F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 12 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 99-6009
v. (D.C. No. 98-CR-44-A)
KEITH LAMAR ORANGE, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, McKAY, and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Defendant was convicted for his participation in an elaborate scheme
operated from prison to file fraudulent income tax returns seeking refunds in
violation of 18 U.S.C. §§ 286, 287, and 2(b). He was sentenced to concurrent
*
This order and judgment is not binding precedent, except under the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.
terms of seventy-eight months’ imprisonment and sixty months’ imprisonment.
He raises five arguments on appeal, challenging both his convictions and his
sentence.
Defendant first contends that the district court erroneously denied his
motion to suppress co-conspirator testimony. He asserts that his co-conspirators
agreed to testify because they expected that, in return, the government would
assist them by dismissing certain counts and by seeking a downward departure in
their sentencing. Defendant alleges that the testimony was therefore secured in
violation of the law.
Before trial Defendant moved to suppress the co-conspirator testimony
based on the panel decision in United States v. Singleton, 144 F.3d 1343 (10th
Cir. 1998) (vacated), which held that the government’s offer of leniency in
exchange for testimony violated 18 U.S.C. § 201(c)(2). That decision was
subsequently overturned en banc in United States v. Singleton, 165 F.3d 1297
(10th Cir.), cert. denied, ___ U.S. ___ (1999). Defendant also asserted a corollary
argument that United States Attorneys are bound by state ethical rules, one of
which is Rule 3.4(b) of the Oklahoma Rules of Professional Responsibility. That
rule provides that a lawyer shall not “offer an inducement to a witness that is
prohibited by law.” Okla. Stat. Ann. tit. 5, ch. 1, app. 3-A.
In reviewing the denial of a motion to suppress, we review the district
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court’s findings of fact for clear error, and we review its legal conclusions de
novo. See United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999).
Whether the co-conspirator testimony admitted in this case was legally obtained is
a question of law which we review de novo. See United States v. Singleton, 165
F.3d at 1299.
We observe that the federal statute making United States Attorneys subject
to state ethical rules did not become effective until after Defendant’s trial, see 28
U.S.C. § 530B, but we do not rely on that fact. Since the en banc decision in
Singleton, the inducements involved in this case clearly would not be prohibited
by law under 18 U.S.C. § 201(c)(2). Because Defendant has failed to demonstrate
the violation of § 201(c)(2) or any other law, there is no basis for holding that the
prosecution violated Rule 3.4(b). See United States v. Hill, 197 F.3d 436 (10th
Cir. 1999).
In addition, admissibility of evidence in a federal criminal trial is not
controlled by state evidentiary rules. Under the en banc decision in Singleton and
Federal Rule of Evidence 402, the challenged testimony is plainly admissible.
See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir.), cert. denied,
___ U.S. ___, 120 S. Ct. 212 (1999). Nothing in 28 U.S.C. § 530B suggests that
Congress intended it to require exclusion of otherwise admissible evidence in
federal court even if such evidence has been obtained in violation of state
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professional conduct rules incorporated into the local rules of a federal district
court. See id.
Defendant next challenges the district court’s refusal to suppress evidence
obtained from the home of his claimed common-law wife, Laura Banks, some of
which was seized pursuant to a search warrant and some pursuant to her consent.
Again, review of the district court’s factual findings on a motion to suppress is
under the clearly erroneous standard. See United States v. Hunnicutt, 135 F.3d
1345, 1348 (10th Cir. 1998). But the ultimate question of the reasonableness of a
search or seizure is a legal question subject to de novo review. See id.
Defendant objected to the admission of certain evidence contained in sealed
boxes which Ms. Banks picked up from Defendant at prison for safekeeping until
his release. The district court held that Defendant had no standing to challenge
the search of Ms. Banks’ house where he did not live while he was in prison. It
further held that Defendant’s subjective expectation of privacy in the sealed boxes
was not objectively reasonable. The court noted his lack of control over his
papers and reasoned that “[n]othing prevented his boxes from being opened or his
letters from being shown to others, or simply discarded.” R., Vol. 1, Doc. 83 at 9.
We need not review the district court’s determination of these issues. Even if
Defendant had an objectively reasonable expectation of privacy in the sealed
boxes and standing to challenge the search of the house, we nevertheless conclude
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that evidence gathered in the search was admissible. In light of the valid search
warrant and Ms. Banks’ control over and consent to surrender the boxes, we
conclude that the court properly refused to suppress the challenged evidence. See
United States v. Leon, 468 U.S. 897, 913 (1984) (stating that evidence obtained
through execution of a search warrant by officers who reasonably rely on its
validity need not be excluded); Franks v. Delaware, 438 U.S. 154, 171 (1978)
(requiring that challenges be “more than conclusory,” noting a “presumption of
validity with respect to the affidavit supporting [a] search warrant,” and
determining that no evidentiary hearing is mandated unless an allegation of
deliberate falsehood or recklessness is made with specificity and accompanied by
an offer of proof); United States v. Matlock, 415 U.S. 164, 171 (1974) (holding
that prosecution may justify warrantless search by proof of voluntary consent
from third party possessing common control over property).
Defendant’s third argument asserts that the district court erred in denying
his motion to reveal the identity of one or more confidential informants. We
review a district court’s denial of a motion to disclose the identity of a
confidential informant for an abuse of discretion. See United States v. Gordon,
173 F.3d 761, 767 (10th Cir.), cert. denied, ___ U.S. ___, 120 S. Ct. 205 (1999).
We conclude that Defendant's challenge is without merit. The district court
properly “balanc[ed] the public interest in protecting the flow of information and
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the individual’s right to prepare his defense” as mandated by Roviaro v. United
States, 353 U.S. 53, 62 (1957). The court did not abuse its discretion.
Defendant’s fourth argument is a jurisdictional challenge to two of the
counts with which he was charged. He argues that the government failed to prove
venue in the Western District of Oklahoma because at the time of the subject
offense he was incarcerated within the Eastern District of Oklahoma. To
determine whether venue lies in a particular district, we ask “whether, viewing
the evidence in the light most favorable to the Government and making all
reasonable inferences and credibility choices in favor of the finder of fact, the
Government proved by preponderance of direct or circumstantial evidence that the
crimes charged occurred within the district.” United States v. Rinke, 778 F.2d
581, 584 (10th Cir. 1985).
Where a crime is “begun in one district and completed in another, or
committed in more than one district,” federal law permits prosecution “in any
district in which such offense was begun, continued, or completed.” 18 U.S.C.
§ 3237(a). We therefore conclude that Defendant's challenge is without merit.
The district court cited and relied on evidence plainly showing that relevant acts
took place within its jurisdiction. See United States v. Leahy, 82 F.3d 624 (5th
Cir. 1996) (interpreting 18 U.S.C. § 287 to mean that venue lies where false claim
is prepared, mailed, or presented).
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Finally, Defendant claims that the court erred in enhancing his offense level
by four levels based on his role as a leader or organizer in the criminal activity
under United States Sentencing Guidelines § 3B1.1(a). We review a district
court’s conclusion that a defendant is a leader or organizer under the guidelines
for clear error. See United States v. Tagore, 158 F.3d 1124, 1130 (10th Cir.
1998).
We reject Defendant’s challenge to the court’s sentencing determination
that he had a leadership role in the criminal conspiracy. The evidence clearly
supports the court’s finding that the conspiracy involved five or more persons and
that Defendant played a significant role in organizing the illegal activity and
controlling some of his co-conspirators, especially Ms. Banks. See U.S.S.G.
§ 3B1.1(a); United States v. Edwards, 69 F.3d 419, 439-40 (10th Cir. 1995).
Defendant’s convictions and sentence are AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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