Niecko v. Emro Marketing Co.

Decision Date01 September 1992
Docket NumberNo. 91-2039,91-2039
Citation973 F.2d 1296
Parties, 23 Envtl. L. Rep. 20,183 Walter P. NIECKO and Thelma A. NIECKO, Plaintiffs-Appellants, v. EMRO MARKETING COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph M. Whittle, U.S. Atty., Randy W. Ream, Asst. U.S. Atty. (briefed), Terry Cushing, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Louisville, Ky., for plaintiff-appellee.

James Warren, pro se. Dana R. Kolter, Louisville, Ky. (argued and briefed), for defendant-appellant.

Before: MERRITT, Chief Judge; MILBURN and GUY, Circuit Judges.

MILBURN, Circuit Judge.

Defendant James Henry Warren appeals the district court's judgment based upon his being convicted by a jury of three firearms-related offenses and his sentence under the provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The indictment contained three counts. Count One charged defendant with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g), Count Two charged him with receiving the firearm in violation of 18 U.S.C. § 922(g), and Count Three charged him with making a false statement about his criminal past on the Alcohol, Tobacco and Firearms (ATF) Form 4473 in violation of 18 U.S.C. § 922(a)(6). On appeal, the issues are: (1) whether sufficient evidence exists to support the convictions on all three counts of the indictment, (2) whether defendant's right to a speedy trial was violated, (3) whether a two-level increase for obstruction of justice based on perjurious testimony at trial was appropriate under United States Sentencing Guidelines ("U.S.S.G.") § 3C1.1, (4) whether defendant's 1970 convictions met the standards of Boykin v. Alabama, (5) whether defendant's 1970 convictions were properly counted as violent felonies under the Armed Career Criminal Act, (6) whether defendant's sentence on October 13, 1970, was for three separate violent felony convictions for the purposes of the Armed Career Criminal Act, (7) whether the district court erred in replacing a missing juror with a duly selected alternate juror, and (8) whether defendant's mandatory fifteen-year sentence under the Armed Career Criminal Act is cruel and unusual punishment in violation of the Eighth Amendment. For the reasons that follow, we affirm.


On October 6, 1990, a .25 caliber Excam pistol was pawned at Stan's Pawn Shop in Louisville, Kentucky. The pawncard that memorialized the transaction bore the signature and thumbprint of defendant Warren, according to handwriting and fingerprint experts who testified at the trial. Two pawnshop employees testified that persons pawning firearms were required to show picture identification of themselves when pawning or redeeming a firearm. Pawnshop employees also introduced records that the pistol was redeemed on October 12, 1990, by defendant. In order to redeem the pistol, defendant was required to complete and sign ATF Form 4473, Section 8B of which asks the question, "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?" The pawnshop employee who handled the redemption transaction, Phillip Montgomery, testified that he did not write the word "no" in section 8B. None of the pawnshop personnel remembered this particular transaction, and none could visually identify defendant as the person who pawned or redeemed the pistol.

Defendant Warren testified that he pawned the pistol for a friend, John Williams, who accompanied him to the pawnshop. Defendant insisted that he never actually handled the weapon but admitted signing the ATF Form 4473, although he denied having read it and having answered any of the questions on it. The gist of his testimony was that he merely aided a friend, also a convicted felon, who could not pawn the pistol himself because he lacked the requisite picture identification.

John Williams was then called by the defense as a hostile witness. He denied pawning the firearm in question or having anything to do with it. He testified that defendant had telephoned him and asked him to testify falsely that he had been in the pawnshop with defendant and that he, not defendant, was the principal in the pawn transaction. Williams also produced two identifications, each bearing his photograph.

On June 20, 1991, the jury found defendant guilty on all three counts of the indictment. Thereafter, the district court held a sentencing hearing on August 29, 1991, and sentenced defendant to fifteen years imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e). This timely appeal followed.


Defendant Warren argues that his right to a speedy trial was violated even though his trial commenced within the 70-day period provided by the Speedy Trial Act, 18 U.S.C. § 3161, et seq. The parties agree that the speedy trial time did not expire until June 13, 1991, and that the trial started on June 7, 1991, when the court conducted voir dire, selected a jury, and the government made its opening statement. The trial was recessed until June 17, 1991, because the judge was required to attend the Sixth Circuit Judicial Conference. Apparently the judge's wife became ill and was hospitalized during that conference, and the reconvening of the trial was delayed for that reason for another two days. The trial recommenced on June 19, 1991. Defendant filed a motion to dismiss on speedy trial grounds, and the motion was overruled by the court. The jury's verdict was returned on June 20, 1991.

Defendant agrees that a trial is considered to have begun when the voir dire process begins. United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984); United States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984). A district court, however,

may not attempt to evade the spirit of the Act by conducting voir dire within the statutory time limits and then ordering a prolonged recess with an intent to pay mere "lip service" to the Act's requirements.

Scaife, 749 F.2d at 343.

The facts in Scaife are almost identical to those in this case. In Scaife, the district court selected a jury within the speedy trial time, then recessed so he could attend the Sixth Circuit Judicial Conference. This court noted that the district judge is required by both statute, 28 U.S.C. § 333, and court rule, Rule 16(a) of the Rules of the Sixth Circuit, to attend the judicial conference. Under those circumstances, we held that a recess required for the judge to attend the Sixth Circuit Judicial Conference is not made with any intent to evade the requirements of the Speedy Trial Act. Scaife controls this case and requires a finding that there was no attempt by the district court to manipulate the requirements of the Speedy Trial Act. The trial was in fact commenced on time, and defendant's challenge must fail.

Defendant also argues that the government used the trial recess for an oppressive purpose when the government in argument to the jury stated:

I gave my opening argument, tomorrow it will be two weeks ago. The truth hasn't changed since I gave you the original opening argument. The defendant waited to hear our witnesses before coming up with his version of the truth yesterday. But I submit to you I have proven the case against James Henry Warren that I told you I would prove two weeks ago.

(Trial Transcript, Volume III, page 6, lines 18 through 23). 1

The argument of the prosecuting attorney is nothing more than fair comment on defendant's reservation of his opening statement and his allegedly concocted testimony that he had merely assisted John Williams in the pawning of Williams' pistol. This is the kind of thrust and parry customary in jury argument. It had little or nothing to do with the period of recess in this trial, for the argument could have been made had there been no recess.

Finally, defendant, in a single sentence, asserts that he was denied a speedy trial under the Constitution. The only case cited by the defendant in support of this proposition is United States v. Herman, 576 F.2d 1139 (5th Cir.1978), a case in which the Fifth Circuit affirmed a conviction despite a delay of fifteen months which the court found to be prejudicial. Defendant's reliance on Herman is misplaced, and the facts of this case clearly show that defendant was not denied a speedy trial under the Sixth Amendment to the United States Constitution.


Defendant next contends that the proof in this case was insufficient to support his convictions. When insufficiency of the evidence is alleged as a ground for appeal, we determine "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

Counts 1 and 2 of the indictment charged defendant with possessing and receiving a firearm in violation of 18 U.S.C. § 922(g). As to these counts, the evidence showed that defendant's fingerprint was on the pawncard made out at the time defendant pawned the pistol and that his signature appeared on the ATF Form 4473 he was required to execute upon redeeming the pistol. Contrary to defendant's assertions, this evidence, together with the testimony of the pawnshop personnel concerning their record keeping routines, is sufficient evidence that defendant was the person who pawned and redeemed the pistol. Moreover, John Williams' testimony to the effect that defendant solicited him to commit perjury indicates consciousness of guilt on defendant's part. Viewed in the light most favorable to the government, there is ample evidence in this case that a rational trier of fact could rely on to convict.

As to Count 3, which charges that defendant made a false statement on...

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