United States v. Reid

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 6, 2004
• Docket: 02-5794
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Reid No. 02-5794 ELECTRONIC CITATION: 2004 FED App. 0040P (6th Cir.) File Name: 04a0040p.06 UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X KRUPANSKY, Circuit Judge. The defendant-appellant, Michael S. Reid (“Reid”), has contested his sentence imposed Plaintiff-Appellee, - pursuant to his guilty-plea convictions for possessing a - - No. 02-5794 firearm following a felony conviction and fraudulent misuse v. - in interstate commerce of another person’s identity. Reid has > asserted that the sentencing court abused its discretion (1) by , vacating an order denying a sentencing enhancement and MICHAEL SHANE REID , - Defendant-Appellant. - permitting the government, allegedly out of time, to introduce testimony which resulted in the application of the sentencing N enhancement; and (2) by finding, for sentencing purposes by Appeal from the United States District Court a preponderance of the evidence, that the defendant had used for the Eastern District of Tennessee at Greeneville. his illegally-possessed pistol to commit criminal acts which No. 01-00065—Thomas G. Hull, District Judge. were tantamount to the state-law felony offense of aggravated assault, irrespective of the state court’s dismissal of the felony Argued: November 13, 2003 charge for those acts.

Decided and Filed: February 6, 2004 Sometime prior to November 15, 2000, Reid stole a driver’s license and a social security card which belonged to Before: KRUPANSKY, MOORE, and ROGERS, Circuit a co-worker, Richard Anthony Rescha (“Rescha”) of Antioch, Judges. Tennessee. Reid used those documents to successfully pose as Rescha, thereby allowing him to exploit Rescha’s _________________ presumably comparatively favorable credit standing and overall record. Between November 15, 2000, and March 1, COUNSEL 2001, by attaining credit financing, and in at least one instance by negotiating a worthless check, Reid purchased, in ARGUED: Stephen M. Kissinger, FEDERAL DEFENDER Rescha’s name, a diamond engagement ring and a timepiece SERVICES, Knoxville, Tennessee, for Appellant. Guy W. collectively worth $2,144.00; a 1998 Chevrolet Silverado Blackwell, ASSISTANT UNITED STATES ATTORNEY, truck valued at $20,591.55; a 1999 GMC Sierra pickup truck Greeneville, Tennessee, for Appellee. ON BRIEF: Nikki C. priced at $20,998.65; a Kodiac Quad Runner truck which was Pierce, FEDERAL DEFENDER SERVICES, Greeneville, sold for $5,871.47; a .22 caliber rifle; and a .22 caliber Tennessee, for Appellant. Guy W. Blackwell, ASSISTANT Heritage pistol (the two firearms cumulatively cost

1 No. 02-5794 United States v. Reid 3 4 United States v. Reid No. 02-5794

approximately $200.00). During February 2001, local On November 26, 2001, Reid pleaded guilty to one count authorities in Morristown, Tennessee, notified the United of illegally possessing a firearm following a felony States Secret Service office in Knoxville that Reid had falsely conviction,2 in offense to 18 U.S.C. §§ 922(g)(1) and assumed Rescha’s identity to purchase the above-described 924(a)(2); and to one charge of theft of another’s identifying jewelry as well as the Silverado and Sierra trucks. documents with intent to obtain items of value exceeding $1,000, in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D). Shortly thereafter, Reid’s crime spree was foiled by his A charge of uttering a false written statement to a pawn shop domestic misbehavior. During the early morning of March 1, in connection with a firearm purchase, 18 U.S.C. §§ 922(a)(6) 2001, Reid’s cohabitating fiancée, Merica L. Skelton and 924(a), was dismissed. (“Skelton”), reported to the local police that, on the previous day (February 28, 2001), Reid, during a fit of rage, had Subsequently, the defendant objected to a part of the choked her and pressed a loaded and hammer-cocked .22 probation office’s January 17, 2002 presentence investigation caliber handgun against her forehead, accompanied by his report (“PSR”), by which it had recommended a four-level verbal threat to “blow her f___ing brains out.” That weapon enhancement under U.S.S.G. § 2K2.1(b)(5)3 for using one of was later identified as the .22 caliber Heritage pistol which the two subject illegally-possessed firearms “in connection Reid, while impersonating Rescha, had unlawfully purchased with another felony offense,” to wit, the February 28, 2001 at a pawn shop on December 20, 2000. state-law felonious aggravated assault against Skelton. Reid objected to that advisory, protesting that, because the state Later that same day (March 1, 2001), police officers court had dismissed the felony assault charge against him as stopped Reid for traffic violations while he was driving the part of a plea bargain agreement whereby he pleaded guilty to 1998 Silverado truck. Those constables arrested him for misdemeanor assault for the February 28, 2001 offense, any driving without a valid operator’s permit, and on an offense-level increase in his instant prosecution for that outstanding Tennessee arrest warrant for the February 28, conduct would be improper. 2001 armed aggravated assault. The arresting patrolmen seized the two firearms from inside the Silverado, plus Rescha’s driver’s license and social security identification from Reid’s clothing. Later that day, Secret Service agents 2 The record disclosed that, prior to his subject federal prosecution, interviewed the defendant at the Sevier County Jail. Reid Reid has sustained several felony convictions in state courts on charges confessed that he had stolen Rescha’s motor vehicle ranging from driving while intoxicated, carrying a weapon inside a operator’s license and social security card, and had used them licensed liquo r establishment, and assault. to facilitate his purchases, in Rescha’s name, of the jewelry, 3 the three trucks,1 and the two firearms. Guidelines section 2K2.1 controls offense level computations for certain federal firearm s offenses, including basic unlawful possession. That pro vision re cites, in ma terial part:

If the defendant used or possessed any [illegally possessed] firearm or am munitio n in connection with another felony offense 1 . . . increase [the offen se total] b y 4 levels. Prior to the March 1, 2001 interrogation, the Secret Service had been unaware of Reid’s fraudulent abuse of R escha’s identity in U.S.S.G. § 2K2.1(b)(5) (2001). (Bracketed m aterial ad ded ; bold face in connection with his purchase of the Quad Runner vehicle. original). No. 02-5794 United States v. Reid 5 6 United States v. Reid No. 02-5794

On March 18, 2002, the district judge presided over a hearing, and therefore it should not be permitted a second hearing on the defendant’s objections to the PSR. At that chance to prove its “felonious use” claims after the trial court time, the government responded that its proposed U.S.S.G. had ruled against it. However, the district court granted the § 2K2.1(b)(5) “felonious use” enhancement was justified government’s motion, and set an evidentiary sentencing because sentencing facts, including the facts which would hearing for June 3, 2002. On that day, over Reid’s continuing satisfy the statutory elements of a predicate felony offense objection to the court’s re-opening of the proof relevant to his necessary to trigger the subject guideline provision, need be alleged “felonious use” of one of his illegally-possessed proved by the prosecution merely by a preponderance of the firearms, the trial court ruled that it would allow both evidence; therefore, the absence of a “beyond-a-reasonable- adversaries to “put on anything” relevant to that contested doubt” conviction of that dismissed state-law felony assault sentencing question. The court accepted testimony from three charge was immaterial. However, the sole evidence prosecution witnesses, to wit, the victim Skelton plus two supporting the alleged felonious assault which the AUSA case investigators, namely ATF Agent Greg Moore presented at the March 18, 2002 proceeding was an affidavit (“Moore”) and Secret Service Agent Ted Kirkman executed by Skelton; the prosecution’s efforts to subpoena (“Kirkman”).4 The defense offered testimony by Reid. Skelton for the March 18, 2002 hearing had been unsuccessful. Accordingly, the presiding judge continued the At the evidentiary hearing, Skelton testified inter alia that, hearing until March 25, 2002, to permit the parties sufficient on February 28, 2001, around 2:00 p.m., while at home, Reid time to marshal their evidence, including live witnesses, became angry with her because she refused to drive him to a pertinent to the disputed felonious assault. liquor store. His fury climaxed in a violent rampage which lasted for many hours. The victim revealed that, at one point, Nevertheless, prior to that rescheduled hearing, on Reid inserted the barrel of his .22 caliber handgun into his March 21, 2002, the trial judge entered an order sustaining own mouth, and then pressed it against her head while Reid’s objection to the contested “felonious use” threatening to kill her. Reid also destroyed their coffee table, enhancement, declaring that the United States had failed to and threatened the physical safety of Skelton’s young prove sufficient supportive facts by a preponderance of the daughter. After the lapse of approximately twelve hours after evidence. Subsequently, the prosecution moved for the beginning of their argument, Skelton and her daughter reconsideration of that March 21, 2002 order, asserting that it escaped the house. Skelton telephoned the police, and then was prepared to offer probative testimony from Skelton. The went to the station, where she completed an arrest warrant government explained that, prior to the March 18, 2002 affidavit by verbally answering questions posed by a state hearing, it had prepared only to argue the legal effect of judicial magistrate; her responses were transcribed into a Reid’s state court misdemeanor assault conviction on the document which Skelton ultimately signed. Contrary to a government-requested “felonious use” sentencing statement contained in that affidavit, Skelton explained on the enhancement, but not the factual proof of the underlying witness stand that she had not told the magistrate that Reid armed assault, because it had not construed Reid’s objection to encompass any opposition to the PSR’s recitation of the material facts. 4 Because neither Agents Moore nor Kirkman could offer eyewitness Reid replied that the court had given the government a fair testimony about Reid’s conduct on February 28, 2001, their testimony was not critical to the trial court’s resolution of the sentencing opportunity to proffer its evidence at the March 18, 2002 enhancem ent controversy. No. 02-5794 United States v. Reid 7 8 United States v. Reid No. 02-5794

had forced the gun into her mouth, but instead she had told The Court also finds that an aggravated assault using the that official that Reid had placed it into his own mouth. .22 caliber handgun was in fact committed by the Skelton also identified the .22 caliber Heritage pistol defendant on Ms. Skelton on February 28, 2001. The implicated in the instant prosecution as the firearm deployed Court takes judicial notice that in Tennessee an by Reid while threatening her life on February 28, 2001. aggravated assault is a felony punishable by more than one year. On cross-examination, the defense attorney endeavored to assail the victim’s credibility by illuminating evident The Court finds that the government has [met] its discrepancies in certain details reported in her affidavit as burden of proving that this enhancement applies to the compared to her witness-stand attestations; and by eliciting instant situation. Therefore, the government’s motion for admissions from her of voluntary post-assault contacts which reconsideration of the application of a 4-point she had with Reid, as well as her petty criminal record. enhancement under U.S.S.G. § 2K2.1(b)(5) for use of a firearm in connection with another felony offense is Subsequently, Reid took the witness stand. He testified, GRANTED for the reasons set out herein. among other things, that he had merely “verbally assaulted” his fiancée on February 28, 2001, and accordingly pleaded The four-degree enhancement produced a total offense level guilty in state court to misdemeanor assault for that incident. of 17, which, when matched with Reid’s criminal history The defendant claimed that Skelton had admitted to the category of VI, yielded a guidelines sentencing range of 51 to Tennessee prosecutor that Reid did not use a handgun to 63 months in federal prison.5 U.S.S.G. § 5A (Sentencing assault her, which confession, according to Reid, prompted Table). On June 10, 2002, the district court imposed the state to reduce the charge against him to misdemeanor concurrent terms of fifty-five months for each of Reid’s two simple assault. Reid denied that he displayed, or even counts of conviction, to be followed by three years of actively possessed, any weapon during the February 28, 2001 supervised release, plus restitution totaling $7,025.00 and a altercation; and he further denied that he had verbally $200.00 assessment. A timely appeal followed. threatened serious violence against Skelton or her child. The defendant conceded that he has an alcohol problem, and that The defendant’s initial assignment of error is that the lower he had been drinking prior to the February 28, 2001 court abused its discretion by re-opening the record after it confrontation; but he denied that liquor had played a role in had previously entered its March 21, 2002 order denying the his conduct on the day in question. Rather, Reid claimed that prosecution’s request for the controverted four-level a dispute over finances had triggered the confrontation with “felonious use” sentencing enhancement by reason of the his cohabitating fiance. government’s failure of proof, especially given that the government had been afforded a fair opportunity to offer its After the evidentiary hearing, the trial court journalized a evidence at the March 18, 2002 hearing which had preceded June 6, 2002 written order which assessed the testimony of the court’s March 21, 2002 order. the various witnesses, and resolved: Based on their testimony as a whole, and their 5 demeanor in open court, the Court finds that Merica Absent the contested four-point offense level increase, R eid’s Skelton is a more credible witness than the defendant. sentencing range would have been 33 to 41 months in prison. U.S.S.G. § 5A (2001) (Sentencing Table). No. 02-5794 United States v. Reid 9 10 United States v. Reid No. 02-5794

A trial court’s decisions to vacate its prior order, and to other status change, by the trial court, in the exercise of its reopen the evidentiary record, are examined for abuse of sound discretion, at any time prior to the entry of final discretion. See United States v. Wilson, 27 F.3d 1126, 1129 judgment.6 See Wilson, 27 F.3d at 1129; United States v. (6th Cir. 1999). An abuse of discretion occurs “when the Kolenda, 697 F.2d 149, 150 (6th Cir. 1983) (per curiam). reviewing court is firmly convinced that a mistake has been made. A district court abuses its discretion when it relies on In both civil and criminal cases, a trial court is empowered clearly erroneous findings of fact, or when it improperly to revisit any of its previous non-final rulings in the light of applies the law or uses [an] erroneous legal standard." a perceived error or misjudgment, new relevant information, Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. or even its simple conclusion that it may have acted in ill- 1995). (Quotation marks and citations omitted). Reid, considered haste. See, e.g., Christianson v. Colt Operating without supporting citation to controlling or even persuasive Corp., 486 U.S. 800, 816 (1988); Arizona v. California, 460 authority, has endeavored to analogize the district court’s re- U.S. 605, 618 (1983). In the case sub judice, the United opening of the evidentiary record, vacating of its prior order, States had offered two compelling reasons why it had not and granting of the government’s previously-denied motion been prepared to offer factual proof via live witnesses at the to significantly enhance the defendant’s offense level, to a March 18, 2002 hearing – (1) the key witness Skelton was hypothetical re-opening of a criminal prosecution following unavailable, and (2) the prosecutor had reasonably construed the defendant’s acquittal, whereby the defendant is compelled Reid’s objection to the PSR as a legal contention that the to face re-trial on previously failed charges which, on the “felonious use” enhancement was improper absent an actual government’s second attempt, are supported by novel felony conviction, but not as a denial of the underlying facts. evidence, in violation of the protections of the Fifth See United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir. Amendment’s Double Jeopardy Clause. 2001) (recognizing that a defendant’s non-objection to factual assertions contained in the PSR constitutes an admission of That analogy was facially misconceived. No final the accuracy of those facts), cert. denied, 535 U.S. 1006 judgment which might have even arguably been insulated (2002). Furthermore, at the June 3, 2002 evidentiary hearing, from tampering by double jeopardy principles had been Reid was given a full and fair opportunity to cross-examine entered in the defendant’s favor prior to the trial court’s election to permit both adversaries to offer additional evidence relevant to the disputed sentencing issue and its setting aside of the March 21, 2002 order. See, e.g., Palazzalo v. Gorcyca, 244 F.3d 512, 516 (6th Cir. 2001) (“The Double Jeopardy Clause protects against a second prosecution for the same offense after conviction or acquittal, 6 and against multiple punishments for the same offense.”) On appeal, the United States has argued that this court lacks jurisdiction over the defendant’s challenge to the district court’s vacation (emphasis added) (citing Ohio v. Johnson, 467 U.S. 493, 498 of the March 21, 2002 order because that order was a non-appealable, and (1984); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). now defunct, interim mandate. However, the defendant has challenged Rather, the ultimately-vacated March 21, 2002 order was his final judgment of sentence b y com plaining that it was wrongfully merely an interim decree subject to revision, reconsideration, determined in light of his purported ve sted right to the trial co urt’s prior rescission, correction, amendment, adjustment, vacation, favorable adjudication of the “felonious use” issue. Acc ordingly, this reviewing court has subject matter jurisdictio n over the instant substitution, supersedure, modification, annulment, or any controversy. See 18 U .S.C. § 374 2(a); 28 U .S.C. § 129 1. No. 02-5794 United States v. Reid 11 12 United States v. Reid No. 02-5794

the prosecution witnesses and to offer his own rebuttal Accordingly, on the overall record, the district court did not evidence; therefore, he suffered no unfair prejudice.7 abuse its discretion by hearing additional testimony concerning the “felonious use” enhancement following its initial resolution of that controversy. To the contrary, its 7 actions commendably served, ultimately, to correct that The Sixth Circuit has explained that a district court, in a criminal misconceived ruling. See United States v. Tilton, 714 F.2d case, may, in its sound discretion, re-open the evidence at trial after the government, or even both litigants, have rested: 642, 643 (6th Cir. 1983) (per curiam) (instructing that a trial judge has a duty to “conduct the trial [or other proceeding] in There is no iron-bound, copper-fastened, double-riveted rule an orderly fashion, to ensure that the issues are not obscured against the admission of evidence after both parties have rested and to act at all times with a view toward eliciting the truth.”). upon their proof and even after the jury has en tered upon its deliberations. Considerable latitude in discretion is vested in the Finally, Reid has assailed his sentence on the rationale that trial judge in this respect. In exercising his discretion the trial judge must consider a num ber o f factors. . . . A m otion to the government failed to prove, by a preponderance of the reopen is clearly within the disc retion o f the trial court. In evidence, that he had used his unlawfully-possessed pistol on exercising its discretion, the court must consider the timeliness February 28, 2001 in a matter which fulfilled the statutory of the mo tion, the charac ter of the testimony, and the effect of requirements of felonious assault.8 Reid’s attack was the granting of the motion. The party moving to reope n shou ld provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The its case, the lower court in the instant case did not abuse its discretion by belated receip t of such testimony shou ld not "imbue the evidence re-opening the pro secutio n’s evidence proffered in a non-jury sentencing with distorted importance, prejudice the opposing party's case, proceed ing. or preclude an adversary from having an adequate op portunity 8 to meet the additional evidence offered." United States v. Application No te 7 to the Official Commentary to Guid elines Larson, 596 F.2d 75 9, 778 (8th Cir.1979). section 2K2.1(b)(5) defines “felony offense” as “any offense (federal, state or local) punishable by imprisonment for a term exceeding one year, The most important consideration is whether the opposing whether or not a criminal charge was brought, or conviction obtained.” party is prejudiced by reopening. One of the critical factors in U.S.S.G. § 2K2.1, comment. (n.7). (Emphasis added). Indeed, conduct evaluating prejudice is the timing of the mo tion to reop en. If it which was the subject of an indictment count of acquittal may result in a comes at a stage in the proceedings where the opposing party sentencing enhancement if proved by a preponderance of the evidence. will have an opportun ity to respond and attempt to rebut the United States v. Wa tts, 519 U.S. 148, 157 (1997); McM illan v. evide nce intro duced after reop ening, it is not nearly as likely to Pen nsylvania , 477 U.S. 79, 92 (1 986). be preju dicial as when reop ening is granted after all parties have rested, or even after the case has been subm itted to the jury. Under Tennessee law, an “assault” includes either “intentionally or W here, as in this case, reopening is permitted after the knowingly [causing] ano ther to re asonably fear imminent bodily injury; government has rested its case in chief, but before the defendant or intentionally or knowing ly [causing] physical contact with another and has presented any evidence, it is unlikely that prejudice a reasonable person would regard the contact as extremely offensive or sufficient to establish an abuse of discretion can be established. provocative.” Tenn. Co de A nn. § 3 9-13 -101 (2003). An “assault” is “aggravated” if the perpetrator “uses or displays a deadly weapon.” Tenn. Un ited States v. B lankensh ip, 775 F.2d 73 5, 741 (6th Cir. 1985). Code Ann. § 39-13-102. In Tenn essee, “aggravated assault” is a Class C felony. Tenn. Code Ann. § 39 -13-1 02(d)(1 ). A Class C felony is Manifestly, if a district court is empowered to re-open the punishable by three to fifteen years in the state penitentiary. Tenn. Code gove rnment’s proof in a criminal jury trial after the prosecution has rested Ann. § 40-35-101 (Sentencing Ranges Table). No. 02-5794 United States v. Reid 13

anchored in a credibility challenge. The defendant has claimed that the district court should have believed him, rather than Skelton, because she was an interested witness with a motive for seeking revenge against him because the government had confiscated the engagement ring which he had fraudulently purchased for her; she had a criminal record; and some aspects of her story varied over time. However, a district court’s credibility assessment is ordinarily unreviewable. “A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). “The appellate courts generally do not review the district court's determinations regarding witness credibility.” United States v. Gessa, 57 F.3d 493, 496 (6th Cir.1995). The credited testimony of a single witness is sufficient to support factual findings by a preponderance of the evidence on sentencing, which will survive “clear error” review, if that evidence bears more than a “minimum indicium of reliability.” Id. Skelton’s credited testimony was sufficient to support the “felonious use” enhancement. See United States v. Parker, No. 99-5691, 2000 WL 1647922, at *1 (6th Cir. Oct. 23, 2000) (per curiam), cert. denied, 531 U.S. 1183 (2001); United States v. Ray, No. 98-6776, 2000 WL 1033010, at *1 (6th Cir. July 21, 2000) (per curiam). This reviewing court has carefully examined the trial record, the briefs and all arguments of counsel, and the controlling law. It has identified no reversible error. Accordingly, the instant judgment of conviction and sentence against defendant Michael Shane Reid is AFFIRMED.