August 23, 2019

Tenth Circuit: Denial of Suppression Motion Upheld Where Other Evidence of Guilt Overwhelmingly Supported Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mulliken on Tuesday, July 15, 2014.

John Edward Mulliken solicited participants for purported weight loss studies in 2006 and 2008. In 2008, the FDA began investigating two studies, and as a result of the investigation, Mulliken was indicted by a grand jury sitting in the District of Colorado in November 2011. The indictment consisted of 19 counts of mail fraud. Mulliken was arrested in January 2012 at his residence. In August 2012, a superseding indictment issued asserting the same 19 counts of mail fraud, alleging that the purported weight loss studies were part of an “advance fee scheme” in which Mulliken made false representations intended to induce participants to mail deposits that Mulliken had no intention of refunding. In September 2012, Mulliken’s house was searched pursuant to a warrant, and two hard drives, a computer, two binders, and two folders were seized.

Mulliken was tried before a jury and convicted of 17 counts of mail fraud. Prior to trial, he moved to suppress the contents of the search, but the district court denied suppression. Mulliken appealed the denial of suppression to the Tenth Circuit, arguing that the affidavit underlying the search warrant failed to establish probable cause that the items would be found at his residence, that the affidavit failed to establish a nexus between the criminal acts and his residence, and that the list of items to be seized in the search was impermissibly broad.

The Tenth Circuit did not reach the merits of Mulliken’s arguments, determining instead that any error that could have come from the denial of suppression was harmless beyond a reasonable doubt. Only four exhibits were introduced at trial related to the search. Two of them were pictures of computers, one was a copy of an electronic document regarding one of the purported studies, and one was a copy of an email exchange between Mulliken and his father regarding allegations made on Good Morning America. The Tenth Circuit determined that there was overwhelming evidence of Mulliken’s guilt, including testimony from all 17 victims of the 17 counts of conviction. The Tenth Circuit further found that the two pictures could not have influenced the jury, since they were simply pictures of computers. The contents of the document regarding purported studies were largely duplicated by Mulliken’s own testimony. The only potentially harmful part of the email exchange was admitted separately, having been obtained from Mulliken’s father independent of the potentially illegal search. Because there was overwhelming evidence of Mulliken’s guilt and the four exhibits gained from the search in question had little to no impact on the jury, the district court’s denial of the suppression motion was upheld.

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