U.S. v. Garner

• Citation: 32 F.3d 1305
• Decision Date: 19 August 1994
• Docket Number: 93-3362,Nos. 93-2857,s. 93-2857
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nolden GARNER, Jr., also known as William H. Hill, Robert Williams, Junior Gardner, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1305

32 F.3d 1305

UNITED STATES of America, Plaintiff-Appellee, v. Nolden GARNER, Jr., also known as William H. Hill, Robert

Williams, Junior Gardner, Defendant-Appellant.

Nos. 93-2857, 93-3362.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1994.

Decided Aug. 19, 1994.

Michael P. Joyce, Kansas City, MO, argued, for appellant.

J. Daniel Stewart, Kansas City, MO, argued (Carla B. Oppenheimer and David DeTar Newbert, on the brief), for appellee.

Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and KOPF, District Judge ^*.

HANSEN, Circuit Judge.

Nolden Garner, Jr., appeals his conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. Sec. 922(g), and the district court's ¹ enhancement of his sentence for three previous violent or drug-related felony convictions pursuant to 18 U.S.C. Sec. 924(e). Garner argues that his conviction should be reversed because the charges against him violated the Sixth Amendment's speedy trial clause and the Fifth Amendment's double jeopardy clause and because the district court erred in admitting evidence of more than one of his prior convictions. Garner also argues that the district court improperly applied Sec. 924(e) in enhancing his sentence. We affirm his conviction, vacate his sentence, and remand for resentencing.

I.

Most of the relevant facts are not in dispute. On September 8, 1990, the Kansas City, Missouri, Police apprehended and arrested Garner following his participation in an armed robbery. He was charged in the Circuit Court for Jackson County, Missouri, with robbery in the first degree and armed criminal action. On September 24, 1990, he pleaded guilty to the reduced charge of robbery in the second degree and was sentenced to two years in state custody. The armed criminal action charge was dismissed with prejudice.

At the time of the robbery, Garner was on federal parole for a 1985 drug conviction. Prior to the robbery, his supervising federal probation/parole officer had applied to the Parole Commission for a warrant for Garner's arrest as a parole violator for failing to report as directed, unauthorized drug use, and failure to successfully complete drug treatment. Presentence Investigation Report (PSIR) at 13; Gov't Adden. A-17. Such a warrant was issued in mid-August 1990, but before it could be executed, Garner was arrested on the state robbery charges. The mid-August parole violator's warrant was lodged with the state authorities as a detainer by the United States Parole Commission. PSIR at 13. Garner remained in state custody until July 5, 1991, when he was paroled by the Missouri Department of Corrections and picked up by the United States Marshals pursuant to the mid-August 1990 parole violator's warrant. Id. His federal parole was revoked on September 4, 1991, and he was confined in a federal prison at the time of his indictment and trial on the instant felon in possession of a weapons charge. Id.

Also in October 1990, the federal probation/parole officer referred the case to the Department of Alcohol, Tobacco and Firearms (ATF) and the United States Attorney's Office to consider it for prosecution as a felon in possession of a firearm case. ATF began investigating the case and assigned it to ATF Special Agent Cindy Grob in November 1990. Due to her workload, she was not able to complete the investigation until August 1992, when she turned the case over to the United States Attorney's Office for prosecution. The United States Attorney's Office filed a federal complaint on September 15, 1992, charging Garner with being a felon in possession of a firearm. On September 21, 1992, a federal grand jury returned an indictment charging Garner with being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g) and 924(e). A superseding indictment incorporating additional information was filed on November 18, 1992, and recharged Garner with the violations presented in the original indictment.

Garner filed pretrial motions to dismiss the charges against him based on preindictment delay in violation of the Fifth Amendment's due process clause, a claimed violation of the Fifth Amendment's double jeopardy clause, a claimed violation of the Sixth Amendment's right to a speedy trial, and a violation of Fed.R.Crim.P. 48(b). A United States Magistrate Judge ² held a three-day hearing on Garner's motions to dismiss and ultimately filed reports and recommendations to deny all of the motions. The district court ³ adopted the reports and recommendations and denied the motions to dismiss.

Garner went to trial before a federal jury in April 1993. The jury found Garner guilty of the felon in possession of a firearm charge. On July 7, 1993, the district court sentenced Garner as an armed career criminal under 18 U.S.C. Sec. 924(e) after finding that he had committed the following three prior violent felonies or drug related offenses: (1) A 1971 conviction for first-degree robbery; (2) a 1975 plea of guilty to felonious assault; and (3) a 1985 conviction for conspiracy to distribute heroin and cocaine. The district court imposed the mandatory 15-year sentence under Sec. 924(e). At one point during the July 7 1993, sentencing hearing, the district court stated that Garner's sentence would run "concurrent" with any of Garner's other sentences. However, when imposing the sentence and judgment, the district court stated that the sentence would run "consecutive" to any of Garner's other sentences. In the written judgment filed July 8, 1993, the district court also stated that the sentence imposed would run "consecutive" to any of Garner's other sentences.

After the potential discrepancy on whether the sentence would run "concurrent" or "consecutive" to Garner's other sentences was brought to the district court's attention, the district court, at the defendant's request, scheduled a resentencing hearing for September 13-14, 1993. Before the resentencing, Garner filed renewed objections to the PSIR, challenging the use of his 1971 and 1975 convictions for the sentencing enhancement under Sec. 924(e). At the sentencing hearing, the district court found that it could not use the 1971 conviction for the Sec. 924(e) enhancement. Instead, the district court, at the government's suggestion and over Garner's objection, used the September 1990 conviction for second-degree robbery as the third violent felony or drug conviction to impose the Sec. 924(e) enhancement. The district court again imposed the 15-year sentence under Sec. 924(e) and stated that the sentence would run consecutive to Garner's other state and federal sentences. Garner appeals.

II.

Garner first argues that the district court erred in denying his motion to dismiss the indictment for violating his right to a speedy trial under the Sixth Amendment. Garner asserts that the government caused an unreasonable preindictment delay resulting in a violation of his right to a speedy trial. The Sixth Amendment's speedy trial clause provides, "In all prosecutions, the accused shall enjoy the right to a speedy and public trial...." The protection of the speedy trial clause "is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). ⁴

The district court found that Garner was not "accused" on the felon in possession of a firearm charge until he was formally charged in the criminal complaint filed on September 15, 1992, which was followed by the indictment on September 21, 1992. The district court concluded that his Sixth Amendment right to a speedy trial did not attach until September 15, 1992, that there was no undue delay between "accusation" and trial and, therefore, that there was no speedy trial violation. Garner does not argue that the time that elapsed between the filing of the September 15, 1992, criminal complaint and the time he went to trial in April 1993 constitutes a speedy trial violation. Instead, he argues that the district court erred in finding that he was not "accused" until the government filed the criminal complaint.

A.

Garner first contends that he was federally "accused" from the moment the federal authorities became involved, either immediately after he was arrested in September 1990 or in October 1990, when the case was referred to ATF and the United States Attorney. He contends the delay of approximately 30 months between the initial federal involvement in September 1990 and his trial in April 1993 constitutes a speedy trial violation.

A person is "accused," and the Sixth Amendment speedy trial protection is engaged, by "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." Marion at 320, 92 S.Ct. at 463. "[W]hen no indictment is outstanding, only the 'actual restraints imposed by arrest or holding to answer a criminal charge' " engage the speedy trial protection. United States v. Loud Hawk, 474 U.S. 302, 310, 106 S.Ct. 648, 653, 88 L.Ed.2d 640 (1986) (quoting Marion, 404 U.S. at 320, 92 S.Ct. at 463). Here, at the time the federal authorities became involved in Garner's case, the only actual restraint on his liberty was his arrest on the state charges. The arrest on state charges does not engage the speedy trial protection for a subsequent federal charge. United States v. Brown, 605 F.2d 389, 395 (8th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979); see also United States v. MacDonald, 456 U.S. 1, 10 n. 11, 102 S.Ct. 1497, 1503 n. 11, 71 L.Ed.2d 696 (1982) ("Of course, an arrest or indictment by one sovereign would not cause the speedy trial guarantee to become engaged as to possible subsequent indictments by another sovereign."); United States v. Beede, 974 F.2d 948, 950-51 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1016, ...