TENTH CIRCUIT DECISIONS

JANUARY, 1999

Mootness - Completion of Sentence, Collateral Consequences;

Appeals - Mootness;

Sentence Modification - Jurisdiction

United States v. Soto-Holguin, 97-2199 (January 4, 1999)

Border patrol agents spotted footprints along the road near New Mexico state Highway 9. They knew drug smugglers hire poverty stricken Mexican citizens to carry backpacks full of drugs across the border. Agents observed Holguin and others carrying backpacks across the desert. As the agents approached, they abandoned their packs and scattered into the desert. The agents apprehended Holguin and another backpacker and recovered more than 400 pounds of marijuana. Holguin plead guilty to importing marijuana and possession with intent to distribute marijuana. In the plea agreement, the government agreed he was entitled to a three level reduction for acceptance of responsibility, a four level reduction for minimal role, and a two level safety valve reduction. Prior to sentencing, the defendant moved for a downward departure from the sentence specified in the plea agreement. The court denied that motion and sentenced him to 24 months imprisonment. The defendant moved to reconsider. The district court entered judgment, but thereafter vacated the sentence and resentenced him to ten months. The government appealed. The defendant has urged the court to dismiss the appeal as moot as he has completed his ten month sentence.

HELD: (1) The appeal is not moot, because if the government is successful, it could extradite the defendant or he could reenter on his own and be subject to arrest and imprisonment for the remainder of the sentence. Criminal appeals are only moot when the case would have no collateral legal consequences. An appeal of an already completed sentence is not moot if there is any possibility the length of the disputed sentence may affect the duration of a future sentence.

(2) The court reviews de novo the district court's determination that it had jurisdiction to modify the sentence. The district court has no inherent authority to modify a previously imposed sentence. Under 18 U.S.C. § 3582, the district court may modify a sentence where 1) it receives a motion from the Bureau of Prisons stating that compelling reasons warrant a reduction, 2) within seven days after imposing sentence, the court acts under Rule 35(c) to correct a technical error, or 3) a defendant is sentenced based upon a sentencing range lowered by the Sentencing Commission. Rule 35(c) provides the only plausible avenue by which the district court could correct the defendant's sentence. In this case the court missed the seven day deadline. But whether or not the district court acted within the time limit, it had no jurisdiction to substantively modify the sentence because it felt the guidelines were not just.

Mootness - Complete Sentence;

Appeal - Mootness;

Downward Departure - Relevant Conduct, Lack of Sophistication;

Relevant Conduct - Drugs Carried Across Border

United States v. Dominguez-Carmona, 97-2197, United States v. Hernandez-Villanueva, 97-2202 and United States v. Rubio-Loya, 97-2234 (January 4, 1999)

(Barbara A. Mandel and Robert J. McDowell, FPD, Las Cruces, New Mexico)

The government appeals the downward departures in sentences of border backpackers, smuggling in marijuana. The sentences have been completed and they have been deported to Mexico.

HELD: (1) An appeal of an already completed sentence is not moot if there is any possibility that the length of the disputed sentence may affect the duration of a future sentence. Defendants could be extradited or could reenter the country and be subject to arrest and imprisonment.

(2) In departing downward, the district court attributed to each defendant only the amount of marijuana which the particular defendant carried across the border. The district court's reliance on that limited amount is clearly contrary to controlling guideline commentary under §1B1.3, comment (n. 2(c)(8)). The district court improperly departed on that basis. Furthermore, attributing to each defendant only the amount he individually carried was inconsistent with the plea agreement, and inconsistent with the two level safety valve reduction that the court granted. In addition, socioeconomic status is not relevant in the determination of the sentence.

(3) Lack of sophistication may be a proper basis for granting a downward departure, but the lack of sophistication must be such as to remove the case from the heartland. Section 3B1.2(a) seems to consider a defendant's lack of sophistication. In this case, the district court gave each defendant a four level reduction for minimal participation. Only if the lack of sophistication was to a degree not already considered in the guidelines would an additional downward departure be proper.

Intent - Strict Liability, Mens Rea;

Necessity Defense - Elements;

Incriminating Statement - Miranda, Custody, Voluntariness

United States v. Unser, 97-1241 (January 4, 1999)

Unser was convicted of unlawful possession and operation of a motor vehicle within a national forest wilderness area. The crime is a class B misdemeanor under § 3559(a)(7) and a petty offense, a category which includes class B and C misdemeanors.

Unser was an experienced snowmobiler whose companion was a beginner. A ground blizzard came up. Both snowmobiles became stuck. The men spent the night in a snow cave. They were ultimately rescued. The district court found that the two riders had entered the prohibited wilderness area before any emergency had arisen, found the offense was a strict liability offense, denied Unser's necessity defense, and denied his motion to suppress statements based on Miranda violations and involuntariness.

HELD: (1) Strict liability statutes do not contain a mens rea element. The general presumption that some guilty purpose is required does not apply to public welfare offenses which involve situations where a reasonable person should know the conduct is subject to stringent regulations. Regulations prohibiting motorized vehicles in wilderness areas constitute a public welfare offense. A statute may be considered a strict liability statute where there is no mention of intent in the statute, the duty imposed is reasonable, the statutory scheme is not one taken from common law, and the conviction involves only a misdemeanor. The $5000 fine, or imprisonment for not more than six months or both are not de minimis punishment but are considered small penalties. The district court correctly found there was no mens rea element.

(2) The defendant bears the burden of producing evidence that could support a finding in favor of the necessity defense. Unser met his burden of production. The necessity defense requires no legal alternative to violating the law, the harm to be prevented is imminent, and a direct, causal relationship is reasonably anticipated to exist between the defendant's action and avoidance of harm. The government bears the burden of proof beyond a reasonable doubt of each element of a criminal offense. It follows that the government bears the ultimate burden of persuasion to disprove a defense to an element of the crime. The defendant had access to the evidence to prove this defense. The evidence was sufficient to support the conviction.

(3) The district court did not commit clear error in finding there was no Miranda violation in this case where Unser was not in custody when interviewed. And even though the agents employed a measure of subterfuge to get Unser to return to the offices, Unser knew he might be cited for entering a wilderness area. The issue of voluntariness of a statement is ultimately a question of law with subsidiary fact findings reviewed for clear error.

Habeas Corpus (28 U.S.C. § 2254) - Pre-AEDPA, Review Standard;

Instructions - Fair Trial, Self Defense;

Jury - Impartial, Memorial Plaque, Prejudicial Publicity, Instructions

Tyler v. Nelson, 97-3323 (January 5, 1999)

Petitioner plead guilty to conspiracy to sell cocaine and went to trial on second degree murder, sale of cocaine, aggravated assault, and possession of heroin charges. The Kansas Supreme Court affirmed. The district court denied his habeas corpus petition. Because the case was filed prior to the AEDPA, only a certificate of probable cause was required.

HELD: (1) This court may grant habeas relief to a state prisoner only if state court error deprived him of fundamental rights guaranteed by the Constitution. Pre-amendment standards of review apply. The court reviews the legal basis for dismissal de novo. The court lacks authority to correct errors of state law made by the state court and presumes fact findings to be correct. Where the district court's fact findings are based solely upon a review of the state court record, they are subject to an appellate court's independent review.

(2) Errors in jury instructions in a state criminal trial are not reviewable unless they are so fundamentally unfair as to deprive a petitioner of a fair trial and due process. Under Kansas law, while a defendant's own assertions may be sufficient to establish a subjective belief that self-defense was necessary, the defendant also has to show the reasonableness of his belief that self defense was required. The petitioner did not show that a reasonable person would have perceived the necessity of self-defense.

(3) Trial courts are responsible for guaranteeing that juries are fair and impartial. This includes assuring that trial surroundings are not exceedingly prejudicial. The court considered whether hanging the memorial plaque in the courthouse lobby is an inherently prejudicial practice. A plaque had been hung in memory of one of the detectives who was allegedly killed by the defendant. The memorial plaque is not, like shackling and prison clothes, an unmistakable indication of the need to separate a defendant from the community at large. The plaque was small and did not mention the petitioner's name. While the plaque served as a reminder of a police officer's death, it did not necessarily serve as a reminder of petitioner's guilt. Petitioner did not make a showing of actual prejudice.

(4) Trial courts have a duty to protect the jury from prejudicial events, and to investigate potential prejudice that may have occurred before or during trial. There is no indication that any jurors were influenced by the prejudicial broadcast. Nor could the circuit tell whether the jurors even saw the report. In addition, the state trial court repeatedly admonished the jury to avoid reading or listening to any media account of the trial.

Perjured Testimony;

Sufficient Evidence - Review Standard;

Conspiracy - Elements, Multiple Objects;

Instructions - Unanimity, Multiple Objects of Conspiracy;

Obstruction of Justice - Review Standard, Information Considered;

Possession of Dangerous Weapon Enhancement;

Drug Quantity

United States v. Vaziri, Adkins, and Quarterman, 97-8117, 98-8010, 98-8026 (January 6, 1999)

The three defendants were convicted of conspiracy to distribute controlled substances and substantive offenses.

HELD: (1) A conviction obtained by introduction of perjured testimony violates due process if the prosecution knowingly solicited the perjured testimony or failed to correct testimony it knew was perjured. A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. Inconsistencies in Addington's testimony were exposed in cross examination, emphasized on redirect and brought out in closing arguments. The jury could not possibly have been left with the impression that Addington's relationship with Quarterman was simply that of one drug user to another. The jury was properly informed of the possibility of false testimony.

(2) In addressing challenges to the sufficiency of the evidence, the court reviews the record de novo in the light most favorable to the government. Conspiracy requires proof of an agreement with another person to break the law, knowledge of the essential objectives, knowing and voluntary involvement in a conspiracy, and interdependence among alleged co-conspirators. Knowing participation in achieving a common objective with knowledge of the larger venture is sufficient for a single conspiracy finding.

(3) No one requested a multiple conspiracy instruction so the question is whether the court committed plain error in not giving such instruction sua sponte. The instructions adequately conveyed the government's burden of proof.

(4) Count one charged the multiple object conspiracy involving LSD, methamphetamine, cocaine and marijuana, listed in the conjunctive. The court instructed the jury that when an offense is charged in the conjunctive, the offense may be proven in the disjunctive. The district court instructed that the jury had to find beyond a reasonable doubt that at least one of these four purposes was an object of the conspiracy, but it need not find that all of the purposes were objects of the conspiracy. The jury had to unanimously agree on which object or objects of the conspiracy the defendants agreed to violate. The Supreme Court, in Griffin v. United States, upheld a general verdict based on a similar indictment and instruction. The district court was not required to treat each controlled substance separately in ruling on motions for acquittal or in submitting verdict forms to the jury.

(5) The guidelines provide for a two-point enhancement for obstruction of justice under §3C1.1. The circuit gives due deference to the district court's application of the guidelines to the facts, and its ability to judge the credibility of witnesses. The court may consider relevant information without regard to its admissibility under the rules of evidence, provided the information has sufficient indicia of reliability to support its probable accuracy. The court found ample support for the district court's finding that Quarterman's call to Addington was a threat.

(6) The guidelines provide for an offense level enhancement of two points when a dangerous weapon is possessed during a drug conspiracy. The court reviews fact findings for clear error, gives due deference to application of the guidelines to the facts, and reviews purely legal questions de novo. The enhancement for weapon possession should be applied if the weapon was present, unless it is clearly improbable the weapon was connected with the offense. The government bears the initial burden of proving possession by a preponderance, and possession may be satisfied by showing mere proximity to the offense. The enhancement is appropriate unless the defendant proves that it was clearly improbable that the weapon was connected with the offense. Evidence that some of the defendants neither ever used nor owned guns is insufficient. Evidence of mere storage of guns for others is insufficient.

(7) The court reviews drug quantity calculations for clear error. Because Adkins was convicted of conspiracy, his sentence is based not only on drug amounts with which he personally dealt, but also amounts which he reasonably foresaw or which fell within the scope of his particular agreement with the conspirators, under §1B1.3(a)(1)(B). There was no clear error on this record.

Aliens - Transportation, (8 U.S.C. § 1324), In Furtherance Element;

Statutory Interpretation;

Sufficient Evidence

United States v. Darajas-Chavez, 97-2033 (January 7, 1999)

Chavez was convicted of transporting two illegal aliens in violation of 8 U.S.C. § 1324. The district court set aside the jury verdict and entered a judgment of acquittal on the ground the evidence was insufficient to demonstrate that Chavez acted knowingly in furtherance of the aliens' illegal presence in the United States. After rehearing en banc, the circuit reversed with directions to the district court to reinstate the jury verdict.

HELD: (1) For the government to prove a violation of § 1324, it must show the transporting or moving of an alien within the United States, that the alien was present in violation of law, that the defendant was aware of the alien status, and that the defendant acted willfully in furtherance of the alien's violation of law. The court begins with the language of the statute to determine what "in furtherance" means. The element is not limited to those who support the presence of illegal aliens through a smuggling operation. The element is sufficiently broad to encompass any person who acts, regardless of profit motive or close relationship, with knowledge or with reckless disregard of the fact that the person transported is an illegal alien, and that transportation or movement of the alien will help, advance or promote the alien's illegal entry or a continued illegal presence in the United States. The circuit rejected the use of any particular test or formula. Instead, a fact finder may consider any and all relevant evidence bearing on the element including time, place, distance, reason for trip, overall impact of trip, and defendant's role in organizing or carrying out the trip.

(2) Applying a de novo standard of review, the court views the evidence, both direct and circumstantial, in the light most favorable to the government, to determine whether the evidence was sufficient to establish the "in furtherance of" element.

Standing - Use of Witness' Statements;

Incriminating Statements - Voluntariness, Avoid Arrest If Cooperate, Age; Supervisory Powers - Suppression;

Discovery - Sanctions, Discretion, Witness' Whereabouts

United States v. Gonzales, 97-2277 (January 7, 1999)

The government appealed the district court's order suppressing statements made by a witness and barring the government from calling the witness at several criminal trials. The circuit reversed in part and remanded for further proceedings.

HELD: (1) As an initial matter the court had to decide whether it was proper to allow the defendants to challenge the voluntariness of the subject witness' statement. The defendants can not vindicate any violations of the subject witness' Fifth Amendment right, but must point to violations of their own Constitutional rights. Subsequent use of the witness' statements could potentially implicate the defendants due process rights.

(2) Whether a statement is voluntary is a question of law subject to de novo review, although underlying fact findings are reviewed for clear error. A statement is involuntary if the government's conduct caused the witness' will to be overborne, and his capacity for self-determination critically impaired. The court considers the totality of the circumstances. The escape clause language of the arrest warrant for the witness was blatantly tailored to obtain testimony because she could escape arrest only if she divulged everything she knew about the Garcia homicide. The circuit found the district court's fact findings to be clearly erroneous because it rejected Lewis' testimony out of hand, even though there was no evidence to contradict it. Lewis testified the witness was not aware of the escape clause until after she admitted to the facts and agreed to cooperate. The witness did not indicate when she first learned of the escape clause. The witness was 18 years of age and entitled to be treated as an adult at the time of her arrest. The district court's suggestion that she should have been allowed to speak to her parents is incorrect. The subject witness' statements were not coerced, and therefore the circuit reversed.

(3) The district court's suppression order was also based in part on the exercise of its supervisory powers as a proper sanction for perceived government misconduct. The circuit did not reach whether the arrest warrant was invalid because it found the defendants lacked standing to challenge violation of the witness' Fourth Amendment rights, and therefore the court's supervisory powers did not authorize suppression.

(4) Although Rule 16 does not require the government to make its witnesses available for defense interview, it is a helpful way to analyze the district court's authority to remedy discovery infractions in analogous circumstances. The district courts have broad discretion in imposing sanctions on parties who violate discovery orders. Exclusion of evidence is an appropriate sanction. The district court did not abuse its discretion in choosing to sanction the government for what were obvious discovery violations. The defense had a right to be free from prosecution interference with a witness' freedom of choice about whether to talk to the defense. In addition, the government misled the court and defense concerning its knowledge of the witness' whereabouts and its control over her. The government inexcusably delayed disclosure to the defendants of the arrest warrant and reports of government interviews. In selecting a proper sanction, a court should consider the reason for the delay in production, extent of prejudice, and feasibility of curing the prejudice with a continuance. The court should impose the least severe sanction that will accomplish prompt and full compliance with the discovery order. The district court effectively considered the three factors. The circuit agreed that the government's conduct was a product of flagrant bad faith, and the defendants' ability to prepare for trial was prejudiced. But the circuit did not agree that the prejudice was irreparable. The court was not convinced the witness' testimony was forever tainted. The circuit found abuse of discretion in completely suppressing the statements, and remanded for consideration of less severe sanctions.

Suborn Perjury (18 U.S.C. § 201(c)) - Promises in Exchange for Testimony;

Statutory Interpretation - Not Apply to United States Attorneys, "Whoever", Sovereign

United States v. Singleton, 97-3178 (January 8, 1999)

(Timothy K. Ford, Seattle, Washington; Norman R. Mueller and Rachel A. Bellis, Denver, Colorado; David M. Porter, FPD, Sacramento, California; Amicus Curiae)

Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel reversed on the ground that the prosecuting attorney violated 18 U.S.C. § 201(c)(2) by offering leniency to a co-defendant in exchange for truthful testimony. The en banc court vacated the decision, and on remand held that 18 U.S.C. § 201(c)(2) does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office.

HELD: (1) The court reviews this issue of law de novo.

(2) The word "whoever" as used in the statute does not apply to the United States attorney or assistants where such persons, acting within the scope of their authority, act as the alter ego of the United States exercising its sovereign power of prosecution.

(3) Also the word "whoever" connotes a being and the United States is an inanimate entity. Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. It is absurd to try to apply § 201(c)(2) to the sovereign's prosecutorial powers. Applying the statute to the government would deprive the sovereign of its recognized and established prerogative. From the common law, there has been a long standing practice sanctioning testimony of accomplices against confederates in exchange for leniency.

False Statements (18 U.S.C. § 1920) - Elements, Materiality;

Admission of Evidence - Discretion, Authenticity;

Amount of Loss

United States v. Henry, 97-8116 (January 11, 1999)

Henry was convicted of filing false statements to obtain federal workers compensation benefits in violation of 18 U.S.C. § 1920, and he was acquitted of making a false statement in violation of 18 U.S.C. § 1001.

HELD: (1) An individual is guilty of § 1920, filing false statements to obtain federal workers compensation benefits, if he knowingly and willfully falsifies, conceals a material fact, or makes a false or fictitious or representation, or makes a false statement or entry in connection with an application for receipt of compensation under the federal workers compensation program. If the government proves these elements, the defendant is guilty of perjury.

(2) The quantity of benefits falsely obtained is not a substantive element of the statute. The court reviews the sufficiency of the evidence de novo. The jury did not err in finding Henry made false statements about his work and income on four forms 1032. The test for materiality under § 1001 is whether falsification has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making the determination required to be made. The test under § 1001 is appropriate for § 1920. The evidence supports the finding that Henry made false statements that were material.

(3) Evidentiary decisions, such as findings concerning authenticity of a document, rest within the sound discretion of the district court. Rule 901(b) requires a document to be authenticated as a condition precedent to its admission. The rule provides that a witness with knowledge may authenticate evidence by testifying that a matter is what is claimed to be. The district court did not abuse its discretion in admitting the documents under the business records exception and public records exception, even though the records were prepared by Henry himself.

(4) In determining the amount of loss, the district court may enhance the base offense level because of actual or intended loss, whichever is greater. A two level enhancement is appropriate for more than minimal planning. The district court did not clearly err in this adjustment.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA;

Certificate of Appealability - Review Standard;

Mental Condition - Access to Psychiatrist;

Procedural Bar - Independent and Adequate State Ground;

Aggravating Factors - Not Apply to Every Defendant, Sufficient Evidence ,Great Risk of Death, Continuing Threat;

Penalty Phase - Unadjudicated Offenses;

Reweighing - Harmless Error, Rational Fact Finding, Degree of Clarity

Ross v. Ward, 97-6432 (January 12, 1999)

This is an appeal from denial of a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Ross was convicted of first degree murder and robbery with firearms and was sentenced to death. His convictions and sentence were affirmed. On post-conviction, the district court invalidated the heinous and cruel aggravating circumstance, but nonetheless denied relief. This was affirmed by the Oklahoma Court of Criminal Appeals. Ross' second application for post-conviction relief was denied. He filed his habeas petition on December 31, 1996 (after AEDPA), and the district court denied relief in November 1997. The district court granted a certificate of appealability on the issues of alleged denial of Ross' right to expert psychiatric or psychological assistance and alleged denial of right to individualized sentencing determination based on constitutionally valid aggravating circumstances. Despite the limited certificate of appealability, Ross raised additional issues.

HELD: (1) Ross has failed to make a substantial showing for issuance of an expanded COA and the court would only consider denial of motion for expert psychiatric assistance, whether the death sentence is unconstitutional because aggravating circumstances were unconstitutionally interpreted and there was insufficient evidence, and whether the death sentence was infirm in light of the heinous and cruel aggravating circumstance. A COA may issue only if the applicant has made a substantial showing of denial of a constitutional right under 28 U.S.C. § 2253(c)(2), and the district court shall indicate which specific issues satisfy the requirement under § 2253(c)(3).

(2) The court reviews the district court's legal conclusions de novo and its fact findings under the clearly erroneous standard.

(3) When a defendant demonstrates that his sanity at the time of the offense is to be a significant factor at trial, the state must assure the defendant access to a competent psychiatrist. But the defendant must offer more than undeveloped assertions.

(4) Where federal claims are defaulted in state court pursuant to an independent and adequate state law, federal habeas review is barred unless the prisoner can demonstrate cause and prejudice, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice. Ross asserts cause as ineffective assistance of appellate counsel. But even if counsel's performance were deficient, Ross can not show prejudice. Ake was decided after trial but while the direct appeal was pending. The prejudice inquiry is whether the petitioner could have made a threshold showing under Ake that his sanity at the time of the offense would have been a significant factor at trial. Even if mental condition would have been a significant mitigating factor, the denial of expert funds to employ an expert was harmless error, in light of the jury's findings with regard to the other three aggravating circumstances.

(5) Under Oklahoma law a separate sentencing proceeding is conducted after the guilt phase. In the penalty phase, evidence may be presented as to any mitigating circumstances or aggravating circumstances enumerated in the statutes. A jury may only impose the death penalty when it unanimously finds at least one statutory aggravating circumstance beyond a reasonable doubt, and concludes that the aggravating circumstances are not outweighed by mitigating circumstances. The jury found knowing creation of great risk of death to more than one person, heinous and cruel manner of commission, murder committed to prevent lawful arrest or prosecution, continuing threat, and the victim of the murder was a peace officer. An aggravating circumstance is constitutional so long as it does not apply to every defendant convicted of murder and it is not unconstitutionally vague. The continuing threat aggravator as applied in Oklahoma does not violate the Eighth Amendment. It does not apply to every defendant convicted of murder in the first degree.

(6) Admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process.

(7) There is sufficient evidence to support the continuing threat aggravating circumstance.

(8) The great risk of death aggravator is constitutional under the Eighth Amendment. It applies where the defendant's conduct not only resulted in murder, but also posed a significant risk of death to other persons.

(9) Ross claims that after invalidating the especially heinous or cruel aggravating circumstance, it was improper to reweigh the remaining aggravating circumstances, and also that the harmless error analysis conducted in the case did not meet federal constitutional standards. However, in light of the Supreme Court decision in Clemons ,the Oklahoma courts do not violate Ross' constitutional rights by reweighing the aggravating and mitigating circumstances. Ross also claims that, in reweighing, the Oklahoma courts do not adequately discuss the reasons for upholding the death penalty, given the invalid aggravating circumstance. In Stringer, the Supreme Court emphasized the necessity of close appellate scrutiny of the import and effect of invalid aggravating factors. Stringer only requires the state court to either conduct harmless error analysis or to independently reweigh, but does not require the court to discuss the effect the invalid aggravating factor had on the jury's original sentencing decision. In Richmond, the Supreme Court stressed the need to determine whether the state court actually reweighed the remaining valid factors. In Richmond, the reweighing was unconstitutional because the state court failed to conduct any reweighing analysis whatsoever. The circuit reviews de novo the Oklahoma courts' decision to reweigh the factors to determine whether Ross was afforded an individualized and reliable sentencing determination. The court reviews fact findings regarding those factors under the rational fact finder standard, viewing the evidence in the light most favorable to the prosecution. The Supreme Court has never specified the degree of clarity with which a state appellate court must reweigh. The circuit had to determine that the Oklahoma courts actually reweighed, so that the aggravating circumstance provided principled guidance and not necessarily a conclusive justification for the death penalty. The reweighing in this case comported with Constitutional standards.

Habeas Corpus, (28 U.S.C. § 2254) - AEDPA, Amend Petition;

Ineffective Assistance of Counsel - Review Standard, Two Prong Test, Conflict of Interest, Investigation, Present Defense, Guilt/Penalty Phase;

Evidentiary Hearing;

Reweighing - Rational Trier of Fact, Individualized Sentencing, Degree of Clarity; Instruction - Lesser Included;

Jurisdiction - Amend Notice of Appeal, Denial of Rule 60(b) Motion;

Incompetency

Stouffer v. Reynolds, 97-6217, 97-6225 (January 15, 1999)

(James P. Moran, FPD, Denver, Colorado)

Stouffer was convicted of first degree murder of Linda Reaves and shooting with intent to kill her boyfriend. He was sentenced to death on the first conviction. After exhausting state remedies, he filed a petition under 28 U.S.C. § 2254 for habeas corpus relief raising a number of issues, primarily related to ineffective assistance of counsel. The circuit concluded the district court abused its discretion in failing to hold an evidentiary hearing because the record does not satisfactorily answer the question. The circuit accepted the district court's conclusion that the Oklahoma courts properly reweighed the aggravating and mitigating circumstances after finding no evidence of the heinous and cruel aggravator. The circuit remanded to the district court to conduct an evidentiary hearing on the merits of petitioner's Sixth Amendment claims.

At trial, defense counsel claimed that Stouffer acted in self defense. The jury returned in less than an hour with a verdict of guilty on both charges. The court immediately launched the penalty phase. The state relied on three aggravating factors: the murder was committed to avoid lawful arrest, the perpetrator knowingly created a great risk of death to more than one person, and the murder was especially heinous, atrocious or cruel. The state incorporated evidence from the guilt phase. Defense counsel offered no opening statement. Counsel presented one witness, a clinical and forensic psychologist. The psychologist told the jury that Stouffer is a 32 year old man going on 15 with atypical personality disorder, is immature with hysterical traits, and is unable to make a mature responsible decision. In its closing argument the state used that evidence. The jury deliberated for three hours.

HELD: (1) The claim of ineffective assistance of counsel presents a mixed question of fact and law reviewed de novo. The court applied the law existing before the AEDPA, because this federal habeas petition was filed in 1995, the year before the AEDPA was enacted. Also Oklahoma has not qualified for opting in under the AEDPA for capital cases. The court accepts fact findings unless clearly erroneous, and recognizes that state court findings are presumptively correct. Because the state court did not hold an evidentiary hearing, the court will evaluate the record as it was. Petitioner must show deficient performance that resulted in prejudice, that is, a trial whose result is unreliable.

(2) Because Stouffer did not object he must demonstrate an actual conflict of interest rather than relying on the presumption. The state's historical fact findings that prior associations were too remote in time, while entitled to deference, are not dispositive. The passage of time alone can not ameliorate a specific instance of conflict. Absent fact findings in the record, the state court's conclusion that Stouffer waived the alleged conflict is not entitled to deferential treatment. Waiver of a constitutional right must not only be voluntary, but also knowingly and intelligently done. The district court did not err in rejecting this basis for ineffective assistance of counsel.

(3) As to ineffectiveness at trial, counsel did not make an opening statement. This, standing alone, is not ineffective assistance of counsel, but it does underscore the lack of any effort to present a defense. While taken alone, no one instance establishes deficient representation, cumulatively each failure underscores a fundamental lack of formulation and direction in presenting a coherent defense. Whether that violates Strickland requires further evidentiary exploration. The court combined concern over counsel's conduct in presenting a defense with the overall trial strategy. The court suspected counsel did not previously interview witnesses or adequately prepare for trial. If the defense strategy was to show inconsistencies in the state's case, counsel's performance reinforced the state's evidence. The court could not determine without an evidentiary hearing whether counsel was ineffective at trial.

(4) The court turned to the penalty phase to determine whether the lack of mitigating evidence presented in the penalty phase proved the prejudice prong of Strickland. The court had to look at affidavits because no evidentiary hearing was held in state or federal court. On the basis of potential bad character evidence, which the circuit characterized as a "non-entity" in the record, and no representation from the state that it had evidence of bad character, counsel made the "tactical decision" not to call witnesses to testify as to Stouffer's good character. The court was "baffled" by counsel's decision to go with the one witness it did, against the wishes of his client. Nothing in the guilt phase indicated that Stouffer had behaved immaturely and impulsively. While the decision to present no mitigating evidence may be a tactical one, the failure to investigate the existence of such evidence triggers a fundamental component of the Sixth Amendment. The introduction of mitigating evidence individualizes the capital sentencing proceeding.

(5) To establish entitlement to an evidentiary hearing under pre-AEDPA law, a petitioner must make allegations which, if proved, would entitle him to relief. When the facts are in dispute, the federal court must hold an evidentiary hearing, if the petitioner did not receive a full and fair hearing in state court. The district court erred in failing to hold an evidentiary hearing.

(6) Stouffer acknowledges the state was correct in reweighing aggravating factors after invalidating the heinous and cruel factor, but urged that the reweighing lacked the essential substance mandated by Richmond v. Lewis, where the decision was too summary to permit any adequate independent review. The circuit reviews de novo the decision reweighing the factors to determine whether Stouffer was afforded an individualized and reliable sentencing determination. The court asks whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. At a minimum, the circuit had to determine that the state court actually reweighed. The Supreme Court has never specified the degree of clarity with which a state appellate court must reweigh. The two remaining aggravating factors clearly outweighed the mitigating evidence presented. While this balance may be affected by counsel's failure to investigate and present mitigating evidence, the sentencing jury was guided by overwhelming evidence of guilt.

(7) Stouffer urges that trial court erred in failing to give a lesser included offense instruction. In Hopper v. Evans, the Supreme Court clarified Beck v. Alabama, to hold that due process requires a lesser included offense instruction be given only when the evidence warrants such instruction. Stouffer introduced no evidence to support either potentially lesser included offense as set forth in Oklahoma law. A state is not required to create a non-capital murder offense for every set of facts under which a murder may be committed.

(8) Stouffer raised two other issues for the first time in his federal habeas petition. He attempted to amend that petition with a claim he was incompetent to stand trial relying on Cooper v. Oklahoma, in which the Supreme Court invalidated an Oklahoma statute requiring the defendant to prove incompetence by clear and convincing evidence to overcome the presumption of competence. The district court denied the amendment, finding nothing in the record or subsequent to it to establish competency was ever an issue, or any objections by defense counsel to any informal determinations about competency. Stouffer appealed the denial of his motion to amend in his notice of appeal. Stouffer also sought relief from judgment under Rule 60(b), appending an affidavit from trial counsel enumerating each instance of his efforts to have the court recognize the need to assess Stouffer's competence. The district court denied this motion saying it came too late. Stouffer did not file a new notice of appeal. Stouffer asserts the initial notice of appeal is sufficient to confer jurisdiction. The denial of a Rule 60(b) motion is separately appealable. Its denial usually raises for review only the district court's order of denial and not the underlying judgment itself. Consequently, absent his filing an amended notice of appeal, the court lacks jurisdiction to consider the claim the district court erred in failing to grant relief from judgment so that Stouffer could present newly discovered evidence of his competence to stand trial.

(9) The district court did not abuse its discretion in denying Stouffer's motion to perform further DNA testing.

Suppression - Review Standard;

Consent - Authority to Consent, Presumption of Control;

Incriminating Statements - Custody, Subsequent Miranda Warnings, Voluntariness, Fruit of Poisonous Tree;

Admission of Evidence - ATF Certificate as to Registration of Weapon, Confrontation, Trustworthiness;

Unlawful Possession of Sawed Off Shotgun (26 U.S.C. § 5861) - ATF Certificate, Sufficient Evidence, Knowledge Element;

Instructions - Jury Nullification

United States v. Rith, 97-4138 (January 19, 1999)

Rith was found guilty of unlawful possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d).

HELD: (1) In reviewing a suppression decision, the trial court's findings of fact are accepted unless clearly erroneous, and the evidence is viewed in the light most favorable to the government. Issues of law, such as whether the consent was valid, are reviewed de novo.

(2) Generally, consent to search given by someone with authority can not be revoked by a co-occupant's denial of consent. There is no requirement that the defendant be physically or constructively absent. Rith's parents were authorized to grant effective consent to the search of their home, but this does not mean they had authority to consent to the search of Rith's bedroom. The government bears the burden of proving by a preponderance that the consentor had mutual use of the property searched by virtue of joint access or control for most purposes. The circuit clarified the McAlpine test as being in the disjunctive: a third party has authority to consent to search of property if the third party has either mutual use of the property by virtue of joint access, or control for most purposes over it. Relationships which give rise to presumption of control include parent/child, and husband/wife relationships. But that presumption may be rebutted by facts that show an agreement or understanding that the latter must have permission to enter the defendant's room. In this case there are insufficient factual findings, that Rith's parents had joint access to his bedroom, to support the conclusion of their authority to consent to a search of the room. However, Rith was 18 years old and lived with his parents and was not paying rent. These facts raise the presumption of control and there was no evidence to rebut this presumption. Therefore Rith's parents had authority to consent to the search of his bedroom.

(3) Rith made statements before he was confronted with the sawed-off shotgun, and statements after he was confronted with the shotgun and Mirandized. The district court concluded, under the totality of the circumstances, that Rith was not in custody until after he was confronted with the shotgun. Custody is determined by the totality of circumstances, and the ultimate inquiry is whether there was a formal arrest or a restraint on freedom of movement to a degree associated with a formal arrest. This court reviews the question of custody de novo, but defers to the district court's findings of historical fact and credibility determinations. Rith was not in police custody until he was confronted with the illegal shotgun.

(4) A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarranted statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. Only if Rith's pre-Miranda incriminating statements were involuntary would the decision in Perdue apply. The question of voluntariness is reviewed de novo. The court considers age, intelligence and education of the defendant, length of detention, length and nature of questioning, whether the defendant was advised of his Constitutional rights, and whether the defendant was subjected to physical punishment. Rith's incriminating statements were voluntary. Therefore the Supreme Court decision in Elstad compels the conclusion that administration of Miranda warnings prior to the second set of incriminating statements met the requirements of the Constitution. Rith's fruit of the poisonous tree argument fails.

(5) 26 U.S.C. § 5861(d) makes it unlawful for any person to receive or present a firearm not registered to him in the National Firearms Registration and Transfer records. The government introduced a document signed by the ATF agent of lack of registration. Affixed to that document was a sealed certificate certifying that the agent signed in his official capacity and the signature was genuine. This was admitted under Rule 803(10). Rith argues he was denied his right to confrontation. The admission of the ATF certificate is reviewed de novo. Because admission of the ATF certificate does not implicate the Sixth Amendment limited requirement of availability, and because the defendant could have called Marshall as a witness, Rith's Sixth Amendment right to confrontation was not denied by failure of the government to call Marshall as a witness.

(6) Rith also urges the ATF certificate did not embody sufficient guarantees of reliability. The circuit held the ATF certificate demonstrates particularized guarantees of trustworthiness. The court considers whether cross examination of the declarant would be of marginal utility, whether the testimony concerns the results of a mechanically objective test, and whether the data base from which the evidence comes is open to the public. The record establishes that the NFRTR database has sufficient guarantees of trustworthiness to satisfy the Sixth Amendment. A quality review team was instituted in 1994, and succeeded in reducing the critical error rate to below three percent. An audit in February 1996 reflects the critical error rate of the database is no more than 1.5 percent. The accuracy of the registration check is buttressed by a second level review by a branch chief. In addition to the reliability of the NFRTR, there was little to be gained from cross examining Marshall. Marshall undoubtedly conducts hundreds of registration searches in a year, and it is unlikely he would have any recollection of the Rith search, and would only be able to testify to his general search method. Admission of the ATF certificate did not violate Rith's Sixth Amendment right.

(7) Rith also urges the evidence was insufficient to prove his knowledge that the shotgun barrel was less than 18 inches in length. A challenge to sufficiency of the evidence is reviewed de novo. The evidence must have been that Rith knew the length of the barrel was less than 18 inches or that the overall length of the shotgun was less than 26 inches. Rith testified that he did not know the length of the shotgun and he knew it was illegal to have a sawed off shotgun. The ATF agent said the length of the barrel was 13 3/4 inches, observably shorter than the legal length.

(8) Propriety of a jury instruction to which an objection was made at trial is reviewed de novo. A conviction will not be disturbed absent a substantial doubt that the jury was fairly guided. Rith urges the trial court erred in instructing the jury that they are not to be governed by sympathy, prejudice, or public opinion, and that the instruction misled the jury into believing that they must convict regardless of mercy or leniency. To the extent the defendant's appeal seeks to permit jury nullification, a criminal defendant is not entitled to have the jury instructed that it can, despite finding the defendant guilty beyond a reasonable doubt, disregard the law.