United States v. Stafford

• Citation: 721 F.3d 380
• Decision Date: 11 June 2013
• Docket Number: No. 12–3238.,12–3238.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Akeem STAFFORD, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

721 F.3d 380

UNITED STATES of America, Plaintiff–Appellee,

v.Akeem STAFFORD, Defendant–Appellant.

No. 12–3238.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 17, 2013.

Decided and Filed: June 11, 2013.

ARGUED:Amy B. Cleary, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel R. Hurley, United States Attorney's Office, Ann Arbor, Michigan, for Appellee. ON BRIEF:Amy B. Cleary, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Daniel R. Hurley, United States Attorney's Office, Ann Arbor, Michigan, for Appellee.

Before: BOGGS and WHITE, Circuit Judges; and McCALLA, District Judge.^*

OPINION

JON P. McCALLA, District Judge.

Akeem Stafford appeals his conviction and sentence for one count of violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm and ammunition. The district court sentenced Stafford to 262 months of imprisonment (21 years and 10 months) and five years of supervised release, after enhancing his guideline calculation based on (1) Stafford's armed-career-criminal status; (2) the fact that the firearm was stolen; (3) Stafford's possessing a firearm in relation to a felony offense; and (4) Stafford's reckless endangerment during flight from law enforcement.

Stafford argues the conviction was in error because the evidence does not support the verdict and because the district court improperly admitted gunshot-residue evidence and related expert testimony. Stafford also argues the sentence was in error because the district court improperly applied the Armed Career Criminal Act enhancement, relied on impermissible documents—a state-court Bill of Particulars—to determine that his previous conviction was a “violent felony” under the Armed Career Criminal Act, and imposed a procedurally unreasonable sentence. Additionally, Stafford claims the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague.

The Government concedes that the district court erred in considering the state-court Bill of Particulars as part of its determination that Stafford's previous conviction for “aggravated riot” was a “violent felony” under the Armed Career Criminal Act.

For the reasons set forth below, Stafford's conviction is AFFIRMED. The evidence supports the jury's verdict and the district court did not err in allowing gunshot-residueevidence or the related expert testimony. Stafford's sentence is also AFFIRMED. The district court properly applied the enhancement under the Armed Career Criminal Act and the enhancements under the Sentencing Guidelines; the sentence was procedurally reasonable; and the “residual clause” of the Armed Career Criminal Act is not void for vagueness.

I. BACKGROUND

At approximately 2:00 a.m. on November 21, 2010, Defendant–Appellant Akeem Stafford (“Stafford”) was standing outside Uncle Vic's nightclub on Kerstetter Way in Elyria, Ohio. As City of Elyria Police Officer Joe Figula (“Figula”) was patrolling the area around Uncle Vic's on Broad Street in his car, he heard a gunshot. After stopping near the intersection of Kerstetter Way and Broad Street, Figula observed a man, wearing jeans and a dark zip-up sweatshirt with white lettering on the back, fire two more gunshots. One of these rounds was later found to have struck the passenger window of a bystander's automobile. The shooter was later identified as Akeem Stafford. Figula reported the shooting over his police radio, mobilizing the Elyria Police Department to the area. Stafford looked up the hill at Kerstetter Way and saw Figula's police car, and Figula observed Stafford run down an adjacent alley, Tremont Street. Figula then turned his car around and proceeded to a nearby McDonald's parking lot where the alley ended and where he expected Stafford to emerge.

Stafford emerged from the alley and cut across the McDonald's parking lot, running past Figula's car and into traffic. Figula observed that the suspect running from the alley was wearing the same clothing as the shooter. As Figula attempted to follow Stafford in his car, Stafford looked back and made visual contact with Figula by looking “right at” him. Figula lost sight of Stafford when Stafford ran across the street and under an overhang near the First Merit Bank building.

Figula then drove to the east side of the First Merit Bank building, looking for Stafford to emerge, but instead found a black SUV with passengers who advised Figula they thought someone was shooting at them. Figula then told other officers in pursuit of the suspect where he had last seen Stafford and returned to that location. Now on foot, Figula searched the area around the bank building and found Stafford lying face down, wedged between the back of the building and a large green exterior power unit.¹ Figula alerted the other officers that had arrived on the scene and proceeded toward Stafford. With his gun drawn, Figula ordered Stafford to show his hands and to come out from his hiding place. When Stafford failed to comply, Figula jumped on Stafford's back, holding him down to prevent him from escaping or reaching for a firearm. Once secured, the other officers helped Figula remove Stafford, now struggling with the officers, from the area.

After removing Stafford from between the wall and the power unit, the officers noted that Stafford was not carrying a firearm. Figula organized a search for the weapon, retracing Stafford's movements backwards from behind First Merit Bank to the Tremont Street alley near Uncle Vic's nightclub. After the initial walkthrough yielded no results, Figula continued down the alley back towards Kerstetter Way and Uncle Vic's nightclub. Figula found two spent .45–caliber shell casings on the ground near the entrance of the alley from Kerstetter Way. On the arrival of the evidence technicians, a third shell casing was recovered and the search for the missing firearm resumed. The firearm, a .45–caliber semiautomatic handgun, was eventually recovered from under a staircase in the Tremont Street alley behind Moss' Steakhouse. Figula noted that the gun's magazine was partially ejected and a live round was visible in its barrel. A total of six live rounds of ammunition were recovered from the gun. Figula also noted that the gun was scuffed, indicating the gun may have been thrown and struck the cinderblock wall adjacent to where the gun was found.

Subsequent ballistics tests established that the two shell casings Figula found were fired from the recovered firearm. The bullet that pierced the bystander's automobile's passenger window was also found to have been fired from the same firearm.

Stafford was arrested at the scene, handcuffed, placed in the back of a police cruiser, and taken to the Elyria Police Department. At the precinct, Stafford's hands were swabbed for the presence of gunshot residue. Subsequent laboratory testing determined the presence of the elements of gunshot residue on Stafford's left hand.

By indictment filed on February 2, 2011, Stafford was charged with violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm and six rounds of ammunition. At arraignment, Stafford entered a plea of “not guilty.”

Before trial, Stafford filed a motion in limine to exclude the results of the gunshot-residue analysis and testimony relating to the analysis, pursuant to Federal Rules of Evidence 702 and 403. Stafford also requested a Daubert hearing on the matter. This motion was denied at the final pre-trial conference of August 11, 2011. On August 10, 2011, the Government filed a motion in limine to exclude the testimony of defense expert Robert Cilwa. This motion was held in abeyance at the final pre-trial conference.

Before trial began, the district court heard testimony and argument on the Government's motion in limine. The district court initially stated that both parties would be prohibited from admitting any gunshot-residue evidence, conditioned on the defense refraining from attempting to impeach Officer Figula's testimony at trial. Because defense counsel stated that he would attempt to impeach Figula's eyewitness testimony, and because the Government stated it would have its expert testify, the district court concluded that both the Government's and Stafford's gunshot-residue experts would be allowed to testify.

Stafford's jury trial began on August 22, 2011, and concluded on August 24, 2011. At trial, Figula testified for the Government regarding the events of November 21, 2010, and positively identified Stafford as the shooter. Officer Richard Buckway recounted Stafford's struggle with the officers and the collection of the firearm and spent shells. Sergeant Richard Ellis testified regarding his role in the investigation, namely performing the gunshot-residue test and collecting the gunshot-residue samples from Stafford's hands. The Government also introduced testimony from Martin Lewis, an expert on gunshot residue. Lewis explained the process of a gunshot-residue test, how the analysis of Stafford's test was conducted, and the conclusions he drew from the test. Joshua Barr, a forensic scientist in the firearms section of the Ohio Bureau of Investigation, testified regarding the ballistics findingsand matching the spent shells to the recovered firearm. Thomas Hopkins, Special Agent for the Bureau of Alcohol, Tobacco, and Firearms, testified regarding the recovered firearm's nexus with interstate commerce. At the close of the Government's case, Stafford moved for acquittal pursuant to Federal Rule of Criminal Procedure 29, which the district court denied.

The defense introduced testimony from Stephen Gambetta, an investigator with the Federal Defenders' Office, relating to the distances from which Officer Figula testified he had seen Stafford during the shooting and the subsequent pursuit. Bruce Freeman, the bystander whose passenger window was shattered during the shooting, also testified for the defense regarding the timing of the gunshots and when he first saw a police car on...