United States v. Timothy Wayne Morrow (89-5418/5708) and George Mooneyham (89-5710)

977 F.2d 222, 1992 U.S. App. LEXIS 24984
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 7, 1992
Docket89-5418, 89-5708 and 89-5710
StatusPublished
Cited by353 cases

This text of 977 F.2d 222 (United States v. Timothy Wayne Morrow (89-5418/5708) and George Mooneyham (89-5710)) 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. Timothy Wayne Morrow (89-5418/5708) and George Mooneyham (89-5710), 977 F.2d 222, 1992 U.S. App. LEXIS 24984 (6th Cir. 1992).

Opinions

SUHRHEINRICH, Circuit Judge.

In a prior decision in this case, a three-member panel of this Court ruled that instructions defining the element of carrying a firearm “in relation to” a drug trafficking offense pursuant to 18 U.S.C. § 924(c) failed to inform the jury that the crime required proof of a relationship between the weapon and the drug offense. It therefore reversed defendant Mooneyham’s conviction on that count and vacated defendant Morrow’s conviction for aiding and abetting Mooneyham in a 924(c) violation. United States v. Morrow, 923 F.2d 427 (6th Cir.1991). A majority of the Court voted for rehearing of the case en banc, thereby vacating the previous opinion and judgment of the original panel. 932 F.2d 1146 (6th Cir.1991).

Agents of the United States Forest Service discovered Timothy Wayne Morrow and George Mooneyham enter a marijuana patch and commence cutting marijuana plants. Mooneyham wore a sidearm. When confronted by the agents, Morrow was promptly apprehended while Mooney-ham fled. Morrow was advised of his constitutional rights and told agents that he and Mooneyham were removing the male marijuana plants to facilitate the protection of tetrahydrocannabinol in the female plants.

When Mooneyham was arrested about thirty minutes later, his holster was empty. A loaded .22 caliber gun was subsequently found near the entry to the marijuana field.

A jury convicted Mooneyham and Morrow of aiding and abetting one another in the unlawful manufacture of marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. Moo-neyham and Morrow also were found guilty of conspiring to manufacture marijuana in violation of 21 U.S.C. § 846. In addition, the jury found that Mooneyham, aided and abetted by Morrow, knowingly carried a firearm during and in relation to a drug trafficking offense in breach of 18 U.S.C. § 924(c)(1).

Morrow received a sentence of sixty-three months imprisonment for the manufacturing and conspiracy offenses. Moo-neyham’s sentence on the manufacturing and conspiracy counts was thirty-seven months imprisonment. As for the firearm convictions, Morrow and Mooneyham each received the mandatory five-year sentence set forth in 18 U.S.C. § 924(c)(1), to be served consecutively.

Defendants have raised various assignments of error. After careful review, the Court concludes that none has merit. The judgment of the district court is affirmed.

I

The following colloquy between the prosecutor and an arresting agent took place during the trial:

Q. Did Mr. Morrow tell you anything further?
A. In response to a question by another officer he indicated how they had learned some of the business about growing marijuana.
[225]*225Mr. Santore [Mooneyham’s counsel]: Objection to what they, your Honor please. May we have a side bar with your Honor. The Court: Well, overruled. It’s admissible.
Q. Just testify about what Mr. Morrow told you.
A. He indicated they had learned, that he had learned information about growing marijuana from books such as High Times, magazines such as High Times.

Mooneyham’s first argument is that the admission of Morrow’s incriminating statements regarding what “they” did resulted in a violation of Mooneyham’s rights under the Confrontation Clause of the Sixth Amendment. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the Supreme Court held that in joint trials hearsay attributed to one nontestifying codefendant incriminating another codefendant may violate the latter’s Sixth Amendment rights. The risk is that the jury might rely on the extrajudicial statements to convict, even though such statements have not been subjected to cross-examination or otherwise tested for reliability. Id. at 136, 88 S.Ct. at 1628.

Had Morrow not testified at Mooney-ham’s trial, Mooneyham’s Bruton argument might have merit. But Mooneyham’s Sixth Amendment right was exercised during his cross-examination of Morrow. The cross-examination of Morrow disables Moo-neyham’s claim of constitutional deprivation based on Bruton. See Nelson v. O’Neil, 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971); Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717-18, 95 L.Ed.2d 162 (1987); United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.1991).

II

Mooneyham and Morrow contend that their trial was irreparably tainted by judicial bias. The offending judicial statements came at the close of the government's case, as the court was responding to a defense motion for acquittal. The jury was not present.

The first of three statements submitted as evidence of the judge’s predisposition against Mooneyham and Morrow came in response to a contention by Mooneyham’s attorney that the government failed to provide the necessary proof in support of Count II. The court replied: “Strongest case I could ever think of. I don’t know why we’re here, but overruled.” As Morrow’s counsel attempted to speak, the court continued: “Talk about having his hand in the cookie jar when they don’t want you to steal cookies.”

Finally, the court, after learning that Mooneyham and Morrow planned to take the stand, remarked that the defendants had a duty not to waiver from the truth. Noting that perjury would lead to increased punishment, the court added that “if they come in and tell the truth, as they’ve got right to do [sic], they’ve nothing to fear. Absent that, they’re, more time is in jeopardy on their lives [sic], if they are, in fact, found guilty. So anyway, with that in mind, bring the jury back, and bring them around.”

Neither Mooneyham nor Morrow explains how these statements reflect bias. Each is content simply to conclude that bias is “clear” or “obvious.” We disagree, and regard the evidence as falling well short of demonstrating judicial bias.

A judge must exhibit “impartiality in demeanor as well as in actions.” United States v. Frazier, 584 F.2d 790, 794 (6th Cir.1978). Much of the concern about an otherwise inappropriate judicial act or remark is neutralized by the absence of the jury. The threat of prejudice is greatest when a judge overpowers a jury, United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979), or when she unduly interferes with counsel’s conduct of the case. United States v. Slone,

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Cite This Page — Counsel Stack

Bluebook (online)
977 F.2d 222, 1992 U.S. App. LEXIS 24984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-wayne-morrow-89-54185708-and-george-mooneyham-ca6-1992.