U.S. v. Dowell

• Decision Date: 06 December 2005
• Docket Number: No. 03-1341.,03-1341.
• Citation: 430 F.3d 1100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack DOWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.3d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Jack DOWELL, Defendant-Appellant.

No. 03-1341.

United States Court of Appeals, Tenth Circuit.

December 6, 2005.

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Nancy Holton, (Stacey L. Ross, Golden, CO, with her on the briefs), Boulder, CO, for Defendant-Appellant Jack Dowell.

Martha A. Paluch, Assistant United States Attorney (John W. Suthers, United States Attorney, with her on the brief), Denver, CO, for Plaintiff-Appellee United States of America.

Before EBEL, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and LUCERO, Circuit Judge.

EBEL, Circuit Judge.

Defendant-Appellant Jack Dowell appeals¹ his convictions for destroying government property by fire, violating 18 U.S.C. §§ 2, 844(f)(1) & (2),² and forcibly interfering with IRS employees and administration, violating 18 U.S.C. § 2 and 26 U.S.C. § 7212(a).³ He also argues that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), entitles him to resentencing. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM Dowell's convictions and his sentence.⁴

I. FACTS

The evidence at trial established the following: Dowell's co-defendant James Cleaver devised a plan to set fire to the Colorado Springs office of the Internal Revenue Service ("IRS"). Cleaver got several members of his "constitutional law group" to help him carry out his plan, including Dowell, Dowell's cousin Thomas Dowell, and Ronald Sherman. On May 3, 1997, the group met at a bar at approximately 10:30 p.m. From there, Sherman drove the group to the IRS building and dropped them off. Dowell positioned himself in the median next to the building. When the traffic cleared, Dowell, using a two-way radio, let the group know the coast was clear. Cleaver and Thomas Dowell then broke the glass door to get into the building and forced their way into the IRS office. There, they opened all the unlocked filing cabinets and poured gasoline throughout the files and the office. At one point while Thomas Dowell and Cleaver were inside the building, Dowell, as the lookout, radioed them that there was someone walking through the building's parking lot. After that person was gone, Cleaver set a fifteen-minute fuse to ignite the gasoline. Cleaver also spray painted the letters AAR several places in the building. Those letters stood for Army of the American Republic.

The men then returned to the bar. Cleaver and the two Dowells had a drink, but Sherman went immediately home.

From the beginning of the investigation into the fire, police believed Sherman was involved. Sherman, however, testified before a grand jury, in October 1997, that he had been playing pool at the bar with Cleaver all night on May 3, 1997, and denied any involvement in the crime. Over the next few years, federal agents would contact Sherman at home or when he was driving his cab and ask him about the fire. Federal agents contacted Sherman once every three to six months, or about six to seven times over the next four years. Sherman always denied any knowledge of the crime. Eventually federal agents informed Sherman that they were getting close to solving the case and would be charging him with the crime. At this point, Sherman agreed to cooperate. Sherman eventually pled guilty to one count of perjury for lying to the grand jury and agreed to testify against the others. When federal authorities later arrested Dowell in Florida, he confessed to his part in the crime.

In 2001, the Government indicted Cleaver, Dowell, and Thomas Dowell. The district court severed Dowell's trial from that of his co-defendants. A jury convicted Dowell of destroying government property by fire, violating 18 U.S.C. §§ 2, 844(f)(1) & (2); and forcibly interfering with IRS employees and administration, violating 18 U.S.C. § 2 and 26 U.S.C. § 7212(a). The district court sentenced Dowell to 360 months in prison.⁵ Dowell appeals both his convictions and his sentence.

II. ISSUES

A. Whether the district court denied Dowell due process when it did not conduct a hearing on the voluntariness of Sherman's confession.

On the first day of trial, Dowell filed a motion to exclude Sherman's testimony, arguing police had coerced Sherman's confession by contacting him "continuously" and telling him that he would face twenty-five to forty years in prison if he did not cooperate. Dowell based this motion to exclude Sherman's trial testimony on the testimony Sherman gave during a pretrial hearing on co-defendant Cleaver's suppression motion. The district court denied Dowell's motion to exclude Sherman's testimony at trial, holding any coercion would go to Sherman's credibility and Dowell could bring this out on cross-examination. On appeal, Dowell now asserts that the district court deprived him of due process when it did not conduct an evidentiary hearing to determine whether Sherman's confession to police was voluntary.

Because Dowell never requested that the district court conduct such a hearing, however, we review Dowell's argument only for plain error. See Fed.R.Crim.P. 52(b); see also United States v. Gerber, 24 F.3d 93, 95 (10th Cir.1994) (applying plain-error review where defendant failed to request evidentiary hearing). "Under that test, before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quotations, alterations omitted). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quotations, alterations omitted). Here, Dowell is unable to establish that the district court erred in failing to conduct an evidentiary hearing on whether Sherman's confession was voluntary.

In Jackson v. Denno, the Supreme Court held that

a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction.

378 U.S. 368, 376, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (citations omitted). Further, the defendant has a "constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession."⁶ Id. at 376-77, 84 S.Ct. 1774. When a defendant questions the voluntariness of a confession, a hearing is mandated. See United States v. Miller, 987 F.2d 1462, 1464, 1465 (10th Cir.1993) (applying 18 U.S.C. § 3501(a)). Relying on this authority, Dowell now argues that, once he questioned the voluntariness of Sherman's confession, the district court was required sua sponte to conduct an evidentiary hearing on that issue.

In Jackson v. Denno, however, the defendant was challenging the voluntariness of his own confession. See 378 U.S. at 372, 84 S.Ct. 1774. And the cases applying Jackson v. Denno's hearing requirement also address only the voluntariness of the defendant's own statement. See, e.g., United States v. Roberts, 14 F.3d 502, 516 (10th Cir.1993); Miller, 987 F.2d at 1464, 1465. "The procedure [the Supreme Court] established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances." Lego v. Twomey, 404 U.S. 477, 485, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (emphasis added); see also Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (noting "any criminal trial use against a defendant of his involuntary statement is a denial of due process of law," citing Jackson v. Denno) (emphasis altered). Here, on the other hand, Dowell is challenging the voluntariness, not of his own confession, but of that of a Government witness.

It is clear that Dowell does have standing to challenge the voluntariness of a witness's confession. See United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir.1999); see also Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.1997) (42 U.S.C. § 1983 action). In doing so, however, Dowell is not seeking to vindicate the witness's Fifth Amendment right against self-incrimination, but instead is seeking to protect his own right to due process; that is, to a fair trial. See Gonzales, 164 F.3d at 1289; Clanton, 129 F.3d at 1157-58.

[T]here is a significant difference in the burden of proof applicable to a claim under the Fifth Amendment and [Dowell's] claim that the testimony of a third party is subject to exclusion as a matter of due process. The burden is on the [Government] to demonstrate the voluntariness of a defendant's admissions or confessions .... By contrast, when a defendant makes a motion to exclude coerced testimony of a third party on due process grounds, the burden of proving improper coercion is upon the defendant.

People v. Badgett, 10 Cal.4th 330, 41 Cal.Rptr.2d 635, 895 P.2d 877, 886-87 (1995). "Unless a serious factual dispute can be shown to exist, and one in which, if successful, the defense would be entitled to exclusion, no hearing at all is necessary." LaFrance v. Bohlinger, 499 F.2d 29, 36 (1st Cir.1974); see also State v. Samuel, 252 Wis.2d 26, 643 N.W.2d 423, 432-33 (2002) (requiring the defendant to allege sufficient facts that, if true, would entitle him to exclude the witness's statement, before district court must conduct an evidentiary hearing). In this case, Dowell failed to meet his burden of presenting sufficient evidence to create a "serious factual dispute" suggesting that Sherman's confession to police was...