U.S. v. Gulley, 06-41528.

• Citation: 526 F.3d 809
• Decision Date: 30 April 2008
• Docket Number: No. 06-41528.,06-41528.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arzell GULLEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

526 F.3d 809

UNITED STATES of America, Plaintiff-Appellee, v. Arzell GULLEY, Defendant-Appellant.

No. 06-41528.

United States Court of Appeals, Fifth Circuit.

April 30, 2008.

Traci Lynne Kenner, Asst. U.S. Atty. (argued), Tyler, TX, Joseph R. Batte, Asst. U.S. Atty., Beaumont, TX, for U.S.

Zachary Joseph Hawthorn (argued), Law Office of Joseph C. Hawthorn, Beaumont, TX, for Gulley.

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

Before KING, DeMOSS and SOUTHWICK, Circuit Judges.

PER CURIAM:

The opinion previously filed in this case, United States v. Gulley, 2008 WL 932285 (5th Cir. April 8, 2008), is withdrawn and the following is substituted.

On April 20, 2005, Arzell Gulley was charged in a two-count indictment. Count One charged Gulley with the murder of Daryl Brown in violation of 18 U.S.C. § 1111, and aiding and abetting Brown's murder in violation of 18 U.S.C. § 2. Count Two alleged that Gulley possessed a dangerous weapon in a federal prison in violation of 18 U.S.C. § 930(c). A jury found Gulley guilty of both counts on June 28, 2006. Gulley now appeals, arguing that his conviction should be reversed because: (1) there was insufficient evidence to prove guilt; (2) the district court improperly excluded evidence of Brown's specific prior acts of violence; (3) the district court refused to conduct an in camera hearing to determine whether his due process rights were violated as a result of pre-indictment delay; (4) he received ineffective assistance of counsel; and (5) he was not present when the district court instructed the jury to continue deliberating. Finding no reversible error, we affirm.

I. BACKGROUND

Arzell Gulley and his original co-defendant, David Jackson, were federal inmates incarcerated in the United States Penitentiary, Beaumont, Texas ("USP-Beaumont"). Between 5:00 p.m. and 8:30 p.m., the inmates at USP-Beaumont are free to intermingle with each other outside their housing units in an area referred to as the "compound." On December 16, 1999, at approximately 6:00 p.m., Gulley and Jackson began arguing with another inmate, Daryl Brown, while in the compound.

The evidence concerning the initial events conflicted, but it was undisputed that it ended with Gulley and Jackson chasing Brown into Housing Unit 3B-1 while carrying shanks. Each housing unit at USP-Beaumont, including Unit 3B-1, was equipped with surveillance cameras. Camera footage from six different cameras showed that Gulley and Jackson chased Brown throughout Unit 3B-1 until Brown ran into cell number 125. Gulley and Jackson, in that order, followed Brown into the cell. Inmates Jerome Prince and Victor Richards quickly exited the area after Gulley and Jackson entered the cell.

A fight ensued inside the cell, although the surveillance cameras were unable to capture images of the occupants from the waist up. After approximately thirty seconds, Gulley and Jackson walked out of cell number 125, leaving Brown lying on the floor. They proceeded in different directions, but were approached by correctional staff and complied with orders to lay down on the floor. A correctional officer later found a shank on a chair close to where Gulley lay on the floor.

While Gulley and Jackson were lying on the ground, Brown exited the cell, bleeding profusely from his neck and chest and holding Jackson's weapon. He advanced towards Jackson, but collapsed. Brown was taken to an area hospital where he was pronounced dead. It was concluded in the autopsy report that Brown suffered from eleven knife wounds, but a single strike that pierced the upper lobe of his left lung and the pericardial sac of his aorta caused his death.

The Government did not bring charges against any defendant based on these events until November 19, 2003, when Gulley and Jackson were indicted for unlawful possession of weapons in a federal prison. That indictment was voluntarily dismissed by the Government on February 17, 2004. Over a year later, on April 20, 2005, Gulley and Jackson were re-charged in this case in a two-count indictment. Count One alleged premeditated murder in violation of 18 U.S.C. § 1111, and aiding and abetting premeditated murder in violation 18 U.S.C. § 2. Count Two alleged that Gulley and Jackson possessed dangerous weapons in a federal prison in violation of 18 U.S.C. § 930(c). On March 16, 2006, Gulley filed a motion to sever his trial from Jackson's, arguing that it would prejudice his case to try him with Jackson, who he claimed bore sole responsibility for Brown's death. The district court granted the motion on April 6, 2006.

On April 18, 2006, Gulley filed a motion to dismiss the case for pre-indictment delay and requested discovery and a hearing on the motion so that he could show that: (1) the Government intentionally delayed the prosecution to gain a tactical advantage; and (2) he was prejudiced by the delay. On April 25, 2006, the Government responded that "[t]he reason for the delay in this case involved investigative and prosecutorial resources, scientific testing procedures, and the Department of Justice's Protocol on the prosecution of death penalty eligible cases." Rather than prejudicing Gulley, the Government contended that as a result of the delay the prosecution decided not to seek the death penalty. Moreover, the Government asserted that the motion should be denied because there was no evidence of any prejudice to Gulley. On May 12, 2006, the district court decided to carry the motion forward until the end of the trial in order to better assess whether Gulley suffered prejudice. The court reasoned that while the Government's delay was "curious and wondering, that doesn't mean it [was] prejudicial necessarily." The district court did not permit any discovery into the Government's prosecutorial decisionmaking and refused to hold an in camera hearing.

On June 1, 2006, the Government filed a motion in limine to exclude any reference to specific acts of violence previously committed by Brown, other than opinion or reputation testimony, unless Gulley had actual knowledge of the acts before the attack. On June 14, 2006, Gulley filed a response arguing that while he "under[stood] that specific acts of misconduct committed by Brown at other institutions or on other days may well be inadmissable," he ought to be able to introduce testimony of specific acts Brown committed on the day of his death in order to support a self defense claim. Specifically, Gulley sought to show that: (1) Brown threatened another inmate around four to six hours before his death; (2) Brown approached an inmate and requested weapons for Brown's associates; and (3) Brown had a knife in his hand immediately before the altercation broke out in the compound. On June 14, 2006, the district court granted the motion in limine generally, and specifically prohibited Gulley from introducing evidence that Brown allegedly assaulted another inmate or sought to procure weapons on the day of his death. The district court reasoned that the evidence was inadmissible because Gulley did not contend that he had actual knowledge of those acts. On the other hand, as the Government conceded, the district court ruled that Gulley could introduce evidence that Brown had a knife immediately before the fight began.

Gulley's seven-day trial began on June 19, 2006. The Government offered testimony from correctional officers who observed Gulley and Jackson in a verbal altercation with Brown just outside Unit 3B-1 in the compound. Brown, who the correctional officers testified was unarmed and acting alone, took off his jacket and shirt and assumed a fighting position. Officer Chopane then heard Jackson yell "let's get that mother fucker," whereupon both Gulley and Jackson pulled shanks. The officers all testified that Brown began to flee and that Gulley and Jackson chased him into Unit 3B-1. None of the officers saw any other inmates participating in the fight or taking any other type of aggressive action.

The Government also showed the jury footage from the six surveillance cameras, which captured Brown's flight down the corridors of Unit 3B-1. Gulley and Jackson could both be seen at various times holding objects in their hands; Brown did not appear to be holding a shank or other weapon. One of the video tapes showed Brown pausing from his flight at one point to pick up a microwave, which he threw at Jackson. He then continued to run into cell number 125, with Gulley and Jackson entering after him. Although the video only captured images of the inmates from the waist down once they entered the cell, it appeared that Brown was finally cornered against the far wall of the cell.

Inmate Prince, who could be seen in the video footage with inmate Richards evacuating the area of cell number 125, also testified at the trial. He stated that while he was standing outside of cell number 125, Brown fled into it and Gulley and Jackson followed him in. Moreover, Prince testified that as Gulley and Jackson approached the cell, Gulley told him: "we're going to kill this nigger, get out of here." Prince did not see Brown killed because he quickly left the area, but he testified that he did observe Brown crawling on the ground of the cell, trying to escape from Gulley and Jackson.

The Government's expert witness, Dr. Tommy Brown, testified that Brown was fatally wounded when a blade pierced the medial aspect of his lung and his aorta. There was no evidence that Gulley's shank had any of Brown's blood on it, although DNA analysis confirmed that his gloves and pants were stained with trace amounts of Brown's blood. Dr. Brown opined on direct examination that the shank possessed by Jackson was the weapon that caused the fatal wound, although it was possible that the shank found near Gulley inflicted three of Brown's more minor wounds. On cross-examination, Dr. Brown conceded that in his professional opinion Jackson's blade caused all of the wounds.

Finally, in...