U.S. v. Miles

Decision Date10 May 2002
Docket NumberNo. 01-11214.,01-11214.
Citation290 F.3d 1341
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald Edward MILES, a.k.a. "Gene", a.k.a. Jim Gene Tyler, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Donald Samuel, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Defendant-Appellant.

H. Allen Moye, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and DUBINA, Circuit Judges, and KATZ*, District Judge.


Donald Edward Miles appeals his jury convictions and sentences, including life imprisonment, for one count of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 846, and 18 U.S.C. § 2; two counts of interstate travel or transportation in aid of racketeering enterprises, in violation of 18 U.S.C. §§ 2 and 1952(a)(3); three counts of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of interstate travel or transportation in aid of racketeering enterprises, in violation of 18 U.S.C. § 1952(a)(1); one count of possession of marijuana, in violation of 21 U.S.C. § 841(a)(1); one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 2, 921(3), 922(g)(1), and 924(e); one count of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371; three counts of money laundering in violation of 18 U.S.C. §§ 2 and 1956; and one count of investment of illegal drug profits, in violation of 21 U.S.C. § 854, and 18 U.S.C. § 2. For the following reasons, we will affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. Background

The appellant was arrested in 1988 for his alleged participation in an elaborate methamphetamine conspiracy. On October 21, 1988,1 a grand jury indicted Miles for drug violations, money laundering, and possession of a weapon by a convicted felon. On November 22, 1988, the district court in open court declared the case to be "complex litigation" and indicated that it would sever the trials of the various defendants. On April 26, 1989, the district court entered an order setting five separate trial dates with Miles' trial to be the first. At trial, Miles' methamphetamine supplier, Richard Madlener, testified as a witness for the government. After four weeks of trial in May and June of 1989, the trial court granted Miles' motion for judgment of acquittal on certain counts as well as Miles' motion for a mistrial on all remaining counts. Although detained pending trial, Miles was released on bond.

Following the mistrial, the grand jury returned a second superseding indictment against Miles on October 24, 1989. Initially, the court entered an order setting the trial dates for Miles and certain co-defendants beginning March 5, 1990. Miles filed no objection to the scheduling order, but on November 13, 1989, he filed a motion to dismiss two counts of the second superseding indictment alleging a double jeopardy violation. On February 14, 1990, while his double jeopardy motion was pending, Miles consented to the severance of his case from that of his co-conspirators. Miles' consent to severance read in its entirety:

The Defendant, Donald L. Miles, consents to the severance of his case from that of his co-defendants in the above-styled case and to the consolidation of his cases for trial.

Defendant acknowledges that this will result in a delay of his trial and waives his rights under the Speedy Trial Act.

On March 8, 1990, the government moved for a continuance due to the absence of witness Richard Madlener, who had fled the country. The district court granted the continuance until May 21, 1990, and the government again moved for a continuance due to the missing witness on May 7, 1990. On May 21, 1990, the district court found that Madlener was an unavailable, essential witness and continued the trial for 90 days, until August 19, 1990. The district court ordered that if Madlener remained unavailable, the counts charging the methamphetamine conspiracy in the indictment would stand dismissed without prejudice. Even though the government attempted to locate and retrieve Madlener, he remained unavailable. In a report to the district court dated August 2, 1990, the government informed the district court of its intention to admit Madlener's former testimony pursuant to Fed.R.Evid. 804(b)(1). The district court did not dismiss the methamphetamine conspiracy charges against Miles, and on March 26, 1991, the grand jury issued a third superseding indictment against Miles.

On January 17, 1992, Miles filed a motion to dismiss the indictment alleging a Speedy Trial Act violation. Without a hearing or findings, the district court denied the motion on October 23, 1992. The district court also denied Miles' double jeopardy motion on October 6, 1992. Miles filed an interlocutory appeal on the double jeopardy motion, and this court affirmed the lower court's decision on March 28, 1994. Defendant's trial began on July 11, 1994 — 576 days after he was initially indicted. On July 21, 1994, Miles failed to appear following the denial of his motion for judgment of acquittal. On July 25, 1994, the jury convicted the defendant on nine out of ten counts. After Miles was located and arrested in June of 2000, the district court sentenced Miles to life imprisonment for possession of a firearm under 18 U.S.C. §§ 922(g) and 924(e) and also imposed concurrent and consecutive sentences on the other counts.

Miles raises seven issues on appeal: first, that the government failed to prove that Miles committed three prior violent felonies, pursuant to 18 U.S.C. § 924(e); second, that the district court erred in sentencing the defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e), by violating the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); third, that the district court erred in denying Miles' motion to dismiss based upon a violation of the Speedy Trial Act, 18 U.S.C. § 3161; fourth, that the district court erred in admitting hearsay evidence under Fed.R.Evid. 801(d)(2)(E); fifth, that the district court erred in admitting prior testimony of a witness under Fed.R.Evid. 804(b)(1); sixth, that the district court erred in denying Miles' request to instruct the jury on the law of reliance on the advice of counsel as a defense; and seventh, that the evidence was insufficient to authorize the jury to support a conviction of money laundering.

II. Discussion
A. Sentencing Issues

Miles argues that the district court incorrectly found that he had three prior "violent felony" convictions and thus improperly enhanced his sentence under 18 U.S.C. § 924(e). In enhancing Miles' sentence, the district court relied on a prior conviction for possession of an unregistered firearm in violation of 26 U.S.C. § 5841 and two prior burglary convictions under state law. Miles argues that this court in United States v. Oliver, 20 F.3d 415, 418 (11th Cir.1994), held that possession of a firearm by a felon is not a violent felony within the meaning of section 924(e)(2)(B); therefore, his firearm conviction does not qualify as a violent felony. Miles also argues that the district court erred in treating his two 1965 burglary convictions as predicate offenses because the court neither ascertained the actual burglary statute under which he was charged nor determined the statutory elements of burglary under Georgia law as required by Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990). According to Miles, Georgia law did not define burglary as an unlawful entry into a building or other structure at the time of his conviction. See Bennett v. State, 136 Ga.App. 806, 222 S.E.2d 207 (1975) (describing the unlawful entry into an automobile as a "burglary"). Furthermore, Miles contends that the district court did not find that his conviction for two counts of burglary in 1965 were for felonies "committed on occasions different from one another" as required under section 924(e)(1).

We review the district court's factual findings for clear error and its application of the Sentencing Guidelines to those facts de novo. United States v. Richardson, 230 F.3d 1297, 1298 (11th Cir. 2000), cert. denied, 532 U.S. 983, 121 S.Ct. 1626, 149 L.Ed.2d 488 (2001). Whether two crimes constitute a single criminal episode or two separate felonies for purposes of section 924(e) is an issue of law, which we review de novo. Id. Under the Sentencing Guidelines, "[a] defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal," U.S.S.G. § 4B1.4(a), requiring an increase in the criminal history category and offense level. U.S.S.G. § 4B1.4(b) and (c). The government recommends, and Miles agrees,2 that we remand the case to the district court to make factual findings necessary to complete the record on the issue of Miles' previous convictions. We agree.

Section 924(e) provides that any person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense, or both, committed on occasions different from one another, shall be imprisoned not less than 15 years. 18 U.S.C. § 924(e)(1). The statute defines violent felony as

any crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person or another; or (ii) is burglary ... or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.C. § 924(e)(2)(B). Once the government has shown that the defendant has three prior violent felony convictions, the burden then...

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