throbber
FILED
`United States Court of Appeals
`Tenth Circuit
`February 26, 2016
`UNITED STATES COURT OF APPEALS
`Elisabeth A. Shumaker
`Clerk of Court
`
`TENTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`
`Plaintiff - Appellee,
`
`v.
`
`MAURICE ALYN MICKLING,
`
` Defendant - Appellant.
`
`No. 15-1089
`(D.C. No. 1:14-CR-00016-RM-1)
`(D. Colo.)
`
`ORDER AND JUDGMENT*
`
`Before BRISCOE, SEYMOUR and LUCERO, Circuit Judges.
`
`This is a direct appeal by Maurice Mickling following his convictions on three
`
`counts: (1) possession of a firearm by a prohibited person in violation of 18 U.S.C.
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`§§ 922 and 924; (2) possession of a controlled substance (namely, cocaine base) with
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`intent to distribute in violation of 21 U.S.C. § 841; and (3) possession of a firearm in
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`furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). He
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`conceded guilt on Count 1. His only defense to Counts 2 and 3 was that he had possessed
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`the cocaine base for personal use, not for distribution. He was found guilty by a jury on
`
`* This order and judgment is not binding precedent, except under the doctrines of
`law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
`persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
`
`

`
`all three counts and sentenced to 192 months’ incarceration, although the advisory
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`sentencing guideline range was much higher.
`
`Mickling appeals his convictions on two grounds; both are subject to plain error
`
`review. First, he argues that the government’s expert witness, Detective Daniel Wiley,
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`violated Federal Rule of Evidence 704(b), which prohibits an expert in a criminal case
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`from opining on the defendant’s mental state when that mental state is an element of the
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`crime charged. Second, Mickling argues that his due process rights were violated under
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`Napue v. Illinois because the government knowingly offered perjured testimony, which
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`was material, through its fact witness, Rhiannon Cheney.
`
`Mickling seeks a reversal on all counts or, in the alternative, a reversal on Counts 2
`
`and 3 and a remand on Count 1 for a new trial or resentencing.1 We exercise jurisdiction
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`pursuant to 28 U.S.C. § 1291 and affirm.
`
`A. Factual Background
`
`I
`
`Law enforcement officers drove to a hotel in Denver to arrest Mickling on an
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`outstanding warrant. Mickling walked out of the hotel and past an unmarked van in
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`which a SWAT team was sitting. Recognizing him, one of the officers opened the door
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`and ordered him to freeze. Mickling fled, removing a handgun from his waistband and
`
`1 Although Mickling does not appeal his conviction on Count 1 or the sentence
`imposed on any count, he suggests the sentencing range on Count 3 was the “driver” of
`the sentence imposed on Count 1. If Count 3 is reversed, Mickling argues the district
`court should have the opportunity to reconsider the sentence imposed on Count 1. He
`offers no argument in support of his request for a new trial on Count 1.
`
`2
`
`

`
`throwing it across the street, and dropping a toiletries bag on the ground. He was
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`apprehended, and the officers retrieved the bag and gun. The bag contained
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`approximately 3.6 grams of cocaine base, a small digital scale, some plastic wrapping,
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`and various personal items. The gun was a nine-millimeter handgun loaded with fifteen
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`rounds, with one round in the chamber. Mickling had approximately $750 in his pocket.
`
`B. Trial
`
`At trial, the government called Detective Wiley to testify as an expert witness
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`about the drug trade in Denver. Wiley testified that he had reviewed the evidence in the
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`case, and that the physical evidence included approximately 3.6 grams of crack cocaine, a
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`small battery-powered scale, a nine-millimeter handgun, and approximately $750. He
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`was then asked:
`
`Q:
`
`Now, based upon everything that you have read about this
`case, and looked at in this case, based upon your experience
`and training, purchasing drugs, and working narcotic cases as
`an investigator, have you formed an opinion as to whether or
`not the crack cocaine as in Government’s Exhibit 1 is
`consistent with possession with the intent to distribute or—
`
`A:
`
`Yes—
`
`Q: —or consistent with personal use?
`
`A:
`
`Q:
`
`A:
`
`It’s consistent with possession with intent to distribute.
`
`Now, why do you say that?
`
`The fact that someone has 3.5 grams or an eightball of
`crack cocaine indicates that they are a dealer and not a user.
`
`Q: What does—you testified the tools of the trade include
`
`3
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`

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`guns, scales, money, plastic, what does this case have in it?
`
`A:
`
`Q:
`
`A:
`
`Guns, money, plastic, drugs, scale.
`
`And does that confirm your opinion?
`
`It does. Yes. All of those factors together. Yes.
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`App. III at 256. Finally, he testified that he had never seen a nondistributing user of crack
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`cocaine who possessed 3.6 grams on their person.
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`The government also called a lay witness, Cheney, to testify about her personal
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`relationship with Mickling. She testified that she knew Mickling, and had met him in
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`2010. She then said she did not see him again until 2013, and that in 2013, she saw him
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`about seven or eight times. She said she never witnessed Mickling use crack cocaine, and
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`had never known him to be a user of crack cocaine.
`
`A. Standard of Review: Plain Error
`
`II
`
`Mickling raises two evidentiary challenges on appeal. He did not object when this
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`evidence was presented at trial. Without a contemporaneous objection to alleged
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`improper testimony, we review for plain error. United States v. Hill, 749 F.3d 1250, 1257
`
`(10th Cir. 2014) (alleged improper opinion by an expert witness in a criminal case);
`
`United States v. Caballero, 277 F.3d 1235, 1243–44 (10th Cir. 2002) (alleged perjury
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`constituting prosecutorial misconduct under Napue).
`
`To satisfy the high threshold to achieve a reversal on plain error review, Mickling
`
`must show “[1] an ‘error’ [2] that is ‘plain’ and [3] that ‘affect[s] substantial rights.’”
`
`4
`
`

`
`United States v. Olano, 507 U.S. 725, 732 (1993) (fourth alteration in original) (quoting
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`Fed. R. Crim. P. 52(b)). If these three prongs are met, then we may exercise discretion to
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`reverse only if we determine that “[4] the error ‘seriously affect[s] the fairness, integrity
`
`or public reputation of judicial proceedings.’” Id. (second alteration in original) (quoting
`
`United States v. Young, 470 U.S. 1, 15 (1985)); see also United States v. Story, 635 F.3d
`
`1241, 1244 (10th Cir. 2011) (citing United States v. Cotton, 535 U.S. 625, 631–32
`
`(2002)).
`
`As regards the first and second prongs of plain error, an error is plain “if it is
`
`obvious or clear, i.e., if it is contrary to well-settled law.” Hill, 749 F.3d at 1258 (quoting
`
`United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003)). Under the third prong of
`
`plain error, the error must affect the defendant’s substantial rights, prejudicing the
`
`defendant “by affect[ing] the outcome of the district court proceedings.” Olano, 507 U.S.
`
`at 734. The burden is on the defendant to show this prejudice. Id. at 735. “That is, he
`
`must demonstrate ‘a reasonable probability that but for the error claimed, the result of the
`
`proceeding would have been different.’” Hill, 749 F.3d at 1263 (quoting United States v.
`
`Trujillo-Terrazas, 405 F.3d 814, 818 (10th Cir. 2005)). This does not entail a
`
`preponderance standard, but rather requires “a probability sufficient to undermine
`
`confidence in the outcome.” Id. (quoting United States v. Hasan, 526 F.3d 653, 665 (10th
`
`Cir. 2008)). Even if the defendant can satisfy these three prongs, we may only exercise
`
`our discretion to reverse under the fourth prong if we are convinced that the error
`
`seriously affects the “fairness, integrity, or public reputation of judicial proceedings.”
`
`5
`
`

`
`Olano, 507 U.S. at 732. In the present case, we need not reach the fourth prong under
`
`Olano because we resolve both issues presented under the third prong of plain error
`
`review.
`
`B. First Alleged Error: Rule 704(b) Testimony
`
`Federal Rule of Evidence 704(b) says, “In a criminal case, an expert witness must
`
`not state an opinion about whether the defendant did or did not have a mental state or
`
`condition that constitutes an element of the crime charged or of a defense. Those matters
`
`are for the trier of fact alone.” Fed. R. Evid. 704(b). We have interpreted Rule 704(b) to
`
`“only prevent[] experts from expressly stating the final conclusion or inference as to a
`
`defendant’s mental state. The rule does not prevent the expert from testifying to facts or
`
`opinions from which the jury could conclude or infer the defendant had the requisite
`
`mental state.” United States v. Goodman, 633 F.3d 963, 970 (10th Cir. 2011) (quoting
`
`United States v. Richard, 969 F.2d 849, 854–55 (10th Cir. 1992)).
`
`For the purposes of our ruling on the Rule 704(b) issue, we will assume error was
`
`committed and that it was plain. To determine whether this alleged error prejudiced
`
`Mickling by affecting the outcome of his trial, we look to whether he has shown “a
`
`reasonable probability that but for the error claimed, the result of the proceeding would
`
`have been different,” which is “sufficient to undermine confidence in the outcome.” Hill,
`
`749 F.3d at 1263 (first quoting Trujillo-Terrazas, 405 F.3d at 818; then Hasan, 526 F.3d
`
`at 665). In cases involving Rule 704(b) on plain error review, we have affirmed on the
`
`basis that there was sufficient evidence to support a conviction even without the improper
`
`6
`
`

`
`testimony. See, e.g., United States v. Archuleta, 737 F.3d 1287, 1298–99 (10th Cir.
`
`2013) (“Even if Lujan’s testimony violated Rule 704(b), however, Archuleta cannot
`
`demonstrate plain error. . . . [T]hree of his coconspirators testified that Archuleta not
`
`only participated in the smuggling scheme but also orchestrated it. . . . Thus, even in the
`
`absence of the challenged response by Lujan to the hypothetical question, there was more
`
`than sufficient evidence presented to establish [the elements of the crime].”); United
`
`States v. Garza, 566 F.3d 1194, 1202 (10th Cir. 2009) (“[T]here was solid admissible
`
`evidence of Mr. Garza’s intent.”). This conforms with the plain error standard. If we
`
`conclude upon review of all of the evidence presented that there is no reasonable
`
`probability that but for the admission of the challenged testimony the outcome of the trial
`
`would have been different, we must affirm.
`
`Here, the items that Mickling had on his person constituted more than sufficient
`
`evidence from which a jury could conclude that he possessed cocaine base with an intent
`
`to distribute and that he possessed a firearm in furtherance of that distribution. He
`
`admitted that he possessed the loaded nine-millimeter handgun, and he possessed several
`
`items that to the jury would likely signal an intent to distribute, even without Wiley’s
`
`testimony. And Wiley testified to several facts and opinions from which the jury may
`
`have found guilt even without his testimony referring to intent. This evidence, when
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`coupled with the evidence retrieved at the scene, causes us to conclude that Mickling has
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`not demonstrated a reasonable probability that but for the challenged testimony he would
`
`not have been convicted on Counts 2 and 3.
`
`7
`
`

`
`C. Second Alleged Error: Napue Claim
`
`The Supreme Court in Napue v. Illinois articulated that the defendant’s rights to
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`due process under the Fourteenth Amendment are violated when he is convicted “through
`
`use of false evidence, known to be such by representatives of the State” or “when the
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`State, although not soliciting false evidence, allows it to go uncorrected when it appears.”
`
`Napue, 360 U.S. 264, 269 (1959); see Caballero, 277 F.3d at 1243. To establish this
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`Napue violation, the defendant must show that the testimony was false, the prosecution
`
`knew the testimony was false, and the testimony was material. Caballero, 277 F.3d at
`
`1243. Ordinarily, under Napue, “[t]he false testimony is material ‘unless failure to
`
`disclose [the perjury] would be harmless beyond a reasonable doubt.’” United States v.
`
`Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015) (second alteration in original) (quoting
`
`United States v. Bagley, 473 U.S. 667, 680 (1985)), cert. denied, 577 U.S. ----, No. 15-
`
`7141, 2016 WL 100762 (Jan. 11, 2016). Because plain error review applies in this case,
`
`the burden is on Mickling under the third prong to show that the alleged violation likely
`
`affected the outcome of the trial.
`
`Mickling argues that Cheney committed perjury when she testified that she first
`
`met him in 2010. He argues that this testimony was false because he was incarcerated for
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`the entirety of 2010. He also alleges that the government was aware that Mickling pled
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`guilty to various felonies in late 2009 and was incarcerated for all of 2010. And he argues
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`this was material because the government characterized Ms. Cheney’s testimony as
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`“‘very important’ to the central issue in the case—whether Mickling possessed the
`
`8
`
`

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`cocaine base in order to use it or distribute it to others.” Aplt. Br. at 20 (quoting App. III
`
`at 370 (government’s rebuttal closing argument)).
`
`Even if we assume the elements of a Napue violation were satisfied here, Mickling
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`has not met his burden under the third prong of plain error review. He has not shown that
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`the outcome of the trial would likely have been different had Cheney testified to first
`
`meeting Mickling in a different year. Mickling primarily argues that Cheney’s testimony
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`was very important to the government’s case, by its own admission. However, we are not
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`convinced that the specific fact that Cheney met Mickling in 2010 was integral to the
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`government’s case. Cheney testified that she met Mickling in 2010 and that she did not
`
`see him use crack cocaine at that time. However, the main focus of the government’s
`
`questioning was on the subsequent time she spent with Mickling in 2013—during which
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`she also testified she had not seen him use crack cocaine. She said she had seen him
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`seven or eight times in 2013, but was “not exactly sure” how many times she saw him in
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`2010. And where Mickling argues that the government, in its rebuttal closing argument,
`
`told the jury that Cheney’s testimony was important, the government in fact referred only
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`to the “seven or eight times” Cheney was with Mickling—that is, in 2013—not the initial
`
`time they met.
`
`Consider what would have happened if the government had disclosed the perjury.
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`If Cheney was mistaken about the year, and in fact met Mickling in 2009 (for example),
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`then it is extremely unlikely that there would be any change in the jury’s verdict if the
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`government disclosed Cheney’s error. The same is true if Cheney did not actually meet
`
`9
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`

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`Mickling until 2013. The jury would still have Cheney’s testimony that she was with
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`Mickling seven or eight times in 2013 and that she had not seen him use crack cocaine
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`during any of those occasions. Both sides focused their examination on the time period in
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`2013, because the events leading to Mickling’s arrest had occurred in 2013—any drug
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`activity or lack thereof that occurred in 2010 would be almost entirely irrelevant to
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`whether Mickling was a drug user or distributor in late 2013. Further, because Cheney
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`did not even remember what time of year in 2010 she met Mickling, the jury very likely
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`did not focus on this part of her testimony. Even if Mickling established a Napue
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`violation, he has not satisfied the more stringent plain error standard that requires a strong
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`showing of prejudice.
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`The judgment of the district court is AFFIRMED.
`
`III
`
`Entered for the Court
`
`Mary Beck Briscoe
`Circuit Judge
`
`10

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