United States v. Dossey

66 F. App'x 528
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 8, 2003
DocketNo. 01-5714
StatusPublished
Cited by2 cases

This text of 66 F. App'x 528 (United States v. Dossey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dossey, 66 F. App'x 528 (6th Cir. 2003).

Opinion

OPINION

GIBBONS, Circuit Judge.

Defendant-appellant Kenneth Dossey was convicted of two counts of intentional [529]*529interception of telephone communications in violation of 18 U.S.C. § 2511(l)(a) and two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. He appeals his conviction, claiming that the government (1) suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) violated Federal' Rule of Criminal Procedure 16(a)(1)(D) by failing to disclose a scientific experiment conducted by a government witness; and (3) failed to present sufficient evidence to support his conviction. For the reasons set forth below, we affirm Dossey’s conviction.

I.

On April 5, 2000, a federal grand jury returned an indictment charging defendant-appellant Kenneth Dossey with six counts of intentional interception of telephone communications in violation of 18 U.S.C. § 2511(l)(a) and with two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. The charges of intentional interception of telephone communications related to Dossey’s operation of a hidden recording device at his restaurant business, D & L One Stop. The device recorded telephone conversations between his employees and various third parties. The charges of mail fraud related to an alleged insurance fraud committed by Dossey in which he allegedly exaggerated to his business’s insurance carrier the food loss his business suffered from a broken freezer.

At trial, Dossey attempted to demonstrate that his employees knew that their telephone conversations were being recorded and that, therefore, they implicitly consented to such recordings. Pursuant to the statute under which Dossey was charged, it is not unlawful to record a telephone conversation if at least one of the parties to the communication gives pri- or consent to such recording. 18 U.S.C. § 2511(2)(d). With regard to the insurance fraud charges, Dossey argued that the government failed to prove that he had exaggerated his claimed food loss from the broken freezer.

Michael Bennett, a government witness, testified that he had worked at D & L One Stop for approximately one month in the summer of 1999. Bennett identified his voice on two of the tape recordings collected by Dossey. Bennett testified that no one had informed him that his telephone conversations at D & L One Stop could be recorded and that he had first learned that his telephone conversations had been recorded when a government agent contacted him in connection with an investigation of Dossey.

At a pretrial conference, the government disclosed that Bennett had a prior “felony conviction for marijuana,” but the government stated that it did not know any details about the felony conviction. On cross-examination at trial, Dossey’s attorney attempted to impeach Bennett by introducing Bennett’s prior drug convictions. The government did not object and acknowledged again that Bennett had a felony marijuana conviction, but the district court did not allow Dossey’s attorney to question Bennett regarding his prior convictions because Dossey’s attorney only had documentation of a prior misdemeanor marijuana conviction. The district court stated that it would only allow Dossey’s attorney to question Bennett about a prior drug conviction if the conviction was a felony. Dossey’s attorney did not object to the district court’s ruling and did not request that the government stipulate to the felony marijuana conviction; instead, he stated, “Okay. All right” and “I don’t have any further questions of this witness.”

Karen Tittle, a government witness, was employed by Dossey as a personal assistant in 1999. She testified that she pre[530]*530pared the insurance claim with regard to the broken freezer at D & L One Stop. She explained that Dossey instructed her to prepare an inflated list of food items that were spoiled due to the broken freezer. She testified that the list of allegedly spoiled food items submitted to the insurance company included items that were not in the freezer when it broke and items that were in the freezer but that had been moved to another freezer before they spoiled.

Elaine Downs, a government witness, purchased the D & L One Stop business from Dossey, including the freezer that had been broken. Before the day of her testimony, the government gave her the list of allegedly spoiled food items that Dossey had submitted to his business’s insurance carrier. She testified that she had attempted to fit those food items into the freezer that she had purchased from Dossey but that they could not all fit in the freezer at one time. Dossey’s attorney objected to her testimony, stating, “What we got, a scientific experiment here?” The district court overruled the objection, stating that the experiment was not scientific and did not require that Downs be qualified as an expert witness.

The jury found Dossey guilty of two out of the six counts of intentional interception of telephone communications and both counts of mail fraud. The two counts of intentional interception of telephone communications of which Dossey was convicted relate to recordings of Bennett’s telephone conversations. The district court sentenced Dossey to two years probation, with home confinement for the first six months, and ordered Dossey to pay a special assessment of $400 and restitution in the amount of $5,759.78. This appeal followed.

II.

This court reviews a district court’s evidentiary rulings for abuse of discretion. United States v. Middleton, 246 F.3d 825, 836 (6th Cir.2001). This court also reviews a district court’s regulation of discovery for abuse of discretion. United States v. Sherlin, 67 F.3d 1208, 1218 (6th Cir.1995).

Dossey claims that the government violated the rule announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not providing the defense with documentation of Bennett’s felony marijuana conviction. The Supreme Court in Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

Dossey has not presented any evidence that the government did anything to suppress the documentation of Bennett’s felony marijuana conviction.

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Bluebook (online)
66 F. App'x 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dossey-ca6-2003.