257 F.3d 636 (6th Cir. 2001), 99-4432, United States v Willis, Jr.

Docket Nº:99-4432
Citation:257 F.3d 636
Party Name:United States of America, Plaintiff-Appellant, v. Timothy Willis, Jr., Defendant-Appellee.
Case Date:July 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 636

257 F.3d 636 (6th Cir. 2001)

United States of America, Plaintiff-Appellant,

v.

Timothy Willis, Jr., Defendant-Appellee.

No. 99-4432

United States Court of Appeals, Sixth Circuit

July 20, 2001

Argued: June 6, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 98-00011, Solomon Oliver, Jr., District Judge.

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Christa D. Brunst, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant.

Alan C. Rossman, SCHRIEBER, ROSSMAN & ASSOCIATES, Cleveland, Ohio, Terry H. Gilbert, Friedman & Gilbert, Cleveland, OH, for Appellee.

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Before: BATCHELDER and MOORE, Circuit Judges; BERTELSMAN, District Judge. [*]

MOORE, J., delivered the opinion of the court, in which BERTELSMAN, D. J., joined. BATCHELDER, J. (pp. 649-51), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

The Government appeals the district court's decision granting, in part, Defendant -Appellee Timothy Willis, Jr.'s ("Willis" or "defendant") motion for a new trial. We AFFIRM the district court's decision.

I. BACKGROUND

In October 1997, following complaints about drug sales and gang-related activity, detectives in the Narcotics Unit of the Cleveland Police Department began conducting surveillance at 2267 East 83rd Street, a two-family residence in Cleveland, Ohio. Throughout that month, Detectives Mazur and Kooser conducted approximately fifty stationary and moving surveillances of the residence. The detectives noticed "a constant flow of traffic coming in and out of this house[,]" in which people would arrive at the house and then leave a short time later. Joint Appendix ("J.A.") at 143 (Mazur Test.). Throughout their surveillance of the residence, the detectives consistently noticed that the defendant, Timothy Willis, Jr., was present at the house. Detective Mazur testified that he never saw anyone other than the defendant answer the door at 2267 E. 83rd St. when someone knocked, nor did he ever see anyone else enter the residence without knocking.

On November 7, 1997, Detective Mazur arranged to have a confidential informant purchase heroin at 2267 E. 83rd St. Detective Mazur did not witness the transaction, which took place inside the residence. The informant who made the buy died before trial. In a hearing prior to trial, the district court held that any evidence of the informant's drug purchase would be inadmissible under Fed. R. Evid. 404(b). 1

Following the successful controlled drug purchase, the Cleveland Police Department obtained a warrant to search the residence at 2267 E. 83rd St. Upon searching the home, the officers discovered in the bathroom an electronic gram scale that can be used to measure cocaine and heroin. Also, in a small, padlocked closet in the bathroom, officers discovered a jacket containing seven bricks (10.5 grams) of heroin; a Nike shoe box containing just over a thousand dollars in cash; a pair of jeans containing 93.52 grams of crack-cocaine and $6,000 in cash; and a Taurus gun loaded with ten rounds of ammunition. The search of the closet also revealed several receipts with the name "Tim Willis" on them, with some of them also containing the "2267 E. 83rd St." address.

In addition to the items found in the bathroom, the officers retrieved many papers addressed to or intended for "Timothy Willis" in the residence's one bedroom. 2 These papers included bills,

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receipts, law firm correspondence, and personal letters all addressed to Timothy Willis or Timothy Willis, Jr.

Based on the evidence seized from the residence, an arrest warrant was issued for the defendant and he was thereafter indicted on two counts of possessing with the intent to distribute heroin and crack-cocaine in violation of 21 U.S.C. §841(a)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). Upon his arrest, officers obtained defendant's driver's license and car registration, which both listed 2267 E. 83rd St. as his home address.

At trial, the government relied in large part upon the evidence seized at 2267 E. 83rd St. coupled with the officers' testimony that the defendant was often seen in and around the house. The government also presented the testimony of Reginald Bryant, defendant's mother's boyfriend, who stated that he had given the Taurus firearm found by the police in the padlocked closet to the defendant in or around May 1996. The government also brought Virginia Profitt, defendant's probation officer, to the stand. Profitt testified that, during the course of defendant's parole and his monthly visits to her office, he consistently listed 2267 E. 83rd St. as his address. Furthermore, Profitt testified that Willis had a scheduled parole visit on November 19, 1997, the day the Cleveland Police executed the search of 2267 E. 83rd St. For that visit, Willis again listed 2267 E. 83rd St. as his address, and further noted on a form that he had not changed his address within the past month.

The defense presented several witnesses of its own, and also engaged in some effective cross-examination of the government's witnesses. On cross-examination, Detective Mazur admitted that Willis was not the only person whose papers were found at the residence. While Mazur did not present any of these papers in court, he recalled seeing documents with the names "William Warren" and "Tyano Montgomery" on them, also addressed to 2267 E. 83rd St.

As for its own witnesses, the defense called Tyano Montgomery, Timothy Willis, Sr.'s former fiance. Montgomery lived in the separate upstairs portion of the house at 2267 E. 83rd St. from some point in 1996 through January 1998. Montgomery testified that a lot of people lived in the downstairs quarters of the residence from January 1997 through January 1998, the year during which the police investigation was ongoing. Montgomery also testified that Timothy Willis, Jr. stopped living in the downstairs residence in August 1996 after he began receiving threats in school. Montgomery stated that the defendant had moved to the west side of Cleveland, though she was not sure where.

Montgomery testified that the defendant visited the residence occasionally in 1997, sometimes to pick up his mail. Montgomery stated that she retrieved the mail each day, and would leave mail specifically addressed to "Timothy Willis, Jr." on the table in the downstairs residence for him to pick up. Montgomery also explained that when mail was addressed generally to "Timothy Willis," she would open it to see if it was intended for Willis, Sr. If the mail was intended for Willis, Jr., she would again leave it for the defendant in the downstairs residence. Montgomery further testified that Charles, Richard, and William Warren, cousins of the defendant, all had keys to the downstairs residence at 2267 E. 83rd St., 3 and that both Charles

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and William Warren were living in the residence after May 1997.

The defense also called Betty Fitzgerald, the defendant's grandmother. Fitzgerald's testimony was consistent with Montgomery's in that she also testified that the defendant moved to the west side of Cleveland, although she did not know where, in August 1996 because "[h]e was having problems." J.A. at 493 (Fitzgerald Test.). Fitzgerald acknowledged that she owned the residence at 2267 E. 83rd St. and stated that after Willis left 2267 E. 83rd St., William and Charles Warren and others still lived in the downstairs residence. Fitzgerald testified that the locks were changed in the summer of 1997 after the house was burglarized, and that she did not believe the defendant had a key after this time. Fitzgerald stated, however, that she had seen Charles and William Warren using keys to enter the downstairs residence.

Following the presentation of the defense's witnesses, the government then informed the district judge that it wished to call Richard Warren, cousin of the defendant, for purposes of rebutting Montgomery's and Fitzgerald's testimony. The district court interviewed Richard Warren to determine if he had observed any of the trial proceedings or had contact with someone who had. Richard Warren informed the judge that his brother, William, had called him earlier that same day and told him that Richard would have to testify in court because "somebody was trying to put some dope and money against [Richard], talking about [Richard] ... selling drugs or something out of the house on 83rd, or something like that." J.A. at 530 (Richard Warren Voir Dire). William Warren also told Richard that if he did not come to the courthouse to testify, the government was "going to have a warrant out for [Richard's] arrest." J.A. at 531 (Richard Warren Voir Dire).

At sidebar, after interviewing Richard Warren, the district court noted its concern with having Richard Warren testify under these circumstances:

Let me tell you what my concern is. I don't have any problem with the prosecutors and police officers going out to get a person who is a potential witness and talk with them and to bring them in generally to prepare them, not about testimony, but about getting the facts and information, which they can then testify here to in court.

And I'm just having a problem understanding why the mechanism is used if a brother who came over here and is obviously scared out of his wits, but who heard some things in court, or told some things, to go out and talk to the other potential witness and tell him what those things are rather than to have the agents of the government themselves seek out the person and to make sure they are properly prepared without that kind of intervention."

J.A. at 536-37 (Richard Warren Voir Dire). Despite these concerns, the district court still permitted...

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