U.S. v. Wilson, 93-3536

• Decision Date: 30 August 1994
• Docket Number: No. 93-3536,93-3536
• Citation: 27 F.3d 1126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth K. WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1126

27 F.3d 1126

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth K. WILSON, Defendant-Appellant.

No. 93-3536.

United States Court of Appeals Sixth Circuit.

Argued March 24, 1994.

Decided June 24, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 30, 1994.

Nancy L. Kelley (argued and briefed), Office of the U.S. Atty., Cleveland, OH, for plaintiff-appellee.

David K. Greer (argued and briefed), Columbus, OH, for defendant-appellant.

Kenneth K. Wilson, pro se.

Before: RYAN and NORRIS, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant-Appellant, Kenneth K. Wilson, was indicted in the United States District Court for the Northern District of Ohio, Eastern Division, on four counts, viz., 1) violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(C), possession with intent to distribute cocaine; 2) violation of 18 U.S.C. Sec. 924(c)(1), use of a firearm in a drug trafficking crime; 3) violation of 18 U.S.C. Sec. 922(g) and 924(a)(2), being a felon in possession of a firearm; and, 4) violation of 21 U.S.C. Sec. 841(a)(1), transport and receipt of firearms for use in a felony. ¹

Prior to trial, defendant filed a motion to dismiss the indictment pending against him. The basis for this motion was an alleged violation of Article IV(e) of the Interstate Agreement on Detainers (IAD) as codified at 18 U.S.C. Appendix II. Specifically, defendant argued that after being indicted on the federal charges, he had been returned to state (Ohio) custody for disposition of pending charges for Carrying a Concealed Weapon (CCW) without first being tried on the federal charge. Defendant, in his motion to dismiss, asserted that this was a violation of the IAD, and the federal indictment was required to have been dismissed with prejudice. The district court denied defendant's motion without a hearing.

The case against defendant then proceeded to trial. Defendant was given a full opportunity to present his defense, including taking the witness stand to testify in his own defense. On the last morning of trial, January 15, 1993, defendant requested additional time because he was anticipating the arrival of two witnesses who would testify on his behalf. The district court granted defendant a delay of thirty minutes. When the thirty minute period had expired and the witnesses were not present, the district court ordered closing arguments to commence.

Apparently, soon afterward, one of defendant's witnesses arrived. The district court judge, however, refused to halt closing arguments and allow defendant to reopen his case.

The jury returned a guilty verdict on all three counts.

Defendant, pro se, filed a motion for a new trial claiming that he should have been allowed to present the testimony of witnesses even though they may have arrived late; that the evidence against him was insufficient; and, that he was denied the effective assistance of counsel. This motion was further supplemented pro se. Defendant then, with the assistance of counsel, filed another motion for a new trial. Finally, defendant, pro se, filed a motion to dismiss based upon the denial of his IAD motion. The district court denied all of defendant's motions.

A Pre-Sentence Investigation Report (PSR) was prepared. Defendant, pro se, filed objections to the PSR claiming, among other perceived errors, that the district court erred by enhancing his sentence under the Armed Career Criminal statute, 18 U.S.C. Sec. 924(e)(1) and U.S.S.G. Sec. 4B1.4. The district court overruled defendant's objections. A sentencing hearing was held at which time defendant renewed his objections. The district court again overruled the objections. Defendant was sentenced to 262 months imprisonment on counts one and three, to be served concurrently, and five years on count two, to be served consecutively with counts one and three. Defendant was also fined $5,000.00. Defendant filed a timely Notice of Appeal.

I.

In June of 1992, the Cleveland Police Department's narcotics division received information identifying a man, already known to police officers as defendant, who would be flying to Miami from Cleveland, accompanied by a woman, for the purpose of purchasing illegal drugs. The woman was later identified as Ms. Demetrius Mull. The couple was observed purchasing airplane tickets to Miami and paying for them with cash. Upon their arrival in Miami, the couple was observed by Drug Enforcement agents being met at the airport and leaving in a private vehicle.

On June 23, the Cleveland Police were notified by an informant that defendant was back in Cleveland with a quantity of cocaine. The police were able to locate defendant's vehicle and observe defendant. Defendant was seen placing a telephone call at a pay telephone booth. At that time, the officers approached defendant's vehicle. Inside Ms. Mull sat with a small child on her lap.

Defendant identified himself to police officers as Paul McCreery and produced a Michigan driver's license and City of Detroit employee identification card in that name. Detective Acklin arrived on the scene and positively identified "McCreery" as Kenneth K. Wilson. Wilson was placed under arrest. A search of Wilson uncovered a motel room key in his possession with the number "304" stamped on it.

Ms. Mull was also asked to produce identification. The police queried whether she possessed any guns. Mull confessed that she had a 9mm. pistol in her diaper bag which was found by the police. She was searched and a .22 caliber gun was also discovered in the waistband of her pants.

The motel key, discovered in defendant's possession, was for the Howard Johnson's motel located in North Randall, Ohio. The police obtained a search warrant for room 304 and discovered a loaded AR-15 rifle inside the room, with an extra ammunition clip found on one of the beds. Also unearthed were eleven bags of cocaine, found in a black briefcase under the other bed.

The manager of the motel revealed that the room had been registered to a Paul McCreery, who had provided a Michigan driver's license as identification. ² "McCreery" had also requested an extra bed for the room.

At trial, Wilson testified on his own behalf. He stated that he came from Detroit with two other people, Ms. Mull and Paul McCreery. He further stated that he was carrying McCreery's driver's license because he knew there was an outstanding warrant for his arrest. Defendant claimed that his time in Cleveland had been spent visiting acquaintances and that other people had used the motel room. He denied any involvement with either the cocaine or the gun.

At sentencing, the government introduced certified copies of defendant's three prior convictions in the state of Michigan for Criminal Sexual Conduct, Second Degree. Accordingly, the district court determined that, based upon these prior convictions, defendant qualified for enhanced sentencing as an Armed Career Criminal.

II.

Defendant contends the district court abused its discretion by not allowing him the opportunity to call two material witnesses on his behalf. Defendant argues that the district court's refusal to allow him to call these witnesses violated his Sixth Amendment right to present a complete defense. Defendant asserts that these witnesses would have provided testimony corroborating his version of the events.

This court has held that the conduct of a criminal trial is a matter within the discretion of the trial court and such discretion will not be disturbed in the absence of a clear showing of abuse. United States v. Serio, 440 F.2d 827, 831 (6th Cir.), cert. denied, 404 U.S. 838, 92 S.Ct. 129, 30 L.Ed.2d 71 (1971) (quoting United States v. Wade, 364 F.2d 931, 936 (6th Cir.1966)). The district court judge must consider the party's explanation for failing to introduce the evidence earlier, the admissibility of the evidence, its relevance, and the degree to which the opposing party would be prejudiced by reopening the case. United States v. Blankenship, 775 F.2d 735, 741 (6th Cir.1985). Furthermore, as the government notes, this court has stated that Fed.R.Evid. 611 provides that the district court has substantial discretion in exercising control over the mode and order of trial. United States v. Maddox, 944 F.2d 1223 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 400, 116 L.Ed.2d 349 (1991).

In the case at bar, at 9:00 a.m., defendant requested additional time for his witnesses to arrive. The district court granted defendant until 9:30. At that time, since the witnesses had not yet arrived, the district court ordered closing arguments to begin. During closing arguments, defense counsel apprised the court that one of defendant's witnesses was now present. The district court, however, determined that since defendant had been informed that court would begin at 9:00, and defendant had failed to have his witnesses there on time, it would be unreasonable to stop final arguments for testimony. Thus, the district court refused to permit defendant to re-open his case. At the close of arguments, defendant proffered that the witness would have testified that he was with defendant on that day, he had driven defendant around town visiting acquaintances, and could substantiate defendant's testimony.

It would have been permissible for the district court to allow the testimony. It cannot, however, be said to have been an abuse of the district court's discretion to deny defendant's request. The judge had clearly informed the parties that court was to commence at 9:00. The judge then gave defendant an additional one-half hour. As the deadline passed, his witnesses were still not present. There was no indication that defendant's witnesses were ever going to arrive. A further delay in the trial could have been pointless. Hence, the district court made a sound decision to move ahead with the trial. To then allow the testimony of a witness after closing arguments would have provided defend...