U.S. v. Hawkins

• Decision Date: 08 June 1992
• Docket Number: 91-1503 and 91-1505,Nos. 90-1096,s. 90-1096
• Citation: 969 F.2d 169
• Parties: UNITED STATES of America, Plaintiff-Appellee (90-1096; 91-1503), Respondent-Appellee (91-1505), v. Robert HAWKINS, Defendant-Appellant (90-1096; 91-1503), Petitioner-Appellant (91-1505).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 169

969 F.2d 169

UNITED STATES of America, Plaintiff-Appellee (90-1096 91-1503), Respondent-Appellee (91-1505), v. Robert HAWKINS, Defendant-Appellant (90-1096; 91-1503) Petitioner-Appellant (91-1505).

Nos. 90-1096, 91-1503 and 91-1505.

United States Court of Appeals, Sixth Circuit.

Argued May 11, 1992.

Decided June 8, 1992 ^*.

F. William Soisson (argued and briefed), Office of the U.S. Atty., Detroit, Mich., for U.S.

Stuart L. Stein (argued and briefed), Santa Fe, N.M., for Robert Hawkins.

Before: BOGGS and NORRIS, Circuit Judges; and BERTELSMAN, Chief District Judge. ^**

PER CURIAM.

Defendant, Robert Hawkins, was indicted on three counts: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); possession of firearms in the course of a drug-trafficking crime in violation of 18 U.S.C. § 924(c); and possession of a firearm as a felon in violation of 18 U.S.C. § 922(g). At the initial trial, he was convicted on the third count, but a mistrial was declared as to the other counts because the jury was unable to reach a verdict. Defendant was convicted of the first two counts at a subsequent trial.

After sentencing, Hawkins filed motions for a new trial, which were denied. By an order of this court, defendant's direct appeal has been consolidated with his appeal from the denial of a motion to vacate sentence made pursuant to 28 U.S.C. § 2255, and the denial of a motion for new trial on the basis of newly discovered evidence. Hawkins now argues that: (1) he was not a felon for the purposes of 18 U.S.C. § 922(g) because his past offense only resulted in probation pursuant to a Michigan statute authorizing "probation without judgment of guilt" for first-time drug law offenders; (2) evidence confiscated from another man was improperly admitted into evidence at defendant's trial; (3) evidence discovered after the trial indicates that the government improperly suppressed evidence concerning potential witnesses who could have provided exculpatory information; and (4) the district court wrongly denied the section 2255 motion to vacate defendant's sentence based upon ineffective assistance of counsel, prosecutorial misconduct, and the illegality of the search warrant for his home. For the reasons that follow, we affirm the judgment of the district court.

I.

For the purposes of this appeal, an abbreviated recitation of the facts will suffice. The government's confidential informant, Randy Ulmer, testified that he and William Clemons went to defendant's home on May 7, 1989 to purchase cocaine and observed a number of "kilos" in the basement of the residence. According to Ulmer, he removed several of the kilos for Clemons, and left money that Clemons had brought with him in a paper bag for defendant. On May 9, Ulmer gave this information to Jerome Sharpe, a West Bloomfield (Michigan) Township police officer assigned to the Oakland County Narcotics Enforcement Team. Officer Sharpe secured a search warrant for defendant's residence based in part on Ulmer's information; the affidavit for the warrant indicates that the informant told Officer Sharpe that he observed "between two and three hundred kilos" of pre-packaged bricks of cocaine at defendant's home.

On May 11, Officer Sharpe and other officers executed the search warrant and seized $1.2 million in cash, stored in luggage and an end table, as well as other valuable items and several firearms. Officer Sharpe testified that the officers also found cocaine residue in the containers where the money was located.

On May 22, 1989, Officer Sharpe arrested Clemons after purchasing a kilo of cocaine from him in a deal arranged by Ulmer. This kilo and its wrapper were introduced at Hawkins' trial, and Ulmer testified that the wrapping was done in the same manner and using the same material as that used for the kilos he carried from Hawkins' home on May 7.

II.

A. Prior Felony

Count III of defendant's indictment charged that he violated 18 U.S.C. § 922(g)(1) by possessing four firearms while having been "previously convicted of a crime punishable by imprisonment for a term exceeding one (1) year, that is Attempt [sic] Possession of a Controlled Substance." Section 922(g)(1) states: "It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm or ammunition...." Defendant argues that there was no evidence establishing that he was previously convicted of a crime punishable by imprisonment for more than one year.

The government put into evidence a Michigan court's order of probation indicating that defendant had been charged with attempted possession of cocaine but was sentenced to probation pursuant to section 333.7411 of the Michigan Compiled Laws, which allows a court to impose "probation without judgment of guilt" for first-time drug law offenders. Defendant was on probation under this statute at the time the federal indictment in the instant case was handed down. Attempted possession of cocaine is ordinarily punishable by more than one year in prison in Michigan. Therefore, the question before us is whether placing a defendant on probation pursuant to M.C.L. § 333.7411 constitutes a "conviction" for purposes of 18 U.S.C. § 922(g).

Section 333.7411 provides:

When an individual who has not previously been convicted [of a drug crime] pleads guilty to or is found guilty of possession of a controlled substance under [specified Michigan drug laws] ... the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime....

M.C.L. § 333.7411(1) (emphasis added). Defendant argues that under this provision a person is not "convicted" until or unless there has been a violation of a term of probation and an adjudication of guilt. He argues that the contrary position, adopted by the district court, is "illogical and Kafkaesque," because under that interpretation the imposition of probation would be considered a conviction during the probation period and yet deemed not to be a conviction at a later time, i.e., upon fulfillment of the terms of probation.

Because we agree with the district court that the placement of an individual on probation pursuant to M.C.L. § 333.7411 constitutes a conviction for these purposes, we affirm that court's judgment. In People v. Preuss, 436 Mich. 714, 461 N.W.2d 703 (1990), the Michigan Supreme Court, analyzing the requirement of three prior convictions for the application of a "fourth-time habitual-offender" statute, stated that " '[t]he conviction is the finding of guilt.' " Id. 461 N.W.2d at 711 (emphasis added) (quoting People v. Funk, 321 Mich. 617, 33 N.W.2d 95 (1948) (a conviction for which no sentence was imposed could be counted as one of the three prerequisite prior offenses)). Furthermore, as the district court pointed out, M.C.L. § 769.1(1) indicates that the conviction comes prior to the pronouncement of judgment or the sentence. That statute provides: "A judge of a court having jurisdiction is authorized and empowered to pronounce judgment against and pass sentence upon a person convicted of an offense in that court." It appears, therefore, that in Michigan, for purposes of statutes imposing penalties based in part on prior convictions, a person is deemed "convicted" upon a finding of guilt.

By its terms, M.C.L. § 333.7411 only applies when an individual "pleads guilty to or is found guilty of" specified statutes banning drug possession and use. As this constitutes a conviction under the rule derived from Preuss, Funk, and M.C.L. § 769.1(1), the evidence that defendant had been put on probation pursuant to section 333.7411 was sufficient to sustain the conviction under 18 U.S.C. § 922(g).

Defendant's protestations notwithstanding, there is nothing illogical about this interpretation. As we read it, the imposition of probation pursuant to section 333.7411 requires an initial finding of guilt, and thus a conviction, but provides something akin to expungement if the defendant completes the probation without incident: the individual is discharged and the proceedings dismissed only "[u]pon fulfillment of the terms and conditions" of probation. Defendant concedes that he had not yet fulfilled the terms of his probation when he was indicted for the federal violations at issue here. There is nothing illogical about providing that a conviction may be expunged or vacated upon the successful completion of probation but not before or unless that occurs.

B. Introduction of Cocaine and Wrapper From Clemons' Home

At trial, the government introduced both the kilo of cocaine and the wrapper confiscated from Clemons when he was arrested during a drug sale to Officer Sharpe on May 22, 1989, eleven days after the search of defendant's home. When shown this kilo and its wrapper at trial, confidential informant Ulmer testified that it was similar to those he observed and removed from defendant's home on May 7. Defendant argues that the government failed to connect the kilo or its wrapper to him, and that they should not have been admitted into evidence, as they were not relevant and their probative value was substantially outweighed by their prejudicial effect. Fed.R.Evid. 401-403. He also contends that the testimony of Ulmer and Sharpe concerning the arrest of Clemons should have been excluded.

It is unclear from the record whether the...