U.S. v. Wrice

• Decision Date: 23 January 1992
• Docket Number: Nos. 90-5479,90-5703,s. 90-5479
• Citation: 954 F.2d 406
• Parties: 34 Fed. R. Evid. Serv. 978 UNITED STATES of America, Plaintiff-Appellee, v. Gregory WRICE (90-5703) and Tommy Goods (90-5479), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 406

954 F.2d 406

34 Fed. R. Evid. Serv. 978

UNITED STATES of America, Plaintiff-Appellee, v. Gregory WRICE (90-5703) and Tommy Goods (90-5479) Defendants-Appellants.

Nos. 90-5479, 90-5703.

United States Court of Appeals Sixth Circuit.

Argued March 22, 1991.

Decided Jan. 23, 1992.

Ed Bryant, U.S. Atty., John Fowlkes, Stuart J. Canale (argued and briefed), Dan Newsom, Asst. U.S. Attys., Memphis, Tenn., for U.S.

Randall P. Salky (argued and briefed) Memphis, Tenn., for Tommy Goods.

William B. Seligstein (briefed), Wagerman & Seligstein, Memphis, Tenn., for Gregory Wrice.

Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge. ^*

PER CURIAM.

Tommy Goods, Gregory Wrice and Keith Boyce were indicted by a federal grand jury for possession of cocaine with intent to distribute, and for conspiracy to possess cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2. Goods and Wrice were convicted. Boyce was acquitted. Goods and Wrice now appeal their convictions alleging that some of the evidence against them was improperly admitted. We affirm both convictions.

I

On August 19, 1989, officers of the Shelby County Metro Narcotics unit executed a search warrant at 3745 Dugan Circle, Apartment 1. The apartment's lessee of record was Gregory Wrice. Inside the apartment, the officers found Tommy Goods lying on a pallet asleep in the kitchen. Next to him were a pair of tennis shoes in which the officers found money and 25.5 grams of crack cocaine. In the bathroom, officers located another 28.8 grams of crack under the sink. They also discovered cooking tubes of a type often used in the preparation of crack cocaine, and a set of scales commonly used by drug dealers. Goods, Wrice, and Boyce were present in the apartment at the time of the raid, as were two other individuals, Stanley Neal and Willie Hackworth.

The police then took aside the persons found in the apartment and questioned them one by one. Goods, having been informed of his Miranda rights and having indicated that he understood them, admitted to Officer James Blackwell that the shoes in which the crack was found were his, but he denied owning the drugs or the money.

The defendants were then taken to the Metro Narcotics office for processing. While they were there, they asked to speak to the prosecutor handling their case. They were then placed in contact with an Assistant United States Attorney (AUSA). The AUSA, John Fowlkes, again advised them of their rights before speaking to them. In the course of the ensuing discussion, Goods admitted that "the dope was ours" and that it was to be taken to the Tulane Apartments for distribution to other dealers before being sold for consumption.

Goods and Wrice were released, apparently either on bond or on their own recognizance. Twenty days later they were arrested at the Tulane complex in an apartment rented by Shirley Wrice, Defendant Wrice's sister. The police found seventy-five dollars under the bed where Goods was lying, and one and one-half grams of crack in another bedroom from which the police had seen Goods running.

Before trial, the court considered a motion in limine from Goods, who argued that the statement he made to AUSA Fowlkes should be suppressed as the product of unlawful coercion. The motion was denied, and the statement was admitted at trial. Because the statement was hearsay as to Wrice, the statement was redacted at trial to eliminate references to him. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

As part of its case in chief, the Government attempted to introduce evidence of the arrest of Goods and Wrice at the Tulane Apartments. Both defendants objected. The district court sustained the objection. The court further ruled that Goods could be questioned about the matter only if he were to deny that he had told prosecutors that he and his codefendants intended to take the drugs to the Tulane Apartments for sale. When Goods testified in his own defense, he denied owning the drugs found at the Tulane Apartments. The district judge then permitted the prosecution to call Officer Pete Kenny of the Memphis Police as a witness. He was the officer who had arrested Goods and Wrice at the Tulane Apartments. His testimony provided details of the arrest.

In its effort to refute Goods' disavowal of the incriminating statement he had made to Fowlkes, the prosecution asked Officer Blackwell, who was present when the statements were made, about the circumstances in which Goods made his incriminating admission. In the course of so testifying, Blackwell told the court that Goods had said: "The dope was ours" not "mine." In this way, Goods' unredacted testimony was admitted into evidence despite the ruling in limine that it was inadmissible against Wrice unless redacted.

On appeal, Goods argues that the district court erred in admitting the incriminating statements he made to Fowlkes. He also argues that the district court abused its discretion by admitting into evidence testimony about his arrest at the Tulane Apartments. He alleges that this is inadmissible propensity evidence under Fed.R.Evid. 404(b). Wrice joins him in the latter argument, and argues further that the admission of Goods' unredacted statement was prejudicial error as to him.

II

Before we consider these issues, we must turn to the question of whether Wrice's notice of appeal has deprived this court of jurisdiction over his case. We hold it does not.

Federal Rule of Appellate Procedure 4(b) specifies the time within which a convicted defendant must file his notice of appeal. This deadline is a jurisdictional requirement. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir.1987). Unless a defendant satisfies this requirement, a court has no jurisdiction to hear his case. The rule provides that "notice of appeal by a defendant [in a criminal case] shall be filed in the district court within 10 days after the entry of judgment or the order appealed from...." Fed.R.App.P. 4(b). Yet,

Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion or notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise proscribed by this subdivision. Id. (emphasis added).

As this court has interpreted the rule, the latest day for filing notice of appeal in a criminal case is ten days following entry of judgment. United States v. Christoph, 904 F.2d 1036, 1039 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). A district court, however, may grant an extension up to thirty days for excusable neglect. Id. at 1040. Therefore, under special circumstances, the time for filing notice of appeal may be up to forty days.

In this case, judgment of conviction was entered against Wrice on March 26, 1990. Wrice did not file the notice of appeal until May 4, 1990. This date is outside the normal ten-day period for filing a notice of appeal, but it is thirty-nine days after entry of judgment. On November 28, 1990, Wrice's attorney appeared before the court below to explain that severe depression had caused his tardiness in requesting an extension of the time to appeal. He presented evidence that he had undergone treatment and the problem was now under control. He then moved for an extension of time for filing on the grounds of excusable neglect. The court granted Wrice's motion for an extension of the filing deadline nunc pro tunc, thus making its order retroactive. The effect of this order was to extend the time for filing notice of appeal up to and through May 4, the day which Wrice's notice was filed. Whether the district court had this authority is the question we must now answer.

In Christoph, supra, the appellant filed a motion for enlargement on the fortieth day after judgment, but the district court did not grant the motion until the forty-third day. This court held that, because the motion contained the information required in a notice of appeal, the appellate court could treat the appellant's motion for enlargement of time as a timely notice of appeal. Specifically, "the district court retains power, even outside the forty-day period, to grant the extension and validate a notice of appeal filed within the forty days." Id. at 1040.

Likewise, in U.S. v. Hoye, 548 F.2d 1271 (6th Cir.1977), this court found jurisdiction over the appeal, even though a formal notice of appeal was filed more than eight months after the entry of judgment. There, judgment was entered on June 6, 1975, and a motion for extension was filed the following day. The extension was granted nunc pro tunc on February 4, 1976, and a formal notice of appeal was finally filed on February 13, 1976. The court reasoned that:

[W]here a document is filed within the 40-day period which represents a clear assertion of an intent to appeal, courts of appeal have the power to overlook irregularities where fairness and justice so require. Since the motion was itself timely filed and contained most of the essential facts required of a notice of appeal under Rule 3, Federal Rules of Appellate Procedure, we elect to treat it as being in substantial compliance with the requirements of that rule. We treat the provision for entry "nunc pro tunc" of the February 4, 1976 order as surplusage, noting that such provision would not cure the defect if it were otherwise fatal. Id. at 1273. (emphasis added) (citations omitted).

Christoph and Hoye stand for the proposition that some document, which is not necessarily a motion for extension but which contains the information needed for a notice of appeal, should be filed within the forty-day time limit in order to appeal. Federal Rule of Appellate Procedure 3(c) requires that the contents of a notice of an appeal specify the party or parties taking the appeal; designate the judgment, order, or part from which appealed; and name ...