U.S. v. Anderson

• Decision Date: 15 January 1991
• Docket Number: Nos. 90-5313,90-5507,s. 90-5313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Tyrone ANDERSON (90-5313) and Michael Wayne McNeil (90-5507), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 450

923 F.2d 450

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Tyrone ANDERSON (90-5313) and Michael Wayne McNeil

(90-5507), Defendants-Appellants.

Nos. 90-5313, 90-5507.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 6, 1990.

Decided Jan. 15, 1991.

W. Hickman Ewing, Jr., U.S. Atty., Frederick H. Godwin, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Memphis, Tenn., for U.S.

James D. Gass (argued), Jackson, Tenn., for Anthony Tyrone Anderson.

Lloyd R. Tatum (argued), Tatum & Tatum, Henderson, Tenn., for Michael Wayne McNeil.

Before GUY and BOGGS, Circuit Judges, and BERTELSMAN, District Judge. ^*

BOGGS, Circuit Judge.

Defendants Anthony Anderson and Michael McNeil appeal from their convictions for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g). Both defendants appeal from the district court's denial of their motions to suppress the firearms they possessed. Anderson also appeals from his enhanced sentence under the armed career criminal provisions of 18 U.S.C. Sec. 924(e). That section provides that a person convicted of violating Sec. 922(g) who has previously been convicted of three violent felonies, a term defined in Sec. 924(e)(2)(B), shall receive a minimum fifteen-year sentence, not subject to suspension, probation, or parole. Finally, Anderson contends that he was selectively prosecuted, and that inclusion of his prior conviction for burglary as one of his three prior felonies under Sec. 924(e) violated his right to due process. For the reasons that follow, we affirm the district court on all counts.

I

The defendants were apprehended as the result of chance and good police work. Sergeant William Blackwell and Haywood County Sheriff Raymond Russell were driving one afternoon along Highway 76 near the line between Madison and Haywood counties in Tennessee. The officers knew that this area had recently experienced many burglaries. The officers noticed a small blue foreign car quickly backing out of a residential driveway, almost hitting a truck on Highway 76. They noticed that both of the occupants of the car were black, and both officers personally knew that the occupants of the residence that the car backed out of were white. As the small car drove by the officers at a high rate of speed, the officers noticed that the car was so heavily loaded that the chassis was rubbing against the right tire. The officers tried to get a license check on the car, but could not because the license plate was located in the rear windshield and not clearly visible.

The officers followed the car onto westbound I-40. The blue car entered the interstate highway quickly and weaved in and out of traffic. Still unable to read the license plate despite the use of binoculars, the officers stopped the car on the highway.

The officers approached the car from different sides, and each officer spoke with a different defendant. Neither Anderson nor McNeil could produce a driver's license or any other form of identification. The officers then noticed that a quilt was covering many things loaded on the car's back seat. In response to Officer Russell's question, Anderson said that the things in the back seat belonged to a Margaret Reed. Anderson said that the two of them were moving Ms. Reed from Brownsville to Memphis. Anderson then opened the door to the back seat, lifted the quilt, and showed Russell a microwave.

Officer Russell, coincidentally, knew Margaret Reed personally. He called the police radio dispatcher and told the dispatcher to call Reed and ask her if she was moving to Memphis and if she owned a microwave. Reed was contacted, and told the dispatcher that she was not moving to Memphis and did not own a microwave.

Confronted with Reed's denial of their story, the defendants changed their tune. Anderson said that instead of moving Reed from Brownsville to Memphis, he was really moving a person named Lee from Memphis to Nashville. This explanation sounded disingenuous to the officers because the car was headed toward Memphis and away from Nashville. The defendants' new story also had other inconsistencies. Anderson said that the blue car belonged to his cousin, while McNeil said that it belonged to Anderson's girl friend.

Sergeant Blackwell decided at this point that the goods in the back seat might be stolen. The officers then told the defendants that the officers would take them back to the county jail for further investigation. The officers told the defendants that they were free to leave, but that they would not be allowed to drive the car because neither defendant was carrying a driver's license. Both defendants and their car were driven back to the county jail by the officers.

Both officers testified that the defendants were not under arrest at the time they were told to accompany the officers to the jail. Nevertheless, the booking sheet from the jail states that the defendants were arrested at "1400" (2 p.m.), that they arrived at the station at 1445, and Officer Russell testified that he read the defendants their rights at 1513 and 1517. Both officers testified that the defendants had free access to the car during their initial confinement, but were not given the keys. The firearms (two pistols, a shotgun, and a Marlin rifle) were found in and around the defendants' car on the Haywood County Jail property at some undetermined point during the defendants' confinement. Three of these weapons had been recently stolen from their owners. The defendants were not formally booked until 1833, over 4 1/2 hours after they were first told to accompany the officers back to the county jail.

Sheriff Russell referred the defendants to the Federal government for potential prosecution under Sec. 922(g). The United States Attorney subsequently decided to commence the prosecution. The United States Attorney decided to seek the enhanced sentences available under Sec. 924(e) after the defendants filed motions to suppress the firearms. The defendants' appeals were timely filed after their convictions and sentencing.

II

Anderson first contends that he was selectively and vindictively prosecuted. He rests his contention on the activity of Sheriff Russell rather than the United States Attorney. Anderson provides evidence that Sheriff Russell does not perform background checks on all persons arrested in his jurisdiction to determine if any have prior felony records. Therefore, there might be some persons who could have been referred to the United States Attorney's office for prosecution under Sec. 922(g) who were not referred.

Anderson contends that this practice violates the United States Constitution. Anderson contends that under Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), the government must treat all similarly-situated lawbreakers similarly. The fact that Sheriff Russell works for a county in the state of Tennessee and the U.S. Attorney works for the United States does not deter Anderson. Anderson alleges, without any supporting facts, that the United States had no discretion in deciding whether to prosecute cases referred to him by Sheriff Russell.

Anderson has confused two separate prosecutorial actions that have been held to violate the Due Process Clause, selective prosecution and vindictive prosecution. A prosecutor selectively prosecutes someone when three things occur. First, he must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Wayte, 470 U.S. at 608 n. 10, 105 S.Ct. at 1531 n. 10. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to. Wayte, 470 U.S. at 609, 105 S.Ct. at 1531-32.

A prosecutor vindictively prosecutes a person when he or she acts to deter the exercise of a protected right by the person prosecuted. United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1382, 67 L.Ed.2d 358 (1981). A person who claims he has been vindictively prosecuted must show that the prosecutor has some "stake" in deterring the petitioner's exercise of his rights, and that the prosecutor's conduct was somehow unreasonable. Id.

Anderson has not established a prima facie case under either doctrine. Anderson has not shown that he was part of a group that the prosecutor was trying to harm by prosecuting him. Anderson has also not shown that he was singled out for prosecution because he has exercised any constitutional right. In the absence of either allegation, Anderson's contention that he was improperly prosecuted has no merit.

III

Anderson also contends that his enhanced sentence under Sec. 924(e) denies him due process because other criminals with the same criminal record would not be subject to enhanced sentencing in other circuits. Specifically, Anderson notes that one of his three prior felony convictions is for burglary. Anderson contends that the circuits are split regarding the definition of "burglary" for the purposes of Sec. 924(e). Since the circuit split would result in a criminal being subjected to a different sentence depending upon the site of his conviction, Anderson contends that his right to due process is violated.

This argument has become moot regardless of its theoretical merit. The Supreme Court resolved the circuit split in Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Court defined "burglary" as "any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 110 S.Ct. at 2158. Anderson was convicted of violating Tennessee's burglary statute, and it contains all of these elements....