U.S. v. Wardell

Citation581 F.3d 1272
Decision Date22 September 2009
Docket NumberNo. 06-1108.,06-1108.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wendel R. WARDELL, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Mark D. Jarmie, Jarmie & Associates, Albuquerque, NM, for the Defendant-Appellant.

Troy A. Eid, United States Attorney, Matthew Kirsch, Assistant United States Attorney, James C. Murphy, Assistant United States Attorney, Denver, CO, for the Plaintiff-Appellee.

Before MURPHY, BALDOCK, and HOLMES, Circuit Judges.*

HOLMES, Circuit Judge.

Defendant Wendel R. Wardell, Jr., was charged, along with three codefendants, with (1) conspiring to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(1) and § 371 (2005),1 and (2) retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(1), and aiding and abetting the commission of this crime, in violation of 18 U.S.C. § 2. The testimony of the witness in question, Jessie Cluff, was used to secure a conviction against Mr. Wardell for various tax-fraud offenses. After testifying, Mr. Cluff was brutally beaten in a cell at the courthouse. A video camera captured the attack. Mr. Wardell was convicted on both counts along with his codefendants.

On appeal, Mr. Wardell argues that the evidence was insufficient to support his conviction on either count, and that the district court abused its discretion in requiring him to wear a stun belt at trial as a security precaution and in refusing to sever his trial from that of his codefendants. In addition, Mr. Wardell contends that the district court erroneously calculated his sentencing range under the U.S. Sentencing Guidelines Manual ("U.S.S.G.") by applying an eight-level obstruction of justice enhancement, pursuant to § 2J1.2(b)(1)(A), and a two-level leader or organizer enhancement, pursuant to § 3B1.1(c).2 Mr. Wardell also challenges a number of the district court's discretionary decisions, including issues that we previously addressed in disposing of the appeal of his codefendant, Carl Pursley. Notably, Mr. Wardell argues that the district court violated the ex parte requirement of Fed. R.Crim.P. 17(b) in eliciting subpoena-related information from him in open court with the government present. We reject each of Mr. Wardell's challenges. Accordingly, we affirm the district court's judgment.

BACKGROUND

While a more complete description of the facts of this case is presented in United States v. Pursley, 577 F.3d 1204, 1210-15 (10th Cir.2009) ("Pursley II"), in which we affirm the district court's judgment against Mr. Wardell's codefendant, a factual summary is provided here, which should be helpful in understanding our opinion. Also, facts particularly relevant to some of Mr. Wardell's appellant issues are brought forth and highlighted in relation to our disposition of those issues.

Mr. Wardell and a fellow inmate, Mr. Pursley, were charged with various counts of federal tax fraud. United States v. Wardell, 218 Fed.Appx. 695, 696-97 (10th Cir.2007). Jessie Cluff, an inmate who participated in the tax-fraud scheme, testified against Mr. Wardell and Mr. Pursley. Subsequently, Mr. Cluff was assaulted in a holding cell at the federal courthouse in Denver, Colorado. A surveillance camera captured the assault, although it was not equipped for audio surveillance. Two inmates, Shawn Shields and Vernon Templeman physically carried out the assault. But it allegedly was directed by Mr. Wardell and Mr. Pursley.

The government indicted Mr. Wardell, Mr. Pursley, Mr. Shields, and Mr. Templeman on two counts: (1) conspiracy to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(1) and § 371, and (2) retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(1), and aiding and abetting the commission of this crime, in violation of 18 U.S.C. § 2. The government alleged that Mr. Wardell and Mr. Pursley conspired with Mr. Shields and Mr. Templeman to effectuate the assault on Mr. Cluff, in retaliation for Mr. Cluff's testimony against Mr. Wardell and Mr. Pursley in the tax-fraud case.

Mr. Cluff testified that he took part in the tax-fraud scheme for which Mr. Wardell and Mr. Pursley were prosecuted. At the time, he was serving a 48-year sentence, the result of a long history of felony convictions. Mr. Cluff agreed to cooperate with the government in exchange for immunity. After giving a statement to the IRS, he began to fear for his safety. Mr. Cluff expressed his fears in a letter to IRS Agent Moon, who handled the investigation. Mr. Cluff testified that his fears escalated when Mr. Wardell simultaneously sent him: (1) a copy of his pretrial interview with Agent Moon, with markings next to those statements that most incriminated Mr. Wardell; and (2) a letter, dated July 10, 2004, asking him to advise Mr. Wardell of any statements that had been attributed to Mr. Cluff and were not what he stated. Mr. Cluff interpreted this letter as an admonition to "change" his testimony. R., Vol. XII, Tr. at 451 (Jury Trial, dated Dec. 7, 2005).

At trial in this case, Mr. Cluff narrated the soundless videotape of the events preceding and during the assault. Mr. Shields's and Mr. Templeman's assault of Mr. Cluff lasted for approximately seventy seconds. The jury found each of the four defendants guilty on all of the counts for which they were indicted. We have previously affirmed the district court's judgment against Mr. Shields and Mr. Templeman. See United States v. Templeman, 481 F.3d 1263, 1266 (10th Cir.2007); United States v. Shields, 219 Fed.Appx. 808, 809 (10th Cir.2007). And we also recently affirmed the district court's judgment against Mr. Pursley. See Pursley II, 577 F.3d at 1210-11.

At Mr. Wardell's sentencing, the district court generally adhered to the advisory Guidelines applications and calculations stated in the Presentence Investigation Report ("PSR"). Mr. Wardell's base offense level was 14. Mr. Wardell then received two enhancements: (1) an eight-level enhancement under U.S.S.G. § 2J1.2(b)(1)(A) for being convicted of an offense that caused physical injury to another person in order to obstruct the administration of justice; and (2) a two-level enhancement under U.S.S.G. § 3B1.1(c) for being a leader or organizer. With these two enhancements, Mr. Wardell's total offense level was 24.

Mr. Wardell's total offense level (24), coupled with his criminal history category (VI), yielded an advisory Guidelines range of 100 to 125 months for each offense. See U.S.S.G. ch. 5, pt. A, Sentencing Table. Pursuant to U.S.S.G. § 5G1.1, the district court then reduced the outer limit of the Guidelines range for each offense to the relevant statutory maximum. This reduction produced a final Guidelines range of 100 to 120 months for each count.3 After considering the sentencing factors listed in 18 U.S.C. § 3553(a), the district court sentenced Mr. Wardell to 115 months of imprisonment for each offense and ordered these sentences to run concurrently.

Mr. Wardell filed a timely notice of appeal. We appointed appellate counsel, who filed an appellate brief on Mr. Wardell's behalf. Prior to the filing of this brief, Mr. Wardell filed a motion to represent himself. We denied this request, prompting Mr. Wardell to file yet another motion, seeking to represent himself. Although we did not immediately resolve this second motion, we did permit Mr. Wardell's attorney to withdraw, based in large part upon Mr. Wardell's desire to represent himself pro se. We then gave Mr. Wardell the opportunity to file a pro se supplemental brief, which he subsequently filed.4

DISCUSSION

On appeal, Mr. Wardell argues that the evidence was insufficient to support his conviction on either count; that the district court abused its discretion in requiring him to wear a stun belt at trial as a security precaution; and the district court abused its discretion in refusing to sever his trial from that of his codefendants. In addition, Mr. Wardell contends that the district court erroneously calculated his sentencing range under the Guidelines by applying an eight-level obstruction of justice enhancement, pursuant to § 2J1.2(b)(1)(A), and a two-level leader or organizer enhancement, pursuant to § 3B1.1(c). Moreover, Mr. Wardell raises a number of less substantive issues in his pro se capacity questioning the district court's discretion and echoing Mr. Pursley's appellate arguments. Significantly, Mr. Wardell does argue pro se, however, that the district court violated the ex parte requirement of Fed.R.Crim.P. 17(b) in eliciting subpoena-related information from him in open court with the government present. We reject each of Mr. Wardell's challenges. Accordingly, we affirm the district court's judgment.

I. Sufficiency of the Evidence for the Conspiracy Conviction

Mr. Wardell argues that the evidence was insufficient to sustain his conspiracy conviction. Mr. Wardell argues that the government failed to introduce evidence to establish that he participated in any agreement to assault Mr. Cluff and that he acted interdependently with any other alleged coconspirator.5 For the reasons noted below, we cannot agree.6

We review de novo a challenge to the sufficiency of the evidence to sustain a criminal conviction.7 United States v. Weidner, 437 F.3d 1023, 1032 (10th Cir. 2006). We construe the facts in the light most favorable to the government. See, e.g., United States v. Franklin-El, 554 F.3d 903, 908 (10th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 2813, 174 L.Ed.2d 307 (2009). Sufficient evidence to support a conviction exists if "a reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Willis, 476 F.3d 1121, 1124 (10th Cir. 2007) (internal quotation marks omitted). In performing this analysis, we must "consider both direct and circumstantial evidence, and all reasonable inferences therefrom, in the light most favorable to the government." Weidner, 437 F.3d at 1032. We may not disturb the jury's credibility...

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