposes—and (2) that "Russ's actions, including his conduct in pushing [Deputy U.S. Marshal] Boldin and then running away, coupled with the fact that Boldin observed a firearm on Russ while he was fleeing, gave the [o]fficers reasonable suspicion to detain him." United States v. Russ, 772 F.Supp.2d 880, 886 (N.D. Ohio 2011). For the reasons fully set forth in its opinion and order, the district court denied the motion to suppress because there had been no Fourth Amendment violation. Id. at 892.
Jury selection was conducted on May 10, 2011, with the entire 43-member venire panel being given instructions and asked to complete written jury questionnaires. Some of the prospective jurors were called into the courtroom for follow-up questions concerning some of the answers they provided. Prospective jurors 10 and 26 were questioned individually, and the government sought to but did not question prospective juror 17 individually. Eleven venire members were excused for cause. After the government's third peremptory challenge, defense counsel objected to the government's challenges to jurors 10 and 17. The district court engaged in a brief discussion addressing the government's racially neutral reasons and deemed the Batson challenge to be essentially waived because it was untimely. When the government exercised its fourth peremptory challenge to excuse juror 26, defense counsel made another Batson objection. The government articulated its race-neutral reason, and the district court found that, like juror 10, juror 26 had been excused for reasons other than race. The government waived its last peremptory challenge, two alternate jurors were seated, and the jury was sworn.
Since we reverse on the grounds of a Batson error and need not reach the sufficiency-of-the-evidence claim, we do not summarize the evidence presented at trial except to note that the defense disputed that Russ had possessed the firearm in question. The jury returned a verdict of guilty on May 13, 2011, which also formed the basis for the alleged violation of his supervised release. On August 10, 2011, Russ was sentenced above the Guidelines to a 97-month term of imprisonment for the § 922(g)(1) conviction. The district court conducted a hearing, revoked Russ's supervised release, and sentenced Russ to a consecutive 18-month term of imprisonment. These consolidated appeals followed.
II.
On appeal from the decision on a motion to suppress evidence, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002). When, as here, the district court denied the motion to suppress, we must view the evidence in the light most favorable to the government. United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc); see also United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). The district court's assessment of credibility is accorded deference "'inasmuch as the court was in the best position to make such a determination.'" United States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (citation omitted).
"The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). An officer may approach an individual and "generally ask questions of that individual, " or " ask to examine that individual's identification" as long as the police do not convey that compliance is required. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). "In order for a seizure to occur, the encounter must not be consensual and the officers must use physical force or the individual must submit to the officers' show of authority." Smith, 594 F.3d at 535 (citing Brendlin v. California, 551 U.S. 249, 254 (2007); California v. Hodari D., 499 U.S. 621, 628 (1991)). We have explained that "a consensual encounter becomes a seizure when 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2009) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Russ insists, as he did in the district court, that the initial encounter was not consensual but constituted a seizure by virtue of the officers' show of authority.
The testimony given during the suppression hearing, which is set forth in detail by the district court, established that the Deputy U.S. Marshal (DUSM) William Boldin and Lordstown Police Detective Christopher Bordonaro were partners assigned to a Violent Fugitive Task Force on July 10, 2010. On that day, at roughly 2:30 a.m., Boldin and Bordonaro responded to a call to assist other officers with a fight taking place at the Powerhouse Bar and Grill, where several shootings and gun-related offenses had occurred in the past. Boldin and Bordonaro arrived in an unmarked dark-colored Dodge Charger, stopped in the parking area by the front entrance, and assisted with disbursing the crowd. Then, wearing vests with the words "U.S. MARSHAL" and "POLICE" on the front and back, Boldin and Bordonaro drove in the Charger around to the parking lot in the back where the encounter with Russ occurred.
Entering the parking lot, the two officers observed Russ and his girlfriend, a woman later identified as Michelle Jones, near the employee entrance. A white Cadillac was parked near the employee entrance, and a second car was parked to the left of the employee entrance staircase. As the district court described:
The Officers observed Russ walking down the stairs from the employee entrance toward the Cadillac but noticed that, when he saw the officers pull into the lot, Russ "started to walk away from the car." DUSM Boldin recognized Russ from prior "law enforcement contacts with him, " but could not recall his name or why he remembered him. The Officers exited their vehicle and DUSM Boldin approached Russ. Boldin testified that,
immediately as I started to walk close to him, before I could really even say or do anything, he appeared startled, he appeared nervous, basically took a fighting stance. He clenched his fist, got a very determined look on his face, and began looking to his left and his right []very rapidly.
Based on Russ's behavior, DUSM Boldin "felt that there was something wrong, " and asked Russ "if everything was okay." Russ responded "no, " and "[a]s he was saying that he began to clench his fists" and took a "fighting stance." Boldin testified that, at that point, he:
felt that something was going to happen. I wasn't sure if he was going to run, if he was going to assault me, or what was going to happen, but I saw indicators that something bad was going to happen, something out of the ordinary. I immediately started to yell at him not to do it, whether it was going to be to run or fight, or whatever he was going to do. I said, "Don't do it."
As he was telling Russ "don't do it, " DUSM Boldin recalls that Russ "was raising his hand towards me, kind of swung his left arm towards me, and began to run." DUSM Boldin testified that, as Russ "began to charge and swing" at him, Boldin grabbed at Russ, but his grabbing "was in response to [Russ's] aggressive action."2 Russ made "a pushing kind of contact" with Boldin, causing Boldin to lose his balance momentarily on the gravel parking lot. As he was regaining his balance and turning to chase Russ, DUSM Boldin noticed
a "shiny object in his right waistband area" which he "instantly recognized [] as a firearm."
2The Officers testified that the...
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