TENTH CIRCUIT DECISIONS
APRIL 2004
Motion to Suppress - Review Standard
Traffic Stop - Questioning, Container Within Vehicle, Search at Police Station Within Automobile Exception
United States v. Oliver, 02-4187 (April 6, 2004)
The government appeals the district court’s grant of a motion to suppress evidence seized during a traffic stop. The circuit reversed.
HELD: (1) In reviewing a district court’s ruling on a motion to suppress evidence, the court views the evidence in the light most favorable to the prevailing party and accepts the district court’s findings of fact unless clearly erroneous.
(2) A traffic stop is a seizure. Questioning that prolongs a detention must be supported by reasonable suspicion. Fourth Amendment reasonableness must be judged by examining both the length of the detention and the manner in which it is carried out. The circuit considers whether the circumstances made it reasonable for the officer to ask questions, even when questioning does not prolong the detention. A question may be reasonable, despite the absence of reasonable suspicion. Protection against rude, officious or intrusive police questioning is not a core concern of the Fourth Amendment. A person questioned by an officer is free to refuse to answer. The officer’s questions regarding the contents of the package were reasonable, prompted by the defendant’s suspicious behavior.
(3) The district court alternatively ruled that the officer violated the Fourth Amendment when he opened the package at the police station later that day without a search warrant. Opening the package was a search for which a warrant ordinarily would be required. But the automobile exception applies. Police officers, who have probable cause to believe there is contraband inside an automobile that has been stopped, may search it without obtaining a warrant. The justification to conduct such a warrantless search does not vanish once the car has been immobilized. There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. A container in a vehicle may be searched without a warrant within a reasonable time after its removal from the vehicle. There was probable cause to believe the package in the vehicle contained contraband. Oliver’s bizarre conduct, culminating in his flight from the scene, after being asked about the package, constituted probable cause.
Mistrial - Discretion, Bad Faith of Prosecutor, Limiting Instruction
United States v. Meridyth, 03-2079 (April 13, 2004)
Meridyth appeals the denial of his motion for mistrial. He moved for mistrial after a brief exchange during the government’s direct examination of the confidential informant, Williams, who said he left Carlsbad because he felt his life was in danger. There was no evidence in the record that Meridyth had threatened the informant. The district court denied the motion for mistrial, but gave a limiting instruction.
HELD: (1) Refusal to grant a mistrial is reviewed for abuse of discretion. The district court has discretion to grant a mistrial only when a defendant’s right to a fair and impartial trial has been impaired. The relevant factors are whether the prosecutor acted in bad faith, whether the district court limited the effect of the improper statement through instructions, and whether the improper remark was inconsequential in light of other evidence of guilt. The circuit noted that the government did not point to any evidence that supported the interpretation that statements by Meridyth could be interpreted as threats. Nor can it be said that the prosecutor did not intentionally elicit the statement. The prosecutor likely knew that Williams would testify that he moved out of fear for his safety. Nonetheless, the line of questioning gave the jury legitimate information and was not a gratuitous attempt to improperly influence it. The district court took great pains to instruct the jury not to infer that Meridyth had threatened Williams. Jurors are presumed to follow the instructions.
Sufficiency of Evidence - Review Standard
Motion for Judgment of Acquittal - Amended Rule 29
Conspiracy
Possession With Intent to Distribute
Aid and Abet
United States v. Delgado-Uribe, 03-8003 (April 13, 2004)
(James H. Barrett, FPD, Cheyenne, Wyoming)
Delgado and co-defendant Myrick were convicted of conspiracy to possess with intent to distribute marijuana, and possession with intent to distribute marijuana. The court denied Delgado’s motion for judgment of acquittal based on insufficient evidence. The case turned on the stop of Delgado and Myrick’s caravan en route driven from California to Illinois.
HELD: (1) The court reviews the record de novo when reviewing both the sufficiency of the evidence to support a conviction and denial of a motion for judgment of acquittal. The court views the evidence in the light most favorable to the government. Under Rule 29, a defendant may move for judgment of acquittal at the end of the government’s case-in-chief. If the motion is denied, the defendant may either rest his case or proceed and present his case. In the latter situation, the court reviews the entire record on appeal. In this circuit’s prior decision in Vallo, the circuit expressed concern, but did not resolve, whether the 1994 amendments to Rule 29 had any effect on its rule that the defendant waives the right to have the sufficiency tested by the government’s case alone when he presents additional evidence. The amended Rule 29 states that if the court reserves a decision on a motion for acquittal, it must decide the motion on the basis of the evidence at the time the ruling was reserved. The 1994 amendments were limited to Rule 29(b), and only apply if the district court reserves ruling. The amendments did not effect Rule 29(a), which applies if the district court rules on the motion before a case is submitted to the jury. Therefore, the waiver rule continues to apply to motions for acquittal under Rule 29(a). If the district court denies acquittal at the close of the government’s case and the defendant proceeds with his case, the court will review the entire record on appeal.
(2) The elements of conspiracy are well settled: an agreement with another person to violate the law, knowledge of the essential objectives, knowing and voluntary involvement, and interdependence. An agreement may be inferred from circumstantial evidence that indicates concerted action. The factors to be considered are the defendant’s presence at the crime scene, association with co-conspirators, evidence of conflicting stories, active attempts to divert the officers’ attention from a stopped vehicle, participation in drug transactions, knowledge of and control over drugs. The government presented sufficient evidence of Delgado’s guilt.
(3) The elements of possession with intent to distribute a controlled substance are that the defendant possessed the substance, knew he possessed it and intended to distribute it. Possession may be actual or constructive. In cases involving joint occupancy, some evidence that the defendant had knowledge of and access to the controlled substance must be introduced.
(4) The elements of aiding and abetting are also well settled. The government must prove the defendant willfully associated with the criminal venture and aided such a venture through affirmative action. The government’s proof was sufficient.
Deadbeat Parents Punishment Act - Lack of Personal Jurisdiction by State Court That Issued Support Order
Collateral Estoppel
United States v. Bigford, 01-7132 (April 13, 2004)
(Barry L. Derryberry, Research & Writing Specialist;
Michael A. Abel, FPD, Tulsa, Oklahoma)
Bigford was charged with violating the Deadbeat Parents Punishment Act (DPPA), for willfully failing to pay a support obligation with respect to a child residing in another state. Bigford moved to dismiss the indictment, claiming that the Oklahoma default judgment ordering him to pay child support was rendered without personal jurisdiction. The district court concluded that the DPPA does not permit a defendant to raise the invalidity of the child support order as a defense, and denied the motion to dismiss. Bigford entered a conditional guilty plea. The circuit held that the defendant may challenge the judgment on the basis that personal jurisdiction was lacking, and reversed and remanded.
HELD: (1) The circuit agreed with the Seventh Circuit that the DPPA permits a defendant to challenge the personal jurisdiction of the state court that issued the underlying child support order.
(2) Judgments rendered by a court lacking jurisdiction are void. Therefore, a judgment may be attacked in a collateral proceeding in another jurisdiction on the basis that it was rendered without jurisdiction. Such attack only is precluded when the jurisdictional issue was fully and fairly litigated and finally decided in the prior proceeding.
(3) Personal jurisdiction consists of two distinct components. First, the exercise of jurisdiction must be consistent with the state’s jurisdictional requirements, and second, the exercise of jurisdiction must be consistent with the due process clause of the United States Constitution. A judgment rendered in violation of due process is void in the rendering state and not entitled to full faith and credit elsewhere. Due process requires that the defendant be given adequate notice of the suit and be subject to the personal jurisdiction of the court.
(4) The defendant’s ability to attack the judgment on the basis of state jurisdictional rules remains a principle of the common law. Under the “Absolute Verity” rule, if the jurisdictional defect does not appear on its face, the judgment is considered valid and immune from collateral attack. But this rule does not preclude a court in another jurisdiction from considering evidence extrinsic to the record in a collateral challenge based on Fourteenth Amendment principles of personal jurisdiction. The Full Faith and Credit Clause of the Constitution and Full Faith and Credit Act were not designed to give the rendering state control over federal principles of personal jurisdiction when that order is challenged in a foreign jurisdiction.
(5) A criminal proceeding under the DPPA is not technically an action brought to enforce the state child support order. It is a criminal proceeding, the result of which will neither directly enforce the state support order nor declare it unenforceable. However, the principles articulated are nevertheless relevant because it cannot be gainsaid that the purpose of the DPPA is to enhance compliance with state support orders by providing federal criminal penalties for non-compliance. Where the child support order underlying the DPPA prosecution was rendered by default, application of the general common law and constitutional rules permit a defendant to assert, in the DPPA prosecution, that no underlying court order or support obligation exists because it was rendered without personal jurisdiction over the defendant and was therefore void.
(6) The defendant in the DPPA prosecution will bear the burden of proving lack of personal jurisdiction in the underlying state support proceeding.
(7) The circuit’s construction provides deadbeat parents no additional mechanism with which to avoid the judgments entered against them, because the federal court’s ruling in the DPPA defendant’s favor on the jurisdictional issue will have no force in a subsequent civil enforcement action brought by the parent who initially obtained the support order. Collateral estoppel, or issue preclusion, can only be invoked against a party who had a full and fair opportunity to litigate the issue, and the parent who initially obtained the child support order is not a party to the DPPA prosecution.
Police - Citizen Encounters - Detention, Seizure, Reasonable Suspicion, Pat Down on Weapon, Deference to Officer, Totality of Circumstances, Anonymous
Tip
United States v. Johnson, 03-2153 (April 15, 2004)
(Richard Winterbottom, FPD, Albuquerque, New Mexico)
The United States appeals from a district court order granting Johnson’s motion to suppress a pistol seized from him by an Albuquerque police officer. The circuit reversed.
HELD: (1) The court reviews the evidence in the light most favorable to the government. The ultimate question of reasonableness of the seizure of the pistol is reviewed de novo.
(2) Police-citizen encounters come in three varieties – a consensual encounter, a brief detention, and an arrest. Johnson’s interaction with the officer began as a voluntary, non-coercive conversation, but it evolved into an investigatory detention and search for weapons that falls within the second category, requiring reasonable suspicion. The officer had reasonable suspicion, both when he asked Johnson to put down the walkie-talkie and when he asked for identification. After the officer took Johnson’s identification, the officer told Johnson he was going to pat him down for weapons. After Johnson said he was carrying a gun, the officer reached under Johnson’s jacket and removed the pistol.
(3) Anonymous tips trouble the courts and sometimes lead to suppression of otherwise reliable evidence. One concern relates to the motives of the tipster. A tipster who refuses to identify himself may be making up this story. That is why the Supreme Court, in White and J.L., has required that anonymous tips be accompanied by corroboration and other indicia of reliability. A second concern relates to the level of specificity. In this case, the tipster gave police his cell phone number, and stayed on the line for 8 minutes describing what he was seeing. The caller said he observed a man appearing to be pushing and yelling at a girl.
(4) The officer’s initial observation and conversation with Johnson and Samantha called into question much of the information in the tip. But this does not mean the officer should have abandoned his investigation at this point. Typical nervousness alone cannot support reasonable suspicion. But conduct that may be innocent may nonetheless support a finding of reasonable suspicion in certain circumstances.
(5) The district court dismissed Johnson’s handling of the walkie-talkie as a contributing factor to the reasonable suspicion determination. The district court’s ruling contradicts the circuit’s decision in Williams, acknowledging that such devices are often used by drug traffickers and suggests the close proximity of a co-conspirator.
(6) The nature of the area in which a detention takes place is a relevant consideration. This area was one of expected criminal activity.
(7) The district court failed to accord deference to the officer’s ability to draw on his own experience and training. Applying the proper legal analysis, the record shows that, at the time of the detention, police had received a call from a citizen who gave his phone number and described an adult male forcing a juvenile girl down the street. The caller gave a detailed and accurate description of their appearance and where officers would find them. The caller did not know if the man was armed. The dispatcher requested that officers check on a suspicious person. The officers’ brief observation did not suggest that Johnson was using force. Samantha and Johnson denied the caller’s allegations. Drug dealers, pimps and kidnappers are often armed. Johnson was nervous, if not abnormally so, but also cooperative and polite. Johnson was depressing the transmission button on a walkie-talkie. Individuals involved in criminal activity often use walkie-talkies. The incident took place in Albuquerque’s highest crime area. Therefore, the officer’s actions were reasonable.
(8) An officer may take reasonable precautions to protect his safety during an investigative detention. The pat-down did not exceed the scope of the officer’s suspicions.
Crime of Violence (§2L1.2(b)(1)(A)(ii) - Sexual Assault on Child
United States v. Munguia-Sanchez, 03-1206 (April 20, 2004)
(Jill M. Wichlens, FPD, Denver, Colorado)
Sanchez appealed his sentence for unlawful reentry after deportation for conviction of an aggravated felony. He argued that his prior Colorado state conviction for sexual assault of a child did not constitute a crime of violence under §2L1.2(b)(1)(A)(ii).
HELD: (1) Because Sanchez did not object to the enhancement, review is for plain error.
(2) Sanchez refers to the definition of a crime of violence in §4B1.2, that defines a crime of violence as one having as an element the use, attempted use, or threatened use of physical force, or a burglary, arson or extortion, or involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Sexual abuse of a minor is a crime of violence even if no element of physical force is necessary to prove it. This takes account of the inherent nature of the offense. The use of the word “and” in the definition under §2L1.2 commentary is not sufficient to establish that the test is conjunctive. The use of the word “includes” in subpart II supports a disjunctive reading. In addition, subpart II lists several offenses that do not require the proof of the use or threatened or attempted use of force. Finally, the disjunctive reading of the definition is confirmed by recent amendments to the commentary.
Motion to Suppress - Review Standard
Search Warrant - Probable Cause
Statutory Interpretation
Apprendi
Relevant Conduct
United States v. Jardini, 02-8110 (April 20, 2004)
Jardini appeals the denial of his motion to suppress and the sentence imposed after he was convicted.
HELD: (1) When reviewing the district court’s denial of a motion to suppress, the court accepts the district court’s fact findings unless they are clearly erroneous. The ultimate determination of reasonableness is reviewed de novo.
(2) In determining whether a search warrant is supported by probable cause, the court reviews the sufficiency of the affidavit upon which a warrant is issued, by looking at the totality of the circumstances and ensuring that the magistrate has a substantial basis for concluding that probable cause existed. Probable cause exists only when a supporting affidavit sets forth facts that would lead a prudent person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place. Probable cause cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched. The determination of timeliness does not depend simply on the number of days that have elapsed, but rather depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. When the offense in question is ongoing and continuing, passage of time is not of critical importance. More recent events can refresh otherwise dated information.
(3) The court reviews the district court’s interpretation of the guidelines de novo and its fact findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.
(4) Section 2K2.1(c) provides that, if the defendant used or possessed any firearm or ammunition in connection with commission or attempted commission of another offense, or possessed and transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection to another offense, the court should apply §2X1.1, attempt, solicitation, or conspiracy, with respect to that other offense, if the resulting offense level is greater than determined by §2K2. In turn, §2X1.1(a) directs the sentencing court to establish the base offense level from the guideline for the substantive offense. Jardini’s base offense level was calculated under the controlled substances guideline. The sentencing court found there was no proof that the firearms were used in connection with Jardini’s drug trafficking activities, but found that no such connection was necessary under §2K2.1(c). The court will interpret the guidelines as statutes, adhering to the clear unambiguous language, giving the language its ordinary meaning.
(5) Jardini contended that, in order for §2K2.1(c) to be applied, the firearms that triggered application of the cross-reference must be the same firearm or firearms that sustained his § 922(g) convictions. The circuit disagreed. Section 2K2.1(b)(5) is a far-reaching enhancement and its reference to “any firearm” is unambiguous in the context in which it is used. The guidelines recognize the distinction between “any firearm” and “the firearm.”
(6) The court rejected any argument based on Apprendi, because Jardini’s sentence did not exceed the statutory maximum.
(7) Under §1B1.3, the guideline range for an offense must be determined on the basis of all relevant conduct, including prior criminal acts that are part of the same course of conduct or common scheme or plan as the offense of
conviction. The court held there was ample evidence to support the conclusion that Jardini’s past use of firearms during drug trafficking was part of the same course of conduct as the offense of conviction.
Motion to Suppress
Arrest - Probable Cause
United States v. Valenzuela, 03-2210 (April 21, 2004)
The government appeals the district court’s order granting Valenzuela’s motion to suppress statements made after her arrest. The district court held Valenzuela was arrested without probable cause at the roadside when she was handcuffed and brought to the border patrol station. The district court suppressed her post-arrest statements and the Tenth Circuit affirmed.
HELD: (1) In reviewing a district court’s order to suppress evidence, the circuit reviews the district court’s factual findings for clear error, and the ultimate determination of whether probable cause to arrest existed is a legal issue reviewed de novo.
(2) An arrest is characterized by a highly intrusive or lengthy search or detention and must be supported by probable cause, which exists only when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Probable cause is measured against an objective standard.
(3) No single factor is determinative. The court views the circumstances in their totality. The courts may not engage in a divide-and-conquer analysis of the facts. But neither may a court arrive at probable cause by piling hunch upon hunch. The court must examine the facts individually in their context to determine whether rational inferences can be drawn that supports probable cause. A factor does not become irrelevant simply because it is susceptible to an innocent explanation.
(4) There were insufficient facts to demonstrate that the pick-up, driven by Valenzuela, was driving in tandem with the Cadillac, or that the truck was the scout vehicle. Some facts, such as Valenzuela’s resting of her head in her hand, should be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous. Proximity to the border is a relevant factor in determining whether there is reasonable suspicion to stop a vehicle. Here, probable cause is necessary. The evidence connecting Valenzuela to the unlawful endeavor in the Cadillac was simply missing when the arrest occurred.
Motion to Suppress
Hearsay
Arrest - Probable Cause
United States v. Miramonted, 03-1199 (April 21, 2004)
(Matthew C. Golla, FPD, Denver, Colorado)
Miramonted was charged with unlawful possession of a firearm by a felon, and unlawful possession of less than five grams of cocaine. He moved to suppress. The district court granted this motion. The government appealed. The circuit reversed.
The government argued that the police had probable cause to arrest Miramonted, and that the officer could see the gun laying on the seat in plain view. The government called one police officer. The defendant called no witness. The district court granted the motion to suppress. The government moved for reconsideration, arguing that the police had probable cause to believe a crime had been committed and also that the seizure of the gun was justified under the motor vehicle exception doctrine. The court denied the motion to reconsider.
At the suppression hearing, the government called Officer Garcia. The defendant called no witness. After a brief colloquy, the district court granted the motion.
HELD: (1) Hearsay testimony is admissible at suppression hearings. In describing Garcia as a mere spectator, the district court did not consider Garcia’s testimony about the events leading up to the defendant’s arrest. It is true that, if Munoz had testified, the court may have denied the motion to suppress. Munoz did not testify and the question is whether Garcia’s testimony, standing alone, was sufficient to defeat the motion to suppress.
(2) The Denver Police Department had probable cause to justify the warrantless arrest. Garcia was not a mere spectator, but was an active participant in a team effort by the police. There is no need to remand. On the present record, the circuit concluded that the police had probable cause to arrest the defendant, and the ensuing search of his person was incident to that arrest.
(3) Hearsay is admissible at a suppression hearing. Probable cause can rest upon the collective knowledge of police, rather than solely on that of the officer who makes the arrest.
Downward Departure - Accessory, Aberrant Behavior, Discouraged Factors
Recusal of Judge - Appearance of Bias
Plain Error - Distinguished from Waiver
Quantity of Drugs - Contradiction Between §2X3.1 and §1B1.3
Removal of Court Document (18 U.S.C. § 2071 - Copy
United States v. Shari Lang and Johnny Lang, 02-4075, 02-4091, 02-4103 and 02- 4128 (April 22, 2004)
(Jill M. Wichlens, FPD, Denver, Colorado for Shari Lang)
A jury convicted Johnny Lang and Shari Lang of obstructing justice, accessory after the fact to distribution of heroin, and conspiracy to commit both crimes. Johnny Lang was convicted of making a false statement to the FBI, and Shari Lang was convicted of unlawfully removing a document from a federal clerk’s office. The district court departed downward to offense level 21 for both, and sentenced each to 46 months imprisonment. They appealed, and the government filed cross-appeals in both cases. The circuit reversed the downward departures, and affirmed the remainder of the district court’s decision.
While working for the clerk of a federal district court in Utah, Mrs. Lang copied and took home a sealed affidavit. She read the document which authorized police to use a tracking device in a narcotics investigation. She discussed its contents with Mr. Lang. Following this conversation, he went to a pay phone, and called one of the suspects, even though neither Lang knew the subjects of the drug investigation. The FBI recorded phone calls between Lang and the suspect, and overheard Lang state that he had obtained information about this investigation from a friend in the courthouse and had seen documents. The next day an individual visited Ure, a man listed in the stolen affidavit as buying heroin from the suspect. The individual gave Ure the sealed affidavit. Ure described the individual as closely matching Mr. Lang. That afternoon, federal agents interviewed Mrs. Lang who admitted she took a copy of the affidavit home and discussed it with her husband. She identified Mr. Lang’s voice in the phone conversation. She said she went to bed between 6:30 and 7:00, but when the agent said that Mr. Lang called the suspect between 6:15 and 6:30, she then claimed she must have gone to bed closer to 6:00 p.m.
Downward Departures:
HELD: (1) Based on the plain text of 18 U.S.C. § 3742, the circuit held that the statute mandates de novo review for both upward and downward departures. The district court departed based on the Langs’ brief involvement as accessories. The circuit held that limited participation does not warrant a downward departure, because the guidelines already account for an accessory’s minimal participation. Therefore, the district court may depart downward only if the Langs’ involvement as accessories was exceptionally short. The Langs’ involvement was not.
(2) The district court also erred in departing downward on Mrs. Lang’s sentence based on the aberrant nature of her criminal behavior. An aberrant behavior departure is permissible if the crime was committed without significant planning, was of limited duration, and represents a marked deviation from an otherwise law-abiding life. Mrs. Lang does not satisfy the third element because she has a history of drug use. In addition, her education and work history, on which the district court based its aberrant behavior departure, are discouraged factors.
Recusal
(3) Both Langs argue the district court erred in failing to recuse herself based on alleged appearances of partiality. See 28 U.S.C. § 455(a). When a party does not timely file a motion to recuse, as occurred here, the Tenth Circuit is divided on the appropriate standard of review. The court held it did not need to resolve whether plain error or waiver applies because the Langs fail under either standard of review. The claim for recusal is based on the fact that the judge had worked for the United States Attorney’s Office, became friends with the prosecutor, her husband worked as an Assistant U.S. Attorney in the same office at the time of trial and sentencing, she met with the prosecutor’s wife and mother-in-law in her chambers during a recess in the trial, and Mrs. Lang stole the documents from the same courthouse where the district judge works.
(4) Section 455(a), 28 U.S.C., provides that a judge or magistrate shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. The judge must recuse himself when there is the appearance of bias. The circuit held that the Langs could not satisfy the final prong of plain error review where the error did not seriously affect the fairness, integrity, or public reputation of the proceedings. Distinguishing the Supreme Court cases in Johnson and Cotton, the circuit noted that this case involves, not a constitutional violation, but a statutory transgression. There was overwhelming and essentially uncontroverted evidence of the Langs’ guilt.
Mrs. Lang’s Individual Appeal:
(5) Mrs. Lang argues the district court erred in considering the entire quantity of drugs distributed by the Perez organization when calculating her sentence, and should only have used the quantity that she knew or reasonably should have known the organization distributed. The resolution of this issue rests on the interplay between §2X3.1 and §1B1.3. Section 2X3.1, applied in isolation, would only extend the reasonable-knowledge requirement to the specific offense characteristics of the underlying offense. But application note 1 to that guideline directs the courts to note 10 of the commentary to §1B1.3. Reading note 10 in isolation would extend the reasonable-knowledge requirement to all conduct used to determine the sentence for the underlying offense. Other circuits are split on how to resolve this contradiction. The Tenth Circuit followed the Seventh Circuit’s approach and held that the reasonable-knowledge requirement in cases under §2X3.1 applies only to specific offense characteristics of the underlying offense.
(6) As to the conviction of violating 18 U.S.C. § 2071, the court rejected Mrs. Lang’s argument that the sealed record was a copy and not the original affidavit. A copy is considered a government record, and the affidavit had been filed and deposited in the clerk’s office. Therefore, the theft of the affidavit copy violates § 2071.
Mr. Lang’s Appeal:
(7) The court reviews evidentiary rulings for abuse of discretion. The district court admitted Ure’s testimony as non-hearsay. Rule 801(d)(2)(A) permits Ure’s testimony regarding Lang’s statements as a non-hearsay admission by a party opponent. The court did not determine the applicability of Rule 801(d)(2)(E). A statement is not hearsay if the statement is offered against a party and is the party’s own statement.
(8) The court reviews sufficiency of the evidence in the light most favorable to the government. For conviction of conspiracy, the government must prove an agreement to violate the law, defendant knew the essential objectives of the conspiracy, knowingly and voluntarily took part in it, and the co-conspirators were interdependent. Review is de novo. Of the four elements, Mr. Lang claims only insufficient evidence as to the existence of an agreement. The court found sufficient evidence that a conspiracy existed between the Langs to act as accessories to a drug trafficking operation.
Motion to Suppress - Review Standard
Confession - Fail to Honor Request to Terminate Interrogation, Miranda, What Constitutes Interrogation, Invoke Right to Remain Silent
United States v. Rambo, 03-1242 (April 23, 2004)
(Lynn Hartfield, FPD, Denver, Colorado)
Rambo was taken into custody because police received information he was involved with two armed robberies. An officer interviewed him and he eventually confessed. Rambo moved to suppress the confession on the grounds that it was obtained in violation of his Fifth Amendment right. He entered a conditional guilty plea to preserve his right to appeal the denial of his suppression motion. The court reversed, concluding that police failed to honor Rambo’s request to terminate the interrogation.
HELD: (1) In reviewing a district court’s denial of a motion to suppress, the court considers the evidence in the light most favorable to the government, accepts the district court’s fact findings unless clearly erroneous, and reviews conclusions of law de novo.
(2) For the protections of Miranda to apply, custodial interrogation must be imminent or presently occurring. The use of questions is not required to show that interrogation occurred. The test of whether an interrogation has occurred is an objective one. The focus is on the perceptions of a reasonable person in the suspect’s position rather than the intent of the investigating officer. The interview available on videotape opens with Officer Moran informing Rambo that much of the blame will fall on Rambo’s shoulders. One of the techniques used by police during interrogation is to posit the guilt of the subject. These techniques of persuasion, no less than expressed questioning, in a custodial setting, amount to interrogation. The officer’s first comments exemplify interrogation explicitly recognized by the Supreme Court, and other questions and comments support the conclusion that Rambo was under interrogation. The officer’s comments are fairly understood as an attempt to refocus the discussion on the robberies.
(3) Rambo’s refusal to discuss the robberies was a clear and unambiguous invocation of his right to remain silent. That Rambo did not request an attorney is irrelevant to the question of whether he invoked his right to remain silent. When Officer Moran asked Rambo if he wanted to discuss the robberies, and Rambo said “no,” there is no nuance nor context to vary the unequivocal meaning of Rambo’s single word, monosyllabic response. Since Rambo invoked his right to remain silent and Officer Moran failed to scrupulously honor that right, the confession must be suppressed.
(4) Officers can reinitiate questioning only if, at the time the defendant invoked his right to remain silent, the questioning ceased, a substantial interval passed before the second interrogation, the defendant was given a fresh set of Miranda warnings, and the subject of the second interrogation was unrelated to the first. Here, there was no cessation of interrogation.
Guideline Interpretation - Like Statutes
Money Laundering (§2S1.1(b)(2)(B))
United States v. Adargas, 03-1396 (April 26, 2004)
(Robert S. Berger, Denver, Colorado)
Adargas entered a plea to a charge of conspiracy to commit money laundering. The court applied a two-level enhancement pursuant to §2S1.1(b)(2)(B). The PSR added the two levels, and in its reasoning cited the guideline that enhances a sentence when the defendant is convicted under 18 U.S.C. § 1956. Adargas objected, noting that application note (3)(C) states that the subsection shall not apply if the defendant was convicted of a conspiracy under § 1956(h), and the sole object of that conspiracy was to commit an offense set forth in § 1957. The district court rejected the argument, ruling that because both the indictment and the plea agreement acknowledged that Adargas plead to a § 1956 violation rather than a § 1957 violation, it had no discretion not to apply the two-level increase.
HELD: (1) The court reviews the district court’s interpretation of the guidelines de novo, interpreting the guidelines as if they were a statute and follows their language when it is clear and unambiguous. The court considers the commentary authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of that guideline. The plain meaning of application note 3(c) supports the district court’s application of the two-level enhancement.
Destructive Device (26 U.S.C. § 5845(f)) - Element or Affirmative Defense
Motion to Dismiss - Discretion
Legal Determinations De Novo
Statutory Construction
United States v. La Cock, 02-2283 (April 27, 2004)
(Roger A. Finzel, FPD, Albuquerque, New Mexico)
La Cock was indicted on three counts stemming from his possession of a destructive device as defined in 26 U.S.C. § 5845(f). He moved to dismiss the indictment on the ground that the device was a homemade intruder alarm that fell outside the definition of the statute. After hearing testimony from the experts, the district court granted the motion. The circuit reversed and remanded. All the charges turn on whether the defendant’s device is a destructive device as defined in 26 U.S.C. § 5845(f).
HELD: (1) In reviewing a trial court’s order granting or denying a motion to dismiss, the appellate court can only reverse if the lower court abused its discretion. But if the court dismisses the indictment based on its interpretation of the governing statutes, that is a legal determination the court reviews de novo.
(2) Under §5845(f)(1), a destructive device includes any explosive or incendiary bomb or similar device. By suggesting that, to constitute a bomb, a device must explode, the district court’s interpretation read the word “incendiary” out of the statute. In doing so, the court violated a cardinal principal of statutory construction that a statute ought, upon the whole be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. The defendant’s device was designed, upon activation, to shoot a six-foot high flame into the air and, in the process, give out large amounts of gas, heat, and energy. This seems clearly to be an incendiary bomb or similar device. Therefore, the district court erred in dismissing the indictment, after determining that the device was not an incendiary bomb simply because it did not explode.
(3) The other ground on which the district court dismissed the indictment was its conclusion that, although it may have some potential to cause harm, the device was not designed to be a weapon, but rather a signaling device in the form of an alarm. Section 5845(f) excludes devices neither designed nor redesigned for use as weapons. The determination as to whether a device was designed or redesigned for use as a weapon is an affirmative defense, not an element of the crime that must be alleged in the indictment. As a contested affirmative defense, defendant’s argument should be resolved through trial.
Abandonment
Motion to Suppress - Fact Findings
Judicial Conduct - Post Verdict Comments to Jury, Concern About Future Jury Service
United States v. Burbage, 03-2184 (April 27, 2004)
(Vicki Mandell-King, FPD, Denver, Colorado)
Burbage appealed his conviction for possessing more than 500 grams of cocaine with intent to distribute. He challenges the search and improper comments of the district court.
The challenged search occurred on an Amtrak train. Agent Perry approached Burbage and asked about his travel. The agent asked whether he had any luggage, and Burbage said he did not. A little later, Agent Perry returned to Burbage’s seat and saw a backpack in the overhead compartment. He asked Burbage whether the backpack belonged to him. Burbage said it belonged to a passenger who had been sitting beside him. Other passengers informed the agent there had been no such passenger. The agent asked Burbage again whether the backpack belonged to him. Burbage said no, but that the owner had given him permission to put his green portfolio inside it. Without asking Burbage for permission to search the backpack, the agent either opened the backpack himself or looked inside it after Burbage opened it. Evidence supported Burbage’s assertion that the agent opened the backpack. After the backpack was opened, either Burbage or the agent removed the portfolio. It was then that the agent
noticed objects that appeared to be cocaine and Burbage was arrested. The district court concluded that the backpack had been abandoned, that Burbage had removed the portfolio, and that everything that occurred was consensual.
After trial, Burbage was convicted. After the verdict, the trial judge discussed the case with the jurors, informed them that Burbage had essentially confessed to the crime at the suppression hearing, had a prior criminal record, and had wanted counsel to ask unethical questions. The judge specifically said that, prior to trial, he would have given Burbage three points for acceptance of responsibility and maybe something else. At sentencing, the district court denied all objections to the Presentence Report and all motions related to sentence, specifically denying the acceptance-of-responsibility adjustment.
HELD: (1) The court reviews a decision on a motion to suppress in the light most favorable to the district court’s findings. The ultimate determination of reasonableness is reviewed de novo.
(2) When factual issues are involved in deciding a motion, the court must state its essential findings on the record, but Rule 12(d) does not require detailed findings of fact. The district court’s findings satisfied this standard. The district court clearly found that the actions were consensual, that Burbage opened the backpack, and that the backpack was abandoned.
(3) The court rejected Burbage’s argument that, though he initially denied owning the backpack, he then asserted sufficient interest in the backpack to preclude treatment of it as an abandoned object. The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. Regardless of an individual subjective intent, the individual is treated as having abandoned an object if it would be unreasonable in the circumstances for the person to have an expectation of privacy with respect to that object. By affirmatively denying to the agent that he owned the backpack, Burbage lost any objectively reasonable expectation of privacy in the backpack. Burbage’s property and privacy interests in the portfolio could be and were fully protected by simply delivering it to him without inspecting the contents. He had no objectively reasonable expectation of privacy in the remainder of the backpack’s contents. Because the backpack was abandoned, it is immaterial who opened it or whether Burbage consented to its search.
(4) As to the district court’s comments post-verdict to the jury, there was no objection, so review is for plain error. The ABA Model Code of Judicial Conduct notes that such comments impair a juror’s ability to be fair and impartial in a subsequent case. Even if the comments were improper, concern about prejudice to future defendants is irrelevant to Burbage’s conviction or sentence. As for the claim that the judge’s comments indicated bias with respect to sentencing, bias or prejudice must stem from an extra-judicial source unless the judge displays a deep-seated favoritism or antagonism that would make fair judgment impossible. The judge’s comments in this case were based solely on the proceedings before him and reflect exasperation rather than antagonism toward Burbage.
Admission of Evidence - Prior Acts of Child Molestation (Rule 414, 403), Discretion
Judgment of Acquittal - Sufficient Evidence
Jurisdiction - Proof Under 18 U.S.C. § 1152 of Qualification as Indian
Use of Force Enhancement (§2A3.1(b)(1))
United States v. Drewry, 03-6011 (April 28, 2004)
(William P. Earley, FPD, Oklahoma City, Oklahoma)
Drewry was convicted of five charges of physical and sexual abuse of four children in Indian country and was sentenced to 210 months total imprisonment.
HELD: (1) Under Rule 414, the courts are to liberally admit evidence of prior uncharged sex crimes. Under Rule 403, a court may exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Initially, the district court declined to admit evidence of child molestation against Morales some 25 years earlier. But after hearing the testimony of the molestation victims, the court determined there were clear similarities. Sufficient factual similarity can rehabilitate evidence of prior uncharged offenses that might otherwise be inadmissable due to staleness. Moreover, case law makes clear that Morales’ testimony was not so stale or old as to undermine its relevance. The district court did not abuse its discretion in admitting this testimony.
(2) Drewry challenges the district court’s failure to grant his motion for judgment of acquittal. He claims the court lacked jurisdiction because the government failed to present sufficient evidence proving the victims were Indian for purposes of 18 U.S.C. § 1152, which establishes federal jurisdiction over crimes in which the defendant is an Indian and the victim is non-Indian, or vice versa. A reversal of the district court’s ruling is not warranted if, after reviewing 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. In Prentiss, this court determined that to qualify as an Indian under § 1152, an individual is required to have some Indian blood, and be recognized as an Indian by a tribe or by the federal government. Each victim here was 1/4 Indian. The question is whether the government proved that the children were recognized as Indians by a tribe. The children were not officially enrolled as members in the Comanche Tribe until after the date of at least two of the allegations in the indictment. But enrollment in a tribe is not the only way an individual can show she is an Indian under § 1152. Evidence presented at trial sufficiently satisfied the other factors.
(3) Finally, Drewry claims the district court improperly enhanced his sentence under §2A3.1(b)(1) for the use of force or threats in the course of sexually assaulting one of the children. In a case involving the sexual abuse of a child, the guidelines provide the sentencing court with flexibility to apply a force enhancement depending on the facts. A threat of harm sufficient to coerce or compel submission may be quite different for a child victim than for an adult. The district court did not err in concluding that the testimony supports the finding that the child was intimidated and threatened over a lengthy period of time, such that submission to the defendant’s sexual advances was as a result of the fear of force.