United States v. Nelson
| Decision Date | 20 March 2020 |
| Docket Number | No. 19-6072,19-6072 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUFUS LOU NELSON, JR., Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(W.D. Okla.)
ORDER AND JUDGMENT*Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
Rufus Lou Nelson, Jr., challenges his convictions for carjacking, kidnapping, and use and discharge of a firearm during and in relation to a crime of violence. He also challenges the procedural and substantive reasonableness of his 480-month sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In the early morning hours on July 5, 2016, Mr. Nelson shot his longtimegirlfriend, Priya Patel, in the face while she was driving on a highway in Oklahoma City, destroying her eyes and optic nerves and causing permanent blindness.
The witnesses' testimony aligns as to many underlying facts. The couple spent the July 4th holiday with Mr. Nelson's sister, Velma, who made them leave the house late that night after a family fight. They got into a car with a loaded .45-caliber handgun, with Ms. Patel behind the wheel and Mr. Nelson in the front passenger seat. Sometime after midnight, while Ms. Patel was driving, the couple got into an argument and Mr. Nelson shot her in the face. Unable to see, she pulled over to the side of the road, where they both exited the car. Two Good Samaritans found Ms. Patel walking on the side of the highway around 2:00 a.m. with extensive eye injuries. She told them, and later the police, that Mr. Nelson had shot her. Mr. Nelson left the scene, and law enforcement officers apprehended him after searching the area. He initially told the police they had picked up a drug-dealing stranger, who shot Ms. Patel while trying to rob them; however, at trial Mr. Nelson testified that he shot Ms. Patel by accident. Law enforcement never located the firearm, but they found a single, .45-caliber shell casing on the floorboard of the vehicle's front passenger side.
The witnesses disagree on some critical details. Mr. Nelson insists Ms. Patel got into the car voluntarily and indeed had no choice but to leave with him because of the troubled family dynamics. He testified that both of them ingested several mind-altering drugs that night. He further testified that he accidentally shot Ms. Patel during an argument in the car. According to Mr. Nelson, Ms. Patel washolding her own gun underneath her leg while she was driving, and she started waving and swinging it during their argument. When he tried to take the gun from her, it accidentally discharged. Mr. Nelson left the scene and lied to the police about what happened because he was afraid he would get in trouble for having drugs in the car. By contrast, Ms. Patel testified during the state-court preliminary hearing that Mr. Nelson forced her into the car with his own gun, directed her to drive him to several locations at gunpoint, refused to let her leave the car, and shot her after making threatening remarks and accusing her of cheating on him.
A federal grand jury indicted Mr. Nelson on four counts: being a convicted felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) (Count 1); carjacking resulting in serious injury in violation of 18 U.S.C. § 2119 (Count 2); kidnapping in violation of 18 U.S.C. § 1201(a)(1) (Count 3); and use and discharge of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). After a three-day trial, a jury found Mr. Nelson guilty on all counts. The district court sentenced him to 480 months' imprisonment: 120 months for Count 1, 300 months for Count 2, and 360 months for Count 3, running concurrently; and 120 months for Count 4, running consecutively.
On appeal, Mr. Nelson contends the district court erred when it (1) declared Ms. Patel to be unavailable and admitted her testimony from the state-court preliminary hearing; (2) admitted photographs of Ms. Patel's gunshot wound; (3) relied on Mr. Nelson's kidnapping conviction to support his § 924(c) convictionand to enhance his sentence under the career-offender guideline; (4) sentenced Mr. Nelson as a career offender based on a prior conviction that is not a controlled substance offense; (5) held there was sufficient evidence from which the jury could find beyond a reasonable doubt that all offenses occurred; and (6) imposed a substantively unreasonable sentence. We affirm the district court on each issue.
Under the Sixth Amendment's Confrontation Clause, a criminal defendant has a right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Mr. Nelson argues that the district court violated his constitutional right to confront Ms. Patel when it prematurely declared her to be unavailable and allowed the government to present to the jury her testimony from a state-court preliminary hearing under Federal Rule of Evidence 804. We reject this argument. The district court properly applied Rule 804, and the admission of Ms. Patel's sworn preliminary hearing testimony was necessary and appropriate under the circumstances.
Ms. Patel was a reluctant witness from the start. She told the government she was afraid of the defendant and vacillated on her willingness to testify—then, she refused to obey the government's trial subpoena. The district court had to issue a bench warrant for her appearance at trial. She appeared on September 4, 2018, but when the government, defense counsel, and the district court questioned her, she repeatedly stated that she did not remember anything about the critical events underlying the charges against Mr. Nelson. She told the district court that she had only "bits and pieces of memory." R., Vol. 3 at 144. She also expressed a firmdesire to move on from the event that caused her blindness: Id. at 145. During direct examination, she testified that she could not recall anything about the shooting, including who shot her. See, e.g., id. at 132-33 ( ); id. at 139-40 ( ).
The district court ultimately concluded the questioning was not "productive" because Ms. Patel was "still not remembering anything of any relevance." Id. at 151. Invoking Rule 804, it declared her to be unavailable and allowed the government to read her state-court preliminary hearing testimony from December 15, 2016, into the record, over Mr. Nelson's objection. Defense counsel twice moved for a mistrial, positing that "Ms. Patel, while not an easy witness, had not fully proven herself to be an absolutely unavailable witness." Id. at 275 (emphasis added). The district court denied both motions. It acknowledged live testimony would be preferable to the transcript of the preliminary hearing from sixteen months ago but reasoned it would be unfair to allow Mr. Nelson to obtain testimony from Ms. Patel unless she also was willing and able to answer the government's questions. It concluded she was neither.
"We review the admission of evidence at trial for abuse of discretion." United States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009). "Because hearsay determinations are particularly fact and case specific, our review of those decisions is especially deferential." Id. (internal quotation marks omitted). But "whether admission of such evidence violates the Confrontation Clause is reviewed de novo." United States v. Townley, 472 F.3d 1267, 1271 (10th Cir. 2007). A witness's prior testimony, including preliminary hearing testimony, is inadmissible unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross examination. Crawford v. Washington, 541 U.S. 36, 53, 68 (2004).
We start by assessing Ms. Patel's unavailability. Rule 804 provides that the "[f]ormer [t]estimony" of a witness is not excluded as hearsay "if the declarant is unavailable as a witness." Fed. R. Evid. 804(b)(1). The unavailability assessment often turns on the reasonableness of the prosecution's effort to obtain a witness's attendance. See Cook v. McCune, 323 F.3d 825, 835-36 (10th Cir. 2003). But Mr. Nelson does not fault the government for its efforts to obtain Ms. Patel's attendance, so we need not conduct a reasonableness analysis on that question.
Instead, we evaluate Mr. Nelson's contention that the district court's unavailability determination was premature given that she was "showing increasing willingness to answer questions." Aplt. Opening Br. at 24. Mr. Nelson insists his attorneys could have made Ms. Patel feel comfortable enough to testify, given enough time. But we will not second guess the district court's determination that further questioning would have been unproductive. The record shows the districtcourt gave the attorneys ample opportunity to elicit live testimony from Ms. Patel and even tried to question her itself after warning her of the risk of sanctions. Yet she repeatedly testified that she did not remember relevant subject matter. "A declarant is considered to be unavailable as a witness if the declarant . . . testifies to not remembering the subject matter." Fed. R. Evid. 804(a)(3) (emphasis added). Ms. Patel did just that, so it was appropriate for the district court to declare her unavailable.
It was also appropriate for the district court to admit Ms. Patel's state-court preliminary hearing testimony. Former testimony...
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