389 F.3d 662 (6th Cir. 2004), 02-2394, United States v. Cromer

Docket Nº:02-2394.
Citation:389 F.3d 662
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sean Lamont CROMER, Defendant-Appellant.
Case Date:November 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 662

389 F.3d 662 (6th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sean Lamont CROMER, Defendant-Appellant.

No. 02-2394.

United States Court of Appeals, Sixth Circuit

November 30, 2004

Argued: Aug. 13, 2004

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[Copyrighted Material Omitted]

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Timothy M. Holloway, Taylor, Michigan, for Appellant.

Andrew Byerly Birge, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge. [*]

MARBLEY, District Judge.

Defendant-Appellant, Sean Lamont Cromer, appeals his conviction by a jury for possession of cocaine with intent to distribute. On appeal, Cromer asserts the following grounds for reversal: (1) there was insufficient evidence to support his conviction; (2) the district court plainly erred by allowing a witness to testify about hearsay statements made by a confidential informant ("CI") indicating that Cromer was involved in drug activity; (3) the district court erred by not requiring the production of the CI after admitting the hearsay statements made by the CI; and (4) the district court erred by allowing Cromer to cross-examine a witness without giving him Faretta warnings. Jurisdiction is proper under 28 U.S.C. § 1291. For the following reasons, Cromer's conviction is REVERSED and this case is REMANDED for additional proceedings in accordance with this opinion.

I. BACKGROUND

A. Procedural History

On June 6, 2001, a grand jury for the Western District of Michigan returned a two-count indictment against Cromer based upon the results of a search conducted pursuant to a warrant on March 8, 2001,

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at a residence located at 3284 Buchanan Avenue in Wyoming, Michigan (the "Buchanan residence"). Count I charged Cromer with being a felon in possession of a firearm "[o]n or about March 8, 2001," in violation of 18 U.S.C. §§ 922(g) (1), 921(a), and 924(a) (1). Count II charged Cromer with "knowingly, intentionally and unlawfully possess[ing] with intent to distribute ... cocaine," in violation of 21 U.S.C. § 841(a) and (b) (1) (C). On July 10, 2001, a grand jury returned a superseding indictment, adding a third count based upon a firearm found at the time of Cromer's arrest, on May 24, 2001. Count III thus charged Cromer with being a felon in possession of a firearm "[o]n or about May 24, 2001."

At the beginning of Cromer's first trial, the district court granted Cromer's oral motion to sever the drug charge from the firearms charges and proceeded to try Cromer solely upon the drug charge. Cromer's first trial on the possession with intent to distribute charge was held on January 15, 2002, through January 18, 2002, and resulted in a hung jury. The court declared a mistrial on January 23, 2002. Cromer's second trial on the drug charge was held on May 21, 2002, through May 24, 2002. Cromer moved for a judgment of acquittal at the close of the government's case and then again moved for a judgment of acquittal at the close of all the evidence. Both motions were denied. The jury found Cromer guilty of the drug charge. Subsequently, Cromer and the government entered into a plea agreement regarding the two firearms charges, whereby Cromer agreed to plead guilty to the felon in possession charge contained in Count III and the government agreed to dismiss the felon in possession charge contained in Count I.

The district court sentenced Cromer to 294 months of imprisonment on Count II, the drug charge, and 96 months of imprisonment on Count III, the firearms charge. On November 21, 2002, Cromer filed a timely notice of appeal of his judgment of conviction on the possession with intent to distribute cocaine charge. In his plea agreement, Cromer waived the right to appeal his conviction and sentence on the felon in possession charge contained in Count III, and he does not raise any issues on appeal regarding his conviction or sentence on that charge.

B. Factual Background 1

1. Evidence of Cromer's Guilt

On March 8, 2001, a search warrant was executed at the Buchanan residence, during the course of which the following incriminating evidence was discovered:

(1) a "pocket tech digital scale," rolling paper, and razor blades in a kitchen cupboard;

(2) a shoe box containing a pan and knife covered in cocaine residue, a small bag of suspected marijuana, a small bag of cocaine, and small baggies in a cupboard or pantry;

(3) two electric mixers-one that had cocaine residue on it and one that did not have any cocaine residue on it-in a kitchen cupboard;

(4) $8,500 in cash inside an oven mitt that was resting between the refrigerator and its handle;

(5) a loaded gun in the basement;

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(6) a large glass tube containing cocaine residue in a hidden corner of a kitchen cabinet;

(7) a coffee grinder caked with cocaine residue; and

(8) some apparent drug tabulations, mixed in with thirty to forty documents that appeared to be Cromer's.

At trial, the government introduced evidence that Cromer's fingerprints were found on the mixer with the cocaine residue, the gun, and a Pyrex dish with no cocaine residue; that Cromer had spent at least some time at the residence for the stated purpose of house sitting; that the interior of the Buchanan residence was consistent with the sort of "stash house" often used by distributors of crack cocaine; and that Cromer, when he was arrested, had on his person almost $4,000 in cash for which he provided inconsistent explanations.

2. Hearsay Statements

On direct examination of Maureen O'Brien, the officer in charge of the investigation of the Buchanan residence, the prosecutor asked, "Were you in charge of the investigation that led to charges against Sean Cromer?" The prosecutor also asked, "What was your role in that?" O'Brien stated in response, "My partner and I, Officer Galloway, back in January of 2001, had information about 3284 Buchanan. And we began an investigation about this residence being associated with selling drugs." The prosecutor then asked, "By investigating the place, did you come up with enough information that a state court judge gave you an order to go and have the place searched?" O'Brien responded by saying, "Yes."

The prosecutor also engaged in the following colloquy with O'Brien:

Q ....

Was there a period or a time set where you would meet with other officers that were going to assist you in getting ready to conduct the search of Buchanan Street?

A Yes....

....

Q Now, during the course of that meeting, from the information available to you, did some names come up or some descriptions of people come up that you told the officers you thought might be there?

A Yes.

Q And can you tell us what was the name or names that you had of people that were associated with that place from your investigation that you told the officers to be on the lookout for?

A Well, the focus of our investigation were [sic] for two subjects: one being a person nicknamed Nut, which is Mr. Sean Cromer. The second individual who was the subject of this investigation was Quincy Hatcher.

Q Now you knew the name Nut. Did you know the defendant's nickname before the date of the search?

A Yes.

Q And what was the nickname that you knew him by?

A Peanut.

Q Did you actually know his name as Sean Cromer before the search?

A Not until we got inside.

The prosecutor then proceeded to question O'Brien regarding the search. Neither the prosecutor nor O'Brien mentioned during this line of questioning that O'Brien had received a tip from an informant.

On cross examination, the following exchange took place between Cromer's defense counsel and O'Brien:

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Q And in this particular affidavit, you talked about an informant who had gone into the home at Buchanan and saw cocaine being purchased there. Is that correct?

A That's correct.

....

Q And that within the past 36 hours of the time that you prepared your affidavit, that your informant had been in that house?

A Yes.

Q So when I asked you [the] question about purchasing drugs, you're swearing to Judge Timmers that actually he had been in there within--I say he--he or she had been in within 36 hours and could purchase drugs and saw drugs there?

A That's correct.

....

Q Was there surveillance of the home within 36 hours?

A Yes, there was.

....

Q During this 36 hours, did you see Sean Cromer either go into or come out of that home?

A I did not see him physically, No.

Then, still on cross examination, the following exchange took place between Cromer and O'Brien 2:

Q Did the informant give you the description of the person?

A Of both people, yes.

Q He said both people?

A Yes.

Q Did he give you a description of Mr. Cromer?

A Yes.

Q He did?

A Um-hum.

Q Did the informant give you the name of the person doing the selling?

A Yes.

Q So the informant--

THE COURT: Just a minute. Let's have a side bar over here.

...

THE COURT: Mr. Cromer, you're killing yourself.

DEFENDANT CROMER: No, I ain't.

MR. COURTADE [government's counsel]: I was about to object to hearsay, but you're going to open the door to allowing me to respond to what did the informant say about you, and that could hurt you definitely.

DEFENDANT CROMER: But what I'm leading to is the affidavit. You made a[n] affidavit; and, in the affidavit, you gave a description. It never said nothing about the two people. You said one...

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