United States v. Richard Anthony Aloi, Cross-Appellee

Mich.Comp.Laws Ann. turn to next We 257.324(l)(e), America, which Zaitona Plaintiff-

§ statute UNITED STATES of Appellee, Cross-Appellant, It reads having of violated. convicted was part as follows: relevant (1) any do person A shall not 324. Sec. Anthony ALOI, Defendant- Richard following: Appellant, Cross-Appellee. 91-3830,

Nos. 91-3879. Appeals, United States Court of (e) give or name or a false fictitious Use Sixth Circuit. applica- fictitious in an a false or address li- operator’s an or chauffeur’s tion for Argued Aug. 1993. cense, an any duplicate of or renewal or 29, 1993. Decided Oct. license, or know- operator’s or chauffeur’s Rehearing knowingly Rehearing Suggestion ingly statement or make false otherwise com- En Banc Dec. a material or Denied conceal fact making application. mit a fraud added.) the text (Emphasis is clear from As statute, knowledge materiality are pled crime Zaitona of the to which

elements that, again, we note Zaito- guilty. And once legal actually BIA’s does not contest the na knowledge materiality conclusion that crime. are both elements this Finally, the BIA’s Zaitona does not contest pres- finding that were factual both elements light explicit And in his case. ent court, sentencing made we statements substantial evi- must conclude there was underlying findings the BIA’s dence score. short, challenges presents Zaitona simply not relevant to the determination

are in this conclude to be made case. We holding err in that Zaitona’s the BIA did not Ann. Mich.Comp.Laws conviction 257.324(l)(e) turpi- crime of moral tude.

AFFIRMED. Schmitz,

Joseph Atty., P. Asst. U.S. David Cleveland, OH, Sierleja, Connelly A. Sean briefed), Justice, (argued Dept, and Div., DC, Washington, plaintiff- Criminal appellee cross-appellant. Marek, Defender,

Edward Fed. Public De- briefed), Hughes (argued M. bra Federal Office, Cleveland, OH, Public Defender’s (briefed), Akron, OH, Matthew Fortado defendant-appellant cross-appellee. Aloi, Anthony pro Richard se. KENNEDY, KEITH and Before: Circuit CONTIE, Judges, Judge. Senior Circuit

KENNEDY, Judge. Circuit Anthony

In this defendant Richard appeals being Aloi his convictions for a felon possession firearm and ammunition 922(g)(1), § violation of 18 U.S.C. F.Supp. government cross-appeals 55. The the District Court’s refusal to sentence de- fendant under the Armed Career Criminal Act, 924(e)(1), which have U.S.C. would fifteen-year required a sentence. For the below, reasons set forth we affirm defen- convictions, but vacate defendant’s dant’s sentence.

I. appeal, issues On defendant raises several surrounding conviction. The relevant his giving underlying facts of the events rise to presented his arrest and conviction will be with each issue. not remember defen- Suppress testified that she did Motion to A. Brown, officer, “saying” parole James dant’s challenges the denial first “implying” that “defendant could even or guns am suppress the his motion The United in a house with firearms.” was arrested munition found. Defendant testimony to Brown’s rebut States offered 9, Sergeant Donald Mollo October testimony. The entire rebuttal Witzman’s Ohio, Township, Police Springfield han of the following: testimony consisted Defendant, asleep in who was Department. Sir, you explain Kathy Q. did to Witzman ear, shopping in a wife’s

his common-law permitted to live in a that Mr. Aloi was not lot, drawn the attention parking had center present? guns where were house that defen Rickey believed of a Glass. Glass flagged in need of assistance dant was A. Yes. approached the Mollohan. Mollohan down Sir, Kathy Q. you explain to Witzman did sleeping with car and observed defendant live in a house where that if Mr. Aloi did officer in his hand. The open bottle of beer in kept, Mr. Aloi would be guns were defendant, all asked he was awakened violation? Next, he for his driver’s license. and asked A. Yes. to the car and adminis asked defendant exit you explain Kathy Q. Did to Witzman the sobriety tests. tered field a consequences of such violation? car, Mollo- standing outside of the While A. Yes. vinyl bag front a on the han observed black Q. you her if she understood that Did ask what was seat. Mollohan asked defendant information? twice, that bag defendant claimed the A. Yes. important” bag. “nothing there “Well, if testified that he then said: Mollohan respond? Q. And did she what I nothing important, can look it?” there is A. That she understood. bag replied, “Yes.” The con- scope “Determining the use and of rebuttal a handguns, three ammunition and tained of lies within the broad discretion evidence woman’s scarf. Levy, the district court.” United States motion, denying the District Cir.1990) (6th 1026, (citing 904 F.2d testimony Mollohan’s on defen Court found Goodwin, 770 F.2d United States to be credible dant’s consent to the search (7th Cir.1985), denied, 474 U.S. undisputed. The District Court’s factual (1986)), cert. error; findings aside for clear will be set credibility are owed and its determinations testimony Brown’s L.Ed.2d 1060 trial court’s deference due to the substantial served to contradict Witzman’s earlier testi ability of the wit to observe the demeanor mony. no abuse of discretion. We find Garcia, 866 F.2d ness. United States v. Cir.1989). (6th do not find this 151-52 We Dire C.Voir clearly to be erroneous. conclusion following made the re- Defense counsel during quest of the District voir dire of Court Testimony B. Rebuttal jury: assignment next of error Defendant’s I would like the Court MR. FORTADO: decision to allow rebut is the District Court’s inquire them or of them as instruct that testimony. tal Defendant claims knowledge of the Defendant’s their testimony purpose introducing this sole testify, not to incriminate. not to emphasize status as a was to defendant’s jury. parole” to the I don’t do that. I do it “convicted felon on THE COURT: every get. throughout the trial chance I Witzman, Kathy defendant’s common-law strong very It’s a instruction at the end. wife, that defendant testified that she knew argues that he was entitled to of his Defendant possess could not firearms because question during specific asked voir previous felony Witzman also have this convictions. any you court did THE Do complains that the COURT: believe dire. He also Defendant, Aloi, indicted, jury during the trial Mr. has been not remind testify. required to likely was not guilty that it is more that he is than given the court following instruction was guilty? any you that he is not Do jury: the fact that an believe individual has been likely indicted makes it more that he is presumed by the law to Defendant is guilty guilty? than that he is not require law does not innocent. The pro- prove his innocence or Defendant to glad everybody I am to see that remem- all, any at and no inference duce evidence high school An bers their Civics class. may from the election whatever be drawn merely informing indictment is means of testify. The Gov- of the Defendant not person charged. of a crime he has been proving of him ernment has the burden It not and not is evidence does indicate guilty beyond a reasonable doubt of each charge. [anything] other than a every element of the crime and essential you charged jury if it fails to do so must The venire and court also asked the and the acquit anyone him. problem whether would have a abid- ing by jury; the court’s instructions to no the judges trial have broad dis Federal person answered the affirmative. questions determining what to ask cretion during Rosales-Lopez v. United voir dire. The issue here is whether this Court States, 182, 189, 101 S.Ct. principle of will extend the Blount to the (1981). “Judges need 68 L.Ed.2d requested ques facts of this where the counsel; every question not use submitted presumption tion dealt not with the of inno antici they need use those to which an cence, but with the of a criminal defen response for a pated would afford the basis testify against dant not to himself. The Su Fish, challenge for cause.” United States preme Court has held that the failure of a — (6th Cir.), 185, 186 F.2d jurors’ speculation trial “to limit the court —, U.S. meaning of’ the a defendant’s silence when (1991). testify, by giving request he chooses not to a instruction, support position, limiting jury

In of his defendant cites “exacts an im ed (6th Blount, States v. 479 F.2d 650 permissible United toll of the full and free exercise” Cir.1973). Blount, panel a divided re privilege against Fifth of the Amendment a defendant’s conviction versed because Kentucky, self-incrimination. Carter v. request trial court refused the defendant’s 288, 305, 1112, 1121, jurors accepted prospective ask if the sug The Court did not L.Ed.2d principle that a defendant is inno bedrock gest subject also be covered in that the must guilty. proven until See also United cent here, specific question voir asked dire. (6th Hill, States v. 738 F.2d Cir. jurors’ namely, “knowledge” of a defen 1984), govern (presumption of innocence and testify, not to would not itself dant’s proof beyond a ment’s burden of reasonable challenge Only if ground a for a for cause. doubt). purpose primary “The of the voir being after instructed that the defendant’s jurors empan- possible of is to make dire testify against failure to could not be held jury questions elling impartial through of an inability comply him and the refusal or permit intelligent exercise of chal instruction, they could be chal with that Blount, F.2d lenges counsel.” at 651 lenged hold that the failure of for cause. We (citing Wright, 2 Federal Practice and Proce request to honor the did the District Court ¶ (1969)). dure, 382 The Court believed that empaneling a biased the risk of create request made it the failure to honor this jury, given questions voir dire the court’s impartial jury. impossible empanel jury presumption about the instructions instruction that “no infer innocence and its question the venire The District Court did may from the elec be drawn ence whatever presumption about the of innocence afforded testify.” tion of the defendant not a criminal defendant. transcripts are avail Sufficiency court records or the Evidence D. documenting the facts. able attacking convic- his a final basis As ease, opposed the present In the defendant sufficiency tions, a raises defendant for enhancement under government’s motion challenge. This claim has no merit. evidence 924(e), Crimi- the Armed Career U.S.C. was a con- stipulated that defendant It was (“ACCA”) that two of grounds Act on the nal gun ammunition that the victed felon and prior his convictions were invalid. We be- lines, and there was across state traveled acted within its lieve that the District Court defendant knew of the ample evidence that when it entertained defendant’s discretion guns in the ear. presence of the challenge sentencing. at mandatory fifteen-year prescribes ACCA Enhancement II. Sentence with at least sentence for firearm offenders banc, sitting en decid- Recently, this Court prior convictions for violent felonies or three may question of whether ed the drug government re- serious offenses. The challenge prior state court convic- the use of as on four State of Ohio convictions lied sentence enhancement purposes tions for qualifying predicates: a 1967 armed ACCA Sentencing Guidelines on conviction, trial; following jury robbery are invalid. grounds that the convictions convictions, guilty on and three 1979 based McGlocklin, 1037, v. 8 F.3d United States single pleas separate to counts of a indict- (6th Cir.1993) (en banc). majority A 1045 burglary aggravated for two counts of ment decided that a district court the Court has of felonious assault. The Dis- and a count to entertain such chal- has broad discretion trict Court held that the two 1979 convictions sentencing. lenges at aggravated burglary only as one counted they because constituted a crime challenge proposed prior use of a offense To the spree. government challenge sentencing purposes, The does the de conviction finding appeal. comply proce with the fendant must first objecting requirements for to the dural that the 1967 The District Court also held criminal histo conviction’s inclusion the robbery conviction for armed was unconstitu- ry also state score. The defendant must obtained, tionally and could not be counted grounds for the specifically the claimed First, the court concluded ACCA. invalidity prior constitutional conviction’s that the Ohio court that tried defendant’s objection anticipated and “the his initial (the court”) robbery 1967 armed case “Ohio invalidity by proof of will be means which charge jury. gave a coercive Allen to the by documentary attempted evi —whether Second, the court found that defendant had records, dence, including state court testi advised, not been and was unaware of his evidence, monial or combination —with appeal conviction. to the process and time need estimate of the the government The bears the initial burden of required the evidence.” ed to obtain establishing prior convic- the existence Jones, 105, 110 v. 977 F.2d [United States Here, government the satisfied its tions. — (4th Cir.1992), U.S.—, cert. by producing certified records of the burden (1993) 1335, 122 L.Ed.2d 719 113 S.Ct. convictions. The records further indicate (Jones II) ]. also v. [United See States represented by retained that defendant was (5th Canales, 960 F.2d Cir. throughout proceedings. the The counsel 1992) (the court is free to consid ] district prove burden then shifts to the defendant to including scope er a number of factors in fact unconstitu- that his convictions were contested, if inquiry, whether issue is tionally obtained. record). An invalidity apparent is from likely example challenge of a that would be Charge A. The Allen challenge pre be a to a entertained would unchallenged felony argues that the Ohio court im- viously conviction jury represented properly directed the to return a ver- where the defendant was not waived, dict, counsel, jury reported a by validly after the twice deadlock. counsel was not report- approved in Allen will rise the level of a transcript or court no trial There is judge, Judge only if “in The trial constitutional violation its context notes available. er’s Emmons, prosecutor circumstances, charge] is deceased. The all [the and under the living, Parke, but do not remem- counsel are ... defense was coercive.” Williams trial, (6th Cir.1984) took Aloi’s which (quoting the details of ber F.2d Jenkins ago. States, twenty years 445, 446, place over v. United 380 U.S. 85 S.Ct. 1059, 1060, (1965)), de only documentary evidence available nied, 470 U.S. a New was a Motion for to the District Court L.Ed.2d 787 The District Court following by counsel Trial filed defendant’s lacked the information needed determine two-page motion the 1967 conviction. Judge charge jury whether Emmons’ to the grounds, trial requested a new on several if was coercive. Even the reference Judge including allegation that Emmons financial would burden state shoulder jury to return a verdict. The coerced the jury agree improper, could not alleged judge “ad- further motion inquiry. A is not the end of the court re jury upon sending them back monished the viewing jury a claim that was coerced final deliberation that the State for their charge giv supplemental must “consider the being put great expense in con- Ohio was en the trial court ‘in its context and under they tinuing trial and should reach a [the] Phelps, all circumstances.’” great The District Court attached verdict.” Lowenfield 231, 237, 546, 550, weight allegations in the motion “since to the (1988) Jenkins, (quoting L.Ed.2d 568 attorney jeopard- unlikely it that an would is 1060). U.S. at 85 S.Ct. at United standing of the bar ize his as member (6th Scott, States v. F.2d Cir. very judge had misstating facts to the who 1977), that no before, we stated that “the reminder days presided at trial a few juror merely acquiesce majority should in the V.C. Emmons.” late Honorable Claude motion, important opinion is ... one of the most solely on the content of the Based parts charge.” impossible It of the Allen is Judge that Emmons the District Court found judge’s to review defendant’s claim that the improperly emphasized the cost of a new had state, unduly with lim to both instruction was coercive trial to the and not the cost sides, is no documen jury to reach a verdict. ited record available. There failed charge “in its context and tation of the full sentencing also testified at Defendant all circumstances.” The District jury. judge’s exchange with the about the concluding in that defendant had Court erred that because the Defendant remembered unconsti proven that the 1967 convictionwas days, judge told the jury was out for five charge. by the Allen tutional reason of jurors they should be home since it was that However, the records indicate Christmas. Appeal B. Advice to jury part of two that the deliberated days retiring p.m. at 2:00 to deliberate argued 1967 also that the — 1967, 5, returning with their December was not was invalid because he conviction 6, p.m. at 3:00 on December verdict appellate rights. The District his advised of rejected The defendant’s testi- District Court had found that defendant established Court mony. right advised of his to that he was neither appeal, nor he appeal and to counsel on that the evidence credit We believe rights at the time of his aware of these sentencing hearing short of ed at the falls reason, the District conviction. For establishing that defendant’s conviction was the 1967 conviction was constitu Court found unconstitutionally obtained. As the District tionally not used for infirm and could may properly recognized, a trial court Court purposes under ACCA. enhancement jury its encourage a deadlocked to continue long recognized that there is It has been attempt to reach a verdiet. deliberations States, 492, 501-02, right appeal. constitutional to an no federal Allen v. United 164 U.S. (1896). States, 651, 656, 154, 157, Abney A v. United L.Ed. 528 S.Ct. (1977) (cit- 2038, 2034, charge 52 L.Ed.2d 651 charge strays far from the S.Ct. that too (“the (6th Cir.1970), Durston, 684, 150, failure of the ing v. 153 U.S. McKane also, (1894)); 913, notify L.Ed. 867 See defendant of his court to a convicted S.Ct. 745, 750, Barnes, 103 S.Ct. v. 463 U.S. Jones right appeal pauperis to in forma was state (1983). 3312, 3308, 77 L.Ed.2d 987 Su- of a federal constitutional action denial right to has held that once preme Court (citing approval)). Pre- right” McMann with created, statutorily that appeal has been sumably, rights these are worthless to a de- regard- right available to all must be made they know are available fendant who does not pay. Douglas v. Cali- ability to less of one’s necessary guarantee to him. The advice is to 814, 9 L.Ed.2d fornia, 372 U.S. 83 S.Ct. it poverty does not make more difficult equal protection principle This indigent to en- for an convicted include the Court to was later extended gage appellate process than for a convict- appeal right of counsel on to assistance money. with ed defendant Bosler, right. 386 U.S. as of Swenson (1967) 996, 997, Illinois, 87 S.Ct. Beginning with Griffin curiam). indigent right (per An defendant’s (1956), 100 L.Ed. 891 appeal appeal right to to counsel on will recognized money with Court those even in the absence of not be deemed waived judicial appel- could avail themselves of the request appointment appellate coun- effectively process more then those with- late at 997-98. sel. Id. at It held that states out the same resources. present the District Court may In the grant appellate review a manner knowingly that defendant did not or found against that discriminates convicted defen- intelligently right appeal his to or his waive ability pay. to dants on the basis of their right appeal.1 The District to counsel on can no more criminal trials State testimony found defendant’s that he Court poverty account of than on discriminate on appeal to be was unaware of his race, religion Plainly account of or color. credible. Defendant introduced affidavits ability pay no costs advance bears counsel, Rosen, his trial Bernard I. and the guilt relationship rational to a defendant’s prosecuting attorney, Edwin C. Pierce. or and could not be used as an innocence they stated that had no inde- affiants both deprive a defendant of a fair excuse pendent of whether defendant recollection trial. appeal had of his been advised anyone the Ohio court or else. The District 17-18, Supreme at at Id. 76 S.Ct. significance attach to the fact Court did not principle Douglas in Court reaffirmed affidavit was silent on whether Rosen’s The Swenson court also held Swenson. right he himself advised defendant of his appellate rights that waiver of these will not appeal. non-indigent a Defendant’s status as request be inferred from the absence of a change counsel did not with retained apparent counsel where it is that the defen- District conclusion that defendant did Court’s appeal. indigent dant is and desires an Id. appellate rights. knowingly waive his (empha- at at 997-98. however, believe, that defendant’s non- We added). sis indigent important is an and determi- status native fact. right appellate to advice about one’s rights equal protection prin- arises from the McMann, rel. v. United States ex Smith Griffin, ciple Douglas, established in (2d Cir.1969), F.2d prohibits discrimination on ac- Swenson poverty. court count of The Ohio was under (1970), Circuit held that the trial the Second obligation to a non- no constitutional advise court must advise convicted defendants of defendant, indigent represented by retained rights rights guaranteed appellate their counsel, appeal pau- in of his forma Douglas protection. in are to be afforded Cardwell, peris F.2d in 1967. See also Henderson (repealed § pro- 1. Under Ohio law in individuals were tions. Former O.R.C. 2953.05 1987). appeal convic- vided an as of from criminal offenders, repeat more harsh sentences on

III. concept idealistic has created some but the AFFIRMED. convictions are Defendant’s where the sentences are unconscio- situations is VACATED and sentence Defendant’s unrealistic, nable, unjustified. An indi- resentencing. REMANDED case is vidual, prior felonies occurred 14 and whose years ago, illegally possessed who several CONTIE, Judge, Circuit Senior handguns any underlying and did not commit concurring. crime, a should not be sentenced to mandato- in compelled to concur Although I am However, ignore ry years. I cannot great reluc- in this I do so with result mandatory provisions of Title 18 U.S.C. good simply that a facts state tance. The myself § I cannot convince that our but slumped in over Samaritan saw the conformity prin- is in with the determination shopping a area and parking in a lot of a car ciples proper of fair and administration provide assistance to an officer to contacted justice. the defen- The officer found the defendant. in car a asleep and found dant had fallen bag. in guns hand

can of beer and several illegal possession was because The firearms prior a felon whose convic- the defendant was in and 1979. There was tions occurred posses- underlying regard in to his no crime firearms were not the firearms. The sion of conjunction any criminal possessed in with ELECTRO-MECHANICAL CORPORA act. TION, for the Em Plan Administrator Aloi must be provides that Mr. The statute ployee Benefit Plan of Line Power Man mandatory years prison. to a sentenced ufacturing Corporation, Plaintiff-Appel provision in Title 18 U.S.C. There is no lee, 924(e)(1) of a sentence where for reduction of a firearm possession

the current OGAN, Ogan, Douglas L. Karen E. individ conjunction felon is not with convicted ually next friends of Nathan and as question that underlying crime. There is no Douglas Ogan, minor, Hamilton Bank illegal pos- Aloi committed the crime Mr. Special Upper Tennessee, Guard East felony had a of firearms when he session Upper ian, Bank of East and Hamilton record. Tennessee, Defendants-Appellants. severity The fault I find is sentence, I No. 92-6256. mandatory which find unconscio- the statute My complaint is with nable. Appeals, Court of United States open a window for non- which fails to leave Circuit. Sixth violations, imposes a but instead severe I mandatory cannot feel harsh sentence. Argued July my to this harsh sen- proud of concurrence 3, 1993. Decided Nov. I is mandated the statute. tence which truly I adminis- confident that am cannot feel

tering justice by my approval of the decision are majority. hope I further that we signals good sending wrong Samari-

tans. sentences, mandatory minimum which by Congress in statutes

have been enacted sentencing directed and have been situations, obviously guidelines in were other principle impose with the idealistic created

Case Details

Case Name: United States v. Richard Anthony Aloi, Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 29, 1993

Citation: 9 F.3d 438

Docket Number: 91-3830, 91-3879

Court Abbreviation: 6th Cir.