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United States v. George Mooneyham
Citations: 473 F.3d 280; 72 Fed. R. Serv. 213; 2007 U.S. App. LEXIS 379; 2007 WL 51257Docket: 04-5189, 04-5190
Court: Court of Appeals for the Sixth Circuit; January 9, 2007; Federal Appellate Court
George Mooneyham's appeal arises from two separate indictments leading to convictions for conspiracy to distribute cocaine, which were consolidated at sentencing. The Sixth Circuit Court found no reversible errors in the convictions but remanded both cases for resentencing in light of United States v. Booker. In the first case (04-5189), Mooneyham was convicted on two counts related to a conspiracy involving over 500 grams of cocaine. He raised three arguments on appeal: a violation of his right to confrontation due to the admission of co-defendant Sheridan McMahan's statements, an error in allowing character evidence contrary to Federal Rule of Evidence 404(a), and the improper denial of a motion to suppress evidence seized from his vehicle. The background of the case involves an undercover investigation by the Tennessee Bureau of Investigation and North Carolina law enforcement, initially targeting McMahan. The investigation revealed that McMahan was involved in a scheme to distribute cocaine, which included a transaction arranged at Harrah's Cherokee Casino. Surveillance captured McMahan's movements, including switching vehicles after meeting with an undercover agent and delivering cocaine afterward, all of which was observed through aerial surveillance by TBI Agent Robert Burnette. A planned drug transaction involving McMahan and Agent Johnson for four ounces of cocaine was set for the following week, with Agent Williams accompanying McMahan to Tennessee to handle the money. At a truck stop, McMahan met his supplier, Mooneyham, while TBI agents conducted ground surveillance and observed the transaction. Mooneyham was seen delivering a white package to McMahan's vehicle, which then returned to North Carolina where the cocaine was delivered to Johnson. During their drive back, McMahan shared details about his supplier, describing him as cautious and with a criminal history. A subsequent transaction for 20 ounces of cocaine was arranged, with plans for a search warrant to be executed at Mooneyham's residence after the deal. However, during this operation, McMahan informed Williams that the deal would take place in two segments and required a change of vehicles. After waiting without success for his supplier, McMahan dropped Williams off at a rafting business while he attempted to meet Mooneyham. Surveillance agents observed Mooneyham's movements, including leaving and returning to his home. When McMahan returned to pick up Williams, he indicated that he could not find his supplier, and the conversation shifted away from drugs. Upon meeting Agent Johnson back in North Carolina, McMahan was arrested. Mooneyham was taken into custody when agents executed a search warrant at his property, where they discovered an arrest warrant for Walter Seay. Despite a thorough search failing to find cocaine or money, Agent Whitson later found a blue Wal-Mart bag containing cocaine in the woods, with a fingerprint matching Mooneyham's. Mooneyham and McMahan faced a 10-count drug-trafficking indictment. After a mistrial and subsequent release on bond, Mooneyham absconded but was captured and retried, where he unsuccessfully objected to the admission of evidence seized from his property and recorded statements made by McMahan in conversations with Agent Williams. Mooneyham argued that McMahan’s statements violated his Sixth Amendment right to confrontation, referencing Bruton v. United States, which prohibits the introduction of non-testifying co-defendant statements that implicate the defendant. The district court allowed the admission of certain statements as co-conspirator statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence, provided the government proved the existence of the conspiracy. The court found the admission of the statements appropriate because they were made in furtherance of the conspiracy and directed towards Agent Williams, thereby reaffirming Mooneyham's reliability as a supplier. Admissibility under the Confrontation Clause, as established in Crawford v. Washington, is a constitutional issue governed by the Sixth Amendment, which guarantees the accused the right to confront witnesses. Crawford introduced a standard for assessing hearsay statements, stipulating that testimonial statements require confrontation for reliability. To admit testimonial hearsay in a criminal case, the government must prove the declarant's unavailability and that the defendant had a prior opportunity to cross-examine. The determination of whether McMahan's statement was "testimonial" involves evaluating if a reasonable person in the declarant's position would foresee their statement being used against an accused in a criminal context. McMahan's statements were deemed non-testimonial, as they were made in furtherance of a conspiracy, lacking the expectation of being used in a trial. The Supreme Court had previously classified co-conspirator statements as inherently non-testimonial. McMahan, unaware that he was speaking to a police officer, did not produce statements in a context that would classify them as testimonial. Following Crawford, non-testimonial statements can still be assessed under the Roberts standard, which allows their admission without cross-examination if they exhibit sufficient reliability or fit within a "firmly rooted" hearsay exception. Co-conspirator statements are considered inherently trustworthy and satisfy this requirement. Consequently, the district court did not err in admitting McMahan's statement under Rule 801(d)(2)(E), and the defendant could not demonstrate a violation of his confrontation rights regarding Agent Williams's testimony about that statement. Mooneyham contends that the district court erred by admitting character evidence that negatively impacted his reputation before the jury, citing Rule 404(a) of the Federal Rules of Evidence, which prohibits such evidence to establish guilt. Two specific aspects of Agent Williams's testimony are highlighted: McMahan's statement about a supplier's prior incarceration and Williams's assertion of his long-standing acquaintance with Mooneyham. Additionally, Agent Morris noted his familiarity with Mooneyham due to previous drug investigations conducted by the TBI. Although Mooneyham did not object at the time of these statements, he had previously filed a "continuing objection" regarding testimony about McMahan's supplier. The district court allowed the prosecution to introduce McMahan's statement, ruling that Mooneyham need not raise a contemporaneous objection for this particular evidence. However, the statements made by Agents Williams and Morris concerning their knowledge of Mooneyham were not covered by this objection and thus were evaluated under a plain error standard. This standard requires Mooneyham to demonstrate that the introduction of these statements constituted an error, that it was "plain," and that it affected his substantial rights. The court concluded that the admission of McMahan's statement was not an abuse of discretion, as it was relevant to the conspiracy's context. In contrast, the references to Mooneyham's prior investigations raised concerns about being gratuitous and solely intended to portray him as guilty. While Agent Morris's comments were viewed as potentially less gratuitous, they nonetheless indicated knowledge stemming from the TBI investigation. Mooneyham contends that the prejudicial impact of certain statements constitutes plain error, arguing that the evidence against him was not overwhelming. The government counters that any potential error from admitting these references did not affect his substantial rights, given the strong evidence of his guilt. The court agrees, concluding that the admission of the challenged testimony did not constitute reversible error. Mooneyham also challenges the admissibility of a search warrant for Walter Seay found in his dump truck prior to his arrest. The warrant, bearing Agent Terry Johnson's name, indicated Mooneyham's awareness that Johnson was an undercover agent in a cocaine transaction. The warrant was introduced to explain the abrupt cancellation of a transaction arranged by McMahan, despite Mooneyham's objection that it should be suppressed as the fruit of an illegal search. The district court upheld the search and seizure as incident to Mooneyham's arrest, rejecting his argument that the warrant was removed before his arrest, which occurred after cocaine was retrieved from the woods. The agents lacked an arrest warrant but had reasonable suspicion of criminal activity based on prior transactions linked to Mooneyham and information about an impending transaction. The court found the stop reasonable and noted the agent's concern for officer safety justified the truck's search. In conclusion, the district court's ruling that the Seay warrant was admissible is upheld, and the judgment of conviction is affirmed. Mooneyham and McMahan faced a multi-count indictment and were tried together. Mooneyham was acquitted on two counts, while a mistrial was declared on two additional counts against him and all counts against McMahan. Following this, the TBI initiated an unrelated case against Mooneyham, leading to trials for both cases within a week. In the second case, Mooneyham was convicted on three counts related to the distribution of cocaine and methamphetamine. He appealed, arguing a violation of his Sixth Amendment right to counsel of choice due to the denial of a motion for a continuance and substitution of counsel, improper admission of witness testimony without defense access to a sealed plea agreement, and the failure to declare a mistrial after the jury heard inadmissible hearsay. The appellate court found no reversible error and affirmed the convictions. The charges stemmed from Mooneyham's connection to drug deals involving Scott Walker, who, after his own conviction, cooperated with DEA agents. Walker, instructed by agents, contacted Mooneyham under the pretense of needing an air conditioner. Their recorded conversation included a vague request for drugs. During an arranged meeting, Walker, equipped with a recording device and marked money, signaled the completion of a drug deal after receiving cocaine from Mooneyham. In a subsequent transaction, Walker was again fitted with a wire and provided with $1400 in prerecorded buy money. Mooneyham mentioned difficulties in obtaining cocaine but ultimately supplied Walker with a small quantity of cocaine and methamphetamine, again refusing to accept payment. Further recordings captured their ongoing discussions about future drug purchases, with Mooneyham expressing concerns about the quality and availability of the drugs. Agent Williams secured a federal criminal complaint and arrest warrant for Mooneyham, charging him with two counts of distribution of cocaine and methamphetamine, violating 21 U.S.C. § 841(a)(1). At trial, both Agent Williams and Walker testified, with the jury hearing recorded conversations between Mooneyham and Walker. Mooneyham's defense argued that Walker had other sources for cocaine, returned funds, and that the conversations were innocuous, asserting Walker's testimony was self-serving to reduce his sentence. The jury ultimately convicted Mooneyham on both counts. Mooneyham sought a new trial, claiming his right to counsel of choice was violated when his appointed attorney, William Louis Ricker, filed motions to withdraw and for a continuance shortly before trial, citing Mooneyham's urging. The district court denied both motions after a hearing. The Sixth Amendment guarantees the right to counsel, but this right is not absolute for indigent defendants, who must show "good cause" for substitution. The court may only reverse such decisions if there is an abuse of discretion, which considers the timeliness of the motion, the adequacy of inquiry into the defendant's complaints, and the extent of communication breakdown between attorney and client. The district court did not abuse its discretion. During the hearing, Ricker testified that Mooneyham expressed reluctance to proceed to trial after his earlier conviction. Ricker felt prepared for trial and believed further continuance was unnecessary. Mooneyham expressed concerns about Ricker's previous advice regarding a defense witness and his ability to comprehend the evidence against him, claiming he needed more time to review materials provided by the government. However, the court found no basis for a continuance or substitution of counsel. Attorney Edward L. Kershaw represented Mooneyham after his guilty verdict, stating that Mooneyham signed a contract for representation on the same day a motion to continue was filed. Kershaw's associate, Mr. Leonard, noted that Mooneyham had not listened to all the cassette tapes related to his case, as Ricker, his prior attorney, only shared parts of them. Leonard sought more time for neuropsychological testing due to Mooneyham's prior automobile accident. Ricker countered that he had reviewed the tapes in full but only shared incriminating portions with Mooneyham. He claimed Mooneyham did not request access to the complete tapes until after the first trial and asserted that Mooneyham was aware of their content. Ricker denied any conflict of interest concerning a potential defense witness. Kershaw expressed discomfort about going to trial immediately but was prepared if necessary, stating he had not reviewed the audiotapes yet. At the hearing, no claims were made regarding inadequate legal representation. The district court denied the continuance request, citing Ricker's extensive preparation and performance in the first trial as commendable. The court concluded that Mooneyham's issue was primarily about access to the tapes, which did not indicate a total communication breakdown affecting his defense. The court referenced precedent indicating Mooneyham's motion was a manipulation tactic that could prejudice the prosecution and disrupt judicial scheduling, denying both the continuance and substitution of counsel. On appeal, Mooneyham reiterated his concerns, referencing case law on the right to adequate defense versus judicial scheduling. However, the appellate court found that the district court had properly considered all relevant factors before denying the motions and did not abuse its discretion. Mooneyham challenges the district court's decision to allow Scott Walker to testify despite the defendant not reviewing Walker's sealed plea agreement with the government. Walker testified he cooperated in Mooneyham's prosecution for a reduced sentence, ultimately serving 21 months instead of 30 months. Mooneyham's attorney was aware of this due to a Rule 35 motion reducing Walker's sentence, which provided sufficient information for cross-examination. Mooneyham argued the prosecution violated its disclosure duty under Brady v. Maryland by not providing the sealed plea agreement. However, the court found any potential error to be harmless, as Mooneyham had access to relevant impeachment information and was able to fully cross-examine Walker. The sealed plea agreement was ordered unsealed prior to trial, and Mooneyham did not specify how he was deprived of impeachment material. Thus, the lack of access to the plea agreement was deemed not to have affected the trial's outcome. Additionally, Mooneyham argued that the district court erred in allowing a tape-recording containing hearsay statements from Walker, which were previously excluded. During the trial, defense counsel objected to the hearsay statement after hearing it played. The prosecution acknowledged the mistake was inadvertent, and the district judge accepted this explanation. The district judge instructed the government to create a redacted version of a tape for potential jury deliberation and denied the defendant's mistrial motion. The judge noted that evidence from TBI Agent Jim Williams, including lab reports and cocaine from two separate sales (May 21 and May 24, 2002), supported the case against the defendant by showing the amount of drugs involved. The judge determined that the challenged portion of the tape was merely cumulative and that any error in allowing the jury to hear it was harmless. Consequently, the court affirmed the defendant's conviction. In terms of sentencing, the district court consolidated two cases for Mooneyham, resulting in a base offense level of 26 based on cocaine quantities. His offense level was increased due to obstruction of justice related to his status as a fugitive, leading to a total offense level of 28. With a criminal history category of IV, the guideline range for imprisonment was set at 110 to 137 months. However, a statutory minimum of ten years applied due to a prior felony drug conviction, adjusting the guideline range to 120 to 137 months. Mooneyham did not object to the presentence report and received a sentence of 137 months. The court reviewed the sentence for plain error as there was no contemporaneous objection, acknowledging that a mandatory guidelines sentence could constitute plain error affecting substantial rights, particularly if the court might have imposed a lower sentence had it known the guidelines were advisory. A presumption of prejudice exists in cases where a defendant was sentenced under a mandatory guidelines regime, which can only be rebutted by clear evidence that the district court would not have imposed a lower sentence under an advisory guidelines framework. The government argues this is such a rare case, citing the district judge's comments during sentencing that indicated a lack of confidence in the defendant's sincerity and a need to impose a sentence at the top of the range to promote respect for the justice system. However, despite the government's persuasive argument, the record does not sufficiently overcome the presumption that the defendant's substantial rights were affected by the mandatory sentencing scheme. The district court properly applied a mandatory minimum sentence of 120 months due to the defendant's prior felony drug conviction, and the requirements established by Apprendi v. New Jersey do not necessitate independent evidence for such convictions. Additionally, the defendant's challenge regarding the enhancement for obstruction of justice does not constitute plain error, as he did not object to the presentence report's facts, which included evidence of his absconding. Consequently, the judgments of conviction by the district court are affirmed, but the cases are remanded for resentencing.