U.S. v. Gillings, 97-3117
| Citation | 156 F.3d 857 |
| Decision Date | 23 September 1998 |
| Docket Number | No. 97-3117,97-3117 |
| Parties | UNITED STATES of America, Appellee, v. Calvin C. GILLINGS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Alfredo Parrish, Des Moines, IA, argued, for Appellant.
Clifford D. Wendel, Assistant U.S. Attorney, Des Moines, IA, argued, for Appellee.
Before McMILLIAN, MAGILL and MURPHY, Circuit Judges.
Calvin C. Gillings appeals from a final order entered in the United States District Court 1 for the Southern District of Iowa, upon a jury verdict, finding him guilty of possession with intent to distribute cocaine base and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced defendant to a total of 360 months imprisonment, 8 years supervised release, and a special assessment of $100.00. For reversal, defendant argues the district court erred in denying his motions to dismiss or for mistrial or sanctions because the government failed to disclose exculpatory evidence in a timely manner and the evidence was insufficient to support the conviction. For the reasons discussed below, we affirm the judgment of the district court.
The district court had original jurisdiction over this criminal case under 18 U.S.C. § 3231. Defendant filed a timely notice of appeal under Fed. R.App. P. 4(b). We have jurisdiction over the appeal under 28 U.S.C. § 1291.
On April 4, 1996, defendant was visiting his friends, Odis and Paula Carter, in Clinton, Iowa. The police suspected the Carters were involved in drug trafficking. At about 9:00 p.m. the police arrived at the Carter house and saw a blue Pontiac Grand Prix parked in the driveway. The police knocked on the door and were admitted by Paula Carter. Defendant and three children were sitting on the living room sofa. The police wanted to speak to Odis Carter. Paula Carter called Odis Carter, who came upstairs from the basement and went into a bedroom to talk to the police.
According to one police officer, defendant was wearing jeans, a denim jacket and a stocking cap. Another officer, however, testified The police subsequently questioned defendant. Defendant admitted leaving the house and going to the car. The police searched defendant and found 1 gram of cocaine base in his pants pocket and the keys to the car on a key ring attached to defendant's belt. Defendant told the police that the pants and the cocaine base were not his. The police also found $892 in cash in defendant's possession. Defendant explained that the money represented his pay and a tax refund. The police then asked defendant for consent to search the Pontiac Grand Prix parked in the driveway. Defendant told the police that the car belonged to his sister. The police obtained a search warrant for the car and found in the trunk a blue and white flannel jacket. Inside the jacket the police found cocaine in two plastic bags and a film canister.
that he had not seen defendant wearing a jacket. After talking to Odis Carter, the police noticed that defendant was still sitting in the living room but was no longer wearing a jacket. One police officer believed defendant had removed his jacket. The police left the house to get a consent-to-search form from their patrol car. While they were outside, a neighbor, Mr. George Chermay, approached them and told them that, while they were inside the house, he saw someone whom he described as 5'9" to 6' tall come out of the house and put a jacket in the trunk of a car. Defendant is 5'5" tall. Chermay later identified defendant as that person.
Meanwhile, in the basement of the house, the police found Mr. Liebert and Ms. Culberson, inositol (a cutting agent), cocaine base, and cocaine base residue. The police arrested defendant, Odis Carter and Ms. Culberson for possession of a controlled substance.
At the trial Odis and Paula Carter testified for the government. Another neighbor, Carol Dietrick, testified that she saw someone go outside while the police were inside the Carter house. The person was not wearing a jacket. Ms. Dietrick also testified that there was a lot of traffic at the Carter house. Another neighbor, Robert Shaw, testified that he had begun keeping notes about the license plates of the cars that stopped by the Carter house.
Defendant was indicted and charged with possession with intent to distribute cocaine base and possession with intent to distribute cocaine. The case was tried to a jury. After the jury had been sworn, the government presented defense counsel with a laboratory report that stated that no latent fingerprints had been found on the plastic bags or the film canister found in the jacket taken from the trunk of the Pontiac Grand Prix. The government had apparently known about the laboratory report for about two weeks. Defense counsel requested a continuance. The district court granted a half-day continuance. The government then gave defense counsel 5 photographs of fingerprints taken from plastic bags found during a search of Ms. Heather Walton's apartment some 2 months after the search of the Carter house and the Pontiac Grand Prix. The government suspected that Ms. Walton was connected to defendant's drug trafficking. The fingerprints were not identified as defendant's. Defense counsel filed motions to dismiss or for mistrial or sanctions. The district court denied the motions. The jury found defendant guilty on both counts. The district court denied defendant's post-trial motions and sentenced defendant to a total of 360 months imprisonment, 8 years supervised release and a special assessment of $100.00. This appeal followed.
Defendant first argues the district court erred in denying his motions to dismiss or for mistrial or sanctions because the government failed to disclose material exculpatory evidence in a timely manner. Defendant argues the government improperly delayed producing the laboratory report about the fingerprints and the 5 fingerprint photographs. Defendant argues he was prejudiced by the government's failure to disclose the laboratory report and fingerprint photographs in a timely manner because he was unable to match the fingerprints to Liebert, Ms. Culberson, Odis Carter, or Ms. Walton. He argues that the half-day continuance was too short to contact an expert or to subpoena Ms. Walton.
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