U.S. v. Hill

• Decision Date: 16 April 1998
• Docket Number: No. 96-3843,96-3843
• Citation: 142 F.3d 305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John A. HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 305

142 F.3d 305

UNITED STATES of America, Plaintiff-Appellee, v. John A. HILL, Defendant-Appellant.

No. 96-3843.

United States Court of Appeals Sixth Circuit.

Argued Feb. 6, 1998.

Decided April 16, 1998.

Joseph P. Schmitz, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Cleveland, OH, for Plaintiff-Appellee.

John J. Gideon (argued and briefed), Columbus, OH, John Hill, Leavenworth, KS, for Defendant-Appellant.

Before: CONTIE, BATCHELDER, and MOORE, Circuit Judges.

OPINION

CONTIE, Circuit Judge.

Defendant-appellant, John A. Hill, appeals his conviction and sentence for violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1).

I.

In April 1995, according to information provided to the Caribbean Gang Task Force, a confidential informant stated that defendant was involved in drug trafficking, was known on the street as "Smoke," and drove an old blue Chevrolet in transporting drugs. During the course of the investigation, defendant was observed in a blue 1983 Chevrolet registered to his sister, Carmella M. Hill. The confidential informant stated that defendant was known to regularly traffic drugs at a house on East 61st Street in Cleveland, Ohio. Cleveland Police detective James Muhic conducted periodic surveillance of defendant's residence over the three months prior to execution of a search warrant. The surveillance revealed that defendant departed from his residence at 3836 East 149th Street and went to the house on East 61st Street, which was a location with sporadically heavy vehicular traffic. Individuals would arrive at East 61st Street, would be met by defendant or other persons, and would stay for only a few moments before leaving, which was activity indicative of drug trafficking.

On July 17, 1995, the police decided to check the trash in front of defendant's residence for evidence of drug trafficking. The police removed two garbage bags from the tree lawn, and after Muhic examined their contents, he found a small plastic bag which contained marijuana residue. He obtained an initial search warrant based on this evidence, but never executed this warrant as he was unsure whether he had sufficient probable cause. On July 24, 1995, two more garbage bags were taken from the tree lawn of defendant's residence. In one bag the police found small plastic bags with the corners cut out, an indication of packaging "eight balls," one-eighth of an ounce of "crack." They also removed razor blades with cocaine residue, a plastic bag with cocaine residue, and correspondence addressed to defendant. The confidential informant had indicated that defendant kept drugs, money, and weapons on the third floor and in the basement of his residence.

On July 24, 1995, a Cuyahoga County Common Pleas judge authorized a second search warrant for defendant's premises and car. At approximately 1:30 p.m., defendant was observed in a 1983 Chevrolet, traveling at a high rate of speed. He was stopped, searched, and presented with copies of search warrants for the vehicle and for his residence. After being detained, he gave keys to the officers for access to his residence. At approximately 2:43 p.m., officers and agents of the Caribbean Drug Task Force executed the search warrant.

Defendant was taken to his residence where he directed officers to the bedroom of his sister Carmella. He indicated this room was his bedroom, but the only clothing found in the room was women's clothing. The third floor attic room was padlocked, but officers gained access with a key found on defendant's key ring. The police seized from the attic bedroom approximately 78 grams of crack cocaine base, approximately 4.4 kilograms of marijuana, a bulletproof vest, an Acculab scale with cocaine residue, a beaker containing cocaine residue, a blender containing marijuana residue, and other drug paraphernalia. They also seized numerous receipts and records establishing the identity of defendant with the residence and a loaded 9mm semi-automatic pistol and a box of 9mm ammunition rounds. They recovered a pager and $1,908 from defendant's person.

Defendant maintained that the drugs were not his and that he had been in Detroit prior to the execution of the warrant from July 22nd to 23rd and did not return to Cleveland until early in the morning of July 24, 1995. He alleged that others had access to his house, including the informant who defendant believed had set him up in order to arrange for a plea bargain in his own case. Defendant also blamed the arresting officer, Officer Muhic, for setting him up because Muhic had previously arrested defendant on a murder charge and allegedly had been angry when the murder charge was subsequently dropped.

On August 16, 1995, a federal grand jury returned a three-count indictment against defendant. In Count One, he was charged with knowingly possessing with intent to distribute approximately 78.47 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). In Count Two, he was charged with knowingly possessing with intent to distribute approximately 4.4 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). In Count Three, he was charged with unlawfully possessing 57 rounds of 9mm ammunition in violation of 18 U.S.C. § 922(g)(1).

On September 13, 1995, the government filed an information pursuant to the provisions of 21 U.S.C. § 851(a) to give notice of its intent to rely on the sentencing provisions of 21 U.S.C. § 841(b)(1)(A) to seek an enhanced sentence because of two prior felony drug convictions--one in which defendant was convicted of drug abuse on November 27, 1989 in violation of Ohio Rev.Code § 2925.11, and the second in which defendant was convicted of trafficking cocaine on November 27, 1989 in violation of Ohio Rev.Code § 2925.03.

Defendant made a motion to suppress the items seized from his residence and car, claiming that the search warrant was invalid because the supporting affidavit provided by Detective Muhic contained false statements. The district court denied this motion.

The case proceeded to trial on March 18, 1996. The drug charges set forth in Counts One and Two of the indictment were submitted to the jury on March 22, 1996, and the jury returned verdicts of guilty on both these counts. Pursuant to a prior agreement, the district court, sitting as the trier of fact on Count Three, found defendant guilty of Count Three.

At sentencing, the district court, as mandated by the penalty provisions of 21 U.S.C. § 841(b)(1)(A)(viii), sentenced defendant to a term of life imprisonment on Count One. The district court imposed ten-year concurrent sentences for his convictions on Counts Two and Three. Defendant filed a timely notice of appeal.

II.

Defendant raises for the first time on appeal an ineffective assistance of counsel claim, which was never presented to the district court. Defendant argues that his trial counsel's revelations about a prior gun conviction and murder charge constituted ineffective assistance of counsel, requiring reversal of his conviction.

It has been clearly established that an appellate court generally "will not review an ineffective assistance of counsel claim that is raised for the first time on appeal." United States v. Straughter, 950 F.2d 1223, 1234 (6th Cir.1991), cert. denied, 502 U.S. 1119, 112 S.Ct. 1238, 117 L.Ed.2d 471 (1992). Such claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 before the district court in which the parties "can develop an adequate record on the issue." United States v. Daniel, 956 F.2d 540, 543 (6th Cir.1992). Although there is a limited exception to this rule, when the record is adequate to assess the merits of the defendant's allegations, we do not believe that this exception applies in the present case. United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990).

Defendant argues that his trial counsel erred in his trial strategy by trying to make the arresting officer, Officer Muhic, seem like he resented defendant because he had previously arrested defendant for murder, but the charges had been dropped. Because this issue was not raised before the district court, defendant's trial counsel has not been afforded an opportunity to answer this charge against him, and the reasons for his trial strategy lie completely outside the record. This court would have to decide, without the benefit of a district court hearing, whether defendant has failed to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and whether the "challenged action" constitutes "sound trial strategy." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). We find that defendant's failure to raise this issue before the district court precludes us from addressing this claim. United States v. Straughter, 950 F.2d at 1234-35.

III.

Defendant's motion to suppress alleged that the evidence seized from his residence and car was by virtue of a search warrant based on an affidavit containing materially false statements. The warrant at issue was approved by the district court on July 24, 1995. Attached to the search warrant was the affidavit of Detective James Muhic, which contained the following sworn affirmations of fact:

6. Affiant knows [defendant] Hill on sight because of previously investigating Hill with respect to a homicide investigation....

10. Periodic surveillance conducted over the past three months, with the most recent surveillance being within the past seventy-two hours, has revealed that Hill often departs from 3836/3838 East 149th Street, and goes to a gray house on East 61st Street....

12. Within the past forty-eight hours, affiant took four garbage bags from the tree lawn of 3836/3838 East 149th Street. In one bag there was found many small plastic bags with the corners cut out....

(emphasis added). The warrant based on this affidavit was executed on the afternoon of July 24, 1995...