USA v. Frederick Gross

Filing

OPINION filed: AFFIRMED. Decision not for publication pursuant to local rule 206. R. Guy Cole , Jr., Circuit Judge, AUTHORING; John M. Rogers, Circuit Judge and Edmund A. Sargus , Jr., U.S. District Judge for the Southern District of Ohio.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0517n.06
FILED

No. 10-5027

Jul 25, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK DEWAYNE GROSS,
Defendant-Appellant.

BEFORE:

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
OPINION

COLE and ROGERS, Circuit Judges; and SARGUS, District Judge.*

COLE, Circuit Judge. A jury convicted Defendant-Appellant Frederick Gross of one count
of being an unlawful drug user in possession of a firearm and one count of being a felon in
possession of a firearm. Gross appeals his conviction, arguing that the district court improperly
dismissed a prior criminal complaint without prejudice, the prosecutor improperly vouched for the
credibility of a trial witness, and insufficient evidence supports the jury verdict. We AFFIRM.
I. BACKGROUND
On April 8, 2008, Detective James Vivrette and Officer John Donegan of the Metro Nashville
Police Department responded to a call about an assault with a weapon in the University Court area
involving a black male wearing a brown jacket, khaki pants, and a white t-shirt. While the officers

*

The Honorable Edmund A. Sargus, Jr., United States District Court for the Southern District
of Ohio, sitting by designation.

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were patrolling in their vehicles, Vivrette saw a man fitting the suspect’s description in his rearview
mirror, and noticed that the man’s jacket was leaning heavily to one side as if there were something
heavy in his pocket. The man was Frederick Gross. Vivrette approached Gross and asked to speak
with him, but Gross ran away, cutting through a fence between two apartment buildings. While
chasing after Gross, Vivrette ran into Dontae Davis, who told Vivrette that a man had pointed a gun
at Davis and run through Davis’s girlfriend’s apartment, 904A. The officers eventually caught up
with Gross, who admitted to running through apartment 904A and leaving his brown jacket inside.
The officers recovered the jacket from a couch in the apartment, along with a gun that was lying on
the floor three to four feet away. Inside the jacket’s pocket was a crack pipe, a bag of fake crack, and
an empty cocoa butter tube.
When questioned, Gross admitted that the jacket and the contents of its pockets belonged to
him, but denied that the gun was his. He also told Officer Vivrette that he had been “getting high”
that morning and that he had had a cocaine problem for a “long time.” (Trial Tr. vol. III, Dist. Ct.
Docket No. 71, at 98-99 (internal quotation marks omitted).) Gross had a prior felony conviction.
On November 5, 2008, the government filed a criminal complaint against Gross for being
a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. On March 4, 2009,
Gross filed a motion to dismiss the complaint with prejudice on Speedy Trial Act (“Act”) grounds,
because he had yet to be indicted and the Act’s thirty-day deadline had long passed. The government
conceded a violation of the Act, but argued that the complaint should be dismissed without
prejudice. On March 16, 2009, the magistrate judge dismissed the complaint without prejudice.

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On March 9, 2009, the government filed a second criminal complaint against Gross, this time
alleging that he had possessed a firearm as an unlawful user of a controlled substance, in violation
of 18 U.S.C. §§ 922(g)(3) and 924. The grand jury returned a two-count indictment on March 25,
2009, charging Gross with being a felon in possession of a firearm and an unlawful user of a
controlled substance in possession of a firearm. Gross did not challenge the indictment.
Gross went to trial, and the jury convicted him on both counts. The district court sentenced
Gross to concurrent terms of fifteen years’ imprisonment on each count, the mandatory minimum.
Gross timely appealed.
II. ANALYSIS
A. Dismissal of the Original Indictment
1. Waiver
Gross’s first argument is that the district court should have dismissed the original complaint
with prejudice. Before proceeding to the merits, we must address the government’s contention that
Gross has waived this issue by not challenging the subsequent indictment, for which he was tried and
convicted. The government’s argument is meritless.
The government argues that a defendant waives his right to challenge the dismissal without
prejudice of a complaint if that defendant does not also challenge the subsequent indictment on
Speedy Trial Act grounds. To support its contention, the government relies on 18 U.S.C.
§ 3162(a)(2), which states that “[f]ailure of the defendant to move for dismissal [of the indictment]
prior to trial . . . shall constitute a waiver of the right to dismissal under this section.” The
government then combines this provision with 18 U.S.C. § 3161(d), which states that, when a
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complaint is dismissed for a violation of the Act, “the provisions of subsections (b) and (c) of this
section shall be applicable with respect to [any] subsequent indictment” arising out of the same
factual scenario. 18 U.S.C. § 3161(b) and (c), respectively, simply state the time limits for bringing
an indictment and bringing a case to trial in compliance with the Act.
The cited provisions amount to nothing more than (1) a defendant wishing to assert his rights
under the Act must do so before trial; and (2) the Act time limits restart with the filing of a
subsequent indictment. Thus, if there had been a new Act violation in connection with the
subsequent indictment, Gross would have been required to move for dismissal on the subsequent
indictment before trial. This exact scenario occurred in United States v. Moss, 217 F.3d 426 (6th Cir.
2000), where the first indictment was dismissed without prejudice on Speedy Trial Act grounds, and
Moss later moved for dismissal of the subsequent indictment for a new and independent Act
violation. Id. at 429. Here, however, Gross’s motion to dismiss the original complaint was timely
and there was no new and independent Act violation in connection with the subsequent indictment,
so the statutory provisions cited by the government do not apply.
The lack of merit in the government’s position is further illustrated by the fact that we have
repeatedly reviewed the dismissal without prejudice of an earlier indictment for Speedy Trial Act
violations in situations indistinguishable from this one. See United States v. Robinson, 389 F.3d 582
(6th Cir. 2004) (defendant did not move to dismiss the subsequent indictment); United States v.
Howard, 218 F.3d 556 (6th Cir. 2000) (same); United States v. Pierce, 17 F.3d 146 (6th Cir. 1994)
(same); United States v. Beigali, 405 F. App’x 7 (6th Cir. 2010) (unpublished disposition) (same).
In fact, because the dismissal of an indictment without prejudice is an unappealable interlocutory
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order, United States v. Bratcher, 833 F.2d 69, 73 (6th Cir. 1987), appeal of the ultimate conviction
on a subsequent indictment is the only method by which a defendant may seek this Court’s review
of such an order. See Moss, 217 F.3d at 430 n.1. Thus, Gross did not waive his challenge to the
district court’s dismissal of the original indictment without prejudice.
2. Dismissal without Prejudice
Turning to the merits, it is undisputed that a violation of the Act occurred in connection with
the original complaint. See 18 U.S.C. §§ 3161(b), 3162(a)(1). The only question before the district
court was whether the required dismissal should be with or without prejudice. The Act allows for
both types of dismissal and does not establish a default presumption. Robinson, 389 F.3d at 586
(citing 18 U.S.C. § 3162(a)(2); United States v. Taylor, 487 U.S. 326, 334 (1988)). Instead, the Act
prescribes three factors that the district court must take into account in making such a determination:
“the seriousness of the offense; the facts and circumstances of the case which led to the dismissal;
and the impact of a reprosecution on the administration of this chapter and on the administration of
justice.” 18 U.S.C. § 3162(a)(1). Where, as here, the district court sets forth written findings with
regard to these factors, we apply a “modified abuse of discretion standard,” reversing the district
court’s findings only if they are clearly erroneous. Moss, 217 F.3d at 430-31. As the Supreme Court
has explained our task:
[a] judgment that must be arrived at by considering and applying statutory
criteria . . . constitutes the application of law to fact and requires the reviewing court
to undertake more substantive scrutiny to ensure that the judgment is supported in
terms of the factors identified in the statute. Nevertheless, when the statutory factors
are properly considered, and supporting factual findings are not clearly in error, the
district court’s judgment of how opposing considerations balance should not lightly
be disturbed.
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Taylor, 487 U.S. at 337.
Here, the district court properly considered the statutory factors and explained its reasoning
for dismissing the complaint without prejudice. The court first considered the seriousness of the
offense, noting that Gross faced a possession charge, had an extensive criminal history that included
aggravated assault and burglary convictions, and qualified for a fifteen-year mandatory minimum
as an armed career criminal. Based on these facts, the district court found that the offense was
serious. Gross concedes this point.
Next, the district court considered the circumstances surrounding the delay, finding that the
government’s failure to obtain a timely indictment was not “excessively protracted” and was the
result of a mistake or oversight rather than bad faith or an attempt to gain a tactical advantage. Gross
argues that this factor weighs in favor of dismissal with prejudice because the government was the
sole cause of the delay and did not explain why the oversight occurred. However, the government
explained in its response to Gross’s motion to dismiss that a new prosecutor had taken over the case
and mistakenly believed that Gross had already been indicted. Thus, the district court’s finding that
there was no bad faith was not clearly erroneous, and the court did not abuse its discretion in
determining that this factor weighed in favor of dismissal without prejudice. See Pierce, 17 F.3d at
149 (“Where there is no affirmative misconduct by either party, the court’s conclusion that this
second factor authorizes dismissal with or without prejudice is a matter within its discretion.”).
Finally, the district court considered the impact of reprosecution on the administration of
justice. “‘The main considerations that the courts have taken into account when examining this
factor are whether the defendant suffered actual prejudice as a result of the delay and whether the
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government engaged in prosecutorial misconduct that must be deterred to ensure compliance with
the Act.’” Robinson, 389 F.3d at 589 (quoting Howard, 218 F.3d at 562). The court noted that
Gross did not “identify any particular prejudice as a result of th[e] delay,” and that the government
had provided Gross with discovery materials in January 2009, despite the lack of indictment. The
court also reiterated that the record did not suggest any intentional prosecutorial misconduct or any
attempt by the government to gain a tactical advantage by the delay. Gross argues that he was
prejudiced because he was imprisoned in particularly harsh conditions during the delay, which made
it difficult to prepare for trial. But Gross did not make this argument in his motion to dismiss and
only mentioned the prison’s conditions in passing before the district court dismissed the complaint.
The district court did not abuse its discretion in failing to take into account information that had not
yet squarely been brought to its attention.
Because the court carefully analyzed the statutory factors and its findings were not clearly
erroneous, the district court did not abuse its discretion in dismissing the initial complaint without
prejudice. As a result, we need not reach Gross’s argument, raised for the first time in his reply brief,
that the government’s subsequent indictment constituted improper “gilding.” (See Reply Br. 9-13.)
B. Prosecutorial Misconduct
Gross’s second claim is that his conviction should be reversed because the prosecutor
improperly vouched for the credibility of government-witness Dontae Davis during closing
argument. Gross concedes that, because his counsel failed to object during trial, we review this
claim for plain error. See United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008). To succeed
under the plain error standard, Gross must prove that (1) an error occurred; (2) the error was obvious
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or clear; (3) the error affected his substantial rights; and (4) the error “seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” Id. at 376-77 (internal quotation mark
omitted). In reviewing prosecutorial-misconduct claims, we must first determine whether the
prosecutor’s statements were improper. United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999).
If so, “we then look to see if they were flagrant and warrant reversal.” Id.
Gross finds fault with two of the government’s comments during closing argument. First,
after summing up the evidence, the prosecutor stated, “Common sense. Dontae Davis was a credible
witness.” (Trial Tr. vol. IV, Dist. Ct. Docket No. 72, at 227.) On rebuttal, a different prosecutor
stated, “So think about [Davis’s] motivations, and I would suggest that his only motivation that he
was—had no motivation to lie because he didn’t have conviction.” (Id. at 246.) Assuming the
statements were improper, however, neither rises to the level of flagrancy, and therefore Gross is not
entitled to a new trial.
“Improper vouching occurs when a prosecutor supports the credibility of a witness by
indicating a personal belief in the witness’s credibility thereby placing the prestige of the office of
the United States Attorney behind that witness.” Id. at 550. We review such claims from the jury’s
perspective, finding misconduct “when a jury could reasonably believe that the prosecutor
was . . . expressing a personal opinion as to the witness’s credibility.” Id. at 551. However, “the
government may attempt to explain why, based on the facts, [a] witness’s testimony is honest after
the same has been attacked by the defense.” Henry, 545 F.3d at 379.
The prosecutor’s statement that “Dontae Davis was a credible witness” was arguably
improper under United States v. Henry, 545 F.3d 367. In Henry, we held that the prosecutor’s
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statement that a witness gave “highly credible” testimony was improper because it was a “blunt
comment[] of personal belief,” even though the comment was made in the course of discussing the
evidence. Id. at 380 (internal quotation marks omitted) (citing Francis, 170 F.3d at 550; United
States v. Bess, 593 F.3d 749, 756 (6th Cir. 1979)). Here, the prosecutor explicitly opined on the
credibility of the witness. Cf. Bess, 593 F.2d at 756 (citing United States v. Daniel, 422 F.2d 816
(6th Cir. 1970), for the proposition that “personal belief arguments [are] improper, even when it [i]s
clear that they were based solely on the testimony advanced at trial”).
The other challenged statement, “I would suggest that his only motivation that he was—had
no motivation to lie because he didn’t have conviction,” was likewise questionable. In United States
v. Krebs, 788 F.2d 1166 (6th Cir. 1986), the prosecutor stated during closing argument, “But I want
to suggest to you that in this trial testimony [the witness] was telling the truth . . . . Basically, she had
no reason to lie,” and “she is basically telling the truth in this case because she had no reason to lie.”
Id. at 1176 (internal quotation marks omitted). We held that, “[a]lthough the prosecutor’s statements
‘I want to suggest . . . .’ arguably may not express a personal opinion, the effect of the two statements
when considered together c[ould] be ‘reasonably construed to be based on personal belief.’” Id. at
1176-77 (citation omitted) (quoting Bess, 593 F.2d at 756). In another case, we found it
“inexcusable” for the prosecutor to state, “I submit to you that Robin and Richie Patrick are credible
witnesses.” United States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994). While it is unlikely that
the prosecutor in the instant case meant to express a personal opinion, a reasonable jury could
interpret “I would suggest” as a statement of personal opinion or belief. For that reason, the
prosecutor’s second statement was also arguably improper.
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However, a prosecutor’s improper statements only warrant reversal if they are flagrant.
Henry, 545 F.3d at 380. We have found four factors relevant to a statement’s flagrancy: “(1) whether
the prosecutor’s remarks or conduct tended to mislead the jury or prejudice the defendant; (2)
whether the remarks were isolated or extensive; (3) whether the remarks were accidentally or
deliberately made; and (4) the overall strength of the evidence against the accused.” Id. at 376.
Here, the prosecutor’s remarks, while clearly improper, were isolated, and it is unlikely that the
prosecutor engaged in purposeful misconduct; “I would suggest” is a turn of phrase commonly
employed in legal argument, and its use here is more reasonably viewed as a slip of the tongue than
a deliberate attempt to sway the jury with personal opinion. Cf. Joseph v. Coyle, 469 F.3d 441, 474
(6th Cir. 2006) (holding that prosecutor’s frequent use of “I believe” and “I think” was improper, but
did not rise to a due process violation because, among other reasons, “the phrases appeared to be the
result of a nervous habit” (internal quotation marks omitted)). The direct comments on Davis’s
credibility are more problematic; the line between proper and improper discussion of witness
credibility is fine at best. As such, it may be best for prosecutors to refrain from commenting on the
issue altogether. Cf. Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005) (“It is patently improper
for a prosecutor . . . to comment on the credibility of a witness . . . .”). Those who do choose to make
such remarks must walk the line. In this case, the prosecutor the prosecutory does not appear to have
made a deliberate misstep. Finally, as discussed below, the case against Gross was strong and it is
therefore unlikely that the prosecutor’s misstatements had much effect. Based on the considerations
above, the prosecutor’s comments were not flagrant and, thus, did not rise to the level of plain error.

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C. Sufficiency of the Evidence
Gross’s final claim is that the government introduced insufficient evidence at trial to support
his conviction. He raised this objection to the district court in a motion for acquittal at the close of
the government’s case-in-chief, which the district court denied. (See Trial Tr. vol. III, Dist. Ct.
Docket No. 71, at 203-05.) The government contends that, because Gross failed to renew his motion
for acquittal at the close of all the evidence, he is subject to a strict “manifest miscarriage of justice”
standard of review, relying on United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998). However,
the rule in Price applies by its own terms only “when the defendant moves for judgment of acquittal
at the close of the government’s case-in-chief, and defense evidence is thereafter presented but the
defendant fails to renew the motion at the close of all the evidence.” Id. (emphasis added). Here,
the defense presented no evidence, and the government gave no rebuttal; the close of the
government’s case-in-chief was the de facto close of all the evidence, and there was no need for
Gross to renew his motion.
As a result, we review the denial of Gross’s motion for acquittal de novo, determining
“‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United
States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). “‘Circumstantial evidence alone, if substantial and competent, may support a verdict
and need not remove every reasonable hypothesis except that of guilt.’” Id.
Gross argues that the government’s evidence was insufficient in two ways. First, he contends
that there is insufficient evidence to support the jury’s conclusion that Gross possessed a gun,
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because Davis was the only witness who testified that he saw a gun on Gross’s person, and Davis
is not a credible witness. However, “[w]e may not rule on a challenge to witness credibility in
reviewing the denial of a motion for acquittal because doing so ‘would invade the province of the
jury as the sole finder of fact in a jury trial.’” United States v. Graham, 622 F.3d 445, 449 (6th Cir.
2010). Attacks on witness credibility challenge the quality of the government’s evidence, not its
sufficiency. Id.
In any event, the government presented sufficient evidence from which a jury could conclude
that Gross possessed a firearm. At trial, Detective Vivrette testified to the following relevant facts:
On April 8, 2008, he received notification of a call about an assault in University Court involving
a black man with a weapon who was wearing a brown jacket, khaki pants, and a white t-shirt. (Trial
Tr. vol. III, Dist. Ct. Docket No. 71, at 73-74.) Vivrette spotted Gross in that area wearing clothes
that matched the description, and noticed that Gross’s jacket was sagging in a manner consistent with
a gun in the pocket; when Vivrette stopped to talk to Gross, Gross ran. (Id. at 79-80, 85.) In chasing
after Gross, Vivrette ran into Davis, who stated that someone had just pointed a gun at him and ran
through apartment 904A. (Id. at 81-82.) Vivrette eventually caught up with Gross, who was no
longer wearing the jacket. (Id. at 85.) Officers recovered a brown jacket and a gun from apartment
904A; the gun was on the floor approximately four feet from the jacket. Gross admitted to running
through the apartment and leaving the jacket there. (Id. at 88-90.) Davis testified at trial that the
black man in a brown coat who ran through apartment 904A had a gun in his hands. (Id. at 130-31.)
Based on this evidence, a rational juror could find beyond a reasonable doubt that Gross possessed
a firearm.
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Second, Gross argues that there was insufficient evidence to establish that he was an unlawful
user of controlled substances at the time of the firearm possession. This argument is equally
meritless. To establish that Gross was an unlawful user of a controlled substance, the government
had to prove that Gross “was engaged in a pattern of regular and repeated use of a controlled
substance during a period that reasonably covers the time a firearm was possessed.” United States
v. Burchard, 580 F.3d 341, 352 (6th Cir. 2009). At trial, Vivrette testified that there was a crack pipe
and some fake crack in the pocket of the brown jacket recovered from apartment 904A. (Trial Tr.
vol. III, Dist. Ct. Docket No. 71, at 94.) He also testified that Gross had admitted that the drug
paraphernalia belonged to him. (Id. at 100.) Vivrette further testified that Gross had admitted to
“getting high” when asked if he were presently under the influence of alcohol or drugs, and that he
had had a cocaine problem for “a long time.” (Id. at 98-99 (internal quotation marks omitted).)
From Gross’s own admissions, a reasonable juror could find beyond a reasonable doubt that Gross
was an unlawful user of cocaine.
Because the government presented sufficient evidence to support Gross’s conviction, the
district court did not err in denying Gross’s motion for acquittal.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.

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