United States v. Gay, 00-6099 (February 12, 2001)

(William P. Earley, FPD, Oklahoma City, Oklahoma)

Gay entered a conditional guilty plea to possession of cocaine base with intent to distribute and possession of a firearm by a convicted felon. He reserved his right to appeal the district court's denial of his motion to suppress. He was sentenced to 235 months imprisonment.

In 1997, a police officer apprehended Gay who, at the time of his arrest, had 53 grams of cocaine base. Police learned that he had been fronted nine ounces of crack and had sold the rest of it at the time of his arrest. Gay fled while on bail. Authorities learned that he was living with an uncle, a known drug dealer. Authorities got a search warrant for the uncle's residence. They did not find Gay. An informant at that residence said that Gay was presently dealing drugs and was armed at all times. The informant said that Gay did not live with the uncle but visited there frequently. The informant stated that he/she knew from personal experience that Gay lived about two miles away. An officer knocked on the door, shouting "police." He heard a thud inside the residence. Officers effected a forceable entry and found Gay standing inside the door, with a gun at his feet, and 2.49 grams of crack in plain view on the couch.

He was indicted with possession of crack on the earlier occasion and the one closer in time, a § 924(c) charge and the felon in possession charge.

HELD: (1) In reviewing the denial of a motion to suppress, the court considers the totality of the circumstances and views the evidence in the light most favorable to the government. The court accepts fact findings unless clearly erroneous. The ultimate determination of reasonableness is a question of law reviewed de novo.

(2) An officer has limited authority based on an arrest warrant to enter a dwelling where the suspect resides. Gay urges that he did not reside at the Pottinger Street residence so that Steagald rather than Payton controls. In Payton, the Supreme Court held that an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. In Steagald, the Court held that absent exigent circumstances or consent, officers may not legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. Under Payton, the officers must have a reasonable belief that the arrestee lived in the residence and was within it at the time of entry.

Gay need not actually have lived at the Pottinger Street residence so long as he possessed common authority over or some significant relationship to the residence. The officers needed only a reasonable belief that the arrestee lives in the residence, not a reasonable suspicion necessary to justify a Terry stop. A face to face informant must, as a general matter be though more reliable than an anonymous telephone tipster. The officers could reasonably rely on the informant's personal knowledge.

(3) As to the reasonable belief the arrestee is within the residence, officers are not required to actually view the suspect on the premises. The informant said that Gay was currently in the residence. When the officers heard the thud, that suggested a person was inside.

(4) Under the knock and announce federal statute, 18 U.S.C. § 3109, if occupants do not admit the officers within a reasonable period of time, they may be deemed to be constructively refused admittance and they may then enter by force. The court held it did not have to decide whether the two or three seconds that elapsed between the announcement and entry was reasonable, because the circuit agreed with the district court that exigent circumstances permitted the officers' immediate entry. The presumption in favor of announcement gives way when exigent circumstances exist. Officers had obtained information that Gay carried a weapon at all times, currently dealt drugs, and recently participated in a shoot-out with police. This information is significantly greater than the information in Stewart (10th Cir. 1989).

(5) Gay does not dispute that he is a career offender under §4B1.1, but challenges the sentencing calculation. The career offender guideline must be applied if it is greater than the offense level calculated under §2D1.1. Under §4B1.1, Gay's offense level was 34 because the maximum statutory penalty for violation of 21 U.S.C. § 841(b)(1)(B)(iii) is 40 years. Section 4B1.1, provides an offense level of 34 if the offense statutory maximum is 25 years or more but less than life imprisonment. Because Gay's base offense level of 36 under §2D1.1 is greater than the offense level under §4B1.1, the probation officer calculated Gay's sentence applying the §2D1.1 base offense level. The probation officer still used the criminal history category 6 of §4B1.1. The court reviews the district court's fact findings regarding sentencing for clear error and reviews its legal interpretation of the guidelines de novo. The guidelines must be interpreted as if they were a statute or court rule. The analysis must begin with the language of the guidelines in question. Section 4B1.1 is intended as a sentence enhancement. Gay's otherwise applicable offense level under §2D1.1 applies because it is greater than his career criminal offense level. The court rejected Gay's argument that the sentencing court may only apply category 6 where it uses the offense level under career offender. The criminal history category is to be determined independently of the offense level. The plain language of §4B1.1 requires criminal history category VI in every case. The court rejected Gay's argument that §1B1.5 requires the Sentencing Court to apply the career offender guideline in its entirety. The career offender provision contains no cross reference designation. The rule of lenity only applies where there is grievous ambiguity and therefore it does not apply here.

Romano and Woodruff v. Gibson, 99-6310 and 99-6323 (February 13, 2001)

(Randy Bauman, FPD, Oklahoma City, Oklahoma for Woodruff)

These are death penalty appeals and raise issues concerning Brady, the heinous and cruel Oklahoma Aggravating factor, and ineffective assistance of counsel at sentencing. Romano and Woodruff were convicted of killing a jeweler during the course of a robbery. The victim had been bound, hand and foot and strangled, beaten about the head, and stabbed five times. Romano had been out of jail on a weekend furlough. Evidence as to the time of death was not conclusive. There was evidence that Romano and Woodruff had opportunity to commit the crimes. Evidence linking them to the crime itself was primarily circumstantial. There was evidence that Romano had a motive to rob and kill the victim because he was in need of money and had asked a friend to help him rob the victim. Romano had also previously stolen a former girlfriend's rings and had sold them to the victim.

Woodruff and Romano were tried together and convicted of first degree malice murder and robbery with a dangerous weapon. The jury found three aggravating factors pertaining to both Woodruff and Romano. Both had prior violent felony convictions, the murder was especially heinous, atrocious and cruel, and the defendants were continuing threats to society. The jury also found that Romano had committed the murder to avoid arrest or prosecution for the earlier robbery.

In a related matter, the state had tried the two for murdering another Romano acquaintance, and in that case they were both sentenced to death. The state introduced evidence of this Thompson case during sentencing in the instant trial. After the sentencing in this case the OCCA overturned the Thompson convictions and death sentences holding the trial court had erred in jointly trying Woodruff and Romano for that murder. The state subsequently retried them and separate juries convicted them both of first degree murder. Romano's jury sentenced him to death, but Woodruff received life in prison without parole. The victim in the present case is Sarfaty.

HELD: (1) The state does not need to appeal separately the district court's adverse procedural bar determination in order to reassert that defense on appeal.

(2) The OCCA affirmed the Sarfaty convictions and sentences on direct appeal. In affirming Romano's death sentence, the OCCA struck the prior violent felony aggravator, based as it was solely on the Thompson murder, and then reweighed aggravators and mitigators. The Supreme Court in Romano, 512 U. S. 3 held that introduction of evidence of Romano's earlier death sentence for the Thompson murder did not diminish the Sarfaty's jury's sense of responsibility for sentencing Romano for that murder.

(3) The AEDPA applies as does its standards. Where the state court did not address on the merits a claim, the court reviews de novo.

(4) In federal habeas, in reviewing a sufficiency of the evidence claim the court views the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Where the state court has addressed the claim review is further limited. The OCCA applied a state law standard of review which is actually more onerous than the Jackson test. The Tenth Circuit authority is split as to whether review of sufficiency of the evidence is a legal determination or a factual one under subsections of § 2254. In this case the result would be the same under either section.

(5) Under Oklahoma law a person commits murder in the first degree when that person unlawfully and with malice of forethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. The evidence in this case was sufficient.

(6) Oklahoma has an evidentiary rule that a criminal defendant cannot put on evidence that someone else might have committed the charged offense, absent proof that person took an overt act toward the commission of the crime. Proof of another's motive is not enough. On appeal Woodruff and Romano challenge the exclusion of evidence on federal constitutional grounds, but the OCCA addressed the claims only under state law, and therefore the circuit reviewed this claim de novo. State evidentiary determinations ordinarily do not present federal constitutional issues, and grant relief only when the evidentiary rule deprived a defendant of a fair trial. Here, Woodruff and Romano were able to put on a significant amount of evidence concerning the three other individuals. The main purpose of Oklahoma's rule is to prevent juries from embarking on wild goose chases. The jury had to remain focused on the trial's central issue. The trial court's application of this state evidentiary rule did not exclude critical exculpatory evidence.

(7) The state failed to disclose the detective's unrecorded opinion about the temperature of Sarfaty's apartment at the time the body was discovered. The question is whether this violated Brady. The state argues that Romano procedurally defaulted this claim because he failed to raise it on direct appeal. The state did not appeal from the district court's rejection of this procedural bar defense. However, a federal habeas court can always raise procedural bar sua sponte. This court can affirm the district court's decision on any legal ground the record supports. This court can address procedural default even though the state did not separately appeal the district court's determination. Previous Tenth Circuit law has not been consistent on whether a state must specifically appeal an adverse procedural bar determination. When confronted with inconsistent Tenth Circuit holdings, the court is generally bound by the first decision, which would require the state to appeal the district court's procedural bar determination in order to raise it now on appeal. However, having submitted this question to the entire en banc court, the circuit held that the court's earlier authority was incorrect and overrules Robison and follows Walker and Jones. Other circuits have reached the same conclusion. The OCCA ruled inconsistently on this procedural default issue, considering the merits of the claim in Woodruff's post-conviction proceeding but not doing so in Romano's. One of the requirements of an adequate and independent state procedural bar is that it is applied consistently. In light of this inconsistency, the procedural bar did not precluded the circuit's consideration of the merits.

(8) Because Woodruff and Romano had access to Sarfaty and did not have an alibi for the morning and early afternoon of October 12, it was important to determine Sarfaty's date of death. Sarfaty's friend discovered the body late Tuesday night October 15. The medical examiner testified that Sarfaty had been dead no less than two and no more than seven days, which would have included the time Woodruff and Romano had access to Sarfaty. The apartment's temperature is relevant to the time of death determination because it would affect how quickly the body decomposed. However, date of death was not strictly based on the decomposition rate. The medical examiner relied on the investigators estimate of a 60 degree temperature in making his determination of time and date of death. Almost nine years after Sarfaty's murder, during the sentencing stage of Woodruff's retrial for the Thompson murder, Detective Jerry Martin testified that when he entered Sarfaty's apartment the apartment was quite warm, probably 80 degrees as an estimate. He never recorded his temperature observation in any written document or report. For purposes of the appeals, the circuit accepted without adopting, petitioners' characterization of the detective's temperature recollection as Brady material. Under Brady, the petitioners must establish that Detective Martin's recollection was favorable to the accused either because it was exculpatory or impeaching, it must have been suppressed by the state, either wilfully or inadvertently and prejudice must have ensued. Because the OCCA did not specifically address this the circuit reviewed this de novo. The temperature estimate was not necessarily exculpatory, and was cumulative of another officer's testimony that the apartment was warm but not hot. With this new information, at the habeas proceedings, three experts testified that Safarty had been dead only 12 to 30 hours before the body's discovery. The thermodynamic study was based on an apartment of around 90 degrees or more. But even assuming the temperature estimate was favorable, and assuming the state suppressed the evidence, the question is whether Woodruff and Romano were prejudiced, that is if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Brady's prejudice inquiry is equivalent to the prejudice analysis that applies to an ineffective assistance of counsel claim. Review for prejudice is against the backdrop of other objective evidence pertaining to Safarty's date of death. The circuit concluded the state's failure to disclose Detective Martin's temperature observation did not prejudice petitioners.

(9) Greg Myers, Romano's former cell mate, testified during sentencing that Romano admitted to him that Romano and his partner had killed Thompson, and Romano had solicited Myers to kill several witnesses in the Thompson case. After the Sarfaty trial, however, Myers recanted this testimony, explaining that he, Myers, had testified falsely in exchange for the state's favorable disposition of then pending bogus check charges. The trial court, during the Sarfaty sentencing proceeding, conducted an in camera hearing concerning the existence of a possible deal. Contrary to the OCCA's determination, none of the prosecutors testified during that hearing. The government must disclose any understanding or agreement it has with its witnesses. The federal district court conducted an evidentiary hearing and found that there was no deal. The circuit reviews such fact findings only for clear error. The circuit said it remained suspicious about whether Myers in fact had a deal with the state, but was unable to conclude that the district court's fact finding was clearly erroneous.

(10) A prosecutor's knowing use of false testimony deprives a criminal defendant of due process, warranting a new trial if there is a reasonable likelihood the false testimony affected the judgment. Even assuming the truth of Myers' recantation, however, Romano has failed to assert any evidence indicating prosecutors knew Myers' testimony was false.

(11) The petitioners challenge the sufficiency of the evidence to support the finding that the murder was heinous, atrocious or cruel. A constitutional aggravating factor channels and limits the capitol sentencers discretion in imposing the death penalty. It must provide a principled means of distinguishing those murders warranting a death sentence and those that do not. Oklahoma's aggravator is now narrowly applied to cases involving torture or serious physical abuse. This narrowing interpretation was based on the Supreme Court's Cartwright decision. Oklahoma has since further refined that narrowing. A murder is especially heinous, atrocious or cruel under Oklahoma law if it is preceded by torture or serious physical abuse. Torture includes the infliction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering. Recent Oklahoma cases have begun to blur the common understanding of the requisite torture and conscious serious physical suffering, more and more often finding the existence of these elements in almost every murder. There is a concern that this trend could render the aggravating factor unconstitutional but here the challenge to the aggravating circumstance is an evidentiary one, asking whether the evidence was sufficient to prove the aggravator. Although the trial evidence does not compel a jury finding of torture or conscious serious physical abuse, the evidence is constitutionally sufficient.

(12) Romano also claims there was insufficient evidence to support the finding of a continuing threat to society. The question is whether, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found this aggravating factor beyond a reasonable doubt. There is also a legal question subsumed in the evidentiary challenge because the argument suggests that the continuing threat aggravator should be evaluated only within the ____________ END OF SIDE A

(13) Oklahoma courts however have held that this aggravating factor is not limited to the threat Romano poses within a prison population, particularly where a term of life imprisonment admits the possibility of release on parole. Myers' testimony that Romano solicited him to kill witnesses indicates Romano may present a continuing threat within as well as outside a prison population. So construed, the evidence was sufficient to support that aggravator.

(14) In the first Thompson trial, the jury rejected the continuing threat aggravator as to Woodruff and Romano. During the Sarfaty trial, the state again charged the aggravator and this time the jury found both petitioners were continuing threats to society. The Supreme Court rejected a claim that such double charging violates double jeopardy, in Poland v. Arizona. The circuit also rejected collateral estoppel principles as a basis for relief.

(15) Under Oklahoma law the focus of the aggravator of murder to avoid arrest or prosecution focuses on the defendant's intent, and requires proof of a predicate crime, other than the murder, for which the defendant seeks to avoid arrest or prosecution. The OCCA's determination that there was sufficient evidence to support this aggravating factor was reasonable.

(16) Woodruff argues there was mitigating evidence not presented at his sentencing and therefore his attorney was ineffective. The OCCA held that Woodruff had waived this claim because it was not raised on direct appeal. The circuit held that contrary to the state's assertion, the trial record did not contain sufficient evidence concerning the extent of defense counsel's sentencing preparation. Therefore the state's procedural bar is inadequate to preclude federal habeas relief. The sentencing stage is the most critical phase of a death penalty case. Woodruff must show there is a reasonable probability that the result of the proceeding would have been different. The court can deny habeas relief on whichever of the Strickland prongs is easier to resolve, either deficient performance or prejudice. Woodruff instructed his attorney not to have his parents and friends testify. Counsel has an obligation to investigate, and also must be responsive to the wishes of his client. Notwithstanding Woodruff's wishes, counsel did present a significant amount of mitigating evidence. The childhood evidence Woodruff now wishes his attorney had presented was potentially in tension with his attorney's logical strategy to portray Woodruff's childhood as normal and happy. This went to show that he would not present a continuing threat to society. Nothing the attorney knew suggested an abusive childhood prior to adoption. The circuit held that Woodruff made no showing that the justice of his sentence was rendered unreliable caused by deficiencies in counsel's assistance.

United States v. Hung Viet Ma, 00-1269 (February 22, 2001)

(Jeffery R. Edelman, Parker, Colorado)

Defendant was convicted of mail theft by a postal employee in violation of 18 U.S.C. § 1709. He was sentenced to four months imprisonment followed by an additional four months of home detention using an electronic monitoring device and supervised release. He appeals only his sentence, objecting to the adjustment for two levels for abusing a position of trust.

HELD: (1) Application note 1 to §3B1.3 states "because of the special nature of the United States mail an adjustment for abuse of position of trust will apply to any employee of the U.S. Postal Service who engages in the theft or destruction of undelivered U.S. Mail." The Supreme Court has stated that commentary in the guidelines is authoritative unless it violates the Constitution or a federal statute or is inconsistent with the guideline. Current commentary states that persons holding such positions of trust ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.

(2) In general whether a defendant has occupied a position of trust under §3B1.3 is a factual matter reviewed for clear error. To impose the enhancement, the court must find the defendant possessed a skill or position of trust and the defendant used that skill or abused that position to significantly facilitate the commission or concealment of the offense. There is no question the defendant was a postal employee and was convicted of theft of undelivered United States Mail while working in that position.

(3) The court reviews questions of law concerning application of the sentencing guidelines de novo. Based on the clear language of the application note, the enhancement provision applies to the defendant. A number of other courts have considered this enhancement provision in the context of a postal employee.

United States v. Jackson, 98-6487 (February 27, 2001)

This case is on remand for further consideration in light of Apprendi. Jackson had been indicted and convicted for committing distinct offenses involving an unspecified quantity of cocaine base.

(1) The district court erred by imposing a term of imprisonment appropriate for offenses involving at least 50 grams of crack. Jackson's trial took place before Apprendi. She did move the trial court for a special verdict form regarding drug type and quantity, and objected to the PSR with regard to drug amounts.

(2) The court reviews de novo the legal question of whether Jackson's sentence violates Apprendi. After Apprendi a trial court may not utilize sections 841(b)(1)(A) and (B) for sentencing without the drug quantity being charged in the indictment. Instead, the defendant may be sentenced only under subsection (C), which limits the sentence to not more than 20 years. Jackson's indictment failed to allege quantity of crack. Therefore the maximum sentence she could receive, in light of no prior convictions, was a 20 year sentence. She was sentenced to 30 years. The government argued the error is reviewable under the plain error standard or for harmless error and the court rejected that argument. In Jones, the circuit had held that such unauthorized sentences warrant reversal, and this panel followed the Jones decision.

(3) Jackson further argues that Apprendi requires a new trial or resentencing because the district court refused her proposed jury instruction and special verdict form. This argument is without merit. She stipulated to the quantity of crack at trial and therefore drug type and quantity were no longer facts required to be determined by the jury.

(4) The circuit rejected the claim that Apprendi affects the guidelines.

United States v. Sanders, 99-3399 (February 28, 2001)

Sanders was convicted after jury trial of possessing a silencer not registered in a National Firearms Registration and Transfer Record. He was sentenced to 51 months imprisonment and three years supervised release. His claim on appeal is that the evidence was insufficient.

HELD: (1) Sufficiency of the evidence is reviewed de novo and in the light most favorable to the government. The court would not weight conflicting evidence or consider the credibility of witnesses. The record contains no evidence that Sanders knew the weapon he possessed had the characteristics that brought it within the statutory definition of a silencer. Thus no rational trier of fact could have found him guilty beyond a reasonable doubt. Disbelief of the defendant's testimony is insufficient to carry the government's burden as to knowledge.