TENTH CIRCUIT DECISIONS

NOVEMBER 1998

Double Jeopardy - Sentence Enhancement and Prosecution; Perjury; Obstruction of Justice Enhancement

United States v. Rohde, 98-4000 (November 3, 1998)

The United States appealed the dismissal on double jeopardy grounds of a perjury indictment against Rohde. After pleading guilty to bank robbery and a related firearm offense, but before being sentenced, Rohde testified falsely at her accomplice's trial. Because she obstructed justice, the sentencing court enhanced her sentence on the bank robbery and firearm offenses. In light of that enhancement, the district court held that the double jeopardy clause prevented the government from prosecuting Rohde for perjury based on the same testimony.

HELD: (1) A sentence enhancement for perjury, even where the perjury is committed after conviction for the underlying offense, does not bar a subsequent prosecution for the same perjury.

Admission of Evidence - Identity (Rule 404(b)); Mistrial - Discretion Standard, Cautionary Instructions; Jurors - Bias Based on Occupation, Harmless Error, Use of Peremptory Challenge, Jury Tampering, Hearing; Kind of Drug - Crack Versus Powder

United States v. Brooks, 97-1367 (November 12, 1998)

(Darrald W. Kilmer, Denver, Colorado)

Brooks was charged with distribution of cocaine base. He was found guilty after jury trial and was sentenced to 165 month term of imprisonment.

At trial, the United States sought to admit a tape recording of a September 6 telephone conversation between Brooks and Johnson, the confidential informant. Brooks moved to exclude the recording on grounds of irrelevancy and inadmissibility as more prejudicial than probative. The district court admitted the conversation as prefatory action anticipating the September 15 transaction. It was also probative of identity of an individual identified as "paper." Prior to trial, the government indicated it would elicit testimony regarding Pressley's meeting with Brooks on October 12, for the purpose of demonstrating Pressley's ability to identify the voice and person of Brooks. Based on the limited nature of the testimony, Brooks did not initially object. But when Detective Pressley took the stand, the United States began laying a foundation through carefully tailored leading testimony, but the witness volunteered further information as to the purpose of the October 12 meeting about purchasing drugs. Brooks moved for mistrial. The district court denied the motion, giving the jury a lengthy cautionary instruction.

Brooks challenged for cause a potential juror whose father had been a colonel in the Vietnamese Army, and whose duties included commanding drug control operations in South Vietnam.

Before jury selection had been completed, defense counsel observed juror Kimberly smoking a cigarette and talking with two uniformed security officers. Brooks brought the incident to the district court's attention and asked the district court to inquire whether Kimberly had discussed the case with security officers.

HELD: (1) The district court did not abuse its discretion in admitting the recorded conversation as it was properly admissible under Rule 404(b) to demonstrate identity. The district court did not abuse its discretion in allowing the government to explore some of the circumstances leading up to the October 12 meeting.

(2) A ruling on motion for mistrial is within the discretion of the district court. Because the government appropriately minimized the prejudicial other crimes aspect of Pressley's testimony and cut Pressley off when he began to explain the purpose of the meeting, and because of the cautionary instruction, the district court did not abuse its discretion.

(3) The court doubted the implied bias of the juror based on the occupation of his father. But even if the denial of the challenge for cause were error, it was harmless because the juror was removed by preemptory challenge. Brooks can not show prejudice from the loss of the preemptory challenge because, while he has a right to be tried by a jury whose members are selected by non-discriminatory criteria, he has no right to a petit jury composed in whole or in part of persons of his own race. In addition, a district court's alleged erroneous denial of a challenge for cause is reviewed for harmless error without regard to its effect on a litigant's preemptory challenges.

(4) In Remmer v. United States, 347 U.S. 227, the Supreme Court held the trial court errs in failing to conduct a hearing to determine the effect of tampering with a juror during a trial. This is because any private communication or contact or tampering with a juror during a trial about a matter pending before the jury is presumptively prejudicial. However the mere fact of a juror conversing with a third party does not raise the presumption. The court had told the jurors not to discuss the case with anyone.

(5) The argument that the distinction between cocaine powder and crack cocaine violates the Fifth and Eighth Amendments is foreclosed by Tenth Circuit precedent.

(6) Review of the issue of whether the base offense level was improperly calculated based on crack versus powder is reviewed for plain error because it had not been raised below. The testimony at trial was far more than a casual reference to crack cocaine. Amendment 487 to the guidelines states that cocaine base means crack, and crack is the street name for a form of cocaine base prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy rock-like form. The fact that the chemist only referred to the substance as cocaine base and did not state it contained sodium bicarbonate/baking soda does not render the testimony insufficient. Habeas Corpus (28 U.S.C. § 2254) - Review Standard, Severance, State Evidentiary Rulings, Prosecutorial Misconduct; Double Jeopardy - Second Prosecutions, Multiple Punishments, Legislative Intent, Blockburger, State Law; Appeals - Summary Disposition; Incriminating Statements - Bruton

Cummings v. Evans, 96-6382 (November 12, 1998)

(Jenine Jensen, FPD, Denver, Colorado)

Cummings appeals the denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cummings was convicted of robbery with a dangerous weapon after former conviction of a felony, and assault and battery with a deadly weapon AFCF. The trial court imposed consecutive sentences of 25 years for the robbery charge and 100 years for the assault and battery charge. The Oklahoma Court of Criminal Appeals affirmed in a summary opinion. Cummings filed a petition for writ of habeas corpus. The district court denied the petition.

HELD: (1) The court reviews a district court's conclusions of law de novo, but presumes state court fact findings are correct unless fairly supported by the record. The court reviews mixed questions of fact and law de novo.

(2) The double jeopardy clause protects against a second prosecution for the same offense after acquittal, second prosecution for same offense after conviction, and protects against multiple punishments. That protection is limited to ensuring that the sentencing discretion of courts is confined to the limits established by the legislature. When a course of criminal conduct constitutes a violation of two statutory provisions, the test to determine whether the punishments are multiple in violation of the double jeopardy clause is one of legislative intent. In the absence of clear legislative intent, the court applies the Blockburger test. Under Blockburger, the elements of robbery differ from assault and battery.

(3) However, Oklahoma law provides that an act or omission punishable in different ways by different provisions of the code may be punished under either of such provisions, but in no case can it be punished under more than one. This statutory double jeopardy provision, which is separate from the double jeopardy provision of the Oklahoma state constitution, is indicative of legislative intent. Therefore the court considered the federal constitutional double jeopardy question. In assessing whether a state legislature intended to prescribe cumulative punishment for a single criminal incident, the federal court is bound by a state court's determination of legislative intent. The Oklahoma Court of Criminal Appeals rejected Cummings' double jeopardy argument and this court should defer to the highest state court ruling. However, that was a summary disposition. This court has in the past deferred to summary decisions of the court of criminal appeals. The Oklahoma Court of Criminal Appeals cases demonstrate that completion of one separate and distinct office does not prevent the defendant from being punished for a later offense committed within the same criminal episode if the two offenses did not assist each other, i.e., neither is a means to the other.

(4) Although Bruton prohibits jury consideration of non-testifying co-defendant statements that incriminate the defendant, both co-defendants here who took the stand were subject to cross examination.

(5) The court will not grant habeas relief on state court evidentiary rulings unless they render the trial so fundamentally unfair as to deny a constitutional right.

(6) Habeas relief is available for prosecutorial misconduct only when that misconduct is so egregious that it renders the entire trial fundamentally unfair.

(7) Whether a trial court has erred in denying severance is a question of state law not cognizable in federal habeas.

(8) The number of preemptory challenges is a matter of state law.

Hearsay - Co-Conspirator Statements, Admissions, Pre-Trial Hearing; Conspiracy - Statements, Pre-Trial Hearing; Exculpatory Evidence - De Novo Review, Suppression, Instruction, Bad Faith Not Necessary, No Prejudice; Instruction - Deliberate Ignorance, Prosecutorial Misconduct; Safety Valve Provision (§ 3553(f))

United States v. Gonzalez-Montoya, 98-1022 (November 23, 1998)

Montoya appeals from his sentence for conspiracy to distribute and distribution of methamphetamine.

HELD: (1) A co-conspirator testified to out of court conversations between himself and Montoya. This testimony encompassed out of court declarations by Montoya admissible as non-hearsay under Rule 801(d)(2)(E) and party admissions under subsection (d)(2)(A). The court reiterated its strong preference for a James (pre-trial) proceeding where the government relies on co-conspirator statements. The district court may hold a hearing or provisionally admit the hearsay statement with a caveat that the party offering it must prove the existence of the predicate conspiracy through trial testimony or other evidence. The court may consider the hearsay statement itself, as well as independent factors, in determining whether the government has established a conspiracy by a preponderance of the evidence.

(2) The court reviews questions regarding disclosure of exculpatory or impeachment evidence de novo. Suppression of material information favorable to the accused violates due process. Such favorable information includes impeachment as well as exculpatory evidence. To establish a Brady or Giglio violation, the defendant must establish the prosecution suppressed the evidence, the evidence was favorable to the accused and was material. Documents sought constituted impeachment evidence of an alleged co-conspirator whose credibility played a critical role in the trial. In denying the mistrial, the district court incorrectly stated bad faith is a prerequisite for mistrial. However, no prejudice resulted because defense counsel had the opportunity to review the evidence and question the witness. Defense counsel obtained the evidence during the trial.

(3) Defense counsel objected when the prosecution began to read the deliberate ignorance instruction, but did not challenge the prosecutor's subsequent misstatement of the law. Because defense counsel did not object to the remarks about the reasonable person standard, those are reviewed for plain error. Deliberate ignorance is found where the defendant has subjective rather than objective knowledge of his criminal behavior. But the fact that the prosecutor misstated the standard does not deprive Montoya of a fair trial. Although the trial judge decided not to revisit the deliberate ignorance issue, he reminded the jury it was governed by the court's version of the instruction. The prosecutor's misconduct did not influence the jury to convict on grounds other than the evidence presented, and the court did not abuse its discretion in deciding not to give the deliberate ignorance instruction.

(4) The court reviews the district court's determination of eligibility for relief under the safety valve provision, 18 U.S.C. § 3553(f), for clear error. To the extent the district court interpreted the scope and meaning of the statute, review of the legal interpretation is de novo. The district court found Montoya did not qualify because he failed to satisfy subsection (5) that, not later than sentencing, he truthfully provided to the government all information and evidence concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. While the safety valve provision and acceptance of responsibility are not the same, § 3553(f)(5) goes beyond merely barring the defendant from denying the offense of conviction. Instead the defendant must affirmatively volunteer all he knows.

Habeas Corpus (28 U.S.C. § 2254) - Standard for Habeas Relief (AEDPA); Procedural Bar - Ineffective Assistance of Counsel, Oklahoma Law; Evidentiary Hearing - Pre AEDPA Standard, AEDPA, Denial of Hearing in State Court; Ineffective Assistance of Counsel - Elements of Offense, Deficient Performance, Prejudice, Plea Context; Degrees of Homicide

Miller v. Champion, 97-6439 (November 24, 1998)

Miller appeals the denial of his § 2254 habeas petition.

HELD: (1) Miller's habeas petition is not procedurally barred where, notwithstanding Oklahoma law, the circuit has held a state prisoner may raise an ineffectiveness claim in a § 2254 proceeding, unless he had opportunity to consult with separate counsel on direct appeal, and the state provided a procedural mechanism that afforded him an opportunity to develop adequately the factual basis for his ineffective assistance claim on direct appeal.

(2) Prior to the AEDPA, to be entitled to an evidentiary hearing, a petitioner was required to make allegations which, if proved, would entitle him to relief. If he did that, he was entitled to a hearing only if the facts were in dispute and he did not receive a full and fair evidentiary hearing. Now, to obtain an evidentiary hearing, the petitioner must clear the hurdle of § 2254(e)(2) and show his claim involves a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable, or a factual predicate that could not have been previously discovered through the exercise of due diligence, and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty. Where a habeas petitioner has diligently sought to develop a factual basis underlying his habeas petition, but a state court has prevented him from doing so, § 2254(e)(2) does not apply. The AEDPA does not preclude MIller from receiving an evidentiary hearing. He is entitled to a hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief.

(3) A petitioner is entitled to a writ of habeas corpus only if he can demonstrate that his conviction is contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). As to a Sixth Amendment claim of ineffective assistance, there is a two-prong test of deficient performance and prejudice. An ineffective assistance claim presents a mixed question of law and fact. The court reviews this de novo. Neither the plea hearing transcript nor the plea of guilty statement that Miller signed contains any evidence that Miller's attorney informed him of the depraved mind element of second degree murder. The Supreme Court has emphasized the importance of informing a defendant of the elements of the offense in Henderson v. Morgan. Miller has to show, not only that the attorney failed to inform him of this element, but that it was a critical element of second degree murder, he must overcome the presumption his attorney did explain this to him, and demonstrate that he did not receive notice of this element from any other source. The depraved mind element is a critical element. The record does not contain any indication that Miller's counsel ever informed him. The judge failed to explain this. The indictment or information only charged Miller with first degree murder. Therefore Miller has satisfied the deficient performance test, the first prong of Strickland. To prove prejudice in the guilty plea context of an ineffectiveness claim, Hill v. Lockhart requires proof that there is a reasonable probability that but for counsel's failure, Miller would not have plead guilty. Miller must show that had he rejected the plea bargain, the outcome of the proceedings would have been different, that is, that a jury would have acquitted him of second degree murder. But the factual record in this case is skeletal. The test is not whether a defendant could have been convicted of the crime to which he plead guilty. The test is whether it is likely a jury would have acquitted him of that crime. Miller killed his victim during or immediately after a fight between the two. Had Miller gone to trial, a reasonable jury could have found that he killed his victim in the heat of passion, and found him guilty of first degree manslaughter, rather than second degree murder. In addition, Miller was intoxicated at the time of the killing. A reasonable jury would likely conclude Miller was guilty of no more than first degree manslaughter. The district court should not have dismissed this case and should have held an evidentiary hearing and appointed counsel to represent Miller.

Sufficient Evidence - Review Standard; Admission of Evidence - Prior Crimes (Rule 404(b)), Balancing Test, Prior Conviction (Rule 609), Discretion Standard, Substantive Evidence, Impeachment; Instructions - Review Standard; Armed Career Criminal - Prior Violent Felony, Categorical Approach, Burglary

United States v. Haslip, 97-3205 (November 24, 1998)

Haslip was convicted of bank robbery, use of a firearm during the commission of that robbery, and possession of a firearm after prior felony conviction.

HELD: (1) The court will reverse on a sufficiency of the evidence claim only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The court views the evidence in the light most favorable to the government and will not weigh conflicting evidence nor consider credibility of witnesses.

(2) Prior to trial, the court granted Haslip's motion to exclude evidence of prior convictions under Rule 404(b), finding that the probative value was substantially outweighed by the potential for prejudice. But when Haslip took the stand, the court allowed the government to impeach with the prior convictions under Rule 609. The court reviews the district court's evidentiary ruling for abuse of discretion. This court has long permitted the government to impeach a defendant with reference to prior convictions. A pretrial Rule 404(b) ruling does not preclude the Rule 609 admission. Rule 404(b) is substantive evidence while Rule 609 evidence is impeachment.

(3) The court reviews for abuse of discretion the district court's decision whether to give a particular jury instruction, and reviews de novo whether the instructions as a whole correctly stated the applicable law. The court will reverse only if it has a substantial doubt the jury instructions properly guided the jury in its deliberations and the court finds prejudice. Issues regarding testimony of law enforcement officials and government employees were adequately covered by general instructions. Haslip claimed that the presumption of innocence and proof beyond a reasonable doubt instruction should not have been separated is frivolous. Haslip's other instructions were adequately covered by the aiding and abetting instruction. The instructions also made clear to the jury it could not attribute statements and conduct of one defendant to another. The trial court correctly refused to instruct that possession of a firearm was a lawful activity, given that Haslip was charged with felon in possession. As to eyewitness testimony, Haslip was not entitled to a separate instruction on his theory of the defense so long as the instructions given contained the substance of the proposed instruction.

(4) As a result of being sentenced under the Armed Career Criminal Act, Haslip's sentence went from 147 months to 322 months. The court reviews interpretation of the ACCA de novo. The government must support a § 924(e) enhancement by a preponderance of the evidence. The court uses the formal categorical approach to determine whether a prior conviction constitutes a violent felony under the ACCA. It looks only to statutory definitions of prior offenses and not to the particular facts underlying those convictions. Applying Taylor, the court upholds a § 924(e) enhancement based on a prior burglary conviction if either the statutory definition of burglary substantially corresponds to generic burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary prior to convicting the defendant. The Missouri statute, by including places other than buildings, defines burglary more broadly than Taylor. Under these circumstances, Taylor requires that the court consider whether the charging paper and jury instructions actually required the jury to find all the elements of generic burglary prior to convicting Haslip. Haslip entered a guilty plea and therefore there was no occasion to instruct a jury. In that situation, the sentencing court must look to the underlying indictment or information and the text of the guilty plea. Many of the records pertaining to Haslip's 1969 burglary conviction and plea were destroyed by fire. Available records contain an authenticated copy of the complaint, charging Haslip with breaking and entering the building with intent to steal, and a journal entry of judgment showing he plead guilty to burglary of a building. Therefore, Haslip's 1969 burglary conviction actually represented conduct within the Taylor definition of burglary. The district court did not err in relying on the available documents to conclude that this 1969 offense was a violent felony under the ACCA.