U.S. v. Wimbley
| Decision Date | 28 January 2009 |
| Docket Number | No. 07-6361.,07-6361. |
| Citation | 553 F.3d 455 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Russell WIMBLEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Guy W. Blackwell, Law Office of Guy W. Blackwell, P.C., Gray, Tennessee, for Appellant. Debra A. Breneman, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.
Before: BATCHELDER, GILMAN, and SUTTON, Circuit Judges.
Russell Wimbley was charged with three counts of distributing crack cocaine, in violation of 21 U.S.C. § 841(a), after allegedly selling varying quantities of the drug to a police informant on three separate occasions. He was convicted by a jury on all three counts and was sentenced by the district court to a mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) as a result of both his current and prior drug convictions. In this timely appeal, Wimbley contends that the district court erred by twice denying his motions for a mistrial after (a) a drug task-force officer testified that Wimbley had made "numerous" and "so many" sales to the informant, and (b) the prosecutor commented that Wimbley could have introduced fingerprint or DNA evidence if he had so chosen, but did not. Wimbley also argues that 21 U.S.C. § 841(b)(1)(A)'s mandatory life sentence requirement is unconstitutional. For the reasons set forth below, we AFFIRM the judgment of the district court.
In July 2006, officers from the Blount County Sheriff's Department executed a search warrant at the home of William Jones, looking for drugs. The officers found a very small amount of crack cocaine in the house. Jones admitted that he had been selling crack and identified the sources of his supply. As a result, the officers opened a new investigation in which Jones would act as a government informant, purchasing illegal drugs from his suppliers under the close supervision and control of the officers.
Prior to each purchase, the officers followed an established procedure of carefully searching Jones and his vehicle to ensure that he did not possess any illegal narcotics. The same search was repeated after each drug purchase. Jones was also fitted with a covert recording/transmitting device and was given a cash incentive of $100 per purchase.
In August 2006, Jones placed a recorded call to Wimbley (the defendant) during which the officers recognized Wimbley's "distinctive voice." Jones agreed to meet Wimbley at the latter's house on Laurel Lane in Blount County. The two men met and went inside the house, where Wimbley sold Jones crack cocaine. During the transaction, Wimbley could be heard via Jones's transmitting device saying "you're killing me, I'm not making any money on this." After the purchase, Jones turned over 46.1 grams of crack cocaine to the officers.
The second controlled purchase occurred in September 2006. Jones, again acting under directions from the officers on the case, contacted Wimbley about buying more drugs. Wimbley told him to go to a house on Belfast Street in Maryville, Tennessee. After Wimbley didn't show up to meet him, Jones called back and they arranged an alternative meeting place at a house on Brown School Road in Blount County. Jones met Wimbley at the house and attempted to purchase $2,300 worth of crack. Wimbley did not have that amount of crack ready for sale, but offered to make up the difference in powder cocaine. Per his instructions from the officers, Jones said that he was interested only in crack. Jones ultimately received 29.8 grams of crack in the purchase.
In November 2006, Jones made a third and final controlled purchase from Wimbley. He met Wimbley at a house on West Fulton Street in Alcoa, Tennesse and came away with 67.3 grams of crack cocaine.
A federal grand jury indicted Wimbley on November 7, 2006 on three counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a). The officers instructed Jones to persuade Wimbley to meet with him one more time on the day following Wimbley's indictment. After numerous attempts, Jones got Wimbley to agree to meet him at a fast-food restaurant. When Wimbley arrived, local and federal law enforcement officers surrounded him and placed him under arrest. Wimbley broke free and fled, but was soon apprehended.
At Wimbley's trial, the parties stipulated that the substances at issue were crack cocaine, and also stipulated to the quantity of the substances as determined by laboratory testing. The government presented the testimony of three members of the drug task force that had arranged the controlled purchases, as well as the evidence custodian. Wimbley presented no witnesses or other evidence.
During the direct examination of Sergeant Shaffer, an officer with the drug task force, the prosecutor asked if the second controlled purchase took place at the same location as the first. Shaffer responded, (Emphasis added.) Defense counsel did not raise a contemporaneous objection to Shaffer's response.
During Sergeant Shaffer's cross-examination, the following exchange occurred:
(Emphasis added.) Defense counsel did not contemporaneously object to this testimony, either.
After returning from the mid-day recess, defense counsel moved for a mistrial, alleging that Sergeant Shaffer had testified to "numerous buys that took place in addition to the three" at issue. The district court held the motion for mistrial under advisement. Later in the day, the court returned to the issue, stating in part:
The Court, in considering this testimony, believes that at worst it is confusing and does not constitute grounds for a mistrial. The language as to "numerous buys," if erroneously admitted, the Court would find was accidental and isolated.
The Court believes, based on a review and consideration of relevant Sixth Circuit jurisprudence, that a curative instruction will alleviate any confusion the jury might be under; and, as a result, the statement, if otherwise erroneous, would not be overly prejudicial.
The district court informed the parties that it would tell the jurors upon their return that Wimbley was on trial solely for the particular crimes charged in the indictment and that they were to limit their consideration to those offenses. Defense counsel then asked the court to delay its curative instruction until the close of trial. After confirming with counsel that it had properly understood the request, the court agreed to give the instruction at the end of the trial.
Defense counsel stated in his closing argument that the police should have conducted DNA or fingerprint testing on the bags of crack cocaine purchased by Jones, and that their failure to do so was a fatal flaw in the government's proof. He went on to tell the jury that he was "offended that government officers would suggest that it's too expensive ... or that it's not necessary" to perform such testing. In rebuttal, the prosecutor addressed defense counsel's assertion as follows:
[T]o suggest that the Government didn't do enough to bring the proof to bear by virtue of not doing fingerprint analysis or DNA analysis, you heard the officers testify that it wouldn't have done any good.
What you didn't hear is that the Defendant didn't try to do it or have it done. The Defendant has the ability to have these things tested, too, for fingerprints and DNA. If it was such a big deal to him, why didn't he have it tested, if he thought it would help him? But, no, he just wants to complain because we didn't go and do these things that we don't think are necessary to prove the guilt of Russell Wimbley.
Defense counsel did not object to the prosecutor's rebuttal argument.
The district court went on to charge the jury, cautioning repeatedly that the government had the sole burden of proof, that Wimbley was presumed innocent, that he was on trial only for the three crimes charged, and that Wimbley had an absolute right not to testify or present any evidence. Neither party objected to the charge as given. After the jury began deliberations, however, defense counsel moved for a mistrial on the grounds that the prosecutor, in his rebuttal, had "made specific reference to Mr. Wimbley's failure to testify." Defense counsel stated:
[M]y objection would be on counsel's argument to the jury that we didn't provide any fingerprint analysis or DNA analyis. The burden is on the Government, as the Court knows, and that was inappropriate.... He suggests to this jury that we had some...
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