!0th Affirms Denial of Motion to Suppress; Allows Admission of Uncharged Conduct as "Intrinsic" Evidence; OK Offense of Pointing a Firearm At Another Was ACCA Predicate

U.S. v. Hood, 2014 WL 7172398 (12/17/14) (Okl.) (Published) - Affirmance of a suppression denial, bad-act admission and ACCA application. In procedurally helping the government perhaps, under the goose-gander principle, this decision might help the defense some day. The 10th holds that, by arguing below that the seizure and detention of Mr. Hood was a justifiable Terry stop, the government was also implicitly arguing that the officers' use of handcuffs and weapons was justified, even though it never said so. So the government didn't waive the latter argument. The 10th holds the officers were fully justified in drawing their firearms and ordering Mr. Hood to the ground to protect their own safety and maintain the status quo where: neighbors told officers a man was running from an apartment in a "high-crime" area; officers had minutes before knocked on the door of that apartment they had connected to a burglary suspect; they had identified themselves but no one answered the door; when they later encountered Mr. Hood leaving the apartment, he had his back to them wearing a winter jacket on an "unseasonably warm" day; and he frantically fumbled in his pockets, causing the officers to believe he might be trying to remove a weapon. After Mr. Hood went to the ground, he appeared to lie on top of something with his hands underneath him. When asked if there was a firearm underneath him, Mr. Hood unhelpfully responded: "I don't know." At that point it was okay to handcuff and frisk Mr. Hood to determine if he was armed.
As the 10th says, it has repeatedly upheld the use of evidence of wrongful, uncharged acts to contextualize the defendant's arrest as intrinsic evidence outside the scope of 404(b). This case was no exception. It was okay to admit evidence of the burglary investigation. It helped explain why the officers were at the apartment complex and why they would be on heightened alert. The 10th doesn't explain why those matters were relevant. Plus, the 10th finds, the evidence wasn't unfairly prejudicial in violation of 403 because the government supposedly never suggested Mr. Hood was a suspect in the burglary.
The 10th rules that. Mr. Hood's 1985 conviction for pointing a firearm at another in violation of Oklahoma law was an ACCA violent felony because it has as an element threatening the use of physical force. Using the modified categorical approach, the 10th finds Mr. Hood's guilty plea to threatening or intimidating someone with the felonious intent to injure constituted an admission of the requisite threat, whether or not, as the criminal information alleged, his intent was to injure physically or by mental or emotional intimidation.