United States v. Thompson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 29 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-3174 v. (D.C. No. 95-20066-GTV) (D. Kan.) KENNETH L. THOMPSON,

Defendant-Appellant.

ORDER AND JUDGMENT *

Robin D. Fowler, Assistant United States Attorney (Jackie N. Williams, United States Attorney with him on the brief), Kansas City, Kansas, for Plaintiff- Appellee.

Carl E. Cornwall (Lindsey P. Erickson with him on the briefs) of Cornwell & Edmonds, Overland Park, Kansas, for Defendant-Appellant.

Before BRORBY, BRISCOE and MURPHY, Circuit Judges.

In this direct appeal, Kenneth L. Thompson appeals his conviction of two

counts of possession of methamphetamine with intent to distribute in violation of

21 U.S.C. § 841(a)(1) (1994). He raises six issues on appeal, which are all

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. without merit. Accordingly, we affirm Mr. Thompson's conviction.

Before addressing Mr. Thompson's claims of error, we briefly set forth the

general factual background. On the evening of May 31, 1995, officers of the

Kansas City, Kansas police department, accompanied by an agent of the federal

Bureau of Alcohol, Tobacco and Firearms, approached Mr. Thompson in the front

yard of his residence. Their intent was to investigate possible illicit narcotic

activity at that location. According to the officers' testimony, Mr. Thompson was

cooperative with the officers and consented to a search of the residence and its

surroundings. While inside the house, one of the officers noticed Mr. Thompson

put something in the kitchen sink, which, upon investigation, the officers found

was a small bag of brownish white powder they suspected to be

methamphetamine. During their search, the officers also found, inter alia,

approximately $4,600 in Mr. Thompson's pockets, approximately $10,000 in a

safe in an upstairs bedroom, and in one of Mr. Thompson's automobiles, seven

ounces of methamphetamine, an electronic scale, and a police scanner. According

to officers' testimony at trial, officers did not arrest Mr. Thompson that evening.

However, at about 1:20 the next morning, officers did read him his Miranda

rights and obtained a recorded statement from him in which he admits purchasing,

possessing, using, and selling quantities of methamphetamine.

-2- On the morning of October 31, 1995, several Kansas City police officers

went to Mr. Thompson's residence to place him under arrest pursuant to a federal

arrest warrant. Finding him there, they advised him of the arrest warrant, and Mr.

Thompson invited them into the house. After being read his Miranda rights and

consenting to a search of the premises, Mr. Thompson showed the officers a bag

containing approximately one pound of methamphetamine. The officers also

discovered approximately $2,500 on Mr. Thompson's person. The first count on

which Mr. Thompson was convicted was premised on the seven ounces of

methamphetamine officers discovered on May 31; the second count was premised

on the pound of methamphetamine officers found on October 31.

On June 1, 1995, the Kansas Department of Revenue assessed a $49,000 tax

against Mr. Thompson based upon his possession on May 31 of 245 grams of

methamphetamine. It also charged Mr. Thompson a $49,000 penalty for failing to

affix Kansas drug tax stamps to the methamphetamine. On March 13, 1996, the

Kansas Department of Revenue assessed $125,200 in taxes against Mr. Thompson

based upon his possession on October 31, 1995 of 626 grams of

methamphetamine, along with a $125,200 penalty for failing to affix drug tax

stamps to the narcotics.

-3- Mr. Thompson's first argument on appeal is that the district court lacked

jurisdiction to convict him under 21 U.S.C. § 841(a)(1), as that statute is

unconstitutional and violates the Tenth Amendment. He relies largely on United

States v. Lopez, 514 U.S. 549 (1995), in which the Supreme Court "struck down

[as unconstitutional] the Gun-Free School Zones Act of 1990, a congressional act

making it a crime knowingly to possess a gun in a school zone." United States v.

Wacker, 72 F.3d 1453, 1475 (10th Cir.), cert. denied, 117 S. Ct. 136 (1996).

However, in Wacker, 72 F.3d at 1475, we squarely rejected the argument that 28

U.S.C. § 841(a)(1) violates the Tenth Amendment; therefore, Mr. Thompson's

claim must fail. See, e.g., In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)

(appellate panel is "bound by the precedent of prior panels"), cert. denied, 513

U.S. 807 (1994).

Second, Mr. Thompson claims the evidence at trial was insufficient to

support his convictions for intent to distribute methamphetamine.

[I]n reviewing the sufficiency of the evidence ... [we] review the record de novo "and ask only whether, taking the evidence -- 'both direct and circumstantial, together with the reasonable inferences to be drawn therefrom' -- in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt."

United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.) (quoting United States v.

Urena, 27 F.3d 1487, 1489 (10th Cir.), cert. denied, 513 U.S. 977 (1994)), cert.

-4- denied, 117 S. Ct. 226 (1996).

In his appellate brief, Mr. Thompson conveniently fails to mention the tape-

recorded statement he gave in the early hours of June 1 that was played for the

jury at trial. In that statement he admits the following: buying the seven ounces

of methamphetamine for $8,000 from his source; much of the cash found at his

house that night was derived from the sale of narcotics; he had been selling

methamphetamine and other drugs for about six or seven years; and that he

frequently purchased four-ounce amounts of methamphetamine for resale. Mr.

Thompson's statement, along with the discovery of substantial amounts of cash

derived from narcotics trafficking and an electronic scale, is sufficient to support

his first conviction of possession with intent to distribute.

Additionally, at trial the government presented testimony showing that

where a person intends only to personally use methamphetamine rather than to

resell it, he or she usually makes purchases in amounts of less than one ounce,

typically only in quarter or half gram amounts. From this testimony, a reasonable

jury could infer Mr. Thompson intended the pound of methamphetamine found in

his possession on October 31 for resale rather than personal use. That inference,

along with the $2,500 found on Mr. Thompson's person and his previous

-5- admissions, is sufficient to support Mr. Thompson's second conviction.

In his third claim of error, Mr. Thompson contends his trial counsel

provided ineffective representation by failing to request a jury instruction on the

lesser included offense of possession of methamphetamine. "Ineffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal." United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)

(en banc). Direct appeal of such claims generally prevents the district court from

examining the matter. Id. We are thus denied the benefit of the district court's

insight, and often the accused attorney lacks an the opportunity to explain his or

her actions. Id.

Although in rare cases where the record is sufficiently well-developed we

may review such allegations on direct appeal, id.; e.g., United States v. Smith, 10

F.3d 724, 727-29 (10th Cir. 1993), here the record is not sufficiently developed.

On appeal, Mr. Thompson asserts the entirety of trial counsel's actions show

counsel's goal was to prove Mr. Thompson was a mere user of narcotics, rather

than a distributor, and therefore counsel's failure to request a jury instruction on

the lesser included offense was a mistake rendering his representation ineffective.

However, from the record before us it is impossible to tell whether trial counsel

-6- indeed accidentally failed to request the jury instruction, or whether his trial

strategy was to go "all or nothing," hoping to show Mr. Thompson did not

distribute drugs and thereby gain him a full acquittal. See Smith, 10 F.3d at 727-

29 (defense counsel's affidavit admitting overlooking the availability of lesser-

included offense rather than making conscious strategy decision to forego that

avenue rendered record sufficient to consider issue of ineffective assistance of

counsel on direct appeal). Accordingly, we decline to review this claim at the

present time.

Fourth, Mr. Thompson claims he did not voluntarily consent to the May 31

and October 31 police searches and therefore the district court erred in failing to

suppress the evidence resulting from those searches. He also contends that even

if he validly consented to the searches, the May 31 search of his automobile

occurred prior to his giving consent and, because he did not consent to the search

of his automobile, exceeded the scope of his consent.

When reviewing a district court decision on suppression of evidence, we must accept the court's findings of fact unless, viewing the evidence in the light most favorable to the court's findings, we conclude the findings were clearly erroneous. Evaluation of the credibility of witnesses, the weight to be given the evidence, and inferences to be drawn from the evidence are for the district court. However, the ultimate determination of whether a search and seizure were reasonable under the Fourth Amendment is subject to de novo review.

-7- United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). The

government has the burden of proving valid consent to a warrantless search.

United States v. Cody, 7 F.3d 1523, 1526 (10th Cir. 1993). It "must proffer 'clear

and positive testimony that consent was unequivocal and specific and freely and

intelligently given.' Furthermore, the government must prove that this consent

was given without implied or express duress or coercion." United States v.

Angelo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995) (quoting United States v.

Dewitt, 946 F.2d 1497, 1500 (10th Cir. 1991), cert. denied, 502 U.S. 1118 (1992))

(citations omitted).

The government produced abundant evidence Mr. Thompson validly

consented both to the searches and to their scope. Mr. Thompson signed consent-

to-search forms on May 31 and on October 31, both of which state the time of

consent, and on each consent form the time listed is about the same time the

police encounters began. The May 31 form stated the search was to be of the

"residence and curtilage in its entirety." The district court found Mr. Thompson

orally consented to a search of the automobile, and, as during Mr. Thompson's

May 31 statement he admitted giving such consent, we cannot conclude the

district court's finding is clearly erroneous. Because Mr. Thompson orally

consented, we need not decide whether the search of the automobile was within

-8- the scope of the written consent form. Additionally, in his statement of June 1,

Mr. Thompson admits consenting to the May 31 search of his residence. Police

officers also testified regarding the voluntary nature of Mr. Thompson's consents,

and the district court found their testimony credible and consistent with the

consent forms and Mr. Thompson's statement. Given this evidence, the district

court's findings, and our standard of review, we hold Mr. Thompson validly

consented to both searches, and therefore affirm the district court's refusal to

suppress the resulting evidence.

In his fifth claim of error, Mr. Thompson asserts the sentence imposed by

the district court violates his Fifth Amendment right against double jeopardy.

Specifically, Mr. Thompson argues jeopardy attached when the Kansas

Department of Revenue imposed approximately $150,000 as taxes on the

methamphetamine and imposed approximately $150,000 in penalties for failing to

affix Kansas drug tax stamps to the methamphetamine. Accordingly, he contends

the subsequent federal prosecution placed him in double jeopardy. We review

double jeopardy claims de novo. United States v. Raymer, 941 F.2d 1031, 1037

(10th Cir. 1991).

This argument also fails. It is axiomatic that prosecution or punishment by

-9- separate sovereigns of a defendant for the same conduct does not violate the Fifth

Amendment's Double Jeopardy Clause. Raymer, 941 F.2d at 1037. The Kansas

state government and the federal government are separate sovereigns. See United

States v. Padilla, 589 F.2d 481, 484 (10th Cir. 1978). Therefore, both sovereigns'

prosecution or punishment of Mr. Thompson for his narcotics activities did not

violate his right to be free from double jeopardy. Raymer, 941 F.2d at 1037;

Padilla, 589 F.2d at 484-85.

Admittedly, "[a] possible exception to the dual sovereignty rule might exist

where a federal or state prosecution was merely a tool manipulated by the other

sovereign to revive a prosecution barred on federal constitutional grounds," i.e., a

"sham prosecution" covering for an otherwise impermissible state or federal

prosecution. Raymer, 941 F.2d at 1037. However, "[w]hen a defendant claims

that federal and state officials are not acting as dual sovereigns, he has a

substantial burden of proving one sovereign is so dominated by the actions of the

other that the former is not acting of its own volition." Id. Relatively minor

federal involvement is sufficient to rebut a defendant's claim a federal prosecution

is in actuality a "sham" for an otherwise impermissible state prosecution. See

Raymer, 941 F.2d at 1036-39; Padilla, 589 F.2d at 485 (Logan, J., concurring).

-10- Mr. Thompson has not met his "substantial burden" of proving the federal

sovereign did not act of its own volition. The group of officers involved in the

May 31 incident included a federal agent, and the October 31 arrest was pursuant

to a federal arrest warrant. That is sufficient federal involvement to preclude Mr.

Thompson from establishing a sham prosecution. See Raymer, 941 F.2d at 1036-

39; Padilla, 589 F.2d at 485 (Logan, J., concurring).

At the conclusion of his double jeopardy argument, Mr. Thompson states:

"In the alternative, defendant requests that the Court find that defendant's Eighth

Amendment constitutional right against Excessive Fines was violated." Mr.

Thompson fails to provide legal authority or reasoned argument supporting this

claim. Accordingly, we decline to consider it. Murrell v. Shalala, 43 F.3d 1388,

1389 n.2 (10th Cir. 1994) (perfunctory complaints that fail to frame and develop

an issue are insufficient to invoke appellate review); Brownlee v. Lear Siegler

Management Servs. Corp., 15 F.3d 976, 977-78 (10th Cir.) (conclusory references

to district court error without sufficient citation to authority is not adequate

appellate argument), cert. denied, 114 U.S. 1237 (1994); Primas v. City of Okla.

City, 958 F.2d 1506, 1511 (10th Cir. 1992) (party has duty to cite authority for

any argument raised).

-11- Lastly, Mr. Thompson asserts the government "violated [Fed. R. Crim. P.]

5(a) by waiting five months from [his] arrest on May 31, 1995 until [his]

subsequent arrest on October 31, 1995 to bring [him] before a federal magistrate."

Fed. R. Crim. P. 5(a) generally requires officers who make an arrest to take the

arrestee "without unnecessary delay before the nearest available federal

magistrate judge." Because Mr. Thompson did not raise this claim before the

district court, our review is limited to plain error. Fed. R. Crim. P. 52(b); see,

e.g., United States v. Mitchell, 783 F.2d 971, 976 (10th Cir.), cert. denied, 479

U.S. 860 (1986). Reversal on the grounds of plain error is at our discretion, and

we do not exercise that discretion "unless the error 'seriously affects the fairness,

integrity or public reputation of judicial proceedings.'" United States v. Olano,

507 U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

"However, as a prerequisite to plain error review under Rule 52(b), [we] must

first find that an 'error' indeed has been committed." United States v. Gomez, 67

F.3d 1515, 1520 (10th Cir. 1995), cert. denied, 116 S. Ct. 737 (1996).

Although Mr. Thompson asserts his arrest occurred May 31, 1995, the

government contends Mr. Thompson was not arrested until October 31.

Therefore, the government argues, it did not violate Rule 5(a) by taking Mr.

Thompson to a magistrate judge on November 1. "Rule 5(a) becomes applicable

-12- once the accused is taken into federal custody." United States v. Torres, 663 F.2d

1019, 1023 (10th Cir. 1981), cert. denied, 456 U.S. 973 (1982). Officer testimony

at Mr. Thompson's trial supports the government's claim Mr. Thompson was not

arrested until October 31. To support his claim of arrest on May 31, the only

evidence to which Mr. Thompson points is a statement a Kansas City police

officer made during grand jury proceedings. In particular, during the

proceedings, the prosecutor asked whether the testifying officer participated in

the arrest of Mr. Thompson "in the late evening hours of June 30 and the early

morning hours of July 1" of 1995. 1 The officer answered "Yes, I did." Notably,

the government, both in its brief and at oral argument, asserted this statement was

never admitted into evidence before the district court, and nowhere does the

record, or Mr. Thompson, contradict the government's assertion. Accordingly, we

give little weight to the officer's grand jury statement. See Aero-Medical, Inc. v.

United States, 23 F.3d 328, 329 n.2 (10th Cir. 1994) (appellate court strikes

documents included in the appendix that were not before the district court); Boone

v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992)

(appellate court will not review documents not before the district court when its

ruling was made). Mr. Thompson fails to present any other tangible evidence of

1 We presume the prosecutor erred and the question actually referred to the events of May 31 and June 1, 1995.

-13- his alleged arrest, such as arrest or booking documents. On the basis of the

record before us, we do not find Mr. Thompson was arrested on May 31 and

therefore his Rule 5(a) claim fails.

We DISMISS Mr. Thompson's ineffective assistance of counsel claim. We

AFFIRM the judgment of the district court on all other issues.

Entered for the Court

WADE BRORBY United States Circuit Judge

-14-