U.S. v. Clifton

• Decision Date: 25 April 2005
• Docket Number: No. 04-2046.,04-2046.
• Citation: 406 F.3d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carla Lyn CLIFTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

406 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Carla Lyn CLIFTON, Defendant-Appellant.

No. 04-2046.

United States Court of Appeals, Tenth Circuit.

April 25, 2005.

COPYRIGHT MATERIAL OMITTED

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Hope Eckert, Attorney at Law, LLC (John D. Cline, Freedman Boyd Daniels Hollander Goldberg & Cline P.A., with her on the brief), Albuquerque, NM, for Defendant-Appellant.

Before EBEL, BALDOCK, and HARTZ, Circuit Judges.

BALDOCK, Circuit Judge.

A jury convicted Defendant Carla Lyn Clifton on three counts of knowingly making false declarations before a Federal grand jury in violation of 18 U.S.C. § 1623(a). The district court sentenced her to forty-one months imprisonment. Defendant appeals her conviction and sentence. She argues the district court (1) improperly instructed the jury on reasonable doubt, (2) improperly allowed the Government to introduce inadmissible evidence under the guise of impeachment, and (3) imposed an incorrect and unconstitutional sentence under the United States Sentencing Guidelines ("Guidelines").¹ We have jurisdiction, 28 U.S.C. § 1291, affirm in part, and remand for re-sentencing.

I.

The historical facts in this case arise out of the Drug Enforcement Administration's (DEA) investigation into a cocaine distribution ring in Albuquerque, New Mexico. The story, as portrayed in the light most favorable to the jury verdict, begins when the DEA seized 1.4 kilograms of crack cocaine from the home of Robert Beal. DEA agents thereafter learned an individual named "Jamie" with the cellular telephone number 450-5251 (the "5251-cell phone") supplied Beal with cocaine. The agents discovered that Defendant subscribed to the 5251-cell phone.

DEA agents Marcus West and David Tyree arrived unannounced at Defendant's home on January 27, 2003. Defendant's father, Douglas Clifton, answered the door and explained his daughter lived there with him, but she was not presently home. The agents asked Mr. Clifton if he knew anything about a "Jamie Mendoza" or the 5251-cell phone. Mr. Clifton responded that his daughter may have obtained a cellular telephone for Mendoza because she had obtained cellular telephones for other individuals who, like Mendoza, had credit problems. The agents concluded their interview with Mr. Clifton and waited outside for Defendant to return home.

Defendant arrived at the house approximately an hour later. The agents approached Defendant, identified themselves, and asked her about Mendoza and the 5251-cell phone. Defendant told the agents she obtained the 5251-cell phone for Mendoza because he had credit problems. The agents thereafter agreed, upon Defendant's request, to finish the interview at a nearby gas station. At the gas station, Defendant reiterated she obtained the 5251-cell phone for Mendoza because of his credit problems. Defendant also informed the agents she cancelled the 5251-cell phone in October 2002 after Mendoza told her it had been stolen.

Defendant called Agent West the next morning. Defendant told the agent she wanted to "take back" everything she said during their interview the previous day. Defendant explained that she exclusively used the 5251-cell phone, Mendoza had never used it, and she had never said anything to the contrary. A grand jury subsequently subpoenaed Defendant. She appeared before the grand jury in February 2003 and testified, among other things, that (1) nobody except herself had used the 5251-cell phone, and (2) she had never told the agents anything to the contrary. Defendant's testimony caused the DEA's investigation to "hit a brick wall" and prevented the grand jury from indicting Mendoza.

The Government suspected Defendant of perjury. The Government provided Defendant an opportunity to re-testify before the grand jury and, if necessary, recant her previous testimony. Defendant appeared voluntarily before the grand jury in May 2003, but did not recant her previous testimony. Instead, Defendant testified that "[i]n regards to [the 5251-cell phone], I had purchased that phone for myself. I have never given it to anybody to use. I have never knowingly let anybody use it."

Defendant's perjury indictment followed. The case proceeded to trial and a jury convicted Defendant on all three counts charged. With respect to the first count, the jury found Defendant falsely declared before the grand jury that "nobody" except herself had used the 5251-cell phone. With respect to the second count, the jury found Defendant falsely declared before the grand jury that she did not tell the DEA agents she had obtained a cellular telephone for Mendoza. With respect to the third count, the jury found Defendant falsely declared before the grand jury that she obtained the 5251-cell phone for herself and never knowingly let anyone use the telephone.

II.

The grand jury functions as a barrier to reckless and unfounded charges the Executive Branch might otherwise bring against an individual. United States v. Cotton, 535 U.S. 625, 634, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The "historic office" can only provide such a shield to arbitrary and oppressive executive action when the grand jury acts pursuant to the truthful testimony of witnesses compelled to provide it information. United States v. Mandujano, 425 U.S. 564, 571, 576, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Congress, recognizing the importance of a citizen's testimony before the grand jury, enacted § 1623 to facilitate perjury prosecutions and thereby enhance the reliability of testimony before Federal grand juries. Dunn v. United States, 442 U.S. 100, 107, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); see also Mandujano, 425 U.S. at 576 n. 3, 96 S.Ct. 1768.

The statute prohibits any person from knowingly making false material declarations under oath before a grand jury. See 18 U.S.C. § 1623(a). The Government must prove the following elements beyond a reasonable doubt under § 1623: (1) the defendant made a declaration under oath before a grand jury; (2) such declaration was false; (3) the defendant knew the declaration was false; and (4) the false declaration was material to the grand jury's inquiry. See Johnson v. United States, 520 U.S. 461, 465, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Durham, 139 F.3d 1325, 1331 (10th Cir. 1998). With this backdrop, we turn to Defendant's specific claims of error.

A.

To begin, Defendant argues the district court improperly instructed the jury on reasonable doubt. We review the sufficiency of a reasonable doubt instruction de novo. Tillman v. Cook, 215 F.3d 1116, 1123 (10th Cir.2000). The Due Process Clause prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The reasonable doubt standard operates to give "concrete substance" to the presumption of innocence. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The district court, as a result, must instruct the jury on the subject. Id. at 320 n. 14. The Due Process Clause does not, however, "require that any particular form of words be used in advising the jury of the government's burden of proof." Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). A district court instead "retain[s] considerable latitude in instructing juries on reasonable doubt[,]" United States v. Conway, 73 F.3d 975, 980 (10th Cir.1995), and fulfills its constitutional duty if the charge as a whole correctly conveys the concept of reasonable doubt. Victor, 511 U.S. at 5, 114 S.Ct. 1239.

In this case, the district court's instructions correctly conveyed the concept of reasonable doubt to the jury. The district court instructed the jury:

The Superseding Indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning defendant's guilt.

A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in a case.

Defendant objected to the omission of the following sentence from the end of the instruction: "Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." She argues the omission of the "crucial last sentence" unconstitutionally diluted the reasonable doubt standard. We disagree.

The court's instruction correctly described the "persuasion by which the prosecution must convince the trier of all the essential elements of guilt." In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (internal quotations and citations omitted); see also United States v. Cronic, 466 U.S. 648, 656-57 n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (describing the prosecution's burden of proving guilt beyond a reasonable doubt as "heavy"). At the same time, the instruction correctly explained the Government need not prove Defendant's guilt "beyond all possible doubt." See Jackson, 443 U.S. at 326, 99 S.Ct. 2781 (explaining the Government need not rule out every hypothesis except guilt to carry its burden). The district court's instruction then, again correctly, defined "reasonable doubt" as "a doubt based upon reason and common sense after careful...