519 F.3d 1096 (10th Cir. 2008), 06-4307, United States v. Olsen

Docket Nº:06-4307.
Citation:519 F.3d 1096
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timmy Brent OLSEN, Defendant-Appellant.
Case Date:March 11, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1096

519 F.3d 1096 (10th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timmy Brent OLSEN, Defendant-Appellant.

No. 06-4307.

United States Court of Appeals, Tenth Circuit.

March 11, 2008

Appeal from the United States District Court for the District of Utah, (D.C. No. 2:06-CR-312-JTG)

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Jeremy M. Delicino (Stephen R. McCaughey, with him on the briefs), Salt Lake City, UT, for the Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), Salt Lake City, UT, for the Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Timmy Brent Olsen appeals his conviction and sentence on fifteen counts of perjury in violation of 18 U.S.C. § 1623(a). He contends that the district court abused its discretion by declining to sever three of the perjury counts, and that it violated his due process rights by finding a sentencing fact by only a preponderance of the evidence. We disagree. We do not discern an abuse of discretion in refusing to sever the counts, and any constitutional error is harmless beyond a reasonable doubt. We therefore AFFIRM Olsen's conviction and sentence.

I

A

Olsen's perjury conviction arises from a federal grand jury's investigation into the

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1995 disappearance of Kiplyn Davis, a 15-year-old high school student from Spanish Fork, Utah, last seen on May 2, 1995. After learning that Davis had not attended her afternoon classes that day, her parents began a frantic search to locate her. Despite the subsequent efforts of the local police and the FBI, Davis has not yet been found. Statements by various witnesses and potential suspects, however, suggest that Davis may have disappeared in the area near Spanish Fork Canyon.

During the months following Davis' disappearance, the FBI interviewed Olsen on six different occasions. In these interviews, Olsen gave differing statements regarding when he had last seen Davis--on the day of her disappearance, or two months prior. Olsen also provided agents with two inconsistent alibis, first claiming that he had spent May 2, 1995, installing sprinklers at a local reception center, but later stating that he had been shingling a shed with a friend, Scott Brunson. Brunson later corroborated the second alibi, and the police never charged Olsen with a crime during the initial investigation.

In the years following Davis' disappearance, the investigation hit what her father, Robert Davis, described as a "dead end." In 2003, however, Robert Davis learned that the government had convened a federal grand jury to investigate the high-profile disappearance of another Utah teenager, Elizabeth Smart. After Robert Davis wrote a letter to the United States Attorney for the District of Utah, the government agreed to open a grand jury investigation into Davis' case as well. The grand jury ultimately heard testimony from a substantial number of witnesses, including over twenty who would later testify at Olsen's federal perjury trial. Among the grand jury witnesses was Olsen himself, who was questioned extensively about statements he had made to friends, acquaintances, and law enforcement officials regarding Davis and the events of May 2, 1995.

Following his testimony before the grand jury, Olsen was indicted on September 22, 2005, on sixteen counts of perjury in violation of 18 U.S.C. § 1623(a). Although the trial court later dismissed one count as duplicative, the remaining fifteen counts alleged that Olsen had lied during his grand jury testimony. We briefly summarize these counts and the testimony presented by the government on each.

Counts One through Five charge Olsen with denying to the grand jury that he had previously made various statements regarding Davis' disappearance. Count One arose from Olsen's explanation to the grand jury of certain statements he made to an FBI polygraph examiner during the initial investigation. In October 1996, Olsen agreed to submit to a polygraph examination administered by FBI Agent Ronald Homer. At trial, Homer testified that during a pretest interview, 1 Olsen initially stated that he had no recollection of the events occurring on the afternoon of May 2, 1995. After Homer encouraged Olsen to be completely forthcoming, however, Olsen recounted that he had driven to Spanish Fork Canyon that day, where he saw a Ford Ranger that belonged to "Rucker" and then saw Rucker with Kiplyn Davis.

At Homer's request, Olsen wrote down his recollection that

[o]n May 2nd, 1995 I (Tim Olsen) saw Kiplyn [Davis] and Rucker up Spanish

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Fork Canyon in Rucker's Ranger, and I know it was Rucker. I followed Rucker out of the canyon and down Center Street. I remember Rucker and Kiplyn talking because I was there.

Olsen told Homer that after he saw Rucker and Davis talking, both walked away but only Rucker returned, at which point Rucker told Olsen not to worry about where Davis went. Homer testified at trial that he did not tell Olsen what to write, and lacked the familiarity with Spanish Fork evident in Olsen's written statement. By contrast, Olsen testified to the grand jury that Homer tried to "put stuff in [his] head" and that Homer told him specifically what to write. Count One charges that this statement was untrue.

Count Two also involved Olsen's pretest account to Homer. Before the grand jury, Olsen stated that he had never told the story he wrote down for Homer to anyone other than law enforcement. At Olsen's perjury trial, the government presented three civilian witnesses, each of whom recalled Olsen telling them a story similar to what Olsen later recounted to Homer.

Olsen's sister, Corri Olsen Hanks, testified that Olsen spoke to her after the interview with Homer. Olsen told Hanks that he had written down "exactly what happened": he saw Rucker and Davis at the canyon, and both walked over a hill but only Rucker returned. Robert Gilner, who worked with Olsen in July 1995, testified that Olsen told him and other coworkers that Rucker and Davis were together in Spanish Fork Canyon on the day of Davis' disappearance. According to Gilner, Olsen also told him that "Rucker had pulled out a flashlight and beat [Davis] over the head and buried her in a blanket." Finally, Shauna Mansfield testified that she confronted Olsen about Davis' disappearance in mid-1996. Olsen responded by telling Mansfield that he and Rucker took Davis to Spanish Fork Canyon, and Rucker took her away while Olsen remained in the truck. Rucker then came back to the truck for a flashlight, disappeared again, and later returned to tell Olsen, "I did her in. I hurt her."

Count Three alleged that Olsen perjured himself when he denied vomiting in Heath Robinson's car at a party in 1998. It also contended that Olsen perjured himself when he denied having told people at that same party that he saw a man and a woman leave his campsite at Spanish Fork Canyon on the day Davis disappeared, but only saw the man return. At trial, Robinson testified that Olsen indeed vomited in his car. Another attendee, Kevin Johnson, testified that he heard a "very emotional" Olsen say: "I didn't get out. I stayed in the truck. They was gone for a while. He came back, got in the truck and sped down the canyon."

In Count Four, the indictment charged that Olsen lied when he told the grand jury that he last saw Davis two to three months before she disappeared. Three witnesses testified at trial that Olsen told them he and Davis skipped school together on the afternoon of her disappearance. Olsen further told one of these witnesses that he had gone up to the mountains with Davis, engaged in an argument with her, and then "took care of her."

Count Five alleged that Olsen committed perjury before the grand jury when he stated that he "absolutely" never asked Brunson to provide him with a false alibi for the day of Davis' disappearance. Brunson testified to the contrary at trial, stating that Olsen "asked [him] for an alibi." Although he initially refused Olsen's request, Brunson eventually told FBI agents that he and Olsen spent the day building a shed together on May 2, 1995.2

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Counts Six through Nine charged Olsen with repeatedly perjuring himself when asked about his history of sexual violence. Count Six stated that Olsen committed perjury when he told the grand jury that he had never committed rape or forced a woman to have sex with him against her will. During Olsen's trial, the government presented testimony from two women, both of whom recounted that Olsen had raped them. In addition, three other witnesses gave testimony recalling, with varying degrees of specificity, that Olsen told them he had raped Davis.

Count Seven alleged that Olsen lied before the grand jury when he denied assaulting and raping Amber Payne, a former girlfriend, after she asked him about his role in Davis' disappearance. Payne also testified at Olsen's trial. She told the jury that after she...

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