U.S. v. Carnes

• Decision Date: 29 October 2002
• Docket Number: No. 00-2103.,00-2103.
• Citation: 309 F.3d 950
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Luke CARNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

309 F.3d 950

UNITED STATES of America, Plaintiff-Appellee, v. William Luke CARNES, Defendant-Appellant.

No. 00-2103.

United States Court of Appeals, Sixth Circuit.

Argued: June 14, 2002.

Decided and Filed: October 29, 2002.

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Jennifer J. Peregord (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

William Luke Carnes, Wayne County Jail, Detroit, MI, Jeffrey M. Brandt (argued and briefed), Robinson Brandt Law Offices, Cincinnati, OH, Matthew M. Robinson, Cincinnati, OH, for Defendant-Appellant.

Before: MARTIN, Chief Circuit Judge, KEITH and KENNEDY, Circuit Judges.

KENNEDY, J., announced the judgment of the court and delivered an opinion, in which MARTIN, C.J. and KEITH, J., concurred except as to Part VIII. KEITH, J. (pp. 959-64), delivered a separate opinion, in which MARTIN, C.J., concurred, which constitutes the opinion of the court on the issue addressed in Part VIII. KENNEDY, J. (pp. 964-65), delivered a separate dissenting opinion with respect to Part VIII.

OPINION

KENNEDY, Circuit Judge.

Defendant William Luke Carnes appeals his conviction and sentence for possession of a firearm and ammunition by a felon, witness tampering, and illegally intercepting wire communications. Parole officers and officers from the Auburn Hills, Michigan police department executed an arrest warrant against Carnes on January 14, 1997, at a residence belonging to Lisa Kellum, Carnes's then-girlfriend. After arresting Carnes, the officers conducted a warrantless search of the residence, suspecting that he was violating the terms of his parole by living in a location other than that specified in his conditions of parole and possibly committing additional crimes. During the search, the officers discovered cassette tapes, a handgun, and ammunition. The tapes later proved to be recordings of telephone conversations obtained through a wiretap illegally placed on Kellum's phone line.

Carnes was indicted initially for a single charge of possession of a firearm by a felon. He filed a motion to suppress the firearm, which was denied. A superseding indictment added the charges of possession of ammunition by a felon, witness tampering, and illegally intercepting phone calls. Carnes later moved to dismiss the indictment for violations of the Speedy Trial Act, and the district court granted that motion without prejudice. A grand jury returned a second superseding indictment restating the charges, and Carnes was subsequently convicted by a jury on all four counts. In this appeal, Carnes argues the district court erred by: denying his motion for a dismissal for lack of jurisdiction; failing to consider two prior offenses as one conviction for sentencing purposes; considering his three prior violent felonies in sentencing when they were not alleged in the indictment or proved; dismissing the superseding indictment without prejudice, and; failing to suppress certain evidence. Additionally, Carnes challenges the sufficiency of the evidence as to the witness tampering count.

For the reasons explained in Judge Keith's opinion with respect to Part VIII, we reverse Carnes's conviction for illegal interception of a wire communication and remand that count for a new trial. However, for the reasons explained in Parts I-VII, we affirm the other convictions, finding any error as to those harmless.

I. Constitutionality of the Federal Felon-in-Possession and Wiretapping Provisions

Carnes's first argument is that the district court erred in denying his motion to dismiss based on the unconstitutionality of the federal wiretapping and felon-in-possession provisions. We review a motion challenging the constitutionality of a federal statute de novo. United States v. Smith, 182 F.3d 452 (6th Cir. 1999). Carnes asserts that his activities did not involve interstate commerce, and that under United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the federal felon-in-possession of a firearm and wiretapping statutes, 18 U.S.C. §§ 922(g)(1) and 2511(1), respectively, are constitutionally defective.

The Supreme Court, prior to Morrison, held that the felon-in-possession statute was a valid exercise of Congress's power to regulate interstate commerce. Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). The Third, Eighth, and Tenth Circuits recently have addressed the effect of Morrison on § 922(g)(1) and concluded that the argument identical to the one advanced by Carnes is without merit. United States v. Shepherd, 284 F.3d 965 (8th Cir.2002); United States v. Singletary, 268 F.3d 196 (3rd Cir.2001); United States v. Dorris, 236 F.3d 582 (10th Cir.2000). For the reasons set forth in those opinions, we find Carnes's position unpersuasive. Dorris points out that "Section 922(g)(1) by its language only regulates those weapons affecting interstate commerce by being the subject of interstate trade. It addresses items sent in interstate commerce, and the channels of commerce themselves — ordering that they be kept clear of firearms. Thus, no analysis of the style of ... Morrison is appropriate." 236 F.3d at 586. The felon-in-possession statute survives Morrison.

Carnes frames his argument as a facial challenge, but an as-applied challenge would be equally unpersuasive, since the weapon and ammunition in question were manufactured outside of the state of Michigan.

Similarly, Morrison does not affect the validity of the wiretapping statute. The wiretapping statute, as the district court pointed out, has a substantial relationship to interstate commerce since "telecommunications are both channels and instrumentalities of interstate commerce." United States v. Carnes, 113 F.Supp.2d at 1150 (citing Spetalieri v. Kavanaugh, 36 F.Supp.2d 92, 115-16 (N.D.N.Y.1998)).

II. Sentencing as an Armed Career Criminal

Carnes next argues that the district court erred by sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) ("ACCA"), which triggered a 15-year mandatory minimum sentence. Section 924(e)(1) imposes a fifteen-year minimum for felons in possession of firearms who have "three previous convictions by any court ... for a violent felony or a serious drug offense ... committed on occasions different from one another." Carnes was previously convicted for breaking and entering in connection with an incident in 1983 and for burglarizing two adjacent homes in Troy, Michigan, in 1991. Prosecutors charged two separate offenses in connection with the 1991 burglaries, and Carnes pled guilty to both. In this appeal, as in the court below, Carnes argues that these two burglaries were not "committed on occasions different from one another" and thus should not count as two prior convictions for the sake of the ACCA.

The district court found this question to be a close one, but concluded that the offenses should count as separate occasions. The court below considered our somewhat inconclusive case law on the question of what constitutes an "occasion." In United States v. Brady, 988 F.2d 664 (6th Cir.1993), defendant Brady committed one armed robbery at a beauty shop, and then, less than an hour later, committed a second robbery at a nearby bar. We held en banc that two prior robbery convictions counted as separate criminal episodes, opining that:

offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions.... [W]hile defendant Brady sat at the ... Bar with his concealed shotgun, he could have decided that one robbery he had committed was enough for the evening. Instead, he decided to rob again....

988 F.2d at 669-70.

In United States v. Wilson, 27 F.3d 1126, 1131 (6th Cir.1994), we applied Brady to a case where a defendant committed illegal sexual conduct against separate victims on separate floors of the same building, finding that defendant "could have halted his criminal rampage at any time" but instead "chose to continue selecting different victims in separate places." Id. We found Brady controlling and considered the offenses to be distinct for ACCA purposes.

We have reached seemingly inconsistent results in other cases. In United States v. Graves, 60 F.3d 1183 (6th Cir.1995), a defendant committed a burglary and then assaulted a police officer. We found that because the defendant "had not yet left the location of the burglary" when he committed the assault, the assault and the burglary should not be considered to have occurred on separate occasions. In United States v. Murphy, 107 F.3d 1199 (6th Cir. 1997), a defendant committed an armed robbery in one residence of a duplex, and stayed behind to prevent that unit's occupant from calling the police while the defendant's accomplices robbed the other unit of the duplex. Because the defendant had not left the first residence and was only guilty of aiding and abetting as to the robbery of the second residence, we concluded that he had not successfully completed the first robbery, and that there was no "definable endpoint" to the first event. 107 F.3d at 1210. Then, in United States v. Thomas, 211 F.3d 316 (6th Cir. 2000), we found that a defendant's rapes of two women (which occurred during a period in which defendant and his accomplice maintained control over both women) did not constitute distinct offenses because of the "absence of a completion or definable endpoint." Id. at 321. In Thomas, we reached that conclusion in spite of the fact that the rapes of the two women occurred in separate locations (the defendant forced the women to drive him from one location to the other between rapes).

Carnes argues that, in regards to his prior convictions, it would be difficult to distinguish between the end of the first burglary and the...