United States v. Turner , 134 F. App'x 17 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0442n.06
Filed: May 26, 2005
No. 04-3336
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
RONALD TURNER, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; and SHADUR, District Judge.1
Shadur, District Judge. Ronald Turner (“Turner”) was convicted in the district
court of various offenses, comprising (1) possession of a firearm by a convicted felon,
(2) possession with intent to distribute cocaine, cocaine base (“crack”) and marijuana and
(3) failure to appear. Turner was sentenced to 306 months’ imprisonment and five years of
supervised release and was ordered to pay a $5,000 fine and a $100 special assessment. He
appeals his conviction and sentence on a number of grounds.
Because we find Turner’s assertions of error at trial (except for one not ruled on here)
meritless, we AFFIRM his conviction. But because we hold the district court committed plain
error at sentencing, we VACATE Turner’s sentence and REMAND for resentencing consistent
1
The Honorable Milton I. Shadur, United States District
Judge for the Northern District of Illinois, sitting by
designation.
No. 04-3336
U.S. v. Turner
with United States v. Booker, --- U.S. ---, 125 S. Ct. 738 (2005).
Background
In December 2002 police in Forest Park, Ohio received a tip from a confidential
informant that Turner was involved in cocaine trafficking. Pursuant to that tip, on January 15,
20032 police obtained several garbage bags that had been abandoned for pickup in front of
Turner’s home. Their search of those bags’ contents turned up marijuana stems and seeds, burnt
marijuana “roaches” and mail addressed to Turner. On January 17 police applied for and
obtained a warrant to search Turner’s home. Their application for the search warrant was
supported by an affidavit stating that based on the informant’s tip, the contents of the garbage
and Turner’s criminal record, the police had cause to believe that evidence would be found
showing a violation of Ohio Rev. Code §2925.11. That statute provides that “no person shall
knowingly obtain, possess, or use a controlled substance.”
On January 22 police executed the search warrant. Inside Turner’s home they found
digital scales, plastic bags containing cocaine, crack and marijuana, two loaded firearms and
over $43,000 in cash. Police then arrested Turner and provided him with Miranda warnings,
which he acknowledged he understood. Turner then said he wanted to cooperate with law
enforcement personnel, and he told the arresting officers that the firearms were for protection
against being robbed and that he was not a “kingpin,” but sold drugs only to a core group of
customers.
2
Because all later events described here also took place
during 2003, further date references need not (and do not) repeat
the year specification.
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U.S. v. Turner
On April 2 a federal grand jury indicted Turner, charging him (1) with possession of a
firearm while being a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and
(2) with possession with intent to distribute in excess of five grams of cocaine base and cocaine
in violation of 21 U.S.C. §§841(a)(1), (b)(1)(B) and (b)(1)(C). Turner pleaded not guilty to
those charges on April 7, and he was released on a bond conditioned on home confinement and
electronic monitoring.
On April 25 the monitoring center connected to Turner’s electronic ankle bracelet alerted
pretrial service officers that Turner had left his home in violation of the conditions of his bond.
As a result the district court issued a warrant for Turner’s arrest on April 28. On July 25 police
were notified of Turner’s whereabouts. When they attempted to arrest him, Turner fled on foot,
but he was caught after a chase. On his person police found marijuana, cocaine and
approximately $1,000 in cash.
On August 20 the grand jury issued a superseding indictment, adding charges of failure
to appear in violation of 18 U.S.C. §§3146(a)(1) and (b)(1)(A)(i), possession with intent to
distribute cocaine in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C) and possession with intent
to distribute marijuana in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(D). After a four-day
jury trial beginning November 24, Turner was found guilty on all counts charged in the
superseding indictment. In addition the jury determined by a preponderance of the evidence that
Turner’s home had been used to facilitate the drug offenses for which he was convicted and that
he had derived $43,021.28 in proceeds from the commission of those offenses. It therefore
concluded that both his home and those proceeds should be forfeited under 21 U.S.C. §§853(a)
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and (p).
Denial of Motion To Suppress
Turner first challenges the district court’s denial of his motion to suppress all of the
evidence police obtained from his home on the ground that there was no probable cause for the
issuance of a search warrant. We review for clear error the factual findings underlying the denial
of a motion to suppress, but we review the legal conclusion as to the existence of probable cause
de novo (United States v. May, 399 F.3d 817, 822 (6th Cir. 2005)). Here the district court, after
examining the police affidavit, concluded that the confidential informant’s tip lacked reliability
and was therefore insufficient by itself to support a finding of probable cause. But it then held
that the discovery of “marijuana seeds, stems, and multiple burnt marijuana roaches, together
with Mr. Turner’s prior drug trafficking convictions, provide[d] probable cause for the issuance
of a search warrant.” We agree.
Probable cause for the issuance of a search warrant exists “when there is a fair
probability, given the totality of the circumstances, that contraband or evidence of a crime will
be found in a particular place” (United States v. Johnson, 351 F.3d 254, 258 (6th Cir.
2003)(citations and internal quotation marks omitted)). Turner argues that the evidence
submitted in support of the search warrant was not sufficient to establish probable cause to
search his home “for evidence of cocaine trafficking.” But that is beside the point, for the search
warrant specifically referred to “Marijuana, a schedule I controlled substance” and alleged a
continuing violation of the statutory prohibition of the possession and use of “a controlled
substance.” In that regard the marijuana seeds, stems and “roaches” obtained from Turner’s
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garbage certainly sufficed to establish probable cause to search Turner’s home for evidence of a
violation of the Ohio statute under Johnson, and Turner has not argued otherwise.
With the search thus being properly supported by probable cause as to one type of
controlled substance, it was not tainted by the fact that it also turned up evidence of other drug
violations. In short, Turner’s attack on the reliability of the confidential informant’s allegation
of cocaine trafficking is of no moment, and the district court correctly denied his motion to
suppress.
Denial of Motion for a Continuance
Next Turner challenges the district court’s denial of his motion for a continuance, which
he claims would have allowed him an opportunity to investigate a potential selective prosecution
claim. “We review the district court’s denial of a motion for a continuance for an abuse of
discretion” (United States v. King, 127 F.3d 483, 486 (6th Cir. 1997)), and the standard for
reversal based on the denial of such a motion is well-established (United States v. Crossley, 224
F.3d 847, 855 (6th Cir. 2000) (internal quotation marks and citations omitted)):
Denial amounts to a constitutional violation only if there is an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay. In addition,
to demonstrate reversible error, the defendant must show that the denial resulted in actual
prejudice to his defense. “Actual prejudice” is established by showing that a continuance
would have made relevant witnesses available or added something to the defense.
Turner cannot show that the district court’s refusal to grant a continuance was unreasoning or
arbitrary, nor can he show actual prejudice.
Turner’s assertion that a potential selective prosecution claim existed was founded
entirely on a conversation he had with a fellow inmate while incarcerated in Hamilton County,
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Ohio. That inmate, also being held on federal drug charges, told Turner that “of 77 inmates on
federal drug charges (the result of Project Disarm) 72 were black and none of the 72 black
inmates had bonds set for them.” We cannot say that the district court’s decision to deny
Turner’s motion for a continuance based on that limited proffer was a clear abuse of
discretion--certainly the inability to investigate what appears at best to be a jailhouse rumor, with
more than one possible untainted explanation even if it were true, does not rise to the level of
actual prejudice sufficient to warrant reversal.
Failure To Sever Counts
Turner next urges that the district court should have severed various counts from the rest
of the indictment and that its failure to do so prejudiced him. Because he did not move for
severance below, the district court’s failure to sever is reviewed under a plain-error standard
(United States v. Misher, 99 F.3d 664, 669 (5th Cir. 1996)). Review under that standard of a
failure to sever counts presents Turner with a steep hill to climb, as he must show “an abuse of
discretion by the trial court as well as prejudice affecting his substantial rights and an
extraordinary reason to reverse” (United States v. Frank, 354 F.3d 910, 920 (8th Cir. 2004)
(internal quotation marks and citations omitted)). Turner cannot make that showing.
First Turner claims that the failure-to-appear charge should have been severed and tried
separately. It is well established that a charge of escape or bail jumping and the underlying
substantive offense are sufficiently connected to permit joinder under Fed. R. Crim. P. (“Rule”)
8(a) (see United States v. Peoples, 748 F.2d 934, 936 (4th Cir. 1984)(per curiam); United States
v. Ritch, 583 F.2d 1179, 1181 (1st Cir. 1978)). Under Rule 14(a), though, the district court could
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have severed the failure to appear charge from the substantive offenses if Turner were able to
show prejudice. On appeal Turner claims prejudice stemming from the jury’s ability to hear
information about his flight from home confinement and his later arrest after a foot chase. But as
always the jury was instructed to consider each charge separately based on the evidence
applicable to that charge. So Turner’s generalized claim of prejudice does not support a finding
that the district court abused its discretion, nor does it establish “an extraordinary reason to
reverse.”
Turner also claims that the felon-in-possession-of-a-firearm counts should have been
severed from the drug charges. While he claims that those counts’ inclusion prejudiced him
because the jury could have relied on the presence of weapons or his felon status to convict him
on the drug charges, “a jury is presumed capable of considering each count separately” (United
States v. Cope, 312 F.3d 757, 781 (6th Cir. 2002)), and Turner has presented nothing to suggest
otherwise. Hence we also reject that ground as a basis for his claim of error.
Purportedly Improper Prosecutorial Remarks
Turner further argues that his conviction should be reversed because the prosecutor
assertedly made improper remarks at various points during the trial. In particular he points to
questions asked by the prosecutor during the cross-examination of a witness testifying on
Turner’s behalf and two statements made by the prosecutor during closing argument.
We review claims of prosecutorial misconduct under the two-part test set out in United
States v. Francis, 170 F.3d 546, 549-50 (6th Cir. 1999). First we determine whether the
statements were improper. “If they appear improper, we then look to see if they were flagrant
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and warrant reversal” (id. at 549). To decide the flagrancy issue a court must determine
“1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the
statements were isolated or among a series of improper statements; 3) whether the statements
were deliberately or accidentally before the jury; and 4) the total strength of the evidence against
the accused” (id. at 549-50).
Turner first takes issue with the prosecutor’s questioning of Turner’s witness Bernice
Fletcher (“Fletcher”). After Fletcher testified that she stayed in Turner’s home and that the guns
found there were hers, the prosecutor asked “If I told you that these items were found in Ronald
Turner’s home and that those items were cocaine, crack cocaine, and marijuana, what would be
your opinion of Ronald Turner after hearing that?” Defense counsel’s objection to that question
was sustained. After the prosecutor tried unsuccessfully two more times to pose much the same
question in much the same way, he then moved on.
Fed. R. Evid. 405(a) permits inquiry into “relevant specific instances of conduct” on
cross examination where a defendant’s character witness testifies as to that witness’ opinion of
the defendant or to the defendant’s reputation. We have previously noted that such inquiry is
allowed only where it goes to the accuracy of the character witness’ testimony (United States v.
Green, 305 F.3d 422, 431 (6th Cir. 2002). Fletcher, rather than testifying as to Turner’s
character, was introduced to rebut the prosecution’s allegation that Turner “possessed” the guns
found in his home. Because she did not testify to Turner’s character, and because the
prosecutor’s question did not go to the accuracy of her testimony, that question was improper,
and the district court properly sustained defense counsel’s objection.
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But while the question was improper, it cannot be labeled as flagrant. It cannot be said to
have misled the jury or prejudiced Turner, for the drugs mentioned were already in evidence and
previous testimony had established that they were found in Turner’s home. Indeed, Turner
claims no prejudice from the question, instead urging that the prosecutor’s repeated inquiry
amounts to “badgering the witness” and constitutes “inappropriate conduct.” More is required
for reversal under Francis, and we therefore reject his claim on that ground.
As stated earlier, Turner also takes issue with two statements the prosecutor made in
closing argument. But analysis plainly calls for the rejection of that claim as well.
First, the prosecutor said as to two individuals who were with Turner when he was
arrested after absconding, “you heard no evidence in this case that those individuals were ever
identified.” Turner claims that statement was improper because he “had a constitutional right
not to present evidence in his defense.” We have difficulty understanding why that statement
assertedly impinged on that right, but in any event we cannot say it was flagrant. And “[t]o
reverse a conviction based on an improper non-flagrant statement, [this] reviewing court must
determine that (1) the proof of the defendant’s guilt is not overwhelming, (2) the defense counsel
objected, and (3) the trial court failed to cure the impropriety by failing to admonish the jury”
(Francis, 170 F.3d at 550). Here Turner has not made that showing. Proof of his guilt was
overwhelming, and in any event his trial counsel never objected to the prosecutor’s statement.
Second, Turner claims that the prosecutor misled the jury when he stated “[t]here has
also been no evidence presented to you that Ronald Turner even went to Oklahoma,” when in
fact two witnesses testified on Turner’s behalf that he went to Oklahoma the weekend before his
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arrest. That prosecutorial statement indeed mischaracterized the evidence, but under Francis it
was not flagrant--after all, defense counsel had the full opportunity to counter it during closing
argument, jurors had the opportunity to hear and evaluate the testimony of those witnesses, and
in any event they were told by the district court that closing arguments did not constitute
evidence. Again, although the statement was improper, the weight of the evidence against
Turner and his failure to object also defeat his challenge on that ground.
Insufficiency of the Evidence
Turner next asserts that the evidence was insufficient to convict him of the two “felon in
possession of a firearm” charges under 18 U.S.C. §922(g)(1)(“Section 922(g)(1)”). In reviewing
such a claim, we view the evidence in the light most favorable to the government and draw all
inferences in the government’s favor en route to deciding whether any rational trier of fact could
have found the elements of the offense beyond a reasonable doubt (United States v. Riffe, 28
F.3d 565, 567 (6th Cir. 1994)). Contrary to Turner’s argument, we find that a rational jury could
readily have found all of the elements of the charged firearms offenses.
Section 922(g)(1) requires that the government prove (1) that the defendant was
previously convicted of a felony, (2) that the defendant possessed a firearm and (3) that the
firearm traveled in or affected interstate commerce (United States v. Layne, 192 F.3d 556, 571-
72 (6th Cir. 1999)). Turner argues that the government did not present sufficient evidence to
prove the second element. At trial he adduced Fletcher’s testimony to rebut the allegation that
he “possessed” the firearms found in his bedroom. She testified that the firearms were hers, that
she had received them in the mail and that she had taken them with her to Turner’s house, where
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she was house-sitting while he was out of town. She further testified that she placed one gun in
the night stand and one at the foot of the bed and left them both at Turner’s home when he
returned from a trip to Oklahoma City.
But at this appellate level what controls is the existence of Turner’s own statement to the
contrary: He told police when he was arrested that the guns were for his protection from being
robbed. In terms of the standard that is applicable here, a rational jury could surely have chosen
to believe that evidence rather than Fletcher’s testimony, thus concluding that Turner
“possessed” the guns. We therefore reject Turner’s argument that the evidence was insufficient
to convict him as to the felon-in-possession-of-a-firearm charges.
Assertedly Ineffective Assistance of Counsel
Turner’s penultimate contention is that his trial counsel was constitutionally ineffective
in failing to move for the suppression of statements Turner made after he was arrested. Pursuant
to the teaching of such cases as United States v. Martin, 920 F.2d 345, 349 (6th Cir. 1990), we
decline to consider that claim because it is being raised for the first time on appeal and “[t]here
has been no opportunity to develop and include in the record evidence bearing on the merit of
the allegations.” That being so, a proper post-conviction motion under 28 U.S.C. §2255, rather
than this direct appeal, is the appropriate vehicle for Turner to challenge his trial counsel’s
effectiveness.
Sentencing
Finally, Turner argues that his sentence violated the Sixth Amendment as construed by
the Supreme Court in Booker. On that score we agree.
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As Booker made clear following Turner’s sentencing, the district court’s computation of
his offense level under the United States Sentencing Guidelines (“Guidelines”) by using drug
quantities greater than those charged in the indictment violated the Sixth Amendment (United
States v. Jones, 399 F.3d 640, 649-50 (6th Cir. 2005)), as did its factual finding as to a wilful
obstruction of justice, which produced a two-offense-level enhancement (see United States v.
Bruce, 396 F.3d 697, 718 (6th Cir. 2005)). Sentencing enhancements in violation of the Sixth
Amendment are subject to correction under plain-error review (United States v. Oliver, 397 F.3d
369, 380-81 (6th Cir. 2005)), and thus a remand to the district court for resentencing in a manner
consistent with Booker is called for.
But because Booker, 125 S. Ct. at 764 and 767 made clear that sentencing courts must
still consider the applicable Guidelines range when determining the appropriate sentence, the
correctness of that calculation remains relevant. We therefore address Turner’s argument that
the district court engaged in impermissible “double counting” when it imposed a six-month
consecutive sentence on the 18 U.S.C. §3146 failure-to-appear charge while also enhancing his
base offense level two levels pursuant to Guideline §3C1.1 based on the same conduct.
In that respect, Turner’s claim of “double counting” is at odds with our adoption in
Green, 305 F.3d at 436 of the district court’s explanation there:
The statute governing failure to appear simply states that if a term of imprisonment is
imposed for failure to appear, it must run consecutive to the underlying offense. See 18
U.S.C. §3146(b)(2). The creative approach taken by the Sentencing Guidelines, which
enhances the underlying offense [for obstruction of justice] and then designates a portion
of the total punishment as the consecutive sentence for the failure to appear offense, does
not offend the plain language of the statute.
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That holding implicitly (if not indeed explicitly) confirms the propriety of the district court’s
treatment of the issue here. Turner’s effort to attack that treatment by attaching the label of
“double counting” is without merit.
Conclusion
We DECLINE TO CONSIDER Turner’s ineffective-assistance-of-counsel claim, which
he remains free to present hereafter via a motion properly filed pursuant to 28 U.S.C. §2255.
Save for that reservation, we reject all of Turner’s claims of error as to his trial and AFFIRM his
conviction. But because the district court--understandably lacking in prescience--committed
plain error at sentencing, we VACATE Turner’s sentence and REMAND so that the district
court may resentence him in accordance with Booker.
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