United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Mario Evans,
a person in federal custody. On December 4, 2014, Evans was
found guilty of the offense of Felon in Possession of a
Firearm and, on April 7, 2015, this Court sentenced Evans to
the Bureau of Prisons for a term of 221 months, a sentence
within the sentencing guideline range. Evans' § 2255
action, which is based on several allegations of ineffective
assistance of counsel, is fully briefed and ripe for
STATEMENT OF THE CASE
October 17, 2013, Movant Mario Evans (“Evans”)
was indicted by a federal grand jury in the Southeastern
Division of the Eastern District of Missouri for being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) and 924(e). Doc. 1 (Case No. 1:13-CR00090
SNLJ). Evans made his initial appearance before Magistrate
Judge Lewis Blanton on November 27, 2013. Doc. 5. Judge
Blanton appointed attorney Jason Tilley to represent Evans in
the case at that time. Doc. 7. On January 26, 2014, Mr.
Tilley filed a waiver of the right to file pretrial motions
on Evans' behalf. Doc. 21. On February 4, 2014, Evans
appeared before Judge Blanton with Mr. Tilley for the purpose
of making a record of Evans' decision to waive pretrial
motions. During the proceeding, Evans informed Judge Blanton
that he did not want to waive pretrial motions and that he
wanted a new attorney. Doc. 23. After determining that
irreconcilable differences had developed between Evans and
Mr. Tilley, Judge Blanton appointed attorney Stephen C.
Wilson to represent Evans from that point forward. Docs.
Wilson subsequently filed a motion to suppress on Evans'
behalf, alleging Fourth Amendment violations related to the
seizure of a firearm from Evans' vehicle. Doc. 29. After
the motion was filed, Judge Blanton retired and the case was
referred to Magistrate Judge Abbie Crites-Leoni.
Motion to Suppress Hearing
suppression hearing was held on April 8, 2014. Before the
hearing, Mr. Wilson asked to address a preliminary matter
concerning Evans' request to have Judge Crites-Leoni
recuse herself from the case. (Transcript of Evidentiary
Hearing, “EH Tr., ” Doc. 39, p. 5). Mr. Wilson
stated that he had a discussion with Evans, who expressed
concern about Judge Crites-Leoni presiding over his case
because she was recently appointed to the bench after serving
a number of years with the United States Attorney's
Office (USAO). Mr. Wilson also noted that, while employed
with the USAO, Judge Crites- Leoni was supervised by
Assistant United States Attorney Larry Ferrell, who was
representing the government in Evans' case. EH Tr., p. 5.
Mr. Wilson then stated, “On his behalf, I am going to
raise that point at this time that he thinks he may not get a
fair shake.” EH Tr., p. 5. Mr. Wilson further stated
that Evans was “concerned about that and wished to make
an objection.” EH Tr., p. 5.
government responded that Judge Crites-Leoni had properly
disqualified herself in cases in which she participated or
had knowledge during her tenure with the USAO. The government
expressed its understanding that this was the policy and
practice that had been followed in the district with previous
magistrate judges and was the appropriate procedure to
follow. EH Tr., p. 6-7. The government further stated that,
as an AUSA, Judge Crites-Leoni did not participate in the
investigation or have any involvement, participation or
knowledge of Evans' case during its existence in the
USAO. EH Tr., p. 6 Accordingly, the government took the
position that disqualification was not necessary. EH Tr., p.
Crites-Leoni then explained her relationship to the parties
and her obligation to judge the matter impartially:
Mr. Evans, I can't blame you for having the concern that
you have. I want you to know that there are very special
rules regulating how cases are assigned in this district, as
they are across the country. My last day in the office was
January 31st of this year in the U.S. Attorney's office.
It may be interesting for you to know that I've actually
had a relationship with your attorney Mr. Wilson for longer
than I've had with the U.S. Attorney's office. Mr.
Wilson was one of the first defense attorneys that I
practiced with in this area. So I would say it's fair to
say I have a relationship with both of the attorneys in this
There is nothing about those relationships that will
influence me as far as whether or not I listen to all the
evidence in the case and consider that in making any decision
with regard to the motion that you filed.
In part of the selection process for this job there were a
lot of questions about whether or not I would be fair in
addressing cases where both the U.S. Attorney's office
and the Defendant had issues. And in the examination of that
question I think it was very clear that I have a new role
I did work at the U.S. Attorney's office. I do have a
prior working relationship with Mr. Wilson in many state
cases as well as federal cases, but my role here is to listen
to all the evidence from both sides, and I promise you
that's what I'm going to do.
end of the explanation, Judge Crites-Leoni asked, “Do
you feel better, Mr. Evans, about how I'm going to treat
your case?” Evans responded, “Yes,
ma'am.” EH Tr., p. 8. The court concluded by
stating, “That's how I intend to treat everyone in
this court, so that's my promise to you. That's my
promise to these men here representing both the Government
and you.” EH Tr., p. 8-9. After these assurances, Evans
expressed no further concern about Judge Crites-Leoni's
ability to be impartial.
Crites-Leoni then heard testimony relevant to Evans'
motion to suppress the firearm and other items recovered from
his vehicle. The government called Brent Douglas, a police
officer for the Charleston, Missouri Police Department.
Officer Douglas testified that the City of Charleston has a
population of approximately 5, 000 people and has a very high
crime rate. Crimes ranging from murders, drug dealings, and
shootings occur on a frequent basis. EH Tr., p. 57. The
highest crime area in this town is a six-block area, which
includes a vacant carwash where Evans' vehicle was parked
on the night in question. EH Tr., p. 56-59.
Douglas testified that on August 2, 2013, at approximately
11:45 p.m., he noticed a vehicle parked behind the vacant
carwash without its lights on. EH Tr., p. 59- 61. Officer
Douglas was familiar with the carwash and that it was in the
process of condemnation. EH Tr., p. 60. Burglaries in the
area were common at the time, so Officer Douglas turned into
the first driveway right behind the building. EH Tr., p.
61-62. Officer Douglas pulled in behind the parked car,
stopped, and got out. EH Tr., p. 63.
Douglas then noticed another car parked in an open bay of the
vacant carwash. EH Tr., p. 63-64. Using his flashlight to
illuminate the vehicle, Officer Douglas observed Evans
standing on the driver's side of the vehicle. Officer
Douglas had been proceeding toward the car in front of him
when Evans came from behind the driver's side of the
vehicle parked in the open bay. EH Tr., p. 64-65. Evans met
Officer Douglas ten to fifteen feet before Officer Douglas
could get to the parked vehicle in front of him. EH Tr., p.
the use of his flashlight, Officer Douglas recognized the
subject as Evans. EH Tr., p. 66. Officer Douglas knew Evans
from previous arrests and was familiar with his arrest
record, which included arrests for violent crimes such as
assault and armed criminal action. EH Tr., p. 62, 66-68,
122-124). Officer Douglas and Evans met between the patrol
car and the car that Officer Douglas first observed parked on
the parking lot. Officer Douglas positioned himself where he
could watch both the vehicle parked on the lot and the
vehicle that was parked in the open bay until a backup
officer arrived. EH Tr., p. 69. Officer Douglas considered
himself to be in a dangerous situation. EH Tr., p. 69-70.
Wesley McDermott arrived a short time later. Officer Douglas
then went over to the vehicle that was parked in the open bay
to verify that no other individuals were hiding in it. EH
Tr., p. 70. From where he stood, Officer Douglas could not
tell if there was anyone in the vehicle. EH Tr., p. 70.
Officer Douglas proceeded to shine his flashlight into the
open bay area where the car was located. As he approached the
bay, Officer Douglas stepped to the right side of the parked
vehicle and used his flashlight to illuminate the interior.
EH Tr., p. 70-71. Officer Douglas observed a large amount of
marijuana in the front passenger seat and a silver handgun.
EH Tr., p. 70-73. When Officer Douglas saw the items located
in the car, he placed Evans under arrest. EH Tr., p. 74. The
handgun and marijuana were later seized and placed in
evidence at the police station.
a search incident to arrest, officers found a digital scale
and a set of car keys in Evans' pockets. EH Tr., p. 76.
The car keys were later confirmed to operate the vehicle in
the carwash bay where the firearm was located in the front
seat. EH Tr., p. 82. During the booking procedure at the
police station, Evans inquired about the nature of his
charges. After being advised he was arrested for being a
felon in possession of a firearm, Evans stated: “How
are you going to charge me with a gun, it doesn't even
work, I just got it yesterday.” EH Tr., p. 83-84.
the suppression hearing, the court also heard extensive
testimony that the vacant carwash grounds were open for
public use and exposed to public view. EH Tr., p. 27-50,
conclusion of the hearing, Judge Crites-Leoni took the matter
under advisement. After extensive briefing by the parties,
Judge Crites-Leoni filed a twenty-two page Report and
Recommendation concluding that Evans' Motion to Suppress
should be denied. See Doc. 54. Evans subsequently filed
objections to the Report and Recommendation, claiming Judge
Crites-Leoni erred in denying his motion to suppress. Doc.
55. Evans also renewed his objection to Judge
Crites-Leoni's failure to recuse herself. Id. On
August 18, 2014, this Court reviewed and overruled
defendant's objections to the Report and Recommendation.
elected to proceed to trial on the charge of being a
previously convicted felon in possession of a firearm, which
took place on December 4, 2014. Following voir dire, the
parties were given an opportunity to challenge jurors for
cause, at which time Mr. Wilson asked the district court to
strike the panel and declare a mistrial because there were no
African Americans on the jury panel. Jury Trial Transcript
(“JT Tr.”), Doc. 109, p. 87. After hearing
arguments from the parties, the district court denied the
case then proceeded to trial. The government's evidence
primarily consisted of the testimony of Officer Douglas and
Officer McDermott, who described the events of the night of
August 2, 2013 ultimately resulting in the recovery of the
firearm from Evans' vehicle. JT Tr., p. 122-216. At the
conclusion of the government's case, this Court ensured
that Evans understood his rights with respect to the decision
whether to testify on his own behalf. The following
discussion occurred outside the presence of the jury:
THE COURT: Mr. Evans, I need to ask you a number of questions
and advise you of your rights to testify or not to testify.
*** Mr. Evans, you have a right to testify in this case, as
you know. And if you decide to do that, the Government
lawyers will be allowed to cross-examine you. You know that,
EVANS: Yes, sir.
THE COURT: But the point is you do have the opportunity at
this time to testify and tell your side of the story. On the
other hand, you have the right not to testify. And if you
decided not to testify, the jury will not be allowed to hold
it against you ...