UNITED STATES of America, Plaintiff-Appellee, v. Gregory WRICE (90-5703) and Tommy Goods (90-5479), Defendants-Appellants.
Nos. 90-5479, 90-5703.
United States Court of Appeals, Sixth Circuit.
Decided Jan. 23, 1992.
954 F.2d 406
Argued March 22, 1991.
Randall P. Salky (argued and briefed) Memphis, Tenn., for Tommy Goods.
William B. Seligstein (briefed), Wagerman & Seligstein, Memphis, Tenn., for Gregory Wrice.
Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge.*
PER CURIAM.
Tommy Goods, Gregory Wrice and Keith Boyce were indicted by a federal grand jury for possession of cocaine with intent to distribute, and for conspiracy to possess cocaine with intent to distribute. See
I
On August 19, 1989, officers of the Shelby County Metro Narcotics unit executed a search warrant at 3745 Dugan Circle, Apartment 1. The apartment‘s lessee of record was Gregory Wrice. Inside the apartment, the officers found Tommy Goods lying on a pallet asleep in the kitchen. Next to him were a pair of tennis shoes in which the officers found money and 25.5 grams of crack cocaine. In the bathroom, officers located another 28.8 grams of crack under the sink. They also discovered cooking tubes of a type often used in the preparation of crack cocaine, and a set of scales commonly used by drug dealers. Goods, Wrice, and Boyce were present in the apartment at the time of the raid, as were two other individuals, Stanley Neal and Willie Hackworth.
The police then took aside the persons found in the apartment and questioned them one by one. Goods, having been informed of his Miranda rights and having indicated that he understood them, admitted to Officer James Blackwell that the shoes in which the crack was found were his, but he denied owning the drugs or the money.
The defendants were then taken to the Metro Narcotics office for processing. While they were there, they asked to speak to the prosecutor handling their case. They were then placed in contact with an Assistant United States Attorney (AUSA). The AUSA, John Fowlkes, again advised them of their rights before speaking to them. In the course of the ensuing discussion, Goods admitted that “the dope was ours” and that it was to be taken to the Tulane Apartments for distribution to other dealers before being sold for consumption.
Goods and Wrice were released, appar
Before trial, the court considered a motion in limine from Goods, who argued that the statement he made to AUSA Fowlkes should be suppressed as the product of unlawful coercion. The motion was denied, and the statement was admitted at trial. Because the statement was hearsay as to Wrice, the statement was redacted at trial to eliminate references to him. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
As part of its case in chief, the Government attempted to introduce evidence of the arrest of Goods and Wrice at the Tulane Apartments. Both defendants objected. The district court sustained the objection. The court further ruled that Goods could be questioned about the matter only if he were to deny that he had told prosecutors that he and his codefendants intended to take the drugs to the Tulane Apartments for sale. When Goods testified in his own defense, he denied owning the drugs found at the Tulane Apartments. The district judge then permitted the prosecution to call Officer Pete Kenny of the Memphis Police as a witness. He was the officer who had arrested Goods and Wrice at the Tulane Apartments. His testimony provided details of the arrest.
In its effort to refute Goods’ disavowal of the incriminating statement he had made to Fowlkes, the prosecution asked Officer Blackwell, who was present when the statements were made, about the circumstances in which Goods made his incriminating admission. In the course of so testifying, Blackwell told the court that Goods had said: “The dope was ours” not “mine.” In this way, Goods’ unredacted testimony was admitted into evidence despite the ruling in limine that it was inadmissible against Wrice unless redacted.
On appeal, Goods argues that the district court erred in admitting the incriminating statements he made to Fowlkes. He also argues that the district court abused its discretion by admitting into evidence testimony about his arrest at the Tulane Apartments. He alleges that this is inadmissible propensity evidence under
II
Before we consider these issues, we must turn to the question of whether Wrice‘s notice of appeal has deprived this court of jurisdiction over his case. We hold it does not.
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion or notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise proscribed by this subdivision.
Id. (emphasis added).
As this court has interpreted the rule, the latest day for filing notice of appeal in a criminal case is ten days following entry of judgment. United States v. Christoph, 904 F.2d 1036, 1039 (6th Cir. 1990), cert. denied, — U.S. — , 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). A district court, however, may grant an extension up to thirty days for excusable neglect. Id. at 1040. Therefore, under special circumstances, the time for filing notice of appeal may be up to forty days.
In Christoph, supra, the appellant filed a motion for enlargement on the fortieth day after judgment, but the district court did not grant the motion until the forty-third day. This court held that, because the motion contained the information required in a notice of appeal, the appellate court could treat the appellant‘s motion for enlargement of time as a timely notice of appeal. Specifically, “the district court retains power, even outside the forty-day period, to grant the extension and validate a notice of appeal filed within the forty days.” Id. at 1040.
Likewise, in U.S. v. Hoye, 548 F.2d 1271 (6th Cir.1977), this court found jurisdiction over the appeal, even though a formal notice of appeal was filed more than eight months after the entry of judgment. There, judgment was entered on June 6, 1975, and a motion for extension was filed the following day. The extension was granted nunc pro tunc on February 4, 1976, and a formal notice of appeal was finally filed on February 13, 1976. The court reasoned that:
[W]here a document is filed within the 40-day period which represents a clear assertion of an intent to appeal, courts of appeal have the power to overlook irregularities where fairness and justice so require. Since the motion was itself timely filed and contained most of the essential facts required of a notice of appeal under Rule 3, Federal Rules of Appellate Procedure, we elect to treat it as being in substantial compliance with the requirements of that rule. We treat the provision for entry “nunc pro tunc” of the February 4, 1976 order as surplusage, noting that such provision would not cure the defect if it were otherwise fatal. Id. at 1273. (emphasis added). (citations omitted).
Christoph and Hoye stand for the proposition that some document, which is not necessarily a motion for extension but which contains the information needed for a notice of appeal, should be filed within the forty-day time limit in order to appeal.
Other circuits have held that a motion for enlargement of time need not be filed or granted within forty days in order to retain jurisdiction. For example, in United States v. Kaden, 819 F.2d 813, 817 (7th Cir.1987), judgment was entered on April 10, 1985. Notice of appeal was filed on May 3, 1985, outside the ten-day period, but within the forty-day period. On June 13, 1985, approximately sixty days after judgment was entered, the defendant filed a motion for an extension of time. On June 14, 1985, the motion was granted. On appeal, the Seventh Circuit held that the district court had not abused its discretion in granting the motion for extension of time. See also U.S. v. Vastola, 899 F.2d 211, 221 (3rd Cir.1990), vacated on other grounds, — U.S. —, 110 S.Ct. 3233, 111
Furthermore,
We thus hold that jurisdiction exists over appellant Wrice. Wrice‘s notice of appeal was filed within the forty-day outer limit and excusable neglect was found. The fact that the motion for an extension of time was filed and granted after forty days from the entry of judgment is irrelevant. As long as a notice of appeal, or a document containing information required for appeal, is filed with the district court within forty days of judgment, this court has jurisdiction.
III
Since there is jurisdiction over Wrice, we consider the merits of his appeal. We hold that there is an adequate basis to affirm Wrice‘s conviction.
Wrice challenges the sufficiency of the evidence, arguing that the drug equipment was found in the bathroom and not in his immediate reach, and that the drugs themselves were in the living room in an area readily accessible to everyone in the house, not just Wrice. However, the drugs were in Wrice‘s apartment, as was the equipment for cooking and weighing the cocaine base. There was a statement by a co-defendant that all three defendants owned the drugs, and planned to distribute them, and Wrice‘s subsequent arrest at the place of distribution indicated plan and opportunity. Clearly, there was sufficient evidence to support a finding of guilt beyond a reasonable doubt.
Wrice also complained that the trial court improperly redacted a statement that implicated his co-defendant. Yet, Wrice has no standing to assert that his co-defendant‘s right against self-incrimination was violated. Wrice makes an argument based on Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), that the redaction and Goods’ subsequent testimony taints Wrice. Bruton involved a drug trial in which a co-defendant‘s extra-judicial confession was found to implicate defendant. However, in Bruton, the co-defendant did not testify. In the instant case, it is clear that the declarant not only was available, but actually testified, and therefore there is no Bruton violation. As a result, we find ample basis to affirm Wrice‘s conviction.
IV
We now turn to Goods’ case. He contends that his admission of ownership of “the dope” was involuntary, and elicited by promises of leniency and immediate release in violation of his Fifth Amendment rights.
When a defendant asserts that a confession was coerced by a promise, the burden is on the Government to prove, by a preponderance of the evidence, that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). In determining the voluntariness of a confession, a reviewing court will not disturb the trial court‘s find
In determining the circumstances of Wrice‘s confession, the district court chose to credit the testimony of Officer Blackwell over that of the defendant. According to Blackwell, Fowlkes gave the defendants their Miranda warnings, and explained the possible penalties authorized by the statutes that might be involved in a prosecution of the three defendants. Fowlkes also explained, Blackwell said, that the Sentencing Guidelines established a procedure for allowing the Government to move to reduce a convicted defendant‘s sentence where he has given substantial assistance to the authorities. See
Testifying on his own behalf, Goods claimed that he agreed to cooperate, and that Blackwell had told him that the case would be dismissed if all three of the accused arrested in Wrice‘s apartment cooperated by working undercover for the police. Goods also testified that Blackwell told them that they could “walk out like they walked in,” if they cooperated by working undercover. Nonetheless, the court below concluded that Goods had not been “baited” into admitting ownership in exchange for a
We find nothing clearly erroneous in the factual determination of the district court‘s ruling. Turning to the legal issue of whether the confession was voluntary in the circumstances found by the district court, we concede, for the sake of argument, that a promise of lenient treatment or of immediate release may be so attractive as to render a confession involuntary. See Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir.1987), reh. denied en banc, 818 F.2d 865 (5th Cir.1987), on remand, 674 F.Supp. 229 (E.D.Tex.1987) (a promise of immediate release or that any statement will not be used against accused is a promise so attractive that it renders resulting confession involuntary). We find nothing in the discussion between Goods, Fowlkes, and Blackwell rising to the level of an irresistible inducement that would render the confession involuntary. Cf. Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct 202, 203-04, 50 L.Ed.2d 194 (1976) (confession during course of negotiating plea bargain, which was later withdrawn, was not involuntary). Nothing in the record indicates that Goods was especially sensitive to pressure, that he had been physically abused, or that his emotional or psychological equilibrium had been upset by his treatment at the hands of officials. Indeed, it was defendants who asked to speak to a prosecuting official. From this fact, it is reasonable to infer that the ensuing discussion about sentence reduction and undercover cooperation was within the contemplation of the defendants when they asked to talk to a prosecutor, and not the result of illegitimate efforts to coerce them to confess.
V
The next matter to be considered is Goods’ contention that evidence of unrelated misconduct was admitted erroneously and to his prejudice.
Evidence of unrelated misconduct may not be admitted to prove conduct in con
Goods claims that the district court abused its discretion in permitting Officer Kenny to testify because “by allowing this testimony[,] the district court judge gave the jury the opportunity to convict defendant Goods for conduct proving propensity rather than for the offense for which he was on trial.” He does nothing more to demonstrate an abuse of discretion on the part of the district court.
This argument articulates the reason why
[e]vidence that an accused committed an act on one occasion is not in and of itself evidence that such a person did a similar act on another occasion. In other words, testimony that a defendant ... may have committed at some subsequent time an act similar to the act or acts alleged in the indictment in this case may not be considered by the jury in determining whether the accused in fact committed any act alleged in the indictment. Indeed, evidence or testimony concerning an act [of a] similar nature allegedly committed at some time or place not charged in the indictment may not be considered for any purpose whatsoever unless the jury finds that the other evidence in the case, standing alone, establishes beyond a reasonable doubt that the accused did the particular act charged in the indictment....
These instructions state the applicable law accurately. The offense with which Goods was charged has two elements: possession of cocaine, the actus reus, and an intention to distribute it, the mens rea. Each element must be proven beyond a reasonable doubt. Hence, when a jury considers a “possession with intent case,” it must separate the issues of possession and intention and consider first whether the evidence is sufficient to support a finding of possession beyond a reasonable doubt. Only then may the jury turn to the question of the defendant‘s state of mind. In making the former determination, the jury may not take
Appropriate curative instructions, such as those given in this case, are generally held sufficient to curb the jury‘s putative tendency to convict on the basis of propensity evidence. See United States v. Ellzey, 874 F.2d 324, 329 (6th Cir.1989). Accordingly, we find no abuse of discretion in the district court‘s admission of Officer Kenny‘s testimony.
For the foregoing reasons, the convictions of both Gregory Wrice and Tommy Goods are AFFIRMED.
BOGGS, Circuit Judge, concurring in part and dissenting in part.
I concur in all that the court‘s opinion has to say with regard to defendant Tommy Goods. With regard to defendant Wrice, however, I would hold that we do not have jurisdiction over his appeal. With regard to the jurisdictional point, the court‘s opinion amply sets out the relevant texts and the ambiguity contained in
The fundamental problem created by the court‘s decision is stated quite plainly in the court‘s concluding sentence on this subject (page 410):
As long as a notice of appeal, or a document containing information required for appeal, is filed with the district court within forty days of judgment, this court has jurisdiction.
In other words, although this court will not normally take up such a case (and indeed, may well not be empowered to do so), such a document can remain in a kind of jurisdictional limbo until life is breathed into it at some later time. That spirit would be imparted by a motion, urging the court to extend, nunc pro tunc, the time for filing a notice of appeal. Under this court‘s decision today, such a motion may be made not only nearly a year late, as was done here, but apparently at any time. This creates a situation that is unsound in principle and is not required by the language of
I
The Case Law
Neither Christoph nor Hoye is on all fours with this case. In Christoph, the motion for extension of time was made within the 40-day period. 904 F.2d at 1037. Only the district court‘s decision occurred outside the 40-day period. Id. at 1040. In Hoye, the motion for extension was made the very next day after judgment, and the court had simply never ruled on it. 548 F.2d at 1273. The court held that the motion for extension of time was itself a proper notice of appeal, and thus timely. Neither of the cases involved a notice filed outside the original 10-day period and a motion for extension filed outside the extended 40-day period.
II
The Textual History of the Appeal Rules
As noted by the court,
A glance at the 1967 Appellate Rules shows that the two rules were remarkably similar both in language and substance. The third paragraph of
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
Ibid. Except for the provisions requiring some requests involving civil appeals to be made by motion, these rules are practically identical.
The part of
A literal reading of [the 1967 rule] would require that the extension be ordered and the notice of appeal filed within the 30 day period, but despite the surface clarity of the rule, it has produced considerable confusion. See the discussion by Judge Friendly in In re Orbitec, 520 F.2d 358 (2d Cir.1975). The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time, and that if the motion is timely filed the district court may act upon the motion at a later date, and may extend the time not in excess of 10 days measured from the date on which the order granting the motion is entered.
Furthermore, the purpose of having a time limit on appeals, criminal or civil, is to create a condition of repose for litigation. The court‘s decision today introduces ongoing uncertainty into any such repose.
Edward ORLETT, Plaintiff-Appellee, v. CINCINNATI MICROWAVE, INC., Defendant-Appellant, James L. Jaeger, et al., Defendants. No. 90-3959. United States Court of Appeals, Sixth Circuit. Argued Aug. 5, 1991. Decided Jan. 23, 1992.