June 28, 2017

Tenth Circuit: Witness Testimony from Coconspirators who Received Plea Deals Not Inherently Unreliable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dewberry on Tuesday, June 23, 2015.

During an investigation of Virok Webb for crack cocaine distribution, the government became suspicious of Kennin Dewberry as Webb’s dealer. Some time in 2009 or 2010, Dewberry began supplying between 4.5 and 9 ounces of cocaine powder weekly to Webb, and Webb would convert the powder to crack cocaine or cut it with other ingredients (a process known as “the trick”) to double the quantity of powder. In October 2011 a grand jury issued a superseding indictment charging Dewberry, Webb, and others with two drug conspiracies: Count 1 charged them with conspiring to distribute 280 grams or more of crack cocaine and Count 2 charged them with conspiring to distribute 5 kilograms or more of powder cocaine. The government also filed an information stating that Dewberry had a prior felony marijuana conviction.

Dewberry filed a motion to sever his trial in March 2012, which the trial court denied as premature. He filed another motion to sever in February 2013, which the trial court granted. Dewberry’s trial was held in July 2013, and the government’s case was built almost entirely on the testimony of cooperating witnesses. All of the witnesses entered into plea agreements with the government. Dewberry moved for judgment of acquittal under F.R.Crim.P. 29 at the close of the government’s case and again at the close of his case, but the trial court denied both motions. The jury convicted Dewberry of both counts, and also issued special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack cocaine and 5 kilograms or more of powder cocaine. In the PSR, the probation office recommended Dewberry be held accountable for 4.5 ounces of cocaine per week for a 21-week period, and of that he should be accountable for conversion of 2.5 ounces to crack cocaine. The remaining 2 ounces per week was doubled by employing “the trick,” and together these drug amounts equated to a base offense level of 34, which would lead to a presumptive sentencing range of 168 to 210 months, but Dewberry faced a mandatory minimum 20 year sentence because of his prior felony conviction. The district court adopted the PSR’s findings, sentencing Dewberry to concurrent sentences of 240 months for Count 1 and 168 months for Count 2. Dewberry appealed his convictions and sentence.

The Tenth Circuit first evaluated Dewberry’s sufficiency challenges to both counts. Dewberry asserted the government’s evidence was insufficient because it relied on cooperating witnesses who were not reliable and whose testimony was uncorroborated. The Tenth Circuit first noted that it would not reverse a conviction solely because the verdict was based on the uncorroborated testimony of a coconspirator. The Tenth Circuit similarly noted that credibility challenges are generally disfavored and found no reason to entertain Dewberry’s. Although Dewberry asserted the witness testimony was self-serving because they were offered plea deals, the Tenth Circuit found such arrangements common in criminal cases and the arrangement does not necessarily render the testimony incredible.

The Tenth Circuit next considered Dewberry’s challenges to the sufficiency of the evidence concerning the amount of crack cocaine. The jury must have based its finding of 280 grams of crack cocaine on reasonable foreseeability because there was no evidence that Dewberry handled that much. Dewberry contended that the quantity could not have been reasonably foreseeable to him. The Tenth Circuit disagreed, finding sufficient evidence to support the jury’s finding. The Tenth Circuit affirmed the conviction and 240-month sentence.

The Tenth Circuit considered Dewberry’s challenge to the amount of powder cocaine for which he was held responsible. Dewberry argued the amount of crack cocaine attributed to him was incorrect, which affected the amount of powder cocaine. The Tenth Circuit affirmed the district court’s finding, noting that because it made a plausible finding it was not clearly erroneous.

Finally, Dewberry argued the court erred in denying his first motion to sever and causing him to experience undue delays waiting for trial. The Tenth Circuit disagreed, finding Dewberry could show no prejudice since the trial court granted his second motion to sever and finding the issue of Speedy Trial Act delays inadequately briefed.

The convictions and sentences were affirmed.

Comment Period Open for Changes to the Federal Rules of Civil, Appellate, Bankruptcy, and Criminal Procedure

The Judicial Conference Committee on Rules of Practice and Procedure has opened the public comment period for several proposed changes to the following rules and forms:

  • Appellate Rules 4, 5, 21, 25, 26, 27, 28.1, 29, 32, 35, and 40, and Forms 1, 5, 6, and New Form 7;
  • Bankruptcy Rules 1010, 1011, 2002, 3002, 3002.1, 3007, 3012, 3015, 4003, 5009, 7001, 9006, and 9009, and New Rule 1012, and Official Forms 11A, 11B, 106J, 201, 202, 204, 205, 206Sum, 206A/B, 206D, 206E/F, 206G, 206H, 207, 309A, 309B, 309C, 309D, 309E, 309F, 309G, 309H, 309I, 312, 313, 314, 315, 401, 410, 410A, 410S1, 410S2, 416A, 416B, 416D, 424, and Instructions, and new Official Forms 106J-2 and 113;
  • Civil Rules 4, 6, and 82; and
  • Criminal Rules 4, 41, and 45.

A PDF of the proposed changes may be found here.

The public comment period closes on Tuesday, February 17, 2015, at 11:59 p.m. Members of the public who wish to present testimony may appear at public hearings on the proposed amendments.

Comments and supporting files must be submitted electronically using the Regulations.gov portal. After choosing the appropriate link below, click the “Submit a Comment” link. This will display the comment web form. You can then enter your submitter information and attach your comment as a file (up to 10MB), or type your comment directly on the web form. When you have finished attaching or typing your comment, click the “Preview Comment” link to review. Once you are satisfied with your comment, click the “Submit” button to send your comment to the advisory committees. Upon completion, you will receive a tracking number for your submission.

Detailed instructions on how to submit a comment are given in the Regulations.gov FAQs.

Tenth Circuit: Denial of Motion for New Trial Based on Inadmissible New Evidence Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Hill on Tuesday, December 10, 2013.

Defendant Vernon Hill was charged with bank robbery, along with his brother Stanley. Hill was convicted; Stanley was not as the jury could not agree as to him. Stanley was later retried and convicted. Several months after Defendant’s conviction, the government, having obtained cell phone data and other additional evidence, charged Defendant and his brother DeJuan with conspiring to commit various robberies, including the robbery of the bank. In presenting the new case to the grand jury, FBI agent Charles Jones testified that the government’s understanding of the bank robbery had changed: Stanley had not been one of the two masked robbers in the bank but had driven the getaway car. Dejuan had been the other robber in the bank with Defendant.

The Defendant appealed the denial of his motion for a new trial based on newly discovered evidence. Motions based on newly discovered evidence are disfavored and denials are reviewed for abuse of discretion. The Tenth Circuit applied the five-part test in United States v. Orr in deciding if Defendant had met his burden to establish:

(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted.

Any new evidence must be admissible at trial. The court held that the only possible new evidence, Agent Jones’s grand jury testimony, was opinion testimony and so not admissible. It therefore affirmed the district court.

Tenth Circuit: Unconditional Guilty Plea not Knowing and Voluntary Where Court Incorrectly Told Defendant He Would Still Have Right to Appeal

The Tenth Circuit Court of Appeals published its opinion in United States v. Avila on Wednesday, August 21, 2013.

Ramiro Avila was charged with possession of a controlled substance with intent to distribute. After the district court denied his motion to suppress, Avila entered an unconditional guilty plea to the charge. Avila sought to appeal the denial of his motion to suppress. Because Avila entered an unconditional guilty plea, the Tenth Circuit considered whether Avila’s plea was made knowingly and voluntarily. Avila contended that his plea was not knowing and voluntary because it was induced by the district court’s statement that he would “still have a right to an appeal” if the court accepted his plea. Additionally, the record did not show that the government  made any statements that Avila’s right to appeal would be compromised, or that his attorney properly advised him he would lose his right to appeal.

The court held that when a court chooses to instruct a defendant that he has a right to appeal following the entry of an unconditional guilty plea, the court materially misinforms the defendant regarding the consequences of his plea when it fails further to advise him that the plea may limit that right. Under such circumstances, if the court tells the defendant without qualification that he has a right to appeal, a defendant’s plea is not knowing and voluntary.

The court specifically did not hold that a district court must advise a defendant concerning his right to appeal following the entry of an unconditional guilty plea. It did, however, suggest the Rules Committee “consider revising the rules to require the district court to advise a defendant, at least in a general way, that a guilty plea may prevent him from raising certain issues on appeal.”

The court vacated Avila’s conviction and remand the case with directions for the district court to vacate its sentence and allow Avila to withdraw his guilty plea.

Tenth Circuit: Knowing and Voluntary Waiver of Right to Appeal Enforced

The Tenth Circuit Court of Appeals published its opinion in United States v. Tanner on Friday, July 12, 2013.

Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to F.R.Crim.P. 11(c)(1)(C) in which he agreed to plead guilty to one count of mail fraud for which he would receive a stipulated sentence of 30 months’ imprisonment. The district court accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’ imprisonment. As part of his plea agreement, Tanner waived his right to appeal unless the punishment imposed was greater than the parties had agreed. Despite this waiver and the imposition of the agreed sentence, Tanner brought this appeal claiming his sentence was illegal.

In considering the totality of the circumstances, either the express language of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and voluntary. Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together, demonstrated Tanner’s waiver to have been knowingly and voluntarily made. The court found this to be so despite the trial court’s failure to specifically mention the appellate waiver in its Rule 11 colloquy.

The government’s motion to enforce the waiver was granted and the appeal was dismissed.

Tenth Circuit: District Court Lacked Jurisdiction to Modify Defendant’s Sentence Under Fed. R. Crim. P. 35(a)

The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.

In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.

Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.

More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.

On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.

Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.

The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.

In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.

The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).

In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”

Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.

Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.

Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.

Comment Period Open for Changes to Federal Rules of Practice and Procedure

The United States Courts has opened the public comment period for several proposed changes to the Federal Rules of Practice and Procedure. Comments must be submitted in writing by February 15, 2013.

The changes affect the Federal Appellate, Bankruptcy, Criminal, and Evidence rules. They were approved for publication by the Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Criminal, and Evidence Rules on June 11, 2012, and the public comment period opened August 15, 2012.

The following rules were affected by the proposed changes:

  • Federal Rules of Appellate Procedure, Rule 6;
  • Federal Rules of Bankruptcy Procedure, Rules 1014(b), 7004(e), 7008, 7012, 7016, 7054, 8001-8028, 9023, 9024, 9027, and 9033, and Offiical Forms 3A, 3B, 6I, 6J, 22A-1, 22A-2, 22B, 22C-1, and 22C-2;
  • Federal Rules of Criminal Procedure, Rules 5(d) and 58;  and
  • Federal Rules of Evidence, Rules 801(d)(1)(B) and 803(6), (7), and (8).

A PDF of the changes can be found here. Comments must be submitted to the Advisory Committees in writing, and will be reviewed then made part of the public record. All comments can be viewed through the U.S. Courts website by clicking the links to the Rules sets.