U.S. v. Robison
| Decision Date | 01 June 1990 |
| Docket Number | Nos. 89-3520,89-3724,s. 89-3520 |
| Citation | 904 F.2d 365 |
| Parties | 30 Fed. R. Evid. Serv. 521 UNITED STATES of America, Plaintiff-Appellee, v. Richard Rodney ROBISON (89-3724), and James Roosevelt Smoot (89-3520), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael Burns, Robyn Jones and Bradley D. Barbin, Office of U.S. Atty., Columbus, Ohio, Gregory G. Lockhart (argued), Office of U.S. Atty., Dayton, Ohio, for plaintiff-appellee.
Steven M. Brown (argued), Columbus, Ohio, for defendant-appellant, James Roosevelt Smoot.
Steven S. Nolder (argued), Columbus, Ohio, for defendant-appellant, Richard Rodney Robison.
Before MARTIN and JONES, Circuit Judges, and FEIKENS, Senior District Judge. *
Defendant James Roosevelt Smoot appeals his jury conviction and defendant Richard Rodney Robison appeals his guilty plea, each for conspiracy to distribute cocaine and possession with intent to distribute cocaine. For the following reasons, we affirm the conviction of Smoot and vacate the sentences of both defendants.
On March 9, 1988, the Columbus Police Narcotics Bureau executed a search warrant in a home in Columbus, Ohio. They seized many items, including approximately 27 grams of cocaine, four hand guns, drug paraphernalia, and syringes. Both Smoot and Robison were present in the house at the time. On November 3, 1988, the federal grand jury for the Southern District of Ohio returned an eight-count indictment charging seven defendants with various violations of the drug laws during a period from "on or about March 1, 1988 through and including May, 1988, the exact dates being unknown ..." J.App. (No. 89-3724) at 4. Specifically, it charged Smoot and Robison with conspiracy to maintain a place to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1982) (count I); unlawful possession of cocaine with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (count II); and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924 (count III). In addition, Robison was charged with using a person under eighteen years of age to aid or assist the unlawful distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 845 (count VIII).
After a two-day trial, Smoot was convicted on all three counts on February 7, 1989. The United States Probation Department determined that Smoot's conduct warranted a base offense level of 12 with a criminal history category of III, resulting in a sentence of 15 to 21 months, plus a mandatory 5 year term of imprisonment as to the firearm charge. However, the United States District Court, Judge James L. Graham presiding, departed upward from the Sentencing Guidelines and sentenced Smoot to five years imprisonment on count I, five years imprisonment on count II (to run concurrently), and five years imprisonment on count III (to run consecutively).
On March 13, 1989, Robison entered a plea agreement whereby he would plead guilty to count I in exchange for the government's promise to not prosecute the other three charges. On that same day, the district court unconditionally accepted the plea agreement. The Federal Probation Department then prepared a presentence report, which set Robison's base offense level at 18 and his criminal history as category II. This would result in a sentencing range of 30 to 37 months under the Sentencing Guidelines. At the sentencing hearing of May 19, 1989, the district court expressed concern that the recommended sentence did not adequately reflect the seriousness of the crime. The court disclosed that the Probation Department was recommending an upward departure to 96 months, but that such a departure was too much under the plea agreement. Therefore, the court rejected the plea agreement that had been earlier accepted.
On June 9, 1989, the court accepted the plea agreement again and ordered the Probation Department to conduct additional investigation and develop additional information for use in sentencing. At the third sentencing hearing on July 28, 1989, the court heard testimony from co-defendant Leslie Gregory concerning the quantities of narcotics involved in the case. On the basis of Gregory's testimony, the court arrived at a higher base offense level, taking into account the additional quantities of cocaine during the period of the conspiracy. In addition, the court increased the criminal history category to VI on the basis that Robison should be considered a career offender. The new base offense level and criminal history category resulted in a sentencing range of 210 to 260 months. However, due to Robison's cooperation in other cases, the court decreased the sentence to 144 months.
Smoot attacks two aspects of his trial: admission of certain testimony and the alleged amendment of the indictment.
Smoot objects to the admission of part of the testimony of alleged co-conspirator Jewell Cochran on the grounds that such testimony should have been excluded under Fed.R.Evid. 404(b). We review the district court's admission of evidence pursuant to Rule 404(b) under an abuse of discretion standard. United States v. Ebens, 800 F.2d 1422, 1433 (6th Cir.1986). Rule 404(b) provides that The decision on admission of the evidence requires a two-part analysis:
United States v. Vance, 871 F.2d 572, 575-76 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 323, 107 L.Ed.2d 313 (1989) (citation omitted).
In the instant case, Cochran testified about previous occasions where she sold drugs to Smoot, the most recent having been October 1987, five months before the indicted conspiracy began. Cochran also testified that Smoot informed her that he would sell the cocaine that she supplied to him. On two different occasions the district court issued limiting instructions to the jury concerning the testimony. On appeal, Smoot argues that Cochran's testimony was impermissible character evidence covering a time period which is remote and irrelevant to the indictment. As such, he maintains that this admission constitutes reversible error. In addition, Smoot objects to the similar testimony of Leslie Gregory as impermissible character evidence.
We believe that the evidence was properly admitted by the district court because it concerns Smoot's intent. Smoot's defense was that he was only a user of drugs. However, evidence indicating previous deals suggests that his intent was not merely to use. In United States v. Rodriguez, 882 F.2d 1059, 1064-65 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990), this court decided that evidence relating to a previous cocaine transaction was admissible under Rule 404(b) because it was probative as to defendant's intent to distribute the cocaine. Similarly, the testimony in the instant case is more probative than prejudicial, especially given the two limiting instructions given by the district court.
Smoot also argues that the trial court's instruction concerning the firearm count was improper. We review whether there was an amendment to the indictment de novo. United States v. Aguilar, 756 F.2d 1418, 1421 (9th Cir.1985). The original count three of the indictment, as read to the jury, charged that defendants "did knowingly carry a firearm, that is, a 357 Smith and Wesson revolver, serial number AJY 7855, during and in relation to drug trafficking crimes." J.App. (No. 89-3520) at 6. During its instructions to the jury, the court noted that "it is not necessary that the government prove that the defendant carried the exact firearm alleged in the indictment; rather, it is sufficient that the government prove that the defendant carried any firearm." Id. at 47-48. The court also instructed the jury that any defendant would be guilty if any co-conspirator carried any firearm and the defendant had knowledge of this act. Smoot alleges that these instructions constitute a constructive amendment to the indictment.
There are two types of modifications of an indictment--an amendment and a variance:
United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989) (citation omitted). An amendment is considered per se prejudicial while a variance is not reversible error unless the accused has proven a prejudicial effect upon his defense. United States v. Hathaway, 798 F.2d 902, 910-11 (6th Cir.1986). "[A] variance rises to the level of a constructive amendment when 'the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.' " Ford, 872 F.2d at 1236 (quoting Hathaway, 798 F.2d at 910). In Ford, the original indictment had charged the defendant with possession of a firearm "on or about September 28, 1987." However, the court instructed the jury that it could find the...
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