U.S. v. Aloi

Decision Date29 December 1993
Docket Number91-3879,Nos. 91-3830,s. 91-3830
Citation9 F.3d 438
PartiesUNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Richard Anthony ALOI, Defendant-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph P. Schmitz, Asst. U.S. Atty., David A. Sierleja, Cleveland, OH, Sean Connelly (argued and briefed), U.S. Dept. of Justice, Criminal Div., Washington, DC, for plaintiff-appellee cross-appellant.

Edward Marek, Fed. Public Defender, Debra M. Hughes (argued and briefed), Federal Public Defender's Office, Cleveland, OH, Matthew Fortado (briefed), Akron, OH, for defendant-appellant cross-appellee.

Richard Anthony Aloi, pro se.

Before: KEITH and KENNEDY, Circuit Judges, and CONTIE, Senior Circuit Judge.

KENNEDY, Circuit Judge.

In this case, defendant Richard Anthony Aloi appeals his convictions for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. Sec. 922(g)(1), 773 F.Supp. 55. The government cross-appeals the District Court's refusal to sentence defendant under the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e)(1), which would have required a fifteen-year sentence. For the reasons set forth below, we affirm defendant's convictions, but vacate defendant's sentence.

I.

On appeal, defendant raises several issues surrounding his conviction. The relevant facts of the underlying events giving rise to his arrest and conviction will be presented with each issue.

A. Motion to Suppress

Defendant first challenges the denial of his motion to suppress the guns and ammunition found. Defendant was arrested on October 9, 1990 by Sergeant Donald Mollohan of the Springfield Township, Ohio, Police Department. Defendant, who was asleep in his common-law wife's car, in a shopping center parking lot, had drawn the attention of a Rickey Glass. Glass believed that defendant was in need of assistance and flagged down Mollohan. Mollohan approached the car and observed defendant sleeping with an open bottle of beer in his hand. The officer awakened defendant, asked if he was all right and asked for his driver's license. Next, he asked defendant to exit the car and administered field sobriety tests.

While standing outside of the car, Mollohan observed a black vinyl bag on the front seat. Mollohan asked defendant what was in the bag and twice, defendant claimed that there was "nothing important" in the bag. Mollohan testified that he then said: "Well, if there is nothing important, can I look in it?" Defendant replied, "Yes." The bag contained three handguns, ammunition and a woman's scarf.

In denying the motion, the District Court found Mollohan's testimony on defendant's consent to the search to be credible and undisputed. The District Court's factual findings will be set aside only for clear error; and its credibility determinations are owed substantial deference due to the trial court's ability to observe the demeanor of the witness. United States v. Garcia, 866 F.2d 147, 151-52 (6th Cir.1989). We do not find this conclusion to be clearly erroneous.

B. Rebuttal Testimony

Defendant's next assignment of error is the District Court's decision to allow rebuttal testimony. Defendant claims that the sole purpose of introducing this testimony was to emphasize defendant's status as a "convicted felon on parole" to the jury.

Kathy Witzman, defendant's common-law wife, testified that she knew that defendant could not possess firearms because of his previous felony convictions. Witzman also testified that she did not remember defendant's parole officer, James Brown, "saying" or "implying" that "defendant could not even be in a house with firearms." The United States offered Brown's testimony to rebut Witzman's testimony. The entire rebuttal testimony consisted of the following:

Q. Sir, did you explain to Kathy Witzman that Mr. Aloi was not permitted to live in a house where guns were present?

A. Yes.

Q. Sir, did you explain to Kathy Witzman that if Mr. Aloi did live in a house where guns were kept, Mr. Aloi would be in violation?

A. Yes.

Q. Did you explain to Kathy Witzman the consequences of such a violation?

A. Yes.

Q. Did you ask her if she understood that information?

A. Yes.

Q. And what did she respond?

A. That she understood.

"Determining the use and scope of rebuttal evidence lies within the broad discretion of the district court." United States v. Levy, 904 F.2d 1026, 1031 (6th Cir.1990) (citing United States v. Goodwin, 770 F.2d 631, 638 (7th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 858, 88 L.Ed.2d 897 (1986)), cert. denied, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991). Brown's testimony served to contradict Witzman's earlier testimony. We find no abuse of discretion.

C. Voir Dire

Defense counsel made the following request of the District Court during voir dire of the jury:

MR. FORTADO: I would like the Court to instruct them or inquire of them as to their knowledge of the Defendant's right not to testify, not to incriminate.

THE COURT: I don't do that. I do it throughout the trial every chance I get. It's a very strong instruction at the end.

Defendant argues that he was entitled to have this specific question asked during voir dire. He also complains that the court did not remind the jury during the trial that defendant was not required to testify. The following instruction was given by the court to the jury:

The Defendant is presumed by the law to be innocent. The law does not require a Defendant to prove his innocence or produce any evidence at all, and no inference whatever may be drawn from the election of the Defendant not to testify. The Government has the burden of proving him guilty beyond a reasonable doubt of each and every essential element of the crime charged and if it fails to do so you must acquit him.

Federal trial judges have broad discretion in determining what questions to ask during voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22 (1981). "Judges need not use every question submitted by counsel; they need only use those to which an anticipated response would afford the basis for a challenge for cause." United States v. Fish, 928 F.2d 185, 186 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991).

In support of his position, defendant cites United States v. Blount, 479 F.2d 650 (6th Cir.1973). In Blount, a divided panel reversed a defendant's conviction because the trial court refused the defendant's request to ask if the prospective jurors accepted the bedrock principle that a defendant is innocent until proven guilty. See also United States v. Hill, 738 F.2d 152, 153 (6th Cir.1984), (presumption of innocence and government's burden of proof beyond a reasonable doubt). "The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel." Blount, 479 F.2d at 651 (citing Wright, 2 Federal Practice and Procedure, p 382 (1969)). The Court believed that the failure to honor this request made it impossible to empanel an impartial jury.

The District Court did question the venire about the presumption of innocence afforded a criminal defendant.

THE COURT: Do any of you believe that the Defendant, Mr. Aloi, has been indicted, that it is more likely that he is guilty than that he is not guilty? Do any of you believe the fact that an individual has been indicted makes it more likely that he is guilty than that he is not guilty?

I am glad to see that everybody remembers their high school Civics class. An indictment is merely a means of informing a person of a crime he has been charged. It is not evidence and does not indicate [anything] other than a charge.

The court also asked the venire and the jury whether anyone would have a problem abiding by the court's instructions to the jury; no person answered in the affirmative.

The issue here is whether this Court will extend the principle of Blount to the facts of this case, where the requested question dealt not with the presumption of innocence, but with the right of a criminal defendant not to testify against himself. The Supreme Court has held that the failure of a trial court "to limit the jurors' speculation on the meaning of" a defendant's silence when he chooses not to testify, by giving a requested limiting jury instruction, "exacts an impermissible toll of the full and free exercise" of the Fifth Amendment privilege against self-incrimination. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981). The Court did not suggest that the subject must also be covered in voir dire. The specific question asked here, namely, the jurors' "knowledge" of a defendant's right not to testify, would not itself be a ground for a challenge for cause. Only if after being instructed that the defendant's failure to testify could not be held against him and the refusal or inability to comply with that instruction, could they be challenged for cause. We hold that the failure of the District Court to honor the request did not create the risk of empaneling a biased jury, given the court's voir dire questions and jury instructions about the presumption of innocence and its instruction that "no inference whatever may be drawn from the election of the defendant not to testify."

D. Sufficiency of the Evidence

As a final basis for attacking his convictions, defendant raises a sufficiency of the evidence challenge. This claim has no merit. It was stipulated that defendant was a convicted felon and that the gun and ammunition traveled across state lines, and there was ample evidence that defendant knew of the presence of the guns in the car.

II. Sentence Enhancement

Recently, this Court sitting en banc, decided the question of whether a defendant may challenge the use of prior ...

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