UNITED STATES OF AMERICA v. JACKIE GENE NASH, JR.
No. 04-6288
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
April 9, 2007
PUBLISH
Vickie Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.
Mary M. Smith, Assistant United States Attorney (John C. Richter, United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant Jackie Nash was convicted, following a jury trial, of two drug trafficking offenses and a related firearm offense. Nash was sentenced on those convictions to a lengthy term of imprisonment. Nash now appeals his convictions and
I.
Factual background
In 2002, an Oklahoma City, Oklahoma, resident named Arlondo Jones was charged in federal court with possession with intent to distribute cocaine. Jones operated a business in Oklahoma City named Audio Connections that specialized in selling and installing car audio, video, and alarm systems. Through that business, Jones also functioned as a drug-trafficking “middleman,” connecting persons seeking drugs with drug sources. It was as a result of those activities that Jones was criminally charged. Jones and the government ultimately resolved the case by Jones agreeing to cooperate by providing information to the government on local drug traffickers, and the government in turn agreeing to dismiss the federal charges against Jones.
In May of 2003, as part of his agreement to cooperate, Jones contacted Angelo Orefice, a special agent with the United States Drug Enforcement Agency (DEA), and informed Orefice that he had been approached at his business by Nash, who went by the nickname of J.K., and Timothy Kinchion, who went by the nickname of Touche. According to Jones, he had engaged in approximately ten to fifteen previous cocaine deals with Kinchion involving quantities from a fourth of a kilogram to a whole kilogram. Jones informed Orefice that Kinchion, who had just been released from prison and owed money to both Jones and a drug dealer as a result of a past cocaine deal, expressed an
Following his initial meeting with Nash and Kinchion, Jones continued to communicate with both men. In particular, Nash and Kinchion utilized Nash‘s cell phone to speak on numerous occasions with Jones, with Nash typically calling Jones in the morning and Kinchion typically calling Jones in the evening. On May 30, 2003, Nash informed Jones that he had changed his cell phone number and that Kinchion could also be reached at the new number.
On June 5, 2003, Nash and Kinchion arrived together at Jones’ place of business in a silver Grand Am, with Nash driving and Kinchion in the passenger seat. Nash remained in the car, while Kinchion got out and spoke with Jones about obtaining either a half or a whole kilogram of cocaine. Kinchion indicated he intended to “break [the cocaine] down” and “rock it up” into small portions. Kinchion ROA, Vol. 2 at 140.1 Jones, relying on his familiarity with street prices for cocaine, quoted Kinchion a price of $25,000 for a kilogram of cocaine.
Following this meeting, the DEA arranged for Jones to engage in a “reverse sting” with Nash and Kinchion, whereby the government would provide the cocaine to Jones
At approximately 2 p.m. that same afternoon, Nash and Kinchion returned to Jones’ business in the silver Grand Am. Nash remained in the car and Kinchion went inside and met briefly with Jones. During the meeting, Jones informed Kinchion that the source of the cocaine would “come up and take a look at the vehicles” and determine whether they would be sufficient collateral. Id. at 161. At the conclusion of the meeting, Jones gave Kinchion an empty cordless telephone box to carry out with him so that he would not look suspicious to Jones’ employees or customers. Kinchion returned to the silver Grand Am and left Jones’ business with Nash.
Shortly before 4:30 p.m. that afternoon, Agent Orefice met with Jones outside of the business and gave Jones a kilogram of cocaine wrapped in a brown paper bag, a small audio recording device, and an empty cordless telephone box. Jones called Nash‘s cell phone number and informed the person who answered that the cocaine had arrived. Nash and Kinchion returned to Jones’ business in the silver Grand Am shortly before 5 p.m. Nash remained in the vehicle while Kinchion went inside, carrying the empty telephone box he had been given earlier. Jones and Kinchion spoke briefly, and then Kinchion left
As Nash and Kinchion left Jones’ business in the Grand Am, two Oklahoma City police officers in marked cars pulled in behind them, watching for any traffic violations. Not far from Jones’ business, Nash made an illegal right turn. Accordingly, one of the police officers turned on his emergency lights and attempted to stop Nash and Kinchion as they entered Interstate 44. Although Nash pulled the Grand Am over briefly to the side of the highway, he sped off again before the police officer could approach the Grand Am. A thirty-eight minute, high-speed chase in and around Oklahoma City ensued. During the course of the chase, law enforcement officers observed Kinchion throwing various items, including chunks of the cocaine, out of the passenger-side window. Nash and Kinchion were eventually stopped and arrested. In the center console of the Grand Am, law enforcement authorities recovered a loaded, operable handgun. Subsequent investigation revealed that the handgun was registered to Nash and that the Grand Am had been rented by Nash.
Procedural background
On July 2, 2003, a federal grand jury returned a three-count indictment against Nash and Kinchion. Count 1 of the indictment charged Nash and Kinchion with
On August 27, 2004, the district court sentenced Nash to a term of imprisonment of 292 months, a term at the bottom of the guideline range. The district court also, however, announced an alternative sentence, stating that if the guidelines were found to be unconstitutional, it would, in its discretion, impose a lower sentence of 180 months.
II.
Denial of motion for continuance and motion for mistrial
Approximately two weeks prior to trial, the government sought and was granted permission by the district court to file under seal a document entitled “Ex Parte Disclosure of Certain Material for the Court‘s Inspection In Camera,” and a related pleading entitled “Memorandum Brief on Government Disclosure Obligation.” Kinchion
On October 10, 2003, the district court issued a written order “declin[ing] to make a specific finding as to whether the documents should be produced to” Nash and Kinchion. Id., Doc. 117 at 3. In doing so, the district court expressed concerns about (a) the fact that the United States Attorney‘s Office for the Western District of Oklahoma did not receive the Deciding Official‘s memorandum until more than two months after it was authored, even though Williams was working with that office and the DEA on several matters, (b) the fact that the government failed to provide to the district court the Deciding Official‘s underlying investigative report, and (c) the government‘s failure to file its ex parte pleadings in a more timely fashion, particularly in light of the defendants’ requests for discovery and the upcoming trial date.
On October 15, 2003, one day after the jury was selected and sworn, but five days prior to the start of the evidentiary portion of trial, the government obtained from the district court a protective order encompassing the Deciding Official‘s July 9, 2003 memorandum, and the Acting Assistant Administrator‘s October 3, 2003 memorandum purportedly rescinding the Deciding Official‘s memorandum. That order provided, in pertinent part, that the memoranda were “not to be disseminated beyond the defense itself” and that no copies thereof could be made by the defense. Id., Doc. 138. The following day, October 16, 2003, the government provided defense counsel with copies of the memoranda. Kinchion immediately filed a motion for continuance of the evidentiary portion of the trial, which was joined by Nash, arguing that the disclosed
On October 20, 2003, the first day of the evidentiary portion of trial, Nash and Kinchion filed a joint motion for mistrial. Id., Doc. 150. They argued that, “due to the lateness of the [government‘s] provision of materials [regarding Detective Williams],” and “the [district court‘s] declination of [their] request for a continuance,” they were “at a
In its response in opposition to the motion for mistrial, the government noted that the OCPD had reviewed the investigative file and tentatively concluded that the file did “not support the allegation lodged [against Williams] by [the Deciding Official].” Id., Doc. 152, Exh. B. The government further noted, however, that, “[d]ue to the seriousness of the allegation,” the OCPD‘s “Office of Professional Standards” was “conduct[ing] an independent investigation into th[e] matter.” Id. Apparently, that investigation had not been completed as of the time of trial. As for the remaining assertions in support of the motion for mistrial, the government noted, in pertinent part, that defense counsel would be “free to cross-examine the Government‘s other witnesses [at trial] to elicit information bearing on their credibility.” Id. at 5.
On October 23, 2003 (the last day of trial), the district court issued an order
a) Denial of motion for continuance
Nash contends on appeal that the district court erred in denying the joint motion for continuance. We review for abuse of discretion a district court‘s denial of a motion for continuance of trial. United States v. Dowlin, 408 F.3d 647, 663 (10th Cir. 2005). Under that standard, “we will find error only if the district court‘s decision was arbitrary or unreasonable and materially prejudiced the defendant.” Id. (internal quotation marks omitted). “In determining whether a district court arbitrarily or unreasonably denied a motion for continuance,” we examine the following factors: “(1) the diligence of the party requesting the continuance; (2) the likelihood that the continuance, if granted, would accomplish the purpose underlying the party‘s expressed need for the continuance; (3) the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; [and] (4) the need asserted for the continuance and the harm that appellant might suffer as a result of the district court‘s denial of the continuance.” Id.
Applying those factors here, we conclude that the district court‘s decision was not arbitrary or unreasonable. To be sure, Nash acted diligently in filing the motion for continuance. It is unclear, however, whether the continuance, if granted, would have
b) Denial of motion for mistrial
Nash also contends the district court erred in denying the motion for mistrial. “A trial court may appropriately grant a motion for mistrial only when a defendant‘s right to a fair and impartial trial has been impaired . . . .” United States v. Cavely, 318 F.3d 987, 997 (10th Cir. 2003) (internal quotation marks omitted). “We review a district court‘s refusal to grant a motion for mistrial for abuse of discretion.” United States v. Stiger, 413 F.3d 1185 (10th Cir. 2005) (internal quotation marks omitted). “In reviewing a court‘s determination for abuse of discretion, we will not disturb the determination absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment.” Id. (internal quotation marks omitted).
A review of the record on appeal indicates that Nash‘s right to a fair and impartial trial was not impaired by the district court‘s limitations on his ability to engage in discovery regarding, or to present evidence at trial of, Detective Williams’ alleged misconduct or the investigation thereof by the DEA or the OCPD. Although Nash suggests on appeal that such evidence would have bolstered his defense that he was “set up” by law enforcement authorities, the evidence at trial wholly refutes that suggestion. During the government‘s case-in-chief, both Nash and Kinchion were able to extensively question prosecution witnesses regarding the cocaine transaction at issue, as well as Detective Williams’ role in setting up the reverse sting operation. Nothing in that solicited testimony suggested any wrongdoing on the part of Williams, nor did it remotely suggest that Nash was the victim of a “set up.”6 To the contrary, the evidence of his
Bruton error
Nash contends the district court violated the rule announced in Bruton v. United States, 391 U.S. 123 (1968), by admitting into evidence testimony from three witnesses regarding post-arrest statements made to them by Kinchion. In Bruton, the Supreme Court held that the admission of a nontestifying codefendant‘s confession implicating the defendant at their joint trial violates the defendant‘s Sixth Amendment Confrontation Clause rights. 391 U.S. at 137; see also United States v. Sarracino, 340 F.3d 1148, 1159-60 (10th Cir. 2003). We have since emphasized, however, that the rule announced in Bruton is a limited one. Specifically, ”Bruton applies only in those few contexts where the statement is so inculpatory as to the defendant that the ‘practical and human limitations of the jury system cannot be ignored.‘” United States v. Rahseparian, 231 F.3d 1267, 1277 (10th Cir. 2000) (quoting Bruton, 391 U.S. at 135). In other words, the Bruton rule does not apply to “statements that are not directly inculpatory but only inferentially incriminating.” Id. at 1277; see Gray v. Maryland, 523 U.S. 185, 195 (1998)
Nash asserts that the challenged statements at issue are facially incriminatory and therefore violate Bruton. The disputed statements are as follows: First, Jay Chandler Flott, a convicted bank robber who spoke with Kinchion while at the county jail, testified that Kinchion said “his partner was driving” when they left the buy and that, as the police initiated the stop, “he had told his partner to, ‘Let‘s get the hell out of here, man. You know what we got.‘” Kinchion ROA, Vol. 3 at 365. Second, Dirk Terry, a convicted money launderer who also conversed with Kinchion at the county jail, testified that Kinchion “confirmed with his driver, the driver, that they were heavily strapped, meant that they were armed and dangerous.” Id., Vol. 4 at 572. Third, Terry also testified that Kinchion had said to the driver as the police approached the vehicle, “‘We‘re going to end up doing life.‘” Id. at 574. Fourth, Aaron Reed, a convicted cocaine trafficker who spoke with both Nash and Kinchion at the county jail, testified that Kinchion “[t]old his co-defendant, Mr. Nash, not to worry, because, he said, ‘If something goes wrong, I‘ll take the blame. I‘ll take the case.‘” Id., Vol. 3 at 402.
The mere finding of a Bruton violation, however, “does not automatically require reversal of the ensuing criminal conviction.” Schneble v. Florida, 405 U.S. 427, 430 (1972). Reversal is unnecessary if “we can conclude beyond a reasonable doubt that the constitutional error was harmless.” Sarracino, 340 F.3d at 1160. The test for determining whether the error was harmless is “whether the jury would have returned the same verdict absent the error.” Washington v. Recuenco, 126 S.Ct. 2546, 2552 (2006). In applying this standard, we review the record de novo, and our judgment is informed by the context
After carefully examining the trial transcript, we are convinced that the Bruton error was harmless. Although the Bruton statements were no doubt incriminatory, the properly admitted evidence of Nash‘s participation in the offenses of conviction was “so overwhelming, and the prejudicial effect of the” Bruton statements “so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the” Bruton statements “was harmless error.” Schneble, 405 U.S. at 430. Among the key pieces of properly admitted evidence establishing Nash‘s guilt beyond a reasonable doubt were the following: (1) Nash and Kinchion contacted Jones in May of 2003 about the possibility of purchasing a kilogram of cocaine from him; (2) Nash provided Jones with his cell phone number in order to facilitate the ensuing discussions; (3) both Nash and Kinchion utilized Nash‘s cell phone to speak on numerous occasions with Jones about the cocaine transaction; (4) after changing his cell phone number in late May 2003, Nash immediately notified Jones of this change and advised that Kinchion could continue to be reached at the new cell phone number; (5) Nash and Kinchion visited Jones’ shop together on several occasions in connection with the transaction; (6) at least one of the five vehicles used as collateral for the transaction was registered jointly to Nash and
Booker error
Finally, Nash challenges his sentence based upon the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220 (2005). In Booker, the Court held that the 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 must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543 U.S. at 244. To remedy the potential for Sixth Amendment violations by a sentencing court‘s application of the Guidelines, the Court severed and excised
Nash alleges, and we agree, that the district court committed constitutional Booker error by enhancing his sentence mandatorily on the basis of judicially-found facts. In calculating Nash‘s base offense level, the district court utilized the drug quantity table set forth in
Because Nash asserted a timely challenge to the district court‘s enhancements, he sufficiently preserved his claims of error under Booker. United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005) (concluding that a Blakely objection sufficiently preserves a claim of error under Booker). Accordingly, we review for harmless error the constitutional Booker errors committed by the district court. Id. Under the harmless error standard outlined in
An analysis of these two factors clearly leads to the conclusion that the constitutional Booker error was not harmless. Although the evidence supporting the district court‘s factual findings was extremely strong, if not overwhelming, the fact remains that the district court announced alternative sentences for Nash and, in doing so, expressly stated on the record that, if the Sentencing Guidelines were held to be unconstitutional, it would impose a substantially lower sentence on Nash. Indeed, the government, acknowledging these statements by the district court, concedes the constitutional Booker error was not harmless.
For the foregoing reasons, we AFFIRM Nash‘s convictions, but REMAND with directions to VACATE Nash‘s sentence and resentence him.
McKAY, J., Circuit Judge, dissenting.
Nearly three decades of observing and participating in the application of the so-called harmless error analysis persuades me that the courts of appeals, by reciting the Bruton standard but justifying its breach in the name of harmlessness, increasingly are eroding the important constitutional protection afforded by the Bruton barrier. Incessantly reminding the prosecution and the trial courts of their duty to prevent Bruton error on the one hand, while excusing its violation on the other hand, builds an ever-increasing floor under this unlawful practice rather than placing a ceiling upon it.
The circumstances of this appeal demand a stronger expression of our commitment to Bruton. Here, the Bruton error results directly from the district court‘s failure to hold the prosecution to its representation that it would not introduce any statements implicating Bruton. The consequence of that failure—the admission of numerous reinforcing prejudicial statements—goes beyond harmless.
True, Bruton recognized that “‘[a] defendant is entitled to a fair trial but not a perfect one.‘” Bruton v. United States, 391 U.S. 123, 135 (1968) (quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)). We no longer adhere to the “time in the law, extending into our own century, when no error was lightly forgiven.” Roger J. Traynor, The Riddle of Harmless Error 3 (1970) (“In that somber age of technicality the slightest error in a trial could spoil the judgment.“). Accordingly, the harmless error test permits the courts of appeals to affirm decisions despite the commission of constitutional errors.
The majority takes its formulation of the harmless error standard from Washington v. Recuenco, 126 S. Ct. 2546, 2552 (2006), a case in which the Court was not evaluating the harmlessness of the conceded error, but rather alluding to the standard that the state court should have employed. I prefer the more precise definition of the harmless error test provided in Neder v. United States, the case cited by the Recuenco Court in its discussion of harmless error: “[T]he test for determining whether a constitutional error is harmless ... is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” 527 U.S. 1, 16 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Since the test for sufficiency of the evidence to convict is “whether any rational juror” could find guilt beyond a reasonable doubt, Schlup v. Delo, 513 U.S. 298, 330 (1995) (reciting standard promulgated in Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis added), it seems appropriate that the harmless error test is best disciplined by asking the inverse: could any reasonable juror entertain a
Nevertheless, the majority does not appear to apply even the recited standard. While acknowledging that it must consider “‘the probable impact‘” of the Bruton evidence “‘on the minds of an average jury‘” based upon an analysis of “‘the context in which the Bruton statement was admitted, how it was used at trial, and how it compares to the properly admitted evidence‘” (ante at 18-19 (quoting and citing United States v. Sarracino, 340 F.3d 1148, 1160 (10th Cir. 2003)), the majority foregoes any analysis of these considerations, instead simply concluding that its laundry list of properly admitted evidence—much of it contested at trial—is sufficient to establish Defendant‘s guilt. By wholly ignoring the significance of the wrongly admitted Bruton evidence, the majority fails to address the most significant part of the standard.1 “A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, ‘become in effect a second jury to determine whether the defendant is guilty.‘” Neder, 527 U.S. at 18 (quoting Traynor, supra, at 21). Instead, we are meant to determine “what effect the error had or reasonably may be taken to have had upon the jury‘s decision,” assessed not based upon a judge‘s
As an initial matter, we should assess the importance that the seasoned prosecutors placed upon that wrongly admitted evidence when they looked ahead at what the jury would think of their case, rather than looking back after the jury had resolved the clear disputes in the evidence in their favor. When the accused was doing all he could to keep this evidence out, including moving to sever and moving in limine to preclude admission of these statements, the prosecution vigorously resisted. Indeed, despite stating that it had no intention of introducing Bruton evidence, the prosecution proceeded to introduce a host of prejudicial testimony and relied upon both that testimony and the implications contained therein during its closing argument. See Arizona v. Fulminante, 499 U.S. 279, 297-98 (1991) (noting that prosecution viewed coerced confession as essential and emphasized erroneously admitted confession in opening and closing statements); Satterwhite v. Texas, 486 U.S. 249, 260 (1988) (noting prosecutor‘s emphasis of erroneously admitted testimony in capital sentencing proceeding); see also United States v. Sarracino, 340 F.3d 1148, 1164 (10th Cir. 2003) (assessing effect of prosecution‘s repeated emphasis of improperly admitted statement). Viewing the importance of the Bruton testimony from the prosecution‘s perspective, it is apparent that the prosecution believed the Bruton evidence to be essential to its case, which strikes a stark contrast to
In assessing whether the district court‘s failure to enforce the standards of admissibility mandated by Bruton may have influenced the jury, it is essential to keep in mind that the critical admissible evidence and the inferences to be drawn therefrom were called into question by Mr. Nash‘s own sworn denial, a rarity amongst Bruton cases. While his denial would not be significant standing alone, the jury‘s implicit credibility determination against Mr. Nash becomes suspect once the trial is stripped of the improperly admitted testimony: the corroborating effect of the impermissible statements made by three government witnesses is muted. See Fulminante, 499 U.S. at 298 (observing that jury‘s assessment of improperly admitted confession “could easily have depended in large part on the presence” of other testimony); see also Neder, 527 U.S. at 18 (stating that Bruton error “infringe[s] upon the jury‘s factfinding role and affect[s] the jury‘s deliberative process in ways that are, strictly speaking, not readily calculable“). This effect is especially powerful given defense counsel‘s impeachment of these witnesses, who included three inmates—two of them friends—trading testimony for sentence reductions. See Fulminante, 499 U.S. at 300 (noting jury‘s determination might have been swayed by testifying witness‘s desire for favorable treatment). In addition, the absence of such bolstering would no doubt impact any rational juror‘s determination of the credibility of the government‘s cooperating witness, who testified to avoid drug distribution charges.
One of the most damaging pieces of admissible evidence—the claimed confession
As a result of this error, the majority places undue emphasis on the importance of a host of circumstantial evidence and disregards Mr. Nash‘s proffered explanations for the existence of this evidence. See United States v. Hill, 901 F.2d 880, 885 (10th Cir. 1990) (ruling Bruton error not harmless where much of government‘s admissible evidence was circumstantial and defendant offered explanations countering government‘s suggested inferences). The record, while not a model of clarity, reflects that Mr. Nash never discussed the drug transaction with Mr. Jones. Mr. Jones conceded as much both on direct examination and on cross-examination. Mr. Jones admitted that Mr. Nash never left his vehicle on the occasions when Mr. Nash drove Mr. Kinchion to Mr. Jones’ store. Moreover, Mr. Jones’ testimony illustrates that his calls to Mr. Nash‘s cell phone were
The majority‘s failure to address the overall effect of the Bruton evidence strips the harmlessness test of a crucial component while reducing the overwhelming evidence requirement to no more than a sufficiency-of-the-evidence examination. Because I