215 F.3d 1328 (6th Cir. 2000), 99-1731, U.S. v. Shipman

Docket Nº:99-1731.
Citation:215 F.3d 1328
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Ellis S. SHIPMAN, Defendant-Appellant.
Case Date:May 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1328

215 F.3d 1328 (6th Cir. 2000)



Ellis S. SHIPMAN, Defendant-Appellant.

No. 99-1731.

United States Court of Appeals, Sixth Circuit

May 15, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Eastern District of Michigan.

Before WELLFORD, SILER, and GILMAN, Circuit Judges.

WELLFORD, Circuit Judge.

Defendant Ellis Shipman pled guilty in January of 1995 to an indictment charge of being a felon in possession of a firearm in violation of 18 U.S.C.§ 922(g)(1). In May of 1995, he was sentenced to twenty-one months custody and thirty-six months supervised release. Unfortunately for Shipman, in April of 1999, a charge was brought to the attention of the district court accusing defendant with a violation of the terms of his supervised release on or about September 30, 1998.

After hearings, the trial court determined that Shipman was guilty of the first charged violation, commission of a crime while on supervised release (theft of money and property while armed with a handgun), but found insufficient evidence on the second charge of owning or possessing a firearm. The district court made no finding on the third and fourth charges, engagement in gang-related activity and association with persons engaged in criminal activity or convicted felons. The court sentenced Shipman to twenty-one months for the violation of his supervised release in connection with the Terrance Cannon episode. The sentence was in the midline of the guidelines range for a Grade A violation based upon a criminal history determination of III. Shipman, indeed, had a substantial juvenile record of prior offenses. 1 Shipman appeals the district court's finding that he violated his supervised release and objects to its reliance upon an unsworn police report over Shipman's sworn testimony.

It is worth noting that in a response to Shipman's objections to the presentence report, 2 with respect to the 1995 offense, the United States Attorney urged the district court to consider that Shipman's explanation for possessing the stolen firearm was "transparently self-serving and facially incredible, ... and inconsistent." At the first hearing United States Probation Officer Dennis Roy testified and, as the government states in its brief, "was the conduit for much of the information which supported the court's finding that Shipman had committed the violation alleged in count 1 of the supervised release violation petition." Roy testified that Shipman's supervised release was conditioned in part on his paying fines and that he had not paid by September of 1998, when Roy warned Shipman verbally and in writing that failure to pay would likely result in Roy's initiating supervised release violation proceedings. On December 9, 1998 Shipman paid $1,000 towards his $3,000 fine, and on that date Roy had received a telephone call from an FBI agent who alerted him to a recent carjacking in the area by a man matching Shipman's description. Shipman had reported very little income in the past months and was unemployed and reported no earnings when he paid the $1,000 on December 9, thus Roy became concerned about the source of the money and discussed the FBI agent's reports with Shipman and the agent. In February of 1999 Roy learned through an FBI agent that a police report had been filed, and in April of 1999 Roy wrote the violation report.

Shipman claimed at the hearing that his longtime acquaintance, the purported victim, Terrance Cannon, had recanted any statement made to Saginaw police or an FBI agent involving him in an armed theft of money and property from Cannon. Cannon signed statements indicating that he had been intoxicated at the time of the incident and later recovered the property involved and did not wish to pursue the matter. A young woman at the scene had told police that defendant and another person had taken a radio, CD player, and speakers of considerable value from her car at the time of the incident. Cannon had reported that Shipman and another suspect had pulled a gun "and took several items from him" in a parking lot. A "carjacking" was at first suspected in connection with this incident. Cannon said Shipman claimed that Cannon owed him money, a claim Cannon denied. The FBI agent suspected a carjacking modus operandi similar to others in the area in which Shipman had been a suspect. The FBI agent was the source of charges three and four involving association with gang members at a trial of Thomas Wicker, a defendant convicted for assault with intent to murder and firearm charges.

The probation officer conceded that the information set forth of supervised release violations was second-hand--from a police report and conversations with FBI agent Lucas, who also testified that Cannon had an "extensive criminal history" and had been involved in gang activities. Lucas was of the view that gang members usually try to settle their disputes "without going to the judicial system."

Shipman testified on his own behalf, admitting association with Cannon, 3 whom he described as intoxicated at the time of the episode at issue. Shipman's version of events was that they were involved in horseplay--wrestling--and there was no demand for money, no assault, and no debt. Shipman claimed that any contact was between his companion, Swilley, and Cannon, who had the same kind of "problem." Swilley, Shipman said, "took some stuff from [Cannon].... I had nothing to do with it." Shipman's description of Cannon: "he's drunk ... a hundred per cent of the time ... [a]nd he plays a lot."

Shipman admitted that on the occasion under investigation, he put Cannon, drunk, "in the car ... [and] I took him home." 4 Shipman testified that there was no discussion about money and that he took nothing from Cannon, who simply...

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