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United States v. Foster

United States Court of Appeals, Third Circuit

May 30, 2018


          ARGUED March 13, 2018

          On Appeal from the United States District Court for the District of Delaware (D.C. Nos. 1-15-cr-00021-01 and 02) District Judge: Hon. Richard G. Andrews

          Douglas L. Dolfman 1617 John F. Kennedy Blvd. - Ste. Lisa B. Freeland Renee D. Pietropaolo [ARGUED] Office of Federal Public Defender Counsel for Appellant Cory D. Foster

          Edson A. Bostic Tieffa N. Harper Eleni Kousoulis [ARGUED] Office of Federal Public Defender Counsel for Appellant Lawrence Payton David C. Weiss Robert F. Kravetz Edmond Falgowski

          Elizabeth L. Van Pelt [ARGUED] Office of the United States Attorney Counsel for Appellee

          Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges


          JORDAN, Circuit Judge

         In this consolidated appeal, Cory Foster and Lawrence Payton raise a number of issues arising out of their prosecution for being felons in possession of firearms. For the following reasons, we will affirm the convictions and sentences.

         I. Background

         A. Facts Relevant to Both Foster and Payton[1]

         The events leading to prosecution began on February 5, 2015, when Joseph Turchen, an employee of a barbershop in the Branmar Plaza shopping center in Wilmington, Delaware, observed what he perceived as troubling behavior by occupants of a silver Honda Accord in the shopping center parking lot. Turchen watched the Accord's two occupants for approximately twenty minutes. He testified that the man in the passenger seat had a full beard and wore a hoodie, skull cap, and dark glasses and that the man in the driver's seat was wearing a hoodie and a red or pink scarf over his face the whole twenty minutes he was sitting in the car. Turchen found the occupants' behavior suspicious because they were repeatedly looking around the strip of stores in Branmar Plaza, including the barbershop, a bank, and a jewelry store, and because he thought one of the occupant's movements indicated "he was pumping himself up to do something." (App. at 547.) Turchen also testified that the car's occupants were "dressed like they was going to go do something." (App. at 543.) He could not identify the car's occupants; he could only tell that they were two black males, one with lighter skin. His suspicions resulted in another barbershop employee calling 911 to report the suspicious behavior.

         When Delaware State Troopers arrived, Turchen saw the Accord's occupants look towards the police cars, which were at the opposite side of the parking lot. The Accord then promptly left the lot. Before the car pulled away, the barbershop's owner, Joseph Strano, got into his truck, followed the Accord, and took a picture of it and its license plate. He provided that picture to Trooper Natalie George, one of the troopers who had responded to the 911 call.

         Trooper George ran the Accord's license plate number through a police database and discovered that the car had been reported stolen in an armed robbery. She then sent an email to other troopers alerting them of that fact and attaching the picture of the Accord, which revealed a distinct bumper sticker on the rear of the car.[2]

         Trooper William Yeldell was one of the police officers who received George's e-mail. He patrolled the area around Branmar Plaza on a daily basis and the e-mail prompted him to pay particular attention to Branmar Plaza the following morning, February 6, to see if the Accord would return. It did, and he got a clear look at its occupants, but only when he passed right in front of it, dressed in full uniform in an unmarked police car. At that point, he made direct eye contact with those individuals. He saw that the one in the passenger seat was wearing glasses, a red or pink scarf, and a white button-up shirt, and that the one in the driver's seat was a black male with facial hair and a black jacket over a purple shirt. At trial, Yeldell identified the man in the passenger seat as Foster and the man in the driver's seat as Payton.

         After passing in front of the Accord, Yeldell communicated with other state troopers over the radio that he would need assistance making a vehicle stop. He left the parking lot to meet with the troopers responding to his radio call and to put himself in a better position to make a safe stop. In doing so, he lost sight of the Accord for less than a minute. When the troopers returned to the parking lot, Yeldell noticed one of the men he had seen was now standing outside of the Accord. The second man was no longer in or near the car.

         B. Foster-Specific Facts[3]

         Yeldell knew, with what he described as 100% certainty, that the man outside of the car was the same one he had observed in the Accord's passenger seat. He testified that he recognized the white button-up shirt and the "light red or pink colored scarf." (App. at 621.) That individual turned out to be Foster.

         After noticing that Foster was holding an object in his hand, Yeldell pulled out his gun and ordered him to the ground. Foster ran instead. He passed another trooper, who shot him with a Taser. As he fell to the ground, "a hand gun went flying through the air." (App. at 623.) The troopers attempted to subdue Foster, and, after a struggle, he was tased a second time. The officers then placed him in handcuffs and recovered a loaded .380 caliber black Smith & Wesson semiautomatic pistol.

         Payton-Specific Facts[4]

         While Yeldell and other officers were detaining Foster, Trooper Daniel McColgan responded to a radio call regarding the Accord's missing second occupant. He began a search of the mixed commercial and residential area around Branmar Plaza to locate the suspect, reported only as a black male. McColgan had also received and read George's e-mail from the previous day, which noted that two potentially "armed and dangerous" black men were observed in a stolen Honda Accord at Branmar Plaza. (App. at 301.)

         At around 10 o'clock in the morning, and within approximately six minutes of receiving the alert about the missing suspect, McColgan saw a black man, later identified as Payton, walking along a road from the direction of Branmar Plaza and about two-tenths of a mile from the shopping center. He observed Payton holding a soda and wearing a white skull cap, a dark jacket, and jeans. Payton was walking "calmly down the street[.]" (App. at 235.) McColgan, who was in an unmarked SUV but dressed in full uniform, drove by him and they "basically both nodded at each other." (App. at 208.) The trooper did not stop because he wanted to "see what kind of reaction" he would get from Payton by driving by and did not want to approach a potentially armed suspect alone. (App. at 209.) He continued to monitor Payton for a little over four minutes. As he did so, he radioed to ask if "anybody [had] a better description … to work with" because, at that time, he knew simply that he was looking for a black male who had fled on foot. (App. at 210-11.) Payton was the only pedestrian he had seen in the search area matching the generic description relayed over the radio.

         McColgan testified that Payton was "just lackadaisical walking down the street" and that it didn't "seem like he[] [was] going any place in particular." (App. at 214.) He did not observe Payton approach any stores or any other people. Payton continued to walk beside the road at the same calm pace. As McColgan watched Payton and maintained radio contact with other officers who had arrived to assist him, he told his fellow officers to continue searching the area "in case this person was not the person we believe was involved in this." (App. at 221.) None of the officers, however, reported seeing any pedestrians matching the general description of the suspect.

         Eventually, McColgan and his colleagues decided to stop Payton. When they were in position to do so, McColgan used his loudspeaker to tell Payton to put his hands on his head. Payton promptly complied. The officers handcuffed Payton, patted him down, and placed him in the back of McColgan's SUV. Payton did not have any weapons with him. McColgan questioned him and learned that Payton did not have identification, that he reported coming from the "market up the street, " and that he was from Philadelphia. (App. at 227-28.) What little identifying information Payton chose to provide turned out to be false.

         McColgan had fourteen years of experience patrolling the area around Branmar Plaza. He acknowledged that he was not familiar with all of the people who lived in that area and that it was possible that Payton could have been a resident of one of the developments nearby. McColgan explained, however, that it was rare for pedestrians to be walking on the side of the road where he saw Payton. It was a 40 mile-per-hour road with no sidewalks at the location where Payton was stopped. McColgan said that, in his experience, only two pedestrians walked with any frequency along that stretch - both white special needs adults. He further testified that Payton was "new to the area" and seemed to have "no rhyme or reason [for] where he was going[.]" (App. at 225.) At the time McColgan stopped Payton, he did not have a specific physical description of the missing suspect or of the clothes the suspect was wearing.

         After placing Payton in the back of his SUV, McColgan drove him back to Branmar Plaza for identification.

         C. Search of the Accord[5]

         Following Foster's and Payton's apprehension, the stolen Accord was transported to the state police's "Evidence Detection Unit." (App. at 630.) A search of the car revealed a loaded Hi-Point .9mm rifle, with a scope, inside a carrying case on the back seat, along with multiple rolls of duct tape, a pair of gloves, and a large drawstring bag. Trial testimony later established that the Accord was stolen in December 2014 and that it did not contain the rifle, rolls of duct tape, or gloves when it was stolen. No DNA or fingerprint evidence connected Foster or Payton to the items found in the car.

         D. Relevant Pre-Trial Evidentiary Rulings

         The defendants filed several motions in limine, challenging the admissibility of certain evidence and testimony.[6] Two pre-trial rulings in particular are relevant on appeal.

         First, Payton sought to exclude evidence stemming from what he argues was his unconstitutional stop and detention. He asserted that McColgan did not have reasonable suspicion to stop him when he was walking calmly down the road. The government responded that the totality of the circumstances provided reasonable suspicion for the stop. The District Court concluded that McColgan had reasonable, articulable suspicion to stop Payton, and thus did not exclude any evidence on that ground. The Court explained that the totality of the circumstances provided reasonable suspicion, despite the vague description of the missing suspect. More specifically, the Court highlighted that McColgan knew that a potentially dangerous suspect had very recently fled on foot, that he saw Payton within a defined search area in which no other individuals matched the broad description of the suspect, that Payton was stopped in close geographic proximity to the last location the suspect was observed, and that McColgan knew from experience that it was unusual to see an unknown pedestrian walking in the area where he spotted Payton.

         Second, Foster and Payton both sought to exclude the barbershop employees' testimony concerning the events of February 5, arguing that it was impermissible propensity evidence, not relevant to the jury's consideration of the crime charged, and unduly prejudicial. The government responded that the testimony constituted evidence of motive, properly admissible pursuant to Federal Rule of Evidence 404(b). The government argued that the testimony allowed it to "provide a motive for Defendants' gun possession" by demonstrating that they were preparing to commit an armed robbery. (App. at 34.) The District Court agreed with the government and allowed the testimony to show motive. The Court further reasoned that any prejudice to the defendants did not outweigh the testimony's probative value, which was relevant to material facts (i.e., gun possession) that the government had to prove to obtain convictions on the crimes charged. The government was thus able to use the barbershop employees' testimony at trial to support its theory of the case, arguing to the jury that the "case [was] about two days in a row, two men, two guns, and a plot to commit a robbery." (App. at 505.)

         E. Convictions and ...

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