U.S. v. Miller

• Decision Date: 20 November 1998
• Docket Number: 96-2326,Nos. 96-2224,96-2330 and 96-2331,s. 96-2224
• Citation: 161 F.3d 977
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Raymond MILLER, Defendant-Appellant/Cross-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Troy MILLER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Linda BYRNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 977

161 F.3d 977

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Raymond MILLER, Defendant-Appellant/Cross-Appellee.

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

UNITED STATES of America, Plaintiff-Appellee, v. Linda BYRNES, Defendant-Appellant.

Nos. 96-2224, 96-2326, 96-2330 and 96-2331.

United States Court of Appeals Sixth Circuit.

Argued April 23, 1998.

Decided Nov. 20, 1998.

Barbara Colby Tanase (briefed), Office of U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for United States of America in docket Nos. 96-2224, 96-2326 and 96-2330.

B. Rene Shekmer, Office of U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for United States of America in docket No. 96-2224.

Mark V. Courtade, Asst. U.S. Attorney (argued), Office of U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for United States of America in docket Nos. 96-2326 and 96-2330.

Mark V. Courtade, Asst. U.S. Attorney (argued and briefed), Office of U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for United States of America in docket No. 96-2331.

Christopher P. Yates (argued), Federal Public Defenders Office, Grand Rapids, MI, for Raymond Miller in docket No. 96-2224 and Troy Miller in docket No. 96-2330.

Christopher P. Yates (argued and briefed), Federal Public Defenders Office, Grand Rapids, MI, for Raymond Miller in docket No. 96-2326.

Howard W. Gillingham (briefed), Federal Public Defenders Office, Grand Rapids, MI, for Raymond Miller in docket Nos. 96-2224 and 96-2326.

David L. Kaczor (briefed), Grand Rapids, MI, for Troy Miller in docket No. 96-2330.

Linda Lee Byrnes, pro se, Danbury, CT, in docket No. 96-2331.

C. Mark Pickrell (argued and briefed), Nashville, TN, for Linda Lee Byrnes in docket No. 96-2331.

Before: BATCHELDER and COLE, Circuit Judges; McCALLA, District Judge. ^*

OPINION

McCALLA, District Judge.

Defendants Linda Byrnes, Raymond Miller, and Troy Miller were convicted after a trial by jury of conspiracy to obstruct justice, in violation of 18 U.S.C. § 371, and obstruction of justice, in violation of 18 U.S.C. § 1503. In addition, Byrnes was convicted of two counts of subornation of perjury, in violation of 18 U.S.C. §§ 1622 and 1623(a). ¹ Raymond Miller and Troy Miller were both acquitted of the remaining charges.

Raymond Miller and Byrnes appeal their convictions, and Byrnes appeals her sentence. The United States appealed the sentence of Troy Miller, and filed a cross-appeal as to Raymond Miller's sentence. For the reasons that follow, we AFFIRM in part, VACATE in part, and REMAND for proceedings consistent with this opinion.

I. BACKGROUND ²

All charges arose out of a plan to aid Byrnes' son, a convicted felon, who was on trial for possession of thirty-three firearms. On November 2, 1994, a federal search warrant was executed by federal and state officers at the home of Byrnes and her adult son, John Byrnes. ³ Authorities found and confiscated thirty-three firearms and a gun safe. John Byrnes was later arrested and charged with being a felon in possession of firearms. Subsequent to John Byrnes' arrest, his mother, Kelly Freeman (his girlfriend), several other people who allegedly sold marijuana for him, and Raymond and Troy Miller, ⁴ were involved in a plan to provide perjured testimony at John Byrnes' trial, in order to prevent his conviction. The plan required that different individuals claim ownership of guns actually owned and possessed by John Byrnes.

Several meetings were held at the home of defendant Byrnes, in order to discuss and plan which individuals would falsely claim ownership of each of the guns. During these meetings, Byrnes produced a list of the firearms seized during the execution of the search warrant, and kept track of which witness would testify to ownership of each gun. Byrnes also secured a false receipt for the purchase of the gun safe in which most of the guns were stored.

On the day before John Byrnes' trial commenced, a meeting was held at defendant Byrnes' home to review the list. It was at this meeting that Jeffrey Baker was first asked by defendant Byrnes to claim ownership of two guns, although he did not agree to do so at the time. He did not agree to testify falsely until the morning of the trial. During the meeting, Raymond Miller announced that he would not personally commit perjury, although there was evidence at trial that he threatened others who refused to testify falsely.

Also, during the same meeting, Douglas Smith indicated that he might be unwilling to participate. At that point, defendant Byrnes threatened to have Smith's "teeth kicked in" if he did not go forward with the plan. Byrnes J.A. at 118. Thomas Raines, another individual who was supposed to be part of the plan, telephoned defendant Byrnes during the meeting, and informed her that he would not testify falsely at trial. Defendant Byrnes became angry and drove to Raines' trailer, accompanied by Smith and Troy Miller, who followed a short distance behind. At Raines' home, Troy Miller and Smith confronted both Raines and Chad Neal, and tried to persuade them to testify falsely. After they refused, Troy Miller and Smith became angry and left, only to return minutes later with Raymond Miller. Raymond Miller threatened to shoot Neal and Raines if they did not testify falsely at the trial.

Shortly after Raines and Neal were threatened by Raymond Miller, Byrnes met with them and went over their expected testimony with them. Byrnes was present at trial and kept the list of guns and their false "owners" at trial with her, so she could show it to each witness before their testimony. Both Raines and Neal testified falsely as defense witnesses at the trial. Kelly Freeman, Smith and Baker also testified falsely. Despite the perjured testimony, John Byrnes was convicted.

Afterward, there was an investigation into the perjury, and Kelly Freeman, Byrnes, Raymond Miller, and Troy Miller were all indicted based on their participation in the scheme. Freeman pled guilty to one count of obstruction of justice, and the case went to trial as to the other three defendants. A jury convicted all three of conspiracy to obstruct justice and obstruction of justice. In addition, Byrnes was convicted of counts four and six, subornation of perjury of Chad Neal and Jeffrey Baker, although she was acquitted on the remaining charges. Raymond and Troy Miller were both acquitted of several charges of intimidating a witness and subornation of perjury.

The district court sentenced Byrnes to a period of sixty months' imprisonment for conspiracy and subornation of perjury, and a concurrent term of seventy-one months' imprisonment for obstruction of justice under 18 U.S.C. § 1503. The district court sentenced Raymond Miller to eighteen months' imprisonment and a three-year period of supervised release on each of the two counts, to be served concurrently, and Troy Miller to fifteen months' imprisonment followed by a three-year period of supervised release on each of the two counts, to be served concurrently. The district court also ordered both Raymond Miller and Troy Miller to pay $100.00 in special assessments.

Byrnes appealed her conviction under 18 U.S.C. § 1503, as well as her sentence. As to her conviction, she argues that 18 U.S.C. § 1503 does not proscribe witness-tampering. She also argues that the district court erred in enhancing her base offense level four points pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1, for participation as an "organizer or leader." Raymond Miller also appealed, arguing that there was insufficient evidence to support his conviction, and that the government failed to turn over exculpatory evidence to him. The government appealed the sentencing of Troy Miller, and filed a cross-appeal as to the sentencing of Raymond Miller, asserting that the district court erred in its application of U.S.S.G. §§ 2J1.2(c)(1) and 2X3.1.

II. ANALYSIS

A. Linda Byrnes

Byrnes raises two issues on appeal. First, she argues that 18 U.S.C. § 1503 does not proscribe conduct related to witnesses. Second, she contends that the district court erred when it enhanced her base offense level four points under U.S.S.G. § 3B1.1 for being an "organizer or leader."

1. 18 U.S.C. § 1503

According to Byrnes, the crucial issue before us is "[w]hether this Court should follow the construction of 18 U.S.C. § 1503 in United States v. Essex [, 407 F.2d 214 (6th Cir.1969),] or in United States v. Tackett [, 113 F.3d 603 (6th Cir.1997) ]." Byrnes Br. at 3. Defendant asserts that these two panel decisions conflict and that, therefore, we are free to determine which interpretation is proper. The government argues that defendant's argument was not properly preserved for appeal and that, even if it had been, it is without merit.

The government relies upon Fed.R.Crim.P. 12(b) to support its position that Byrnes has waived any argument with respect to a defect in the indictment. Fed.R.Crim.P. 12(b)(2) provides that if the indictment fails to charge an offense, the objection "shall be noticed by the court at any time during the pendency of the proceedings." However, if it is a mere error in the indictment, any objection must be raised prior to trial. Fed.R.Crim.P. 12(b)(2); see United States v. Adesida, 129 F.3d 846, 850 (6th Cir.1997), cert. denied --- U.S. ----, 118 S.Ct. 1688, 40 L.Ed.2d 824 (1998) (distinguishing between an indictment that is duplicitous and an indictment that charges a non-offense).

In United States v. Oldfield, 859 F.2d 392 (6th Cir.1988), this Court held that the defendant waived his right to object on appeal that the indictment charged him under the incorrect statute when he failed to raise it prior to trial. Oldfield's indictment charged him with mail fraud, a felony, while he alleged he should have been indicted for odometer tampering, which was a misdemeanor. 859...