U.S.A. v. Murphy
| Decision Date | 15 September 2000 |
| Docket Number | No. 99-5567,99-5567 |
| Citation | 241 F.3d 447 |
| Parties | (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Vernon L. Murphy, Defendant-Appellant. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 98-00013 COUNSEL ARGUED: Tim S. Moore, Newport, Tennessee, for Appellant. Dan R. Smith, ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee.
Dan R. Smith, ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee.
Before: JONES, SILER, and CLAY, Circuit Judges.
Defendant, Vernon Lee Murphy, appeals from his conviction and sentence for distribution of cocaine base crack and possession of cocaine base crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant alleges that the district court erroneously (1)aadmitted evidence in violation of Federal Rule of Evidence 404(b), (2) denied Defendant's motion to dismiss the indictment pursuant to the Speedy Trial Act, 18 U.S.C. §§a3161-74, (3) denied Defendant's motion to suppress evidence, and (4) calculated Defendant's criminal history category pursuant to USSG § 4A1.1. For the reasons stated below, this Court AFFIRMS Defendant's conviction, but REVERSES and REMANDS with respect to Defendant's sentencing so that the district court may determine whether Defendant served any portion of his sentence for his prior misdemeanor convictions as required by USSG § 4A1.2.
On September 17, 1997, agents from the First Judicial District Drug Task Force ("task force agents") placed an electronic transmitting device on a confidential informant to record a drug transaction with Defendant. The informant was provided with $500 in marked bills and placed under surveillance. On the same day, the confidential informant paged Defendant and inquired about purchasing $500 worth of crack cocaine. At the time, Defendant was residing at the Super 8 Motel in Johnson City, Tennessee. Defendant told the informant to wait thirty minutes and then meet him at the parking lot of the Harbor House Restaurant, located next to the Super 8 Motel.
Task force agents conducting surveillance observed Defendant leave the Super 8 Motel, stop briefly at his vehicle, which was parked in the motel lot, and proceed to walk to the parking lot between the Super 8 Motel and the Harbor House Restaurant. At approximately 7:40 p.m., the informant walked to the Harbor House Restaurant and met Defendant in the restaurant parking lot. When the informant and Defendant met, the task force agents heard "here's five" by way of the transmitting device. The informant began to count the money. Defendant advised the informant that it was not necessary for the informant to count the money because he trusted him. Defendant then gave the informant $500 worth of crack cocaine. Task force agents observed Defendant return to his motel room. Thereafter, task force agents took possession of approximately 1.8 grams of crack cocaine from the informant.
While surveillance was still underway on Defendant's motel and vehicle, task force agent Larry Robbins obtained a state search warrant for Defendant's motel room and vehicle. At approximately 10:00 p.m. that night, task force agents executed the search warrant at Defendant's motel room and seized approximately $2,671.00, $300 of which was identified as marked task force bills. The search of Defendant's vehicle revealed an additional 7.2 grams of crack cocaine.
Defendant was not present during the search. He had taken a cab from the Super 8 Motel. Task force agents contacted the cab company to determine which cab Defendant had taken. En route, the Johnson City Police stopped the cab in which Defendant was riding and arrested Defendant. Task force agents searched the cab and found additional marked task force bills. Defendant was searched incident to his arrest and task force agents found additional marked task force bills on his person.
On April 22, 1998, a federal grand jury returned a two-count indictment charging Defendant with distribution of cocaine base crack and possession of cocaine base crack with intent to distribute, violations of 21 U.S.C. § 841(a)(1). On June 5, 1998, Defendant made his first appearance before a judicial officer. On July 2, 1998, Defendant filed a motion requesting a mental evaluation of Defendant pursuant to 18 U.S.C. § 4241. The district court took Defendant's motion under advisement and granted the motion on July 13, 1998. On July 31, 1998, Defendant was transported from the Eastern District of Tennessee for a mental evaluation and was returned to the Eastern District of Tennessee on October 20, 1998. On October 23, 1998, the district court conducted a competency hearing and concluded that Defendant was competent to stand trial and that Defendant was legally sane at the time of the offense.
While the competency evaluation was pending, Defendant filed a pro se motion seeking substitution of counsel on August 27, 1998. On October 20, 1998, the district court granted Defendant's motion and appointed new counsel. 1 In a motion filed on December 29, 1998, Defendant moved to dismiss the indictment for a violation of the Speedy Trial Act. The district court denied the motion on January 11, 1999.
Defendant's trial commenced on January 19, 1999. On the same day, the jury returned a guilty verdict on both counts. On April 12, 1999, the district court sentenced Defendant to 104 months of imprisonment to run concurrently for both counts and a three-year term of supervised release. Although the district court did not impose a fine, the district court ordered Defendant to pay a $200.00 special assessment fee. Defendant filed a timely notice of appeal.
We employ a three-step analysis to review the district court's ruling on the admissibility of evidence under Federal Rule of Evidence 404(b). See United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996). When reviewing whether the district court properly admitted or excluded "other crimes, wrongs, or acts" under Rule 404(b), we first review for clear error the district court's factual determination that the "other . . . acts" occurred. Second, we examine de novo the district court's legal determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court's determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
Id. (citing United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994)).
Federal Rule of Evidence 404(b) reads in pertinent part: Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
On appeal, Defendant argues that the district court erred by admitting "other acts" evidence in violation of Rule 404(b). First, Defendant argues that the government's reference, in its opening statement, to Defendant selling drugs to someone else on a prior occasion was improper. Second, Defendant contends that the district court erred by allowing the government to call a rebuttal witness to testify in sum and substance that he had engaged in a prior drug transaction with Defendant. Defendant's claims of error are without merit.
Although Defendant objected to the government's reference to Defendant's prior alleged drug transaction, he did not specifically object on the ground which he now attempts to argue on appeal. 2 To the extent that Defendant objected on any basis, he objected on the grounds that the statement assumed facts not in evidence or misstated the facts. However, he did not object based upon Rule 404(b). Therefore, Defendant has forfeited this argument. See United States v. Buchanon, 72 F.3d 1217, 1226-27 (6th Cir. 1995) (); United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994). Our review is therefore limited to the plain error standard. See United States v. Reed, 167 F.3d 984, 988-89 (6th Cir. 1999) () (quoting United States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989)) (alterations in original). "Plain errors are limited to those harmful ones so rank that they should have been apparent to the trial judge without objection, or that strike at fundamental fairness, honesty, or public reputation of the trial." Evans, 883 F.2d at 499 (citation and quotations omitted). We find no such error in the instant case.
After Defendant's attorney objected, the court asked the government attorney if the statement concerning the prior drug transaction was related to the case and then proceeded to give the jury the following cautionary instruction: He [the government attorney] says it is, we'll have to wait and see. I don't know. We'll have to wait and see. You be cautious, listen to what is said. This is opening statement by both the government and the defendant. It's not proof, it's allegations. It doesn't mean anything. The only way it's going to mean anything is on the witness stand and the law that I tell you the way it is. I'm not belittling the fact that they need to make an opening statement, I'm just telling you that so you can take it and work from it.
(J.A. at 92.) (emphasis added). In this case, ...
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