F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 7, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-1077
v. District of Colorado
DAVID LEROY HARTM AN, also (D.C. No. 03-CR-582-RB)
known as David Owens, also known as
Donald W ayne Olds, also known as
Dave Owens, also known as D avid
Kelly Hartman, also known as Jeffrey
L. M eehan,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
David Leroy Hartman was found guilty in a jury trial of five criminal
counts: possession of a firearm by a previously convicted felon in violation of 18
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
U.S.C. §§ 992(g)(1) and 924(e)(2); two counts of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(D); possession of a firearm in furtherance of a federal drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A); and use of another’s identification
to commit unlawful activity in violation of 18 U.S.C. § 1028(a)(7) and (b)(3).
M r. Hartman raises four issues on appeal. Three of the issues w ere initially
raised in pre-trial motions: a request to suppress the fruits of an allegedly illegal
stop and search, an allegation that the government failed to preserve material
evidence, and a request to sever the identification card offense from the other
charges. The district court denied all three motions. M r. Hartman also challenges
the district court’s decision to allow Detective G rassman to testify as an expert
witness during his trial. W e affirm the district court’s decisions on all four
issues.
Background
On June 23, 2003, Narcotics Detective Grassman of the Denver Police
Department received a call from a confidential informant. The informant was
known to Detective Grassman, and had provided many reliable tips to him in the
past. The informant told Detective G rassman that an individual know n as
“David,” who later was identified as the defendant, was distributing
methamphetamine, was in possession of a .357 handgun, and was wanted on a
warrant for escape from prison. The last piece of information turned out to be
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inaccurate. Although there was a warrant issued for the defendant’s arrest, it was
not for prison escape. The informant described “David” and told Detective
Grassman that he would be at a particular 7-Eleven convenience store in Denver
around midnight conducting a narcotics transaction. The informant also told the
detective that the individual would be driving a small red car with a broken
windshield and side window and would produce false identification with the name
“Jeffrey M eehan.”
At approximately 12:30 a.m. on June 24, 2003, Detective Grassman
observed a man matching the informant’s description in the 7-Eleven parking lot
in a small red car matching the informant’s description. The detective radioed a
uniformed police officer to contact the man. He also relayed to other officers that
the man might be w anted for escape and w as possibly armed and dangerous.
Officer Jackson arrived at the scene. He parked his patrol car behind the red car,
approached the red car, and requested identification. The driver produced a
driver’s license with the name of Jeffrey M eehan.
Upon this corroboration of the confidential informant’s tip, Detective
Grassman told the officers to direct the driver to get out of the car. The officers
patted him down for weapons and took him into custody. During the pat-down,
an officer discovered a syringe in his left sock. W hile they were searching the
man in the red car, Detective Grassman noticed the chrome barrel of a handgun
protruding from underneath the driver’s seat and a scale lying on the floorboard
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of the driver’s seat. A subsequent search of the vehicle uncovered a .357 caliber
handgun, a box of ammunition, methamphetamine, crack cocaine, and documents
bearing the name “David Hartman.”
The police towed and impounded the red car. Though all impound holds on
the vehicle were released on December 1, 2003, nobody retrieved the car from the
impound yard, and it was crushed and destroyed on January 16, 2004. Sometime
before trial, the convenience store destroyed the security tape from the night, as
was customary practice for the store.
I. Search and Seizure
M r. Hartman claims that the police officers lacked reasonable suspicion for
contacting him in the convenience store parking lot and probable cause for the
arrest. Consequently, he argues, the district court erred in not suppressing
evidence obtained from the stop and search. He argues that (1) the information
provided by the officers’ confidential informant was not credible or corroborated,
(2) the existence of a warrant for his arrest was not confirmed until after he was
arrested, and (3) that the warrant was for a crime other than the crime for which
the officers’ believed they were arresting the defendant. Because we believe the
confidential informant’s corroborated story provided sufficient reasonable
suspicion, we need only consider the first claim.
In reviewing the denial of a motion to suppress, we accept the district
court’s factual findings unless they are clearly erroneous. United States v.
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Higgins, 282 F.3d 1261, 1269 (10th Cir. 2002). W e consider the totality of the
circumstances and view the evidence in the light most favorable to the
government. Id. “Keeping in mind that the burden is on the defendant to prove
that the challenged search was illegal under the Fourth Amendment, the ultimate
determination of reasonableness under the Fourth Amendment is a question of law
reviewable de novo.” Id.
W e disagree with the defendant’s notion that the confidential informant was
somehow not credible, or w as without a “history of veracity.” Aplt. Br. at 13.
Detective Grassman testified to working with the informant “for around four or
five years,” during which time the informant had never provided false information
and had provided “hundreds” of tips leading to “30 or 40” arrests, search
warrants, or further investigations. Id. at 17-18. See Illinois v. Gates, 462 U.S.
213, 230-31 (1983) (holding that the veracity, reliability, and basis of knowledge
for a tip, considered as part of the totality of the circumstances, determine
whether reasonable suspicion or probable cause exists); Adams v. W illiams, 407
U.S. 143, 146 (1972) (holding that an officer acted with reasonable suspicion
based on a tip provided by an informant who “w as known to [the officer]
personally and had provided him with information in the past.”). Even
anonymous tips can serve as the basis of reasonable suspicion when they are
corroborated by further observations. See Alabama v. White, 496 U.S. 325, 330-
32 (1990). As Detective Grassman’s confidential informant had a record of
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reliability and his story was corroborated, we have no doubt that the officers
acted with the requisite reasonable suspicion. Nor is there any reason to doubt
that the officers had probable cause to proceed with an arrest after they
discovered the syringe, drugs, weapon, and scales.
There is no need to consider the defendant’s arguments regarding the arrest
warrant. The officers had ample basis for arresting the defendant even if an arrest
on the basis of the unverified warrant, without more, would have been unjustified.
II. Severance of the Criminal Counts
M r. Hartman argues that the district court’s joinder of the identification
card offense with the other four charges was improper under both Rule 8(a) and
Rule 14 of the Federal Rules of Criminal Procedure.
M r. Hartman did not raise a Rule 8(a) objection in the district court. “[I]f
an appellant fails to alert the trial court to claimed error, the issue cannot be
raised for the first time on appeal unless plain error is held to apply.” United
States v. Jordan, 890 F.2d 247, 250 (10th Cir.1989). W e review for plain error
when an issue of criminal procedure that affects substantial rights was not
brought to the trial court’s attention. Fed. R. Crim. P. 52(b). Before we can
correct an error not raised at trial, the defendant must establish that “there is (1)
error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th
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Cir.2005) (en banc). In this context, “‘Plain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734 (1993).
W e do not believe that the district court’s decision to allow joinder of the
charge w as an error under Rule 8(a). Even if there was an error on the court’s
part, it is neither clear nor obvious. The district court certainly had the discretion
to find that the false identification and the other charges were “of the same or
similar character or are based on the same act or transaction.” Fed. R. Crim. P.
8(a). W e find no error in the court’s decision.
As to M r. Hartman’s Rule 14 contention, we review the district court’s
denial for an abuse of discretion. United States v. Colonna, 360 F.3d 1169, 1177
(10th Cir. 2004). “The decision to grant a severance is within the sound
discretion of the trial court and its decision will not ordinarily be reversed in the
absence of a strong showing of prejudice.” United States v. Strand, 617 F.2d 571,
575 (10th Cir. 1980). “Consequently, the burden of a defendant to show an abuse
of discretion in this context is a difficult one.” Colonna, 360 F.3d at 1178
(quoting Jones, 213 F.3d at 1260) (quotations omitted).
In deciding whether to sever a joined claim for trial, the court must balance
the potential prejudice to the defendant of keeping the claims joined against the
cost and inconvenience of holding a separate trial. United States v. Janus Indus.,
48 F.3d 1548, 1557 (10th Cir. 1995). The expense and inconvenience of holding
an additional trial are clear. On the other side of the scale, however, the
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defendant provides little more than speculation that the “jury might have been
improperly influenced by the combination of the charges.” (A plt. Br. at 16.)
(emphasis added). Nowhere does the defendant point to anything in the record
that shows actual prejudice.
Under our precedents, the joinder of the defendant’s combined offenses
does not rise to the level of prejudice necessary to find an abuse of discretion.
See, e.g., Janus Indus., 48 F.3d at 1557-58 (upholding the denial of severance for
drug and paraphernalia charges); United States v. Price, 265 F.3d 1097, 1105
(10th Cir. 2001) (upholding the denial of severance for drug and weapons charges
on the defendant’s unsupported assertion of prejudice); United States v. Cox, 934
F.2d 1114, 1119 (10th Cir. 1991) (upholding the denial of severance for
marijuana, firearms and other controlled substance offenses, though the offenses
may have arisen from three distinct and unrelated sets of activities). As in those
cases, we uphold the district court’s discretion in denying severance of the
charges.
III. Destroyed Evidence
M r. Hartman’s third claim is that the government destroyed potentially
useful evidence in violation of his due process rights. He claims that the car he
was driving on the night of his arrest, which was impounded and then destroyed
seven months later, contained potentially exculpatory evidence, including a
receipt from the convenience store and a faulty dome light. He further claims that
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the government violated his due process rights by not preserving a security video
from the convenience store for the night of his arrest. W e are unpersuaded by
either argument.
This Court reviews the district court’s conclusion for clear error, and
applies two separate tests to decide whether the government’s destruction of
potentially exculpatory evidence violated the defendant’s due process rights.
United States v. Bohl, 25 F.3d 904, 909-10 (10th Cir. 1994). If the exculpatory
value of the evidence is apparent before its destruction, then we follow the test in
California v. Trombetta, 467 U.S. 479, 489 (1984), and ask whether the defendant
remains able to “obtain comparable evidence by other reasonably available
means.” Id. If the exculpatory value of the evidence is indeterminate and all that
can be shown is that the destroyed evidence was “potentially useful” for the
defendant, then we follow the test in Arizona v. Youngblood, 488 U.S. 51, 58
(1988), and require the defendant to show that the government acted in bad faith.
Id. at 910.
The defendant’s situation fails both tests. Leaving aside the fact that
defendant had access to the evidence before its destruction, the defendant
nowhere explains how the exculpatory value of the vehicle was “apparent” to
satisfy the standard of Trombetta. To the contrary, Detective Grassman testified
that he had released the hold on the impounded vehicle precisely because he felt it
had no evidentiary value. Simply because a vehicle was at the scene of the crime
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does not make its exculpatory value apparent. Nor was it necessarily apparent
that a security video not in the government’s possession and control has any
exculpatory value simply because the arrest was in a convenience store parking
lot. Even had the video had exculpatory value, it is not clear under the precedents
cited that the government has any duty to preserve evidence not in its control.
Nor does the government’s conduct fail the test of Youngblood. M r.
Hartman’s suggestion that the government acted in bad faith lacks any foundation
other than the defendant’s naked assertions. Nowhere does he provide any
specific examples or evidence of the government acting in a w ay that this Court
would characterize as bad faith. If anything, the record supports an alternative
conclusion – that the police were indifferent to what would happen to the
impounded vehicle, acted well within the boundaries of police policy and
procedures, and were not responsible for preserving the video over which they
had no control.
IV. Detective G rassman’s Expert Testimony
Finally, M r. Hartman claims that the district court abused its discretion in
allowing Detective Grassman to testify as an expert about drug users and dealers.
He argues, first, that Detective G rassman was not qualified to testify as an expert
on the habits of drug users and dealers, and second, that even if the detective was
qualified, his testimony impermissibly stated conclusions or inferences about M r.
Hartman’s mental state.
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W e review the district court’s admission of expert testimony for an abuse
of discretion. United States v. Velarde, 214 F.3d 1204, 1208 (10th Cir. 2000).
The district court’s discretion to admit expert testimony is broad. Id. Not only
must the trial court be given broad discretion to decide whether to admit expert
testimony, it “must have the same kind of latitude in deciding how to test an
expert's reliability.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999).
Turning first to M r. Hartman’s argument that Detective Grassman was not
qualified to testify as an expert, Fed. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
W e have stated that “Rule 702 thus dictates a commonsense inquiry of w hether a
juror would be able to understand the evidence without specialized knowledge
concerning the subject.” United States v. M cDonald, 933 F.2d 1519, 1522 (10th
Cir. 1991). W e have further held that testimony on the amount of illegal drugs
possessed is specialized knowledge. Id. (“A person possessing no knowledge of
the drug world would find the importance of [an amount of rock cocaine]
impossible to understand. The average juror would not know whether this
quantity is a mere trace, or sufficient to pollute 1,000 people.”); United States v.
M uldrow, 19 F.3d 1332, 1338 (10th Cir. 1994) (finding the amount of cocaine
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involved in the case had little significance to those unfamiliar with drug use, and
therefore the detective’s expert testimony appropriately assisted the jury). In the
case at hand, it is reasonable to assume that the habits of drug dealers – including
the amounts and combinations of drugs, methods of distribution, and the use of
firearms – are not within the expertise of a lay person and the testimony of a
trained narcotics detective with 19 years experience involving more than 1,000
narcotics investigations would assist in informing the average jury .
As a final argument, M r. Hartman claims that Detective Grassman “went
outside of his specialized knowledge by opining about the defendant’s actual
intent” in violation of Fed. R. Evid. 704(b). M r. Hartman cites to no evidence in
the record of such statements. The argument is therefore waived. Tenth Cir. R.
28.2(C)(2), (3)(a); see United States v. M cClatchey, 217 F.3d 823, 835-36 (10th
Cir. 2000) (concluding that an appellee waives an argument against the
admissibility of evidence when the appellee makes no specific citations to the
record for the allegedly erroneous evidence).
Conclusion
The judgment of the United States District Court for the District of
Colorado is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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