United States v. James Earl Matthews

(1) (2) on a mat process testimony, false material port requirements. due with (3) ter, willful intent. United support evidence to States There sufficient 889, Robinson, if, viewing the evidence conviction 1995). prosecution, Viewing Giang’s testimony to the in a light favorable most him, it light appear of fact could have found does not any trier favorable rational beyond clearly crime that the court erred in im essential elements district posing United States v. Cole- reasonable doubt. this enhancement. record ade (9th Cir.2000). man, reflects, found, quately district as the court perjury committed before the Giang it incredibility, facial is not Absent grand jury. jury’s our assessment question role to credibility. United States v. witness CONCLUSION (9th Cir.1997). Croft, Furthermore, held we have that a convic We AFFIRM as to all convictions on the may tion based uncorroborated be sentences of all defendants. accomplice, long as testimony single of a so point it has “a the wit not reached when are so that a qualifications shoddy

ness’ should di acquittal verdict of have been States, Lyda rected.” Giang Defendant concludes that this level relying Lydа, has been reached.6 We dis shoddiness agree. America, UNITED STATES Plaintiff-Appellee,

First, jury was aware of the wit- nesses’ involvement scheme as well potential biases when it made its their MATTHEWS, James Earl credibility finding. testimony Their is not Defendant-Appellant. Second, independent on its face. incredible aspects evidence corroborated several No. 98-10499. testimony. Viewing this ev- witnesses’ Appeals, United States Court idence, along testimony with the of the five Ninth Circuit. witnesses, prose- favorable light cution, trier of fact a rational could Argued and Submitted Feb. found elements the essential of the crime Sept. Filed beyond Therefore, doubt. a reasonable Amended Feb. support is sufficient Giang’s conviction.

B. Finally, Giang argues that dis trict clearly applying erred a two- point jus enhancement for obstruction of Sentencing

tice. See § 3C1.1 Guidelines Manual impose' In order to the obstruction enhancement, the district court must find Lyda, largely appellate

6. where conviction mind the role of an rested limited court in upon testimony accomplice appeal, point of one wit- criminal we do not think that ness, ultimately "Bearing concluded: 321 F.2d at reached here.” 795. Nevada, Attorney, Vegas,

ed Las plaintiff-appellee. FLETCHER, CANBY, Before: B. O’SCANNLAIN, Judges. Circuit Opinion by Judge BETTY B. FLETCHER; Partial and Concurrence by ‍​‌​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌​‌​‌​‌‌​‌‌‌​‌​​‌‌​‍Judge Partial Dissent O’SCANNLAIN.

ORDER opinion September filed published at 226 F.3d 1075 Cir.

2000) is amended as follows: page following At delete sen- tence and citation: therefore reverse and remand for We on as it resentencing the record now Hudson, v. stands. See United States Replace the deleted sentence and cita- following: tion with the government hold that the We therefore failed to meet its burden of this case proving qualifies that Matthews as an gov armed career criminal. Because the comply long- with our ernment failed to scope limit precedents, established we resentencing of the district court’s authori government should ty on remand. The required have been aware of what it was to burden, Potter, introduce to meet its see 1238; Phillips, 149 F.3d at 895 F.2d at patently comply it failed to with Therefore, we requirement. a critical circuits that agree many of our sister to do on remand party k should not be able failing it to do the whаt has excuse Forsman, Franny A. Federal Public De- See, e.g., United first time around. States fender, Paul (argued), G. Turner Assistant (D.C.Cir. Leonzo, Defender, Vegas, Las Ne- Federal Public 1995) (“The the burdens government had vada, defendant-appellant. production persuasion, and we see Landreth, why get it should a second bite Kathryn E. United States At- no reason apple. special at No circumstances torney, (argued), Peter Ko Assistant Unit- reopening always must resentence without explained, govern- even justified, or burdens.”); gov- these In those cases where the failure to sustain the record. ment’s Parker, 542, 553- persuasive States reason ernment demonstrates (“[T]he (4th Cir.1994) prosecution has requires, so this court has why fairness oppor- full and fair given one already been to permit government to discretion proof about Ton- tunity to offer whatever remand; introduce the omitted evidence Having failed sler Park it could assemble. unclear, may is re- where the record opportunity, Government to seize mand with instructions to the district allowed to resentencing should not be at supplement рermit government prove additional evidence introduce requisite if it only the record makes playground. Park contained Tonsler court. persuasive showing the district apple enough.”); bite at the One Dickler, Here, howev- 832. See (3d Dickler, er, abundantly clear and ad- the record is Cir.1995) prosecu- that when the (agreeing government. verse persuasion burden of tion fails to meets its complains that this defendant 9. The dissent ordinarily production, “its case should "sentencing just windfall” be- has received it makes or fall on the record have to stand government cause the failed meet burden past It proving the defendant's convictions. allowing around” but the first time in the sense that another "windfall” “ten- exception because the might proba- similarly situated defendant face why reason fairness so persuasive dered a prosecutor who undertake a tion officer and Monroe, requires”); States v. 978 investigation proper in the first instance and (8th Cir.1992). 433, Here, proof. meet the burden does not deserve a second bite government ORDER patent- made apple. The defendant partial partial concurrence and dis- The ly gov- clear to the district court Sep- by Judge sent O’Scannlain filed on precedents require. our ernment what 14, 2000, published at 226 F.3d tember The did not seek to cure the (9th Cir.2000) 1075, is amended as 1086 proof. gov- in its To allow the deficiencies follows: reopen proceedings at ernment this would be to waste court resources. stage partial At 1086-87 delete the con- pages obliged Parties before district courts are entirety. currence/partial dissent in its in a prepare thorough their cases man- partial concur- Replace deleted party’s victory initial is re- ner. When rence/partial following: dissent with the court by appellate

versed because the I in affirmance of concur the court’s party obligation, this are failed to meet conviction, respect- but I must bring to an end the obliged to wasteful fully disposition of the dissent from its process. We therefore reverse and re- sentencing issue in this case. Even as- resentencing on it mand for the record as in suming that the district court erred now stands.9 Sеe United States v. Hud- (8th Cir.1997). son, 994, applying the Armed Career Criminal 995 We (“ACC”) in enhancement of 18 U.S.C. suggest do not that all cases where the 924(e),1 I in government’s proof has failed the court cannot concur the drastic (1990) assuming (describing "categorical” 1. Even that the district court erred enhancement, applying majority’s approach "requires the trial to look in that court analysis statutory issue is overbroad of this and incon- to the fact of conviction and the offense”). prior precedents. prior impli sistent with our definition of the This by recognition precluded past cation is our emphasizing the need for the district conviction, Taylor’s of the cate that under "refinement statute court to review the categorical gorical approach” implies Taylor or "modified majority opinion requires approach,” sentencing may be categorical approach evaluating court look a strict when yond the statute and fact of conviction in burglary whether a conviction is States, Taylor appropriate v. Par cases. See United Stаtes conviction. See v. United ker, 1322, U.S. 110 S.Ct. 109 L.Ed.2d resentencing prove on the but failed to step remanding property met stands, i.e., the statute’s definition of “playground.” barring record as it now developing further the rec trial court from case, majority The in having over- simply There appropriate. ord as simplified greatly, may regard matters deviating in this from our reason case principles governing application of the practice” allowing the district “general “clearly enhancement by ACC stated” appropriate pro further law, court to conduct but case more careful examina- purposes on remand for of resen- ceedings tion of the issue princi- discloses these ples complex, are Washington, quite spawned tencing. United States courts, Cir.1999); great litigation deal of the lower see “clearly and are far from stated.” Accord- Parrilla, also States v. ingly, punish see no reason to gov- (9th Cir.1997) (“On remand, by prohibiting it completing from pro district court should conduct further showing its on remand to establish the may necessary it ceedings as be to enable applicability of the ACC enhancement with appropriate findings to make to resolve the greater certainty. even ”); dispute.... factual majority’s exception The new to its Hedberg, 902 F.2d new 1990) provide guidance rule will little to future (remanding for de novo panels, and little comfort to those of us proceedings). who seek predictability consistency Eighth opinion The cited Circuit sentencing. approach This case case Hudson, majority, United States v. goals contradicts the of both the ACC (8th Cir.1997), cryptic F.3d 994 is rather enhancement and the Sentencing Guide very helpful justifying and not high lines: The enhancement ACC was enacted ly step. sup unusual Hudson minimum provide mandatory order to ported closing by claiming of the record sentences for armed career criminals. See clearly governing that “we have stated the Sweeten, Sentencing at 770. The F.2d principles disputed as to when and how part were in large Guidelines established sentencing proved.” facts must be Id. sentencing dispari to reduce unwarranted 995. The and Fourth D.C. Circuit cases ties. See United States Bаnuelos-Rod by majority (9th Cir.2000) (en cited did 969, not involve stat riguez, 215 F.3d banc). complex provision. allowing utes as as the ACC In escape Matthews to Instead, imposition of the enhancement sim by those cases involved failures ACC (from fortuity ply because of the Mat prosecution specified to establish facts perspective) probation thews’s that his offi statutes, by the relevant where there was PSR, prepared less-than-complete cer a uncertainty require as to the statutes’ majority congressional flouts intent Leonzo, ments. In United respect with to both the ACC enhance 1086, 1088(D.C.Cir.1995), govern F.3d Sentencing ment and the Guidelines. ment did not introduce relevant evidence of the loss caused the defendant’s bank process sentencing The of criminal is not Parker, In fraud. United States v. game a between the and crim- (4th 542, Cir.1994), 551-53 gov defendants, inal in which one side or the sought to enhance the defendant’s gets penalized play. other for unskillful by charging sentence him with distribution goal sentencing is to determine the drugs playground, appropriate light within 1000 in of the feet of most sentence Indeed, Bonat, рrovide our cases district courts United States v. 1476- Cir.1997); Alvarez, significant beyond with latitude to look States v. Cir.1992); mere fact of conviction and statute of convic- 1005-07 ite Un 924(e) O’Neal, evaluating tion when d States v. 1373-74 Sweeten, (9th Cir.1991); (the prior burglary status of convictions United States v. case). (1991). types of convictions at issue in this See trial he re- Davis testified at crime and the defen- Davis.

characteristics from Matthews late Janu- ceived a call an “armed career If dant. (and telling him that he had some ary statute under ACC criminal” response to this con- is), firearms for sale. then he that he makes clear record tact, he agent called the with whom Davis one. Because should be sentenced Gil, ATF, Agent Darren worked at the bestowing agree cannot setting up expressed who interest long a defendant with upon windfall weapons. Davis purchase controlled committing violent history of extensive engaged Matthews then in a number crimes, equally culpable especially when in-person and held two phone calls have been defendants but less fortunate the firearms enhancemеnt, in furtherance of meetings I must re- subjected to the sale, telling Davis Matthews he would with dissent. spectfully weapons. buyer

find a OPINION 25, 1998, January met Mat- Davis On Vegas, E-Z-8 Motel in Las thews at an FLETCHER, Judge: BETTY B. Circuit Although Davis could not identi- Nevada. Matthews was indicted and James Earl trial, fy number at he testified the room being a felon in tried on three counts accompanied Matthews to the that he and two counts of possession of firearm VCRs, TVs, room and was shown “some firearms. unlawful of stolen [pistol] and a .380 [semiau- 9 millimeter [a] trial, acquitted he was After a firearm], cameras, tomatic some watches.” judge charges, two and the district latter he had an assault Matthews also told Davis posses- two of the three felon dismissed purchased two TVs at rifle for sale. Davis multiplicitous. a firearm counts as sion of him that the motel room order to “show Investigative Report The Presentence interested,” explained that he [he] (“PSI”) be recommended that Matthews regarding would contact Matthews posses- remaining gun sentenced guns. an Armed Crimi- sion conviction as Career later, January Davis days Two (“ACC”) under the States Sen- nal telephone in a engaged conversation (“U.S.S.G.”) tencing Guidelines Matthews, by Agent which was recorded 4B1.4(b)(3)(B) objec- Despite call, During Davis asked what kind Gil. that Matthews’s tion his counsel weapons Matthews had available and burglary attempted burglary and convic- they January how much would cost. On crimes, were not Matthews tions Matthews that he had locat- Davis told months in was sentenced as an ACC to 280 weapons. buyer ed a When Mat- appeals underlying his prison. He both responded going drop thews that he was conviction and his sentence. house, guns off at Davis’ Davis tried to jurisdiction We have under 28 U.S.C. time, Agent stall him for since Gil had not 3742(a). af- 1291 and 18 U.S.C. We yet arranged reception. for their On Jan- firm all of the claims the district and ex- uary Matthews called Davis challenging underlying conviction. We plained way that he was on his to Davis’ on the issue and re- reverse house with the firearms. This call was not existing rec- resentencing mand for on the recorded, placed since Matthews had ord. recording call and Davis did not have equipment at his home. Later that eve- I. ning, Matthews arrived at Davis’ house wеapons. case arises out of a transaction with a number of Two of Davis’ This friends, paid Brynski Farring- and Mark between Earl Matthews and Scott James ton, Alcohol, arrived. present informant for the Bureau of To- were when Matthews (“ATF”) purpose named Both had been told about the bacco and Firearms Chris visit, in- Farrington was During closing argument, the defense gave pointed troduced to Matthews. Matthews individuals, out that the two Bryn- blanket; in guns wrapped Davis three Farrington, ski and by named Davis as Davis testified that he saw the barrel of a having been at his home when Matthews protruding rifle from the blanket and took firearms, delivered the were not called house, the whole bundle into his where he witnesses for the Government. Defense weapons stored the pickup by Agent counsel also targeted testimony of the trial, Gil. At Davis identified a Llama .380 fingerprint expert, Government’s Darrell pistol, a 9 pistol, semiautomatic millimeter Klasey. Klasey explained had on direct a Thompson gun submachine as the examination fingerprints are recover- guns brought that Matthews to his house. weapons ‍​‌​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌​‌​‌​‌‌​‌‌‌​‌​​‌‌​‍able from in only percent 10 to 11 identify Davis did not Although weap- of the investigates, cases he thus indicating number, by ons serial he was to de- able that the lack of fingerprints on the guns type scribe the and condition fire- Matthews charged .with possessing arms they arrived at his house. All when significant. was not implica- To refute this of the firearms were admitted into evi- tion, urged the defense in closing objection. dence after that,” without Sometime “worry about asking rhetorically left, paged Matthews Davis Agent Gil to why prints if were left Matthews awas explain happened. what had gun responded dealer. The Government rebuttal, characterizing defense coun- Agent Gil testified that he took fire- argument sel’s as: January arms from Davis on 1998. He them, tags placed affixed evidence them ojctopus squirting [An ink. A retired in an envelope, and took them back to the prosecutor I know likes to call this kind ATF Vegas Field Office Las for finger- argument octopus of an squirting ink. print 2,1998, testing. February On Agent They’re trying to get away, they so got- Gil with at a arranged met Matthews time they’re ta hide what doing, they gotta by The meeting, place Davis. which tоok facts, facts, hide all cloud the throw restaurant, at a was monitored both a dirt, up all squirt the ink. kinds recording transmitting and a Af- device. Regarding the Government’s failure Agent paid ter Gil him for the firearms eyewitnesses call the from Davis’ home the bills, with marked Matthews left the res- night weapons delivery, Government taurant agents. and was arrested ATF following counsel made statement Matthews was indicted for being felon rebuttal: of firearms: count one Mr. testimony. [Y]ou heard Davis’s Mr. superseding charged indictment him with Farrington, as soon as Mr. possession of a Llama .380 semiautomatic up, got the car drove out and walked out pistol, charged posses- two him count the back He didn’t see anything. door. pistol, sion of a 9 millimeter count position He wasn’t in to see anything. charged possession three him with of a Why we call Mr. Brenski [sic]? didn’t Thompson gun. submachine Matthews Maybe my fault. could have that’s We was charged pos- also with two counts of stand, called him to the could have put session of stolen firearms: count four of up him and he would have there said .380, the indictment was for the and Llama probably thing the sаme that Mr. Davis count Thompson five was for the subma- said. objected chine in- gun. Matthews the to Finally, response to the defense’s dis- dictment, arguing that the three counts for fingerprint expert, cussion of Gov- felony of firearms multi- possession were ernment stated: plicitous. The district court allowed the pursue Why Government to all five fingerprint counts at did we call a examiner trial. prove Why to have? did what we don’t The defense months. months to 235-293 Be- examiner? fingerprint call a PSI, arguing objections to the written experi- filed battle human to you have cause T.V., the four convictions of three has watched Everybody

ence. were as “violent felonies” Ev- PSI identified watched movies. everybody has burglaries that attempted burglaries or you touch any time thinks erybody force, threat of the use not involve going to leave did you’re something by the weapons required over the force or use as all fingerprints whole host Act, 18 U.S.C. fin- Criminal Armed Career suddenly you have And place. 924(e). three of evidence that Without does this expert, guy who gerprint or threat included the use experi- priors yоu in his four who tells living for force, burglaries argued, the firearms, Matthews get fingerprints you on ence not be attempted burglaries could I don’t and of the time. percent 10 or him an Armed Ca- time I used you, but first know about hearing, At the 10 or reer Criminal. I was shocked. heard that lack of objected to the I counsel time? That’s not what defense of the percent in the copies judgments Matlock, I saw that’s not what certified on saw No additional evidence Mason, predicate felonies. not what saw Perry that’s the PSI with proffered sentencing: at finger- was Order. These on Law and addendum, objections, and Gov- time. defense up all prints, they show items response were the why you call be? That’s How can this court overruled explain. The district considered. fingerprint in a examiner and objections to the PSI the defense’s of all guilty Matthews jury found Armed Career Matthews an sentenced counts, acquit- felony possession and three Criminal, Mat- prison. months to 280 five, four and unlawful him on counts ted inter timely appealed, challenging, thews The de- firearms. possession of stolen alia, sufficiency of evidеnce judgment for of ac- fense filed motion offense, the introduction of underlying Rule of Criminal quittal under Federal evidence, impact on the crimes” “other trial under Federal a new Procedure multiplicitous indict- jury trial of the 33, arguing Procedure Rule of Criminal ment, vouching, prosecutorial improper renewing insufficiency of the evidence Armed Career qualification as an his multiplicitous charges objection Criminal. response, the court in the indictment. for a acquittal rejected the motion Sufficiency A. the Evidence trial, counts two and but dismissed new multiplicitous. three as was argues there support Investigation evidence Presentence sufficient finding being him felon guilty level as Report his base offense verdict calculated of a firearm under 18 U.S.C. there were point added one because evidence crime, 922(g)(1). There is sufficient involved in the and two guns three if, support “viewing a conviction firearms because the crime involved points light most favorable importantly, that had been stolen. Most fact could any rational trier of prosecution, as Armed identified Matthews the PSI Criminal, the essential elements qualifying him an of- have found Career doubt.” Jack beyond he at least crime reasonable level of 33 because fense 307, 319, crime; Virginia, 443 U.S. S.Ct. time of the son years old at the (1979); see also 61 L.Ed.2d 560 felony; charged qualifying offense was Symington, least three and he had at The ele 1088-89 Criminal The Armed Career felonies. (1) crime are: the defendant for ments of this the sentence identification increased the firearm described knowingly possessed eligible from 130-162 which was Matthews (2) indictment; in ing apply the firearm de does not to this case. Davis’ shipped in the indictment had been scribed testimony was not incredible or insubstan- another; transported from one state to tial, either facially deeper analysis. or on (3) pos at the time the defendant Davis phone testified to a number of firearm in sessed the described the indict Matthews, calls meetings and two ment, he had been convicted of a crime during which Davis saw in pos- Matthews punishable by imprisonment for a term weapons. session of year. one While it is true that exceeding 922(g)(1), U.S.C. Ninth Manual Jury Circuit Model In eyewitness no other testified to seeing Criminal, Sec. 8.19.16 firearms, structions — Matthews with the several of the parties stipulated to the second and phone calls between Davis and Matthews third elements of the crime. The issue on monitored, were recorded and and includ- therefore, appeal, is whether sufficient evi ed circumstantial corroboration of Davis’ dence was at trial introduced to allow a testimony. For example, the record re- jury beyond rational to conclude a reason during veals that one the monitored able knowingly pos doubt that Matthews calls, phone Matthews stated that he had a sessed firearm described count one millimeter, .380, Thompson and a ma- of the indictment.1 chine gun. While these statements are not sufficiency Matthews focuses his chal- possession, direct evidence of they cir- are lenge only on the fact that the direct evi- cumstantial evidence that tends to corrobo- possession dence of Matthews’s of the fire- eyewitness rate Davis’ own accounts of the arms came from trial testimony weaрons having been in posses- Matthews Chris Davis. paid Because Davis was a addition, In sion.3 Agent Gil testified to informant, ATF explana- and because his the recorded conversation he had with regarding tion how he became an infor- Vegas restaurant, Matthews at Las unclear,2 mant was somewhat Matthews exchange which included an concerning the suggests testimony provid- that the Davis price agent the undercover pay would for enough ed his case was tainted to make the guns Matthews delivered to Davis. face,” it “insubstantial on requiring thus While Matthews explicitly nowhere states corroboration. itWhile is true that this on the recordings that he had the guns uncorroborated, court has warned that fa- posses- described the indictment in his cially “incredible or unsubstantial” testi- sion, explained Gil that Matthews did dis- mony may support be insufficient them, prices, accept payment cuss their States, verdict, Lyda v. United guilty (9th Cir.1963) (internal ultimately 794-95 stated that he could obtain quotation omitted), and citation that warn- guns other for sale.4 Matthews’s own re- 1. Since the second two counts were dis- 3. While we do ap not faсe the issue in this missed, pos- Matthews was sentenced peal, we note that the First Circuit has held pistol. session of the Llama .380 Because the eyewitness testimony aof defendant hav evidence introduced the Government con- ing been in of a firearm is suffi group, cerned the firearms as a we refer to uphold cient itself to verdict under plural. them in the 922(g), 18 U.S.C. even when the firearm itself has not been recovered. United States v. 2. When asked what motivated him to become Hernandez, (1st 1998). informant, replied an ATF Davis "because I using drugs at the time and wanted to response question by Agent 4. to a Gil re- stop." He further stated that he did not have garding availability guns, any of additional uh, charges outstanding against criminal him time, replied, got, simply thirty thirty and that he "I car- looked for the book, called, listing phone ATF might bine ... I think know where some signed up as an informant. While this testi- any more are. IBut don't have ...” odd, mony is somewhat it did not render testimony Davis’ insubstantial or incredible on its face.

816 Rule of are circumstantial evidence excluded under Federal Evidence corded words 404(b). the possession guns. of his of the admission We review of evi held that “the uncorroborated We have dence Federal Rule of Evidence under an informer is sufficient to testimony of 404(b) for of discretion. See abuse United when it not unbe- sustain a conviction” is (9th F.3d Bracy, States incredible. United States lievable or Cir.1995). objection is the If no made to Paduano, evidence, however, admission the the of Here, the key aspects of informant’s testi- trial is reviewed plain court’s decision mony corroborated the undercov- were Furthermore, error. See id. er it is true that Davis officer. While whether the determines de novo evidence supplied only linking direct the evidence scope falls within of Federal the Rule possession actual fire- Matthews to 404(b). Evidence See arms, indirect, a good there was deal of Cir.), Rrapi, 175 F.3d cert. evidence same making circumstantial the denied, 528 U.S. S.Ct. sum, challenges link. the Matthews L.Ed.2d 219 sufficiency the evidence mounts to the “weap- Davis that there testified were regarding his of the firearms ons, cameras, TVs, VCRs” sale in Mat- the weight credibility concern the and room, thews’s and that hotel there was role, ours, jury’s the evidence. not “[I]t “bag” of watches in the room well. as credibility to assess witnesses and re- Although objec- defense counsel made no evidence,” solve conflicts testimony, tion to Davis’ the district court Kenny, States v. responded by giving to his statements Cir.1981). certainly There ev- enough limiting jury to the regarding instruction for a rational that idence conclude testimony: the proved

the had Matthews Government gentlemen, Ladies and let me instruct possessed the firearms described in the you at Testimony this time. that’s been beyond a indictment reasonable doubt.5 concerning

received items other than the question is not that firearms evidence ” B. Evidence “Other Crimes specific relates charge. In other words, defendant, Matthews, that argues Matthews the court abused Mr. by allowing testimony any not charged discretion to be violation concern- televisions, regarding ing you’re introduced host that and jewelry of items were day in Matthews’s hotel called return a upon room verdict as to that him guns. involving Davis met there discuss such items of anything proper- challenge ty, His rests on the that argument regards But firearms. testimony such amounted “other and may evidence is received be that by you only upon crimes” evidence should have been as it considered bears challenges 5. guns Agent Matthews also the chain of cus- that were stored until Gil tody connecting guns allegedly re- Davis Agent Gil retrieved them. testified that he guns ceived from Matthews to the admitted guns, placed tags placed evidence challenge into evidence in his trial. The Mat- envelope, transported them in an and them amounts to a thews advances theoretical one: Fingerprint back to ATF field office. Ex- identify Davis Matthews notes that cannot Klasey aminer performed testified he number, guns by explains serial and guns, explained tests on he could can, course, tags "[e]vidence become disen- identify signature because his the evidence gaged object from an and be removed Furthermore, tags. was on evidence object to another transferred or otherwise guns were admitted into without ob- any modified.” Matthews does not forward jection. Finding of a no evidence defеct in trial, things happened. evidence that these At case, custody reject in this chain recognized guns Davis testified that he challenge point. on this delivered, explained those Matthews he motive, Indeed, opportunity, in- deal. main purpose the defendant’s of this tent, preparation, plan knowledge or or appears evidence to have portray been to you And I wanted absence of mistake. Matthews as an individual who deals in point. understand that at this goods that are presumably stolen. We find, therefore, that the Government was (1) appeal, argues the defense On under an obligation to notify Matthews of judge testimony because the treated Davis’ its intent evidence, to introduce such pur- 404(b) material, the Government should parties’ joint suant to the discovery state- placed the defense on as to notice its However, ment. the district failure court’s pursuant Discovery content to the Joint to strike the material (2) on the basis of the case; Statement that it was Government’s notice eiror does not judge abuse discretion to fail plain amount Supreme error. The finding to make a record under Federal Court has stated that in qualify order to probative Rule Evidence 408 “[tjhere error, plain must anbe ‘error’ that testimony outweighed value of this ‘plain’ and that prejudicial impact. ‘affect[s] substantial ” Olano, rights.’ United States v. 507 U.S. generally This court has conclud 725, 732, 113 S.Ct. 123 L.Ed.2d 508 ed that “other act” evidence need meet (1993) (internal omitted). citations In ad- 404(b) requirements of Rule when it is dition, appeals] [of “the court should not “inextricably intertwined” with the evi exercise discretion correct [its] [to the er- concerning dence the crime with which the “‘seriously unless the error ror] affeet[s] United States v. charged. defendant was fairness, integrity public reputation Soliman, (9th Cir.1987) ’” (internal Id. judicial proceedings.” (internal omitted). quotations and citations omitted). case, In citations this error clarify, explained To this court has “plain,” testimony was not since the could categories there are two of cases which plausibly have been viewed as “inextrica- “other acts” evidence will be treated as too bly intertwined” with charged оffense closely charged related to the crime to and the error did not ‍​‌​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌​‌​‌​‌‌​‌‌‌​‌​​‌‌​‍affect the substantial 404(b) First, require treatment. the court Indeed, rights of the defendant. the de- has “allowed evidence to be admitted be acquitted weap- fendant was on the stolen part cause it constitutes a of the transac counts, indicating likely ons that the most tion that serves as crimi the basis for the prejudicial effect of the evidence—that the nal charge.” United States v. Vizcarra- jury would conclude all of the items within Martinez, possession were stolen—had 1995). Second, the court has allowed such minimal impact. Finally, possible “when it necessary was to do so prejudicial impact of the statement was permit prosecutor order to to offer a sponte lessened the district court’s sua comprehensible story regard coherent and limiting instruction regarding the testimo- ing the commission of the crime.” See id. ny. case, at 1012-13. the Government

argues that Davis testified to the items in Prejudicial Impact way explaining Matthews’s room as a Multiplicitous C. Indictment the “transactiоn” for which Matthews was firearms, charged: possession pos argues that his trial explained session of stolen firearms. He multiplicitous before the counts what he saw in the room a as means set prejudiced him and fun rendered his trial the scene for the firearms deal. damentally unfair. Whether an indictment unpersuaded by analy multiplicitous question We are is a of law re sis. Davis United States McKit catalogued need not have all of viewed de novo. trick, present Cir.1998), the items Matthews’s room in denied, cert. weapons order to discuss the details of the U.S. S.Ct. concerning guns, of a dence all three matter The denial L.Ed.2d 667 charge packaged for a new trial is re- how motion defendant’s an abuse of discretion. United indictment. viewed for (9th Peterson, 819, 140 F.3d 821 States v.

Cir.1998). D. Misconduct Prosecutorial pre-trial motion made a oral

Matthews objects appeal, On Matthews to of two of the three seeking dismissal made commentary by three the areas firearms, or felony possession counts for closing during argument. Government three, all of those of all since consolidation provoked objec an None the comments same the occurrence. counts concerned at trial. by tion counsel defense When motion denied the and allowed court objection there is no to comments made all possession the to consider three jury plain during the closing arguments, error jury After the found Matthews counts. standard v. applies. See States counts, possession all three Mat- guilty of (9th 816, Leon-Reyes, 821 objection charg- his thews renewed 1999); Cooper, United States instrument, objecting ing that the three 1192, denied, Cir.), 1203 cert. 528 U.S. separate negative had a counts “created 1019, 526, 145 L.Ed.2d 408 S.Ct. the psychological jury. effect” on The dis- motion, trict denied this but dis- argues Matthews first that the multiplici- two and three missed counts vouched improperly Government for a wit Therefore, sentencing. tous the before testify. ness who not to Responding did only presented appeal, is question the in its closing defense’s observation ar multiplicitous whether the dismissal n gument had that the Government failed to trial but counts after before call the were allegedly individuals who remedy. adequаte Davis’ Matthews home and met when he “ danger by multiplic- chief raised ‘The January delivered the firearms on possibility itous indictment is the that the 1998,the Government said: more defendant will receive than one sen ” Why Mr. didn’t we call Brenske [sic]? offense.’ United single tence for Maybe my that’s fault. We could have (5th Cir.1991) Galvan, stand, called could put him to the have (internal omitted). By dismissing citations up him he would there and have said two sentencing, of the three counts before probably thing same that Mr. Davis the court ensured that district point. said. It’s redundant at You did face more than one sentence have tapes this. corroborate possession felony convictions. While theoretically new might trial be available The conceded that argu- Government in remedy circumstances like these— ment Both “clearly improper.” parties is jury multiplicitous “prosecuto- where the considered are held that correct: we have indictment but the defendant rial consists of vouching, sug- was sen which ... gesting presented under one of convictions— that information not tenced rejected such a remedy supports testimony, where the witnesses’ [Gjovernment Molina, improper.” “the would have introduced is evidence indict exactly same had the More- over, only one especially problematic ment contained count” of the “[vjouching is Nash, credibility charged offense. United States v. cases where the wit- Cir.1997), crucial,” cert. nesses such as Id. case. denied, However, light 522 U.S. S.Ct. of the extensive evidence (1998). This easily guilt, L.Ed.2d 117 case is concerning including rule, possession eyewitness testimony resolved under the Nash since the Davis, presented supplied Government would have evi- the circumstantial evidence Gil, “[t]hey’re get as well as the circumstantial by Agent trying away, they so gotta they’re included hide what doing, they gotta all hide prejudice. facts, facts, find no tapes, we cloud the all up throw dirt, squirt kinds of the ink.” It unclear Next, Matthews argues commentary whether this refers to defense improperly attorney the Government counsel, asserts, as Matthews credibility finger vouched for argument, defense as the in Government creden print expert emphasizing the Examining sists. a casе in which pros expert him as (referring tials of the “stupid” ecutor used words such as living”) who does this for a and guy “this “trash,” court held that lawyer this “[a] personal his infor inserting reaction to the entitled an argument to characterize jury—that finger to the presented mation epithet as well as a rebuttal.” 10 to 11 print evidence is recoverable Borg, 737, Williams v. (“the the time I heard percent of first time (9th Cir.), denied, 937, cert. 525 119 U.S. shocked”). that it that was We conclude S.Ct. 142 L.Ed.2d 292 The improper finger was not to refer to the panel same concluded prose also that the print guy examiner as “this who does this cution improperly by attacking had acted evidence, living.” This fact for a was counsel, defense but found no reversible government properly and the could refer error the evidence because con supporting closing. to it in See v. Fred overwhelming. viction Cir.1996). was Id. erick, prosecutor’s The comment that he was case, In this Government walked— problematic. gov is more The “shocked” may overstepped—the and line regard had introduced insinuating try- that defense counsel was ing fingerprints being the incidence of lift ing to hide the truth. Since did Matthews gun, improper ed from a and it was trial, object not this commentary to at prosecutor express to his reaction however, must examine whether the front of jury. evidence in See impact had an statements Kerr, States v. rights. substantial The made statements (“A Cir.1992) prosecutor has no business unworthy representa- this case are of a telling impressions his individual tive government, of our but under all the evidence.”). clear, It is howev less case, they of this not circumstances are er, this comment whether amounted plain error. placing prestige the examiner’s consti testimony, behind E. Evaluation Prior Convictions for examin personal tuted assurance of the Enhancement Sentence veracity. See United v. Rob er’s Investigative The Presentence Re erts, port that sen recommended Matthews be event, any against because the evidence tenced as an Armed Career Criminal substantial, very prose Matthews (“ACC”) pursuant to U.S.S.G. section compel cutor’s statement would not rever 4B1.4(b)(3)(B), implements which the ACC standаrd, plain if sal error even under 924(e). statute, § 18 U.S.C. See U.S.S.G. we considered the statement be vouch 4B1.4(b)(3)(B) § accompanying com error, any, if Mat ing. The did not affect mentary. previous with three Defendants Olano, rights. thews’s substantial See felony “a violent convictions for or a seri 732, 113 at S.Ct. 1770. U.S. drug qualify significant ous offense”

Finally, argues guideline. Matthews that the under enhancement 924(e); prosecution improperly the de disparaged U.S.C. U.S.S.G. 4B1.4(b)(3)(B). in by characterizing argu fense the defense The district court’s ink,” “[o]ctopus squirting terpretation Sentencing ment as an Guidelines’ somewhat re- asserting, ambiguously, ACC enhancement is a matter of law burglary v. of as articulated the Court. See United States viewed de novo. (9th Cir.1998), 598-99, 110 1026, 1031 See id. at S.Ct. 2143. Phillips denied, 119 S.Ct. cert. 526 U.S. district out-of-hand re judge (1999).6 143 L.Ed.2d Mat jected argument defense objected writing to did prior burglary convictions for thews’s for bur- ‍​‌​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌​‌​‌​‌‌​‌‌‌​‌​​‌‌​‍use of convictions PSI’s his enhancement, the ACC re qualify burglary as attempted qualifying glary written re lying on the Government’s Career under the Armed Criminal offenses the PSI sponse objections to the defense again counsel raised this statute. Defense ad Departmеnt and on the of Probation’s sentencing hearing, by objection provides dendum to the PSI. The PSI stating “the defense would contend descriptions fel narrative copies certified you would have to have onies, responds and the addendum judgments of conviction. I believe these objections cursory manner. defense copies not have certified this Court does are the conviction or Nowhere statutes of these documents.” copies judgment of the included record, is no that the and there clearly court While the district re undertook an of district court evaluation objection to jected Matthews’s the use of the required statutes of conviction as enhancement, prior his offenses for ACC Taylor. The court the defen overruled ruling is the basis for the court’s not clear objections dant’s to the reliance on the PSI sentencing, the At the from record. Gov alone, stating: urged the district court to find ambig- the don’t think statute [ACC] burglary that convictions Matthews’s guideline provisions. the uous nor are passed Taylor the test out v. set they are burglaries, The convictions States, 575, 599, 110 495 U.S. S.Ct. do as violent under the qualify felonies (1990).7 In Taylor, 109 L.Ed.2d 607 the provided.... definitions Supreme Court held that when convictions So, presen- I’m going sustain the predicate burglary are used as felonies report analysis. tence investigation felony” the of 18 under “violent clause objections Overrule the as to the armed 924(e), sentencing § court must U.S.C. to the career status characterized as burglaries determine those had whether defendant.... unprivi the “basic elements of unlawful or into, in, remaining no leged entry or a build Since there were conviction records or structure, intent to ing or a commit a of conviction district statutes before the court, Taylor, crime.” 495 U.S. S.Ct. the basis court’s statement words, labeling 2143. In other the mere of that convictions felo- “qualify as violent a crime as a is not a nies is un- burglary enough; provided” under definitions judgment supported. of the con does cita- review statute Nor the PSI include must tion specific viction be undertaken the sen statutes of conviction. Instead, tencing burglaries prior court to ensure that the felo- “qualifying understood commonly ny” using meet thе definition are summarized facts convictions urges transcript sentencing hearing 6. The Government us review this 7. The standard, plain arguing under error issue attorney saying records the Government that the issue of that Matthews waived whether his qualifies burglary predicate conviction as a qualified crimes for ACC enhancement 924(e) long offense under 18 U.S.C. "[a]s chose, appeal, he when frame the issue Supreme it meets the definition set out in the sufficiency as one of While evidence. highly tailored decision Court's ...” It seems analysis differs we use here somewhat likely erro- from the context that this was an counsel, analyt- from such that defense argu- transcription neous of the Government’s ical difference does not mean that Matthews Taylor relying on ment decision. appeal. waived the issue on unspecified from “court documents” and what it for failing has excuse do See, “police first e.g., records.” time around. United States Leonzo, (D.C.Cir. previously that We held 1995) (“The government had the burdens challenged when an enhancement is on the production persuasion, see prеvious that are basis convictions why no reason it get should a second bite offenses, qualifying the court exam must at the apple. special No circumstances ine the statutes conviction or certified justified, or even explained, govern copies imposing of conviction before burdens.”); ment’s failure to sustain these Potter, enhancement. See United States v. Parker, 553- (9th Cir.1990) (insist (4th Cir.1994) (“[T]he prosecution has ing that examine the already given been full oppor one and fair statutes under which the defendant was tunity proof to offer whatever about Ton- purposes determining convicted for Park Having sler it could assemble. failed what as a qualifying felony); counts Phil to seize opportunity, the Government lips, F.3d at (holding at resentencing should not be allowed to Government had satisfied its burden of introduce additional prove evidence to proving preponderance aby of the evi Tonsler Park contained a playground. dence that the defendant had committed apple One bite at the enough.”); three offenses under 18 U.S.C. Dickler, (3d 924(e) it when unchal “submitted] Cir.1995) (аgreeing that when prosecu lenged, certified records conviction and tion persuasion fails to meets its burden of evidence.”). clearly Here, other reliable production, or “its should ordinarily case the district court could not undertake a have to or stand fall on the record it makes proper evaluation prior of Matthews’s bur the allowing first time around” but glary convictions it did since not have be exception government because the “ten fore it prior records of the convictions persuasive dered a why reason fairness so the under statutes which the convic Monroe, requires”); v. United States imposed. tions were such circum Here, F.2d the stances, imposition the of ACC enhance does government not deserve a second bite ment is an error of law.8 apple. patent the of The defendant made e W therefore hold that the clear ly gov to the district court and the in government this case failed to meet its precedents require. ernment what our proving qualifies burden of that Matthews The government did not seek to the cure anas career armed criminal. Because the proof. gov deficiencies in its To allow the government comply failed long- to with our reopen proceedings ernment to this precedents, scope established we limit the stage would be to court waste resources. the resentencing district court’s authori obliged Parties before district courts are ty on government remand. The should prepare to their in a man thorough cases have been aware of it required what was to ner. a party’s victory When initial is re burden, Potter, introduce to meet its see by appellate versed the court because the 1238; Phillips, 895 F.2d at 149 F.3d at to party obligation, failed meet this we are 1033, and it patently comply failed to with obliged bring to to an end the wasteful Therefore, requirement. a critical we process. reverse and re We therefore agree many with of our sister that resentencing circuits mand for the record as it on party should not be to do able on remand now stands.9 See United States v. Hud- imposition separation 8. we pow- Because rеverse the of the ACCwas a violation ACC ers. enhancement on the basis of district the law, court’s need error we not reach Mat- argument thews's complains that the district court’s reli- 9. The dissent that this defendant “sentencing just ance on the PSI to enhance his sentence as an has received windfall” be- developing the rec further Cir.1997). from court (8th trial We 994, 995 son, F.3d simply no is There appropriate. as ord the where in all cases suggest not do from our deviating for case in this reason the court failed has proof government’s district allowing the practice” “general reopening without always resentence must pro appropriate further to conduct court gov the where cases In those the record. resen- purposes on remand ceedings reason persuasive demonstrates Washington, States v. tencing. United has court this requires, so why fairness Cir.1999); (9th see 1116, 1118 to government permit to discretion Parrilla, F.3d also remand; omitted introduce (“On remand, Cir.1997) (9th 124, 128 unclear, re may is record where pro further conduct should court district court the district instructions mand it to enable necessary may be as ceedings supplement permit resolve findings appropriate to make requisite makes if it the record ”); States dispute.... factual court. district in the showing persuasive F.2d Hedberg, Here, howev Dickler, at 832. See sentencing 1990) for de novo (remanding ad abundantly clear er, record proceedings). government. verse by the cited opinion Circuit Eighth conviction, RE- AFFIRM We Hudson, 129 majority, United and REMAND. resentencing, VERSE cryptic Cir.1997), rather high- justifying helpful very O’SCANNLAIN, Judge, Circuit sup- Hudson court step. The ly unusual part: dissenting part and concurring in claiming record closing of the its ported governing affirmance court’s stated clearly I concur “we respect- disputed conviction, how I must but when and as to principles Id. at disposition be proved.” must from facts dissent fully cases as- Even Fourth Circuit case. The D.C. sentencing issue 995. stat- involve did not majority erred the district cited suming provision. the ACC complex Criminal Armed Career utes applying by failures Instead, involved cases those 18 U.S.C. (“ACC”) of enhancement specified facts to establish prosecution drastic the 924(e),1 concur I cannot statutes, there where relevant by resentencing on remanding for step of require- to the statutes’ as uncertainty i.e., barring the stands, it now record offense”). impli prior This of definition its bur- to meet failed cause recognition past by our precluded past convic- cation defendant’s proving of den cate of Taylor’s sense "refinement only in the a ‘'windfall” that under It is tions. might categorical similarly defendant "modified approach” situated gorical another prosecutor who may and look be probation officer court face approach,” a investigation in the first proper undertake of conviction fact yond the statute proof. of burden meet the instance v. Par appropriate cases. See 1322, (9th 1993). ker, Cir. F.3d court erred assuming the district Even 1. courts Indeed, provide district cases our enhancement, majority’s applying the in analysis beyond the to look significant latitude and incon- is overbroad issue of this of convic statute fact of conviction mere precedents. prior with our sistent 924(e) qualifying evaluating tion when the district need emрhasizing the In (the only burglary convictions prior status conviction, the statute to review the case). See issue in types of convictions requires Taylor implies majority opinion Bonat, 1476- v. States United evaluating approach when categorical a strict Alvarez, Cir.1997); v. (9th States burglary is a conviction whether a Cir.1992); ite F.2d 1005-07 States, Un Taylor v. United See conviction. U.S. O’Neal, 1373-74 F.2d d States 575, 602, 109 L.Ed.2d 110 S.Ct. Sweeten, 933 1991); (1990) (describing “categorical” to look 768-72 "requires trial court F.2d approach that statutory and the only to the conviction fact In Leonzo, ments. United States v. defendants, inal in which one side or the 1086, 1088(D.C.Cir.1995), the govern other gets penalized for unskillful play. ment did not introduce relevant evidence goal The of sentencing is to determine the by loss caused the defendant’s bank most appropriate sentence in light of the fraud. Parker, United States v. 30 characteristics of the crime and the defen- (4th Cir.1994), gov dant. If an “armed career ernment sought to enhance the defendant’s criminal” under (and the ACC statute by sentence charging him with distribution record is), makes clear that he then he drugs within 1000 feet of playgrоund, should be sentenced as one. Because I but prove failed to that the property met agree cannot to bestowing a sentencing the statute’s definition of “playground.” upon windfall a defendant with a long and extensive majority case, history committing violent having over- crimes, simplified especially when greatly, matters may regard equally culpable but less principles fortunate governing application defendants have been subjected ACC to the enhancement, as “clearly enhancement by stated” must re- law, spectfully case dissent. but more examina- careful tion of the issue princi- discloses that these

ples quite complex, are spawned

great litigation deal of courts, in the lower

and are far from “clearly stated.” Accord- ingly, I see no punish reason to the gov- prohibiting it from completing

its showing on remand to establish the

applicability of the ACC enhancement with greater

even certainty. In re: BETACOM OF PHOENIX, INC., Debtor. The majority’s new exception to its new rule provide will little guidance to future Broadcasting American Systems, Inc., a panels, and little comfort to those of us Delaware Corporation; Beta Commu who seek predictability and consistency in nications, Inc., an Corpora Arizona sentencing. This case approach case tion; Phoenix, Betacom of Inc., an goals contradicts the of both the ACC Corporation, Arizona Plaintiffs-Appellants, enhancement and the Sentencing Guide lines: The ACC enhancement was enacted provide order to mandatory minimum sentences armed career criminals. See Nugent; F. Patrick Nugent, Anita

Sweeten, 933 F.2d at 770. The Sentencing Defendants-Appellees. Guidelines were large part established in to reduce unwarranted sentencing dispari In re: Phoenix, Betacom of ties. See United States Banuelos-Rod Inc. Debtor. riguez, Cir.2000) (en bane). In allowing Matthews to escape American Broadcasting Systems, Inc., a imposition of the ACC enhancement sim Corporation; Delaware Beta Commu ply (from because of ‍​‌​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌​‌​‌​‌‌​‌‌‌​‌​​‌‌​‍fortuity Mat nications, Inc., an Corpora Arizona thews’s perspective) probation that his offi tion; Phoenix, Inc., Betacom of cer prepared PSR, less-than-complete Arizona Corporation, Plaintiffs-Appellees, the majority congressional flouts intent respect to both the enhance ACC ment Sentencing Guidelines. process of criminal sentencing is Nugent; F. Patrick Nugent, Anita

a game between and erim- Defendants-Appellants.

Case Details

Case Name: United States v. James Earl Matthews

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 21, 2001

Citation: 240 F.3d 806

Docket Number: 98-10499

Court Abbreviation: 9th Cir.