United States v. Wilkins

253 F. App'x 538
Court of Appeals for the Sixth Circuit·Decided November 1, 2007·No. 05-5567·Unpublished·Cited by 9 cases

Opinion

GRAHAM, District Judge.

Defendant-appellant Alan Wilkins was indicted in the Western District of Tennessee on drug and weapons charges. In an indictment filed on July 30, 2003, defendant was charged in Count 1 with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), in Count 2 with possession of a firearm in furtherance of a drug trafficking crime violation of 18 U.S.C. § 924(c), and in Count 3 with possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). These offenses were alleged to have occurred on January 1, 2003. Defendant was also charged with two offenses allegedly committed on April 3, 2003. Specifically, defendant was charged in Count 4 with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and in Count 5 with being a felon in possession of six rounds of ammunition in violation of 18 U.S.C. § 922(g).

On May 12, 2004, defendant filed a motion to sever Counts 1, 2 and 3 from Counts 4 and 5 for purposes of trial. The motion was referred to a magistrate judge for a ruling. In a decision filed on June 8, 2004, the magistrate judge denied the motion for severance. The magistrate judge concluded that all counts were properly joined in the same indictment under Fed. R.Crim.P. 8(a) and that severance of the counts was not warranted under Fed. R.Crim.P. 14(a). Defendant filed an objection to the decision of the magistrate judge, but the record does not show that the district court specifically ruled on this objection. A trial on all counts of the indictment commenced on December 6, 2004, and the defendant did not renew his request for severance at any time during the trial.

*540 The testimony presented at trial revealed that on January 1, 2003, Officer Joseph Cunningham of the Memphis, Tennessee, Police Department was on routine patrol when he observed a white Chevy van stopped in the middle of eastbound traffic on Brooks Road. The driver appeared to be trying to talk to a pedestrian on the south side of the street through the passenger -window of the vehicle. JA 59. Officer Cunningham stopped the van. He checked the vehicle registration and learned that the license plates on the van were registered to another vehicle. JA 60. He approached the driver’s window, while Officer Shane Jordan approached the van’s passenger window. JA 60; 76.

Officer Cunningham questioned the driver of the van, identified as the defendant, and learned that defendant did not have a valid driver’s license. JA 61. Defendant was arrested and placed in the back seat of Officer Cunningham’s squad ear. JA 61. Officer Cunningham testified that defendant admitted to having a gun in the van, and that defendant consented to the search of the vehicle. JA 62. During the search, the officers recovered a nine-millimeter pistol from the center console of the van. They also found spent rounds on the floor board by the driver’s seat, and 1.7 pounds of marijuana, packaged in two large freezer bags, located between the second and third rows of seats. JA 64-65; 78-79; 82; 195.

The evidence at trial further revealed that on April 3, 2003, Memphis police officers responded to a 911 emergency call made by defendant’s wife, Lisa Wilkins. Mrs. Wilkins told Officer Erskin Caldwell that defendant had shot the tires of her vehicle. JA 131. The officers observed a vehicle with three flat tires, and recovered six .45 caliber shell casings from the ground around the vehicle. JA 132. The defendant then arrived at the scene and stated, “The bitch knocked on my door and I shot her tires out because every time the police are called, she is not here.” JA 133-34; 147. Defendant also told the officers that the gun was located on the top shelf of a bedroom closet in an apartment located at 3496 Mediterranean, where he sometimes stayed with his girlfriend, Jolene Helm, when estranged from his wife. JA 134-36, 248. The police went to the apartment and were admitted by a woman who showed them the location of the pistol. JA 143-44. The officers retrieved a .45 caliber Llama-Max-1 handgun, magazine clip and holster from a closet in the apartment. JA 134-36; 140.

As part of its case in chief, the government called Officer Moore, the supervisor of the Communications Bureau of the Memphis Police Department, to authenticate the audio tape of the 911 call made by Lisa Wilkins. JA 125.

The government also presented the testimony of Brian Weaks, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. Agent Weaks testified that while serving a grand jury subpoena on Helm, he left business cards in the neighborhood asking anyone with information concerning Helm’s whereabouts to contact him. JA 208-09. Agent Weaks testified that he received a message that someone identifying himself as Alan Wilkins had called and stated that someone was looking for his girlfriend. JA 209. Agent Weaks called the phone number provided and explained that he had a grand jury subpoena to serve on Ms. Helm. The man then asked, “Is this about when I shot all those tires out?” JA 209.

Lisa Wilkins testified that she had no recollection of the shooting on April 3, 2003. JA 153. She agreed that prior to trial, she had informed the prosecutor that there was a ninety-nine percent chance that her voice was captured on the tape. *541 However, she further testified at trial that although it was possible that the recorded voice was hers, it might not be. JA 170-71. Mrs. Wilkins also testified concerning her activities on January 1, 2003. She claimed that she purchased the firearm recovered from the van, that she placed the firearm in the van for her protection, and that she accidentally left the firearm in the vehicle when the van had ignition problems. JA 171-75.

Defendant stipulated to his felon status at trial and admitted the possession of marijuana charge. JA 56; 236-37; 276. He also testified that he recognized his wife’s voice on the 911 tape. JA 268. He denied knowing that the nine-millimeter handgun was in the van prior to its discovery by the police. JA 237-39. He also denied having a weapon at the time his wife’s tires were shot on April 3, 2003, and stated that his son had a gun. JA 250.

The jury returned a verdict of guilty on all counts. The district court imposed a sentence of seventy months on Count 1, sixty months on Count 3, and seventy-one months on Counts 4 and 5, to run concurrently, and a sentence of sixty months on Count 2, to run consecutively to the other counts, resulting in a total sentence of one hundred and thirty-one months. Defendant now pursues the instant appeal.

I.

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United States v. Wilkins, 253 F. App'x 538 (6th Cir. 2007).

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