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

923 F.2d 427, 1991 U.S. App. LEXIS 281
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 10, 1991
Docket89-5418, 89-5708 and 89-5710
StatusPublished
Cited by22 cases

This text of 923 F.2d 427 (United States v. Timothy Wayne Morrow (89-5418/5708), 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), George Mooneyham (89-5710), 923 F.2d 427, 1991 U.S. App. LEXIS 281 (6th Cir. 1991).

Opinions

HILLMAN, Chief District Judge.

Defendants Timothy Wayne Morrow and George Mooneyham appeal their jury convictions on three drug related offenses. On Count I, the jury found that defendants aided and abetted each other in the unlawful manufacturing of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. Defendants were convicted on Count II under 21 U.S.C. § 846 of conspiring to manufacture marijuana. Count III charged defendant Mooneyham, aided and abetted by defendant Morrow, with carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). For the reasons set forth, we affirm the jury verdict on Counts I and II but vacate the judgments as to Count III.

I.

Defendants were arrested by Special Agents of the United States Forest Service as they tended to plants in a large marijuana patch growing in the Cherokee National Forest. The Forest Service had been surveying the two fields of marijuana since discovering them in June, 1988. On July 31, 1988 the agents observed defendants approaching the patches on all-terrain vehicles, wearing camouflage clothing and ski masks.

As defendants approached the field, the agents noticed that one of them, later identified as defendant Mooneyham, was wearing a holster with a handgun. Upon entering the patch, defendants began pacing the rows, cutting marijuana plants. After approximately ten minutes the agents' confronted defendants. Morrow was immediately apprehended, but Mooneyham ran into the woods and was not captured for about thirty minutes. When Mooneyham was arrested, the holster was empty. The agents later found the gun, a .22 caliber magnum revolver, at the entrance to the marijuana patch. It was loaded and in working order.

After being advised of his Constitutional rights, Morrow explained to the agents that he was removing the male plants from the patch to facilitate the production of tetrahydrocannabinol in the female plants. Morrow proceeded to show one of the agents the difference between a male and a female plant. Further, Morrow stated that the plants would not be harvested until buds formed, which would occur in about another month when the nights cooled. Defendants were tried before a jury on October 17-18, 1988. The jury returned guilty verdicts as to both defendants on all three counts. At the sentencing hearing, Morrow was ordered to serve sixty-three (63) months imprisonment on Counts I and II, to be served concurrently. Mooneyham was sentenced to thirty-seven (37) months imprisonment on Counts I and II, also to be served concurrently. On Count III (the firearm offense), both defendants received the mandatory five year sentence set forth in 18 U.S.C. § 924(c) to be served consecutively to the underlying sentences. In addition, the trial court ordered that each defendant serve a five year term of supervised release following his incarceration.

II.

Defendants claim several general errors on appeal, and also challenge their convic[430]*430tions on Count III on sufficiency of the evidence and adequacy of the instruction grounds. Although we find only the challenges on Count III to have merit, we will address each issue raised.

A. Bruton issue: Mooneyham first contends that the trial court committed reversible error by admitting codefendant Morrow’s statements made to the arresting agents immediately after his arrest. Mooneyham argues that admission of Morrow’s confession incriminated him and violated his Constitutional right to confrontation.

The Supreme Court recognized the potential confrontation problem in joint trials where a nontestifying codefendant’s confession is admitted and prejudices a defendant against whom the confession is not admissible in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 4Y6 (1968). To avoid any Bruton problems, the trial court ordered all plural pronouns which might be construed to refer to Moo-neyham redacted from Morrow’s statement. See Richardson v. Marsh, 481 U.S. 200, 207-09, 107 S.Ct. 1702, 1707-08, 95 L.Ed.2d 176 (1987).

At trial, one of the agents testified that Morrow had told him how “they” had learned about growing marijuana. Following defense’s objection, the officer corrected his testimony, using only singular pronouns. This slip did not violate Mooney-ham’s rights under Bruton. No confrontation problem arises where the codefendant testifies and is available for cross-examination. Nelson v. O’Neil, 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971); Hodges v. Rose, 570 F.2d 643, 646 (6th Cir.), cert. denied, 436 U.S. 909, 98 S.Ct. 2244, 56 L.Ed.2d 408 (1978). Here both defendants opted to take the stand, and Mooneyham was afforded a full opportunity to cross-examine Morrow regarding those statements. Consequently, Mooneyham’s Sixth Amendment rights were protected.

B. Judicial bias: The next issue appealed involves allegations of judicial misconduct and bias. Both defendants assert that they were denied a fair trial due to the judge’s bias. In support they refer to the following comments by the court in the absence of the jury:

Talk about having his hand in the cookie jar when they don’t want you to steal cookies ... About the strongest case I ever heard.

J.App. at 125-126.

A court’s bias or prejudice may, in some circumstances, violate a defendant’s right to due process. Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971). The statements cited by defendants here, however, do not support the conclusion that the trial judge was prejudicial. Since no contemporaneous objection was made at trial, we must apply the plain error standard. United States v. Slone, 833 F.2d 595, 598 (6th Cir.1987).

A judge’s comments must be viewed in the context in which they were made and unless they “adversely affect the overall fairness of the trial” they will not be deemed prejudicial. Harris v. Lockhart, 743 F.2d 619, 620 (8th Cir.1984). The statements here were made following defendants’ motion for Judgment of Acquittal. In ruling upon such a motion, the trial judge is called upon to comment on the sufficiency of the government’s proofs to sustain a conviction. Fed.R.Crim.P. 29; United States v. Davis, 785 F.2d 610, 617 (8th Cir.1986). Furthermore, the comments were made outside the presence of the jury, thereby substantially diminishing the likelihood of actual prejudice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eugene Williams Gall, Jr. v. Phil Parker, Warden
231 F.3d 265 (Sixth Circuit, 2000)
Rhoden v. Morgan
863 F. Supp. 612 (M.D. Tennessee, 1994)
U.S. v. Teddy BATT
811 F. Supp. 625 (D. Kansas, 1993)
United States v. David Burgess and Billy White
983 F.2d 1069 (Sixth Circuit, 1992)
United States v. Edmund Njemanze
960 F.2d 150 (Sixth Circuit, 1992)
United States v. Pryce
938 F.2d 1343 (D.C. Circuit, 1991)
Ingram v. United States
592 A.2d 992 (District of Columbia Court of Appeals, 1991)
United States v. Douglas Braxton Bowden
932 F.2d 969 (Sixth Circuit, 1991)
United States v. Morrow
932 F.2d 1146 (Sixth Circuit, 1991)
United States v. Raymond J. Powell
929 F.2d 724 (D.C. Circuit, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
923 F.2d 427, 1991 U.S. App. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-wayne-morrow-89-54185708-george-mooneyham-ca6-1991.