U.S. v. Knezek, 91-2019

• Decision Date: 16 June 1992
• Docket Number: No. 91-2019,91-2019
• Citation: 964 F.2d 394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Donald KNEZEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 394

964 F.2d 394

UNITED STATES of America, Plaintiff-Appellee, v. Steven Donald KNEZEK, Defendant-Appellant.

No. 91-2019.

United States Court of Appeals Fifth Circuit.

June 16, 1992.

Cindy L. Salsbury, Edison, N.J., for defendant-appellant.

Peggy Morris Ronca, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before BRIGHT, ¹ JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Steven Donald Knezek appeals his convictions for illegal firearms possession, challenging primarily the district court's refusal to hold a suppression hearing and the concomitant admission of inculpatory statements. Review of this, and the other issues, is narrowed by his failure to preserve them in district court. We AFFIRM.

I.

In early May 1990, Knezek and Milton Huff drove into the United States from Mexico at the Lincoln-Juarez Bridge Port-of-Entry, near Laredo, Texas. Knezek was driving. The vehicle was referred to the secondary inspection station, where customs inspector Cantu asked the men to exit the car, produce identification, and "unload anything that they had". Knezek and Huff placed their luggage on an examining table.

In a bag that Huff identified as his, Cantu found several syringes. ² Believing that he might discover narcotics, Cantu inspected the remaining luggage. After discovering ammunition of various caliber in a suitcase, Cantu asked Knezek and Huff: "Where are the guns?" Knezek responded: "They're in there." Cantu continued to search the suitcase and found, wrapped in clothing, a Smith and Wesson .44 magnum revolver and a Colt Trooper .357 magnum revolver. Both weapons were loaded; the Smith and Wesson's serial number had been obliterated.

Following discovery of the weapons, another inspector informed Cantu that marijuana residue had been found in the car. Cantu advised him of the weapons, and they frisked Knezek and Huff and placed them in separate "search rooms". In the room, Cantu instructed Knezek to empty his pockets and place his hands on the wall; a "complete personal search" was then performed. After leaving to search Huff, Cantu returned to Knezek's room and asked: "Who's the owner of the guns?" Knezek replied: "They're mine. I bought them at a gun place."

Customs special agent Salinas was called in by the inspectors. Salinas identified himself, informed Knezek that he was there because of discovery of the revolvers, and advised Knezek of his Miranda rights. ³ Knezek stated that he understood them. Salinas then asked where the guns had been obtained; Knezek stated that "he had purchased them at a gun shop back home". When asked about the obliterated serial number, Knezek responded: "Yeah, I know." Refusing to answer further questions, he stated: "Well, just take me to jail."

Knezek was arraigned and appointed counsel from the Federal Public Defender's office. Pursuant to the district court's local rules, June 11, 1990, was designated as the deadline for pretrial motions; and trial was set for the July 1990 term. ⁴ In a five-count indictment filed against Knezek and Huff, Knezek was charged in three: knowing transportation in interstate and foreign commerce of a revolver with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k), 924(a)(1)(B), and 2 (count 1); and, being a felon in possession of the Smith and Wesson revolver (count 2) and the Colt Trooper revolver (count 3), in violation of 18 U.S.C. § 922(g)(1).

Several pretrial hearings were held. But, as discussed in part II.A., Knezek did not move prior to trial to suppress his statements at the port of entry. Moreover, during the one-day trial on July 23, 1990, Knezek did not object to the introduction (through testimony of Cantu and Salinas) of those statements, nor did he cross-examine government witnesses on alleged coercion. Knezek did not testify, but Huff (who pleaded guilty prior to Knezek's trial) testified on his behalf and stated that he (Huff) had borrowed the weapons from a friend and that Knezek did not know anything about them. Although Knezek moved, unsuccessfully, for judgment of acquittal at the close of the government's case, he did not renew that motion after presentation of all the evidence. The jury returned a guilty verdict on all three counts.

A sentencing hearing was held that December; and Knezek was sentenced, inter alia, to 15 years' imprisonment on count 3. ⁵

II.

Knezek contends that (1) the district court erred in both refusing to hold a suppression hearing and admitting in evidence his statements at the port of entry; (2) extrinsic offense evidence was improperly admitted; (3) there was insufficient evidence to prove knowing possession of the firearms; and (4) the government's closing argument constituted prosecutorial misconduct. ⁶

A.

Knezek maintains that the district court erred in denying his "numerous requests" for a suppression hearing regarding incriminating statements he made to law enforcement agents, and that, thereafter, those statements were admitted in evidence erroneously, including because of coercion and his not having been advised of his Miranda rights. Knezek, however, failed to timely and properly move to suppress, as required by the local rules and Federal Rule of Criminal Procedure 12. ⁷ Pursuant to the latter, motions to suppress "must be raised prior to trial". Fed.R.Crim.P. 12(b)(3). Failure to do so constitutes a waiver, "but the court for cause shown may grant relief from the waiver." Fed.R.Crim.P. 12(f).

When Knezek finally, orally, moved to suppress, at the start of trial, the district court ruled that, for several reasons, the matter had been waived. ⁸ We review that ruling for abuse of discretion. United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981); United States v. Bullock, 590 F.2d 117, 120 (5th Cir.1979).

A district court does not abuse its discretion under Rule 12(f) in denying a suppression motion solely on the ground that the defendant failed to comply with pretrial procedures. Marx, 635 F.2d at 440-41; Bullock, 590 F.2d at 120. Knezek unquestionably failed to comply with Rule 12 and the local rules. Nor, pursuant to Rule 12(f), did he seek to show cause for relief from the finding of waiver. But, even assuming arguendo that the motion to suppress was made "prior to trial", other factors support there not being an abuse of discretion in this case; waiver is firmly grounded in those bases as well.

The deadline for pretrial motions was June 11, 1990. A motion to suppress was never filed, either before or after that date. On June 26, Knezek's lawyer filed a motion to withdraw, stating that Knezek was dissatisfied, because, among other things, Knezek "seem[ed] to think that Counsel should have filed some kind of pretrial motion in his case." Knezek's first informal request for a suppression hearing occurred two days later, well past the pretrial motion deadline. Moreover, his stated reason for wanting an unidentified statement suppressed was his claim that he had not made it; but the court noted that the issue, as framed by Knezek, was one to be determined by the jury, not in a suppression hearing. ⁹

The motion to withdraw was granted on July 2; new counsel was appointed that day. When Knezek moved on July 6 to extend the pretrial motion deadline, as well as in the July 10 hearing on it, he did not state that he wanted to move to suppress any evidence. And, the motion was withdrawn at a hearing the next day, even though the district court had stated it would be granted, but would delay trial, and had warned, after being advised of the withdrawal, against trying later to file such motions. ¹⁰

At a hearing on Friday, July 20, three days prior to trial on Monday, Knezek, for the first time, raised the issue of coercion and an alleged lengthy interrogation. However, his lawyer was uncertain as to which interrogation these concerns related. ¹¹ In any event, this led to the government's announcement, at the start of trial, that any statements taken at the jail (several days after the statements were made at the port of entry) would not be introduced. Knezek's counsel then requested a suppression hearing concerning possible coercion and duress as to the statements made at the port of entry. (As noted, no motion was ever filed.) The district judge refused to grant a hearing, noting the delay, the prior proceedings, and that no motion had been filed, and ruling that the matter had been waived; but, he ruled that if Knezek's counsel wanted to develop those issues at trial, he would possibly grant a mistrial if coercion was proven. ¹²

Nevertheless, Knezek's counsel did not do so. And, when the statements were admitted at trial, he did not object to their admission. Moreover, Knezek's defense at trial was not that he made the statements under duress or while unaware of his rights, but that he had simply not made them. As noted, Knezek relied also on Huff's testimony that Huff had borrowed the weapons and Knezek was not aware of them. Furthermore, Knezek never raised in district court the point he primarily relies upon here--that he had not been advised of his Miranda rights.

The district judge did not abuse his discretion in ruling that a waiver occurred; accordingly, we do not reach the application of Miranda or the other bases raised here for suppressing the statements.

B.

Knezek maintains that, under Rule 404(b), the district court erred in admitting evidence that Knezek and Huff had purchased the guns in exchange for marijuana, and that syringes, ammunition, and marijuana residue were found in the search of the car. ¹³ However, Knezek did not object at trial to the admission of this evidence. Therefore, we review only for plain error. See Fed.R.Evid. 103. "[P]lain error is an error 'so obvious that our failure to notice it would seriously affect the fairness, integrity, or public...