U.S. v. Jarvi

• Decision Date: 21 August 2008
• Docket Number: No. 07-3200.,07-3200.
• Citation: 537 F.3d 1256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott A. JARVI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

537 F.3d 1256

UNITED STATES of America, Plaintiff-Appellee, v. Scott A. JARVI, Defendant-Appellant.

No. 07-3200.

United States Court of Appeals, Tenth Circuit.

August 21, 2008.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the briefs), Wichita, KS, for Plaintiff-Appellee.

Stephen W. Kessler, Topeka, KS, for Defendant-Appellant.

Before HENRY, Chief Circuit Judge, BRORBY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Scott Jarvi pled guilty in federal court to possessing, with intent to distribute, at least 5 grams of methamphetamine. Wichita police officers discovered the meth in two places — in his pick-up truck during a traffic stop, and in his house during a later search. The government conceded that the search of his truck was illegal, and Mr. Jarvi argued unsuccessfully that the meth seized in his house should be suppressed as well. He had no appreciable criminal history and received a 90-month sentence. On appeal, Mr. Jarvi argues that all of the meth should have been suppressed; he also argues that the district judge violated his right to speak on his own behalf at sentencing. We affirm the district judge's ruling on the search, but conclude that Mr. Jarvis's right to allocution was violated. We therefore remand the case to district court with instructions to vacate the sentence and resentence.

I. BACKGROUND

Like many drug offenders, Scott Jarvi's legal troubles began when the police stopped his truck for a traffic violation. During the stop police discovered drugs, although the record from the suppression hearing does not allow us to establish a conclusive chronology. From statements of counsel, we know that at some point police asked Mr. Jarvi for permission to search his truck, which he refused, and that eventually police brought a dog, searched the vehicle, and found approximately 56 grams of methamphetamine. The police also asked Mr. Jarvi's passenger, Rhonda Higgins, if they could search her purse. When they did they found pills, which she claimed were prescription medication. The police arrested her under the theory that it was illegal to carry medication without physically possessing the prescription at all times. (So far as we know, there is no such law in Kansas.)

After she was brought into custody, Ms. Higgins told the police that Mr. Jarvi had more methamphetamine at his residence and that she had previously used drugs there. On the basis of this information, police acquired a warrant to search Mr. Jarvi's house. There they found approximately 23 grams of methamphetamine mixture as well as two handguns, a .22 caliber rifle, and a little more than $15,000 in cash. The guns and nearly all of the cash were in the bedroom closet, while the drugs were upstairs in the attic of the house.

Mr. Jarvi attempted to suppress the drugs under the theory that the search of both his vehicle and his house violated the Fourth Amendment. At the suppression hearing, the government conceded that the drugs found in the truck could be suppressed, and the defendant conceded that the initial traffic stop was valid. The government then presented testimony from the officer who had interviewed Ms. Higgins and searched Mr. Jarvi's house. The government began to present testimony from a second officer to confirm that both Mr. Jarvi and Ms. Higgins had given their names during the traffic stop — it is unclear why this was important — and after the district court expressed puzzlement at this line of inquiry, defense counsel offered to stipulate to it. R. Vol. II, at 41. The defense declined to call any witnesses, and the district court then commented: "Didn't seem like there would be any reason for the Defendant to have any witnesses at this point." R. Vol. II, at 42. Finding that Ms. Higgins's statements provided probable cause for the search warrant and that Mr. Jarvi lacked standing to assert any violations of her rights during the course of the traffic stop or interrogation, the court issued a written order denying Mr. Jarvi's motion to suppress the drugs found in his house. R. Vol. I, Doc. 21.

After Mr. Jarvi pled guilty, the case proceeded to sentencing. The 22.73 grams of methamphetamine mixture found in Mr. Jarvi's house would ordinarily carry a base offense level of 20, U.S.S.G. § 2D1.1, but the Presentence Report recommended that the cash found in Mr. Jarvi's house be "converted to its methamphetamine equivalent." R. Vol. VI, at 8. Using an estimate of $500 per ounce, see U.S. Dep't of Justice, National Drug Intelligence Center, National Illicit Drug Prices, at 33 (2006), the PSR held Mr. Jarvi accountable for another 853.05 grams of methamphetamine mixture, which drove his offense level up 12 points to 32.¹ The PSR also recommended a 2-point enhancement for the firearms and a 3-point reduction for acceptance of responsibility. Mr. Jarvi's lawyer filed a written objection to the enhancement for the guns, arguing that the guns belonged to Mr. Jarvi's son and had no connection to his offense. He did not make the same objection to the cash. Mr. Jarvi's Criminal History score was I, because his only prior convictions were for two misdemeanors almost twenty years ago.

Mr. Jarvi, however, filed a written pro se motion containing objections of his own. He objected that the guidelines did not authorize the conversion of his cash into drug quantities, that National Illicit Drug Prices did not provide the proper conversion rate, and that the enhancement for the guns was factually unsupported. He also asked the sentencing court to "consider my age, legitimate employment history, lack of a criminal record and the likelihood of recidivism." R. Vol. I, Doc. 28. Finally, he provided repeated citations to the "safety valve" of 18 U.S.C. § 3553(f), which authorizes a sentence below the mandatory minimum for nonviolent offenders in some circumstances. See United States v. Jackson, 493 F.3d 1179, 1180 (10th Cir.2007) ("By virtue of their comparatively `clean' records, Congress has instructed that individuals with but a single criminal history point may be eligible for the so-called `safety valve' reduction....").

At the start of the sentencing hearing, the court inquired about the pro se motion and Mr. Jarvi's lawyer said: "I ask the court rule upon his written motions." The court refused, saying: "He has a lawyer. He has a good lawyer. Mr. Jarvi, it's up to you, if you felt that these objections were something that should be raised, for you to talk to Mr. Schoenhofer about them and for him to raise them. It's not my habit to entertain pro se pleadings when the Defendant has a lawyer. So those pro se pleadings are stricken from the record." R. Vol. IV, at 3. The judge then heard arguments and evidence about the guns, found that they did not have any "temporal and spatial relationship to the drugs," and denied the enhancement. R. Vol. IV, at 5.

The judge next turned to the rest of the PSR. He asked Mr. Jarvi if he had read it and discussed it with his lawyer. Mr. Jarvi responded that he had. The judge then asked, "[K]eeping in mind that I'm not going to consider these pro se objections that you've made to the presentence report, are there any other aspects of the presentence report that you would object to?" R. Vol. IV, at 7. Mr Jarvi attempted to bring forward the Guideline Manual himself and object to his "base offense level," but the judge replied, "that's in the pro se. I told you I wasn't going to listen to those." R. Vol IV, at 8. After speaking with his lawyer, Mr. Jarvi tried again, but the judge rebuked him: "I'm not going to listen to the pro se written objections that you already filed." R. Vol. IV, at 8. The district judge announced that he "intend[ed] to impose a sentence within th[e] advisory guideline range," and asked the lawyers for each side for their positions. R. Vol. IV, at 9. Both sides requested the low end of the guidelines range. Finally, the court once more asked the defendant if he had anything to add, and Mr. Jarvi requested that the judge recommend placement in a drug treatment program and incarceration near his family in Minnesota. The judge sentenced him to 90 months in prison. Mr. Jarvi then appealed.

II. SUPPRESSION

We first consider Mr. Jarvi's claim that the district court should have suppressed the drugs found in his house because the information contained in the warrant application was the "fruit of the poisonous tree" — in other words, that it was derived from an illegal part of the encounter at his truck. The poisonous tree doctrine allows a defendant to exclude evidence "come at by exploitation" of violations of his Fourth Amendment rights. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The evidence in question was obtained via a search warrant for his house, which was based on evidence given by Ms. Higgins. Mr. Jarvi argues that the statements made by Ms. Higgins could not be used to obtain the warrant because they were the product of Fourth Amendment violations.

However, "defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In cases where multiple defendants are searched, Salvucci means that the defendant may not exclude evidence that has been "come at by exploitation" of a violation of somebody else's rights.² Our precedents regarding the intersection of these two doctrines place the burden on the defendant to demonstrate a "factual nexus" between a violation of his own Fourth Amendment rights and the discovery of the challenged evidence. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000) (internal citations omitted) ("At a minimum, a defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come...