US v. Walters, No. 00-4107

• Citation: 269 F.3d 1207
• Decision Date: 31 October 2001
• Docket Number: No. 00-4107
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH J. WALTERS, also known as Ken-Dog, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1207

269 F.3d 1207 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH J. WALTERS, also known as Ken-Dog, Defendant-Appellant.

No. 00-4107

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 31, 2001

Appeal from the United States District Court for the District of Utah (D.C. No. 99-CR-513ST) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Edward R. Montgomery, Salt Lake City, Utah, for Defendant-Appellant.

Veda M. Travis, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before EBEL,PORFILIO and HENRY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Kenneth J. Walters pled guilty to illegal possession of a firearm after a domestic-violence conviction, in violation of 18 U.S.C. 922(g)(9). On appeal, he alleges four errors: (1) the government violated due process by failing to disclose reports relevant to his sentence enhancements; (2-3) the district court erred by enhancing his sentence for possessing a stolen firearm and for possessing a firearm in connection with another felony, see USSG 2K2.1(b)(4), (b)(5); and (4) the district court failed to rule on his motion for a reduced sentence due to the victim's conduct, see USSG 5K2.10.

We AFFIRM that the government did not violate Walters's due process rights. Further, we AFFIRM the district court's decisions to enhance Walters's sentence. Finally, we REMAND for the district court to consider in the first instance whether 5K2.10 applies in this case.

BACKGROUND

A. The Assault, the Truck, and the Handgun

1. The Assault of Nickilynn Avery and Walters's Arrest

On August 13, 1999, Salt Lake County Sheriff's deputy Gene Van Roosendaal responded to a domestic assault complaint in Kearns, Utah. Nickilynn Avery ("Avery") reported to him that Walters had assaulted her in his camper, and that she had fled to a neighbor's house only after Walters fell asleep. Officers noticed that Avery had severe swelling and bruising on her arms, ear, face, and the top of her head, as well as swelling, bruising, and puncture wounds on her hands. Avery recounted that Walters had beaten her with his fists, and that the puncture wounds on her hands were made by the rings Walters wore, which had protruding metal ornaments.

Avery told officers that Walters had been driving an older model red-and-white pickup truck and was staying in a camper trailer parked next to his brother's house in Kearns. She warned the officers that Walters had a gun, was "out of his mind," and was addicted to methamphetamine.

Officers found the truck and the camper trailer at the address Avery had given. The door to the trailer was open, allowing officers to see Walters sleeping inside. After attempting to wake him by shouting through the open door, two officers entered, physically woke Walters up, and placed him in handcuffs for officer safety. Deputy Van Roosendaal asked him about the gun, and Walters initially denied possessing it. Confronted with Avery's statement to the contrary, however, Walters admitted he had one under the front seat of the pickup truck. The officers found it a loaded, Ruger P89 9 mm semiautomatic handgun as well as three other 9 mm magazines in the cab of the truck.¹ Officers then arrested Walters for committing two state-law crimes: assault with intent to commit serious bodily injury and carrying a concealed, loaded firearm in a vehicle.²

2. Scott Center's Pickup Truck and the Check Forgery Scheme

Officers also asked Walters about the pickup truck. Walters admitted the truck was not his, but he insisted it belonged to a friend, whose name Walters would not give. Officers ran checks to determine its owner and whether it was stolen. They discovered that it was registered to Carol Eggett of Bountiful, Utah, and that it was not listed as stolen on the FBI's National Crime Information Center computer.

Subsequent investigation, in September 1999, revealed that Eggett had bought the $11,000 truck for her grandson, Scott Center, because Center's poor credit history prevented him from financing it himself. Eggett bought it for Center, in part, because he had just finished drug and alcohol rehabilitation and she hoped it would enable him to keep a legal job and not begin using drugs again.

Center testified at the January 2000 suppression hearing that Walters took the truck as leverage to get Center to pay a $2000 debt owed to Walters after a payroll-check forgery scheme failed. Center explained that in June 1999 Walters gave him and an individual known as "Demon-Dog" twenty blank payroll checks which had been stolen from a construction company. Center, who had experience passing forged checks, was supposed to teach Demon-Dog the trade. Center later discovered that Walters expected them to cash the checks for at least $500 each and that he demanded a 20% cut, for a total of $2000.

When Center and Demon-Dog attempted to cash the first check, however, Center felt the bank teller was stalling and told Demon-Dog they should leave. Demon-Dog insisted on staying, so Center exited the bank and waited for Demon-Dog in the truck parked outside. As police arrived, Center left. Demon-Dog was arrested.

When Center called Walters later that afternoon to explain what happened, Walters told him, "You better not run into me." Center knew of Walters's reputation and criminal history, including convictions for multiple assaults and illegal weapons possession. At 2 a.m. that morning, Center was lured by a young woman into an apartment where Walters and Demon-Dog were waiting. They told Center that they were going to "have fun" with him. Walters had a hammer on his belt; Center had heard him say he used it to crack ribs. Demon-Dog hit Center, breaking his nose. They let Center leave without further injury, though, after he paid a "ransom" of $200.

A few days later some of Walters's "people" caught Center and brought him to Walters at a car wash because Center had not yet paid Walters the $2000 from the check forgery scheme. They drove to Walters's trailer, where Walters demanded the $2000 while he menacingly wiped down a gun and placed it in front of Center.

Walters eventually let Center go that day without having paid the debt.

One morning a few days later Center was sleeping in a chair and was awakened by Walters, who was pointing a knife at him. With Walters was Julie Perry, the woman who had stamped the signature on the stolen payroll checks. Ostensibly, Perry convinced Walters to let her and Center go "raise money." After a while, Perry persuaded Center to loan her his truck for about an hour. Perry never returned the truck to Center, and when he saw her a few days later she told him she had given the truck to Walters.

Days after that, Center saw Walters with the truck, and Walters told him that once he paid the $2000 Walters would return his truck. Center retorted that he would try to come up with $2000, but he would not pay Walters "extortion money" for the truck. A couple of months later, in December 1999, a Salt Lake City detective found the truck, stripped down, in a vacant lot in the warehouse district. There was visible damage to the interior of the truck and numerous parts had been removed, including the tires, rims, and seats.

3. Richard M. Gowers's Handgun and its Chain of Possession

Meanwhile, investigation of the gun took a similar trajectory. On either August 13 or 14, 1999, Deputy Van Roosendaal ran a check to see if the gun had been reported stolen, and the computer reported it had not been. The FBI agent assigned to the case, Agent Montefusco, further investigated whether the gun was stolen. The agent interviewed the gun's owner, Richard M. Gowers, who said that it had been missing since June or July of 1998. Gowers did not report the gun stolen, however, because he suspected that his son, Robbie Gowers, who was seventeen in 1998, had taken it.

Robbie admitted to the agent that he had taken the gun in July 1998; he said he took it for the purpose of shooting rabbits. According to Robbie, he loaned the gun to his stepbrother-in-law, Justin Montoya, but Montoya never returned it, even after Robbie asked him for it several times. Montoya, in contrast, told the agent that he intended to buy the gun from Robbie for $200, but he admitted that he never paid for it. He also reported that a few days after he received the gun he traded it to a man known only by his first name, Ryan, for one-quarter ounce of methamphetamine. With this information, FBI agents interviewed Walters again, who stated that, to his knowledge, a person named Ryan owned the gun. He admitted at his change-of-plea hearing that he possessed the gun while driving the truck.

B. Procedural History and Discovery

1. Indictment

Based on two misdemeanor domestic assault convictions from 1995, on September 8, 1999, a federal grand jury indicted Walters for illegal possession of a firearm after a domestic-violence conviction, in violation of 18 U.S.C. 922(g)(9). On October 15, 1999, Walters filed a motion to suppress the gun and the statements he gave to police on August 13, 1999. The first hearing on this motion to suppress was held on November 15, 1999, but it was continued when the court learned that the government had sent two FBI 302 reports on Eggett and Center so late that Walters had received them the day before the hearing. Obviously frustrated, the court told the government to "[g]o through [the evidence] again and make damn sure everything is furnished that should be." After the continued suppression hearing was completed on January 12, 2000, the court ordered the parties to provide further briefing and took the motion to suppress under advisement. Walters changed his plea to guilty on March 8, 2000, before the court ruled on his suppression motion.

At the outset of this case, the government had an "open file" policy. A little over a month into discovery,...