377 F.3d 1134 (10th Cir. 2004), 03-6185, United States v. Wooten

Docket Nº:03-6185.
Citation:377 F.3d 1134
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles WOOTEN, Defendant-Appellant.
Case Date:August 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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377 F.3d 1134 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Charles WOOTEN, Defendant-Appellant.

No. 03-6185.

United States Court of Appeals, Tenth Circuit

August 10, 2004

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Joshua A. Norris, Special Assistant United States Attorney (Robert G. McCampbell, United States Attorney, and Mark A. Yancey, Assistant United States Attorney, with him on the briefs), Office of

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the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Joseph L. Wells, Oklahoma City, OK, for Defendant-Appellant.

Before TACHA, Chief Circuit Judge, BRISCOE, Circuit Judge, and LUNGSTRUM, Chief District Judge. [*]

LUNGSTRUM, Chief District Judge.

Defendant-Appellant Charles Wooten was convicted of assault and kidnapping. He was sentenced to eighty-four months imprisonment and the court ordered restitution in the amount of $17,751.58. He now appeals his conviction, sentence, and restitution order. Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we AFFIRM the judgment of the district court. We DISMISS for lack of jurisdiction the aspect of Mr. Wooten's appeal in which he contends the district court erred by refusing to grant him a downward departure.

I. Background

The evidence at trial revealed that shortly before midnight on June 6, 2002, LaToya Portee and Elizabeth Wooten, both of whom were active duty soldiers in the United States Army, were leaving a night club on the Fort Sill, Oklahoma, military installation. As they attempted to exit the parking lot in Ms. Portee's 2001 Ford Taurus, Mr. Wooten, Ms. Wooten's ex-husband, blocked their way with a truck. Ms. Portee was eventually able to maneuver her car around Mr. Wooten's truck and exit the parking lot. Mr. Wooten followed them. Ms. Portee and Ms. Wooten headed toward the military police station and called 911. The two vehicles were traveling through the Army base at approximately sixty miles per hour in twenty-five to thirty mile-per-hour speed zones. Mr. Wooten rammed the truck he was driving into the back of Ms. Portee's car three times. The last time, he caused her car to spin out of control, hit a telephone pole, and ultimately come to rest underneath a nearby fence. The car was totaled. Mr. Wooten then grabbed Ms. Wooten, forced her into his truck, and drove her to the house where he was staying at the time, which was a few miles away in Lawton, Oklahoma. He told Ms. Wooten that he had a gun and he threatened to kill her. After they arrived at the house, Ms. Wooten escaped and went to a nearby house where she called 911.

A grand jury returned a two-count indictment charging Mr. Wooten with intentionally assaulting Ms. Portee and Ms. Wooten with a dangerous weapon (i.e., a motor vehicle) in violation of 18 U.S.C. § 113(a)(3), and kidnapping Ms. Wooten in violation of 18 U.S.C. § 1201(a)(2). A jury found him guilty on both counts. He was sentenced to eighty-four months imprisonment and the court ordered restitution in the amount of $17,751.58. On appeal, Mr. Wooten raises five arguments relating to: (1) the Posse Comitatus Act of 1878, 18 U.S.C. § 1385 (the "PCA"); (2) evidentiary rulings regarding another incident that occurred on May 3, 2002; (3) the restitution order; (4) decrease in offense level for acceptance of responsibility; and (5) downward departure.

II. Discussion

For the reasons explained below, the court finds each of Mr. Wooten's arguments to be without merit. Briefly summarized, the court finds that even if Captain Norris's appointment as a Special Assistant United States Attorney ("SAUSA")

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violated the PCA, Mr. Wooten would be entitled to no relief. Further, the district court did not abuse its discretion in the manner in which it handled the evidence regarding Captain Norris's decision not to prosecute Mr. Wooten for the May 3 incident. Insofar as the restitution order is concerned, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply because the order did not exceed any prescribed statutory maximum. With respect to Mr. Wooten's arguments regarding sentencing, the district court did not err by declining to decrease Mr. Wooten's offense level for acceptance of responsibility, and this court is without jurisdiction to consider his argument that the district court erred by refusing to grant him a downward departure.

A. Posse Comitatus Act

Mr. Wooten's primary argument on appeal is that the district court erred by denying his motion to dismiss based on the Posse Comitatus Act. Joshua A. Norris, who is a United States Army Captain with the Staff Judge Advocate Corps at Fort Sill was active in the prosecution of this case as an SAUSA. Captain Norris filed the complaint, obtained the indictment, and entered his appearance on July 2, 2002. On July 23, 2002, Mark A. Yancey, a full-time Assistant United States Attorney, entered his appearance. Together, Captain Norris and Mr. Yancey prosecuted the case and obtained the conviction against Mr. Wooten. After trial, Mr. Wooten filed a motion to dismiss the criminal case against him on the grounds that Captain Norris's participation in the prosecution of this case violated the PCA because a full-time military officer was used to prosecute a civilian in federal district court. The district court denied the motion to dismiss and Mr. Wooten now appeals that order. Generally, the court reviews the grant or denial of a motion to dismiss for an abuse of discretion. United States v. Giles, 213 F.3d 1247, 1248 (10th Cir. 2000); United States v. Wood, 6 F.3d 692, 694 (10th Cir. 1993). When, however, the dismissal involves issues of statutory interpretation, as is the case here, the court reviews the district court's decision de novo. Giles, 213 F.3d at 1248-49; Wood, 6 F.3d at 694.

The Posse Comitatus Act was enacted toward the end of the Reconstruction era after the Civil War "for the purpose of limiting the direct active use of federal troops by civil law enforcement officers to enforce the laws of this nation." United States v. Hutchings, 127 F.3d 1255, 1257 (10th Cir. 1997) (internal quotation omitted); see generally Mark David "Max" Maxwell, The Enduring Vitality of the Posse Comitatus Act of 1878, 37 Prosecutor 34, 34 (2003) (discussing the historical origins of the PCA). The PCA provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1385. It was intended " 'to prevent the use of the federal army to aid civil authorities in the enforcement of civilian laws.' " Nelson v. Geringer, 295 F.3d 1082, 1092 n. 11 (10th Cir. 2002) (quoting Gilbert v. United States, 165 F.3d 470, 472 (6th Cir. 1999)).

There appears to be no dispute in this case that the United States Attorney for the Western District of Oklahoma "willfully use[d]" Captain Joshua Norris, an active duty member of the Army and Staff Judge Advocate, to assist in "execut[ing] the laws" of the United States. In particular, Captain Norris was appointed as an SAUSA and, in that role, participated in the

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investigation, grand jury proceedings, and trial of this case. The question is whether Captain Norris's appointment and participation fall within the scope of the PCA's express exception. See § 1385 ("except in cases and under circumstances expressly authorized by the Constitution or Act of Congress"). In other words, were Captain Norris's appointment and participation "expressly authorized" by the Constitution or a federal statute?

The Court declines to answer this question, in part because it concludes that it does not have to do so in order to resolve this appeal and in part because the factual record presented to us does not address how or whether Captain Norris was assigned or detailed to be an SAUSA. Assuming that Captain Norris's appointment and participation in this case violated the PCA, the question then becomes to what relief, if any, Mr. Wooten would be entitled. The answer is "none."

Mr. Wooten has not asserted, nor can he establish that any deficiencies in Captain Norris's appointment deprived the district court of jurisdiction over his case. A "court's power to regulate the attorneys who appear before it does not affect the court's jurisdiction over the underlying prosecution." United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir. 1996). "Thus, defects of th[e] kind [asserted here] have consistently been treated as non-jurisdictional." Id.; see also United States v. Cotten, 471 F.2d 744, 749 (9th Cir. 1973) (rejecting the defendants' assertion that alleged violations of the PCA warranted either dismissal of the criminal charges or a finding that the trial court lacked jurisdiction).

Nor can Mr. Wooten establish that he was entitled to dismissal of the indictment against him on non-jurisdictional grounds. As an initial matter, it appears that Mr. Wooten's failure to raise the PCA issue until after trial deprives him of that remedy altogether. See Fed. R. Crim P. 12(b)(3) (providing that motions alleging defects in instituting the prosecution and/or in the indictment "must be raised before trial"). Even absent waiver, he is not entitled to such a remedy. It is true that Federal Rule of Criminal Procedure 6(d)(1) narrowly limits who "may be present while the grand jury is in session," and thus would have been violated by Captain Norris's presence before the grand jury if he had not been properly appointed as an SAUSA. The Supreme Court, however, has adopted the harmless error standard...

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