577 F.3d 1204 (10th Cir. 2009), 06-1107, United States v. Pursley

Docket Nº:06-1107.
Citation:577 F.3d 1204
Opinion Judge:HOLMES, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl W. PURSLEY, Jr., Defendant-Appellant.
Attorney:J. Michael Dowling, J. Michael Dowling & Associates, Denver, CO, for Defendant-Appellant. James C. Murphy, Assistant United States Attorney (Troy A. Eid, United States Attorney, and Matthew Kirsch, Assistant United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.
Judge Panel:Before MURPHY, BALDOCK, and HOLMES, Circuit Judges.
Case Date:August 21, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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577 F.3d 1204 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carl W. PURSLEY, Jr., Defendant-Appellant.

No. 06-1107.

United States Court of Appeals, Tenth Circuit.

August 21, 2009

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J. Michael Dowling, J. Michael Dowling & Associates, Denver, CO, for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney (Troy A. Eid, United States Attorney, and Matthew Kirsch, Assistant United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before MURPHY, BALDOCK, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant Carl William Pursley, Jr., was charged, along with three codefendants, (1) with conspiring to retaliate against a witness in violation of 18 U.S.C. § § 1513(b)(1) and 371 (2005),1 and (2) with retaliating against a witness in violation of 18 U.S.C. § 1513(b)(1) and aiding and abetting the commission of this crime in violation of 18 U.S.C. § 2. The testimony of a witness named Jessie Cluff had been used to secure a conviction against Mr. Pursley for various tax-fraud offenses. After testifying, Mr. Cluff was brutally beaten in a cell at the courthouse. A video camera captured the attack. Mr. Pursley was convicted on both counts along with his codefendants.

On appeal, Mr. Pursley challenges many of the district court's procedural and evidentiary rulings. Procedurally, Mr. Pursley argues that the district court abused its discretion in refusing to sever his trial from that of his codefendants, in refusing to grant his motions to continue the trial, and in refusing to grant his subpoena requests. With respect to the district court's evidentiary rulings, Mr. Pursley argues that the district court improperly admitted both testimonial hearsay from the victim and an excerpt of Mr. Pursley's opening argument in the tax-fraud case.

We reject each of Mr. Pursley's challenges. Accordingly, we affirm the district court's judgment.

BACKGROUND

A. Factual Summary2

Mr. Pursley and a fellow inmate, Wendel Wardell, were charged under federal law with various counts of tax fraud.3

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United States v. Pursley, 474 F.3d 757, 761 (10th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 47, 169 L.Ed.2d 42 (2007). Mr. Cluff, an inmate who participated in the tax-fraud scheme, testified against Mr. Pursley and Mr. Wardell. Mr. Pursley's attorney described Mr. Cluff as the government's " star witness" in her opening argument. Aplee. Br. Attach. 4, Tr. at 4 (Gov't Ex. 5 (Jury Trial, dated May 16, 2005)) [hereinafter Gov't Ex. 5].

After testifying against Mr. Pursley and Mr. Wardell, Mr. Cluff was assaulted in his holding cell at the federal courthouse in Denver, Colorado. Shawn Shields and Vernon Templeman, also inmates, were in the holding cell with Mr. Cluff. Mr. Shields was the principal assailant. A surveillance camera captured the assault, although it was not equipped for audio surveillance.

Mr. Wardell and Mr. Pursley were in a separate holding cell within the cellblock. Mr. Shields and Mr. Templeman were at the courthouse pursuant to writs of habeas corpus ad testificandum, so that they could testify on behalf of Mr. Wardell and Mr. Pursley in the tax-fraud prosecution. Both Mr. Shields and Mr. Templeman appeared on the witness lists of Mr. Wardell and Mr. Pursley, but neither was called to testify.

The government indicted Mr. Wardell, Mr. Pursley, Mr. Shields, and Mr. Templeman on two counts: (1) conspiracy to retaliate against a witness, in violation of 18 U.S.C. § § 371 and 1513(b)(1); and (2) retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(1), and aiding and abetting the commission of this crime, in violation of 18 U.S.C. § 2. The government alleged that Mr. Wardell and Mr. Pursley conspired with Mr. Shields and Mr. Templeman to effectuate the assault on Mr. Cluff as revenge for Mr. Cluff's testimony against Mr. Wardell and Mr. Pursley in the tax-fraud case.

Mr. Wardell and Mr. Pursley proceeded pro se, after waiving their right to counsel before the district court. Mr. Pursley was assisted by advisory counsel, who was later appointed. At trial, the jury heard three days of testimony. Of particular relevance to this appeal is the testimony of four witnesses: (1) Mr. Cluff; (2) Mr. Hoskins, an inmate who was in Mr. Pursley's cell at the time of the assault; (3) IRS Agent Moon, who was in charge of the tax-fraud investigation; and (4) Deputy U.S. Marshal Moltzan, who was on duty at the time of the assault.

B. Mr. Cluff's Testimony

Mr. Cluff testified that he took part in the tax-fraud scheme for which Mr. Wardell and Mr. Pursley were prosecuted. At the time, he was serving a 48-year sentence, the result of a long history of felony convictions. Mr. Cluff agreed to cooperate with the government in exchange for immunity. After giving a statement to the IRS, he began to fear for his safety. He expressed his fears in a letter to Agent Moon. A few days prior to his testimony in the tax-fraud trial, Mr. Cluff encountered Mr. Shields in a holding cell at the courthouse. Both Mr. Cluff and Mr. Shields were in full restraints. Although they did not tell each other their names, Mr. Cluff's name was printed on his prison shirt. During a brief exchange, Mr. Shields falsely told Mr. Cluff that he was there on a gun charge.

Mr. Cluff subsequently appeared as a witness against Mr. Pursley and Mr. Wardell at the tax-fraud trial. He informed the jury that he participated directly with Mr. Wardell in filing false tax returns. Mr. Cluff also testified that Mr. Wardell

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and Mr. Pursley " corresponded during the period of time that those returns were being filed." R., Vol. XII, Tr. at 457 (Jury Trial, dated Dec. 7, 2005). As Mr. Cluff was exiting the courtroom, Mr. Pursley told him, " Good luck." Id. at 459 (internal quotation marks omitted). Mr. Cluff interpreted the statement to mean that he " was going to need good luck." Id. at 460.

On the day of the assault, which was several days after Mr. Cluff testified against Mr. Pursley and Mr. Wardell, Mr. Cluff was brought to the courthouse. He was placed in a holding cell with Mr. Templeman and two other inmates. Mr. Shields was later placed in Mr. Cluff's cell. Mr. Wardell and Mr. Pursley were in a nearby cell. Before the assault, Mr. Shields yelled down to Mr. Wardell and Mr. Pursley; he thanked Mr. Pursley " for getting him out of CSP." 4 Id. at 465-66. Mr. Templeman also thanked Mr. Pursley for getting him out of CSP. In response, Mr. Pursley told Mr. Shields " that there was a reason why he was down there," to which Mr. Shields promptly retorted that " it would be easier than he thought." Id. at 466. Mr. Pursley further informed Mr. Templeman and Mr. Shields that another prisoner that also was in the cell with them and Mr. Cluff was " cool." Id. at 467. That prisoner testified at the tax-fraud prosecution, but his testimony did not implicate Mr. Wardell or Mr. Pursley.

At some point, Mr. Cluff overheard Mr. Shields and Mr. Templeman whisper to each other in the back of the cell. Quickly thereafter, Mr. Shields turned to Mr. Cluff and " told [him] that [his] worst nightmare had come true. That he was friends with Carl Pursley." Id. at 467. Mr. Cluff pleaded with Mr. Shields that he never testified against Mr. Pursley. Mr. Shields refused to believe Mr. Cluff's entreaties, calling him a " lying rat." Id. at 468. Mr. Shields then said that " the whole purpose of his trip was to get [Mr. Cluff]" and that, if Mr. Cluff had not been shackled during their initial meeting, " they" would have " killed" him. Id. at 469.

Just before the assault, Mr. Shields told Mr. Cluff that " he was going to enjoy this" and that such violence should be inflicted on " all rats." Id. at 470-71. Mr. Shields then hit Mr. Cluff in the mouth, shattering his dental plate. Although Mr. Cluff could not recall the entirety of the assault, he did remember that, at one point, Mr. Shields warned him " not to try to get help again." Id. at 471. Shortly thereafter, Mr. Shields punched Mr. Cluff and " busted ... open" his eye. Id. at 472. The assault lasted for approximately seventy seconds.

When the assault was finally over, Mr. Shields ordered Mr. Cluff to clean himself. Mr. Shields and Mr. Templeman then proceeded to wipe up the blood on the floor. Shortly thereafter, Mr. Wardell yelled down from his cell, telling Mr. Cluff, " That's what you get, you fucking rat." Id. at 472 (internal quotation marks omitted). Mr. Wardell further exclaimed, " If you know what's good for you, you better have your mom send me some money." Id. (internal quotation marks omitted).

Mr. Cluff testified that he did not signal for help immediately after the assault, for fear that he would incur " another beating." Id. at 473-74. Ultimately, he was removed from the cell thirty or forty minutes after the assault and placed in another cell in the same cellblock. At the time of his removal, he asked for medical treatment, but he did not describe to the marshals the origin of his injuries, as he was in " fear [for his] life." Id. at 474. He vomited blood during the transfer.

When Mr. Cluff was placed in the new cell, he was in " [s]evere" pain. Id. Eventually, he was taken to the hospital for

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treatment. Mr. Cluff testified that, during his transportation to the hospital, he made statements to the federal marshal " about what had actually happened in the cell block." Id. at 475. The government did not ask Mr. Cluff to describe the content of those...

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