United States v. Finnell

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0235n.06
Filed: May 5, 2008
07-5258
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ANDRE C. FINNELL, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: DAUGHTREY, COOK, and FARRIS,* Circuit Judges.
PER CURIAM. The defendant, Andre Finnell, appeals both his conviction for
possession with intent to distribute five grams or more of cocaine base (crack cocaine) and
the 150-month prison sentence imposed upon him for that offense. Specifically, Finnell
asserts that the district court erred by allowing evidence of a prior drug-trafficking
conviction to be presented to the jury and by enhancing the defendant’s guideline offense
level for obstruction of justice. Finding no reversible error in connection with either
challenge, we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
*
The Hon. Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
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United States v. Finnell
Shortly after midnight on March 28, 2006, Officer Jonathan Mangus was sitting in
his patrol car in a Covington parking lot explaining police procedures and operations to a
private citizen participating in a ride-along program during Mangus’s shift. At that time, the
officer “observed a male subject standing on the corner of Robbins and Banklick and
observed him looking down the street, southbound on Banklick. He looked there a few
times; maybe two, three times, and then looked back at [Mangus] each time.” When
Mangus drove his patrol car closer to the intersection to obtain a better view of the “male
subject,” Mangus saw a white male cross the street and engage the “male subject” in
conversation. As the officer continued to approach the two men, the white male “[t]ook off
in a hurried manner, and he took off between the two houses that were immediately – that
they were right in front of.”
His suspicions aroused, Mangus then engaged “the male subject” he had initially
observed in conversation and determined that he claimed to reside in the building in front
of which he was then standing. When the individual, later identified as the defendant,
offered Mangus his driver’s license as proof of identification, the officer called in the license
number and was informed that an outstanding warrant from Ohio had been issued for the
defendant’s arrest. At that time, Mangus performed an initial pat-down of Finnell to check
for weapons, handcuffed the defendant, and placed him in the back of the patrol car,
although he informed Finnell that he was not then under arrest.
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As Mangus was placing Finnell in the patrol car, Officer Jody Rigney arrived on the
scene and remained there for the duration of the encounter with the defendant. In fact,
after Mangus received additional confirmation of the outstanding warrant against Finnell,
Rigney held a flashlight as Mangus removed the defendant from the patrol car and
conducted a more thorough search of Finnell’s person incident to his custodial arrest.
During that second pat-down, Mangus observed a “plastic baggie with a large quantity of
suspected crack cocaine” fall out of the defendant’s pants and land on Finnell’s right shoe.
The officer seized that evidence, as well as a cell phone, three $20 bills, and three $1 bills
from the defendant.
Rigney confirmed that Mangus reached down to the ground and picked something
up after shaking the defendant’s pant leg. Finnell contended, however, both at the scene
of the arrest and at trial, that Mangus planted the baggie of crack cocaine to frame him and
that he (Finnell) neither possessed the crack cocaine nor intended to distribute it.
At trial, additional testimony was offered to establish that the substance in the
baggie seized during the arrest was indeed crack cocaine, that the baggie contained
approximately 11 grams of the controlled substance, and that possession of such an
amount was consistent with drug-trafficking, not personal use. The parties also stipulated
before the jury that Finnell had previously been convicted in Kentucky state court on May
3, 1999, for first-degree trafficking in a controlled substance based upon the defendant’s
possession of 1.253 grams of crack cocaine on December 31, 1998.
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The district judge admonished the jurors that they could consider the evidence of
Finnell’s prior conviction “only on the issue of the defendant’s intent and knowledge in
committing the crime charged in the indictment” and for no other purpose. A similar limiting
instruction was also given during the jury charge delivered immediately prior to the jury’s
deliberations on Finnell’s guilt or innocence.
The jury credited the testimony of the prosecution witnesses and ultimately
concluded that the defendant was guilty of possessing with intent to distribute “5 grams or
more of a mixture or substance containing a detectable amount of cocaine base (crack
cocaine).” At sentencing, the district court concluded that Finnell’s testimony at trial that
he had been framed amounted to perjury, enhanced the applicable guideline offense level
by two for obstruction of justice, and imposed a 150-month prison sentence upon the
defendant. Finnell now appeals to this court, challenging both the validity of his conviction
and the calculation of his sentence.
DISCUSSION
Admissibility of Other Crimes Evidence under Rule 404(b)
Finnell first argues on appeal that the district court erred in admitting into evidence
the 1999 state-court conviction for first-degree drug trafficking involving the possession of
crack cocaine with intent to distribute. According to the defendant, that conviction, seven
years old at the time of this trial, was so remote in time and so factually dissimilar to the
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present offense that the evidence should have been excluded as unduly prejudicial when
compared with the probative value of the information.
In response to Finnell’s argument, the United States Attorney initially contends that
the defendant waived this claim by failing to enter a contemporaneous objection when the
stipulated prior conviction was mentioned to the jury. Although it is true that Finnell did not
lodge an objection at the time the evidence of the earlier conviction was introduced, he had
earlier filed with the court a motion in limine to exclude such information, a motion that the
district judge overruled in a six-page order. In light of that court decision, Finnell deemed
it unnecessary to reiterate his objection to the admissibility of the evidence. Indeed, in
United States v. Brawner, 173 F.3d 966 (6th Cir. 1999), we addressed a circuit split on the
issue of the necessity of lodging a second objection in the face of an adverse ruling on a
motion in limine and unambiguously held:
[I]f the trial court has made an explicit and definitive ruling on the record of
the evidentiary issues to be decided, and has not indicated that the ruling is
conditioned upon any other circumstances or evidence, then counsel need
not renew the objection at the time the evidence is offered (or would have
been offered but for an exclusionary ruling) in order to preserve the error for
appeal. However, if the court’s ruling is in any way qualified or conditional,
the burden is on counsel to raise objection to preserve error.
Id. at 970.
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Curiously, the government fails to cite Brawner in its appellate brief. Instead, the
prosecution relies upon the decisions rendered in United States v. Kelly, 204 F.3d 652 (6th
Cir. 2000), and United States v. Harris, 293 F.3d 970 (6th Cir. 2002), for the proposition
that a defendant’s motion in limine is insufficient to preserve an evidentiary objection at
trial. This approach is flawed for numerous reasons. First, to the extent that Kelly and
Harris, conflict with Brawner, the earlier decision must control. See Salmi v. Sec’y of
Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (a panel of this court may not
overrule a prior panel’s decision absent an inconsistent decision by the United States
Supreme Court or a contrary ruling by this court sitting en banc). Second, and more
important, a careful reading of Kelly and Harris indicates that those two cases involved
situations that were not only exempted from the reach of Brawner but also are in no way
analogous to the facts of the present dispute.
Kelly, for example, involved a defendant who filed a motion in limine to preclude
admission of evidence relating to certain prior convictions; notably, however, “[t]he record
does not disclose that the district court ever ruled on this motion.” Kelly, 204 F.3d at 655.
Consequently, even under the rationale of Brawner, the defendant was required to file an
objection to the introduction of the testimony in order to force a ruling on the allegation of
error.
In Harris, the district court initially granted the defendant’s motion to exclude
evidence of other crimes committed by the defendant but conditioned that exclusion on the
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expectation that the testimony would not later become intrinsic or be denied by the
defendant on the stand. “At trial, however, the district court allowed this evidence in, and
the defendant raised no objection. As a result, he is precluded from raising it on appeal
unless its admission constitutes plain error.” Harris, 293 F.3d at 976. Because it was
conditional, the ruling in Harris is likewise not controlled by the Brawner ruling.
By contrast, Finnell was not required to lodge a second objection to admission of
the testimony of his prior drug trafficking conviction. In ruling upon the motion in limine, the
district judge clearly, definitively, and without reservation ruled that the government would
be allowed to introduce the challenged testimony.
Our review of a district court’s ultimate determination of the admissibility of evidence
at trial is limited. We evaluate such a decision only to determine whether the district judge
abused his or her discretion in allowing the testimony to be presented to the jury. See
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); Trepel v. Roadway Express, Inc., 194
F.3d 708, 716 (6th Cir. 1999). “A district court abuses its discretion, inter alia, ‘when it
applies the incorrect legal standard [or] misapplies the correct legal standard.’” In re Grand
Jury Subpoenas, 454 F.3d 511, 515 (6th Cir. 2006) (quoting Deja Vu of Cincinnati, LLC v.
Union Twp. Bd. of Trustees, 411 F.3d 777, 782 (6th Cir. 2005) (en banc)).
Generally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Fed. R. Evid.
404(b). Rule 404(b) additionally provides:
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It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence it intends to introduce at trial.
In United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996), we explained that,
upon objection by the defendant, the proponent of evidence indicating that the defendant
committed another crime or bad act “should be required to identify the specific purpose or
purposes for which the government offers the evidence.” Id. at 1076. The district court
must then “determine whether the identified purpose . . . is ‘material’; that is, whether it is
‘in issue’ in the case.” Id. at 1076-77. Next, if it is indeed “material,” “the court must then
determine . . . whether the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice under Rule 403.” Id. at 1077. Finally, “[i]f the evidence
satisfies Rule 403, then, after receiving the evidence, the district court must ‘clearly, simply,
and correctly’ instruct the jury as to the specific purpose for which they may consider the
evidence.” Id. (citation omitted).
The challenged evidence here was introduced in this case to assist the jury in
determining whether the defendant possessed the specific intent required for a conviction
of possession of a controlled substance with intent to distribute, in the face of his defense
that the contraband had been planted by the police. Indeed, Finnell himself concedes that
his intent was at issue in this matter and that the district judge adequately instructed the
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jury on the limited uses to which the Rule 404(b) evidence could be put. Thus, the
defendant’s objection to the introduction of the evidence centers solely upon Finnell’s
contention that the prejudicial nature of the testimony outweighed any probative value the
evidence would have. Specifically, the defendant submits that the 1999 conviction was too
remote in time and too factually dissimilar to be able to shed light on Finnell’s intent on
March 28, 2006.
As the district judge concluded, however, “[a]lthough . . . there are numerous
differences between the prior conduct and the instant alleged offense, these differences
are not so significant to preclude their admissibility under FRE 404(b).” Significantly,
Finnell’s prior conviction also involved crack cocaine. In both the prior conviction and in
this case, an apparent hand-to-hand transaction between the defendant and another
individual was interrupted by the approach of law enforcement officials. In both instances,
relatively large amounts of crack cocaine inconsistent with personal use were found on the
streets of Covington, Kentucky, in plastic baggies after being hidden by the defendant –
once under a vehicle and once inside his clothing.
Furthermore, although seven years did pass between Finnell’s 1999 conviction and
his March 2006 arrest, the district judge noted that the present offense was “not so remote
in time to preclude admission under 404(b).” As explained by the court in its written order
denying the defendant’s motion in limine:
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The time gap is far less when the Court considers the fact that Defendant
was not finally released on his [Kentucky state court] drug trafficking
conviction until March 21, 2003, which is just slightly more than three years
before the alleged instant offense. According to U.S. Probation Officer John
D’Alessandro, Defendant was sentenced on the First Degree Trafficking in
a Controlled Substance conviction on May 3, 1999 to 61 months and was
paroled on that conviction on March 27, 2001. Defendant’s state parole was
subsequently revoked in April, 2002 when the parole board ordered that he
serve out the remainder of his sentence. Defendant was released from the
Kentucky Department of Corrections on March 21, 2003. Defendant’s
pretrial services report also indicates that he was arrested numerous times
after being released for several misdemeanor and felony charges. Based on
the information received from U.S. Probation, Defendant served a total of
approximately six months for these various convictions. Therefore, although
slightly more than seven years separates the “other act” evidence from the
date of the alleged instant offense, Defendant was imprisoned on separate
state offenses for the majority of that time.
We conclude that under these circumstances, the district judge in this matter did not
abuse his discretion in his evaluation of whether the probative nature of the prior offense
outweighed any prejudicial effect that might result from admission of the evidence. In any
event, any error in the admission of evidence of the prior conviction to establish Finnell’s
intent to distribute crack cocaine on March 28, 2006, must be considered harmless in light
of the testimony also offered at trial by other witnesses. Most damningly, Matthew Duane
Rolfsen, an officer with the Northern Kentucky Drug Strike Force, testified without
contradiction that a $20 rock of crack cocaine typically weighs between 0.1 grams and 0.2
grams. Consequently, the 11 grams of crack cocaine possessed by Finnell on March 28,
2006, could possibly result in as many as 110 sales, with a street price of as much as
$2,200. Furthermore, Rolfsen claimed that he had never seen 11 grams of crack cocaine
possessed for personal use; rather, such an amount of the controlled substance has
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United States v. Finnell
“always been consistent with trafficking.” Thus, even without evidence of the defendant’s
prior trafficking conviction, sufficient evidence was admitted at trial to establish Finnell’s
intent to distribute the drugs in his possession.
Sentencing Enhancement
Similarly, no reversible error occurred as a result of the district court’s decision to
increase the defendant’s guideline offense level because of a finding that Finnell
obstructed the administration of justice. In calculating the appropriate guideline range for
the defendant’s crime, the district judge determined that the base offense level of 26 that
would normally be applied to an individual guilty of trafficking 11 grams of crack cocaine
should be increased to level 28 because Finnell perjured himself at trial by testifying under
oath that he did not possess the contraband allegedly recovered from him.
The defendant argued before the district court and now argues on appeal that such
an adjustment improperly penalizes him for exercising his constitutional right to testify in
his own defense. According to Finnell, the mere fact that the jury chose to credit the
testimony of prosecution witnesses rather than his trial testimony does not necessarily
mandate a finding that the defendant committed perjury.
To a certain extent, Finnell is correct in his assertion. Indeed, application note 2 to
section 3C1.1 of the sentencing guidelines states:
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This provision is not intended to punish a defendant for the exercise of a
constitutional right. A defendant’s denial of guilt (other than a denial of guilt
under oath that constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a plea of guilty is not a
basis for application of this provision. In applying this provision in respect to
alleged false testimony or statements by the defendant, the court should be
cognizant that inaccurate testimony or statements sometimes may result
from confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful attempt to obstruct
justice.
USSG §3C1.1, comment. (n.2) (emphasis added). Fortunately, however, we need not
resolve in this appeal whether Finnell’s version of the events of March 28, 2006, was merely
a “denial of guilt” that the jury chose not to believe or ”a denial of guilt under oath that
constitutes perjury.”
Even assuming that the district court did err in increasing the base offense level by
two, such error was harmless, did not affect Finnell’s sentence, and cannot serve as the
basis for a reversal of the sentencing decision. See Fed. R. Crim. P. 52(a) (“[a]ny error. . . .
that does not affect substantial rights must be disregarded”). Had the district court not
added the two-level adjustment for obstruction of justice, the defendant’s applicable
guideline sentencing range (as a level 26, criminal history category VI offender) would have
been 120-150 months. After adding the two levels to Finnell’s base offense level, the
district judge determined that the defendant’s guideline range (as a level 28, criminal history
category VI offender) was 140-175 months. Examining the other sentencing factors listed
in section 3553(a) of title 18 of the United States Code, however, the sentencing judge
explained:
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I think that even without the two-level enhancement, the sentence that the
Court is going to impose would be the same, even if the Sixth Circuit were to
reverse on remand, because all the factors together in 3553(a) lead me to
conclude that the sentence I’m about to impose is the appropriate sentence.
So pursuant to the Sentencing Reform Act of 1984, and consistent with the
Supreme Court’s decision in [United States v. Booker, 543 U.S. 220 (2005)],
I believe that the sentence that I’m about to impose is sufficient but not
greater than necessary to comply with the purposes of 18 U.S. Code Section
3553(a). Accordingly, it’s going to be the judgment of the Court that the
defendant, Andre Finnell, is hereby committed to the custody of the Bureau
of Prisons to be imprisoned for a term of 150 months. I’m also going to
recommend that you participate in the 500-hour residential drug treatment
program offered through the Bureau of Prisons.
I do find if the Sixth Circuit were to reverse, as I previously stated, on the
3C1.1 enhancement, I still believe that based upon the factors in 3553(a), I
would impose the same sentence on remand; that is, the 150 months,
because I believe it’s the appropriate sentence, primarily because of the
history and characteristics of the defendant, which I find to be extensive. The
criminal history is nothing more than extensive.
Clearly, a district judge may not insulate a sentence from effective appellant review
merely by announcing that sentencing calculations under the guidelines alone and pursuant
to the wide-ranging considerations of 18 U.S.C. § 3553(a) would be identical. Based upon
the record in this case, however, we conclude that Finnell’s 150-month sentence was both
procedurally and substantively reasonable, especially in light of the defendant’s disturbingly
extensive criminal history.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of conviction and the
sentencing order entered by the district court.
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