April 29, 2017

Colorado Court of Appeals: Jury Need Not Find Defendant Committed Particular Overt Act in Furtherance of Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, April 6, 2017.

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.

After an investigation that entailed wiretapping, the People charged defendant with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years.

On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge or not giving the jury a special, modified unanimity instruction regarding the overt act. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction (one that tells the jury that it must agree unanimously as to the act proving each element) need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. The Colorado Supreme Court has indicated that the following factors tend to show a single criminal episode: the alleged acts occurred during the same period, the type of overt act alleged is the same, the unlawful objective of the conspiracy is the same, and the same evidence would be relevant to the charges. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.

Defendant also contended that the district court erred in not providing the jury a limiting instruction. However, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.

Defendant further contended that his rights to jury trial and due process were violated when the judge, instead of the jury, found that he had been convicted of prior felonies. The Colorado Supreme Court has held that the fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Failure to Communicate with Counsel Does Not Warrant Continuance

The Colorado Court of Appeals issued its opinion in People v. Faussett on Thursday, June 16, 2016.

Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance—Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Error in Joint Conspiracy Trial Where Defendant Only Implicated in One Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Friday, May 22, 2015.

Two men robbed an Arvest Bank in Tulsa, Oklahoma in 2011, and a police officer investigating the robbery saw Dejuan Hill driving a car away from the house where the stolen money was found. During Dejuan’s brothers’ trial for the robbery, the police officer recognized Dejuan outside the courtroom. The prosecution changed its theory of the case to include Dejuan as one of the bank robbers, based largely on the officer’s testimony and other circumstantial evidence from cellphone records. Dejuan was indicted, tried, and convicted of both robbing the Arvest Bank and taking part in a larger conspiracy to rob banks, a credit union, and pharmacies in the Tulsa area. Of eight alleged co-conspirators, only three proceeded to a joint trial — Dejuan, his brother Vernon, and Deandre Hopkins. Six robberies were discussed in depth at trial, but Dejuan was only implicated in the robbery of the Arvest Bank. Dejuan appealed his convictions, arguing (1) there was insufficient evidence to convict him of robbing the Arvest Bank, (2) there was a substantially prejudicial variance between the single global conspiracy charged in the indictment and the evidence of individual conspiracies the government produced at trial, (3) the trial court erred by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants, and (4) the trial court erred by denying his motion to exclude gang evidence as unfairly prejudicial under FRE 403.

The Tenth Circuit analyzed the evidence tying Dejuan to the Arvest Bank robbery and found that although it was circumstantial and required the jury to make inferential leaps, it was sufficient to support his conviction. Dejuan was seen leaving the residence where the money was eventually found shortly after the robbery, and someone had used a cellphone right around the time the officer saw Dejuan leaving the house. Further, video footage showed that the robber was approximately the same height as Dejuan and probably had a similar skin tone. The majority of the panel found this evidence sufficient to support his conviction regarding the Arvest Bank robbery.

The Tenth Circuit next addressed Dejuan’s argument regarding the conspiracy charge. Dejuan asserted that at most he could be convicted of a smaller conspiracy to rob the Arvest Bank and the government failed to prove he was part of a larger conspiracy, causing him to be substantially prejudiced. The Tenth Circuit agreed there was a variance, since there was “scant evidence tying Dejuan to any larger conspiracy” other than the Arvest Bank robbery. The evidence presumed to establish Dejuan’s participation in the larger conspiracy was primarily the police department’s certification of his involvement in the Hoover Crips gang, and even the government’s witness was unsure whether Dejuan was a Hoover Crip. The Tenth Circuit next analyzed whether this created a prejudicial spillover, first deciding that the number of conspiracies proved and defendants tried was too small to inherently prejudice Dejuan. The majority panel found that the jury would have no problem distinguishing Dejuan’s conduct from that of his co-defendants. Likewise, the Tenth Circuit found little possibility that the variance would have caused the jury to misuse the evidence, since the evidence was not so intricate the jury could not distinguish Dejuan’s actions. The Tenth Circuit then analyzed the strength of the evidence underlying the conspiracy conviction and found that although it was a close call, the evidence proving Dejuan’s involvement in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. The majority found possible benefit to Dejuan of the global conspiracy evidence, since it gave him an avenue to discredit the Arvest Bank evidence.

The Tenth Circuit next addressed Dejuan’s contention that the trial court improperly denied his motion for misjoinder. Dejuan argued the indictment failed to show facts demonstrating a common scheme or involving all of the defendants and all of the charged offenses. Dejuan contended he was prejudiced because the jury heard evidence about robberies in which he was not involved and this led to the possibility of the jury finding his guilt by association. He believes the trial court should have allowed him to have a separate trial to cure the inference of guilt by association. The majority disagreed, finding that Rule 14’s language that the court may provide “any other relief” supported the trial court’s use of limiting instructions. Because Dejuan did not point to any specific instances of prejudice but rather relied on a broad assertion of guilt by association, the court found his assertions insufficient to demonstrate prejudice.

Finally, the Tenth Circuit addressed Dejuan’s argument that the trial court erroneously denied his motion in limine to exclude evidence of his gang affiliation. Because the government introduced no evidence showing his gang membership was relevant to the issues at trial and it was unfairly prejudicial, Dejuan argues the evidence of his gang affiliation should have been excluded. Although the Tenth Circuit acknowledged that the trial evidence established only smaller conspiracies and the only evidence tying Dejuan to the larger conspiracy was his gang affiliation, the Tenth Circuit determined that these two determinations were subject to “hindsight bias” and there was no abuse of discretion at the time the trial court decided to include the evidence.

The majority panel concluded that although Dejuan was correct that a variance existed, it did not prejudice Dejuan so as to necessitate reversal. The district court’s judgment was affirmed in all other respects. Judge McHughs wrote a thoughtful dissent, disagreeing with the majority’s conclusion that the variance did not prejudice Dejuan and noting the weakness of the evidence against him.

Tenth Circuit: Buyer-Seller Rule Did Not Preclude Conspiracy Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gallegos on Thursday, April 30, 2015.

A law enforcement investigation of Iran Zamarripa, the regional supervisor of an international methamphetamine ring, led to the arrest and trial of Simona Gallegos. Gallegos was the common law wife of a co-defendant, Pedro Juarez, and she purchased relatively small quantities of meth from Zamarripa on three occasions. Gallegos was tried with three co-defendants and ultimately found guilty of one count of conspiracy to distribute methamphetamine and possession with intent to distribute, two counts of possession with intent to distribute, and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos appealed.

Gallegos’ first argument on appeal was that the district court erred by admitting hearsay statements of her alleged co-conspirators without independent evidence she conspired with them. The Tenth Circuit declined to address the issue, finding Gallegos failed to point to specific statements.

Gallegos next challenged the sufficiency of the evidence supporting all four of her convictions. Gallegos contended the government’s evidence only supported that she obtained methamphetamine for personal use. However, the evidence forming the bases for her convictions showed she purchased the meth for Juarez, and on one occasion because he “ha[d] people[ ] waiting.” Gallegos contended the buyer-seller rule precluded her conviction even if she purchased the meth to distribute, but the Tenth Circuit found that contrary to its own precedent. The Tenth Circuit found the evidence that Gallegos “ha[d] people[ ] waiting” was by itself sufficient to infer an agreement to distribute methamphetamine, and further evidence that meth was delivered to Gallegos and she purchased meth on credit supported her convictions.

The Tenth Circuit also addressed Gallegos’ variance argument. Gallegos argued that the government proved only that she conspired with Juarez, and the evidence created a “spillover effect,” enabling her to be convicted of crimes for which she was not involved. After conducting a plain error review, the Tenth Circuit found little risk of the “spillover,” and certainly not enough to satisfy the third prong of the plain error test. The Tenth Circuit also found Gallegos unable to satisfy the fourth prong of the review.

Gallegos next argued that the district court erred in allowing testimony concerning a co-defendant’s post-arrest request for an attorney. The Tenth Circuit again reviewed for plain error since Gallegos failed to preserve the issue for appeal. Gallegos argued the evidence invited an inference of the co-defendant’s guilt, which was improperly imputed to her. The Tenth Circuit disagreed, finding the prosecution presented distinct evidence as to Gallegos and the other co-defendants.

The district court’s judgment was affirmed.

Tenth Circuit: Defendants’ Convictions in Methamphetamine Trafficking Conspiracy Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Serrato on Friday, February 7, 2014.

Eddie Serrato and Sotero Negrete are drug dealers. In this case, they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raised four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment.

Mr. Negrete raised arguments one and two above and added that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

First, both defendants challenged as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant’s cross-examination of DEA Special Agent Ryan Cox, and the other in counsel’s rebuttal closing argument. They contended that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

During cross-examination of Special Agent Cox, defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.” Government counsel objected: “Your Honor,  I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr. Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.”

Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The district court denied the motion.

The second challenged remark occurred during the government’s rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant. Government counsel stated: “If you remember, these defense counsel had an opportunity to ask Agent Malone whatever they wanted. They never asked him.” Counsel for Mr. Serrato objected. Mr. Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as instructed, no defendant has any obligation to present a single piece of evidence or a single question.” The district court overruled the objection.

The Tenth Circuit assumed without deciding that the government  counsel’s comments were improper. Nevertheless, despite the impropriety, the court did not view the comments in a vacuum. The district court immediately and specifically gave the jury a curative instruction. As for the prosecutor’s comment during his rebuttal argument that the defendants could have asked Agent Malone questions if they had wanted to, the court found that sustaining the objection would have been the better course. However, the Tenth Circuit did not view that manner of responding to the objection as an error of constitutional significance.

Second, Defendants argued that the government failed to prove at trial the existence of one single conspiracy as charged in the indictment, resulting in a fatal variance between the charge and the evidence. A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. A variance is reversible error only if it affects the substantial rights of the accused.

The court concluded that the defendants’ actions, particularly providing assistance to Mr. Negrete in selling methamphetamine provided by Mr. Serrato, were acts in furtherance of the shared objective of distributing drugs received from a common source. The evidence before the jury was substantial enough to allow it to draw the conclusion that there existed an ongoing, facilitative relationship between parties who were aware of the scope of one another’s activities. The Tenth Circuit held that the evidence was sufficient to support the jury’s conviction on the single conspiracy as charged.

Third, Mr. Serrato appealed the district court’s calculation of his offense level under the Federal Sentencing Guidelines, arguing that a two-level increase for offenses involving the importation of methamphetamine should not have been applied. The court concluded that even if the district court erroneously included the importation enhancement in its calculation of the offense level—which the court neither reached nor decided—the error would be harmless.

Fourth, Mr. Serrato challenged the district court’s denial of his motion to suppress evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argued that the stop was an unreasonable seizure under the Fourth Amendment. The district court found that law enforcement knew from surveillance that cars, particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of delivering methamphetamine and would park in the garage; and that a delivery of methamphetamine to be later transported to Iowa was scheduled to occur on approximately April 6, 2011. On that date, law enforcement observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted approximately 10 minutes, and the only information that was obtained was the driver’s (Serrato’s) identification. The district court concluded that these facts established that law enforcement had a reasonable suspicion of Defendant Serrato’s involvement with illegal activity when they stopped him. The Tenth Circuit concluded that these facts gave rise to reasonable and articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified a traffic stop.

Finally, Mr. Negrete was convicted of knowingly using and carrying a firearm during the commission of a drug trafficking crime (namely, conspiracy to possess with intent to distribute and distribution of methamphetamine). Mr. Negrete challenged the sufficiency of evidence, arguing that the government did not place a specific firearm into evidence at trial. Viewing the evidence in the light most favorable to the government, the court held that there was substantial evidence of Mr. Negrete’s guilt. The court did not know why a firearm was not placed in evidence, but the charge was proved by other means. The court was not persuaded that the jury’s determination should be overturned.


Tenth Circuit: Former Police Officer’s Drug and Theft of Government Funds Convictions Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Wells on Friday, January 3, 2013.

A grand jury charged Harold Wells, an officer of the Tulsa Police Department, with multiple offenses relating to the performance of his official duties. Following trial, a jury convicted Wells on two counts of violating federal drug laws and two counts of theft of government funds. On appeal, Wells raised the following four challenges to his convictions: (1) the district court erred in ruling he had no expectation of privacy while conducting a consent-based search of a motel room outside the presence of the room’s occupant; (2) the drug convictions are not supported by sufficient evidence; (3) the district court erred in excluding, as hearsay, certain audio recordings contained on a key fob; and (4) the district court erred when it denied his motion for a mistrial after a government witness testified about the possibility he had previously negotiated a plea deal with the government.

The Tenth Circuit largely adopted the district court’s reasoning as its own in concluding Wells had no reasonable expectation of privacy in the undercover agent’s motel room outside the presence of the agent. The court also rejected Wells’s insufficiency of the evidence arguments.

The court found no abuse of discretion in the exclusion of the key fob evidence as the rule of completeness was not implicated. Applying the factors in United States v. Meridyth, the court held that the denial of a mistrial was also not an abuse of discretion. The court affirmed.

Tenth Circuit: Secret Vehicle Compartment Maker’s Conviction for Conspiracy and Witness Intimidation Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Anaya on Friday, August 16, 2013.

Alfred Anaya built secret compartments in vehicles for a major drug trafficking organization to hide drugs and money. He was indicted on one count of conspiracy to distribute and possess with intent to distribute cocaine, methamphetamine (“meth”), and marijuana; and on two counts of intimidation of federal witnesses. A jury convicted him on the conspiracy charges related to cocaine and meth and on both counts of intimidation. The district court sentenced him to 292 months in prison for the conspiracy count and 240 months for the intimidation counts, to run concurrently.

Anaya argued the evidence was insufficient for the jury to convict him of conspiracy. The Tenth Circuit disagreed. To prove Anaya knowingly joined the conspiracy, the government did not need to prove Anaya knew of every type or amount of drug trafficked by the conspiracy. It only needed to prove Anaya knew that conspiracy members “knowingly or intentionally” possessed a “controlled substance” with the intent to distribute it.

Next, Anaya argued prosecutorial misconduct rendered his trial so unfair as to make his conviction a violation of due process. The court set out the possible standards of review and concluded plain error review applied, but none occurred.

Anaya also argued that evidence did not support the willful blindness jury instruction that was given. The court held this was not error given the substantial evidence of Anaya’s guilt. The court also rejected his cumulative error argument and affirmed.

Tenth Circuit: Drug Conspiracy Convictions and Sentences Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Brooks on Friday, August 16, 2013.

Mark Brooks and Marcus Quinn were arrested after an investigation into a large Kansas City–area drug distribution operation. They were charged with and convicted of various drug conspiracy charges and sentenced to thirty-five years’ and thirty years’ imprisonment, respectively. The Tenth Circuit consolidated their separate appeals because of overlapping factual and legal claims.

Brooks and Quinn both objected to the overview testimony offered by FBI Agent Swanson on how the government’s investigation into the drug conspiracy unfolded and the roles played by individual defendants. Overview testimony can include lay and expert opinion. Agent Swanson was not qualified as an expert by the government, nor was his testimony objected to on that basis by the defense at trial. The court found no plain error in his testimony’s admission and held that the specific testimony objected to on appeal was elicited after the defense opened the door on cross. The Tenth Circuit did, however, discuss the dangers of overview testimony and suggested ways to minimize the danger.

Brooks and Quinn also argued that the government improperly bolstered its cooperating witnesses through the testimony of Agent Swanson. The court found that the defendants had opened the door to the complained-of testimony during cross and that it was not improper bolstering.

Quinn argued there was insufficient evidence to support his conviction for conspiracy because there was no evidence of an agreement between himself and the other conspirators nor evidence of interdependence. The court found there was sufficient evidence to support the conspiracy conviction.

Quinn also argued the district court erred in allowing evidence of his prior drug distribution conviction to be admitted at trial. The court found no abuse of discretion in admitting the evidence as it met the requirements of FRE 404(b) and a proper limiting instruction was given.

Quinn argued his sentence was procedurally unreasonable. The court found no merit to his arguments, including his “novel” argument that “because his prior drug dealing conviction was used to determine his guilt for conspiracy, it cannot be used to calculate the applicable sentence — thereby entitling him to a two-level reduction in his offense level.”

Brooks argued that the ten-year disparity between his sentence (35 years) and that of Antonio, who pleaded guilty and received 25 years, made his sentence substantively unreasonable as Antonio was more extensively involved in the conspiracy. The court found no abuse of discretion because Brooks was given a within-guidelines sentence which carries a presumption of reasonableness. The disparity also had a reasonable basis as Antonio’s guilty plea spared the substantial judicial resources of a trial. The court affirmed both convictions and sentences.

Tenth Circuit: Failure to Make Particularized Findings Required Reversal of Sentence

The Tenth Circuit Court of Appeals published its opinion in United States v. Figueroa-Labrada on Friday, June 28, 2013.

A methamphetamine dealer in Oklahoma City and several of his buyers and sellers were indicted for their alleged involvement in a methamphetamine distribution conspiracy. Jesus Figueroa-Labrada, one of the buyers, was convicted of conspiring to possess methamphetamine with intent to distribute. Figueroa was involved in only three of the conspiracy’s eight drug transactions, but his presentence investigation report (“PSR”) calculated his advisory sentencing range under the U.S. Sentencing Guidelines (the “Guidelines”) by attributing to him as relevant conduct all of the methamphetamine distributed through the conspiracy, more than doubling his Guidelines range. The sentencing court adopted the PSR’s Guidelines calculation to determine Figueroa’s sentence but made no particularized findings on his relevant conduct.

Figueroa’s attorney failed to object at sentencing to the lack of particularized findings or the fact that the PSR attributed all the methamphetamine distributed rather than the amount in his three buys, even though it was pointed out to him by the prosecutor. On appeal, he argued plain error. The court found the failure to object constituted forfeiture, not waiver of the issue and found the court’s failure to make particularized findings did constitute plain error. In a drug conspiracy case, a sentencing court “must make particularized findings (or adopt particularized findings made in the PSR) on both jointly undertaken criminal activity and reasonable foreseeability before attributing the actions of coconspirators to a defendant as relevant conduct.”

The court held that the error affected Figueroa’s substantial rights because it likely resulted in a significantly longer sentence than if the court had only attributed to him his relevant conduct of buying a lesser amount of drugs than that involved in the whole conspiracy. Because the error had a serious effect on the fairness and integrity of his judicial proceedings, the court reversed and remanded for resentencing.

Tenth Circuit: Drug Conspiracy Convictions Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Renteria on Thursday, June 27, 2013.

This opinion consolidates the appeals of three of four gang members who were convicted of several charges involving their conspiracy to distribute methamphetamine, including money laundering and weapons possession.

The three defendants alleged the district court abused its discretion by admitting summary charts over objection. The charts were summaries of UPS, Money Gram, and Western Union documents. The actual records were admitted as business records. The defendants complained the summarizer added dates from testimony of two witnesses, making the charts a summary of testimony rather than records. Summarized exhibits relying on previous testimony are admissible under FRE 611(a) if the summaries aid the jury in ascertaining the truth and whether any prejudice would result. The Tenth Circuit determined the trial court did not abuse its discretion.

The defendants all made insufficiency of the evidence arguments. The court discussed in detail the requirements for a firearm to be possessed in furtherance of a drug trafficking crime and found that argument failed, as did all the others. The court affirmed.

Tenth Circuit: No Fourth Amendment Violation Even if Driveway Was Within Curtilage

The Tenth Circuit published its opinion in United States v. McDowell on Friday, April 12, 2013.

A jury convicted Defendant Theodore McDowell of one count of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Prior to trial, Defendant unsuccessfully sought to suppress evidence seized in the Avondale, Arizona house where he was arrested along with four other men. He appealed the denial of his motion to suppress as well as two sentencing issues.

McDowell argued the officers searching the Avondale property violated the house’s curtilage while gathering the facts that supported the search warrant, thereby rendering the warrant invalid. The Fourth Amendment protects a house’s curtilage, that is, the “area immediately surrounding the home.” An officer had gone to the house originally to attempt to locate an assault suspect. When he entered the driveway on the way to the front door, he smelled the strong odor of unburned marijuana. The Tenth Circuit applied the U.S. Supreme Court’s recently decided Florida v. Jardines case and upheld the denial of the motion to suppress. Even if a home’s driveway may arguably fall within the curtilage, a police officer may still ‘“approach a home and knock, precisely because that is ‘no more than any private citizen might do.’”

McDowell argued the district court should not have found that his involvement in the conspiracy began in May 2006 as the presentencing report concluded. The Tenth Circuit found the evidence supported the reasonable inference he was participating in the conspiracy by that date. The court also rejected Defendant’s argument that the court erred in determining the quantity of drugs trafficked by the conspiracy. Because the amount was based on a conspirator’s testimony, it was not speculative. The court affirmed McDowell’s sentence.

Tenth Circuit: Defendant’s Conviction of Conspiracy to Possess with Intent to Distribute Cocaine Affirmed

The Tenth Circuit published its opinion in United States v. Patterson on Friday, April 5, 2013.

The events that gave rise to Adrian Patterson’s indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations, which was presented at trial. Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine.

On appeal, Patterson raised a number of challenges to his conviction and sentence. He contended:

(1) The district court erred in denying his request for a pretrial hearing to determine his competency to stand trial.

A defendant’s right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in limited circumstances. These include “if there is  reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Based on the district court’s observations of Patterson, the Tenth Circuit held the district court did not abuse its discretion in denying his request for a competency hearing.

(2) The evidence offered by the government was insufficient to support his conviction and to provide a basis for the admission of testimony under the coconspirator exception to the hearsay rule.

The Tenth Circuit found that the district court’s factual finding as to the existence of a conspiracy was not clearly erroneous. Further, in the light most favorable to the government, a rational juror could draw the conclusion from the evidence that Patterson was involved in a conspiracy to distribute cocaine.

(3) His Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial.

Patterson argued that the admission of hearsay testimony violated principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). The Court held that the admission of statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial.

(4) The district court improperly instructed the jury.

The district court made statements about its schedule. Patterson argued the statements exerted undue coercion on the jury. The Tenth Circuit held Patterson’s interpretation of the comments as coercive had no basis in the record or in the law. The district court did not plainly err in its interaction with the jury over scheduling matters.

(5) The district court’s finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous.

Patterson next challenged the district court’s factual finding at sentencing that he was responsible for distributing fifteen kilograms of cocaine. The Tenth Circuit found Patterson did not meet his burden of showing clear error. The testimony supported a finding that up to sixty kilograms of cocaine was actually or intended to be distributed during the conspiracy.

(6) The indictment was insufficiently specific as to the counts charged against him.  

The two principal criteria by which the sufficiency of an indictment is assessed are “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011).

Based on this standard, the Tenth Circuit found no error.

(7) The district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

Patterson’s last claim is that the district court erred in not granting his motion to suppress evidence obtained from the government’s alleged illegal use of cell site location information. By failing to develop any argument on this claim in the Tenth Circuit, Patterson waived this claim.