United States v. Patterson , 713 F.3d 1237 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
April 5, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3258
ADRIAN PATTERSON,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 6:09-CR-10099-JTM-4)
Submitted on the briefs
William H. Campbell, Oklahoma City, Oklahoma, on opening brief, and Kenneth
Scott Williamson, Goodlettsville, Tennessee, on supplemental opening brief and
reply for Appellant.
Debra L. Barnett, Assistant United States Attorney, with Barry R. Grissom,
United States Attorney, Wichita, Kansas, on brief for Appellee.
Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.
TYMKOVICH, Circuit Judge.
Adrian Patterson was convicted by jury trial of a number of drug charges,
including conspiracy to possess with intent to distribute five kilograms or more of
cocaine. On appeal, Patterson raises a number of challenges to his conviction and
sentence. As we explain below, none of the pretrial, trial, and sentencing claims
have merit. We hold, among other things, that the district court did not err in
denying a competency hearing; declining to exclude evidence at trial on Fourth
Amendment and hearsay grounds; conducting and instructing the jury; and
sentencing Patterson.
Exercising jurisdiction under 28 U.S.C. § 1291, we accordingly AFFIRM .
I. Background
The events that gave rise to Patterson’s indictment stem from a Drug
Enforcement Administration (DEA) investigation into whether Bernard Redd was
distributing cocaine in Wichita, Kansas. The DEA agents began to suspect Redd
was involved in a cocaine distribution conspiracy after they linked him to Richard
Smart, whom the agents believed to be a large-scale cocaine distributor in Dallas,
Texas, and who was already the subject of DEA surveillance. The agents had
placed wiretaps on phones used by Smart and overheard a series of calls made
between Smart and Redd that the agents interpreted to involve illegal drug
dealing. Based in part on these communications, the agents obtained a wiretap on
Redd’s phone.
The agents also connected Redd to Fredrick Bradley, whose home was
searched by police after neighbors reported that it had been the site of a shooting.
This search revealed that the home was filled with cocaine and implements to
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manufacture and distribute cocaine. Bradley was subsequently arrested in
Louisiana after attempting to evade the authorities. Prior to his arrest, Bradley
had a series of conversations with Redd. And after Bradley’s arrest, DEA agents
recorded wiretapped phone conversations in which Redd discussed whether
Bradley would cooperate with police.
The DEA wiretap on Redd’s phone also revealed that Redd was in
communication with his cousin, Adrian Patterson. Based on their interpretation
of the calls between Patterson and Redd, the DEA agents concluded that the
cousins were discussing the possibility of selling cocaine.
The government ultimately indicted Patterson and a number of other
individuals for their roles in a cocaine distribution operation that extended
throughout Kansas, Oklahoma, and Texas. 1 As is relevant to this appeal, the
government alleged Smart was a large-scale cocaine distributor who agreed to sell
his product to Redd, who in turn agreed to sell it to Patterson. The government
further alleged that Redd had previously sold cocaine to Bradley. Redd
essentially functioned as a middleman connecting Smart to Patterson.
Redd and Patterson were initially tried together on the drug conspiracy
charges. During the trial, however, Redd pleaded guilty, leaving Patterson as the
1
Although Patterson was charged with a number of other crimes, including
conspiracy to distribute marijuana, his involvement in the cocaine distribution
conspiracy is the principal matter relevant to this appeal. Aside from a challenge
to the sufficiency of the indictment issued against him, Patterson raises no
challenges to his other convictions.
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sole defendant. Meanwhile, Smart and Bradley became cooperating witnesses and
testified against Patterson and Redd at trial.
A substantial portion of the evidence presented against the co-conspirators
was obtained through wiretaps of their telephone conversations. 2 In these
recorded conversations, the government argued that the co-conspirators spoke in
coded language to arrange drug deals. For example, in analyzing one
conversation between Redd and Patterson, the government suggested that when
Patterson told Redd he was “light” or “like sevens” or “close to eight,” and then
stated “they won’t unloosen the screws, huh,” R., Vol. II, at 672, these were
references to the fact that Patterson did not have enough money to purchase
cocaine and wanted to purchase some quantity on credit. Similarly, the
government argued that the co-conspirators, including Patterson, used specific
code words for certain matters related to the conspiracy: for example, the
government suggested that “Tanisha” was a code word for Smart or Smart’s drug
dealing, while a reference to the size in inches of certain tires at a used car lot run
by Smart was in fact a reference to the price in thousands of dollars of a kilo of
cocaine.
The government presented much of the wiretap evidence through the
testimony of DEA Special Agent Erik Smith, who provided his interpretation of a
2
Additional recordings were facilitated by Smart, who wore a body wire
during conversations he had with Redd.
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number of these conversations, based on his experience as a DEA agent and his
surveillance of the members of the conspiracy. Agent Smith also provided
context to the wiretapped conversations by showing how certain discussions
between Redd and Patterson were linked to ones that Redd had with Smart. For
example, Agent Smith interpreted a series of conversations between Patterson and
Redd and then Redd and Smart, in which Agent Smith alleged that Patterson
implored Redd to allow him to buy cocaine on credit, Redd tried to make this
purchase with Smart on behalf of Patterson, and Smart did not accept the offer.
Finally, Smart and Bradley, as cooperating witnesses for the government,
provided context to the coded conversations they had with Redd and confirmed
that they were in fact using coded language to discuss drug dealing. For example,
Bradley testified that he and Redd “really didn’t use numbers on the phone, so we
talk[ed] about it in person” and then would confirm the order over the phone with
phrases such as “had he seen those hos, or were those hos in town, and [Redd]
would say yay or nay [to confirm the order].” R., Vol. II, at 483–84. Similarly,
Smart confirmed that when Redd asked to speak to “Tanisha,” it was a code that
meant he wanted to buy drugs or negotiate a drug deal at Smart’s mom’s house,
[id. at 768–69], and when Smart told Redd about the size of tires for sale at his
car lot, he was in fact suggesting the price for a kilo of cocaine.
Although both of the cooperating witnesses admitted they had never
directly agreed to sell drugs to Patterson and had not had recent direct contact
-5-
with Patterson, they did provide other evidence linking Patterson to the cocaine
conspiracy. For example, Bradley identified Patterson in court and noted Redd
had complained that Patterson was “short with money.” Id. at 494. From the
context of this conversation, Bradley thought Redd was saying Patterson was not
good at managing money related to his drug sales. Likewise, Smart provided no
evidence of direct dealings with Patterson (and could not identify him in court)
but referenced conversations he had with Redd in which Redd said that “his
cousin,” a rapper, would buy cocaine supplied by Redd and was having troubles
with money. Id. at 831. Patterson was in fact an aspiring rapper, and, as noted
above, Redd and Patterson are cousins.
Finally, the government elicited testimony from Sajcha Hobbs, a jailhouse
informant. Hobbs and Patterson had been in custody together while both men
were awaiting their trials on federal drug charges. Hobbs testified that Patterson
made a number of incriminating statements to him while they were in jail
together. As relevant to this appeal, Hobbs testified that Patterson had told him
that he received cocaine from a cousin, who provided him with two to four kilos
of cocaine. Hobbs also provided a letter to prosecutors in which he appears to
have explained in greater detail what he had learned about the cocaine conspiracy.
The letter itself does not appear to be part of the record on appeal but was
introduced at trial.
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Patterson was convicted after a five-day jury trial and sentenced to 160
months’ imprisonment for the cocaine conspiracy charge. Patterson then timely
filed this appeal challenging his conviction and sentence. We provide further
factual and procedural background below as it becomes relevant to resolving each
of Patterson’s claims.
II. Analysis
Patterson challenges a wide range of the pretrial, trial, and sentencing
decisions of the district court. He contends:
(1) the district court erred in denying his request for a pretrial hearing to
determine his competency to stand trial;
(2) the evidence offered by the government was insufficient both to support
his conviction and to provide a basis for the admission of testimony under the co-
conspirator exception to the hearsay rule;
(3) his Sixth Amendment rights under the Confrontation Clause were
violated when hearsay testimony linking him to the conspiracy was introduced at
trial;
(4) the district court improperly instructed the jury;
(5) the district court’s finding at sentencing that he was responsible for the
distribution of fifteen kilos of cocaine is clearly erroneous;
(6) the indictment was insufficiently specific as to the counts charged
against him; and
-7-
(7) the district court erred in failing to exclude evidence obtained in
violation of his Fourth Amendment rights.
We address in turn the reasons we affirm the district court.
A. Pretrial Competency Hearing
Patterson’s first challenge is to the district court’s decision to deny him a
hearing to determine whether he was competent to stand trial. We review the
district court’s decision for abuse of discretion. United States v. Martinez-Haro,
645 F.3d 1228, 1232 (10th Cir. 2011). We will not reverse the district court if its
decision falls within the bounds of permissible choice under the circumstances
and is not arbitrary, capricious, or whimsical. United States v. Davis, 636 F.3d
1281, 1297 (10th Cir. 2011).
A defendant’s right to a competency hearing is governed in part by 18
U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in
limited circumstances. These include “if there is reasonable cause to believe that
the defendant may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand
the nature and consequences of the proceedings against him or to assist properly
in his defense.” Id. (emphasis added). 3
3
The Due Process Clause of the Fifth Amendment also requires an
adequate hearing under essentially the same standard as the one described in
§ 4241. See Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S.
375 (1966); United States v. Cornejo-Sandoval, 564 F.3d 1225, 1233–34 (10th
(continued...)
-8-
“The issue of whether there is reasonable cause under 18 U.S.C. § 4241(a)
rests in the discretion of the [district] court. As such, a district court may
consider many factors when determining whether reasonable cause to order a
competency hearing exists, including (but not limited to) its observations of the
defendant’s demeanor during the proceeding.” United States v. Arenburg, 605
F.3d 164, 169 (2d Cir. 2010) (citations and internal quotations omitted); see also
United States v. Landers, 564 F.3d 1217, 1221 (10th Cir. 2009) (denying a claim
that the district court erred in failing to order a competency hearing based in part
on the court’s observation of the defendant and a review of his writings); United
States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) (noting that in
determining a defendant’s competency to stand trial, after a competency
evaluation has been performed, the district court “may rely on a number of
factors, including . . . the court’s observations of the defendant’s comportment”).
In reviewing a district court’s decision as to mental competency, we
“stress that the observations and conclusions of the district court observing [the
defendant’s] behavior and demeanor [in determining reasonable cause to grant a
competency hearing] are crucial to any proper evaluation of a cold appellate
record.” United States v. Cornejo-Sandoval, 564 F.3d 1225, 1234 (10th Cir.
2009); see also United States v. Rickert, 685 F.3d 760, 767 (8th Cir. 2012)
3
(...continued)
Cir. 2009) (noting that the standard announced in Pate and § 4241 are essentially
the same).
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(noting “the district court’s institutional advantage over the court of appeals in
evaluating the demeanor of the defendant and the statements of counsel about the
defendant’s mental state”), cert denied, No. 12-8613, 2013 WL 506825 (U.S.
Mar. 18, 2013).
And we note “[t]he requirement of § 4241(a) that the district court grant a
competency hearing when reasonable cause exists cannot be expanded to require
such a hearing any time that a defendant engages in disruptive tactics or pursues a
frivolous legal strategy.” United States v. Banks, 482 F.3d 733, 743 (4th Cir.
2007); see also Cornejo-Sandoval, 564 F.3d 1225 (affirming the denial of a
motion for a competency hearing where defendant was only found to be a difficult
client who engaged in disruptive behavior); Landers, 564 F.3d at 1222 (affirming
a district court’s denial of a competency hearing in part because the defendant,
though he engaged in disruptive behavior during the trial, did not do so because
of any mental incompetency).
In Patterson’s pretrial motion for a competency hearing, his attorney
asserted that Patterson had trouble paying attention for long periods of time and
had previously been diagnosed as suffering from Attention Deficit Disorder
(ADD). Based on these observations, Patterson’s attorney raised concerns in the
motion about his client’s ability to concentrate or control himself during pretrial
preparations or during the trial itself.
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The district court denied Patterson’s motion, concluding the allegations did
not suffice to establish reasonable cause for a competency hearing. Among other
reasons, the court based its decision on its prior observations of Patterson in
court, where he “appeared alert, responsive, knowledgeable[,] and understanding
of what was happening.” R., Vol I, at 194. The court further determined that
Patterson’s ADD had apparently been successfully treated and, notwithstanding
this condition, Patterson had proved himself to be a competent businessman and
manager of property before his arrest. Finally, the court noted that Patterson had
filed his own pro se motion to limit the evidence that could be used against him at
trial. While the court noted that the motion was lacking in legal merit, the court
reasoned that the motion “demonstrates a valid general understanding of the
charges and the issues involved in the case.” Id.
On appeal, Patterson contends the district court erred in three ways in
denying his motion. First, he argues the district court unjustifiably discounted the
fact that the pro se motion he filed was so incoherent as to raise questions about
Patterson’s mental competency. Second, he suggests that a court “should not be
the final arbiter as to the competence of any defendant” and implies that when any
doubt exists as to whether a defendant is incompetent, a court should defer to a
mental health expert to obtain a definitive evaluation. Aplt. Br. at 12; 4 see also
4
Patterson submitted two opening briefs in this case, which he referred to
as his opening brief and his supplemental opening brief. We only have occasion
(continued...)
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Rep. Br. at 7 (“[It] is the very purpose of §[ ]4241(a) to allow a trained person to
determine a defendant’s mental competency.”). Finally, his appellate counsel,
who did not represent Patterson at the district court, suggests that Patterson may
have been suffering from Asperger’s Syndrome or Obsessive Compulsive
Disorder during the trial and that on this basis alone he would have been entitled
to an evaluation under § 4241.
None of these arguments convince us that Patterson has satisfied the high
standard required for finding that the district court abused its discretion. As to
Patterson’s first contention, we have reviewed the content of Patterson’s pro se
motion and agree with the district court that the structure and legal reasoning of
the document would fall below the level we would expect from competent
counsel. But we disagree with Patterson that this document is reliable evidence
of his incompetence to stand trial or that it would even entitle him to a
competency hearing. To the contrary, the motion shows that Patterson both
understands the nature of the evidence to be presented against him and the
consequences of certain litigation strategies that were in fact employed by his
attorney. 5
4
(...continued)
to cite the first brief he submitted, which we refer to as “Aplt. Br.”
5
For example, Patterson argues in the motion that certain forms of hearsay
evidence to be presented against him might be inadmissible and that incriminatory
evidence obtained in violation of his Fourth Amendment rights might be similarly
(continued...)
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We also reject Patterson’s apparent contention that the district court cannot
provide a gate keeping determination of whether to grant a competency hearing.
Allowing defendants to obtain a competency hearing absent reasonable cause
would invite defendants to initiate disruptions to delay their cases and make it
more difficult to identify legitimate allegations of incompetency.
Finally, we note that even if Patterson had Asperger’s Syndrome or
Obsessive Compulsive Disorder, this alone might not be sufficient to warrant a
competency hearing. To the contrary, as § 4241(a) dictates, Patterson would still
need to show reasonable cause that his disorder made “him mentally incompetent
to the extent that he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense” (emphasis added);
see also United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (“It is
well-established that some degree of mental illness cannot be equated with
incompetence to stand trial.”), cert. denied, 479 U.S. 1036 (1987).
In sum, there was nothing arbitrary about the district court’s denial of
Patterson’s motion. Rather, it was based on the district court’s direct
observations of the defendant and a reasoned review of the evidence known about
the defendant at the time the motion was made.
5
(...continued)
excluded. These are the same types of claims raised by Patterson on appeal,
though they are presented by his lawyer in a more coherent form. Thus, rather
than supporting Patterson’s argument that he was entitled to a pretrial competency
hearing, the pro se motion in fact undermines it.
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B. Sufficiency of the Evidence
Patterson next raises two challenges to the sufficiency of the evidence used
by the government at various stages of its case against him. First, he challenges
the district court’s finding at a pretrial James hearing that the government had
established, by a preponderance of the evidence, the existence of a conspiracy to
distribute cocaine, such that statements made between the co-conspirators in
furtherance of the conspiracy could be admitted under this exception to the
hearsay rule. See Fed. R. Evid. 801(d)(2)(E). Patterson alleges this finding was
clearly erroneous. Second, Patterson challenges the sufficiency of the evidence
used to convict him of the cocaine conspiracy charge.
Our evaluation of these two claims implicates different standards of review.
First, as to the challenge related to the James hearing, in order to admit
statements under the co-conspirator exception to the hearsay rule, the district
court had to determine: “(1) by a preponderance of the evidence, a conspiracy
existed, (2) the declarant and the defendant were both members of the conspiracy,
and (3) the statements were made in the course of and in furtherance of the
conspiracy.” United States v. Urena, 27 F.3d 1487, 1490 (10th Cir. 1994)
(citation omitted). We review the district court’s findings of fact with respect to
these three matters for clear error. United States v. Caro, 965 F.2d 1548, 1557
(10th Cir. 1992).
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Second, as to the evidence used to convict Patterson of the cocaine
conspiracy charge, the government was required to show: (1) Patterson and at
least one other person agreed to distribute cocaine, (2) Patterson knew the
essential objectives of the conspiracy, (3) Patterson knowingly and voluntarily
became a part of the conspiracy, and (4) there was interdependence among the
members of the conspiracy. See, e.g., United States v. Hernandez, 509 F.3d 1290,
1295 (10th Cir. 2007). Because Patterson was convicted on this charge, we
review the evidence presented at trial in the light most favorable to the
government to determine if a reasonable juror could find beyond a reasonable
doubt from the evidence, along with reasonable inferences therefrom, that
Patterson was guilty. See, e.g., United States v. Earls, 42 F.3d 1321, 1324 (10th
Cir. 1994).
The evidence presented at the James hearing comprised testimony from
Special Agent Smith, who discussed both his interpretation of a number of
wiretapped phone calls between various co-conspirators and his surveillance of
the co-conspirators’ movements during the course of the conspiracy. From this
evidence, the district court made the following factual finding:
By a preponderance of the evidence, the intercepted calls
demonstrate the existence of an agreement among Redd, Patterson
and others to obtain and distribute narcotics. Redd, Patterson and
other persons worked together to obtain drugs, obtain payment or
financing for the sale of drugs, discussed how to use cell phones and
coded language to avoid police investigations, how the drugs should
be priced, and identif[ied] unreliable customers. Contrary to the
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suggestions of Patterson, the telephone calls are neither the
innocuous conversations of casual acquaintances, nor unnecessarily
redundant or repetitive, since the collective nature of the evidence is
necessary to demonstrate the nature, context, and duration of the
conspiratorial agreement.
R., Vol. I, at 265. Our review of the record, especially the detailed evidence
regarding coded exchanges submitted by the government at the James hearing,
convinces us that this factual finding as to the existence of a conspiracy was not
clearly erroneous. Patterson’s attacks on this finding mainly involve conclusory
allegations about how the above finding was a foregone conclusion and how
Agent Smith’s testimony was unsubstantiated. He also renews the suggestions he
made in the district court that the only possible interpretation of the wiretapped
conversations is that they were unrelated to drug dealing. None of these
contentions persuade us that the district court reached the incorrect result,
especially on review for clear error.
Patterson also suggests the government failed to disprove that the
conspiracy only involved a mere buyer-seller relationship between Redd and
Patterson. As Patterson notes, in United States v. McIntyre, 836 F.2d 467 (10th
Cir. 1987), we reversed a conviction for a drug distribution conspiracy where the
government failed to show that a defendant was not merely at the end of a drug
distribution chain and had no intention to distribute the cocaine for profit.
Yet McIntyre is distinguishable from the facts of this case: in contrast to
the defendant in McIntyre, there is substantial evidence that Patterson was
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involved in and knew about the wider drug conspiracy scheme and intended to
further distribute the drugs. For example, Patterson contacted Redd and
attempted to arrange to purchase large quantities of cocaine, on credit, to finance
continued drug-dealing operations. Moreover, unlike in McIntyre, Patterson was
also convicted for his involvement in a related marijuana distribution scheme, a
conviction he does not challenge on appeal. In any case, it was not clearly
erroneous for the district court to conclude that Patterson was more than a buyer
of cocaine. See also United States v. Cornelius, 696 F.3d 1307, 1330 n.5 (10th
Cir. 2012) (distinguishing McIntyre on similar grounds).
Likewise, Patterson’s attack on the sufficiency of the evidence used to
convict him of the cocaine conspiracy charge also fails. As noted above, the
evidence presented at trial against Patterson comprised much of the same
evidence used at the James hearing, including many of the same wiretapped
conversations and similar testimony from Special Agent Smith. In addition, the
government offered the testimony of two cooperating witnesses and a jailhouse
informant who all provided testimony implicating Patterson in the cocaine
distribution operation.
Patterson resists this conclusion mainly by attempting to reassert the same
arguments that failed to convince the jury: he attacks the credibility of Agent
Smith and the cooperating witnesses, he selectively cites the record in an attempt
to point to purported weaknesses in the government’s case, he alleges myriad
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injustices visited upon him by the DEA and prosecutors, and he suggests that all
of these abuses undermined his due process rights. None of these largely
conclusory allegations convince us to disturb the jury’s verdict.
Viewed in the light most favorable to the government, a rational juror could
draw the conclusion from this evidence that Patterson was involved in a
conspiracy to distribute cocaine. 6
C. Confrontation Clause
Patterson next raises a challenge under the Confrontation Clause to two
statements from Smart and Bradley admitted at trial. As noted above, these
witnesses testified that Redd told them Patterson was involved in the drug
conspiracy. Patterson argues that the admission of such testimony violates
principles established by the Supreme Court in Crawford v. Washington, 541 U.S.
36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). In Crawford, the
Supreme Court held that the Sixth Amendment precluded the admission of
out-of-court statements that are testimonial, unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness. In Bruton,
the Court held that it would violate the Confrontation Clause to allow the
6
Patterson also alleges that Agent Smith’s testimony was so unreliable it
constitutes structural error meriting invalidation of his conviction. The Supreme
Court has only identified a few errors, such as the total deprivation of the right to
counsel or a trial by a biased judge, that constitute structural errors. See, e.g.,
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). We find no error in the type of
testimony Agent Smith offered at trial, let alone structural error.
-18-
confession of a non-testifying co-defendant that implicated the defendant to be
used against that defendant.
The admission of these two statements violated neither Crawford nor
Bruton because both statements were made in furtherance of a conspiracy and
were therefore nontestimonial. First, as we explained above, there was sufficient
evidence presented at the James hearing to establish the basis for the admission of
co-conspirator statements under this exception to the hearsay rule. Second, the
statements at issue here, which related to concerns about how to finance the
conspiracy and identify the members of the conspiracy, were made “in
furtherance of the conspiracy” for purposes of this hearsay exception. See United
States v. Roberts, 14 F.3d 502, 515 (10th Cir. 1993) (“Statements made . . . to
keep co-conspirators abreast of an ongoing conspiracy’s activities satisfy the ‘in
furtherance’ . . . requirement [under Rule 801(d)(2)(E)].”) (quoting United States
v. Yarbrough, 852 F.2d 1522, 1535–36 (9th Cir.), cert. denied, 488 U.S. 866(1988)).
Third, because these statements were made in furtherance of a conspiracy,
they are nontestimonial and present no Sixth Amendment problem. See
Crawford, 541 U.S. at 56 (noting that a statement in furtherance of a conspiracy
is not testimonial); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir.
-19-
2010) (noting that the Bruton rule does not apply to nontestimonial hearsay). The
claim therefore fails. 7
D. Improper Statements by the Trial Judge
Patterson next suggests that comments made by the district court at the
close of trial improperly influenced the jury. Specifically, Patterson alleges that
comments made by the district court judge in which the judge noted that he would
be out of town the week after the trial concluded, and that a different judge would
have to handle the jury verdict, if a verdict was not reached before the end of the
week, combined to exert undue coercion on the jury. No objection to the court’s
comments was lodged below, so we review for plain error. See United States v.
Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010).
7
Patterson also suggests that testimony from Agent Smith about telephone
records obtained from Patterson’s cell phone carrier, Sprint, was admitted at trial
in violation of his Sixth Amendment rights. In advancing this position, Patterson
relies upon Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the
Supreme Court held that “affidavits” issued regarding the results of drug analyses
“are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s
right of confrontation under the Sixth Amendment.” Id. at 307. Patterson,
however, does not point to anywhere in the record where this testimony was
introduced and even incorrectly represents that the phone records were entirely
admitted through Agent Smith (when, in fact, a Sprint technician was called by
the government on the first day of the trial to testify about how the company
compiled the cell phone information requested by the government). But even
with an adequate record, this claim fails. We have previously held that admitting
cell phone records of the type at issue here does not raise a Sixth Amendment
problem. See United States v. Yeley-Davis, 632 F.3d 673, 678 (10th Cir.), cert.
denied, 131 S. Ct. 2172 (2011).
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Patterson points to two statements made by the trial judge in support of his
argument. The first is a statement from the third day of the trial, in which the
court noted that because of scheduling needs, the trial would start earlier and end
later on certain days. In passing, the district court also noted that the court and
the jury “have to” adopt this modified schedule due to other responsibilities of the
court. R., Vol. II, at 610. The district court concluded by stating, “I appreciate
any help that you can give us in accommodating our schedule here and your
patience.” Id. at 611.
The trial concluded two days later on a Friday at around 5 p.m. At this
time, the district court told the jury: “I am going to leave it to you whether you
wish to commence [y]our deliberations today or whether you would prefer to
come back on Monday and begin at 9 o’clock in the morning.” Id. at 1245. The
plain meaning of the court’s statements is that the jury had the choice to continue
deliberating into the evening on Friday or return on Monday morning to
commence deliberations. Further, all parties were on notice that a different judge
would handle the verdict in the event that deliberations extended to Monday. The
jury chose to begin deliberations on Friday and returned a verdict at 7:30 p.m.
Patterson’s interpretation of the court’s comments as coercive is
unpersuasive. He characterizes the district court’s remarks as the equivalent of an
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impermissible Allen charge: 8 a command that “imposes such pressure on the jury
such that the accuracy and integrity of their verdict becomes uncertain, thereby
violating a defendant’s rights to due process, Sixth Amendment rights to an
impartial jury trial and to a unanimous verdict.” United States v. Zabriskie, 415
F.3d 1139, 1148 (10th Cir. 2005).
Patterson’s contention has no basis in the record or in the law. The one
case he cites where we reversed a verdict because of an impermissible Allen
charge, United States v. McElhiney, 275 F.3d 928 (10th Cir. 2001), is easily
distinguishable. In that case, the district court judge explained, in the presence of
the jury, that he had received “a note from the jury here that is very distressing to
me because this has been one of the greatest major efforts made in time and
attention and money that I have noted in my 24 years as being a judge.” Id. at
934. He asked the jury, specifically the jury’s foreperson, to continue
deliberating by stating, in part: “I’d be very happy to have a verdict one way or
the other. . . . [T]he time and attention and the danger of this case has been, you
8
The term “Allen charge” derives from Allen v. United States, 164 U.S.
492 (1896), in which the Supreme Court upheld the legality of a supplemental
instruction to a jury unable to reach a consensus. “The instruction at issue in
Allen directed those jurors holding minority views to reconsider their views in
light of the contrary views held by the majority of jurors, but stated that the
verdict must be that of each individual juror.” Darks v. Mullin, 327 F.3d 1001,
1013 (10th Cir. 2003) (citing Allen, 164 U.S. at 501). We have frequently upheld
the use of supplemental instructions that conform to the purposes of the
instruction considered by the Supreme Court. See, e.g., Cornelius, 696 F.3d at
1321–22.
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know, a problem. . . . [T]he Court would certainly like to have you try to reach a
verdict in this case. And why don’t you continue your deliberations for a while
and see if there’s any possibility you can reach a verdict in this case.” Id. The
court concluded by stating: “[I]f you find that you’re absolutely hopelessly
deadlocked, why then I would have nothing else I can do except dismiss you with
the thanks of the Court.” Id.
Here, the district court gave a notice about scheduling, which was followed
two days later by a largely unrelated inquiry about when the jury wanted to
deliberate. In contrast to McElhiney, the district court did not pressure the jury
by emphasizing the expense of the trial, nor did the court suggest that the jury
must reach a verdict. Indeed, the jury had yet to even begin deliberating when the
district court made this comment.
In sum, the district court did not plainly err in its interaction with the jury
over scheduling matters.
E. Sentencing
Patterson next challenges the district court’s factual finding at sentencing
that he was responsible for distributing fifteen kilograms of cocaine. We review
the district court’s calculation of drug quantities at sentencing for clear error and
“will reverse only if the district court’s finding was without factual support in the
record or we are left with the definite and firm conviction that a mistake has been
made.” United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001).
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The district court determined that Patterson was responsible for distributing
fifteen kilos of cocaine based on the testimony of Agent Smith, who recounted the
quantities of cocaine that the various co-conspirators sought to distribute. In turn,
Agent Smith based his testimony on surveillance of the co-conspirators and his
analysis of their wire-tapped conversations. The testimony supported a finding
that up to sixty kilograms of cocaine was actually or intended to be distributed
during the conspiracy. Patterson offers nothing more than conclusory allegations
in contesting this factual finding.
He has not met his burden of showing clear error.
F. Sufficiency of the Indictment
Patterson next contends the indictment issued against him was defective in
that it did not put him on sufficient notice as to the charges against him.
Patterson did not raise this claim below, so we review it for plain error. See
United States v. Barrett, 496 F.3d 1079, 1091 (10th Cir. 2007).
There are a number of problems with Patterson’s attack on the indictment.
As an initial matter, Patterson erroneously cites to the original indictment filed in
this case, not the superseding indictment that served as the basis for the jury
verdict. Citing the original indictment, Patterson argues that the lack of precise
dates for the criminal activities that Patterson was alleged to have committed in
the indictment somehow raises double jeopardy problems. But the superseding
indictment in fact provides such dates to almost all of the drug crimes Patterson
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was alleged to have committed. Only the cocaine and marijuana conspiracy
charges did not contain a precise start date: the superseding indictment notes that
the date is unknown to the grand jury. We therefore interpret Patterson’s main
argument concerning the indictment to be related to the lack of a start date for
these conspiracies.
The two principal criteria by which we assess the sufficiency of an
indictment are “first, whether the indictment contains the elements of the offense
intended to be charged, and sufficiently apprises the defendant of what he must be
prepared to meet, and, secondly, in case any other proceedings are taken against
him for a similar offense[,] whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.” United States v.
Washington, 653 F.3d 1251, 1259 (10th Cir. 2011) (quoting Russell v. United
States, 369 U.S. 749, 763–64 (1962)), cert. denied, 132 S. Ct. 1039 (2012).
Based on this standard, we find no error, let alone plain error. We have
reviewed the content of the superseding indictment and are convinced that it
sufficiently notifies Patterson of the charges against which he had to defend. We
are also satisfied that the indictment and the record provide Patterson with
sufficient protection from the risk that he will be placed in jeopardy a second time
for the same conduct for which he was convicted, given the specificity with which
the government identified at trial the members and goals of the drug conspiracies,
the conspiracies’ geographic scopes, the drugs distributed in the conspiracies, and
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the conspiracies’ termination dates. See also United States v. Young, 862 F.2d
815, 819 (10th Cir. 1988) (“[K]eeping in mind that reference may be had to the
entire record in a subsequent proceeding, the indictment is sufficient to protect
the defendant against double jeopardy.” (citing Russell, 369 U.S. at 763)); United
States v. Pease, 240 F.3d 938, 942–43 (11th Cir. 2001) (per curium) (holding that
an indictment charging a cocaine distribution conspiracy with a start date
unknown to the grand jury was sufficiently specific to allow the defendant to
plead double jeopardy if charged again for the same conduct). This claim
therefore fails.
G. Evidence Used for the Wiretap Affidavit
Patterson’s last claim is that the district court erred in not granting his
motion to suppress evidence obtained from the government’s alleged “illegal use
of cell site location information.” Aplt. Br. at 20. The entire basis for this claim
is a paragraph-long portion of Patterson’s opening brief, in which he states that he
“adopts and specifically incorporates herein by reference” the motion to suppress
he filed in the district court. Id.
By failing to develop any argument on this claim at this court, Patterson
has waived the claim. Under Rule 28(a)(9)(A) of the Federal Rules of Appellate
Procedure, an appellant must present in his brief his “contentions and reasons for
them, with citations to the authorities and parts of the record on which the
appellant relies.” Further, parties appearing before this court cannot satisfy Rule
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28 by incorporating their claims by reference to either appendices or records from
the court below. See 10th Cir. R. 28.4 (“Incorporating by reference portions of
lower court . . . briefs or pleadings is disapproved and does not satisfy the
requirements of Fed. R. App. P. 28(a) and (b).”). To the contrary, “[a]llowing
litigants to adopt district court filings would provide an effective means of
circumventing the page limitations on briefs set forth in the appellate rules and
unnecessarily complicate the task of an appellate judge. Consequently, we adhere
to our rule that arguments not set forth fully in the opening brief are waived.”
Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998)
(citing Fed. R. App. P. 28(g); 10th Cir. R. 28.3); see also Wardell v. Duncan, 470
F.3d 954, 963–64 (10th Cir. 2006).
Patterson has not satisfied the requirement for developing an argument set
by Rule 28. We therefore do not consider this claim.
III. Conclusion
Based on the foregoing analysis, we AFFIRM the district court’s judgment
and sentence.
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