United States v. Blunt , 187 F. App'x 821 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 04-7003
v. E. D. Oklahoma
RO M ON IA JEAN BLUNT, (D.C. No. CR -03-09-02-P)
Defendant - Appellant,
------------------------------------------
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 04-7004
v. E. D. Oklahoma
ED D IE K A Y CO PEM A N , (D.C. No. 03-CR -9-P)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Romonia B lunt was charged in Count One of a nine-count indictment with
conspiracy to possess with intent to distribute more than 500 grams of
methamphetamine. Eddie Kay Copeman, her comm on-law husband, was charged
in the same count, and also in eight additional counts. At trial the district court
granted a motion for judgment of acquittal on two counts. Both were convicted
by a jury on Count One. M r. Copeman w as also convicted on the other remaining
six counts, all involving drug and firearms offenses. Both M r. Copeman and
M s. Blunt contend on appeal that their Fourth Amendment rights were violated by
police entry into their home following their arrest, and that they were sentenced
in violation of United States v. Booker, 543 U.S. 220 (2005). Each also raises
issues individually. M s. Blunt contends that two search warrants were exercised
with such flagrant disregard for their terms that all the seized evidence should be
suppressed. And M r. Copeman contends that prosecutorial misconduct denied
him a fair trial and that a mistrial should have been granted when a government
agent testified that it was difficult to get people to cooperate in the investigation
because they were afraid M r. Copeman w ould kill them. W e will summarize the
relevant facts as we address each issue.
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I. FO URTH AM ENDM ENT CLAIM S
A. Background
In October 2002 law enforcement officers went to the home of
M r. Copeman and M s. Blunt in Keota, Oklahoma, to execute arrest warrants for
them both. They came out of their home and were arrested without incident.
After they had been secured, two other individuals approached from behind the
residence. Agent Steve Fioretti of the Haskell County Sheriff’s Department asked
them if they had any weapons. One of them, M s. Rhonda Allen, said that she had
a knife. As she pulled it from her pocket, Agent Fioretti saw a bag of white
powder in her possession, which was seized. It field-tested positive for
methamphetamine.
A third person, M s. Judy Harp, who was barefoot, then exited the
residence. After she was frisked she asked the officers if she could go back into
the home to get her shoes. According to Agent Fioretti, he “asked if she lived
there, and she stated ‘W ell, yeah, I’m kind of like the kids nanny and I do the
cleaning and I do the shopping.’” R. Vol. XVIII at 15. She offered to “take
somebody in with her to get her shoes.” Id. Agent Fioretti instructed Oklahoma
Highway Patrol Trooper Clint Craft to accompany her. Agent Fioretti testified
that he “had never had any dealings with” M s. Harp and was concerned about
weapons in the residence: “I didn’t know if she would go in and try to get a
weapon and come back outside or try to get a weapon and flee or what she was
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going to do.” Id. at 16. Trooper Craft testified that he was in the home for only
30 seconds, and simply followed M s. Harp to the bathroom where she put her
shoes on. W hen he first entered the home, he saw a jar on a dresser by the front
door with different types of syringes in and around it. Some of the syringes w ere
of a type he knew to be used to inject methamphetamine.
Agent Fioretti obtained a search warrant for the home, relying in part on
the methamphetamine found on M s. Allen, the five additional small bags (one that
tested positive for methamphetamine) found on M s. Allen when she was booked
into jail, and Trooper Craft’s observation of the syringes. The warrant authorized
a search for evidence of drug distribution, particularly methamphetamine, and
weapons. According to the return on the warrant, officers seized several items
from the home, including “several bags with a white chunky substance,” a “9 M M
semi auto handgun,” a bag containing $64,5000, and “[s]everal plastic bottles
wrapped in black tape containing a total of $90,000.00.” R. Vol. I Doc. 18, Gov’t
Ex. One at 7. During execution of the warrant, Agent Fioretti saw a door that had
been taken off a black truck; its Vehicle Identification Number w as in plain view.
A check revealed that the vehicle had been reported stolen. He informed the
other officers on the scene to stop searching. They obtained a second warrant,
which authorized a search for evidence of drug-related activity, firearms, and
“stolen merchandise,” including, among other things, “electronics equipment,
hand tools, power tools, firearms and ammunition,” any evidence of stolen
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vehicles, and “[t]ools utilized in the renumbering of vehicles.” Id., Gov’t Ex.
Two at 10. The search yielded 85 seized items. Some of the items were seized
because police were able to verify on the scene that they were stolen. Other
seized items fit general descriptions of items that had been reported stolen. Agent
Fioretti testified that they seized many items that they “thought” w ere stolen with
the intention to “verify . . . at a later date.” R. Vol. XVIII at 72.
A third warrant was obtained to search another residence for evidence of
drug-related activity and weapons. The return lists 35 items or, rather, categories
of items, that were seized; most were drug-related but officers also seized 110
cows, 2 pigs, 15 horses, a mule, 2 hay buggies, 5 trailers, a hay rake, and a Ford
semi truck and trailer. Agent Fioretti testified that these items were seized for
caretaking purposes, and to prevent theft.
M r. Copeman and M s. Blunt both contend that the police entry into their
home with M s. Harp to obtain her shoes violated the Fourth Amendment, and that
without the illegal entry there was not sufficient probable cause to issue the first
search warrant. M s. Blunt also challenges the searches under the second and third
warrants, contending that the officers conducting the searches flagrantly violated
the terms of the warrants and conducted general searches.
B. Discussion
“W hen reviewing the denial of a motion to suppress, we view the evidence
in the light most favorable to the government, accept the district court’s findings
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of fact unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Apperson, 441
F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).
1. Initial Entry
The district court denied the motion to suppress the items seized under the
first warrant, relying on United States v. Butler, 980 F.2d 619 (10th Cir. 1992), to
conclude that the police did not violate the Fourth Amendment by entering the
home with M s. Harp to retrieve her shoes. In Butler a shoeless man was arrested
outside his home when the arresting officer noticed broken glass on the ground.
To obtain shoes for the arrestee, the officer took him back into his home, where
the officer saw a gun next to the bed. W e held that when there is “a legitimate
and significant threat to the health and safety of the arrestee,” police may
accompany him back into the home to obtain clothes. Id. at 622.
Although recognizing that there was no health or safety issue in this case
with respect to the arrestees (M r. Copeman and M s. Blunt), the district court
based its finding on the safety of the officers, stating that “there is no evidence
suggesting that Craft escorted Harp for any reason other than to ensure officer
safety while she retrieved her shoes.” R. Vol. I Doc. 29 at 6.
In the alternative, the district court also found that “it w as entirely
reasonable for Fioretti to believe Harp had authority to consent to the entry.” Id.M s. Harp said she lived there and was like a nanny. See Illinois v. Rodriguez, 497
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U.S. 177, 179 (1990) (“[A] warrantless entry . . . does not violate the Fourth
Amendment[ ] . . . if the officers have obtained the consent of a third party who
possesses common authority over the premises.”). She offered to take an officer
into the home with her. According to the court, her statement that she lived there
and her offer to take an officer in with her “made it reasonable for Fioretti to
conclude that she had the authority to enter the house herself and, moreover, to
consent to the entry into the house by law enforcement officials.” R. Vol. I Doc.
29 at 7. See Rodriguez, 497 U.S. at 186 (“The Constitution is no more violated
when officers enter without a warrant because they reasonably (though
erroneously) believe that the person who has consented to their entry is a resident
of the premises, than it is violated when they enter without a warrant because they
reasonably (though erroneously) believe they are in pursuit of a violent felon who
is about to escape.”).
On appeal M r. Copeman and M s. Blunt have challenged only the first basis
for the district court’s ruling. M s. Blunt raises the apparent-authority issue in her
reply brief, but we generally do not address issues raised for the first time in a
reply brief. United States v. Holbert, 285 F.3d 1257, 1263 (10th Cir. 2002) (“The
general rule is that appellate courts will not entertain issues raised for the first
time on appeal in an Appellant’s reply.”). We therefore affirm the district court’s
ruling on Trooper Craft’s entry.
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2. Execution of Search W arrants
M s. Blunt also contends that during the execution of the second and third
search warrants “officers seized numerous items . . . for which there was no
probable cause or source in the warrants for seizure. This converted the searches
into general searches and requires blanket suppression.” Blunt A plt. Br. at 11.
The district court rejected the argument, stating that other than the animals and
some stolen property “the items listed on the return were property falling under
one of the listed categories of the search warrant.” R. Vol. I Doc. 29 at 11. It did
state, however, that items that “w ere seized during the execution of these warrants
based on non-specific information from the Haskell County Sheriff and his
deputies that they had ‘heard or remembered’ general reports of stolen property”
should be suppressed Id.“If evidence is illegally seized, the general rule is that only the improperly
seized evidence, not all of the evidence, must be suppressed . . . .” United States
v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (internal quotation marks
omitted). But “even evidence which is properly seized pursuant to a warrant must
be suppressed if the officers executing the warrant exhibit flagrant disregard for
its terms.” United States v. Foster, 100 F.3d 846, 849 (10th Cir. 1996) (internal
quotation marks omitted). “[W]hen law enforcement officers grossly exceed the
scope of a search warrant in seizing property, the particularity requirement is
undermined and a valid warrant is transformed into a general warrant thereby
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requiring suppression of all evidence seized under that warrant.” Id. at 849-50(internal quotation marks and brackets omitted).
Only “[i]n very rare cases” have we “applied the unusual remedy of blanket
suppression.” United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999). In
Foster we held that blanket suppression was appropriate because “there was a
wholesale seizure of Foster’s property amounting to a fishing expedition.” 100
F.3d at 850. One officer testified that they “‘took anything of value’” and the
district court found that “‘no attempt was made to substantiate a connection
between the seizure of the majority of the seized items and the terms of the
warrant.’” Id. A similar “fishing expedition” was conducted in United States v.
M edlin, 842 F.2d 1194, 1199 (10th Cir. 1988). The warrant authorized seizure of
only firearms and the records of sales and purchases of firearms, id. at 1195, but
the officers “seized some 667 items of property none of which were identified in
the warrant authorizing the search,” id. at 1196. In contrast, in Hargus, 128 F.3d
at 1363, “[a]lthough we [were] given pause by the wholesale seizure of file
cabinets and miscellaneous papers and property not specified in the search
warrant, the officers’ conduct . . . was motivated by the impracticability of on-site
sorting and the time constraints of executing a daytime search warrant.”
M oreover, “[t]he officers were authorized to seize ten broad categories of records,
and those records were present in every drawer of both file cabinets.” Id.-9-
In this case the district found that, with the exception of the seized animals
and some stolen goods, all the seized items were within categories described by
the warrants. As for the items seized on suspicion that they were stolen, Agent
Fioretti testified that they were seized generally because of reports of similar
items that were stolen. The officers seized some baseball, football, and basketball
cards, for example, because the sheriff assisting the search “had [received]
several reports of numerous baseball cards and basketball cards that were stolen
in and around Haskell County.” R. Vol. XVIII at 30. Several boxes of
arrowheads were also seized because “[t]here had been several burglaries where a
large amount of arrowhead collections had been stolen in Haskell County and [the
sheriff] believed these could be a part of that burglary.” Id. at 68. A brown
leather saddle with “Bar 99" on the back was seized for the same reason. Id. at
30. Agent Fioretti testified that on-scene confirmation would have been too time-
consuming. But when it could be verified that items were in fact stolen, the
officers apparently attempted to do so. Several class rings were seized, for
example, which had names on them that w ere recognized by officers on the scene.
Some of those people were called and confirmed that the rings had been stolen.
And many items w ere left behind because they did not appear to be stolen. All
the officers on the scene were provided a copy of the warrant, and Agent Fioretti
himself made the final decision whether an item should be seized.
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The district court specifically suppressed items that were seized under only
a general belief that they were stolen. But even if some items w ere improperly
seized, the above account of police procedures shows that the warrants were not
executed with “flagrant disregard” for their terms, or that the officers “grossly
exceeded” the warrants’ authorization. Foster, 100 F.3d at 849.
The seized animals are a different story. At the suppression hearing Agent
Fioretti explained the decision to seize the animals:
The sheriff and I talked about it and we called the assistant
district attorney and he advised that if we didn’t have anybody that
could take care of them, that we knew would take care of them, that
we needed to take them basically into protective custody. That way
we knew they were taken care of.
R. Vol. XVIII at 33. Agent Fioretti testified that he did not know of any other
way to care for the animals. He further testified that he had no purpose in seizing
the animals other than to care for them. Even if their seizure was improper, the
circumstances do not exhibit a flagrant disregard for the warrant. The animals
w ere not seized as evidence and were not admitted into evidence, a factor we
found important in Hargus, 128 F.3d at 1363 (“[A] search is not invalidated
merely because some things are seized that are not stated in the warrant. This is
particularly true when the non-specified items are not admitted into evidence
against the defendant.”). Accordingly, we affirm the district court’s denial of the
motion to suppress.
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II. PR EJU D IC IA L T EST IM ONY
A. Background
M r. Copeman contends that the district court should have granted his
motion for a mistrial after FBI Agent Gary Graff testified that M r. Copeman’s
associates w ere afraid that he w ould kill them if they cooperated with law-
enforcement authorities. Some context is helpful to understand why we reject this
claim. Part of M r. Copeman’s trial strategy was to impugn the integrity and
competence of the officers who conducted the investigation. During his opening
statement, for example, counsel for M r. Copeman told the jury “that by the time
you have heard all of this evidence, you will come to the conclusion that [Agent
Fioretti] is not an honest police officer, that he will lie and cheat to get somebody
convicted.” R . Supp. V ol. I (O pening Statements, Aug. 5, 2003) at 28. He
accused Agent Fioretti of planting evidence, and suggested that the entire
investigation was retaliation because M r. Copeman had supported the wrong
candidate for sheriff. He also questioned why the government did not have
certain types of evidence:
Our government, the FBI, could put a tape, could put a wire, on
somebody where you could hear it. And wouldn’t that be grand if
you had this kind of evidence that you could listen to and say, oh,
yeah, I hear that. Oh, he did that. W ell, for two or three years they
have had this ability. If [M r. Copeman] is such a big drug dealer,
why not hook one of these people up w ith a w ire and send them in so
that you wouldn’t even have to be asked to guess about whether or
not he did or didn’t do this.
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Id. at 35-36.
During cross-examination of Agent Graff, M r. Copeman’s counsel
continued on this theme, questioning Agent Graff about why the investigators
failed to use certain techniques, such as undercover buys, wiretaps, and
informants:
Q Okay. W ould it be a fair statement that back in 1999,
you— the FBI opened an investigation into Eddie Copeman?
A That is correct.
....
Q And would it be a fair statement that in ‘99, 2000, 2001, up
until October of 2002, he remained a target of the FBI, the DEA, and
I assume the H askell County folks?
....
A At times, he was. I mean, I w orked 15 or 20 other cases.
There would be times six or nine months w ould go by and I wouldn’t
even think about M r. Copeman.
Q Okay. W ould it be a fair statement that you all attempted
to— I mean, when they become a target, you like to get evidence, get
them on video, get them on audio, make a buy, get one of your actual
FBI agents or an undercover police officer, somebody to go in and
actually buy from them; correct?
A If w e can do that, that’s great, yes, sir.
....
Q In other cases, do you send actual law enforcement officers
who have beards and look like druggies, do they go in, and
sometimes you have actual police officers who make these
undercover buys?
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A Sometimes. Rarely, but sometimes.
....
Q And you didn’t do that in this case?
A The opportunity just did not present itself, no, sir.
R. Vol. X at 319-22.
On redirect, Agent Graff had the following exchange w ith the prosecutor:
Q [Defense counsel] asked you about your ability to put wires on
people and all of those sorts of things. Do you remember that kind
of inquiry?
A Yes. Yes.
Q Did you attempt— during your investigation of this matter,
attempt to introduce a law enforcement officer to M r. Copeman?
A Yes.
Q W ere you successful in that attempt?
A No.
Q W hy not?
A It was very difficult to get people to cooperate—
[Defense Counsel]: Object, Your Honor, as— that he
attempted to? I mean, I don’t know, are they going to say that, oh,
everybody is just so scared? I mean, it could be very prejudicial,
what’s fixing to come out, and its— the reason—
The Court: Okay. I’ve heard enough. The objection’s
overruled. You may answer.
By the W itness:
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A It was very difficult to get anyone to cooperate, because people
were terrified of M r. Copeman, and they were afraid he would kill
them if they cooperated.
[Defense Counsel]: See, Judge. See what I’m saying?
[Prosecutor]: He opened the door, Your Honor.
The Court: I— I sustained the— overruled the objection and let
him answer, and you can cross examine him about it, if you choose
to.
R. Vol. X at 380-81.
Ultimately, the district court ruled that part of the answer had to be stricken
as hearsay: “W ell, I’ve already made the ruling. He can answer the question yes,
that he made an effort, but the— when the effort gets into hearsay, then it’s not
admissible.” Id. at 383. The jury was then “instructed to disregard the answer
given by this witness, other than the answer that he did make an effort. The rest
of the statement of the witness should be disregarded.” Id.
On recross, defense counsel immediately began questioning Agent Graff
about the stricken answer:
Q That part we’re disregarding, you didn’t put it in any report;
did you?
A I’m not aware of it, sir, no.
Q W ell, wouldn’t that be a pretty important part to put in there,
that if you tried to w ire somebody up, and this is such a bad fellow,
wouldn’t that go in a report?
[Prosecutor]: You’re Honor, if they’re supposed to disregard
it, I think further inquiry would—
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[Defense Counsel]: Judge, that’s like throwing a skunk up
there and telling them not to smell it.
The Court: Do I take it that you’ve waived—
[Defense Counsel]: No, I’m going to move for a mistrial,
because I objected before it ever came in, because I know how they
do, I knew what was coming, and that’s why I objected.
Id. at 383-84. Defense counsel then continued to question Agent Graff about why
this information was not included in any report. After the jury was dismissed,
defense counsel moved for a mistrial, w hich the court took under advisement.
The next morning the district court denied the motion:
I think under the circumstances I w ould . . . note on review in
my mind that the testimony that preceded that question that, perhaps
invited error is too strong a word, but there was as I reviewed the
testimony several questions by [defense counsel] to this witness and
as I recall even other w itnesses as to why there was not a wire.
Although I do not condone necessarily the response of the FBI agent
on the stand, I think he could have chosen his words m uch better, I’m
not altogether sure that it was not a question that had been
overworked by defense counsel.
R. Vol. V at 4-5.
B. Discussion
The district court “is in the best position to evaluate the effect of the
offending evidence on the jury.” United States v. Behrens, 689 F.2d 154, 162
(10th Cir. 1982) (internal quotation marks omitted). Therefore
[w]e review a district court’s refusal to grant a mistrial for abuse of
discretion. In reviewing a court’s determination for abuse of
discretion, we will not disturb the determination absent a distinct
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showing it was based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.
United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005) (internal quotation
marks and citation omitted).
The district court did not abuse its discretion in denying the motion for a
mistrial. M r. Copeman contends that the court should have excluded under Fed.
R. Evid. 404(b) Agent Graff’s statement that officers w ere unable to find people
to cooperate in their investigation of M r. Copeman because they were afraid he
would kill them, and “that because this testimony was erroneously admitted, he is
entitled to a new trial.” Copeman A plt. Br. at 14. But the statement was stricken
and the jury was instructed to disregard it. The only issue before us is whether,
notwithstanding this instruction to the jury, M r. Copeman w as entitled to a
mistrial because his “right to a fair and impartial trial ha[d] been impaired.”
United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002).
W e do not believe there was such unfairness. First, the agent’s testimony
was responsive to defense counsel’s specific suggestion that law enforcement
officers were inept in not using particular investigative techniques. Second,
within minutes of the testimony the court instructed the jury to disregard the
portion of Agent Graff’s testimony concerning people being afraid of
M r. Copeman. “W e presume that jurors w ill follow clear instructions to disregard
evidence unless there is an overwhelming probability that the jury will be unable
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to follow the court’s instructions, and a strong likelihood that the effect of the
evidence would be devastating to the defendant.” Id. at 1243 (internal quotation
marks omitted). Although M r. Copeman complains that the jury did not receive
an additional instruction before it began deliberations, he neither objected to the
instructions given by the court, nor proposed another curative instruction. The
district court did not abuse its discretion in denying the motion for a mistrial.
III. PR OSE CU TOR IA L M ISCONDUCT
A. Background
M r. Copeman points to three statements that he contends represent
prosecutorial misconduct. First, during redirect examination of Agent Graff, the
prosecutor attempted to ask him about a report by Agent Fioretti. M r. Copeman’s
counsel objected that asking Agent Graff about the contents of A gent Fioretti’s
report called for hearsay. The prosecutor then stated that on cross-examination
defense counsel had tried to “mislead the jury as to what M r. Fioretti’s report
indicated.” R. Vol. X at 375. The second statement came at the beginning of
closing argument when the prosecutor stated:
Also, at the beginning of this case I told you that all of that mattered
was whether or not the defendants were guilty of the crimes charged.
I submit to you the defendants continually attempt to divert you,
confuse you, quite frankly bore you, all on and on and on to avoid
that issue.
R. Supp. Vol. I (Closing Arguments, Aug. 18, 2003) at 83-84. M r. Copeman’s
counsel objected that “[t]o make these kind of attacks about the defense is
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improper.” Id. at 84. The court sustained the objection and instructed the jury to
disregard the comment. Finally, the prosecutor also said during closing argument:
W hen my father was younger . . . he used to tell me . . . you could
tell w hat kind of man you are by the enemies you make. It’s pretty
clear that drug dealers don’t like the Steve Fioretti’s the Gary Graff’s
and it’s a good thing because they are doing too good of a job. And
that business isn’t pretty. It destroys people.
Id. at 99. Defense counsel objected that the prosecutor was raising a “societal
alarm argument” and the court sustained the objection. Id.
B. Discussion
W e apply a tw o-part test to a claim of prosecutorial misconduct: “First, w e
decide whether the conduct was improper. Second, we decide whether the
conduct, if improper, warrants reversal. The general focus of the second part of
the test focuses on whether the prosecutor’s conduct affected the fairness of the
trial.” Apperson, 441 F.3d at 1207 (internal quotation marks and citation
omitted). “[I]n examining claims of prosecutorial misconduct, we have held that
reversal is required only if the improper conduct influenced the verdict.” United
States v. M aynard, 236 F.3d 601, 606 (10th Cir. 2000) (internal quotation marks
omitted). Furthermore, “in determining whether the misconduct had such an
impact, we consider the trial as a whole, including the curative acts of the district
court, the extent of the misconduct, and the role of the misconduct within the
case.” Id. (internal quotation marks omitted).
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W e can quickly dispose of the challenges to the two comments made during
closing argument. On each occasion the district court immediately sustained an
objection and instructed the jury to disregard the comment. As previously noted,
we presume that such curative instructions are obeyed by jurors. Caballero, 277
F.3d at 1243. M oreover, with respect to the “societal alarm” argument, the
district court observed that “the objection was made quickly enough that if [the
prosecutor] was going there, he didn’t get there. . . . I don’t think we got to that
point in front of this jury, that there was any message communicated to the jury
about societal concerns. From my view, it was a term introduced and
characterized in your objection more than it was the statement actually made by
counsel” R. Vol. XVII at 1500.
There remains the statement by the prosecutor that defense counsel was
attem pting to mislead the jury w ith respect to the contents of a police report. A s
with M r. Copeman’s claim of prejudicial testimony, the statement must be viewed
in context. During Agent Graff’s cross-examination by defense counsel, he was
questioned about the search of a 1983 Oldsmobile:
Q [Y]ou say that you found all of this stuff in the green
Oldsmobile on October the 23rd?
A Yes.
Q And as far as your concerned, nobody had ever— he said
nobody had tampered with it?
A Not that I’m aware of.
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Q W ere you aware that Agent Fioretti, on October the 22nd, in
his search warrant return, listed and swore under oath that, “All the
items were, on the 22nd day of October, found— ” and one of the
items listed, that he says that he found “— one black bag containing
several bundles wrapped in black tape containing white chunky
substance, five bundles in plastic with white chunky substance, from
trunk of car with Arkansas tag 552.” Now, that’s the same tag that
we’re talking about, that you say you found with him on the 23rd?
....
A He has a typo on the date on that report. It should be the 23rd.
I’ve seen the report.
R. Vol. X at 314-15. Defense counsel also questioned Agent Graff about why the
typo was not corrected, and why he had not prepared his own report concerning
the search. The prosecutor objected that defense counsel was trying to impeach
Agent Graff improperly: “He’s asking about someone else’s report. I believe it’s
a mischaracterization of the report, in any event.” Id. at 318.
During redirect examination the prosecutor questioned Agent Graff about
the report:
Q [Defense counsel] asked you a number of questions about
M r. Fioretti’s report. Do you recall that?
A Yes.
Q I’d like to get that cleared up and actually show you that
report.
....
Q Does this appear to be the report— [defense counsel] never
showed it to you, but does this appear to be the report that he was
asking you about with M r. Fioretti.
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A Yes, it is.
....
Q Does— anywhere in that report, does it indicate that the vehicle
was searched on October 22nd, 2002, as you read the report?
....
[Defense Counsel]: Judge, see, that’s w hat he’s trying to do, is
he’s w anting them— I don’t want to get in trouble, but he knows this
is not admissible, and he’s w anting to make them think I’m trying to
hide something, that I’m not trying to hide. He can’t interpret— he
can give the dates. I mean, if he wants to say, yes, he put— the only
date w as 10/22, there isn’t any 10/23 date on there, I don’t object to
that. But to say I interpret this to mean something else, I object to
that.
[Prosecutor]: Your Honor, I believe that [defense counsel]— I
wasn’t trying to say that he was hiding something, but mislead the
jury. He w as trying to mislead the jury as to what M r. Fioretti’s
report indicated. And I think based on that cross examination, it’s
perfectly appropriate to introduce [Agent Fioretti’s report], so then
the jury can determine what significance, if any, to give to the report.
Id. at 372-75. The prosecutor argued that because defense counsel had been
questioning the witness about the report, “I think, in fairness, to reflect what the
exhibit actually says, it’s important for the jury to examine it in its totality, and
that’s why I think it should be admitted.” Id. at 376. The report was admitted
into evidence and the prosecutor asked Agent Graff:
Q Does it reflect when the vehicle w as searched, that you were
involved in searching?
A No, it doesn’t give a date.
Id. at 378.
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To support his claim that the prosecutor’s “trying to mislead” statement
constitutes prosecutorial misconduct, M r. Copeman points us to United States v.
Linn, 31 F.3d 987, 993 (10th Cir. 1994), where we said “that comments by
prosecutors to the effect that a defense attorney’s job is to mislead the jury in
order to garner an acquittal for his client is not only distasteful but borders on
being unethical.” W e stated that such statements are improper, but that they did
not amount to plain error in that case. Here, we are faced with a prosecutor
attempting to question a witness about the contents of a police report that he
believed had been misrepresented by defense counsel. Rather than stating that it
was defense counsel’s job to mislead the jury, the statement merely indicated the
prosecutor’s belief that defense counsel was trying to mislead the jury about a
single report. The report was almost immediately thereafter admitted into
evidence, and defense counsel was given the opportunity to cross-examine the
witness about it. W e cannot say that the prosecutor’s statement— assuming it was
improper— compromised the fairness of the trial.
Finally, M r. Copeman makes a cumulative-effect argument: “The trial was
lengthy, but the prosecutor made several improper statements. The cumulative
effect of these multiple incidents of prosecutorial misconduct was such that
M r. Copeman w as denied a fair trial.” Copeman A plt. Br. at 19. To the extent
that this argument refers to any statements other than the three specifically raised
on appeal, M r. Copeman has not pointed us to any such statements in the record
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and it is not our job to search the record for other possible prosecutorial
misconduct. See Apperson, 441 F.3d at 1204 (refusing to “sift through the case’s
voluminous record to find support for the defendants’ claims” (internal quotation
marks and brackets omitted)). If the argument is referring only to the three
comm ents actually raised on appeal, no showing has been made that the
comments, individually or cumulatively, prejudiced M r. Copeman’s right to a fair
trial.
IV. SENTENCING CH ALLENGES
A. The Sentences
Applying the United States Sentencing Guidelines (USSG ), the presentence
report (PSR ) for M r. Copeman calculated a base offense level of 38. This was
enhanced by two levels because “a firearm was recovered from the bathroom
where, according to witnesses, drug transactions had taken place,” R. Vol. II at 7,
see USSG § 2D1.1(b)(1), plus two additional levels because M r. Copeman w as a
leader in the criminal activity, see USSG § 3B1.1(c). This created a total offense
level of 42, which, combined with M r. Copeman’s criminal-history category I,
placed the Guidelines sentencing range at 360 months to life. M r. Copeman did
not object to the PSR. The district court imposed a sentence of 360 months’
imprisonment, stating that “[a] sentence at the bottom of the guideline range was
imposed to provide just punishment, to promote respect for the law, and to protect
the public.” R. Supp. Vol. II at 5-6.
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The PSR for M s. Blunt also calculated a base offense level of 38, based in
part on a finding concerning drug quantity. A four-level reduction for
M s. Blunt’s minor role in the offense, see USSG § 3B1.2(a), and a criminal-
history category I, created a Guidelines sentencing range of 151-188 months. She
also did not object to the PSR and was sentenced to 151 months’ imprisonment,
the bottom of the G uidelines range, for the same reasons given in M r. Copeman’s
case.
M r. Copeman and M s. Blunt contend that they were sentenced in violation
of Booker. They both concede that neither objected below and that our review is
only for plain error. “Plain error occurs when there is (1) error, (2) that is plain,
which (3) affects substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v.
Gonzalez-H uerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal
quotation marks omitted). The first two prongs of the plain-error test are satisfied
when the sentencing judge applies the Guidelines in a mandatory fashion. Id.B. Discussion
M r. Copeman contends, and the government concedes, that the sentencing
in his case involved both constitutional and nonconstitutional Booker error. That
is, the sentence was increased based on facts found by the judge, and the
Guidelines were applied mandatorily. See United States v. Gonzalez-Huerta, 403
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F.3d 727, 731-32 (10th Cir. 2005) (en banc) (distinguishing between
constitutional and nonconstitutional Booker error).
The first enhancement challenged by M r. Copeman was under USSG
§ 2D 1.1(b)(1), w hich provides that the offense level should be increased by tw o
levels “[i]f a dangerous weapon (including a firearm) was possessed.” The
district court granted a judgment of acquittal on Count Four of the indictment,
which charged a violation of 18 U.S.C. § 924(c), based on the same firearm.
M r. Copeman contends that the court’s judgment of acquittal is inconsistent with
the enhancement. W e disagree. Section 924(c) requires proof that the defendant
“during and in relation to any crime of violence or drug trafficking crime . . . uses
or carries a firearm, or . . . , in furtherance of any such crime, possesses a
firearm.” In contrast, § 2D1.1(b)(1) says, “If a dangerous weapon (including a
firearm) w as possessed, increase by 2 levels.” Application Note 3 to § 2D1.1
states: “The adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense. For example,
the enhancement would not be applied if the defendant, arrested at his residence,
had an unloaded hunting rifle in the closet.” Thus, under § 2D1.1(b)(1), “the
government has the burden of proving merely that a weapon was present in some
physical proximity to the offense. Once this burden is met, the commentary to the
Guidelines allows the defendant to demonstrate that it was ‘clearly improbable’
that the gun was connected to the offense.” United States v. Gomez-Arrellano,
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5 F.3d 464, 466 (10th Cir. 1993) (internal citation omitted). In considering
M r. Copeman’s motion for judgment of acquittal on the § 924(c) charge, the
primary dispute was not over the presence of the firearm where drug transactions
occurred. Arguing for acquittal on Count Four, M r. Copeman’s counsel said:
“[T]here has been no evidence that [the firearm] was in any way used in
furtherance— or possessed in any furtherance of the drug trafficking crime. W hat
you have basically is that it w as simply possessed.” R. Vol. XVI at 1333-34.
Counsel acknowledged that the government “put on [evidence] that at some other
time there had been some sales take place and that the gun was there because they
have brought that out with a witness or two, but . . . there is nothing that would
indicate that we used and carried and possessed in furtherance of.” Id. at 1334.
The dispute, therefore, regarded whether there was, in the district court’s words,
“active employment of the firearm,” R. Vol. XVII at 1459 (internal quotation
marks omitted), w hich is not required for the enhancement. Additionally,
M r. Copeman’s PSR , to which he did not object, states that the “firearm was
recovered from the bathroom where, according to witnesses, drug transactions had
taken place.” R. Vol. II at 7.
M r. Copeman also challenges a two-level increase under § 3B1.1(c), based
on the district court’s finding that he “was an organizer, leader, manager, or
supervisor” in the offense. He argues that the jury would not have found the facts
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necessary for this enhancement beyond a reasonable doubt. Describing the
reasons for this enhancement, the unchallenged PSR states:
[I]t appears as though Copeman’s primary role was that of a
distributor of methamphetamine. However, witnesses did describe
that M r. Copeman was the sole decision maker w ithin the conspiracy.
He provided Ricky W illiams with a location to manufacture the
drugs, instructed him when to manufacture the drugs and provided
him with the money to purchase the precursors. Further testimony
was provided that he would make a list of supplies for co-
conspirators to purchase and provide them with the funds necessary
to make the purchases.
R. Vol. II at 7. Section § 3B1.1(c) is “satisfied upon a showing that the defendant
exercised any degree of direction or control over someone subordinate to him in
the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.
1990). M r. Copeman argues: “W hile the judge found this was proven by a
preponderance of the evidence, it is not obvious that the jury would have found
that it was proven beyond a reasonable doubt. M r. Copeman was involved with
others, but it was not proven beyond a reasonable doubt that he was their leader,
organizer, manager or supervisor.” C opeman Aplt. Br. at 21-22. Beyond this
conclusory statement, however, M r. Copeman points to no evidence in the record,
nor does he attempt to impugn the PSR’s sources of information.
W e resolve M r. Copeman’s claims on the fourth prong of the plain-error
test. “U nder the fourth prong of plain-error review , a court may exercise its
discretion to notice a forfeited error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403
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F.3d at 736. Because the fourth prong imposes such a high burden,
Booker challenges are often resolved on the basis of the fourth prong rather than
the third. Gonzalez-Huerta, 403 F.3d at 736 (“W e need not determine whether
M r. Gonzalez-Huerta can satisfy this burden because even if he were to meet the
third prong, he must also satisfy the fourth prong to obtain relief.”).
M r. Copeman has not met the “demanding standard” imposed by the fourth prong.
Id. at 737.
W e have . . . identified numerous non-exclusive factors that can
guide our fourth prong analysis. First, we have noted that
constitutional Booker errors will be noticed more freely. Another
relevant inquiry is the relative strength or weakness of the evidence
supporting the defendant’s sentence under the sentencing guidelines.
Next, we may consider whether the Booker error substantially
increased the defendant’s sentence. [O ther relevant factors include] a
showing that objective consideration of the 18 U.S.C. § 3553(a)
factors warrants a departure from the sentence suggested by the
Guidelines, and other evidence peculiar to the defendant that
demonstrates a complete breakdown in the sentencing process. . . .
[and] whether the district court would simply reimpose the same
sentence on remand, or whether instead the sentence would likely
change to a significant degree if the case were returned to the district
court for discretionary sentencing.
United States v. Lauder, 409 F.3d 1254, 1269-70 (10th Cir. 2005) (internal
quotation marks, citations, and brackets omitted).
Starting with the last factor, although M r. Copeman w as sentenced at the
bottom of the G uidelines range, nothing in the record suggests that were this court
to remand, the district judge would not simply reimpose the same sentence. The
district court expressed no dissatisfaction with the Guidelines-required sentence.
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The second factor we have identified— the relative strength of the evidence
supporting the sentence— also cuts against a finding of plain error. M r. Copeman
made no objection at sentencing to the presentence report. Also, he has not
pointed to anything in the lengthy trial record that would call into question the
facts found by the judge for sentencing purposes. He points only to the district
court’s grant of a judgment of acquittal on the § 924(c) charge. But, as we noted
above, the evidence supporting the Guidelines enhancement appears undisputed.
Another factor is whether an objective consideration of the § 3553(a)
factors would warrant a departure. M r. Copeman notes his lack of criminal
history, but that history, of course, is considered under the G uidelines. He also
points to his age (he was 52 at the time of sentencing), and health (the PSR
indicates that in October 2003 M r. Copeman w as hospitalized with congestive
heart failure and that he suffers from diabetes). Age and health may play some
role in sentencing, but this role should be minor absent extraordinary
circumstances. Cf. USSG §§ 5H1.1 (age), 5H1.4 (physical condition). Certainly,
nothing in the record suggests a “complete breakdown in the sentencing process.”
Lauder, 409 F.3d at 1269 (internal quotation marks omitted).
The final factor is whether the Booker error substantially increased
M r. Copeman’s sentence. W ithout the four-level increase that resulted from the
two enhancements, M r. Copeman’s sentencing range would have been 235 to 293
months; with the enhancement the range was 360 months to life— an increase of
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125 months at the base of the Guidelines ranges. This is a substantial increase.
See id. at 1270 (increase of 84 months is substantial). But this is the only factor
that w eighs in his favor.
W e conclude that M r. Copeman has not established that the constitutional
Booker error in his sentencing “seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 736.
As w e stated in a similar case, “[O]nly one factor w eighs in [his] favor, which is
that the judge-found facts substantially increased the applicable guideline
range. . . . Nonetheless, this one factor— like any of the factors we have
identified in our prior cases— is not dispositive, especially given the essentially
unrebutted evidence relied on by the district court.” Lauder, 409 F.3d at 1270-71.
W e reach the same result with respect to M r. Copeman’s claim of
nonconstitutional Booker error, where the plain-error test is applied even more
rigorously. To satisfy the fourth prong of plain error on a nonconstitutional
Booker claim, M r. Copeman would have to show that allowing the sentence to
stand “would be particularly egregious and would constitute a miscarriage of
justice.” United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005) (internal
quotation marks omitted). M r. Copeman has not made such a showing. See
United States v. Treto-M artinez, 421 F.3d 1156, 1161 (10th Cir. 2005). There
was no plain error in M r. Copeman’s sentencing.
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M s. Blunt also contends that the district court comm itted constitutional
Booker error in finding the drug quantity and nonconstitutional Booker error in
applying the Guidelines mandatorily. W e conclude that she also has not satisfied
the fourth prong of plain error.
The sole factor that cuts in favor of plain error in M s. Blunt’s case is the
substantial increase in the sentencing range that resulted from the district court’s
finding concerning drug quantity. The jury found that the conspiracy joined by
M s. Blunt involved more than 500 grams of methamphetamine. The
corresponding base offense level was 32. The PSR calculated a base offense level
of 38, based on a higher drug quantity, but then applied a four-level decrease for
M s. Blunt’s minimal role in the offense, leaving her at total offense level 34.
W ithout the court’s finding concerning drug quantity, but still considering the
four-level minimal-participant reduction, see United States v. Clark, 415 F.3d
1234, 1238 (10th Cir. 2005), M s. Blunt’s offense level would have been 28, with
a sentencing range from 78 to 97 months. The drug-quantity finding increased
the range to 151 to 188 months. This is a substantial increase.
But none of the other factors support a finding of plain error. The evidence
supporting the drug quantity is undisputed. The jury did not find that the offense
involved only 500 grams of methamphetamine, but “in excess of” that amount.
R. Vol. I Doc. 119. Additionally, M s. Copeman raised no objection to the PSR
and points to nothing in the record that would indicate that the district court’s
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finding was in error. Nor would an objective view of the record show that a
departure w ould be appropriate under the § 3553(a) factors. Speaking on her ow n
behalf at sentencing, M s. Blunt pointed out that she had a seven-year-old daughter
whose mother and father were both going to jail. Her counsel added that she had
been convicted of only a single count of conspiracy and asked the court “to
recognize the relative difference in the defendants in this case and take into
consideration her family responsibilities and grant her w hatever leniency the court
can see fit in this case.” Supp. R. (Blunt Sentencing) at 3. But the difference
between the roles of M r. Copeman and M s. Blunt was reflected in the four-level
decrease M s. Blunt received for her minor role, and the two-level increase
M r. Copeman received for his role. A nd, like age and health, family
circumstances should be considered only in exceptional circumstances. Cf. USSG
§ 5H1.6. There is nothing in the record indicating that the district court would
impose a lesser sentence on remand, and there was no breakdown of the
sentencing process. W e conclude that M s. Blunt has not satisfied the fourth
prong of plain error with respect to either her constitutional Booker claim or her
nonconstitutional claim.
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V. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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