                            File Name: 05a0914n.06
                           Filed: November 18, 2005
                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 04-2227

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                         ON APPEAL FROM THE
                                                                   UNITED STATES DISTRICT
                                                                   COURT FOR THE
v.                                                                 EASTERN DISTRICT OF
                                                                   MICHIGAN
JAVON HILL,

       Defendant-Appellant.




                                                     /

BEFORE:        MARTIN, NELSON, and ROGERS, Circuit Judges.

       BOYCE F. MARTIN, JR., Circuit Judge. Javon Hill seeks review of his conviction and

sentence for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). For the reasons

discussed below, we VACATE Hill’s sentence and REMAND the case for resentencing consistent

with United States v. Booker, 125 S. Ct. 738 (2005). As to the error claimed by Hill regarding his

conviction, we AFFIRM the district court’s judgment.

                                                I.

       On February 22, 2004, Sergeant Steven Crutchfield of the Detroit Police Department

responded to a 911 telephone call requesting police assistance regarding a taxi cab fare dispute

between a cab driver and his passenger. When Sergeant Crutchfield arrived at the scene he observed
No. 04-2227
United States v. Hill
Page 2

a cab driver arguing with an African-American male whom he later identified as Hill. As Sergeant

Crutchfield exited his vehicle he requested that Hill come over to his patrol car. Hill did not comply

with this request and instead ran away from the scene. Sergeant Crutchfield then pursued Hill in his

patrol car, used his police dispatch radio to request further police assistance, and provided a

description of Hill along with Hill’s direction of flight.

        Upon hearing Sergeant Crutchfield’s broadcast, Officers Melvin Williams and Bryan

McClarty arrived in the area in their patrol car and spotted Hill walking quickly down the street.

When the two officers stopped the patrol car, Hill ran away again. Officer Williams chased Hill on

foot. During this chase Officer Williams observed Hill remove a blue steel automatic handgun from

his waistband and toss it to the ground. Officer Williams continued to chase Hill until Hill ran

through a thick brush area which Officer Williams decided was too dangerous to enter. Officer

Williams then broadcast another request for police assistance over dispatch radio and gave another

description of Hill along with the information that Hill had been in possession of a firearm. Officers

Williams and McClarty then searched for the handgun which was eventually recovered by Officer

McClarty.

        Officer Emmett Quaine was also in the area and after hearing Sergeant Crutchfield’s

broadcast, drove to the area where Officer Quaine believed Hill to be running. Officer Quaine found

Hill and was able to detain and ultimately arrest Hill. No further firearms were found on Hill at the

time of his arrest.

        Following his arrest, Hill was indicted for possession of a firearm by felon in violation of

18 U.S.C. § 922(g). On several occasions prior to trial, Hill’s defense counsel requested that the
No. 04-2227
United States v. Hill
Page 3

government turn over to the defense “any 911 tape made from the cab company or cab driver to Sgt.

Crutchfield.” The prosecutor assigned to Hill’s case spoke with Sergeant Crutchfield about obtaining

the 911 tape. Sergeant Crutchfield incorrectly informed the prosecutor that there was no 911 tape

as Sergeant Crutchfield had been summoned to the situation by the cab driver. Thus the 911 tape

was never turned over to the defense and the case proceeded to trial on May 25, 2004.

       At trial, Sergeant Crutchfield testified that he had been summoned to the location of the cab

fare dispute not by the cab driver but by a 911 dispatch call. Sergeant Crutchfield confirmed that this

911 call would have been recorded at the time it was received by the police department.

Subsequently it was concluded that the recording of the 911 call had been destroyed pursuant to the

police department’s policy of destroying recordings of 911 calls after ninety days. The defense then

filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 based

on the government’s failure to produce the recording of the 911 call when the defense requested. The

district court denied this motion and Hill was subsequently convicted of being a felon in possession

of a firearm.

       After the trial, the defense filed a motion for a new trial under Federal Rule of Criminal

Procedure 33 on the grounds that the government had violated Hill’s due process rights by failing

to preserve the recording of the 911 telephone call. The district court ultimately denied this motion

on the grounds that Hill failed to show that the government acted in bad faith and that the

information potentially contained on the recording was not material to Hill’s guilt for felony

possession of a firearm. The district court held a sentencing hearing at which Hill was ultimately

sentenced to sixty-three months’ imprisonment followed by three years of supervised release.
No. 04-2227
United States v. Hill
Page 4

Although Hill was sentenced prior to the Supreme Court’s decision in Booker, Hill nonetheless

preserved his right to challenge his sentence under Booker by raising a Sixth Amendment claim at

sentencing.

                                                   II.

        Hill alleges that he is entitled to a new trial based on the government’s destruction of the 911

recording. Under Federal Rule of Criminal Procedure 33, the district court may grant a new trial

on the motion of a defendant only if the interest of justice so requires. The decision to grant or deny

a defendant’s motion for a new trial rests within the district court’s discretion and this Court will not

reverse a district court’s ruling on a motion for new trial absent a clear abuse of discretion. United

States v. Seago, 930 F.2d 482 (6th Cir. 1991). Motions for a new trial are generally disfavored and

are granted only with caution. Id. (citing United States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986)).



        Hill alleges that the district court erred in denying his motion for a new trial on the grounds

that the government’s failure to preserve the recording of the 911 call violated his due process right

to a fair trial. In Arizona v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 467 U.S.

479 (1984), the Supreme Court made clear that the government is not required to preserve all

evidence which could plausibly be exculpatory during a defendant’s trial or sentencing. See

Youngblood, 488 U.S. at 58 (noting that the due process clause does not impose “an undifferentiated

and absolute duty to retain and preserve all material that might be of conceivable evidentiary

significance in a particular prosecution”). Rather, the government violates a defendant’s due process

rights only where the government acts in bad faith in destroying “potentially useful” evidence.
No. 04-2227
United States v. Hill
Page 5

Youngblood, 488 U.S. at 58 (“We therefore hold that unless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially useful evidence does not constitutes a denial

of due process of law.”). The Supreme Court has defined “potentially useful” evidence as evidence

“which might have exonerated the defendant.” Id. at 57. Moreover, in order to establish bad faith

a defendant must show that the government destroyed evidence (1) whose exculpatory significance

was “apparent before” the evidence’s destruction; and (2) the defendant remains unable to “obtain

comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 489.

       In this case, as the district court noted in its opinion, it is highly unlikely that the recording

of the initial 911 telephone call meets even the minimal qualifications of potentially useful evidence.

The defense argues that the tape may have been useful in several ways: (1) it may have permitted

the defense to identify and locate the taxi cab driver, who then could have testified that Hill was not

the individual with whom the taxi cab driver had a fare dispute; and (2) it could have been used to

impeach Sergeant Crumpfield’s credibility. Hill’s arrest and his charge for felony possession of a

firearm, however, were wholly unrelated to the taxi cab fare dispute. Even if the taxi cab driver

could be located as a result of the 911 recording, and testified that Hill was not involved in the fare

dispute, Hill’s guilt for felony possession of a firearm would be not be impugned. The testimony of

the police officers would still indicate that Hill was observed fleeing the location and that Hill was

seen with a firearm in his possession. Similarly attacking Sergeant Crutchfield’s credibility would

have done little to weaken the government’s case against Hill. For it was Officer Williams, not

Sergeant Crutchfield, who testified to seeing Hill in possession of a firearm. Thus, the elements of

the charge against Hill would still be proven even if the defense had access to the 911 recording and
No. 04-2227
United States v. Hill
Page 6

the recording contained exculpatory evidence. Therefore, Hill’s due process rights were not violated

in the case because the government’s failure to preserve the 911 recording did not prevent the

defense from accessing potentially useful evidence.

       Additionally, even assuming arguendo that the tape is potentially exculpatory, the defense

has failed to show that the police acted in bad faith when it destroyed the 911 recording.

Specifically, nothing in the record suggests that the police were aware of the exculpatory nature of

the recording at the time of its destruction. On the contrary, Sergeant Crutchfield testified that the

911 call offered no information as to the identity of the cab driver or the cab company nor did it

offer any information regarding the identity of the individual involved in the fare dispute. The

defense has offered no evidence beyond mere supposition to refute this statement. There is no

evidence whatsoever to suggest that the police had knowledge of the exculpatory nature of the

recording at the time of its destruction. Therefore, Hill has failed to demonstrate bad faith by the

police in destroying the 911 recordings or that his due process rights were violated. We therefore

conclude that the district court did not err in denying Hill’s motion for a new trial.

                                                 III.

       Hill claims that his sentence violates the mandate of Booker because the district court

sentenced Hill under the erroneous belief that the federal sentencing guidelines were mandatory.

Based on this error, Hill argues that he is entitled to have his sentence vacated and his case

remanded to the district court for resentencing. See United States v. Barnett, 398 F.3d 516, 526-530

(6th Cir. 2005) (noting that a defendant is generally entitled to resentencing by the district court

where the defendant was originally sentenced by the district judge under the mistaken belief that the
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United States v. Hill
Page 7

federal sentencing guidelines were mandatory). The government agrees with Hill that in light of the

Supreme Court’s decision in Booker resentencing is warranted in this case. Given the parties’s

agreement that resentencing is appropriate and that such an outcome is consistent with our

precedent, see Barnett, 398 F.3d at 526-30, we vacate Hill’s sentencing and remand the case for

resentencing consistent with the mandate of Booker.

                                               IV.

       For the reasons stated above, we conclude that Hill’s constitutional rights were not violated

and we AFFIRM the district court’s denial of Hill’s motion for a new trial. We VACATE Hill’s

sentence and REMAND the case for resentencing consistent with Booker.
