United States v. Kaufman

92 F. App'x 253
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 8, 2004
DocketNos. 02-5388, 02-5453
StatusPublished
Cited by5 cases

This text of 92 F. App'x 253 (United States v. Kaufman) 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. Kaufman, 92 F. App'x 253 (6th Cir. 2004).

Opinion

COOK, Circuit Judge.

A jury found appellants. Andre Kaufman1 and Cornelius Stewart,2 guilty of multiple drug and gun offenses. Kaufman and Stewart appeal from their convictions, raising one issue in common and several issues individually. We affirm.

I. BACKGROUND

Detective Gerald Dossett conducted surveillance of a duplex on Ocoee Street in Chattanooga. Tennessee, for several weeks leading up to the execution of a search warrant. During this time. Dos-sett observed both defendants inside the budding. Another officer. Detective Phillip Narramore. conducted surveillance of Kaufman’s Basswood Drive residence. The day before police executed search warrants at the residences. Narramore followed Kaufman from his Basswood Drive home to Knoxville and back to the Ocoee duplex the following day.

Police stopped Kaufman’s vehicle shortly after he left the Ocoee duplex and the officers drove him to his Basswood residence to execute a search warrant. The police found two loaded weapons, two electronic scales, Pyrex dishes with white residue, baggies, more than one kilogram of cocaine powder and one-third kilogram of crack cocaine in the kitchen. In other rooms, police found four more guns, more than $22.000 in cash, and documents with Kaufman’s aliases. After police found the cocaine. Kaufman admitted it belonged to him.

At the same time, other officers were searching the Ocoee duplex. Detective Dossett entered and found Stewart lying on the floor with a gun a few feet away. Police seized a semi-automatic pistol, cellular telephones, scales, marijuana residue, shotgun shells, and more than seventeen grams of crack cocaine. The “residence” had one mattress, few clothes, and no food, pots, or pans.

Police transported Stewart to the police station where Detective Dossett advised him of his Miranda rights and gave him a written form to read and sign. Stewart read the form but refused to sign it. Dos-sett gathered booking information and excused himself from the room to speak with another individual. When Dossett returned, he reminded Stewart of his Miranda rights and continued the interview. Stewart agreed to speak with Dossett. admitted both ownership of the gun and knowledge of drug dealing out of the Ocoee duplex, but denied he owned or sold crack. Detective Dossett observed Stewart to be nervous and sweaty during the interview.

[255]*255II. ANALYSIS

A. Statement Against Interest Testimony

In their only common assignment of error. Kaufman and Stewart contend the district court erred in excluding Demarcus Greer’s hearsay testimony that Tray Cantrell admitted the Ocoee Street drugs and money belonged to him. To find the district court abused its discretion in excluding this evidence, we must have a definite and firm conviction that the court committed a clear error of judgment. United States v. Tosh, 330 F.3d 836, 838 (6th Cir .2003).

Defendants insist the hearsay testimony ought to have passed muster under the Rule 804(b)(3) statement-against-interest exception because (1) Tray Cantrell was unavailable to testify; (2) the statement subjected Tray Cantrell to criminal liability in a real and tangible way; and (3) corroborating circumstances clearly indicated the trustworthiness of the statement. United States v. Hilliard, 11 F.3d 618, 619 (6th Cir.1993).

Lack of corroborating circumstances justified the district court’s questioning the trustworthiness of the proffered hearsay statement. Greer testified on cross-examination that Cantrell lied and bragged to him in the past and. on this occasion, Greer believed Cantrell to be bragging about owning the drugs. Greer’s own criminal history-involving crimes of deception-added to the district court’s misgivings regarding the reliability of this testimony from him. Moreover, the district court found Cantrell’s purported bragging to a friend about money and drugs did not subject Cantrell to criminal liability in a real and tangible way. Without any reliable corroborating evidence to support the trustworthiness of the statement, and the making of the statement having no real criminal consequences to the declarant, the district court committed no obvious judgment error in refusing to admit the testimony as a statement-against-interest hearsay exception.

B. Lesser-included Offense Instruction

Kaufman argues the district court erred by failing to instruct the jury on simple possession of drugs as a lesser included offense of the drug conspiracy or possession with intent to distribute offenses. But because Kaufman did not object to the district court’s jury instructions, that failure “precludes appellate review, except as permitted under Rule 52(b).” Fed. R.Crim. Proc. 30(d). We therefore review the jury instruction for plain error.

Kaufman claims the district court should have instructed on simple possession in addition to the conspiracy and possession with intent to distribute instructions. In United States v. Colon, 268 F.3d 367, 377 (6th Cir.2001), this court held “the elements of simple possession are not identical to the elements of distribution of cocaine or of conspiracy to possess with intent to distribute or to distribute cocaine. We find that the district court did not err in refusing to give a lesser-included offense instruction on simple possession.” After Colon, the district court correctly declined to instruct on simple possession and we thus find no error and obviously then, no plain error.

C. Motion to Suppress

Stewart points us to claimed district error in denying suppression of what he asserts to be his police-coerced confession. The facts surrounding the confession validate the denial of suppression. Dossett testified at the suppression hearing that: (1) he advised Stewart of his Miranda rights orally and in writing: and (2) Stewart did not request counsel, never [256]*256declined to speak or sought to terminate the interview, continued to make inculpatory statements after being reminded of his Miranda rights, appeared both unimpaired by any substances and cognizant of the purpose of the interview. Though Stewart argues his refusal to sign a written waiver of his Miranda rights requires suppression, the Supreme Court in North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) held the Constitution did not require an explicit waiver of Miranda rights. See also, United States v. Miggins, 302 F.3d 384, 397 (6th Cir.2002) (a written waiver not required to prove that a defendant voluntarily waived his rights). Butler refused to sign a waiver form but freely spoke to police after being advised of his Miranda rights, as did Stewart. Stewart voluntarily and intelligently waived his Miranda rights and the “absence of a written waiver was not legally fatal to this determination.” United States v. McCoy, 72 Fed.Appx. 410, 414 (6th Cir.2003); Miggins,

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Bluebook (online)
92 F. App'x 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kaufman-ca6-2004.