U.S. v. Todd, 05-6127.

Citation446 F.3d 1062
Decision Date01 May 2006
Docket NumberNo. 05-6127.,No. 05-6252.,05-6127.,05-6252.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jared Lee TODD, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice (John C. Richter, United States Attorney, and Edward J. Kumiega, Assistant United States Attorney with him on the briefs), for Plaintiff-Appellant.

Joseph L. Wells, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, HENRY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

In these consolidated cases, the government appeals two district court rulings. The first is the district court's dismissal of one count of an indictment at a pretrial suppression hearing, based on the government's alleged failure to provide sufficient evidence to support the charge. The second is the district court's decision to exclude 680.4 grams of methamphetamine from the drug quantity calculation at sentencing. We reverse the district court's dismissal of one count of the indictment and remand for further proceedings. Because the district court lacked jurisdiction to proceed with sentencing after the government filed an appeal, we also vacate the sentence imposed by the district court.

I. Background

Jared Lee Todd came to the attention of Detective Kenneth Russell Park while Detective Park was investigating the Universal Aryan Brotherhood's connection to a methamphetamine laboratory and a shooting that occurred in March 2004. In connection with his investigation, Detective Park interviewed Christopher Spindler on September 23, 2004. Spindler said that he obtained methamphetamine from "Jerry Todd," that Mr. Todd was being supplied methamphetamine by Greg Minard, that he had "seen Mr. Todd sell methamphetamine countless times," and that Todd was a member of the Universal Aryan Brotherhood. Suppression Hr'g Tr. 91-92. On November 1, 2004, Detective Park received information from an anonymous caller that Jared Todd was selling drugs and that the caller had seen Mr. Todd with a gun. Although Detective Park never obtained the name of this caller, the caller did leave his phone number, which matched the number that registered on Caller I.D. Over the next week, Detective Park spoke with this anonymous caller at least four times. Detective Park asked the informant to call him the next time he had information that Mr. Todd had drugs at his trailer. On November 8, 2004, the anonymous caller contacted Detective Park to inform him that Mr. Todd was in possession of four ounces of methamphetamine.

Responding to the information obtained from Spindler and the anonymous caller, Detective Park and eight police officers from the Oklahoma City Police Department Special Projects Unit drove to the address given by the informant, which proved to be a shed and Mr. Todd's trailer. As Detective Park approached the shed next to the trailer, he saw three people sitting on a bench inside the shed. Detective Park identified himself to everyone, and then asked to speak with Mr. Todd. Mr. Todd agreed to talk with Detective Park and they walked over to Detective Park's undercover truck. Mr. Todd then gave Detective Park written consent to search the premises and waived his Miranda rights.

During the interview, Mr. Todd admitted to distributing methamphetamine and showed Detective Park a bag which appeared to contain about one ounce of methamphetamine. He informed Detective Park that during the past year he had obtained at least two ounces of methamphetamine per month from different drug sources, although his primary source of supply was Greg Minard. He would then redistribute the methamphetamine to other people in smaller quantities, one-half ounce at the most. He further explained that he contributed to the manufacture of methamphetamine by purchasing pseudoephedrine and Toulene for Mr. Minard. Mr. Todd also acknowledged his affiliation with the Universal Aryan Brotherhood, a nationwide prison gang consisting primarily of white males.

Aside from admitting his involvement in methamphetamine distribution, Mr. Todd confessed to Detective Park that he had previously possessed a firearm, namely a 9mm Berretta handgun that he purchased from James Whitfield. Mr. Todd explained that he had the handgun because he was afraid of several members of the Universal Aryan Brotherhood. He also told Detective Park about an incident involving Tracy Brunkin, a fellow member of the Universal Aryan Brotherhood. Several weeks earlier, Todd and Brunkin had gotten into an argument and Todd fired a shot at Brunkin, missing him, but making a bullet hole in the sheet metal fence that ran alongside one edge of Todd's property. Mr. Todd showed Detective Park the bullet hole and other agents took photographs of the hole. Detective Park characterized the bullet hole as being fairly recent and coming from a small-caliber gun. Based on the picture, a ballistics expert determined that the bullet hole was fired from a.380, .38, .357 or 9mm handgun. Todd further explained that he had sold the gun to Angel, another methamphetamine dealer, because Mr. Todd was concerned that investigators were looking into him in connection with the March shooting. While Mr. Todd was being booked on preliminary charges, he spontaneously volunteered to the booking officer that he had owned a gun, but had discarded it a few months before his arrest.

A federal grand jury returned a four-count indictment against Mr. Todd. He was charged with two substantive counts of possessing methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a); one count of conspiracy to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 846; and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Before trial, Mr. Todd filed several motions to suppress statements and physical evidence obtained during the November 8, 2004 encounter. One of these motions claimed that Mr. Todd's admission to possessing a firearm should be suppressed because Mr. Todd made the statements during a Rule 11 plea discussion and did not voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further argued that because his statement was the only evidence supporting the firearm possession count, that charge should be dismissed. In response, the government argued that the statements should not be suppressed because Mr. Todd voluntarily waived his Miranda rights and the facts corroborating Mr. Todd's possession of a firearm ensured that his confession was reliable.

Mr. Todd also moved to dismiss the firearm count, claiming that a public service announcement sponsored by the United States Attorney's Office created an implied amnesty from prosecution for any person who disposed of an illegally possessed firearm. The government filed a responsive motion opposing his motion to dismiss and claiming that the public service announcement did not offer amnesty. The district court held an evidentiary hearing on Mr. Todd's motion to suppress and heard argument from counsel on Mr. Todd's motion to dismiss for implied amnesty. At the end of the suppression hearing, defense counsel argued, as he had in the written motion, that the firearm count should be dismissed because the only evidence to sustain it was Mr. Todd's inadmissible statements. The district court denied Mr. Todd's motion to suppress the statements made to Detective Park. The court nonetheless granted his motion to dismiss the firearm count on the ground that the confession was not corroborated by other evidence.

Mr. Todd proceeded to trial on the remaining three counts. Before trial the court granted a judgment of acquittal under Rule 29(b) of the Federal Rules of Criminal Procedure on the conspiracy charge. On March 16, 2005, the jury found Mr. Todd guilty on the remaining two counts of possessing methamphetamine. On March 21, 2005, the court entered a final order dismissing the firearm count. On April 11, 2005, the government filed an appeal, pursuant to 18 U.S.C. § 3731, challenging the dismissal of the firearm count.

Despite the pending appeal, the district court ordered the completion of a Presentence Investigation Report (PSR). The PSR recommended a base offense level of 32, based on a total of 717.4 grams of methamphetamine, which included 680.4 grams calculated from Mr. Todd's admission to Detective Park that he purchased at least two ounces per month from various sources during the year preceding his arrest. The PSR also recommended a two-level enhancement for possession of a firearm and a two-level enhancement for the unsafe storage of the chemicals Todd supplied for use in methamphetamine production. With a total offense level of 36 and criminal history category V, the PSR recommended a sentencing range of 292-365 months' imprisonment.

At the sentencing hearing on July 8, 2005, defense counsel objected to the PSR's inclusion of the additional drug quantities, on the grounds that it was acquitted conduct under the conspiracy count and that sentencing Mr. Todd for the additional quantity would violate the rule against double jeopardy. Defense counsel also argued that Mr. Todd did not redistribute methamphetamine, but rather purchased it for personal use. In response, the government informed the court that Mr. Todd had admitted to the investigating officer that he sold drugs to a specific individual, Steven Woolf, and that an independent witness, Spindler, stated that he had seen Mr. Todd distribute methamphetamine "countless times." Tr. Sent. Hr'g 24. The district court concluded that the drug quantity calculation should include only the 37 grams of methamphetamine actually seized from Mr. Todd. In rejecting the PSR's recommendation, the district court stated:

[T]his is a unique situation where the Court has had the opportunity,...

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