Submitted: October 20, 2016
from United States District Court for the District of
Minnesota - St. Paul
WOLLMAN, SMITH,  and COLLOTON, Circuit Judges.
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 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.
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.
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.
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.
however, did not move at that time to Spokane,
Washington. 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.'"
January 2014, King, with the aid of attorney Caplan, sought
to resume work as a drug informant. 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.
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.
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
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
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.
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.
trial, the jury rejected King's public-authority defense
and found him guilty. Prior to sentencing, King moved to
retest the methamphetamine,  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.
appeals his conviction and sentence. He asserts that three
trial errors and three sentencing errors warrant reversal.
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.
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."
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.
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.
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.
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
Counsel as Potential Witness
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
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.
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 ...