U.S. v. Bowen

• Decision Date: 02 June 2008
• Docket Number: No. 07-1216.,07-1216.
• Citation: 527 F.3d 1065
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aaron R. BOWEN, also known as Aaron Seicrest, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

527 F.3d 1065

UNITED STATES of America, Plaintiff-Appellee, v. Aaron R. BOWEN, also known as Aaron Seicrest, Defendant-Appellant.

No. 07-1216.

United States Court of Appeals, Tenth Circuit.

June 2, 2008.

Susan L. Foreman, Denver, CO, for Defendant-Appellant.

Andrew Vogt, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the briefs), Denver, CO, for Plaintiff-Appellee.

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury issued a Second Superseding Indictment charging Defendant Aaron Bowen with (1) Aiding and Abetting the Retaliation Against a Witness, in violation of 18 U.S.C. §§ 1513(b)(2) & 2; (2) Conspiracy to Retaliate Against a Witness, in violation of 18 U.S.C. §§ 1513(b)(2) & 371; and (3) Aiding and Abetting the Possession and Brandishing of a Firearm in Furtherance of a Federal Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2. A petit jury convicted Bowen on all counts. On appeal, Bowen raises three points of error. First, Bowen argues the district court erred in ruling that the use of a firearm as a club constituted "brandishing" of a firearm, rather than mere "use" of a firearm, under the meaning of 18 U.S.C. § 924(c)(1)(A). Second, Bowen maintains that the evidence presented at trial was insufficient to support his conviction under 18 U.S.C. § 924(c)(1)(A). Third, Bowen requests we remand this case with instruction to the district court to conform its written judgment to the lower sentence the district court announced at sentencing. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm Bowen's conviction under 18 U.S.C. § 924(c)(1)(A), and remand for the district court to bring its written judgment into conformity with its previously imposed, oral sentence.

I.

We review the sufficiency of the evidence in the light most favorable to the Government. See United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir.2002). Accordingly, the factual summary offered below is taken directly from the testimony of the Government's two primary witnesses at trial, Clifford Cline and Marissa Yingling-Winbush. Where the accounts of these witnesses diverge, we set forth the facts as described by Cline, the victim in this case.

Clifford Cline worked as a truck driver and dispatcher. Cline befriended his coworker Dawnese Yingling (Yingling), who introduced him to the use of methamphetamines. When Cline fell on hard times, Yingling allowed him to move into her home. Yingling resided in a mobile home situated in a mobile home park outside Denver, Colorado. Also periodically living with Yingling was her daughter Marissa Yingling-Winbush (Winbush).¹

While living with Yingling, Cline met and formed a relationship with Holly Siltz, another resident of the mobile home park. Cline eventually moved in with Siltz, who shared a mobile home with her daughter, Laray, and several other persons. Joshua Hall (Hall), Laray's boyfriend, was one of the individuals periodically living in Siltz's home. During the time in which Cline lived with Siltz, Cline witnessed several of Hall's associates visiting Hall at the mobile home park. These associates included Defendant Aaron Bowen, Lenny Gooden, and Hall's brother, Michael Hall.

In partial payment for his board, Cline gave Hall and Laray the use of his second vehicle, a station wagon. Hall, in turn, lent the station wagon to his brother Michael. Police stopped Michael Hall while he was driving the station wagon and arrested him, impounding the car. Officials phoned Cline to inform him of his car's location and explained to him how he could retrieve it. Hall, Laray, and Cline then pooled their money and reacquired the station wagon. Subsequently, Cline returned the vehicle to Hall and Laray.

A month later, Cline received a phone call from an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding a sawed-off shot gun officers had found in his vehicle. Cline disclaimed any knowledge of the gun and, at the agent's request, agreed to give ATF a statement to that effect. Hall, the subject of several outstanding arrest warrants, was present during this conversation, which took place in Siltz's mobile home. Because Hall did not want his name involved in ATF's investigation, he and Cline agreed that Cline would tell ATF he lent the station wagon directly to Michael Hall.

To ensure Cline stuck to this story, Hall asked Siltz to accompany Cline when he visited ATF's office. ATF personnel, however, separated Siltz from Cline during his interview. This angered Siltz because she was unable to hear what Cline told government officials. On Cline and Siltz's return to the mobile home park, Hall extensively questioned Cline as to the content of his statement. Cline assured him that he told ATF agents he had lent the station wagon directly to Michael Hall.

Thereafter, Hall periodically sought reassurances from Cline that he had, in fact, stuck to their agreed upon tale. One day, while Cline was watching television with Siltz, Hall approached Cline from behind and struck him over the head several times, without apparent provocation. Hall accused Cline of breaking their agreement and threatened to harm Cline's father and children, who were in foster care. Cline responded by contacting ATF and informing an agent that Hall and his associates were stealing money from drug dealers. Subsequently, Cline began to distance himself from his acquaintances at the mobile home park, often choosing to stay, instead, with his father.

Some time later, Winbush and Hall checked into a motel for a few days. During the second day of their stay, Winbush commented to Hall that she had received a phone message from Cline. Hall asked Winbush to ask Cline to come to the motel. Hall wished to question Cline about what he told ATF regarding his brother Michael. Hall indicated that if he didn't "do something about Cline" his brother might "do something worse." Subsequently, Winbush called Cline and asked him to come to the motel. Cline came to the motel and entered Winbush's room. Winbush then closed and locked the door behind him.

At this point, Hall emerged from the bathroom holding a gun and instructed Cline to sit on the bed. Cline complied and Hall situated himself on a chair placed between Cline and the door. During this encounter, Hall pulled the clip out of his gun two to three times and then pushed it back in — revealing the clip was fully loaded. Hall proceeded to question Cline about his involvement with ATF, implying that Cline was a law enforcement "snitch." When Cline denied working for ATF, Winbush called him a liar and Hall struck him with his fists and the gun.

Subsequently, Hall used Winbush's cell phone to make a call to an unknown associate. Hall requested that this individual come to the motel, explaining "we have another one, hostage, remember that guy Cliff?"² Shortly thereafter, Defendant Aaron Bowen, Lenny Gooden, and Travis Miller appeared at the motel room. After they had entered the room, Hall mentioned ATF. Bowen then pointed to Cline and asked "is that the guy?" Hall responded in the affirmative. Cline testified that Bowen, Gooden, and Miller appeared angry and that they did not seem surprised to find him in a captive state.³

After the arrival of his associates, Hall again accused Cline of being a law enforcement snitch. When Cline denied this charge, Defendant Bowen struck Cline with his fists and feet. Hall joined in, striking Cline with his fists. Cline testified that he was "90 percent" certain that Hall also used the pistol to strike him at some point after Bowen entered the hotel room. The volume of Cline's screaming eventually began to concern his assailants. An unknown individual placed a pillow over Cline's face and told him to be quiet, as the beating continued. Periodically, Hall also gave methamphetamines to Cline in order to calm him.

Cline eventually tried to escape by hurling himself at a window. But the window held, bouncing an injured Cline back into the motel room. For this attempt at escape, Hall and Bowen administered an additional beating to Cline. Still concerned that the noise resulting from Cline's cries may have attracted unwanted attention, Hall and his associates decided to leave the motel. Bowen and Miller left first, followed by Gooden. Then Winbush, Cline, and Hall exited the motel room with Hall positioning himself behind Cline. Cline and his captors then entered the parking lot.

Defendant Bowen and Miller proceeded to situate themselves in Cline's truck. Hall had unintentionally broken a key off in the ignition of Cline's truck a month earlier. Hence, one had to start the truck in a peculiar way. Despite this oddity, Cline noted that Bowen and Miller had no difficulty starting and driving away in his vehicle. Subsequently, Gooden, Winbush, Cline, and Hall entered Gooden's car. Hall placed Cline in the front passenger seat and sat directly behind him. Gooden sat in the driver's seat and Winbush situated herself behind him. During the ensuing drive, Hall instructed Cline not to look out the window or signal for aid. Whenever Hall felt Cline was paying insufficient attention to his instructions, he struck Cline with the gun.

About fifteen minutes later, Gooden, Cline, Hall, and Winbush arrived at a mobile home belonging to Gooden's parents. They walked past Gooden's mother and into a living area in the rear of the trailer, in which they found Gooden's half-brother Dathan. A short time later, Defendant Bowen and Miller also appeared. Asked again whether he was working with ATF, Cline continued to proclaim his innocence. This resulted in several additional beatings in which Hall, Bowen, and Dathan struck Cline. Hall also periodically used his gun to bludgeon Cline during these assaults. Eventually, Gooden put an end to the beating. At this point, Defendant Bowen inquired as to what Hall would like to do with...