               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0687n.06
                         Filed: November 12, 2008

                                          06-4106

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
WENDELL ROSS,                                 )   SOUTHERN DISTRICT OF OHIO
                                              )
       Defendant-Appellant.                   )



       Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN,* District Judge.


       The defendant, Wendell Ross, appeals his convictions on charges of possession

of a firearm by a convicted felon, possession with intent to distribute marijuana, and

carrying a firearm during and in relation to a drug-trafficking offense. Ross claims that his

federal trial and conviction on these charges violated the Double Jeopardy Clause because

he had already been convicted for the same offenses in municipal court. Ross also claims

that evidence seized from his car should have been suppressed because the search was

the result of racial-profiling and because the arresting officer’s testimony that he detected

the odor of marijuana coming from Ross’s car was not credible. He further contends that

the district court should have permitted his former attorney to explain why Ross plead guilty


       *
       The Hon. Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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United State v. Ross

to charges in municipal court. Finally, he claims that the district court committed reversible

error in refusing to allow a local police officer to testify about the circumstances

surrounding the arrest of Ross’s brother for possession of the same handgun involved in

the present case.      Although the court’s ruling in the last instance may have been

inappropriate, it could not have affected the jury’s verdict, given the other evidence of guilt,

and any error in connection with that ruling must be considered harmless. The other

issues raised on appeal are likewise without merit.


                     FACTUAL AND PROCEDURAL BACKGROUND


       At approximately 1:30 am on the night of the defendant’s arrest, Cincinnati police

officers Bryan Dettmer and Sandy Hanes were traveling southbound on Reading Road

when they passed Wendell Ross’s car, a Mercedes Benz, headed in the other direction.

Both officers heard loud noise, possibly music, coming from Ross’s car, a violation of

Cincinnati’s city code that prohibits any noise audible from a distance over 50 feet. Officer

Dettmer turned the patrol car around and stopped Ross, intending to cite him for violating

the noise ordinance. Dettmer said that when he approached the car, he detected the odor

of marijuana emanating from the Mercedes. Dettmer took Ross’s license and insurance

card back to the patrol car and told his partner that he smelled marijuana. When Dettmer

returned to the Mercedes, he told Ross that he smelled marijuana and asked if Ross had

anything in the car that he wanted to turn over voluntarily. Ross handed Officer Dettmer

a small plastic bag of marijuana that had been in a compartment on the driver’s door.


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Officer Dettmer then noticed a paper bag in the back seat of the car; when he asked Ross

about the paper bag, Ross handed it to him. Inside the paper bag were four separately

wrapped plastic bags of marijuana. Dettmer asked Ross to step out of the car, handcuffed

Ross, took him back to the patrol car, and frisked him. At the same time, Officer Hanes

searched Ross’s car and found two bags of marijuana in the glove compartment, along

with a revolver. Hanes also found a scale in the car and two small bags of marijuana in

Ross’s wallet. In total, the officers found 112.4 grams of marijuana. Some of the

conversations between Hanes and Dettmer and between Dettmer and Ross were captured

on the patrol car’s video-recording system, although the machine was turned off when

Ross was later put in the back of the police vehicle.


      Ross was arrested and charged with misdemeanor possession of marijuana and

illegal possession of a handgun. Ross pleaded guilty to “attempted improper transportation

of a firearm in a motor vehicle” and possession of marijuana in municipal court, receiving

a $50 fine and a 90-day sentence later commuted to a year of “community control” on the

improper-transportation conviction and a $100 fine on the drug-possession conviction.


      Three months later, a federal grand jury indicted Ross on charges of felon in

possession of a handgun, possession of marijuana with intent to distribute, and carrying

a firearm in relation to a drug-trafficking offense. The defendant moved to suppress the

results of the car search, along with statements he made to police at the time of arrest.

Following a suppression hearing, the district court held that statements made by Ross from


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United State v. Ross

the time he was handcuffed until he was read his Miranda rights were inadmissible.

However, the district court refused to suppress a statement by Ross, recorded by the

officers, confirming his admission that “everything in the car” belonged to him. The court

also ruled admissible all the physical evidence seized from the Mercedes, finding that the

search of the car was a valid extension of the traffic stop.


       At trial, Wendell Ross’s brother, Anthony Ross, testified that the gun and the

marijuana in the glove compartment belonged to him and that he had put them in the glove

compartment of his brother’s car without Wendell knowing about their presence. After

hearing this testimony, a Cincinnati police officer, Jennifer Ernst, secured a warrant for

Anthony’s arrest, charging possession of the handgun found in the glove box at the time

of Wendell’s arrest, based solely on Anthony’s sworn testimony in federal court. The next

day, before closing arguments, Ross moved to reopen the proof to call Officer Ernst as a

witness to rehabilitate Anthony Ross’s testimony, in an effort to show that Wendell Ross

had not intentionally possessed the gun in question. The court denied defense counsel’s

motion to reopen and also his motion in limine to prevent the government from attacking

Anthony’s credibility in closing argument.


       Ross was found guilty on all three counts and sentenced as a career criminal to 20

years’ imprisonment. He now appeals the various rulings of the district court outlined

above. We find no reversible error and affirm the judgment incorporating the jury’s verdict.




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United State v. Ross

                                      II. DISCUSSION


A. Double Jeopardy Ruling


        The Fifth Amendment provides that “[no person] shall . . . be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. CONST . AMEND . V. Under the dual

sovereignty doctrine, however, prosecution for the same conduct in both state and federal

court is not considered a violation of the Double Jeopardy Clause. See Heath v. Alabama,

474 U.S. 82, 88-89 (1985). Hence, Ross’s misdemeanor convictions in municipal court

were legally insufficient to bar his prosecution in federal court.


B. Suppression Hearing Determinations


       A district court’s ruling on a motion to suppress is reviewed for clear error as to the

court’s findings of fact and de novo as to its conclusions of law. See United States v.

Foster, 376 F.3d 577, 583 (6th Cir. 2004) (citing United States v. Hurst, 228 F.3d 751, 756

(6th Cir. 2000)). We “must accept the findings of fact upon which the district court relied in

dealing with suppression of evidence unless those findings are clearly erroneous.” United

States v. French, 974 F.2d 687, 691 (6th Cir.1992). Furthermore, when reviewing the denial

of a motion to suppress evidence, we consider the evidence in the light most favorable to

the government. See United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003).




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United State v. Ross

       The district court made a preliminary finding that the stop of the defendant’s vehicle

was based on probable cause, a question of law that we review de novo. See United States

v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993). That ruling was based on the court’s

determination that the Officers Dettmer and Hanes had stopped Ross on the basis of a

violation of the municipal noise ordination. We conclude that the evidence fully supports

the district court’s decision. See United States v. Burton, 334 F.3d 514, 516-17 (6th Cir.

2003) (officer has probable cause to conduct a traffic stop based on reason to believe that

a city ordinance has been violated). For the same reason, the evidence does not support

the defendant’s contention that the officers’ invocation of the excessive noise ordinance was

pretextual and that their real motivation involved impermissible racial-profiling, i.e., that Ross

was – in the words of the district judge – “a black man driving a nice car.” When an officer

has probable cause to conduct a traffic stop, he or she may do so regardless of a subjective

motivation for the stop. See id. at 516 (citing Whren v. United States, 517 U.S. 806 (1996)).

As the Supreme Court has noted:


       [T]he Constitution prohibits selective enforcement of the law based on
       considerations such as race. But the constitutional basis for objecting to
       intentionally discriminatory application of laws is the Equal Protection Clause,
       not the Fourth Amendment. Subjective intentions play no role in ordinary,
       probable-cause Fourth Amendment analysis.


Whren, 517 U.S. at 813 (emphasis added).


       The defendant contends in the alternative that even if the initial stop was justified,

its scope was constitutionally impermissible. But this challenge is premised largely on the

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United State v. Ross

argument that Officer Dettmer’s testimony that he detected the odor of raw marijuana

emanating from the defendant’s car was not credible, given the circumstances surrounding

the traffic stop of the defendant’s car and particularly in light of Officer Hanes’s testimony

that she could not smell marijuana from the other side of the vehicle. Of course, the district

judge heard the testimony of both officers, who were subjected to lengthy cross-examination

at the suppression hearing, and determined that Dettmer was fully credible.


       Based on our review of the record, we find no clear error in connection with the

court’s factual findings. Matters of credibility are largely within the purview of the fact-finder

– in this case, the district judge – and findings of credibility are entitled to deference on

appeal. See United States v. Johnson, 344 F.3d 562, 567 (6th Cir. 2003). The record in

this case includes the videotape, which shows that upon initial contact with Ross, Officer

Dettmer informed him that he had been stopped for a violation of the excessive noise

ordinance. When Dettmer returned to his patrol car with Ross’s license and registration,

he immediately told Hanes that he had smelled marijuana in Ross’s car and intended to

investigate further, with her assistance. His subsequent conversation with Ross confirmed

his suspicion that there was contraband in the car. We find no clear error in connection with

the district court’s determination that Dettmer had detected the odor of marijuana and was

justified in expanding the scope of the initial traffic stop. The defendant’s action in handing

over contraband and statements he made to the arresting officers established probable

cause to search the car, which in turn led to the discovery of the handgun in the glove box,

as well as additional marijuana.

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United State v. Ross

       Although some of the defendant’s initial statements were ruled inadmissible by the

district court, his post-Miranda admission that “everything in the car” was his was not

suppressed. That statement, and the circumstances surrounding it, were captured on

videotape. We find no error in the district court’s determination that this evidence was

admissible at trial.


C. Evidentiary Rulings at Trial


       At trial, Ross sought to have his former attorney, Edward Felson, testify about the

circumstances surrounding his client’s decision to plead guilty to the misdemeanor charges

in municipal court, in an effort to establish that Ross was motivated by considerations other

than actual guilt. However, the district court had reviewed the videotape of the municipal

court proceedings and made a finding that Ross’s guilty pleas were voluntarily and

knowingly entered and that he “was fully aware of the direct consequences of the plea[s].”

Exercising appropriate discretion, the district court therefore ruled that Felson’s proposed

testimony constituted collateral evidence challenging the municipal court convictions and

was inadmissible hearsay. As the district court noted, a defendant’s right to compulsory

process under the Sixth Amendment, while fundamental, is not absolute. United States v.

Hamilton, 128 F.3d 996, 1000 (6th Cir. 1997) (citing Washington v. Texas, 388 U.S. 14, 19

(1967)). Thus, it is well-established that “[t]he accused does not have an unfettered right

to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard




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rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). Thus, there was no error

in connection with this determination by the district court.


       More problematic is the district court’s denial of the defendant’s motion to reopen the

proof on the morning that the case was to be argued and submitted to the jury. Counsel

sought to bolster the testimony by the defendant’s brother, Anthony, that the gun and

marijuana found in the Mercedes glove compartment were actually his, not Wendell’s; that

Anthony had put them there the day before Wendell’s arrest; and that Wendell may not

have known that those items were in the car when he was stopped by Officers Dettmer and

Hanes. Defense counsel proposed to do so by calling as an additional defense witness a

Cincinnati police officer who, based on Anthony’s testimony on his brother’s behalf the

preceding afternoon, had secured a municipal court warrant for his arrest for illegal

possession of a weapon.


       Testifying for his brother at trial the day before, Anthony had presented what can only

be described as an improbable explanation for the presence of the handgun in the

Mercedes, saying that he had purchased it for $50 from “a dope addict” because he had

been robbed recently and felt that he needed protection on the street. Anthony claimed that

he had run into Wendell by chance a few hours before Wendell’s arrest later that same

night and that he rode a short distance in the Mercedes with his brother, then left the gun

in the car while he went into a nameless convenience store across the street from the bar

where Wendell had gone. Anthony said that did not take the gun into the store with him


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because there were “[a] lot of cameras in the store and around the store and [he] didn’t

want anything to happen, anything to fall out, anything, wrong ideas.” Anthony further

testified that when he came out of the store a few minutes later, he discovered that Wendell

had driven off without him. Anthony claimed that he had no way to contact Wendell to

retrieve his property, even though Wendell had several cell phones, because the minutes

on his own cell phone had expired. Asked why he had not reported the robbery that caused

him to purchase the weapon or explained to law enforcement authorities at the time

Wendell was charged that the gun was actually his, Anthony could say only that he had

given the information to Wendell’s first attorney, Edward Felson, but not to Cincinnati police.


       It is clear from the jury’s verdict that jurors did not credit Anthony Ross’s testimony,

but the defendant now blames that fact on the district court’s failure to reopen the proof to

allow introduction of the arrest warrant issued for Anthony and testimony from the local

police officer who swore out the complaint against him. The argument set out in the

defendant’s brief on appeal is that “the prosecutor had gone to great lengths to discredit the

testimony of Anthony Ross during its cross-examination of him” but, “illogically and

hypocritically, the government arrested him” and then “attempted to wiggle out of its ruse

by claiming that they had charged him [with possession occurring] on the day before the

defendant in the instant matter [was arrested].” (Emphasis added.) The difficulty with this

argument is, of course, that “the instant matter” was a federal charge prosecuted by the

federal government, and the warrant was issued at the behest of a non-federal officer in

Cincinnati’s municipal court. Obviously, then, “the government” that had challenged the

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credibility of Anthony Ross’s testimony was not the same “government” that arrested him,

as the district court noted in denying the motion to reopen.


       A court’s ruling on a motion to reopen the proof is reviewed for abuse of discretion.

See United States v. Blankenship, 775 F.2d 735, 740-41 (6th Cir. 1985). In order to secure

reopening, the moving party must show that the evidence to be presented is relevant,

admissible, adequate, and helpful to the jury in ascertaining the guilt or innocence of the

accused. See United States v. Reid, 357 F.3d 574, 581 n.7 (6th Cir. 2004). Finally, the

district court “must consider the timeliness of the motion, the character of the testimony, and

the effect of the granting of the motion.” Id.


       In this case, the defendant’s motion to reopen was certainly timely, and the evidence

itself was not inadmissible, nor was it totally irrelevant. On the other hand, it does not

appear that the evidence was truly “adequate” in terms of the purpose for which it was

offered, i.e., to convince the jury that Anthony’s version of how the gun came to be in the

Mercedes was believable, in order to establish that Wendell’s possession of the weapon

was necessarily unknowing and unintentional. Moreover, the additional evidence might

have been confusing, rather than helpful, to the jury in its deliberations, given the confused

argument presented by the defendant on appeal. The best that can be said is that if the

district court’s decision not to reopen the proof was an abuse of discretion and, therefore,

error, that error must be considered harmless in view of the other evidence in the record,

including Wendell’s statement to police at the time of his arrest that “everything in the car


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was his” and his subsequent guilty plea to the weapons charge in municipal court. We

decline to find that the ruling on the motion to reopen entitles the defendant to a new trial.


                                    III. CONCLUSION


       For the reasons set out above, we find no reversible error and AFFIRM the judgment

of the district court.




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       DUGGAN, District Judge, concurring. I agree with the majority that the decision of

the district court should be affirmed. I write separately, however, because I disagree with

the majority’s conclusion that the proposed testimony of the Cincinnati police officer was

“not inadmissible.” (Op. at 11.) As the majority acknowledges, the officer decided to secure

a warrant for the arrest of defendant’s brother, Anthony, for the illegal possession of a

weapon, “based on Anthony’s testimony on his brother’s behalf the preceding afternoon.”

(Op. at 9.) As the majority further acknowledges, defendant offered the police officer’s

testimony to bolster the credibility of the brother’s testimony.      (Id.) The jury heard the

testimony of defendant’s brother, however, at the same time the Cincinnati police officer

heard the testimony. The fact that the police officer believed the brother should not

influence the trier of fact with respect to the credibility of the brother’s testimony. Therefore,

in my opinion, the police officer’s testimony was not admissible.




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