U.S. v. Ricketts

• Decision Date: 24 January 2003
• Docket Number: No. 01-1296.,No. 01-1055.,01-1055.,01-1296.
• Citation: 317 F.3d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Eugene RICKETTS; Donald Lee Swackhammer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

317 F.3d 540

UNITED STATES of America, Plaintiff-Appellee, v. David Eugene RICKETTS; Donald Lee Swackhammer, Defendants-Appellants.

No. 01-1055.

No. 01-1296.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2002.

Decided and Filed: January 24, 2003.

COPYRIGHT MATERIAL OMITTED

John C. Bruha (argued and briefed), United States Attorney's Office, Grand Rapids, MI, for U.S.

Christopher P. Yates (argued and briefed), Federal Public Defenders Office, Grand Rapids, MI, for David Eugene Ricketts.

Martin J. Beres (argued and briefed), St. Clair Shores, MI, for Donald Lee Swackhammer.

Before MARTIN, Chief Circuit Judge; NELSON and GILMAN, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

Defendants, David Ricketts and Donald Swackhammer, challenge their convictions growing out of a drug conspiracy involving a murder with a firearm. Though they were tried independently and at separate times, the clerk of court joined their appeals together. On appeal, Ricketts and Swackhammer raise between them several issues for review, ranging from the constitutionality of 18 U.S.C. § 924(c) to the admission of evidence. For the reasons that follow, we affirm the district court.

On the evening of April 7, 1996, David Ricketts, Donald Swackhammer and Michael McKinney drove to a duplex near downtown Grand Rapids to collect money for drugs previously sold. While the money involved was relatively insignificant, McKinney and Swackhammer brought sawed-off shotguns. As David Ricketts waited outside in the van, McKinney and Swackhammer entered an apartment where they found David Brock and Laurie Briggs. According to McKinney's testimony, Swackhammer first asked Brock for the money. On Brock's failing to produce the money, Swackhammer immediately began shooting. When Swackhammer began firing his shotgun, McKinney fled. As he ran, he heard Laurie Briggs screaming and then more shots. Brock survived the shooting, but Laurie Briggs died. All the shots fired were from Swackhammer's shotgun.

In November of 1998 a federal grand jury returned a five-count indictment against Ricketts and Swackhammer. The defendants were charged with conspiring to distribute various controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1), the use of a sawed-off shotgun in relation to a drug conspiracy in violation of 18 U.S.C. § 924(c), the murder of Laurie Briggs in connection with a drug conspiracy in violation of 18 U.S.C. § 924(i) [now codified as 924(j)], and possession of sawed-off shotguns in violation of 18 U.S.C. § 5861(d). They were also charged with being felons in possession of firearms in violation of 18 U.S.C. § 922(g).

After two separate trials involving multiple witnesses, each jury found Swackhammer and Ricketts guilty on all five counts. The trial court sentenced Ricketts to two consecutive life terms, plus ten years, along with two concurrent ten-year sentences. Swackhammer was subsequently sentenced to forty years for count one, ten years for count two, a consecutive sentence of life in prison on count three, and concurrent terms of ten years each on counts four and five.

On appeal, Swackhammer and Ricketts raise several issues for review. First, they jointly argue that counts two and three do not substantially affect interstate commerce and thus fall outside the Commerce Clause. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); See also United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Relying on the recent Supreme Court opinions of United States v. Lopez and United States v. Morrison, they argue that use of a firearm and committing a firearm murder in connection with a drug conspiracy, violations of 18 U.S.C. §§ 924(c) & 924(i), only affect intrastate commerce. Therefore, they contend that these acts fall outside the Commerce Clause of the Constitution. Both admit, however, that the underlying crime of a drug conspiracy does substantially affect interstate commerce. The use of a firearm and the commission of a firearm murder in a drug conspiracy are not free-standing statutes, but are tied to the underlying drug conspiracy offense which unquestioningly substantially affects interstate commerce.

Furthermore, Swackhammer's and Ricketts's actions are markedly different from those in Lopez and Morrison. Mere possession of a gun in a school zone or committing a gender-motivated crime of violence are substantially different from a firearm murder in a drug conspiracy or possessing a gun in a drug conspiracy. See Lopez, 514 U.S. at 561-562, 115 S.Ct. 1624; United States v. Morrison, 529 U.S. at 617-618, 120 S.Ct. 1740. We believe that 18 U.S.C. § 924(c) falls squarely within Congress' Commerce Power. See United States v. Nguyen, 155 F.3d 1219 (10th Cir.1998); see also United States v. Crump, 120 F.3d 462, (4th Cir.1997); United States v. Walker, 142 F.3d 103, (2d Cir.1998); United States v. Harris, 108 F.3d 1107 (9th Cir.1997). Not only does the use of a firearm in carrying out a drug conspiracy substantially affect interstate commerce, but a firearm murder committed in carrying out a drug conspiracy also substantially affects interstate commerce. See Nguyen, 155 F.3d at 1227; see also United States v. Miller, 283 F.3d 907, 914 (8th Cir.2002).

Donald Swackhammer argues independently that the district court abused its discretion when it refused to give his proposed jury instruction concerning impeachment by prior inconsistent statements. The issue is whether the jury considered out-of-court assertions used properly for impeachment purposes mistakenly as substantive evidence. Review in this Court is whether the jury instructions fairly and adequately cover the issues and state the applicable law for the jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991). In United States v. Gibbs, 182 F.3d 408, 432 (6th Cir.1999), we held that a district court's refusal to submit a proposed jury instruction amounts to reversible error only if the refused instruction is (1) a correct statement of the law, (2) not substantially covered by other included instructions, and (3) concerns an important point which impairs the defendant's theory of the case.

The jury instruction used by the district court in Swackhammer's case instructed the jury to consider whether "the witness said or did something ... that is inconsistent with what the witness said while testifying in the courtroom." Swackhammer's proposed instruction states "you have also heard that before this trial [the witness] made a statement that may have been different from his testimony here in court. The earlier statement was brought to your attention only to help you decide how believable his testimony was. You cannot use it as proof of anything else." Swackhammer's proposed instruction with its explicit hearsay limitation is not a correct statement of the law for the facts in this case. Several out-of-court statements made by McKinney were made under oath and hence could be used as substantive evidence. Fed.R.Evid. 801(d)(1)(A). Specifically, the United States admitted Michael McKinney's sworn statements at his guilty plea hearing on November 20, 1997, and his sworn grand jury testimony on December 16, 1997. Swackhammer's proposed jury instruction failed to distinguish between sworn statements that could be used as substantive evidence and unsworn statements that could not. The district court, therefore, did not abuse its discretion in refusing to give his proposed instruction.

Swackhammer also argues that the United States was required to prove premeditation for the charge of firearm murder set forth in count three. Furthermore, Swackhammer argues the failure to do so in this case resulted in a constructive amendment of the indictment, which violates the Fifth Amendment because the "accused [was not] tried only on those offenses presented in an indictment and returned by a grand jury." United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998) (citing Stirone v. United States, 361 U.S. 212, 217-219, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)).

The third count charges Swackhammer with firearm murder in furtherance of a drug conspiracy in violation of 18 U.S.C. § 924(i) [now codified as 924(j)]. This statute states "A person who, in the course of a violation of [§ 924(c)], causes the death of a person through the use of a firearm, shall-(1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life...." 18 U.S.C. § 924(j).

This statute incorporates the definition of murder found in 18 U.S.C. § 1111. The plain language of 18 U.S.C. § 1111 broadly defines murder, incorporating both first and second degree murder within its definition. 18 U.S.C. § 1111(a) states:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait or any other kind of willful deliberate, malicious and premeditated killing ... is murder in the first degree.

Any other murder is murder in the second degree.

This provision does two things: it defines murder "as the unlawful killing of a human being with malice aforethought" and divides murder into first and second degrees. All that is necessary to prove that a death is a murder under section 924(j) then is to show that it was an "unlawful killing of a human being with malice aforethought." Thus proof of only second degree murder is sufficient for proving murder under section 1111 and gaining a conviction under section 924(j).

Because the United States was not required to prove premeditation in order to convict Swackhammer for murder as defined in section 1111, Swackhammer's argument that there was a...