United States v. Elliott
684 F. App'x 685
| 10th Cir. | 2017Background
- In 2014 Joel Elliott bombed a building owned by Sheridan County that housed the County Attorney’s Office; he was convicted under 18 U.S.C. § 844(f) and other charges.
- Government used an undercover informant (Robert Weber) who elicited and recorded incriminating statements from Elliott pre-indictment; Elliott was allegedly represented by counsel on the matter.
- Elliott moved to suppress those statements, later arguing on appeal that the Assistant U.S. Attorney’s authorization of the undercover operation violated Wyoming ethical Rule 4.2 (no-contact rule).
- District court denied suppression; on appeal Elliott raised (1) an ethics-based suppression claim and (2) challenges to sufficiency of evidence and a jury instruction under the federal arson statute.
- The Tenth Circuit held Elliott waived/forfeited the ethics-based suppression argument and, alternatively, rejected it on the merits (Rule 4.2’s “authorized by law” exception covers pre-indictment use of informants).
- The court also held the evidence was sufficient and Jury Instruction 24’s wording error ("received" vs. "receiving") was harmless because Sheridan County—owner of the building—was receiving federal funds when the bombing occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether incriminating statements elicited by an informant should be suppressed under state ethics rules (Rule 4.2) because prosecutor authorized the contact while defendant was represented | Elliott: AUSA violated Wyoming Rule 4.2 by using an informant to contact a represented person; statements must be suppressed | Government: Argument forfeited/waived; even on the merits Rule 4.2’s "authorized by law" exception permits pre-indictment informant contacts | Waived/forfeited; alternatively, rejected on merits—Rule 4.2 exception allowed use of undercover informant pre-indictment |
| Whether the court should exercise supervisory power to exclude evidence for alleged prosecutorial ethical violations | Elliott: Supervisory power should be used to suppress evidence obtained through unethical government conduct | Government: No reversible ethical violation; suppression inappropriate and argument not preserved | Court declines suppression; finds no ethical rule violation as a matter of law and reserves supervisory power analysis |
| Sufficiency of evidence under 18 U.S.C. § 844(f) where owner (county) received federal funds but occupying office did not | Elliott: Statute should not apply because the County Attorney’s Office or building did not themselves receive federal funds | Government: Statute covers property owned by an entity that receives federal assistance; county received federal funds when the bombing occurred | Evidence sufficient—county owned building and was receiving federal funds; statute applies (Apodaca controls) |
| Jury instruction wording ("received" vs. statutory "receiving") | Elliott: Instruction misstated law and could mislead jury about timing of federal funding | Government: Instruction consistent with other instructions; any wording variance harmless given undisputed funding timing | Any error harmless—owner (Sheridan County) was receiving federal funds at time of bombing; conviction stands |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (forfeiture and waiver doctrines)
- Singleton v. Wulff, 428 U.S. 106 (appellate discretion to reach unpreserved issues)
- United States v. Ryans, 903 F.2d 731 (10th Cir. rule that pre-indictment informant contacts do not violate no-contact rule)
- United States v. Apodaca, 522 F.2d 568 (statute applies where entity owner receives federal funds)
- United States v. Balter, 91 F.3d 427 (treatment of Rule 4.2 in criminal investigations)
- United States v. Hammad, 858 F.2d 834 (Rule 4.2 exception "authorized by law" supports informant use)
- Hoffa v. United States, 385 U.S. 293 (government may use informants to exploit suspect’s misplaced trust)