FILED
United States Court of Appeals
Tenth Circuit
February 9, 2010
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-1229
v.
TYRONE PARKER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 08-cr-207-MSK)
Howard Pincus, Assistant Federal Public Defender, (Raymond P. Moore, Federal
Public Defender, with him on the briefs) Denver, Colorado, for Defendant-
Appellant, Tyrone Parker.
James C. Murphy, Assistant United States Attorney, (David M. Gaouette, United
States Attorney, with him on the brief) Denver, Colorado, for Plaintiff-Appellee,
United States of America.
Before TYMKOVICH, ALARCÓN, * and EBEL, Circuit Judges.
ALARCÓN, Circuit Judge.
*
Honorable Arthur L. Alarcón, Senior Circuit Judge, U.S. Court of Appeals
for the Ninth Circuit, sitting by designation.
The sole issue raised in this appeal is whether the district court clearly
erred in enhancing Tyrone Parker’s sentence based on its finding that Parker had
obstructed justice. He does not challenge the judgment of conviction or the
denial of his motion to suppress the evidence the officers obtained after they
entered his apartment after conversing with Parker in his doorway.
We affirm because we conclude that the district court did not clearly err in
determining that Parker obstructed justice when he falsely testified at the
suppression hearing that he did not consent to the entry of his apartment.
I
On February 19, 2008, officers of the Denver Police Department obtained
warrants to search three residences in an apartment complex consisting of forty-
three units. After executing the warrants, the officers decided to perform a
“knock and talk” 1 with Parker at his residence in the same building. The officers
did not have a warrant to search Parker’s apartment. The officers knocked on
Parker’s door. After talking to Parker, the officers entered the apartment. In the
apartment, the officers seized a Raven Arms .25 caliber handgun, a magazine,
ammunition, as well as crack cocaine, and marijuana.
1
This Court has characterized a “knock and talk” investigation as follows:
“As commonly understood, a ‘knock and talk’ is a consensual encounter and
therefore does not contravene the Fourth Amendment even absent reasonable
suspicion.” United States v. De Jesus Cruz-Mendez, 467 F.3d 1260, 1264 (10th
Cir. 2006).
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Parker was arrested and taken to the Denver Police Department
Headquarters where he wrote out a statement indicating that he consented to the
entry by the police officers into his apartment.
On May 6, 2008, a federal grand jury indicted Parker on two counts: Count
1 charged Parker with being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1); and, Count 2 with knowingly possessing a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k). Parker entered a
plea of not guilty on May 13, 2008.
II
A
On July 21, 2008, Parker filed a motion to suppress the evidence seized in
his apartment, as well as the statements he made there prior to his arrest. He
argued in his motion that the evidence was obtained as a result of the warrantless
entry into his apartment by Denver Police officers in violation of his rights under
the Fourth Amendment because he did not freely consent to the search.
B
The hearing on the motion to suppress was conducted on September 26,
2008. In his opening statement, Parker’s counsel argued that the court should
also suppress the written statement Parker executed at the police station because it
was not voluntary and because it was the product of deceit and coercion.
Detectives Jeff N. Baran and James Reiva and Officers Anthony Schluck
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and James Dixon of the Denver Police Department testified on behalf of the
prosecution. Special Agent Mark J. Feltz of the Bureau of Alcohol, Tobacco and
Firearms also testified for the prosecution. Tyrone Parker and his mother,
Maebelle Parker, testified for the defense.
1
a
Detective Baran testified that a warrantless “knock and talk” investigation
was conducted at Parker’s apartment on February 19, 2008 with Detective Reiva
and Officers Schluck and Dixon.
Detective Baran testified that after Detective Reiva knocked on the door,
Parker opened it. He was holding a cell phone. Detective Reiva asked Parker:
“Can we come in and talk to you?” Suppression Hr’g Transcript at 28, September
26, 2008.
Parker inquired whether the officers had a warrant. The officers responded
that they did not have a warrant. Parker then stated: “Yeah, you can come in.” Id.
at 28-29.
As Detective Reiva stepped into the apartment, Parker stated: “I have a gun
over there.” Id. at 29. The firearm was in plain view from the doorway, once
Parker stepped out of the way.
Detective Baran asked Parker if he had been convicted of any prior
felonies. Parker replied: “Yes.” Id. at 31. Detective Baran then advised Parker
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of his Miranda rights. Parker stated that he understood his rights. Detective
Baran asked if the firearm was loaded. Parker replied that it had six rounds in it –
one in the chamber and five in the magazine. Parker stated that “on New Year’s,
I fired a couple of rounds into the air.” Id. at 37.
Detective Baran asked Parker if he knew that as a felon, he could not
legally possess a weapon. Parker replied: “Well, it’s a risk I had to take, you
know: either be safe and have the gun or get caught with it and go back.” Id.
b
Detective Reiva testified that he participated in the “knock and talk”
investigation at Parker’s apartment. Detective Reiva knocked on Parker’s door.
It was a “regular knock.” Id. at 57. Parker opened the door and Detective Reiva
said “Denver Police.” Id. Parker was holding a phone next to his ear. Detective
Reiva stated to Parker: “Can we come in and talk to you for a minute?” Id. at 59.
Parker said “yes” and stepped back and opened the door to make a path for the
officers to enter. Id.
When Detective Reiva stepped into the apartment, he saw a chrome-plated
handgun sitting on the top of the refrigerator. As Detective Reiva walked over to
retrieve the firearm, Parker stated: “I have a gun over there.” Id. at 62. In
response to Detective Baran’s question, Parker stated that he was a convicted
felon. Id. at 63.
Detective Reiva saw crack cocaine residue on top of the refrigerator. He
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also saw marijuana and crack cocaine residue in the sink. Detective Reiva
overheard Parker consent to a search of the apartment in response to Detective
Baran’s request.
c
After Parker was arrested and removed to Denver Police Headquarters,
Detective Reiva read a Miranda advisement form to him. Parker stated he
understood his rights after they were read to him, and placed his initials after each
statement.
Detective Reiva read the waiver provisions of the advisement to Parker.
The form states: “Knowing my rights and knowing what I am doing, I now wish
to voluntarily talk to you.” Government’s Response to Motion to Suppress at Ex.
1, August 8, 2008. Parker wrote, “Yes” and signed his name after the waiver
admonishment. Id. Detective Reiva then asked Parker to “write the story of what
happened.” Suppression Hr’g Transcript at 73, September 26, 2008. Parker’s
handwritten statement reads as follows:
I Tyrone Edward Parker heard a knock at my door. The officers then
stated that this is the Denver Police Department, may we come in. I
agreed, they came into my apartment, I then told them that I have a
gun, they retrieved the gun, and the box of ammo, did an apartment
search found a little pot, and some crack that was found in my
kitchen drain that I use for my personal consumption.
Government’s Response to Motion to Suppress at Ex. 2, August 8, 2008.
At the bottom of this statement, Detective Reiva wrote out the following
question in his own handwriting: “Did you put the marijuana and crack in the
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drain?” Id. Parker wrote on the statement: “Yes because I got afraid when I
heard the Police.” Id.
Detective Reiva also wrote on the statement; “Where did you get the gun
from?” Id. Parker responded in his own handwriting: “Someone I know name[d]
Basket.” Id. Each of Parker’s statements were initialed by him. Parker signed
the statement at the bottom of the page following the printed words: “I have read
the foregoing statement and the facts contained therein are true to the best of my
knowledge and belief. I do not maintain that it contains all of the facts or details
of the incident, but only those facts about which I have been asked.” Id.
(emphasis in the original).
2
a
Parker testified in support of his suppression motion. He stated that he was
talking to his mother on a cell phone at the time the police officers knocked on
his door. He testified that he called her “[b]ecause I heard the police in my
building and I wanted her to be on the phone with me.” Suppression Hr’g
Transcript at 87, September 26, 2008. Approximately five minutes before he
called his mother he heard a crash, and someone shouted “Police, search warrant.”
Id. at 88. When he heard this, he put some marijuana and crack cocaine in the
sink.
When he heard the knock on his door, he looked through the peek hole and
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saw Detectives Baran and Reiva. One of the officers said: “Denver Police
Department. Can we talk to you?” Id. at 89. Parker testified that he opened the
door “[k]ind of like not all the way.” Id. at 90. He held the door in his left hand
and the cell phone in his right hand.
Detective Baran asked Parker: “Can we come in and talk to you?” Id.
Parker replied: “Do you have a search warrant?” Id. Detective Baran said: “No.”
Id. Parker testified that he then stated: “No, you cannot come in here. I am on
the phone with my mom in Chicago.” Id. Parker then testified: “He reached in,
told me to tell my mom goodbye, hung the phone up. I had on a hooded
sweatshirt. He put the phone inside of [my] hooded sweatshirt and pushed me to
the side and came in.” Id. at 90-91. Parker then told the officers he had a gun
sitting on top of the refrigerator because he was afraid that if they saw it they
would shoot him.
Detective Baran asked him: “Do you know why we knocked on your door?”
Id. at 92. Parker replied: “No.” Id. Detective Baran then stated: “Because
someone said that you were dealing drugs out of this apartment.” Id. Detective
Baran then put handcuffs on Parker and read him the Miranda rights.
Parker testified that he was read his rights and he agreed to speak to the
officers. Parker testified that he executed a written statement at the police station
after again being informed of his Miranda rights. Parker stated that he wrote the
statement because “Detective Reiva told me to write down ‘I, Tyrone Edward
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Parker, agreed to them to come in.’” Id. at 95. Parker testified that he agreed to
do so because Detective Reiva told him that if he did so the police would return
the $750 they found in his apartment. Parker also testified that he was told that
the statement could not be used against him in court.
b
Maebelle Parker testified that she had a phone conversation with her son on
February 19, 2008. During this conversation, she heard someone knocking on the
door. She heard Parker say: “Who is this?” Id. at 120. She heard a response that
they were detectives or police officers.
Ms. Parker testified that her son asked if they had a search warrant. She
heard someone say: “No.” Id. Someone asked if they could come in. Her son
said: “No.” Id. She then heard someone ask if anyone else lived there. Her son
said: “No.” Id. at 121. Parker told someone, “I’m talking on the telephone with
my mom.” Id. The phone was then shut off.
On cross-examination, Ms. Parker stated that her son had written a letter to
her while he was in jail in which he described what happened when the officers
came to his apartment. She also testified that the phone went dead after someone
said they did not have a warrant. When asked if she would “like to protect him
from having to go to prison,” Ms. Parker replied: “Oh, yes. I would like to
protect any of my kids from having to do anything. I don’t care what it is. I
don’t care if it’s - - I don’t know. Whatever.” Id. at 126-7.
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3
The Government called two Denver police officers during the suppression
hearing to rebut the evidence produced by Parker’s counsel. Denver Police
Officer Schluck testified that he assisted Detectives Baran and Reiva in the
“knock and talk” investigation of Parker on February 19, 2008. He stated that
Parker responded: “Yes, come on in” when the detectives asked for permission to
enter Parker’s apartment. Id. at 138. Parker then backed away from the door to
allow the officers to enter the apartment. Parker did not tell the officers they
could not enter. No physical force was used to enter the apartment. Defense
counsel did not cross-examine Officer Schluck.
Officer Dixon testified that he assisted in the “knock and talk”
investigation at Parker’s apartment. When the detectives asked for permission to
enter his apartment, Parker replied: “Sure, come on in.” Id. at 141. Parker then
stepped back and opened the door. Parker did not tell the officers they could not
enter. No physical force was used to enter Parker’s residence. Defense counsel
did not cross-examine Officer Dixon. Id. at 143.
Special Agent Feltz of the Bureau of Alcohol, Tobacco and Firearms
testified that he participated in a telephone conference call interview of Ms.
Parker by the prosecutor, Assistant U.S. Attorney Richard Hosley. She was asked
several times to relate what she overheard on the telephone during her
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conversation with her son on February 19, 2008. Ms. Parker stated that she heard
someone knock on the door and announce that they were police officers. They
asked Parker if they could speak to him. Her son asked if they had a warrant.
Someone said: “No.” Id. at 146. She stated she did not hear the officers ask if
they could enter the apartment, nor did she hear her son respond. She did not
state during the interview that her son denied the officers’ request to enter his
apartment.
C
After hearing counsels’ arguments, the district court denied the motion to
suppress the physical evidence seized from Parker’s apartment and the statements
he made during the search and at the police station. The district court stated:
Here the defendant has denied that he gave consent to the officers to
enter his apartment. The Court has found, having reviewed the
conflicting evidence that, indeed, he did give consent. There is no
issue as to the voluntariness of the consent because the defendant has
simply denied that he gave it.
Id. at 158.
The district court held that Parker’s statements were made freely and
voluntarily after he waived his Miranda rights. In so ruling, the district court
stated: “the Court finds that there was no constitutional violation either with
regard to the entry into the apartment or with regard to the statement voluntarily
made by the defendant.” Id. at 160.
III
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On December 22, 2008, Parker entered a guilty plea as to Count 1 of the
indictment pursuant to a plea agreement. The Government moved to dismiss
Count 2. The plea agreement provides that the parties dispute whether “Parker
committed perjury when he testified, under oath, at the suppression hearing on
September 26, 2008.” Plea Agreement at 5, December 22, 2008. The parties
agreed that “the Court may use the evidence presented at the September 26, 2008
suppression hearing to make factual determinations for sentencing purposes.” Id.
The plea agreement further provides that “[t]he United States believes a
two (2) level enhancement should be added, per § 3C1.1 because of the
defendant’s perjured testimony at the suppression hearing. The defendant
disputes the application of this enhancement.” Id. at 6-7 (emphasis in original).
IV
The district court conducted the sentencing proceedings in this matter on
May 19, 2009. After listening to counsels’ arguments regarding whether the court
should enhance Parker’s sentence for obstruction of justice pursuant to U.S.S.G.
§ 3C1.1 based on his testimony at the suppression hearing, the court proceeded to
hear Parker’s allocution.
Parker explained why he opened the door when the police knocked on his
door. He stated:
And I was raised to respect the law. That’s why I opened the door.
If I did not respect the law, I wouldn’t have opened the door. I
wouldn’t have never opened the door to talk to them. They came in
on me. So if I had disrespect for the law or disrespect for the public,
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I would have told them, Hey, no, you can’t come in here through the
door, wouldn’t have even opened the door face to face to even talk to
them.
Sentencing Hr’g Transcript at 41, May 19, 2009 (emphasis added).
The district court asked: “So do I understand correctly that you consented
to them entering the apartment?” Id. at 43. Parker replied:
I did not. I did not. When I opened up the door, they said, “Is
anyone in here?”
I said, “No.”
They said, “Can I come in?”
I said, “No, I’m on the phone with my mom in Chicago.”
They took the phone, hung it up, put it inside my coat, pushed me to
the side.
Id.
In a subsequent passage, Parker also stated, in referring to the police
officers: “I know they’re pillars of the community and maybe they remember
something different from me. I can’t call - - I’m not going to say that they are
right and I am wrong, or whatever; but there is always two sides to a story.” Id.
at 46.
After Parker had finished his allocution, the district court stated:
The Court will now state the sentence it intends to impose. Counsel,
you’ll have a final chance to make arguments with regard to the
sentence before judgment is actually entered. If after articulation of
my reasoning you believe that the Court has erred or there is
something in my reasoning that catches you by surprise and you
would like an opportunity to research it and to make further
argument with regard to it, you may request a continuance and I’ll be
happy to grant you a continuance.
Id. at 48.
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In resolving the parties’ dispute regarding whether it should adjust Parker’s
sentence because of obstruction of justice, the district court reasoned as follows:
In order for this obstruction of justice enhancement to apply, the
defendant must have made a false statement under oath concerning a
material matter with the willful intent to provide such false
testimony. The Court is required to specify the statement that was
perjurious and to specifically find that there was willful intent to
make the false statement.
Before this hearing, I was prepared to deny this obstruction-of-justice
enhancement because the mere fact that the Court believed the
officers at the suppression hearing and disbelieved Mr. Parker did not
mean that Mr. Parker’s testimony was perjurious; in other words, that
it was false and willfully false.
There is often a belief on the part of Government that if the Court
makes factual findings in the Government’s favor that the Court is
making a statement that, indeed, the defendant has testified falsely
and that that constitutes perjury. One does not necessarily follow
from the other.
But here I have carefully listened to what Mr. Parker had to say
during his allocution; and what Mr. Parker had to say during his
allocution is absolutely inconsistent with what he's testified at the
suppression hearing. He testified that the statements that he made in
his written statements supplied to the police after his arrest were
false. That’s what he testified at the suppression hearing. And he
testified that the police forced their way into his apartment, contrary
to his written statement that he had consented to their entry.
Now, ordinarily I would let that inconsistency stand; but he has
effectively argued to this [C]ourt today that I should believe his
written statement and that the parts of his written statement that I
should believe are that he was cooperating with the police when they
came to the door.
When I asked him directly whether he consented to the entry or not,
he then reverted back to the statement that he did not consent, which
was inconsistent with his written statement and inconsistent with the
statement that he made in the first part of the allocution.
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My assessment of these statements is that he facilely moves from one
statement to another, regardless of their consistency and regardless of
their truth, solely to accomplish a particular objective of persuading
the Court to a particular conclusion.
Realizing this to be the case, I conclude that his testimony at the
suppression hearing that the officers forced their way into his
apartment was false and it was made with the willful intent to
mislead the court. As a consequence, I find that this enhancement
for obstruction of justice is properly applied.
Id. at 54-55.
In referring to the inconsistency in Parker’s allocution statement, the
district court was apparently referring to the first part of the allocution. As
quoted above, Parker stated he opened the door because of his respect for the law.
He then stated “if I had disrespect for the law or disrespect for the public, I would
have told them, Hey, no, you can’t come in here through the door.” Id. at 41.
The district court appears to have construed this statement as an admission that he
had consented to the entry out of his respect for the law. However, when the
court asked Parker if he consented to the entry, Parker stated that he did not do
so.
After the district court articulated its reasons for enhancing Parker’s
sentence for obstruction of justice, the prosecutor asked the district court to
clarify whether “the Court is finding that that statement was also a material matter
related to the suppression hearing at which the statement was made.” Id. at 55-
56. The district court replied: “Well, that was the focus of the suppression
hearing.” Id. at 56.
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After pronouncing its sentence, the district court stated: “Is there need for
clarification, further argument or a request for a continuance?” Id. at 68.
Parker’s counsel stated there was no need for a clarification of the sentence or a
continuance. He did not object to the district court’s consideration of the
statements Parker made during his allocution in finding that Parker had testified
falsely at the suppression hearing in denying that he consented to the search and
that Detective Reiva instructed him to admit in his statement that he consented to
the entry of his apartment.
Parker filed a timely notice of appeal on May 1, 2009. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
V
In his opening brief, Parker summarized the sole issue on appeal as
follows:
THE DISTRICT COURT PLAINLY ERRED IN FINDING THAT
MR. PARKER EVER SAID IN HIS ALLOCUTION THAT HE
CONSENTED TO THE POLICE ENTRY, WHICH WAS THE ONLY
REASON THE COURT DECIDED TO IMPOSE THE
OBSTRUCTION ENHANCEMENT.
Appellant’s Opening Br. at 22. Parker contends that the district court erred in
concluding that his statements during allocution were inconsistent as to whether
he consented to the police officers’ entry into his apartment. He maintains that
the district court “did not make the required perjury finding based on the hearing
testimony itself.” Id. at 14. The record does not support this contention.
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This Court “review[s] the district court’s factual findings as to the
obstruction of justice under the clearly erroneous standard, and review[s] de novo
the district court’s legal interpretation of the Sentencing Guidelines.” United
States v. Hawley, 93 F.3d 682, 686-87 (10th Cir. 1996); citing United States v.
Janus Industries, 48 F.3d 1548, 1559-60 (10th Cir. 1995).
The district court denied the suppression motion because it found untruthful
Parker’s testimony: (1) that he did not consent to the search of his apartment; and,
(2) that his handwritten statement to the contrary was dictated by Detective Reiva.
“An appellate court may not decide the credibility of witnesses as that is the
exclusive task of the fact trier.” United States v. Youngpeter, 986 F.2d 349, 352
(10th Cir. 1993).
Sentencing Guidelines section 3C1.1 reads as follows:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (I) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1, cmt. 4(f) (Nov. 1, 2009) states that covered conduct includes
“providing materially false information to a judge or magistrate.”
In United States v. Dunnigan, 507 U.S. 87 (1993), the Supreme Court held
that “the phrase ‘impede or obstruct the administration of justice’ includes
perjury, and the commentary to § 3C1.1 is explicit in so providing.” Id. at 92.
The Court also instructed in Dunnigan that a witness commits perjury “if she
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gives false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of faulty memory.” Id. at 94.
After reconsidering Parker’s testimony at the suppression hearing and his
statements during the sentencing proceedings, the district court found that his
testimony “that the officers forced their way into his apartment was false and it
was made with the willful intent to mislead this court.” The record supports this
finding. The officers testified that Parker consented to the entry into his
apartment, that he freely waived his Miranda rights, and freely and voluntarily
wrote and signed a statement in which he stated that he had consented to the
entry.
Parker did not offer any evidence that his testimony at the suppression
hearing, and his statements during the sentencing proceeding, were the result of
confusion, mistake, or faulty memory. After considering Parker’s testimony and
his statements during his allocution, the district court found that Parker had
provided materially false information to the court in an attempt to seek
suppression of the evidence obtained by the officers, and denial of the
Government’s request that his sentence be enhanced. Accordingly, we conclude
that the district court did not err in finding that Parker obstructed justice at his
suppression hearing.
The judgment is AFFIRMED.
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