U.S. v. Weiland

• Decision Date: 24 August 2005
• Docket Number: No. 04-30091.,04-30091.
• Citation: 420 F.3d 1062
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William WEILAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.3d 1062

UNITED STATES of America, Plaintiff-Appellee, v. William WEILAND, Defendant-Appellant.

No. 04-30091.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2005.

Filed August 24, 2005.

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Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.

James A. McDevitt, United States Attorney, Stephanie J. Lister, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Edward F. Shea, District Judge, Presiding. D.C. No. CR-03-00070-EFS.

Before: FERNANDEZ, TASHIMA, and GOULD, Circuit Judges.

GOULD, Circuit Judge:

Defendant-Appellant William Weiland appeals his conviction and sentence for one count of possessing two firearms and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of forfeiture, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Weiland argues: 1) that Federal Rule of Criminal Procedure 41(b) requires suppression of the firearms and ammunition seized during a search of his home because the warrant that authorized the search was not requested by a "federal law enforcement officer" or an "attorney for the government;" 2) that records of his four Oklahoma Second Degree Burglary convictions should be excluded under Federal Rules of Evidence 802 and 901(a), 28 U.S.C. § 1738, and the Confrontation Clause of the Sixth Amendment; 3) that the admission of four convictions to prove Weiland's status as a felon when only one was required was unduly prejudicial under Federal Rule of Evidence 403; 4) that the government did not establish that his convictions for Oklahoma Second Degree Burglary met the definition of "generic burglary" under Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); 5) that Weiland's 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), violated his Sixth Amendment right to a jury trial; and 6) that the district court abused its discretion in denying a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court.

I

On February 19, 2003, Spokane County Sheriff's Office Detective Michael D. Ricketts applied for and received a federal search warrant from a United States magistrate judge for the home of William Weiland at 42313 North Sherman Road in Spokane County, Washington. When he applied for the warrant, Ricketts had a "Special Deputation Appointment" from the U.S. Marshals Service permitting him, "under authority delegated by the Attorney General, to perform the duties of the Office of Special Deputy United States Marshal as directed by an appropriate official of the United States Marshals Service or some other appropriate Federal Official as so designated." The appointment indicated that the Bureau of Alcohol Tobacco and Firearms (ATF) was Ricketts's sponsoring agency and specifically authorized Ricketts "[t]o seek and execute arrest and search warrants supporting a federal task force." The appointment further stated that Ricketts was "[n]ot authorized to participate in federal drug investigations unless also deputized by DEA or FBI" and that the special deputation did not constitute formal employment by a federal agency.

Later that afternoon, law enforcement officers executed the search warrant for Weiland's property and seized a 9 mm HiPoint Rifle, a .22 caliber Winchester rifle, ammunition, a small marijuana grow, and computer files that contained child pornography. The government subsequently charged Weiland with possessing firearms and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and forfeiture of the firearms and ammunition, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). The indictment also gave notice of the government's intent to pursue enhanced sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Before trial, Weiland moved to suppress the firearms found in his house, arguing that the warrant affidavit completed by Ricketts was defective because his deputation as a Special Deputy United States Marshal did not make Ricketts a "federal law enforcement officer" within the meaning of Federal Rules of Criminal Procedure 41(b) and 41(a)(2)(C). In the suppression hearing, Weiland called Ricketts, and Ricketts testified that, with the assistance of his secretary, he personally prepared the warrant affidavit based upon information received from other sheriff's deputies.¹ Ricketts then notified the Drug Enforcement Agency (DEA) and ATF Special Agent Darrell Bone that he planned to apply for a federal warrant, but no one from either agency assisted him in drafting the warrant affidavit. Ricketts, however, did present the warrant affidavit to Assistant U.S. Attorney Tom Rice, who reviewed it, made minor changes, and initialed it "TOR." Someone from the U.S. Attorney's office notified the magistrate that Ricketts would be coming with a warrant application.

At the suppression hearing, Ricketts stated that he understood that the purpose of his special deputation was to "support the ATF office in their investigations and to conduct investigations involving federal firearms violations . . . [t]o obtain search warrants, to be able to be obtain[sic] search warrants and execute arrest warrants." Although Ricketts could have gotten a state search warrant, he testified that he chose to apply for a federal warrant because of the high probability that the case would be referred to the U.S. Attorney for federal prosecution. Ricketts also testified that, in his view, his investigation was primarily regarding federal firearms violations that fell within ATF jurisdiction, rather than mainly concerning federal drug crimes. After the hearing, the district court denied the motion to suppress, holding: 1) that Ricketts did not violate Rule 41(b) because he was acting pursuant to his special deputation, and 2) that even if Ricketts had violated the Rule, suppression would not be warranted.

Before trial, the government submitted a memorandum on the admissibility of "penitentiary packets." The "penitentiary packet" relating to Weiland contained four unredacted Oklahoma Second Degree Burglary convictions, fingerprints from Weiland, a photograph of Weiland, and a facsimile transmittal from Paula Menifee at the Offender Records office to the Oklahoma State Bureau of Investigation (OSBI) requesting "any fingerprints, photographs, and rap sheets" on Weiland. In addition, the packet contained an official certification which stated:

I, RICHARD E. GREENE hereby certify: I am the manager of the Offender Records Unit, of the Oklahoma Department of Corrections, the agency having jurisdiction over all adult correctional facilities of the state of Oklahoma; that in my legal custody as such officer, are the original files and records of persons heretofore committed to the Department of Corrections; that the 1) fingerprint card, 2) photograph, and 3) commitment documents attached are copies of the original records of persons heretofore committed to said Department of Corrections, and who served a term of incarceration/supervision therein; that I have compared the foregoing and attached copies with their respective originals now on file in my office and each thereof contains and is a full, true, and correct copy from its said original.

Accompanying Greene's declaration was a certificate under seal from the Secretary of State of the State of Oklahoma attesting that Richard E. Greene was the Manager, Offender Records Unit of the Oklahoma Department of Corrections, that Greene was authorized to sign the attached certificate, and that Greene's signature on the certificate was genuine. The defendant submitted a memorandum opposing the admission of the "penitentiary packet" on the first day of the trial.

At trial, the government moved to admit the documents in the "penitentiary packet" as self-authenticating public records pursuant to Federal Rule of Evidence 902(4) and as hearsay subject to the exception for public records and reports pursuant to Rule 803(8). Weiland objected, and the district court sustained the objection, ruling that the "penitentiary packet" was not sufficiently reliable and was thus inadmissible because the facsimile from Paula Menifee to the OSBI suggested that the records were not in fact in the custody of Greene.

Following this ruling, the government then attempted to authenticate the "penitentiary packet" and four other certified copies of the Oklahoma convictions as records of a regularly conducted activity pursuant to Rule 902(11) and argued that they were subject to the business records hearsay exception in Rule 803(6). As foundation for the business records exception, the government provided a blank form and said that it would be filled out by Nancy A. Young, Administrative Programs Officer, OSBI. Weiland objected on the basis that he had not received notice of the government's intent to authenticate the "penitentiary packet" and certified convictions as business records and that the admission of these documents would violate his right to confront and cross-examine Young. The district court overruled the objection and conditionally admitted both the "penitentiary packet" and the certified records of conviction pending the receipt of Young's affidavit. The completed affidavit arrived immediately before the case went to the jury, and contained a statement from Young stating that the records were made by a person with first-hand knowledge in the course of a regularly conducted activity. The district court then unconditionally admitted all four of the certified convictions and the "penitentiary packet" into evidence.

Weiland further objected to the admission of multiple Oklahoma...