June 17, 2019

Tenth Circuit: Defendant’s Testimony of Coercion Tells Only Half the Story so Polygraph Evidence Admissible in Rebuttal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tenorio on Tuesday, December 29, 2015.

Daniel Tenorio’s 16-year-old niece reported that he had touched her intimately, so the Bureau of Indian Affairs began investigating him. Special Agent Travis LeBeaux interviewed the niece and other family members about the abuse, and later interviewed Tenorio, who denied the allegations. Agent LeBeaux asked Tenorio to take a polygraph, and he agreed, stating he had nothing to hide. Tenorio read and signed the consent, and FBI Agent Jennifer Sullivan administered the polygraph. She suspected he was untruthful and followed up with confrontational questions. Tenorio eventually confessed and wrote an apology letter to the victim, which included such statements as “I should not have grabbed her breast it was wrong,” and “I should not have grabbed her ass.” He was indicted on two counts of knowingly engaging in sexual contact.

Tenorio moved to suppress his confession as involuntary, but the district court denied his motion. Prior to trial, the government filed a motion in limine seeking to introduce evidence of the polygraph. Tenorio responded by moving to prevent admission of the test and results. The district court reserved a final ruling on the motion, warning that testimony regarding the polygraph would likely be overly prejudicial but noting it may revisit the issue depending on Tenorio’s testimony. During trial, Tenorio’s attorney questioned him about the apology letter, and Tenorio repeatedly claimed he only wrote down what the FBI agent told him to write. He also claimed he could not understand why the agent didn’t believe him. In response to the testimony, the government requested to be allowed to question Tenorio about taking and failing the polygraph. The district court found that Tenorio had opened the door to such questioning and allowed limited questioning regarding the voluntariness of the test. The court gave a limiting instruction at the close of the trial. Tenorio was convicted on both counts and appealed.

Tenorio contended the district court erred by admitting prejudicial evidence in violation of FRE 403 because the court did not weigh the prejudicial effect of the evidence. The Tenth Circuit disagreed. The Tenth Circuit relayed the history of the admissibility of polygraph evidence, remarking that United States v. Hall, 805 F.2d 1410 (10th Cir. 1986), set forth a per se rule that polygraphs are not admissible to show truthfulness. The Tenth Circuit noted the evolution of the rule following Daubert, but found that the rule does not apply when polygraphs are not admitted as evidence of truthfulness. The Tenth Circuit held in Hall and has continued to hold that when a defendant opens the door, evidence regarding polygraphs can be admitted as rebuttal evidence: “When a defendant says he was coerced but only tells half the story, rebuttal evidence necessarily impacts the credibility of that defendant’s testimony.” In this case, Tenorio opened the door to the polygraph questioning by repeatedly expressing confusion as to why the FBI agent did not believe him. The government was allowed to admit the polygraph evidence to provide balance to Tenorio’s testimony. The Tenth Circuit found that the district court carefully considered the prejudicial effect of the evidence and limited the potential prejudice by allowing only testimony regarding the fact of the polygraph and not the results, and by giving a similar limiting instruction.

The Tenth Circuit affirmed the district court.

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.

Tenth Circuit: District Court Judgment Affirmed Despite Multiple Assertions of Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brinson on Monday, December 8, 2014.

An undercover officer in Oklahoma solicited prostitution from a website called Backpage.com, and agreed to meet a prostitute at a motel in room 123. At the motel, Officer Osterdyk met C.H., who appeared much younger than 21, and she agreed to perform oral sex on him. She had a cell phone open on the bed, and received text messages during the exchange saying “Don’t do nothing. It’s the cops.” After receiving these messages, C.H.’s demeanor changed, and Officer Osterdyk arrested her.

Other officers were in the parking lot of the motel and observed a black SUV approaching room 123. One of the officers spoke to the hotel desk clerk, who reported that room 123 was rented out to Tarran Brinson, a young black male with dreadlocks or braids wearing a red shirt and a red Chicago Bulls hat. The clerk told the officer that Brinson was a “regular” at the hotel and had rented out four other rooms that week, always paying cash. The clerk said that Brinson drove a black SUV and pointed it out in the parking lot. It was the same SUV the officers saw approaching room 123. Roughly 45 minutes later, the officers found Brinson in the parking lot of a nearby motel and arrested him.

Brinson was charged with conspiracy to engage in sex trafficking, sex trafficking of children, attempted sex trafficking of children, use of a facility in interstate commerce in aid of racketeering enterprise, coercion and enticement, obstruction of justice, and obstruction of justice by threat or corruption. After the government presented its case, Brinson moved for a judgment of acquittal on all charges. The court granted his motion as to the obstruction of justice by threat or corruption charge and denied it as to all other counts. A jury convicted Brinson on the remaining six counts. He appealed on six points of error.

Brinson first argued the district court erred by allowing expert witness testimony on child prostitution, arguing the testimony would not have aided the jury’s assessment and it was not reliable because the expert officer was not familiar with the facts of the case. The Tenth Circuit disagreed. The officer presented testimony on certain terms of the child prostitution trade, which proved helpful to the jury because other witnesses used these terms in testimony. Brinson also argued the testimony was not reliable because the expert officer was not familiar with the facts of the instant case. However, his testimony was used to define terms of the prostitution trade, not to verify the facts of the instant case, and there was no error in its admission.

Next, Brinson argued the admission of certain Facebook and text messages violated his Sixth Amendment Confrontation Clause rights. Ample evidence suggested Brinson had authored the Facebook messages, and they were therefore properly admitted as statements of a party opponent, not implicating the Sixth Amendment. As for the text messages, Brinson failed to specify which messages violated his Sixth Amendment rights, so his argument failed.

Brinson also argued the district court erred in allowing introduction of hearsay statements to Officer Osterdyk during his undercover investigation. The statements did not constitute hearsay, as they were not offered to prove the truth of the matter asserted, but rather to explain why Officer Osterdyk was in room 123, why he knew the price of the sexual act, and why he agreed to pay for oral sex. The statements were not hearsay, and the Tenth Circuit found that even if they had been, they were not “testimonial” and therefore no Confrontation Clause violation occurred.

Brinson next argued the district court erred by admitting a certificate authenticating debit card records. The prosecution admitted the certificate to authenticate the records as business records under FRE 902(11). The Tenth Circuit has previously held that such certificates are non-testimonial and therefore do not implicate the Sixth Amendment. Brinson argued that the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was dispositive, but the Tenth Circuit disagreed, finding instead that the records in Brinson’s case differed from those offered in Melendez-Diaz because the certificate did not contain any “analysis” that would constitute out-of-court testimony.

Brinson argued the evidence obtained after his arrest should have been suppressed, since the police lacked probable cause to arrest him. However, the police had ample reason to arrest Brinson, and there was no error in allowing the evidence obtained after his arrest.

Finally, Brinson argued the evidence was insufficient to support his conviction on each of the six counts. The Tenth Circuit analyzed each count individually and found a reasonable jury could have found Brinson guilty beyond a reasonable doubt of each count.

The Tenth Circuit found that the district court committed no error, and Brinson’s convictions were affirmed.

Tenth Circuit: No Error in Admission of Other Bad Act Evidence to Prove Intent, Motive, and Opportunity

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nance on Tuesday, September 23, 2014.

Jory Nance used peer-to-peer file sharing software to send images of child pornography to an Oklahoma detective. The detective reported Nance to the FBI, who began surveillance on the house where Nance lived with his wife and two young children. When Nance noticed one of the agents, he began deleting files from his laptop and stopped downloading files. He also researched how to reformat his computer. Shortly thereafter, FBI agents seized his computer, which Nance admitted was solely his but falsely claimed had been inoperable for several months.

The FBI conducted a forensic analysis of Nance’s computer and was able to recover over 1,000 deleted images of child pornography. Additionally, the FBI was able to recover names of files with images that were not recoverable, and found that Nance had used his laptop during the period he claimed it was inoperable to access a nudism website. The United States charged Nance with multiple counts of receiving or attempting to receive child pornography. Nance claimed at trial he did not know the images were on his computer, but the jury rejected his defense and convicted him of eight counts of transporting child pornography (related to the files he shared with the detective) and 49 counts of receiving or attempting to receive child pornography. He was sentenced to 64 months in prison followed by five years’ supervised release. He appeals his convictions, arguing (1) the district court erred in admitting evidence of his other bad acts in violation of FRE 404(b)(2); and (2) the evidence was insufficient to prove he attempted to receive child pornography.

The Tenth Circuit first addressed the other bad act evidence. The district court allowed admission of the evidence to prove motive, intent, and opportunity. In making this determination, the district court concluded the probative value of the evidence outweighed the potential for unfair prejudice. The trial court provided a limiting instruction when it was requested. The Tenth Circuit found no error, because the limiting instruction was available and could have been used each time potentially prejudicial evidence was admitted had it been requested. Because defense counsel did not object to the form or content of the limiting instruction, and did not request it each time potentially prejudicial evidence was introduced, the Tenth Circuit found no error.

As to the second claim, Nance asserted the jury could not prove he attempted to receive child pornography because the charges were based on recovered file names without accompanying images. However, the jury did not need to find Nance actually received child pornography — all the jury needed was to find that Nance believed he would receive child pornography. The graphic nature of the file names was enough to prove Nance’s intent.

The Tenth Circuit affirmed all of Nance’s convictions.

Tenth Circuit: No Confrontation Clause Violation for Testimony of Anonymous Confidential Informants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gutierrez de Lopez on Friday, August 1, 2014.

Maria Letitia Gutierrez de Lopez (Gutierrez), along with co-defendant Jesus Cabral-Ramirez (Cabral), was caught attempting to transport illegal aliens from El Paso, Texas to Denver, Colorado by federal law enforcement officers as part of a sting operation. In 2010, FBI and Border Patrol agents initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling operations in New Mexico, Texas, and Colorado. In June 2011, agents apprehended “John Smith,” who agreed to become an informant for the FBI. In November 2011, Smith was contacted by Cabral, who offered to put Smith in touch with Gutierrez to “arrange for work” smuggling undocumented aliens away from the border. Gutierrez called Smith regarding the transport of a person later identified as Eneldo Valenzuela-Carrillo. The government recorded various conversations between Gutierrez and Smith and Cabral and Smith regarding the transport and payment. On November 21, 2011, Smith, Cabral, and Gutierrez began the transport of Valenzuela-Carrillo. Gutierrez picked up the payment money for the transport at a Walmart money center and distributed it to herself, Smith, and Cabral. However, federal agents arranged for Gutierrez’s vehicle to be stopped south of Santa Fe, where they took Valenzuela-Carrillo and another suspected alien into custody. Gutierrez was not arrested at that time.

In May 2012, Gutierrez was indicted by a federal grand jury on one count of conspiring to transport undocumented aliens, and she was arrested by FBI agents in June 2012. She pled not guilty. At trial, the government sought to prove that Valenzuela-Carrillo was unlawfully present in the United States, but they had deported him prior to trial, so they introduced testimony from Senior Border Patrol Agent Knoll instead to prove Valenzuela-Carrillo’s status as an undocumented alien. The government also used Knoll’s testimony to support their theory that Gutierrez intended to “further” Valenzuela-Carrillo’s illegal presence by transporting him away from the border. Over the defense’s objections, Knoll provided expert testimony on the alien smuggling trade. The government also offered testimony from two confidential informants, who requested anonymity because of the involvement of a Mexican drug cartel’s connection to the case. The two witnesses, who testified as “John Smith” and “James Jones,” testified regarding their roles in arranging transportation and payment with Gutierrez. The government supplied background information including criminal history, compensation figures for cooperating with the FBI, and immigration status, but refused to disclose their true identities.

Gutierrez was convicted as charged. She appealed, contending that the district court erred in allowing (1) Knoll to testify regarding Valenzuela-Carrillo’s immigration status in violation of the Confrontation Clause and Federal Rules of Evidence regarding hearsay; (2) Knoll to offer expert testimony unhelpful to the jury; and (3) the two confidential informants to testify anonymously in violation of the Confrontation Clause. The Tenth Circuit addressed each claim in turn.

At trial, Knoll testified that he personally retrieved the two individuals from Gutierrez’s vehicle for processing. When he could not remember their names, the prosecution briefly showed him their immigration files to refresh his memory. Defense counsel objected, concerned that Knoll would introduce evidence from these forms regarding the two individuals’ immigration status, but the district court allowed the prosecution to show Knoll the files. On appeal, Gutierrez argued that this violated FRE 602 regarding personal knowledge, but the Tenth Circuit disagreed, finding that Knoll’s testimony supported a conclusion that he had personal knowledge of the immigration status of the two aliens. Gutierrez also argued that Knoll’s testimony violated the Confrontation Clause, but again the Tenth Circuit disagreed because Knoll was present at trial and defense had the opportunity to cross-examine him.

Next, Gutierrez asserted that Knoll’s testimony was unhelpful to the jury. Before trial, defense moved in limine to exclude Knoll’s proffered expert testimony on several grounds, but the district court denied the motion, reasoning that Knoll was qualified to testify as an expert due to his experience as a senior border patrol agent, and the testimony would be reliable and helpful to the jury. Defense counsel again objected at trial under FRE 702(a)’s helpfulness standard. The Tenth Circuit reviewed the district court’s decision to allow the testimony and found no abuse of discretion. The Tenth Circuit opined that Knoll’s testimony would allow insight into the alien smuggling trade and the function and locality of border patrol agents that the average juror would not have, and affirmed the district court.

Finally, turning to the testimony of the confidential informants, the Tenth Circuit found ample reason for protecting their identities. The government requested anonymity for security reasons, worried that if the names were released in open court, that information would make it back to the Mexican drug cartels to which the informants were connected. The government also noted that its investigation was ongoing and at least one of the informants would continue to provide information. The Tenth Circuit agreed with Gutierrez that the government failed to make an adequate showing of the need for secrecy, since the government’s assertions of risk to the informants were generalized statements that anyone who testifies against a cartel faces danger. However, despite the government’s inadequate showing of the need for secrecy, the Tenth Circuit ruled that Gutierrez was provided ample information for Confrontation Clause purposes, particularly because the two informants testified in person and the government provided significant impeachment material. The Tenth Circuit determined that any error resulting from the insufficient showing of the need for secrecy was harmless in light of Gutierrez’s adequate ability to cross-examine and impeach the witnesses.

Gutierrez’s conviction was affirmed.

Tenth Circuit: Defendant’s Own Prejudicial Conduct to Jury Member Does Not Warrant Mistrial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shaw on Friday, July 11, 2014.

Defendant Charles Shaw was convicted in the U.S. District Court for the District of Kansas of robbing a bank and two credit unions, attempting to rob one of the credit unions a second time, and four firearms-related offenses. He was acquitted on a charge of robbing a second bank. During jury selection, Defendant mouthed “call me” to a juror and made a gesture like a phone to his ear with his hand. At trial, testimony was admitted regarding a co-defendant’s confession on the charge of which he was acquitted, and evidence was admitted regarding an uncharged bank robbery. Defendant appealed his convictions to the Tenth Circuit, alleging (1) the jury was not impartial because they learned of the gesture he made to one member of the jury pool, (2) the district court erred by admitting evidence regarding the co-defendant’s confession at a different trial, (3) the district court erred by admitting evidence of the uncharged bank robbery, and (4) the court at sentencing, not the jury, found he had previously been convicted of a firearms offense.

The Tenth Circuit examined the trial transcripts regarding Defendant’s gesture during jury selection. It found no error, because the juror to whom the gesture was directed had been dismissed, and another potentially biased juror was rehabilitated through questioning. The Tenth Circuit also noted that it shared the district court’s concern regarding declaring a mistrial as a result of Defendant’s own conduct.

Next, the Tenth Circuit reviewed Defendant’s motion in limine asserting error for admitting the testimony regarding his co-defendant’s confession. The Tenth Circuit found that the admission of the testimony violated Defendant’s Sixth Amendment Confrontation Clause rights, but the error was harmless beyond a reasonable doubt because Defendant was acquitted on the sole charge related to this testimony.

The Tenth Circuit then turned its attention to the admission of evidence regarding the uncharged bank robbery, and again found error in the district court’s denial of Defendant’s motion in limine. The Tenth Circuit agreed with Defendant that it was impermissible other bad act evidence under FRE 404(b), but decided this error was also harmless because the evidence was tenuous at best and other evidence of Defendant’s guilt was strong.

Finally, the Tenth Circuit reviewed Defendant’s sentencing challenge. Defendant objected to the trial court’s judicially found fact of his prior firearms conviction, and, although he conceded that Tenth Circuit and U.S. Supreme Court precedent do not support his position, he raised the argument on appeal “to preserve Supreme Court Review.” The Tenth Circuit, following its previous precedent, affirmed Defendant’s sentence and convictions.

Tenth Circuit: Plain Error Reversal Required Due to Expert’s Impermissible Testimony Regarding Defendant’s Untruthfulness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, April 28, 2014.

Stanley Hill appealed his conviction of several charges related to a robbery of a bank in Tulsa, Oklahoma. Stanley Hill and his brother, Vernon Hill, were charged with bank robbery after a tracking device on stolen bills led police to Stanley’s father’s house, where Stanley and Vernon were arrested. Stanley claimed that he had spent the night at his girlfriend’s house and was sleeping at the father’s house at the time the robbery occurred. A Tulsa police officer and an FBI agent, Agent Jones, conducted a taped interview of Stanley in which he denied involvement in the robbery.

Agent Jones testified at trial as a qualified expert. His testimony discussed his theory of the case, that Stanley had been the getaway driver during the robbery. Agent Jones also testified that he had been specially trained to detect untruthfulness, and that in his opinion Stanley was not truthful during testimony. He offered several points to emphasize his opinion of Stanley’s untruthfulness.

Although a contemporaneous objection was not made to Agent Jones’ testimony, the Tenth Circuit conducted a plain error review and determined that the testimony regarding Stanley’s truthfulness was impermissible. Stanley did not argue that Agent Jones was unqualified to testify under FRE 702, but rather that the subject matter of his testimony—the credibility of another person—was outside the scope of Rule 702. The Tenth Circuit agreed, noting that such testimony usurps the function of the jury, is not helpful to the jury, and can unduly influence a jury because a credible expert holds more authority to the average juror than a defendant.

The Tenth Circuit determined that the error was not harmless. The prosecution did not have a strong case against Stanley, and much of their evidence against him hinged on the proposition that his testimony was false. The Tenth Circuit acknowledged that Stanley showed that there was a reasonable probability that he would not have been convicted without Agent Jones’ testimony. The Tenth Circuit issued a warning to the defense bar that reversal in the absence of contemporaneous objection is a rare exception rather than the rule, but Stanley satisfied all four prongs of the plain error standard and the case was reversed and remanded with instructions for vacation of the sentence and convictions.

Tenth Circuit: Convictions for Wire Fraud and Money Laundering Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Battles on Tuesday, March 11, 2014.

To finance construction of her residence, Safiyyah Tahir Battles obtained two loans totaling $377,400 from First Security Bank. In 2007, she decided to refinance her residence. She submitted a uniform residential loan application to Saxon Mortgage, Inc. (“Saxon”), but Saxon’s automated system rejected the application because her debt-to-income ratio was too high. Consequently, Ms. Battles reapplied for credit through Saxon’s “Score Plus” program, which required her to submit twelve months’ worth of bank statements, as well as information concerning her gross monthly income and assets. Among other things, Ms. Battles claimed a gross monthly income of $28,723.16 and a First Security Bank account containing $165,907.70. Saxon approved her application for a $500,000 loan shortly thereafter.

But, as it turned out, Saxon’s decision was based on a distorted picture of Ms. Battles’s financial status. Ms. Battles’s 2007 federal income tax return revealed that her adjusted gross annual income was $14,346—a far cry from the $344,677.92 extrapolated from the figures on her loan application. Similarly, the balance in her bank account on the loan’s closing day was less than $1,000. It subsequently came to light that Ms. Battles had falsified bank statements to inflate her income and improve her chances of qualifying for a loan.

A closing company prepared a settlement statement that specified that a local builder named Emmitt Wisby would receive $102,630.01 and Ms. Battles would receive $2,000. The closing company gave Mr. Wisby’s check to Ms. Battles with the understanding that she would deliver it to Mr. Wisby. Instead, Ms. Battles deposited the funds into her bank account. Ms. Battles dissipated the proceeds of the loan; she wrote checks totaling $47,700 to family members. She made no mortgage payments on the residence after July 31, 2007. When the property fell into foreclosure, Saxon sustained a significant loss from having funded the loan.

After a grand jury indictment and jury trial, Ms. Battles was convicted of one count of wire fraud and one count of money laundering. Ms. Battles was sentenced to thirty months in prison, followed by two years of supervised release. The district court also ordered her to make restitution to the victim of her crimes. Ms. Battles appealed on several grounds.

On appeal, Ms. Battles raised seven claims: (1) the government suppressed evidence that was favorable and material to her defense; (2) the district court erred by admitting testimony of a witness who intimated that Ms. Battles had destroyed documents; (3) there was insufficient evidence produced at trial to support her convictions; (4) she received ineffective assistance of trial counsel; (5) the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility; (6) the district court imposed a legally infirm restitution order; and (7) cumulative error deprived her of a fair trial and a reliable sentence.

First, the court held it did not have jurisdiction to address Ms. Battles’s Brady claim in the context of this appeal. The sole district court order that adjudicated Ms. Battles’s Brady claim was the order denying Ms. Battles’s motion for a new trial. This order was issued after the district court’s final judgment was entered and after Ms. Battles filed her formal notice of appeal challenging that judgment. The court could find no evidence in the record that, after the district court issued its motion-for-new-trial order, Ms. Battles sought within the fourteen-day period prescribed by the federal rules to file a new notice of appeal to challenge that order. Therefore, the court dismissed this aspect of the appeal for lack of jurisdiction.

Second, Ms. Battles argued that certain “other-crimes” testimony was offered not for any of Rule 404(b)’s recognized purposes,  but, rather, to incite the jury’s passions against her. The court concluded Ms. Battles did not demonstrated that any error in admitting the evidence affected her substantial rights, i.e., that the error disturbed the outcome of the proceedings.

Third, Ms. Battles contended there was insufficient evidence produced at trial to support her convictions. However, the court held there was ample evidence to support the jury’s convictions. The court was satisfied that a substantial quantum of evidence supported Ms. Battles’s wire-fraud conviction. Accordingly, under its deferential standard of review, the court would not second-guess the jury’s decision finding Ms. Battles guilty of wire fraud.

Fourth, Ms. Battles argued she received ineffective assistance of trial counsel. The Tenth Circuit concluded that the record before the district court was not sufficiently developed to address this issue. Precedent militated in favor of dismissing this claim without prejudice so that the district court could address it in collateral proceedings in the first instance.

Fifth, Ms. Battles argued the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility. The court stated it would have great difficulty viewing Ms. Battles’s statements as not reflecting in pronounced fashion her denial of fraudulent intent in connection with the Saxon loan. And this denial continued throughout her trial and sentencing. Ms. Battles failed to demonstrate that the district court abused its discretion in denying her an acceptance-of-responsibility downward sentence adjustment.

Sixth, Defendant contended the district court imposed a legally infirm restitution order. Ms. Battles asserted her view that she was unfairly surprised at sentencing when the district court named a different victim in the restitution order than that identified at trial. The district court reviewed this document at sentencing and found it clear that Deutsche Bank was taking an assignment as a trustee and custodian for Saxon and that there was no issue with respect to the identification of the victim. The court discerned no error, and certainly no clear error, in this factual finding.

Finally, Ms. Battles claimed cumulative error deprived her of a fair trial and a reliable sentence. However, Ms. Battles failed to name more than one error. A defendant who has failed to establish the existence of multiple non-reversible errors cannot benefit from the cumulative error doctrine.

The Tenth Circuit upheld the judgment of the district court and AFFIRMED Ms. Battles’s convictions and sentence. The court DISMISSED the portion of Ms. Battles’s appeal pertaining to her Brady claim for lack of jurisdiction.

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: Expert Testimony on Gang Affiliation Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. Archuleta on Tuesday, December 17, 2013.

Nathan Archuleta was a leader of the Tortilla Flats gang in New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States. The scheme was unsuccessful and Archuleta was arrested and indicted.

Before trial, Archuleta filed a motion to exclude gang-affiliation expert testimony. The district court held two hearings and ruled that Lujan, the government’s gang expert, could testify about the Sureños gang, the significance of its tattoos, structure, activities, and affiliation with the Mexican Mafia. Archuleta objected, and the court overruled his objection.

A jury convicted Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. Archuleta appealed. On appeal, Archuleta contended that admission of a gang expert’s testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of these three evidentiary rules, only Rule 403 was raised by Archuleta before the district court. As a result, the court’s review of his arguments pertaining to Rule 702 and Rule 704(b) was limited to plain error review.

Rule 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. After reviewing the record, the Tenth Circuit was not persuaded that the district court abused its discretion in allowing the government’s gang expert to testify. His testimony was not cumulative, confusing or misleading, or unfairly prejudicial.

Rule 702 requires a district court to satisfy itself that the proposed expert testimony will assist the trier of fact, before permitting a jury to assess such testimony. The court held that Archuleta failed to explain how the relevant evidence regarding gangs, which no other witness covered, was unhelpful to the jury’s understanding of the implications of Archuleta’s membership in the Tortilla Flats gang.

Archuleta’s final argument was that Lujan’s testimony violated Rule 704(b) because it was the functional equivalent of an opinion that Mr. Archuleta in fact had knowledge of the smuggling scheme. Under Rule 704(b), in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. The question was whether he improperly testified about Archuleta’s mental state.  The court admitted that, even if Lujan’s testimony violated Rule 704(b), Archuleta could not demonstrate plain error. This demanding standard required him to show, among other things, that the error must have affected the outcome of the district court’s proceedings. This he did not show.

AFFIRMED.

Tenth Circuit: Federal Arson and Using Fire to Commit a Felony Conviction and Sentence Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Tolliver on Tuesday, September 17, 2013.

Michael Tolliver was convicted of two counts of using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1), and two counts of arson, in violation of 18 U.S.C. § 844(i). He was sentenced to 430 months’ imprisonment and ordered to pay restitution. Tolliver was a real estate investor who owned properties in Oklahoma, four of which had fires that were all intentionally set. Tolliver submitted insurance claims after each fire. Tolliver appealed his conviction and sentence.

Tolliver argued (1) there was insufficient evidence to support his convictions, (2) the district court erred in denying his post-trial motion to dismiss the § 844(h)(1) charges for lack of jurisdiction, (3) the district court erred in denying his post-trial motion for a new trial based on allegedly improper questions by the government, (4) the district court erred in denying his post-trial motion for a new trial based on newly discovered evidence, (5) the district court erred in sentencing him to the statutory minimum of 20 years for his second conviction under § 844(h)(1) because both convictions under that section arose in the same case, (6) the district court erred in sentencing him to consecutive sentences for his convictions under § 844(h)(1) and (i) because the charges arose from the same conduct, (7) his 430-month sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment, and (8) the district court erred in entering the criminal forfeiture money judgment in addition to ordering him to pay restitution.

The Tenth Circuit rejected all of Tolliver’s arguments and affirmed the conviction and sentence.

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.