June 18, 2019

Tenth Circuit: No Error in Allowing Government to Use Rule 410 Evidence Against Defendant Who Withdrew Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jim on Tuesday, May 12, 2015.

K.T. had a get-together with some friends at her home on the Navajo Nation, and one of her friends invited Derrick Jim. The group drank alcohol and socialized under K.T.’s carport. Around 1 a.m., K.T. went inside to sleep on her couch. Jim followed her inside, turned off the interior lights and locked the doors, dragged her down the hallway, and forcibly raped her vaginally and anally while K.T. tried to fight him off. As a result of these events, the United States charged Jim with one count of aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2)(A). Jim initially entered into a plea agreement with the government. He pleaded guilty, but before the district court could accept the plea agreement, Jim sent a pro se letter to the district court requesting new counsel because he felt pressured into accepting the plea agreement and did not realize that by entering a plea he would not be allowed to go to trial. The district court appointed new counsel, allowed Jim to withdraw his guilty plea, and allowed him to proceed to trial, where he was found guilty of two counts: the original count plus aggravated sexual abuse—anal penetration by force. He received two concurrent 360-month sentences. On appeal, Jim argued the government should not have been allowed to use FRE 410 evidence against him because his plea was not knowing and voluntary. The government cross-appealed, arguing the district court should have applied a two-level sentence enhancement for causing serious bodily injury.

The Tenth Circuit addressed the Rule 410 contention first. Jim’s argument was that because his plea was not knowing and voluntary, the Rule 410 waiver he signed (allowing the government to use evidence from the plea agreement process during trial) was not valid. Although Jim was required to prove his plea was not knowing and voluntary, he asserted he should be held to a lesser burden based on a line from a Supreme Court decision. Reading the decision as a whole, the Tenth Circuit rejected his argument, finding that Jim offered no proof that his plea was not knowing and voluntary. Jim signed the plea agreement, which adequately apprised him that by doing so he waived his Rule 410 rights, he had a high school education with some college credits, and he had previously signed two other plea agreements related to drunk driving. The Tenth Circuit found no error in the district court’s decision to allow the government to use Rule 410 evidence against Jim.

Next, the Tenth Circuit evaluated the government’s contention that the district court erred by disregarding a two-level sentence enhancement for crimes causing serious bodily injury. The district court, relying on the application note for U.S.S.G. § 2A3.1(b)(4)(B), decided it was not allowed to consider serious bodily injuries caused during sexual assaults in applying the sentence enhancement. The Tenth Circuit, however, analyzed the definition of “serious bodily injury” and determined that the application note referred only to the second definition. If the prosecution proved serious bodily injury under the first definition, the two-level enhancement could still apply. The Tenth Circuit remanded for the district court to determine if Jim’s actions caused serious bodily injury and to resentence if appropriate.

The district court’s judgment was affirmed in part, reversed in part, and remanded for consideration of whether Jim’s conduct caused serious bodily injury to the victim.

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