United States v. Richard , 350 F. App'x 252 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 21, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-6243
v. (W.D. Oklahoma)
ADAM RICHARD, a/k/a Adam Scott, (D.C. No. 5:08-CR-00079-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and EBEL, Circuit Judges.
On March 18, 2008, a federal grand jury returned a single count indictment
against defendant and appellant, Adam Richard. The indictment charged
Mr. Richard with being an unlawful user of a controlled substance in knowing
possession of a firearm that had been transported in interstate commerce, in
violation of 18 U.S.C. § 922(g)(3). Mr. Richard filed a pretrial motion to dismiss
the indictment, arguing that the statute was unconstitutional, which was denied,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and he filed a motion to suppress evidence seized from his residence pursuant to a
search warrant. Following a hearing, the motion to suppress was also denied.
The case was tried to a jury on June 4 and 5. The jury found Mr. Richard
guilty, and Mr. Richard’s post-trial motion for judgment of acquittal was denied.
Mr. Richard was sentenced to sixty months of probation and was ordered to pay a
special assessment of $100.00. This appeal followed, in which we affirm the
decisions of the district court.
BACKGROUND
On January 27, 2006, law enforcement personnel executed a federal search
warrant at 1701 Wilshire in Duncan, Oklahoma, the residence of Mr. Richard’s
parents. Mr. Richard lived there with his parents. Inside Mr. Richard’s bedroom
agents found a .22 caliber Ruger rifle in a corner, and a black bag containing drug
paraphernalia on top of Mr. Richard’s computer. Inside the black bag, agents
found a smaller blue bag that contained four cut drinking straws that are
commonly used to snort methamphetamine, a black capped clear glass vial with
suspected methamphetamine residue on it, a small glass vial wrapped in black
electric tape with suspected methamphetamine residue on it, and a smaller plastic
baggie with two corners removed. Each item subsequently tested positive for
methamphetamine residue.
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On February 8, 2006, Mr. Richard met voluntarily with law enforcement
personnel from the Drug Enforcement Administration (“DEA”), the Bureau of
Alcohol, Tobacco and Firearms (“ATF”), and the Stephen’s County Sheriff’s
Office. The interview lasted approximately an hour to an hour and forty-five
minutes and involved a discussion of the items the law enforcement personnel had
seized from Mr. Richard’s bedroom the previous month. Mr. Richard asked
permission to audio-tape the interview, but the authorities declined his request.
According to police notes and testimony, Mr. Richard admitted during the
interview that he had been using methamphetamine for the last three to four years
and that his last usage had been a few days before the interview. Mr. Richard
further stated that he would use methamphetamine every day or every other day,
consuming up to a gram each time. During the interview, Deputy Richards and
Agent Nunley noticed sores on Mr. Richard’s face, neck and arms that they
thought were similar to sores found on regular users of methamphetamine. DEA
Investigator Crowder and Agent Nunley testified that they recalled Mr. Richard
indicating that his preferred method of ingesting methamphetamine was to snort
it. Investigator Crowder further testified that Mr. Richard said he did not go out
looking for methamphetamine; rather, he only used it when people provided him
with it. Mr. Richard stated that the rifle in his bedroom was a gift from an uncle
and that he last shot the rifle six or seven months before. He said that he had
possessed the rifle for the last two years.
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As indicated above, a federal grand jury indicted Mr. Richard on one count
of being a drug user in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(3), and a jury found him guilty. On appeal, he makes the following
arguments: (1) the district court erred by denying Mr. Richard’s pretrial motion
to suppress evidence obtained pursuant to the execution of a search warrant that
lacked probable cause to believe evidence of a crime would be found in the
residence to be searched; (2) the district court erred by denying Mr. Richard’s
motions to dismiss the indictment on the ground that (a) 18 U.S.C. § 922(g)(3) is
unconstitutionally vague as applied to him, and/or (b) 18 U.S.C. § 922(g)(3)
violates the Second Amendment’s protection of Mr. Richard’s right to keep and
bear arms; (3) the district court erroneously instructed the jury on the definition
of an unlawful user of a controlled substance and there was insufficient evidence
to support the jury’s guilty verdict; and (4) the district court erred by denying Mr.
Richard’s post-trial motion for judgment of acquittal, based on the denial of Mr.
Richard’s right to due process.
DISCUSSION
I. Denial of Motion to Suppress:
The firearm found in Mr. Richard’s bedroom was seized pursuant to a
search warrant authorized by a United States Magistrate Judge. ATF Special
Agent Todd Nunley supplied the affidavit supporting the search warrant.
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Mr. Richard argues that the affidavit was “devoid of facts providing a nexus
between the place to be searched and the items to be seized,” Appellant’s Br. at
24, and he argues that what facts were presented in the affidavit were stale.
The affidavit began with Agent Nunley’s description of his own experience
in the investigation of drug cases and what he has typically found in searches in
such cases. He then recited that he “submit[s] that evidence of the above-
described offenses will be present at” the identified residence of Mr. Richard,
1701 Wilshire Drive, Duncan, Stephens County, Oklahoma. Aff. ¶ 2, Appellant’s
Add. of Exs. at 13. The affidavit proceeded to list five and one-half pages of
common characteristics of “individuals involved in the distribution of illegal
controlled substances,” including: using leased vehicles with hidden
compartments; using concealed storage spaces and outbuildings containing drug-
making materials and paraphernalia; using isolated buildings and structures
because of the volatile nature of methamphetamine production and the distinct
odor it produces; using “front” businesses and other means to launder cash
received from drug sales; maintaining books, records, receipts, etc. at the drug
dealer’s residence or place of business; hiding evidence of drug transactions in
secure locations within the drug dealer’s residence, place of business, or vehicle;
attempting to make proceeds of drug sales appear legitimate; maintaining lists of
addresses and/or phone numbers of drug trafficking associates and using cell
phones and pagers to maintain contact with associates; maintaining firearms at the
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drug dealer’s residence or place of business, as “[f]irearms are tools of the trade
for drug dealers”; investing illegal proceeds from drug transactions in legal
businesses; trading controlled substances for other stolen items like firearms,
checks and financial instruments; frequently using five, ten and twenty dollar
denomination bills; illegally possessing firearms for extended periods of time,
typically at the drug dealer’s residence or other property; and using counter-
surveillance equipment to warn of intruders and law enforcement approaching the
drug dealer’s residence. Id. ¶ 3, pp. 14-19. The next four paragraphs recited
more general observations about the conduct and behavior of drug dealers, based
upon Agent Nunley’s experience.
Agent Nunley thereafter set out the facts he believed established probable
cause that evidence that Mr. Richard was a user of a controlled substance and that
he possessed firearms would be found at the residence he shared with his parents.
Agent Nunley averred that the information contained in the affidavit has “been
corroborated through interviews as well as surveillance.” Id. at ¶ 9. While there
are chunks of the affidavit that have been redacted because they do not pertain to
Mr. Richard, there are references to Mr. Richard receiving methamphetamine (in
late 2004); providing precursor chemicals, particularly ephedrine (in late 2004
and on other undated occasions); possessing firearms and having a “fixation” with
them; living at the Wilshire residence with his parents; behaving like a person on
methamphetamine (in June 2005, while officers were conducting surveillance of
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another residence); 1 dealing primarily in cash; hiding ephedrine in the attic and
walls of his parents’ residence (in August 2004); having access to and spending
large amounts of cash; being involved in transactions involving ephedrine (on
numerous occasions, including May 2004); admitting in March 2005 that he was
involved with the use and distribution of methamphetamine; and associating with
known methamphetamine users. As indicated, a magistrate judge issued a search
warrant on the basis of the affidavit in support of the search warrant, and a
firearm and methamphetamine were found in Mr. Richard’s bedroom at the house
on Wilshire.
Mr. Richard filed a motion to suppress, and a hearing was conducted,
although no evidence was presented. After hearing arguments of counsel, the
district court denied the motion, finding as follows:
The motion to suppress will be denied. And I’m denying the
motion because I have very carefully considered it. I have very
carefully considered the briefs that have been filed and the arguments
that have been made. And I’m denying the motion because I think
that it is the legally and factually correct ruling. But it is, in my
estimation, an exceedingly close issue. . . .
As I have already mentioned, I’m not swayed nearly as much
by the staleness issue as an independent issue as I am by the issue as
to the nexus between the criminal activity described in the affidavit
1
One of these incidents involved an unnamed person telling Agent Nunley
that Mr. Richard’s mother said, in late 2004, that “she had observed instances
where her son, Adam RICHARD, would be awake for three (3) days and then
sleep for a period of three (3) days.” Id. at ¶ 24. When the unnamed person was
asked what would make an individual exhibit behavior like that, he responded,
“meth.” Id.-7-
and the place that was searched. So as to staleness as an independent
basis for suppression, I’m not persuaded that staleness is a problem.
The older information or the less recent information set forth
in the affidavit does, in my view, provide context and continuity in a
sense and I think in a very realistic sense as a backdrop that
provides, in turn, a confidence level for the magistrate in evaluating
the more recent information in the affidavit. The older information,
in and of itself, certainly might not be enough to support the warrant,
but it does bolster the affidavit as to the more recent activity.
On the issue of the nexus between the criminal activity
described in the affidavit and the place to be searched, I do deny the
motion, but I will say and I must say that this case, in my view, is on
the razor’s edge . . . .
....
This affidavit has precious little on its face, at least as of the
date close to the early 2006 date, that provides a reliable nexus to the
place to be searched. . . . But both on the underlying issue of
whether there’s a fair probability that the fruits of criminal activity
will be found at the place to be searched on the basis of the affidavit
itself and, if need be, on the basis of [the good faith exception of]
United States v. Leon, [468 U.S. 897 (1984)], I do deny the motion.
Tr. of Mot. to Suppress at 37-40, R. Vol. 2.
“In reviewing the denial of a motion to suppress, we must view the
evidence in the light most favorable to the government and uphold the district
court’s factual findings unless clearly erroneous.” United States v. Roach, ___
F.3d ___, 2009 WL 2989182, at *4 (10th Cir. Sept. 21, 2009). Because the
probable cause determination must be supported by facts contained in the
affidavit in support of the search warrant, “we limit our review to those facts.”
Id. The sufficiency of a search warrant is a conclusion of law, however, which
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we review de novo. Id. Finally, “[w]e afford great deference to a magistrate’s
finding of probable cause, reversing only if the affidavit supporting the warrant
application provides ‘no substantial basis for concluding that probable cause
existed.’” Id. (quoting United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.
2000) (further quotation omitted)).
“An affidavit establishes probable cause for a search warrant if the totality
of the information it contains establishes the fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v.
Soderstrand, 412 F.3d 1146, 1152 (10th Cir. 2005) (further quotation omitted).
Accordingly, “[p]robable cause requires only a probability or substantial chance
of criminal activity, rather than an actual showing of such activity.” United
States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009 ) (quotation marks and
citation omitted). The affidavit must, however, show a “nexus between . . .
suspected criminal activity and the place to be searched, and a court may not
arrive at probable cause simply by piling hunch upon hunch.” Roach, 2009 WL
2989182, at *4 (quotation marks and citations omitted).
Mr. Richard argues that Agent Nunley’s affidavit in support of the search
warrant was deficient and failed to establish probable cause because it relied on
stale, outdated and insufficient evidence showing a nexus between Mr. Richard’s
drug activities and the Wilshire residence. We disagree.
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A. Nexus
With respect to the nexus requirement, “[w]hether a sufficient nexus has
been established between a defendant’s suspected criminal activity and his
residence . . . necessarily depends upon the facts of each case.” Biglow, 562 F.3d
at 1279. “Certain non-exhaustive factors relevant to our nexus analysis include
(1) the type of crime at issue, (2) the extent of a suspect’s opportunity for
concealment, (3) the nature of the evidence sought, and (4) all reasonable
inferences as to where a criminal would likely keep such evidence.” Id. Our case
law has established that “a sufficient nexus is established once ‘an affidavit
describes circumstances which would warrant a person of reasonable caution’ in
the belief that ‘the articles sought’ are at a particular place.” Id. (quoting United
States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100
Dollars ($ 149,442.43) in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992)).
Furthermore, “[w]e have long recognized that magistrate judges may ‘rely
on the opinion’ of law enforcement officers ‘as to where contraband’ or other
evidence ‘may be kept.’” Id. (quoting United States v. Hargus, 128 F.3d 1358,
1362 (10th Cir. 1997)). Thus, “[i]n some cases, the ‘additional evidence’ linking
an individual’s suspected illegal activity to his home has . . . come in the form of
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an affiant officer’s statement that certain evidence—in his or her professional
experience—is likely to be found in a defendant’s residence.” Id. 2
As a result, “magistrate judges may draw their own reasonable conclusions,
based on the Government’s affidavit and the practical considerations of everyday
life, as to the likelihood that certain evidence will be found at a particular place.”
Id. at 1280. Given that standard, we agree with the district court’s analysis
concluding that, while it is a close question, there was sufficient indicia that
evidence of Mr. Richard’s drug activity would be found at his house. We note
Mr. Richard’s point that there were only two explicit references to the Wilshire
residence in the affidavit. Nonetheless, Agent Nunley expressed his professional
2
We acknowledged in Biglow that there has been some confusion in our
case law regarding the nexus requirement:
All agree that a nexus must exist between suspected criminal activity
and the place to be searched, but the parties dispute the strength of
the evidence that must link the two. On one hand, Defendant cites
our decision in United States v. Rowland, 145 F.3d 1194, 1204 (10th
Cir. 1998) for the proposition that probable cause ‘to search a
person’s residence does not arise based solely upon probable cause
that the person is guilty of a crime.’ We noted, in that case, that
‘additional evidence’ must link a defendant’s home to ‘the suspected
criminal activity.’ On the other hand, the Government relies on a
line of cases associated with United States v. Reyes, 798 F.2d 380,
382 (10th Cir. 1986), which suggest that evidence indicating a
defendant is a drug trafficker is alone sufficient to establish probable
cause to search that defendant’s residence for drugs and related
evidence.
Biglow, 562 F.3d at 1278-79 (footnote omitted). Hence, in Biglow we
emphasized the necessity of a case-by-case analysis. We employ such a case-
specific approach in the matter at hand.
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opinion, based upon extensive experience, that individuals involved in drug
activity like Mr. Richard’s typically maintain evidence of and/or tools of their
illegal activity in their residence, including firearms, drugs, and drug components.
That is sufficient to establish a nexus, and it is only bolstered by the explicit
references to illegal activity in the Wilshire residence.
B. Staleness
With respect to the staleness issue, Mr. Richard asserts that the affidavit in
support of the search warrant “lacked facts to support the credibility of hearsay
assertions of unknown individuals that were based on observations eighteen to
twenty-four months prior to the search warrant being requested.” Appellee’s Br.
at 15. “[W]hether information is too stale to establish probable cause depends on
the nature of the criminal activity, the length of the activity, and the nature of the
property to be seized.” United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir.
2004). As the government notes, the affidavit contains approximately eighteen
separate instances of Mr. Richard using methamphetamine, selling
methamphetamine, or obtaining and/or distributing ephedrine from numerous
sources from May 2004 to January 2006. Additionally, three independent
confidential sources described four instances of Mr. Richard using or possessing
firearms. The last information regarding Mr. Richard’s drug use was provided to
Agent Nunley on January 11, 2006, and the last information regarding
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Mr. Richard’s proximity to firearms was provided to Agent Nunley on January 18,
2006. Given that Mr. Richard was suspected of continuous and ongoing drug
activity, the information provided both from surveillance by law enforcement
personnel and from conversations with confidential sources concerning
Mr. Richard’s conduct from May 2004 to January 2006 (some two weeks prior to
the request for the warrant), was not stale.
We further agree with the district court that “[t]he older information or the
less recent information set forth in the affidavit . . . provides context and
continuity . . . and . . . in a very realistic sense is a backdrop that provides, in
turn, a confidence level for the magistrate in evaluating the more recent
information in the affidavit. The older information . . . does bolster the affidavit
as to the more recent activity.” Tr. of Mot. to Suppress at 37-38, R. Vol. 2. And
to the extent Mr. Richard challenges the reliability of the confidential sources,
law enforcement personnel corroborated the information the sources provided by
comparing their information with each other and by conducting their own
independent surveillance. All of this information portrayed Mr. Richard as a user,
distributor and manufacturer of methamphetamine, as well as a supplier of
ephedrine to other methamphetamine producers, from 2004 until 2006, when the
search warrant was issued.
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We therefore agree with the district court that the affidavit provided
probable cause to believe that evidence of Mr. Richard’s criminal activity would
be found at the Wilshire residence. 3
II. 18 U.S.C. § 922(g)(3):
18 U.S.C. § 922(g)(3) provides that “[i]t shall be unlawful for any
person . . . who is an unlawful user of or addicted to any controlled substance . . .
to possess[,] in or affecting commerce, any firearm.” Mr. Richard moved to
dismiss the indictment on the ground that § 922(g)(3) was unconstitutionally
vague as applied to him, and on the ground that it violated the Second
Amendment’s guarantee of the “right of the people to keep and bear Arms.” U.S.
Const. amend. II.
The district court denied the motion to dismiss based on the Second
Amendment prior to trial. With respect to the constitutional challenge on the
ground of vagueness, the district court denied Mr. Richard’s motion to dismiss
after the government had presented its case. We affirm both those rulings.
3
Even were we not to conclude that the affidavit provided probable cause
for a search warrant, we would conclude, for essentially the reasons stated by the
district court, that the good faith doctrine of United States v. Leon, 468 U.S. 897(1984), would require denial of Mr. Richard’s motion to suppress the evidence.
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A. Second Amendment Challenge:
“This court reviews a challenge to the constitutionality of a statute de
novo.” Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir.
2008). In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme
Court held that the Second Amendment provides an individual with a right to
possess and use a firearm for lawful purposes, such as self-defense within the
home.
The Court, however, specifically stated in Heller that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings.” Id. at 2816-17; see also United States v. McCane, 573 F.3d 1037,
1047 (10th Cir. 2009) (rejecting the argument that § 922(g) is unconstitutional in
light of Heller). The Court also specifically stated its intention that such
“presumptively lawful regulatory measures [act] only as examples; our list does
not purport to be exhaustive.” Heller, 128 S. Ct. at 2817 n.26.
Accordingly, the individual right to bear arms protected by the Second
Amendment is subject to appropriate restrictions like those contained in 18 U.S.C.
§ 922(g)(3).
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B. Unconstitutional or Void for Vagueness as Applied:
Mr. Richard argues that § 922(g)(3) is unconstitutionally vague as applied
to him. In particular, he asserts that Ҥ 922(g)(3) fails to apprise what conduct is
prohibited and fails to establish minimal guidelines to govern law enforcement.”
Appellant’s Br. at 30. We have stated:
[W]e reject . . . an as-applied constitutional challenge to the statute
criminalizing firearm possession by drug users [§ 922(g)(3)]. Such a
challenge will fail where the government has introduced sufficient
evidence of a temporal nexus between the drug use and firearm
possession. . . . Given the ample evidence of Defendant’s heavy,
habitual drug use in the year during which he possessed the firearms
at issue, we conclude that the statute was not unconstitutionally
vague as applied to him.
United States v. Edwards, 540 F.3d 1156, 1162 (10th Cir.), cert. denied, 129 S.
Ct. 964 (2008); see also United States v. Patterson, 431 F.3d 832, 836 (5th Cir.
2005) (“As [§ 922(g)(3)] applies to [defendant], it is not vague; an ordinary
person would understand that [defendant’s] actions establish him as an unlawful
user. He admitted that he regularly used marijuana . . . Section 922(g)(3) is not
unconstitutionally vague as applied to [defendant].”)
Mr. Richard tries to distinguish Edwards on two grounds: “simply
establishing a pattern of use, as opposed to ‘habitual use’ as in Edwards, during
the time the firearm is ‘possessed,’ is insufficient to support a violation of the
law”; and “[t]here must be not only a temporal nexus between the regular and
ongoing use of a controlled substance and possession of a firearm, there must also
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be a nexus between the use and the physical location of the firearm.” Appellant’s
Br. at 31. We reject these distinctions. Mr. Richard cites no case authority for
his requirement of a “physical nexus” between the defendant’s drug use and the
firearm, nor can we find any such case law. And, Mr. Richard’s attempt to
distinguish “a pattern of use” from “habitual abuse” is, simply, unavailing in the
circumstances of this case. There was ample evidence that Mr. Richard was a
regular user of methamphetamine during a time period when he possessed at least
one firearm.
For the foregoing reasons, we affirm the district court’s denial of
Mr. Richard’s several motions to dismiss the indictment.
III. Unlawful User Under § 922(g)(3) and Sufficiency of Evidence:
Mr. Richard argues the district court improperly instructed the jury on the
elements of § 922(g)(3) and the definition of a drug-user and that the evidence
was insufficient to convict him of being a drug user in possession of a firearm
within the meaning of that statute.
A. Adequacy of Jury Instruction:
The full instruction given to the jury defining a drug user in possession of a
firearm under 18 U.S.C. § 922(g)(3) was as follows:
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An “unlawful user of a controlled substance” is an individual
who, on a regular and on-going basis, uses a controlled substance in
a manner other than that prescribed by a licensed physician.
For the defendant to possess a firearm “while” he was an
unlawful user of a controlled substance does not require that the
defendant used the controlled substance at the precise time he
possessed the firearm. The defendant is not required to have used
illegal drugs on a particular day, or within a matter of days before
the possession of the firearm. Nor is the defendant required to have
been under the influence of an illegal drug at the exact same time
that he possessed the firearm. For the defendant to have possessed
the firearm “while” he was an unlawful user of a controlled
substance means that the defendant must have possessed the firearm
during the same time period that he was a regular and ongoing
unlawful user of a controlled substance.
Instruction No. 17, Jury Instructions at 19-20, R. Vol. 1 at 109-10. Mr. Richard
argues that “this definition does not comport with the stated Congressional
purpose of the statute, viz: keeping firearms out of the hands of categories of
potentially irresponsible persons.” Appellant’s Br. at 40. Mr. Richard submitted
a proposed jury instruction that would require the jury to find that an unlawful
user under § 922(g)(3) was a person who met the definition of an addict found in
the Diagnostic and Statistical Manual of Mental Disorders, (4th ed.), which the
district court declined to give.
“We review de novo whether, as a whole, the [trial] court’s jury
instructions correctly stated the governing law and provided the jury with an
ample understanding of the issues and applicable standards.” Martinez v.
Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir. 2009). However, we review for
an abuse of discretion the district court’s decision whether to give a particular
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instruction and we “reverse only in those cases where we have a substantial doubt
whether the jury was fairly guided in its deliberations.” Id. (quotation marks and
citation omitted). “As long as the charge [to the jury] as a whole adequately
states the law, the refusal to give a particular instruction is not an abuse of
discretion.” Zokari v. Gates, 561 F.3d 1076, 1090 (10th Cir. 2009) (quotation
marks and citation omitted). We are confident that the instruction in this case
complied with those requirements. We find no abuse of discretion in the district
court’s refusal to submit the jury instruction Mr. Richard sought, and we conclude
that the instructions, as a whole, adequately and accurately stated the governing
law.
B. Sufficiency of the Evidence:
With respect to the sufficiency of the evidence that Mr. Richard was an
unlawful user of a controlled substance and that there was an adequate nexus
between the controlled substance use and possession of the firearm, we have held
that the “sufficiency of the evidence to support a jury’s verdict is a legal question
that we review de novo.” United States v. Lewis, 240 F.3d 866, 870 (10th Cir.
2001). 4 “On appeal, the court asks whether, when considered in the light most
4
Mr. Richard properly preserved his sufficiency-of-the-evidence challenge
by moving for judgment of acquittal under Fed. R. Crim. P. 29(a) at the close of
the government’s case-in-chief, which was denied. Mr. Richard then filed a post-
trial motion for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29(c), which
(continued...)
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favorable to the government, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” Id.Mr. Richard argues that the government failed to prove he was an unlawful
user of a controlled substance during the time period the firearm was in his
bedroom and, additionally, that the government failed to prove a nexus between
the unlawful use of a controlled substance (methamphetamine) and the possession
of the firearm. He asserts “[t]here must be not only a temporal nexus between the
regular and ongoing use of a controlled substance and possession of a firearm,
there must also be a nexus between the use and the physical location of the
firearm.” Appellant’s Br. at 42. 5
As another circuit has observed, “cases interpreting § 922(g)(3) typically
discuss two concepts: contemporaneousness and regularity. The Eighth Circuit
has explained that ‘courts generally agree the law runs the risk of being
unconstitutionally vague without a judicially-created temporal nexus between the
gun possession and regular use.’ The Third, Fourth, and Ninth Circuits have
stated that there must be some regularity of drug use in addition to
contemporaneousness to meet the statute’s requirements.” United States v.
4
(...continued)
suffered a similar fate.
5
Interestingly, or perhaps more appropriately phrased as “tellingly,”
Mr. Richard cites no cases in support of his argument that the government must
demonstrate a nexus between the physical location of the firearm and his drug
use. We are aware of no such cases imposing that requirement.
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Burchard, ___ F.3d ___, 2009 WL 2768494, at *5 (6th Cir. 2009) (quoting United
States v. Patterson, 431 F.3d 832, 838-39 (8th Cir. 2005) (further citations
omitted))).
As applied to this case, Mr. Richard admitted to law enforcement personnel
that he had used methamphetamine for the past three to four years and his last
usage was two days before the interview on February 8, 2006. Additionally, the
methamphetamine residue and drug paraphernalia discovered in Mr. Richard’s
room on the same day and in the same place that the rifle was discovered provide
facts from which the jury could reasonably infer that Mr. Richard possessed the
firearm during the same period that he was a regular and ongoing user of a
controlled substance. We accordingly conclude that the evidence was sufficient
to support the jury’s verdict.
IV. Due Process Claim:
Finally, Mr. Richard argues that the district court erred in denying his post-
trial motion for judgment of acquittal on the ground that the government denied
Mr. Richard’s due process rights by interfering with his effort to preserve
evidence. This allegation derives from the government’s refusal to permit
Mr. Richard to record his interview which occurred on February 8, 2006, at the
Stephens County Sheriff’s Department. Agent Nunley, Rodney Richards, an
investigator for the Stephens County Sheriffs Department, and two DEA agents
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were present at the February 8 interview. Although Mr. Richard asked to record
the interview, and apparently even brought recording equipment, he was not
permitted to record the meeting. Three of the law enforcement personnel testified
at Mr. Richard’s trial as to what transpired in the interview.
In his motion for acquittal following the jury’s guilty verdict, Mr. Richard
asserted that the denial of permission to record the February 8 interview
amounted to a denial of due process of law, and he further argued that the
doctrine of spoliation of evidence required dismissal of the case. The district
court denied the motion. We agree with the district court’s decision. 6
6
The district court took pains to explain the significance of this issue:
Although there was testimony at trial about certain aspects of
defendant’s physical appearance that suggested drug use, and about
the drug-related items found in defendant’s bedroom when the search
was conducted . . . , no witness claimed the ability to evaluate the
observed features with precision sufficient to support an inference as
to the temporal proximity between Mr. Richard’s use of
methamphetamine and his possession of the rifle that was found in
his bedroom. The evidence at trial would not, without the testimony
about defendant’s admissions during the interview at the Sheriff’s
office, support a jury finding against the defendant on the temporal
element of the § 922(g)(3) charge. The government does not contend
otherwise.
Order at 5-6, R. Vol. 1 at 168-69. After discussing in detail the testimony
provided by the officers, the district court summed it up as follows:
In this case, three law enforcement officers, including a federal
agent and a federal investigator, testified about an interview at the
Sheriff’s office. One of those witnesses, Agent Nunley, gave an
account of the interview which would be sufficient to convict. One
(continued...)
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The Supreme Court has held that “unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Arizona v. Youngblood, 488
U.S. 51, 58 (1988); see also United States v. Beckstead, 500 F.3d 1154, 1159
(10th Cir. 2007) (“[U]nless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.”). Mr. Richard argues that the government’s refusal
to allow him to record his interview was tantamount to an intentional failure to
preserve exculpatory evidence, in violation of his due process rights. He further
contends that “[t]he agents operated in ‘bad faith’ because this was a conscious
6
(...continued)
of those witnesses, Ms. Crowder, gave testimony which would not
just fall short of satisfying the temporal requirement—it would, if
credited, undermine the testimony of Agent Nunley in support of that
requirement. The testimony of the third witness, Deputy Richards,
fell into the middle ground. He gave very general support to Agent
Nunley’s account of the duration and frequency of defendant’s use of
methamphetamine, but, as noted, could not attribute to defendant any
statement as to whether his last use was 30 days, 60 days, 90 days or
six months before the Oklahoma City use a couple of days before the
interview at the Sheriff’s office, and could not quote Crowder,
Nunley or [DEA Agent] Kushner as having even asked about that.
The case went to the jury on the basis of evidence fraught with
material uncertainties which clearly would not have existed if the
defendant had not been prohibited by Agent Nunley from recording
the interview.
Id. at 9-10, R. Vol. 1 at 172-73.
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decision to prevent a contemporaneous, complete record of each question and
answer during the interview.” Appellant’s Br. at 44.
The district court rejected Mr. Richard’s argument, stating as follows:
In the case at bar, as in Arizona v. Youngblood, there has not
been, and cannot be, a showing that Agent Nunley’s prohibition of
tape recording deprived the defendant of the benefit of exculpatory
evidence. By Agent Nunley’s account, a tape recording would have
made no difference. The testimony of Deputy Richards and
Investigator Crowder tends, to some degree, to raise questions about
Agent Nunley’s estimation of his proficiency versus that of a tape
recorder, but there has been no showing that a recording, if made,
would have been exculpatory. Consequently, applying the distinction
recognized by the Court in Arizona v. Youngblood, the court
concludes that bad faith must be shown.
Having carefully considered all of the evidence before it, the
court stops short of finding actual bad faith on the part of Agent
Nunley or his colleagues. At the time he prohibited the recording,
Agent Nunley would not have known with any certainty whether he
was avoiding the creation of exculpatory evidence. In bringing
defendant to the table, prohibiting recording, and eliciting
admissions, Agent Nunley was probably maximizing the leverage
that his badge gave him, but that does not amount to actual bad faith.
If the due process required complete good faith, rather than
bad faith, my conclusion would likely be different. The federal agent
and investigators knew exactly what they were doing when they
invited defendant to the Sheriff’s office. They hoped to walk out of
the conference room with the indictable case that they didn’t have
when they walked in. It worked.
. . . Although I cannot find outright bad faith, I do find, under
all the circumstances, the government’s treatment of defendant was
high-handed and arrogant.
Order at 12-13, R. Vol. 1 at 175-76.
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We agree with the district court that, while definitely not commendable, the
government’s conduct did not amount to bad faith as construed in our case law.
We accordingly affirm the district court’s denial of Mr. Richard’s motion for
acquittal on the ground that the Due Process clause of the Constitution was
violated.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s orders and
decision and AFFIRM the defendant’s conviction and sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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