United States v. Sinks

F I L E D
United States Court of Appeals
Tenth Circuit

January 23, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-2170

CA LV IN D. SINKS,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. 03-CR-777-BB)

Vicki M andell-King, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public D efender, with her on the briefs), O ffice of the Federal Public
Defender, District of Colorado and Wyoming, Denver, Colorado, for the
Defendant-Appellant.

David N. W illiams, Assistant U.S. Attorney (David C. Iglesias, with him on the
brief), Office of the United States Attorney, District of New M exico,
Albuquerque, New M exico, for the Plaintiff-Appellee

Before L UC ER O, Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and
HA RTZ, Circuit Judge.

L UC ER O, Circuit Judge.
 Calvin Sinks appeals his convictions and sentence for knowingly

possessing stolen explosive materials in violation of 18 U.S.C. §§ 842(h) and

844(a), and being a felon in possession of explosives in violation of 18 U.S.C.

§§ 842(i) and 844(a). Following the Supreme Court’s decision in United States v.

Cotton, 535 U.S. 625, 631 (2002), we consider whether appellants challenging

their indictments for failure to charge an offense waive their claims by failing to

object before trial. W e conclude they do not; however, such appellants receive

only plain error review when they raise this argument for the first time on appeal.

To the extent that United States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001)

(en banc), held otherwise, it has been overruled by Cotton. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we AFFIRM .

I

On February 12, 2003, Sinks was stopped by M oriarty, New M exico Police

Officer Craig Davis for running a stop sign. He was driving a 1974 Ford flatbed

pickup truck that Officer Davis described as “pretty-well beat up.” Instead of

pulling over to the shoulder of the road, Sinks stopped the truck in the center

median. Sinks smelled of alcohol and was unable to provide Officer Davis with a

driver’s license, proof of insurance, or the vehicle’s registration. W hen Officer

Davis contacted his dispatch, he learned that the vehicle was not registered in

Sinks’ name, but had not been reported stolen. Sinks explained that he recently

purchased the truck from “some ol’ boy for a couple of hundred dollars,” but he

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did not have a bill of sale. After Sinks failed a consensual field sobriety test,

Officer Davis arrested him for driving under the influence of alcohol and began

inspecting the vehicle. Officer Davis could not find the keys to the ignition, but

Sinks explained that he had hotwired the truck after losing the keys.

Although Sinks w as not the vehicle’s registered owner, and was unable to

provide proof of insurance, a driver’s license, the vehicle’s registration, or the

keys to the ignition, O fficer D avis never suspected that the truck was stolen. H e

initiated the impound process and began filling out the impound inventory form.

The passenger side of the truck’s cab was piled high with clothing and sleeping

bags, while various tools filled the bed of the truck. As the only officer on duty

in M oriarty that night, Officer Davis did not attempt to catalogue every item in

the vehicle. Instead, he summarized the contents as “clothing, sleeping bags,

tools” on the inventory form. He also noted that the vehicle could be released

from impound upon proof of ownership. Daniel Brick, an employee of

Tavenner’s Towing, arrived on the scene shortly thereafter and towed the truck to

Tavenner’s impound yard. Sinks was taken to the M oriarty police station for

booking, then placed in the correctional holding facility in Estancia, New M exico.

On M arch 6, 2003, after being released from custody, Sinks visited the

impound yard. Although he had neither proof of ownership nor enough money to

pay the impound fee, Brick allowed him to retrieve his personal belongings from

the truck. As he watched Sinks sort through the clothing in the cab, it appeared to

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Brick that Sinks was trying to cover up something in the vehicle. Sinks removed

only one light jacket from the truck.

His suspicions piqued, Brick returned to the impound lot two days later and

inspected the truck. W hile smoking a cigarette, Brick opened a box labeled “High

Explosives - Dangerous” that he found buried under the pile of clothes and

sleeping bags in the cab. Inside the box were 111 sticks of dynamite. Several of

the sticks were taped together with wires protruding from the top of the bundle,

while others had what appeared to Brick to be sparklers sticking out of them.

Brick called the police, and the dynamite was safely removed by a bomb squad

two days later.

The N ew M exico Police eventually contacted the owner of the truck, Curt

W ells. W ells informed police that the truck had been stolen from his ranch in

Arizona, along with the tools, the clothing, and the dynamite. An employee of

W ells had purchased the dynamite approximately ten years earlier in W inona,

Arizona in order to blast post-holes. After completing the project, W ells stored

the explosives in a locked steel box in a bunkhouse at his ranch.

Sinks w as charged with knowingly possessing stolen explosive materials in

violation of 18 U.S.C. §§ 842(h) and 844(a) (“Count One”), and being a felon in

possession of explosives in violation of 18 U.S.C. §§ 842(i) and 844(a) (“Count

Two”). Prior to trial, Sinks filed a motion in limine to exclude any testimony

about an “improvised explosive device.” The government responded that they

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would not discuss any “improvised explosive device,” but would attempt to

introduce photographs showing the dynamite wrapped in tape with protruding

wires, as well as testimony on the protective steps taken by the bomb squad. The

district court ruled that it would admit the photographs, but reserved judgment on

whether the bomb squad testimony would be admissible.

At trial, M ichael Avilucea, the New M exico State Police Bomb

Commander, testified that he was called about the dynamite on M arch 8, 2003.

As he explained the procedures he followed in his investigation, he began to

describe what he saw in the dynamite box. He stated he “saw some electrical

wiring and some other components, which led me to believe that possibly this

case of dynamite–” at which point Sinks objected. The prosecutor instructed

Avilucea not to mention explosive devices and the judge instructed the jury to

disregard his partial answ er. Avilucea then testified, over Sinks’ objection, that a

member of his crew wore a protective bomb suit, and that they “continued to

check the vehicle for any other incendiary devices or other components or

explosives.” However, Avilucea admitted on cross-examination, after some

prodding, that he did not find a detonator, which is required to ignite dynamite.

The next morning there was an unspecified threat at the courthouse, which

the U .S. M arshals used as an opportunity to conduct a bomb-threat drill. As part

of that drill, the marshals used dogs to search the building. The court instructed

the jury that the search was merely a training exercise unrelated to the trial. Later

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that day, as the prosecutor was attempting to introduce exhibits, he read “Exhibit

9-J, 9-K, 9-11” rather than “9-L.” The court immediately corrected him.

Stephen Scheid, an Intelligence Research Specialist with the Bureau of

Alcohol, Tobacco, Firearms, and Explosives (“ATF”) testified that he contacted

the manufacturer of the dynamite by telephone. An employee of the company

informed him that the dynamite had been manufactured in M issouri. Based on

this comment, Scheid testified it was his expert opinion that the dynamite had

crossed state lines.

A jury found Sinks guilty on both counts on November 26, 2003. The

probation office, however, was not notified that Sinks was convicted until January

2005 and did not prepare his Presentence Report (“PSR”) until M arch 2005. At

the sentencing hearing, the district court and the prosecutor expressed regret for

allowing Sinks to slip through the cracks. Nevertheless, the court imposed a

sentence of 84 months’ imprisonment for each count, with the sentences to run

concurrently – in the middle of the Guidelines range.

II

Sinks advances four claims on appeal: (1) The district court abused its

discretion by admitting evidence about the wiring of the dynamite and the use of a

bomb squad; (2) The government failed to charge an interstate commerce element

on Count One; (3) Scheid’s testimony as to the location at which the dynamite

was manufactured was inadmissible hearsay; and (4) His sentence was

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unreasonable because the district court failed to consider the delay in the

preparation of his PSR. 1

A

W e review a trial court’s decision to admit evidence for abuse of discretion.

United States v. Allen, 449 F.3d 1121, 1125 (10th Cir. 2006). A court abuses its

discretion when its decision is “arbitrary, capricious, or whimsical, or results in a

manifestly unreasonable judgment.” United States v. W eidner, 437 F.3d 1023,

1041 (10th Cir. 2005). Admission of inadmissible evidence is harmless, however,

unless the evidence “had a substantial influence on the jury’s verdict in the

context of the entire case, or leaves one in grave doubt whether it had such

effect.” United States v. M itchell, 113 F.3d 1528, 1532 (10th Cir. 1997)

(quotation omitted).

Sinks argues that admitting the pictures of the taped and wired dynamite,

Avilucea’s testimony mentioning “other incendiary devices,” and his discussion

of the bomb squad’s procedures constituted non-harmless error. He contends that

this information was only marginally relevant and led the jury to focus on, and

overestimate, the danger of an explosion on a day when police dogs were being

led around the courthouse.

1
Sinks initially alleged that the evidence was insufficient to prove that the
dynamite had traveled in interstate commerce, but abandoned this claim in his
Reply Brief.

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 Evidence is relevant if it makes the existence of any fact of consequence

more or less probable. Fed. R. Evid. 401. Relevant evidence is admissible unless

its “probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” Fed. R. Evid. 403.

The photos were certainly relevant to show Sinks’ possession of the

dynamite. The bomb squad evidence was relevant to whether the material in the

truck was an explosive within the meaning of the statute after Sinks refused to

stipulate that dynamite was an explosive. The caution used by a trained

explosives professional in examining the box shows that he believed the dynamite

was an explosive. M oreover, this testimony provided the jury with a continuous

chain of custody for the dynamite. The government could have overstepped its

bounds by lingering on this evidence or attempting to paint Sinks as some sort of

mad bomber, but it did not. Our review of the record indicates that this evidence

had, at most, a minimal role in the trial and was w ell within the district court’s

discretion to admit.

The only arguably problematic testimony was Avilucea’s use of the phrase

“incendiary devices” on a day the court received an unspecified threat. Sinks was

unlucky that the threat occurred the morning of his trial, but he has not carried his

burden of demonstrating that this testimony affected his substantial rights. See

M itchell, 113 F.3d at 1532. Avilucea admitted on cross-examination that there

were no explosive devices in the truck, limiting the prejudicial effects of his

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testimony. Evidence showed that Sinks was arrested driving a stolen truck

containing stolen dynamite. He was observed covering up the box of dynamite

with clothing. In light of the substantial evidence against him, there is little

reason to believe A vilucea’s rhetorical flourish substantially influenced the jury’s

verdict.

B

18 U.S.C. § 842(h) forbids the possession of stolen explosives “w hich are

moving as, which are part of, which constitute, or which have been shipped or

transported in, interstate or foreign comm erce, either before or after such

materials were stolen.” 18 U.S.C. § 842(h). Sinks argues that because the

indictment did not charge, and the jury did not find, an interstate commerce

element for Count One, his conviction must be set aside. The failure to charge an

essential element of a crime violates the Fifth Amendment. Apprendi v. New

Jersey, 530 U.S. 466 (2000). W hen a jury does not find an essential element of a

crime, a defendant’s conviction violates the Sixth Amendment. Blakely v.

W ashington, 542 U.S. 296 (2004).

The government argues that Sinks waived any indictment-based challenge

by failing to object below. Certain motions alleging a defective indictment must

be brought before trial. Fed. R. Crim. P. 12(b)(3). The Rules further provide that

a “party waives any Rule 12(b)(3) defense, objection, or request not raised by the

deadline the court sets.” Fed. R. Crim. P. 12(e). There is an explicit exception to

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the w aiver rule for claims that the “indictment . . . fails to invoke the court’s

jurisdiction or fails to state an offense.” Fed. R. Crim. P. 12(b)(3)(B).

Generally, the failure to allege an element of an offense is not a

jurisdictional error. United States v. Cotton, 535 U.S. 625, 631 (2002). Our

sibling circuits disagree on whether the failure to allege an interstate commerce

element provides an exception to this general rule. Compare United States v.

W alker, 59 F.3d 1196, 1198 (11th Cir. 1995) (holding that a district court lacked

subject matter jurisdiction where a statute was subsequently held to be outside

Congress’ Commerce Clause power), and United States v. Spinner, 180 F.3d 514,

515-16 (3d Cir. 1999) (concluding that the failure to allege an interstate

comm erce element in an indictment for device fraud deprived the district court of

jurisdiction), with Alikhani v. United States, 200 F.3d 732, 735 (11th Cir. 2000)

(“An effect on interstate commerce may be required for Congress to have

authority under the Commerce Clause to forbid certain conduct. But . . . that does

not imply that a district court faced with an insufficient interstate-commerce

nexus loses subject-matter jurisdiction of the case.” (citation omitted)). In this

Circuit, however, such defects are not a jurisdictional exception. United States v.

Prentiss, 256 F.3d 971, 982 (10th Cir. 2001) (en banc) (holding that the failure to

allege an element of a crime “is not jurisdictional in the sense that it affects a

court’s subject matter jurisdiction,” and expressly criticizing Spinner) (quotation

omitted).

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 Rather than asserting a jurisdictional defect, Sinks argues that by failing to

charge the interstate commerce element of Count One, the indictment failed to

charge an offense. In Prentiss w e held that “a defendant cannot waive the right to

challenge an indictment based upon its failure to charge an offense.” 256 F.3d at

983. W e were interpreting a prior version of Rule 12(b), which stated that claims

challenging an indictment on the ground that it failed to charge an offense “shall

be noticed by the court at any time during the pendency of the proceedings.” Fed.

R. Civ. P. 12(b)(2) (amended 2002). Citing this mandatory language, we went on

to apply harmless error, rather than plain error review, despite the fact that the

defendant had not objected at trial. Prentiss, 256 F.3d at 985 n.12.

Following Prentiss, Rule 12(b) was amended. Currently, Rule 12(b)

provides that “at any time while the case is pending, the court may hear a claim

that the indictment . . . fails . . . to state an offense.” Fed. R. Civ. P. 12(b)(3).

The Advisory Committee notes to the 2002 Amendments of Rule 12 state that the

“changes are intended to be stylistic only, except as noted.” The note specifically

applicable to Rule 12(b) declares “[n]o change in practice is intended.”

Accordingly, the first rule of Prentiss survives: A defendant may challenge an

indictment for its failure to charge an offense for the first time on appeal.

Prentiss’ second holding, that harmless error review applies to such

challenges, does not enjoy the same fate. Although we review Sinks’ claim on

the merits, we do so only for plain error. Such a result is required by the

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Supreme Court’s post-Prentiss decision in United States v. Cotton. 535 U.S. at

631 (“Freed from the view that indictment omissions deprive a court of

jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal

Procedure 52(b) to respondents’ forfeited claim.”). To establish plain error, a

defendant must show: “(1) an error, (2) that is plain, . . . (3) that affects

substantial rights [and, (4)] seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Fabiano, 169 F.3d 1299,

1303 (10th Cir. 1999) (quotations omitted). Because Sinks is alleging

constitutional error, we apply this test “less rigidly.” United States v. Dazey, 403

F.3d 1147, 1174 (10th Cir. 2005).

The government concedes that the omission of the interstate commerce

element was error, and was plain. However, when the evidence proving an

element is “overwhelming” and “essentially uncontroverted,” the failure to allege

that element does not “seriously affect[] the fairness, integrity or public

reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33 (quoting Johnson

v. United States, 520 U.S. 461, 470 (1997)). In convicting Sinks on Count Two,

the jury found that the dynamite had traveled in interstate commerce. M oreover,

it was uncontroverted that the dynamite was stolen in Arizona and found in a

vehicle driven by Sinks in New M exico. Show ing that an item crossed state lines

is sufficient to show that it traveled in interstate commerce. See United States v.

Snow , 82 F.3d 935, 940 (10th Cir. 1996) (“[W]hether the [item] in question was

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transported for commercial or personal reasons is irrelevant; simply by crossing

state lines the [item] traveled in interstate commerce.”). Because the interstate

comm erce element was proven by overwhelming and essentially uncontroverted

evidence, the failure to charge it does not rise to the level of plain error.

This same analysis applies to Sinks’ Sixth Amendment claim. Indeed, the

“overw helming and essentially uncontroverted” test was developed in just this

context and later extended to Fifth Amendment claims. See Cotton, 535 U.S. at

632-33; Johnson, 520 U.S. at 469-70. Failure by the jury to find an interstate

commerce element on Count One similarly does not constitute plain error.

C

Sinks claims that ATF Agent Scheid’s testimony was inadmissible hearsay.

In particular, he argues that Scheid’s telephone conversation with an unnamed

dynamite manufacturing employee was too unreliable to form the basis of an

expert opinion that the dynamite was manufactured in M issouri. Because Sinks

did not object at trial, we review for plain error. See Fabiano, 169 F.3d at 1303.

The operative rule of evidence provides: “[I]f [the facts or data relied upon

are] of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or data need not be admissible

in evidence in order for the opinion or inference to be admitted.” Fed. R. Evid.

703. Scheid did not specifically state that he reasonably relied on the statements

of dynamite manufacturing employees in the course of his investigations. Nor did

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Sinks cross-examine Scheid on the basis of his opinion. However, an expert in

tracing explosives might normally rely on the statements of dynamite

manufacturing employees. W e have previously upheld the introduction of expert

testimony based on conversations with unnamed third parties. See United States

v. M cPhilomy, 270 F.3d 1302, 1313-14 (10th Cir. 2001) (upholding the

introduction of a geologist’s testimony on the value of certain stones based on

conversations he had with several retailers). Without a fully developed record it

is difficult to determine w hether the admission of this testimony was error,

highlighting the importance of objecting below.

In any event, we need not decide whether it was error because it clearly did

not affect Sinks’ substantial rights. The only relevance of this testimony was

whether the dynamite had traveled in interstate commerce. As noted above, the

fact that the dynamite was stolen in Arizona and found in New M exico

conclusively establishes that it did so. Even without this testimony the jury

surely would have concluded that the dynamite had crossed state lines.

D

W e review a sentence for reasonableness. United States v. Cage, 451 F.3d

585, 591 (10th Cir. 2006). A sentence that falls within a properly calculated

Guidelines range is presumptively reasonable. Id.

After correctly determining a Guidelines range of 77 to 96 months, the

district court noted it had a duty to consider the 18 U.S.C. § 3553(a) factors. It

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stated, “[c]onsidering all those factors as well as the guidelines,” Sinks deserved

an 84-month sentence. Sinks contends that the district court erred in not

considering the 16 months he spent in county jail awaiting the preparation of his

PSR . Such consideration, he argues, would have promoted his “respect for the

law,” and would “provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).

The district court has discretion to attach varying degrees of import to the

§ 3553(a) factors. As we noted in Cage, a district court may act unreasonably by

affording too much weight to a particular factor or set of factors. 451 F.3d at

595-96. In this case, however, Sinks has done nothing to overcome the

presumption of reasonableness afforded his sentence. Although w e too express

regret that Sinks was all but forgotten for 16 months by the legal system designed

to safeguard his rights, this fact alone does not render his sentence unreasonable.

III

For the reasons stated above, we AFFIRM Sinks’ convictions and

sentence.

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