TENTH CIRCUIT DECISIONS
JUNE 2004
Criminal Justice Act - Reimbursement of Court-Appointed Attorneys and Not Pro Se Defendants
United States v. McElhiney, 04-3032 (June 1, 2004)
McElhiney appealed the denial of his application for reimbursement of costs under the Criminal Justice Act. He had represented himself in three jury trials with stand-by counsel.
HELD: (1) The circuit reviews a district court’s denial of a request for reimbursement of services under the CJA for abuse of discretion. But here, the district court’s decision turned on an interpretation of a statute and review is de novo. The plain language of the provision limits reimbursement to expenses incurred by court-appointed attorneys.
(2) Even though the district court granted a similar request at the end of the second trial, the court was free to re-examine its decision in light of an intervening decision by the Eighth Circuit with which the Tenth Circuit agreed.
Court Interpreters Act - Appointed When Party or Witness Speaks Primarily In Another Language, Discretion
Jurors - Excusal, Fainting, Alternates
Mistrial - Discretion, Disruptive Incident
United States v. Black, 03-4174 (June 1, 2004)
(Jenine M. Jensen, FPD, Denver, Colorado).
Black appealed his convictions stemming from two first degree murders on Indian land. The primary defense at trial was lack of intent for first degree murder. His sister, Cecilia Lee, testified at trial. The district court interrupted her numerous times, asking her to speak louder. At one point, Lee asked for permission to testify in Navajo. A few minutes later, defense counsel stated that he was concerned that she would be more comfortable speaking in Navajo. Lee also said she was most fluent in Navajo, but acknowledged that she also speaks English.
During the testimony of the medical examiner, the court admitted an autopsy photograph. One juror fainted. After she was revived, she met with the court and counsel and stated that she felt okay and felt that she could be impartial. Counsel moved for a mistrial or that the jury be excused. The district court denied both motions. The court asked the other jurors if any of them felt that they could no longer be impartial. No juror responded.
HELD: (1) The Court Interpreters Act states that a district court shall utilize an interpreter if the presiding judicial officer determines that either a party or a witness speaks only or primarily a language other than English so as to inhibit that person’s comprehension of the proceedings or communications and testimony. The court reviews the district court’s determination concerning appointment of an interpreter for abuse of discretion. The circuit found, based on the record, that Lee was fluent in English and the problem was that she did not speak loudly enough. The circuit distinguished its early decision in Osuna, on which Black relied. The circuit rejected the language that “any indication” that a defendant or witness speaks only or primarily a language other than English should trigger appointment of an interpreter.
(2) Rule 24(c)(1), F.R.Cr.P., authorizes the court to replace any jurors who are unable to perform or who are disqualified from performing their duties. The decision whether to excuse a juror is a matter of fact uniquely within the observation of the trial court, to which the circuit gives due deference. The circuit concluded that Black had failed to explain why the juror’s fainting would indicate her bias or inability to be impartial. The circuit stated that it did not see how the district court’s use of the random draw procedure in picking the jury was relevant. (Yet the court did note that Black had argued that, given the use of that procedure, two jurors had to be dismissed prior to deliberations, and common sense dictates that the fainting juror should have been one of those.
(3) When a mistrial is based on a disruptive incident that has prejudiced the jurors, the standard is whether there has been an impingement upon the defendant’s right to a fair trial. Denial of the motion for mistrial is reviewed for an abuse of discretion. The circuit distinguished its earlier Evans decision, stating that Evans did not establish mandatory measures to be taken in response to any disruptive incident. The circuit also found that what happened here was different from the three incidents in Evans.
Sufficient Evidence - Review Standard
Possession with Intent to Distribute Drugs - Elements of Crime, Actual or Constructive Possession
Motion to Suppress - Review Standard
Warrant - Probable Cause, False Information
Section 851, 21 U.S.C. Enhancement – Prior Convictions, Related, Distinguished from Criminal History
Verdict - Inconsistent
United States v. Harris, 03-5117 (June 1, 2004)
Harris was convicted of drug conspiracy and related charges.
HELD: (1) In reviewing the sufficiency of the evidence to support a conviction, the circuit reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.
(2) To obtain a conviction for possessing a controlled substance with intent to distribute under 21 U.S.C. § 841, the government must establish the following elements beyond a reasonable doubt: the defendant possessed a control substance, he knew he did so, and intended to distribute the controlled substance. Possession may be actual or constructive. To prove constructive possession, the government must show the defendant knowingly held ownership, dominion or control over the object and premises where the contraband was found. The government showed that Harris had dominion and control over the rental car. Harris also asserted considerable control over the marijuana in the rental car.
(3) When reviewing the district court’s denial of a motion to suppress, the circuit accepts the district court’s fact findings unless clearly erroneous and considers the evidence in the light most favorable to the government. The ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo. The court reviews the sufficiency of the affidavit for a warrant by looking at the totality of the circumstances and ensuring that the magistrate had a substantial basis for concluding that probable cause existed. Affidavits are also subject to Franks v. Delaware, which mandates the suppression of evidence obtained on the basis of an affidavit containing knowingly false information. The information in the affidavit corroborated or refreshed the allegedly stale information. Any omissions in the affidavit were not material. The information in the affidavit was sufficient for probable cause.
(4) Section 841(b)(1)(A) provides for a mandatory life sentence if a defendant is convicted of violating § 841(a), the conviction involved a certain requisite amount of drugs, and the crime was committed after two or more prior felony convictions for drug offenses. The circuit reviews de novo whether the evidence presented was sufficient with regard to the prior felony. The district court rejected the argument that the two prior convictions should be considered as related for purposes of sentencing.
(5) Under § 851(e), 21 U.S.C., no person may challenge the validity of a prior conviction that occurred more than five years before the date of the information alleging such prior conviction. The prior convictions here occurred more than five years before the government filed its information alleging their existence. Section 851(e) does not preclude Harris’ argument as to relatedness however. The circuit found that the evidence was sufficient to support the district court’s finding of non-relatedness. While relatedness affects criminal history score under § 4A1.2, comment (n. 3), § 841 only requires the existence of two or more prior convictions for a felony drug offense and does not contain an exception where concurrent sentences were imposed.
(6) It has long been settled that inconsistent verdicts do not provide the basis for reversal of a conviction.
Child Pornography
Appeal Waiver
Ex Post Facto Clause - Clarifying or Substantive Amendments to Guidelines
United States v. Groves, 02-3387 (June 3, 2004)
Michael L. Harris, FPD, Kansas City, KS
Groves pled guilty to one count of trafficking in child pornography in violation of 18 U.S.C. § 2252(a)(2). The offense took place in 1994. In calculating the sentence, the district court relied on two aspects of commentary accompanying a 1996 amendment to § 2G2.2(b)(4). The court found that the five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor applied, whether or not the abuse or exploitation occurred during the offense. The court also noted that, under the 1996 amendment, prior convictions taken into account to determine the offense level may also be used in determining the criminal history. On appeal, Groves argued that the 1996 amendment violated the expost facto clause.
In the plea agreement, Groves generally waived the right to appeal his sentence, but reserved the right to appeal an upward departure or an illegal sentence.
HELD: (1) Despite the waiver, the circuit held the defendant is entitled to challenge his sentence on expost facto grounds, given that he reserved his rights to appeal an upward departure or an illegal sentence. The circuit strictly construes waivers, reading any ambiguity against the government. The sentencing court is not authorized to impose an unconstitutional sentence, such as one that violates the expost facto clause. The circuit held that this appeal is plainly outside the scope of the waiver agreement.
(2) The expost facto clause of the Constitution prohibits criminal laws that are both retrospective in nature and disadvantageous to the defendant. Use of a guideline not in effect at the time the offense was committed violates the expost facto clause when the later guideline disadvantages the defendant. But it is proper to consider amendments that are only clarifying as opposed to substantive. It is sometimes difficult to distinguish between substantive and clarifying amendments. To do so, the circuit considers whether the amendment alters the controlling pre-amendment interpretation of the guideline, how the Sentencing Commission characterized the amendment, and whether the amendment changes the text of the guideline or merely the accompanying commentary. If a guideline amendment contradicts either the plain meaning of the pre-existing guideline or controlling case law, the amendment is necessarily substantive.
(3) With respect to § 2G2.2(b)(4), the “pattern of abuse” enhancement, the 1996 amendment changed only the commentary and not the guideline itself. But the amended commentary modified the definition of the term “pattern of activity involving the abuse or exploitation of a minor.” The circuit concluded that the 1996 amendment merely clarified the scope of the pattern of abuse enhancement. The amendment’s position is a fair interpretation of the text of the pre-amendment guideline, and there was no controlling case law to the contrary. The pre-amendment version of the guideline and commentary were ambiguous with respect to whether acts unrelated to the offense may be considered. The Commission characterized the 1996 Amendment as clarifying. The text of the guideline remained unchanged.
(4) As to whether prior convictions for child molestation could be used both to enhance the offense level and determine the criminal history category, the pre-amendment commentary did not mention this. But the amended commentary expressly provides that prior convictions can be taken into account for both purposes. The Commission expressly declared the change to be clarifying and the amendment altered only the commentary. The question here then turns on whether the amendment was contrary to prior controlling law. The Sentencing Commission plainly understands the concept of double counting and expressly forbids it where it is not intended. But with respect to calculating criminal history points, the Commission has taken action to limit double counting. After considering § 4A1.2 and relevant conduct under § 1B1.3, the circuit concluded that, prior to the 1996 Amendment, a “pattern of activity involving the sexual abuse or exploitation of a minor” was “relevant conduct” with regard to the offense at issue and that such conduct could not also have been used as criminal history. The circuit had also held that convictions taken into account as relevant conduct to determine the offense level could not also be used in computing criminal history. Therefore, the district court’s application of the 1996 amendment regarding double counting did run afoul of the expost facto clause. The circuit reversed and remanded on that basis.
Supervised Release Revocation - Possess Controlled Substance, Exception to Mandatory Revocation
United States v. Hammonds, 03-7081 (June 4, 2004)
The question here is whether the district court erred in revoking Hammonds’ term of supervise release under § 3583(g)(1), 18 U.S.C., which mandates revocation for possession of a controlled substance, based on a single positive urinalysis result. The circuit affirmed.
HELD: (1) Hammonds argued that the 2002 edition of subsection (g)(4) to § 3583 required the circuit to reconsider its prior holding in Rockwell, 984 F.2d 1112 (1993), concerning the relationship between drug use and drug possession in the revocation context. He also argued that the district court erred by not granting him, pursuant to § 3583(b), an exception to subsection (g)’s mandatory revocation requirement. In Rockwell, the circuit had concluded that one instance of knowing and voluntary use, based on a single failed drug test together with a defendant’s admission, constitutes possession under § 3583(g). A person cannot use a drug without possessing it, assuming the requisite culpable state of mind. Nothing in the language of the 2002 amendment explicitly indicates an intent to supersede Rockwell. The circuit concluded that (g)(1), when applied in accord with Rockwell, does not swallow (g)(4), which requires revocation of supervised release when the defendant tests positive for illegal controlled substances at least four times in one year, without regard to his mens rea. In contrast, (g)(1) requires revocation only where the district court finds the required mens rea. Rockwell remains valid.
(2) There is an exception under § 3583(d) to the mandatory revocation requirement of (g)(1). This requires a district court to consider whether to grant an exception by ordering the defendant to undergo or continue substance abuse treatment instead of revocation. This is reviewed for an abuse of discretion. The district court did not make a specific ruling or explain its reasons for rejecting subsection (d). This does not alone constitute an abuse of discretion as there is no indication the court did not recognize that it could grant the exception. Hammonds, at the revocation hearing, argued that the court should order drug treatment rather than revocation. There is no indication the court did not recognize it had discretion to order enrollment in a substance abuse program. The district court did not abuse its discretion in revoking supervised release.
Verdict Form
Failure to Object - Plain Error, Objection by Co-Defendant
Severance
Admission of Evidence - Summary Chart and Testimony
Firearm Enhancement
Role in Offense
United States v. Ray, 02-5213 (June 7, 2004)
Ray was found guilty of various counts related to possession with intent to distribute and conspiracy involving narcotics. This appeal is the culmination of an investigation and prosecution of an extensive drug conspiracy. The central player was Bellamy in Phoenix, Texas. He coordinated shipments of powder cocaine, crack cocaine, and marijuana to various cities including Tulsa, Wichita, and Detroit. Ray was a key player in the conspiracy
HELD: (1) Because Ray did not object to the verdict form, review is for plain error. Ray urges that plain error does not apply because one of the co-defendants objected and further objection by Ray’s counsel would have been futile. At the time of trial, an objection by a co-defendant did not preserve an issue for appeal for all defendants. See Rule 30, F.R.Cr.P. This is not a case where the parties have agreed that an objection by one defendant would count as an objection for all. The Tenth Circuit followed the Fifth Circuit’s approach that an objection by one defendant, in and of itself does not preserve the appellate rights of other defendants. So to satisfy plain error, Ray must show the error was plain, affected his substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. If all four prongs are satisfied, the court may exercise its discretion to notice the forfeited error. The fourth prong is dispositive. This court has held that the fourth prong is not satisfied if there is overwhelming and essentially uncontroverted evidence of guilt of the charged crime or a closely related crime on which evidence was presented. There was overwhelming and essentially uncontroverted evidence of Ray’s significant involvement in a drug conspiracy.
(2) The decision to grant a severance is within the sound discretion of the trial court. The reviewing court will not disturb that decision absent an abuse of discretion and a strong showing of prejudice. Ray must overcome the presumption that, in a conspiracy trial, it is preferred that persons charged together be tried together. Ray points to the fact that evidence was introduced of co-defendant Mack’s gruesome murder of two individuals, the torture of Jennifer Natale, and other incidents of violence and intimidation. The circuit held this does not establish that the district court committed reversible error in refusing to sever Ray’s trial from his co-defendants. The government introduced significant evidence of Ray’s guilt at trial, so that he cannot make a strong showing of prejudice.
(3) The circuit reviews a district court’s evidentiary rulings for abuse of discretion. Even if the district court erred, the circuit asks whether the error was harmless. The government presented testimony of Officer Adair, and accompanying exhibits, at the close of its case in chief. Adair provided the jury with a summary of previous testimony. The circuit has not previously examined the admissibility of summary testimony and exhibits in a drug conspiracy case. But in complex tax cases, the court has allowed the government to admit summary testimony so long as the district court gives appropriate limiting instructions. This rule does not mandate automatic application to drug conspiracy cases, because tax cases often require the presentation of substantial and complex documentation and technical analyses of these materials. Neither Rule 1006 nor Rule 702 permits the use of summary exhibits and testimony here. And while Rule 703 allows an expert witness to base conclusions on previous testimony, it does not afford the expert unlimited license to testify or present a chart that summarizes the testimony of others without first relating that testimony to some specialized knowledge on the expert’s part. Officer Adair did not rely on specialized knowledge in providing his testimony. Rule 1006 is also inapplicable because the summarizing exhibits rely largely on previous testimony, not on the contents of voluminous writings and recordings. Nonetheless, other circuits allow summary witnesses and charts in complex drug conspiracy cases, relying on Rule 611(a), which grants the district court the power to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth. The Tenth Circuit adopted the approach of the Fourth Circuit in United States v. Johnson, 54 F.3d 1150. The circuit looked to whether the summary chart or testimony aids the jury in ascertaining the truth, considering the length of trial, complexity of the case, and accompanying confusion that a large number of witnesses and exhibits may generate for the jury. The circuit also considered the possible prejudice that may result to the defendant, looking specifically to whether the preparer of the chart was available for cross-examination and whether the district court gave appropriate limiting instructions. In this case, the district court did not abuse its discretion in allowing both the charts and summary testimony. The trial lasted 23 days and involved over 50 witnesses testifying about a large number of complex and confusing transactions. The summary testimony and charts aided the jury in ascertaining the truth. Ray’s counsel had sufficient opportunity to challenge the veracity of the charts and testimony, and the district court instructed the jury on the proper use of the testimony and charts.
(4) On appeal of sentencing enhancements, the circuit reviews the sentencing court’s fact findings for clear error and its legal conclusions de novo.
(5) Section 2D1.1(b)(1) requires a district court to increase a sentence if a dangerous weapon was possessed. The enhancement applies if the weapon was present, unless it was clearly improbable that the weapon was connected with the offense. The government bears the initial burden of proving possession by a preponderance. If the government carries its burden, the enhancement is appropriate unless the defendant proves that it is clearly improbable that the weapon was connected with the offense. A gun and drugs were found by police during a search of Ray’s home. Earlier, Ray had sold drugs to an uncover agent. The government satisfied its burden.
(6) Witness credibility is a question for the court.
(7) Section 3B1.1(b) provides a three-level increase in base offense level if the defendant was a manager or supervisor of the criminal activity. There was sufficient evidence to support this enhancement under clear error review.
Harmless Error - Nonconstitutional Standard
Witnesses - Limits on Cross-Examination, Subpoenas
Speedy Trial Act - Not Apply to §851Information to Enhance Sentence
United States v. Vaughn, 02-5206 (June 7, 2004)
Vaughn was one of the defendants in the Bellamy drug conspiracy, as outlined in the circuit’s Ray decision.
HELD: (1) The circuit reviews evidentiary claims for an abuse of discretion. The government bears the burden to show that a non-constitutional error is harmless by a preponderance of the evidence. An error is harmless unless it had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such effect. The circuit reviews the district court’s interpretation of the Speedy Trial Act statute de novo.
(2) Vaughn argues that the district court improperly limited examination of Robertson. A co-defendant’s attorney asked Robertson on recross-examination if he had entered into any agreement with the government. Robertson answered no. Then Vaughn’s counsel sought to ask an additional question as to whether Robertson had an understanding as to whether he would be charged. The district court denied this request as cumulative. Vaughn argues that an agreement and an understanding are not identical. The circuit doubted there was a meaningful distinction between the terms. In addition, the trial court has the duty to assure the proper conduct of trial, and the limits of cross-examination lie within its discretion.
(3) Vaughn also argues the district court erred in limiting his ability to impeach the testimony of Jennifer Natale, by pointing out that she did not mention Vaughn in earlier statements to investigators. The district court denied Vaughn’s attempts to use FBI reports because it found that any alleged omissions in the reports were not inconsistencies, and Natale had not adopted the reports as accurately reflecting her statements to the FBI. Vaughn asked the district court to allow him to subpoena law enforcement officers to investigate the alleged inconsistencies. The district court allowed Vaughn and the government to question FBI Officer Cervantes telephonically to determine the content of his testimony. The district court denied a subpoena request, finding that Cervantes would not testify to inconsistencies but only to understandable omissions. In some instances, an omission may rise to the level of an inconsistency. But the circuit did not decide whether the district court erred in limiting the examination of Natale or in refusing to issue the subpoena. The rulings did not substantially influence the outcome at trial, because the district court allowed lengthy cross-examination, and other witnesses testified to Vaughn’s involvement in the conspiracy.
(4) The circuit held that an information pursuant to §851 does not
charge the commission of a new offense, but merely notifies the defendant of the government’s intention to use a prior offense to enhance his sentence.
Verdict Form - Guilt of Conspiracy or Only the Objects of the Conspiracy
Harmless Error
Conspiracy - Sufficient Evidence
Apprendi - Only Requires a Jury Finding as to Amount of Drugs for Entire Conspiracy, Not Need Specific Finding of Drug Amounts for The Particular Defendant
Mistrial - Conflict of Interest, Need for Evidentiary Hearing
United States v. Stiger, 03-5043 (June 7, 2004)
Stiger is one of the co-defendants in the Ray and Vaughn appeals.
HELD: (1) Stiger argues that the verdict forms were defective. The court reviews verdict forms for abuse of discretion. The district court does not abuse its discretion so long as the charge as a whole adequately states the law. Even if the circuit finds error, it must determine whether the error is harmless.
(2) Stiger urges that the verdict forms did not require the jury to find him guilty of participating in a conspiracy before it decided his guilt as to the object of the conspiracy. So he argues there is no conviction on the conspiracy count. The circuit agreed with Stiger that the verdict forms never required the jury specifically to find him guilty of the over-arching conspiracy. The verdict forms require a finding only as to the objects of the conspiracy. Although the circuit harbored grave doubts about the propriety of these verdict forms, it held that even if it found error, the use of the verdict forms did not substantially influence the outcome of the trial. There were at least 14 witnesses who testified against Stiger. And there was Natale’s extensive and gruesome testimony regarding Stiger’s involvement in her torture.
(3) Stiger argues the district court erred by not requiring the jury to make a specific finding as to the amount of drugs for which he was responsible. The government argued that the verdict form satisfied Apprendi because the jury made a finding as to the total amount of drugs attributable to the conspiracy as a whole, which sets the statutory maximum sentence for any single conspirator. This is an issue of first impression for the circuit, but five other circuits have addressed and without exception have found Apprendi only requires the jury to make a finding beyond a reasonable doubt as to the amount of drugs for which the entire conspiracy is liable. The circuit joined those other circuits. In a conspiracy context, a finding of drug amount for the conspiracy as a whole sets a maximum sentence that each co-conspirator should be given. There was no need, under Apprendi, to make a specific finding as to drug amounts for Stiger.
(4) The court reviews the sufficiency of the evidence de novo, asking whether the evidence, taken in the light most favorable to the government, is such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. Stiger urges that the evidence was insufficient to prove he was a member of the drug conspiracy. He conceded that the conspiracy existed, but argues that the government failed to prove he had a specific intent to join the Bellamy conspiracy. The record wholly belies Stiger’s assertions.
(5) In determining whether to grant a mistrial, the district judge must first determine whether an error has occurred and whether that error impaired the defendant’s right to a fair and impartial trial. The circuit reviews the district court’s refusal to grant a mistrial for abuse of discretion. Stiger’s counsel moved for mistrial based on the fact that attorney Robert Burton visited with him on several occasions about representing him in the case. The visits were unfruitful for Burton as the district court appointed another attorney to represent Stiger. But the district court appointed Burton and his law partner to represent Richard Taylor, one of the co-defendants. Taylor entered a guilty plea prior to Stiger’s arraignment and became a witness for the government. Burton continued to represent Taylor throughout the course of his testimony. Stiger’s trial counsel claims to have not been initially aware of Burton’s conversations with Stiger. When he learned of them, he moved for mistrial based on a conflict of interest. The district court denied the mistrial motion without conducting an evidentiary hearing. Two sources inform whether a district court should disqualify an attorney. First, attorneys are bound by the local rules of the court and second, because motions to disqualify counsel are substantive motions affecting the rights of parties, they are decided by applying standards developed under federal law. The United States District Court for the Northern District of Oklahoma has adopted the Oklahoma rules of professional conduct. A party seeking to disqualify opposing counsel must establish that an actual attorney-client relationship existed between the moving party and the opposing counsel, the present litigation involves a matter that is substantially related to the subject of the movant’s prior representation, and the interests of opposing counsel’s present client are materially adverse to the movant. To show an attorney-client relationship existed, Stiger need not show that the parties executed a formal contract or that he paid fees. He need only show he submitted confidential information to a lawyer ,and did so with the reasonable belief that the lawyer was acting as his attorney. Stiger made a non-frivolous allegation before the district court that Mr. Burton and he had an attorney-client relationship in a substantially related matter. The district court abused its discretion by failing to investigate the allegation further. The circuit remanded this issue to the district court to hold an evidentiary hearing.
(6) Stiger next argues that the district court erred in refusing to sever his trial from those of his alleged co-conspirators because, in particular, the government sought to introduce highly prejudicial evidence of co-defendant Mack’s alleged murdering of two people. Stiger cannot establish reversible error where the government provided extensive evidence of Stiger’s involvement in the conspiracy.
(7) The court reviews a district court’s evidentiary ruling for abuse of discretion. Stiger challenges the testimony of Officer Adair and the admission of five exhibits. See Ray.
(8) Stiger also raises the issue of whether the Speedy Trial Act applies to a §851 information. See Vaughn.
Felon in Possession of Firearm - Enhancement for Connection with Federal Offense
Guideline Interpretation - Judge May Conduct Inquiry, Not Bound by Government’s Position
Acceptance of Responsibility - Use of Drugs While on Pretrial Release
United States v. Gatewood, 03-3163 (June 7, 2004)
David J. Phillips, FPD, Topeka, KS
Gatewood pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He was sentenced to 97 months imprisonment. The district court denied acceptance of responsibility, and enhanced the offense level for possession of three or more firearms and on other bases. Gatewood had entered a plea and, as a part of the plea agreement, the government agreed to recommend a sentence at the low end of the guideline range, recommend a three-level reduction for acceptance of responsibility, and to not request an upward departure as long as the defendant did not request a downward departure. At the change of plea hearing, Gatewood received the government’s petition to revoke his release based on a positive test for methamphetamine. The PSR author recommended that Gatewood not receive the acceptance of responsibility reduction, and recommended the enhancement. At sentencing, the government took the position that Gatewood’s offense level should be reduced for acceptance of responsibility, and did not advocate for the enhancements, stating that information available was of “relatively dubious credibility.” The district court nonetheless called the probation officer, who prepared the report, to explain the basis for her recommendation. The court denied acceptance of responsibility reduction and enhanced the offense level for possession of three or more firearms, possession of a stolen firearm, and possession of a firearm in relation to distribution to methamphetamine.
HELD: (1) In reviewing an application of the guidelines, the circuit reviews the district court’s facts finding for clear error and questions of law de novo. The government generally bears the burden of proof on sentence increases, and the defendant bears that burden for sentence decreases.
(2) Whether a defendant is entitled to acceptance of responsibility is subject to great deference on review. Gatewood pled guilty in a timely fashion, expressed remorse, and the government recommended the reduction. The district court denied the reduction because of Gatewood’s continued use of drugs while on pretrial relief. The circuit held that use of drugs while on pretrial release may be considered in determining whether the defendant has accepted responsibility for his actions. While lying to a pretrial services officers about drug use while on pretrial release may not warrant an upward adjustment for obstructing justice, such conduct may be a factor in determining whether the defendant’s offense level should be reduced under § 3E1.1. Sentencing courts have broad discretion to consider various kinds of information at sentencing. Watts, 519 U.S. 148 (1997); 18 U.S.C. § 366.1; § 6A1.3. Hearsay may be considered as long as it bears some minimal indicia of reliability. A defendant acts in a manner inconsistent with acceptance of responsibility if he falsely denies relevant conduct. The burden is on Gatewood to prove he is entitled to the adjustment.
(3) It is the government’s burden to prove the facts supporting a sentence enhancement. Even so, the determination of the sentence is within the discretion of the sentencing judge. A judge may appropriately conduct an inquiry broad in scope, is not bound by the government’s recommendation and is obliged to consider all conduct relevant to a proper sentence. The court is not foreclosed from independently establishing facts when the government fails to present evidence and the PSR suggests evidence exists that warrant a hire offense level. The court may act within its discretion and investigate issues raised in the PSR. The court’s actions did not shift the burden to the defendant. The evidence bears the necessary indicia of reliability to justify the enhancement for three or more firearms under § 2K2.1(b)(1)(A).
(4) An additional two-level enhancement is proper under § 2K2.1(b)(5) if the defendant used or possessed any firearm or ammunition in connection with another felony offense. If the weapon facilitated or had the potential to facilitate the underlying felony, the enhancement is proper. The enhancement is not appropriate if the possession is coincidental or entirely unrelated. The weapon’s proximity to narcotics may be sufficient to provide the necessary nexus. An enhancement may apply even when the alleged felony offense occurred weeks or months before the date of the original offense.
(5) In addition, Gatewood pled guilty to unlawful possession of firearms. The records support the findings that this possession facilitated or had the potential to facilitate his distribution of methamphetamine.
Motion to Vacate Sentence (28 U.S.C. § 2255)
Certificate of Appealability - Liberally Construed, Broad Enough to Reach Issues
Procedural Default - Ineffective Assistance of Counsel
Ineffective Assistance of Counsel - Guilty Plea
United States v. Harms, 03-6231 (June 10, 2004)
(Vicki Mandell-King, FPD, Denver, Colorado)
Harms appeals from the district court’s denial of his § 2255 motion to vacate sentence. In December, 2000, he had pled guilty to a two-count indictment charging him with using a computer linked to the internet to entice a minor to engage in sexual activity, 18 U.S.C. § 2422(b), and receipt of child pornography that was transported in interstate commerce by computer. 18 U.S.C. § 2252(A)(a)(2)(B). He was sentenced to 51 months imprisonment on each count to run concurrently. He took no direct appeal. Following his plea and sentencing, the Supreme Court issued its decision in Ashcroft v. Free Speech Coalition. That decision held unconstitutional § 2256(8)(A) and (D), part of the Child Pornography Prevention Act of 1996 (CPPA). These provisions included in the definition of child pornography images created without involvement of actual children. The Supreme Court found that the prohibition of such “virtual” child pornography violated the First Amendment. Subsequently, Harms filed a § 2255 motion seeking to have his conviction for receipt of child pornography (count 2) vacated on the basis of Free Speech Coalition. The district court denied the motion, holding that Harms could not satisfy the cause-and-prejudice standard to overcome procedural default of the claim. The district court denied a certificate of appealability. A single circuit judge granted the COA to review the claims raised in Harms’ pro se brief.
HELD: (1) The court found no need to reach the retroactivity issue.
(2) When reviewing a district court’s denial of a § 2255 petition, the court reviews questions of law de novo and questions the facts for clear error. The refusal to hold an evidentiary hearing is reviewed for an abuse of discretion.
(3) The government claims the COA was improvidently granted. This court has held that an erroneously-issued certificate does not deprive the court of jurisdiction. But that view is no longer correct under Miller-El v. Cockrell (S.Ct. 2003). Nonetheless, the circuit rejected the government’s argument. Given the liberal construction of pro se pleadings and the wording of the grant of the COA, the COA is broad enough to encompass the claims as articulated by counsel. In addition, his claims, as set forth by himself and by counsel, make the same basic argument, that had Harms been aware that possession of virtual child pornography was not a criminal offense, he would not have pleaded guilty.
(4) The circuit had to consider whether Harms could overcome procedural bar by showing cause and prejudice or a fundamental miscarriage of justice. A meritorious claim of ineffective assistance of counsel constitutes cause and prejudice for purposes of surmounting the procedural bar. A successful claim of ineffective assistance of counsel must meet the two-prong test set forth in Strickland v. Washington of deficient performance and prejudice. The prejudice prong, in the context of a guilty plea, requires a defendant to show that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Harms contends that his counsel was ineffective in failing to advise him of a potential distinction between actual and virtual child pornography. At the time Harms entered his plea, most circuits had rejected the argument. The circuit held the failure to advice Mr. Harms of this potential argument does not rise to the level of constitutionally ineffective assistance. The Sixth Amendment does not require counsel to be clairvoyant or to raise, or even be cognizant of, all potential defenses. Counsel was not deficient.
(5) Nor can Harms demonstrate actual prejudice. At oral argument, the government advised the court that the images had been destroyed and are no longer available for examination. Harms did not put forth any evidence to show that, if he had been advised of the distinction, he would have chosen to go to trial. He never claimed that all the many images he possessed were of virtual of and not real children. The circuit distinguished its prior Glover decision.
Sufficient Evidence - Review Standard
Conspiracy (Drugs) - Elements
Expert Witnesses
Instructions - Alternate Suspect
Ineffective Assistance of Counsel - Raise in Collateral Attack
United States v. Arras and Ruiz, 02-2341 and 02-2342 (June 14, 2004)
Ruiz and Arras were charged with conspiracy to import more than 100 kilograms of marijuana and conspiracy to possess with intent to distribute the same. After trial, both were found guilty.
HELD: (1) Sufficiency of the evidence is a question of law reviewed de novo. To prove a drug conspiracy, the government must prove that the defendant agreed with two or more persons, knew the essential objective, knowingly and voluntarily became part of the conspiracy, and that there was interdependence among the conspirators. Since Apprendi, the government must allege the quantity of drug and prove the quantity beyond a reasonable doubt for purposes of the statutory maximum. The circuit held this was a close case, but the evidence was sufficient.
(2) Agent Shaw was an experienced customs agent. The government submitted written notice that it intended to call Agent Shaw as an expert witness and filed a motion in limine for a ruling on admissibility of his testimony. There was no objection. He estimated the total amount of marijuana smuggled based on his education and experience and there was no objection. The court would not consider this argument absent plain error. Expert witnesses need not be qualified in front of the jury. The district court did not abuse its discretion in the way it determined the agent’s qualifications.
(3) The defendants’ theory was that Nielsen blamed them to cover for her boyfriend who had accompanied her on these trips and to cover her Denver connection for drugs. The defendants objected to the court’s proposed instruction to the jury that it consider only the crimes charged and not be concerned with the guilt of anyone not on trial. The circuit reviews for abuse of discretion the district court’s decision to give a particular jury instruction, and the considers the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law. In this case, the district court did not direct the jury to ignore the defenses’ cover-up theory in giving this instruction.
(4) In effective assistance of counsel claims should be raised in collateral proceedings.
Bail Reform Act - Detention Hearing
Crime of Violence - Certain Provisions of 18 U.S.C. § 922(g)
United States v. Rogers, 03-4153 (June 15, 2004)
The district court concluded that the United States was not entitled to a hearing under 18 U.S.C. § 3142, to determine whether Rogers should be detained pending trial on charges of 1) possession of a firearm while subject to a protective order, in violation of § 922(g)(8), and 2) possession of a firearm following a misdemeanor conviction of domestic violence, in violation of § 922(g)(9). According to the district court, the crimes in the indictment were not “crimes of violence.” The circuit held that such violations are crimes of violence, entitling the United States to a detention hearing upon its request.
HELD: (1) Construction and applicability of a federal statute is reviewed de novo. Each of the crimes here are felonies. Both are crimes of violence. The circuit discussed holdings of other courts that § 922(g)(1) is not a crime of violence. The circuit distinguished subsections (g)(8) and (9) from (g)(1). The circuit held that its conclusion – that possession of a firearm in violation of these provisions is a crime of violence for purposes of the Bail Reform Act – is not contrary to the circuit’s earlier decision in Lucio-Lucio, interpreting the term “aggravated felony” and finding that felony driving while intoxicated was not a crime of violence. The crimes in subsections (g)(8) and (9) are more like burglary than DUI. Because these crimes are crimes of violence, the government was entitled to a detention hearing. The circuit reversed and remanded to the district court to order Rogers detained pending trial.
Downward Departure - District Court Unambiguously States It Lacked Discretion, Jurisdiction of Appellate Court, Diminished Capacity Governed by §5K2.13
United States v. Sheehan, 03-4239 (June 15, 2004)
Sheehan pled guilty a Hobbs Act robbery and two counts of using and caring a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The district court denied his motion for downward departure based on a defense expert’s report that he suffered from an acquired brain injury and seizure and mood disorders.
HELD: (1) Ordinarily, a district court’s refusal to exercise its discretion and depart downward from the guidelines is not appealable. But here, because the district court unambiguously stated it had no discretion to depart pursuant to § 5K2.0, based on a defendant’s diminished capacity, the circuit held it had jurisdiction, but nonetheless affirmed the sentence.
(2) The circuit reviews de novo the district court’s interpretation that the guidelines provide no power to depart downward from the prescribed sentencing range. Section 5H1.3 states that mental and emotional conditions are “not ordinarily relevant.” Section 5K2.0 states that an offender characteristic, that is “not ordinarily relevant,” may be relevant if such characteristic is present to an unusual degree and distinguishes the case from the heartland cases. Under § 5K2.13, a downward departure may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. The court may not depart if this reduced mental capacity was caused by the voluntary use of drugs, the facts and circumstances of the offenses indicate a need to protect the public because the offense involved actual violence or serious threat of violence, or the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public. Sheehan was ineligible for the departure under §5K2.13, because his offense involved actual violence or serious threat of violence. In other circumstances, a sentencing court may depart based on mental or emotional condition pursuant to §5K2.0, but “diminished capacity” departures are governed solely by §5K2.13. The district court properly concluded it had no discretion pursuant to §5K2.0 to depart based on diminished capacity when such departure was prohibited by the terms of §5K2.13.
Admission of Evidence - Discretion
Sufficient Evidence - Review Standard
Attempt to Manufacture Methamphetamine - Elements, Not Need Full Working Lab
United States v. Haynes, 03-2086 (June 16, 2004)
Haynes was convicted of attempting to manufacture less than 5 grams of methamphetamine.
HELD: (1) The circuit reviews evidentiary challenges for an abuse of discretion. The district court did not abuse its discretion in admitting Haynes’ statement that he knew a woman who manufactured methamphetamine using the P2P method.
(2) The circuit reviews the record for sufficiency de novo, asking if a reasonable jury would find the defendant guilty beyond a reasonable doubt, taking the evidence in the light most favorable to the government. To prove an attempt to manufacture methamphetamine, the government must show intent to manufacture, and commission of an act which constitutes a substantial step towards commission of the substantive offense. The evidence at trial suggested that P2P has only one use – the manufacture of methamphetamine. Haynes’ false exculpatory statement can support an inference of consciousness of guilt. A defendant need not possess a full working lab to be convicted of attempt to manufacture methamphetamine.
Appellate Jurisdiction - Excusable Neglect for Late Notice of Appeal
United States v. Torres, 03-2182, 03-2241 (June 16, 2004)
Torres pleaded guilty to conspiring to possess with intent to distribute more than 500 grams of cocaine. He reserved his right to appeal the denial of a motion to suppress. He did not file a timely notice of appeal. The circuit partially remanded to the district court for a finding of excusable neglect. The district court so found. The two appeal numbers reflect this process. The circuit dismissed both appeals for lack of jurisdiction because the district court abused its discretion in finding that the untimely filing of the notice of appeal was due to excusable neglect. Although the
government has not challenged jurisdiction, it is the duty of the federal court to determine the matter sua sponte.
HELD: (1) The court of appeals acquires jurisdiction of an appeal only upon the filing of a timely notice of appeal. The requirement is mandatory and jurisdictional. Rule 4 provides that, upon a finding of excusable neglect or good cause, the district court may extend the time to file a notice of appeal for a period not to exceed thirty days from the expiration of the time otherwise prescribed by Rule 4(b), F.R.A.P. When a district court grants an extension for excusable neglect, filing a notice of appeal within the 30-day extension allowed by the rule establishes appellate jurisdiction. A trial court’s findings should not be overturned on appeal unless there has been a clear abuse of discretion. The circuit discussed Pioneer Investment Services Company (507 U.S. 380, 1993). The Supreme Court’s construction of “excusable neglect” in Pioneer applies to that term in Rule 4(b)(4). Therefore, the circuit held the district court abused its discretion in finding excusable neglect. Three of the circumstances in Pioneer weigh in favor of a finding of excusable neglect – the defendant filed his notice of appeal only eighteen days after the entry of judgment, it does not appear the government would be prejudiced, and there is no indication that defense counsel acted in bad faith. Nonetheless, fault in the delay remains a very important factor in determining whether neglect is excusable. The reason for the delay was that defense counsel confused the filing deadlines for civil and criminal appeals. In Pioneer, the Supreme Court said that inadvertence, ignorance of the rules, or mistakes do not usually constitute excusable neglect. Therefore, the district court abused its discretion and the circuit lacks jurisdiction.
Standing -Reasonable Expectation of Privacy, Overnight Guest, Social Guest
Search of Home Without Warrant – Exigent Circumstances (Not Motivated by Intent to Arrest or Seize Evidence), Need to Protect
Plain View
United States v. Thomas, 03-5041 (June 18, 2004)
Barry L. Derryberry, Paul D. Brunton, Jack Schisler, FPD, Tulsa, Oklahoma
Thomas was convicted of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
HELD: (1) Fourth Amendment “standing” refers to whether the party challenging a search or seizure had a legitimate expectation of privacy. Review is de novo. Overnight guests have a reasonable expectation of privacy in the home of their host. Even social guests who do not stay the night have a reasonable expectation of privacy. Thomas may challenge the search of his aunt and uncle’s home. He was there as a social guest to celebrate New Year’s Eve. He planned to spend the night there.
(2) Absent exigent circumstances, the firm line at the entrance to the house may not reasonably be crossed without a warrant. The circuit reviews de novo whether exigent circumstances justified a warrantless entry into a home. The type of exigent circumstance to justify a warrantless entry into a home include hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a suspect’s escape, or risk of danger to police or others inside or outside the home. In the risk of personal danger case, officers must have reasonable grounds to believe there is an immediate need to protect the lives or safety of themselves or others, the search must not be motivated by an intent to arrest or seize evidence, and there must be some reasonable basis, approaching probable cause, to associate the emergency with the place to be searched. The officers faced a situation in which there were firearms inside the house, it was unclear how many people were inside, and circumstances gave rise to a reasonable fear firearms may be used against the officers or others. The warrantless entry was therefore justified by exigent circumstances. The Fourth Amendment does not require police officers to delay in the course of an investigation if, to do so, would gravely endanger their lives or the lives of others.
(3) Under the plain view doctrine, police may seize evidence of a crime if the officer was lawfully in a position from which the object seized was in plain view, the object’s incriminating character was immediately apparent, and the officer had a lawful right of access to the object. The circuit reviews de novo the validity of a seizure of evidence under the plain view doctrine. Once lawfully present in a home due to exigent circumstances, the plain view doctrine applies, and police may seize incriminating evidence found in plain view. The gun was in plain view. There was probable cause to believe that Thomas had used the gun to commit one or more state law offenses, and the gun served as evidence of those crimes.
Felon in Possession of Firearm - Interstate Nexus Must Be Proved for the Relevant Conduct
Scope of Remand
United States v. Campbell, 03-8069 (June 18, 2004)
Campbell pled guilty to felon in possession of firearms. The district court enhanced his offense level by four levels pursuant to § 2K2.1(b)(1)(B) for 8-24 firearms. The defendant argued that the uncharged rifle could not be included as relevant conduct for sentencing because the government had not proved it had been in interstate commerce. The district court had decided there was no need for the government to prove the interstate nexus. The defendant appealed and the government admitted its error below and agrees that the district court committed legal error.
HELD: (1) The circuit reviews the district court’s interpretation of the guidelines de novo. In holding that, because the defendant was a prohibited person, his possession of any firearm was unlawful regardless whether it had previously affected interstate commerce, the district court erred. The question is whether the possession of the Marline rifle was unlawful. One way to establish the interstate nexus is proof that the firearm at some point was transported in interstate or foreign commerce. The government concedes that it never alleged or proved this.
(2) Although the general rule is that a remand for re-sentencing allows the district court to conduct a de novo review, the circuit limited its remand to the record as it stands. The government has the burden of proving sentence enhancements and increases. The government failed to meet its burden of proof on the interstate nexus element. The circuit would not give the government a second bite at the apple. A reversal and remand does not invite an open season for the government to make the record it should have made in the first instance.
Motion to Vacate Sentence (28 U.S.C. § 2255)
Certificate of Appealability
Ineffective Assistance of Counsel - Privately Retained, Strickland Test
United States v. Sanders, 04-7000 (June 21, 2004)
Sanders was convicted of felon in possession of a firearm and other charges. He filed a motion to vacate sentence alleging ineffective assistance of counsel.
HELD: (1) The circuit may issue a certificate of appealability only if a petitioner has made a substantial showing of a denial of a constitutional right. He can make this showing by establishing that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Petitioner’s claim is whether counsel was ineffective in failing to file a motion to suppress evidence obtained pursuant to an allegedly defective search warrant, failure to argue the evidence supported only guilt of simple possession rather than possession with intent to distribute, and failure to further object to the PSR and to further request of downward departure.
(2) The district court relied on an earlier Tenth Circuit case that a claim of ineffective assistance cannot be raised against privately retained counsel. This is no longer the law under Cuyler v. Sullivan (S.Ct.).
(3) To prevail on an ineffective assistance claim, petitioner must demonstrate deficient performance and prejudice. The petitioner must overcome the strong presumption that counsel’s conduct falls within the wise range of reasonable professional assistance. Prejudice is shown by demonstrating that there is a reasonable probability that, bur for counsel’s unprofessional errors, the result of the proceeding would have been different. The circuit held that petitioner failed to establish a debatable claim of ineffective assistance. Because of inadequacies in the record, the circuit had no basis on which to conclude that the failure to move for suppression was objectively unreasonable. Defense counsel’s strategy was to deny possession of the methamphetamine found on the petitioner’s property. An argument based on simple possession would have been inconsistent with the strategy. The alleged failure to object to the PSR on the basis of Amendment 599 was rejected by the circuit because that amendment had nothing to do with the Armed Career Criminal Act and § 4B1.4. Because the petitioner has asserted no basis for a downward departure motion, he has not shown error or prejudice in this regard.
Appeal Waiver
United States v. Arevalo-Jimenez, 02-2335 (June 22, 2004)
Jimenez entered into a plea agreement to unlawful reentry after previously being convicted of a felony. The plea agreement provided that he knowingly waived the right to appeal any sentence within the guidelines, as determined by the court after resolution of any objection by either party to the PSR. Nonetheless, Jimenez appealed the district court’s ruling that certain misdemeanor convictions, in which the record is silent on whether Jimenez was represented, are included in his criminal history.
HELD: (1) In Hahn, the circuit adopted a three-prong analysis for reviewing appeals brought after such a waiver. The circuit is to determine whether the disputed appeal falls within the scope of the waiver, whether the defendant knowingly and voluntarily waived his appellate rights, and whether enforcing the waiver would result in a miscarriage of justice. Hahn was decided after this appeal was briefed. The appeal falls within the scope of the waiver. The district court’s statements at sentencing did not modify the broad language of the waiver. Part of the agreement was that there would be no modification of the waiver without a written and signed agreement. The waiver was knowing and voluntary. Jimenez bears the burden of proof on this issue. Enforcing the waiver would not be a miscarriage of justice. The circuit considers the four scenarios in Hahn – where the district court relied on an impermissible factor such as race, where ineffective assistance of counsel renders the waiver invalid, where the sentence exceeds the statutory maximum, or where the waiver is otherwise unlawful. Jimenez does not argue that any of these circumstances exists. The appeal was dismissed.
Exculpatory Evidence
Possession - Constructive, Instructions
Failure to Object - Plain Error
United States v. Lopez, 02-1142 (June 23, 2004)
Lopez was convicted of felon in possession of two firearms. He filed a motion for new trial, claiming the government failed to disclosed exculpatory impeachment evidence.
HELD: (1) Prior to trial, Lopez filed his Brady/Giglio motion. If a new trial motion is based on an alleged Brady violation, the court reviews the district court’s decision de novo. Lopez must demonstrate that the prosecution suppressed evidence that was favorable to him and was material to defense. The circuit will reverse only if the suppressed evidence denied the defendant a fair trial. The circuit will review the district court’s fact findings on this for clear error. The district court made extensive findings that are supported on the record, and found that Lopez had failed to demonstrate that the government had suppressed evidence.
(2) Lopez complained about the jury instruction regarding constructive possession. Because he did not object, review is for plain error. Under any standard, there was no error. In Culpepper, this court reaffirmed its twenty-year holding that a person has constructive possession of an item when he knowingly holds power and ability to exercise dominion and control over it. In some instances, exercising dominion and control over a residence where contraband is concealed may constitute constructive possession. In cases involving joint occupancy of a place, mere control or dominion over the place in which the contraband is found is not sufficient. The government is required to present direct or circumstantial evidence to show some nexus or connection individually linking the defendant to the contraband. While there is some confusion, the circuit held that control or dominion over the premises is a factor but not a requirement, so that the district court’s omission of the words “in the premises where it is found” was not error.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA Standards
Sufficient Evidence
State Law - Elements
Valdez v. Bravo, 03-2102 (June 25, 2004)
Roger A. Fincel, FPD, Albuquerque, New Mexico
Valdez filed a petition for writ of habeas corpus, claiming the evidence was insufficient to support a conviction as accessory to second degree murder. The district court granted relief and the circuit reversed.
HELD: (1) This habeas petition is governed by the standard set forth in the AEDPA and its standard of review.
(2) A district court decision setting aside a jury verdict of guilt is entitled to no deference on appeal and is reviewed de novo – whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The court looked to New Mexico law to determine the substantive elements of the crime. The circuit held the evidence was constitutional sufficient to support the finding of accessory liability. The district court overturned the conviction based on a perceived lack of intent evidence. The circuit held that the evidence was such that the jury could have reasonably inferred an intent to aid or abet second degree murder.
Habeas Corpus (28 U.S.C. § 2254)
Certificate of Appealability
Lesser Included Offense Instruction - Non-Capital Case, Denial of Fair Trial
Sufficient Evidence Question of Fact or Law
Dockins v. Hines, 04-6030 (June 29, 2004)
Dockins was convicted of second burglary and possession of drug paraphernalia. He appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his conviction. Then he sought habeas relief, denied by the district court.
HELD: (1) The AEDPA applies. One question is whether, in light of Miller-Lel v. Cockrell, federal courts should incorporate § 2254's strong deference for state court decisions into the preliminary evaluation of a request for a
certificate of appealability. The circuit determined to incorporate the AEDPA deference into COA decisions.
(2) Turning to the merits, Dockins claimed that the trial court improperly refused a request for a jury instruction on the lesser included offense. The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases. The circuit’s precedents establish a rule of automatic nonreviewability for claims, based on a state court’s failure, in a non-capital case, to give a lesser included offense instruction. A claim of an erroneous jury instruction may set aside a state conviction on habeas only if the error rendered the trial so fundamentally unfair as to cause a denial of the constitutional right to a fair trial.
(3) When reviewing the sufficiency of the evidence in a habeas act, the court asks whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements beyond a reasonable doubt. The circuit has never settled whether to treat sufficiency of the evidence issues on habeas as a question of law or fact. Again, the circuit did not decide the question because under either standard, Dockins is not entitled to habeas relief.
(4) Federal courts will not review issues of purely state law.
(5) The circuit also denied the claim of ineffective assistance of counsel.
(6) The claim of inadequate prison law library was not presented to the federal district court and the circuit would not consider it.
Amount of Drugs - Agreed Upon or Sold
Sentencing (Rule 32) - Resolve Disputed Facts
Obstruction of Justice - Abscond
Downward Departure - Substantial Assistance (Government Motion)
Drug Conspiracy - Withdrawal, Overt Act Not Required
United States v. Williams, 02-2084 (June 30, 2004)
Phillip P. Medrano, FPD, Albuquerque, New Mexico
David Williams was the subject of a reverse sting operation by the DEA, and was convicted of drug charges. Williams pleaded guilty in 1997 to attempted possession and conspiracy to possess a control substance with intent to distribute. After agreeing to assist the DEA, he filed an unopposed motion for relief. The district court granted that motion, imposing specific conditions. Williams fled after having cooperated for a time. When he was apprehended, he claimed that his cooperation had resulted in threats upon his life which forced him to flee, but that, even while absent from the country, he provided assistance to the United States. Prior to sentencing, Williams learned the United States would not move for a downward departure for substantial assistance. He filed a motion to withdraw his guilty plea. The district court voiced its opinion that the government’s refusal to file a motion for downward departure was unduly hard on Williams, and granted the motion to withdraw plea and the matter proceeded to trial. The jury found Williams guilty of the original charges.
HELD: (1) In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity is used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. Williams objected to the PSR figure of 2,500 pounds. This is reviewed under the clear erroneous standard. But the district court made no judicial finding, and instead just rejected Williams’ argument and said that he could appeal to the Tenth Circuit. The circuit held that this is not a judicial determination, particularly where the evidence is an equipoise and the parties are deeply divided.
(2) The district court is required under Rule 32 to resolve disputed sentencing factors. The court must make a ruling on disputed portions. It is insufficient to merely adopt the factual findings and guideline applications of the PSR.
(3) Williams objected to the 2-level enhancement for obstruction of justice based on absconding. The court reviews the interpretation of the guidelines de novo. The circuit agreed with the district court that Williams had absconded and obstructed justice.
(4) Williams urges error in denying the downward departure in a multi-tiered argument. First, he claims the government breached the original plea agreement by not filing the motion for downward departure. But Williams cannot claim the benefits of an agreement terminated upon his own request. The court reviews whether the government breached an agreement de novo, but the agreement left the decision on filing a motion for downward departure in the sole discretion of the government. And if Williams truly believed the government had violated the agreement, he could have sought to enforce it rather than withdrawing his guilty plea and going to trial.
(5) As a general rule a district court has no authority to consider a substantial assistance claim unless there is a motion by the government. Even if Williams were able to seek a downward departure, his flight, failure to appear and other circumstances justified the denial of a downward departure.
(6) At trial, Williams requested a jury instruction on the affirmative defense of withdrawal of conspiracy. The district court held that, if a conspiracy existed, it was completed once Williams provided a $5,000 down payment, and that therefore Williams could not withdraw from a completed conspiracy. Whether the jury should have been instructed is a question of law reviewed de novo. Drug conspiracies do not require the government to prove an overt act. Therefore, withdrawal cannot relieve a defendant of criminal responsibility for conspiracy under § 846, though withdrawal may limit a defendant’s liability in certain circumstances. The district court did not err.