U.S. v. Allen, 92-1225

• Decision Date: 05 May 1994
• Docket Number: No. 92-1225,92-1225
• Citation: 24 F.3d 1180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Brett ALLEN, also known as Lucky Pierre, also known as John Andrew Davis, also known as John Thomas Davis, also known as David Earl Peterson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1180

24 F.3d 1180

UNITED STATES of America, Plaintiff-Appellee, v. John Brett ALLEN, also known as Lucky Pierre, also known as John Andrew Davis, also known as John Thomas Davis, also known as David Earl Peterson, Defendant-Appellant.

No. 92-1225.

United States Court of Appeals Tenth Circuit.

May 5, 1994.

James R. Allison, Interim U.S. Atty., Daniel J. Cassidy, and John M. Hutchins, Asst. U.S. Attys., Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee.

Leonard E. Davies, Denver, CO, for defendant-appellant.

Before SEYMOUR, Chief Judge, EBEL, Circuit Judge, and THOMPSON, ^* District Judge.

SEYMOUR, Circuit Judge.

Defendant John Brett Allen was charged in a thirteen count indictment with two violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-68 (RICO), one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (CCE), several substantive drug and money laundering offenses, and two counts of obstructing justice. He pleaded guilty to the CCE count and the two substantive counts of obstruction of justice. The remaining counts were dismissed in accordance with the plea agreement. In this appeal, he argues that the obstruction of justice convictions are unconstitutional, and raises several challenges to his sentence. ¹ We affirm.

I.

The charges against Allen arose from his participation in a multistate marijuana importation and distribution scheme. Allen was implicated as the leader of the scheme, which involved several co-defendants, numerous drug offenses, and extensive money laundering activities. The CCE count of the indictment incorporated by reference the factual predicates charged in the RICO and substantive drug offenses. All of those predicates related to Allen's marijuana scheme and money laundering activities. The obstruction of justice charges arose from Allen's attempts to convince a codefendant already under prosecution for earlier involvement in the scheme to jump bond rather than implicate Allen in the scheme, and Allen's attempt to influence the testimony of another witness with respect to Allen's money laundering activities.

At sentencing, the district court determined that Allen was a career offender under the guidelines and increased his criminal history score accordingly. The court also granted downward departures for acceptance of responsibility and substantial assistance to the government. Allen was sentenced to 200 months in prison and five years of supervised release. He now challenges his sentence and also argues for the first time that the obstruction counts were unconstitutionally obtained.

Allen raises twelve arguments on appeal, three of which concern the obstruction of justice counts. The remaining issues challenge the sentence. We will address the constitutional challenges first, then move to the district court's application of the sentencing guidelines. We review the district court's factual findings under the clearly erroneous standard, but review all legal issues de novo. United States v. Levy, 992 F.2d 1081, 1083 (10th Cir.1993).

II.

Allen raises three constitutional challenges to his convictions for obstruction of justice. The first obstruction of justice count was premised on 18 U.S.C. Sec. 1503, which applies when a person "corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." Allen pleaded guilty to violating this provision by counseling Kurt Grimm, a defendant in a then pending criminal proceeding in Arizona, to jump bond and leave the country. The second obstruction count was premised on 18 U.S.C. Sec. 1512(b)(1), which applies when a person "knowingly ... corruptly persuades another person ... with intent to ... influence ... the testimony of any person in an official proceeding." This count involved Allen's attempts to corrupt and otherwise influence the testimony of a potential witness, Herminia Bernal de Kuehne.

First, Allen asserts that section 1503 is unconstitutional as applied to him because the use of the word "corruptly" in the statute is so vague it failed to give him proper notice that his conduct, as he describes it, is criminal. Cf. United States v. Poindexter, 951 F.2d 369, 379 (D.C.Cir.1991) (as used in 18 U.S.C. Sec. 1505, term "corruptly" is unconstitutionally vague), cert. denied, --- U.S. ----, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992). Second, he likewise argues that section 1512(b) is unconstitutionally vague, and that his efforts to contact Herminia Bernal de Kuehne do not fall within the statute. Finally, he maintains that he could not legally be prosecuted in Colorado for the section 1503 obstruction because the statute allowing the government to charge and prosecute him in Colorado for that conduct was not passed until after the obstruction took place.

Allen raises his vagueness arguments with respect to sections 1503 and 1512 for the first time on appeal. The government contends that he has waived them by failing to present them to the district court in the first instance. " '[A] constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)). However, "[r]ule 52(b) of the Federal Rules of Criminal Procedure, which governs on appeal from criminal proceedings, provides the Court of Appeals a limited power to correct errors that were forfeited because not timely raised in the District Court." Id. Exercise of that limited power is not proper here. "The first limitation on appellate authority under Rule 52(b) is that there indeed be an 'error.' " Id. --- U.S. at ----, 113 S.Ct. at 1777. The government contends that Allen, by his guilty plea, has waived the constitutional errors he seeks to assert. We agree.

The Supreme Court has made clear that "[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Thus a defendant who makes a counseled and voluntary guilty plea ² admits both the acts described in the indictment and the legal consequences of those acts. Id. at 569-70, 109 S.Ct. at 762-63. Allen argues that his case is excepted from the dispositive effect of a guilty plea because this prosecution is one that on its face the government may not bring. See id. at 574-76, 109 S.Ct. at 764-66. In so doing, Allen contends that because the statutes are unconstitutionally vague when applied to his conduct as he characterizes it, the court had no jurisdiction. However, Allen cannot prove this claim without contradicting the admissions in his guilty plea, namely that he committed the conduct alleged in the indictment and that in so doing he committed the crime charged. These admissions indisputably encompass Allen's concession that the charged conduct satisfied the statutory element that he acted corruptly. Accordingly, Allen's claim is foreclosed by his guilty plea and he has therefore waived any error upon which we might exercise our power under Rule 52(b).

Finally, Allen maintains that he could not constitutionally be prosecuted in Colorado under section 1503. Prior to 1988, most circuits had concluded that violations under section 1503 could only be prosecuted in the district where the "affected" prosecution was proceeding. See United States v. Frederick, 835 F.2d 1211, 1213-14 (7th Cir.1987), cert. denied, 486 U.S. 1013, 108 S.Ct. 1747, 100 L.Ed.2d 210 (1988). In 1988, 18 U.S.C. Sec. 1512(h) was amended to provide that section 1503 violations could be prosecuted in either the district of the affected proceeding or in the district where the obstruction actually took place. The conduct at issue here took place just prior to this amendment.

Allen contends his prosecution under section 1503 was improper because the "affected proceeding" was in Arizona where Grimm was being prosecuted. As the district court noted, however, the affected prosecution was the Colorado investigation leading to Allen's indictment in this case. Thus both before and after the enactment of section 1512(h), venue in Colorado was proper. Moreover, Allen waived this argument when he pleaded guilty to the obstruction charge. United States v. Brown, 583 F.2d 915, 918 (7th Cir.) (per curiam) (venue protection provided by Article III and the Sixth Amendment may be waived by guilty plea), cert. denied, 439 U.S. 875, 99 S.Ct. 211, 58 L.Ed.2d 189 (1978).

Allen also asserts that witness tampering by means of non-threatening conduct, as described in Count 12, was not unlawful at the time he committed the acts charged in that count. ³ He relies primarily on the analysis set out in United States v. Masterpol, 940 F.2d 760 (2d Cir.1991). Not only is Masterpol factually distinguishable, its discussion undermines Allen's argument.

Allen asserts on appeal that the facts underlying Count 12 occurred in October 1988. Br. of Appellant at 4. In sentencing Allen, the district court assumed the conduct underlying Count 12 occurred that October. See rec., Sentencing Hearing Transcript (March 27, 1992), at 13. The changes to section 1512 upon which Allen relies became effective on November 18, 1988. In Masterpol, to the contrary, the acts at issue occurred well after the statute was changed. Review of the analysis in Masterpol makes clear that this difference renders that case inapposite and Allen's claim meritless. As Masterpol recognizes, after the enactment in 1982 of the Victim and Witness Protection Act, Pub.L. No. 97-291, 96 Stat. 1248 (1982), some courts held that while witness...