U.S. v. Bryan, s. 94-5086

• Decision Date: 04 May 1995
• Docket Number: Nos. 94-5086,94-5961,94-5544,s. 94-5086
• Citation: U.S. v. Bryan, 66 F.3d 317 (4th Cir. 1995)
• Parties: NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 317

66 F.3d 317

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ernest BRYAN, a/k/a Ernest Miller, Defendant-Appellant.

Nos. 94-5086, 94-5544, 94-5961.

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 1995.

Decided: Sept. 18, 1995.

ARGUED: Michael Patrick O'Connell, Assistant Federal Public Defender, Charleston, SC, for appellant. Albert Peter Shahid, Jr., Assistant United States Attorney, Charleston, SC, for appellee. ON BRIEF: J. Preston Strom, Jr., United States Attorney, Charleston, SC, for appellee.

Before WILKINSON and WILLIAMS, Circuit Judges, and HEANEY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

OPINION

PER CURIAM:

Appellant Ernest Bryan was convicted on March 24, 1992, on two counts: 1) possessing a firearm after having previously been convicted of a crime punishable by imprisonment exceeding one year, in violation of 18 U.S.C. Sec. 922(g) (1988); and, 2) using or carrying a firearm during and in relation to possession with intent to distribute crack cocaine, in violation of 18 U.S.C. Sec. 924(c) (1988). Following his conviction, Bryan filed three motions for new trial which were denied. ¹ Bryan appeals, alleging that because evidence of his guilty pleas in related state court proceedings was used by the Government during its case in chief to prove elements of both counts of conviction, as well as to impeach his testimony, the district court abused its discretion in denying his Rule 33 motions for a new trial. For the following reasons, we affirm the district court.

I.

The testimony adduced during the Government's case reflects that on October 17, 1990, following a traffic stop for speeding and the arrest of the driver, Roger Jones, for operation of a vehicle under a suspended license, Patrolmen Kenneth Lancaster and Jefferson Bannister, Jr., discovered marijuana in the ashtray of the vehicle. After Bryan, a passenger, admitted to Patrolman Lancaster that the marijuana in the ashtray belonged to him, Lancaster placed Bryan under arrest. During the course of the arrest in which Bryan was informed of his Miranda rights, Lancaster asked whether Bryan possessed any firearms. Bryan admitted that he did, at which point Lancaster located in Bryan's left pants leg an Amadeo Rossi, SA, .38 caliber revolver and an Armi Tanfoglie Giuseppe, .25 caliber pistol. After retrieving the two firearms, Lancaster thoroughly searched Bryan and located in his underwear (a diaper) ² thirty rocks of crack cocaine packaged in three plastic bags, each containing 10 rocks of crack. When Lancaster asked Bryan why he "had guns on him," Bryan responded, "if you had been shot before, you would carry a gun also." (J.A. 20). In addition, Lancaster testified to having related the same facts at state court proceedings wherein Bryan had pleaded guilty to the state charges arising from these events.

During the defendant's case, however, Bryan testified on direct examination that he did not knowingly have possession or control over the drugs or firearms allegedly found on his body on October 17, 1990. Rather, Bryan testified that although he had seen the firearms when the driver of the car, Roderick Jones, brought them to his house, he only saw them for the first time during the search when the Patrolmen found them between the two front bucket seats. Bryan further testified that he was told by the "highway patrolman" that the crack cocaine was found in his diaper between his legs. (J.A. 91). He nevertheless denied that the crack cocaine was knowingly in his possession when it was found. Bryan testified that the numbness resulting from the paralysis caused by the three gunshot wounds to his back prevented him from having any feeling below his chest.

Bryan further testified, as to his state court guilty plea, that he thought he was pleading guilty to one indictment charging him with selling crack cocaine in November 1989. He elaborated that he pleaded guilty to that charge because he had been told that failure to do so would lead to his continued incarceration pending trial.

During cross-examination, the Government impeached Bryan's testimony by extensively referencing the state charges to which Bryan had pleaded guilty in January 1991. In particular, the Government asked Bryan whether the signatures on the indictments attesting to his guilty plea to the drug offenses on October 17, 1990, were his and whether he now was testifying that he was not guilty of those offenses. The Government further asked Bryan whether he had affirmatively responded to the state trial judge that he was guilty of the five charges and that his guilty plea was freely and voluntarily made.

Following Bryan's conviction and sentencing hearing, the court by judgment order entered on January 19, 1994, calculated a total offense level of 22 and criminal history category III. The district court sentenced Bryan at the lower end of the imprisonment range, 111 months incarceration at an appropriate medical facility.

On July 13, 1992, however, Bryan's state convictions arising from the October 17, 1990 arrest were vacated by order of South Carolina Circuit Court Judge Ellis B. Drew. In its order granting Bryan a new trial, the state court concluded:

Bryan did not have the requisite physical and mental competency to stand trial or to enter a guilty plea. When a Defendant's mental facilities are so impaired that he is incapable of a full understanding and appreciation of the charges, and of comprehending his constitutional rights and realizing the consequences of his plea, or participating in the defense of his case, a guilty plea entered under such circumstances is invalid. Additionally, it is this Court's conclusion that the guilty plea was not made voluntarily. Given the physical condition of the Defendant, and the fact that under any circumstances, whether Mr. Bryan was found innocent or guilty of the charges he was to proceed to trial on January 9, 1991, that he would be returned to the Beaufort County Jail. Under the testimony of all parties at the Jail, he was receiving inadequate care. It is clear that this Court cannot find that the guilty plea was made voluntarily under such circumstances.

(J.A. 174) (citations omitted). ³ We note that the state court did not vacate Bryan's convictions because of any incapacity Bryan suffered during the arrest for the crimes charged. Rather, the defect in his conviction was due purely to the impairment of his mental faculties at the time he pleaded guilty to the state charges. Given this subsequent finding by the state court, Bryan contends that the district court erred in denying his Rule 33 motions for a new trial based on after-discovered evidence.

II.

In this appeal, we confront the sole issue whether the district court abused its discretion in refusing to grant Bryan's Rule 33 motions for a new trial following the state court order vacating Bryan's conviction and granting a new trial on his state drug charges. See United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir.1985) (reviewing denial of a motion for a new trial for abuse of discretion). Bryan asserts that the Government improperly used evidence of his guilty pleas to the state charges during its case-in-chief to prove elements of the federal counts and to impeach his testimony. Thus, Bryan argues that reversal of his state convictions constitutes newly-discovered evidence upon which the district court should have granted him a new trial. The Government responds to Bryan's newly-discovered evidence argument by asserting that this new evidence did not satisfy the five-prong test for granting a new trial under United States v. Christy, 3 F.3d 765 (4th Cir.1993).

Under Christy, motions for a new trial based upon newly-discovered evidence are reviewed pursuant to the following standard:

(i) is the evidence, in fact, newly discovered; (ii) are facts alleged from which the court may infer due diligence on the part of the movant; (iii) is the evidence relied upon not merely cumulative or impeaching; (iv) is the evidence material to the issues involved; and (v) would the evidence probably result in acquittal at a new trial?

Id. at 768 (quoting United States v. Chavis, 880 F.2d 788, 793 (4th Cir.1989)). Bryan "must satisfy all five prongs of the test in order to receive a new trial." Id. Bryan primarily argues that absent the references at trial to his state court guilty plea, he would probably have been acquitted of the Sec. 924(c)(1) charge at a new trial.

Notwithstanding the analytical posture under which Bryan and the Government have debated this case before us, it could be argued that Loper v. Beto, 405 U.S. 473 (1972), provides a better framework than Christy to review the unusual facts surrounding Bryan's appeal. In Loper, the Supreme Court extended its decision in Burgett v. Texas, 389 U.S. 109 (1967), which prohibited the use of uncounselled prior convictions to prove the elements of another offense, to also prevent the use of such prior convictions to impeach a criminal defendant in a subsequent trial. Loper, 405 U.S. at 481-83; see also Grandison v. Warden, Maryland House of Correction, 580 F.2d 1231, 1238-39 (4th Cir.1978) (discussing Loper and its predecessor, Burgett ), cert. denied, 440 U.S. 918 (1979). Courts have subsequently interpreted Loper to apply only to prior convictions invalidated on constitutional grounds affecting the integrity of the fact-finding process. Cf. United States v. Lauga, ...