U.S. v. Miller, s. 91-6347

• Decision Date: 01 March 1993
• Docket Number: Nos. 91-6347,92-6135,s. 91-6347
• Citation: 987 F.2d 1462
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Darnell MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1462

987 F.2d 1462

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Darnell MILLER, Defendant-Appellant.

Nos. 91-6347, 92-6135.

United States Court of Appeals,

Tenth Circuit.

March 1, 1993.

Duke Holden, Oklahoma City, OK, for defendant-appellant.

Frank Michael Ringer (Joe Heaton, U.S. Atty., with him on the brief), Asst. U.S Atty., Oklahoma City, OK, for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and O'CONNOR, District Judge. ^*

TACHA, Circuit Judge.

Ronnie Miller appeals his conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. Mr. Miller was indicted along with six other people for his involvement in a conspiracy to traffic cocaine from Los Angeles to Oklahoma City. He was arrested in Oklahoma on February 19, 1991. The cases against Miller and four codefendants were consolidated for trial. Miller was sentenced to 324 months imprisonment and five years supervised release.

On appeal, Miller argues that there was insufficient evidence to support his conviction and that the district court erroneously applied the United States Sentencing Guidelines and denied his motion for a new trial. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I. SUFFICIENCY OF EVIDENCE

To review the sufficiency of the evidence supporting a criminal conviction, we examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). Mr. Miller asserts that the only evidence supporting his conviction was an involuntary statement of confession that should have been suppressed and unreliable accomplice testimony offered to corroborate his statement. He does not argue that his statement, if properly admitted, was insufficient to support the conviction.

Miller's statement was entered through the testimony of an arresting officer on the fourth day of trial. Miller, through counsel, did not object to admission of the statement when it was offered, but did move to suppress the statement for involuntariness at the conclusion of his cross examination. After determining that no pretrial suppression motion had been filed, the court denied the motion without conducting a hearing to determine whether the statement was voluntary.

The requirement for a hearing on the voluntariness of a defendant's confession, articulated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), is codified at 18 U.S.C. § 3501(a). That subsection provides that voluntary confessions are admissible but that, before a "confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness." 18 U.S.C. § 3501(a). Section 3501(a), however, does not impose a duty on the trial court to hold a hearing when the question of voluntariness is not timely raised. See United States v. Knezek, 964 F.2d 394, 397-99 (5th Cir.1992); United States v. Mendoza-Acevedo, 950 F.2d 1, 2-3 (1st Cir.1991); United States v. Wilson, 895 F.2d 168, 172-73 (4th Cir.1990). Under Rule 12 of the Federal Rules of Criminal Procedure, motions to suppress evidence must be made prior to trial, Fed.R.Crim.P. 12(b)(3), and the failure to bring a pretrial motion constitutes a waiver, Fed.R.Crim.P. 12(f). The district court, however, may grant relief from the waiver for cause shown. Id.

We have held that § 3501(a) mandates a hearing when a question of voluntariness is raised orally before trial and again at the time the confession is offered. See United States v. Janoe, 720 F.2d 1156, 1164 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984). In Janoe, we noted that, although the government had argued in its brief that the defendant waived his right to a Jackson v. Denno hearing under Rule 12(f) by failing to file a pretrial motion to suppress, it had abandoned that position at oral argument. Id. at n. 14. Consequently, we did not address the implications of Rule 12 on the district court's duty to hold a hearing. Nonetheless, we did consider the timing of the motion in deciding that a hearing was required under the circumstances because the defendant moved to suppress his confession before the trial actually began, objected to admission of the confession when it was offered, and presented some evidence of intoxication. Id.

The circumstances in the present case differ from those in Janoe. Miller did not move to suppress his statement until the fourth day of trial after it had already been admitted, did not object to its admission when it was offered, and made no explanation for his failure to file a timely motion. Under the circumstances, we find no evidence to support relief from waiver under Rule 12(f). See United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir.1984). We hold that the district court did not err in denying Miller's untimely motion to suppress without holding a Jackson v. Denno hearing and affirm the admission of Miller's confession.

Miller also argues that the accomplice testimony offered to corroborate his statement lacked credibility. We must rely on the district court's findings regarding witness credibility unless they are clearly erroneous. United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992). After reviewing the record, we find that the testimony was corroborated in part by the search warrant and a police officer's testimony about the surveillance and arrest. Moreover, a conviction based on accomplice testimony may be affirmed if the district court properly instructed the jury that accomplice testimony must be carefully scrutinized, weighed with great care, and received with caution. See United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir.1984). Here the district court instructed the jury that "the testimony of an accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care."

We conclude that Miller's statement is independently sufficient to support his conviction and that the jury was properly instructed regarding the corroborating accomplice testimony.

II. SENTENCING

Miller contends that the district court erred by adding criminal history points under U.S.S.G. § 4A1.1(b) for offenses he committed as a juvenile pursuant to § 4A1.2(d)(2)(A). United States Sentencing Commission, Guidelines Manual, §§ 4A1.1(b) and 4A1.2(d)(2)(A) (Nov.1992). We review the district court's factual findings for clear error and its interpretation of the Guidelines de novo. United States v. Pinedo-Montoya, 966 F.2d 591, 595 (10th Cir.1992).

Miller points to an apparent conflict between two subsections of U.S.S.G. § 4A1.2. Subsection (c)(2) states that sentences for "juvenile status offenses" are never counted, U.S.S.G. § 4A1.2(c)(2), while subsection (d)(2)(A) provides for a two point increase for "each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense," id. § 4A1.2(d)(2)(A). We find no conflict between these provisions.

Juvenile convictions, other than for status offenses, may be used to add points to a defendant's criminal history category pursuant to § 4A1.2(d)(2). United States v. Baker, 961 F.2d 1390, 1392-93 (8th Cir.1992). The Guidelines do not define "juvenile status offenses" as used in § 4A1.2(c)(2), but the term has been construed to mean those offenses, such as truancy or loitering, where otherwise legal conduct is criminalized only because of the actor's status. See e.g. United States v Unger, 915 F.2d 759, 763 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). In contrast, § 4A1.2(d)(2) applies to offenses for conduct that is criminalized regardless of one's status, but which the defendant committed prior to age eighteen. U.S.S.G. § 4A1.2(d), comment. (n.7). Miller's juvenile adjudications--for possession of cocaine and unlawful use of a vehicle--are not juvenile status offenses. He served a sentence exceeding 60 days in a youth camp and was released within five years of commencing the instant offense. The district court did not err in interpreting § 4A1.2 or computing Miller's criminal history.

III. NEW TRIAL

Finally, Mr. Miller appeals the district court's order denying his motion for a new trial based on newly discovered evidence without conducting an evidentiary hearing. Miller based the motion on two affidavits in which one of the government's chief witnesses, Raymond Johnson, recanted his trial and Grand Jury testimony. We review the denial of a motion for new trial for an abuse of discretion. United States v. Page, 828 F.2d 1476, 1478 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987).

A motion for a new trial is not viewed with favor and should be granted with great caution. United States v. Thornbrugh, 962 F.2d 1438, 1443 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 220, 121 L.Ed.2d 158 (1992). It is well established that newly discovered evidence...