United States v. Timothy Cook ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0605n.06
Case No. 18-5362
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 03, 2018
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
TIMOTHY COOK, ) TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
SUTTON, Circuit Judge. Memphis police found Timothy Cook sitting in the front
passenger seat of a parked car with a loaded firearm, marijuana, and ecstasy. Cook was a convicted
felon, and the terms of his supervised release prohibited him from committing another crime or
possessing a firearm. In view of these new offenses, the district court revoked his supervised
release and sentenced him to 24 months in prison. We affirm.
In 2011, Cook pleaded guilty to being a felon in possession of a firearm. In 2015, he left
prison on supervised release, with the condition that he not commit another crime or possess a
firearm. Before long, he assaulted someone, and the court revoked his release and sentenced him
to 8 months, followed by 15 months of supervised release. Cook left prison again on November
20, 2017. Ten days later, Memphis police arrested him again after finding him in a parked car
with a loaded gun and drugs—the conduct at issue in today’s appeal.
Case No. 18-5362, United States v. Cook
The district court held a hearing to determine whether to revoke Cook’s supervised release
again. One witness, Officer Michael Bartlett, testified. Bartlett said he saw a parked car with the
engine running and the lights off. When he shined a light on the car, he saw the car’s lone occupant
reach “towards the passenger door as if he was trying to conceal something.” R. 93 at 19. Bartlett
approached, Cook rolled down the window, and Bartlett smelled marijuana. A search revealed a
loaded firearm and drugs in the passenger-side door. On top of that, Bartlett testified that the
police found another person’s identification in the car’s cup holder and that an unidentified woman
arrived at the scene saying that the car belonged to her and that she had let her boyfriend use it.
At allocution, though not in the liability phase of the hearing, Cook told the court that the
“charges” against him were “not true.” Id. at 53. He complained that Officer Bartlett’s testimony
amounted to “fabricated lies,” id. at 55, noting that Officer Bartlett testified that the car had been
running but the lights were off. According to Cook, “the lights come on” in new cars whenever
someone turns on the ignition. Id. Cook also claimed that another man had originally sat in the
passenger seat and went inside a house, after which Cook “jumped in the front seat” to charge his
phone. Id. at 56. At the end of it all, Cook maintained his innocence: “I don’t need no gun. They
can run them fingerprints. It ain’t mine.” Id. at 57.
When all was said and done, the court found that Cook constructively possessed the gun
and drugs, and imposed a 24-month sentence. Cook appeals.
A district court may revoke supervised release if it finds by a preponderance of the evidence
that a defendant violated a condition of release. See 18 U.S.C. § 3583(e)(3). We review the court’s
decision for abuse of discretion. United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009).
Under this deferential standard, we analyze legal determinations anew, id., but may not overturn
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factual findings unless we develop “a definite and firm conviction that a mistake has been
committed,” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
Cook claims that the district court improperly ignored his statements during allocution.
According to Cook, “the district court believed it could only consider Officer Barlett’s testimony”
and erroneously felt bound by the Federal Rules of Evidence to exclude Cook’s remarks.
Appellant’s Br. 13.
The Federal Rules of Evidence generally do not apply in informal hearings such as a
proceeding to revoke supervised release. But a judge may follow the Rules’ principles as a matter
of discretion. See United States v. Givens, 786 F.3d 470, 473 (6th Cir. 2015). When faced with a
defendant offering evidence at allocution, a court may discount the evidence because it lacked the
proper attributes to assess credibility, such as cross-examination. See id.
As we see it, Cook misapprehended what the court was doing. It did not intend Cook’s
allocution as an opportunity to provide new evidence. Cook after all had already chosen to put the
government to its proof, after which the lawyers presented arguments and the judge made a finding
of fact that Cook constructively possessed the weapon and drugs. Instead, when the court invited
Cook to speak, it suggested that Cook might want to acknowledge a woman who accompanied
Cook to court, apparently Cook’s mother. When Cook had trouble finding words, the court offered
another suggestion: Cook should describe his work. “That’s an easy place to start and a pretty
safe spot.” R. 93 at 52.
Cook began speaking and, before long, he offered purported evidence and quasi-legal
arguments to the effect that he did not violate the terms of his supervised release. In response, the
district court said it had encountered situations in which a defendant spoke “after the evidence was
closed and after arguments of counsel.” Id. at 55. Rather than ignore Cook’s statements altogether,
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the court evaluated each of them. After Cook said he didn’t “tote guns” or “sell drugs,” id. at 53,
for instance, the judge explained the difference between actual and constructive possession. When
Cook said he jumped into the front seat to charge his phone and the police should check the gun
for fingerprints, the court responded by noting it didn’t “have a hypothetical” and explained the
difference between a violation of supervised release and the substantive gun charge. Id. at 58. The
court noted that it had “facts” contradicting Cook, such as the “gun in the pocket of the door
immediate to [Cook’s] right.” Id.
This all explains why the court deemed it “important” to have all “information . . . in a
form that we can receive” and that “can be relied on.” Id. These comments do not imply that the
district court thought itself bound to comply with the Federal Rules of Evidence. They suggest
instead that the court chose to deem less credible or inherently unreliable information offered in
an allocution. That choice was the court’s prerogative. See Givens, 786 F.3d at 473.
Cook persists that the district court’s comments about “evidence [being] closed” and the
“form” of information show that the court felt obliged to follow the Federal Rules of Evidence.
But neither of these comments mentioned the Rules or suggested that the court needed to observe
them. Cook’s preferred inference is neither the best one nor the required one.
Cook complains that the court’s short reference to hypotheticals makes it “impossible to
tell exactly what the court was referring to” and that some of Cook’s remarks were not
hypothetical. Appellant’s Br. 14–15. But Cook can’t have it both ways, interpreting stray remarks
to his benefit but ignoring other comments to his detriment. The district court with patience and
compassion merely tried to explain why it revoked Cook’s supervised release.
Cook adds that aspects of his testimony were consistent with Bartlett’s account of events,
such as the appearance of the unidentified woman, and so the district court needed to “at least
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review Mr. Cook’s testimony.” Id. at 15. But the court did evaluate Cook’s statements and found
they lacked credibility.
We affirm.
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