U.S. v. McCary, s. 93-7006

• Decision Date: 02 February 1994
• Docket Number: 93-7016,Nos. 93-7006,s. 93-7006
• Citation: 14 F.3d 1502
• Parties: UNITED STATES of America, Plaintiff/Appellee/Cross-Appellant, v. Tommy Blake McCARY, Defendant/Appellant/ Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1502

14 F.3d 1502

UNITED STATES of America, Plaintiff/Appellee/Cross-Appellant, v. Tommy Blake McCARY, Defendant/Appellant/ Cross-Appellee.

Nos. 93-7006, 93-7016.

United States Court of Appeals, Tenth Circuit.

Feb. 2, 1994.

David T. Shelledy, Department of Justice, Washington, D.C. (John Raley, United States Attorney, Eastern District of Oklahoma, and Dennis A. Fries, Assistant U.S. Attorney, Muskogee, Oklahoma, with him on the brief), for Plaintiff/Appellee/Cross Appellant.

R. Jay Cook, Muskogee, Oklahoma, Attorney for Defendant/Appellant/Cross-Appellee.

Before KELLY, Circuit Judge, GODBOLD ^*, Senior Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

In the first count of a two-count indictment filed on August 14, 1992, in the United States District Court for the Eastern District of Oklahoma, Tommy Blake McCary was charged with unlawfully possessing a firearm which had been transported in interstate commerce while a fugitive from justice, in violation of 18 U.S.C. Sec. 922(g)(2). In the second count, McCary was charged with unlawfully possessing a motor vehicle which had moved in interstate commerce, knowing that the vehicle had been stolen, in violation of 18 U.S.C. Sec. 2313.

On November 23, 1992, a jury convicted McCary on both counts. McCary was thereafter sentenced on January 11, 1993 to imprisonment for 46 months on each count, such terms to be served concurrently with each other and both to be served concurrently with a 211-month sentence previously imposed in an unrelated federal prosecution in the United States District Court for the Northern District of Texas.

McCary appeals his convictions and the sentences imposed thereon. The United States cross-appeals that part of the judgment and sentence which ordered that the sentences imposed in the United States District Court for the Eastern District of Oklahoma be served concurrently with the 211-month sentence previously imposed in the United States District Court for the Northern District of Texas.

On January 31, 1992, McCary pleaded guilty in the United States District Court for the Northern District of Texas to a charge of unlawful possession of methamphetamine with an intent to distribute. On the date McCary entered his guilty plea he was in custody in Texas. However, prior thereto he had been released from custody and placed on bond by a United States Magistrate on October 9, 1991. In connection with his release on bond, the Magistrate advised McCary that if he committed a crime while on bond he would be subject to an additional penalty to the one he might receive on the methamphetamine charge. ¹ On November 15, 1991, McCary failed to appear for his arraignment in the methamphetamine charge and a bench warrant was issued for his arrest. On November 19, 1991, McCary was arrested in Oklahoma and he was returned to Texas where he was held without bond pending trial.

After pleading guilty to the methamphetamine charge, defense counsel asked that McCary be released on bond pending sentencing. That request was granted, the United States Attorney having no objection thereto, and in connection therewith the district court then went on to state as follows: "[T]he record will reflect that I reinstate that bond and reinstate the defendant to bail on that basis."

In April, 1992, McCary failed to report to the official responsible for supervising his release and who was conducting a presentence investigation. Accordingly, the United States District Court for the Northern District of Texas issued a warrant for his arrest.

On July 11, 1992, McCary was arrested in Durant, Oklahoma. ² At the time of the arrest, he was hiding in a bedroom closet in his girl friend's apartment. After McCary was removed from the closet and handcuffed, officers found a .9 MM semiautomatic pistol laying between impressions left by McCary's feet on clothes laying on the closet floor. The gun was loaded, with a bullet in the chamber. Another bullet of the same caliber was found in McCary's pants and a bullet proof vest was found in McCary's duffel. McCary's girl friend also pointed out a Ford Thunderbird parked in the parking lot, which she stated McCary had been driving. The car had been stolen the previous December in Texas.

On appeal, McCary asserts that his convictions on both counts must be reversed because a prosecution witness testified that among other things found on McCary at the time of his arrest in Durant, Oklahoma, were "syringes." McCary also contends that the district court erred in determining McCary's base offense level for the present offenses by factoring in McCary's conviction on the methamphetamine charge in the United States District Court for the Northern District of Texas. In this regard, McCary's argument is that since at the time of his arrest in Durant, Oklahoma, he had not yet been "sentenced" in Texas, he had not, within the meaning of the Sentencing Guidelines, been "convicted."

By cross-appeal, the United States contends that the district court erred in ordering the sentences imposed in the present proceeding be served concurrently with the 211-month sentence imposed in the federal court in Texas. In support of its position, the United States argues that under 18 U.S.C. Sec. 3147 one who commits an offense while on bond in connection with a prior federal criminal proceeding "shall be sentenced, in addition to the sentence prescribed for the offense, to a term of imprisonment of not less than two years and not more than ten years if the offense is a felony ... and a term of imprisonment imposed pursuant to this section shall be consecutive to any other sentence of imprisonment." We shall consider these matters seriatim.

Syringes

In addition to the items already mentioned as having been found on McCary's person at the time of his arrest, the arresting officers also found two syringes. Prior to trial, defense counsel and the United States Attorney agreed that the latter would not offer into evidence the syringes taken from McCary at the time of his arrest, and that he would caution his witnesses not to mention the syringes when testifying. At trial, the officer who apparently made the actual search of McCary's person did not mention the syringes. However, a subsequent witness who had participated in the search, in response to the question, "What else did you recover?", propounded to him by the United States Attorney, testified that they also found a "clip, ... syringes and one .9 MM bullet."

Defense counsel immediately moved for a mistrial, claiming a violation of his agreement with the United States Attorney that government witnesses would not mention the fact that syringes had been taken from McCary at the time of his arrest, and asserting that such prejudiced McCary's defense by injecting "drugs" into a "firearms" case. The district judge initially indicated that he would order a mistrial, but then changed his mind and denied the motion. Defense counsel declined the district judge's offer to instruct the jury that the reference to syringes should be disregarded. On appeal, counsel argues that the mention of the word "syringes" constituted evidence of "other crimes" which did not come within Fed.R.Evid. 404(b).

In denying counsel's motion for a mistrial, the district judge observed that the passing reference to "syringes" did not necessarily inject "drugs" into the case, since there were many legitimate uses for a syringe. Be that as it may, in our view, the district judge did not commit reversible error in denying the motion for a mistrial, and, under the described circumstances, any possible error would be only harmless error.

McCary was admittedly a fugitive from justice at the time of his arrest in Durant, Oklahoma. The only issues were whether at the time of his arrest McCary possessed a firearm which had traveled in interstate commerce and whether the Ford Thunderbird which he had been driving had traveled in interstate commerce. In this regard, it was agreed that the firearm had been in interstate commerce and that the vehicle was stolen in Texas and driven to Oklahoma. Further, in cross-examination of McCary, who testified in his own behalf, it was brought out that McCary had a prior felony conviction for possession of methamphetamine with an intent to distribute, i.e., the conviction in the United States District Court for the Northern District of Texas. There is no suggestion that the United States Attorney was himself guilty of misconduct or bad faith. He advised the district court that he had instructed the witnesses not to mention the word "syringe", that it would not be mentioned again and that the "fleeting mention" of the word did not justify the drastic remedy of...