United States v. Mills

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 19 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 98-1378
STEVEN MILLS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 97-CR-346-D)

Submitted on the briefs: *

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal
Public Defender, Denver, Colorado.

Jessica Dunsay Silver and Louis E. Peraertz, Department of Justice, Washington,
D.C.

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
ANDERSON , Circuit Judge.

Following a jury trial, Stephen S. Mills was convicted of depriving a

federal prisoner of his Eighth Amendment right to be free from cruel and unusual

punishment, in violation of 18 U.S.C. § 242. On appeal, Mills contends the

district court erred by: (1) admitting a videotape as evidence; (2) refusing to

permit certain sidebar conferences and overruling certain objections as untimely;

and (3) increasing his sentence for obstruction of justice. Mills also contends that

he received ineffective assistance of counsel due to his counsel’s failure to move

for a downward departure based on Mills’ former status as a corrections officer.

We affirm.

BACKGROUND

According to the trial testimony, on February 15, 1996, at the United States

Penitentiary in Florence, Colorado, various official escort teams were moving

inmates from their cells to a conference room in order to conduct individual

interviews about an inmate stabbing which had occurred the previous day. As

part of the warden’s program to curtail a problem with prison guards beating

inmates, each escort team was required to designate a team member to videotape

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the inmate escort. At that time, Mills was employed as an inmate counselor at the

penitentiary.

A team of four correctional officers was assigned to escort inmates from

the Delta A unit, with the most junior officer designated to videotape the escorts.

When the escort team approached the cell of inmate Fred Davis, Mills was already

in the cell speaking to Davis. The junior officer began taping as Davis was

ordered to “cuff-up” for the move. When Davis did not comply, a brief fight

ensued, during which the three senior members of the escort team entered the cell,

restrained Davis facedown on the floor, and handcuffed him with his hands

behind his back. As soon as Davis was handcuffed, Mills assaulted him—first by

jumping on Davis’ head and shoulder area, and then by beating Davis with his

fists. Meanwhile, concerned that the inmate had not arrived for the interview, the

unit manager approached the cell to check on the transfer. When he observed

Mills beating Davis, he ordered him to stop, and he ordered the escort team to

take Davis to the hospital. The escort team then pulled Davis up and moved him

out of the cell.

Mills was subsequently charged with acting under color of law to willfully

deprive Davis of his Eighth Amendment rights and causing bodily injury, in

violation of 18 U.S.C. § 242. At trial, two of the senior escort team members, as

well as the junior officer in charge of taping, testified that they witnessed Mills

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beating Davis after Davis was restrained on the floor, handcuffed, and no longer

posed any threat. R. Vol. V at 210-13, 262-64; R. Vol. VIII at 331. The unit

manager also testified that he witnessed Mills beating Davis under the same

circumstances. R. Vol. VIII at 299-301. The fourth escort team member claimed

his back was turned during the critical period, and therefore he did not see the

complained-of assault. Id. at 426, 430, 439, 451. The videotape was admitted

into evidence, although it did not show the assault. Instead, the tape showed only

the initial arrival at the cell and the subsequent escort down the hall from the cell

with Davis handcuffed. The digital time designation which appeared on the tape

displayed a time gap between the recorded arrival and the exit down the hall,

indicating a five minute interval for which no recorded images existed.

The junior officer testified that the camera had been working properly, and

that he had accurately recorded the entire assault. However, immediately after the

incident, as the other team members were moving down the hall, Mills ordered

him to hand over the camera. R. Vol. V at 218. Although the officer denied

knowing exactly what Mills did when he took the camera, two other officers

heard Mills say that he was rewinding the tape, and another escort team officer

admitted that Mills later said he rewound the tape to do away with the kicking. R.

Vol. VIII at 345, 357, 452-53. After rewinding the tape, Mills returned the

camera to the junior officer and told him to begin filming again from that point.

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The officer complied by filming the escort down the hall. Later in the day, Mills

again approached the junior officer, and advised him that, if he should ever

encounter a similar situation, he should not accurately film the event. R. Vol. V

at 226. At trial, the junior officer identified the admitted videotape as the one

which he recorded, although he noted that the beating incident had apparently

been recorded over.

DISCUSSION

A. Admission of the Videotape

Mills contends that the district court erred by admitting the videotape into

evidence. We review the trial court’s admission of evidence for abuse of

discretion. United States v. Green , 175 F.3d 822, 833 (10th Cir. 1999).

When proffered evidence has distinctive characteristics which make it

unique, readily identifiable, and relatively resistant to change, its foundation for

admission may be established by testimony that the evidence is what its proponent

claims it to be. Fed. R. Evid. 901; United States v. Johnson , 977 F.2d 1360, 1367

(10th Cir. 1992); United States v. Cardenas , 864 F.2d 1528, 1531 (10th Cir.

1989); see also United States v. McIntyre , 836 F.2d 467, 470 (10th Cir. 1987)

(noting the proper admissibility of an audiotape “where a witness who heard the

statements also testifies and the recording gives independent support to his

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testimony”). In this case, the officer responsible for filming the escort testified as

to the authenticity of the tape, and he confirmed that, except for the deleted

portion, it accurately depicted the entire episode. Moreover, the independent date

and time information which appears on the tape provides further indication of the

tape’s reliability.

Nonetheless, Mills argues the tape should not have been admitted because

no chain of custody was established, and because it had clearly been tampered

with. In response, the government readily concedes that a portion of the tape had

been recorded over. However, it correctly notes that the resulting deletion did not

affect the accuracy of the remaining images, including the clear indication that

some of the event was missing. Therefore, except for the obvious deletion, the

evidence is “readily identifiable,” “with sufficient completeness to render it

improbable that the original item has either been exchanged with another or been

contaminated or tampered with.” Cardenas , 864 F.2d at 1531. In such

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circumstances, the proponent need not establish chain of custody. 1
Id.

Accordingly, we find no error in the district court’s admission of the videotape.

B. Rulings on Requested Sidebars and Objections

Mills next complains about the district court’s refusal to conduct four

requested sidebars, and he also contends that the court’s announcement of an

automatic no sidebar rule constitutes a clear abuse of discretion.

We review the district court’s control of its trial proceedings for abuse of

discretion. United States v. Hanif , 1 F.3d 998, 1002 (10th Cir. 1993). Under this

deferential standard, we will not overturn the district court’s directions regarding

the presentation of evidence absent a manifest injustice to the parties. Strickland

Tower Maintenance, Inc. v. AT & T Communications, Inc. , 128 F.3d 1422, 1430

(10th Cir. 1997) (finding no abuse of discretion in the court’s decision to time-

limit the presentation of evidence in the interest of judicial administration).

Moreover, “[f]laws in the chain of custody go to the weight of the
1

evidence, but will not preclude admissibility.” United States v. Washington, 11
F.3d 1510, 1514 (10th Cir. 1993). Thus, Mills’ argument, that a chain of custody
was necessary to prove that it was he who tampered with the tape, simply does not
go to admissibility in the first instance. Furthermore, the bald assertion that
others might have been responsible for the deletion ignores the overwhelming,
uncontradicted evidence that Mills deliberately rewound the tape so that the
beating would be recorded over.

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 Notably, each of the four refusals to hold a sidebar which Mills criticizes

relates to government requests following the court’s overruling of government

objections. Despite the fact that these rulings ostensibly favored his defense,

Mills nonetheless contends that the court’s actions actually caused a manifest

injustice to him. Thus, he argues that the government’s requests for sidebars,

which contained references to prior in limine proceedings, suggested inadmissible

evidence to the jury. In particular, Mills decries the possibility that the denied

requests might have suggested his counsel was either incompetent or unethical.

Given the court’s favorable treatment vis à vis Mills in these instances, we

disagree. Additionally, we disagree with Mills’ interpretation that one of the

court’s statements constituted an absolute bar to sidebars. 2
Accordingly, we

At the beginning of the third and final day of trial, counsel were meeting
2

with the court to go over instructions. Prior to calling in the jury and resuming
with the defense’s presentation of its last witness, the court asked the parties if
they had any matters to discuss before continuing:

The reason I’m saying this firmly is I don’t like to interrupt jury
trials, so if you know of something you might raise, of a[n]
evidentiary issue, out of the routine, I’m not talking about objections,
raise them now and don’t ask for any sidebars because I’m not going
to accommodate you; we’re going to finish this trial without
interruptions unless something comes up out of the ordinary.

R. Vol. XI at 477. A clear reading of the court’s statement indicates its
reasonable desire to have the parties present their cases in an orderly fashion.
Moreover, the court’s direction explicitly provides for its contemporaneous
hearing of any unanticipated, extraordinary requests.

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conclude that the court properly exercised its discretion to control the trial

without “needless consumption of time.” See Fed. R. Evid. 611(a); Strickland

Tower Maintenance , 128 F.3d at 1430.

Mills also claims the district court improperly overruled objections on four

occasions. As to the two rulings which involve Mills’ own objections, 3
the

objections came immediately after the witness responded, and the court overruled

both as untimely.

We will uphold the district court’s rulings on properly made objections

unless the court abused its discretion, and caused “manifest injustice to the

parties.” Angelo v. Armstrong World Indus., Inc. , 11 F.3d 957, 960 (10th Cir

1993) ( quoting Comcoa, Inc. v. NEC Tel., Inc. , 931 F.2d 655, 663 (10th Cir.

1991)). That is, under Fed. R. Evid. 103(a), “[e]rror may not be predicated upon

a ruling which admits or excludes evidence unless a substantial right of the party

is affected.” When objections are not timely made, we review only for plain

error. See Angelo , 11 F.3d at 960. As a threshold matter, we note that our

standard of review is governed by the determination of whether or not the

objections were in fact timely. However, in this case, we would reach the same

3
We note that the first two rulings about which Mills complains concern
objections made by the government. Since Mills’ substantial rights could not
have been affected by the court’s allowing him to present evidence over the
government’s objection, we do not address those rulings. See discussion infra.

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conclusion under either standard. Therefore, we assume, without deciding, that

the objections were timely, and that they properly preserved the issue for appeal

under an abuse of discretion standard.

Of the two defense objections, the first was a hearsay objection; the second

appears to be based on a lack of foundation. In the first instance, the witness

initially claimed that Mills had not made a certain statement directly to him. 4

Immediately after the court overruled Mills’ hearsay objection, the government

referred the witness to his earlier grand jury testimony. R. Vol. VIII at 431-32.

According to the transcript of the grand jury proceedings, the witness had

previously testified that Mills had told him the video made him look like he was

bouncing on a trampoline. In response to the grand jury transcript, the witness

Mills made his hearsay objection during the government’s cross-
4

examination of Officer Jesse Weiser, in the following context:

Q. In fact, he [Mills] told you that when he looked at what he did on
the video camera, it looked like someone bounce bouncing on a
trampoline?

A. He didn’t tell me that, sir. No, sir. He told Barker that who told
me that. That was during a phone conversation in the gym.

DEFENSE COUNSEL: Your Honor, I object, hearsay.

THE COURT: Overruled. Overruled. The objection is after the
witness has already uttered the answer. That’s why.

R. Vol. VIII at 431.

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admitted that he had told the truth in his grand jury testimony, and that his

memory of the relevant conversations was probably better at the time of the

earlier testimony. Id. at 433-34. Moreover, in subsequent redirect, defense

counsel incorporated Mills’ statement to the witness, again casting it as a direct

rather than a hearsay statement. Id. at 457. Accordingly, as both the witness and

defense counsel conceded that Mills made the statement directly to the witness,

we find no error in the court’s admitting it over Mills’ hearsay objection.

Mills also complains that the court erred in overruling his objection to a

question concerning a witness’s knowledge as to whether the assault was

videotaped. 5
Significantly, Mills’ objection came after several questions and

answers had fully established that the witness, as the senior correctional officer

Again, the objection occurred during the government’s cross-examination
5

of Officer Weiser:

Q. And as far as you know, the incident was videotaped, correct?

A. Yes, sir.

DEFENSE COUNSEL: Your Honor. I was going to object that he
has no knowledge of the actual workings of the camera. He was not
running the camera at the time. He doesn’t know whether it was
taping or not.

THE COURT: The witness has already answered. Objection
overruled.

R. Vol. VIII at 444.

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on the escort team, took personal responsibility to make sure that the Davis

transfer was filmed. Id. at 404 (“I motioned to [the junior officer] to make sure

he filmed the event.”). Additionally, the witness testified regarding his

familiarity with the filming, including his having instructed the junior officer in

operating the camera. Id. at 442. The witness also testified that he was involved

in testing the camera and in making sure the battery they used was properly

charged. Id. at 444. Furthermore, the witness’s testimony regarding the assault

clearly indicates that, to his knowledge, the camera was working, since even

before the unit manager arrived, he twice advised Mills to cease hitting Davis,

saying, “Quit it, there’s a camera,” and “Quit it, Mills, there’s a damn camera up

there.” Id. at 439-41. Finally, the witness testified that Mills later informed him

that the assault had been recorded, and that it showed Mills jumping on or kicking

Davis. Id. at 453. Under the circumstances, the government had established a

proper foundation for the witness’s knowledge, and the evidence was therefore

admissible.

C. Enhancement for Obstruction of Justice

As his third claim of error, Mills contends that the district court erred by

increasing his sentence for obstruction of justice under U.S.S.G. § 3C1.1. Mills

claims that the court erred because: (1) the government never proved that Mills

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was responsible for destroying the video record of the assault; and 2) the

destruction occurred prior to any investigation.

Sentencing Guideline § 3C1.1 instructs the district court to increase the

offense level by two levels, if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during the course of

the investigation . . . of the instant offense of conviction, and . . . the obstructive

conduct related to . . . the defendant’s offense of conviction and any relevant

conduct.” According to the commentary, the enhancement applies to “destroying

or concealing . . . evidence that is material to an official investigation.” See

U.S.S.G. § 3C1.1 comment. (n.4(d)) (formerly designated as n.3(d), renumbered

as 4(d) by Guideline amendment 581, effective Nov. 1, 1998).

We have already detailed the compelling evidence that Mills tampered with

the videotape so as to erase the recorded assault. Inasmuch as the facts necessary

to support an obstruction of justice enhancement need be proven only by a

preponderance of the evidence, see United States v. Pelliere , 57 F.3d 936, 938

(10th Cir. 1995), we find no merit in Mills’ assertion that the evidence was

insufficient to support the sentencing court’s finding.

Mills also argues that the tape’s destruction occurred prior to the

investigation, and therefore does not trigger the enhancement. “As a threshold

limitation, § 3C1.1 requires a nexus between the allegedly obstructive conduct

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and the instant offense.” United States v. Norman , 129 F.3d 1393, 1399 (10th

Cir. 1997). “Obstructive conduct undertaken prior to an investigation, . . . prior

to any indication of an impending investigation, . . . or as regards a completely

unrelated offense, does not fulfill this nexus requirement.” United States v.

Gacnik , 50 F.3d 848, 852 (10th Cir. 1995). In this case, the very purpose of

taping was to assist the warden in his official program to curtail unlawful

beatings. Clearly, Mills knew that an investigation would be conducted, and he

understood the importance of the tape in that investigation. We have previously

held such awareness of an impending investigation is sufficient to satisfy the

nexus requirement so as to warrant enhancement. 6
Norman , 129 F.3d at 1399.

Accordingly, the court did not err in applying the enhancement.

D. Ineffective Assistance of Counsel

As his final claim, Mills argues that his counsel was ineffective. Although

he recognizes our general policy against hearing such arguments on direct appeal,

see United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995), he argues

We observe that Note 4(d) excepts conduct which occurs
6

contemporaneously with arrest, such as swallowing or throwing away a controlled
substance. U.S.S.G. § 3C1.1, comment. (n.4(d)). Mills does not argue that his
actions were contemporaneous with arrest, nor do the facts support such an
argument. Therefore, we need not consider whether the destruction of official
documentation of a crime would be properly subject to such an exception.

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that his is the rare case that needs no further factual development. Appellant’s

Br. at 29 (citing Galloway , 56 F.3d at 1242). We disagree.

At sentencing, Mills’ trial counsel argued for a departure based upon the

facts that (1) prior to his assault on Davis, a prison gang had put a contract out on

Mills’ life; 7
(2) Mills had been suffering from severe depression at the time he

assaulted Davis; (3) Mills had an otherwise unblemished work record; and

(4) Mills was the sole caretaker of elderly, sick parents. R. Vol. XIII at 22-23.

On appeal, Mills claims that his counsel was ineffective because his cited factors

failed to call the court’s attention to Koon v. United States , 518 U.S. 81 (1996),

and Mills’ status as a former corrections officer. 8

Notably, in Koon , the district court’s decision to depart was based on a

unique combination of factors. On certiorari, the Supreme Court found that the

district court had discretion to consider both the fact that the emotional outrage

produced by “[t]he extraordinary notoriety and national media coverage of this

case, coupled with the defendants’ status as police officers,” made the defendants

particularly susceptible to prison abuse, and the fact that “federal conviction

7
The record contains no evidence supporting counsel’s statement of this
fact.

We note that the probation officer had already advised the court of the
8

possibility of a departure based upon aberration of the defendant’s normal
conduct and the defendant’s history, provided that the court found those factors
sufficient to “meet the elements outlined by the Supreme Court” in Koon v.
United States. Presentence Investigation Report, R. Vol. XV at Part E, ¶ 71.

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following a state acquittal based on the same underlying conduct . . . significantly

burden[ed] the defendants.” 9
Koon , 518 U.S. at 112 (alteration in original)

(quoting United States v. Koon , 833 F. Supp. 769, 785-786, 788, 790 (C.D. Cal.

1993)). Thus, the Court approved the district court’s consideration of those

factors as outside the heartland for § 242 offenses. Id.

By contrast, the record before us indicates that Mills’ counsel also argued

for departure based on a combination of factors, but the district court found “no

reason to depart.” R. Vol. XIII at 36. However, the court did impose the lowest

possible sentence in the applicable range. Moreover, it “strongly recommend[ed]”

that Mills be incarcerated in a state, rather than a federal, facility in order to

lessen the potential that inmates would seek revenge against “a former correction

official who has been convicted of beating a prisoner.” Id. at 36-39.

Mills argues that the court’s concern clearly indicates it would have

departed if his counsel had argued the elements which the Supreme Court

approved in Koon and his status as a corrections official. We disagree. On this

record, we simply cannot determine whether a more specific defense reference to

9
The district court specifically noted that it would be hesitant to depart
based solely upon vulnerability to prison abuse. However, it determined that
factor, in combination with the multiple adversarial proceedings, was sufficient to
warrant departure. See Koon, 518 U.S. at 113-14 (noting the district court’s
reliance on the combination of factors (which appears in the district court’s
opinion, United States v. Koon, 833 F. Supp. 769, 888-89 (C.D. Cal. 1993))).

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Koon would have altered the district court’s decision. See Strickland v.

Washington , 466 U. S. 668, 688 (1984) (requiring a finding that counsel’s

performance was deficient and that the defendant was prejudiced thereby).

Accordingly, we decline to review Mills’ ineffectiveness claim in this direct

appeal.

AFFIRMED.

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