United States v. Kellogg

306 F. App'x 916
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 9, 2009
Docket07-5466
StatusUnpublished
Cited by4 cases

This text of 306 F. App'x 916 (United States v. Kellogg) 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. Kellogg, 306 F. App'x 916 (6th Cir. 2009).

Opinions

CLAY, Circuit Judge.

Defendant Franklin L. Kellogg (“Kellogg”) appeals from a district court order convicting him of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Specifically, Kellogg contends that the district court erred in denying his motion to suppress his statements to investigators; abused its discretion in admitting evidence of a previous armed robbery; and abused its discretion in admitting an in-court witness identification. For the following reasons, we REVERSE in part and AFFIRM in part the judgment of the district court, and REMAND the case to the district court for a new trial.

BACKGROUND

I. Factual Background

On October 12, 2005, a team of United States Marshals and two detectives with [918]*918the Marion County Sheriffs Department sought to execute a federal arrest warrant for Kellogg at a duplex located at 111 Old Jasper Highway in South Pittsburgh, Tennessee (the “duplex”). Kellogg was wanted for violating the terms of his supervised release on a prior bank robbery conviction, and was also suspected of a recent armed bank robbery in Guntersville, Alabama. Kellogg had been staying with Tiffany Huckabee (“Huckabee”), a “friend of an associate,” for three or four nights. (Joint Appendix (“J.A.”) at 367.) Three other adults and Huckabee’s two children were also staying in the duplex while Kellogg was there.

From the parking lot outside the duplex, one of the detectives called Huckabee on the telephone and informed her that they had a warrant for Kellogg’s arrest. Huckabee responded that Kellogg told her that “he had nothing[.]” (J.A. at 345.) The detective instructed Huckabee and the other residents to come out of the duplex first, and for Kellogg to follow them out. The marshals secured Kellogg, placed him in handcuffs and took him into custody when he came out as instructed. The marshals searched him and found approximately $1,000 on his person.

The marshals contacted Federal Bureau of Investigation (“FBI”) Special Agents James Melia (“Melia”) and Stanley Ruffin (“Ruffin”), who were helping FBI agents in Alabama investigate Kellogg’s involvement in the Guntersville robbery. When Melia and Ruffin arrived at the scene of the arrest at approximately 7:00 p.m., the marshals informed Melia that they had conducted a security sweep of the duplex and had discovered drugs in one of its bedrooms. Melia spoke with Huckabee and obtained her consent to search the duplex. Melia then approached Kellogg, told Kellogg that he wanted permission to search the residence and presented him with a consent form to search. In response, Kellogg told him that his consent was not necessary, that anything illegal in the apartment was his, and that he did not want Huckabee to be blamed for whatever might be found. Kellogg nevertheless signed the consent form. Prior to conducting the search, the agents asked Kellogg if he had a gun on the premises, and if he had any drugs or drug paraphernalia. Kellogg told the agents where powder cocaine, marijuana, cash and a gun could be found in the residence. Melia also asked Kellogg if the cash drawer from the Guntersville bank robbery was in the duplex. Kellogg responded that the drawer was not in the residence because he “got rid of it in Alabama.” (J.A. at 81) The agents recovered from the residence a number of items related to the Alabama bank robbery, including a wristwatch, a New York Yankees baseball cap, and tennis shoes that matched the general description of the robber’s clothes and a shoe print taken from the counter of the robbed bank. Agents also recovered two packages of powder cocaine, digital scales and other drug paraphernalia, a nine-millimeter pistol and sixty dollars in cash.

Following the search, Melia and Ruffin transported Kellogg to the FBI office in Chattanooga, Tennessee, for further questioning. Kellogg signed a form waiving his Miranda rights at approximately 7:20 p.m., though it is unclear whether this occurred before or after he left with Melia and Ruffin.

At the FBI office, Melia and Ruffin questioned Kellogg about the Guntersville robbery. During the questioning, Kellogg stated that he knew he was in “major trouble” because he was caught with a gun and drugs. Regarding the bank robbery, Kellogg told them that “you can close it on me.” Melia asked Kellogg if the firearm found at the duplex was the same one used during the Guntersville robbery. Accord[919]*919ing to Melia, Kellogg “told me that if we had ballistic testing on it that the gun would match the gun that was fired in the bank robbery.” (J.A. at 83-84.) Melia and Ruffin also asked Kellogg about the $1,000 they found when searching him. Kellogg stated that “it was proceeds from something else” and that he did not want to discuss it. (J.A. at 86.)

On December 13, 2005, a grand jury sitting in the Eastern District of Tennessee issued a three-count indictment against Kellogg. Count one alleged that Kellogg was a felon in possession of a firearm, count two alleged that Kellogg possessed cocaine with intent to distribute, and count three alleged that Kellogg possessed a firearm in furtherance of a drug trafficking crime.

II. Suppression Hearing

Prior to trial, Kellogg moved to suppress the statements he made outside the duplex and at the FBI office. A suppression hearing was held before a magistrate judge and Kellogg, Melia and Ruffin testified.

Kellogg testified that at the time of the arrest he was “on three [of] what you would call Xanaxes, footballs, the street name is ... blue footballs.” (J.A. at 108.) Kellogg testified that he could not have consented to the search of his residence or waived his rights because “I wasn’t in my right frame of mind to waive my rights.” (J.A. at 109.) Kellogg also contended that he did not make any statements regarding the ownership or location of drugs, weapons or any of the other items seized during the search of his residence; he had only overheard the marshals discussing items that were recovered during the protective sweep and relayed that information to Melia. Moreover, Kellogg testified that he felt coerced into signing the consent to search form because he wanted Huckabee and her children to be able to return to their home. According to Kellogg, Melia read him the Miranda rights waiver form and handed it to him to sign during the car ride to the FBI office.

Melia testified that he brought consent to search and Miranda rights waiver forms to Kellogg “just about immediately” after arriving at the duplex, and at that time read Kellogg his Miranda rights. (J.A. at 92) Melia stated that although Kellogg signed the consent to search form, he may not have signed the Miranda waiver until “later ... possibly in the car[.]” (JA. at 92-93.) On redirect, Melia stated that he would never question a suspect in custody before he waived his Miranda rights, and added that he believed, “after reviewing these things,” that he had Kellogg sign both forms before asking him any questions. (J.A.

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306 F. App'x 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kellogg-ca6-2009.