75 F.3d 1453 (10th Cir. 1996), 93-7043, United States v. Hutching

Docket Nº:93-7043.
Citation:75 F.3d 1453
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Norwood HUTCHING, also known as Norwood, also known as
Case Date:February 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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75 F.3d 1453 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


James Norwood HUTCHING, also known as Norwood, also known as

"Cowboy", Defendant-Appellant.

No. 93-7043.

United States Court of Appeals, Tenth Circuit

February 5, 1996

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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.

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§ 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.


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.


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...

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