United States v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 04-6066
(W . D. Oklahoma)
C HRISTO PH ER LEE WA R D , (D.Ct. No. 03-CR-92-R)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before O’BRIEN, HOL LOW A Y, and TYM KOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Christopher W ard appeals from his conviction after a jury trial for
attempting to manufacture methamphetamine in violation of 21 U.S.C. §§
*
This order and judgment is not binding precedent except under the doctrines of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.
841(a)(1), 846. He also challenges his 327 month sentence. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm W ard’s
conviction but remand to the district court with directions to vacate its restitution
order. W ard’s sentence is affirmed in all other respects.
I. Background
W e provide a brief background of the facts; other relevant facts will be
provided as needed in our discussion of the issues.
Near midnight on January 17, 2003, a camper trailer belonging to the
mother of co-defendant Christy Tiger caught fire and burned to the ground. The
trailer was sixteen feet long and approximately eight feet wide and was located on
Indian land in N orman, Oklahoma. At the time of the fire, four people were
inside the trailer: W ard, Tiger, Jennifer Shultz (W ard’s girlfriend) and sixteen-
year-old Daniel Long. All four individuals were injured and transported to the
hospital; Shultz and Long died.
Investigators discovered a number of items at the scene associated with the
manufacture of methamphetamine, including acids/caustic acids, camping fuel,
lithium batteries, a two-burner camping stove, a substance believed to be rock
salt, a five-gallon propane tank leaking anhydrous ammonia, and a red rubber
hose with brass fittings on each end which were blue in color, indicating the
presence of anhydrous ammonia. On M ay 8, 2003, based on the belief that the
fire started as a result a methamphetamine lab, the government indicted W ard and
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Tiger with attempting to manufacture methamphetamine resulting in the death of
two individuals in violation of 21 U.S.C. §§ 841(a)(1), 846 and penalty provision
21 U.S.C. § 841(b)(1)(C). Tiger was also indicted for opening and maintaining a
place for the purpose of manufacturing methamphetamine in violation of 21
U.S.C. § 856(a)(1). Eventually, the government filed a superseding indictment
against W ard and a superseding information against Tiger. The superseding
indictment charged W ard with the second degree murder of Shultz, an Indian, in
violation of 18 U.S.C. §§ 1111(a) and 1152 (Count 1), and the attempted
manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846
(Count 2). The superseding information charged Tiger with accessory after the
fact in violation of 18 U.S.C. § 3.
On August 26, 2003, Tiger pled guilty to the superseding information. She
was eventually sentenced to eighteen months imprisonment. Ward proceeded to
trial. The jury found him not guilty on Count 1 (second degree murder) but guilty
on Count 2 (attempted manufacture of methamphetamine). On February 19, 2004,
W ard was sentenced to 327 months imprisonment and ordered to pay restitution in
the amount of $11,522.40 to Shultz’s parents. This appeal followed.
II. Discussion
W ard raises a number of issues surrounding his conviction and sentence.
Because of the number of issues raised, we divide our discussion--first addressing
the issues pertaining to his conviction and then addressing all sentencing issues.
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A. Conviction
1. M otion to Suppress
After the fire had been extinguished, various law enforcement agencies
were called to the scene, including the Absentee Shawnee Tribal Police
Department, the City of Norman Police Department, the Cleveland County
Sheriff, and the Federal Bureau of Investigation (FBI). The City of N orman Fire
Department also assisted in the investigation. After these agencies had visited the
scene, a hazardous waste clean-up company under contract with the Drug
Enforcement Administration (DEA) disposed of the acids/caustic acids, the
propane tank, the two-burner stove, the red hose, the alleged rock salt, the
camping fuel containers and the lithium batteries. Before these items were
destroyed, they were photographed and documented.
On M ay 30, 2003, W ard filed a motion to suppress based on the
government’s destruction of these items. An evidentiary hearing was held on
August 27, 2003. After the hearing, the district court denied the motion
concluding:
[T]he evidence does not establish any wrongdoing by the officials who
were present at the scene of the fire. The focus of the fire department
personnel was not the gathering of evidence to support the commission
of a crime; rather, their role was to investigate the origin of the fire.
Because they are not law enforcement officers having a duty to obtain
criminal evidence, the fact that they did not gather items and have them
tested in a laboratory does not reflect bad faith or wrongdoing on their
part. The evidence before the court established that the removal and
ultimate destruction of items found at the scene was consistent with
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DEA policy; the removal was performed by a com pany with which the
DEA contracted for such purposes. There is no evidence that there was
a departure from DEA policy. Even if the evidence could have
potentially been useful to [W ard], he must show that the government
acted in bad faith in destroying it. The evidence before the court does
not support that conclusion.
(R. Doc. 125 at 8-9 (citation omitted).) Based on this ruling, the government was
allowed at trial to present evidence of the destroyed items through photographs
and the on-scene officers’ testimony.
W ard contends the court erred in denying his motion to suppress, arguing
that all of the items represented to the jury as being associated with the
manufacturing of methamphetamine are common items, which serve legitimate
purposes not associated with illegal activity. He claims that had these items been
properly tested and/or preserved, he could have easily proved that none of them
had been used to manufacture methamphetamine and the fire was merely an
accident. Specifically, he states that had the government preserved the red rubber
hose, which the government claimed was used to transfer anhydrous ammonia
from the propane tank, he could have shown that the hose did not fit the tank. H e
also argues further testing could have been performed to determine the source of
the blue coloring on the hose’s brass fittings. As to the acids/caustic acids,
propane tank, camping fuel containers, and alleged rock salt, W ard contends
testing should have been performed to determine their contents and/or identity.
He claims such testing would have shown that none of these items w ere used in
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the production of methamphetamine. Additionally, W ard argues the battery
package should have been tested for fingerprints and had such testing been
conducted, it would have revealed W ard’s fingerprints were not present. Lastly,
W ard asserts that even though one of the fire investigators testified a laboratory
could have determined whether the two-burner camping stove was operational and
caused the fire, no such testing was performed.
W ard also contests the court’s finding that the officers at the scene did not
act in bad faith. Specifically, he claims (1) the evidence was destroyed contrary
to DEA policy, (2) the fire investigators at the scene were acting as law
enforcement personnel and had a duty to collect and preserve evidence, (3) all of
the officers at the scene were highly trained in the recognition, preservation and
collection of evidence and immediately suspected criminal activity and (4) testing
facilities were available to the officers.
W hen reviewing the denial of a motion to suppress, we accept the district
court’s factual findings unless clearly erroneous and consider the evidence in the
light most favorable to the government. United States v. Bennett, 329 F.3d 769,
773 (10th Cir. 2003). W e review for clear error the district court’s conclusion
that the government did not destroy potentially exculpatory evidence. United
States v. Bohl, 25 F.3d 904, 909 (10th Cir. 1994). “The inquiry into allegations of
prosecutorial bad faith presents a mixed question of fact and law in which the
quintessential factual question of intent predominates.” Id. (quotations omitted).
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In California v. Trombetta, the Supreme Court held that “the D ue Process
Clause of the Fourteenth Amendment does not require [] law enforcement
agencies [to] preserve breath samples in order to introduce the results of
breath-analysis tests at trial.” 467 U.S. 479, 491 (1984). In doing so, it noted the
officers were “acting in good faith and in accord with their normal practice.” Id.
at 488 (quotations omitted). It further concluded that whatever duty the Due
Process Clause imposes on the government to preserve evidence, “that duty must
be limited to evidence that might be expected to play a significant role in the
suspect’s defense.” Id. Thus, the government violates due process under
Trombetta, when it destroys evidence that (1) “possess[es] an exculpatory value
that was apparent before [it] was destroyed” and (2) is “of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.” Id. at 489; see also Bohl, 25 F.3d at 909-10. In Arizona v.
Youngblood, the Court extended Trombetta, holding that where the government
fails to preserve “evidentiary material of which no more can be said than it could
have been subjected to tests, the results of which might have exonerated the
defendant,” no due process violation occurs unless the defendant demonstrates the
government acted in bad faith. 488 U.S. 51, 57 (1988); see also Bohl, 25 F.3d at
910. Therefore, under Youngblood, to demonstrate a due process violation based
on the government’s failure to preserve evidence, the defendant must show (1) the
evidence was “potentially useful” and (2) the government acted in bad faith.
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Youngblood, 488 U.S. at 58.
W e start with Trombetta. In this case, the items destroyed had no
“apparent” exculpatory value at the time they were destroyed. Indeed, they all
appeared to be associated with the manufacture of methamphetamine. Thus, the
most W ard has shown is that if the items were available, further testing may have
produced exculpatory evidence. This is insufficient to warrant application of
Trombetta. See United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995)
(“The mere possibility that lost or destroyed evidence could have exculpated a
defendant is not sufficient to satisfy Trombetta’s requirement that the exculpatory
value be apparent to the police before destruction.”) (quotations omitted).
Turning to Youngblood, we conclude W ard has demonstrated that the destroyed
evidence was “potentially useful.” However, as the district court concluded, he
has failed to demonstrate bad faith by the officers at the scene.
“Our inquiry into bad faith must necessarily turn on the [police officer’s]
knowledge of the exculpatory value of the evidence at the time it was lost or
destroyed.” Bohl, 25 F.3d at 911. W e may consider whether: (1) the government
was on notice that the defendant believed the evidence to be potentially
exculpatory; (2) the defendant’s assertion to the government that the evidence
possesses potential exculpatory value was merely conclusory or supported by
objective, independent evidence, (3) the government still had possession of or the
ability to control the disposition of the evidence at the time it received notice
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from the defendant of the evidence’s potential exculpatory value, (4) the
destroyed evidence was central to the government’s case, (5) the government
offers an innocent explanation for its failure to preserve the evidence, and (6) the
destruction of the evidence was in accordance with standard procedure and the
evidence was adequately documented prior to its destruction. Id. at 911-13.
In this case, the items were destroyed immediately after the fire, before the
government was aware that W ard believed they were potentially exculpatory.
W hen it received notice, it no longer possessed the items. Thus, the first, second
and third factors weigh against a finding of bad faith, as the government did not
destroy the items know ing Ward believed them to be potentially exculpatory. As
to the fourth factor, the destroyed evidence was a crucial part of the government’s
case against W ard. However, it was not the only evidence of his guilt. The
government also presented the testimony of Tiger and M ichael Baird, who was in
prison with W ard. Both testified W ard admitted he was making
methamphetamine in the trailer. Therefore, the fourth factor is neutral.
Turning to the fifth and sixth factors, the testimony at the evidentiary
hearing revealed that all of the officers at the scene were trained in recognizing,
collecting and preserving evidence. They suspected a methamphetamine lab.
Nevertheless, according to the testimony, the officers acted properly under the
circumstances and/or in accordance w ith their respective agencies’ policies.
The fire department’s arson investigators, Kevin Leach and Fire M arshal
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Bobby Sirples, observed several items associated with the production of
methamphetamine. They did not seize these items or perform any tests. 1 Their
role w as to determine the cause of the fire, but when a methamphetamine lab is
suspected, the fire department defers to the police department for processing of
the scene. The tribal police department was initially in charge of the
investigation. It eventually turned the investigation over to the FBI and Norman
Police Department. The tribal police officers did not seize any evidence, with the
exception of a pair of coveralls which w ere located near W ard’s and Tiger’s
vehicles. FBI Agent M ark M aag did not observe or collect any of the destroyed
evidence because he arrived at the scene after the DEA’s clean-up company had
already performed its duties.
Lastly, DEA Agent Robert Ryan testified about the DEA’s policy
concerning the handling of evidence at a suspected methamphetamine lab. A
company authorized to dispose of hazardous waste removes and destroys any
evidence deemed hazardous, toxic or dangerous; any non-hazardous items are
retained as non-drug evidence. Significantly, Agent Ryan testified that in
situations involving methamphetamine labs, especially where a fire has occurred,
almost all items associated with the lab are destroyed because they are considered
hazardous and contaminated.
1
The fire investigators did seize a catalytic heater because Tiger had told a fireman
that the fire started when she lit the heater.
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Based on this testimony, the fifth and sixth factors are equivocal. The
agencies involved deferred to the DEA because a methamphetamine lab was
suspected. The items destroyed were associated with that lab. Pursuant to DEA
policy, they were deemed contaminated/hazardous and destroyed. Prior to their
destruction, the items were photographed and documented. In spite of the
destruction policy (and the deference of other investigatory agencies), bad faith
might be inferred. But that was not the finding of the district court, which is in
the best position to assess the evidence.
The district court’s finding that the government did not act in bad faith is
not clearly erroneous and the denial of the motion to suppress w as proper.
2. Vindictive Prosecution
Depending on whether the defendant has a prior felony drug conviction, 21
U.S.C. § 841(b)(1)(C) provides for a term of imprisonment of either twenty or
thirty years for the manufacturing of any amount of methamphetamine. An
enhanced penalty also applies “if death or serious bodily injury results from the
use of such substance.” 21 U.S.C. § 841(b)(1)(C). The initial indictment alleged
W ard “knowingly and intentionally attempted to manufacture methamphetamine
. . . and such attempt resulted in the death of two individuals, in that, [W ard]
attempted to manufacture methamphetamine in a trailer . . . resulting in an
explosion and fire that caused the death of a 16-year-old male [Long] and a 20-
year-old woman [Shultz]” in violation of 21 U.S.C. §§ 841(a)(1), 846 and penalty
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provision 21 U.S.C. § 841(b)(1)(C).
On June 5, 2003, W ard filed a motion to strike the language from the
indictment concerning the deaths of Shultz and Long. Because those deaths did
not result from the “use of” methamphetamine, W ard claimed the enhanced
penalty for death did not apply. The government objected. At a hearing on
August 27, 2003, the motion to strike was discussed. Prior to that discussion and
any ruling by the court, the government announced its intention to seek a
superseding indictment against W ard on September 2, 2003. Having found no
controlling authority concerning the meaning of “use of” for purposes of 21
U.S.C. § 841(b)(1)(C), the government decided to file a superseding indictment
against W ard for the murder of Shultz who, it had discovered the day before, was
an enrolled member of an Indian tribe, thereby establishing federal jurisdiction
over her death. On August 29, 2003, the court issued an order granting W ard’s
motion to strike. It concluded the enhanced penalty for death applies only when
the death results from the victim’s ingestion of a controlled substance which had
been distributed or manufactured by the defendant. Consequently, it determined
the enhanced penalty was not intended to apply where death results from the
defendant’s attempted manufacture of a controlled substance.
Consistent with its announced intent, on September 2, 2003, the
government filed a superseding indictment against W ard, charging him with
second degree murder and attempting to manufacture methamphetamine. Two
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days later, W ard filed a M otion for Bill of Particulars, requesting the government
to substantiate the murder charge. The motion was denied.
On appeal, W ard contends the government, without presenting any new
evidence to the grand jury, indicted him for the murder of Shultz to “punish” him
for successfully challenging the indictment and to incite the jury. 2 (Appellant’s
Opening Br. at 26.) He claims the filing of the superseding indictment constituted
prosecutorial vindictiveness and such vindictiveness is evident by the timing of
the indictment and the lack of new evidence supporting the murder charge.
Normally, we review a district court’s factual findings on prosecutorial
vindictiveness for clear error and its legal conclusions de novo. United States v.
Sarracino, 340 F.3d 1148, 1177 (10th Cir. 2003). However, because W ard did
not raise this issue in the district court, our review is for plain error. United
States v. Buonocore, 416 F.3d 1124, 1128-29 (10th Cir. 2005). “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-Huerta, 403 F.3d 727, 732
(10th Cir.) (en banc) (quotations omitted), cert. denied, 126 S.Ct. 495 (2005). W e
2
Ward also asserts the government indicted him for Shultz’s murder to allow it to
present evidence of his prior convictions, which he claims would not have been
admissible absent the murder charge. Not exactly. As we explain below, Ward’s prior
convictions were relevant to the attempted manufacture of methamphetamine charge and
would have been admissible in the absence of the murder charge.
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need not go beyond the first step because no error is evident.
To prove prosecutorial vindictiveness, the defendant must prove either
(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness
which will give rise to a presumption of vindictiveness. If the
defendant proves either element, the burden shifts to the government to
justify its prosecutorial decision based on legitimate, articulable,
objective reasons. If the defendant fails to prove either element, the
trial court need not address the government’s justification for its
prosecutorial decision. M erely by the appearance of vindictive motives,
vindictiveness may not be presumed. In determining whether the
government has engaged in prosecutorial vindictiveness, this court must
determine whether the prosecution engaged in conduct that would not
have occurred but for the prosecution’s desire to punish the defendant
for exercising a specific legal right.
Sarracino, 340 F.3d at 1177-78 (quotations and citations omitted).
W ard’s vindictive prosecution claim fails. Although the government may
not punish a defendant for exercising constitutional or statutory rights in the
course of criminal proceedings, United States v. Raymer, 941 F.2d 1031, 1040
(10th Cir. 1991), it may punish him for violating the law. United States v. Carter,
130 F.3d 1432, 1443 (10th Cir. 1997). The government had probable cause to
believe Ward was responsible for Shultz’s death. Absent evidence of vindictive
motive, it was within its discretion to decide whether or not to prosecute W ard for
Shultz’s death and what charge to bring against him. Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978). In this case, there is no indication the filing of the
superseding indictment was motivated by vindictiveness, i.e., to punish W ard for
successfully challenging the initial indictment. Rather, the record demonstrates it
was the result of the government learning it had jurisdiction over Shultz’s death
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due to her Indian heritage. Although it was filed immediately after the district
court’s ruling on the motion to strike, the government had previously announced
its intention to seek a superseding indictment to address Shultz’s death.
M oreover, the government had to aw ait the district court’s ruling on W ard’s
motion to strike before filing the superseding indictment because the ruling would
impact the attempted manufacture of methamphetamine charge, in particular,
whether the enhanced penalty applied. 3
3. Evidentiary Errors
W ard alleges the district court erred in allowing the government to
introduce evidence of his prior convictions, in allowing the jury to hear evidence
of Daniel Long’s death and in admitting hearsay testimony concerning the items
found at the scene. W e review evidentiary rulings for an abuse of discretion.
United States v. Rosario Fuentez, 231 F.3d 700, 708 (10th Cir. 2000). Given their
fact specific nature, we accord even greater deference to a district court’s hearsay
rulings. Id.a. Prior Convictions
Prior to trial, the government filed a notice of intent to use evidence of
3
Ward was acquitted of the murder charge. Even assuming arguendo that Ward
had demonstrated prosecutorial vindictiveness, the probable remedy, dismissing the
murder charge or the superseding indictment, would have been for naught as the original
indictment charged him with attempting to manufacture methamphetamine, the charge for
which he was convicted.
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other crimes, wrongs or acts, to wit: W ard’s two 1996 convictions for
manufacturing and/or attempting to manufacture methamphetamine, as proof of
motive, intent, plan and knowledge. W ard objected and filed a motion in limine
to exclude the evidence. Finding the prior convictions probative of W ard’s
knowledge and intent under Rule 404(b) of the Federal Rules of Evidence and that
their probative value outweighed their unfairly prejudicial effect, the district court
overruled W ard’s objection and denied his motion in limine. At trial, prior to
testimony concerning W ard’s prior convictions, W ard renewed his objection. In
response, the government argued W ard’s prior convictions passed muster under
Rule 404(b) because they were probative of Ward’s knowledge of the
manufacturing process. Aside from Rule 404(b), the government argued they
were admissible for purposes of the murder charge as direct evidence of his
knowledge of the danger inherent in manufacturing methamphetamine. The
district court overruled W ard’s objection, concluding evidence of his prior
convictions was relevant concerning his knowledge of the dangerousness of
manufacturing methamphetamine. Consistent with this ruling, it gave the
following oral limiting instruction to the jury when the evidence was admitted:
Ladies and gentlemen, I have allowed this . . . evidence about prior
criminal involvement, and I think there will also be evidence of prior
convictions of this defendant in regard to both the manufacture of
methamphetamine and the attempted manufacture of
methamphetamine. Ordinarily, prior convictions are not admissible
against a defendant because we don’t want a jury to [t]hink, “W ell,
just because they have committed a crime in the past, they must have
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committed this crime.” That’s just not an appropriate thought
process for a jury to go through.
However, I have allowed this testimony in as it might be relevant to
you on the question of his knowledge of the process by which
methamphetamines are manufactured, and also on the issue of their
dangerousness.
(R. Vol. II at 298.) It followed up with a similar written and oral instruction in its
final charge to the jury.
On appeal, W ard continues to argue error in admitting evidence of his prior
convictions. First, he claims the government used the convictions to convince the
jury that he committed the instant offense, a purpose which is forbidden by Rule
404(b). Second, he states the evidence was not relevant and unfairly prejudicial
because the prior convictions were not temporally related to this case and involved a
different method of manufacturing methamphetamine. Next, although he concedes
his prior convictions were arguably relevant to show his knowledge of the danger
involved, W ard maintains it was not necessary for the government to use them to
prove knowledge. That is because two seasoned fire investigators who testified at
trial could have rendered their opinion concerning the dangerousness of cooking
chemicals in a confined area. W e begin our discussion with the last argument.
Second degree murder requires malice aforethought. 18 U.S.C. § 1111(a).
W ard’s knowledge of the inherent danger of methamphetamine production is no
small part of that burden. Proof that W ard had first-hand experience with the
manufacturing process permits a jury to infer such knowledge. Expert opinion, while
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useful, cannot provide an equally probative substitute for that direct evidence.
Admission of W ard’s prior convictions involving methamphetamine production was
proper and not dependent on Rule 404(b), but they would also be admissible under
that rule.
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .
“The list of proper purposes is illustrative, not exhaustive, and Rule 404(b) is
considered to be an inclusive rule, admitting all evidence of other crimes or acts
except that which tends to prove only criminal disposition.” United States v. Tan,
254 F.3d 1204, 1208 (10th Cir. 2001) (quotations omitted). “To determine if the
admission of Rule 404(b) evidence was proper, we apply a four-part test which
requires that: (1) the evidence was offered for a proper purpose under Fed. R. Evid.
404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the probative
value of the evidence was not substantially outweighed by its potential for unfair
prejudice under Fed. R. Evid. 403; and (4) the district court, upon request, instructed
the jury to consider the evidence only for the purpose for which it was admitted.”
United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). Evidence is relevant
under Rule 401 if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
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would be without the evidence.”
The four requirements for admissibility of Rule 404(b) evidence are met in this
case. First, W ard’s prior convictions were not admitted to prove W ard’s criminal
disposition. Rather, they were offered to show W ard’s knowledge of the
manufacturing process and its dangerousness, both proper purposes under Rule
404(b). Second, the evidence was relevant under Rule 401. “[P]rior narcotics
involvement is relevant when [it] is close in time, highly probative, and similar to the
activity with which the defendant is charged.” United States v. Becker, 230 F.3d
1224, 1232 (10th Cir. 2000) (quotations omitted). W ard’s prior convictions involved
the manufacturing or attempted manufacturing of methamphetamine, one of the
charges for which he was tried. Although his prior convictions involved a different
manufacturing process, because they involved the same conduct (manufacturing as
opposed to possession or distribution) and the same drug, they were sufficiently
similar to the current offense.
W ard’s prior convictions occurred approximately seven years earlier.
Remoteness may erode the probative value of extrinsic evidence. United States v.
Olivo, 69 F.3d 1057, 1064 (10th Cir. 1995), supp. on reh’g by 80 F.3d 1466 (10th
Cir. 1996); see also Becker, 230 F.3d at 1232. But not necessarily; “[t]here is no
absolute rule regarding the number of years that can separate offenses. Rather, the
court applies a reasonableness standard and examines the facts and circumstances of
each case.” United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir. 1988). In Cuch,
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we affirmed the admission of evidence concerning an offense occurring over seven
years before the charged offense and recognized that other courts have allowed gaps
of five to thirteen years. Id. W e also noted the seven year gap was somewhat
misleading because during part of the time period, the defendant had been serving a
thirty month sentence on the prior offense. Id. The same is true here. W ard was in
prison on his 1996 convictions until November 27, 2001, and in fact, was on parole
from those convictions at the time he committed the instant offense. Only a year
passed between his release from prison and the commission of this offense. In any
event, the passage of time would not diminish his knowledge of the dangerousness of
manufacturing methamphetamine.
As to the third admissibility requirement, the district court expressly weighed
the probative value of W ard’s prior convictions against the potential for unfair
prejudice under Rule 403 and concluded the former outweighed the latter. 4 The
disparity must be substantial and district courts are afforded broad discretion in Rule
403 balancing decisions. United States v. Cherry, 433 F.3d 698, 702 (10th Cir.
2005), cert. denied, 126 S.Ct. 1930 (2006). W e see no reason to disturb the district
4
Rule 403 states:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
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court’s Rule 403 decision.
Lastly, the district court twice gave a proper limiting instruction. There was
no error in admitting W ard’s prior convictions.
b. Daniel Long’s D eath
On the day of trial, the government informed the court it wished to mention in
its opening statement that Daniel Long was the fourth person at the scene and that he
had died as a result of the fire. It wished to explain to the jury why it was
prosecuting Shultz’s death, but not Long’s, i.e., because federal jurisdiction only
extended to Shultz’s death. W ard objected based on the fact he was not charged with
Long’s death. The district court overruled the objection, stating a brief explanation
of Long’s death was appropriate for clarification purposes. It also stated the
government would be allowed to explain to the jury why it would be hearing more
about Shultz than Long.
Based on the court’s ruling, in its opening statement, the government stated
two people died as a result of the fire, Shultz and Long. It also explained it only had
jurisdiction over Shultz’s death due to her being an enrolled member of an Indian
tribe. Later, during the testimony of Dr. Phillip Andre Floyd, Shultz’s treating
physician, the government asked him if he w as familiar with Long’s case. Defense
counsel objected. Outside of the hearing of the jury, the government informed the
court it only intended to ask Dr. Floyd whether Long had died and its purpose in
doing so was to tie up what happened to the fourth person on the scene. The court
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overruled the objection and Dr. Floyd said Long had died. In its closing rebuttal
argument, the government again mentioned Long’s death, stating
Christopher W ard was making methamphetamine. [He] knew the
dangers created by using that method in that trailer. . . . He brought a
substance like this that said it was flammable, and he put it in that
trailer. It was reckless, it was call[o]us, it was w anton. A 16-year-old
boy and a 20-year-old girl died.
(V ol. IV at 616.)
W ard argues the district court abused its discretion in allowing the government
to refer to and introduce evidence of Long’s death because he was not charged with
his death and it was not relevant to the charges against him. He suggests the
government’s actual purpose in referring to Long’s death was to inflame the passion
of the jury by attributing two deaths to him. W ard also contends that by questioning
Dr. Floyd concerning Long’s fate and making statements in closing argument to the
effect that W ard killed Long, the government abused the court’s ruling allowing it to
refer to Long’s death in its opening statement.
W e are comfortable w ith the trial court’s decision to permit the government to
mention two deaths and explain why only one was charged. W e are less comfortable
with the government’s conduct. On a cold record, it seems it made more of Long’s
death than necessary for its announced purpose of placing events in context for the
jury. But a trial judge is in a much better position to determine if the government
exploited a legitimate purpose with ulterior motive and to assess the impact on the
jury. The judge also instructed the jury that argument of counsel is not evidence.
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Apparently, the jury was not inflamed— it acquitted on the murder charge. There
was no abuse of discretion. In addition, the substantial evidence supporting W ard’s
conviction for attempting to manufacture methamphetamine renders harmless any
possible overreaching as it may relate to that charge. See supra, Section A(5).
c. Hearsay
At trial, the government offered the testimony of Agent Robert Ryan of the
Drug Enforcement Agency (DEA). Agent Ryan has been involved in the
investigation or analysis of approximately 1,000 methamphetamine labs during his
law enforcement career. He described the “Nazi method” of methamphetamine
production, which was the alleged process involved in this case. 5 Upon his review of
the records in this case, Agent Ryan opined that a methamphetamine lab was present
in the trailer and it was the source of the fire. In making this determination, Agent
Ryan found relevant the presence of the propane tank containing anhydrous
ammonia, the red hose with blue coloring on both ends, the Coleman camping fuel,
5
The “Nazi method” of manufacturing methamphetamine obtained its name
because the process originated in Germany and was utilized in World War II by their
troops. It involves four steps. The first step is the extraction of pseudoephedrine from its
pill form to a liquid using an organic solvent such as alcohol, methanol or camping fuel.
The second step involves adding lithium or sodium metal and anhydrous ammonia to the
liquid pseudoephedrine, thereby creating liquid methamphetamine. The next step is to
clean the methamphetamine with a strong base such as lye and an organic solvent such as
toluene, paint thinner, or camping fuel. The last step is called the gassing phase, whereby
rock salt is mixed with a strong acid such as sulphuric, hydriodic or muriatic acid,
creating hydrochloride gas. The gas is then mixed with the liquid methamphetamine,
transforming it into a powder, which is again cleaned with an organic solvent.
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the two-burner stove, the acids/caustic acids removed by the DEA’s hazardous w aste
company, the lithium batteries and the rock salt. W hen he mentioned the
acids/caustic acids, defense counsel objected, arguing there had been no testimony
concerning the presence of acids. The government alleged Agent Ryan was merely
referring to the records he reviewed to form his opinion. The district court directed
the government to lay a better foundation. The government then asked Agent Ryan
to describe the clean-up process. Agent Ryan explained that the DEA is required to
utilize a licensed hazardous waste disposal company to clean up methamphetamine
lab sites. As part of the clean-up process, the disposal company is required by
federal regulation to prepare a document indicating the items taken from the scene;
one of the items listed on that document in this case was acids/caustic acids.
According to Agent Ryan, one of the fire investigators at the scene informed him that
he saw an acid-type bottle containing a yellow liquid. Agent Ryan testified this
liquid was most likely a sulphuric or muriatic acid which is typically found at
methamphetamine lab sites.
On appeal, Ward argues the district court erred in allowing Agent Ryan to
testify concerning the clean-up company’s removal of acids/caustic acids from the
scene and the information he gleaned from the on-scene fire investigator because it
was hearsay. He also claims the error was not harmless as it was a critical piece of
the government’s case. Specifically, he states the acids/caustic acids and the bottle
containing the yellow liquid were two of the seven factors considered by Agent Ryan
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to form his opinion that methamphetamine w as being manufactured in the trailer.
Because W ard did not raise a hearsay objection during Agent Ryan’s
testimony, we review for plain error, which, as w e have previously explained, 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. Gonzalez-Huerta, 403 F.3d at 732; United States v. M artinez, 76 F.3d
1145, 1150 (10th Cir. 1996).
“‘H earsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” F ED . R. E VID . 801(c). It is generally not admissible. F ED . R. E VID . 802.
But Rule 703 of the Federal Rules of Evidence states:
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.
Despite W ard’s contention to the contrary, Agent Ryan was testifying as an
expert on methamphetamine labs and the production of methamphetamine. The
clean-up company’s report he relied upon in rendering his opinion that
methamphetamine was being manufactured in the trailer was admissible evidence
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under the business records exception to the hearsay rule. See F ED . R. E VID . 803(6).
Therefore, under Rule 703, Agent Ryan could disclose it to the jury.
Of a different ilk is A gent Ryan’s testimony concerning his conversation with
the on-scene fire investigator. It constituted hearsay to which no exception applied.
Therefore, it was inadmissible under Rule 703 unless the court concluded its
probative value substantially outweighed its prejudicial effect. No such
determination was made in this case, probably because W ard did not make a hearsay
objection. The trial court was therefore deprived of an opportunity to evaluate the
issue and, if necessary, take corrective action.
Nevertheless, assuming Agent Ryan’s testimony concerning the acid-type
bottle of yellow liquid was erroneously admitted, W ard has not shown that the error
affected his substantial rights, the third prong of the plain error standard. “Satisfying
the third prong . . . usually means that the error must have affected the outcome of
the district court proceedings.” Gonzalez-Huerta, 403 F.3d at 732. Here, there was
other physical evidence at the scene associated with the manufacturing of
methamphetamine. Additionally, both Tiger and Baird testified W ard had admitted
to making methamphetamine in the trailer. Agent Ryan testified the burn pattern of
the fire was “very consistent” w ith methamphetamine lab fires he had investigated in
the past. (R. Vol. III at 388.) Based on this other evidence, we conclude W ard
cannot demonstrate the outcome of the trial was affected by Agent Ryan’s testimony
concerning the presence of the acid-type bottle of yellow liquid at the scene.
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4. Prosecutorial M isconduct - Evidence of Other Crimes
During re-direct examination, Tiger admitted methamphetamine was found in
her purse at the scene of the fire. W hen the government asked her where she got the
methamphetamine, she replied “Christopher W ard.” (R. Vol. III at 455.) Testifying
on behalf of the government, Baird stated that while he was visiting W ard in the
hospital after the fire, W ard told him “it wasn’t worth it.” (Id. at 468.) Baird
understood W ard to be talking about “cooking dope.” (Id. at 469.) Baird also stated
that after W ard was released from the hospital, W ard told Baird that he had been
making dope the night before and the night of the fire. During cross-examination, in
an attempt to establish that Baird had a motive to lie, defense counsel elicited that
Baird believed Ward had started Baird’s pickup truck on fire. On re-direct, the
government asked Baird whether W ard had been charged with arson pertaining to the
burning of Baird’s pickup truck. Baird responded affirmatively. At the time of trial,
W ard had been charged with starting Baird’s truck on fire. By the time of
sentencing, however, the charge had been dismissed because another individual had
confessed to the crime.
On appeal, W ard contends the government committed prosecutorial
misconduct in questioning Tiger and Baird. He argues the government’s questions
constituted evidence of other crimes committed by W ard in violation of Rule 404(b)
of the Federal Rules of Evidence. Although conceding no objection was made to
these questions, W ard argues such an objection would have been futile and in any
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event, the government’s violation constituted plain error.
Normally, “[a]llegations of prosecutorial misconduct are a mixed question of
law and fact, which we review de novo.” United States v. Pulido-Jacobo, 377 F.3d
1124, 1134 (10th Cir.) (quotations omitted), cert. denied, 543 U.S. 1030 (2004).
However, w here, as here, no objection is made at trial, our review is for plain error.
United States v. M agallanez, 408 F.3d 672, 679-80 (10th Cir.), cert. denied, 126
S.Ct. 468 (2005). Determining whether the government’s actions constituted
prosecutorial misconduct involves a two step process. First, we examine whether the
prosecutor’s conduct was in fact improper. Pudillo-Jacobo, 377 F.3d at 1134. If so,
then we determine whether the error w as harmless beyond a reasonable doubt. Id.“To determine whether prosecutorial misconduct is harmless, we must look to the
curative acts of the district court, the extent of the misconduct, and the role of the
misconduct within the case as a whole.” Id. (quotations omitted).
The challenged questioning of Tiger was proper. Prior to Tiger’s testimony,
there had been testimony that the only methamphetamine found at the scene of the
fire was in Tiger’s purse. By questioning Tiger on re-direct about the source of the
methamphetamine found in her purse, the government was merely attempting to
show that W ard was the source of the methamphetamine found at the scene, thereby
implying he was the methamphetamine cook. As to the government’s questioning of
Baird concerning whether W ard had been charged with the burning of Baird’s pickup
truck, it was proper rebuttal to the defense’s suggestion that Baird had a motive to lie
-28-
because he believed Ward started his truck on fire. At the time of trial, W ard had
been charged with arson of Baird’s truck. Therefore, no plain error occurred.
Assuming error, it was harmless based on the other evidence presented supporting
the jury’s verdict, which we discuss next.
5. Sufficiency of the Evidence
W ard contends the government presented insufficient evidence at trial to
support his conviction. He claims the government at most showed that he had pled
guilty to manufacturing methamphetamine in the past, not that he attempted to
manufacture methamphetamine on the date charged. He also argues the evidence
showed that if anyone was manufacturing methamphetamine, it was Tiger. He states
both the trailer and the land upon which it was emplaced belonged to Tiger’s mother,
who left it in Tiger’s care while she was away. Additionally, W ard asserts neither
ephedrine or pseudoephedrine, critical ingredients in the manufacturing of
methamphetamine, were found at the scene. Nor was there any evidence that he
purchased these substances. Indeed, he states the only methamphetamine found at
the scene was in Tiger’s purse. Lastly, W ard maintains there was no evidence that
binders, lye, Drain-o, sulfuric acid, muriatic acid, beakers, vials, glassware, or pump
spray were found at the scene, although all are necessary in the manufacturing
process.
“W e review de novo whether the prosecution presented sufficient evidence to
support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002).
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“In conducting this review . . . we ask whether, taking the evidence--both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom--in the
light most favorable to the government, a reasonable jury could find the defendant
guilty beyond a reasonable doubt.” Id. (quotations omitted). W e will not evaluate
witness credibility or re-w eigh the evidence. Id. W e will only reverse a conviction
if no rational trier of fact could have reached the disputed verdict. United States v.
Wilson, 182 F.3d 737, 742 (10th Cir. 1999). “The evidence necessary to support a
verdict need not conclusively exclude every other reasonable hypothesis and need
not negate all possibilities except guilt. Instead, the evidence only has to reasonably
support the jury’s finding of guilt beyond a reasonable doubt.” Id. (citation and
quotations omitted). The jury has the “discretion to resolve all conflicting testimony,
weigh the evidence, and draw inferences from the basic facts to the ultimate facts.”
United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998).
“However, we may not uphold a conviction obtained by piling inference upon
inference.” Id. “An inference is reasonable only if the conclusion flows from
logical and probabilistic reasoning.” Id. “The evidence supporting the conviction
must be substantial and do more than raise a suspicion of guilt.” Id.To prove a defendant attempted to manufacture methamphetamine, the
governm ent must show :
(1) intent to manufacture methamphetamine, and (2) commission of an
act which constitutes a substantial step towards commission of the
substantive offense.” Intent to manufacture methamphetamine may be
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inferred from the surrounding circumstances. A substantial step is an
act that is strongly corroborative of the firmness of the defendant’s
criminal intent.
United States v. Haynes, 372 F.3d 1164, 1167-68 (10th Cir.) (citations and
quotations omitted), cert. denied, 543 U.S. 974 (2004). The jury was so instructed.
The evidence, considered as a whole and in the light most favorable to the
government, was sufficient to convict W ard of attempting to manufacture
methamphetamine. Tiger testified as follows:
W ard contacted her the day before the fire and asked her if he and his
girlfriend (Shultz) could use the trailer that weekend. Tiger agreed. She
and W ard purchased camping fuel in the very early morning hours of
January 17, 2003. The next day, when Tiger let W ard and Shultz into
the trailer, W ard told her “if everything goes okay, you know, I’ll give
you a thousand dollars tomorrow .” (R. Vol. III at 412-13.) Later, W ard
called her, asking her to bring him some salt. Tiger agreed and
proceeded to the trailer accompanied by Long. W hile she was talking
with W ard in the trailer, she noticed a curtain was on fire. Attempting
to put out the fire, Tiger grabbed a coffeepot and threw its contents at
the fire. Rather than dousing the fire, however, an explosion occurred
and the whole trailer was immediately engulfed in flames. Once
everyone was out of the trailer, they walked to the neighbors to get help.
W hile walking, Tiger asked W ard what was in the coffeepot which
would cause such an explosion. W ard told her he was cooking
methamphetamine but to tell the police that the fire started when she
attempted to light a heater inside the trailer. H e threatened to kill her if
she said otherwise.
Baird testified: (1) while visiting W ard in the hospital, W ard told him “it
wasn’t worth it, that what had happened to [Shultz.]” (id. at 468); (2) Baird
understood W ard to be talking about “cooking dope;” (id. at 469) and (3) after
W ard’s release from the hospital, he told Baird he had been making dope the night
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before and the night of the fire.
In addition to Tiger’s and Baird’s testimony, the government demonstrated
that several items associated with the manufacturing of methamphetamine w ere
found at the scene of the fire. These items included a propane tank containing
anhydrous ammonia, an essential chemical in the “Nazi method” of manufacturing
methamphetamine. Even W ard’s own expert testified there would be no reason to
put anhydrous ammonia in a propane tank other than to make methamphetamine.
There was also a red hose w ith blue-colored fittings on each end. DEA Agent Robert
Ryan testified the blue coloring indicated that anhydrous ammonia had been passed
through it and W ard’s expert agreed. Agent Ryan also stated the fitting at one end of
the hose appeared to be consistent with that which would normally attach to a
propane tank. On the other end of the tank was a wand-type fitting which many
methamphetamine cooks use to stir the methamphetamine as they pass the ammonia
gas through the mixture. Patricia Anne Bayless W illis, Tiger’s mother and the owner
of the trailer, testified the propane tank and hose did not belong to her. Additionally,
lithium batteries, camping fuel, rock salt and acids/caustic acids were removed from
the scene. Agent Ryan testified these items were also associated with the “Nazi
method.” Given the presence of these items, W ard’s attempt to focus on items not
found at the scene is unavailing, especially given the fact that some of the items
could have been consumed in the fire.
To the extent W ard argues the evidence showed that Tiger was the one
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manufacturing methamphetamine, this is contrary to her testimony and the other
evidence presented at trial. Additionally, the issue need not be so narrowly tailored.
Tiger’s discounting her involvement does not exculpate W ard. Based on the
evidence at trial, a jury could have concluded that both Tiger and W ard were
attempting to manufacture methamphetamine in the trailer.
W ard’s insufficiency of the evidence argument fails.
6. Cumulative Error
W ard argues that to the extent we find harmless errors, the cumulative effect
of those errors rendered his trial fundamentally unfair. The cumulative error
analysis’ purpose is to address the possibility that “[t]he cumulative effect of two or
more individually harmless errors has the potential to prejudice a defendant to the
same extent as a single reversible error.” Rosario Fuentez, 231 F.3d at 709.
A cumulative-error analysis merely aggregates all the errors that
individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer be
determined to be harmless. Unless an aggregate harmlessness
determination can be made, collective error will mandate reversal, just
as surely as will individual error that cannot be considered harmless.
The harmlessness of cumulative error is determined by conducting the
same inquiry as for individual error--courts look to see whether the
defendant's substantial rights were affected.
Rivera, 900 F.2d at 1470. However, “[c]umulative-error analysis should evaluate
only the effect of matters determined to be error, not the cumulative effect of
non-errors.” Id. at 1471.
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The only harmless error pertained to Agent Ryan’s hearsay testimony
concerning the acid-type bottle containing yellow liquid found at the scene. There is
no cumulate effect.
B. Sentencing
In W ard’s presentence report (PSR ), the probation officer decided the
applicable guideline for the offense of conviction was USSG §2D1.1, which sets a
base offense level determined by the quantity of drugs involved. 6 How ever, because
the drugs involved in this case were consumed in the fire, no quantity was available.
Consequently, the probation officer assigned W ard a base offense level of zero. She
then increased the base offense level to 30 pursuant to USSG §2D1.1(b)(5)(C), which
calls for a six level enhancement or a minimum offense level of 30 if the offense
involved the manufacturing of methamphetamine and created a substantial risk of
harm to the life of a minor. She treated W ard as a career offender under USSG
§4B1.1 and therefore assigned him an offense level of 34. See USSG §4B1.1(b)
(assigning an offense level of 34 if the offense of conviction’s statutory maximum is
twenty-five years or more). W ith a total offense level of 34 and a criminal history
category of VI, 7 the officer determined the applicable guideline range was 262 to 327
6
Ward was sentenced pursuant to the 2003 edition of the United States Sentencing
Guidelines Manual. All citations to the guidelines in this opinion refer to the 2003
guidelines unless otherwise indicated.
7
Although Ward’s criminal history points established a criminal history category
of V, the career offender guideline required a criminal history category of VI. See USSG
§4B1.1(b).
-34-
months imprisonment. She also recommended W ard be directed to pay restitution in
the amount of $22,522.40 to Shultz’s parents based on their lost wages ($2,122.40)
and the payments they made for Shultz’s vehicle ($11,000) and funeral expenses
($9,400).
W ard filed numerous objections to the presentence report. In particular, he
claimed restitution to Shultz’s parents was improper because he did not cause the fire
or Shultz’s death and restitution for her vehicle and lost wages was inappropriate. 8
W ard also argued the enhancement under U SSG §2D1.1(b)(5)(C) did not apply
because he did not cause the fire or Long’s death.
The government filed a motion for upward departure arguing W ard caused the
death of two people, which it claimed was an aggravated circumstance not
adequately taken into consideration by the Sentencing Commission. It proposed an
upward departure to offense level 37, which is the offense level that would have
applied under the career offender guideline had W ard been convicted of murder.
At sentencing, the district court concluded restitution was appropriate to
Shultz’s parents. It concluded there was no doubt W ard “was manufacturing
methamphetamine, and as a result of that manufacture, two people were killed, and I
8
The PSR was ambiguous as to whose lost wages Shultz’s parents were seeking--
theirs or their daughter’s. At sentencing, Shultz’s mother clarified that the lost wages
were for the wages she and her husband lost due to their being off work to be at the
hospital with their daughter and to attend Ward’s trial. Because they were filed prior to
sentencing, Ward’s objections to the PSR concerning its restitution recommendation were
based on his belief that Shultz’s parents were seeking their daughter’s lost wages.
-35-
think certainly M r. and M rs. Shultz are appropriate persons to be compensated as
victims under the statute.” (R., Sentencing Tr. at 6.) However, it determined
restitution was only appropriate for their lost wages and Shultz’s funeral expenses,
not her vehicle. Therefore, the court ordered restitution to be made to Shultz’s
parents in the sum of $11,522.40. The court also overruled W ard’s objection to the
USSG §2D1.1(b)(5) enhancement. 9 It stated it was satisfied that W ard was
manufacturing methamphetamine in the trailer, the methamphetamine lab exploded
causing the deaths of Shultz and Long and W ard knew of the danger of
manufacturing methamphetamine. Lastly, the district court denied the government’s
motion for upward departure, concluding the maximum sentence under the guideline
range satisfactorily served the purposes of punishment in the case. The court
sentenced W ard to 327 months imprisonment.
W ard argues the district court erred in applying the USSG §2D1.1(b)(5)
enhancem ent and sentencing him as a career offender under USSG §4B1.1. He also
asserts the court erred in assessing restitution.
1. Career Offender
Section 4B1.1(a) of the sentencing guidelines provides:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant comm itted the instant
offense of conviction; (2) the instant offense of conviction is a felony
9
This enhancement did not affect Ward’s sentence due to the application of the
career offender guideline. Ward conceded so at sentencing.
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that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
Relying on Blakely v. Washington, 542 U.S. 296 (2004), W ard contends the district
court erred in sentencing him as a career offender based on its factual findings
regarding the first and third elements of USSG §4B1.1(a). He states that under
Blakely, these facts were required to be submitted to the jury and proven beyond a
reasonable doubt. Although W ard acknowledges that Blakely retained the exception
for prior convictions, 10 he claims this exception was called into doubt in Justice
Thomas’ concurring opinion in Apprendi. 11
W ard’s objections to the PSR did not include an objection to the career
offender enhancement. In particular, none of his objections included an objection
based on the Sixth Amendment. Thus, we review for plain error. Gonzalez-Huerta,
403 F.3d at 730. As stated previously, to establish plain error, W ard must
demonstrate 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.” Id. at 732 (quotations omitted).
Subsequent to briefing in this case, the Supreme Court decided United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court
extended its holding in Blakely to the federal sentencing guidelines, holding that the
10
See Almendarez-Torres v. United States, 523 U.S. 224 (1998).
11
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict [to] be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. To remedy
the constitutional infirmity of the guidelines, Booker invalidated their mandatory
nature, requiring the district court to consult them in an advisory fashion. Id. at 756-
57 (severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)).
In Gonzalez-Huerta, we determined there were two types of error a district
court could comm it prior to Booker. 403 F.3d at 731. The first, referred to as
“constitutional Booker error,” occurs when the district court relies upon judge-found
facts, other than a prior conviction, to enhance a defendant’s sentence mandatorily, a
practice proscribed by the Sixth Amendment. Id. The second type of error, referred
to as “non-constitutional Booker error,” results when the district court applies the
guidelines in a mandatory rather than advisory fashion, even though the resulting
sentence was calculated based solely upon facts admitted by the defendant or found
by a jury. Id. at 731-32.
The district court’s findings regarding the fact of W ard’s prior convictions did
not implicate the Sixth Amendment. United States v. M oore, 401 F.3d 1220, 1223-
24 (10th Cir. 2005). 12 M oreover, whether W ard’s prior convictions constituted
12
In spite of Shepard v. United States, 544 U.S. 13 (2005), Almendarez-Torres is
still the law. Moore, 401 F.3d at 1224.
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felony crimes of violence or controlled substance offenses under USSG §4B1.1 are
questions of law unaffected by Booker. United States v. Small, 423 F.3d 1164, 1188
(10th Cir. 2005), cert. denied, 126 S.Ct. 1180 and 126 S.Ct. 1377 (2006). W ith
regards to the district court’s finding that W ard was at least eighteen-years-old at the
time of the current offense, no Sixth Amendment violation occurred. At sentencing,
W ard conceded the career criminal guideline controlled. Based on this concession,
he implicitly admitted he was at least eighteen-years-old at the time of the instant
offense. He also did not object to the PSR’s factual statement that his birth date was
M ay 4, 1977, rendering him twenty-five-years old at the time of the instant offense,
and it appears he informed the probation officer of this date for purposes of
preparing the PSR. 13
Although no Sixth Amendment violation occurred at sentencing regarding the
career offender enhancement, the district court committed “non-constitutional Booker
error” based on its mandatory application of the guidelines. Consequently, the first
and second prongs of plain error review are satisfied— there was error and the error
was plain. Gonzalez-Huerta, 403 F.3d at 732. Under the third prong, W ard must
show that the error affects his substantial rights, that is, “the error must have been
13
In the “Personal and Family Data” section of the PSR, it states “Christopher Lee
Ward was born on May 4, 1977, in Ft. Smith, Arkansas . . . .” (R. Supp. Vol. I, PSR at
10.) Other statements within this section were clearly provided to the probation officer
by Ward. Although it is not certain that Ward provided the probation officer with his date
of birth, such assumption is reasonable based on the context in which his birth date
appears in the PSR.
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prejudicial: It must have affected the outcome of the district court proceedings.”
United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005) (quotations omitted).
However, we need not decide whether W ard has satisfied the third prong of the plain
error standard because, even if he has, we conclude he has not met the fourth prong.
See Gonzalez-H uerta, 403 F.3d at 736 (concluding it was not necessary to determine
whether the third prong of the plain error test was met because the fourth prong must
also be satisfied to obtain relief and the fourth prong was not met).
“Under 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.” Id. If “non-constitutional Booker
error” is involved, as here, the standard for satisfying the fourth prong is
“demanding”— the defendant must show that the error is “particularly egregious” and
that our failure to notice it w ould result in a “miscarriage of justice.” Dazey, 403
F.3d at 1178 (quotations omitted). W e have identified a number of non-exclusive
factors w hich may show that a defendant has satisfied the fourth prong:
(1) a sentence increased substantially based on Booker error; (2) a
showing that the district court would likely impose a significantly
lighter sentence on remand; (3) a substantial lack of evidence to support
the entire sentence the Guidelines required the court to impose; (4) a
showing that objective consideration of the 18 U.S.C. § 3553(a) factors
warrants a departure from the suggested guidelines sentence, and (5)
other evidence peculiar to the defendant which demonstrates a complete
breakdow n in the sentencing process.
United States v. Brooks, 438 F.3d 1231, 1244 (10th Cir. 2006). None of these factors
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are present here.
In particular, there is no evidence the district court would impose a
significantly lighter sentence on remand. Indeed, the district court sentenced W ard
to the top of the guideline range. In doing so, the court stated: “I am giving [W ard]
the m axim um under the guidelines, as I do believe he caused the death of two
people.” (R. Sentencing Tr. at 12.) Although the district court rejected the
government’s motion for an upward departure, it stated it “believe[d] the maximum
sentence under the guidelines satisfactorily serves the purposes of punishment in this
case and I do believe the defendant should be severely punished for a short lifetime
but a lifetime of crime.” (Id.) This statement indicates the court was satisfied with
the sentence imposed and it would impose neither a lower nor higher sentence on
remand. The court’s statements also demonstrate that in imposing W ard’s sentence,
it considered the majority of the factors listed in 18 U.S.C. § 3553(a), including “the
nature and circumstances of the offense,” “the history and characteristics of the
defendant” and the need for the sentence imposed to “reflect the seriousness of the
offense,” “promote respect for the law ,” “provide just punishment” and “afford
adequate deterrence.” See Booker, 125 S.Ct. at 764 (“W ithout the ‘mandatory’
provision, the [Sentencing Reform Act of 1984] nonetheless requires judges to take
account of the Guidelines together with other sentencing goals” contained in 18
U.S.C. § 3553(a).). Consequently, we decline to exercise our discretion to correct
the error at sentencing.
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2. USSG §2D1.1(b)(5)(C)
Section 2D 1.1(b)(5)(C) of the sentencing guidelines provides: “If the offense
(I) involved the manufacture of . . . methamphetamine; and (ii) created a substantial
risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the
resulting offense level is less than level 30, increase to level 30.” W ard argues the
district court erred in enhancing his sentence under this guideline based on its
finding that “his offense created a substantial risk of harm to the life of a minor.”
He claims this fact-finding violated his Sixth A mendment rights under Blakely.
W ard also contends that if this factual issue had been sent to the jury, it would not
have found as the court did because the jury found him not guilty of Shultz’s murder.
Thus, he asserts the jury would not have found him responsible for Long’s death.
Although W ard objected to the USSG §2D1.1(b)(5)(C) enhancement in the
district court, he did not do so based on the Sixth Amendment. Therefore, plain error
review applies. Gonzalez-Huerta, 403 F.3d at 732. The district court committed
constitutional Booker error because it mandatorily enhanced W ard’s sentence under
USSG §2D1.1(b)(5)(C) based on facts neither admitted to nor found by a jury. Id. at
731. That error w as plain. Id. at 732. However, even assuming the error affected
W ard’s substantial rights, we decline to exercise our discretion to correct the error.
This is so because the U SSG §2D1.1(b)(5)(C) enhancement did not affect Ward’s
sentence. As he conceded at sentencing, the career criminal guideline controlled and
resulted in an offense level of 34 even in the absence of the USSG §2D1.1(b)(5)(C)
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enhancement.
3. Restitution
W ard argues the district court erred in imposing restitution because the
applicable statute, 18 U.S.C. § 3663, only authorized restitution in this case to the
alleged victim, Shultz, not her parents. However, in a footnote, he clarifies he is not
conceding that Shultz was a victim of the crime of conviction. W ard also contends
there was no evidence supporting the amount of restitution ordered. Lastly, W ard
claims that because the court’s restitution order enhanced his sentence, whether
W ard caused a loss and the amount of that loss needed to be determined by the jury
under Blakely. W e can readily dispose of the last argument. Because restitution is
not criminal punishment in the Tenth Circuit, Blakely and Booker do not apply to
restitution orders. United States v. Westover, 435 F.3d 1273, 1277 n.5 (10th Cir.
2006); United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005), cert. denied
126 S.Ct. 1101 (2006).
W e review the legality of a restitution order de novo. United States v.
Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003). The factual findings underlying a
restitution order are reviewed for clear error and the amount of restitution for an
abuse of discretion. Id. Section 3663(a)(1)(A) of the Victim and W itness Protection
Act (VW PA) permits a court, when sentencing a defendant convicted of an offense
under 21 U.S.C. § 841, to order “the defendant make restitution to any victim of such
offense, or if the victim is deceased, to the victim’s estate.” It defines “victim” as “a
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person directly and proximately harmed as a result of the commission of an offense
for which restitution may be ordered including, in the case of an offense that
involves as an element a scheme, conspiracy, or pattern of criminal activity, any
person directly harmed by the defendant's criminal conduct in the course of the
scheme, conspiracy, or pattern.” § 3663(a)(2).
In determining whether to order restitution under the VW PA, the court shall
consider “the amount of the loss sustained by each victim as a result of the offense,”
“the financial resources of the defendant, the financial needs and earning ability of
the defendant and the defendant’s dependents, and such other factors as the court
deems appropriate.” 18 U.S.C. § 3663(a)(1)(B)(I). “The government bears the
burden of proving, by a preponderance of the evidence, the amount of actual loss the
victim sustained as a result of the offense.” United States v. Grissom, 44 F.3d 1507,
1514 (10th Cir. 1995).
W e conclude the district court erred in ordering restitution in this case. In
Hughey v. United States, the Supreme Court held “the language and structure of the
[VW PA ] make plain Congress’ intent to authorize an award of restitution only for
the loss caused by the specific conduct that is the basis of the offense of conviction.”
495 U.S. 411, 413 (1990). “Thus, a § 3663(a)(1) restitution order that encompasses
losses stemm ing from charges not resulting in convictions is unauthorized by the
restitution statute.” United States v. Wainright, 938 F.2d 1096, 1098 (10th Cir.
1991). Here, W ard was acquitted of Shultz’s murder. Based on our review of the
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evidence, it appears this was due to the fact that even though W ard may have been
manufacturing methamphetamine in the trailer, the jury could not find beyond a
reasonable doubt that this conduct caused the fire and thus Shultz’s death.
Therefore, it was improper for the court to order restitution to Shultz’s parents based
on its belief that W ard was responsible for Shultz’s death. The only restitution that
could have been ordered in this case is for the loss caused by W ard’s attempted
manufacture of methamphetamine. The government did not attempt to prove any
loss flowing from this conduct. Consequently, restitution was not appropriate.
W e recognize that the guidelines permit a district court to consider a
defendant’s uncharged conduct, as well as conduct for which he was acquitted, in
calculating the defendant’s sentence. United States v. Watts, 519 U.S. 148, 154
(1997) (per curiam); United States v. M oore, 130 F.3d 1414, 1416 (10th Cir. 1997).
Nevertheless, restitution is governed by the VW PA, not the guidelines. United
States v. Blake, 81 F.3d 498, 506 n.5 (4th Cir. 1996); United States v. Silkowski, 32
F.3d 682, 688 (2d Cir. 1994). Indeed, USSG §5E1.1 authorizes a court to enter a
restitution order to an identifiable victim “if such order is authorized under 18 U.S.C.
§ 1593, § 2248, § 2259, § 2264, § 2327, § 3663, or § 3663A, or 21 U.S.C. 853(q).”
Thus, the fact that the district court could have potentially used its finding that
W ard’s m anufacturing of methamphetamine caused the fire which resulted in
Shultz’s death to enhance his sentence or depart upward under the discretionary
guidelines, the same finding cannot be used as a basis to order restitution when W ard
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was acquitted of causing Shultz’s death.
III. Conclusion
W e AFFIRM W ard’s conviction. W e REM AND to the district court with
directions to VACATE its restitution order. W e AFFIRM W ard’s sentence in all
other respects.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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