United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 19, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20888
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMON CRAIG HICKERSON,
Defendant-Appellant.
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Appeal from the United States District Court for
the Southern District of Texas
________________________________________________
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Damon Craig Hickerson, the defendant, was convicted
of two counts of being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
based on two separate incidents. He raises three errors
on appeal, arguing that: 1) the district court abused its
discretion by refusing to grant him a continuance to
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locate a witness who failed to appear; 2) the district
court abused its discretion by refusing to sever the two
counts of being a felon in possession of a firearm
charged in his indictment; and 3) his sentence was
unconstitutional because a jury did not find the
predicate convictions beyond a reasonable doubt. Because
we conclude that the district court did not abuse its
discretion in denying the motions for a continuance and
to sever the two counts, and because Hickerson concedes
that his third issue is foreclosed, we AFFIRM the
judgment of the district court.
I. Background
Damon Hickerson was convicted of two counts of being
a felon in possession of a firearm. Hickerson was
initially charged with a single count, stemming from an
incident on March 13, 2004. Hickerson was riding in the
front passenger seat of a rented Buick, and was the named
renter on the contract. Police observed the Buick make
two turns without signaling, and pulled it over. They saw
a passenger in the back seat, Aaron Harris, make
suspicious movements, and asked him to step out of the
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vehicle. On searching him, they discovered marijuana in
his possession. They then removed the other passengers
from the car, finding a gun in the back seat. When an
officer patted Hickerson down, he found a .44 caliber
Bulldog revolver in Hickerson’s back right pants pocket.
The officers placed Hickerson under arrest, and he was
charged with possession of the Bulldog revolver.
On September 17, 2004, while that charge was pending,
Hickerson was involved in a separate incident. Six police
officers responded to a citizen complaint about a group
of men in front of a barber shop. The officers smelled
marijuana coming from the barber shop as they approached
the men. While the officers were approaching, Hickerson
left the group of men and began to walk away. An officer
shouted at him twice to stop, and Hickerson began to run
away. Two officers chased Hickerson, subduing him and
handcuffing him. During the struggle, one officer noticed
the outline of a handgun in Hickerson’s pants pocket. The
officer found a loaded National Arms .22 caliber
derringer in Hickerson’s right front pants pocket. The
government filed a superseding indictment, charging
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Hickerson with an additional count of being a felon in
possession of a firearm based on the derringer and
seeking enhancement as a career criminal based on
Hickerson’s prior convictions.
On June 20, 2005, at trial proceedings involving both
counts, the district court asked two of Hickerson’s
witnesses, Aaron Harris and Cassie Arceneaux, to approach
the bench. The court swore them in, and instructed Mr.
Harris to return the following day at 9:00 a.m. and Ms.
Arceneaux to return “at noon here today.” Ms. Arceneaux
indicated that she understood, promising to return to
court by 11:30 a.m. that day to testify at a suppression
hearing. Ms. Arceneaux returned on time, and testified at
the hearing, outside the presence of the jury, that
Hickerson was not running away from officers when they
arrested him for the September 17th incident at the
barber shop. After both sides had questioned her, the
court dismissed Ms. Arceneaux, saying, “Okay. You’re
excused. Thank you.” She was not instructed to return.
On June 21, 2005, after the government rested its
case, the defense presented two witnesses relating to the
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March 13th incident. After their testimony, defense
counsel advised the court that his next witness, Cassie
Arceneaux, was not in court. Defense counsel incorrectly
told the court that it had ordered her to return at 9:00
a.m. on June 21st. Defense counsel also stated that
another of Hickerson’s attorneys, Mr. Dion Craig, had
spoken with Ms. Arceneaux the night before and had
confirmed that she could be in court at 10:00 to 10:30
a.m. The district court asked Mr. Craig if he had heard
from Ms. Arceneaux. He stated that his most recent
conversation with her had been the night before, and that
he had called her eight or nine times that morning but
had not been able to reach her. The district court
dismissed the jury for an early lunch to allow the
defense to attempt to find the witness. The court then
told defense counsel that if they could not locate Ms.
Arceneaux by the time the jury had returned, she would
have missed her chance to testify.
After an hour-long recess, the defense counsel told
the court that Ms. Arceneaux had not been located and
moved for a continuance to attempt to find her. A special
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agent interjected that he believed he had seen Ms.
Arceneaux in the lobby of the courthouse. The court then
allowed another half-hour recess for defense counsel to
attempt to find her. After the recess, defense counsel
told the court that she still could not be found and
renewed the motion for a continuance. The court denied
the motion, noting that the defense had been given
sufficient time to find her. The court also noted that
Ms. Arceneaux had “intentionally made herself absent,”
basing this in part on the erroneous belief that she had
been ordered to appear that morning.
At this time, defense counsel moved to sever the two
counts against Hickerson, arguing that Ms. Arceneaux
would have testified that she had slipped the derringer
found by police in his pocket, while he might have
believed that it was actually a replica cigarette lighter
owned by her and which the defense would have offered
into evidence. Defense counsel argued that absent this
testimony, the second count was essentially unopposed,
which would prejudice the jury on the first count. The
court denied the motion to sever.
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The district court instructed the jury to consider
each count separately:
A separate crime is charged in each count of the
indictment. Each count, and the evidence
pertaining to it, should be considered
separately. The fact that you may find the
defendant guilty or not guilty as to one of the
crimes charged should not control your verdict
as to any other.
The jury found Hickerson guilty on both counts, and
Hickerson has appealed.
II. Analysis
Hickerson argues three issues on appeal: first, he
contends that the district court abused its discretion by
denying his motion for a continuance to locate Ms.
Arceneaux. Second, he argues that the district court
abused its discretion by denying his motion to sever the
two counts of being a felon in possession of a firearm.
Third, he argues that his sentencing enhancement under 18
U.S.C. § 924(e) is unconstitutional because a jury did
not find the predicate convictions beyond a reasonable
doubt, and he did not admit to them.
A. Denial of Motion for Continuance
Hickerson first argues that the district court erred
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by denying his motion for a continuance for further time
to locate Ms. Arceneaux. We review the denial of a
continuance for abuse of discretion. United States v.
Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999). When a
continuance is requested based on the unavailability of
a witness, the party seeking a continuance must
demonstrate: (1) that due diligence was exercised to
obtain the attendance of the witness; (2) that the
witness would tender substantial favorable evidence; (3)
that the witness will be available and willing to
testify; and (4) that denial of the continuance would
materially prejudice the movant. Id. The required
prejudice must be severe or serious. Id.
Hickerson argues that he adequately demonstrated all
four factors below. As to the first factor, due
diligence, he points out that defense counsel produced
Ms. Arceneaux to testify the previous day, had spoken to
her by phone the previous evening, and had phoned her
numerous times on the morning she was to testify at
trial.
The government responds that defense counsel failed
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to exercise due diligence because counsel did not
subpoena Ms. Arceneaux to appear. We have previously
considered the failure to issue a subpoena to a witness
to be decisive as to the due diligence factor in some
cases. See United States v. Shaw, 920 F.2d 1225, 1230
(5th Cir. 1991) (holding that “failure to subpoena the
[witness] when he was available constitutes a lack of due
diligence”); United States v. Rodriguez, 15 F.3d 408, 411
(5th Cir. 1994) (finding a lack of due diligence because
defendant “had nearly four weeks in which to secure [the
witness]'s attendance, yet he waited until two weeks
before trial to request the subpoena”); United States v.
Smith, 591 F.2d 1105, 1109-10 (5th Cir. 1979)
(considering as to due diligence a defendant’s failure to
subpoena a police detective then in intensive care in a
hospital); United States v. Kelly, 569 F.2d 928, 937 (5th
Cir. 1978) (upholding denial of a continuance when the
defendant attempted to issue a subpoena but missed an
“excellent opportunity” to serve the witness when he was
in the courthouse on a trial of his own). Had defense
counsel obtained a subpoena, the district court would
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have been empowered to compel Ms. Arceneaux’s attendance
under penalty of contempt of court. FED. R. CIV. P. 45(e).
Unlike our previous cases dealing with a failure to
subpoena a witness, Hickerson’s defense counsel made an
additional effort to secure Ms. Arceneaux’s appearance by
calling her the night before to verify that she would
appear the following day. However, while defense counsel
incorrectly informed the court otherwise, it did not
obtain an order for Ms. Arceneaux to appear, and she was
in fact excused after testifying briefly on June 20th.
Counsel’s only effort to ensure her appearance was to
call her the night before, verifying the time she was to
appear. In light of this and the failure to obtain a
subpoena, Hickerson did not show due diligence by his
defense counsel in ensuring that Ms. Arceneaux would
appear. Because Olaniye-Oke states a test of conjunctive
essential elements, and Hickerson failed at step one, we
need not address the other factors.
B. Denial of Motion to Sever
Hickerson additionally argues that the district court
erred by denying his motion to sever the two counts of
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the indictment, made after Ms. Arceneaux failed to
appear. Hickerson argues that in the absence of her
testimony, he effectively had no defense as to the second
count. As to the first count, Hickerson’s defense
consisted of a claim that police had taken the gun from
the glove compartment of the car and planted it on his
person. He offered testimony from Tangila Randolph, the
owner of the gun, who testified that she had placed it in
the glove compartment. He also offered testimony from
Aaron Harris, another man who had been in Hickerson’s
car, and who was in custody in the patrol car when police
arrested Hickerson. He stated that he saw officers pull
a wallet from Hickerson’s pocket, and that they pulled
the gun from Hickerson’s car. Hickerson argues that
absent a defense as to the second count, his defense as
to the first count was prejudiced because the second
count was not rebutted.
We review the denial of a motion for severance for
abuse of discretion. United States v. McCarter, 316 F.3d
536, 538 (5th Cir. 2002). We do not reverse unless
“‘there is clear prejudice to the defendant.’” Id.
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(quoting United States v. Holloway, 1 F.3d 307, 310 (5th
Cir. 1993).
The district court issued an instruction to the jury
as follows:
A separate crime is charged in each count of the
indictment. Each count, and the evidence
pertaining to it, should be considered
separately. The fact that you may find the
defendant guilty or not guilty as to one of the
crimes charged should not control your verdict
as to any other.
Prejudice from a failure to sever counts can be cured by
proper jury instructions, and juries are generally
presumed to follow their instructions. United States v.
Bullock, 71 F.3d 171, 175 (5th Cir. 1995). Here, the
instruction given to the jury plainly forbade it from
considering the evidence pertaining to one count as to
the other, and Hickerson has pointed to no indications
that the instruction was not followed. Hickerson has not
shown clear prejudice, and the district court did not
abuse its discretion by denying the motion to sever.
C. Sentencing Enhancement under 18 U.S.C. § 924(e)
Hickerson argues that his sentencing enhancement
under 18 U.S.C. § 924(e) is unconstitutional because a
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jury did not find the predicate convictions beyond a
reasonable doubt, and he did not admit to them. He argues
that Almendarez-Torres v. United States, 523 U.S. 224
(1998), was wrongly decided in light of later Supreme
Court cases such as Apprendi v. New Jersey, 530 U.S. 466
(2000). He concedes that prior Fifth Circuit precedent
forecloses this argument, and raises it solely to
preserve it for review. See United States v. Brown, 437
F.3d 450, 451 n.1 (5th Cir.), cert. denied, 126 S. Ct.
2310 (2006).
III. Conclusion
Because we conclude that the district court did not
abuse its discretion in denying the motions for a
continuance and the motion to sever the two counts of the
indictment, and because Hickerson concedes that the third
issue is foreclosed, we AFFIRM the judgment of the
district court.
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