                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      July 14, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                 No. 05-3319
                                               (D.C. No. 04-CR-20150-JW L)
    LARRY RUCKER,                                        (D . Kan.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.




         Defendant Larry Rucker was convicted on five counts related to two armed

robberies and was sentenced to 509 months’ imprisonment. In this direct appeal,

he challenges the sufficiency of the evidence supporting his conviction and the

district court’s admission of certain evidence. W e have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                  I. Background

      In a six-count indictment, the government charged M r. Rucker with two

counts of robbery affecting interstate commerce under the Hobbs Act, 18 U.S.C.

§ 1951; two counts of using, carrying, and brandishing a firearm during and in

relation to a crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(1)(C)(I);

and two counts of felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). One of the counts of felon in possession of a firearm,

Count 1, related to an incident on September 20, 2004, and was severed from

M r. Rucker’s trial on Counts 2-6, which arose from two robberies on October 26,

2004. The first robbery occurred at 6:00 a.m. at the KC Quick Pick, a

convenience store located in Kansas City, Kansas, where Toni Quintanar was

working alone as a cashier. The store’s surveillance cameras recorded the entire

robbery. Standing directly across the counter from M s. Quintanar, the robber

asked for a pack of cigarettes, then pulled out a handgun and demanded all the

money. She gave him approximately $169.00 in bills, mostly in $1.00 and $5.00

denominations. W hen the police arrived, M s. Quintanar described the robber as a

35-40 year old black male, approximately 5’10” to 6’ tall, with a heavier build

and a beard with gray in it, and wearing a head covering, black pants, and a

striped polo shirt. She stated that the robber had used a revolver.

      The second robbery occurred around noon on the same day at Bargains to

the M ax, a thrift store also located in Kansas City, Kansas. The robber entered

                                         -2-
the store and asked a few questions of the proprietor, W illiam Craig Packer.

There was a customer in the store and the robber quickly left. The robber

returned shortly thereafter and, finding M r. Packer alone, asked him for change

for a $5.00 bill. W hen M r. Packer went to the register, the robber pulled out a

handgun and asked for all the money. M r. Packer emptied the register of

approximately $60.00-$80.00, including both bills and coins. The robber also

took a plastic Ziploc bag from a cabinet beneath the counter that contained an

unknow n amount of additional bills and coins, including rolled coins.

      Immediately after the robber left, M r. Packer called 911 and informed the

dispatcher that the robber was a black male w ith braids or corn rows in his hair

and wearing a green camouflage jacket. W ithin one or two minutes of the

robbery, M r. Packer w ent outside the store and, noticing an individual a short

distance down the street that he believed was the robber, ran after him. That

individual was M r. Rucker. At that time, Officer Thomas Rector drove up, and

M r. Packer pointed out M r. Rucker to him. M r. Rucker, who was approximately a

block away, then started to run. Officer Rector drove after him but lost visual

contact when M r. Rucker turned a corner. W hen another responding officer,

Ruben Rodriguez, saw M r. Rucker run between two houses and into a wooded

area, he chased him on foot. During his pursuit, Officer Rodriguez observed

M r. Rucker bend down and place something on the ground. After a short chase,

Officer Rodriguez caught M r. Rucker, who at that time was barefoot and had

                                         -3-
slipped and fallen in the wet conditions. M r. Rucker resisted, and Officer

Rodriguez and other officers who arrived during the struggle subdued him.

      Another officer who arrived shortly after M r. Rucker was in custody, John

Sledd, retraced M r. Rucker’s route and located a silver .38 caliber handgun in the

brush. M r. Rucker had a Ziploc bag containing fifty-seven $1.00 bills, eight

$5.00 bills, two $10.00 bills, $17.00 in quarters, $23.80 in dimes, $9.05 in

nickels, $3.79 in pennies, and two rolls of pennies. R. Vol. IV, doc. 68

at 285:1-4. The police brought M r. Packer over to where M r. Rucker was in

custody, and he identified M r. Rucker as the robber. A contemporaneous photo of

M r. R ucker reveals that he had braids or corn rows in his hair. Id. Supp. Vol. I,

Ex. 28.

      The next day, detectives presented a photo array to M s. Quintanar that

contained the pictures of six black men, one of whom was M r. Rucker. Id., Ex. 3.

M s. Quintanar identified him as the KC Quick Pick robber.

      At trial, M s. Quintanar again identified M r. Rucker. She also identified the

shirt he was wearing when he was apprehended as the same shirt worn by the

KC Quick Pick robber. Likewise, M r. Packer again identified M r. Rucker as w ell

as the jacket he was wearing when he robbed Bargains to the M ax. After a trial, a

jury returned a unanimous verdict of guilty on Counts 2-6 of the indictment. The

district court entered judgment on that verdict and sentenced M r. Rucker to 509

months. Count 1 was dismissed. M r. Rucker appeals.

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                                   II. Discussion

      Although M r. Rucker explicitly sets forth two issues in his opening brief,

the sufficiency of the evidence and the district court’s admission of certain

evidence, we have identified a third issue that he refers to somewhat obliquely—

the district court’s denial of his motion to suppress M s. Quintanar’s identification

of him from the photo lineup. We address each of these issues below.

      A. Sufficiency of the evidence.

      M r. Rucker contends that there was insufficient evidence supporting his

conviction on Counts 2-6 of the indictment. W e review sufficiency of the

evidence claims de novo. U nited States v. W illiams, 376 F.3d 1048, 1051

(10th Cir. 2004). “In doing so, we view the evidence in the light most favorable

to the government and determine whether a reasonable jury could have found the

defendant guilty of the crime beyond a reasonable doubt.” Id. W e do not “weigh

conflicting evidence or second-guess the fact-finding decisions of the jury.”

United States v. Summers, 414 F.3d 1287, 1293 (10th Cir. 2005). Rather, we

must determine whether, “based on the direct and circumstantial evidence,

together with the reasonable inferences to be drawn therefrom,” the jury’s verdict

was supported by sufficient evidence, United States v. Smith, 133 F.3d 737, 742

(10th Cir. 1997).

      M r. Rucker argues that the identifications made by M s. Quintanar and

M r. Packer were too unreliable for a reasonable jury to base a finding of guilt

                                         -5-
beyond a reasonable doubt on them. In support of this argument, M r. Rucker

points to M s. Quintanar’s failure to notice or mention a scar beneath M r. Rucker’s

eye despite testifying that she w as focused almost exclusively on the robber’s

eyes during the robbery. He also points to M r. Packer’s description of the robber

as 5’7” to 5’8” tall and wearing blue jeans, whereas M r. Rucker is 6’ tall and was

wearing black jeans when he was apprehended. Despite these minor

discrepancies, however, both M s. Quintanar and M r. Packer accurately described

other characteristics of M r. Rucker, and they each identified M r. Rucker before

and during trial. Accordingly, there was sufficient evidence from which a

reasonable juror could conclude that their identifications were reliable, and we

will not reweigh evidence or assess eyewitness credibility in determining the

sufficiency of the evidence supporting identifications, see United States v.

Waldron, 568 F.2d 185, 186-87 (10th Cir. 1977) (per curiam).

      M r. Rucker also argues that M s. Quintanar’s description of the robber as

5’10” to 6’ tall is clearly contradicted by the surveillance video of the KC Quick

Pick robbery, which was admitted into evidence and viewed by the jury.

M s. Quintanar, who is 5’1” in height, was standing on a cashier platform that was

6” to 12” in height, making her effective height 5’7” to 6’1” in relation to the

floor on which the robber was standing. M r. Rucker reasons that, because it

appears in the video that M s. Quintanar is taller than the robber, the robber could

be no more than 5’8” tall.

                                         -6-
After viewing the video, see R. Supp. Vol. II, Ex. 6, we cannot say that it appears

the robber is no more than 5’8” tall. The primary deficiency is that the video

does not provide the degree of accuracy necessary to draw the four-inch

distinction M r. Rucker would have the jury make. His theory also fails to take

into account the position of the video camera above and behind M s. Quintanar,

which could make even a 6’ tall individual appear somewhat shorter than her.

Finally, there is not such a great disparity in the video between the relative

apparent heights of M s. Quintanar and the robber such that a reasonable jury

could find the robber to be no taller than 5’8”.

      M r. Rucker further contends that still photographs from the video, R. Supp.

Vol. II, Exs. 1 & 2, show two characteristics that he does not possess–a mole or

other m ark on his cheek and a scar or birthmark across his neck and shoulder. O n

this issue, the government presented evidence from Thomas W heeler, a crime

scene investigator for the Kansas City, Kansas, Police Department, who processed

the video and produced the still photos. M r. W heeler testified that the still photos

were distorted because the printer printed in pixels, or small squares, whereas the

video is represented in lines. Id. Vol. III, doc. 67 at 238:19-23. The jury had the

opportunity to view the video, which provides a clearer image of the robber’s

characteristics than the still photos. Based on M r. W heeler’s testimony and the

video, a reasonable jury could conclude that the characteristics M r. Rucker




                                          -7-
focuses on in the still photographs are distortions or, as the government argues,

the effects of lighting, not moles, scars, or other marks.

      M r. Rucker also asserts that the video does not show the scar he has under

his right eye. However, the video does not provide a sufficiently clear view of

the area beneath M r. Rucker’s eye from which a reasonable jury could find that

the robber did not have a scar.

      M r. Rucker raises several other points concerning the sufficiency of the

evidence. He argues that there was never any compelling evidence that he ever

possessed the gun recovered by Officer Sledd. He further contends that Officer

Rodriguez’s testimony that M r. Rucker bent down and placed something on the

ground during the chase is belied by Officer Sledd’s testimony that he never

observed M r. Rucker do so. Rather, M r. Rucker contends that the gun could

already have been there in the deep brush, and he points out that it was never

processed for fingerprints.

      Several pieces of testimony fatally undermine these points and lead us to

conclude that there was sufficient evidence from which a reasonable jury could

conclude that the gun belonged to M r. Rucker. Officer Sledd testified that, after

view ing the early portion of the pursuit from his patrol car, he parked, put on his

vest, and proceeded on foot along the outside of the wooded area. He stated that

he “could hear officers yelling to [M r. Rucker]” and that he “could tell they had

him in custody.” Id. Vol. III, doc. 67 at 228:18-20. He then went into the woods

                                          -8-
and found that the other officers had restrained M r. Rucker. The clear implication

of this testimony is that Officer Sledd did not see the whole chase. Thus, it would

be reasonable for the jury to find that M r. Rucker could have set the gun down

when Officer Sledd was not watching. M r. Rucker’s theory that the gun could

already have been there is wholly speculative and does not undermine the jury’s

contrary finding.

      The fact that the gun was not processed for fingerprints was explained by

the crime scene investigator, M r. W heeler, who testified that the gun was very

wet and that moisture washes fingerprints off. Id. at 251:15-18. He also testified

that, due to the way a gun is handled, he rarely has been successful in recovering

a workable latent fingerprint from a firearm. Id. at 253:13-16. Accordingly, a

reasonable jury could discount the failure to process the gun for fingerprints.

      Finally, Officer Sledd testified that he backtracked along the path of the

chase and found the gun, and Officer Rodriguez testified that the gun was found

at the point he saw M r. Rucker bend over and place something on the ground.

M r. Packer, who described himself as somewhat familiar with guns, also testified

that he observed copper-jacketed ammunition in the cylinder of the silver gun the

robber pointed at him, which he believed to be a .357 M agnum. The gun that was

recovered contained the same type of bullets and was a silver .38 caliber handgun.

According to the testimony of Bruce Stukey, an employee of the Bureau of

Alcohol, Tobacco, and Firearms w ho is an interstate nexus expert with respect to

                                         -9-
firearms, a .38 is very similar to a .357 M agnum, which would explain

M r. Packer’s misidentification. Thus, we conclude that there was ample evidence

linking the recovered gun to M r. Rucker.

      M r. Rucker suggests that his proffered explanation for what he was doing at

the time of the robberies and why he had small bills and change when he was

apprehended undermines the jury’s verdict. His version of events, and the

contrary evidence, may be summarized as follows. He claims that he was

sleeping at his sister’s house in Kansas City at 6:00 a.m. on October 26 when the

KC Quick Pick was robbed. His sister testified, however, that he slept there but

was already awake when she got up at 7:00 a.m., and M s. Quintanar, of course,

identified him as the robber. He claims that, at noontime, he had been drinking

and left his shoes on his nephew’s porch when he decided to follow two women

with whom he was acquainted in order to flirt with them. He also claims he ran

because he was scared— an officer, without reason, had injured him a few weeks

earlier. However, Officer Rodriguez testified that there were many places where

M r. Rucker could have hidden or lost his shoes during the chase through the wet,

muddy woods, and another officer, as discussed below , refuted M r. Rucker’s

motive for running. M r. Rucker contends that he won the small bills and change

he possessed playing cards with his nephews and nieces at his sister’s house the

night before, a story that his sister corroborated, and that a w oman had given him

som e m oney for w orking on her car. However, the money taken from the two

                                        -10-
robberies consisted mostly of small bills and change, albeit in an uncertain

amount. Based on the foregoing, we conclude that sufficient evidence supported

the government’s version of events and a reasonable jury could choose not to

believe M r. Rucker’s version.

      B.     Admission of M s. Quintanar’s pre-trial identification.

      M r. Rucker filed a motion to suppress the pre-trial identifications made by

both M s. Quintanar and M r. Packer on the ground that they violated his Fifth

Amendment due process rights. Although the government contends that

M r. Rucker has not challenged the district court’s denial of that motion, he listed

it in his docketing statement. An issue listed in a docketing statement but not

briefed, however, is considered abandoned. Reazin v. Blue Cross & Blue Shield

of Kan., Inc., 899 F.2d 951, 979 n.43 (10th Cir. 1990). In his appellate briefs,

M r. Rucker argues only that a reasonable juror could not base a guilty verdict on

M r. Packer’s identification because it was too unreliable (an argument we have

already rejected), not that the pre-trial identification was admitted in violation of

his due process rights. Thus, M r. Rucker has abandoned any challenge to the

admissibility of M r. Packer’s pre-trial identification. However, M r. Rucker does

argue that M s. Quintanar’s identification of him as the KC Quick Pick robber “is

explained by the fact that she was shown a photo lineup in which only one person

– Rucker – had the only important facial feature that [M s.] Q uintanar described to

police, i.e., a full beard with gray in it.” Aplt. Opening Br. at 12. W e construe

                                         -11-
this statement as sufficiently preserving for appeal the district court’s denial of

the motion to suppress M s. Quintanar’s pre-trial identification.

      “[T]he ultimate conclusion of the constitutionality of identification

procedures is a mixed question of law and fact which is subject to de novo

review.” United States v. Bredy, 209 F.3d 1193, 1195 (10th Cir. 2000). Any

pertinent factual findings, however, are reviewed for clear error. Id. After

carefully reviewing the record, we conclude that, for substantially the same

reasons as set forth in the district court’s well-reasoned order, the pre-trial

identification procedure used with M s. Quintanar likely was unnecessarily

suggestive but nevertheless did not violate M r. Rucker’s Fifth Amendment due

process rights. See R. Vol. I, doc. 26 at 15-16, 20-23.

      C.     Admission of Officer D undovich’s testimony.

      M r. Rucker testified on direct examination that he had run from Officer

Rector on October 26 because an officer had “jumped” him two weeks earlier and

he required stitches to his face. R. Vol. IV, doc. 68 at 329:14-23. On

cross-examination, the government asked M r. Rucker, “Tell the jury, M r. Rucker,

about this incident that happened – that you claim happened two weeks before

where the police had jumped on you.” Id. Vol. IV, doc. 68 at 357:14-17. The

gist of his response was that he fled from Officer Dion Dundovich because he

thought the officer was trying to hit him with his patrol car. After a brief chase,

another officer apprehended him, and he was lying on the ground in handcuffs

                                          -12-
when Officer Dundovich arrived, approached him, and kicked him in the face,

dropped him on the back of his head, and punched him in the eye.

      The government then advised the court that it intended to call Officer

Dundovich as a rebuttal witness. The district court overruled M r. Rucker’s

objection, reasoning that he had “opened the door” by implying that he had been

assaulted on September 20 for no reason and that the government was entitled to

present rebuttal evidence showing that there had been a valid reason for Officer

Dundovich’s actions. Id. at 361:21 to 362:23; see also 391:25 to 393:9

(addressing M r. Rucker’s renewed objection). Officer Dundovich then testified

that, as he drove up alongside M r. Rucker to ask him some questions, he observed

M r. Rucker draw a gray metal object from his waist, drop it on the ground with a

distinctive metallic sound, and begin to run. Believing the object to be a gun, he

pursued and apprehended M r. Rucker and, during the ensuing scuffle, M r. Rucker

sustained the cut beneath his eye. Officer Dundovich then went back and

recovered a .45 caliber handgun where M r. Rucker had dropped it. Count 1 arose

from this incident, and the district court had severed it from Counts 2-5 on

misjoinder principles pursuant to Fed. R. Crim. P. 8, see R. Vol. I, doc. 26 at 6. 1




1
       Although the court also discussed prejudice and the possibility of giving a
limiting instruction, that was not the basis for its order. See R. Vol. I, doc. 26 at
9-10.

                                         -13-
      M r. Rucker argues that he did not “open the door” for the admission of

Officer D undovich’s testimony because his own testimony was admissible— it

was true, went only to his state of mind on October 26, and did not unfairly

prejudice the government. He argues in the alternative that any door he might

have opened did not entitle the government to introduce evidence that he

possessed a firearm on September 20. W e disagree on both points.

       “Opening the door” is also referred to as the doctrine of “curative

admissibility.” See United States v. M orales-Quinones, 812 F.2d 604, 609-10

(10th Cir. 1987). It “is limited to the prevention of prejudice and used only to the

extent necessary to remove any unfair prejudice which might otherwise have

ensued from the original evidence.” Id. at 610 (quotation omitted). W e have

described the general rule thus:

      A party, having himself opened the door to evidence which is
      inadmissible for the reason that it is not the proper method of
      establishing or resisting the issues in the case, cannot complain that
      thereafter the court in the exercise of its sound judicial discretion
      permitted the opposite party to introduce other testimony bearing
      upon that field of inquiry, even though under different circumstances
      the testimony would be subject to valid objection of inadmissibility.

United States v. Regents of N.M . Sch. of M ines, 185 F.2d 389, 391 (10th Cir.

1950); see also United States v. Davis, 183 F.3d 231, 256 (3d Cir.) (explaining

that the doctrine of curative admissibility first requires the introduction of

inadmissible evidence that gives a false impression), amended, 197 F.3d 662

(3d Cir. 1999). “Admission of rebuttal evidence, particularly when the defendant

                                         -14-
‘opens the door’ to the subject matter, is within the sound discretion of the

district court.” United States v. Troutman, 814 F.2d 1428, 1450 (10th Cir. 1987).

       M r. Rucker’s testimony on direct examination that he was “jumped” by an

officer and required stitches was a reference to the facts underlying Count 1,

which the district court, at M r. Rucker’s request, had severed. Generally,

“evidence relevant only to a particular count in the indictment becomes irrelevant

if the count is severed; but relevant evidence is unaffected.” United States v.

Abdelhaq, 246 F.3d 990, 993 (7th Cir. 2001). In the abstract, the facts underlying

Count 1 were irrelevant to the remaining counts; indeed, this is the apparent

reason the district court severed it. Therefore, that evidence was inadmissible.

See Fed. R. Evid. 402 (irrelevant evidence is inadmissible). As the district court

noted, it was M r. Rucker’s choice to make those facts relevant and, hence,

admissible. See R . V ol. IV , doc. 68 at 392:25 to 393:9. Accordingly, we

conclude that the curative admissibility doctrine’s prerequisite, the inadmissibility

of the evidence that opens the door, was satisfied in this case.

      M r. Rucker’s extended narrative in response to the government’s

open-ended questions on cross-examination is relevant to determining the extent

to which he opened the door. That testimony prejudiced the government by

establishing a motive for running from Officer Rector other than that he had just

robbed Bargains to the M ax, and its truth was at issue. Absent an opportunity to

rebut that testimony by describing the reason Officer Dundovich had chased

                                         -15-
M r. Rucker in the first place and scuffled with him, namely, dropping the gun, the

prejudice to the government would have been unfair. The district court, therefore,

did not abuse its discretion in admitting Officer Dundovich’s testimony.

      The district court instructed the jury that it could consider Officer

Dundovich’s testimony only insofar as it affected the credibility of M r. Rucker’s

proffered reason for running from Officer Rector, not as evidence that M r. Rucker

was more likely to have possessed a gun on October 26. W e generally presume

juries follow limiting instructions and place a heavy burden of persuasion on

those who urge otherw ise. United States v. Carter, 973 F.2d 1509, 1513-14

(10th Cir. 1992). Because the other evidence identifying M r. Rucker as the

robber of both the KC Quick Pick and Bargains to the M ax and tying him to the

gun was sufficiently strong to convict him regardless of O fficer Dundovich’s

testimony that he possessed a gun on September 20, we see no reason to deviate

from this presumption.

                                  III. Conclusion

      For the reasons stated above, we AFFIRM M r. Rucker’s conviction.


                                                     Entered for the Court


                                                     M onroe G. M cKay
                                                     Circuit Judge




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