923 F.2d 427 (6th Cir. 1991), 89-5418, United States v. Morrow

Docket Nº:Timothy Wayne MORROW (89-5418/5708), George Mooneyham
Citation:923 F.2d 427
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:January 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 427

923 F.2d 427 (6th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy Wayne MORROW (89-5418/5708), George Mooneyham

(89-5710), Defendants-Appellants.

Nos. 89-5418, 89-5708 and 89-5710.

United States Court of Appeals, Sixth Circuit

January 10, 1991

Argued Jan. 30, 1990.

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Krupansky, Circuit Judge, filed opinion concurring in part and dissenting in part.

Page 429

James R. Dedrick (argued), Asst. U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

Edward C. Miller (argued), and A. Benjamin Strand, Strand & Goddard, Dandridge, Tenn., for Morrow.

A. Philip Lomonaco, Knoxville, Tenn., for Mooneyham.

Before JONES and KRUPANSKY, Circuit Judges, and HILLMAN, Chief District Judge. [*]

HILLMAN, Chief District Judge.

Defendants Timothy Wayne Morrow and George Mooneyham appeal their jury convictions on three drug related offenses. On Count I, the jury found that defendants aided and abetted each other in the unlawful manufacturing of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), and 18 U.S.C. Sec. 2. Defendants were convicted on Count II under 21 U.S.C. Sec. 846 of conspiring to manufacture marijuana. Count III charged defendant Mooneyham, aided and abetted by defendant Morrow, with carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). For the reasons set forth, we affirm the jury verdict on Counts I and II but vacate the judgments as to Count III.

I.

Defendants were arrested by Special Agents of the United States Forest Service as they tended to plants in a large marijuana patch growing in the Cherokee National Forest. The Forest Service had been surveying the two fields of marijuana since discovering them in June, 1988. On July 31, 1988 the agents observed defendants approaching the patches on all-terrain vehicles, wearing camouflage clothing and ski masks.

As defendants approached the field, the agents noticed that one of them, later identified as defendant Mooneyham, was wearing a holster with a handgun. Upon entering the patch, defendants began pacing the rows, cutting marijuana plants. After approximately ten minutes the agents confronted defendants. Morrow was immediately apprehended, but Mooneyham ran into the woods and was not captured for about thirty minutes. When Mooneyham was arrested, the holster was empty. The agents later found the gun, a .22 caliber magnum revolver, at the entrance to the marijuana patch. It was loaded and in working order.

After being advised of his Constitutional rights, Morrow explained to the agents that he was removing the male plants from the patch to facilitate the production of tetrahydrocannabinol in the female plants. Morrow proceeded to show one of the agents the difference between a male and a female plant. Further, Morrow stated that the plants would not be harvested until buds formed, which would occur in about another month when the nights cooled. Defendants were tried before a jury on October 17-18, 1988. The jury returned guilty verdicts as to both defendants on all three counts. At the sentencing hearing, Morrow was ordered to serve sixty-three (63) months imprisonment on Counts I and II, to be served concurrently. Mooneyham was sentenced to thirty-seven (37) months imprisonment on Counts I and II, also to be served concurrently. On Count III (the firearm offense), both defendants received the mandatory five year sentence set forth in 18 U.S.C. Sec. 924(c) to be served consecutively to the underlying sentences. In addition, the trial court ordered that each defendant serve a five year term of supervised release following his incarceration.

II.

Defendants claim several general errors on appeal, and also challenge their convictions

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on Count III on sufficiency of the evidence and adequacy of the instruction grounds. Although we find only the challenges on Count III to have merit, we will address each issue raised.

A. Bruton issue: Mooneyham first contends that the trial court committed reversible error by admitting codefendant Morrow's statements made to the arresting agents immediately after his arrest. Mooneyham argues that admission of Morrow's confession incriminated him and violated his Constitutional right to confrontation.

The Supreme Court recognized the potential confrontation problem in joint trials where a nontestifying codefendant's confession is admitted and prejudices a defendant against whom the confession is not admissible in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). To avoid any Bruton problems, the trial court ordered all plural pronouns which might be construed to refer to Mooneyham redacted from Morrow's statement. See Richardson v. Marsh, 481 U.S. 200, 207-09, 107 S.Ct. 1702, 1707-08, 95 L.Ed.2d 176 (1987).

At trial, one of the agents testified that Morrow had told him how "they" had learned about growing marijuana. Following defense's objection, the officer corrected his testimony, using only singular pronouns. This slip did not violate Mooneyham's rights under Bruton. No confrontation problem arises where the codefendant testifies and is available for cross-examination. Nelson v. O'Neil, 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971); Hodges v. Rose, 570 F.2d 643, 646 (6th Cir.), cert. denied, 436 U.S. 909, 98 S.Ct. 2244, 56 L.Ed.2d 408 (1978). Here both defendants opted to take the stand, and Mooneyham was afforded a full opportunity to cross-examine Morrow regarding those statements. Consequently, Mooneyham's Sixth Amendment rights were protected.

B. Judicial bias: The next issue appealed involves allegations of judicial misconduct and bias. Both defendants assert that they were denied a fair trial due to the judge's bias. In support they refer to the following comments by the court in the absence of the jury:

Talk about having his hand in the cookie jar when they don't want you to steal cookies ... About the strongest case I ever heard.

J.App. at 125-126.

A court's bias or prejudice may, in some circumstances, violate a defendant's right to due process. Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971). The statements cited by defendants here, however, do not support the conclusion that the trial judge was prejudicial. Since no contemporaneous objection was made at trial, we must apply the plain error standard. United States v. Slone, 833 F.2d 595, 598 (6th Cir.1987).

A judge's comments must be viewed in the context in which they were made and unless they "adversely affect the overall fairness of the trial" they will not be deemed prejudicial. Harris v. Lockhart, 743 F.2d 619, 620 (8th Cir.1984). The statements here were made following defendants' motion for Judgment of Acquittal. In ruling upon such a motion, the trial judge is called upon to comment on the sufficiency of the government's proofs to sustain a conviction. Fed.R.Crim.P. 29; United States v. Davis, 785 F.2d 610, 617 (8th Cir.1986). Furthermore, the comments were made outside the presence of the jury, thereby substantially diminishing the likelihood of actual prejudice. See United States v. Block, 755 F.2d 770, 776 (11th Cir.1985). These isolated statements did not render the trial unfair.

C. Prior Convictions: Morrow has been previously convicted of robbery and possession of counterfeit fifty dollar bills. The court allowed the government to elicit this on cross examination of Morrow for impeachment purposes. Morrow argues that absent an express finding by the court that the probative value of this evidence was outweighed by its prejudicial effect, this evidence was improperly admitted. This claim is without merit.

Evidence of prior convictions involving dishonesty or false statements are admissible to attack the witness's credibility.

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Fed.R.Evid. 609(a)(2). Under this rule, the district court has no discretion to exclude evidence of prior convictions. McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir.1990). See also United States v. Hans, 738 F.2d 88, 94 (3rd Cir.1984); United States v. Kuecker, 740 F.2d 496, 502 (7th Cir.1984). Consequently, a witness convicted of a crime involving dishonesty or false statement may be impeached through the conviction regardless of any potential prejudice.

Counterfeiting is an offense involving "dishonesty or false statements." The Conference Committee notes explain that "crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement, or false pretenses, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully" are included under Rule 609(a)(2). Conf.Rep. No. 1597, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 7051, 7098, 7103. We agree with other courts which have found counterfeiting to fit within this definition. See United States v. Noble, 754 F.2d 1324 (7th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985); Kaye v. United States, 177 F. 147 (7th Cir.1910). It was therefore not necessary for the judge to balance the probative value against the prejudicial effect before admitting evidence of this conviction.

Morrow correctly notes that juvenile adjudications are not admissible for impeachment purposes. Fed.R.Evid. 609(d). However, the record shows that, although prosecuted under the Federal Youth Corrections Act, 18 U.S.C. Secs. 5005-5024 (Repealed, Pub.L. 98-473, Title II, Sec. 218(a)(8), Oct. 12, 1984, 98 Stat. 2027), Morrow was not a juvenile at the time of his arrest or conviction for counterfeiting. Morrow was born on August 30, 1963; he...

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