474 F.3d 757 (10th Cir. 2007), 05-1428, United States v. Pursley

Docket Nº:05-1428.
Citation:474 F.3d 757
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl William PURSLEY, Jr., Defendant-Appellant.
Case Date:January 11, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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474 F.3d 757 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Carl William PURSLEY, Jr., Defendant-Appellant.

No. 05-1428.

United States Court of Appeals, Tenth Circuit.

January 11, 2007


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Marci A. Gilligan, Richilano & Gilligan, P.C., Denver, CO, (Patrick L. Ridley and Robert T. Fishman, Ridley McGreevy Weisz P.C., Denver, CO, with her on the brief) for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney (William J. Leone, United States Attorney, and Matthew T. Kirsch, Assistant Untied States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

I. Introduction

While jailed in a Colorado state prison, Carl William Pursley was indicted by the United States for tax fraud. The government alleged that Pursley filed fraudulent tax returns on behalf of himself and other prisoners and received refund payments as a result. He was subsequently convicted by a federal jury on one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and two counts of aiding and abetting the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2).

On appeal, Pursley raises four claims challenging his conviction and sentence. The district court erred by (1) failing to dismiss the case due to violations of the Interstate Agreement on Detainers Act; (2) refusing to sever his trial from that of a co-defendant; (3) allowing the jury verdict to stand despite insufficient evidence to support the conspiracy conviction and, relatedly, contributing to jury confusion by improperly instructing them on the conspiracy count; and (4) violating the Double Jeopardy Clause while imposing consecutive sentences for different crimes that were supported by the same evidence.

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Taking jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM.

II. Factual Background

Carl Pursley and his co-defendant, William Wardell, were indicted by the United States on August 20, 2003, on various counts of tax fraud. Pursley was specifically charged with conspiring to defraud the Internal Revenue Service by assisting in the preparation of false tax returns for the purpose of fraudulently obtaining refunds based on the Earned Income Credit. At the time the federal indictment was filed, Pursley and Wardell were prisoners of Colorado, serving sentences on prior convictions.

To obtain his availability for trial, the United States lodged a detainer against Pursley on August 21, 2003, and obtained custody by filing a writ of habeas corpus ad prosequendum on October 9, 2003. Pursley was transferred to another facility under federal control where he remained for twenty-two months while he awaited trial on the tax fraud charges. During that period, Colorado filed a new indictment against Pursley in an unrelated criminal case. Accordingly, Colorado sought his presence in state court for preliminary proceedings. On at least two occasions, the state filed writs of habeas corpus ad prosequendum to obtain temporary custody to escort Pursley to court. Each time, he was returned to federal prison the same day. At no time was Pursley returned to a Colorado corrections facility to resume serving his initial state prison sentence.

On April 25, 2005, Pursley moved to dismiss the federal indictment with prejudice on the ground that the United States had violated the "anti-shuttling" provision of the Interstate Agreement on Detainers Act in releasing him to the temporary custody of Colorado. The district court denied his motion, and the case proceeded to trial. Before it began, Pursley moved to have his trial severed from that of his co-defendant, alleging that they would present antagonistic defenses. The district court denied this motion as well.

On May 25, 2005, a federal jury convicted Pursley on one count of conspiracy to defraud the United States and two counts of aiding and abetting the preparation of false tax returns. He was sentenced to 96 months incarceration--60 months imprisonment on the conspiracy count to be served consecutively with 36-month concurrent sentences for each count of aiding and abetting. He appeals both his conviction and sentence.

III. Discussion

Pursley raises four issues on appeal. We address each in turn.

A. Interstate Agreement on Detainers

Pursley argues the United States violated the Interstate Agreement on Detainers (IAD or Agreement), 18 U.S.C.App. § 2 [hereinafter IAD]; Colo.Rev.Stat. § 24-60-501 (2004), by transferring him from a state to federal prison and then allowing state officials to escort him to state proceedings on new state charges while he was in federal custody. Accordingly, he contends that the district court erred by failing to dismiss the federal indictment and that we should reverse his conviction.

The IAD creates among its contracting parties uniform procedures for lodging and executing a detainer, "a legal order that requires a State in which an individual is currently imprisoned to hold that individual . . . so that he may be tried by a different State for a different crime." Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001).

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For purposes of the IAD, the state in which a prisoner is initially serving a sentence is classified as the "sending state" (here, Colorado), and the state that subsequently indicts the prisoner and obtains custody is the "receiving state" (here, the United States).1 IAD, Art. II(b)–(c). The Agreement "provides for expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his sentence in the sending State" and "seeks to minimize the consequent interruption of the prisoner's ongoing prison term." Bozeman, 533 U.S. at 148, 121 S.Ct. 2079. The Agreement is based on the premise that prison treatment and rehabilitation programs are negatively impacted when a prisoner is indicted and transferred to a new jurisdiction and then returned to the original place of imprisonment before trial is had on the new charges. See IAD, Art. I.

The Agreement authorizes transfer of a prisoner from a sending state to a receiving state as follows:

The appropriate officer of the jurisdiction in which an untried indictment . . . is pending [i.e., the receiving state] shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated [i.e, the sending state].

Id. at Art. IV(a). The Agreement protects the prisoner from excessive transfers through the so-called "anti-shuttling" provision, which states,

If trial is not had on any indictment . . . contemplated hereby prior to the prisoner's being returned to the original place of imprisonment to article V(e) hereof, such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Id. at Art. IV(e). Accordingly, by its express terms, the IAD is violated under two conditions—when a prisoner, who is serving a sentence in the sending state and indicted by the receiving state, is (1) transferred to the receiving state based on its lodging a detainer against him and requesting custody, id. at Art. IV(a), and then (2) returned to the "original place of imprisonment" before standing trial on the untried indictment, id. at Art IV(e).

In this case, the first condition of an IAD violation was clearly met. While serving his sentence in Colorado state prison, Pursley was indicted by the United States, which lodged a detainer against him and, by means of a writ of habeas corpus ad prosequendum, obtained custody and transferred him to a federal facility. See United States v. Mauro, 436 U.S. 340, 348, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) (holding the combination of lodging a detainer and obtaining custody by means of a writ of habeas corpus ad prosequendum triggers application of the IAD).2

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The principal issue here is whether the second condition of an IAD violation was met. The prosecution argues Pursley was never "returned to the original place of imprisonment" within the meaning of the IAD because he was never sent back to a Colorado prison. Pursley objects to this literal reading of the text and argues that the anti-shuttling provision be interpreted to include any type of custody over the prisoner by the sending state.

Pursley argues that the Supreme Court in Alabama v. Bozeman interpreted the IAD to require dismissal of pending charges by the receiving state when a prisoner is placed in the custody of the sending state, even in circumstances where a prisoner's custody is of short duration.

In that case, the prisoner, Bozeman, was serving time in a federal prison when Alabama indicted him on an unrelated crime. Bozeman, 533 U.S. at 151, 121 S.Ct. 2079. Alabama lodged a detainer against him and subsequently obtained custody over him. The state then transported him approximately 80 miles to a county jail, where he spent the night before appearing for his arraignment the next morning. He was returned to federal prison that evening and resumed serving his original sentence.

At the outset, the Supreme Court acknowledged, "Alabama does not deny a violation of...

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