TENTH CIRCUIT DECISIONS
APRIL 2005
Sufficient Evidence - Review Standard
Conspiracy - Elements
Apprendi - Government Must Prove Co-Conspirators Agreed to Distribute Specific Quantity of Drugs
United States v. Dunmire, 04-3002 (April 5, 2005)
Dunmire was indicted for knowing and intentional distribution of 2.97 grams of crack cocaine, and for conspiracy to distribute in excess of 50 grams of crack. The case was tried to a jury and the Dunmire was found guilty on both counts. Special interrogatories provided the opportunity for the jury to determine the quantity involved in the conspiracy count. The first question was whether the government proved beyond a reasonable doubt that Dunmire conspired to distribute more than 50 grams. The jury marked the “no” box. The second question was similar but regarded a lesser quantity, more than 5 grams but presumably less than 50 grams. The jury marked “yes.” Dunmire appeals: the question is whether the government proved beyond a reasonable doubt that she agreed to distribute five or more grams of crack.
HELD: (1) Whether the government has presented sufficient evidence to support a conviction is a legal conclusion reviewed de novo. The court considers the record in the light most favorable to the government.
(2) To support a conviction of conspiracy, the government must show an agreement, knowledge by the defendant of the essential elements, knowing and voluntary involvement with the conspiracy, and interdependence among the conspirators. Elements of the crime may be established by circumstantial evidence. The only evidence establishing a connection between Dunmire and Sharkey consisted of her presence at Sharkey’s house on a particular date and her participation in the drug sale of 2.97 grams of crack. The government presented considerable evidence of other drug deals directly involving Sharkey, during which Dunmire was not present. To conclude that Dunmire delivered drugs on another occasion would have required speculative inference upon speculative inference.
(3) Since Apprendi, the circuit has only decided one sufficiency of the evidence case as relates to conspiracy to distribute drugs. In Arras, the circuit had stressed that the government had to prove, beyond a reasonable doubt, that the alleged conspirator agreed to distribute a certain quantity of drugs. In light of Arras, the facts in this case do not support a finding beyond a reasonable doubt that Dunmire agreed to distribute five or more grams of crack. In Arras, the evidence was sufficient, but here it was held to not be sufficient.
Indictment - Challenge After Appeal Under Rule 12 Was Untimely and Barred
Motion to Vacate Sentence (28 U.S.C. § 2255) - No Abuse of Discretion in Failing to Treat Rule 12 Motion as Late or Successive § 2255 Motion
United States v. Valadez-Camarena, 04-2113 (April 5, 2005)
In 1997, a grand jury indicted Valadez on charges of conspiracy and possession of cocaine with intent to distribute. After a mistrial, Valadez moved to dismiss the indictment on double jeopardy grounds. The motion was denied and he filed an interlocutory appeal. Following conviction, Valadez filed another appeal challenging the sufficiency of the evidence. The circuit affirmed in both appeals. In May 2002, Valadez filed a motion titled “validation of indictment” and “production of public records. “The district court concluded this motion was untimely.
HELD: (1) The circuit agreed that the motion was untimely under Rule 12(b)(3) and barred under Rule 12(e). Valadez never asserted good cause to excuse the waiver.
(2) The district court considered whether to construe the challenge to the indictment as a motion to vacate sentence, but decided not to do so because the motion would be barred as untimely or as a second or successive § 2255 motion. The district court’s decision was not an abuse of discretion.
Jurisdiction - Collateral Order Doctrine
Juveniles - Transfer to Adult Status
United States v. McQuade Q. (a juvenile), 04-2145 (April 5, 2005)
(Alonzo J. Padilla, FPD, Albuquerque, New Mexico)
The government filed a sealed superseding information charging McQuade Q., a juvenile, with two counts of aggravated sexual abuse in violation of the Federal Juvenile Delinquency Act. The government moved to proceed against McQuade Q. as an adult. The district court held an evidentiary hearing and found that transferring McQuade Q. to adult status would be in the interests of justice.
On appeal, McQuade argues that the district court erred in failing to give proper weight to the factors in 18 U.S.C. § 5032.
HELD: (1) The circuit had jurisdiction under the collateral order doctrine, and reviews the district court’s decision for an abuse of discretion. Review of § 5032 transfer decisions is highly deferential. A district court abuses its discretion in transferring a juvenile to adult status when it fails to make the required fact findings or when its fact findings are clearly erroneous.
(2) The purpose of the federal juvenile process is to remove juveniles from the ordinary criminal process, so as to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation. This must be balanced against the need to protect the public from dangerous individuals. Section 5032 provides six factors to guide the district court in determining whether transfer to adult status is in the interests of justice. A district court must consider and make findings with respect to each factor, but it is not necessary to give equal weight to each factor. The circuit held the district court did not abuse its discretion in granting the government’s motion to transfer McQuade Q. to adult status.
Motion to Vacate Sentence (28 U.S.C. § 2255) - Fact Findings Were Necessary
Right to Appeal - Ineffective Assistance
United States v. Garrett, 03-6176 (April 6, 2005)
Garrett entered a plea of guilty and waived his right to appeal or collaterally challenge his sentence, except in limited circumstances. No direct criminal appeal was taken. Garrett filed a § 2255 motion claiming that counsel was ineffective for failing to file an appeal. Garrett claims he specifically requested his attorney to file a notice of appeal and the attorney refused. The government provided an affidavit from Garrett’s attorney, who had a different version of the discussion.
The district court decided the § 2255 motion, without engaging in fact finding on the question of whether Garrett had asked the attorney to file a notice of appeal. The district court denied the motion based on the appeal waiver.
HELD: (1) A defendant who explicitly instructs his attorney not to file an appeal cannot later complain that counsel performed deficiently. On the other hand, a lawyer who fails to follow a defendant’s express instructions to file a notice of appeal acts in a manner that is professionally unreasonable. If counsel does not file the requested appeal, a defendant is entitled to a new appeal without a showing that his appeal likely would have had merit.
(2) Given the importance of plea bargaining, the court will generally enforce plea agreements and their waivers of appellate rights. The waiver does not necessarily bar a § 2255 motion based on counsel’s failure to file a requested appeal.
(3) The district court did not resolve the factual disputes between counsel and Garrett, choosing simply to rely on the waiver of right to appeal. But this cannot be reconciled with the Supreme Court Flores-Ortega decision or circuit precedent. If Garrett did ask counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal. This is true, regardless of whether it appears the appeal will not have any merit.
Motion to Suppress - Review Standard
Reasonable Suspicion - Refusal to Consent Cannot Be a Basis, Nervousness, Travel Plans, Locked Bag, Prior Record, Totality of Circumstances
United States v. Santos, 03-8059 (April 6, 2005)
(James H. Barrett, FPD, Cheyenne, Wyoming)
This case involves a routine traffic stop. The district court denied a motion to suppress. Santos entered a conditional plea of guilty arguing that the trooper did not have reasonable suspicion for a police officer to detain him pending the arrival of a drug dog.
HELD: (1) Review of whether an officer had reasonable suspicion is de novo. But the court must uphold fact findings made in connection with a motion to suppress unless the findings are clearly erroneous, and must review the evidence in the light most favorable to the district court. Courts must defer to the ability of a trained law enforcement officer. The question is whether the trooper had reasonable suspicion to justify that detention.
(2) Santos argues that it was his refusal to allow a search of the suitcase
that formed the basis of the trooper’s suspicion. This argument is not without support in the record. The district court was wrong in stating that the trooper could consider this. A refusal to consent to search cannot itself form the basis for reasonable suspicion.
(3) But this is not what happened. The district court listed some nine factors that, taken as a totality, supported reasonable suspicion. The refusal to consent to search the suitcase was not among those. The circuit would consider these reasons in order, but the ultimate question is whether, taken as a whole, they support a finding of reasonable suspicion. Nervousness is sufficiently common but is of limited significance.
(4) Implausible travel plans can contribute to reasonable suspicion. But the circuit declined to read its earlier decision in McRae as holding that the mere existence of a rental agreement, with an anticipated return date earlier than the travel plans would make convenient, without more, supports the finding of reasonable suspicion.
(5) Several factors invoked by the district court relate to Santo’s vague or inconsistent answers about travel plans. The circuit accepted that characterization, but held that a conversation of this sort is not sufficient, in and of itself, to warrant a detention.
(6) Another factor was travel between drug sources and destinations. The government acknowledges this factor is weak.
(7) The next factor is Santos’ prior criminal record involving drugs. The circuit held that prior criminal history is, by itself, insufficient to create reasonable suspicion. Even people with prior convictions are not roving targets for warrantless searches.
(8) The last factor was that the suitcase was locked, but neither the district court nor the government offered any legal support for the proposition that a lock may be a factor creating reasonable suspicion. Deference to law enforcement officers is inappropriate when an officer relies on a circumstance that is free of associations with criminal activity.
(9) Although the court separately examined each of the factors, it would be legal error to employ a divide-and-conquer strategy. The circuit had to consider the factors as a whole. Doing so, the circuit could not say that the trooper’s suspicion was unreasonable, and affirmed the denial of the motion to suppress.
Booker Error - Constitutional and Non-Constitutional Error, Not Structural Error, Plain Error-Review
Almendarez-Torres - Still the Law
Plain-Error Review - as Applied to Booker
United States v. Gonzalez-Huerta, 04-2045 (April 8, 2005)(en banc)
(Jenine M. Jensen, FPD, Denver, Colorado)
Gonzalez-Huerta pleaded guilty to illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a)-(b)(2). In sentencing him, the court did not rely upon judge-found facts, but did apply the guidelines in a mandatory fashion. On appeal, Gonzalez-Huerta raises, for the first time, error under Booker. This is therefore reviewed for plain error.
HELD: (1) Gonzalez-Huerta argued that Blakely calls into question the Supreme Court’s ruling in Almendarez-Torres. The Booker opinion envisions Almendarez-Torres as good law.
(2) In Booker, the Supreme Court reaffirmed its holding in Apprendi that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum (authorized by the facts established by a plea of guilty or jury verdict) must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Mandatory application of the guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to enhance a sentence. As its remedy, the court severed two provisions of the Sentencing Reform Act which had made imposition of the guidelines sentence mandatory. Courts are still required to consider the guidelines, but are no longer required to impose a sentence within the guideline range.
(3) There are two types of error that a court, sentencing prior to Booker, could make. First, a court could err by relying upon judge-found facts to enhance a sentence. The Sixth Amendment prohibits this practice. This is constitutional Booker error. Second, a court could err by applying the guidelines in a mandatory fashion, rather than in a discretionary way, even though the resulting sentence was calculated solely upon facts admitted by the defendant, or found by the jury, or based upon the fact of a prior conviction. While this type of sentence does not violate the Sixth Amendment, such sentence is impermissible and is considered non-constitutional Booker error.
(4) Mandatory use of the guidelines does not violate due process. Hicks v. Oklahoma.
(5) The first two prongs of plain-error review are satisfied. A sentence under mandatory guidelines is error under Booker that is plain at the time of the appeal.
(6) To satisfy the third prong, the error must have affected the outcome of the proceedings. The appellant bears the burden of making this showing. This error can occur during sentencing. To meet the burden, the appellant must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. Dominguez-Benitez (S.Ct.).
(7) Mandatory application of the guidelines does not constitute structural error.
(8) Nor is Booker error presumed prejudicial under Olano, for purposes of satisfying the third prong of plain-error review. Placing the burden on the appellant is essential to distinguish plain error from harmless error. The latter is preserved error.
(9) The court did not determine whether Gonzalez-Huerta satisfied the burden under the third prong, because he had to also satisfy the fourth prong of plain-error review. As to that, even assuming substantial rights were affected, the court will not exercise its discretion to correct the error unless it seriously affected the fairness, integrity, or public reputation of judicial proceedings. The third and fourth prongs should not be collapsed, but are independent inquiries. To satisfy the fourth prong, the error must be both particularly egregious and the failure to notice the error would result in a miscarriage of justice. Gonzalez-Huerta bears this burden. The fourth prong applies even where a Supreme Court decision has altered well-settled law. The circuit held that mandatory application of the guidelines in this case was not particularly egregious or a miscarriage of justice. The “disconnect” between the constitutional violation and the remedy makes Booker unique. The purpose of the guidelines was to promote uniformity in sentencing. An “illegal sentence” is where the term of incarceration exceeds the statutory maximum, while a wrongly imposed sentence that is under the statutory maximum is properly termed an “erroneous sentence.” Application of the wrong guideline only constitutes a fundamental error affecting substantial rights, satisfying the third prong of plain-error inquiry, leaving the appellant with the burden to establish the remaining prong of plain-error review.
Mandate Rule - Scope of Remand
Booker Error - Preserved, Constitutional Harmless Error Review
United States v. Lang, 02-4075, 02-4091, 02-4103, 02-4128, 04-4165, 04-4175 (April 12, 2005)
(Jill M. Wichlens, FPD, Denver, Colorado for Shari Lang)
This decision resolves the appeals of both Johnny and Shari Lang from their resentencings, and the remand from the Supreme Court which was vacated for further consideration in light of Booker.
At resentencing, the Langs argued that their Sixth Amendment rights were violated in light of Blakely. The district court refused to apply Blakely to the federal guidelines and reverted to its initial offense level calculations, resulting in 78 months imprisonment for Mr. Lang and 97 months for Mrs. Lang.
The Blakely issue was raised in a petition for writ of certiorari to the Supreme Court. And while that petition was pending, the Court issued its Booker decision rendering the guidelines advisory in all cases.
HELD: (1) Under the mandate rule, where the appellate court has not
specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. A dramatic change in controlling legal authority may be an exceptional circumstance so as to vary from the mandate rule.
(2) The Sixth Amendment claim was properly raised before the district court at resentencing, so review is for harmless error. The burden of proving that an error does not affect substantial rights under harmless error review is on the government. If the error is of constitutional magnitude, the government is required to prove the error harmless beyond a reasonable doubt. Chapman. The government has not asserted that the error in this case was harmless.
Motion to Suppress - Review Standard
Probation - Special Needs Exception to Warrant Requirement. Status of Provision in Agreement after Arrest, Reasonable Suspicion
United States v. Trujillo, 04-4074 (April 12, 2005)
A jury convicted Trujillo of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. Trujillo appealed that his arrest terminated the clause in his parole agreement allowing for searches of his residence on reasonable suspicion. Second, he argues that, if the parole agreement remained in effect, there was not reasonable suspicion to support the search of his residence.
HELD: (1) When reviewing the denial of a motion to suppress, the court analyzes factual matters for clear errors and determines legal reasonableness de novo.
(2) In Griffin v. Wisconsin, the Supreme Court determined that a Wisconsin probation regulation, permitting warrantless searches, fell within the “special needs” exception to the warrant requirement. The court explained that restrictions placed on probationers serve the twin goals of effecting rehabilitation and insulating communities from the potential harm created by recidivism. The court concluded that, because the probation officers conducted the search pursuant to a valid regulation, the search satisfied the Fourth Amendment’s requirement of reasonableness.
(3) But these cases do not address the argument regarding the status of the search provision in the defendant’s parole agreement once he was taken into custody. Every other court of appeals has concluded that an arrest does not immediately terminate a search provision in a parole or probation agreement. The Tenth Circuit held that the arrest did not affect the validity of the parole agreement.
(4) Reasonable suspicion requires only a particularized and objective basis for suspecting criminal activity, a lower standard than probable cause, which means a fair probability that contraband or evidence of a crime will be found. Trujillo argues that, even if the parole agreement remained in effect, the officers lacked reasonable suspicion to support the search of his residence. But there were three pieces of information suggesting his involvement with drugs – failing a drug test, refusing to submit to a drug test, and information provided by the detective which suggested that contraband or evidence of a crime would be found in Trujillo’s residence.
Booker - Plain Error Review Satisfied, No Sixth Amendment Violation
United States v. Trujillo-Terrazas, 04-2075 (April 13, 2005)
(Carlos Ibarra-Aguirre, FPD, Las Cruces, New Mexico)
Trujillo pleaded guilty to illegal reentry after deportation. His offense level of 8 was enhanced by 16 levels because of a prior conviction for arson, a crime of violence. The district court sentenced him to the low end of the guideline range. At sentencing, the court expressed reservations about imposing a guideline sentence. A source of the court’s hesitation was the comparatively innoxious nature of the prior conviction for third degree assault.
HELD: (1) Review is for plain error. Booker rendered the guidelines advisory and applicable to all cases on direct review.
(2) The error here was not constitutional in nature. The Booker holding that the guidelines are not mandatory was remedial in nature. This case involves no Sixth Amendment violation. The error is plain.
(3) To affect substantial rights, the third prong of plain-error analysis, the error must have been prejudicial. A defendant must show a reasonable probability that the defects in his sentencing altered the result of the proceedings. After Booker, in addition to considering the guideline range, district courts will consider the factors under § 3553(a). The disconnect between those factors and the sentence imposed led the circuit to believe there is a reasonable probability that Trujillo would receive a lesser sentence under an advisory regime. The district court’s expression of sympathy also implies that the district court would be inclined to depart from the guidelines.
(4) To satisfy the fourth prong of plain-error review, the defendant has to show that the error affects the integrity, fairness or public reputation of judicial proceedings. If so, the appellate court has discretion to correct the error. The standard is formidable. A plain error affecting substantial rights “without more” cannot satisfy the fourth prong. In the run of the mill case with non-constitutional Booker error, where a defendant pleads guilty and there is nothing remarkable about his criminal history, the defendant will often not be able to satisfy this requirement. But in contrast to many cases, Trujillo’s case presents a compelling case that objective consideration of the § 3553(a) factors warrants a departure.
Conspiracy - Sufficient Evidence Standard, Elements of Crime, Accountable at Sentencing for Acts Reasonably Foreseeable
Appellate Review - Inadequately Briefed Issue
Money Laundering
Aid and Abet
Severance - Antagonistic Defenses
Hearsay - Past Recollection Recorded, Read into Evidence But Not Admitted as Exhibit, Co-Conspirator Statements
Stipulations - Waive Confrontation Right
Prosecutorial Misconduct - Comment on Failure to Testify, Plain Error
Expert Testimony (Rule 704) - Discretion, Harmless Error
Invited Error - Answer Prompted by Defense Counsel’s Question
Acceptance of Responsibility
Amount of Loss
Booker - Sentenced at Low-End, Plain Error Review, Two Ways to Satisfy Third Prong where Sixth Amendment Violation
United States v. Dazey, 03-6187, 03-6205, 03-6208 and 03-6228 (April 13, 2005)
The several defendants were convicted of a number of substantive counts of wire fraud, securities fraud and money laundering.
HELD: (1) Their claims that the evidence was insufficient to support the convictions are reviewed de novo, and in the light most favorable to the government.
(2) To prove a § 371 conspiracy, the government must prove an agreement to break the law, an overt act in furtherance of the conspiracy’s object, and proof that the defendant willfully entered the conspiracy. The core of a conspiracy is an agreement to commit an unlawful act. A conspiracy conviction requires at least the degree of criminal intent necessary for the substantive offense.
(3) A defendant’s knowledge of his business partner’s intent to commit fraud is insufficient alone to prove conspiracy.
(4) When a brief offers no argument on a point, the court will not consider it, and instead will deem inadequately briefed issues waived.
(5) To prove money laundering in violation of 18 U.S.C. § 1957, the government must prove the defendant engaged or attempted to engage in a monetary transaction in criminally derived property, knowing that the property is derived from unlawful activity, and that the property is in fact derived from specified unlawful activity.
(6) To sustain a conviction for aiding and abetting wire fraud, the government must prove willful assistance to the perpetrators of the wire fraud crimes, doing so with intent to defraud.
(7) The court reviews the denial of a motion for severance for abuse of discretion. To warrant a finding of abuse of discretion, the conflict between the defendants’ defenses must be such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other. A defendant cannot obtain severance simply by showing that the evidence against a co-defendant is more damaging than the evidence against herself. But when defendants are tried together in a complex case and have markedly different degrees of culpability, the risk of prejudice is heightened. Even so, less drastic measures, such as limiting instructions, often will suffice.
(8) The court reviews evidentiary rulings for abuse of discretion, and the decision to admit evidence over hearsay objections is especially deferential. Rule 803(5), F.R.Ev., provides an exception to the hearsay rule for a witness’ recorded recollection. It is error to admit evidence, under Rule 803(5), without a showing that the witness lacks sufficient memory to testify fully. But such error does not require reversal if the error is harmless. A decision to admit evidence is harmless unless a substantial right of a party is affected. An error effecting substantial rights is one which had a substantial influence on the trial’s outcome, or which creates a grave doubt as to whether it has such an effect.
(9) Under Rule 803(5), even when a proper foundation has been laid to admit the notes as a past recollection recorded, the notes should have been read into evidence and not received as an exhibit.
(10) Nor did the court abuse its discretion in admitting the lulling letters.
(11) Defense counsel’s stipulation to admission of evidence effectively waives a defendant’s confrontation rights unless the defendant can show that the waiver constituted ineffective assistance of counsel. Statements of the defendant and other co-conspirators made in furtherance of a conspiracy are not hearsay and are admissible under Rule 801(d)(2)(E).
(12) The court reviews claims of prosecutorial misconduct during closing argument for plain error in the absence of objection. The prosecutor is entitled to argue to the jury that it should draw reasonable inferences from the evidence to support the government’s theory of the case. Although a prosecutor may not comment on a defendant’s failure to testify, the court will not consider a statement improper in this respect unless it was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.
(13) Rule 704(a) permits an expert to offer opinion evidence even when it embraces an ultimate issue to be decided by the trier of fact. But, an expert may not simply tell the jury what result it should reach, without providing any explanation of the criteria on which the opinion is based or any means by which the jury can exercise independent judgment. Expert testimony is sometimes excluded on the ground that it usurps the function of the jury in deciding the facts, or interferes with the function of the judge in instructing the jury on the law. The court reviews the admission of expert testimony for abuse of discretion, and will reverse only when the decision is manifestly erroneous. In addition, this is subject to harmless error review.
(14) Any error prompted by a direct question from defense counsel is harmless as invited error.
(15) Whether a defendant is entitled to the acceptance-of-responsibility reduction is reviewed under the clearly erroneous standard.
(16) It was not clearly erroneous for the district court to find a loss amount as reflected in the defendant’s own exhibits and agreed to by defense counsel.
(17) Dazey was sentenced at the bottom end of the guideline range. Judge-found facts increased his sentence. Dazey contested the evidentiary basis of the judge-found facts, but never asserted at trial that the use of the guidelines violated the Constitution. So review is for plain error. Dazey must show that the district court committed error that was plain, and that the plain error affected his substantial rights. If these conditions are met, a court may exercise its discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. The analysis is less rigid when reviewing a potential constitutional error. Here, the district court committed constitutional error in sentencing Dazey to a term of imprisonment exceeding the maximum authorized by the facts established by a plea of guilty or jury verdict or otherwise admitted by the defendant.
(18) The error here is plain. As to the third prong of plain-error review, the error must have been prejudicial, that is affected the outcome of the district court proceedings. A defendant must show a reasonable probability that the affects in his sentence alter the result of the proceedings.
(19) There are at least two ways a defendant can make a constitutional Booker error showing. First, if the defendant shows a reasonable probability that a jury, applying a reasonable doubt standard, would not have found the same material facts that a judge found by a preponderance of the evidence, then the defendant successfully demonstrates that the error below affected his substantial rights. This inquiry requires the appellate court to review the evidence submitted at the sentencing hearing and the factual basis for any objection the defendant may have made to the facts on which the sentence was predicated.
(20) Second, a defendant may show that the district court’s error affected his substantial rights by demonstrating a reasonable probability that, under the specific facts of his case, as analyzed under § 3553(a), the district court would reasonably impose a sentence outside the guideline range.
(21) The circuit disagreed with the apparent conclusion of other courts that the mere difference between the imposed guideline sentence and the sentence the defendant would have received based on facts (found by the jury, admitted by the defendant, or based on the fact of a prior conviction) is sufficient to satisfy the third prong. The analytical error committed by the courts has been to treat extra-verdict enhancements as constitutional Booker error. The error, instead, is the use of extra-verdict enhancements in a mandatory guideline system. To determine prejudice, the court must compare the actual sentence to the sentence the defendant would have received under an “effectively advisory” guideline system.
(22) A defendant convicted of conspiracy is accountable for reasonably foreseeable conduct in furtherance of the jointly undertaken criminal activity. But a defendant’s accountability only extends to the criminal activity that he agreed to undertake. Proper attribution at sentencing requires particularized findings about the scope of the specific agreement the individual defendant joined in relation to the conspiracy as a whole. A defendant is not accountable for the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct.
(23) In light of the constitutional nature of the Booker error here, the court conducts the plain-error analysis less rigidly. There is a reasonable probability that if the judge did not think himself bound by mandatory guidelines, he might have determined that Dazey’s conduct warranted a sentence below that prescribed for loss of more than seven million dollars. In the post-Booker world, district courts are accorded greater latitude in determining sentences in light of the seriousness of the offense. District courts might reasonably take into consideration the strength of the evidence in support of sentencing enhancements, rather than looking solely to whether there was a preponderance of the evidence and applying guideline-specified enhancements. Therefore, Dazey established his burden under the third prong.
(24) Sentencing courts may consider hearsay evidence provided that the evidence has sufficient indicia of reliability.
(25) In the context of an alleged constitutional error, the relaxed standard means that the circuit does not require the exceptional showing required to remand a case of non-constitutional error. Nevertheless, the defendant still bears the burden of showing that an exercise of the court’s discretion is appropriate. There are three reasons to support the exercise of discretion to correct plain error. First, the error was constitutional in nature. Second, Dazey vigorously contested the judge-found facts. Third, the judge-found facts in this case substantially increased Dazey’s sentence under the guidelines.
(26) Not all constitutional Booker errors that affect substantial rights, also undermine the integrity, fairness, or public reputation of judicial proceedings. But here, Dazey received a substantial enhancement on the basis of judge-found facts that he contested at the sentencing hearing, and he has demonstrated a reasonable likelihood that, applying proper post-Booker standards, the outcome might have been significantly different.
Motion to Suppress
Reasonable Suspicion - Anonymous Tip, Defendant’s Conduct
Sufficient Evidence
Felon in Possession - General Intent, Lengthy Possession Not Required
Voluntary Intoxication - Defense to Specific Intent Crime
Instructions - Fleeting Possession, Supplemental Instruction in Response to Jury Question
ACCA - Blakely/Booker Do Not Apply
Booker - No Sixth Amendment Violation, Court Expressed Frustration at Sentencing, Diminished Capacity, Plain Error Review Satisfied
United States v. Williams, 04-3175 (April 15, 2005)
(Timothy J. Henry, FPD, Wichita, Kansas)
Williams was found guilty after trial of being a felon in possession and sentenced as an armed career criminal. While the case was pending on appeal, the Supreme Court issued its Blakely decision and later its Booker decision.
HELD: (1) When reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the government, accepts the district court’s findings of fact unless clearly erroneous, and reviews de novo the ultimate determination of reasonableness.
(2) Williams argues that the tip provided by two restaurant patrons was unreliable. Unlike J.L. (S.Ct.), here, the police seized Williams and searched him, only after his own conduct made the police have reasonable suspicion to believe he was possibly armed and dangerous.
(3) The court reviews sufficiency of the evidence claims de novo, and views the evidence in the light most favorable to the government to determine whether the evidence and all reasonable inferences therefrom could cause a reasonable jury to find the defendant guilty beyond a reasonable doubt.
(4) Being a felon in possession of a firearm is a general intent crime. Voluntary intoxication is a defense to a crime requiring proof of specific intent. Also, felon in possession does not require evidence of lengthy possession.
(5) The interstate commerce nexus requirement of the possession offense is satisfied by proof that the firearm the defendant possessed had previously traveled in interstate commerce.
(6) A criminal defendant is entitled to an instruction on his theory of defense, provided the theory is supported by some evidence and the law. A theory of defense instruction is required only if, without it, the district court’s instructions would be erroneous or inadequate. Review is de novo. The court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it. There was insufficient evidence to support such finding.
(7) During jury deliberations, the jury asked the court to restate the last instruction on the influence of alcohol and its effect on the decision. The court responded that, if Williams were capable of any conscious act at the time, then he can be found to have done something knowingly. If he was obviously to the point of being unconscious, then he can’t act knowingly. The submission of supplemental jury instructions is a matter committed to the trial court’s discretion.
(8) Williams concedes that his argument as to substantial effect on interstate commerce is foreclosed by earlier decisions of the court.
(9) The district court sentenced Williams as an armed career criminal, under 18 U.S.C. § 924(e), because of three prior violent felonies. The fact of a prior conviction under § 924(e) need not be charged in the indictment and proven to the jury beyond a reasonable doubt. Booker and Blakely do not apply.
(10) While refusing to depart downward based on diminished capacity, the court indicated its displeasure and frustration with the severity of the sentence it felt obligated to impose. The court sentenced Williams at the bottom of the guideline range. There is no Sixth Amendment error based on court findings as to the existence of prior convictions. But the court sentenced Williams under the erroneous belief that the guidelines were mandatory, thus committing non-constitutional Booker error. This issue was not raised below and is reviewed for plain error. To satisfy the third prong of plain-error review, a defendant has to show that the error affected substantial rights. This usually means that the error must have affected the outcome of the proceedings. Williams must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. He must also satisfy the fourth prong of plain-error review – that is, he must demonstrate that the error is particularly egregious and that failure to notice it would result in a miscarriage of justice. This court held “in the unique circumstances of this case” that Williams satisfied the third and fourth prongs of plain-error review, citing the court’s recent Trujillo case.
Motion to Suppress - Review Standard
Traffic Stop - Totality of Circumstances, Canine Sniff
United States v. Williams, 04-7065 (April 18, 2005)
Williams appeals the denial of his motion to suppress evidence. The district court had found the search and detention were justified based on reasonable suspicion.
HELD: (1) When reviewing an order denying a motion to suppress, the court accepts the district court’s fact findings unless clearly erroneous, and views the evidence in the light most favorable to the district court’s reasoning. The court will not reweigh evidence. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.
(2) A routine traffic stop constitutes an investigative detention and is governed by the principles announced in Terry v. Ohio. The first question is whether the stop was justified at its inception, that is, whether police had reasonable articulable suspicion that a traffic violation has occurred. The trooper was justified in stopping Williams because he was speeding.
(3) The second inquiry is whether the officer’s conduct during the detention was reasonably related in scope to the circumstances which justify the initial stop. An officer may detain a motorist for questioning unrelated to the initial stop, if he has an objectively reasonable and articulable suspicion that illegal activity has occurred, or if the driver has voluntarily consented to further questioning. Williams did not consent. He was extremely nervous during the encounter. He and his passenger gave inconsistent stories. On exiting the patrol car, Williams appeared as if about to run. The Supreme Court has rejected a “divide-and-conquer” analysis. A court may not evaluate and reject each factor in isolation. The court must look to the totality of the circumstances. A law enforcement officer may rely upon his training and experience. A court should accord deference to an officer’s ability to distinguish between innocent and suspicious actions. During the detention, the trooper conducted a canine search on the vehicle. A canine sniff, on the exterior of a vehicle during a lawful traffic stop, does not implicate legitimate privacy concerns. A canine alert gives rise to probable cause to search the vehicle.
Motion to Suppress - Review Standard
Warrant - Good Faith Exception, Stale Information, Particularity
Commerce Clause - Effect on Interstate Commerce
Expert Testimony - Persons Depicted in Photos Were Minors
Motion for Judgment of Acquittal - Discretion
Pornography - Persons Depicted in Photos Were Minors, Violations of State Law, Performance (Not Need Be Recorded and Can Be to an Audience of One)
Booker - Still Review Guidelines for Correctness, Sixth Amendment Violation and Sentencing Under Mandatory Guidelines, Apprendi Objection Preserved Booker Issue, Sentenced at Top of the Range, Error Harmless
United States v. Riccardi, 03-3132 (April 19, 2005)
Riccardi was tried and convicted of child pornography offenses.
HELD: (1) When reviewing the denial of a motion to suppress, the court analyzes factual matters for clear error and determines the reasonableness under the Fourth Amendment de novo. Where the search was pursuant to a warrant, review of the magistrate’s finding of probable cause is very deferential. There is more than enough to support the magistrate’s judgment that there was a fair probability that contraband or evidence of a crime would be found. Whether information is stale depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. The nature of the criminal activity, possession of child pornography, also is such that pornography will likely be hoarded by persons interested in these materials and collectors are unlikely to destroy them.
(2) The manifest purpose of the particularity requirement is to prevent general searches. A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things to be seized. The warrant in this case did not do so. But in Leon, the Supreme Court recognized an exception to the exclusionary rule when officers act in good faith and in reasonable reliance on the invalid warrant in executing their search. In this case, Agent Finch suspended his search and asked the detective if a more specific warrant were needed. The detective consulted with a prosecutor who gave assurances that an additional warrant was not required. The officers executing the warrant were involved in the investigation throughout. The search methodology was limited to finding child pornography. All these factors persuaded the court that the Leon exception for good faith applied.
(3) Riccardi argued that the district court erred in declining to dismiss count two because application of § 2252(a)(4)(B) exceeds the enumerated powers granted Congress under the Commerce Clause. The Supreme Court in Morrison and in Lopez defined the reach of Congressional authority under that clause. Two factors that are salient in the Court’s analysis are whether the activity being regulated is economic, and whether it is interstate in the sense of crossing state lines. Where the activity is economic, the Court is more likely to find that, aggregated with similar conduct, it will have a substantial effect on interstate commerce, even if the specific activity at issue is intrastate.
(4) The government was permitted, over objection, to admit into evidence two photographs seized from the computer that show naked young males engaged in oral sex. Riccardi argued that, in the absence of expert testimony, the evidence was insufficient to prove the persons depicted in the photographs were minors. The circuit reviews the district court’s denial of a motion for judgment of acquittal de novo, reviewing the evidence in the light most favorable to the government. In some cases, expert testimony may be required. But here, the district court looked at six photographs, and concluded that four of them would require expert assistance to assist the jury in determining whether the persons depicted were minors. But as to the two photographs at issue, the district court had ruled that a reasonable jury could find beyond a reasonable doubt that they depict persons under the age of 18 engaged in sexually explicit conduct. The circuit affirmed the denial of the motion for judgment of acquittal.
(5) Riccardi moved for judgment of acquittal on two other counts, arguing that his conduct did not violate the state statute on which his federal charge under § 2242(b) was based. The circuit had to interpret Kansas law as a Kansas court would. The question is whether the performance has to be public. The circuit ruled that performances need not be recorded and they can be to an audience of one.
(6) After Booker, appellate review continues to encompass review of the district court’s interpretation and application of the guidelines. The circuit held that the district court made no errors of law in applying the guidelines. Various enhancements were added to the calculation of base offense level. The district court sentenced Riccardi to the top of the range, saying that it had considered the nature and circumstances of the offense, as well as the characteristics of the defendant, and it believed that a sentence at the high end was appropriate given the high degree of planning in the offense, the time period covered, and the number of victims not accounted for by his convictions. The court ruled that the sentence satisfies the sentencing objectives of punishment, deterrence, incapacitation, and rehabilitation. Under Booker, the sentencing procedure was unconstitutional because the jury did not find, and the defendant did not admit, the facts on which the district court relied to enhance his sentence.
(7) The Apprendi objection adequately preserved the Booker argument. Harmless error review applies and the government bears the burden of demonstrating that the substantial rights of the defendant were not affected. The government argues that the error was harmless. The plethora of evidence supporting the fact findings strongly suggests the findings were correct. Although Riccardi made legal objections, he did not challenge the factual basis of any findings. There is no reason to think the district court would have imposed a less severe sentence in the exercise of his post-Booker discretion.
Mistrial - Jury Misconduct, Discretion Standard
Instructions - Review as Whole, Opportunity to Object, Theory of Defense, Intended Natural Consequences of Acts
Plain Error Review
False Claims (18 U.S.C. § 287) - Materiality Not an Element
Mail Fraud - Materiality, Use of Mails
Materiality - Defined
Sufficient Evidence
Money Laundering
Motion for Judgment of Acquittal
Hearsay - Guarantee of Trustworthiness, Residual Exception
Exhibits - Admission of Partial Exhibit
Jury - Deliberations, Nullification, Bias
Booker - Constitutional and Non-Constitutional Error, District Court Can Make Findings Under Advisory Guidelines, Fourth Prong of Plain Error Review Not Satisfied
Appellate Review - Permission Required to Raise New Issue in Supplemental Brief
United States v. Lawrence, 02-1259 (April 20, 2005)
Lawrence was indicted for carrying out a scheme to defraud Medicare. He ran a chiropractic clinic in Denver, Colorado where he performed a certain therapy that was not covered by Medicare, yet he submitted bills to Medicare indicating the clinic had performed a form of therapy that was covered by Medicare. He was convicted of charges of wire fraud, mail fraud, false claims, money laundering.
During the trial, the district court informed the parties that court room personnel had overheard a conversation in which a juror indicated she had already made up her mind. The district court took testimony from the four jurors involved, and the two deputy clerks who overheard the conversation. Defense counsel moved for a mistrial, which the court denied, but gave a detailed curative instruction.
Lawrence made a second motion for mistrial after his brother heard a juror state that he hates chiropractors. The court interviewed personnel and the brother
and determined that the jurors could not have been in the particular hallway at the time alleged, and denied the motion for mistrial.
Lawrence made a third motion for mistrial after a pamphlet about jury nullification was found in the jury room. All the jurors said that they would not be influenced by it. The court denied the motion for mistrial and gave a curative instruction.
HELD: (1) Lawrence argues that the district court should have given a proposed instruction explaining that the Medicare Carriers Manual was not binding on providers. The district court refused to give this instruction. Review is de novo. The court reviews the instructions as a whole. The circuit held the district court did not err. The instruction requested was irrelevant to the issues and, at its worst, may have caused confusion
(2) Lawrence appeals the district court’s failure to give other instructions he claims to have offered. The record contains no objection to the district court’s rejection of these instructions. The record is not clear whether Lawrence submitted all the instructions. Lawrence claims that the district court prevented counsel from making objections by holding arguments concerning the instructions off the record and by warning counsel not to raise any objections on the record. Nothing suggests that the district court took such actions. Merely tendering jury instructions, without any further objection, is insufficient to preserve issues related to those jury instructions. Review is for plain error. Several of the instructions inform the jury that the government was required to prove, beyond a reasonable doubt, that there is no reasonable interpretation of the applicable regulations and relevant claims submitted by Lawrence that would make his statements to Medicare factually correct. An instruction is only necessary when there is evidence supporting the defendant’s interpretation as reasonable. Lawrence was repeatedly alerted to the unreasonableness of his interpretations.
(3) While there is some disagreement over whether materiality is required under 18 U.S.C. § 287, false claims, the law of this circuit states that materiality is not an element.
(4) The use of a material falsehood is an element of a mail fraud charge separate from the use of the mails to carry out the fraud.
(5) Nothing in the instruction – that tells the jury it may infer, but is not required to infer, that a person intends the natural and probable consequences of his acts – was error. Nothing in the instructions given by the court shifted the burden of proof, so there was no plain error in the district court’s instruction.
(6) The court reviews the record de novo to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt, taking the evidence together with reasonable inferences drawn from it in the light most favorable to the government. The wire and mail fraud charges required the jury to find that Lawrence acted within intent to defraud or to deceive. The false claim charges required that the jury find Lawrence knew the claims he submitted were false. The court found the evidence sufficient.
(7) Review for sufficiency of the evidence and for plain error usually involves the same inquiry.
(8) Using proceeds from a fraudulent scheme the way that Lawrence did is sufficient to show an intent to carry out the fraud for purposes of money laundering.
(9) The denial of a motion for judgment of acquittal is reviewed de novo, viewing the evidence in the light most favorable to the government. To determine whether a statement is material, the court examines whether the statement has a natural tendency to influence, or is capable of influencing, a decision or action by another. The evidence was sufficient.
(10) The court reviews evidentiary rulings for abuse of discretion. Lawrence sought to admit hearsay statements by the late Dr. Mitchell to the FBI. Rule 807 provides that a statement with guarantees of trustworthiness may be admitted if it is evidence of a material fact, is more probative on the point for which it is offered than any other evidence which the proponent can procure with reasonable efforts, and admission of the statement would serve the purposes of the rule and the interests of justice. The “residual exception” should only be applied in extraordinary circumstances. The trial court did not abuse its discretion in refusing to admit the statements.
(11) Lawrence argues that the district court abused its discretion in failing to admit government’s exhibit 271. During the trial, the government had moved for its admission, but Lawrence objected and the court sustained the objection. Defense counsel later moved to admit a single page from the exhibit, but the government objected, asserting that the entire exhibit should be admitted. The court allowed the page of the exhibit to be read to the jury, but the exhibit itself was not put into evidence. Lawrence argues that the exhibit’s exclusion prevented him from proving his theory of the case. The circuit held that this could not be correct because the jury heard the evidence contained on the only page Lawrence sought to admit. Even assuming error, such error would be harmless.
(12) Lawrence urges that the district court erred by failing to grant his motions for a mistrial based on three instances of alleged jury misconduct. The court reviews the district court’s denial of a motion for mistrial based upon juror misconduct for an abuse of discretion. The appropriate test is whether actual bias existed, or whether the circumstances compel an imputation of inherent bias to the juror as a matter of law, such that the misconduct prejudiced the defendant to the extent that he has not received a fair trial.
(13) Lawrence also suggests the short period of deliberations reflects bias. Although there was 36 counts, the counts fit into 4 categories. If they did not deliberate during lunch, the jurors had two and a quarter hours to reach its verdict.
(14) Lawrence’s sentence was enhanced based on extra-verdict fact findings. Because Lawrence did not raise the Blakely/Booker error, review is for plain error. As explained in Gonzalez-Huerta, the first two prongs of the test are satisfied. The court need not answer the question about the third prong if the defendant cannot also demonstrate that the district court’s error seriously affected the fairness, integrity, or public reputation of judicial proceedings. This case involves constitutional Booker error, and also involves sentencing under the pre-Booker mandatory guidelines. Booker would not have prohibited the district court from making the same fact findings and applying the same enhancements and adjustments, so long as it did not apply the guidelines in a mandatory fashion. Whether the district court would simply reimpose the same sentence on remand, or whether instead the sentence would likely change to a significant degree if the case were returned to the district court for discretionary sentencing, is one factor to consider in determining whether the defendant can satisfy the fourth plain error prong. A district court’s statement that it is prohibited from considering mitigating facts presented by the defendant might, in some circumstances, give rise to the inference that the district court would likely give a lower sentence if the guidelines were advisory. The district court felt bound by the guidelines, but its comments do not necessarily evince a desire on the part of the court to give Lawrence a sentence lower than the guidelines. Evidence in the record demonstrates that the district court would impose the same sentence even under an advisory system. The district court sentenced Lawrence to 72 months
imprisonment, two months above the bottom of the applicable guideline range.
(15) Absent authorization from the court, a party is generally precluded from raising issues in a supplemental brief that were not addressed in the opening brief.
Perjury
Instructions - Reasonable Doubt
Impeachment - Hearsay, Case-in-Chief, Harmless Error
Booker - Sixth Amendment Violation, Plain Error Review Satisfied, Court’s Comments, Sentence at Low End of Range
United States v. Clifton, 04-2046 (April 25, 2005)
Clifton was convicted of knowingly making false declarations and was sentenced to 41 months imprisonment. The case arose out of a DEA investigation into cocaine distribution in Albuquerque, New Mexico. The DEA seized 1.5 kilos of crack from Robert Beal. They learned an individual named Jamie supplied Beal with cocaine. The agents discovered that Carla Clifton subscribed to the cell phone number connected with “Jamie.” DEA agents arrived unannounced at Clifton’s home. Her father answered the door and said his daughter may have obtained a cell phone for Jamie Mendoza who had credit problems. The agents waited for Clifton to return home. She admitted she had gotten the cell phone for Mendoza, but cancelled it when Mendoza said it had been stolen. The next day she called to take back everything she had said, and stated that she exclusively used the cell phone and Mendoza never had. She was subpoenaed before the grand jury and testified that no one but herself had used the cell phone and she had never told the agents anything to the contrary. The testimony prevented the grand jury from indicting Mendoza. The government suspected Clifton of perjury and provided her with an opportunity to testify again before the grand jury and recant. She did not. A perjury indictment followed.
HELD: (1) Congress enacted 18 U.S.C. § 1623 to facilitate perjury prosecutions and enhance the reliability of testimony before federal grand juries. The government has to show beyond a reasonable doubt that a defendant made a declaration under oath before a grand jury, such declaration was false, the defendant knew the declaration was false, and the false declaration was material to the grand jury’s inquiry.
(2) Clifton argues the district court improperly instructed the jury on reasonable doubt. The court reviews the sufficiency of a reasonable doubt instruction de novo. The Due Process Clause prohibits the criminal conviction of any person except upon proof beyond a reasonable doubt. The reasonable doubt standard operates to give concrete substance to the presumption of innocence. The district court’s instructions correctly convey the concept of reasonable doubt to the jury, stating that a reasonable doubt is a doubt based upon reason and common sense, and that it is not necessary that guilt be proved beyond all possible doubt. Clifton objected to the omission of a sentence stating that “proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.” The circuit upheld the instruction as given.
(3) Clifton next argues that the district court improperly allowed the government to introduce inadmissible substantive evidence under the guise of impeachment. The district court admitted the evidence under Rule 16 and instructed the jury to consider the agent’s testimony only in evaluating Mr. Clifton’s credibility and not for the truth of what he may have said. The circuit held that, assuming the district court erred, the alleged error was harmless. It 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 government’s case against Clifton was overwhelming.
(4) Clifton argues the district court clearly erred in calculating her base offense level, and that the court violated the rule in Blakely and Booker in enhancing her sentence. Non-constitutional Booker error, of a sentence under mandatory guidelines, is present in every post-guidelines, pre-Booker case. Constitutional Booker errors are present only where the sentencing court found facts by a preponderance that increased the defendant’s sentence beyond what the jury verdict would alone support. The Booker error was not raised below so it is reviewed for plain error. To satisfy the third prong of the plain-error test, a defendant may show a reasonable probability that under the facts of the case as analyzed under the factors of § 3553(a), the district court would reasonably impose a sentence outside the guideline range. Second, constitutional Booker error may affect substantial rights if the defendant shows a reasonable probability that a jury, applying a reasonable doubt standard, would not have found the same material facts that a judge found by a preponderance of the evidence. Under the fourth prong of plain-error review, a defendant must demonstrate that the Booker error seriously affects the fairness, integrity, or public reputation of judicial proceedings. The circuit has identified three non-exclusive factors to channel the exercise of discretion under the fourth prong. First, a constitutional Booker error may be more freely noticed. Second, the strength or lack of evidence supporting the defendant’s sentence under the guidelines must be considered. Third, the court considers whether the Booker error substantially increased the defendant’s sentence.
(5) Here, the district court found two facts by a preponderance of the evidence that the defendant did not admit and the jury verdict alone did not support. Mandatory application of the guidelines is clear or obvious error under current law. Clifton demonstrated a reasonable probability that, but for the Booker error, the result of her sentencing would have been different. The district judge said that, if it had more discretion, it would impose a lower sentence, and sentenced her at the bottom of the guideline range. The guideline (§3C1.1) required the district court to impose more punishment than required for simple perjury, that is, to sentence Clifton as an accessory after the fact to the distribution of cocaine. The government admitted at trial it did not have any evidence of Clifton’s involvement in drug trafficking, and there was no evidence that she knew Beal or Mendoza were involved in drug trafficking. The district court felt constrained under the then-mandatory guidelines to sentence Clifton as an accessory. There is a strong disconnect between the sentence imposed and Clifton’s real conduct. The circuit could not ignore that the district court would likely impose a significantly lighter sentence on remand.
Admission of Evidence - Lay Testimony, Voice Identification
Sufficient Evidence
Right to Counsel - Misdemeanor Conviction
Criminal History - Burden on Defendant to Show Uncounseled Prior Conviction
Plain Error - Fact Issues are Waived
Booker - No Sixth Amendment Violation Where Quantity of Drugs Charged in Indictment Were Basis of Sentence
United States v. Bush, 03-4224 (April 26, 2005)
Bush was convicted after jury trial of distribution of cocaine or cocaine base.
HELD: (1) The court reviews the district court’s admission of evidence for abuse of discretion. Rule 701 permits the admission of lay opinion testimony provided it meets two criteria: a rational basis in perception and helpfulness. . Courts have preferred to leave to juries any assessment of the weight to be given such testimony. Rule 901 permits the use of lay opinion testimony to form a foundation for a voice identification of a defendant. Such voice identification need only rise to the level of minimal familiarity.
(2) The court reviews challenges to the sufficiency of the evidence de novo. The court asks only whether, taking the evidence-both direct and circumstantial, together with reasonable inferences to be drawn therefrom - in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. The voice identification testimony, coupled with strong circumstantial evidence supporting those identifications, was sufficient.
(3) Ordinarily, the court reviews a district court’s interpretation and application of the guidelines de novo, and its fact findings for clear error. Bush did not raise his objection below. Review is for plain error. Bush had a right to counsel for a prior misdemeanor conviction for which he received a suspended term of imprisonment. But the right to counsel can be waived. Once the government establishes the existence of a prior conviction, it is the defendant’s burden to prove by a preponderance that the conviction was unconstitutional. Whether Bush waived counsel was a factual matter he was required to establish at sentencing. When a factual issue is not raised below, there is no record on which to base review. Questions of fact, capable of resolution by the district court upon proper objection at sentencing, can never constitute plain error.
(4) Bush raises a Blakely/Booker claim based on the finding as to the quantity of drugs. Review is for plain error. The indictment did not charge a total amount of drugs, but three out of five counts did allege threshold levels of drug quantity. As a result, when it convicted him, the jury necessarily had to find that Bush’s offenses involved a total amount of 60 grams of cocaine base. The PSR, considering relevant conduct, came up with the same base offense level. Therefore, the judicially determined quantity of drugs did not result in a sentence exceeding the maximum authorized by the facts established by a jury verdict. Hence, there was no Sixth Amendment violation.
Aggravated Assault - General Intent, Guideline Enhancement
Booker - Sixth Amendment Violation, Remedy Is Not Jury Sentencing, But Resentencing Under Advisory Guidelines, Plain Error Review Not Satisfied
United States v. Mozee, 04-8015 (April 27, 2005)
(Robert R. Rodgers, FPD, Cheyenne, Wyoming)
Mozee entered a plea of guilty to a charge of being a felon in possession of a firearm. His guideline range at sentencing was enhanced because the district court determined that Mozee possessed the firearm in connection with a Wyoming felony of aggravated assault.
HELD: (1) The circuit reviews the district court’s legal determinations de novo. Under Wyoming law, aggravated assault is a general intent crime. As a general intent crime, aggravated assault allows the element of intent to be inferred from doing the act constituting the offense charged, such as pointing a loaded gun at a victim.
(2) The circuit reviews the district court’s fact findings for clear error and questions of law de novo. The district court’s finding that Mozee intentionally shot Ferguson, qualifying him for the §2K2.1(b)(5) enhancement, is supported by the evidence.
(3) Mozee claims that the sentencing court violated his Sixth Amendment right to jury trial by imposing a sentencing exceeding the maximum authorized by his plea and prior convictions. Because Mozee did not raise his Sixth Amendment argument in the district court, review is for plain error. There is little doubt Mozee has satisfied the first three prongs of plain-error analysis. The district court committed constitutional error when it found that Mozee had used a firearm in connection with another felony offense and applied a mandatory four-level enhancement to his sentence. In order to demonstrate that an error affected his substantial rights, a defendant must show a reasonable probability that the defect in his sentencing altered the result of the proceedings. In the context of constitutional Booker error, a defendant may meet this burden in two ways. First, if the defendant shows a reasonable probability that a jury applying a reasonable doubt standard would not have found the same material facts that a judge found by a preponderance of the evidence, then the defendant successfully demonstrates that the error below affected his substantial rights. Second, a defendant may show that the district court’s error affected his substantial rights by demonstrating a reasonable probability that the district court would reasonably impose a sentence outside the guideline range. The inculpatory evidence presented by the government at Mozee’s sentencing was sufficient, under a preponderance of evidence standard, to establish that he possessed a firearm in connection with the commission of an aggravated assault. But the government concedes the evidence in support of that finding was in no sense either overwhelming or uncontradicted. There is a reasonable probability a jury, evaluating the evidence presented at Mozee’s sentencing, would not have found beyond a reasonable doubt that he possessed a firearm in connection with the commission of an aggravated assault.
(4) As to the fourth prong, when the district court commits a constitutional error and the defendant has proven that the error affected his substantial rights, the court will normally exercise its discretion to correct the error. This is so because a reversal usually directly cures a constitutional infirmity. Constitutional Booker error, however, is unique, because the remedy for such an error is not a direct cure. That is, the remedy is not to set aside the unconstitutional judicial finding and remand for a retrial at which the jury would have to find all facts needed to determine the offense level. Rather, the remedy – a remand for resentencing under discretionary guidelines regime – only cures the error indirectly. Thus the question under the fourth prong of plain-error review is whether a reversal in remand would advance the fairness, integrity, or public reputation of the courts. The district court maximized the punishment, so there is no basis for the circuit to assume that Mozee would receive a lesser sentence if he were resentenced under a discretionary sentencing regime.