U.S. v. Custis

Citation988 F.2d 1355
Decision Date30 April 1993
Docket Number92-5212,Nos. 92-5211,s. 92-5211
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Darren J. CUSTIS, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Darren J. CUSTIS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Thomas Michael DeBiagio, Asst. U.S. Atty., Baltimore, MD (Richard D. Bennett, U.S. Atty., Robert E. Sims, Asst. U.S. Atty., on brief), for appellant.

Mary Melissa French, Asst. Federal Public Defender, Baltimore, MD (Anthony R. Gallagher, Acting Federal Public Defender, on brief), for appellee.

Before RUSSELL and WILKINSON, Circuit Judges, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

In this case, Darren Custis claims (1) that he is entitled to a new trial on the basis of newly discovered impeaching evidence; (2) that he is entitled to have the constitutionality of several predicate state convictions considered in his federal sentencing proceeding; and (3) that his prior conviction for attempted breaking and entering should not have been defined as a violent felony for purposes of the sentencing enhancement under 18 U.S.C. § 924(e). For the reasons that follow, we reverse the district court's granting of a new trial and remand this case with instructions to reinstate the judgment of conviction. We find no error, however, in that court's treatment of the defendant's predicate state convictions, nor in its determination that defendant was eligible for sentence enhancement as an armed career criminal. We thus affirm the sentence imposed upon defendant.

I.

Darren Custis was arrested on July 1, 1991 by Baltimore City Police Officers Christopher Wade and John Mohr. Pursuant to "Operation Triggerlock," a federal effort to crack down on the use of firearms by convicted felons, Custis was indicted by a federal grand jury on three counts: (1) possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) use of a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The government gave notice that it would seek an enhanced penalty for the section 922(g)(1) offense under 18 U.S.C. § 924(e)(1), which provides for a minimum fifteen-year sentence for defendants who have three prior convictions for a violent felony or a serious drug offense. The notice listed state convictions for burglary, attempted burglary, and robbery as predicate offenses for the sentence enhancement.

At trial, three Baltimore City Police Officers testified on behalf of the government: the arresting officers, Christopher Wade and John Mohr, and an officer who interviewed Custis the morning after his arrest, Louis Hopson. Wade testified that at around 5:00 P.M. on July 1, he and Mohr approached the intersection of Springhill Avenue and Towanda, an area known to be the site of extensive drug dealing. Four or five individuals were standing on the corner in front of a convenience store, the Springhill Market. As the officers approached, one of the individuals called out "5-0," a warning that police officers were nearby. Custis went into the Springhill Market, and the officers followed.

Wade testified that he heard a "loud thump" just before he entered the store. As he entered, Custis was coming up from a crouched position between two video machines. Wade ordered Custis to stop and told Mohr, who was entering behind him, to hold Custis. Wade then investigated the area where Custis had been standing and found a .38 caliber Smith & Wesson revolver. The officers then arrested Custis. As he was being arrested, Custis dropped a small bag of cocaine and said "OK, you got it." Wade then looked around the video machines, where he found eighteen additional bags of cocaine. Custis asked Wade for what he was being arrested, and Wade told him that he was being arrested for possessing cocaine and a handgun. According to Wade, Custis responded, "I will take the cocaine charges but I'm not taking the gun charge." Officer Mohr largely corroborated Wade's testimony.

Officer Hopson testified that he interviewed Custis the morning after his arrest. According to Hopson, Custis initially denied that the gun and drugs were his, but he later admitted that the gun was his and that he worked as an "enforcer" for a drug dealer named "Easy." Hopson did not take a written statement from Custis.

Custis testified on his own behalf. He admitted purchasing the one bag of cocaine in his possession when he was arrested, but denied possessing the gun or the remaining eighteen bags of cocaine. Custis claimed that he had dropped the one bag of cocaine and was picking it up when Wade stopped him. Custis acknowledged that he told Wade he would take the drug charge but not the gun charge. Custis claimed, however, that he meant only the one bag of cocaine that he dropped while being arrested. Custis also denied telling Hopson that the gun was his or that he worked as an "enforcer."

The jury found Custis not guilty of possession with intent to distribute and not guilty of use of a firearm during a drug offense, but found him guilty of possession of a firearm and simple possession of cocaine, a lesser included offense of the charge of possession with intent to distribute cocaine.

After trial, but before sentencing, Officers Wade and Mohr were indicted in state court for perjury in securing a search warrant in an unrelated case. That indictment alleged that the officers had falsely stated that a substance suspected to be cocaine had been submitted to the Evidence Control Section of the Baltimore City Police Department for chemical analysis. The evidence had not been submitted until after the warrants had been obtained and executed. Based on this indictment, Custis moved for a new trial. The district court deferred ruling on this motion until the sentencing hearing.

At the sentencing hearing, the government moved to have Custis's sentence enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on the prior convictions included in the notice of sentence enhancement. In response, Custis claimed that two of his prior convictions had been unconstitutionally obtained. He argued that his counsel for his 1985 burglary conviction was unconstitutionally ineffective and that his guilty plea was not knowing and intelligent. Custis also alleged that the 1989 conviction violated due process because he was not adequately advised of his rights before entering a plea. Custis further claimed that the 1989 conviction was for attempted breaking and entering rather than attempted burglary and thus was not a violent felony. The district court declined to hear Custis's arguments that two of his prior convictions had been unconstitutionally obtained, and found that all three convictions were for violent felonies, thus making him eligible for the sentence enhancement under section 924(e)(1). United States v. Custis, 786 F.Supp. 533, 537 (D.Md.1992).

After determining Custis's sentence, the district court heard his motion for a new trial based on newly discovered evidence. Fed.R.Crim.P. 33. The motion was based on the perjury indictments of Wade and Mohr. Finding that the indictments sufficiently undercut the credibility of those officers so as to justify a new trial, the district court granted Custis's motion. 786 F.Supp. at 538.

Subsequent to the district court's grant of the new trial, however, the state entered a nolle prosequi (equivalent to a dismissal without prejudice) in the Circuit Court of Baltimore City dismissing all charges against Wade and Mohr. The government then filed a motion with the district court to reconsider its grant of a new trial, but because the government had already appealed that motion to this court, the district court concluded that it lacked jurisdiction over the government's motion.

We have before us now the government's appeal of the district court's grant of a new trial and Custis's cross-appeal of his sentence enhancement under section 924(e). We address these questions in turn.

II.

The district court granted Custis's motion for a new trial on the basis of the indictments of Mohr and Wade for perjury in an unrelated case. The standard for granting a new trial is well established in this circuit:

(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.

United States v. Bales, 813 F.2d 1289, 1295 (4th Cir.1987) (quoting Mills v. United States, 281 F.2d 736, 738 (4th Cir.1960) (citations omitted)). On its face, the evidence offered by Custis fails to meet this standard--it is "merely impeaching." This circuit has emphasized that new evidence going only to the credibility of a witness does not generally warrant the granting of a new trial. United States v. Stockton, 788 F.2d 210, 220 (4th Cir.1986) (citing United States v. Williams, 415 F.2d 232, 233-34 (4th Cir.1969)).

While we have found no exception in this circuit to the general rule that a motion for a new trial requires a defendant to establish each of the five elements, see United States v. Chavis, 880 F.2d 788, 793 (4th Cir.1989), we need not rule that there can never be such an exception. There may be an exceptional "rare case" that would justify granting a new trial solely on the basis of newly discovered impeachment evidence. See United States v. Taglia, 922 F.2d 413, 415-16 (7th...

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