Sufficient Evidence - Review Standard, Conspiracy; Conspiracy - Elements, Retail Buyer Rule; Motion to Suppress - Review Standard, Arrest, Warrantless Search of Dwelling, Plain View; Identification - Review Standard, Suggestive Procedures; Organizer or Leader Adjustment (§3B1.1(b)); Firearm Enhancement (§2D1.1) - Proximate to Drug Offense; Criminal History Score - Prior Sentences (§4A1.1), Relevant Conduct, Grouping

United States v. Flores, 96-1152 (August 4, 1998)

Flores was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine. His sentence was enhanced for being a manager or supervisor, and possessing a firearm during the course of the crime.

HELD: (1) The decision not to dismiss a charge is reviewed for abuse of discretion, and claims of insufficiency of the evidence are reviewed de novo and in the light most favorable to the government. To obtain a conspiracy conviction the government must show an agreement, the defendant knew the essential objectives of the conspiracy, knowingly and voluntarily became a part of it, and the co-conspirators were interdependent. The evidence presented was more than sufficient to prove conspiracy. Although a buyer cannot be deemed part of a larger conspiracy that brought him the drug, Flores was not a street-level retail purchaser but rather was a wholesale seller. The retail buyer rule simply does not apply.

(2) The court reviews denial of a motion to suppress de novo, with fact findings reviewed for clear error. Officers conducting an arrest in a dwelling may conduct a warrantless protective search when they have reasonable suspicion that the house is harboring a person posing a danger to those on the arrest scene. A warrantless arrest does not violate the Fourth Amendment so long as the exigencies of the situation make that course imperative. Officers said the bag of methamphetamine was in plain view through the etched glass door in the headboard of a bed. The district court found the glass door was transparent and this finding is not clearly erroneous.

(3) The constitutionality of an identification procedure is reviewed de novo, with fact findings reviewed for clear error. Even where a photo line-up is unnecessarily suggestive, it will not invalidate an in-court identification, unless the line-up is so unnecessarily suggestive, that it overwhelmed other indicia of reliability. The photo array was not unnecessarily suggestive and did not generate a substantial likelihood of irreparable misidentification.

(4) The district court did not clearly err in finding that Flores exerted control over the organization for an enhancement under §3B1.1(b).

(5) As to the firearm enhancement (§2D1.1), the government bears the burden of proving by a preponderance of the evidence that the gun was proximate to the drug offense. Possession in connection with such offense is established if the government proves by a preponderance that a temporal and spacial relation existed between the weapon, drug activity and the defendant. A loaded shotgun was found in close proximity to a large quantity of drugs stored in the headboard of the bed. Flores failed to show it was clearly improbable that the shotgun had any relation to the methamphetamine.

(6) Flores also objects to an increase in his criminal history score based on a July 7, 1995 state conviction of possession of marijuana. He urges that possession was part of the instant offense, and should not be counted as a prior sentence under §4A1.1. That guideline defines a prior sentence as any sentence previously imposed upon adjudication of guilt for conduct not a part of the instant offense. Conduct that is part of the instant offense is defined under §1B1.3 as relevant conduct. Relevant conduct further depends on whether the conduct the defendant seeks to have combined is subject to grouping under §3D1.2(d). Possession of a controlled substance is specifically excluded from grouping. Furthermore, the state marijuana possession conviction did not occur during the commission of the instant crime.

Motion to Vacate Sentence (28 U.S.C. § 2255); Procedural Default - Cause and Prejudice, Actual Innocence; Bailey Claim (§ 924(c) - Retroactive in Collateral Proceedings, Aid and Abet, Sufficient Evidence, Instructions

United States v. McDonald, 96-2295 (August 4, 1998)

This is an appeal from denial of a § 2255 action. McDonald was convicted of armed bank robbery, and using and carrying a firearm during and in relation to a crime of violence. He was charged on an aiding and abetting theory along with co-defendant Lee. Lee filed a motion seeking § 2255 relief, on the basis of recently discovered prosecutorial misconduct involving use of court subpoenas to compel attendance of numerous witnesses at ex parte, pretrial interviews. McDonald filed the present § 2255 motion adopting by reference the arguments raised in Lee's case. The court in an unpublished decision already ruled on the issues raised by Lee.

HELD: (1) The district court did not err in raising the issue of procedural default sua sponte, in light of McDonald's failure to raise her claim on direct appeal. The district court gave McDonald an adequate opportunity to establish cause for her default and prejudice. McDonald did not establish actual prejudice so as to overcome procedural default.

(2) Bailey applies retroactively to cases on collateral review, but a federal prisoner who has defaulted the claim he seeks to assert in the § 2255 motion must show cause for his default and actual prejudice. The recent Supreme Court decision in Bousley requires a showing of actual innocence. Instructional error is harmless if the jury necessarily made all the findings required to support a proper conviction. Even if McDonald could establish cause for failing to raise the Bailey error on direct appeal, she has not established actual prejudice. The jury's guilty verdict for armed bank robbery necessarily embraced any missing elements.

(3) The court reviews the sufficiency of the evidence in the light most favorable to the government. Under an aiding and abetting theory of liability, an aider or abetter is punishable as a principal. Bailey only altered the legal interpretation of the statutory term "use," but did not change the law governing aiding and abetting. The evidence was more than sufficient to establish McDonald's knowledge that the principal would carry and use the gun during the commission of the bank robbery.

Motion to Suppress - Review Standard; Car Search - Probable Cause, Scope of Search, Distinction Between Odor of Burnt and Raw Marijuana

United States v. Downs, 98-3034 (August 11, 1998)

Downs entered a conditional plea of guilty to possession of marijuana with intent to distribute, after the district court denied his motion to suppress.

HELD: (1) The court reviews de novo the determination that the search of the vehicle was reasonable.

(2) Probable cause to search a vehicle is established if, under the totality of the circumstances, there is a fair probability the car contained contraband. The odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage. This court has established a common sense distinction between the smells of burnt and raw marijuana, based on the imperative that the scope of a warrantless search is defined by the object of the search and the places in which there is probable cause to believe it may be found. The smell of burnt marijuana is generally consistent with personal use in the passenger compartment and in such a case, there is no fair probability that the trunk of the car contains marijuana. Where the officer encounters the overpowering smell of raw marijuana, there is a fair probability the car is being used to transport large quantities of marijuana secreted in places other than the passenger compartment.

Downward Departure - Authority, Refusal, Jurisdiction, Forbidden Factors, Post Offense Rehabilitation Efforts

United States v. Whitaker, 97-5203 (August 17, 1998)

The district court refused to downward depart based on post offense rehabilitation efforts, thinking it had no authority in light of this court's Ziegler decision. But after Ziegler was decided, the Supreme Court held in Koon that any potential basis for downward departure not specifically prohibited may be considered by the district court. Koon allows exceptional efforts at drug rehabilitation to be considered, because these efforts were not expressly forbidden. Therefore the court vacated the sentence imposed and remanded to allow the district court to consider rehabilitative efforts as extraordinary or exceptional and a basis for downward departure.

HELD: (1) The court has jurisdiction to review a refusal to depart in the rare circumstance that the district court does not correctly understand its authority to depart.

(2) Koon teaches that only factors that the Commission has forbidden such as drug or alcohol dependence or abuse, race, sex, national origin, creed, religion or socioeconomic status, lack of youthful guidance, and personal financial difficulties may never provide an appropriate basis for departure. All others may provide a basis. Although addiction and abuse are excluded, the prohibition does not expressly forbid consideration of post offense drug rehabilitation.

(3) The correct inquiry focuses on whether the potential basis is addressed by guidelines, policy statements, or official commentary. Because rehabilitation efforts are taken into consideration under the acceptance of responsibility guideline, post offense rehabilitation can only be an appropriate ground if the efforts are of a magnitude that the defendant's situation can not be considered typical. The court remanded to the district court.

Revocation of Supervised Release - Probation Office's Authority to File Petition to Revoke, Constitutional Challenges, Sentence Different From Recommended Sentence

United States v. Davis, 97-6188 (August 12, 1998)

The district court revoked 24 months of Davis' three year term of supervised release.

HELD: (1) The court reviews Davis' statutory and constitutional challenges to the probation office's authority to initiate revocation proceedings de novo. The issue concerning the probation office's practice of filing petitions for revocation is one of first impression among the circuit courts.

(2) The district court and defendant have an ongoing relationship which predates initiation of revocation proceedings, that is the imposition of sentence. The probation officer maintains contact with the defendant to insure he complies with conditions of supervised release. The probation officer serves as an investigative and supervisory arm of the court. Section 3603, 18 U.S.C., requires probation officers to report the condition and conduct of the person on supervised release. And § 3603(10) is a catch-all provision that encompasses the probation officer's actions. That statute is not an improper delegation of a judicial function, where the sentencing court determines ultimately whether revocation proceedings will be initiated. The filing of a petition to revoke does not usurp the United States Attorney's authority where probation revocation proceedings are not criminal in nature. Probation officers do not engage in the unauthorized practice of law in filing these petitions, but do no more than discharge their responsibility to the sentencing court.

(3) The court reviews the sentence imposed on revocation to determine whether the sentence is reasoned and reasonable, reviews fact findings for clear error and interpretation of the guidelines de novo. Davis' arguments relating to imposition of the maximum sentence focus on the district court's decision to depart from the recommended sentence without notice and hearing, an argument foreclosed by prior circuit precedent.

Motion to Suppress - Review Standard, Child Pornography; Warrant - Probable Cause, Scope of Search, Person or Place, Sufficient Description; Admission of Evidence - Discretion Standard, Other Crimes (Rule 404(b)), Authentication (Rule 901), Expert Testimony; Sufficient Evidence - Review Standard; Continuance - Discretion Standard; Plain Error - Fail to Object

United States v. Simpson, 97-5121 (August 17, 1998)

Simpson was convicted of two counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Detectives of the Tulsa Police Department obtained a warrant to search his house for child pornography. During execution of the search, detectives seized Simpson's computer, diskettes, videotapes and various documents.

HELD: (1) In reviewing the denial of a motion to suppress, the court accepts fact findings unless clearly erroneous, and views the evidence in the light most favorable to the government. In determining whether probable cause exists to issue a warrant, the issuing judge must decide, given the totality of the circumstances, whether there is a fair probability that contraband or evidence of a crime will be found. The court affords great deference to the judge's determination. Generalized descriptions as child pornography are adequate to convey the nature of the material sought.

(2) A search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause. The warrant could have been clearer, referring to the search of the person of the defendant rather than the house. But the affidavit sought a search warrant to search the premisses and vehicle as well. The affidavit was not physically attached to the warrant, nor specifically incorporated and can not cure a lack of particularity. But the affidavit supports the district court's conclusion that the detective in good faith believed he was obtaining a warrant to search Simpson's residence as well as his person. Applying a practical rather than technical standard, the court held the warrant sufficiently described the places to be searched. Computer disks and hard drives are not closed containers separate from the computers, requiring a search warrant specifically authorizing their search.

(3) Admission of evidence is reviewed for abuse of discretion. In addition to two images upon which the indictment was based, the district court allowed the government to introduce seven still shots of juvenile females, four separate video clips of child pornography, and seven pages of the file directory related to those images. Rule 404(b) permits evidence of other crimes, wrongs or acts to be admitted to prove motive, opportunity, intent, etc. The rule is one of inclusion. The court will affirm the admission of 404(b) extrinsic evidence if it was offered for a proper purpose, relevant, its probative value was not substantially outweighed by potential for unfair prejudice, and upon request, the district court gave a proper limiting instruction. The district court did not abuse its discretion in admitting this evidence.

(4) Simpson argues that the computer print out of an alleged chat room discussion was not properly authenticated under Rule 901, F.R.Ev. All that is required is evidence sufficient to support a finding that the matter in question is what its proponent claims. The evidence satisfied this standard.

(5) Failure to object results in review for plain error. This governs the claim regarding admission of testimony of the agent as both an expert and fact witness.

(6) On a challenge to sufficiency of the evidence, the court reviews the evidence de novo and in a light most favorable to the government, to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. Although circumstantial, the evidence was sufficient.

(7) Denial of a motion for continuance is reviewed for abuse of discretion. The motion was based on availability of an expert witness to testify. Simpson did not show he was materially prejudiced.

Mootness - Mental Incompetence, Release; Right to Counsel - Waiver, Review Standard; Ineffective Assistance of Counsel - Client's Wishes, Competency, Officer of Court; Competency - Clearly Erroneous Standard

United States v. Boigegrain, 96-1548 (August 21, 1998)

This case raises the question of whether a client who may be incompetent to stand trial has a constitutional right to waive counsel before a hearing on competency, and whether counsel who moves for an evaluation of competency against defendant's wishes renders ineffective assistance of counsel.

The defendant was charged with threatening a federal law enforcement officer and his family, in violation of 18 U.S.C. § 115. His federal public defender, David Conner, asked to continue the arraignment so that he could familiarize himself with the case. At the arraignment, the defendant plead not guilty and advised that, if he could retain private counsel, he would replace Mr. Conner. On the day of the discovery conference, the defendant moved to dismiss Mr. Conner as his attorney. The magistrate delayed the discovery conference in order to allow the defendant to retain counsel, but did not release the public defender. The defendant did not procure counsel, but continued to file motions on his own behalf. Then Mr. Conner moved for a determination of competency to stand trial, which motion was unopposed by the government. The court appointed a psychiatrist. The defendant was confined until the psychiatric evaluation was completed. At the initial competency hearing, the defendant did not appear. At the competency hearing that was finally held, the court explained why it had not ruled on the motion to excuse Mr. Conner, based on the necessity for a knowing, intelligent, and voluntary waiver of right to counsel, and how the competency determination affected that. The court found Boigegrain incompetent to stand trial and committed him. Boigegrain filed an appeal. Counsel moved to withdraw the appeal on the basis of lack of jurisdiction because of no final order. The en banc court found it had jurisdiction over appeals from § 4241(d) commitment orders. During a limited remand, the district court found the defendant competent and accepted his guilty plea. The government moved to dismiss the appeal for mootness.

HELD: (1) While release from commitment would moot the appeal, the fact that Boigegrain entered into a plea agreement has no impact on the completely separate commitment issue. The court is governed by the law of the case as stated in the previous opinion.

(2) The court reviews findings of historical fact for clear error in connection with a claim of constitutional violation, but reviews the ultimate question de novo. Criminal defendants have a constitutional right to conduct their own offense. The delay in ruling on the motion to dismiss counsel was appropriate, where the ruling as to competency bore on whether waiver of right to counsel was knowing, intelligent and voluntary.

(3) Ineffective assistance of counsel claims should be brought in collateral proceedings in order to develop the facts. This is ordinarily done in a § 2255 action. However, Boigegrain cannot file such motion when held as mentally incompetent. This defendant can not file a writ of habeas corpus, because he has long since been released from commitment. In order to prove ineffective assistance, Boigegrain must show deficient performance and prejudice. A lawyer who has reason to believe the client may not be mentally competent does not render ineffective assistance of counsel in making those concerns known to the court. A lawyer's obligation to advocate positions of his client is dependent on the client being mentally competent. Attorneys are also officers of the court. Counsel's actions were fully consistent with ABA standards.

(4) Competency to stand trial is a fact determination reviewed under the clearly erroneous standard. The evidence supported the conclusion that the defendant was incompetent to stand trial.

Motion to Suppress - Review Standard; Traffic Stop - Regulatory Search; Admission of Evidence - Discretion Standard, Impeachment, Rebuttal Evidence, Open the Door; Obstruction of Justice - Clear Error Standard, Perjury

United States v. Burch, 97-3208 (August 25, 1998)

Burch was stopped by Kansas Highway Patrolman Smith while traveling with his wife in a semi-tractor/trailer rig. A subsequent search of the commercial vehicle yielded 538 pounds of marijuana. After jury trial, he was found guilty of possession with intent to distribute marijuana and conspiracy to do so.

HELD: (1) The court reviews fact findings for clear error on a motion to suppress, and views the evidence in the light most favorable to the government. The ultimate determination of reasonableness is a question of law reviewed de novo.

(2) Stopping an automobile and detaining its occupants constitute a seizure. The reasonableness of a traffic stop depends on whether the officer's action was justified at its inception, and whether the action was reasonably related in scope to the circumstances that first justified the interference. The trooper's action was justified pursuant to the regulatory search exception to the Fourth Amendment's warrant requirement. The critical issue is whether the trooper's search of the truck, after issuing an inspection report, was reasonably related in scope to the circumstances that first justified the interference. Kansas state law outlines the regulatory scheme that justified the stop and search of the defendant in his truck. The trooper's reason for inspecting the cargo in the interior of the truck was to check the blocking and bracing, and such inspection is authorized by Kansas law. The issuance of the clean inspection report did not remove the inspection from the scope of actions authorized by the circumstances that first justified the stop. Because the defendant was operating a carrier that is closely regulated, he had a significantly reduced expectation of privacy. The inspection qualifies as a reasonable search. The government does not rely on consent to justify the inspection but rather on authority of a valid statute. Therefore whether the defendant felt free to leave is irrelevant.

(3) The court reviews the decision to admit evidence under the abuse of discretion standard. Admission of evidence of the defendant's possession of $60,000 in cash at the New York Airport was not admitted pursuant to Rule 404(b), but rather was admitted as relevant cross examination under Rule 611(b), to impeach the substantive evidence offered by the defendant and his credibility. The defendant had raised the issue of his financial status on direct examination, by submitting his tax return and bankruptcy petition into evidence. Admission of rebuttal evidence, when the defendant opens the door is within the sound discretion of the district court. The district court has broad discretion in balancing the probative value and prejudicial effect. Use of this evidence on cross examination was not unfairly prejudicial.

(4) A two-level enhancement for obstruction of justice is reviewed for clear error. The district court specifically found the defendant had perjured himself.