United States v. Yusef Stroud

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and STEVEN M. COLLOTON. Roger L. Wollman, Authoring Judge (PUBLISHED) [3889607] [10-3621, 11-2119]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3621
No. 11-2119
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United States of America,
Appellee,
v.
Yusef Tareek Stroud,
Appellant.

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* Appeals from the United States
* District Court for the
* Eastern District of Missouri.
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Submitted: December 14, 2011
Filed: March 14, 2012
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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
Yusuf Tareek Stroud1 was convicted of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The district court2 sentenced Stroud to 120
months’ imprisonment. Stroud appeals his conviction and sentence. He also appeals
1

Throughout the record and the government’s brief the spelling “Yusef” is
used. The appellant’s brief states that the proper spelling of Mr. Stroud’s name is
Yusuf.
2

The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

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from the denial of his motion for new trial based upon his claim of newly discovered
evidence. We affirm.
I.
On the evening of May 14, 2005, St. Louis Police Officers Michael Scego and
Daniel Earley heard shots fired and saw Stroud running while clutching his
waistband. From their patrol car, Scego and Earley told Stroud to stop, but he
continued to run. The officers initially pursued Stroud by car, but then Earley exited
the car and pursued Stroud on foot while Scego followed in the car. While running,
Stroud pulled off one of two t-shirts he was wearing. According to Earley, Stroud
appeared to wrap the shirt around an object.
Stroud ran between two houses, and Earley continued his pursuit. By this time,
Scego had begun following Stroud and Earley on foot. Stroud attempted to climb
over a privacy fence, but Earley grabbed his shoulder and pulled him back. Earley
then observed the end of a revolver protruding from the rolled up t-shirt in Stroud’s
hands. Earley struck Stroud twice on the head with his pistol, and Stroud fell, hitting
his head against a stone foundation. Stroud continued to struggle, stood up, and
threw the t-shirt and gun over the fence. Once Stroud was handcuffed and under
arrest, Scego stayed with him while Earley retrieved the items thrown over the fence.
Stroud was taken to the hospital and released when medical personnel determined that
he was fit for confinement.
Aaron Davis’s body was found a few blocks away from the site of Stroud’s
arrest. The Medical Examiner’s Office determined that Davis died of gunshot
wounds to the head and upper body. One of the bullets removed from Davis’s body
was fired from the .357 magnum revolver seized during Stroud’s arrest, but analysis
of the other bullets was inconclusive.

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Stroud was advised of his Miranda rights at the police station. He spoke to
police, first stating that he wanted a deal to serve his time in a federal correctional
facility. Stroud also nodded his head affirmatively when asked if he had possessed
the gun and if he had shot Davis. Stroud later admitted that he had shot Davis to
satisfy a heroin debt.
Stroud was charged in state court with murder and armed criminal action.
While awaiting trial, he filed a pro se lawsuit under 42 U.S.C. § 1983, alleging that
his civil rights had been violated and naming several police officers and detectives,
including Scego and Earley, as defendants. On February 14, 2008, Stroud was
acquitted of both state charges. Shortly thereafter, the United States Attorney’s
Office (USAO) opened this case. In July 2008, Stroud’s counsel entered an
appearance in the civil suit and filed an amended complaint. On September 23, 2008,
the Department of Justice (DOJ) received the USAO request for a “Petite waiver.”3
The request was granted on November 6, 2008, and the indictment was filed on
December 11, 2008.
Stroud moved to dismiss the indictment, arguing that the federal charges
constituted a vindictive prosecution in retaliation for his § 1983 action. His motion
was denied. During the trial, Stroud objected to the court’s limitations on his crossexamination of Earley, whom he sought to cross-examine on what, in Stroud’s view,
were inconsistent statements. Specifically, Stroud wanted to question Earley on
whether he had struck Stroud “twice” or “several times” with his pistol. The district
court ruled that this was a collateral matter, not material impeachment, and ended the
line of questioning. The district court also limited cross-examination when Stroud’s
counsel asked Earley if he had personally measured the distance between the privacy

3

“A ‘Petite Waiver’ is generally described as an authorization by the United
States Department of Justice to prosecute a defendant for the same transaction of
events that have previously been prosecuted in State Court.” Gov’t’s Br. at 6, n.1.
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fence and the location where the gun was found, and Earley replied that he had not.
Stroud wanted to impeach Earley with his prior sworn statement that “you could see
the gun go about 27 feet,” but the district court ruled that the prior statement was not
inconsistent with the question asked.
Stroud also objected to the admission into evidence of his prior conviction for
unlawful possession of a machine gun. The district court ruled that the conviction
could be admitted for the limited purposes of proving knowledge, motive,
opportunity, and intent under Rule 404(b) of the Federal Rules of Evidence, and gave
a limiting instruction to the jury to that effect. At the close of the prosecution’s case,
Stroud moved for a motion of acquittal, which was denied. The jury found Stroud
guilty of being a felon in possession of a firearm.
At sentencing, the district court found by a preponderance of the evidence that
Stroud had murdered Davis, applied the enhancement set forth in § 2K2.1(c) of the
United States Sentencing Guidelines (Guidelines), and sentenced Stroud to 120
months’ imprisonment.
After he filed his appeal from his sentence and conviction, Stroud filed a
second appeal, this one from the district court’s denial of his motion for new trial. At
Stroud’s trial, Earley and Scego testified that they had prepared a “joint
memorandum” after Stroud’s arrest. The prosecution was unable to produce the
memorandum. Several witnesses testified that such internal memoranda were
routinely destroyed once a formal police report was completed. A copy of the joint
memorandum was later mailed to Stroud’s counsel as part of discovery in his civil
suit. Stroud argues that the joint memorandum constitutes newly discovered evidence
and warrants a new trial. The two appeals have been consolidated.

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II.
A. Denial of Stroud’s Motion to Dismiss the Indictment
Stroud contends that the indictment against him should have been dismissed
because he was prosecuted in retaliation for filing a § 1983 action that claimed his
constitutional rights were violated. We review the district court’s denial of a motion
to dismiss an indictment on a claim of vindictive prosecution for abuse of discretion.
United States v. Scott, 610 F.3d 1009, 1017 (8th Cir. 2010) (citing United States v.
Hirsch, 360 F.3d 860, 863 (8th Cir. 2004)).
“Although the government may take action to punish a defendant for
committing a crime, punishing a defendant for exercising his valid legal rights is
impermissible prosecutorial vindictiveness.” United States v. Campbell, 410 F.3d
456, 461 (8th Cir. 2005) (citing United States v. Goodwin, 457 U.S. 368, 372 (1982)).
It is the defendant’s burden to show that the prosecution was vindictive, and “[t]he
defendant’s burden is a heavy one” in light of the discretion prosecutors are given in
performing their duties. United States v. Leathers, 354 F.3d 955, 961 (8th Cir. 2004)
(citing United States v. Kelley, 152 F.3d 881, 885-86 (8th Cir. 1998)). Prosecutorial
vindictiveness may be proven through objective evidence or through a presumption
of vindictiveness “where there exists a reasonable likelihood of vindictiveness, which
may arise when prosecutors increase the number or severity of charges.” Campbell,
410 F.3d at 461 (citations omitted).
Stroud has failed to provide any objective evidence of vindictiveness and has
failed to submit any evidence that would raise a presumption of vindictiveness. In
support of his claim, Stroud offers a timeline showing that the USAO, despite having
an open case file, did not request a Petite waiver from the DOJ until two months after
Stroud’s counsel became involved in the § 1983 case. Stroud also points to the
magistrate judge’s comment during the hearing on his motion to dismiss the

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indictment that the timing “is enough to maybe raise some eyebrows here.” Hr’g Tr.
of Aug. 20, 2009, at 7. That comment aside, we agree with the magistrate judge and
the district court that the time sequence in this case is insufficient to raise a
presumption of vindictiveness. See, e.g., United States v. Johnson, 91 F.3d 695 (5th
Cir. 1996). Additionally, there was no evidence that the federal prosecutors were
even aware of the pending civil lawsuit at the time that the federal charges were
brought. See Johnson, 91 F.3d at 699. The district court thus did not abuse its
discretion in denying Stroud’s motion to dismiss the indictment. Moreover, it was
within the district court’s discretion to deny Stroud’s request for discovery on his
claim of vindictive prosecution, as the magistrate judge had already held a hearing on
the motion to dismiss and concluded that Stroud had not made a showing sufficient
to warrant discovery. Hr’g Tr. of Aug. 20, 2009, at 10.
Stroud’s claim that the denial of his motion to dismiss the indictment resulted
in a double jeopardy violation is without merit. Prosecution of a federal offense after
the prosecution of a state offense arising out of the same acts does not violate the
Double Jeopardy Clause. See United States v. Basile, 109 F.3d 1304, 1306-07 (8th
Cir. 1997) (citing Abbate v. United States, 359 U.S. 187, 194 (1959)).
B. Limitations on Cross-Examination
Stroud argues that the district court abused its discretion in limiting his crossexamination of Earley. We will not reverse a district court’s decision to limit crossexamination “unless there has been a clear abuse of discretion and a showing of
prejudice to the defendant.” United States v. Oaks, 606 F.3d 530, 540 (8th Cir. 2010)
(citing United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997)). The Sixth
Amendment guarantees the defendant “an opportunity for effective crossexamination,” but the court “retain[s] wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination . . . .” Id.
at 539-40 (citations omitted). To show a Confrontation Clause violation, a defendant
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must show that “a reasonable jury might have received a significantly different
impression of a witness’s credibility had counsel been allowed to pursue the proposed
line of cross-examination.” Id. at 540 (citing Harrington v. Iowa, 109 F.3d 1275,
1277 (8th Cir. 1997)). The district court acted within its discretion in limiting crossexamination. Neither of Stroud’s attempts at impeachment would have significantly
changed a reasonable jury’s impression of Earley’s testimony, which, we note, was
supported by the testimony of other officers.
C. Admission of Prior Conviction for Possession of a Machine Gun
Stroud argues that the district court abused its discretion in admitting into
evidence his prior conviction for possession of a machine gun. “We review
evidentiary rulings of the district court for abuse of discretion, and will reverse a
district court’s decision to admit evidence under 404(b) only if such evidence ‘had
no bearing on the case and was introduced solely to prove the defendant’s propensity
to commit criminal acts.’” United States v. Cowling, 648 F.3d 690, 699 (8th Cir.
2011) (citation omitted). Evidence of prior convictions is not permissible to prove
that a defendant acted in conformity with a propensity to commit acts of that type, but
may be admissible for other purposes, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R.
Evid. 404(b). The evidence must be “(1) relevant to a material issue; (2) similar in
kind and not overly remote in time to the crime charged; (3) supported by sufficient
evidence; and (4) higher in probative value than prejudicial effect.” United States v.
Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (quoting United States v. Strong, 415
F.3d 902, 905 (8th Cir. 2005)).
Stroud argues that his prior conviction is not relevant to a material issue, is not
similar in kind and is too remote in time, and is not more probative than prejudicial.
We disagree, for the prior conviction for possession of a machine gun is relevant to
Stroud’s familiarity with and knowledge that he possessed a firearm, which is an
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element of the offense and therefore material. “Evidence that a defendant possessed
a firearm on a previous occasion is relevant to show knowledge and intent . . . .”
Walker, 470 F.3d at 1274 (citing Strong, 415 F.3d at 905). The conviction for
possession of a machine gun is also sufficiently similar to the current offense and
close enough in time to meet our standards of reasonableness. See Walker, 470 F.3d
1271 (upholding admission of an 18 year-old conviction for armed robbery in a felon
in possession case); Strong, 415 F.3d at 905-06 (upholding admission of 16 year-old
conviction for robbery and being a felon in possession of a firearm). Stroud’s
previous conviction for possession of a machine gun also involved illegal possession
of a firearm and occurred in 1998, less than seven years before the acts at issue in this
case. Finally, the admission of Stroud’s prior conviction was more probative than
prejudicial. “The district court’s determination that the probative value of the
evidence outweighed any prejudice is afforded substantial deference, and a limiting
instruction diminishes the danger of unfair prejudice arising from the admission of
the evidence.” Walker, 470 F.3d at 1275 (citations omitted). Here, the prior
conviction was relevant to an element of the offense, Stroud’s knowledge of his
possession of the firearm, and the district court instructed the jury regarding the
purposes for which the evidence could be considered. Thus, the admission of
Stroud’s prior conviction for possession of a machine gun was not an abuse of
discretion.
D. Denial of Motion for a Judgment of Acquittal
Stroud next alleges that the district court erred in denying his motion for a
judgment of acquittal. We review denial of a motion for a judgment of acquittal de
novo. United States v. White Bull, 646 F.3d 1082, 1087 (8th Cir. 2011). “In
reviewing for sufficiency of the evidence, we view the evidence in the light most
favorable to the verdict, and we will ‘overturn a conviction only if no reasonable jury
could have concluded that the defendant was guilty beyond a reasonable doubt on

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each essential element of the charge.’” Id. (quoting United States v. Kenyon, 397
F.3d 1071, 1076 (8th Cir. 2005)).
To convict Stroud of being a felon in possession of a firearm, the government
was required to prove beyond a reasonable doubt that (1) Stroud had previously been
convicted of a felony, (2) he knowingly possessed a firearm, and (3) there was an
interstate nexus. United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004).
Stroud contests only the second element. He claims that Earley and Scego gave
conflicting accounts of the events and that their testimony, combined with the lack
of fingerprints on the gun, is legally insufficient to support the verdict. Stroud is
incorrect. Earley and Scego’s testimony, although not identical, was substantially the
same. Both testified that they heard shots, saw Stroud running, pursued him, and later
saw him throw the firearm. Their accounts differ in the details of exactly when Scego
caught up to Earley and Stroud and the degree to which Stroud struggled in the
moments before his arrest. Additionally, the jury was presented with the testimony
of a third officer, Detective Matt Hanewinkel, who testified that Stroud admitted
possessing the firearm. Furthermore, the fingerprint examiner testified that she does
not often find fingerprints on firearms. A reasonable jury could conclude that this
evidence proved Stroud knowingly possessed the firearm.
E. Alleged Procedural Error and Substantive Reasonableness in Sentencing
A district court commits procedural error if it fails to properly calculate the
Guidelines range, treats the Guidelines as mandatory, fails to consider § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails to adequately
explain its chosen sentence. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Stroud argues that the district court erred in applying the enhancement set forth
in Guidelines § 2K2.1(c), which provides for an enhancement to the most analogous
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homicide offense level if the felon in possession used the firearm in the commission
of another offense and death resulted. Stroud argues that the government did not
present sufficient evidence to support the district court’s finding that he had murdered
Davis. Again, we disagree. At sentencing, Hanewinkel testified that Stroud had
admitted killing Davis. Additionally, a firearms expert testified that one of the lead
projectiles taken from Davis’s body matched the gun Stroud possessed. The evidence
was thus sufficient for the district court to determine, by a preponderance of the
evidence, that Stroud murdered Davis.
We next turn to Stroud’s argument that the district court committed procedural
error by not adequately explaining his sentence. Because Stroud did not object to the
district court’s explanation, we review for plain error. United States v. Hill, 552 F.3d
686, 690 (8th Cir. 2009). Plain error is (1) an error; (2) that is plain; and (3) that
affects substantial rights. Id. (citations omitted).
The district court stated that the “primary motivating factors today are respect
for the law, protecting the public, treatment for Mr. Stroud plays a role . . . .”
Sentencing Tr. at 41. The district court went on to say that 120 months’
imprisonment was appropriate, given that the Guidelines recommended a sentence of
life imprisonment with the enhancement for murder, but that the statutory maximum
was 120 months’ imprisonment. Id. We do not require a court “to recite the
§ 3553(a) factors mechanically,” but it must be clear that the district court considered
them. United States v. Wood, 587 F.3d 882, 884 (8th Cir. 2009). Having articulated
the specific factors that informed its sentencing decision and discussed the Guidelines
recommendation and statutory maximum sentence, the district court committed no
error, plain or otherwise.
To the extent that Stroud challenges the substantive reasonableness and
constitutionality of his sentence, we find his arguments to be unpersuasive. Stroud’s
sentence was within the Guidelines range, and he has failed to rebut the presumption
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of reasonableness accorded to such sentences. Wood, 587 F.3d at 884 (citing United
States v. Toothman, 543 F.3d 967, 970 (8th Cir. 2008)). Stroud’s final argument
challenging his sentence is that the use of acquitted conduct—that is, the murder of
Davis—in sentencing violates his constitutional rights under the Fifth and Sixth
Amendment. But it is the settled law of our circuit “that the Constitution does not
preclude a district court from considering acquitted conduct in sentencing a criminal
defendant.” United States v. Papakee, 573 F.3d 569, 576 (8th Cir. 2009) (citing
United States v. Canania, 532 F.3d 764, 771 (8th Cir. 2008)) (considering acquitted
conduct does not violate a defendant’s Fifth or Sixth Amendment rights).
F. Denial of Stroud’s Motion for a New Trial
Lastly, Stroud argues that his conviction should be vacated and that he should
be given a new trial on the basis of the joint memorandum that was produced in
discovery in his civil action. We review the district court’s denial of a motion for a
new trial based on newly discovered evidence for “a clear abuse of discretion, a
rigorous standard.” United States v. Rubashkin, 655 F.3d 849, 857 (8th Cir. 2011)
(citing United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007)). In order to merit
a new trial, (1) the newly discovered evidence must have been unknown or
unavailable to the defendant at the time of trial; (2) the defendant must have been
duly diligent in attempting to uncover it; (3) the newly discovered evidence must be
material; and (4) the newly discovered evidence probably will result in an acquittal
upon retrial. Id.
The district court correctly determined that the newly discovered joint
memorandum does not warrant a new trial. The joint memorandum was prepared by
Earley and Scego after arresting Stroud and was later used to draft the official police
report of the incident, written by Detective Ralph Campbell. Stroud contends that the
joint memorandum was withheld during his trial and that its absence compromised
his ability to cross-examine Earley, Scego, and Campbell. Stroud focuses on facts
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missing from the official police report, specifically, that Earley struck Stroud with his
pistol and that Stroud hit his head on the foundation. But, as the district court pointed
out, Earley and Scego testified that Earley struck Stroud with his pistol and that
Stroud fell against a limestone foundation while they were trying to arrest him. D.
Ct. Order of May 12, 2011, at 4. Stroud was able to cross-examine the witnesses on
these points and use these facts in his defense. The joint memorandum did not
contain any new material information. Its availability would not have significantly
enhanced Stroud’s ability to cross-examine the officers, and thus it would not
probably result in acquittal on retrial.
Stroud further argues that the denial of his motion for a new trial violates his
rights under the Fifth Amendment, the Sixth Amendment, and the Jencks Act. “The
Jencks Act requires that the prosecutor disclose any statement of a witness in the
possession of the United States which relates to the subject testified to by the witness
on direct examination.” United States v. Douglas, 964 F.2d 738, 741 (8th Cir. 1992);
18 U.S.C. § 3500(b). But “[w]e will not overturn a conviction for noncompliance
with the Jencks Act where there is no indication of bad faith on the part of the
government, nor an indication of prejudice to the defendant.” Id. (citing United
States v. Roberts, 848 F.2d 906, 908 (8th Cir. 1988)).
Stroud has not shown any indication of bad faith on the part of the government
or prejudice to his defense. The testimony at the time of trial was that the
memorandum did not exist because such documents were routinely destroyed once
a final report had been prepared. This joint memorandum was obviously not
destroyed, but there is nothing to suggest that the failure to produce it was anything
beyond a bureaucratic mistake. The police testified regarding the facts set forth in the
joint memorandum, including the injuries to Stroud during the course of his arrest.
Stroud had the opportunity to cross-examine the officers on these facts and to use
them in his defense.

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Because Stroud was not denied a fair trial and had the ability to confront the
officers who testified against him, his arguments under the Fifth and Sixth
Amendments also fail. “[U]nless a defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute denial of
due process of law.” United States v. Scoggins, 992 F.2d 164, 167 (8th Cir. 1993)
(citing Arizona v. Youngblood, 488 U.S. 51 (1988)). Stroud has not demonstrated
bad faith, and the record reveals that the facts contained in the joint memorandum
were known to both sides and aired at trial.
III.
The conviction and sentence are affirmed, as is the order denying the motion
for new trial.
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