United States v. Cory Foster
891 F.3d 93
3rd Cir.2018Background
- On Feb 5-6, 2015, a stolen Honda Accord was observed casing Branmar Plaza; barbershop employees photographed the car and reported suspicious behavior to police. Troopers learned the vehicle was stolen and circulated an alert with a photo.
- On Feb 6 Trooper Yeldell saw the Accord at the plaza, identified Foster as the passenger and Payton as the driver; Foster was later detained after running and a handgun was recovered near him.
- Trooper McColgan, responding to a radio alert about a second fleeing suspect, encountered Payton walking ~0.2 miles from the plaza, followed him, stopped and handcuffed him, then transported him to the plaza for identification; no weapon was found on Payton.
- A search of the Accord revealed a loaded .9mm rifle and items (duct tape, gloves, bag) consistent with preparation for robbery; no fingerprints/DNA tied the defendants to the car contents.
- Pretrial, Payton moved to suppress arguing the stop lacked reasonable suspicion; both defendants moved to exclude Feb 5 barbershop testimony as impermissible propensity evidence. The district court denied suppression and admitted the barbershop testimony under Fed. R. Evid. 404(b) as motive evidence.
- Both were convicted under 18 U.S.C. § 922(g)(1). Payton received a sentence enhanced under U.S.S.G. § 2K2.1(b)(6)(B); Foster received a § 2K2.1(c)(1) enhancement based on the PSR linking the recovered pistol to earlier robberies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Reasonable-suspicion for McColgan’s stop of Payton | Payton: stop unlawful because only a generic description ("black male") existed | Gov: totality (recent fleeing suspect, proximity in time/place, no other matching pedestrians, officer experience) supplied reasonable suspicion | Stop and detention (including handcuff/short transport) were reasonable; suppression denial affirmed |
| 2) Admissibility of barbershop employees’ Feb 5 testimony under Rule 404(b) | Foster/Payton: testimony speculative, identifies neither defendant, impermissible propensity / unduly prejudicial | Gov: admitted to prove non-propensity purpose — motive (casing/intent to rob), relevant to knowledge/possession | District Court did not abuse discretion; testimony admissible for motive, probative value outweighed prejudice |
| 3) Sufficiency of evidence for Payton’s constructive-possession conviction | Payton: conviction rests on proximity only | Gov: circumstantial proof — seen driving the stolen car, items consistent with robbery in car, flight, false ID; supports knowledge/dominion | Evidence sufficient; jury verdict affirmed |
| 4) Sentence enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for Payton | Payton: insufficient proof he participated in a separate felony (conspiracy to rob) because Feb 5 ID unclear | Gov: preponderance of evidence (plausible conspiracy, items in car, video surveillance, flight) supports enhancement | District Court’s factual findings not clearly erroneous; enhancement affirmed |
| 5) Sentence enhancement under U.S.S.G. § 2K2.1(c)(1) for Foster | Foster: PSR assertion that pistol was same as used in prior PA robberies is unsupported; he didn’t object at sentencing | Gov: PSR reliable, supported by timing, surveillance video, victim testimony and Foster’s failure to object | Plain-error review: no clear error; enhancement permissible given PSR and supporting evidence |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes constitutionality of brief investigatory stops based on reasonable, articulable suspicion)
- Illinois v. Wardlow, 528 U.S. 119 (2000) (reasonable suspicion requires more than an unparticularized hunch)
- United States v. Brown, 448 F.3d 239 (3d Cir. 2006) (warning that excessively general descriptions alone cannot supply reasonable suspicion)
- United States v. Goodrich, 450 F.3d 552 (3d Cir. 2006) (totality-of-circumstances can overcome a vague description when corroborating factors exist)
- United States v. Graves, 877 F.3d 494 (3d Cir. 2017) (officer experience and inferences inform reasonable-suspicion analysis)
- United States v. Sharpe, 470 U.S. 675 (1985) (Terry stop must be reasonably tailored and minimally intrusive)
- United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014) (404(b) is a rule of general exclusion; other-acts evidence must satisfy a strict test)
- United States v. Lee, 612 F.3d 170 (3d Cir. 2010) (motive evidence is admissible in § 922(g)(1) cases)
- Huddleston v. United States, 485 U.S. 681 (1988) (standard for admitting other-acts evidence: jury must be able reasonably to find the act occurred and that defendant was actor)
- United States v. Repak, 852 F.3d 230 (3d Cir. 2017) (articulates the four-step test for 404(b) evidence admissibility)