U.S. v. Cline
| Citation | 362 F.3d 343 |
| Decision Date | 26 March 2004 |
| Docket Number | No. 02-5966.,02-5966. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Phillip CLINE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Charles P. Wisdom, Jr. (briefed), Asst. U.S. Attorney, Kenneth R. Taylor (briefed), Asst. U.S. Attorney, Marianna Jackson Clay (briefed), Asst. U.S. Attorney, Lexington, KY, for Plaintiff-Appellee.
Stephen W. Owens (briefed), Stpehen W. Owens Law Office, Pikeville, KY, for Defendant-Appellant.
Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*
This case concerns the conviction and sentencing of a Kentucky man for carjacking, possession of firearms while subject to a domestic violence order, and carrying a firearm during a crime of violence. Because the district court did not abuse its discretion in any of the matters raised by the appellant, we AFFIRM its decision.
Defendant Phillip Cline (hereinafter "Cline") has a long history of domestic violence. His wife, Jeana Marcum (hereinafter "Marcum"), has sought protective orders against him on at least four occasions, and the pair's last attempt at reconciliation led to the incidents at issue in this case.
In April of 2001, renewed contact between husband and wife led Marcum to seek an amendment to the domestic violence order then in place against Cline. That order, entered December 12, 2000 and scheduled to terminate December 12, 2003, required Cline to stay at least 500 feet away from Marcum and members of her family, not to commit further acts of domestic violence, and not to dispose of or destroy jointly held property. Pursuant to Marcum's claim that she and Cline had "worked everything out," the Martin County District Court amended the prior order, removing the "stay away" and "no contact" provisions. All other provisions of the December 2000 order remained in force.
Relations between Cline and Marcum quickly deteriorated, however, and on April 19, 2001, Marcum sought to reinstate the "no contact" and "stay away" provisions, citing new instances of abuse. This petition was denied when Marcum failed to appear at a hearing on the issue.
It is clear that Cline possessed and used firearms while the December 2000 order remained in effect. At trial, Marcum testified that she purchased guns in the "summertime" of 2001, and that she and Cline used them for deer hunting. Pawn broker Mark Jordan testified that Cline pawned a Norinco SKS on August 7, 2001, and that in July of that year he sold several guns to Marcum in the presence of Cline.
On August 11, 2001, Cline and Marcum sat drinking beer and talking, at the trailer of Okey DeLong in Martin County. Also in attendance were Butch Crum, Regina "Tiny" Newsome, and Newsome's son, Kenny. Luther Smith arrived while Crum and Newsome were away on a beer run.
Inexplicably, the tenor of the conversation between Cline and Smith began to change, from "joking around" and "kidding around," to heated and angry. Cline began to direct his anger toward Marcum, threatening to knock her through a nearby wood shed and the like. Fearing for her safety, Marcum instructed Kenny to survey the proceedings, and to call 911 or the sheriff's office if Cline became violent. Cline commenced hitting Marcum all the same, and so Marcum seized the first available opportunity (when Cline went inside to use the restroom) to plead with Smith: J.A. at 173.
Smith took Marcum at her word, and departed with her in his car while Cline was still inside the trailer. Unfortunately, Crum and Newsome soon returned, and offered their vehicle to Cline for use in pursuing his fleeing wife.
The three pursuers caught up with Smith and Marcum "on a nearby road," and mayhem ensued. Cline pummeled Smith1, leaving him unconscious in the road, and then seized Marcum's car, preventing her from escaping. He beat Marcum in the car, and then sped away, possibly over Smith's supine figure. (Smith died in the road, but not before being struck by at least one other passing car.) Marcum testified that Cline ignored her pleas and protestations, exclaiming "you want Luther that bad, you are going to get him, you are going to watch me run over him." J.A. at 176.
Cline then drove Marcum back to DeLong's trailer. Once inside the trailer, Cline exclaimed: J.A. at 177. He continued to beat Marcum severely, cracking three ribs and her skull, inducing swelling in her brain, breaking her tailbone, and inflicting several large bruises. Cline may have succeeded in carrying out his threat to kill his wife, had the police not arrived to arrest him.
On November 15, 2001, a grand jury indicted Cline on charges of carjacking (Count 1), possession of firearms while subject to a domestic violence order (Counts 2 through 5), and using and carrying a firearm during and in relation to a crime of violence (Count 6), in violation of 18 U.S.C. §§ 2119, 922(g)(8)(B), and 924(c), respectively. During pretrial proceedings, Cline moved to dismiss Counts 2-5, arguing that the "dismissal" of the April 2001 domestic violence petition removed any order then in force against him. In response, the government produced an affidavit from the issuing judge, which affirmed that the December 2000 order remained in effect after April 2001. The district court thereafter denied Cline's motion to dismiss, and granted a government motion to bar defense counsel from reasserting this argument at trial. Defense counsel then unsuccessfully moved to sever Counts 1 and 6 from the indictment.
The case proceeded to trial in February of 2002. A jury convicted Cline of Counts 1 through 5, and found him not guilty of Count 6, carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Over defense counsel's various objections, the district court sentenced Cline to 220 months in prison, three years of supervised release, and a special assessment of $500.
On August 2, 2002, Cline filed a timely notice of appeal.
Cline charges that the district court erred in four respects: (1) by accepting a state court judge's affidavit as evidence of the status of a domestic violence order; (2) by granting a motion in limine barring the defense from challenging the status of said order at trial; (3) by failing to sever Counts 1 and 6 from the indictment; and (4) in its various enhancements of Cline's sentence. Cline challenges the enhancements of two levels for carjacking, two levels for making a threat of death during a carjacking, and two levels for obstruction of justice. He also alleges that the district court improperly counted past convictions which may have been uncounseled.
Before the district court, Cline argued that he could not be found guilty of possessing firearms while subject to a domestic violence order (DVO), because the last order obtained by his wife had been marked as "dismissed." The government argued that the "dismissed" order (allowing contact with Marcum for purposes of an attempted reconciliation) was merely a modification of an existing and valid DVO, and that its dismissal did nothing to revoke the prior order. In his affidavit, the Martin County issuing judge supported the government's interpretation.
Cline cites no law in support of his proposition that accepting the affidavit of a state court judge as evidence of the status of a DVO violated his right to confront witnesses against him. Cline cannot challenge the affidavit itself because his counsel failed to properly preserve the issue for appellate review.
Generally, an appellant cannot raise a claim before the appellate court that was not raised below. In United States v. Bonds, 12 F.3d 540, 569 (6th Cir.1993), this Court held that a defendant waives his right to challenge the sufficiency of an affidavit when he fails to raise the challenge at the district court level. Id. at 569. Where a defendant does not challenge the evidence before the district court, he must demonstrate that admission of the evidence nonetheless constituted "plain error." See Fed.R.Evid. 103(a)(1) and (d); Fed.R.Crim.P. 52(b); United States v. Bray, 139 F.3d 1104, 1110 (6th Cir.1998).
To establish plain error, Cline must demonstrate that: (1) an error occurred; (2) the error was obvious or clear; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). An error that does not affect a defendant's substantial rights is harmless. See Fed.R.Crim.P. 52(a).
Here, it is clear that Cline's substantial rights were not affected. A defendant's right to confront witnesses at the pre-trial stage is substantially weaker than his right to do so at trial. United States v. Matlock, 415 U.S. 164, 173-75, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In ruling on the proper interpretation of the DVO, the district court was entitled to give the evidence presented such weight as its judgment and experience counseled. See id. at 175, 94 S.Ct. 988. Again, Cline points to no case in which such conduct was held to violate a defendant's rights under the confrontation clause.
Cline next challenges the district court's grant of the government's motion in limine. Cline contends that, because the status of the DVO was an element of the offenses charged in Counts 2 through 5, the district court was required to let the jury determine that status.
This court reviews a district court's decision to exclude evidence pursuant to a motion in limine for abuse of discretion. United States v. Phibbs, 999 F.2d 1053, 1078 (6th Cir.1993); see also ...
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