U.S. v. Carnes, 97-CR-80053.

• Decision Date: 19 September 2000
• Docket Number: No. 97-CR-80053.,97-CR-80053.
• Citation: 113 F.Supp.2d 1145
• Parties: UNITED STATES of America, Plaintiff, v. William Luke CARNES, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 1145

113 F.Supp.2d 1145

UNITED STATES of America, Plaintiff, v. William Luke CARNES, Defendant.

No. 97-CR-80053.

United States District Court, E.D. Michigan, Southern Division.

September 19, 2000.

COPYRIGHT MATERIAL OMITTED

Sheldon Light, Asst. U.S. Atty., Detroit, MI, for Plaintiff.

Richard Amberg, Waterford, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTIONS FOR NEW TRIAL AND TO DISMISS FOR LACK OF JURISDICTION AND REGARDING VARIOUS SENTENCING ISSUES

ROSEN, District Judge.

I. INTRODUCTION

On July 2, 1999, following a jury trial at which he represented himself but was assisted by standby counsel, Defendant William Luke Carnes was convicted on all four counts set forth in the superseding indictment, including (1) possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g); (2) possessing ammunition as a felon, also in violation of 18 U.S.C. § 922(g); (3) illegal wiretapping, in violation of 18 U.S.C. § 2511(1); and (4) witness tampering, in violation of 18 U.S.C. § 1512(b)(1). On July 7, 1999, Defendant, through his standby counsel, brought a motion for new trial, arguing that the evidence at trial revealed that the Government had tampered with a key witness, Lisa Kellum. Next, on August 9, 1999, Defendant himself filed a motion to dismiss the charges against him, arguing that the Government had exceeded its "territorial jurisdiction" by prosecuting him for conduct occurring outside the exclusive jurisdiction of the federal government.

In addition, the Court has conducted three sentencing hearings in this case, on May 11, 2000, May 23, 2000, and September 7, 2000. At these hearings, and in objections filed to the Presentence Investigation Report ("PSIR"), Defendant and his standby counsel raised several sentencing issues, including: (1) that Defendant's sentence has been improperly enhanced under § 3C1.1 of the U.S. Sentencing Guidelines; (2) that Defendant's prior state-court convictions for breaking and entering an occupied dwelling do not constitute "violent felonies" within the meaning of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e); (3) that two of Defendant's prior breaking-and-entering offenses arose from a single sequence of events occurring on the same day, April 3, 1991, and thus were not committed on "different occasions" within the meaning of § 924(e); and (4) that Defendant had his civil rights restored under Michigan law with respect to his 1983 breaking-and-entering conviction, so that this conviction cannot be included among the "three previous convictions" required to trigger the application of § 924(e).

Having reviewed Defendant's motions, briefs, and numerous cited authorities, as well as the Government's responses and the relevant testimony at trial, and having considered the arguments of counsel and of Defendant himself at the sentencing hearings, the Court is now prepared to rule on Defendant's motions and sentencing issues. This Opinion and Order sets forth the Court's rulings.

II. ANALYSIS

A. Defendant's Motion for New Trial

In his first motion, brought through his standby counsel, Defendant argues that he should be granted a new trial because his defense was prejudiced by the Government's alleged tampering with a key witness, Lisa Kellum. In support of this motion, Defendant notes that Ms. Kellum initially provided a statement to an investigator with the Federal Defender's Office, Beverly Knox, claiming ownership of a firearm that formed the basis for the felon-in-possession charge against Defendant. At trial, however, Ms. Kellum recanted this statement, and instead testified that the gun in question actually belonged to Defendant. In his motion for new trial, Defendant contends that Ms. Kellum changed her testimony in response to threats from ATF agents that she faced imprisonment and the loss of custody of her children if she persisted in claiming ownership of the gun.

The fatal flaw in Defendant's motion, however, is that its factual premise is utterly contrary to the testimony at trial. In his examination of both Ms. Kellum and ATF agent Alan Jakubowski, Defendant sought to elicit testimony that Ms. Kellum had changed her testimony as a result of Government threats and coercion. Both of these witnesses, however, unequivocally rejected this allegation of Government intimidation. In recounting her meeting with Agent Jakubowski, Ms. Kellum testified that the ATF agent's statements to her were "not threatening at all," that she "never felt threatened," and that she "wasn't threatened or intimidated" into disavowing her initial assertion of gun ownership. (6/29/99 Tr. at 30-31.) She further testified that she changed her statement of her "own free will," based on her realization that she had "made a mistake" and "done something very foolish," as well as her desire to do "the right thing." (Id.)

For his part, Agent Jakubowski flatly denied on cross-examination that he had threatened Ms. Kellum or suggested that her custody of her children could be jeopardized if she adhered to her claim of gun ownership. (6/25/99 Tr. at 188-89.) Instead, he testified that he "informed her that it's important to tell the truth and be honest." (Id. at 188.) In short, despite Defendant's vigorous cross-examination, and his affirmative efforts to obtain testimony in support of his theory of Government tampering with witnesses, nothing in the record lends any support to Defendant's claim that Ms. Kellum changed her testimony as a result of Government coercion.¹

Indeed, Ms. Kellum not only denied any Government threats or intimidation, but she affirmatively testified that Defendant himself had influenced her initial statement by contacting her and encouraging and approving her claim of gun ownership. (Id. at 200.) Ms. Kellum also testified that, during a visit with Defendant after he was arrested and taken into custody, Defendant showed her a drawing of the gun in question and expressly encouraged her to say that it belonged to her. (Id. at 215.) Based on this testimony, Defendant was convicted of witness tampering.

Thus, in order to accept the factual premise underlying Defendant's motion, the Court would not only have to overlook the absence of any testimony supporting Defendant's allegation of Government witness tampering, but also would have to disregard the contrary evidence, as accepted by the jury, that Defendant tampered with a witness by persuading Ms. Kellum to make her initial claim of gun ownership. Indeed, Defendant effectively invites the Court to upset two separate determinations by the jury: namely, that Defendant —and, thus, not Ms. Kellum—possessed the firearm in question, and that Defendant improperly sought to influence Ms. Kellum to state that the gun was hers. Yet, this Court should exercise its discretion to overturn a jury verdict and award a new trial "only in the extraordinary circumstances where the evidence preponderates heavily against the verdict." United States v. Pierce, 62 F.3d 818, 825 (6th Cir.1995). Moreover, a jury verdict cannot be overturned based on differing assessments of the credibility of witnesses, as the jury is entitled to "special deference" in its "resolution of questions of credibility." United States v. Latouf, 132 F.3d 320, 331 (6th Cir.1997).

In this case, ample evidence—indeed, all of the relevant testimony—supports the jury's findings. In order to reject these findings and conclude that the Government improperly tampered with witness Lisa Kellum, the Court would have to disregard the jury's assessment of the credibility of Ms. Kellum and Agent Jakubowski, both of whom testified that Ms. Kellum freely elected, without threats or unlawful coercion, to recant her initial statement and instead testify that the gun in question belonged to Defendant. Because there is no basis in the record for upsetting the jury's findings, nor for concluding that the Government improperly influenced Ms. Kellum's testimony, the Court must deny Defendant's request for a new trial.

B. Defendant's Motion to Dismiss for Lack of Territorial Jurisdiction

In his second motion, brought by Defendant himself, Defendant argues that the federal government and this Court lack "territorial jurisdiction" over this case, absent a showing that the conduct leading to his conviction occurred at geographical locations under the exclusive control of the federal government. In support of this argument, Defendant relies principally on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in which the Supreme Court struck down the Gun-Free School Zones Act of 1990 as exceeding the authority of Congress to regulate interstate commerce.

There are two problems with Defendant's argument. First, nothing in Lopez, or in any other decision of which this Court is aware, limits the Government to prosecuting only those offenses that occur within the "exclusive territorial jurisdiction" of the United States, whatever that might be. Rather, under the U.S. Constitution, the federal government may regulate conduct occurring anywhere in the fifty states, including the State of Michigan, so long as it sufficiently implicates one of the national government's enumerated powers, such as the power over interstate commerce. Thus, it does not matter that Defendant's conduct occurred in the State of Michigan, rather than some zone of exclusively federal "territorial" jurisdiction, because the state and federal governments both have the power to regulate certain forms of conduct occurring within this state.

This leads to the question whether the conduct at issue in the present case may be reached, and prohibited, through the exercise of one of the federal government's enumerated powers. Apparently, Defendant views Lopez as suggesting that it may not. Yet, as the Sixth Circuit has expressly recognized, the federal felon-in-possession statute passes constitutional muster notwithstanding the decision in Lopez, because 18 U.S.C. § 922(g)(1...