129 F.4th 912
6th Cir.2025Background
- Duane Gary Underwood II was convicted for drug and gun offenses arising from a police operation involving a stolen firearm and methamphetamine found during a stop in Kalamazoo, Michigan.
- Police responded to a tip from an identified individual reporting a suspected gun sale involving VanPelt (a known gang affiliate) and a Jeep Compass; Underwood was observed at the scene engaging in suspicious activity.
- Officers detained and searched Underwood, finding methamphetamine and cash; a further search uncovered a backpack with more meth in the Jeep, as well as firearms, including the stolen pink gun.
- Underwood fled after being charged and was a fugitive for two years; co-defendants were tried separately, with varying outcomes.
- At trial, evidence from Underwood’s phone, photos, and text messages about drug dealing were admitted; the Government also read a witness’s prior grand jury testimony into the record.
- Underwood raised multiple challenges regarding constitutionality, suppression, evidentiary rulings, jury instructions, and the authority of a temporarily unlicensed prosecuting attorney.
Issues
| Issue | Underwood’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Constitutionality of 18 U.S.C. § 924(c)(1)(A) | Statute violates the Second Amendment | Regulating guns in drug crimes is constitutional | Statute is constitutional |
| Reasonable Suspicion for Detention | Officers lacked reasonable suspicion for initial stop | Tip and corroborating evidence gave reasonable suspicion | Detention lawful |
| Search of Underwood’s Person | Frisk exceeded Terry limits; lacked suspicion after initial pat down | Officer’s actions reasonable based on safety and suspicion | Search was lawful |
| Validity of Search Warrant for Phone | Warrant contained false statements; lacked particularity | ‘Anonymous’ tip usage not misleading; warrant described specific phone | Warrant valid |
| Admission of Texts and Photos (Rule 404(b)) | Evidence was inadmissible character evidence | Evidence showed intent, part of drug dealing context | Properly admitted |
| Voir Dire Limitations | Should have questioned jurors about attitudes toward other acts evidence | Limits on specific evidence questions are allowed | No violation of rights |
| Sufficiency of Evidence | Insufficient evidence for backpack drugs, gun, and related charges | Eyewitness and circumstantial evidence linked Underwood | Evidence sufficient |
| Grand Jury Testimony (Rule 803(5)) | Invalid under Confrontation Clause and hearsay rules | Witness present and subject to cross; prior statement reliable | No error |
| Jury Instructions | Misled jury on alternate theories; unsupported by evidence | Instructions matched pattern and evidence supported | Proper instructions |
| AUSA License Suspension | Lack of license was misconduct, created jurisdictional defect, and Brady issue | Administrative order allowed continued practice; no defect or misconduct | No jurisdictional defect or misconduct |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (articulates reasonable suspicion standard for stops and frisks)
- United States v. Owens, 484 U.S. 554 (1988) (right to cross-examine witness with memory loss, prior statements admissible)
- United States v. Porter, 986 F.2d 1014 (6th Cir. 1993) (prior recorded recollection admissible under Rule 803(5))
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects lawful gun possession for self-defense)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality of circumstances for probable cause)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution required to disclose favorable evidence material to defense)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment applies to states, limits are permitted)