The Tenth Circuit Court of Appeals issued its opinion in United States v. Irving on Tuesday, November 29, 2011.
The Tenth Circuit affirmed the district court’s convictions. Petitioner was convicted of one count of witness tampering for his part in a murder-for-hire scheme directed at killing a local law enforcement officer prior to that officer testifying against him. He also was convicted of one count of possession of crack cocaine with intent to distribute. Petitioner was sentenced to 360 months in prison, followed by eight years of supervised release. He appealed his conviction, raising five claims: “(1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his convictions; (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom in violation of the Rule of Sequestration; and (5) the district court abused its discretion in admitting testimony from the target of the murder-for-hire scheme regarding his role in an earlier investigation and prosecution of [Petitioner].”
Because the Court rejected Petitioner’s codefendent’s argument that the interplay between “attempt” and “conspiring” in the indictment resulted in the government’s failure to charge a cognizable federal offense, the Court was precluded from reconsidering the issue. Similarly, the duplicitous indictment argument was already rejected as to Petitioner’s codefendent, and was not reconsidered. The Court also found that there was indeed sufficient evidence to support his convictions and that Petitioner was therefore not entitled to relief. Additionally, “given the strong evidence of guilt that exists in this instance, and the inconsistencies in [the excluded] testimony that had otherwise been highlighted by the government, [the Court] conclude[d] that the district court’s error [in excluding the testimony] was harmless.” Lastly, the Court agreed with the government that the district court did not abuse its discretion in determining that the challenged testimony would not result in unfair prejudice to Petitioner.