United States v. Todd

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 1, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v. Nos. 05-6127, 05-6252
JARED LEE TODD,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:04-CR-00221-L)

Richard A. Friedman, Appellate Section, Criminal Division, United States
Department of Justice (John C. Richter, United States Attorney, and Edward J.
Kumiega, Assistant United States Attorney with him on the briefs) for Plaintiff-
Appellant.

Joseph L. Wells, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, HENRY, and McCONNELL, Circuit
Judges.

McCONNELL, Circuit Judge.

In these consolidated cases, the government appeals two district court

rulings. The first is the district court’s dismissal of one count of an indictment at
a pretrial suppression hearing, based on the government’s alleged failure to

provide sufficient evidence to support the charge. The second is the district

court’s decision to exclude 680.4 grams of methamphetamine from the drug

quantity calculation at sentencing. We reverse the district court’s dismissal of

one count of the indictment and remand for further proceedings. Because the

district court lacked jurisdiction to proceed with sentencing after the government

filed an appeal, we also vacate the sentence imposed by the district court.

I. Background

Jared Lee Todd came to the attention of Detective Kenneth Russell Park

while Detective Park was investigating the Universal Aryan Brotherhood’s

connection to a methamphetamine laboratory and a shooting that occurred in

March 2004. In connection with his investigation, Detective Park interviewed

Christopher Spindler on September 23, 2004. Spindler said that he obtained

methamphetamine from “Jerry Todd,” that Mr. Todd was being supplied

methamphetamine by Greg Minard, that he had “seen Mr. Todd sell

methamphetamine countless times,” and that Todd was a member of the Universal

Aryan Brotherhood. Suppression Hr’g Tr. 91-92. On November 1, 2004,

Detective Park received information from an anonymous caller that Jared Todd

was selling drugs and that the caller had seen Mr. Todd with a gun. Although

Detective Park never obtained the name of this caller, the caller did leave his

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phone number, which matched the number that registered on Caller I.D. Over the

next week, Detective Park spoke with this anonymous caller at least four times.

Detective Park asked the informant to call him the next time he had information

that Mr. Todd had drugs at his trailer. On November 8, 2004, the anonymous

caller contacted Detective Park to inform him that Mr. Todd was in possession of

four ounces of methamphetamine.

Responding to the information obtained from Spindler and the anonymous

caller, Detective Park and eight police officers from the Oklahoma City Police

Department Special Projects Unit drove to the address given by the informant,

which proved to be a shed and Mr. Todd’s trailer. As Detective Park approached

the shed next to the trailer, he saw three people sitting on a bench inside the shed.

Detective Park identified himself to everyone, and then asked to speak with Mr.

Todd. Mr. Todd agreed to talk with Detective Park and they walked over to

Detective Park’s undercover truck. Mr. Todd then gave Detective Park written

consent to search the premises and waived his Miranda rights.

During the interview, Mr. Todd admitted to distributing methamphetamine

and showed Detective Park a bag which appeared to contain about one ounce of

methamphetamine. He informed Detective Park that during the past year he had

obtained at least two ounces of methamphetamine per month from different drug

sources, although his primary source of supply was Greg Minard. He would then

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redistribute the methamphetamine to other people in smaller quantities, one-half

ounce at the most. He further explained that he contributed to the manufacture of

methamphetamine by purchasing pseudoephedrine and Toulene for Mr. Minard.

Mr. Todd also acknowledged his affiliation with the Universal Aryan

Brotherhood, a nationwide prison gang consisting primarily of white males.

Aside from admitting his involvement in methamphetamine distribution,

Mr. Todd confessed to Detective Park that he had previously possessed a firearm,

namely a 9mm Berretta handgun that he purchased from James Whitfield. Mr.

Todd explained that he had the handgun because he was afraid of several

members of the Universal Aryan Brotherhood. He also told Detective Park about

an incident involving Tracy Brunkin, a fellow member of the Universal Aryan

Brotherhood. Several weeks earlier, Todd and Brunkin had gotten into an

argument and Todd fired a shot at Brunkin, missing him, but making a bullet hole

in the sheet metal fence that ran alongside one edge of Todd’s property. Mr.

Todd showed Detective Park the bullet hole and other agents took photographs of

the hole. Detective Park characterized the bullet hole as being fairly recent and

coming from a small-caliber gun. Based on the picture, a ballistics expert

determined that the bullet hole was fired from a .380, .38, .357 or 9mm handgun.

Todd further explained that he had sold the gun to Angel, another

methamphetamine dealer, because Mr. Todd was concerned that investigators

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were looking into him in connection with the March shooting. While Mr. Todd

was being booked on preliminary charges, he spontaneously volunteered to the

booking officer that he had owned a gun, but had discarded it a few months

before his arrest.

A federal grand jury returned a four-count indictment against Mr. Todd.

He was charged with two substantive counts of possessing methamphetamine with

the intent to distribute, in violation of 21 U.S.C. § 841(a); one count of

conspiracy to distribute more than 50 grams of methamphetamine, in violation of

21 U.S.C. § 846; and one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). Before trial, Mr. Todd filed several motions to

suppress statements and physical evidence obtained during the November 8, 2004

encounter. One of these motions claimed that Mr. Todd’s admission to possessing

a firearm should be suppressed because Mr. Todd made the statements during a

Rule 11 plea discussion and did not voluntarily waive his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). He further argued that because his statement was

the only evidence supporting the firearm possession count, that charge should be

dismissed. In response, the government argued that the statements should not be

suppressed because Mr. Todd voluntarily waived his Miranda rights and the facts

corroborating Mr. Todd’s possession of a firearm ensured that his confession was

reliable.

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 Mr. Todd also moved to dismiss the firearm count, claiming that a public

service announcement sponsored by the United States Attorney’s Office created

an implied amnesty from prosecution for any person who disposed of an illegally

possessed firearm. The government filed a responsive motion opposing his

motion to dismiss and claiming that the public service announcement did not offer

amnesty. The district court held an evidentiary hearing on Mr. Todd’s motion to

suppress and heard argument from counsel on Mr. Todd’s motion to dismiss for

implied amnesty. At the end of the suppression hearing, defense counsel argued,

as he had in the written motion, that the firearm count should be dismissed

because the only evidence to sustain it was Mr. Todd’s inadmissible statements.

The district court denied Mr. Todd’s motion to suppress the statements made to

Detective Park. The court nonetheless granted his motion to dismiss the firearm

count on the ground that the confession was not corroborated by other evidence.

Mr. Todd proceeded to trial on the remaining three counts. Before trial the

court granted a judgment of acquittal under Rule 29(b) of the Federal Rules of

Criminal Procedure on the conspiracy charge. On March 16, 2005, the jury found

Mr. Todd guilty on the remaining two counts of possessing methamphetamine.

On March 21, 2005, the court entered a final order dismissing the firearm count.

On April 11, 2005, the government filed an appeal, pursuant to 18 U.S.C. § 3731,

challenging the dismissal of the firearm count.

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 Despite the pending appeal, the district court ordered the completion of a

Presentence Investigation Report (PSR). The PSR recommended a base offense

level of 32, based on a total of 717.4 grams of methamphetamine, which included

680.4 grams calculated from Mr. Todd’s admission to Detective Park that he

purchased at least two ounces per month from various sources during the year

preceding his arrest. The PSR also recommended a two-level enhancement for

possession of a firearm and a two-level enhancement for the unsafe storage of the

chemicals Todd supplied for use in methamphetamine production. With a total

offense level of 36 and criminal history category V, the PSR recommended a

sentencing range of 292-365 months’ imprisonment.

At the sentencing hearing on July 8, 2005, defense counsel objected to the

PSR’s inclusion of the additional drug quantities, on the grounds that it was

acquitted conduct under the conspiracy count and that sentencing Mr. Todd for

the additional quantity would violate the rule against double jeopardy. Defense

counsel also argued that Mr. Todd did not redistribute methamphetamine, but

rather purchased it for personal use. In response, the government informed the

court that Mr. Todd had admitted to the investigating officer that he sold drugs to

a specific individual, Steven Woolf, and that an independent witness, Spindler,

stated that he had seen Mr. Todd distribute methamphetamine “countless times.”

Tr. Sent. Hr’g 24. The district court concluded that the drug quantity calculation

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should include only the 37 grams of methamphetamine actually seized from Mr.

Todd. In rejecting the PSR’s recommendation, the district court stated:

[T]his is a unique situation where the Court has had the opportunity,
through both the pretrial hearings and the trial, to hear all of the
evidence, and the Court finds that . . . there is not a preponderance of
the evidence to support the amount of methamphetamine to support a
base level offense of 32, but, rather, based upon both the evidence
and the jury’s findings, the Court finds that the amount of drugs that
should be attributable to Mr. Todd are 37 grams, which would create
a base level of 22 . . . .

Tr. Sent. Hr’g 26-27. A base offense level of 22 corresponded to a guidelines

range of 77 to 96 months, and the court imposed a sentence of 86 months’

imprisonment, finding that such a sentence was reasonable in light of the

evidence. On July 15, 2005, the district court entered an order of Judgment and

Commitment. The government filed an appeal to challenge Mr. Todd’s sentence

on August 5, 2005.

II. Discussion

A. Dismissal of the Firearm Count

1. Preservation of the Issue

The government contends that it was erroneous for the district court to

determine at a pretrial suppression hearing that Mr. Todd’s admission to

possessing the firearm was insufficiently corroborated and to dismiss the charge.

The government preserved this issue for appeal by objecting to Mr. Todd’s

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request for dismissal in the government’s responsive motions to Mr. Todd’s

motion to dismiss and motion to suppress.

Mr. Todd argues that the government “has waived the issue of the correct

timing of the district court’s dismissal of the count by failing to raise the

objection to the timing of the dismissal below.” No. 05-6127, Appellee Br. 6. To

the extent the government’s argument is based on the “correct timing” of the

district court’s dismissal decision – for example, a complaint of unfair surprise –

we agree. Such a complaint could have been cured by a timely objection. But the

government’s appeal in this case extends beyond issues of timing, to the

substance of the district court’s dismissal order. That issue was preserved by the

government’s objection to the Defendant’s motion to dismiss.

We note also that the district court’s decision to dismiss for lack of

corroborating evidence was made on its own, without motion by the Defendant.

When a “district court sua sponte raises and explicitly resolves an issue of law on

the merits, the appellant may challenge that ruling on appeal on the ground

addressed by the district court even if he failed to raise the issue in district court.”

United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003). In

such cases, we use “the same standard of appellate review that would be

applicable if the appellant had properly raised the issue.” Id.

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 Although Mr. Todd filed two motions related to the firearm possession

charge, neither motion sought dismissal for lack of corroboration. Mr. Todd’s

first motion was a motion to suppress his statement to Detective Park regarding

possession of the firearm. As a corollary to the suppression motion, and because

“[t]he only evidence concerning Mr. Todd’s possession of a gun came from his

own statement,” Mr. Todd also asked the district court to dismiss the firearm

charge. Doc. 18, Mot. to Suppress Statements with Brief in Support 5. Mr. Todd

did not argue that dismissal would be warranted even if his statement was not

excluded. Mr. Todd’s second motion was a motion to dismiss the firearm charge

on the ground that public service announcements implied amnesty for felons who

discarded their firearms.

Mr. Todd’s arguments at the hearing mirrored those made in his pre-hearing

motions. Defense counsel argued that the firearm charge should be dismissed

because the only evidence supporting the charge was Mr. Todd’s own admission,

which defense counsel claimed was inadmissible both under Miranda and because

it was a statement made during a plea agreement. Counsel argued that the charge

should be dismissed because the only evidence supporting it was

inadmissible—not that the charge should be dismissed even if Mr. Todd’s

statement was admitted. Mr. Todd’s request for dismissal was specifically

contingent on the district court suppressing his statement.

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 The district court denied Mr. Todd’s motion to suppress his statement, but

nonetheless dismissed the firearm charge because Mr. Todd’s statements,

although admissible, were not corroborated. See Suppression Hr’g Tr. 268

(“[T]he prosecution, in addition to the confession or admission, must produce

substantial independent evidence of the essential elements of the crime charged

which will tend to establish the trustworthiness of the statements made by the

accused.”). Thus, the district court acted sua sponte in deciding to dismiss the

charge for failure to corroborate Mr. Todd’s admission. Accordingly, even if the

government’s objection to dismissal of the count were not sufficient to preserve

the issue, the government would still be entitled to appeal.

2. Merits of the Dismissal

We review the sufficiency of an indictment de novo, United States v. Avery,

295 F.3d 1158, 1173-74 (10th Cir. 2002), but we review the district court’s

dismissal of an indictment for an abuse of discretion. United States v. Wood, 6

F.3d 692, 694 (10th Cir. 1993). “An indictment is sufficient if it sets forth the

elements of the offense charged, puts the defendant on fair notice of the charges

against which he must defend, and enables the defendant to assert a double

jeopardy defense.” United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.

1997). Challenging an indictment is not a means of testing the strength or

weakness of the government’s case, or the sufficiency of the government’s

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evidence. United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994). Rather,

“[a]n indictment should be tested solely on the basis of the allegations made on its

face, and such allegations are to be taken as true.” Id. See also United States v.

Sampson, 371 U.S. 75, 78-79 (1962) (finding it irrelevant that charges had not

been established by evidence, because at a motion to dismiss “the indictment must

be tested by its sufficiency to charge an offense”). Courts should therefore avoid

considering evidence outside the indictment when testing the indictment’s legal

sufficiency. Hall, 20 F.3d at 1087.

Count Two of the Superseding Indictment charged Mr. Todd with
unlawfully and knowingly after having been previously convicted of a
crime punishable by imprisonment for a term exceeding one year,
possess[ing] one 9mm Beretta handgun, which was in and affected
interstate commerce, as this firearm had previously crossed state lines to
enter the State of Oklahoma.

All in violation of Title 18, United States Code, Section 922(g)(1); the
penalty for which is found in Title 18, United States Code, Section
924(a)(2).

Superseding Indictment 3. The statute Mr. Todd was charged with violating

provides:

It shall be unlawful for any person . . . (2) who is a fugitive from
justice . . . to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.

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18 U.S.C. § 922(g). The charges contained in Count 2 of the Superseding

Indictment satisfied the requirements of the criminal statute. According to the

allegations in the indictment, Mr. Todd possessed a firearm, namely a 9mm

Beretta handgun, that had previously traveled in interstate commerce. These

allegations, if proved, are sufficient to establish a violation of section 922(g)(2).

The indictment also notified Mr. Todd of the crime for which he was being

charged and permitted him to know whether he had a double jeopardy defense.

The firearm count in the indictment was therefore legally sufficient.

Nonetheless, the district court dismissed the indictment because there was

insufficient factual support for the charge. That was not the proper inquiry. On a

motion to dismiss an indictment, the question is not whether the government has

presented sufficient evidence to support the charge, but solely whether the

allegations in the indictment, if true, are sufficient to establish a violation of the

charged offense. Sampson, 371 U.S. at 78-79; Hall, 20 F.3d at 1087. For the

most part, that question does not involve any examination of the evidence.

In “limited circumstances,” however, this Court has held that a district

court may “dismiss charges at the pretrial stage . . . where the operative facts are

undisputed and the government fails to object to the district court’s consideration

of those undisputed facts in making the determination regarding a submissible

case.” Hall, 20 F.3d at 1088. Pretrial dismissal based on undisputed facts is a

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determination that “as a matter of law, the government is incapable of proving its

case beyond a reasonable doubt.” Id. Dismissal in this manner is the “rare

exception,” not the rule. Id. Dismissals under this exception are not made on

account of a lack of evidence to support the government’s case, but because

undisputed evidence shows that, as a matter of law, the Defendant could not have

committed the offense for which he was indicted.

For example, in Hall, 20 F.3d at 1085-86, the defendant offered undisputed

evidence that he was not present when drugs, drug paraphernalia, and a pistol

were found in his home. The defendant therefore established that he could not, as

a matter of law, be charged with knowingly using or carrying a pistol during and

in relation to a drug-trafficking offense. Id. at 1088. Similarly, in Wood, 6 F.3d

at 694-95, the defendant offered undisputed evidence leading to the conclusion

that FBI agents were working on behalf of the grand jury. As a result, the

defendant could not be prosecuted for making a false statement to an FBI agent,

because the “judicial function” exception applied to his case. Id. at 695. The

obstruction of justice charge in Wood was also inadequate as a matter of law

because the undisputed facts showed that the FBI did not terminate their

investigation based on the defendant’s false, self-serving, exculpatory statements,

and therefore the statements “did not have the natural and probable effect of

impeding the due administration of justice.” Id. at 697. In United States v.

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Brown, 925 F.2d 1301, 1305 (10th Cir. 1991), the government admitted in an

evidentiary hearing that it could not provide evidence demonstrating that stolen

intellectual property involved physical goods that were themselves stolen.

Because prosecution under the statute required such a showing, we upheld the

district court’s decision that the indictment was insufficient as a matter of law.

Id. at 1308-09.

That exception is inapplicable here. Mr. Todd specifically admitted to both

Detective Park and a booking officer that he had previously possessed a firearm.

Mr. Todd showed Detective Park a bullet hole in the sheet metal fence caused

when he fired a shot at Tracy Brunkin. Whether or not this evidence, standing

alone, was sufficient to convict, it does not demonstrate, as a matter of law, that

Mr. Todd could not have committed the crime. The district court therefore

abused its discretion in dismissing the count.

B. Sentencing Challenge

In the second appeal, case number 05-6252, the government contends that

the district court erred in concluding that there was not a preponderance of

evidence to support a finding that Mr. Todd possessed a total of 717.4 grams of

methamphetamine. Because the district court was without jurisdiction to proceed

with the case after the government filed a timely notice of appeal, we must set

aside the district court’s sentence without considering the government’s claim.

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 The government’s notice of appeal was filed on April 11, 2005. The appeal

was filed pursuant to 18 U.S.C. § 3731, which provides:

In a criminal case an appeal by the United States shall lie to a court
of appeals from a decision, judgment, or order of a district court
dismissing an indictment or information or granting a new trial after
verdict or judgment, as to any one or more counts, or any part
thereof, except that no appeal shall lie where the double jeopardy
clause of the United States Constitution prohibits further prosecution.

18 U.S.C. § 3731. Filing of a timely notice of appeal under § 3731 “divests the

trial court of jurisdiction and confers jurisdiction on the court of appeals.” United

States v. Mavrokordatos, 933 F.2d 843, 846 (10th Cir. 1991). Accordingly, this

Court will set aside any action taken by a trial court after the government files a

timely notice of appeal under § 3731. See id. at 848. Because the district court

was divested of jurisdiction on April 11, 2005 and remained without jurisdiction

until the completion of this appeal, the district court had no jurisdiction to hold a

sentencing hearing or issue an order of Judgment and Commitment in July 2005.

III. Conclusion

For the reasons stated above, we reverse the district court’s dismissal of the

firearm count, reinstate the charge against Mr. Todd for possession of a firearm,

and remand for further proceedings. We also vacate the sentence imposed by the

district court as it lacked jurisdiction to proceed with sentencing after the

government filed an appeal, and remand for resentencing.

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