                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0050n.06

                                          No. 14-3502
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Jan 15, 2015
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                            ON APPEAL FROM THE UNITED
                                                        )
                                                            STATES DISTRICT COURT FOR
v.                                                      )
                                                            THE NORTHERN DISTRICT OF
                                                        )
                                                            OHIO
ANTONIO RAY,                                            )
                                                        )
                                                                         OPINION
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE: MERRITT, STRANCH, and DONALD, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. A jury convicted Antonio Ray of possessing a

firearm after he was previously convicted of a felony offense. 18 U.S.C. § 922(g). Ray now

appeals his conviction and the district court’s denial of his motion to suppress the firearm.

Finding no reversible error, we AFFIRM.

                                           I. FACTS

A. The Suppression Hearing Evidence

       On June 11, 2013, at approximately 1:46 a.m., Ray was driving northbound on West 25th

Street in Cleveland, Ohio, in a red Dodge Stratus. Two Cleveland police officers patrolling the

high-crime area, Officers Brian Middaugh and Michael McNeeley, passed Ray in a marked

police car as they drove southbound on West 25th Street. The officers observed that the Dodge

Stratus did not have any visible mirrors, a violation of traffic law. Officer Middaugh turned the
No. 14-3502
United States v. Ray

police car around and followed Ray to investigate further, but he did not activate his lights or

siren. There were no other cars in the vicinity. R. 34 Page ID 143–46, 156.

       At the corner of West 25th Street and Sackett, Ray turned left and drove westbound on

Sackett. The officers followed approximately ten to twenty feet behind him to the intersection of

West 30th Street and Sackett, which was controlled by a stop sign. As Ray approached the

intersection, he drove in the middle of the road, “blew clearly through the stop sign” without

touching the brakes, and accelerated as he turned left onto West 30th Street. Having witnessed

Ray’s failure to obey the stop sign, Officer Middaugh activated his lights and siren and followed

Ray on West 30th Street. Officer McNeeley confirmed that Officer Middaugh did not activate

the lights and siren until after Ray failed to obey the stop sign. Id. at 189–90.

       Ray abruptly stopped his car on the wrong side of West 30th Street adjacent to an

apartment building. Officer Middaugh stopped the police car ten to fifteen feet behind him. The

scene was illuminated by a streetlight and the police car’s headlights. Id. at 146–51.

       Officer Middaugh jumped out of the police car and approached the driver’s side of the

Dodge Stratus. Ray got out of his car and faced the officer. In that moment, Officer Middaugh

could see the top half of a handgun that Ray was holding in his waistband. Officer Middaugh

identified himself as a police officer and continuously yelled “gun!” to alert Officer McNeeley

that he feared for their safety. Ray took one step forward to avoid his car door and then fled on

foot through a lot next to the apartment building. Id. at 151–54. After Ray was apprehended, the

police recovered a 9 millimeter Jimenez handgun and a magazine from separate locations on the

lot.

       Ray testified that he first noticed the police car when it passed him moving southbound

on West 25th Street. He saw the lights come on as the police car made a u-turn to follow him.


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When he reached the intersection of West 30th Street and Sackett, he knew the police car was

still behind him with its lights on, but he thought the car was heading to a call; he did not think

the police were after him. After stopping completely at the intersection of West 30th Street and

Sackett, he turned left onto West 30th Street. As he made the turn, the police car followed him,

and he heard the siren for three to five seconds as both cars rolled to a stop. He ran from the

police because he did not have a driver’s license and he was on probation, but he denied

possessing a handgun. He held his cell phone and the waistband of his pants because he did not

have a belt. Id. at 163–70, 174–75, 183.

       Based on this and other evidence, the district court determined that the officers’

testimony was more credible than Ray’s. R. 38 Page ID 235. The court found that Officer

Middaugh did not activate the police car’s lights and siren until Ray failed to obey the stop sign,

and at that point the officers had probable cause to instigate a traffic stop. Id. The court denied

Ray’s motion to suppress the handgun and magazine. Id. at 237.

B. The Trial Evidence

       Because the central issue at trial was whether Ray possessed the handgun and the

magazine, the evidence on this point was developed more thoroughly than it was at the pretrial

suppression hearing. Officer Middaugh testified that he was standing approximately one car

length away when Ray stepped out of his car at the scene of the traffic stop. In the light of the

streetlamp and the police car’s headlights and takedown lights, he saw a silver gun with a black

handle that Ray was holding with his right hand in the waistband of his pants. Officer Middaugh

screamed “gun” several times to Officer McNeeley, drew his firearm, and chased Ray as he fled

across the lot adjacent to the apartment building. Officer McNeeley could not see the handgun in

Ray’s waistband from his standing position near the passenger door of the police car. As Officer


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Middaugh chased Ray on foot, Officer McNeeley jumped into the police car and drove to the far

side of the lot to intercept Ray if he eluded Officer Middaugh. R. 53 Page ID 430–31,445, 455–

56.

       During the foot chase, Officer Middaugh focused his attention on Ray’s right hand to be

ready if Ray turned around and started shooting. He did not see Ray throw anything, and he did

not see anything fall from Ray’s body during the chase. When Ray tripped near the far edge of

the yard, Officer Middaugh caught him and frisked him for weapons. Not finding any on or

beneath Ray’s body, he handcuffed Ray and walked him to the waiting police car. Retracing

Ray’s path of flight as they walked, Officer Middaugh found a 9 millimeter magazine

approximately ten feet from the point of Ray’s apprehension. He placed Ray in the police car

and then retrieved the magazine. Id. at 431–33, 440–42, 445, 448.

       By that time, other officers had arrived to provide backup assistance, and Officer

Middaugh alerted them to the recovered magazine and the missing gun. According to Officer

Higinio Rivera, Officer Middaugh told the arriving officers that he saw Ray toss something

silver, and he asked the officers to look for the gun in a particular area.     Officer Rivera

discovered a 9 millimeter handgun positioned slightly underneath a deck attached to the back of

the apartment building. Officer Middaugh identified the handgun as the one he saw Ray holding

in his waistband. The gun had a small amount of mud splattered on it, but the gun was not

buried in mud or covered in mud. The lot was muddy and covered in trash and debris, but no

other handguns were found during the search. According to Officer Middaugh, the gun and the

magazine were found within ten feet of each other. Officer McNeeley’s police report, which was

based on information provided by Officer Middaugh, stated that the handgun was found in the

vicinity of Ray’s hands when he fell.     The gun was sent to a laboratory for analysis of


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United States v. Ray

fingerprints and DNA, but the analysis ultimately was deemed to be unnecessary because Officer

Middaugh could testify to having seen the gun in Ray’s possession. Id. at 432, 436, 441, 444,

446–47, 460, 464–67, 470, 472.

       Detective James Kooser, a firearms examiner, received the handgun and magazine at a

forensics laboratory for the purpose of test-firing the weapon and entering a digital image of a

fired cartridge case into the Nationally Integrated Ballistic Information Network (NIBIN) for

future comparisons. Detective Kooser testified that the handgun had so much mud on it that he

had to clean it before he could examine it and his examination revealed that the firearm would

not fire normally because the sear spring had been removed intentionally. Detective Kooser

knew that some criminals disable handguns after committing crimes because Ohio state law

specifies lower penalties for the possession of inoperable firearms. Such a firearm still has value

to a criminal, however, because it can be pointed at a person who would not know that the gun

might not fire normally. Months after the conclusion of the initial examination, Detective

Kooser and his assistant thought of a way to fire the gun without the sear spring by turning it

upside down and working the slide to allow the sear to fall by gravity. Once that was done and a

round loaded into the chamber, the gun could be turned right side up and fired. Using this

method, they successfully fired two rounds through the gun. The magazine belonged to the gun

and functioned with it, even though the magazine could not be secured in the gun. Detective

Kooser test-fired the gun while holding the magazine in place. The gun was not safe to carry

loaded because it could fire in fully automatic mode if it was bumped or dropped. ATF Special

Agent Lance Mullen testified that the firearm receiver and slide were manufactured in California

and sent to Jimenez Arms for assembly in Nevada. Id. at 478–84, 492, 494–96, 502–04, 509–10.




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       In addition to other exhibits, the government introduced into evidence two photographs

of the apartment building and lot where the traffic stop and foot chase occurred. The district

court excluded Ray’s photographs of the same lot, which he attempted to introduce into evidence

through the testimony of the defense investigator who took the photographs. The court observed

that defense counsel did not show the photographs to the police witnesses to establish a

foundation that they accurately depicted the scene and found that Ray’s photographs—taken in a

different season of the year and showing many fallen leaves on the ground but little trash and

debris—did not appear to depict the scene accurately. Following this exclusion, defense counsel

ended his brief examination of the defense investigator and did not call Ray or any other

witnesses to testify. Ray stipulated that he had a qualifying prior felony conviction. R. 53 Page

ID 429, 434, 514–15, 524–31.

                                        II. ANALYSIS

       Ray presents four claims: (1) the district court erred in denying his motion to suppress

the handgun and magazine; (2) the court denied him the right to present a defense when the court

excluded the defense investigator’s photographs and testimony about the photographs; (3) the

government failed to prove the essential elements of the offense; and (4) the court should have

granted his motion for judgment of acquittal or, in the alternative, for a new trial. We will

consider each of these issues, beginning with the motion to suppress.

A. Motion to Suppress Evidence

       In reviewing the denial of a motion to suppress evidence, we examine the district court’s

factual findings for clear error and its legal conclusions de novo. United States v. Lyons, 687

F.3d 754, 762 (6th Cir. 2012). A factual finding is clearly erroneous if this court, reviewing the

evidence, reaches a definite and firm conviction that a mistake was committed. United States v.


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United States v. Ray

Gunter, 551 F.3d 472, 479 (6th Cir. 2009). Because the district court denied Ray’s motion to

suppress, we review the evidence in the light most favorable to the government. Id.

         To effectuate a traffic stop, a police officer must have “probable cause of a civil

infraction or reasonable suspicion of criminal activity.”     Lyons, 687 F.3d at 763.     Officer

Middaugh’s decision to conduct a traffic stop was constitutionally reasonable because he had

probable cause to believe that Ray violated state and local law when he failed to obey the stop

sign at the intersection of West 30th Street and Sackett. See Ohio Rev. Code Ann. § 4511.43;

Cleveland Codified Ordinance § 431.19; Whren v. United States, 517 U.S. 806, 819 (1996). In

reaching our conclusion, we defer to the district court’s determination that the police officers

were more credible witnesses than Ray and to the finding that Officer Middaugh did not activate

the police car’s lights and siren until Ray failed to make the required stop at the intersection.

The court rejected Ray’s contrary testimony that Officer Middaugh activated the police car’s

lights on West 25th Street when the police car made a u-turn and started following Ray. The

court’s credibility findings are virtually “unassailable,” United States v. Maliszewski, 161 F.3d

992, 1020 (6th Cir. 1998), and its factual findings are not clearly erroneous. See Lyons, 687 F.3d

at 763. Probable cause supported the traffic stop, and any subjective motivations the police may

have harbored in making the stop are simply not relevant to the Fourth Amendment analysis.

See Whren, 517 U.S. at 819; United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en

banc).

         Although Ray pulled over to the curb on the wrong side of the street and stopped his car,

a Fourth Amendment seizure did not occur because Ray did not submit to the police officers’

show of authority. A suspect is seized “within the meaning of the Fourth Amendment where an

officer applies physical force to restrain [the] suspect or ‘a show of authority . . . has in some


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United States v. Ray

way restrained the liberty of [the] citizen.’” United States v. Jeter, 721 F.3d 746, 751–52 (6th

Cir. 2013) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). If physical force or submission to

the assertion of authority is absent, no seizure occurs. California v. Hodari D., 499 U.S. 621,

626 (1991). A seizure requires “a laying on of hands or application of physical force to restrain

movement, even when it is ultimately unsuccessful. . . . [The Fourth Amendment] does not

remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’

at a fleeing form that continues to flee. That is no seizure,” id., and is, at most, an attempted one.

Brendlin v. California, 551 U.S. 249, 254 (2007).

       Our court and sister circuits have determined that there were no seizures for Fourth

Amendment purposes in cases with facts similar to this one. In Jeter, 721 F.3d at 750–52, we

held that a seizure did not occur where two police officers used their car to block the path of a

bicyclist on a parking lot. Jeter stopped his bike, and one of the officers stepped out of the car

and approached. Id. at 750. Jeter looked at both officers, dropped his bicycle, and ran away. Id.

As the officers chased Jeter, they saw him clutching the right front pocket of his shorts. Id. The

police quickly caught him, searched him, and recovered a .22 caliber handgun from the same

pocket. Id. Like Ray, Jeter was convicted of being a felon in possession of a firearm. Id. We

upheld the denial of Jeter’s motion to suppress the firearm on the ground that no Fourth

Amendment seizure occurred when the police blocked the path of Jeter’s bicycle. Id. at 750–53.

We explained that Jeter’s “momentary pause” could “hardly be considered a submission to

authority, especially where he did not attempt to converse with the officers. In fact, Jeter

intentionally ignored the officers and their requests.” Id. at 752–53. Because there was no

seizure, we held there was no Fourth Amendment violation. Id. at 753; see also United States v.

Baldwin, 496 F.3d 215, 218 (2d Cir. 2007) (“We hold that, to comply with an order to stop—and


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thus to become seized—a suspect must do more than halt temporarily; he must submit to police

authority, for ‘there is no seizure without actual submission’”); United States v. Valentine, 232

F.3d 350, 352–53, 358–59 (3d Cir. 2000) (finding no Fourth Amendment seizure where

uniformed officers in a marked police car stopped, stepped out of their vehicle, and ordered

suspect to “come over and place his hands on the car,” to which suspect responded, “Who, me?”

and fled); United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (holding suspect’s

“momentary hesitation and direct eye contact” with police officer did not constitute submission

to authority); but see United States v. Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991) (holding

suspect was seized under the Fourth Amendment where he momentarily yielded to a police

officer’s show of authority).

        In this case, Ray did not yield to Officer Middaugh’s show of authority. He stepped out

of his car and momentarily turned to face Officer Middaugh, but he said nothing to the officer,

took one step forward to avoid his car door, and immediately fled on foot through the adjacent

lot.   “Headlong flight—wherever it occurs—is the consummate act of evasion:             It is not

necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow,

528 U.S. 119, 124 (2000). Unprovoked flight gives a police officer reasonable suspicion under

Terry to give chase, stop the suspect, and conduct a protective patdown for weapons. Id. at 121,

124–26. Ray does not suggest that the police officers provoked his flight by placing him in

“reasonable fear of physical harm.” See Jeter, 721 F.3d at 754.

        Because Ray was not seized until Officer Middaugh captured him on foot, Ray

abandoned the handgun and magazine as he threw them away or they fell from his body during

the chase. In Hodari D., the Supreme Court denied suppression where a suspect was not seized

until the police tackled him after a foot chase. 499 U.S. at 629. The cocaine thrown away by the


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suspect while running was deemed abandoned and did not constitute the fruit of a Fourth

Amendment seizure. Id.; see also United States v. Martin, 399 F.3d 750, 753 (6th Cir. 2005)

(holding suspect abandoned the firearm that he discarded before he was seized during attempt to

flee). Once Ray was seized, Officer Middaugh had authority to arrest him without a warrant for

any traffic or firearm offenses committed in the officer’s presence. United States v. Watson, 423

U.S. 411, 418 (1976); United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996); State v.

Henderson, 554 N.E.2d 104, 106 (Ohio 1990). In sum, Officer Middaugh acted within the law

when he stopped Ray’s car, chased Ray on foot, captured him, patted him down for weapons,

and arrested him on various traffic and weapons offenses.

        Ray insists that the police officers unlawfully followed him from West 25th Street

because his car did not have side mirrors. He contends that state and municipal law required that

his vehicle have only a rearview mirror, Ohio Rev. Code Ann. § 4513.23; Cleveland Codified

Ordinance § 437.21, and therefore, the police officers lacked reasonable suspicion to track his

car. See United States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012) (noting a court must

initially determine whether a Terry stop was “‘justified at its inception.’”). If Officer Middaugh

unlawfully targeted him, Ray argues, the subsequent traffic stop on West 30th Street was tainted

by the initial illegality.

        Ray’s argument fails because the district court believed the officers’ testimony, not his.

The police did not observe any mirrors on Ray’s car. Because the apparent lack of a rearview

mirror suggested a potential violation of law, the officers had reasonable suspicion to investigate.

See Lyons, 687 F.3d at 763. No Fourth Amendment violation occurred simply because Officer

Middaugh drove behind Ray’s car without activating his lights or siren.




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       For all of these reasons, the district court properly denied Ray’s motion to suppress

evidence.

B. Exclusion of photographs

       We next consider Ray’s argument that the district court should have admitted into

evidence at trial certain defense photographs depicting the lot where the foot chase occurred and

testimony of the defense investigator concerning the photographs. The government objected to

admission of this evidence on multiple grounds: relevance; the probative value of the evidence

was substantially outweighed by the danger of unfair prejudice; and the potential for the

evidence to confuse the issues or mislead the jury. Fed. R. Evid. 401, 403.

       We review for abuse of discretion a district court’s decision to exclude evidence. United

States v. Stepp, 680 F.3d 651, 660 (6th Cir. 2012). Generally, we will not disturb a court’s

evidentiary ruling unless we reach a definite and firm conviction that the court made a clear error

of judgment in weighing the relevant factors or that the court improperly applied the law. Id.

       The district court compared Ray’s photographs to those already admitted into evidence

and “identified as representative of the scene” due to the amount of trash and debris depicted on

the lot. The court expressed concern that Ray’s photographs were taken in a different season of

the year, showed fallen leaves about which no witness had testified, depicted less trash and

debris on the lot, and overall depicted “a significantly different setting” and “different

conditions” than were shown in the government’s exhibits. Because defense counsel did not

present the photographs to any witness who could authenticate them as accurate representations

of the scene of Ray’s arrest, the court excluded the photographs and testimony due to the strong

potential of the evidence to mislead or confuse the jury. R. 53 Page ID 526–31.




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       The Constitution allows a trial judge to exclude defense evidence under established court

rules where the evidence is marginally relevant or poses an undue risk of prejudice or confusion

of the issues. United States v. Blackwell, 459 F.3d 739, 753 (6th Cir. 2006). The court’s

exclusion of Ray’s proffered exhibits and testimony fell well within Rules of Evidence 401 and

403 and did not deprive him of the right to present a defense. Accordingly, we affirm the court’s

evidentiary ruling.

       Ray argues for the first time on appeal that the district court should not have admitted

into evidence the government’s photographs, Exhibits 4 and 5.          We will not address this

argument because Ray waived it when his counsel expressly stated on the trial record that he had

no objection to admission of the government’s exhibits. R. 53 Page ID 514. See United States v.

Olano, 507 U.S. 725, 733 (1993) (explaining that waiver is the intentional relinquishment or

abandonment of a known right and is different from forfeiture).

C. Sufficiency of the evidence and post-trial motions

       Finally, we consider Ray’s remaining arguments together. He contends the government’s

evidence was insufficient to prove beyond a reasonable doubt that he possessed the handgun and

magazine and consequently, the district court should have granted his motions for judgment of

acquittal under Federal Rule of Criminal Procedure 29 or, alternatively, for a new trial under

Federal Rule of Criminal Procedure 33.

       Ray preserved this issue by moving for judgment of acquittal at the close of the

government’s case in chief, again at the close of the defense case, and again in a post-trial

motion in which he also moved for a new trial. R. 53 Page ID 518, 539; R. 57. We review

de novo his challenge to the sufficiency of the evidence, and taking the evidence in the light most

favorable to the government, we consider whether “any rational trier of fact could have found the


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United States v. Ray

essential elements of the crime beyond a reasonable doubt.” United States v. Fisher, 648 F.3d

442, 450 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal

quotation marks omitted)). Under Rule 29, we do not reweigh the evidence, evaluate the

credibility of the witnesses, or substitute our judgment for that of the jury. Id.

       A rational trier of fact could find that Ray possessed the handgun and magazine found on

the empty lot following the foot chase. Officer Middaugh saw Ray holding the handgun in his

waistband at the moment he turned around at his car door. When the chase was over, Officer

Middaugh identified the handgun found on the lot as the one he saw Ray holding in his

waistband. The jury was told that the firearm was covered in mud and did not operate normally.

It was found ten feet from the magazine, which would not seat securely in the gun. Ray’s

counsel argued to the jury that the handgun and magazine were nothing but trash left on the lot

long before Ray ran across it.

       It was the jury’s province to hear all of the evidence, judge the credibility of the

witnesses, and resolve the factual disputes. The jury chose to convict. Evaluating the evidence

in the light most favorable to the government, we are convinced that a “rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Fisher, 648 F.3d at

450.

       We are also persuaded that the jury’s verdict was not against the manifest weight of the

evidence. See United States v. Hughes, 505 F.3d 578, 592–93 (6th Cir. 2007). A new trial may

be granted under Rule 33 if the extraordinary circumstance arises that the evidence

preponderates heavily against the verdict. Id. at 593. The district judge may weigh the evidence

and assess the credibility of witnesses in the role of a thirteenth juror. Id. Our appellate review

is limited, however, to deciding whether the district court clearly and manifestly abused its


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discretion. Id. Having carefully examined the trial record and considered the district court’s

opinion, R. 63, we find no clear and manifest abuse of discretion in the denial of Ray’s Rule 33

motion.

                                     III. CONCLUSION

       We AFFIRM the judgment of the district court.




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