U.S. v. Doucette, 91-4994

• Decision Date: 09 December 1992
• Docket Number: No. 91-4994,91-4994
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Thomas DOUCETTE, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

979 F.2d 1042

UNITED STATES of America, Plaintiff-Appellee, v. James Thomas DOUCETTE, III, Defendant-Appellant.

No. 91-4994.

United States Court of Appeals Fifth Circuit.

Dec. 9, 1992.

Thomas P. Roebuck, Jr., Bush, Lewis, Ramsey & Roebuck, Beaumont, Tex., for defendant-appellant.

Melissa Baldo, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Dept. of Justice, Robert Rawls, Asst. U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, HIGGINBOTHAM, and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

James Thomas Doucette, III, appeals his conviction and sentence for possession of a firearm by a convicted felon. He argues that the government failed to comply with Fed.R.Crim.P. 16, that his allegedly involuntary confessions were erroneously admitted, and that the district court made an improper upward departure in sentencing him to twenty-five years imprisonment. We reject these contentions and affirm.

I.

On June 13, 1990, defendant James Thomas Doucette and Robert Wilkey robbed the home of a Victoria, Texas family. Doucette and Wilkey, who carried a .38 caliber handgun and a sawed-off shotgun, removed two guns, money, and jewelry from the home. They then drove to the home of Larry Craig in Liberty, Texas, where Wanda Faye, Doucette's wife, was staying at the time. Wanda Faye and Craig came out of house to speak to Doucette and Wilkey, who remained in the car. Once Craig noticed the guns, however, he grew suspicious and told his mother to call the police. When Craig warned that the police were on the way, Doucette and Wilkey immediately drove off. The police intercepted them and were able to arrest Wilkey and recover two guns that had been thrown from the car. Doucette, however, escaped.

Doucette was apprehended approximately one month later in Lumberton, Texas. On July 10, Lumberton Police Officer Odom observed a Corvette being driven in a reckless, erratic manner along the highway. When Officer Odom stopped the car, the driver, Doucette, attempted to evade him by crossing the highway median. The car, however, was struck by oncoming traffic and sent careening into a ditch. Doucette then fled on foot. The police found a loaded .38 caliber handgun with an altered serial number in the abandoned car; Doucette was discovered in the woods near the crash the next morning. Officer Odom recognized Doucette as the driver of Corvette and placed him under arrest. After he had received the Miranda warnings, Doucette admitted that he had fled the day before. Doucette gave a more detailed written statement at the police station in which he confirmed that he was the driver of the Corvette and admitted that he had been in possession of the handgun found in the car.

Doucette was first tried and convicted of auto theft and aggravated robbery in Texas state court. He was sentenced to 99 years imprisonment. Doucette was then transported to the United States District Court for the Eastern District of Texas for trial on five counts of illegal firearms possession. A jury found Doucette guilty on all five counts and the district court sentenced him to twenty-five years imprisonment.

II.

Doucette appeals his conviction and sentence. He urges that the government's failure to comply with Fed.R.Crim.P. 16 and the district court's erroneous admission of his allegedly involuntary confessions entitle him to a new trial. Doucette also contends that the district court made an improper upward departure in sentencing him to twenty-five years imprisonment. We find these objections meritless and affirm.

A.

Doucette argues that the government violated Fed.R.Crim.P. 16 in failing to disclose certain evidence before trial. In particular, he complains that the government withheld the substance of his oral confession, a fingerprint card, penitentiary packets listing his prior convictions, and reports from the Bureau of Alcohol, Tobacco and Firearms confirming that the guns found in his possession were unregistered. Since the district court declined to exclude any of this evidence, Doucette maintains that his conviction must be reversed. We review alleged discovery errors for abuse of discretion and will order a new trial only where a defendant demonstrates prejudice to his substantial rights. United States v. Ellender, 947 F.2d 748, 756 (5th Cir.1991); United States v. Garcia, 917 F.2d 1370, 1374 (5th Cir.1990).

We are not convinced that the government withheld any of the evidence in question. The government has represented that it did not receive the fingerprint card and Bureau of Alcohol, Tobacco and Firearms reports until the day of the trial. When the government introduced these records at trial, Doucette's counsel was given an opportunity to review the documents and object to their receipt into evidence. The government was in possession of the oral statement and the penitentiary packets well before trial and the record indicates that defense counsel was invited to the U.S. Attorney's Office to examine this evidence. Doucette's counsel, however, failed to appear on the scheduled date or anytime thereafter. Rule 16 requires only that the government permit the defendant to inspect the materials covered by this provision. ¹ For this reason, there can be no violation of Rule 16 where, as here, the defendant's lack of diligence is the sole cause of his failure to obtain evidence made available by the government. See United States v. Lambert, 580 F.2d 740, 745 (5th Cir.1978); see also Ellender, 947 F.2d at 757 ("where the defendant's own lack of reasonable diligence is the sole reason for not obtaining the pertinent material, there can be no Brady claim") (citing United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980)). The district court did not abuse its discretion in declining to exclude this evidence.

B.

Doucette next contends that the district court erred in refusing to suppress his allegedly involuntary oral and written statements. After he had been arrested and advised of his rights by Officer Odom, Doucette confessed that he was the driver that had fled the day before. Doucette gave a more detailed written statement to Police Chief Reynolds at the police station. This signed statement admitted that he was the driver of the Corvette and that he had possession of the gun found in the car. After conducting hearings pursuant to 18 U.S.C. § 3501, ² the district court admitted both statements.

A confession is voluntary if, under the "totality of the circumstances," the statement is the product of the accused's "free and rational choice." United States v. Rogers, 906 F.2d 189, 190 (5th Cir.1990); Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir.1980). "This Court must give credence to the credibility choices and findings of fact of the district court unless clearly erroneous." United States v. Raymer, 876 F.2d 383, 386 (5th Cir.), cert. denied, 493 U.S. 870, 110 S.Ct. 198, 107 L.Ed.2d 152 (1989). The ultimate issue of voluntariness, however, is a legal question, subject to de novo review. United States v. Menesses, 962 F.2d 420, 428 (5th Cir.1992) (citing Raymer, 876 F.2d at 386).

Doucette asserts that his written and oral statements were involuntary because he was denied necessary medical attention until he had confessed. Doucette suffered a serious laceration to his arm when his Corvette plunged into the ditch. Upon Doucette's arrival at the police station, one of Chief Reynolds' deputies cleaned and sterilized his wound. Doucette testified during the suppression hearing that he also made repeated requests to be taken to the hospital. According to Doucette, Chief Reynolds conditioned additional medical treatment on his willingness to sign the written confession. Chief Reynolds offered a different version of these events at the suppression hearing. He testified that nothing was promised Doucette in return for his inculpatory statement and that Doucette in fact declined several offers to go to the hospital or to see a doctor. This sharply conflicting testimony left the district court with a credibility choice, which it resolved in favor of the government. We cannot say that the district court's decision to believe the police rather than Doucette was clearly erroneous. Since there is no evidence of coercion beyond Doucette's own discredited testimony, we must affirm the district court's determination that his confession was given voluntarily.

C.

Doucette finally contends that the district court made an improper upward departure in sentencing him to twenty-five years imprisonment. The jury found Doucette guilty on all five counts alleged in the indictment, including the possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). The district court determined that the offense level for the counts of conviction was twenty. Since Doucette's criminal history category was VI, this produced a sentencing range of 70-87 months under the guidelines. The court noted, however, that 18 U.S.C. § 924(e) mandates a minimum sentence of fifteen years for a defendant with at least three prior convictions for violent felonies found guilty of illegal gun possession under 18 U.S.C. § 922(g). Since this statutorily required minimum sentence exceeded the maximum guideline sentence, Doucette's guideline sentence became fifteen years. U.S.S.G. § 5G1.1(b). We do not understand Doucette to challenge the district court's imposition of an enhanced sentence of fifteen years pursuant to § 924(e).

Doucette does object to the district court's ten-year upward departure from the guideline sentence of fifteen years. The government sought to enhance Doucette's sentence on the basis of his status as a career offender under § 4B1.1. The presentence report found this provision applicable because (1) Doucette was at least eighteen at the time of the instant offense, (2) the instant offense was a crime of violence, and (3) Doucette had at...