U.S. v. Morrow

• Citation: 977 F.2d 222
• Decision Date: 07 October 1992
• Docket Number: 89-5708 and 89-5710,Nos. 89-5418,s. 89-5418
• Parties: 36 Fed. R. Evid. Serv. 687 UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wayne MORROW (89-5418/5708) and George Mooneyham (89-5710), Defendants-Appellants. . Re
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 222

977 F.2d 222

36 Fed. R. Evid. Serv. 687

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Wayne MORROW (89-5418/5708) and George Mooneyham

(89-5710), Defendants-Appellants.

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

United States Court of Appeals, Sixth Circuit.

Reargued Feb. 12, 1992.

Decided Oct. 7, 1992.

James R. Dedrick, Asst. U.S. Atty. (argued and briefed), Jerry G. Cunningham, U.S. Atty., Office of U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

Anthony Philip Lomonaco (argued and briefed), Vaughan & Zuker, Knoxville, Tenn., for defendant-appellant George Mooneyham.

A. Benjamin Strand, Strand & Goddard, Edward C. Miller (argued & briefed), Dandridge, Tenn., for defendant-appellant Timothy Wayne Morrow.

Before: MERRITT, Chief Judge; and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

In a prior decision in this case, a three-member panel of this Court ruled that instructions defining the element of carrying a firearm "in relation to" a drug trafficking offense pursuant to 18 U.S.C. § 924(c) failed to inform the jury that the crime required proof of a relationship between the weapon and the drug offense. It therefore reversed defendant Mooneyham's conviction on that count and vacated defendant Morrow's conviction for aiding and abetting Mooneyham in a 924(c) violation. United States v. Morrow, 923 F.2d 427 (6th Cir.1991). A majority of the Court voted for rehearing of the case en banc, thereby vacating the previous opinion and judgment of the original panel. 932 F.2d 1146 (6th Cir.1991).

Agents of the United States Forest Service discovered Timothy Wayne Morrow and George Mooneyham enter a marijuana patch and commence cutting marijuana plants. Mooneyham wore a sidearm. When confronted by the agents, Morrow was promptly apprehended while Mooneyham fled. Morrow was advised of his constitutional rights and told agents that he and Mooneyham were removing the male marijuana plants to facilitate the protection of tetrahydrocannabinol in the female plants.

When Mooneyham was arrested about thirty minutes later, his holster was empty. A loaded .22 caliber gun was subsequently found near the entry to the marijuana field.

A jury convicted Mooneyham and Morrow of aiding and abetting one another in the unlawful manufacture of marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. Mooneyham and Morrow also were found guilty of conspiring to manufacture marijuana in violation of 21 U.S.C. § 846. In addition, the jury found that Mooneyham, aided and abetted by Morrow, knowingly carried a firearm during and in relation to a drug trafficking offense in breach of 18 U.S.C. § 924(c)(1).

Morrow received a sentence of sixty-three months imprisonment for the manufacturing and conspiracy offenses. Mooneyham's sentence on the manufacturing and conspiracy counts was thirty-seven months imprisonment. As for the firearm convictions, Morrow and Mooneyham each received the mandatory five-year sentence set forth in 18 U.S.C. § 924(c)(1), to be served consecutively.

Defendants have raised various assignments of error. After careful review, the Court concludes that none has merit. The judgment of the district court is affirmed.

I

The following colloquy between the prosecutor and an arresting agent took place during the trial:

Q. Did Mr. Morrow tell you anything further?

A. In response to a question by another officer he indicated how they had learned some of the business about growing marijuana.

Mr. Santore [Mooneyham's counsel]: Objection to what they, your Honor please. May we have a side bar with your Honor.

The Court: Well, overruled. It's admissible.

Q. Just testify about what Mr. Morrow told you.

A. He indicated they had learned, that he had learned information about growing marijuana from books such as High Times, magazines such as High Times.

Mooneyham's first argument is that the admission of Morrow's incriminating statements regarding what "they" did resulted in a violation of Mooneyham's rights under the Confrontation Clause of the Sixth Amendment. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the Supreme Court held that in joint trials hearsay attributed to one nontestifying codefendant incriminating another codefendant may violate the latter's Sixth Amendment rights. The risk is that the jury might rely on the extrajudicial statements to convict, even though such statements have not been subjected to cross-examination or otherwise tested for reliability. Id. at 136, 88 S.Ct. at 1628.

Had Morrow not testified at Mooneyham's trial, Mooneyham's Bruton argument might have merit. But Mooneyham's Sixth Amendment right was exercised during his cross-examination of Morrow. The cross-examination of Morrow disables Mooneyham's claim of constitutional deprivation based on Bruton. See Nelson v. O'Neil, 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971); Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717-18, 95 L.Ed.2d 162 (1987); United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.1991).

II

Mooneyham and Morrow contend that their trial was irreparably tainted by judicial bias. The offending judicial statements came at the close of the government's case, as the court was responding to a defense motion for acquittal. The jury was not present.

The first of three statements submitted as evidence of the judge's predisposition against Mooneyham and Morrow came in response to a contention by Mooneyham's attorney that the government failed to provide the necessary proof in support of Count II. The court replied: "Strongest case I could ever think of. I don't know why we're here, but overruled." As Morrow's counsel attempted to speak, the court continued: "Talk about having his hand in the cookie jar when they don't want you to steal cookies."

Finally, the court, after learning that Mooneyham and Morrow planned to take the stand, remarked that the defendants had a duty not to waiver from the truth. Noting that perjury would lead to increased punishment, the court added that "if they come in and tell the truth, as they've got right to do [sic], they've nothing to fear. Absent that, they're, more time is in jeopardy on their lives [sic], if they are, in fact, found guilty. So anyway, with that in mind, bring the jury back, and bring them around."

Neither Mooneyham nor Morrow explains how these statements reflect bias. Each is content simply to conclude that bias is "clear" or "obvious." We disagree, and regard the evidence as falling well short of demonstrating judicial bias.

A judge must exhibit "impartiality in demeanor as well as in actions." United States v. Frazier, 584 F.2d 790, 794 (6th Cir.1978). Much of the concern about an otherwise inappropriate judicial act or remark is neutralized by the absence of the jury. The threat of prejudice is greatest when a judge overpowers a jury, United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979), or when she unduly interferes with counsel's conduct of the case. United States v. Slone, 833 F.2d 595, 598 (6th Cir.1987). Mooneyham and Morrow must overcome a high hurdle here, since the jury was not present when the court uttered the allegedly prejudicial phrases and no undue interference occurred.

Fed.R.Crim.P. 29(a) provides that the court shall order the entry of judgment of acquittal "after the evidence on either side is closed if the evidence is insufficient to sustain a conviction." When Mooneyham moved for a judgment of acquittal at the close of the prosecution's case, the court was obligated to weigh the sufficiency of the evidence. The first two offending statements made by the court are judicial comments in response to the court's duty under Rule 29(a). A trial judge "may analyze the evidence, comment upon it, and express his [or her] views with regard to the trial testimony of the witnesses." United States v. Seago, 930 F.2d 482, 492 (6th Cir.1991) (quoting United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933), overruled on other grounds, Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 77, 84 S.Ct. 1594, 1608, 12 L.Ed.2d 678 (1964)). Under the circumstances, the court's assessment of the evidence harbored no bias against Mooneyham or Morrow.

The court's remark concerning the defendants' duty to tell the truth is not only free of bias, but is consistent with the law.

III

Mooneyham challenges the adequacy of the jury instruction on the firearm offense. Section 924(c)(1) provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.

18 U.S.C. § 924(c)(1).

Mooneyham argues that the court failed to fully inform the jury of the necessity to find beyond a reasonable doubt that the gun was carried "in relation to" the commission of a drug offense. A section 924(c) conviction requires the government to prove that the firearm had some relation to or connection with the underlying offense. United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987). Mooneyham states this requirement can only be satisfied by an instruction that does more than reiterate the statutory words "in relation to." Further, Mooneyham claims he was not carrying a firearm "in relation to" a drug trafficking crime, but rather to protect himself from snakes at the marijuana patch.

Since no objection was made to the jury instruction, we review for plain error. United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). We are mindful that "the plain error exception to the contemporaneous-objection...