U.S. v. Sammons, No. 88-6311

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: RALPH B. GUY, Jr.
• Citation: 918 F.2d 592
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee SAMMONS, Defendant-Appellant.
• Docket Number: No. 88-6311
• Decision Date: 05 November 1990

Page 592

918 F.2d 592 UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Lee SAMMONS, Defendant-Appellant. No. 88-6311. United States Court of Appeals,
Sixth Circuit. Decided Nov. 5, 1990.
Rehearing Denied Dec. 17, 1990.

Page 594

John W. Gill, Jr., U.S. Atty., James R. Dedrick, Asst. U.S. Atty., Knoxville, Tenn., Steven H. Cook, Asst. U.S. Atty. (argued), Chattanooga, Tenn., for plaintiff-appellee.

Tim S. Moore (argued), Newport, Tenn., Michael Lee Sammons, Jesup, Ga., for defendant-appellant.

Before KEITH and GUY, Circuit Judges; and LIVELY, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

The defendant, Michael Sammons, appeals his conviction and 22-year sentence for violation of the Travel Act, 18 U.S.C. Sec. 1952(a)(3), ¹ possession of marijuana with intent to distribute; 21 U.S.C. Sec. 841, ² importation of marijuana; 21 U.S.C. Sec. 952(a), ³ and conspiracy to import and distribute marijuana, 21 U.S.C. Secs. 846 and 963. ⁴ Sammons has submitted numerous allegations of error on appeal, including, inter alia : (1) deprivation of his right to trial by jury through an unknowing and uninformed waiver; (2) violation of his fifth amendment right to due process and sixth amendment right to counsel through the unlawful seizure and sequestration of funds; (3) deprivation of due process by the trial judge's refusal to recuse himself, see 28 U.S.C. Secs. 144, 455(a); (4) selective and vindictive prosecution; (5) participation of the sentencing judge in plea negotiations in violation of Fed.R.Crim.P. 11(e)(1); (6) deprivation of due process and the sixth amendment right to counsel by the government's failure to provide access to a law library or advisory counsel; (7) deprivation of due process through the government's withholding of the addresses of witnesses; (8) deprivation of due process by the trial court's reliance on invalid prior convictions in sentencing, see United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); (9) violation of the double jeopardy clause in sentencing; and (10) excessive sentencing. Upon careful consideration of each issue presented, we find no error meriting remand, and, accordingly, affirm the conviction and sentence.

Page 595

I.

Factual Background

In September of 1986, after serving approximately two years of a three-year sentence for violation of various federal narcotics trafficking laws, ⁵ Sammons was transferred from prison to a halfway house in Chattanooga, Tennessee. The evidence produced at trial reveals that from the time of his release until at least July of 1987 the defendant engineered and executed a scheme to import marijuana into the United States involving several accomplices, two trips across the Mexican border, and the smuggling of at least 42 pounds of the drug into the country. In August of 1987, a federal grand jury sitting in Chattanooga, Tennessee, returned a five-count indictment against Sammons, at which point he chose to flee rather than face trial.

Sammons was finally apprehended in September of 1988 and brought before the United States District Court for the Eastern District of Tennessee for arraignment. Although fully informed of his right to appointed counsel, Sammons, whose dealings with the courts have been extensive, ⁶ elected to represent himself. Sammons does not contest the fact that the court repeatedly emphasized the gravity of his decision to proceed without legal representation, and that these admonitions made him sufficiently aware of the "dangers and disadvantages of self-representation," Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), to satisfy the requirements for a valid waiver of counsel set out in United States v. McDowell, 814 F.2d 245 (6th Cir.1987).

On July 12, Sammons requested appointed counsel for the limited purpose of engaging in plea negotiations. The request was granted, but negotiations proved fruitless. On September 1, the defendant signed a Rule 23 waiver of jury trial and the case was thereupon tried to the court. After presiding over the two-day trial, Judge Allan Edgar entered a memorandum opinion and order thoroughly addressing the facts on record and finding Sammons guilty on all counts. The case was then referred to the United States Probation and Parole Office for preparation of a presentence report. Upon consideration of the presentence report and a special drug offender notice, Judge Edgar sentenced Sammons to a 22-year term of imprisonment to be followed by a five-year special parole term. Sammons thereupon filed this appeal.

II.

Right to a Jury Trial

In his first claim of error, Sammons maintains that his waiver of trial by jury was not knowing and intelligent, and that his conviction must therefore be vacated and a new trial ordered. Upon examination of the facts on the record, we find nothing to support this contention.

On September 1, the court held an evidentiary hearing on the defendant's motion to dismiss on the basis of vindictive prosecution. Toward the end of that hearing, defendant's appointed standby counsel requested a ten-minute recess in order to consult with the defendant about a matter that could "have a substantial impact on the proceedings." The request was granted. Upon return from the conference, Sammons informed the court that he wished to "make an oral motion for a bench trial as opposed to a jury trial." The court asked the government whether it had any

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objections. After a 15-minute recess, the Assistant United States Attorney stated he had none, and the court indicated that the trial would be to the bench. ⁷ At the conclusion of the evidentiary hearing, the defendant signed the following written statement: "I have requested that this case be tried by the United States District Judge and, therefore, pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure, waive a jury trial." ⁸

In support of his contention that this waiver was not knowingly and intelligently made, Sammons notes that the district judge never informed him of the essential attributes of a jury trial, the fact that the right to such a trial is guaranteed by the Constitution, or the advantages of a jury trial over a bench trial. Sammons places particular emphasis on the fact that the district judge did not apprise him of the impact of the rules of evidence on the relative merits of a bench and a jury trial, and particularly of the fact that the judge, who had presided over previous criminal proceedings involving Sammons, would have knowledge of his prior convictions and unlawful activity of which a jury would not have. ⁹ Finally, Sammons points out the fact that Judge Edgar had knowledge of an earlier "Motion for Rearraignment" in which Sammons had requested permission to change his not guilty pleas to guilty. ¹⁰

We stated in United States v. Martin, 704 F.2d 267 (6th Cir.1983), that:

Criminal defendants may waive their right to trial by jury only if four conditions are met. First, the waiver must be in writing. Second, the government attorney must consent to the waiver. Third, the trial court must approve the waiver. Fourth, the defendant's waiver must be voluntary, knowing and intelligent.

Id. at 271; see also United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4 (1943); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); United States ex rel. Wardick v. Chrans, 869 F.2d 1084 (7th Cir.1989); United States v. Anderson, 704 F.2d 117 (3d Cir.1983). Interpreting the "knowing and intelligent" requirement in Martin, we held that a "technical knowledge of the jury trial right" is not required for a waiver to be effective. We explained that:

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A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial. Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing and intelligent decision.

Martin, 704 F.2d at 273 (citation omitted). ¹¹ The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally required. In fact, the Seventh Circuit has held that a defendant who "understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge" had knowingly and intelligently waived his right to trial by jury. United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). Nevertheless, because of the importance of the right to a jury trial, the Seventh Circuit has elected to exercise its supervisory powers over the district courts by requiring that they explain to criminal defendants the following attributes of a jury trial:

(1) that a jury is composed of twelve members of the community, (2) that the defendant may participate in the selection of jurors, (3) that the verdict of the jury must be unanimous, and (4) that if the defendant waives a jury trial, the judge alone will determine guilt or innocence.

DeRobertis, 715 F.2d at 1178; see United States v. Delgado, 635 F.2d 889 (7th Cir.1981), and United States v. Scott, 583 F.2d 362 (7th Cir.1978). In Martin, we specifically declined to join the Seventh Circuit in exercising our supervisory powers on this issue. We explained that "[w]e are confident that such a rule will be unnecessary since district courts will take a few moments and inform defendants of their jury trial right on the record. These few minutes will avoid the troublesome, time consuming task" confronting courts of appeals addressing the issue without the benefit of a fully developed record. Martin, 704...