U.S. v. Payton
| Citation | 159 F.3d 49 |
| Decision Date | 05 October 1998 |
| Docket Number | Nos. 96-1814,97-1040,s. 96-1814 |
| Parties | UNITED STATES of America, Appellee-Cross-Appellant, v. James PAYTON, aka James Perkins, Defendant-Appellant-Cross-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Brian T. Stapleton, Stamford, CT, for Defendant-Appellant-Cross-Appellee.
Karen L. Peck, Assistant United States Attorney, New Haven, CT (Christopher F. Droney, United States Attorney, District of Connecticut, New Haven, CT, of counsel), for Appellee-Cross-Appellant.
Before: KEARSE and CARDAMONE, Circuit Judges, and LEISURE *, District Judge.
Defendant James Payton appeals from a judgment, which was entered on December 6, 1996 in the United States District Court for the District of Connecticut before Judge Alan H. Nevas, convicting him of being a felon in possession of a firearm shipped in interstate commerce. The government cross-appeals. Several of the issues raised during the trial and the sentencing proceedings challenge the district court's exercise of its discretion. For purposes of this appeal, the district court may be said to have exercised its discretion properly when in deciding a specific issue, it used--after considering relevant factors--sound judgment. It is only when we are firmly persuaded that the decision reached was not informed by such judgment that we characterize it as an abuse of discretion.
On December 29, 1994 at a local business in New Haven, Connecticut, two men robbed Donald Yazgoor at gunpoint and shot him in the abdomen. New Haven police subsequently arrested Gregory Lytell and Andrew Demand as suspects in the crime. Lytell and Demand told police that in exchange for a share of the proceeds, defendant James Payton loaned them the nine millimeter handgun used in the robbery. The suspects said they returned the handgun to Payton at 59 Admiral Street in New Haven and gave him $700 along with another gun they had stolen during the robbery. The victim, Donald Yazgoor, died on January 1, 1995 as a result of his gunshot wound. These events were the subject of widespread media reports in New Haven.
A day after the victim's death, the police, using the suspects' statements, obtained a warrant authorizing them to search Payton and the Admiral Street residence for firearms, ammunition, holsters, spent casings, masks capable of concealing identity, and U.S. currency. Executing the warrant the same day, police found defendant and several others on the second floor at 59 Admiral Street.
Prior to searching the premises, police conducted protective pat-downs of the occupants, and found 70 packets of heroin on Payton's wife, Shirley Little. She later signed a statement alleging that when the officers entered the house, defendant handed her the narcotics to hide. Little herself was arrested on narcotics charges.
Detective Thomas Trocchio, the lead investigator at the scene, testified at trial that he informed Payton the police had a search warrant, provided him with a copy of it, and told him the specific items for which they were looking. According to Trocchio--who insists he said nothing at this point about a nine millimeter handgun--defendant responded, Detective Trocchio further explained how defendant directed his young nephew to lead police to a back bedroom, which Payton identified as his own. From a bag on top of a dresser, police recovered a dismantled .38 caliber revolver and three live .38 caliber bullets.
In addition, Trocchio continued, he showed the .38 to defendant and informed him that as a convicted felon it was illegal for him to possess a firearm. Defendant repeated that all he owned was the .38 revolver and that he knew nothing about a nine millimeter handgun. Police never found a nine millimeter or any other gun during their search of the Payton home. Payton thereafter was arrested on state charges for criminal possession of a firearm by a convicted felon.
On September 13, 1995 a Connecticut federal grand jury returned a one count indictment charging Payton with being a felon in possession of a firearm shipped in interstate commerce, in violation of 18 U.S.C. § 922(g) (1994). The state charges against Payton were dropped.
Defendant filed several pretrial motions in which he sought to suppress the statements he made to police during the search, access grand jury transcripts, and dismiss the indictment. All were eventually denied by the district court. The government then filed motions in limine seeking to use the prior Payton was tried before a jury on August 6 and 7, 1996. The government first called the officers who conducted the search. It focused principally on Detective Trocchio's testimony concerning Payton's admissions at the beginning of the search and again after the revolver was found, the search itself and background information regarding the underlying investigation. Another arresting officer, Brian Sullivan, related his discovery of the .38 caliber revolver. The government asked a special agent with the Bureau of Alcohol, Tobacco and Firearms (ATF) to explain the gun's mechanics and how he successfully test fired the seized gun. Another ATF agent established the requisite interstate nexus for the crime by stating that the revolver's place of manufacture was Florida and the gun therefore had to travel in interstate commerce to reach Connecticut. As its last piece of evidence, the government produced a stipulation signed by defendant conceding that he had a prior felony conviction.
convictions of Doretha Payton--defendant's mother--to impeach her credibility in the event she testified as a witness for the defense. The district court granted this motion. The government also moved for permission to ask Detective Trocchio leading questions about the circumstances surrounding the search, that is, the investigation of the robbery and murder so as to give the jury some context for why the defendant made incriminating statements about owning a .38 caliber revolver. Since defense counsel responded that he intended to cross-examine Detective Trocchio about the robbery and Yazgoor's murder in order to explore the officer's state of mind, the district court permitted the government to ask leading questions during direct examination.
The defense called three witnesses in the following order--defendant's mother, defendant's sister, and defendant. Doretha Payton, who owns the house at 59 Admiral Street, declared the seized revolver belonged to a former boarder, Wylie Mickle. She said she found the gun after Mickle died and decided to keep it for herself in her bedroom, i.e., the bedroom where police eventually discovered it. She testified she never gave the gun to defendant, and that her son, in fact, did not even know of the gun's existence. She further stated that although he stayed at her home for short periods of time, and on one occasion spent several nights in the bedroom where the gun was found, Payton did not live at 59 Admiral Street. On cross-examination, the prosecutor sought to impeach Doretha Payton's credibility by introducing her 1983 convictions for making a false statement under oath to a government official and for third degree larceny.
Payton's sister, Karen Perkins, essentially corroborated her mother's story. Perkins noted she first discovered the gun when she and her mother cleaned Mickle's room following his death, after which her mother kept it. She also reiterated that defendant did not live on Admiral Street at the time of the search.
Testifying on his own behalf, Payton stated he lived at 73 Level Street with his wife and children, and that he was only visiting 59 Admiral Street on the night of the search. He explained that although he had never seen the .38 caliber revolver, he knew from family members that his mother kept a gun in her house for protection. He maintains that on the night of the search, police immediately questioned him about a nine millimeter handgun, but he had no idea why they were looking for such a weapon. Defendant said he told the police his mother owned a revolver so as to cooperate with the investigation because he "didn't have anything to hide." After police discovered the gun, defendant remembered saying it did not belong to him and categorically denied making any statement that would suggest otherwise. During cross-examination, the prosecutor, in response to Payton's statement that he had nothing to hide, questioned him regarding the 70 packets of heroin found on his wife.
In rebuttal, the government called several witnesses to refute the defense's assertion that the firearm at issue originally belonged to Wylie Mickle and was kept by Doretha Payton after his death. That proof showed that a woman named Sandra Kinsler purchased the revolver in Florida in 1991, and subsequently gave it to her husband, Bruce Kinsler, who transported it to South Carolina before moving to Connecticut in September At the end of the trial, the jury convicted Payton of possession of a gun by a convicted felon.
1992. Once in Connecticut, Bruce Kinsler testified, he sold it to a young black male on the street around Christmas time of 1992. According to a certified copy of a death certificate admitted into evidence, Wylie Mickle died on August 3, 1992, a month before Kinsler said he had moved to Connecticut, and several months before he stated he had sold the gun to the young man on the street.
For purposes of sentencing, the probation office submitted a Presentence Report (PSR) that calculated defendant's total offense level under the Sentencing Guidelines (Guidelines) to be 33--due, in part, to his status as an armed career criminal as defined in U.S.S.G § 4B1.4(b)(3)(B) (1995). Combined with a criminal history category of VI, the applicable sentencing range under the Guidelines was 235 to...
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