United States v. Braden , 458 F. App'x 751 ( 2012 )


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  •                                                                           FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    February 1, 2012
    TENTH CIRCUIT                   Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 10-8109
    v.
    (D.C. No. 1:09-CR-00354-WFD-4)
    (D. Wyo.)
    CAMI BRADEN,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.
    A jury found Cami Braden guilty of participating in a conspiracy to obtain
    methamphetamine from suppliers in Utah and transport it to Wyoming for resale.
    To prove her involvement in that scheme, the government at trial presented
    testimony from Ms. Braden’s co-conspirators as well as her own confession. This
    evidence revealed that Ms. Braden not only made regular trips to Utah to obtain
    methamphetamine from her suppliers, but also that she arranged for several of her
    co-defendants to do the same. Ms. Braden now appeals her conviction, advancing
    a number of reasons for reversal.
    *
    This order and judgment is not binding precedent except under the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.
    1. We begin with Ms. Braden’s claim that she was under the influence of
    methamphetamine when she made her post-arrest confession to police. This
    means, she says, that any waiver of her Fifth Amendment rights was not knowing,
    intelligent, or voluntary and that her confession should have been suppressed.
    The difficulty is, the mere fact a suspect has consumed drugs or alcohol prior to
    interrogation does not automatically render her waiver invalid under our
    controlling precedent. See United States v. Burson, 
    531 F.3d 1254
    , 1258 (10th
    Cir. 2008). Instead, a court must look to the totality of the circumstances and ask
    whether the waiver was made “with a full awareness of both the nature of the
    right being abandoned and the consequences of the decision to abandon it.” 
    Id. at 1257
     (quotation omitted).
    In this case, the district court’s factual findings, made after a pretrial
    suppression hearing, are more than sufficient to show Ms. Braden had the
    requisite awareness. The district court found that, though Ms. Braden told the
    interrogating officers she had used methamphetamine eight to ten hours earlier,
    she denied that she was under the influence of the drug at the time of her
    interrogation. The district court also found that Ms. Braden was calm, lucid,
    well-spoken, and responded appropriately to questions throughout the interview.
    Understandably, her later ability to recall many details about the interrogation
    also suggested to the district court a lack of significant mental impairment at the
    time of the confession.
    -2-
    To this, Ms. Braden responds that the district court got the facts wrong.
    She paints a very different picture of what happened, relying on her own (and her
    mother’s) testimony. But we review the district court’s factual findings only for
    clear error, and in this case the district court’s findings are amply supported by
    the testimony of the officers who conducted the interview. The judge concluded
    that this testimony was the more credible, and that determination is left to the
    district court, not to us. See United States v. Alexander, 
    447 F.3d 1290
    , 1294
    (10th Cir. 2006).
    2. Next, Ms. Braden points to three places where, she believes, the district
    court committed evidentiary error by admitting testimony against her. Her failure
    to object at trial, however, means that we may review only for plain error.
    Because any prejudice flowing from the challenged testimony was relatively
    slight and the remaining evidence against Ms. Braden was overwhelming, we
    cannot say that the putative errors she identifies rise to the level of plain error.
    First, she claims that the arresting officer struck her with what she terms
    “evidentiary harpoons” by deliberately introducing inadmissible testimony. By
    way of example, she cites the fact that, when asked to describe how law
    enforcement located her, the arresting officer testified that a fellow officer
    immediately identified her when she opened a door because he “had dealt with her
    before.” Aplt. App. vol. III at 722. We can understand how a statement like this
    might give rise to an inference that she had a criminal past. But such inference is
    -3-
    attenuated at best, especially given the brevity of the remark and the absence of
    any effort by the prosecution to make the inferential connection more explicit.
    Besides, the testimony was responsive to a legitimate line of inquiry into how law
    enforcement identified her. Given all this, we cannot say the district court plainly
    erred in admitting the testimony.
    Second, Ms. Braden says, the district court should not have admitted
    certain out-of-court statements by co-conspirators without holding a Fed. R. Evid.
    801(d)(2)(E) hearing. 1 But most of the statements she points to are offhand
    comments by witnesses that simply provide context for admissible testimony
    about those witnesses’ actions. They do not go to the core of the conspiracy or
    Ms. Braden’s involvement with it and we can see no plain error in their
    admission.
    Perhaps the only challenged statement that might have harmed Ms. Braden
    in the eyes of the jury came when her supplier, Kenneth Souza, said that he knew
    some of the methamphetamine he provided to Jody Clawson, another co-
    conspirator, was intended to end up in the hands of Ms. Braden. Mr. Souza,
    however, said he knew this because of “conversations between us three.” Aplt.
    App. vol. III at 468. To the extent this suggests Mr. Souza received the
    1
    Although Ms. Braden did object below to the introduction of hearsay
    statements by co-conspirators generally, the government disclaimed any intention
    of introducing such statements and Ms. Braden never asserted at trial (or when
    given the opportunity after trial) that the particular challenged statements were
    hearsay. Plain error review is therefore appropriate.
    -4-
    information from Ms. Braden herself, the testimony was perfectly proper as a
    party admission. Neither, in any event, is there anything in the record plainly
    indicating otherwise.
    Third, Ms. Braden argues that the prosecutor impermissibly elicited direct
    examination testimony through leading questions. But she does little to explain
    how any of the challenged questions prejudiced her. And it is clear enough that,
    had she objected, the prosecution could easily have rephrased its questions to
    elicit the same answer. See United States v. Durham, 
    645 F.3d 883
    , 891 (7th Cir.
    2011).
    Neither is this a marginal case where comparatively modest evidentiary
    errors like those alleged here might accumulate to undermine confidence in the
    verdict. The government presented testimony from no fewer than six of Ms.
    Braden’s co-conspirators explaining her deep and substantial involvement with
    the conspiracy. And of course, Ms. Braden’s confession admitting to her role in
    the distribution scheme contributed significantly to the evidence against her. In
    light of the weight of the unchallenged evidence against her, we simply cannot
    see how any or all of the ostensible errors Ms. Braden identifies could have had a
    “substantial influence on the outcome of the trial.” United States v. Collins, 
    575 F.3d 1069
    , 1073 (10th Cir. 2009) (quotation omitted).
    3. Finally, Ms. Braden challenges the district court’s calculation of the
    amount of methamphetamine attributable to her for purposes of the Sentencing
    -5-
    Guidelines. She claims that she was responsible for distribution of just .5 to 1.5
    kilograms and not, as the district court found, 1.5 to 5 kilograms. But there are
    many problems with this argument, including the fact that it fails to account for
    the court’s ability to attribute to Ms. Braden any reasonably foreseeable drug
    trafficking by her co-conspirators in furtherance of the conspiracy. U.S.S.G.
    § 1B1.3(a)(1)(B). And the fact that it fails to take account of her own confession
    showing that she personally trafficked more than 1.5 kilograms. 2
    Ms. Braden replies that, even if its ultimate decision was not substantively
    unreasonable, the district court erred as a matter of procedure by rotely adopting
    the pre-sentence report’s findings on drug quantity. But the record reveals the
    court did no such thing. Instead, the court listened to the defendant’s objections,
    took a recess to consider them, and then (and only then) found that the probation
    department “has properly calculated the amount of drugs attributable to this
    defendant in this conspiracy and, if anything, gave Ms. Braden the benefit of the
    doubt.” Aplt. App. vol. III at 901. There is nothing legally problematic in that
    procedure. Cf. United States v. Farnsworth, 
    92 F.3d 1001
    , 1011 (10th Cir. 1996).
    2
    In her confession, Ms. Braden admitted receiving half an ounce of
    methamphetamine every three to four days between April 2008 and November
    2009, and that (rounding in her favor) comes out to roughly 1.94 kilograms.
    There are 551 days from April 30, 2008, to November 1, 2009. If she took a trip
    every four days, that would be 137.75 trips (call it 137). At a half ounce per trip,
    that’s 68.5 ounces. Dividing that by 35.27, the number of ounces in a kilogram,
    comes out to about 1.94 kilograms.
    -6-
    The judgment is affirmed.
    ENTERED FOR THE COURT
    Neil M. Gorsuch
    Circuit Judge
    -7-
    

Document Info

Docket Number: 10-8109

Citation Numbers: 458 F. App'x 751

Judges: Gorsuch, Anderson, Matheson

Filed Date: 2/1/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024