U.S. v. Burch
| Citation | 113 F.3d 1247 |
| Parties | 97 CJ C.A.R. 774 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Decision Date | 29 November 1993 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Before ANDERSON, TACHA, and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
A jury convicted Gale F. Burch of one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). On appeal, Ms. Burch argues that the district court erred by: (1) failing to suppress certain statements, (2) denying her motion for judgment of acquittal based on insufficient evidence, (3) giving an Allen instruction to the jury, and (4) rejecting her objection to sentencing enhancements for her role in the offense and obstruction of justice. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
On June 4, 1995, at approximately 2:30 p.m., Kansas Highway Patrol Trooper Brian Smith stopped a semi-trailer for a routine safety and equipment inspection. Gerald Burch was the driver of the truck; his wife, the defendant Gale Burch, was a passenger in the vehicle.
Trooper Smith proceeded to inspect the exterior of the vehicle. After filling out some paperwork, Trooper Smith asked to examine the cargo in the trailer. When Mr. Burch opened the trailer, Trooper Smith immediately smelled marijuana and mothballs. Trooper Smith observed a number of boxes located near the rear of the trailer. Trooper Smith opened one of the boxes and discovered that it contained marijuana. Subsequent tests indicated that the trailer contained 538 pounds of marijuana.
Trooper Smith placed the Burches under arrest and advised them of their rights. Trooper Smith then transported them to the Osage County Jail in Lyndon, Kansas.
At approximately 4:00 p.m., Trooper Gary Haak, a Kansas Highway Patrol liaison working with the Drug Enforcement Administration, arrived at the Osage County Jail to interview the Burches. Trooper Haak first interviewed Mr. Burch. At approximately 5:15 p.m., Trooper Haak began interviewing Ms. Burch. Trooper Haak filled out a personal history report and then advised Ms. Burch of her rights. Ms. Burch acknowledged her rights and indicated that she did not wish to speak with Trooper Haak. At that time, Trooper Haak terminated the interview.
At approximately 5:30 p.m., Trooper Haak learned that Ms. Burch wanted to speak with him. Ms. Burch confessed to Trooper Haak that she was involved in the receipt and planned delivery of the marijuana. The hour-long interview concluded with the understanding that Ms. Burch would cooperate with the authorities by making a controlled delivery of the marijuana in Chicago, Illinois.
Trooper Haak proceeded to make arrangements for the controlled delivery. The next day, Trooper Haak returned to the jail to make final arrangements with the Burches for the controlled delivery. Ms. Burch asked Trooper Haak if she would be placed in jail in Chicago after the controlled delivery. Trooper Haak advised her that she could possibly spend some time incarcerated. Apparently frustrated with the arrangement, Ms. Burch refused to make the controlled delivery or to cooperate further with the authorities.
On June 13, 1996, a federal grand jury indicted Ms. Burch on one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). On June 14, 1996, the court appointed her counsel based on her financial affidavit in which she represented that she was not employed, that her husband was not employed, and that she had no other income, cash, or property. The court then released her on a $10,000 unsecured bond. Seven months later, security personnel stopped Ms. Burch in LaGuardia Airport in New York. She was carrying $60,000 in cash on her person. The district court therefore ordered that Ms. Burch be detained pending trial.
A jury trial commenced on April 22, 1996. The jury received the case for deliberation at approximately 4:15 p.m. on April 23, 1996. Around noon on April 24, the jury gave a note to the court stating that the jury wanted the court reporter to reread Trooper Smith's conversation with Ms. Burch at the scene of the arrest and Trooper Haak's interview with Ms. Burch. The district court sent a note to the jury explaining that a read back would be a difficult and time-consuming process and that the jury should try to resolve the case using their collective recollection.
At approximately 2:45 p.m., the jury sent another note to the court. The note, which the jury foreperson signed, stated: The court confirmed that the jury was deadlocked. In response to this note, the court issued an Allen 1 instruction to the jury. The jury then returned to its deliberations.
At approximately 3:35 p.m., the jury sent the court another note. The note stated: After receiving the note, the court concluded that the court reporter should read back the requested testimony. The read-back lasted approximately an hour, concluding around 5:00 p.m. The jury returned to its deliberations. At approximately 5:10 p.m., the jury returned a verdict of guilty on both counts of the indictment.
Ms. Burch argues that the district court erred in failing to suppress her confession to Trooper Haak. She contends that her statements were not voluntary and that the district court failed to give adequate weight to several factors relevant to the voluntariness of her statements.
The voluntariness of a confession is a legal question subject to de novo review based on the entire record. Griffin v. Strong, 983 F.2d 1540, 1541 (10th Cir.1993). "But the trial court's rulings with regard to subsidiary factual questions, such as whether the police intimidated or threatened a suspect or whether the suspect was particularly susceptible to police coercion, are subject to review under the clearly erroneous standard." United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987)
In determining whether a particular statement is involuntary or coerced, we consider the following factors: (1) the age, intelligence, and education of the defendant; (2) the length of the detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of her constitutional rights; and (5) whether the defendant was subjected to physical punishment. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir.1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Because no single factor is dispositive, the determination of voluntariness is based on the totality of the circumstances. United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991).
We have reviewed the record and agree with the district court's conclusion that Ms. Burch's statements were voluntary under the totality of the circumstances. The record contains no evidence that the age, intelligence, or education of Ms. Burch prevented her from voluntarily making her statements to Trooper Haak. Nor does the record contain any evidence that Ms. Burch was subjected to physical threats or punishment. Instead, the record shows that immediately after Trooper Smith arrested Ms. Burch, he advised her of her rights. Trooper Smith then transported Ms. Burch to the Osage County Jail for questioning. At approximately 5:15 p.m., Trooper Haak again advised her of her rights. She indicated that she understood her rights by initialing a standard rights form. When she stated that she did not wish to talk to Trooper Haak, the interview ceased. Less than an hour later, Ms. Burch indicated that she wanted to talk to Trooper Haak. Trooper Haak then interviewed her for approximately one hour. The record contains no evidence that Trooper Haak ever made any express or implied promise of leniency to Ms. Burch. See United States v. Garot, 801 F.2d 1241, 1244-45 (10th Cir.1986). Instead, when asked, Trooper Haak informed Ms. Burch that she would probably spend some time incarcerated. Under such circumstances, we conclude that Ms. Burch's statements were voluntary. Thus, the district court did not err in denying Ms. Burch's motion to suppress.
II.SUFFICIENCY OF THE EVIDENCE
Ms. Burch argues that the district court erred in denying her motion for judgment of acquittal because the evidence was insufficient to support a criminal conviction. We review the record for sufficiency of the evidence de novo. United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir.1994). "Evidence is sufficient to support a criminal conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most...
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