U.S. v. Meyers

• Decision Date: 02 January 1992
• Docket Number: No. 91-1085,91-1085
• Citation: 952 F.2d 914
• Parties: 34 Fed. R. Evid. Serv. 1413 UNITED STATES of America, Plaintiff-Appellee, v. Norman MEYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 914

952 F.2d 914

34 Fed. R. Evid. Serv. 1413

UNITED STATES of America, Plaintiff-Appellee, v. Norman MEYERS, Defendant-Appellant.

No. 91-1085.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 26, 1991.

Decided Jan. 2, 1992.

G. Gregory Schuetz (argued and briefed), Amy B. Hartmann, Office of U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Jill L. Price, Richard M. Helfrick, Richard J. O'Neill (argued and briefed), Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before MARTIN and JONES, Circuit Judges, and LIVELY, Senior Circuit Judge.

BOYCE F. MARTIN, JR., Circuit Judge.

A jury convicted Norman Meyers of distribution of cocaine and possession of a firearm by a felon under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1), respectively. The district court sentenced Meyers to fourteen years in prison, three years of supervised release, and a special assessment of $200.00. On appeal, Meyers argues that the trial court abused its discretion in admitting, for the purposes of impeachment, evidence of a 1984 conviction for armed robbery. Meyers alleges that the Government deprived him of a fair trial by using inflammatory language during its opening and closing statements; that the government failed to follow the procedural requirements of 21 U.S.C. § 851(a)(1) by not filing an information with the court detailing which prior convictions were being relied upon to enhance his sentence; and that the district court abused its discretion in deciding not to grant a downward departure under the Federal Sentencing Guidelines for Meyers' Section 5K2.12 duress defense. For the following reasons, we affirm.

IMPEACHMENT EVIDENCE

Meyers testified that on three different occasions during April 1990 he sold "crack" cocaine to the same undercover FBI agent. During this time Meyers, who had been convicted of armed robbery in 1984, lent the FBI agent a shotgun, which Meyers had in his possession. Before trial, Meyers stipulated that he had a prior felony conviction. At the same time, Meyers moved to exclude evidence of his prior conviction, arguing that the evidence would be more prejudicial than probative. The district court denied Meyers' motion.

Meyers argues that the district court erred in admitting the evidence because it was more prejudicial than probative. At the time of Meyers' trial, Rule 609(a) of the Federal Rules of Evidence provided:

For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the defendant was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant....

Fed.R.Evid. 609. ¹ Rule 609(b) establishes a time limit for impeaching evidence of felony convictions. Felony convictions may only be used to impeach if the conviction or the release from imprisonment under that conviction occurred within the last ten years. Id. The district court determined that Meyers' 1984 conviction for armed robbery qualified as admissible impeachment evidence under 609(a)(1) and we concur.

In reviewing the district court's decision to allow the impeaching evidence under Fed.R.Evid. 609(a)(1), we determine whether the district court abused its discretion. United States v. Moore, 917 F.2d 215, 234 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991). Meyers argues that the district court abused its discretion in failing to properly balance the probative value of the testimony against its prejudicial impact. Specifically, Meyers argues that in balancing the two concerns, the court should have employed the five factors espoused in Gordon v. United States, 383 F.2d 936 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). These five factors are (1) the impeachment value of the prior crime, (2) the point in time of the conviction and the witness' subsequent history, (3) the similarity between the past crime and the charged crime, (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue. Id. at 940. In the past, while we have taken notice of the Gordon test, we have held that in order to admit impeaching evidence In this instance, the district court clearly adhered to this directive. After hearing arguments from Meyers and the Government concerning admission of the evidence, the district court specifically stated on the record that the prejudicial impact did not outweigh the probative value. Also, the district court explicitly instructed the jury not to consider the conviction as evidence of Meyers' character. We find, therefore, that the district court did not abuse its discretion in admitting Meyers' prior conviction.

of a prior conviction under Rule 609, a court must make an on-the-record finding based on the facts that the conviction's probative value substantially outweighs its prejudicial impact. Moore, 917 F.2d at 234 (citing United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978)).

INFLAMMATORY LANGUAGE

Meyers has alleged that two statements made by the Government during its opening and closing statements were "plain error," depriving him of a fair trial. Meyers did not object to the statements during the trial and raises the issue for the first time on appeal.

By failing to object to the allegedly inflammatory remarks during trial, Meyers waived any objection to the remarks on appeal unless the remarks constituted "plain error or [a] defect ... affecting substantial rights." Fed.R.Crim.P. 52(b). The Supreme Court has defined "plain error" for purposes of Rule 52(b) as error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). Courts of Appeals "may correct only 'particularly egregious errors.' " Id. (quoting United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).

In explaining the plain error standard, we have stated that "inappropriate remarks by the prosecutor do not alone justify reversal of a criminal conviction in an otherwise fair proceeding, as long as the jury's ability to judge the evidence fairly remains intact." United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990). Prosecutorial misconduct and improper arguments must be "so pronounced and persistent that [they] permeate[ ] the entire atmosphere of the trial." Id.

During its opening statement the Government stated:

The Government will present evidence that the defendant ... knowingly, intentionally and voluntarily dealt crack cocaine, a killer drug that's destroying young minds and extinguishing young lives at an alarming rate in our community.

Trial Transcript 27. During its closing statement, the Government stated:

Norman Meyers, a convicted felon, a man who was convicted of armed robbery in 1984, wants all of you to believe that he was the person who was victimized in this case.

Trial Transcript 161-162. The Government concedes that the first of the two statements was inappropriate and unnecessary, but argues that the statements did not interfere with the fairness of Meyers' trial.

On appeal, these are the only challenged statements. Examining the record, we find that these two remarks do not rise to the level of plain error as defined by the Supreme Court in Young and this court in Castro. The trial was not permeated by prosecutorial misconduct. The two statements in the context of the entire trial did not taint the proceedings so as to prevent a fair trial. Therefore, we find that the Government's statements did not constitute plain error.

FAILURE TO FILE INFORMATION UNDER 21 U.S.C. § 851(a)(1)

Meyers argues that the United States failed to file an information with the court detailing which prior convictions the government would rely upon for sentencing enhancement as required by 21 U.S.C. § 851(a)(1). Under section 841(b)(1), a court may enhance a criminal defendant's sentence if the defendant has prior drug- related convictions. Section 851(a)(1) allows criminal defendants who face enhanced sentences under section 841 to challenge, at the time of sentencing, the existence and validity of the prior convictions. Meyers asks this court to remand his case for resentencing.

The government argues that Meyers' sentencing under Sentencing Guideline § 4B1.1 as a career offender was not an "enhanced sentence" for purposes of section 851(a)(1). According to the government, the provisions of section 851(a)(1) apply solely and specifically to sentence enhancements that occur under section 841(b)(1). Under section 841(b)(1), sentences for drug-related offenses may be enhanced for prior drug-related convictions. The government argues that unlike increased sentences under section 841(b)(1), sentencing as a career offender under the Sentencing Guidelines is not an enhanced sentence.

Title 21 of U.S.C. §§ 841-852 comprises the Offenses and Penalties portion of the Control and Enforcement provisions of the Controlled Substances Act. Section 841(b)(1)(C) provides, inter alia, for enhancement of sentences based on prior drug-related convictions:

If any person commits such a [drug-related] violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment which may not be less than ten years....

Under this portion of section 841, the minimum statutory sentence of five years is...