AVERN COHN, Senior District Judge.
This is a criminal case. Defendant Appellant Willie Green (Green) appeals from his conviction and sentence. He raises five errors, which include evidentiary errors, prosecutorial misconduct, an error in sentencing, and a claim that his counsel was denied a right to allocute at sentencing. We find no merit to Green's assignments of error with one exception — that the district court denied his counsel's right to allocute at sentencing. Accordingly, we affirm in part, reverse in part, and remand for resentencing.
On January 19, 1990, Green was charged with several others in a 37-count indictment in a multi-count drug conspiracy and tax evasion conspiracy/criminal enterprise. Green was charged in Count 1 with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and in Counts 21, 27, 31, and 33 with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Green's co-defendants were Robin Warner, Michelle Angel, Joyce Richmond, Juniata Redd, Claudette Foster, and Linda Hardy. Green, Warner, Angel, Richmond and Redd went to trial on May 7, 1990. Foster and Hardy pled guilty and testified for the government. On May 18, 1990, Green was found guilty by a jury as charged in the indictment. Green was released on bond pending sentencing.
On August 24, 1990, Green failed to appear for sentencing and a bench warrant was issued. Meanwhile, Green's co-defendants were sentenced and appealed their convictions, which a panel of this court affirmed in United States v. Warner, 971 F.2d 1189 (6th Cir.1992).
Almost ten years later, on April 26, 2000, Green was arrested on the outstanding warrant. He was living in Florida under an assumed name. On June 27, 2000, a single count information was filed charging him with failing to appear, in violation of 18 U.S.C. § 3146(a)(1) and § 3146(b)(1)(A)(i). On July 27, 2000,
On October 12, 2000, Green was sentenced to 151 months imprisonment on the drug charges and 14 consecutive months on the failure to appear charge, for a total of 165 months imprisonment.
The factual background leading to Green's conviction is as follows:
Warner, 971 F.2d at 1192-94 (internal footnote omitted).
Green was primarily implicated by the testimony of Marvin Warner, the ex-husband of Robin Warner who pled guilty and testified for the government, and Kevin Richmond, Joyce Richmond's husband. Green was the supplier of the cocaine used in the conspiracy.
Green claims five errors:
Each claimed error will be separately considered.
A. Marvin Warner's Attorney's Testimony
Green argues that the district court erred in allowing Marvin Warner's attorney to testify despite the presence of a witness sequestration order and that the trial court should have granted a mistrial because of this. Green also argues that the trial court improperly limited the cross-examination of Marvin Warner's attorney, in violation of his right of confrontation. The district court's rulings are reviewed for an abuse of discretion. See United States v. Gibson, 675 F.2d 825, 835-36 (6th Cir.1982); see also United States v. Wall, 130 F.3d 739, 745 (6th Cir.1997) (holding that the court reviews a district court's denial of a motion for a mistrial for an abuse of discretion which "exists when the reviewing court is firmly convinced that a mistake has been made.")
The record does not contain a sequestration order. However, the government appears to concede that such an order was in place at trial, and a review of the relevant portions of the transcript tends to indicate that such an order was in place — both the government and Green's counsel referred to such an order. Thus, we assume that a sequestration order was in fact in effect at trial.
Federal Rule of Evidence 615 provides that: "at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." This rule serves two purposes: (1) it prevents witnesses from tailoring testimony to that of other witnesses; and (2) it aids in detecting false testimony. United States v. Warren, 578 F.2d 1058 (5th Cir.1978) (en banc) on reh'g. 612 F.2d 887 (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). It is well-established that a violation of a sequestration order does not automatically bar a witness's testimony. United States v. Bostic, 327 F.2d 983 (6th Cir.1964).
In Gibson, supra, a panel of this court explained:
Gibson, 675 F.2d at 835-36.
Federal Rule of Evidence 611 limits cross-examination to the "subject matter of the direct examination." See also United States v. Moore, 917 F.2d 215 (6th Cir.1990).
Here, Marvin Warner testified on direct examination that the cocaine supplier was an individual he knew as "Kenny Green" and identified Green at trial. On cross-examination, however, Green's counsel produced a letter written by Marvin Warner to his ex-wife Robin Warner in which he wrote: "I have also heard someone named Willie Green got picked up in Florida. That was the name in the paper under your write-up. Who is that?"
The government was not aware of the existence of the letter prior to trial. As a result, the government sought to call
During cross-examination by Robin Warner's attorney, Rogers admitted that he had been present for part of Marvin Warner's testimony. During cross-examination by Green's counsel, the lawyer attempted to ask Rogers why Marvin Warner sought his representation. The trial court refused to allow this line of questioning, based on the limited waiver of attorney-client privilege and because the questioning was outside of the scope of the direct examination.
From our review of the record, we find no violation of the sequestration order. As the government points out, it did not know of the existence of the letter prior to Marvin Warner's cross-examination. Thus, the government could not have known to have Rogers absent during Marvin Warner's testimony. Under these circumstances, the district court did not abuse its discretion in permitting Rogers to testify or in denying Green's motion for a mistrial because of Rogers' testimony.
We also conclude that the trial court properly limited Green's counsel from questioning Rogers about his representation of Marvin Warner as being outside the scope of direct-examination and outside the limited waiver of attorney-client privilege. As such, there was no violation of Green's right of confrontation.
B. Prosecutorial Misconduct
Green says that the prosecutor in closing argument urged him to explain "why" certain facts were present in the case in an attempt to improperly shift the burden of proof and violate his constitutional right not to testify. The government argues that Green's counsel did not properly object to the government's comments and that the complained of comments were simply rhetorical questions for the jury to answer to themselves during deliberations.
Allegations of prosecutorial misconduct contain questions of fact and law that we review de novo. United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). We must first examine whether this incident amounts to prosecutorial misconduct, and if so, whether it was so egregious as to warrant a new trial. Id. In reviewing a claim of prosecutorial misconduct, we first determine whether the statement was improper. United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). To warrant the reversal of a conviction, the improper statements must also be flagrant, which requires consideration of the following factors: "1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the
Green points to the following passages from the government's closing argument to support his claim of prosecutorial misconduct:
As an initial matter, we reject the government's argument that Green's counsel failed to properly object. Green's counsel objected to the closing argument and moved for a mistrial at the end of the closing argument. The fact that Green's counsel did not object continuously during the closing after the alleged improper remarks does not mean that this issue is not preserved for review.
However, having reviewed the challenged comments together with the entire closing argument, we do not find that they constitute prosecutorial misconduct or an attempt to shift the burden of proof. The questions posed by the government were presented in such a way as to indicate that they were for the jury to decide during its deliberations. There is nothing improper about posing rhetorical questions within the broad scope of a closing argument. The district court did not abuse its discretion in so concluding.
C. Questioning about the Airport Incident
The government asked Green's wife, Ruth Green, and William Roberts, a longtime
Green argues that the government's questions were an improper attempt to assert facts not in evidence and the questions were unfairly prejudicial and should have been excluded under Fed.R.Civ.P. 403. The government says that the questions were proper cross-examination of character witnesses.
A district court's evidentiary rulings are reviewed for abuse of discretion. Hancock v. Dodson, 958 F.2d 1367 (6th Cir.1992).
Federal Rule of Evidence 405(a) establishes the procedure for introducing character evidence and the general scope of cross-examination, stating in part that "[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct." Fed.R.Evid. 405(a). This court has noted that "relevant specific instances of conduct are only instances going to the accuracy of the character witnesses' testimony. If ... direct testimony is addressed to community reputation, inquiry may be made about conduct, and even about charges, which may have come to the attention of the relevant community." United States v. Curtis, 644 F.2d 263, 268 (3rd Cir.1981).
Here, both Ruth Green and William Roberts testified on direct examination as to Green's good character and that Green was a law-abiding citizen. Given this testimony, the government could inquire as to whether they were aware of the airport incident. When both denied having any knowledge of the incident, the government properly ended this line of questioning. The district court therefore did not abuse its discretion in allowing this line of questioning.
D. Sentencing Calculation
The presentence report (PSI) grouped Green's drug and failure to appear convictions together for calculating his sentencing range. The drug conviction had a base offense level of 32 and two levels were added for obstruction of justice under U.S.S.G. § 3C1.1, producing an adjusted offense level of 34. The failure to appear conviction had a base offense level of 6. Nine levels were added under U.S.S.G. § 2J1.6(b)(2)(A) as a special offense characteristic because the underlying offense, the drug conviction, was punishable by a term of imprisonment of 20 years, producing an adjusted offense level of 15. As explained more fully below, the grouping rules require that the highest adjusted offense level be used to calculate the total offense level. In Green's case, this was level 34. Green's criminal history category was calculated as category I, producing a sentencing range of 151-188 months. Because any sentence imposed for a failure to appear conviction must be consecutive, see 18 U.S.C. § 3146, the PSI noted that Green's total sentence, including any sentence for his failure to appear, could not exceed 188 months.
Green objected to the PSI calculations and the two-level increase for obstruction
The district court denied the objection in a written opinion, noting a circuit split on the issue of grouping, and followed a majority of circuits holding that grouping is permissible under the circumstances.
Green initially argues for the first time on appeal that the 1990 edition of the guidelines should have been used to calculate his sentence instead of the 1998 edition. Green argues that the 1990 edition does not call for grouping his offenses, and if his convictions were not grouped, but rather separately counted, his guideline range for the drug conviction would have been 121-151 months and his guideline range for the failure to appear conviction would have been 12-18 months or 18-24 months. Because according to Green, the possibility of a lower sentence was present, he argues that the use of the 1998 edition raises an ex post facto problem.
Because Green did not challenge the application of the 1998 edition before the district court, we review the issue for plain error. United States v. Fountain, 2 F.3d 656, 669-70 (6th Cir.1993).
An ex post facto problem exists where "the Guidelines in effect at the time of sentencing provide for a higher range than those in effect at the time the crime was committed." United States v. Milton, 27 F.3d 203, 210 (6th Cir.1994) (quotation and citation omitted). The relevant language is "in effect at the time the crime was committed." Green argues that the failure to appear offense occurred, or was committed on August 24, 1990, when he failed to show up for sentencing, and therefore the 1990 edition should apply. The government argues that the failure to appear offense is a "continuing offense," and therefore was not "committed" for purposes of the guidelines until later.
This circuit has not considered whether the failure to appear is a continuing offense. The Second, Ninth and Tenth Circuits have considered the issue and hold that a failure to appear is a continuing offense. See United States v. Lopez, 961 F.2d 1058 (2d Cir.1992); United States v. Gray, 876 F.2d 1411 (9th Cir.1989); United States v. Martinez, 890 F.2d 1088 (10th Cir.1989). We agree.
The Supreme Court has stated that an offense will be deemed continuing when "the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In this vein, the Supreme Court has found that the crime of escape is a continuing offense. See United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).
The statutory language of 18 U.S.C. § 3146, the failure to appear statute, does not shed any light on whether Congress intended a failure to appear to be a continuing offense, but simply provides in part that:
18 U.S.C. § 3146.
However, considering the nature of the crime of a failure to appear compels the
We also note that even if the guidelines changed from the time Green initially failed to appear in 1990 and when he was sentenced, it was not a change to the guidelines which disadvantaged him, but rather his election to continue his criminal activity in 1990 by failing to appear for sentencing.
Green also argues, as he did before the district court, that his offenses should not have been grouped together even under the 1998 edition because grouping is not consistent with the failure to appear statute. This issue involves interpreting the guidelines, which is a question of law subject to de novo review. United States v. Edgecomb, 910 F.2d 1309, 1311 (6th Cir.1990).
The punishment provision of the failure to appear statute provides in relevant part:
18 U.S.C. § 3146(b) (emphasis added).
As seen from above, the failure to appear statute does not specify a set term of imprisonment to be imposed; instead, it states that a violation may be punished by a fine, imprisonment, or both. See 18 U.S.C. § 3146(b). The statute's only requirement is that, if a sentence of imprisonment is imposed (as opposed to simply a fine), that sentence must run consecutively to any sentence imposed for the underlying offense(s).
In addition to the above statutory language, there are three relevant guidelines provisions with respect to grouping. First, U.S.S.G. § 3D1.1 sets forth the procedure for determining an overall offense level on multiple counts that are grouped. Section 3D1.1(a) provides:
Subsection (b) was added in 1998 by amendment. See Appendix C, amendment 579 (1998). Amendment 579 was intended "to clarify how several guidelines provisions, including those on grouping multiple counts of conviction, work together to ensure an incremental, consecutive penalty for a failure to appear count." U.S.S.G. Supplement to App. C, Amendment 579 (1998).
The Commentary to § 3D1.1 states:
Also important to consider is U.S.S.G. § 2J1.6, the guideline regarding failure to appear, providing in part that:
. . . .
Section 2J1.6 was also amended in 1998 by Amendment 579. In particular, Application Note 3 was added, which provides:
The third relevant guideline provision is U.S.S.G. § 3D1.2, which states that "all counts involving substantially the same harm shall be grouped together in a single
As to case law on the issue of grouping, we first note that prior panels of this court have found that grouping a failure to appear with the underlying offense is proper. As one panel stated, prior to the 1998 amendments:
United States v. Flores, No. 93-3771, 1994 WL 163766 (6th Cir. May 2, 1994) (unpublished). See also United States v. Stokes, No. 96-6440, 1998 WL 13409 (6th Cir. Jan. 7, 1998) (per curiam) (unpublished) (noting that under commentary to § 2J1.6 precludes grouping a failure to appear count on a failure to appear for service of sentence, as opposed to a failure to appear for sentencing).
We further note that the grouping issue is the subject of a circuit split, which this circuit has not clearly addressed in a published opinion. Several of our sister circuits have similarly concluded that grouping the failure to appear offense with the underlying offense for sentencing is appropriate based on the guidelines and the commentary. See United States v. Gigley, 213 F.3d 503 (10th Cir.2000); United States v. Kirkham, 195 F.3d 126, 130-32 (2d Cir.1999); United States v. Jernigan, 60 F.3d 562, 564 (9th Cir.1995); United States v. Pardo, 25 F.3d 1187, 1193-94 (3d Cir.1994); United States v. Agoro, 996 F.2d 1288, 1291 (1st Cir.1993); United States v. Lechuga, 975 F.2d 397, 401 (7th Cir.1992). See also United States v. Magluta, 203 F.3d 1304, 1305 (11th Cir.2000) (remanding the case to the district court for it to apply § 2J1.6 as amended in 1998), vacating in part 198 F.3d 1265 (11th Cir.1999).
The Eighth and Fifth Circuits, on the other hand, have found that the sentencing guidelines in conflict with the statutory language of § 3146(b)(2) regarding the imposition of a consecutive sentence and have therefore refused to group the failure to appear offense with the underlying offense for sentencing. United States v. Crow Dog, 149 F.3d 847, 849 (8th Cir.1998); United States v. Packer, 70 F.3d 357, 360 (5th Cir.1995). These circuits rely on the Supreme Court holding that a guideline or guideline commentary is not authoritative if it violates a federal statute. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).
We believe that the majority of the circuits have the better view — the sentencing guidelines, U.S.S.G. §§ 3D.1, 2J1.6, and 3D1.2, clearly call for grouping a failure to
Additionally, we note that grouping does not amount to double counting. Although in calculating the base offense level for the drug offense, two points were added for obstruction of justice based on the failure to appear, the failure to appear conviction was separately calculated. Because under the grouping rules the highest offense level is used, the offense level for the failure to appear conviction, which in this case was 15, was not used in determining Green's ultimate sentencing range. Rather, only the offense level for the drug conviction, which takes into consideration the failure to appear by imposing the two-point enhancement, was used. See Offense Level Computations, attached as Appendix A. Overall, Green's sentencing range was correctly calculated under the guidelines.
E. Allocution at Sentencing
The district court at sentencing indicated that he was going to sentence Green at the bottom of the guidelines range, which was 151 months. Green's counsel then said that his presentation would be shorter. However, the district court then imposed a 151-month sentence for the drug conviction and a 14-month consecutive sentence for the failure to appear conviction. When Green's counsel attempted to object to the 165-month sentence, the district court declined to entertain his comments.
Green argues that the district court misled his counsel at sentencing into shortening his sentencing arguments and denied his counsel a right of allocution. Green also argues that the district court's imposition of a harsher sentence than indicated denied him due process.
The government argues that Green's counsel and the district court merely misunderstood one another, that the district court already had in mind the sentence it was going to impose regardless of what Green's counsel said, and in any event, the sentence imposed was within the guidelines range.
This court reviews Green's claim de novo. United States v. Wolfe, 71 F.3d 611, 614 (6th Cir.1995).
It is clear that Green's counsel had a right to allocute at sentencing. Federal Rule of Criminal Procedure 32(c)(3) states in part that "before imposing sentence, the court must ... afford defendant's counsel an opportunity to speak."
Here, Green's counsel began his statement to the court arguing that Green should receive a sentence "at the bottom level, or 151-months." The district court replied that "not to interfere with your statement, that's what I had in mind."
Our review of the record establishes that the district court did not give Green's counsel a right of allocution. After informing Green's counsel that he was going to impose a sentence at the low end of the guidelines, or 151 months, Green's counsel understandably said that his argument would be much shorter. However, the district court imposed a sentence of 165 months, an obvious surprise to Green's counsel who legitimately expected a sentence of 151 months. With considerable candor, the government stated at oral argument in response to a question that it too expected Green to be sentenced to 151 months based on the district court's comments. When Green's counsel attempted to raise an objection to the sentence, the district court essentially stopped Green's counsel from saying anything more and thus denied him the opportunity to allocute on behalf of his client. Accordingly, this case must be remanded for resentencing to afford Green's counsel the right to allocute as required by the Federal Rules of Criminal Procedure.
For the reasons stated above, we AFFIRM IN PART, REVERSE IN PART, AND REMAND this case to the district court for resentencing consistent with this opinion.
Offense Level Computations
The 1998 edition of the Guidelines Manual was used to calculate Green's sentencing range.
With respect to Green's drug offense, all of the counts (Counts 1, 21, 27, 31 and 33) would be grouped together under U.S.S.G. § 3D1.2(d) as the offense level is determined on the basis of the total amount of the quantity of controlled substances involved.
Count 1: Conspiracy to Distribute Cocaine Counts 21, 27, 31, and 33: Possession with Intent to Distribute Cocaine Base Offense Level: The guideline for violations of 21 U.S.C. §§ 841(a)(1) and 846 are found at U.S.S.G. § 2D1.1 (a)(3)(c)(4). That section provides that the base offense level for at least 5 kilograms, but less than 15 kilograms of cocaine of 32. 32 ___ Adjustment for Obstruction of Justice: As Green failed to appear for sentencing on August 24, 1990, his offense level was increased by two levels for obstruction of justice under U.S.S.G. § 3C1.1. +2 ___ Adjusted Offense Level: (Subtotal): 34 ___ Count 1: Failure to Appear for Sentencing Base Offense Level: The guideline for a violation of 18 U.S.C. § 3146(a)(1) is found at U.S.S.G. § 2J1.6(a)(2). That section provides that the base offense level is six. 6 ___ Specific Offense Characteristic: As the base offense level was determined under subsection (a)(2), and the underlying offense was punishable by a term of imprisonment of 20 years, the offense level is increased by nine levels, under U.S.S.G. § 2J1.6(b)(2)(A). +9 ___ Adjusted Offense Level:(Subtotal): 15 ___
Because the failure to appear offense embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to the drug offense, they are grouped together under U.S.S.G. § 3D1.2(c). Also U.S.S.G. 2J1.6, Application Note 3, states that in the case of a conviction on both the underlying offense and the failure to appear, the failure to appear is treated under 3C.1 (Obstructing or Impeding the Administration of Justice) as an obstruction of the underlying offense, and the failure to appear offense and the drug offense are grouped together under 3D1.2(c). As the courts are grouped together under 3D1.2(c), the group which results in the highest offense level is used. U.S.S.G. 3D1.3(a). In Green's case, that is an offense level of 34.
Total Offense Level:34 ___