U.S. v. King

• Decision Date: 25 September 1997
• Docket Number: Nos. 96-3075,96-3584 and 96-3666,s. 96-3075
• Citation: 127 F.3d 483
• Parties: UNITED STATES of America, Plaintiff-Appellant, Plaintiff-Appellee/ Cross-Appellant, v. Kenneth KING; Kewin King, Defendants-Appellees, Kewin King, Defendant-Appellant/ Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

127 F.3d 483

UNITED STATES of America, Plaintiff-Appellant Plaintiff-Appellee/ Cross-Appellant, v. Kenneth KING; Kewin King, Defendants-Appellees Kewin King, Defendant-Appellant/ Cross-Appellee.

Nos. 96-3075, 96-3584 and 96-3666.

United States Court of Appeals, Sixth Circuit.

Argued June 2, 1997.

Decided Sept. 25, 1997.

David A. Sierleja (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellant in 96-3075, Plaintiff-Appellee/Cross-Appellant in 96-3584, 96-3666.

James R. Willis (briefed), Willis, Blackwell & Rogers, Cleveland, OH, Donald J. O'Connor (argued and briefed), Cleveland, OH, for Defendant-Appellee Kenneth King in 96-3075.

David C. Jack (argued and briefed), Sremack & Jack, Akron, OH, for Defendant-Appellant/Cross-Appellee Kewin King in 96-3584, 96-3666.

David L. Grant (briefed), Grant & O'Malley, Cleveland, OH, for Defendant-Appellee Kewin King in 96-3075.

Before: MARTIN, Chief Judge; RYAN and BATCHELDER, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which RYAN, J., joined. BOYCE F. MARTIN, Jr., C.J. (pp. 490-491), delivered a separate dissenting opinion.

BATCHELDER, Circuit Judge.

The government appeals the district court's order suppressing 443 grams of cocaine base that police seized from the basement of the two-family dwelling unit in which defendants Kenneth and Kewin King lived. Kewin King appeals his conviction for possession with intent to distribute cocaine base. The government appeals Kewin King's sentence. For the following reasons, we VACATE the district court's suppression order, AFFIRM Kewin King's conviction, VACATE Kewin King's sentence, and REMAND this action to the district court for further proceedings.

I. STATEMENT OF FACTS AND CASE HISTORY

On October 31, 1995, members of the Federal Bureau of Investigation's Caribbean Gang Task Force obtained a warrant to search 1437 East 116th Street, Cleveland, Ohio, for drugs, drug paraphernalia, and weapons. The warrant authorized a search of the "premises, curtilage, containers, and persons therein" at a location described as "1437 East 116th Street, Cleveland, Cuyahoga County, Ohio, and being more fully described as the downstairs unit in a two-family, two and one half story, white wood[-]sided dwelling with green trim."

Although the record is sparse, it appears that the "downstairs unit" is a five-room apartment consisting of a front room, two bedrooms, a kitchen, and a bathroom. One bedroom and the kitchen are located in the rear of the apartment. There is a door in the kitchen that leads to a common hallway. The hallway contains a door that leads into the building's basement. A person cannot directly access the basement from the downstairs unit. Defendants Kenneth and Kewin King lived in the downstairs unit.

On November 1, members of the Task Force executed the warrant. As the agents entered the downstairs unit, they observed defendants standing near the kitchen. Kenneth ran to the second floor but was apprehended by one of the agents. Both defendants were subsequently secured in the downstairs unit.

The officers searched the downstairs unit and found 60.6 grams of cocaine base in one bedroom and 16.65 grams in the other bedroom. One of the agents exited the downstairs unit and searched the building's basement where he discovered 443 grams of cocaine base.

On November 20, 1995, a federal grand jury returned a three-count indictment against defendants. Count one charged Kewin King and Kenneth King with possession with intent to distribute 443 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count two charged Kewin King with possession with intent to distribute 60.6 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count three charged Kenneth King with possession with intent to distribute 16.65 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Each count had a corresponding "schoolyard provision" in accordance with 21 U.S.C. § 860.

Prior to trial, defendants filed various motions to suppress. One of these motions challenged the search warrant and its underlying affidavit, alleging that it was issued without probable cause. Kewin King also moved for a separate trial.

After conducting a hearing, the district court denied the motions to suppress. The court granted Kenneth's motion for a separate trial and ordered Kenneth's trial to begin on January 22, 1996, and Kewin's trial to begin on February 6, 1996.

After ruling on defendants' motions, the district court, sua sponte, raised the issue of whether the search of the basement exceeded the scope of the warrant. The court invited supplemental briefing on this issue. Defendants subsequently moved to suppress the 443 grams of cocaine base seized from the basement. The court granted the motion without conducting an evidentiary hearing.

On January 19, the government filed an interlocutory appeal to this court. The government also moved the district court to stay or continue Kenneth King's trial pending review of the suppression order by this court. The district court granted a continuance. The court also rescheduled Kewin King's trial to begin on January 22, the date on which Kenneth's trial originally was scheduled. The government therefore filed an emergency motion to stay Kewin's trial with this court, which we denied.

On January 22, Kewin moved for a continuance. The district court summarily denied this motion. The case proceeded to trial as scheduled, and on January 23 the jury found Kewin guilty. The government sought to enhance Kewin's sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on his prior Ohio state court conviction for felony drug trafficking. The district court refused to enhance Kewin's sentence, however, because the government failed to comply with the notice provisions of § 21 U.S.C. § 851(a). The court sentenced Kewin to 188 months imprisonment.

On appeal, the government challenges the district court's suppression order and the court's refusal to enhance Kewin's sentence. Kewin appeals the denial of his motion for a continuance and raises an ineffective assistance of counsel claim.

II. DISCUSSION

A.

The district court suppressed the 443 grams of cocaine base seized from the basement of the two-family housing unit in which defendants lived, concluding that the search warrant did not authorize the agents to search that area. The government challenges this ruling, arguing that the basement was part of the "downstairs unit" described in the warrant. In the alternative, the government argues that the evidence is admissible pursuant to the good-faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The court, sua sponte, raised the issue of whether the search of the basement exceeded the scope of the warrant. Although it invited the parties to submit supplemental briefs on this issue, the court did not hold an evidentiary hearing. Therefore, the record contains only sparse references to facts essential to the resolution of this issue. For example, the record does not sufficiently describe the exact configuration of the two-family dwelling unit in which defendants lived. Nor does it contain facts explaining who had access to the basement and by what means. Without such facts, it is impossible for us to address either the government's contention that the basement was part of the "downstairs unit" for purposes of the search warrant or that the search of the basement is subject to the Leon exception. Moreover, based on the statements of counsel during oral argument, it is unclear whether defendants have a legitimate expectation of privacy in the building's basement or whether defendants even have standing to challenge the search.

Because the record is inadequately developed, we cannot determine whether the district court erred in suppressing the evidence seized from the basement. We therefore vacate the suppression order and remand this issue to the district court for an evidentiary hearing and further consideration in light of the concerns raised above.

B.

After the district court granted Kewin's motion for a separate trial, the court scheduled Kenneth's trial to begin on January 22, 1996, and Kewin's trial to begin on February 6. On January 19, however, the court granted the government's motion to continue Kenneth's trial. Because the court's docket included six other criminal trials, of which the court could hear only Kewin's case during the week of January 22, the court rescheduled Kewin's trial to begin on January 22.

Kewin moved for a continuance immediately before his trial was to begin. Kewin stated that his counsel was unprepared and needed additional time to draft adequate voir dire questions and jury instructions, research potential legal issues, and consult with Kewin. Kewin explained that counsel originally planned to do the "brunt" of his trial preparation during the weeks of January 22 and January 29.

The district court summarily denied Kewin's motion. Kewin argues that this ruling deprived him of due process.

We review the district court's denial of a motion for a continuance for an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964); United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir.1985). The denial of a defendant's motion for a continuance " 'amounts to a constitutional violation only if there is an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay." To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.' " Gallo, 763 F.2d at 1523 (quoting United States v. Mitchell, 744 F.2d 701, 704 (9th Cir.1984)); see also United States v. Moreno, 933 F.2d 362, 371 (6th Cir.1991) (stating that defendant must show actual prejudice); United States v. Martin, 740 F.2d 1352, 1360-61 (6th Cir.1984) (same). The defendant demo...