U.S. v. Hutching, 93-7043

• Decision Date: 05 February 1996
• Docket Number: No. 93-7043,93-7043
• Citation: 75 F.3d 1453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Norwood HUTCHING, also known as Norwood, also known as "Cowboy", Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1453

75 F.3d 1453

UNITED STATES of America, Plaintiff-Appellee, v. James Norwood HUTCHING, also known as Norwood, also known as

"Cowboy", Defendant-Appellant.

No. 93-7043.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1996.

Joseph (Sib) Abraham Jr., El Paso, Texas, for Defendant-Appellant.

Robert J. Erickson, Attorney, Department of Justice, Washington, DC (John Raley, United States Attorney, Sheldon J. Sperling and Paul G. Hess, Assistant United States Attorneys, Muskogee, Oklahoma, with him on the brief), for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, ANDERSON and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant James Norwood Hutching challenges his convictions for drug conspiracy, 21 U.S.C. § 846 (Count 1); possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 18 U.S.C. § 2 (Count 2); possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (Counts 3-5); attempt to possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. § 2 (Count 6); interstate travel to promote racketeering, 18 U.S.C. §§ 1952, 2 (Counts 7-12, 28); conspiracy, 18 U.S.C. § 371 (Count 13); interstate travel with intent to commit murder, 18 U.S.C. §§ 1958, 2 (Count 14); continuing criminal enterprise, 21 U.S.C. § 848(a) (Count 15); killing of an individual in furtherance of a continuing criminal enterprise, 21 U.S.C. §§ 848(a), (e)(1)(A), and 18 U.S.C. § 2 (Count 16); receipt or possession of an unregistered firearm, 26 U.S.C. § 5861(d) and 18 U.S.C. § 2 (Count 17); possession of a firearm after a felony conviction, 18 U.S.C. §§ 922(g), 924(a)(2) (Counts 18-20); possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 21); carrying a firearm during the commission of a drug trafficking crime, 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2 (Count 22); money laundering, 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), 2 (Counts 23-24); and distribution of marijuana, 21 U.S.C § 841(a)(1) (Count 29). Our jurisdiction arises under 28 U.S.C. § 1291. We remand to the district court with instructions to vacate Mr. Hutching's conviction for drug conspiracy (Count 1); we affirm all the other convictions.

Background

The basic facts of this case are set out in United States v. McCullah, 76 F.3d 1087, (10th Cir.1996), and need not be restated here.

Discussion

I. Caldwell Violation

Mr. Hutching claims that the trial court erred by informing the jury of the possibility of appellate review. At the conclusion of voir dire, the trial judge, explaining side bar conferences to the jury, stated in part:

So that's the reason we have this conference, but it's always about things that I have to decide, that I have to make decisions about. And the court reporter is always there so it's taken down. There aren't any secrets. That's an official record. And if I make a decision--for example, if we are over here discussing whether or not some evidence ought to be admitted, some lawyer presents some evidence--asks a question and there is an objection. And I say, "Well, let's talk about this over here." I seek their advice over here. And if I say, "No, that's not a proper question, I'm not going to ask it," but there is a record made of it, and if I was wrong about it, in error, then there is an official record made of it. Somebody could appeal on that basis, if I've made a big enough boo boo that the whole thing ought to be reversed, or a new trial, then it can be. So I want you to know that even though we talk out of your hearing, that a record is being made of everything that we talk about over here.

32 R. 84-85. Defense counsel timely objected to these statements by the trial court. Mr. Hutching argues that these statements created the danger that the jury would minimize its own role in the criminal process and deprived him of due process and a fair trial.

Mr. Hutching relies on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), to support his contention that the trial court's remarks were prejudicial. In Caldwell, the prosecutor stated to the jury in closing argument of the penalty phase of a capital case:

Now, [defense counsel] would have you believe that you're going to kill this man and they know--they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.... For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court.

Caldwell, 472 U.S. at 325-26, 105 S.Ct. at 2638 (plurality opinion). Concluding that such remarks lessened the jury's sense of responsibility for its decision, the Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-39, 105 S.Ct. at 2639 (plurality opinion).

As an initial issue, the government contends that Mr. Hutching lacks standing to raise a Caldwell claim. We agree. Caldwell was particularly directed to the unique nature of a death sentence, and the opinion in Caldwell was based upon the "quantitative difference of death from all other punishments [which] requires a correspondingly greater degree of scrutiny of the capital sentencing determination." Id. at 329, 105 S.Ct. at 2639 (plurality opinion). Mr. Hutching was not sentenced to death and thus lacks standing to allege a Caldwell violation. Cf. Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646 (the judgment in Caldwell was only "reversed to the extent that it sustains imposition of the death penalty"). The Supreme Court has not extended Caldwell beyond the capital sentencing realm, and we decline to do so here.

Even if Mr. Hutching had standing to challenge the trial court's remarks (as his codefendant, Mr. McCullah, does), we do not find that the remarks constitute a Caldwell violation. The Supreme Court has "read Caldwell as 'relevant only to certain types of comment--those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.' " Romano v. Oklahoma, --- U.S. ----, ----, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 2472 n. 15, 91 L.Ed.2d 144 (1986)). See also Hopkinson v. Shillinger, 888 F.2d 1286, 1293 (10th Cir.1989) (en banc), cert. denied, 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990). Here, the trial court was merely explaining how and why a record is made. The statements during voir dire did not tend to minimize the jury's responsibility with regard to the death sentence and referred only to the possibility of appellate review of the trial judge's errors during the trial, not the jury's responsibility during sentencing. In Dugger v. Adams, the Supreme Court stated, "[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989). Mr. Hutching makes no such claim.

II. Sufficiency of the Evidence

Mr. Hutching contends that there was insufficient evidence to support his convictions for engaging in a continuing criminal enterprise (Count 15) and for causing the intentional killing of an individual while engaging in a continuing criminal enterprise (Count 16).

In reviewing the sufficiency of evidence supporting a conviction, we examine the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the government and " 'ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Levine, 41 F.3d 607, 610 (10th Cir.1994) (quoting United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 616, 126 L.Ed.2d 580 (1993)). "We consider both direct and circumstantial evidence and accept the jury's resolution of conflicting evidence and its assessment of the credibility of witnesses." Levine, 41 F.3d at 610.

A. Count 15

Mr. Hutching claims that the evidence fails to establish that he occupied "a position of organizer, a supervisory position, or any other position of management" with respect to five other persons in the criminal enterprise as required by the statutory definition of engaging in a continuing criminal enterprise. See 21 U.S.C. § 848(c). ^* The terms "organizer," "manager," and "supervisor" as used in § 848(c) are given their "nontechnical, 'everyday meanings.' " United States v. Jenkins, 904 F.2d 549, 553 (10th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990). See also United States v. Smith, 24 F.3d 1230, 1233 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 270, 130 L.Ed.2d 188 (1994). "[T]he defendant need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons." Jenkins, 904 F.2d at 553 (emphasis in original). "An organizer arranges a number of people engaged in separate activities into an essentially orderly operation," and a supervisor gives orders or directions to another person who carries them out. Smith, 24 F.3d at 1233. See also United States v. Apodaca, 843 F.2d 421, 426 (10th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988). " 'The defendant's relationships with the other persons need not have existed at the same time, the five persons involved need not have acted in concert at the same time or with each other, and the same type of relationship need not exist between the defendant and each of the five.' " Smith, 24 F.3d at 1233 (quoting Apodaca, 843...