United States v. Paup
| Decision Date | 12 March 2018 |
| Docket Number | Criminal Case No. 15-cr-00233-PAB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHELLE R. PAUP, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the Court on the Notice of Appeal [Docket No. 80] filed by defendant Michelle R. Paup. Defendant appeals her conviction of theft of government property of a value less that $1,000 and removal of theft detection devices after a jury trial presided over by Magistrate Judge Kathleen M. Tafoya in Criminal Case No. 14-mj-07006-KMT. The Court exercises jurisdiction over this appeal pursuant to 18 U.S.C. § 3402 and Fed. R. Crim P. 58(g)(2)(D). Neither party requested oral argument.
On December 20, 2013, defendant went to the Army and Air Force Exchange Service store (the "Exchange") at Buckley Air Force Base (the "Base") in Aurora, Colorado. Video surveillance showed that defendant loaded a shopping cart with merchandise, including three jackets and five perfume sets. She cut a theft detectiondevice off at least one item and, after wrapping the device in tissue paper, threw the device away in a trash receptacle inside the store. Defendant left the Exchange with her loaded cart without paying. She was confronted outside the store by an employee of the Exchange's loss prevention department. Base security officers responded and searched defendant's purse, discovering two additional purses, which had been taken from the Exchange, and a pair of wire cutters.
On December 20, 2013, defendant was served with a violation notice alleging that she had shoplifted from the Exchange. On August 14, 2014, the government filed an information charging defendant with (1) Theft of Government Property of a value less than $1000 in violation of 18 U.S.C. § 641 and (2) Unlawful Acts - Theft Detection Devices, in violation of Colo. Rev. Stat. § 18-4-417 as assimilated by 18 U.S.C. § 13. Docket No. 6. The penalty sheet attached to the information stated that Count 2 was a "Class 1 Misdemeanor" with a penalty of "Max 18 months." Docket No. 6-1.
On September 29, 2014, defendant signed a consent to proceed before a magistrate judge. Docket No. 7.2 Defendant was arraigned on October 9, 2014. Docket No. 9. On October 23, 2014, the government filed an amended penalty sheet, which revised the listed maximum penalty for Count 2 to no more than "1 year imprisonment." Docket No. 11.
On October 14, 2014, the magistrate judge set a motions hearing for December 2, 2014 and set defendant's trial to begin on December 15, 2014. Docket No. 10. At the motions hearing, the magistrate judge set a December 8, 2014 trial preparationconference. Docket No. 30 at 3. On the morning of December 8, 2014, defendant filed a motion to continue the trial so that she could investigate the possibility of presenting expert psychological evidence to show that she lacked the necessary mens rea to commit the charged offenses. Docket No. 32 at 1, ¶ 3. In particular, defendant stated that she was scheduled to be examined by her psychologist, Dr. Dana Satir, regarding her "psychological maladies and dissociative disorders." Id., ¶¶ 3-4. At the trial preparation conference that afternoon, the government objected to granting a continuance, noting that defendant had raised the same issue at an August 14, 2014 hearing when requesting a 60-day delay before the Information was filed. Docket No. 123 at 9:13-10:5; see also Docket No. 5 (). Over the government's objection, the magistrate judge vacated the trial and granted an ends of justice continuance. Docket No. 34 at 1-2. The magistrate judge set a January 27, 2015 deadline for defendant to make her psychological expert disclosures to the government. Id. at 2. She set a February 9, 2015 deadline for the government's expert disclosures. Id. The trial was reset for February 23, 2015. Id.
Defendant did not comply with the disclosure deadline. Instead, on February 6, 2015, defendant emailed her witness list to the government and the magistrate judge's chambers. Docket No. 39-1 at 2. Defendant's witness list included Dr. Lon Kopit, who defendant said would be called to "testify to the mental health issues of defendant and her lack of the requisite mental state (mens rea) elements of the crimes charged." Id. at 1, ¶ 1. On February 9, 2015, the government moved to exclude Dr. Kopit's testimonyas being untimely disclosed and, in the alternative, requested a hearing pursuant to Fed. R. Evid. 702. Docket No. 39 at 1.
On February 10, 2015, the magistrate judge held a second trial preparation conference, at which she granted the government's motion to exclude. Docket No. 40. The magistrate judge found that defendant had failed to provide timely notice of Dr. Kopit's proposed testimony. Docket No. 124 at 10, ll. 8-20, and at 16, ll. 1-11. The magistrate judge continued the remainder of the trial preparation conference because the parties were not properly prepared. Docket No. 40 at 2.
On February 12, 2015, defendant filed a motion requesting that the magistrate judge reconsider whether to bar Dr. Kopit from testifying. Docket No. 49. The magistrate judge held the third and final trial preparation conference the next day. Docket No. 51. The magistrate judge declined to reconsider her prior order barring Dr. Kopit from testifying. Id. at 1; Docket No. 109 at 4 (citing United States v. Adams, 271 F.3d 1236, 1244 (10th Cir. 2001)).
The trial began on February 23, 2015. Docket No. 57. The trial lasted three days and was tried to a jury. Docket Nos. 57-59. The defendant testified in her own defense. Docket No. 58 at 4. On February 25, 2015, the jury convicted defendant on both counts. Docket No. 59-3.
On May 22, 2015, the magistrate judge held a sentencing hearing. Docket No. 67. The magistrate judge found that defendant committed perjury through her trial testimony and applied a two-level obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. Docket No. 104 at 25:13-26:19. The magistrate judge imposed concurrent sentences of thirty days imprisonment on each of the two counts and oneyear of supervised release. Docket No. 74 at 2-3. She ordered restitution in the amount of $734.41, which was the full retail value of the stolen merchandise. Id. at 5; Docket No. 104 at 24:16-19. Judgment entered on May 28, 2015. Docket No. 74 at 1. The present appeal followed. See Docket No. 80.3
In an appeal from a misdemeanor conviction by a magistrate judge, the "scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). The standard of review depends upon whether the reviewed issue presents questions of fact, questions of law, or mixed questions of fact and law. Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986). The Court reviews legal findings de novo and factual findings for clear error. Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001) (citing Pierce v. Underwood, 487 U.S. 552, 558 (1988)). Defendant raises five alleged errors subject to varying standards of review: (1) that the magistrate judge lacked subject matter jurisdiction to hear Count 2, Docket No. 129 at 16-18; (2) that the magistrate judge abused her discretion in excluding defendant's psychological expert for failure to meet the disclosure deadline, id. at 18-25; (3) that the magistrate judge abused her discretion by allowing the government to question defendant about a pending state shoplifting charge, id. at 26-31; (4) that the magistrate judge erred by applying an enhancement tothe sentencing guidelines based on perjury, id. at 31-34; and (5) that the magistrate judge clearly erred in ordering restitution for the full retail value of the items that defendant took from the Exchange. Id. at 35-38.
Because this district has designated them to hear misdemeanor cases, magistrate judges have jurisdiction to "try persons accused of, and sentence persons convicted of, misdemeanors committed within" the District of Colorado. 18 U.S.C. § 3401; see also 28 U.S.C. § 636(a)(3); D.C.COLO.LCrR 57.1(b)(16). Under Colorado law, Count 2 of the information, charging defendant with removing theft detection devices, is classified as a "class 1 misdemeanor," Colo. Rev. Stat. § 18-4-417, subject to a maximum sentence of eighteen months imprisonment. Colo. Rev. Stat. § 18-1.3-501(1)(a). Persons convicted in federal court of incorporated state law crimes are "subject to a like punishment." 18 U.S.C. § 13(a). This provision requires "federal sentencing courts to abide [by] any maximum and minimum prison terms [pre]scribed by state law for an assimilated crime." United States v. Christie, 717 F.3d 1156, 1171 (10th Cir. 2013) (citations omitted). Under federal law, offenses "not specifically classified by a letter grade in the section defining it" are classified based on the "maximum term of imprisonment authorized." 18 U.S.C. § 3559(a). Crimes subject to maximum terms of imprisonment from five days to one year are classified as misdemeanors. 18 U.S.C. § 3559(a)(6)-(8); see also Gomez v. United States, 490 U.S. 858, 870 n.18 (1989) . An offense with a maximum term of imprisonment of eighteen months is a Class E felony under federal law. 18 U.S.C. § 3559(a)(5).
Defendant argues that the magistrate judge lacked jurisdiction to hear this case because Count 2 carries a potential punishment of more than one year of imprisonment under Colorado law. Docket No.129 at 8. The issue of subject matter jurisdiction is reviewed de novo. Niemi v. Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014) (citing Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Trust, 744...
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