United States v. Kendrick Bugg

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0576n.06
No. 09-5882
FILED
UNITED STATES COURT OF APPEALS Jun 05, 2012
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
KENDRICK BUGG, a.k.a. Kenny Bugg, )
) OPINION
Defendant-Appellant. )
)
BEFORE: COLE, GILMAN, and WHITE, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Kendrick Bugg appeals his conviction and
sentence for armed robbery, in violation of 18 U.S.C. § 1951, and brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c). As to his conviction, Bugg alleges that the
government violated his rights to a speedy trial and due process, and that it convicted him based on
insufficient evidence. As to his sentence, Bugg alleges that the trial court committed numerous
errors in determining an appropriate sentence and in granting access to discovery documents. For
the reasons that follow, we AFFIRM his conviction, VACATE his sentence, and REMAND for
resentencing.
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No. 09-5882
United States v. Bugg
I. BACKGROUND
On March 8, 2002, Bugg was arrested on suspicion of robbing a Gas-N-Go convenience store
earlier that same day (“the Gas-N-Go robbery”). Following a jury trial, he was convicted and
sentenced to 324 months in prison, which he appealed unsuccessfully. United States v. Bugg, 105
F. App’x 25 (6th Cir. 2004). On December 12, 2006, while Bugg was serving his sentence for the
Gas-N-Go robbery, he was indicted for an additional armed robbery of White’s Western Auto (“the
Western Auto robbery”) that took place three months before the Gas-N-Go robbery, on December
29, 2001. The indictment was issued just days before the statute of limitations for the Western Auto
robbery expired. Bugg was not arraigned until April 3, 2008, sixteen months later. A trial date was
set for June 2008. After two continuances at Bugg’s request, the trial commenced in December
2008.
Prior to trial, the government gave notice of its intent to introduce testimony governed by
Rule 404(b) of the Federal Rules of Evidence. The notice advised the district court and Bugg’s
counsel that the prosecutor planned to introduce testimony regarding three other armed robberies
allegedly committed by Bugg, although he had been convicted of only one of them. At trial, the
prosecutor summarized this evidence in his opening statement and, there being no objection lodged
from Bugg, later attempted to elicit testimony from a witness regarding these robberies. Bugg
objected to this testimony and, following an in camera hearing, the district court excluded the
evidence under the Federal Rules of Evidence, Rules 403 and 404(b). Both at the opening and at the
close of trial, the district court instructed the jury that the lawyers’ questions and arguments are not
evidence and should not be considered when reaching a verdict.
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The prosecutor elicited testimony on three other matters. To establish the connection
between the robbery and interstate commerce, the owner of Western Auto testified that he had
obtained some of Western Auto’s merchandise from out of state. To illustrate the gun used in the
crime, the prosecutor showed a different gun to the two eyewitnesses, asking if it resembled the gun
used in the robbery. To establish the identity of the perpetrator, the prosecutor introduced a
fingerprint taken from a lotion bottle, which matched Bugg’s fingerprint. Notably, the eyewitnesses
could not identify Bugg as the perpetrator. But they testified that the lotion bottle hosting the
fingerprint was kept where customers could not access it, and that the perpetrator had handled the
lotion bottle during the robbery. In his defense, Bugg admitted into evidence a picture of himself
taken several months after the Western Auto robbery, without further commentary, argument, or
testimony. He did not move for a judgment of acquittal or a new trial at any point. The jury
convicted Bugg on both counts.
The Presentence Report (“PSR”) indicated that Bugg faced a Guidelines range of 510-562
months for the Western Auto robbery. The range included a recommended sentence of 210-262
months for the § 1951 violation, which the court had the discretion to impose concurrently or
consecutively to Bugg’s extant 324-month sentence for the Gas-N-Go robbery, and a mandatory 300-
month sentence for a “second” § 924(c) violation, which the court had to impose consecutively to
any extant or newly imposed sentence. The PSR noted that, had the government indicted Bugg for
both robberies at the same time, the combined Guidelines range for both robberies would have been
594-646 months. As a consequence of the government’s decision to indict Bugg for the first robbery
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United States v. Bugg
only after he had been tried, convicted, and sentenced in the second, Bugg instead faced a cumulative
sentence of 624-886 months for the two robberies.
Prior to sentencing, Bugg secured new counsel and filed a number of motions advancing
different rationales for imposing a lighter sentence. Among them, one requested that the district
court impose the portion of the sentence addressing the § 1951 violation to run concurrently with his
Gas-N-Go robbery sentence, for a cumulative total of 624 months imprisonment. The district court
imposed a 210-month sentence for the § 1951 violation and a 300-month sentence on the § 924(c)
violation, to be served consecutively, totaling 510 months for the Western Auto robbery. The court
ordered that just ten of these months be served concurrently with the Gas-N-Go robbery sentence,
and that the remainder be served consecutively, for a total effective sentence of 824 months for the
two robberies, or just shy of sixty-nine years. This appeal followed.
II. ANALYSIS
A. Challenges to the Guilt Phase
Bugg alleges that he did not receive a fair trial due to myriad prosecutorial and trial court
errors. He finds fault with the timing of the trial, the prosecutor’s opening statements, the evidence
introduced at trial, and the sufficiency of the evidence supporting his convictions.
1. Speedy Trial Violation
Bugg claims that the government violated his Sixth Amendment right to a speedy trial by
delaying his indictment until nearly five years after the crime and failing to arraign him for an
additional sixteen months. Bugg has waived his right to challenge pre-indictment delay by failing
to raise this claim before trial. See United States v. Brown, 498 F.3d 523, 527-30 (6th Cir. 2007).
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He has not waived his right to challenge the delay between indictment and trial, however, because
the Supreme Court has held that a defendant cannot waive his Sixth Amendment right to a speedy
trial through inaction alone. See Barker v. Wingo, 407 U.S. 514, 528 (1972).
In speedy-trial claims, we review questions of law de novo and questions of fact for clear
error. Brown, 498 F.3d at 530. We evaluate Sixth Amendment speedy-trial claims under the four-
factor Barker test, taking into account “(1) length of delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right; and (4) prejudice to the defendant.” Id. (citing Barker, 407 U.S.
at 530). A delay of more than one year between indictment and trial, if not attributable to the
defendant, is “presumptively prejudicial and triggers application of the remaining three factors.”
United States v. Young, 657 F.3d 408, 414 (6th Cir. 2011) (holding that a delay of more than one
year is presumptively prejudicial); United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000)
(disregarding a delay attributable to defendant). None of the Barker factors alone suffices to
establish the deprivation of the defendant’s speedy-trial right, however. Barker, 407 U.S. at 533;
Young, 657 F.3d at 414. Rather, we must undertake a “difficult and sensitive balancing process” of
the Barker factors and other relevant circumstances to determine whether the right has been violated.
Barker, 407 U.S. at 533; Young, 657 F.3d at 414.
Because Bugg was not responsible for the sixteen-month delay between indictment and
arraignment, nor the additional two months between his arraignment and initial trial date, the delay
is presumptively prejudicial, requiring us to examine the remaining factors.
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a. Government’s Justification for the Delay
The government bears the burden of justifying the length of any pre-trial delay. United States
v. Jackson, 473 F.3d 660, 666 (6th Cir. 2007). Allegations that the government delayed the trial to
hamper the defense is a factor that “weigh[s] heavily against the government,” while a “more neutral
reason such as negligence or overcrowded courts” warrants less weight. Barker, 407 U.S. at 531.
The government has advanced no justification for the delay in this case. Bugg points out, and the
government concedes, that the government’s entire body of evidence against Bugg had been
available since the early stages of the investigation. The government’s failure to explain the delay
“tempts us to conclude that the delay lacks a valid justification. Such an unjustified delay, while not
rising to the level of bad faith, would nevertheless suggest a ‘more neutral’ reason, such as
negligence, for which the Government bore ultimate responsibility.” United States v. Watford, 468
F.3d 891, 904-5 (6th Cir. 2006). But Bugg does not allege any prosecutorial advantage gained by
the government from the post-indictment delay,1 and thus we will not assume that the government
delayed the trial to hobble the defense.
b. Bugg’s Assertion of His Right to a Speedy Trial
Bugg’s timing in asserting his speedy-trial right weighs against him. See Barker, 407 U.S.
at 531-32. Although a defendant does not waive his speedy-trial right by failing to raise it prior to
trial, the “failure to assert the right will make it difficult for a defendant to prove that he was denied
1
The considerable sentencing advantage that the government allegedly gained by declining
to indict Bugg concurrently for the Western Auto and Gas-N-Go robberies stems only from pre-
indictment delay. Bugg waived his right to raise this argument.
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a speedy trial.” Young, 657 F.3d at 415 (quoting Barker, 407 U.S. at 532). Bugg raised his speedy-
trial right for the first time in his pre-sentencing motions and again during his sentencing allocution.
While not as damaging as having waited until appeal, Bugg’s delay in asserting this right hampers
his vindication of it.
c. Prejudice to Bugg
Finally, Bugg has not shown any prejudice stemming from the delay in bringing him to trial.
Prejudice in this context is “assessed in light of the interests of defendants that the speedy trial right
was designed to protect . . . : (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety
and concern of the accused; and (3) to limit the possibility that the defense will be impaired.”
Brown, 498 F.3d at 532 (quoting Barker, 407 U.S. at 532) (alteration omitted). Because Bugg was
already serving a lengthy prison term at the time of his original indictment, he cannot be said to have
suffered “oppressive pretrial incarceration” or even excessive “anxiety and concern.” See Brown,
498 F.3d at 532. There is no evidence that pre-trial delay actually impaired Bugg’s defense; even
if it had, Bugg exacerbated any impairment by requesting two continuances that further delayed his
trial by six months. Thus, this factor weighs against Bugg.
Although the first two Barker factors slightly favor Bugg, Bugg’s failure to assert his speedy-
trial right in a timely fashion and his inability to show prejudice demonstrate that Bugg’s Sixth
Amendment right to a speedy trial was not violated.
2. Denial of Due Process Stemming From Prosecutor’s Opening Statements
Bugg argues that the prosecutor violated his due process right to a fair trial by including an
extensive description of evidence during his opening statements that the district court subsequently
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excluded as unfairly prejudicial to Bugg. Because Bugg failed to object at trial, we review this claim
for plain error. United States v. Campbell, 317 F.3d 597, 606 (6th Cir. 2003). Plain error requires
Bugg to show that “(1) an error occurred in the district court; (2) the error was obvious or clear; (3)
the error affected [his] substantial rights; and (4) this adverse impact seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445,
459 (6th Cir. 2006) (internal quotation marks and citations omitted).
We find no such error here. Due to the unpredictability of trials, “not every variance between
the advance description and the actual presentation constitutes reversible error, when a proper
limiting instruction has been given,” and when the prosecutor has acted in good faith. Campbell,
317 F.3d at 607 (quoting Frazier v. Cupp, 394 U.S. 731, 736 (1969)). The prosecution’s conduct
easily satisfies this standard. First, the prosecutor filed notice with the court of his intent to introduce
this evidence, giving Bugg the opportunity to object in advance. Second, the prosecutor sought to
introduce the evidence at trial, showing his good-faith belief that his opening statements described
forthcoming, admissible evidence. Third, the district court gave an adequate limiting instruction that
lawyers’ statements are not evidence. Bugg’s argument that the prosecutor should have sought a
hearing on the proposed Rule 404(b) evidence before introducing it fails because it is the defendant’s
responsibility to object to the introduction of such evidence and request such a hearing. Id.
Therefore, the prosecutor’s statements did not violate Bugg’s due process right to a fair trial.
3. Illustrative Evidence
Bugg protests the prosecution’s use of a gun, not entered into evidence, which the prosecutor
marked as an exhibit and displayed to witnesses, asking them to compare the exemplar gun to their
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recollection of the gun used in the robbery. Bugg argues that, because the exemplar gun was not the
actual gun used in the robbery, it lacked probative value. Moreover, he claims that its potential for
unfair prejudice substantially outweighed any probative value that it might have had, so that its
admission violated Federal Rule of Evidence 403.
We review the district court’s decision to admit evidence “in the light most favorable to the
government by maximizing the probative value of the evidence and minimizing its potential
prejudice.” United States v. Gibbs, 506 F.3d 479, 485 (6th Cir. 2007) (quoting United States v.
Sanders, 95 F.3d 449, 453 (6th Cir. 1996)). Because Bugg did not object to the use of the gun at
trial, we review for plain error. United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009).
We have previously approved the use of models or replicas under Rule 403 to illustrate
events for the jury where the prosecutor clarifies that the object was not used in the offense and the
court gives an appropriate limiting instruction. See, e.g., United States v. Humphrey, 279 F.3d 372,
376-77 (6th Cir. 2002) (approving the admission of replicas of coin bags allegedly involved in the
disputed events to help the jury visualize 107 bags of coins in order to establish that a vault could
not contain that many bags); United States v. Buchanan, 213 F.3d 302, 312 (6th Cir. 2000), co-
defendant’s mandate recalled by United States v. Murray, 2 F. App’x 398 (6th Cir. 2001) (approving
the use of packages of cocaine to aid an expert witness in explaining how drug dealers package and
distribute narcotics); In re Air Crash Disaster, 86 F.3d 498, 539 (6th Cir. 1996) (approving the
admission of a computer-animated depiction of the operation of the circuit breaker involved in the
airplane crash “to demonstrate the circuit breaker’s inner workings”).
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Here, the prosecutor stated that the gun was for “identification,” but otherwise did not make
clear to the jury that the gun presented to the witnesses was not the actual gun used in the offense.
Nor did the judge issue a limiting instruction, though none was requested. However, we need not
determine whether the district court committed error in permitting the United States to use the gun
as a demonstrative aid because the error, if any, was not plain.
4. Sufficiency of the Evidence Proving Identity
Bugg argues that insufficient evidence supports his conviction for the Western Auto robbery
because the two eyewitnesses could not identify him and only a single fingerprint tied him to the
scene. We review the evidence “in the light most favorable to the prosecution . . . .” United States
v. Childs, 539 F.3d 552, 558 (6th Cir. 2008). Because Bugg did not move for a judgment of acquittal
or for a new trial at any point, “his conviction on that charge must be affirmed absent a manifest
miscarriage of justice,” that is, “only when the record is devoid of evidence pointing to guilt.”
United States v. Villarce, 323 F.3d 435, 438 (6th Cir. 2003) (citations and internal quotation marks
omitted). The fingerprint that Bugg concedes links him to the scene of the crime is evidence
pointing to guilt. Accordingly, there is no manifest miscarriage of justice with respect to the
sufficiency of the evidence supporting his conviction.
5. Sufficiency of the Evidence Proving that the Western Auto Robbery Affected Commerce
Section 1951(a) of Title 18 prohibits robbery, among other crimes, where the perpetrator “in
any way or degree obstructs, delays, or affects commerce or the movement of any article or
commodity in commerce.” To establish this nexus, the government must make “only a showing of
a de minimis connection with interstate commerce . . . .” United States v. Davis, 473 F.3d 680, 682
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(6th Cir. 2007). Because Bugg never moved for a judgment of acquittal, we review for a manifest
miscarriage of justice. See Villarce, 323 F.3d at 438. Contrary to Bugg’s arguments, the government
presented some evidence that Western Auto purchased out-of-state goods, and that the perpetrator
stole money from the store. Therefore, the evidence meets the threshold for establishing a de
minimis nexus with interstate commerce under a manifest-injustice standard.
B. Challenges to the Sentencing Phase
Although Bugg raises a plethora of issues challenging his sentence, we need address only
one: the district court’s decision to impose nearly the entire sentence to run consecutively to Bugg’s
sentence for the Gas-N-Go robbery.
We review sentences imposed by the district court for an abuse of discretion, evaluating them
for both substantive and procedural reasonableness. United States v. Massey, 663 F.3d 852, 856 (6th
Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). A sentence is considered
substantively or procedurally unreasonable if the district court fails to calculate the Guidelines range
properly, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails to explain the chosen sentence adequately. Id.
Specifically, “[w]hen a defendant raises a particular, nonfrivolous argument in seeking a lower
sentence, the record must reflect both that the district judge considered the defendant’s argument and
that the judge explained the basis for rejecting it.” United States v. Wallace, 597 F.3d 794, 803 (6th
Cir. 2010) (citation and internal alterations omitted).
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Bugg argues that the district court abused its discretion by imposing the majority of Bugg’s
sentence for the Western Auto robbery to run consecutively to, instead of concurrently with, his
sentence for the Gas-N-Go robbery. Although the district court was obligated to impose the twenty-
five-year mandatory-minimum sentence for his firearm conviction consecutively to other sentences,
it retained the discretion to impose the remainder of the sentence to run concurrently. See 18 U.S.C.
§ 924(c); U.S.S.G. § 5G1.3(c); United States v. Gonzales, 520 U.S. 1, 11 (1997). Bugg argued to
the district court that the disparity between his total effective sentence (824 months) and sentences
given to similarly situated defendants who are charged in one indictment (594-646 months) was
unwarranted and fundamentally unfair and requested that the court use its discretion to correct the
disparity by running the sentences concurrently to the greatest extent possible. Although the district
court recognized that it had discretion to impose a concurrent sentence, the record does not reflect
that the court considered Bugg’s non-frivolous argument for a concurrent sentence and, if
considered, its reasons for rejecting it. We therefore find the imposed sentence procedurally
unreasonable. Because we reach this holding, we need not address Bugg’s remaining challenges to
his sentence.
V. CONCLUSION
Although Bugg may have collateral claims based upon the alleged ineffectiveness of his trial
counsel, we AFFIRM his conviction on this direct appeal, but VACATE his sentence, and
REMAND for resentencing.
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