FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
March 28, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-3368
CLYDE APPERSON,
Defendant-Appellant.
__________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-3369
WILLIAM LEONARD PICKARD,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 00-CR-40104-01/02-RDR)
Mark L. Bennett, Jr., Bennett and Hendrix L.L.P., Topeka, Kansas, for defendant-
appellant, Clyde Apperson.
William K. Rork, Rork Law Office, Topeka, Kansas, for defendant-appellant, William
Leonard Pickard.
Gregory G. Hough, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, and James A. Brown, Assistant United States Attorney, with him on the briefs),
District of Kansas, for plaintiff-appellee.
Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
Defendants Clyde Apperson and William Pickard were convicted, following a jury
trial, of conspiring to manufacture, distribute and dispense ten grams or more of a mixture
or substance containing a detectable amount of lysergic acid diethylamide (LSD), in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and possession with intent to
distribute and dispense ten grams or more of a mixture or substance containing a
detectable amount of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
Apperson was sentenced to 360 months’ imprisonment. Pickard was sentenced to life
imprisonment. Both defendants now appeal their convictions and sentences. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
Factual background
In October 2000, Gordon Todd Skinner voluntarily contacted the United States
Drug Enforcement Agency (DEA) and informed them he “wished to cooperate” and
provide them with “information about an LSD organization.” ROA, Vol. 13 at 84.
Generally speaking, Skinner told the DEA “that William Leonard Pickard and Clyde
Apperson were . . . partners” in an organization that manufactured LSD and that he,
Skinner, “had been part of the organization . . . and was [at that time] in possession of the
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laboratory equipment,” ROA, Vol. 5, Doc. 360 at 3, “at a decommissioned missile base
near Wamego, Kansas that he owned.” Id. at 4.
Skinner proceeded to provide the DEA with more detailed information about the
organization and his involvement. According to Skinner, Pickard and Apperson first
established an LSD laboratory in an Aspen, Colorado residence in late 1996. Pickard,
who had studied chemistry at Purdue University, served as the chemist. Apperson was
responsible for setting up and dismantling the necessary laboratory equipment.
In September 1997, Pickard and Apperson moved the LSD laboratory from Aspen
to a house in Santa Fe, New Mexico. Apperson assembled the laboratory at that location
and Pickard proceeded to manufacture LSD there until approximately September 1999.
During that time frame, Pickard obtained many of the chemicals and most of the
necessary glassware from Alfred Savinelli, the owner of a business in Taos, New Mexico
called “Native Scents.” Pickard paid Savinelli over $300,000 from 1995 to 1999 for his
help in obtaining the chemicals and glassware.
Skinner became involved with Apperson and Pickard in February 1998. Skinner
assisted Pickard in laundering the cash proceeds of the conspiracy, and also played a
major role in developing the covert communications scheme utilized by the conspirators.
As Pickard’s “money man,” Skinner assisted Pickard “in the transport of money from the
primary distributor to the persons whom . . . Pickard intended it to go, those being the
[precursor chemical] source and other persons within the organization.” ROA, Vol. 14 at
214.
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In mid to late 1999, Pickard asked Skinner “to secure a location to house the
clandestine [LSD] laboratory.” Id. Initially, Pickard wanted the location to be elsewhere
in Santa Fe, New Mexico. Pickard subsequently directed Skinner “to find a location
either in Nevada or Kansas.” Id. In September 1999, Apperson and Pickard dismantled
the Santa Fe LSD laboratory and, in December 1999, moved it to an abandoned missile
base near Salina, Kansas, where it was maintained by Skinner. In the fall of 2000,
Skinner, apprehensive that the owners of the base were going to discover the laboratory,
unilaterally decided to move it, along with a precursor chemical, to the Wamego missile
base. In turn, Skinner was supposed to turn over possession of the laboratory and the
precursor chemical to Apperson and Pickard.
After corroborating much of the information provided by Skinner, the DEA
initiated an undercover operation with Skinner on October 19, 2000. At the outset of this
undercover operation, the DEA recorded various phone calls between Skinner and
Pickard. On October 23, 2000, at the DEA’s request, Skinner met Pickard in a hotel room
in Marin County, California. During the meeting, which was videotaped by the DEA,
Pickard and Skinner discussed the LSD laboratory and the idea of moving it from its
Wamego location. Pickard advised Skinner that he wanted Apperson to take possession
of the laboratory equipment.
On October 27, 2000, Skinner gave DEA agents a tour of the Wamego missile
base. During the tour, DEA agents observed “the contents of a non-operational LSD
laboratory packed in approximately [forty-five] large, green shipping containers.” ROA,
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Vol. 5, Doc. 360 at 4. The DEA agents subsequently obtained and executed a search
warrant for the base. Among the items seized during the search were 6.5 kilograms of a
substance determined to be ergocristine, a substance used in the manufacture of LSD.
Following the search, DEA agents continued to monitor phone conversations
between Skinner and Pickard. Pickard eventually told Skinner that he was coming to see
the Wamego laboratory and to make sure that the ergocristine was secure. On November
2, 2000, Pickard and Apperson flew to Tulsa, Oklahoma. On November 4, 2000, Pickard
and Apperson drove to Wamego in a rental car and met Skinner near the missile base.
During the meeting on November 4, 2000, Pickard and Apperson expressed to
Skinner their concern about storing the laboratory equipment at the Wamego missile base.
Pickard and Apperson also expressed concern about their own safety if the laboratory
equipment and ergocristine were not returned to them. Ultimately, Pickard and Apperson
began making plans to move the laboratory equipment and ergocristine out of the
Wamego missile base.
That same day (November 4, 2000), Pickard and Apperson rented a truck in
Topeka, Kansas, and listed a return destination for the truck as Albuquerque, New
Mexico. The pair then drove the truck to the Wamego missile base and began loading it
with lab equipment. On November 6, 2000, the ergocristine was returned by the DEA to
the base, unbeknownst to Pickard and Apperson. That same day, Skinner informed
Pickard and Apperson where the ergocristine was located on the base. Pickard retrieved
the ergocristine and left the base with it in the rental car. Apperson also left the base
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driving the rental truck loaded with lab equipment.
As Pickard and Apperson left the base, Kansas Highway Patrol (KHP) officers,
acting at the request of the DEA, attempted to stop the rental car and truck. Pickard and
Apperson, however, refused to stop and instead increased their speed. Eventually, the
KHP officers forced Pickard and Apperson to stop by pulling in front of the rental truck
driven by Apperson. Apperson was removed from the truck and taken into custody.
Pickard fled from the scene on foot after letting the rental car roll to a stop in a ditch.
Pickard was arrested the following day. The ergocristine was found in the rental car that
Pickard had been driving. Also found in the rental car was a recipe for the manufacture
of LSD and notes regarding what appeared to be past production quantities.
The DEA obtained search warrants for the missile base, which they executed on
November 17 and 22, 2000. The execution of the warrants took several days due to the
volume of materials and the danger posed by the chemical substances. During the
searches, the DEA found numerous items and equipment associated with an LSD
laboratory, as well as various chemical substances including 41.3 kilograms of LSD, 97.5
kilograms of lysergic acid, and 23.6 kilograms of iso-lysergic acid. The DEA also tested
a large patch of dead grass found outside one of the buildings on the base. The soil
samples tested positive for LSD, iso-LSD, and lysergic acid.1
1
At trial, Pickard admitted that, while Apperson loaded equipment into the rental
truck, he dumped hazardous solutions onto the ground where the soil samples were taken
from.
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Procedural background
On November 8, 2000, Pickard and Apperson were indicted on one count of
conspiring “to manufacture, distribute and dispense 10 grams or more of a mixture or
substance containing a detectable amount of lysergic acid diethylamide (LSD), a
Schedule I controlled substance, in violation of” 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846. ROA, Vol. 1, Doc. 1 at 1-2. Two superseding indictments were subsequently
returned: the first on January 17, 2001, and the second on June 20, 2001. The first
superseding indictment retained the original conspiracy count and added a second count
alleging that on November 6, 2000, Pickard and Apperson knowingly possessed with
intent to distribute and dispense ten grams or more of a mixture or substance containing a
detectable amount of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Id., Doc.
59. The second superseding indictment expanded the time period of the alleged
conspiracy to August 1999 through November 6, 2000, and added an alias for each
defendant. Id., Doc. 88.
Following periods of delay attributable to pending pretrial motions and to health
problems experienced by Pickard’s counsel, the case proceeded to trial on January 13,
2003. On March 31, 2003, after eleven weeks of trial, the jury found Pickard and
Apperson guilty as charged in the second superseding indictment. The district court
subsequently held sentencing hearings on November 20, 24, and 25, 2003. At the
conclusion of those hearings, the district court sentenced Apperson to concurrent terms of
360 months of imprisonment, and Pickard to concurrent terms of life imprisonment.
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II.
Speedy Trial violation
Apperson and Pickard contend the district court erred in denying their motions to
dismiss for violation of the Speedy Trial Act (STA). We “review the district court’s
denial of a motion to dismiss for violation of the [STA] for an abuse of discretion, and
review the district court’s compliance with the legal requirements of the Act de novo.”
United States v. Vogl, 374 F.3d 976, 982 (10th Cir. 2004). In doing so, we “accept the
district court’s [underlying] factual findings . . . unless they are clearly erroneous.” Id.
“‘[W]hen the statutory factors are properly considered, and supporting factual findings
are not clearly in error, the district court’s judgment of how opposing considerations
balance should not lightly be disturbed.’” Id. (quoting United States v. Taylor, 487 U.S.
327, 337 (1988)).
The STA, designed to protect a criminal defendant’s constitutional right to a
speedy trial and to serve the public interest in bringing prompt criminal proceedings,
requires that a criminal defendant’s trial commence within seventy days after his
indictment or initial appearance, whichever is later. See 18 U.S.C. § 3161(C)(1); United
States v. Lugo, 170 F.3d 996, 1000-01 (10th Cir. 1999). Certain periods of delay, outlined
in detail in the STA, are excluded and do not count toward the seventy-day limit. See 18
U.S.C. § 3161(h)(1)-(9).
Both defendants, shortly prior to trial, moved to dismiss the case on STA grounds.
The district court denied both motions. In doing so, the district court concluded that “the
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speedy trial clock began running on November 8, 2000, the date of the indictment and the
defendants’ first appearance before a judicial officer.” ROA, Vol. 4, Doc. 245 at 1. The
court noted, however, that the “date of the indictment” was not included in calculating the
seventy-day period under the STA. Id. at 2 Continuing, the court noted that the period of
time between November 9, 2000, and the trial date of January 13, 2003, “consist[ed] of
796 days.” Id. “Accordingly,” the court concluded, “in order to avoid a Speedy Trial Act
violation, there must [have] be[en] 726 days of excludable time.” Id. After examining
the docket, the district court concluded it had “easily discovered in excess of 726 days.”
Id. Specifically, the district court listed what it considered to be the excludable time
periods:
The following time periods are excludable because pretrial motions were
pending: November 16, 2000 to November 20, 2000 (5 days), December 7,
2000 to January 29, 2001 (54 days), March 12, 2001 to February 4, 2002
(329 days); February 13, 2002 to June 20, 2002 (128 days); and June 26,
2002 to July 21, 2002 (26 days). 18 U.S.C. § 3161(h)(1)(F). The period
from January 11, 2001 to February 9, 2001 (11 additional days) is
excludable because defendant Apperson’s motion for severance was under
advisement by the court. 18 U.S.C. § 3161(h)(1)(J). The time period from
July 22, 2002 to January 13, 2003 (174 days) is excludable since the trial of
the case was continued upon the motion of defendant Pickard, and the court
found that the ends of justice served by the continuance outweighed the best
interest of the public and the defendants in a speedy trial. 18 U.S.C. §
3161(h)(8)(A). Thus, the court has found at least 727 days of excludable
time. In reaching this figure, we note that there may be other periods of
excludable time, but we find it unnecessary to continue our study since we
find no Speedy Trial Act violation.
Id. at 2-3.
In their respective appeals, Apperson and Pickard contend the district court’s
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calculations were erroneous in several respects and that the district court ultimately erred
in concluding there was no violation of the STA. As outlined in more detail below, our
calculations differ slightly from those of the district court, but we agree with the district
court that the includable days did not exceed the seventy-day limit and thus there was no
violation of the STA.
a) November 8 - December 7, 2000
Pickard contends that the time period from “November 8, 2000, until December 7,
2000 (28 days) is attributable to the government.” Pickard Br. at 24. What Pickard
overlooks, however, is that the period from November 16, 2000, through November 20,
2000 (five days) was excludable due to the pendency of the government’s motion for de
novo review of the magistrate judge’s decision regarding Apperson’s bond. See 18
U.S.C. § 3161(h)(1)(F) (providing that the “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion” is excludable). Thus, only twenty-three days are attributable
to the government during the period from November 8, 2000, until December 7, 2000.
b) December 20, 2000 - January 10, 2001
Apperson contends that there were twenty days of includable time between
December 20, 2000, and January 10, 2001. More specifically, Apperson notes that he and
Pickard filed various pretrial motions between November 20 and December 7, 2000, and
the district court initially scheduled a hearing on those motions for December 20, 2000.
The government, however, requested that the court continue the hearing for one week so
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that the government could adequately prepare to defend the motions. The district court
granted the government’s request and rescheduled the hearing for January 10, 2001. In
doing so, the district court’s order expressly stated that “the additional time requested
w[ould] not prejudice the parties” and that such time “outweigh[ed] the best interests of
the public and the defendant[s] in a speedy trial, as set out in 18 U.S.C. § 3161(h)(8).”
ROA, Doc. 54 at 2. Although Apperson and Pickard originally acquiesced in the
government’s request, Apperson now contends that the time during which the hearing
was continued should not be excludable because it does not fall within the “ends of
justice” category outlined in § 3161(h)(8)(A).2
We conclude there are two reasons why it is unnecessary to determine whether the
“ends of justice” were indeed served by the granting of the hearing continuance. First, §
3161(h)(1)(F) makes excludable the “delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or other prompt disposition
of such motion . . . .” This necessarily includes any extensions of time to respond to a
motion, as well as any postponements of hearing dates, without regard to the
reasonableness of the length of time. See Henderson v. United States, 476 U.S. 321, 330
2
Pickard contends that “[a] total of twelve days from December 27, 2000 through
January 9, 2001, should be assessed the Government.” Pickard Br. at 24. We disagree.
To begin with, the source of the December 27, 2000 date is unclear because the district
court docket sheet indicates that no activity occurred on that date. In any event, Pickard
overlooks the fact that on December 14, 2000, the district court granted the government’s
motion for extension of time and rescheduled a hearing on defendants’ pretrial motions
for January 10, 2001. ROA, Vol. 1, Doc. 54. And, for the reasons discussed above, we
conclude the period encompassing the extension of time are excludable under the STA.
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(1986); United States v. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986). In other words, the
twenty-one day continuance of the hearing granted by the district court is effectively
encompassed within § 3161(h)(1)(F), and does not have to be independently justified
under § 3161(h)(8)(A). Second, even if the continuance had not been granted and the
hearing had taken place on December 20, 2000, as originally scheduled, it is clear from
the record that the district court would still have required additional hearings to
adequately resolve Apperson’s motion to sever, and those hearings presumably would not
have occurred any earlier than they actually did. Thus, under § 3161(h)(1)(F), the entire
time period from December 12, 2000, when Apperson filed his motion to sever, until the
district court took the defendants’ various pretrial motions, including the motion to sever,
under advisement, is excludable under the STA. Accordingly, the applicability of §
3161(h)(8)(A) to the twenty-day continuance of the motions hearing is irrelevant.
Even assuming, for purposes of argument, that § 3161(h)(8)(A) were relevant to
the continuance of the hearing originally scheduled for December 20, 2000, the district
court satisfied the requirements of that subsection. Subsection 3161(h)(8)(A) excludes
any period of delay “resulting from a continuance granted by any judge . . . if the judge
granted such continuance on the basis of its findings that the ends of justice served by
taking such action outweigh the best interests of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(8)(A). In order for a continuance to qualify as an excludable
“ends-of-justice” continuance under § 3161(h)(8)(A), certain prerequisites must be met.
First, the trial court must consider the factors listed in § 3161(h)(8)(B):
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(i) Whether the failure to grant such a continuance in the proceeding would
be likely to make a continuation of such proceeding impossible, or result in
a miscarriage of justice.
(ii) Whether the case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate
preparation for pretrial proceedings or for the trial itself within the time
limits established by [the Act].
(iii) Whether, in a case in which arrest precedes indictment, delay in the
filing of the indictment is caused because the arrest occurs at a time such
that it is unreasonable to expect return and filing of the indictment within
the period specified in section 3161(b), or because the facts upon which the
grand jury must base its determination are unusual or complex.
(iv) Whether the failure to grant such a continuance in a case which, taken
as a whole, is not so unusual or complex as to fall within clause (ii), would
deny the defendant reasonable time to obtain counsel, would unreasonably
deny the defendant or the Government continuity of counsel, or would deny
counsel for the defendant or the attorney for the Government the reasonable
time necessary for effective preparation, taking into account the exercise of
due diligence.
After considering these factors, the trial court must then set forth, “in the record of the
case, either orally or in writing, its reasons for finding that the ends of justice served by the
granting of such a continuance outweigh the best interests of the public and the defendant
in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). Although the trial court’s findings “may be
entered on the record after the fact, they may not be made after the fact.” United States v.
Doran, 882 F.2d 1511, 1516 (10th Cir. 1990). Instead, “[t]he balancing must occur
contemporaneously with the granting of the continuance because Congress intended that
the decision to grant an ends-of-justice continuance be prospective, not retroactive . . . .”
Id.
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Here, the district court’s order granting the continuance of the hearing specifically
stated that, “due to the press of other matters it [wa]s impossible for government counsel
to prepare to represent the government” at the originally scheduled hearing, and that a
“refusal to grant [the] request for continuance . . . would result in a miscarriage of justice.”
ROA, Doc. 54 at 1-2. The order further stated “[t]hat the additional time requested
w[ould] not prejudice the parties” and that “[s]uch additional time outweigh[ed] the best
interests of the public and the defendant[s] in a speedy trial . . . .” Id. at 2. In short, the
district court considered the proper factors at the time it granted the continuance. See
Doran, 882 F.2d at 1516. Thus, the district court did not abuse its discretion in granting
the continuance. See United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998)
(outlining standard of review in cases involving ends-of-justice continuances).
c) January 10-29, 2001
Pickard contends that the period of time from January 10, 2001, when the district
court held a hearing on Apperson’s motion to sever, until January 29, 2001, when the
district court issued a written order memorializing its rulings from the hearing and noting
that it was taking the motion to sever under advisement pending a James hearing3, should
be includable time under the Act (and that the thirty days following the district court’s
January 29, 2001, order should be excludable). Pickard’s arguments, however, are not
supported by the STA or the applicable case law. Indeed, the district court specifically
concluded it could not resolve the motion without benefit of a James hearing, and the
3
See United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).
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record on appeal amply supports that conclusion. Under the STA, motions necessitating
hearings are governed by 18 U.S.C. § 3161(h)(1)(F). That subsection provides that the
“delay resulting from any pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such motion” is excludable
under the STA. 18 U.S.C. § 3161(h)(1)(F). Applying that subsection here, the entire
period from the filing of Apperson’s motion to sever, through the final evidentiary hearing
on October 31, 2001, and at least thirty days thereafter, is excludable for purposes of the
STA. See United States v. Jernigan, 341 F.3d 1273, 1286 (11th Cir. 2003) (holding that
speedy trial clock was tolled from filing of defendant’s motion in limine until trial, when
district court was able to hear evidence necessary to rule on motion); United States v.
Grosz, 76 F.3d 1318 (5th Cir. 1996) (holding that speedy trial clock was tolled from time
of filing of defendant’s motion in limine until second pretrial conference when district
court heard oral argument on motion and ruled on it).
d) January 11 - February 9, 2001
Pickard contends the time period from January 11, 2001, to February 9, 2001,
should not be excludable due to the pendency of Apperson’s motion to sever “because the
motion was not actually under advisement during this time.” Pickard Br. at 25. Apperson
similarly argues that most of the time during calendar year 2001 was includable and was
not impacted by the pendency of his motion to sever. The record, however, refutes these
contentions. According to the record, the district court heard initial arguments on the
motion to sever on January 10, 2001, but concluded it needed to hear additional evidence
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(specifically evidence from the James hearing) before ruling on the motion to sever. The
evidentiary hearings relevant to the motion to sever took place on September 17-18 and
October 31, 2001, after which the district court officially took the motion to sever under
advisement. Thus, the motion to sever rendered excludable under the STA the time period
from the filing of the motion until thirty days after the district court took the matter under
advisement.
e) January 17, 2001 - return of superseding indictment
Apperson contends that the filing of the superseding indictment on January 17,
2001, did not “toll the speedy trial clock.” Apperson Br. at 23. Although Apperson is
correct that the filing of a superseding indictment does not serve to toll the speedy trial
clock, he overlooks the fact that, due to the pendency of his motion to sever, the speedy
trial clock was tolled at the time the superseding indictment was returned. See United
States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994) (“The filing of a superseding
indictment does not affect the speedy trial clock for offenses charged in the original
indictment . . . .”) (“However, motions pending on the charges in the previous indictment
continue to toll the clock after the superseding indictment is returned if some of the
original charges are retained.”).
f) December 1, 2001 - February 13, 2002
Pickard contends that the district court had thirty days following the final
evidentiary hearing on defendants’ pretrial motions (held on October 31, 2001), in which
to resolve those motions. Because the district court, however, did not resolve all of those
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motions until February 2002, Pickard contends that the time period from December 1,
2001, until February 13, 2002 (the day before defendants filed additional pretrial motions),
totaling seventy-five days, is includable for purposes of the STA.
Two subsections of the STA, §§ 3161(h)(1)(F) and 3161(h)(1)(J), are relevant to
this time frame. Subsection (h)(1)(F) “excludes all time, regardless of reasonableness,
between the filing of the pretrial motion and the hearing thereon, as well as all time
following the hearing during which the court awaits the filing of additional materials by
the parties that are needed for proper disposition of the motion.” United States v. Mora,
135 F.3d 1351, 1355 (10th Cir. 1998). “Once all such materials are available to the court,
subsection (h)(1)(J) comes into play, which provides for a thirty-day excludable delay
during which the matter is under advisement.” Id. In applying subsection (h)(1)(J), the
thirty days of excludable time begins on the day following the date on which the court has
received everything it needs in order to reach a decision. Id.
Applying the relevant provisions, the record on appeal indicates that Apperson filed
his motion to sever on December 12, 2000. Although the district court heard initial
arguments on that motion on January 10, 2001, the district court concluded it needed to
hear additional evidence (specifically evidence from a James hearing) before ruling on the
motion. ROA, Vol. 1, Doc. 63 at 8-9. On March 12, 2001, defendant Pickard filed three
motions to suppress, as well as a motion for discovery, inspection and disclosure. The
district court ultimately held evidentiary hearings on various matters, including the motion
to sever and the motions to suppress on September 17-18 and October 31, 2001. At the
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conclusion of the October 31, 2001 hearing, the district court stated it was “going to take
these various motions under advisement” and “wrap all of these things up in one order that
we will issue . . . as soon as we can.” ROA, Vol. 15 at 571-72. Notably, however, the
government asked for, and was granted, one week in which to respond to Pickard’s
supplemental memorandum regarding his motions to suppress. Id. at 569-70. On
November 5, 2001, the government filed its response to Pickard’s supplemental
memorandum. Nearly a month later, on December 3, 2001, Pickard filed a reply to the
government’s response. On February 4, 2002, the district court issued written orders
addressing all of the pending motions, except for Apperson’s motion to sever. On
February 19, 2002, the district court issued a written order denying Apperson’s motion to
sever.
It is beyond dispute that all of the time from December 12, 2000, through at least
November 5, 2001, was excludable. More specifically, under subsection (h)(1)(F), the
filing of Apperson’s motion to sever on December 12, 2000, tolled the running of the
clock (the filing of Pickard’s motions to suppress on March 12, 2001, also tolled the
clock), and the clock remained tolled until November 5, 2001, when the government filed
its supplemental brief addressing Pickard’s motions to suppress. See Henderson, 476 U.S.
at 331 (interpreting subsections (f) and (j) of the Act to exclude the time following a
hearing on a motion when the district court is awaiting additional briefing regarding the
motion at issue); Mora, 135 F.3d at 1355.
The critical question here is when the district court actually took the various
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motions under advisement. As noted, the district court expressly stated on the record at
the conclusion of the October 31, 2001 hearing that it was taking the motions under
advisement, subject only to its ruling allowing the government a short period of time in
which to respond to Pickard’s supplemental briefing on his motions to suppress.
However, on December 3, 2001, Pickard filed a reply to the government’s November 5,
2001 response. Although there is no indication in the record that Pickard sought leave to
file that pleading, or that the district court was otherwise awaiting it before ruling on the
pending motions, we conclude that Pickard’s reply contained arguments and authorities
that had to be considered by the district court in resolving the pending motions, and thus
the pending motions cannot be considered to have been “under advisement” until after
Pickard’s reply was filed. Any conclusion to the contrary would effectively penalize the
government and the district court by allowing a defendant to file an unanticipated pleading
that effectively delays the resolution of pending motions without simultaneously tolling
the STA clock.
As previously noted, under subsection (h)(1)(J), the district court had thirty days of
excludable time in which to resolve the motions after taking them under advisement.
Thus, because the motions were not “under advisement” until December 3, 2001 (when
Pickard filed his reply brief), the thirty-day period from December 4, 2001, through
January 3, 2002, was excludable, leaving only the forty-one-day period from January 4,
2002, through February 13, 2002 (the day before defendants filed additional pretrial
motions, which stopped the running of the STA) as includable for purposes of the STA.
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g) Continuances granted on February 19 and July 18, 2002
Apperson contends that the two continuances granted by the district court (the first
continuance was granted on February 19, 2002; the second was granted on July 18, 2002)
to Pickard based on medical problems experienced by Pickard’s counsel should not have
served to toll the speedy trial clock. According to Apperson, the district “court failed to
consider all the necessary factors outlined in § 3161(h)(8)(B) prior to granting the
continuance,” and “also failed to set forth in the record its reasons for finding the ends of
justice served by the granting of the motion outweighed the best interest[s] of the public
and the defendant Apperson in a speedy trial.” Apperson Br. at 28.
We disagree. The district court specifically found, in granting both motions to
continue, that (a) the continuances would not prejudice the parties, and (b) that Pickard’s
need for additional time outweighed the best interests of the public and the defendants in a
speedy trial. ROA, Vol. 3, Doc. 134 at 1-2; Vol. 4, Doc. 194 at 1. The district court also
effectively found, in granting both motions, that the failure to grant the motions would
have denied Pickard continuity of counsel or, alternatively, would have denied Pickard’s
appointed counsel the reasonable time necessary for effective preparation in light of his
medical problems. Lastly, it is important to note that Pickard, in his two motions for
continuance, stated his counsel had contacted Apperson’s counsel and that Apperson’s
counsel did not oppose either of the proposed continuances. ROA, Vol. 3, Doc. 134 at 2
(“Counsel for the accused, Clyde Apperson, also indicates no objections to rescheduling of
the jury trial.”); Vol. 4, Doc. 186 at 4 (“This counsel has checked with attorney for
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Apperson . . . who voiced no opposition to rescheduling to allow the surgery to be
undertaken.”). Consistent with those statements, Apperson filed no objections to the
motions or the district court’s orders granting those motions. Thus, Apperson’s
acquiescence in the continuances weighs in favor of a finding that the time is excludable
under the STA. See United States v. Westbrook, 119 F.3d 1176, 1188 (5th Cir. 1997)
(citing defendant’s failure to object to continuance as a basis for finding the continuance
proper and the time excludable under the STA).
Denial of motions to suppress
Pickard contends the district court erred in denying his motions to suppress
evidence. “When reviewing the denial of a motion to suppress, we view the evidence in
the light most favorable to the government, accept the district court’s findings of fact
unless clearly erroneous, and review de novo the ultimate determination of reasonableness
under the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.
2004).
a) Illegal traffic stop
On November 6, 2000, KHP officer Bryan Smith was advised by DEA officers that
they were investigating an LSD laboratory at a decommissioned missile base near
Wamego, Kansas. Smith was further advised that, based upon the results of the
investigation, two men would be transporting laboratory equipment and a quantity of a
precursor chemical in a Ryder rental truck and a rental car. Smith was asked by the DEA
officers to assist in stopping both vehicles. When Smith and the officers assisting him
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subsequently attempted to stop the rental car and truck, Pickard, who was driving the
rental car, and Apperson, who was driving the rental truck, did not immediately respond to
the flashing lights and siren. Accordingly, another KHP officer passed the rental car and
truck and blocked their progress. Pickard responded by slowing the rental car, then fleeing
as the car rolled into a ditch. Officers subsequently searched the vehicles and found the
precursor chemical in the rental car and the laboratory equipment in the rental truck.
On March 12, 2001, Pickard moved to suppress evidence obtained during the
November 6, 2000, traffic stop. In his motion, Pickard asserted that the authorities lacked
reasonable and articulable suspicion to stop his vehicle. After conducting evidentiary
hearings on the motion, the district court denied the motion in a written order issued on
February 4, 2002. ROA, Vol. 2, Doc. 125. In doing so, the district court concluded the
KHP officers “had probable cause to believe that defendants were transporting an LSD
laboratory and chemicals used in the manufacture of LSD.” Id. at 2. More specifically,
the district court concluded that there was probable cause based upon “information . . .
gathered by surveillance by investigative officers and from the statements” of Skinner. Id.
at 3.
On appeal, Pickard challenges the district court’s conclusion that there was
probable cause to stop the vehicles. First, Pickard asserts that “no traffic offense was
committed” prior to the stop. Pickard Br. at 31. Second, and relatedly, Pickard contends
that KHP officer Smith testified at the suppression hearing that DEA officers instructed
him to find a traffic infraction in order to stop the vehicles and then to “go through an
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interdiction stop with consent to search.” Id. According to Pickard, this suggests that the
DEA officers did not believe they had a basis for stopping the vehicles absent a traffic
violation.
We reject Pickard’s challenge to the stop. Notably, Pickard does not challenge the
district court’s findings that (a) DEA agents surveilling the missile silo observed the lab
equipment being loaded into the rental truck, and (b) DEA agents “listen[ed] to defendants
tell [Skinner] that they were going to take the LSD lab away from the missile silo and that
they urgently wanted [Skinner] to give them the precursor chemical as well.” ROA, Vol.
2, Doc. 125 at 3. Moreover, the evidence presented by the government at the suppression
hearing clearly refutes Pickard’s suggestion that KHP officer Smith thought he was
supposed to look for a traffic violation before stopping the vehicles. ROA, Vol. 13 at 19.
Specifically, Smith testified that he was directed by the DEA to stop the vehicles because
defendants were suspected of committing “the felony crimes of . . . attempted production
or manufacture of LSD or possession of an LSD lab and [because] the key ingredients to
produce the LSD were in those vehicles.” Id. Thus, it is irrelevant whether or not the
officers involved in the stop observed Pickard or Apperson commit a traffic violation.
b) Search warrant
On October 27, 2000, Skinner gave DEA agents a tour of the Wamego site,
including “the missile base, . . . the storage facilities on the base, the Quonset hut, and [a]
large storage shed.” ROA, Vol. 13 at 103-04. During the tour, Skinner showed DEA
agent Karl Nichols an aluminum can with a clear lid that contained what appeared to be
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ergotamine tartrate, a chemical used for making LSD. After the tour, DEA agent Nichols
sought and was granted a search warrant for the site. The warrant was executed on
October 31, 2000, and DEA agents seized various items including (a) “a boxed LSD
laboratory contained in approximately 40 or 45 . . . military containers,” id. at 122, and (b)
canisters of what was later determined to be ergocristine, a chemical similar to ergotamine
tartrate that can be used to manufacture LSD.4
On March 12, 2001, Pickard moved to suppress evidence seized during the October
31, 2000 search. On September 10, 2001, Pickard filed a memorandum of supplemental
points in support of his motion to suppress. Id., Vol. 2, Doc. 113. In the two pleadings,
Pickard asserted a number of challenges to the validity of the search, including various
challenges to the sufficiency of the affidavit in support of the search warrant. The district
court, after conducting a series of evidentiary hearings, issued a memorandum and order
on March 27, 2002, denying Pickard’s motion. Id., Vol. 3, Doc. 143. In its order, the
district court concluded that (1) Skinner had authority to consent and did in fact consent to
the search of the site (thus obviating the need for a search warrant), (2) neither Pickard nor
Apperson had a reasonable expectation of privacy in the site, (3) the affidavit submitted in
support of the search warrant provided probable cause to believe there was evidence of an
LSD laboratory and related materials at the site and thus to support the issuance of a
search warrant, (4) there was no intentional or reckless omission of material information
The market value of the ergocristine was estimated by DEA agent Nichols to be
4
approximately $650,000.00.
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from the affidavit in support of the search warrant, and (5) the warrant was particular
enough to support the search of the missile site.
On appeal, Pickard makes several conclusory arguments. First, he contends that
Skinner lacked authority to consent to the search because the purported owner of the site,
Graham Kendall, was falsely informed that agents were buyers for the government.
Second, Pickard contends that he personally had authority over the site because he had
been granted power of attorney by the owner. Third, Pickard contends that the trust
documents purportedly granting Skinner authority over the site were incomplete. Fourth,
Pickard contends that because the trust documents for the property were incomplete and
the DEA agents were unable to contact Skinner’s attorney, the “agents did not have [a]
reasonable belief [that] Skinner had authority to allow them onto the property.” Pickard
Br. at 33. Fifth, Pickard contends that he “had unlimited power of attorney [over the trust]
and his consent was necessary before agents entered the property.” Id. at 35.
We conclude Pickard’s arguments are insufficient to overcome the evidence
presented by the government during the hearings on the motions to suppress. During those
hearings, DEA agent Nichols testified in detail regarding the ownership scheme for the
Wamego missile site. Nichols testified that, prior to the consensual tour of the site, the
DEA obtained from Skinner “trust documents” which they reviewed and then passed on to
two federal prosecutors for review. ROA, Vol. 13 at 98. The documents indicated “that
the Wamego Land Trust owned the property and that Graham Kendall was the trustee of
the property.” Id. at 99. Accordingly, the DEA “obtained a letter from . . . Kendall
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authorizing [them] and/or . . . Skinner to be on the property and to allow anyone [they] so
desired to be on the property.” Id. The DEA also contacted Skinner’s attorney to check
on the trust documents, as well as an attorney employed by the insurance company who
reviewed the title documents. The latter attorney advised the DEA that “the trustees were
the owners of the property.” Id. Skinner subsequently advised the DEA that he had
established the Wamego Land Trust because he had an outstanding judgment against him
personally and did not want a lien placed against the property if he purchased it in his own
name. Id. at 100. Skinner further advised the DEA that he established Graham Kendall as
the trustee for the property. Id. at 101. Lastly, Skinner advised the DEA that he
established the trust for his own benefit. Id. at 102. In short, Skinner’s subsequent
statements indicated that Kendall “was basically a straw man for . . . Skinner.” ROA, Vol.
14 at 211 (testimony of DEA agent Nichols).
Based upon this evidence5, the district court reasonably concluded that Skinner had
control over the site sufficient to afford him authority to consent to DEA agents touring
the site. Likewise, the district court reasonably concluded that Pickard and Apperson
lacked a reasonable expectation of privacy in the site. More specifically, there was no
evidence that either defendant had an ownership interest in the site, nor was there evidence
suggesting that either defendant stayed at the site or otherwise had some type of
5
It is also worth noting that, during the tour, DEA agent Nichols observed that (a)
Skinner maintained various personal items, including clothing, at the site, (b) Skinner
“appeared [to be] living at the base,” and (c) Skinner had keys and “unlimited access to
all of the structures on the property.” ROA, Vol. 13 at 104.
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possessory interest in the site. Cf. United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir.
2003) (concluding that social guest had a reasonable expectation of privacy in his host’s
home). Although it is true that in June of 2000, Skinner “made an arrangement for . . .
Pickard to have power of attorney of the Wamego Land Trust” “in case something
happened to . . . Skinner,” there was otherwise no evidence that Pickard had an ownership
or possessory interest in the site at the time the search warrant was sought and issued.
ROA, Vol. 14, at 212. Indeed, the evidence indicates that it was not until November 4,
2000, after the search warrant was issued, and after Pickard arrived in Kansas from
California, that Skinner gave a set of keys to Pickard (and those keys were only to a
portion of the site). Id. at 212-13.
c) Interception of nonverbal communications by closed circuit television cameras
In addition to seeking and obtaining a search warrant for the missile site, DEA
agent Nichols also sought and obtained on November 2, 2000, a search warrant allowing
the DEA to conduct video surveillance, by way of a closed circuit television camera, of
defendants Pickard and Apperson inside the missile site. Following his indictment,
Pickard moved to suppress evidence obtained via this search warrant. In support of his
motion, Pickard argued that “[i]llegally obtained information was used in support of
probable cause within the [a]ffidavit of . . . Nichols,” and that the affidavit “contain[ed]
omissions of material information which negate[d] both probable cause and the necessity
requirement for issuance of” the warrant. ROA, Doc. 73 at 4.
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The district court, after conducting a series of evidentiary hearings, denied
Pickard’s motion. Id., Doc. 143. In doing so, the district court concluded, as it had in
addressing the search of the missile site, that Pickard did not have a protectable privacy
interest in the missile site, and thus no Fourth Amendment violation resulted from the
video surveillance. In an alternative holding, the district court concluded that probable
cause for issuance of the warrant existed because “[t]he information from Skinner clearly
indicated that defendants had conspired with Skinner to possess an LSD laboratory with
the intention of making LSD,” and “[t]his information was corroborated by the tour of the
missile silo and the intercepted [telephone] conversations between Skinner and Pickard.”
Id. at 21. The district court further concluded that the warrant was worded in such a
manner as to provide officers with a particularized description of the property and persons
to be monitored, to minimize the recording of activities not related to the crimes under
investigation, and to limit the time for such surveillance (i.e., no longer than thirty days or
the achievement of the objectives of the investigation, whichever was earlier). Id. at 21-
22. Finally, the district court concluded that “there was an adequate showing that
alternative investigative techniques [had been] exhausted . . . or reasonably appeared
unlikely to succeed.” Id. at 22.
On appeal, Pickard complains “[t]here [wa]s no reason stated [in the affidavit] as to
what led investigators to Skinner, how the investigation came about, or when Skinner was
granted immunity or began cooperating.” Pickard Br. at 39. Pickard further complains
that the affidavit failed to inform the magistrate judge who issued the warrant that
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“Skinner was wired by the government on different occasions during meetings with
[Pickard], an alternative likely to be effective given past successful use.” Id.
The initial problem with these arguments is that they overlook the district court’s
conclusion that Pickard lacked a privacy interest in the missile site, and thus lacked
standing to challenge the video “search” of the site. See generally United States v.
Arango, 912 F.2d 441, 445 (10th Cir.1990) (holding that, in order to have standing, person
asserting Fourth Amendment rights must have personal, subjective expectation of privacy
in the subject of the search that society would recognize as objectively reasonable). Even
ignoring Pickard’s failure to challenge the district court’s conclusion regarding standing,
his arguments lack merit. We have held there are five requirements that must be satisfied
before video surveillance will be permitted. See United States v. Mesa-Rincon, 911 F.2d
1433, 1436 (10th Cir. 1990). “An order permitting video surveillance shall not be issued
unless: (1) there has been a showing that probable cause exists that a particular person is
committing, has committed, or is about to commit a crime; (2) the order particularly
describes the place to be searched and the things to be seized in accordance with the fourth
amendment; (3) the order is sufficiently precise so as to minimize the recording of
activities not related to the crimes under investigation; (4) the judge issuing the order finds
that normal investigative procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order does not
allow the period of interception to be longer than necessary to achieve the objective of the
authorization, or in any event no longer than thirty days.” Id.
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After reviewing the record on appeal, we conclude that the two requirements
specifically challenged by Pickard, i.e., probable cause and necessity, were met. With
respect to the issue of probable cause, the district court concluded that “[t]he information
from Skinner clearly indicated that defendants had conspired with Skinner to possess an
LSD laboratory with the intention of making LSD,” and that this information “was
corroborated by the tour of the missile silo and . . . intercepted [phone] conversations
between Skinner and Pickard.” ROA, Doc. 143 at 21. This conclusion was amply
supported by the evidence presented during the suppression hearings. As for the necessity
requirement, DEA agent Nichols testified that other “real-time” surveillance techniques,
such as having an informant wear a “wire,” could not be used in the missile site due to the
thickness of the concrete walls.6 ROA, Vol. 14 at 192. Nichols further testified that,
although they tape-recorded conversations inside the site between Skinner and the
defendants, there was no guarantee that the tape recorder would work each time. Id. at
193. Lastly, Nichols indicated that, without some type of real-time surveillance, Skinner’s
safety was compromised when he was in the presence of defendants inside the site. Id. at
198-99. In light of this testimony, the necessity requirement was adequately established.
Allowance of second superseding indictment
The first indictment returned in this case alleged that defendants conspired from on
or about November 3, 2000, to on or about November 6, 2000, to manufacture, distribute
6
Because the thickness of the concrete walls of the missile silo prevented
transmission of audio signals, the DEA had to settle for video-only surveillance of the
interior of the site, combined with audio recordings made by Skinner.
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and dispense ten grams or more of a mixture or substance containing a detectable amount
of LSD. On January 17, 2001, a different grand jury returned a superseding indictment
which retained the original count and added a second count alleging that on November 6,
2000, defendants knowingly possessed with intent to distribute and dispense ten grams or
more of a mixture or substance containing a detectable amount of LSD. Finally, on June
20, 2001, the grand jury that issued the superseding indictment issued a second
superseding indictment expanding the time period of the alleged conspiracy (to August
1999 through November 6, 2000) and adding an alias for each defendant. Defendants
moved to dismiss the second superseding indictment on the basis of alleged grand jury
abuse. The district court denied that motion.
In their respective appeals, Apperson and Pickard contend the district court erred in
allowing the filing of the second superseding indictment because that indictment merely
“expanded the time of the alleged conspiracy,” rather than “add[ing] any new charges . . .
.” Pickard Br. at 16. In their view, the primary purpose of the second superseding
indictment was simply to strengthen the government’s case against defendants. In sum,
defendants effectively argue that the second superseding indictment should have been
dismissed as a result of grand jury abuse on the part of the government.
“[T]he grand jury process is abused when the prosecutor uses it ‘for the primary
purpose of strengthening the Government’s case on a pending indictment or as a substitute
for discovery, although this may be an incidental benefit.’” United States v. Jenkins, 904
F.2d 549, 559 (10th Cir. 1990) (quoting United States v. Gibbons, 607 F.2d 1320, 1328
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(10th Cir. 1979)). We review the district court’s factual determinations on this issue
“under the deferential clearly erroneous standard.” United States v. Brown, 943 F.2d
1246, 1257 (10th Cir. 1991). Further, the trial court’s ruling on the motion to dismiss the
superseding indictment “will only be reversed if we find errors in the indictment which
prejudiced the defendant.”7 Id. “Such prejudice occurs ‘if there is some significant
infringement on the grand jury’s ability to exercise independent judgment.’” Id. (quoting
United States v. Pino, 708 F.2d 523, 530 (10th Cir. 1983)).
In rejecting defendants’ motion to dismiss the second superseding indictment, the
district court in this case made the following relevant findings:
The court has examined the grand jury transcripts in this case. We cannot
find any evidence of abuse of the grand jury system. The grand jury
proceedings leading to the second superseding indictment were not an effort
to discover new information and thus strengthen the government’s case. The
information had been known by the government since the first grand jury. It
was not an effort to freeze the testimony of a hostile or tentative witness. No
such witness testified in the grand jury proceedings. The changes made in
the second superseding indictment changed the operative date of the
conspiracy and added two aliases. We believe these kinds of changes are not
the type of impermissible strengthening of a prosecution’s case that is
considered an abuse of the grand jury system. * * *
7
Some circuits “have crafted an intermediate standard of review for evaluating
district court orders accepting or rejecting claims of grand jury abuse.” United States v.
Flemmi, 245 F.3d 24, 27 (1st Cir. 2001). “Under that standard,” such courts “accord
respect to the lower court’s findings, but scrutinize them somewhat less deferentially than
[they] would be either the traditional ‘abuse of discretion’ or ‘clearly erroneous’ rubric
applied.” Id. “This intermediate level of appellate scrutiny is akin to what [such courts]
have in other contexts termed ‘independent review.’” Id. at 28. We, however, have never
adopted such a standard. Even if we were to adopt and apply such a standard in this case,
the result would be the same.
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The court cannot fathom how the defendants are placed at an unfair
disadvantage because of the second superseding indictment or the grand jury
testimony which led to it. Generally prejudice of some kind must be shown
to warrant the dismissal of an indictment. * * *
ROA, Vol. 2, Doc. 126 at 2-3.
Defendants’ conclusory arguments on appeal are clearly insufficient to undermine
the district court’s findings and conclusions. Notably, neither defendant points to a single
portion of the grand jury transcripts that would call into question the district court’s
findings. Nor do they explain how the second superseding indictment impermissibly
strengthened the government’s case against them. Thus, we reject their challenges to the
second superseding indictment.
Denial of motion to sever
Apperson contends the district court erred in denying his motion to sever his trial
from that of co-defendant Pickard. We review for abuse of discretion a district court’s
denial of a motion to sever. United States v. Sarracino, 340 F.3d 1148, 1165 (10th Cir.
2004). “A severance should be granted when ‘there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from making
a reliable judgment about guilt or innocence.’” Id. (quoting Zafiro v. United States, 506
U.S. 534, 539 (1993)).
As previously noted, the district court waited to rule on Apperson’s motion to sever
until it had conducted a James hearing to determine the admissibility of co-conspirators’
statements. After doing so, the district court considered and rejected the specific grounds
alleged by Apperson in support of his motion. First, the district court noted that Apperson
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sought a severance “on the grounds that it [wa]s necessary to obtain the benefit of
exculpatory testimony from his codefendant.” ROA, Vol. 3, Doc. 135 at 1. Although the
district court found “there [wa]s a probability that . . . Pickard would testify in the trial of .
. . Apperson if a severance was granted,” id. at 2, the court questioned whether Pickard’s
testimony, if believed by a jury, would establish Apperson’s innocence. Id. at 3. Indeed,
the district court concluded it was “quite plausible that both defendants were aware of the
purpose of the trip [to the Wamego missile base] without explicitly discussing its illegality
or using the term ‘LSD.’” Id. The district court also noted there was other evidence,
including taped conversations with Skinner, suggesting that both Pickard and Apperson
knew the purpose of the trip was to obtain lab equipment and chemicals used for making
LSD. Id. In short, the district court concluded that “[t]he significance of Pickard’s
potential testimony, its exculpatory nature and the extent of prejudice to . . . Apperson if
the testimony [wa]s not available, [we]re severely limited by the likelihood that the
testimony would be impeached or contradicted by the more persuasive evidence of the[]
[taped] conversations [with Skinner].” Id. at 4. The court also expressed concern that if a
severance were granted, “there would be much more time and money expended in the
litigation of th[e] case.” Id. The district court rejected Apperson’s contention that “there
m[ight] be a Bruton problem which justifie[d] severance.” Id. According to the district
court, it was “unaware of any incriminating statement by . . . Pickard which so directly
link[ed] . . . Apperson to the crimes charged in th[e] case that a Bruton issue [wa]s raised.”
Id. Finally, the district court rejected Apperson’s assertion “that severance [wa]s needed
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because of the imbalance of evidence against the two defendants.” Id. at 5. Although the
district court acknowledged there was a “difference in the criminal histories of the two
defendants,” it concluded there was not “an extreme disparity in the evidence to be
introduced against the two defendants” at trial. Id.
Although Apperson now asserts there were several factors that weighed in favor of
severance, we disagree. First, Apperson asserts “there was clearly a gross disparity in the
evidence against Pickard as compared to Apperson.” Apperson Br. at 38. Notably,
however, the district court specifically rejected this assertion: “[T]he evidence adduced at
trial did not establish an extreme disparity in the evidence. The evidence showed
significant involvement by Apperson in the conspiracy.” ROA, Doc. 360 at 67. Our
review of the record on appeal supports the district court’s finding on this point. Second,
Apperson contends “that Pickard’s defense was antagonistic to Apperson’s . . . .”
Apperson Br. at 41. There is no indication, however, that Apperson ever asserted this
argument below, and thus it is considered waived for purposes of appeal. Third, Apperson
contends a severance should have been granted because “Pickard had a long criminal
record and Apperson had no previous criminal record at all.” Id. at 42. Notably, the
district court specifically considered this factor and rejected it as a basis for severance.
ROA, Doc. 135 at 5. Fourth, Apperson contends “the hostile exchanges between the trial
court and Pickard’s counsel clearly prejudiced Apperson’s right to a fair trial.” Apperson
Br. at 42. The district court specifically considered and rejected this argument: “[T]he
court does not believe that the comments made [by it to Pickard’s counsel] during the trial
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were improper. Moreover, the court does not find, even if some of the comments were
improper, that Apperson was prejudiced by them.” ROA, Doc. 360 at 68. As outlined
below in the discussion of the defendants’ claim of judicial misconduct, we agree with
these conclusions.
In sum, we conclude that Apperson failed to establish that a joint trial would
compromise any of his specific trial rights or prevent the jury from making a reliable
judgment about his guilt or innocence. Accordingly, we conclude there was no abuse of
discretion on the part of the district court in denying his motion to sever.
Denial of discovery requests
Pickard contends that the district court erred in denying various discovery requests
propounded by himself and Apperson. “We review the denial of a motion for discovery in
a criminal case for abuse of discretion.” See United States v. Barlow, 310 F.3d 1007,
1010 (7th Cir. 2002).
Pickard first refers to the “[d]efendants[’] motion for discovery of 404(b) evidence”
and the district court’s denial of that motion on January 29, 2001. Pickard Br. at 44. A
review of the district court’s order indicates that the district court denied the motion
because “[t]he government ha[d] already given adequate notice of this evidence to
defendants,” and required the government to provide “additional notice” “if new 404(b)
evidence [wa]s developed . . . .” ROA, Doc. 63 at 5. Notably, Pickard does not indicate
what aspect, if any, of the district court’s ruling he is seeking to challenge on appeal. In
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any event, a review of the district court’s ruling persuades us there was no abuse of
discretion on the part of the district court.
Pickard next makes reference to a handful of motions he filed early in the case,
including a motion for disclosure of exculpatory materials, a motion for discovery, a
motion to discover promises made to witnesses, and a motion to make discovery available
by photocopying. Pickard Br. at 44-45. He does not, however, explain how the district
court ruled on those motions, cite to where in the record the district court ruled on those
motions, or explain how the district court’s rulings on those motions were erroneous.
Thus, he has failed to develop this issue in a sufficient manner to invoke appellate review.
See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
Pickard next refers to a “joint motion for production . . . requesting copies of
agreements entered into between the U.S. Department of Justice and its representatives
including: Haley, Skinner, Bauer, Halpern, Salvenelli and Kliphuis.” Pickard Br. at 45.
He does not indicate, however, how the district court ruled on this motion, nor has he
included in the record on appeal a copy of the motion or the district court’s ruling on it.
Again, he has failed to sufficiently develop this issue to invoke appellate review. Id.
Finally, Pickard makes reference to a variety of allegedly exculpatory evidence that
the government purportedly failed to disclose prior to trial. Included among this evidence
is (a) a videotape taken by government agents of the Wamego missile base, (b) evidence
that Skinner was “caught by Dr. Zigrant, at an early age synthesizing drugs,” Pickard Br.
at 45, (c) “reports regarding Skinner transferring glassware to Salvenelli similar to what
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was found October 31, 2000,” id., (d) evidence of threats made by the government against
Skinner, (e) two affidavits from witnesses regarding what happened in a Pottawatomie
County (Kansas) murder case filed against Skinner, (f) information that Skinner had acted
as a confidential informant on fifteen previous occasions, (g) evidence that “Skinner spent
$250,000 of his own money investigating hallucinogenic properties,” id. at 47, and (h)
information concerning the Wamego Land Trust provided by Skinner to the DEA.
Although Pickard does not explain where or when these matters were brought to the
attention of the district court, a review of the record on appeal indicates that, during trial,
Pickard moved to dismiss the indictment “based upon outrageous government conduct and
prosecutorial misconduct . . . .” ROA, Vol. 5, Doc. 322 at 1. Pickard’s motion alleged, in
pertinent part, that the government withheld and or delayed discovery of exculpatory
evidence. The district court conducted a post-trial evidentiary hearing on, and
subsequently denied, the motion. In doing so, the district court noted that the “motion
[wa]s woefully lacking in any details.” Id. at 3. The district court further stated:
The defendant has contended throughout that certain evidence has not been
provided to him by the government or has not been provided in a timely
manner. The court has found no support for this position. It appears to the
court that the government has made all the evidence required by Fed. R.
Crim. P. 16, Brady and Giglio available to the defendants. The court is
unaware of any material that has been intentionally withheld from the
defendants.
Id. at 3-4.
To the extent Pickard is challenging the district court’s ruling on this motion, there
is no basis for concluding the district court erred. Similar to the motion itself, Pickard’s
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appellate brief is “woefully lacking in any details,” and Pickard has failed to specifically
challenge any part of the district court’s ruling.
Denial of CIPA-related pretrial conference, continuance and discovery
Pickard contends the district court erred in refusing his requests for a pretrial
conference pursuant to the Classified Information Procedures Act (CIPA), 18 U.S.C. App.
3 §§ 1 et seq.8, a continuance of the trial to allow for production of CIPA-related
information, and production of classified information. To the extent these issues involve
interpretation of the CIPA, we review them de novo. O’Hara, 301 F.3d at 568. Otherwise,
we review for abuse of discretion a district court’s rulings applying the CIPA to discovery
and trial. See id. at 569.
On July 8, 2002, Pickard filed a motion requesting a pretrial conference pursuant to
the CIPA, and a continuance of the scheduled July 22, 2002 trial date. In that motion,
Pickard’s counsel asserted that Pickard had rejected plea proposals offered by the
government, and was instead interested in proceeding to trial with a defense based in part
on his alleged involvement in “Operation Infrared, a plan by the United States Department
of Customs to target Afghanistan General Abdul Rashid Dostum who had been heavily
involved in heroin trafficking for a number of years.” ROA, Vol. 4, Doc. 231 at 2. The
motion further asserted that at the requested pretrial conference, “the Court w[ould] be
8
Generally speaking, the CIPA sets forth a framework for dealing with classified
information at federal criminal trials. By its plain terms, it “evidence[s] Congress’s intent
to protect classified information from unnecessary disclosure at any stage of a criminal
trial.” United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002).
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requested to consider any and all matters relating to classified information which would
promote a fair and expeditious trial.” ROA, Vol. 3, Doc. 165, at 2-3. On July 10, 2002,
Pickard filed a similar pro se motion, followed on July 12, 2002, by a pro se memorandum
concerning the implementation of the CIPA.
On November 8, 2002, the district court held a hearing on Pickard’s request for a
pretrial conference pursuant to the CIPA.9 Id., Doc. 212 at 2. “During the hearing,
[Pickard] testified concerning his [alleged] need for classified documents in this case.” Id.
“He recounted his past history with various governmental agencies and suggested that his
defense in this case would be his belief that he was either engaging in drug policy research
or conducting an undercover operation with the plan to ultimately expose the activities of .
. . Skinner at the missile silo.” Id. “He suggested that he had the apparent authority to
engage in such undercover activities because he had previously assisted or attempted to
assist government agencies in several drug operations.” Id. at 2-3.
On November 26, 2002, the district court issued a memorandum and order denying
Pickard’s requests for classified information. ROA, Vol. 4, Doc. 217.10 In doing so, the
9
On July 16, 2002, Pickard filed a “supplemental motion to continue” asserting
that his counsel needed to have surgery performed and asking that the trial, scheduled for
July 22, 2002, be continued. The district court granted that motion the same day it was
filed, and continued the trial until January 13, 2003. The granting of that motion
effectively rendered moot Pickard’s motion for a CIPA-related continuance.
10
Curiously, Pickard has included in the record on appeal only a partial copy of the
district court’s memorandum and order (the copy includes only pages 1, 17, 18, and 21 of
the memorandum and order). Missing from that copy is the district court’s discussion of
Pickard’s request for classified information and its reasons for denying the request. Our
understanding of the district court’s ruling is therefore taken from a subsequent
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district court “noted that Pickard had never sought any of this information prior to the
hearing on November 8, 2002.” ROA, Vol. 4, Doc. 231, at 3. In turn, the district court
concluded that “Pickard’s sudden desire to seek discovery on these issues c[ould not] be
allowed.” Id. In other words, the district court concluded that “[a]ll of these matters
[involved] information that could have been, and should have been, sought much earlier in
the case.” Id.
On December 17, 2002, the district court conducted a pretrial conference pursuant
to the CIPA. Immediately prior to the conference, Pickard filed a supplemental motion for
discovery requesting additional information concerning Operation Infrared, as well as
information regarding fentanyl manufacturing. “At the [actual] conference, Pickard
indicated that he intended to present” at trial various classified materials concerning
Operation Infrared. Id. at 2. “The materials consisted primarily, if not entirely, of
documents that Pickard had sent to various governmental agencies proposing his
assistance in this operation.” Id. “In response to Pickard’s” proffer, “the government
stated that it had no information that any of these materials [we]re classified.” Id.
“Accordingly, in light of the government’s position, the [district] court f[ound] it
unnecessary to preclude any of the evidence sought to be introduced by Pickard.” Id. As
for Pickard’s supplemental request for discovery of classified information, the district
court again refused to grant the request. Id. As in its memorandum and order of
November 26, 2002, the district court concluded that Pickard’s request was untimely. Id.
memorandum and order issued by the district court.
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The district court also criticized one particular aspect of Pickard’s supplemental discovery
request:
In the motion [Pickard] states that he sent a set of documents to some 32
governmental agencies concerning Operation Infrared in early 2002. He
wants the government to contact each of those agencies as a result of his
mailings. The court finds this request preposterous. The court is at a loss as
to how some mailings made by Pickard some fifteen months after the alleged
incident that forms the basis of the charges in the indictment are relevant
here. The court has been lenient in allowing Pickard to proceed with his
designated defenses, but this approach appears to go beyond even what the
court anticipated.
Id. at 3-4.
To the extent Pickard now argues the district court erred in denying his request for
a CIPA-related pretrial conference, that argument is clearly misplaced. As noted above,
the district court in fact conducted a CIPA-related pretrial conference on December 17,
2002. Pickard’s argument that the district court erred in denying his request for a CIPA-
related continuance is also meritless. As discussed above, Pickard’s request for a
continuance was rendered moot by the district court’s grant of his motion to continue the
trial based on his counsel’s medical problems. Finally, to the extent Pickard contends the
district court erred in denying his supplemental discovery requests for classified
information regarding Operation Infrared and fentanyl manufacturing, he has failed to
rebut the district court’s conclusion that his request for such information was untimely, or
explain the relevance of the information to his defense.
Grant of government’s motion in limine regarding Skinner
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Pickard contends the district court erred in granting, in part, the government’s
motion in limine regarding the admission of evidence concerning Skinner’s “prior
convictions, writing of counterfeit checks, overdose, bankruptcy, grant of immunity in the
matter, theft of stereo speakers, fraud securities violations, bizarre public behavior,
deception of law enforcement, violation of New Jersey wiretapping statute, and deception
of ownership of” the missile base. Pickard Br. at 85-86. We review for abuse of
discretion a district court’s rulings regarding the admissibility of evidence, including
evidence intended to impeach a witness. See United States v. Howell, 285 F.3d 1263,
1269 (10th Cir. 2002).
The government filed its motion in limine regarding Skinner on February 13, 2002.
The motion listed eighteen categories of information that the government suspected would
be used by defendants in an attempt to challenge Skinner’s credibility at trial. Pickard, in
response to the government’s motion, listed seven additional categories of information that
he intended to use to cross-examine Skinner about at trial.
On June 20, 2002, the district court issued a memorandum and order granting in
part and denying in part the government’s motion. The district court denied the
government’s motion to the extent it sought to preclude defendants from questioning
Skinner regarding his prior conviction for possessing an Interpol Identification Badge. In
the district court’s view, this conviction “reflect[ed] upon [Skinner’s] ability to testify
truthfully,” and thus was admissible under Federal Rule of Evidence 609(a)(2). ROA,
Vol. 3, Doc. 155, at 5. The district court also, pursuant to Federal Rule of Evidence
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608(b), denied the government’s motion in limine with respect to the questioning of
Skinner about (1) his alleged writing of counterfeit checks to Pickard, (2) his filing of
bankruptcy in 1992 in Oklahoma and allegations of fraud related to the bankruptcy, (3) his
alleged theft of stereo speakers and equipment in Pottawatomie County, Kansas, and (4)
civil RICO, fraud and securities violations resulting from the alleged fact that Skinner
made fraudulent representations to members of Financial Operations Group which
allegedly resulted in debts of over $1.3 million. The district court granted the
government’s motion with respect to (1) Skinner’s prior drug use, (2) a charge of
manslaughter filed against Skinner in Pottawatomie County, Kansas, and subsequently
dismissed, arising out of the death of an individual (Paul Kenneth Hulebak) at the missile
base on or about April 29, 2001, (3) evidence of Skinner’s involvement as a confidential
informant in a New Jersey state drug case, (4) evidence that Skinner underwent a
polygraph examination and was found not credible, and (5) prior statements from Skinner
to law enforcement authorities regarding “the true amount of ergotamine tartrate,” “the
ownership of the” missile base, and “the ownership of a large cache of firearms and
ammunition.” Id. at 16.
Pickard purports to challenge the district court’s ruling on all of the categories of
evidence it prohibited him from using to cross-examine Skinner, but fails to offer any
detailed explanation of how the district court erred. Accordingly, we conclude he has
failed to sufficiently place these rulings at issue. See Am. Airlines v. Christensen, 967
F.2d 410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that one
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is appealing an adverse ruling below without advancing reasoned argument as to the
grounds for the appeal.”); see also Fed. R. App. P. 28(a)(4) (“The brief of the appellant
shall contain . . . [a]n argument . . . . The argument shall contain the contentions of the
appellant with respect to the issues presented, and the reasons therefor, with citations to
the authorities, statutes and parts of the record relied on.”).
Even assuming, for purposes of argument, that Pickard has sufficiently raised the
issues in his appellate brief, we conclude the district court did not abuse its discretion in
granting portions of the government’s motion in limine. First, the district court correctly
concluded that evidence of Skinner’s alleged prior drug use could not be used to attack
Skinner’s general credibility. See Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir.
1987) (“A witness’s use of drugs may not be used to attack his or her general credibility,
but only his or her ability to perceive the underlying events and testify lucidly at the
trial.”). Second, the district court did not abuse its discretion in excluding evidence of the
manslaughter charge filed against Skinner because the charge was ultimately dismissed,
and there is no indication that the underlying events of the alleged crime implicated
Skinner’s credibility. See Fed. R. Evid. 608(b) (allowing for specific instances of conduct
of a witness to be inquired into on cross-examination if they are probative of truthfulness
or untruthfulness); Fed. R. Evid. 609(a) (allowing evidence of prior convictions to be used
to attack credibility of witness). Third, the district court acted well within its discretion in
excluding evidence of Skinner’s role as a confidential informant in a 1991 New Jersey
drug case. During the course of that 1991 case, the state trial court apparently questioned
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Skinner’s credibility and character, presumably because he agreed to act as a confidential
informant only in an effort to gain favor with authorities in connection with drug charges
that were pending against him. In precluding Pickard from cross-examining Skinner about
this matter, the district court in this case concluded that “[t]he jury in this case [wa]s
capable of making its own determination regarding Skinner’s credibility,” and “[t]o the
extent that any discussion of the New Jersey case ha[d] any probative value,” it was
“outweighed by its prejudicial impact and its potential to confuse the jury and unduly
waste the court’s time.” ROA, Doc. 155, at 13. Notably, Pickard does not specifically
challenge either of these determinations in his appellate brief. Fourth, the district court
acted within its discretion in excluding evidence that, during the course of his involvement
in this case, Skinner took two polygraph exams and was shown to have been deceptive
during one of those exams. In addressing this evidence, the district court concluded that
even if the evidence was deemed reliable pursuant to a Daubert hearing11, it still had the
potential to be overvalued by the jury, and thus was excludable under Fed. R. Evid. 403.
Id. at 15. This ruling is entirely consistent with our precedent. See United States v. Call,
129 F.3d 1402, 1404-05 (10th Cir. 1997) (noting that “even if polygraph evidence should
satisfy Rule 702, it must still survive the rigors of Rule 403”). Further, Pickard has made
no attempt on appeal to challenge the district court’s Rule 403 concerns. Finally, with
respect to the allegedly inconsistent statements Skinner made to authorities regarding the
precursor chemical, the ownership of the missile base, and the ownership of firearms and
11
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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ammunition, the district court held only that they were inadmissible under Fed. R. Evid.
608(b). ROA, Doc. 155 at 16. Importantly, the district court left the door open for these
statements to be used in other ways by Pickard (or Apperson):
This, of course, does not mean that any reference to these [prior inconsistent]
statements is precluded. The statements may be admissible in other ways . .
. . Counsel for both sides should understand the difference between
impeachment by contradiction and impeachment by character.
Id. In his appellate brief, Pickard simply makes the conclusory assertion that these prior
statements “reflect[ed] Skinner’s character.” He otherwise fails to challenge the district
court’s conclusion that the statements were inadmissible under Rule 608(b). Nor does he
explain why he could not have utilized these prior statements of Skinner’s in other ways
(e.g., to impeach Skinner by contradiction, as suggested by the district court).
Judicial misconduct
During the district court proceedings, Pickard moved for a new trial based generally
on what he described as errors in the treatment of his counsel by the district court during
trial, including “treat[ing] his counsel differently and/or unfairly in its rulings and
comments.” ROA, Vol. 5, Doc. 360, at 16. In addressing Pickard’s motion, the district
court first noted that “Pickard’s arguments lack[ed] specificity.” Id. The district court
then proceeded to reject Pickard’s general arguments, stating:
The court does not believe that it engaged in any unfair or improper
treatment. The court attempted to resolve every issue as fairly, as quickly
and as correctly as possible. The court will readily admit that it grew
impatient and frustrated as the trial of this case continued. The court was
constantly looking for ways to save time. In doing so, the court made a
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point to confront Pickard’s counsel and attempt to move his examinations
along. The court believed that his examinations were largely responsible for
the ponderous nature of the trial. They were at times overly long, repetitious
and irrelevant. The court’s efforts, however, were always aimed at having
the trial progress at an appropriate rate, and not to demonstrate favoritism of
one side of the other. (citation omitted).
Even if the court did inadvertently or unintentionally treat Pickard’s
counsel differently, the defendant is not entitled to a new trial unless the
difference in treatment undermined confidence in the verdict. (citation
omitted). The court does not believe any fatal error occurred here for the
aforementioned reasons. First, the evidence against the defendants was
overwhelming. Second, most of the comments made by the court were made
during bench conferences and not in the presence of the jury. Finally, we
believe that the instructions given by the court ameliorated any possible
error that occurred. The court instructed the jury during the trial and in the
final instructions that any comments by the court should have no impact on
any of the issues of the trial. In sum, we find no basis for relief.
Id. at 17-18.
On appeal, Pickard contends the district court erred in denying his motion for new
trial. Pickard does not, however, describe what alleged misconduct he is referring to, other
than to summarily assert, as he did below, that the district court made “inappropriate and
prejudicial remarks” during trial. Pickard Br. at 43. Moreover, Pickard fails to quote or
summarize any of the allegedly prejudicial remarks in his appellate brief, and likewise
fails to cite to a single portion of the trial transcript in which such a remark was made.
Thus, Pickard has failed to frame and develop this issue in a sufficient manner to invoke
appellate review. E.g., Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir.
1995).
Even if we were to reach the merits of the issue, Pickard has offered no basis for
overturning the district court’s ruling. In particular, Pickard does not refute the district
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court’s finding that the remarks it made were directed at his counsel rather than Pickard
himself (nor does Pickard refute the district court’s finding that his counsel caused the trial
to greatly exceed its originally-estimated length). This distinction is important in terms of
determining whether Pickard was denied the right to a fair trial. E.g., United States v.
DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982) (rejecting defendants’ motion for new trial
where district court’s comments were aimed solely at defense counsel, rather than one of
the defendants). Nor does Pickard refute the fact that the district court instructed the jury
during trial, and again prior to deliberations, that its comments should not have an impact
on the verdict. Again, this fact is significant in terms of deciding whether Pickard’s right
to a fair trial was infringed. E.g., United States v. Harrison, 296 F.3d 994, 1007 (10th Cir.
2002).
In his separate appeal, Apperson also asserts a claim of judicial misconduct,
arguing that “the trial court committed reversible error when it made multiple
inappropriate and prejudicial comments in the presence of the jury regarding the
defendants, their counsel and the evidence.” Apperson Br. at 16. For the reasons already
discussed, we conclude there is no merit to Apperson’s argument. Although the district
court did, on occasion, become short-tempered with Pickard’s counsel, we conclude the
district court’s comments were, for the most part, “no more than efforts to keep an unruly
defense counsel within bounds . . . .” Harrison, 296 F.3d at 1007. Moreover, the district
court expressly instructed the jury to not consider its comments as evidence. See id.
(noting that district court “twice instructed the jury that it should not infer from the court’s
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actions that it had any opinion concerning the issues in the case.”). Thus, we conclude the
district court’s comments regarding Pickard’s counsel were not so egregious as to warrant
a new trial for Apperson.
Evidentiary rulings
Pickard contends the district court erred in overruling certain evidentiary objections
and in not admitting certain testimony and exhibits sought to be admitted by defendants.
We review for abuse of discretion a district court’s evidentiary rulings. E.g., United States
v. Kravchuk, 335 F.3d 1147, 1156 (10th Cir. 2003) (involving admission of Rule 404(b)
evidence).
Pickard first contends the district court erred in admitting Exhibit N19, which was a
transcript of a tape-recorded portion of a telephone call between himself and Skinner.
According to the prosecution, “the recording device failed to record the other side [i.e.,
Pickard’s side] of the conversation.” ROA, Vol. 70 at 1873. Pickard appears to be
asserting that he made various exculpatory statements during the conversation and that,
because those statements were not recorded or transcribed, Exhibit N19 should not have
been admitted by the district court.
We conclude there was no abuse of discretion on the part of the district court in
admitting Exhibit N19. As noted by the prosecution, Pickard had an opportunity to cross-
examine Skinner regarding what was said by Pickard during the conversation. Moreover,
Pickard testified in his own defense and, in that regard, was able to offer his explanation of
what he said to Skinner during the taped conversation.
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In his second challenge, Pickard contends the district court erred when it refused to
admit “various e-mails and letters from [George] Marquardt[, a Kansas resident convicted
of manufacturing fentanyl,] to Pickard based on hearsay objections.” Pickard Br. at 48.
Although Pickard fails to provide any context for the ruling, a review of the record on
appeal indicates that Pickard attempted to introduce these exhibits during his own
testimony at trial. The prosecution objected, arguing that the e-mail message and letters
constituted hearsay because they were being “offered to prove the truth of the matter[s]
asserted.” ROA, Vol. 39 at 77. The prosecution argued that it “ha[d] no idea who the
genuine author” of the messages and letters was since Marquardt was in prison and was
not subpoenaed to be a witness at trial. Id. at 77. The district court agreed with the
prosecution, noting on the record: “there’s going to have to be more proof about George
Marquardt sending these and signing these” messages and letters because they “could have
been written by anybody.” Id. at 86. Accordingly, the district court precluded Pickard
from testifying about the e-mail messages and letters in the absence of further foundation.
Id. at 86-91. On appeal, Pickard has failed to offer any specific arguments as to why the
district court’s ruling was erroneous. In any event, a review of the record leads us to
conclude that the district court’s ruling was proper.
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Pickard refers to eight additional evidentiary rulings in his appellate brief12, but
fails to explain how any of them were erroneous. Pickard Br. at 49-53. We therefore
conclude that he has failed to adequately develop these issues to invoke appellate review.
Presentation of repetitive evidence
Apperson contends the district court abused its discretion “when it allowed the
Government to present Government’s exhibit 11,” a videotape/audiotape recording of a
conversation between Pickard and Skinner that occurred on October 23, 2000, “to the jury
on more than one occasion.” Apperson Br. at 52. “The multiple playing of this evidence,”
Apperson argues, “was cumulative and prejudicial since it implied to the jury that this
evidence was more significant than other evidence presented only once.” Id.
The district court addressed this issue in detail in denying the defendants’ post-trial
motions for new trial:
The defendants contend that the court erred in allowing the government
to present the same video recording, Exhibit # 11, to the jury three times.
The court will admit that this issue did test the court’s patience and fairness.
The government first sought to play a videotape of a meeting between
Pickard and Skinner that occurred on October 23, 2000, in Marin County,
California, during the testimony of Agent Ralph Sorrell. This appeared to
the court to be an inappropriate time to play the tape since Agent Sorrell did
12
These rulings concerned (1) a document from Pickard to Ely regarding
glassware, (2) an e-mail message “from Kleiman to Pickard referencing a phone call from
Ms. Lehman,” (3) testimony from Pickard regarding his relationship with an individual
named Peter Louie and “the trafficking system in Afghanistan,” (4) testimony from
Pickard regarding his discussions with U.S. Customs officials, (5) testimony from Pickard
regarding an individual named “Akbar,” (6) records from a “Boston locker,” (7)
testimony from Pickard regarding his dealings with a government employee named “Jan
Mallory,” and (8) various exhibits pertaining to Deputy Minister of Defense of
Afghanistan General Abdul Rashid Dostum. Pickard Br. at 49-53.
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not take part in the videotaping and was not actively involved in this aspect
of the case. The government did not seek to introduce it at that point.
During the showing of the tape, it was obvious that it was of little value to
anyone in the courtroom because the picture and sound were muddled. On
the following day of trial, the government explained that the copy of the tape
had not played properly on the court’s video equipment. The government
sought to play it again using the original videotape and a transcript. The
court, over the objection of the defendants, allowed the government to play
the tape again. The video on this tape was better, but the audio remained
very difficult to understand.
The government then sought to play the tape again during Skinner’s
testimony. This time the government wanted to play their tape on their own
equipment. The court wrestled with this decision. On the one hand, the
court did not want to overemphasize this piece of evidence. On the other
hand, the court wanted the tape to be heard and understood by the jury. The
court ultimately determined that playing the tape was the only fair
procedure.
The court continues to believe that the approach adopted during the trial
was necessary to allow the jury to hear this tape. The court believes that this
particular matter was mishandled by the government. Nevertheless, the
court found it important that the jury hear and understand the contents of this
tape. The court does not believe that the defendants were prejudiced by the
court’s handling of this issue.
United States v. Pickard, 278 F.Supp.2d 1217, 1235 (D. Kan. 2003).
Importantly, Apperson does not dispute the district court’s description of the factual
circumstances surrounding the playing and introduction of Exhibit 11. In light of those
circumstances, we conclude the district court did not abuse its discretion in allowing the
recording to be played more than once. See generally United States v. Pulido-Jacobo, 377
F.3d 1124, 1131-32 (10th Cir. 2004).
Admission of handwriting identification evidence
Apperson contends “the trial court committed reversible error in allowing” the
government’s primary confidential informant, Skinner, “to provide testimony identifying
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Pickard’s handwriting.” Apperson Br. at 17. According to Apperson, “[n]o known
exemplar was presented to Skinner for comparison purposes and Skinner failed to provide
any foundation which would qualify him to provide an opinion identifying Pickard’s
handwriting.” Id. We review for abuse of discretion a district court’s decision to admit
handwriting identification testimony. See United States v. Humphrey, 208 F.3d 1190,
1204 (10th Cir. 2000).
The district court, in denying Apperson’s motion for new trial, addressed this issue:
Skinner identified several examples of Pickard’s handwriting during his
testimony. He indicated that, based upon his past association with Pickard,
he was familiar with his handwriting.
The court allowed this testimony under Fed.R.Evid. 701 and 901(b)(2).
See United States v. Scott, 270 F.3d 30, 48-9 (1st Cir. 2001), cert. denied,
535 U.S. 1007 (2002). The court found that sufficient foundation had been
laid for the introduction of this testimony. The court continues to believe
that an adequate foundation was laid for this testimony.
ROA, Doc. 360 at 68.
We conclude there was no abuse of discretion on the part of the district court in
allowing Skinner to testify as to the source of the handwriting. Federal Rule of Evidence
901(a) states that “[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” In turn, Federal Rule of Evidence 901(b)
provides several “examples of authentication or identification conforming with the
requirements of this rule . . . .” Included among those examples is the following:
“Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not
acquired for purposes of the litigation.” Fed.R.Evid. 901(b)(2). Here, Skinner testified
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that, based upon his long-standing association with Pickard, he was familiar with his
handwriting. That testimony, standing alone, was sufficient under Rule 901 to have
authenticated the subsequent handwriting examples that Skinner was asked to identify.
Refusal to allow defense witnesses to testify
Pickard contends the district court erred in refusing to allow him to present various
witnesses who, he alleges, would have helped bolster his defense that Skinner was the
person who was actually in possession of and using the LSD laboratory and precursor
chemical. We review the district court’s rulings for abuse of discretion. See United States
v. Cooper, 375 F.3d 1041, 1045 (10th Cir. 2004) (“We will not disturb the district court’s
conduct of trial proceedings, including rulings on motions and objections, unless it
affirmatively appears from the record the court abused its discretion.”).
Pickard first contends the district court erred in refusing to allow Brandon Valerius
to testify. According to Pickard, Valerius would have testified “to events he observed, and
activities undertaken while he worked at the [missile] base.” Pickard Br. at 55. Pickard
contends that Valerius’s testimony would have helped to establish that the lab equipment
was present at the missile site as early as 1996. A review of the trial transcript pages cited
by Pickard, however, indicates that the district court agreed to allow Valerius to testify
“about the lab equipment” he allegedly observed at the missile base. ROA, Vol. 86 at
3514. Thus, it is unclear what additional testimony Pickard contends should have been
admitted.
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Second, Pickard contends the district court erred in refusing to allow Ryan Overton
to testify. Pickard contends that Overton would have testified that (a) Skinner gave him
large sums of money during 1999 and 2000, (b) “at least 10 kilograms of ET per year
came into the base from 1999-2000,” (c) Skinner offered him “$100,000 to assist in
making LSD with th[e] lab equipment,” id., and (d) the DEA refused to make a deal with
him in return for information. Pickard Br. at 56. As discussed in greater detail below,
Overton asserted his Fifth Amendment rights and the government refused to grant him
immunity to testify in the case. Thus, the district court did not “refuse to allow” Overton
to testify, but rather acted well within its discretion in refusing to require Overton to
testify.
Third, Pickard contends the district court erred in refusing to allow Richard
Dawson to testify. Dawson was the individual who sold the missile site to Skinner.
According to Pickard, Dawson “knew [George] Marquardt,” the Kansas resident who was
convicted of manufacturing fentanyl. Pickard Br. at 56. According to Pickard, his main
purpose in presenting the testimony of Dawson was to (a) link Skinner to Marquardt (and
thus presumably support Pickard’s assertion that Skinner was in possession of the
remnants of Marquardt’s fentanyl laboratory), and (b) “discuss[] the large sums of . . .
currency” that were present at the missile base prior to 2000. Id.
A review of the trial transcript indicates that Pickard made a proffer of Dawson’s
testimony on Thursday, March 27, 2003, after he had put on most or all of the evidence in
his own defense. Pickard noted, however, that Dawson would not be available to testify
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until Monday, March 31, 2003. ROA, Vol. 86, at 3592. The district court refused to allow
Dawson to testify out of concern for delaying the trial proceedings any further, and
because it concluded the proffered testimony was cumulative:
Well, the Court is not going to extend this case any further. We have
been in this case now for eleven weeks. And – and then this case came
originally two years ago and the Court gave us an additional year, gave you
an additional year here. Because of [defense counsel’s] illness, we
continued that another year. So we’ve been in this case now for over two
years. And I think the attorneys have had ample time to prepare this.
You’ve had ample time to get your witnesses here that you wanted to bring.
It – if there’s any testimony you have suggested, that testimony has been
cumulative, we’ve heard it time and time and time again. * * *
And there’s no excuse that I know in which if you had witnesses you
wanted to present they could not be here, and I’m still not sure that any
witness you have suggested that they will come and testify. All I have, I’ve
heard what witnesses are going to testify to, and they do not appear and
testify to that. So I – I feel we need to bring this case to a head, and I intend
to do it.
Id. at 3597-98. Because Pickard has not challenged either of these bases for refusing to
allow Dawson to testify, he has failed to establish any abuse of discretion on the part of the
district court.
Fourth, Pickard contends the district court erred in refusing to allow Dr. Dennis
Zigrang to testify. According to Pickard, Zigrang would have testified that Skinner
learned to manufacture LSD at an early age (i.e, 14 or 15). As with witness Dawson,
Pickard made his proffer of Zigrang’s testimony on Thursday, March 27, 2003, and
indicated that Zigrang would not be able to testify until Tuesday, April 1, 2003. ROA,
Vol. 86, at 3592. Further, as with Dawson, the district court rejected Zigrang’s testimony
on the grounds that (a) it would have unnecessarily delayed and extended the trial
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proceedings, and (b) it was cumulative. Id. at 3597-98. Again, Pickard makes no attempt
to challenge either of these bases, and thus fails to establish abuse of discretion on the part
of the district court.
Fifth, Pickard contends the district court erred in refusing to allow the testimony of
Shana Everhart. Pickard asserts that Everhart would have testified that “there was
widespread use of drugs by Skinner in August 2000, that lab equipment was brought from
some location to Wamego, and [that] she was on the property in August, 2000.” Pickard
Br. at 57. As with proposed witnesses Overton and Zigrang, the district court refused to
allow Everhart to testify because (a) she would not have been available to testify until
Monday, March 31, 2003, and thus would have delayed the trial, and (b) her proposed
testimony was cumulative. Because Pickard has not challenged the bases for the district
court’s ruling, he has in turn failed to establish abuse of discretion on the part of the
district court.
Sixth, Pickard contends the district court erred in refusing to allow Krystal Cole to
testify. According to Pickard, Cole, if granted full immunity, would have testified that
“the DEA-6s contained incorrect information.” Pickard Br. at 57. As discussed in greater
detail below, there was no abuse of discretion on the part of the district court in this regard
because Cole asserted her Fifth Amendment rights and the government refused to grant
her immunity to testify in the case.
Seventh, Pickard contends the district court erred in refusing to admit affidavits
from Skinner. Pickard fails to indicate, however, what information was contained in those
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affidavits. Indeed, a review of the record on appeal indicates that Skinner refused to sign
any affidavits, and Pickard never sought a definitive ruling on the admissibility of the
affidavits from the district court. Thus, there is no merit to this contention.
Finally, Pickard contends the district court erred in refusing to allow Shawn Rolph,
a former Wamego, Kansas, police officer, to testify. Rolph “had worked for Skinner as
security at the missile base for three months in 1996.” ROA, Doc. 360 at 36. According
to Pickard, “Rolph was prepared to testify about LSD distribution activity by Skinner
known by the DEA prior to Pickard ever having met Skinner.” Pickard Br. at 58. The
prosecution objected to this proposed testimony, noting that defendants had cross-
examined Skinner about the matter, Skinner had “indicated that it was untrue,” and thus
defendants were precluded from “com[ing] back and prov[ing] this up with extrinsic
evidence.” ROA, Vol. 83 at 3393. The district court refused to allow Rolph to testify
about the matter: “Well, I’m going to rule that this unsubstantiated allegation that never
went any further cannot be offered under Rule 403. * * * You can use this witness
[Rolph] for anything else that you want to, but that’s going to be my ruling on that.” Id. at
3397. Because Pickard has not challenged the basis of the district court’s ruling on appeal,
he has failed to establish any abuse of discretion.
Refusal to grant immunity to proposed defense witnesses
Pickard contends that the district court erred in refusing to grant immunity to Ryan
Overton and Krystal Cole, both of whom he wanted to testify on his behalf. Although
Pickard’s arguments lack clarity, he appears to be asserting that both Overton and Cole
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would have offered testimony supporting his theory that Skinner was the person in control
of, and actually using, the LSD laboratory at the Wamego missile base. We review the
district court’s refusal to grant immunity for abuse of discretion. United States v. LaHue,
261 F.3d 993, 1014 (10th Cir. 2001).
In ruling on these matters during trial, the district court concluded it had “no
inherent authority to grant a witness use immunity.” ROA, Vol. 86 at 3588; see also Vol.
80, at 3103 (“The Court has no independent right to give anyone any immunity.”). Rather,
the district court concluded that “the power to apply for immunity [wa]s the sole
prerogative of the Government, being confined to the . . . United States Attorney and his
superior officers.” Id., Vol. 86 at 3588. The district court then asked the prosecution
whether it would be willing to grant these witnesses use immunity. Id., Vol. 86 at 3588;
Vol. 80 at 3117. The prosecution responded it would not because there was “no valid
reason to believe that [they] would have any truthful, helpful information to provide to
either party.” Id. at 3588-89; see also Vol. 80 at 3109 (“we are totally [un]aware of any
exculpatory information [Cole] may have as to Mr. Apperson and Mr. Pickard”); id. at
3117 (“The government will not be providing this witness immunity, Your Honor.”).
Indeed, with respect to Overton, the prosecution noted that “the only link [wa]s that he
dated Krystal Cole . . . during a period when Skinner was not dating her and ha[d] sour
grapes.” Id., Vol. 86 at 3589. In light of the prosecution’s representations, the district
court concluded there was no basis for finding that the prosecution’s decision was “a
deliberate attempt to distort the fact-finding process.” Id., Vol. 86 at 3589; see also Vol.
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80 at 3117. Although Pickard now contends otherwise, Pickard Br. at 61 (arguing that
the “[g]overnment’s failure to grant immunity was a deliberate attempt to distort the fact
finding process”), he offers no factual support for that contention. In the absence of such
support, there is no merit to his assertion, and in turn no basis for concluding that the
district court abused its discretion in refusing to grant use immunity to Overton and Cole.
Notably, in LaHue, we rejected a substantially similar argument where the “defendants
provided no facts to support their claim the government engaged in a deliberate attempt to
distort the fact-finding process.” 261 F.3d at 1015. As we noted there, we will not, under
such circumstances, “sift through th[e] case’s voluminous record to find support for the
[defendants’] claims . . . .” Id. (internal quotations omitted). Instead, we will “defer to the
district court’s rulings.” Id. (internal quotations omitted).
Refusal to continue trial to allow for additional witnesses
Pickard contends the district court erred when, during trial, it refused to grant a
continuance so that defense witnesses Richard Dawson, Dr. Dennis Zigrang, and Shana
Everhart could be present to testify on his behalf. We review the denial of a motion to
continue for abuse of discretion, “assigning error only if the district court’s decision was
‘arbitrary or unreasonable and materially prejudiced the [defendant.]’” United States v.
McKneely, 69 F.3d 1067, 1076-77 (10th Cir. 1995) (quoting United States v. Rivera, 900
F.2d 1462, 1475 (10th Cir. 1990)). Pickard makes no attempt to demonstrate that the
district court’s ruling was arbitrary or unreasonable. Although he summarily asserts he
was prejudiced by the district court’s ruling, he fails to offer any support for that assertion.
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Accordingly, he has offered no basis on which we could reasonably conclude that the
district court abused its discretion in refusing to continue the trial.
Refusal to submit proposed jury instructions
Pickard contends the district court erred in refusing to instruct the jury regarding
two alternative defenses. A criminal defendant “is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient for a reasonable jury to find
in his favor.” United States v. Trujillo, 390 F.3d 1267, 1274 (10th Cir. 2004) (internal
quotations omitted). However, “such an instruction is required only if, without the
instruction, the district court’s instructions were erroneous or inadequate.” United States
v. Alcorn, 329 F.3d 759, 767 (10th Cir. 2003). A district court’s failure to give such an
instruction constitutes reversible error. Trujillo, 390 F.3d at 1274.
At trial, Pickard asserted the defenses of public authority13 and, alternatively,
entrapment by estoppel. “The public authority defense requires a defendant to show that
he was engaged by a government official to participate in a covert activity.” United States
v. Parker, 267 F.3d 839, 843 (8th Cir. 2001). “The defense of entrapment by estoppel is
implicated where an agent of the government affirmatively misleads a party as to the state
of the law and that party proceeds to act on the misrepresentation so that criminal
prosecution of the actor implicates due process concerns under the Fifth and Fourteenth
amendments.” United States v. Hardridge, 379 F.3d 1188, 1192 (10th Cir. 2004) (quoting
13
In Pickard’s opening appellate brief, the heading for this issue refers to “apparent
authority.” Pickard’s arguments, as well as the record, however, indicate that he sought
instructions on public authority, not apparent authority.
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United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994)). Thus, there must be an
active misleading by a government agent, and actual reliance by the defendant which is
reasonable in light of the identity of the agent, the point of law misrepresented, and the
substance of the misrepresentation. Id. Further, “the government agent must be one who
is ‘responsible for interpreting, administering, or enforcing the law defining the offense.’”
Id. (quoting United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1167 (10th Cir. 1999)).
To support those defenses, Pickard and his counsel relied on Pickard’s background
combined with what can, objectively speaking, be described as an unusual story on
Pickard’s part. According to the record, Pickard has an extensive criminal background,
including a prior California state conviction for manufacturing LSD. Notwithstanding that
criminal background, Pickard was able to accumulate a fairly impressive academic
resume, including graduate work in chemistry at Purdue University14 and a 1997 masters
degree in public policy from the John F. Kennedy School of Government at Harvard
University. According to Pickard, both during his period of study at Harvard and
afterwards, he focused his research on anticipating and controlling new major drugs of
abuse and, in that context, focused on the proliferation of fentanyl laboratories in the
United States and former Soviet Union. Pickard testified that, as part of that research
effort, he regularly contacted members of federal law enforcement to inform them of his
The government alleges that, while at Purdue, Pickard studied under Dr. David
14
Nichols, a biochemist with a DEA Schedule I license to manufacture LSD, and that
Pickard obtained patents for the manufacture of LSD from Hungary, Czechoslovakia, and
Germany.
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findings, and that he also, at times, had contact with addicts and criminals and acquired
samples of various drugs. Pickard further testified that it was within the context of this
research work that he, by happenstance, came into contact with Skinner, Apperson, and
the LSD laboratory ultimately seized by authorities in Kansas. According to Pickard, he
was attempting to track down the remnants of a Kansas-based fentanyl laboratory operated
by George Marquardt, and he ultimately concluded that those remnants had fallen into the
hands of Skinner and were stored at the Wamego missile base. Only after touring the base
with Skinner did he realize that the base contained LSD manufacturing equipment.
Pickard alleged that he and Apperson were attempting to seize and ultimately destroy the
LSD lab equipment and the precursor chemical when they were arrested by authorities on
November 6, 2000.
During the instruction conference, the district court concluded it “w[ould] not allow
the public authority defense offered by Defendant Pickard to be considered by the jury.”
ROA, Vol. 86 at 3626. In reaching this conclusion, the district court stated: “There is
insufficient evidence that the Defendant [Pickard] had a reasonable belief that he was
acting as an authorized agent at the time of the events surrounding the charges contained
in the Indictment.” Id. at 3626-27. More specifically, the district court noted there was no
evidence that Pickard “acted on the request or the advice of a duly-authorized law
enforcement official concerning the charges in the Indictment.” Id. at 3627; see id. at
3631-32 (“Let me say again, the Court finds absolutely no evidence whatsoever of any tie-
in with public authority.”). The district court likewise concluded the evidence was
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insufficient to support an entrapment by estoppel instruction. Id. at 3656. The district
court did, however, “allow Defendant Pickard to argue that he had an innocent intent when
he engaged in the conduct surrounding the charges of the Indictment,” i.e., “that based
upon his past activities he did not have a criminal intent with respect to any count charged
in the Indictment.” Id. at 3627.
The arguments contained in Pickard’s appellate brief regarding these defenses are,
at best, cryptic. Nowhere does Pickard outline how either of the alleged defenses applies
in his case. Instead, Pickard simply refers to pieces of his own testimony and that of three
defense witnesses (Roger Ely, a senior forensic chemist with the DEA; Peter Louie, a
special agent with the United States Customs Service; and Robert Bonner, the former head
of the DEA and the current Commissioner of the United States Customs Service). A
review of the cited testimony fails to support either the public authority defense or the
apparent authority defense. In particular, none of the testimony cited by Pickard
establishes that Pickard was engaged by a government official to participate in covert
activity, or affirmatively mislead by a government agent as to the state of the law. And,
given Pickard’s former conviction for manufacturing LSD, we have no trouble concluding
that he was well aware of the state of the law concerning such activity. Thus, we conclude
the district court did not err in refusing to instruct the jury on these defenses.15
15
In rejecting Pickard’s motions for new trial, the district court likewise noted that
Pickard’s own testimony was insufficient to establish the public authority defense: “He
never testified that any official specifically gave him authority to possess LSD equipment
or manufacture LSD. * * * The defendant . . .was unable to show that any government
officials had ever authorized his illegal activity.” ROA, Doc. 360 at 43.
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Limitations on time for closing arguments/refusal to postpone closing arguments
Pickard contends the district court erred in limiting the time period available to his
counsel to prepare for closing arguments, and in limiting the length of the closing
arguments to an hour and a half per defendant. As previously noted, a district court has
broad discretion in its conduct of the trial, including the amount of time it affords counsel
to prepare for closing arguments. See Cooper, 375 F.3d at 1045 (“We will not disturb the
district court's conduct of trial proceedings . . . unless it affirmatively appears from the
record the court abused its discretion.”). Likewise, “[a] district court has broad discretion
in limiting the scope of closing arguments.” United States v. Rogers, 960 F.2d 1501, 1513
(10th Cir. 1992) (internal quotations omitted). Thus, any limitations placed by a district
court on closing arguments are reviewed by this court only for abuse of discretion. See id.
Although Pickard contends he was “substantially prejudiced” by the district court’s
refusal to give his counsel an intervening weekend to prepare for closing argument, he
fails to specify what his counsel would have done differently had he been provided such
additional time. Moreover, he fails to address at all the district court’s stated reason for
refusing to postpone closing arguments, i.e., that the jury was interested in finishing the
trial. Accordingly, he has failed to establish any abuse of discretion on the part of the
district court in this regard.
We further conclude there was no abuse of discretion on the part of the district
court in limiting the length of the closing arguments. In particular, our review of the
record leads us to conclude that the ninety minutes allotted by the district court for each
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defendant was entirely reasonable given the fact that there were only two counts and two
defendants at issue. E.g., United States v. Sotelo, 97 F.3d 782, 793 (5th Cir. 1996)
(finding no abuse of discretion where district court limited closing argument to ten
minutes for each defendant in case covering a six-year period and involving multiple
conspiracies, 40 witnesses, 133 exhibits, a twelve-count indictment, and 22 pages of jury
instructions was not abuse of discretion). Further, we note that Pickard has not identified
what additional evidence or theories his counsel would have covered during closing had he
been afforded more time. See id.
Prosecutorial misconduct
Apperson and Pickard contend the prosecution engaged in various acts of
misconduct that warrant reversal of his conviction and the grant of a new trial. “When
defense counsel contemporaneously objects to” alleged prosecutorial misconduct “at trial
and moves for a mistrial, we review a district court’s decision to deny his motion for abuse
of discretion.” Kravchuk, 335 F.3d at 1153. Likewise, when prosecutorial misconduct is
asserted in a motion for new trial, we review for abuse of discretion the denial of that
motion. United States v. Cline, 349 F.3d 1276, 1291 (10th Cir. 2003). As for the merits
of a claim of prosecutorial misconduct, we apply a two-part test. Kravchuk, 335 F.3d at
1153. “First, we decide whether the conduct was improper.” Id. “Second, we decide
whether the conduct, if improper, warrants reversal.” Id. The general focus of the second
part of the test focuses on “whether the prosecutor’s conduct affected the fairness of the
trial.” Id. (internal quotations omitted).
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a) Alteration of exhibit
Apperson and Pickard assert that the DEA, after seizing a laptop computer owned
by Pickard, modified or deleted information contained thereon concerning Pickard’s
contacts with DEA agents. During trial, Pickard
testified that a copy of an address book taken from a computer that was
seized on November 6, 2000 and introduced by the government into
evidence as Government Exhibit 196, was incomplete. He asserted that the
address book contained references to individuals who were employed by the
DEA and that these items were missing. He testified that an examination of
the computer would confirm his testimony. The court undertook an
examination of the contents of the computer and learned that the address
book did contain the DEA references. As the court was examining the
computer, the government quickly learned that the exhibit that it had
introduced was incomplete. The government informed the court that the
computer had been sent to the DEA for examination and the DEA references
had been deleted by computer analysts at the DEA and sent to someone else
for further review. The DEA computer analysts then sent a copy of the
address book with the DEA references deleted to government counsel. They
later sent a complete copy, but government counsel was unaware that there
was any difference in the two lists of names and addresses. After learning of
these circumstances, the court allowed the defendant to introduce a complete
copy of the address book.
ROA, Doc. 322 at 4-5. Pickard subsequently moved to dismiss the indictment or,
alternatively, for a mistrial on the basis of these incidents. The district court denied that
motion, stating as follows:
This incident is perhaps the most serious example of government
misconduct because all of the others noted by the defendant either do not
constitute any type of improper conduct or are so trivial as to be of little
consequence. The court was concerned by this incident, but ultimately we
do not believe that government counsel was involved in any wrongdoing.
Moreover, the court does not see that the defendant was prejudiced by it.
The problem was addressed and corrected prior to the conclusion of the
defendant’s testimony. The defendant was able to make whatever points
were necessary from the address book. The jury was not misled in any
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fashion. Accordingly, the court does not find that this incident requires
either dismissal of the charges or a mistrial.
Id. at 5.
Although Apperson and Pickard purport to challenge the district court’s ruling on
appeal, they make no attempt to refute the district court’s factual finding that “government
counsel was [not] involved in any wrongdoing.” Nor do they assert, let alone offer any
explanation of how, this incident would have adversely impacted the jury’s decision-
making. Thus, we conclude there was no abuse of discretion on the part of the district
court.
b) Coaching of witnesses
According to Pickard, Skinner informed his attorney during trial, and Skinner’s
attorney in turn informed counsel for Pickard and Apperson, that the prosecution requested
“to know what exhibits defense [counsel] were interested in so that witnesses could be
‘prepped’ for cross-examination.” Pickard Br. at 76. In other words, Pickard asserts,
“every time defense counsel requested duplication of exhibits, the information was relayed
to the prosecutor and he then pulled copies of the same, which allowed the prosecutor to
then prepare the witness for questions expected to be asked” regarding those exhibits. Id.
Apperson raised this issue during trial and asked for a mistrial. ROA, Vol. 28 at 1-16.
The district court denied the motion. Id. at 15-16.
After reviewing the record on appeal, we conclude there is no merit to this issue.
During the in-chambers conference on the issue, DEA case agent Karl Nichols directly
refuted, under oath, Skinner’s assertion. Likewise, the lead prosecutor in the case stated to
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the district court: “Judge, at no time did I or anyone at my direction participate in
programming a witness, period.” Id. at 12. The lead prosecutor further stated: “It seems
very likely Skinner fundamentally misunderstood what occurred, or he misperceived what
had happened, and then communicated that to [his counsel], but unequivocally, I didn’t
participate in anything like [Apperson’s counsel] has described . . . .” Id. at 15. In light of
Nichols’ testimony and the statements from the lead prosecutor, neither of which are
seriously refuted by Pickard, we conclude the district court did not abuse its discretion in
denying the request for a mistrial.
c) Improper remarks
Pickard contends the lead prosecutor made improper comments that “had a negative
impact on the jury as to Pickard’s guilt.” Pickard Br. at 77. In particular, Pickard
contends that at one point during trial he left his seat to view an exhibit and the lead
prosecutor, apparently believing Pickard was too close to the jury box, “exclaimed, ‘Get
him the f**k away from the jury!” Id. Pickard also contends that the prosecutor referred
to him “as a schmuck during closing.” Id.
We conclude the district court did not abuse its discretion in denying Pickard’s
request for a mistrial or new trial based upon the first remark. Shortly after the remark
was made by the lead prosecutor, Pickard’s counsel alerted the district court to the remark
and expressed concern that a single juror had overheard it. To resolve the issue, the
district court questioned the juror in chambers. ROA, Vol. 62 at 801. The juror stated she
had not heard the lead prosecutor make any remark. Id. at 802. In light of these facts, we
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conclude that the lead prosecutor’s remarks, though improper, did not impact the fairness
of Pickard’s trial.
As for the second alleged remark, a review of the record on appeal indicates that
Pickard has misconstrued that remark. In denying Pickard’s motion for new trial based
upon this alleged remark, the district court noted that “government’s counsel never
suggested that the defendants were ‘schmucks.’” ROA, Doc. 360 at 62 (order denying
motions for new trial). “Rather, . . . he clearly stated that Pickard ‘was not some public
policy schmuck.’” Id. In other words, the prosecutor “was suggesting that Pickard was
not as he had represented during his testimony but was in fact an experienced and
successful LSD chemist.” Id. at 62-63. In the district court’s view, “[t]he government was
[simply] commenting on the testimony of the defendant, and . . . that it was a fair
comment.” Id. at 63. Further, the district court concluded that, “given the extraordinary
weight of evidence against the defendant, . . . the comment had little prejudicial impact,
even if it was improper.” Id. Importantly, Pickard fails on appeal to challenge the district
court’s conclusions regarding this remark.
d) Withholding of evidence favorable to Pickard
Finally, Pickard contends the prosecution withheld exculpatory evidence from him.
For example, Pickard asserts the prosecution failed to disclose “LSD research reports” and
reports of LSD activity at the Wamego missile base prior to Pickard meeting with Skinner.
Pickard Br. at 74. Likewise, Pickard contends the prosecution “knowingly fail[ed] to
disclose the existence of an extensive video of the alleged LSD laboratory . . . .” Pickard
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Br. at 77. Pickard contends the unedited version of the video “could have been used for
effective cross-examination of government witnesses as it pertained to [the] bounds of the
search [at the missile base] and impeachment of government witnesses.” Id. at 78.
Our review of the record persuades us there is no merit to Pickard’s arguments.
The record indicates that Pickard moved to dismiss the indictment based in part on his
assertions that the prosecution withheld and/or delayed discovery of exculpatory evidence.
ROA, Doc. 322. After conducting a post-trial evidentiary hearing on the motion, the
district court denied it. In doing so, the district court “found no support” for Pickard’s
assertion that exculpatory evidence was withheld. Id. at 3. To the contrary, the district
court concluded “that the government . . . made all the evidence required by Fed. R. Crim.
P. 16, Brady and Giglio available to the defendants.” Id. at 3-4. Notably, Pickard has
again failed to specifically challenge any part of the district court’s ruling, and thus has
failed to establish that the district court abused its discretion in rejecting his assertions of
prosecutorial misconduct.
Denial of motions for judgment of acquittal
Pickard contends the district court erred in denying his motions for judgment of
acquittal. In support of his contention, Pickard asserts that “evidence and testimony
indicating Skinner made LSD and provided money to Pickard establishes reasonable
doubt.” Pickard Br. at 83. We “review[] the sufficiency of the evidence to support a
conviction or the denial of a defendant’s motion for judgment of acquittal de novo.”
United States v. Williams, 376 F.3d 1048, 1051 (10th Cir. 2004). “In doing so, we view
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the evidence in the light most favorable to the government and determine whether a
reasonable jury could have found the defendant guilty of the crime beyond a reasonable
doubt.” Id.
After reviewing the record on appeal, we conclude, as did the district court in
denying Pickard’s motions, that the evidence of Pickard’s guilt on both charges was
overwhelming. Without recounting that evidence in detail, we note that the testimony of
Skinner, combined with the substantial physical evidence, was more than ample to support
the convictions. Although Pickard strenuously attacks the veracity of Skinner’s testimony,
the jury was clearly entitled to, and indeed did, find Skinner to be a credible witness.
Moreover, as previously discussed, there was little, if any, evidence to support Pickard’s
own testimony, and the verdicts indicate that the jury reasonably rejected that testimony as
incredible. Thus, we conclude the district court properly denied Pickard’s motion for
judgment of acquittal.
Cumulative error
Apperson and Pickard contend they are entitled to a new trial due to cumulative
error. Cumulative-error analysis “aggregates all the errors that individually have been
found to be harmless, and therefore not reversible, and it analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they can no longer be
determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.
1990). “Given that no error occurred in this case, we will not reverse on grounds of
cumulative error.” United States v. Muessig, 427 F.3d 856, 866 (10th Cir. 2005).
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Sentencing issues - Apperson
a) Pre-Blakely/Booker sentencing issues
In his original opening brief, which was filed before the issuance of Blakely v.
Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005)16,
Apperson challenged his sentence on three grounds: (1) the district court erred in refusing
“to find that [he] played a minor role in the charged offense,” Apperson Br. at 18; (2) the
district court erred in applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c)
on the grounds that Apperson was a supervisor or organizer; and (3) the district court erred
in applying a two-level enhancement for obstruction of justice. Notably, Booker does not
alter the scope of review we apply to these challenges. See United States v. Wolfe, 435
F.3d 1289, 1295 (10th Cir. 2006). In other words, in analyzing a district court’s
application of the Sentencing Guidelines, we continue to review legal questions de novo
and factual findings for clear error. Id.
We turn first to the district court’s application of a two-level enhancement pursuant
to U.S.S.G. § 3B1.1(c). Generally speaking, § 3B1.1 provides for an enhancement to a
defendant’s base offense level if the defendant played an “aggravating role” in the offense.
In particular, § 3B1.1(c) requires a sentencing court to impose a two-level enhancement
“[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal
activity . . . .” The district court in this case found that “Pickard was clearly the leader and
Apperson was sentenced on November 25, 2003, well before the issuance of
16
Blakely or Booker.
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organizer of this conspiracy” and that Apperson “did not . . . have a status equivalent to
that of Pickard.” ROA, Supp. Vol. 1, Doc. 425 at 2. The district court did, however, find
that Apperson “played a significant role in the LSD operation” and “provide[d] substantial
assistance to Pickard . . . .” Id. Accordingly, the district court concluded that Apperson
was therefore properly characterized “as a manager or supervisor under § 3B1.1(c).” Id.
We conclude the district court did not err in applying the § 3B1.1(c) enhancement.
The evidence presented by the government at trial amply supported the district court’s
finding that Apperson played a significant role in the LSD operation and provided
substantial assistance to Pickard. In particular, that evidence established that Apperson
bore primary responsibility for setting up, maintaining, concealing, and dismantling the
conspiracy’s laboratory equipment and, in that capacity, managed a small group of
“employees.” Apperson also played a role in obtaining precursor chemicals and
laundering money, again often through underlings. Based upon those findings, which
demonstrate that Apperson exercised some degree of control over others involved in the
commission of the offenses, we agree with the district court that a two-level increase was
warranted pursuant to § 3B1.1(c). See United States v. Backas, 901 F.2d 1528, 1530 (10th
Cir. 1990) (holding that § 3B1.1(c) is satisfied upon a showing that the defendant
exercised any degree of direction or control over someone subordinate to him in the
scheme).
In turn, we agree with the district court that Apperson did not play a “minor role” in
the offenses and thus was not entitled to a reduction in his offense level pursuant to §
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3B1.2(b). As the First Circuit noted in United States v. Conley, 156 F.3d 78, 85 (1st Cir.
1998), “an upward adjustment” under § 3B1.1 “is fundamentally inconsistent with
according the same individual, in respect to the same offense, a downward adjustment for
a minor or minimal role . . . .”
Finally, we conclude the district court did not err in imposing a two-level
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. In imposing this
enhancement, the district court found that at a pretrial motions hearing on January 9, 2001,
Apperson filed an affidavit prepared and signed by Pickard alleging that Apperson had no
knowledge of the clandestine LSD operations and had, instead, simply traveled to Kansas
under the guise of moving some innocuous equipment. The district court further found
that Apperson offered the affidavit as an exhibit at trial. Notably, Apperson does not
refute these findings. Instead, he simply contends he was not responsible for Pickard’s
actions and “did not make any conscious attempt to obstruct justice.” Apperson Br. at 70.
We find these arguments unavailing. Instead, we agree with the government that this was
clearly an effort on Apperson’s part to conceal his “relevant conduct within th[e]
conspiracy from the court and the jury,” Govt. Br. at 231, and thus warranted the
enhancement. See U.S.S.G. 3C1.1, comment. (n.4) (listing the “provi[sion of] materially
false information to a judge or magistrate” as an example of obstructive conduct to which
the guideline applies).
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b) Blakely/Booker sentencing issues
Following the issuance of Blakely, Apperson filed a supplemental brief arguing that
the district court violated the principles announced in Blakely by enhancing his sentence
on the basis of the following judicially-found facts: (1) that he was responsible for the
production, distribution, and/or possession of approximately 41 kilograms of LSD, (2) that
he was responsible for the unlawful discharge of hazardous or toxic substances (which
resulted in an enhancement pursuant to U.S.S.G. § 2D1.1(5)(A)), (3) that his role in the
offense was that of a manager or supervisor, and (4) that he engaged in obstruction of
justice. Following the issuance of Booker, Apperson filed a second supplemental brief.
Similar to his first supplemental brief, Apperson argued that he was entitled to
resentencing in light of Booker because the district court had enhanced his sentence on the
basis of these judicially-found facts.
Because Apperson did not assert any Sixth Amendment challenge to the district
court’s findings prior to or at the time of sentencing, we review his arguments for plain
error. See United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). “To establish
plain error, [Apperson] must demonstrate that the district court (1) committed error, (2)
that the error was plain, and (3) that the plain error affected his substantial rights.” Id. “If
all these conditions are met, a court reviewing the error may exercise discretion to correct
it if the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
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The first two prongs of the plain-error test are clearly satisfied in this case. More
specifically, the district court, applying the then-mandatory Guidelines, made several
factual findings by a preponderance of the evidence and then used those findings to
increase Apperson’s sentence beyond the maximum authorized by the facts established by
the jury’s verdict. See id. In light of Booker, it is “clear or obvious” that the district court
erred in doing so. Id.
“The more difficult question is whether the constitutional error[s] in [Apperson’s]
case affect[ed] his substantial rights.” Id. at 1175. “[T]here are at least two ways
[Apperson] can make this showing.” Id. “First, if [he] shows a reasonable probability that
a jury applying a reasonable doubt standard would not have found the same material facts
that [the] judge found by a preponderance of the evidence, then [he would] successfully
demonstrate[] that the error[s] below affected his substantial rights.” Id. “Second, [he]
may show that the district court’s error[s] affected his substantial rights by demonstrating
a reasonable probability that, under the specific facts of his case as analyzed under the
sentencing factors of 18 U.S.C. § 3553(a), the district court judge would reasonably
impose a sentence outside the Guidelines range.” Id. “For example, if during sentencing
the district court expressed its view that [Apperson’s] conduct, based on the record, did not
warrant the minimum Guidelines sentence, this might well be sufficient to conclude that
[Apperson] had shown that the Booker error affected [his] substantial rights.” Id.
Apperson has not attempted to make either of these showings, and our own review
of the record leads us to conclude that neither of these showings can be made. Given the
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strength of the government’s evidence, we are persuaded that a jury applying a reasonable
doubt standard would have found the same material facts that the district court found by a
preponderance of the evidence at the time of sentencing. As for the likelihood of the
district court imposing a lesser sentence, there were no statements on the record by the
district court expressing dissatisfaction with the Guidelines in general or as applied to
Apperson’s case. Moreover, the record can be read as suggesting that the district court
believed it was already being lenient with Apperson in terms of its factual findings,
particularly regarding the quantity of LSD involved in the offenses of conviction, and in
terms of the sentence actually imposed. Thus, there is simply no basis for concluding that
the district court would have imposed a lesser sentence had it had the discretion to do so.
In sum, Apperson cannot satisfy the third prong of the plain-error test, and therefore he is
not entitled to resentencing.
Sentencing issues - Pickard
Pickard raises a number of sentencing-related issues. For the reasons outlined
below, however, we conclude those issues are all moot in light of the fact that Pickard is
subject to mandatory life sentences under 21 U.S.C. § 841(b)(1)(A).
As noted, Pickard was charged with one count of conspiring to manufacture,
distribute and dispense 10 grams or more of a mixture or substance containing a detectable
amount of lysergic acid diethylamide (LSD), in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and one count of possession with intent to distribute and dispense ten
grams or more of a mixture or substance containing a detectable amount of LSD, in
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violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Prior to trial, the government, as
required by 21 U.S.C. § 851, filed an information notifying Pickard that, upon conviction
of either of the two charges against him, he would “be sentenced to increased punishment
by reason of” two prior drug-related convictions, i.e., a 1978 California state conviction
for attempted manufacture of MDA, and a 1992 California state conviction for
manufacturing and selling LSD. ROA, Vol. 2, Doc. 111, at 1. Pickard was subsequently
convicted at trial on both counts. At sentencing, Pickard acknowledged the existence of
his two prior drug-related convictions. ROA, Vol. 91 at 346-47. Accordingly, although
the district court calculated Pickard’s offense level, criminal history, and corresponding
guideline range under the Sentencing Guidelines (which suggested life sentences on both
counts), the court ultimately noted that Pickard, “pursuant to 21 U.S.C. § 841(b)(1)(A),”
was subject “to a mandatory term of life imprisonment on each conviction.” ROA, Doc.
422 at 21.17
We agree with the government that, because Pickard is subject to a mandatory
minimum life sentence under 21 U.S.C. § 841(b)(1)(A), all of Pickard’s challenges to his
sentence are moot. To begin with, the Supreme Court has consistently held, and recently
reaffirmed in Booker, that a prior felony conviction is a sentencing factor and thus does
not need to be pled in the indictment or be decided by a jury. See 125 S.Ct. at 756;
The district court stated that “even if [it] ha[d] erred in the application of one or
17
more of the [sentencing] enhancements so that the defendant’s guideline range would
drop to 360 months to life, [it] would still impose a sentence of life.” ROA, Doc. 422 at
16.
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Almendarez-Torres v. United States, 523 U.S. 224 (1998). In any event, Pickard admitted
in this case the fact of his two prior drug-related convictions. That admission, combined
with the jury’s drug quantity findings, rendered him subject to a mandatory term of life
imprisonment on each of his two counts of conviction pursuant to 21 U.S.C. §
841(b)(1)(A). In turn, any errors on the part of the district court in calculating Pickard’s
offense level and guideline range (e.g., the district court’s drug quantity findings) were
rendered meaningless. See United States v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir.
2005) (concluding, under similar circumstances, that mandatory minimum life sentence
did not violate the Sixth Amendment).
Motion to remand
While these appeals were pending, Pickard filed a motion asking us to remand his
case to the district court so that it could grant him a new trial pursuant to Federal Rule of
Criminal Procedure 33 on the basis of alleged Brady and Giglio violations. Because the
district court has never certified to us its intention to grant Pickard a new trial, we now
deny Pickard’s motion to remand as moot. See United States v. Cronic, 466 U.S. 648, 667
n.42 (1984) (noting that, despite the pendency of an appeal, a district court has jurisdiction
to entertain a motion for new trial and “either deny the motion on the merits, or certify its
intention to grant the motion to the Court of Appeals, which could then entertain a motion
to remand the case.”).
The judgments are AFFIRMED. Defendant Pickard’s motion to remand is
DENIED as moot.
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United States v. Apperson
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-03-28
Citations: 441 F.3d 1162
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