United States v. Mullikin, 758 F.3d 1209

In 2006–2008 Mullikin solicited participants for purported clinical weight-loss studies; deposits were required and promised refundable compensation. Law enforcement investigated as an advance-fee fraud scheme.
In Nov. 2011 a federal grand jury in the District of Colorado indicted Mullikin on 19 counts of mail fraud; two counts later dismissed for lack of testimony and the jury convicted on 17 counts.
In Sept. 2012 agents executed a warrant at Mullikin’s residence and seized two hard drives, a desktop, a laptop, two binders, and two folders.
Mullikin moved pretrial to suppress evidence seized under the Sept. warrant, arguing the affidavit lacked probable cause linking the residence to the items and that the seizure list was overbroad; the district court denied suppression.
On appeal Mullikin renewed challenges to probable cause, nexus, and breadth of the warrant and argued the seized evidence should have been suppressed.
The Tenth Circuit assumed, arguendo, any warrant error but evaluated whether admission of the challenged exhibits was harmless beyond a reasonable doubt and affirmed the denial of suppression.

Issue	Plaintiff's Argument (Government)	Defendant's Argument (Mullikin)	Held
Probable cause to search residence	Affidavit provided sufficient probable cause to find evidence of the fraud would be at the residence	Affidavit failed to show nexus between crime and residence or that listed items would be found there	Court did not reach merits because it found any error harmless beyond a reasonable doubt
Specificity/nexus of items to be seized	Warrant items were tied to the investigation and relevant to proving scheme and intent	Seizure list was impermissibly broad and not sufficiently connected to the residence	Any error in admitting seized items was harmless given overwhelming other evidence
Admissibility of four challenged exhibits (photos, computer doc, email)	Even if erroneously admitted, these exhibits had minimal independent probative value and were cumulative	Admission of these exhibits tainted jury’s view of intent and guilt	Admission (if error) was harmless beyond a reasonable doubt; conviction stands
Harmless-error standard / burden	Government must prove beyond a reasonable doubt any constitutional error did not contribute to verdict	Error affected jury’s assessment of intent element	Government met its burden: strong independent evidence of scheme, mailings, victims’ testimony, and Mullikin’s own admissions supported verdict

United States v. Danhauer, 229 F.3d 1002 (10th Cir.) (standard of review for suppression rulings: factual findings for clear error, warrant sufficiency de novo)
United States v. Mikolon, 719 F.3d 1184 (10th Cir. 2013) (Supreme Court harmless-error principles apply to Fourth Amendment errors; government bears burden)
Chapman v. California, 386 U.S. 18 (1967) (government must prove constitutional error harmless beyond a reasonable doubt)
Sullivan v. Louisiana, 508 U.S. 275 (1993) (verdict must be "surely unattributable" to the error for it to be harmless)
Arizona v. Fulminante, 499 U.S. 279 (1991) (harmless-error analysis requires evaluating error in context of all evidence)
United States v. Miller, 111 F.3d 747 (10th Cir.) (government bears burden to prove harmlessness)
United States v. Benard, 680 F.3d 1206 (10th Cir.) (harmless-error standard in jury trials)
United States v. Schuler, 458 F.3d 1148 (10th Cir.) (elements of mail fraud under 18 U.S.C. § 1341)
Stump v. Gates, 211 F.3d 527 (10th Cir.) (issues raised first in a reply brief generally not reviewed)
United States v. McClatchey, 217 F.3d 823 (10th Cir.) (failure to include exhibits in record may constitute waiver of evidentiary challenge)