United States v. Comrie , 136 F. App'x 883 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0552n.06
Filed: June 27, 2005
No. 03-3458
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ROBERT COMRIE, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: BATCHELDER and GIBBONS, Circuit Judges; and STAFFORD, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Robert Comrie, during
the period when he was under indictment for a crime punishable by a term of imprisonment greater
than one year and following his conviction for that crime, provided funds to his friend, Robert
Simpson, and Comrie’s then-girlfriend, Melissa Dyson, to procure firearms for him. Comrie was
charged with conspiracy to make false statements in connection with the acquisition of firearms by
Simpson and Dyson and conspiracy to knowingly dispose of and transfer possession of firearms
from Simpson while Comrie was under indictment for, and later convicted of, a felony crime.
Comrie was also charged with two counts of causing a false statement to be made to a firearms
*
The Honorable William Stafford, United States District Judge for the Northern District of
Florida, sitting by designation.
No. 03-3458
United States v. Comrie
dealer with the intention of deceiving the dealer as to the lawfulness of the sale. Comrie was further
charged with two counts of knowingly possessing firearms while convicted of a felony crime.
Comrie presents several claims on appeal. First, he argues that the introduction of evidence
concerning his prior conviction constituted plain error. Second, Comrie asserts that he was denied
effective assistance of counsel at trial. He also claims that there was insufficient evidence presented
at trial to sustain his conviction for two counts of causing false statements to be made to a firearms
dealer in connection with a firearms purchase. Next, Comrie appeals the denial of his motion to
suppress evidence seized by his probation officer during a search of his home. Finally, Comrie
challenges the district court’s decision to apply enhancements to his sentence. For the reasons set
forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with
this opinion.
I.
In July 1999, Robert Simpson, Jr. moved from New York City to Lorain, Ohio, where he
stayed at the residence of his friend, Robert Comrie. In late November 1999, after completing the
required criminal background check, Simpson purchased a .380 caliber pistol, which he later sold
to Comrie. From January to April 2000, Simpson bought twenty more firearms from various gun
dealers in Ohio. Prior to these purchases, Comrie gave Simpson the cash to buy the firearms. After
each sale was completed, Simpson left the firearms with Comrie. During one occasion, Comrie even
accompanied Simpson to a gun show, where Comrie again funded the purchase of the firearms that
he later acquired.
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For all of these firearms purchases, Simpson completed ATF Form 4473, which asked
whether Simpson was the actual buyer of the purchased firearm. Simpson answered this question
affirmatively with regard to each purchase of firearms procured for Comrie. During the time that
Simpson purchased firearms for Comrie, Comrie was under indictment in the Lorain County Court
of Common Pleas for a crime punishable under the laws of Ohio by imprisonment for a term
exceeding one year,1 and he was convicted of that crime on March 27, 2000.
On March 31, 2000, Ronald Warchol, Comrie’s probation officer, went to Comrie’s home
to verify and search his residence. Also present during the search were parole officers, two
narcotics detectives, and a canine unit. While searching one of the bedrooms of Comrie’s home,
Warchol discovered a .22 caliber semi-automatic handgun, a Glock model 27 .40 caliber pistol,
Glock model 27 pistol box, a blue Beretta Tomcat box, and over 200 rounds of various caliber
ammunition. Shortly thereafter, Simpson decided not to purchase any more firearms for Comrie.
Later that year, Comrie turned to Melissa Dyson, a woman with whom he was having a
romantic relationship, to acquire firearms for him. In late October 2000, Comrie raised the idea to
Dyson of her purchasing firearms. Comrie told Dyson that she would be able to purchase guns
because of her “clean background.” On October 29, 2000, Dyson and Comrie attended a gun show
together in Akron, where Dyson purchased guns with cash provided by Comrie. At the gun show,
Dyson bought twelve firearms. In making each of these purchases, Dyson certified that she was the
1
Comrie was under indictment from November 24, 1999, until March 27, 2000, when he was
convicted of a felony offense.
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United States v. Comrie
actual buyer of the firearms on the ATF 4473 forms that she completed. After the gun show, Comrie
took possession of the purchased firearms.
One week after the Akron gun show, ATF agents visited Dyson at her home to question her
about her firearms purchases. When the agents asked Dyson why she had bought so many guns,
she responded that she had purchased them for her grandfather’s collection, a response that Comrie
had told her to use if she was ever asked about the purchases. Dyson later told the agents that
Comrie had given her the money to purchase the firearms and that he was in possession of them.
A few days after her interview with the ATF agents, Dyson told Comrie that she wanted the guns
back because she had been questioned by the police. Comrie returned the firearms to Dyson, and
although she intended to resell the guns to “get[] them out of [her] name,” Dyson instead placed
them in a rented storage locker. In January 2001, Dyson sold the firearms to George’s Bait and
Carryout in Lorain. Dyson later told the ATF of her sale of the firearms and turned over the receipts
from the sale. In April 2001, Lorain police executed a search warrant to search Simpson’s
home in connection with the investigation of a local marijuana trafficking operation. During the
search, police uncovered empty gun boxes for which Simpson did not possess the matching firearms.
It was later revealed that these gun boxes once held the firearms that Simpson had purchased for
Comrie.
In September 2001, Simpson and Dyson were charged with making false statements in
connection with their purchase of firearms for Comrie. They both pled guilty and agreed to testify
against Comrie. Comrie was then charged in a six-count indictment. Count I charged Comrie with
violating 18 U.S.C. § 371 by conspiring with Simpson to make false statements in connection with
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United States v. Comrie
the acquisition of firearms by Simpson and to knowingly dispose of and transfer possession of
firearms from Simpson while Comrie was under indictment for, and later convicted of, a felony
crime. Count IV charged Comrie with conspiring with Dyson to make false statements in
connection with Dyson’s purchase of firearms in violation of 18 U.S.C. § 371. Count II related to
Simpson’s March 2000 firearms purchases for Comrie and charged Comrie with causing a false
statement to be made to a firearms dealer with the intention of deceiving the dealer as to the
lawfulness of the sale, in violation of 18 U.S.C. §§ 922(a)(6) and 2. Count V charged Comrie with
the same statutory violations as Count II, but related to Dyson’s October 2000 purchases at the
Akron gun show. In Counts III and VI, Comrie was charged with knowingly possessing firearms
while convicted of a felony crime, in violation of 18 U.S.C. § 922(g)(1). Count III charged
possession of the guns seized in the March 31, 2000, search by the probation officer, while Count
VI charged possession of the firearms purchased by Dyson.
Comrie pled not guilty to the charges presented in his indictment. He also filed a motion to
suppress all evidence seized from his home as the result of the warrantless search made by his
probation officer – namely, two handguns, firearms boxes, and ammunition. The district court held
an evidentiary hearing and denied his motion. Comrie proceeded to trial and was convicted by the
jury on all counts. He was sentenced to sixty months as to Counts I and IV, which sentence was to
run concurrently with his sentence of 100 months as to the remaining counts. Comrie’s federal
sentence runs consecutively to his state sentence in Ohio. Comrie filed a timely notice of appeal of
the district court’s judgment and sentence.
II.
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Comrie first argues that the district court erred in allowing testimony about his prior
conviction when, prior to the start of witness testimony at his trial, Comrie and the government
stipulated to the fact that Comrie was under indictment for a crime punishable by imprisonment for
a term in excess of one year for the period from November 24, 1999, to March 27, 2000. The parties
also stipulated to the fact that he was convicted of such a crime on March 27, 2000. During trial,
Comrie did not object to the testimony that he now challenges, so this court reviews this issue for
plain error. United States v. Crozier, 259 F.3d 503, 516 (6th Cir. 2001). For Comrie to establish
plain error, the burden is on him to show: “(1) that an error occurred in the district court; (2) that the
error was plain, i.e., obvious or clear; (3) that the error affected [his] substantial rights; and (4) that
this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” Id. (quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)).
Comrie’s challenge initially focuses on the testimony of his probation officer, Ronald
Warchol. Comrie asserts that Warchol “was permitted to clear up the ambiguity of the stipulation
and what it was for.” An examination of the substance of Warchol’s testimony, however, reveals
that Comrie has overstated the nature of his probation officer’s testimony. Warchol simply testified
that he was a probation officer who supervised probationers sentenced in Common Pleas Court in
Lorain County and that, in late March 2000, he was assigned to supervise Comrie. Contrary to
Comrie’s assertion, Warchol never stated the nature of Comrie’s prior conviction.
Comrie next directs the court to statements made by the government in its opening statement:
This is a case about a defendant who cannot legally purchase or possess firearms
because he’s been charged with and is later convicted of a felony offense. . . . I
suppose the story begins in the fall of the year 1999. The defendant Robert Comrie
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No. 03-3458
United States v. Comrie
by that time had been indicted in state court for a federal – I’m sorry – for a felony
offense.
Comrie also points to references made by the government during its closing statement:
Robert Comrie could not buy guns for himself. There is a stipulation in this case that
from at least November 24, 1999[,] until March 27th of 2000 he was indicted for a
felony. And the stipulation continues that he was convicted on March 27th of the
year 2000 of a felony. So he could not buy guns. . . . In other words, [Simpson] did
not have a felony record and he could buy firearms.
Comrie also noted that later in its closing statement, the government mentioned that Warchol
undertook a probation search of Comrie’s apartment and that the government stated that “there was
a stipulation read to you earlier regarding the felon in possession charge.”
Comrie argues that, because of these statements, “the jury knew that the conviction was a
felony, knew what kind of felony, knew that Appellant was on probation and had the fact of his
felony record hammered home to the jury repeatedly.” As a result, he claims that the trial statements
cited constitute unfair prejudice against him in accordance with the decision of the U. S. Supreme
Court in Old Chief v. United States, 519 U.S. 172 (1997).
There are numerous problems with Comrie’s claim. First, Comrie mischaracterizes the
record. No statement in the record reveals the nature of Comrie’s felony conviction. At most,
statements made during Comrie’s trial indicated to the jury that a crime punishable by a term of
imprisonment in excess of one year is a felony.2 Second, Old Chief lends no support for Comrie’s
position. In that case, the defendant, who, like Comrie, was charged with possession of a firearm
2
Comrie cites no authority for the proposition that the government cannot refer to a
defendant’s prior conviction, which forms the basis of a § 922(g)(1) charge, as a “felony.”
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No. 03-3458
United States v. Comrie
by a person with a felony conviction in violation of 18 U.S.C. § 922(g)(1), offered to stipulate that
he had been convicted of a crime punishable by imprisonment exceeding one year. 519 U.S. at 175.
The government refused the stipulation and instead introduced the order of judgment and
commitment for Old Chief’s prior conviction, thereby revealing that Old Chief “did knowingly and
unlawfully assault [the victim], said assault resulting in serious bodily injury” and that Old Chief
was sentenced to five years imprisonment for that crime. Id. at 177. The Supreme Court held that
it was an abuse of discretion for the district court to admit Old Chief’s record of conviction when
a stipulation was available, because pursuant to Federal Rule of Evidence 403, “the risk of unfair
prejudice did substantially outweigh the discounted probative value of the record of conviction.”
Id. at 191. In this case, the government never sought to introduce a record revealing the nature of
Comrie’s prior felony conviction. Rather, both parties agreed to stipulate that Comrie was
previously under indictment for and convicted of a crime punishable by imprisonment in excess of
one year. The government’s references to the stipulation during trial related exclusively to evidence
properly before the jury. We are unable to find error in the references to Comrie’s conviction
Moreover, we conclude that statements made by the government during trial did not impose
any unfair prejudice on Comrie. This conclusion is bolstered by the fact that the district judge
specifically instructed the jury prior to its deliberations not to consider Comrie’s prior conviction
for any improper purpose:
The government and the defendant have agreed and stipulated that the defendant was
convicted of a felony, that is, a crime punishable under the laws of the state of Ohio
by a term of imprisonment exceeding one year, prior to the date of the crime charged
in the indictment. You may accept the stipulation as evidence that the defendant was
convicted of a prior felony offense and find that this element of the charge has been
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No. 03-3458
United States v. Comrie
established. You should consider [the] parties’ agreement only for the purpose of
deciding whether the defendant was previously convicted of a felony offense, as is
charged in [the] indictment. You are not to consider it for any other purpose.
In sum, Comrie’s claim of plain error is without merit.
III.
Comrie next argues that he was deprived of the effective assistance of counsel because his
trial attorney did not object to references made about his prior conviction. “As a general rule, this
[c]ourt will not review claims of ineffective assistance of counsel for the first time on direct appeal.”
United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000). An exception exists when the record is
adequate to address the defendant’s claim. United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990).
Here, the record is adequate to address the claim. Since no error, much less plain error, occurred
in the references to Comrie’s prior conviction, Comrie cannot succeed in a claim that his counsel
was ineffective in failing to object to the references.
IV.
Comrie next contends that evidence presented at trial was insufficient to support his
conviction in Counts II and V of causing a false statement to be made to a firearms dealer with the
intention of deceiving the dealer as to a fact material to the lawfulness of the sale. He argues that,
in two respects, Simpson and Dyson were unaware that they were breaking the law by purchasing
firearms used with funds provided by Comrie. First, Comrie argues that the ATF Form that Simpson
and Dyson each completed during their respective firearms purchases was filled with “vague
references” and did not indicate that their transactions were illegal. Comrie further claims that the
ATF Form merely asks whether the individual purchasing the firearm is the buyer, and since
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No. 03-3458
United States v. Comrie
Simpson and Dyson purchased the weapons, they were in fact the buyers of the firearms. Second,
Comrie asserts that the government did not prove that Simpson and Dyson believed that Comrie was
legally ineligible to buy firearms.
We first address the government’s contention that Comrie has waived his right to challenge
on appeal the sufficiency of the evidence supporting his convictions on Counts II and V. The
government noted that Comrie made a motion for judgment of acquittal at the close of all evidence
on the ground that Simpson and Dyson were not credible and that their testimony during trial should
not be believed.3 The government contends that, unless the court treats Comrie’s motion for
judgment of acquittal as a general motion, Comrie’s arguments presented on appeal as to the
insufficiency of evidence must be deemed waived.
This court will not consider a defendant’s challenge to the sufficiency of evidence if the
defendant does not make a motion for judgment of acquittal, pursuant to Federal Rule of Criminal
Procedure 29, at the end of the prosecution’s case-in-chief and at the close of all evidence. United
States v. Chance, 306 F.3d 356, 368 (6th Cir. 2002) (citing United States v. Dandy, 998 F.2d 1344,
3
Comrie’s counsel made the motion for judgment of acquittal in this way:
We would make a motion for judgment of acquittal with reference to all of the
various counts of this case. I don’t need to elaborately argue the position that I take,
but I take the position ultimately that the testimony is insufficient because the
testimony of Mr. Simpson, obviously, rest[s] wholly and solely on his own
credibility. And I think that his credibility has been shown sufficiently to have been
discredited. And I take the same position with reference to the testimony of Ms.
Dyson. I don’t think her testimony alone is sufficient to support findings of guilty
in as far as the various charges in which the government has predicated its case on
her testimony.
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No. 03-3458
United States v. Comrie
1356 (6th Cir. 1993)). “Failure to make the required motions constitutes a waiver of objections to
the sufficiency of the evidence.” Id. at 369. “Although specificity in a Rule 29 motion is not
required, where the defendant makes a Rule 29 motion on specific grounds, all grounds not specified
in the motion are waived.” Id.
In this case, Comrie’s trial counsel presented a Rule 29 motion for judgment of acquittal on
the specific ground that Simpson and Dyson – the government’s principal witnesses – were not
credible. Comrie alters the basis of his insufficiency argument on appeal, instead claiming that
Simpson and Dyson did not knowingly violate the law. Therefore, we conclude that Comrie has
waived his right to argue on appeal that his convictions under Counts II and V should be reversed
for insufficient evidence.
Even if we considered Comrie’s insufficiency argument, it lacks merit. Comrie was
convicted of “knowingly and unlawfully mak[ing] and caus[ing] to be made a false and fictitious
statement, intended and likely to deceive [a licensed firearms] dealer with respect to facts material
to the lawfulness of the sale and acquisition of . . . firearms” when he “counsel[ed], induce[d] and
willfully cause[d]” Simpson and Dyson to represent on ATF Form 4473 that they were the actual
buyers of firearms that were being purchased for Comrie. ATF Form 4473 asks the buyers of the
firearm, “Are you the actual buyer of the firearm indicated on this form? If you answer “no” to this
question the dealer cannot transfer the firearm to you. (See Important Notice 1.).” Notice 1, which
is included with Form 4473, further reads:
WARNING – The Federal firearms laws require that the individual filling out this
form must be buying the firearm for himself or herself or as a gift. Any individual
who is not buying the firearm for himself or herself or as a gift, but who completes
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No. 03-3458
United States v. Comrie
this form, violates the law. Example: Mr. Smith asks Mr. Jones to purchase a
firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. If Mr.
Jones fills out this form, he will violate the law. However, if Mr. Jones buys a
firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones
may lawfully complete this form. A licensee who knowingly delivers a firearm to
an individual who is not buying the firearm for himself or herself or as a gift violates
the law by maintaining a false ATFF 4473.
Form 4473 also states that, by signing the form, firearm transferees are certifying that the answers
given on the form – including whether they are the actual buyers of the firearm – are true and
correct. Both Simpson and Dyson signed the ATF Form prior to purchase, thereby indicating that
they were the actual buyers of the firearms purchased.
The proof at trial cannot support Comrie’s claim that Simpson and Dyson were unaware that
they were procuring firearms for Comrie in violation of the law. First, ATF Form 4473 is explicit
in its explanation that using funds received from a third party to buy firearms for that party is
unlawful. Second, Simpson and Dyson each testified under oath during trial that Comrie gave them
money to buy firearms for him. Simpson testified that, at the time he transferred the firearms to
Comrie, Simpson was aware that Comrie had been indicted for a felony offense in Ohio and that it
was unlawful for Comrie to acquire firearms during this period. Dyson likewise testified that
Comrie gave her money to buy guns because, unlike him, she had a “clean background.”
V.
Prior to the start of trial, Comrie moved to suppress evidence4 seized by Ronald Warchol,
his probation officer, during Warchol’s search of Comrie’s residence on March 31, 2000. This
4
The evidence seized included two guns, firearms boxes, and ammunition.
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No. 03-3458
United States v. Comrie
evidence formed the basis for the offense charged in Count III of the indictment. The district court
denied the motion, concluding that the probation officer had the authority to conduct the search
because there were reasonable grounds to believe that Comrie was not abiding by the law or
otherwise complying with the terms of his probation.5
On appeal, Comrie argues that his probation officer lacked reasonable grounds to suspect that
he was in any way not complying with his probationary terms, and therefore, the probation officer
lacked the authority to conduct the search. Specifically, Comrie argues that Warchol lacked
reasonable suspicion to search his residence because his parole officer acted on hearsay and “stale”
information in deciding that reasonable suspicion for the search existed. In reviewing the denial of
a defendant’s motion to suppress evidence, this court reviews the factual findings of the district court
for clear error and its conclusions of law de novo. United States v. Hurst, 228 F.3d 751, 756 (6th
Cir. 2000). “The evidence must be reviewed, however, ‘in the light most likely to support the
district court’s decision.’” Id. (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th
Cir. 1999)).
5
The conditions of supervision that Comrie signed at the start of his probationary period
provided:
I agree to a search, without warrant, of my person, my motor vehicle, or my place of
residence by a supervising officer or other authorized representative of the
Department of Rehabilitation and Correction at any time. Notice: Pursuant to
section 2967.131 of the Revised Code, Officers of the Adult Parole Authority may
conduct warrantless searches of your person, your place of residence, your personal
property, or any property which you have been given permission to use if they have
reasonable grounds to believe that you are not abiding by the law or terms and
conditions of your supervision.
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United States v. Comrie
In Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), the United States Supreme Court decided
that, in order to comply with the Fourth Amendment, a search of a probationer’s home must be
reasonable. The Court upheld the search of a probationer’s home pursuant to a Wisconsin regulation
that allows for such searches if the probationer’s supervisor approves and there are reasonable
grounds to believe that contraband is located in the probationer’s home. Id. at 872. The Court more
recently considered the prerequisites for the search of a probationer’s home in United States v.
Knights, 534 U.S. 112, 121 (2001), emphasizing that no more than reasonable suspicion is needed
to conduct such a search: “When an officer has reasonable suspicion that a probationer subject to
a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct
is occurring that an intrusion on the probationer’s significantly diminished privacy interests is
reasonable.” Reasonable suspicion “requires that the authority acting be able to point to specific and
articulable facts that, taken together with rational inferences from those facts, reasonably warrant
a belief that a condition of probation or parole has been or is being violated.” United States v.
Payne, 181 F.3d 781, 786-87 (6th Cir. 1999) (citation omitted).
Warchol testified that he searched Comrie’s residence as a result of a conversation he had
with Officers Kolster and Soto of the Lorain Narcotics Bureau that “they had information that
[Comrie] is a well-connected drug dealer and firearms dealer.” Warchol described the information
received in this way: “I was told that he’s a very well-connected drug and gun dealer, a lot of time
he would leave the state for that information, and [the Narcotics Bureau] always knew and had
information that [Comrie] would always have guns and drugs either on his person or at his
residence.” Warchol also testified that the Lorain Narcotics Bureau had provided reliable and
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No. 03-3458
United States v. Comrie
trustworthy information to him in the past on other matters. Based upon the information he received
about Comrie, Warchol testified that he believed Comrie was not complying with the rules of his
probation.
Comrie argued that Officers Kolster and Soto’s statements about him were based on
information received in May and June of 1999,6 which was approximately nine or ten months before
Warchol searched Comrie’s residence, so the information provided was “stale.” In making this
argument, Comrie relied chiefly on the decision of this court in Payne. In Payne, this court deemed
that a tip – that a probationer had a large quantity of methamphetamine in the trunk of his car – was
too unreliable to provide the searching officers with reasonable suspicion to search the probationer’s
6
The information supplied by the Narcotics Bureau was based on its database file on Comrie,
which read:
1-5-98 ARRESTED FOR POSS. OF MARIJUANA & PARAPHERN. (CP)
02-23-99 WAS STOPPED DRIVING A RENTAL CAR BY THE P.A. STATE
POLICE. DURING A SEARCH OF THE VEHICLE THEY DISCOVERED $8,000
IN THE TRUNK WRAPPED IN PLASTIC AND DRYER SHEETS. . . . (PS)
5-10-99 TASK FORCE ADVISED THAT A SUBJECT WAS TAKEN OFF IN
ERIE COUNTY WITH 7 POUNDS OF MARIJUANA. . . . SUBJECT FURTHER
ADVISED THAT HE HAS ACQUIRED [marijuana] DIRECT FROM COMRIE IN
THE PAST A FEW TIMES ALSO AND PICKED IT UP AT HIS PIN OAK
APARTMENT. PAYS $1050 PER POUND. STATED HE SAW
APPROXIMATELY 100 POUNDS THERE ON ONE OCCASION. THE
SUBJECT SAYS COMRIE GETS HIS DOPE FROM NEW YORK AND
CALIFORNIA. JDR
6/17/99 REC’D INFO COMRIE IS BUYING GUNS IN LORAIN COUNTY AND
TAKING THEM TO NEW YORK. HE RETURNS WITH MARIJUANA TO A
PIN OAK APARTMENT WHERE HE DISTRIBUTES IT. TN
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No. 03-3458
United States v. Comrie
property six weeks after the tip was given. Id. at 789-90. Among the factors cited by the court as
reasons why it was impermissible to rely on the tip were: (1) that the tip became “garbled” as it was
reported to the officers that conducted the search, because the tip that the searching officers actually
received was that the probationer was dealing a large quantity of drugs from his trailer, not that
methamphetamine had been found in the trunk of Payne’s car; (2) that the tip “lacked detail and
failed to predict any future events that could be monitored to provide corroboration”; (3) that the tip
was anonymous; (4) that the tip erroneously referenced Payne’s drug dealing activities to have taken
place from his car, when in fact he owned a pick-up truck; and (5) that “[d]rugs are not the types of
objects that are likely to be kept, and . . . the tip contained no indication of ongoing activity.” Id.In this case, Warchol received information that Comrie was a well-known drug and firearms
dealer. The record does not include, however, any indication that Warchol was aware of the more
specific information in the file in the Narcotics Bureau database. The only evidence as to Warchol’s
knowledge of the information in the file came from Officer Soto when he was asked during his
testimony at the suppression hearing whether the report’s information was shared with Warchol’s
office – the Ohio Adult Parole Authority. Soto responded:
It may have been shared the day of, prior to us going out to the meeting, or probably
before. I think Detective Kolster had contact with the Adult Parole Authority. He
was basically the one trying to establish the case and build a case, and he may have
had some prior conversations with them.
This testimony from Soto appears to be mere speculation without firsthand knowledge. Given this
state of the record, the government failed to establish that Warchol had knowledge of the contents
of the Narcotics Bureau’s file on Comrie or had any information other than the very general facts
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No. 03-3458
United States v. Comrie
that Comrie was a drugs and firearms dealer. Therefore, Warchol lacked “specific and articulable
facts” to warrant a belief that Comrie was violating the law. Consequently,Warchol lacked
reasonable suspicion to search Comrie’s residence. Payne, 181 F.3d at 786.7
Even if Warchol had been aware of the contents of the file, Payne casts serious doubt on the
sufficiency of the information in it as a basis for reasonable suspicion. The information in the
narcotics report on Comrie was several months old by the time the search was executed. The court
in Payne was concerned that the search in that case occurred six weeks after receipt of the tip
because, like the information that was the basis of Comrie’s search in this case, the tip contained no
indication that the unlawful activity was ongoing. 181 F.3d at 790. Also, like the Payne tip, the
June 1999 tip in Comrie’s case was anonymous. Finally, it should not go unnoted that the activities
presented in the narcotics file took place at Comrie’s residence at the time – 3530 Pin Oak Drive #C.
The March 2000 search of Comrie’s residence by his probation officer occurred at 1203 West 44th
Street. While both addresses are in Lorain, Ohio, the Narcotics Bureau database contained no
information that specifically implicated Comrie’s activities while he resided on West 44th Street.
In sum, the government did not present evidence as to precisely what information Warchol
relied upon in determining that he had reasonable suspicion to search Comrie’s residence. The
unspecified information that is mentioned in the proof is insufficient to constitute reasonable
suspicion. While we need not decide whether the evidence in the Narcotic Bureau’s file would have
7
Information that other law enforcement officers possessed is not relevant to the inquiry as
to whether Warchol had reasonable suspicion to search. Warchol was the only officer entitled to
search based on reasonable suspicion only.
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No. 03-3458
United States v. Comrie
given rise to reasonable suspicion, if known to Warchol, we note that it had several weaknesses
similar to those relied upon by the court in Payne. Accordingly, we reverse the denial of the motion
to suppress and vacate Comrie’s conviction on Count III.
VI.
Comrie next asserts that the district court’s decision to increase his offense level violated
his Fifth and Sixth Amendment rights. Comrie filed supplemental briefing on this issue, arguing
that his claim regarding sentencing enhancements is affected by the decision of the United States
Supreme Court in United States v. Booker, 543 U.S. __ , 125 S. Ct. 738 (2005). Under Booker,
“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by . . . a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” 125 S. Ct at 756. The district court in
this case made determinations at sentencing that were not found by the jury beyond a reasonable
doubt. Those determinations included a finding that a two level enhancement was proper,
pursuant to U.S.S.G. § 3B1.1(c)(2003), for acting as an organizer, leader, manager, or supervisor
of a criminal conspiracy with Simpson and Dyson and the district court’s acceptance of Comrie’s
pre-sentence investigation report that his offense conduct involved 33 firearms and subsequent
application of U.S.S.G. § 2K2.1(b)(1)(E) (2001).8 These enhancements resulted in a sentence
that violated the Sixth Amendment. See Booker, 125 S. Ct. at 756; Apprendi v. New Jersey, 530
8
U.S.S.G. § 2K2.1(b)(1)(E) (2001) provides that for the offense of the unlawful receipt,
possession or transportation of firearms, if the offense involved between 25 and 49 firearms, the
defendant’s offense level should be increased by five levels.
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U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”); see also Blakely v. Washington, 124 S. Ct. 2531, 2537
(2004) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of facts reflected in the jury verdict or admitted by the
defendant.”).
Booker suggests that when a defendant fails to raise a Sixth Amendment challenge to his
sentence in district court, as Comrie failed to do here, we should review the case for “plain
error.” 125 S. Ct. at 769; see also Fed. R. Crim. P. 52(b); United States v. Calloway, 116 F.3d
1129, 1136 (6th Cir. 1997); cf. Booker, 125 S. Ct. at 769 (indicating that in cases not involving a
Sixth Amendment violation, courts should apply the harmless-error test). Under the plain-error
analysis set out in United States v. Olano, 507 U.S. 725, 732-37 (1993), we find that the district
court plainly erred. A plain error occurred; it affected Comrie’s substantial rights; and the error
“seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. at
732-36 (internal quotation marks and citation omitted). Therefore, a remand for resentencing is
appropriate.
Finally, Comrie objects to the assessment of criminal history points for his October 3,
2002, conviction in Pennsylvania for possession with intent to deliver marijuana and criminal
conspiracy with intent to deliver marijuana. Comrie has filed documents indicating that the
Pennsylvania sentence was vacated on September 30, 2004, and a new trial has been ordered.
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United States v. Comrie
On remand, the district court must take the status of the Pennsylvania conviction into account in
calculating Comrie’s criminal history points.
VII.
For the foregoing reasons, we hold that Comrie’s plain error, ineffective assistance of
counsel, and insufficient evidence claims are without merit. We also reverse the district court’s
denial of Comrie’s motion to suppress and vacate Comrie’s conviction on Count III, vacate
Comrie’s sentence, and remand for further proceedings consistent with this opinion and for
resentencing in light of this opinion and the Supreme Court opinion in Booker.
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