Page 36 - November December 2020 TPA Journal

TION. the ground and “a pair of blue jean shorts and a
pair of white Nike shoes” nearby.
Kadeem Burden and Timmy Scott appeal their Upon returning to the perimeter, Barcelona went
convictions and sentences for unlawfully possess- to the police car, where he “observed Mr. Kadeem
ing firearms as felons. We affirm. Burden [ ] wearing only black or dark-colored
under-wear and some socks, and Mr. Scott was
Police officer Jesse Barcelona was driving his only wearing . . . [b]lue jean-style shorts.” Based
patrol car when he approached an intersection. on their general physical appearance, Barcelona
Facing in the perpendicular direction were an “firmly believe[d] that those were the two individ-
SUV and a Mercedes. As Barcelona passed uals [he] observed shooting the fire-arms,” though
through the intersection, two or three black males he had not seen the shooters’ faces uncovered.
in white t-shirts and blue jean shorts exited the DNA and forensic examination linked Burden to
SUV, approached the Mercedes, and began repeat- one of the weapons and Scott to both phones and
edly discharging firearms into it. When Barcelona one of the masks. Further examination established
turned his car around to return to the scene, the that the nineteen bullets came from one or both of
SUV sped away, leaving the shooters running after the firearms discovered at the scene.
it with Barcelona in pursuit (the occupants of the Burden and Scott were charged in an indictment
Mercedes, providentially it would seem, were alleging solely that they, “having each individual-
uninjured). ly been convicted of a crime punishable by impris-
The shooters turned to look at Barcelona’s onment for a term exceeding one year, a felony,
approaching car. Barcelona “could tell that one [of knowingly did possess firearms . . . [that] had pre-
them] was still armed with what appeared to be an viously been shipped and transported in interstate
AK-47 rifle.” Further, “they appeared to have commerce” in violation of 18 U.S.C. § 922(g)(1).
something [black] covering their face[s].” They The indictment did not allege that they knew of
then ran into the local residential block, around their felon status at the time of their possession,
which Barcelona (and other officers) secured a though both stipulated at trial that they were in
perimeter while awaiting the arrival of a canine fact felons at the time of their arrest.
unit. Days after his federal arrest, Burden admitted to
Shortly thereafter, an officer at the perimeter spot- the Louisiana Parole Board that he had violated
ted two black males, “fully clothed,” “come out . . the conditions of his state parole by possessing a
. from behind a residence and then run back in.” firearm. That prompted Scott to file a severance
“Under a minute” later, two black men “came motion, which the district court denied.
back out . . , not clothed . . . [and were] [s]weating Notwithstanding that denial, the court instructed
pretty profusely.” With hands raised, the two men the jury that it was not to consider Burden’s
shouted “[w]e just got robbed, we just got admission as evidence against Scott.
robbed.” The officers “[took] them into custody[ At trial, evidence was presented establishing that
and] place[d] them in the back of” a police car, the defendants, upon surrendering to the officers,
awaiting further instruction. had claimed that they had just been robbed of their
Inside the perimeter and assisted by a dog tracker, clothing (presumably by the shooters). That jury
officers (including Barcelona) recovered various failed to reach a verdict.
items. By one side of a house they found “a black Before the second trial, the district court ordered
plastic Halloween-style mask on the ground,” and that the parties obtain its prior approval before
underneath the other side they found another such “mention[ing] or elicit[ing] any testimony”
mask and two firearms.1 Before completing their regarding the supposed robbery. No party object-
search, the unit discovered two cellular phones on ed; neither did any party proceed to seek such

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