                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0517n.06

                                         Case No. 13-1250

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                             )                       Jul 15, 2014
                                                                         DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE EASTERN DISTRICT OF
LEWIS KEVIN BELL,                                     )      MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                      )
____________________________________/                 )


Before: MERRITT, SUTTON, and GRIFFIN, Circuit Judges.

       MERRITT, Circuit Judge. The defendant Bell was convicted by a jury of being a felon

unlawfully in the possession of a pistol in violation of 18 U.S.C. § 922(g)(1), for which the

maximum sentence is ten years.         The district court, following a recommendation of the

presentence report, found the defendant also to be an Armed Career Criminal, which mandates a

minimum sentence of fifteen years. The district court sentenced the defendant to seventeen years

and six months. Due to the diligent work of defense counsel appointed on appeal, the parties

have agreed that the defendant does not meet the test for punishment as an Armed Career

Criminal and that his sentence should be vacated and the case remanded for resentencing.

       That agreement between the parties leaves two issues for decision on appeal: First, the

defendant’s claim that the facts before the police did not justify the stop, seizure of the pistol and

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United States v. Bell

arrest under the doctrine of Terry v. Ohio, 392 U.S. 1 (1968); and second, the defendant’s claim

that the government improperly destroyed the coat the defendant was wearing when stopped—

asserting that the indictment should have been dismissed, or “at a minimum,” that the jury should

have been instructed to take into account the government’s conduct when it destroyed the

defendant’s coat.

                                     I. The Terry Stop Issue

       On this Fourth Amendment claim, the district court accepted the prosecution’s rendition

of the facts as follows:

               According to the government, Defendant was arrested while walking
       south-bound on Greenfield Road approaching Capitol Street at 2:30 a.m. on
       November 4, 2011, by two Detroit Police officers on patrol. The officers were on
       patrol in the area due to recent armed robberies and shootings, and they did not
       have a warrant for Defendant’s arrest.

               Upon seeing Defendant, the officers illuminated him with a flashlight.
       The officers testified they saw a bulge in defendant’s front jacket in the shape of a
       gun, at which point they exited their vehicle. After Defendant grabbed his pocket,
       the officer asked Defendant to show his hands, and Defendant ultimately
       complied. Upon finding a gun in Defendant’s possession, the officers arrested
       him.

       At oral argument and in his letter to the court of May 9, after oral argument on May 1,

2014, defense counsel took issue with the district court’s factual statement as follows:

       At the very least it must be acknowledged that the District Court clearly erred
       when it found that the officers “testified” that the bulge in Mr. Bell’s jacket was
       “in the shape of a gun.” Op. & O (doc. #30) 161 (emphasis added). There is no
       such testimony in the record.

       As we read the record, this defense claim understates the strength of the arresting

officer’s testimony. Beginning on page 23 of the Record (doc. #33), an arresting officer testified

as follows:

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United States v. Bell

       Q. On the activity log it indicates that there was a bulge in Mr. Bell’s pocket
       which appeared to be a gun, correct?

       A. Correct.

       Q. Could you see by the bulge that it was a gun or were you just assuming that
       the bulge was a gun?

       A. Well, the bulge appeared to be a gun to me.

       The officer’s belief, based on his eyewitness observations, that the defendant had a bulge

in his pocket that was in the shape of a gun provides “reasonable suspicion” under the Terry

doctrine that the defendant was carrying a concealed pistol. Defense counsel does not argue that

carrying such a concealed weapon in Michigan is legal, but rather that simply having his hand on

a “bulge” in his pocket is not sufficient to trigger a valid Terry stop. Here, however, the

testimony was that the “bulge” was in the shape of a gun. The officer was “experienced,” a

factor that Terry recites as a consideration to be taken into account. 392 U.S. at 23, 30. The

other facts stated by the district court—that the events happened at 2:30 a.m. in the morning in a

Detroit area where recent “robberies and shootings” had occurred—make a persuasive case for

the stop in the first instance. The suspicion that the defendant had a pistol in his pocket

completes the basis for the frisk and makes it reasonable. The arresting officers did not ask the

defendant to hold up his hands and submit to a seizure until after this combination of factors was

present. The request to raise his hands in such circumstances was approved in United States v.

Mendenhall, 446 U.S. 544, 554 (1980). The district court did not err in accepting this reasoning.




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United States v. Bell

                            II. Improper Destruction of Evidence

         The defendant also should not prevail on his claim that the district court should have

either dismissed the indictment or given a favorable jury instruction because his coat was not

preserved as evidence.

         As this court explained in United States v. Jobson, the following three-part test is applied

to determine if the destruction of evidence offended due process:

         (1) that the government acted in bad faith in failing to preserve the evidence; (2)
         that the exculpatory value of the evidence was apparent before its destruction; and
         (3) that the nature of the evidence was such that the defendant would be unable to
         obtain comparable evidence by other reasonably available means.

102 F.3d 214, 218 (6th Cir. 1996).

         There is no evidence that the government (Wayne County Jail) acted in bad faith, or

destroyed the defendant’s coat for any reason independent of the jail’s normal practice. Whether

the coat could have been helpful to the defendant’s case may be difficult to determine today, but

it is not obvious that Bell could not have used another coat from the same company to make the

point.

         Accordingly, we affirm defendant’s conviction and remand to the district court for

resentencing in accordance with this opinion.




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