U.S. v. Shumway

• Decision Date: 06 May 1997
• Docket Number: Nos. 95-4201,96-4000,s. 95-4201
• Citation: 112 F.3d 1413
• Parties: 47 Fed. R. Evid. Serv. 116, 97 CJ C.A.R. 659 UNITED STATES of America, Plaintiff-Appellee, v. Earl K. SHUMWAY, Defendant-Appellant. *
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1413

112 F.3d 1413

47 Fed. R. Evid. Serv. 116, 97 CJ C.A.R. 659

UNITED STATES of America, Plaintiff-Appellee, v. Earl K. SHUMWAY, Defendant-Appellant.

Nos. 95-4201, 96-4000. ^*

United States Court of Appeals, Tenth Circuit.

May 6, 1997.

Wayne T. Dance, Assistant United States Attorney (Scott M. Matheson, United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

G. Fred Metos (Joseph C. Fratto, Jr. with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.

Before SEYMOUR, BRORBY and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Appellant, Mr. Earl K. Shumway, appeals his conviction and sentence entered in the United States District Court for the District of Utah. We affirm in part, reverse in part, and remand for resentencing.

I. BACKGROUND

On November 16, 1994, Mr. Shumway was charged in a three-count indictment alleging: 1) violation of the Archaeological Resources Protection Act, 16 U.S.C. § 470ee(a) and 18 U.S.C. § 2; 2) a related charge of damaging United States property under 18 U.S.C. § 1361 and 18 U.S.C. § 2; and 3) felon in possession of a firearm under 18 U.S.C § 922(g). Mr. Shumway pleaded guilty to all three felony counts.

On June 1, 1995, Mr. Shumway was charged in a four-count indictment. Counts one and three alleged violations of the Archaeological Resources Protection Act, 16 U.S.C. § 470ee and 18 U.S.C. § 2. Counts two and four alleged related charges of damaging United States property pursuant to 18 U.S.C. § 1361 and 18 U.S.C. § 2. After a trial, a jury convicted Mr. Shumway of all charges.

In a consolidated sentencing, the district court sentenced Mr. Shumway to seventy-eight months in prison, a three-year term of supervised release, restitution in the amount of $5,510.28, and a $350 special assessment. Mr. Shumway now appeals both his sentence and his jury conviction.

II. FACTS

Mr. Shumway's jury conviction stemmed from his unauthorized excavation of two Anasazi ² archeological sites: Dop-Ki Cave and Horse Rock Ruin. Dop-Ki Cave is located on federal lands in Canyonlands National Park, and Horse Rock Ruin, also known as Cliffdwellers' Pasture or Jack's Pasture, is located on federal lands near Allen Canyon, Manti-LaSal National Forest.

At trial, the government introduced evidence to show Mr. Shumway met a helicopter mechanic, Michael Miller, at a lounge and pool hall in Utah and developed a social relationship with him. The two eventually began discussing Mr. Shumway's experience in finding archeological artifacts and his experience in making large amounts of money selling those artifacts. Mr. Shumway asked Mr. Miller if he could find a helicopter to fly them around to find archeological artifacts.

Enticed by the prospects of money and Mr. Shumway's apparent knowledge of the subject, Mr. Miller contacted his friend, John Ruhl, a helicopter pilot. Mr. Miller told Mr. Ruhl of the plan to find and sell artifacts and asked Mr. Ruhl to pilot the helicopter to fly Mr. Miller and Mr. Shumway around to look for artifacts. Mr. Ruhl agreed. Mr. Shumway then posed as a movie scout and called Mr. Ruhl's supervisor at the helicopter company claiming he needed the helicopter to look for movie sites. Mr. Shumway arranged to have Mr. Ruhl fly to Moab, Utah, to pick up Mr. Shumway and Mr. Miller.

Once airborne, Mr. Shumway directed Mr. Ruhl to fly to a particular archaeological site southeast of Moab, but Mr. Shumway had trouble locating the site. Unable to find the particular location, the group eventually landed at Dop-Ki Cave in Canyonlands National Park. Mr. Shumway and Mr. Miller began digging in the area. While digging in the cave, Mr. Miller discovered the human remains of an infant wrapped in a burial blanket. Mr. Shumway explained to Mr. Miller he had found a burial site. Mr. Shumway then took over the digging. Mr. Shumway fully excavated the infant remains and removed the burial blanket leaving the infant remains on the ground. When the damage to the site was later assessed, the only portion of the infant's skeleton remaining was the skull on top of the dirt pile.

The group then attempted, a second time, to find Mr. Shumway's first intended site. Unable to locate it, Mr. Shumway directed Mr. Ruhl to land at Horse Rock Ruin. Mr. Miller testified that based on the directions Mr. Shumway had given, and based on his detailed knowledge of the site, it seemed Mr. Shumway had been to the Horse Rock Ruin site before. The next morning, after spending the night at the site, Mr. Shumway found sandals and a sleeping mat during the dig at the site.

In 1986, Mr. Shumway testified in court regarding his conduct at Horse Rock Ruin in 1984, the same site referred to in counts three and four of the 1995 indictment. The government attempted to admit evidence of Mr. Shumway's prior illegal activities at Horse Rock Ruin to establish identity, knowledge and intent, pursuant to Fed.R.Evid. 404(b). Mr. Shumway filed a motion in limine to preclude the government from introducing Rule 404(b) evidence. After the hearing, the district court deemed admissible the evidence relating to Mr. Shumway's 1984 activities in the Horse Rock Ruin.

Specifically, the district court admitted the following evidence: 1) a certified transcript of Mr. Shumway's sworn colloquy with the court in the 1986 case, redacted to include only admissions concerning his 1984 conduct at Horse Rock Ruin; 2) a redacted portion of a videotape of Mr. Shumway examining several artifacts he stated he excavated and removed from Horse Rock Ruin in 1984; 3) the 1986 testimony of United States Forest Service Special Agent Craig Endicott summarizing Mr. Shumway's statements about removing and selling artifacts from the Horse Rock Ruin site in 1984; 4) several photographs of artifacts Mr. Shumway removed from Horse Rock Ruin in 1984; and 5) a certified transcript of Mr. Shumway's sworn testimony in United States v. Black, No. CR 67-97 (D.Utah), a case related to the illegal sale of artifacts taken from the Horse Rock Ruin site in 1984. During the motion in limine hearing, Mr. Shumway's counsel informed the court his defense at trial would be that Mr. Shumway was not the person who committed the offenses. The district court therefore deemed this evidence admissible, yet limited the evidence's admissibility to the purpose of establishing Mr. Shumway's identity.

During trial, the government requested the district court to reconsider and broaden its previous ruling to allow the 404(b) evidence to prove knowledge and intent in addition to identity. The court determined that absent a stipulation by Mr. Shumway that identity was the only issue involved, the 404(b) evidence also would be admitted to prove knowledge and intent. Accordingly, the court instructed the jury as to the limited purpose of the 404(b) evidence to establish intent, knowledge and identity.

After the jury convicted Mr. Shumway on all four counts, the district court consolidated for purposes of sentencing the 1994 case that resulted in Mr. Shumway's guilty plea. At sentencing, the court enhanced Mr. Shumway's base offense level as follows: two points for the vulnerable victim adjustment, pursuant to United States Sentencing Guidelines Manual § 3A1.1(b) (1995) (hereinafter USSG); two points for obstruction of justice, pursuant to USSG § 3C1.1; and nine points for calculating the loss at $138,000 or more, pursuant to USSG § 2B1.1. Relying on USSG § 4A1.3, the court also departed upward from the Guidelines by increasing Mr. Shumway's criminal history category from III to IV. After the adjustments, Mr. Shumway's total offense level was twenty-two and his criminal history level IV, which resulted in a sentencing range of 63 to 78 months. The district court sentenced Mr. Shumway to seventy-eight months incarceration.

On consolidated appeal we consider five issues: 1) whether the district court erred in admitting evidence of Mr. Shumway's prior acts at Horse Rock Ruin pursuant to Fed.R.Evid. 404(b); 2) whether the district court erred in enhancing Mr. Shumway's offense level by imposing a vulnerable victim adjustment pursuant to USSG § 3A1.1(b); 3) whether the district court erred in enhancing the offense level for obstruction of justice pursuant to USSG § 3C1.1; 4) whether the district court erred in calculating the loss sustained under USSG § 2B1.1; and 5) whether the district court erred in departing upward from the Guidelines by increasing Mr. Shumway's criminal history category from III to IV under USSG § 4A1.3.

III. 404(b) Evidence

Mr. Shumway argues the district court erred in admitting the evidence regarding his 1984 acts in Horse Rock Ruin for purposes of identity, knowledge and intent. Specifically, Mr. Shumway argues the 1984 evidence lacked the "signature quality" necessary to show identity and was highly prejudicial to Mr. Shumway.

We review the district court's admission of evidence under Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Wilson, 107 F.3d 774, 782 (10th Cir.1997). "An abuse of discretion occurs when a judicial determination is arbitrary, capricious or whimsical." United States v. Wright, 826 F.2d 938, 943 (10th Cir.1987). We will not overturn a discretionary judgment by the trial court where it falls within the " 'bounds of permissible choice in the circumstances.' " United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994)), cert. denied, --- U.S. ----, 117 S.Ct. 446, 136 L.Ed.2d 342 (1996).

Under Fed.R.Evid. 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

In determining whether the admission of 404(b) evidence was proper, we apply a four-part test,...