United States v. Irving
665 F.3d 1184
10th Cir.2011Background
- Irving was charged and convicted in a murder-for-hire/witness-tampering case arising from a plan to kill Lt. Brian Stark prior to his testimony, and a separate drug-distribution conviction based on a 2008 controlled buy.
- The August 25, 2008 controlled buy involved a confidential informant, an MPD surveillance setup, and a cash-for-drugs exchange in which Irving handed the money to the informant and the drugs were recovered from the informant’s vehicle.
- After Irving’s February 2009 arrest, a prisoner’s note led to evidence of a 2006 plan to kill Stark and to communications among Irving, Collins, and Washington coordinating the hit.
- Confidential informant testimony and recorded calls showed Irving’s increasing specificity regarding the hit, including an agreed price of $50,000 and upfront payment, and arrangements to bond Collins out of jail.
- Irving’s co-defendant Washington was tried with him; evidence included tape recordings, Collins’s testimony, and prior conduct by Irving indicating a long-standing motive against Stark.
- The district court admitted certain testimony about a prior investigation by Stark into Irving, and excluded a defense witness under sequestration rules, which Irving challenges on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment sufficiency: charge against Irving | Washington rule forecloses; law of the case | Indictment duplicitous; no cognizable offense | Indictment legally sufficient; law of the case applies |
| Duplicity of the indictment | Single count charged conspiracy and attempt | Violates duplicity prohibition | Duplicity challenge failed; law of the case controls |
| Sufficiency of evidence for drug conviction | No observable drugs or money exchanged | Evidence insufficient beyond reasonable doubt | Evidence sufficient to support possession with intent to distribute |
| Sequestration error in excluding Terry Warrior | Exclusion harmed defense; reversible error | Harmless error; end of inquiry | Harmless error after independent evidence of guilt; no reversal |
| Admission of Lt. Stark’s testimony about prior investigation | Intrinsic to context of charged crimes; permissible | Should be excluded under Rule 404(b) | Evidence intrinsic; Rule 404(b) not applicable; not unduly prejudicial |
Key Cases Cited
- United States v. Washington, 653 F.3d 1251 (10th Cir. 2011) (reaffirmed law of the case on indictment challenges and admissibility issues in this context)
- United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979) (mere abstract talk insufficient for substantial step; focus on substantial step requirement)
- United States v. Rovetuso, 768 F.2d 809 (7th Cir. 1985) (solicitation and agreement to kill as substantial step)
- United States v. Wahlstrom, 588 F.3d 538 (8th Cir. 2009) (solicitation and concrete steps can satisfy substantial step towards obstruction of justice)
- United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983) (discussion of substantial step and intrinsic/extrinsic evidence framework influences analysis)
- United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990) (guides standard of review for evidentiary questions and aiding/abetting liability context)
- Lambert v. United States, 995 F.2d 1006 (10th Cir. 1993) (intrinsic evidence concept; context and proportional Rule 403 consideration)