U.S. v. Mitcheltree

• Decision Date: 24 July 1991
• Docket Number: No. 89-6406,89-6406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. JoAnn MITCHELTREE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1329

940 F.2d 1329

UNITED STATES of America, Plaintiff-Appellee, v. JoAnn MITCHELTREE, Defendant-Appellant.

No. 89-6406.

United States Court of Appeals,

Tenth Circuit.

July 24, 1991.

Richard M. Wintory, Special Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty. and Merri L. Hankins, Asst. U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.

Before McKAY, ANDERSON and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

By superseding indictment, defendant-appellant JoAnn Mitcheltree was indicted in five of ten counts of an indictment charging, in pertinent part, seven defendants with various offenses arising out of the alleged distribution of the drug methylenedioxymethamphetamine or MDMA. After a jury trial, defendant was convicted on three counts: (1) count four, introducing a misbranded drug into interstate commerce with the intent to mislead or defraud, 21 U.S.C. Secs. 331(a) & 333(a)(2), ¹ (2) count one conspiracy to commit this offense, 18 U.S.C. Sec. 371, ² and (3) count ten, witness tampering, 18 U.S.C. Sec. 1512(b)(3). ³ Defendant was acquitted on count two, conspiracy to distribute a controlled substance analogue, 21 U.S.C. Secs. 813 & 846. The jury was unable to reach a verdict on count nine, another witness tampering count, and upon motion of the government that count was dismissed with prejudice.

Counts one and four occurred before the effective date of the Sentencing Guidelines, and the district court sentenced defendant to six months imprisonment on each count. Defendant was sentenced in accordance with the Guidelines on count ten because the offense occurred after their enactment; based upon a total offense level of fifteen and criminal history category of II, she was sentenced to twenty-one months imprisonment, and to an additional consecutive month for committing an offense (count ten) while on release, 18 U.S.C. Sec. 3147. The sentences on counts one and four ran concurrently with one another and with the sentence on count ten; accordingly, defendant was sentenced to a term of twenty-two months. ⁴

Defendant was represented by retained counsel at trial. With one exception, appellate counsel has not pursued the points preserved as potential error by trial counsel; rather, appellate counsel pursues, under a plain error theory, claims which were not raised at trial. ⁵ Usually, an appellate court will not set aside a judgment based upon errors which were not brought to the attention of the trial court. United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). Fairness and efficiency considerations counsel against noticing such errors when the opportunity to present them has passed. Id. Fed.R.Crim.P. 52(b) tempers this somewhat by providing that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Errors may be noticed for the first time on direct appeal "if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." Atkinson, 297 U.S. at 160, 56 S.Ct. at 392. This power is reserved for "exceptional circumstances," id., and it "is to be used sparingly, solely in those circumstances in which a miscarriage of justice would result." United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 163 n. 14, 71 L.Ed.2d 816 (1982).

Even if error did occur, we review plain error claims against a backdrop of the entire record to determine whether the error was sufficient to "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). To find reversible plain error, we must be satisfied that the error not only affected substantial rights in a serious way, but also that the "error had an unfair prejudicial impact on the jury's deliberations." Id. at 16-17 n. 14, 105 S.Ct. at 1047 n. 14. "Only then would a court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice." Id. Consequently, plain error is " 'both obvious and substantial.' " United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.1991) (quoting United States v. Brown, 555 F.2d 407, 420 (5th Cir.1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978)).

An error of constitutional significance may be "noticed more freely than less serious errors." See 3A C. Wright, Federal Practice & Procedure Sec. 856 at 336, 342 (1982 & 1990 Supp.); Jefferson, 925 F.2d at 1254. Notwithstanding, many constitutional errors are "not prejudicial per se." 8B J. Moore, Moore's Federal Practice p 52.03 (1990). Rather, under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), many constitutional errors may be deemed harmless and not reversible when a reviewing court is "able to declare a belief that it was harmless beyond a reasonable doubt." See also United States v. Rivera, 900 F.2d 1462, 1469-70 (10th Cir.1990) (en banc) (discussing differing standards of review for nonconstitutional and constitutional claims). ⁶ The harmless error doctrine embodies the oft-stated concept that the Constitution only requires that a defendant receive a fair trial, not a perfect one, and the "virtually inevitable presence of immaterial error" does not impair a jury's resolution of the central inquiry in every criminal trial: "the factual question of the defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).

On appeal, defendant contends that (1) the district court admitted evidence concerning a surreptitiously recorded conversation between a government informant and the defendant, in violation of defendant's sixth amendment right to counsel, (2) trial counsel rendered ineffective assistance by failing to move for the suppression of that evidence, (3) the district court erred by not defining "misleading conduct" in the jury instructions concerning witness tampering, (4) the district court should not have considered defendant's witness tampering conviction as an offense committed while on release for purposes of enhancement under 18 U.S.C. Sec. 3147, and (5) insufficient evidence supports the conviction on counts one and four of the indictment (the MDMA misbranding counts) because the government did not demonstrate an intent to mislead or defraud a natural person or a government agency pursuant to 21 U.S.C. Sec. 333(a)(2). We reverse.

As for the counts involving MDMA offenses, we agree with the defendant that her sixth amendment right to counsel was violated by the introduction of her surreptitiously taped conversation with the government's informant. However, we need not reach the issue of whether the introduction of these statements constituted plain error because we reverse the MDMA convictions (counts one and four) on other grounds and remand for a new trial.

As for the witness tampering count conviction (count ten), we hold that evidence of the taped conversation is a product of the sixth amendment violation concerning the MDMA counts, notwithstanding that the government's purpose was to investigate the separate offense of witness tampering. Upon a proper suppression motion, the taped conversation should have been excluded as evidence on count ten, given the charge (contained in the government's bill of particulars) that defendant misled her pretrial services officer concerning the substance of the conversation. Even absent proper objection, we still must reverse and remand for a new trial on count ten because we cannot say that this constitutional error was harmless beyond a reasonable doubt.

Because we reverse and remand for a new trial on count ten, we do not consider defendant's arguments that the district court erred by (1) failing to define misleading conduct in the jury instructions ⁷ and (2) enhancing her sentence under 18 U.S.C. Sec. 3147; nor do we resolve the ex post facto sentencing guideline problem suggested by defendant on appeal. Likewise, given our disposition, we need not consider defendant's claim of ineffective assistance of counsel.

Returning to MDMA counts one and four, we hold that while sufficient evidence exists concerning defendant's intent to mislead or defraud consumers, by no means does the record contain sufficient evidence of misleading or defrauding a government agency. We reject the government's assertion that, for purposes of 21 U.S.C. Sec. 333(a)(2) and 18 U.S.C. Sec. 371, an intent to defraud a local police department by selling misbranded drugs is a sufficient basis to sustain convictions of this nature. Because the case was submitted to the jury on either theory (misleading consumers or defrauding a government agency including a local police department) and a general verdict form was used, we cannot tell on which theory or theories the jury convicted. Accordingly, defendant's convictions on MDMA counts one and four must be reversed and remanded for further proceedings.

I. Facts

The events in this case involve MDMA, a "designer drug" sometimes known as "ecstasy," which did not become subject to federal controlled substance penalties until October 27, 1986. MDMA is a controlled substance analogue. As such, it produced effects similar to various controlled substances, but differed enough to fall outside the classification of existing controlled substances. Rec. supp. vol. VI at 871-73. The government's efforts to schedule MDMA as a controlled substance did not fare well initially. Pursuant to 21 U.S.C. Sec. 811(h), the DEA sought to schedule temporarily MDMA as a schedule I controlled substance. 50 Fed.Reg. 22,119 (1985). In United States v. Spain, 825 F.2d 1426 (10th Cir.1987),...