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United States v. King

United States Court of Appeals, Eighth Circuit

April 14, 2017

United States of America Plaintiff- Appellee
v.
Robert Allen King Defendant-Appellant

          Submitted: October 20, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before WOLLMAN, SMITH, [1] and COLLOTON, Circuit Judges.

          SMITH, Circuit Judge.

         A jury convicted Robert Allen King of possession with intent to distribute 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The district court[2] sentenced King to 180 months' imprisonment, followed by five years of supervised release. King appeals his conviction and sentence. He asserts the following trial errors: (1) the district court erred in admitting a cooperation agreement into evidence at trial; (2) the district court erred by not ordering a mistrial based on his defense counsel's conflict of interest as a potential witness; and (3) sufficient evidence supports his public-authority defense. King also asserts the following sentencing errors: (1) the district court erred in denying his motion for retesting the purity of the methamphetamine and his motion for reconsideration of the denial of that motion; (2) the district court erred in applying an obstruction-of-justice enhancement; and (3) the district court erred in denying him an adjustment for acceptance of responsibility. For the reasons stated below, we affirm.

         I. Background

         In 1996, King pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine. He served a total of 168 months' imprisonment for this federal drug-trafficking offense. After his release from prison in 2012, King resumed selling drugs. Law enforcement discovered and investigated his new enterprise.

         On July 10, 2013, the Southwest Hennepin Drug Task Force (SWHDTF) executed search warrants at King's home and at the home of his supplier, Marlon Bettencourt. The SWHDTF discovered a gallon-size plastic bag with methamphetamine residue at King's home and heroin and other drugs at Bettencourt's home. To avoid charges, King cooperated with law enforcement. On July 15, 2013, King and his longtime attorney, Allan Caplan, met with Sergeant Brady Sweitzer and Officer Todd Hinz of the SWHDTF. The SWHDTF enlisted King as a confidential reliable informant (CRI). King signed a cooperation agreement with the Hennepin County Sheriff's Office (HCSO). That cooperation agreement included a list of rules for King to follow ("Attachment B"). In Attachment B, King agreed "not to participate in any investigations or any criminal activities unless the investigation is being directly supervised by an investigator of the HCSO"; "not to break any laws or commit any crimes while working for the HCSO"; and "not [to] use any illegal drugs" or "handle any illegal drugs unless specifically authorized to do so by the HCSO." SWHDTF officers reviewed the cooperation agreement with King, and King initialed each rule and signed the agreement. He also indicated his understanding "that the task force may terminate this agreement at any time" and that "[v]iolation of any of the above enumerated provisions will be grounds for immediate removal as a Cooperating Individual and the possible filing of criminal charges." In addition to Attachment B, the cooperation agreement included a few other documents, such as a signature page and a biographical information sheet.

         For the next two months, King worked as a CRI for the SWHDTF. He made two controlled deliveries of cash, participated in a controlled buy of cocaine, and arranged for the takedown of a load car. King's status as a CRI ended after the takedown of the load car carrying 20 pounds of methamphetamine in September 2013. After this investigation concluded, "it was made clear to King that his status as a CRI was terminated." King told the SWHDTF officers that he was moving to Spokane, Washington, with his girlfriend to work in a friend's computer-software business.

         King, however, did not move at that time to Spokane, Washington.[3] On October 22, 2013, at 2:20 a.m., King called Officer Hinz and told Officer Hinz that he wanted to provide information about a heroin dealer staying in a Minneapolis hotel who was selling heroin and possessed a handgun. King told Officer Hinz that he had learned the information when "he had taken somebody over to the hotel presumably to pick up heroin." Officer Hinz "explained to King that his status as a CRI was complete" and "asked him why he was in Minneapolis" because King had previously told Officer Hinz that he was moving to Washington. According to Officer Hinz, King replied "that he was back in town for a couple of days taking care of some things. He then said that he didn't like people selling heroin and to consider his information as a 'Freebie.'"

         In January 2014, King, with the aid of attorney Caplan, sought to resume work as a drug informant.[4] He offered to provide information regarding heroin dealers as third-party cooperation on behalf of his girlfriend, who was facing revocation of her probation in Hennepin County. The Hennepin County Attorney's office, however, declined King's proposed third-party cooperation offer. Thereafter, King stopped contacting the SWHDTF officers.

         After learning that King had resumed his own methamphetamine trafficking in December 2013 or January 2014, the special investigations unit of the Richfield Police Department began investigating him. A confidential informant told Richfield officers that King was selling methamphetamine from his home in south Minneapolis. After determining that King no longer worked as an informant for Hennepin County, Richfield Police Officer Dustin Schwarze obtained a search warrant for King's home in February 2014.

         The Minneapolis Special Weapons and Tactics team (SWAT) executed the search warrant during the early morning hours. SWAT entered the house and identified itself. In reaction, King began throwing methamphetamine and other items out of his bedroom window. Officer Schwarze saw King open the window and throw the methamphetamine out using both hands. Although Officer Schwarze yelled at King to show his hands and stop, King ignored this command and continued throwing the drugs out of the window. King stopped only when SWAT apprehended him.

         Law enforcement recovered large, unpackaged crystalline chunks of methamphetamine, packaged methamphetamine, and other evidence from the roof, sidewalk, and window sill of King's home. Officers recovered additional methamphetamine in King's bedroom, as well as packaging materials and over $4, 500 in cash.

         SWHDTF officers interviewed King after his arrest. In that recorded interview, King admitted owning the methamphetamine found at the house. He said that he had been selling about a pound per week. King said that when he heard SWAT enter and announce its presence, he tried to dispose of the methamphetamine by throwing it out of his bedroom window. After the officers stopped recording the interview, King told them that he wanted to cooperate to avoid charges or perhaps receive a lower sentence, if charged. King never claimed that he thought that he was still working as an informant.

         The Richfield Police Department told King and attorney Caplan that it would not work with King as a cooperator. King then had Caplan contact the Drug Enforcement Agency and the United States Attorney's Office. Caplan was told that King would not be permitted to cooperate in the case. After his indictment, King met with Caplan, who suggested a public-authority defense strategy. King thereafter claimed that he had "total immunity" for selling drugs based on a cooperation agreement with law enforcement.

         At trial, the jury rejected King's public-authority defense and found him guilty. Prior to sentencing, King moved to retest the methamphetamine, [5] but the district court ultimately denied that motion, as well as King's subsequent motion for reconsideration. The presentence investigation report (PSR) stated that King was "responsible for a quantity ranging from 175.019 to 205.235 grams of methamphetamine (actual)" and calculated a base offense level of 32. At sentencing, the Minnesota Bureau of Criminal Apprehension (BCA) chemist who tested the methamphetamine confirmed that amount, and the district court accepted it. After applying an obstruction-of-justice enhancement and denying an adjustment for acceptance of responsibility, the district court calculated a Guidelines range of 188 to 235 months' imprisonment. After hearing argument from counsel, the district court sentenced King to 180 months' imprisonment, followed by five years of supervised release.

         II. Discussion

         King appeals his conviction and sentence. He asserts that three trial errors and three sentencing errors warrant reversal.

         A. Trial

         First, King asserts the following trial errors: (1) the district court erred in admitting a cooperation agreement into evidence at trial; (2) the district court erred by not ordering a mistrial based on his defense counsel's conflict of interest as a potential witness; and (3) sufficient evidence supports his public-authority defense.

         1. Cooperation Agreement

         King first challenges the district court's admission of Attachment B of the cooperation agreement. At trial, the government moved to introduce Attachment B. King's counsel initially objected, arguing that it was "not the entire agreement." The court asked the government to "lay some more foundation." The government then asked King whether he was "given a single page that had all the rules that [he] had to follow on it, " and King replied, "I was given a packet of papers." The government then clarified that it was "asking about the rules that [King] w[as] required to follow." King replied, "This is one piece of the packet, yes." The government again moved to admit Attachment B, and King's counsel replied, "No objection."

         On appeal, King argues that the district court abused its discretion by permitting the government to establish the details of King's written cooperation agreement by submitting a single page of a multiple-page document and supplementing that evidence with testimony from law enforcement officers based on their "foggy" recollection about the remainder of the agreement.

         In response, the government points out that King's counsel stated that she had "[n]o objection" to Attachment B and argues that King waived any claim regarding its admission. King counters that his counsel never withdrew the original objection but instead just never "reasserted" that objection after the government laid more foundation.

         We have previously "found pretrial objections waived when an appellant's counsel affirmatively stated 'no objection' at trial to the admission of evidence previously sought to be suppressed." United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008) (quoting United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001)). For example, in Comstock we held that the "[d]efendant 'consciously and intentionally waived any objection' to the district court's receipt of the evidence at issue in his pretrial suppression motion" when defense counsel responded "no objection" "each time the Government moved to admit evidence that [d]efendant's pretrial motion sought to suppress." Id. (quoting United States v. Wedelstedt, 589 F.2d 339, 345-46 (8th Cir. 1978)).

         We find the present case similar to Comstock. King's counsel affirmatively stated "no objection" to the admission of the same evidence that counsel initially sought to exclude. As a result, King unconditionally, consciously, and intentionally waived any objection to the district court's admission of Attachment B.

         2. Counsel as Potential Witness

         King next argues that the district court erred by failing to declare a mistrial sua sponte when it became clear at trial that his trial counsel would need to testify in response to the testimony of King's prior counsel, Allan Caplan.

         At trial, King called Caplan as a witness. Caplan testified that King entered the cooperation agreement with the SWHDTF so that King would not be charged for drug trafficking that he conducted "before" the agreement was reached. Caplan stated that the cooperation agreement did not give King permission to sell drugs on his own. He testified that if King had such an agreement, Caplan, as King's attorney, would have contacted the SWHDTF as soon as he found out about the arrest and tried to enforce the agreement. Instead, Caplan stated that he worked with King in an attempt to arrange for King to cooperate in his new case to reduce his charges or his sentence. King's trial counsel did not ask Caplan about prior statements that Caplan might have made that were inconsistent with his trial testimony.

         After Caplan's testimony was complete, and after a 15-minute break, King's trial counsel told the district court that she had no more witnesses. The government then indicated that it would call rebuttal witnesses. But before the government put on its first witness, King's trial counsel told the court, out of the jury's presence, "I have never faced this experience in 23 years, but the witness I just called did not say anything on the stand that I had expected him to. He told me something very different in my meeting with him Saturday." King's counsel explained that Caplan had, prior to trial, offered to corroborate King's testimony that he worked for the authorities when he was arrested. King's trial counsel expressed concern that she might have to become a ...


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