IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C.A. NO. 14-10439 UNITED STATES OF AMERICA, ) CR. NO. 12-01259 DKW ) (USDC-Hawaii) Plaintiff-Appellee, ) ) vs. ) ) DAVID STEIDELL, ) ) Defendant-Appellant. ) ) ___________________________________) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII PLAINTIFF-APPELLEE’S ANSWERING BRIEF FLORENCE T. NAKAKUNI United States Attorney District of Hawaii CHRIS A. THOMAS Assistant U.S. Attorney Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, Hawaii 96850 Telephone: (808) 541-2850 mail: [email protected]Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA Case: 14-10439, 03/13/2015, ID: 9456542, DktEntry: 16-1, Page 1 of 48
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Case: 14-10439, 03/13/2015, ID: 9456542, DktEntry: 16-1 ... · Case: 14-10439, 03/13/2015, ID: 9456542, DktEntry: 16-1, Page 10 of 48. 5 In the presence of the “UC,” CHO, TRUJILLO,
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.A. NO. 14-10439 UNITED STATES OF AMERICA, ) CR. NO. 12-01259 DKW ) (USDC-Hawaii)
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
PLAINTIFF-APPELLEE’S ANSWERING BRIEF
FLORENCE T. NAKAKUNI United States Attorney District of Hawaii
CHRIS A. THOMAS Assistant U.S. Attorney Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, Hawaii 96850 Telephone: (808) 541-2850 mail: [email protected] Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA
TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES........................................i-iii I. STATEMENT OF JURISDICTION, TIMELINESS, BAIL STATUS.........1
II. ISSUES PRESENTED ON APPEAL.................................1 III. STATEMENT OF THE CASE......................................1
IV. STATEMENT OF THE FACTS.....................................3
A. The Investigation.....................................3
B. Defendant’s Change of Plea............................9 C. Inadvertent Destruction of Evidence..................11 D. Defendant’s Sentencing...............................12
V. SUMMARY OF THE UNITED STATES’ ARGUMENT....................17
VI. ARGUMENT..................................................18
A. Defendant Initiated the Discussion of Other Drugs and
Was Therefore Predisposed to Distributing Methamphetamine and Not Subjected to Sentencing Entrapment...........................................18
1. Standard of Review..............................18
2. Defendant Forfeited His Claim...................19
3. Defendant Was Not Entrapped.....................20
B. The District Court Properly Applied a Two-Level
Enhancement for Defendant’s Leadership Role..........28
1. Standard of Review..............................28
TABLE OF AUTHORITIES Cases Page(s) Alleyne v. United States, 133 S. Ct. 2151 (2013)...............27 Gall v. United States, 552 U.S. 38 (2007)......................34 Rita v. United States, 551 U.S. 338 (2007).....................35 United States v. Avila, 905 F.2d 295 (9th Cir. 1990)...........31 United States v. Benny, 786 F.2d 141 (9th Cir. 1986)...........29 United States v. Burgum, 633 F.3d 810 (9th Cir. 2011)..........37 United States v. Carty, 520 F.3d 984 (9th Cir. 2008)........34-35 United States v. Carvajal, 905 F.2d 1292 (9th Cir. 1990).......31 United States v. Daniels, 541 F.3d 915 (9th Cir. 2008).........34 United States v. Davis, 36 F.3d 1424 (9th Cir. 1994)...........20 United States v. Farrell, 893 F.2d 690 (5th Cir. 1990).........30 United States v. Gutierrez-Sanchez, 587 F.3d 904 (9th Cir. 2009)...........................................37 United States v. Mares-Molina, 913 F.2d 770 (9th Cir. 1990)....30 United States v. Marin-Cuevas, 147 F.3d 889 (9th Cir. 1998)....30 United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009)..........20 United States v. Milton, 153 F.3d 891 (8th Cir. 1998), cert. denied, 119 S. Ct. 1082 (1999)............................30 United States v. Olano, 507 U.S. 725 (1993)....................19 United States v. Pinkney, 15 F.3d 825 (9th Cir. 1994)..........29
In the presence of the “UC,” CHO, TRUJILLO, and BELL,
Defendant then placed five Ziploc type baggies containing
ecstasy tablets before the “UC” which were taken by the “UC.”
PSR ¶ 19. The pills received on August 7, 2012 were submitted
for laboratory testing. According to the lab report, the total
unit count of tablets seized was 4,927 tablets and the active
drug ingredient was BZP.2 PSR ¶¶ 19, 20.
On August 10, 2012, CHO sent a series of telephone
text messages to the “UC” to discuss the shipment of 1,000
tablets of ecstasy to Hawaii. On August 14, 2012, the “UC”
received a parcel in Hawaii containing approximately 997 tablets
of MDMA that was sent by Defendant via the U.S. Postal Service.
PSR ¶ 21. The pills received on August 14, 2012 were submitted
for laboratory testing. According to the lab report, the total
unit count of tablets seized was 997 tablets and the active drug
ingredient was BZP. Id.
Between August 31, 2012 and September 13, 2012, the
“UC” placed several recorded telephone conversations to
Defendant. During the conversations, Defendant told the “UC”
that he could get any type of narcotic at any quantity that the
“UC” wanted. PSR ¶ 21a.
2 Throughout their interactions, the “UC” negotiated with the defendant for ecstasy and was delivered BZP. PSR ¶¶ 19, 20. Ecstasy is MDMA, however, BZP is a controlled substance similar to BZP.
to sell was at a very high level. This conversation clearly
shows that Defendant was willing to distribute methamphetamine.
Defendant’s response was also revealing in what he did
not say. Defendant did not say that he did not deal with
methamphetamine, or that he refused to do it. In fact,
Defendant expressed his willingness and wanted to ensure that
the “UC” got good quality and advised the “UC” he would only
sell good quality methamphetamine. PSR ¶ 19.
In addition, at Defendant’s change of plea hearing
held on May 20, 2014, Defendant readily admitted to his intent
and capability to distribute methamphetamine:
THE COURT: What did you do to accomplish the objective of your conspiracy to distribute methamphetamine and BZP? THE DEFENDANT: I purchased the narcotics and I handed them off knowing that they would be sold to Reyn, who was the undercover agent from Homeland Security. SER 22.
* * * THE COURT: Then approximately a month later, on September 13, 2012, you had a series of conversations on the telephone with the same undercover officer, correct?
THE DEFENDANT: Yes, Your Honor. THE COURT: And unbeknownst to you apparently, the
conversations that you had with this officer were recorded by law enforcement?
THE COURT: And during these conversations, you had indicated that you could get additional narcotics for this officer, who you knew to be in Hawaii, in whatever quantity he desired; is that also true?
THE DEFENDANT: I believe my exact words were I could
get him anything he wanted. THE COURT: And that specifically included 50,000
tablets of ecstasy on a weekly basis? THE DEFENDANT: Yes, Your Honor. THE COURT: During these same recorded conversations
on September 13th of 2012, you reached an agreement with this undercover officer to sell him additional ecstasy tablets as well as methamphetamine, specifically four ounces of methamphetamine, at the price of $1,300 per ounce or $5,200 total, as well as 10,000 ecstasy tablets at a price of $28,000; is that also true?
THE DEFENDANT: That’s true, Your Honor. THE COURT: And to accomplish this and complete this
transaction, the very next day, on September 14th of 2012, you and your codefendant, Mr. Cho, in fact met with the undercover officer in Mr. Cho’s residence in Torrance; is that true?
THE DEFENDANT: Yes, Your Honor. THE COURT: At the time the undercover officer handed
you $30,000 n U.S. currency in cash, correct? THE DEFENDANT: That’s correct, Your Honor. THE COURT: The $30,000 was intended to be payment for
the 10,000 ecstasy tablet that you and the officer discussed on the phone the previous day, correct?
THE DEFENDANT: That’s correct. THE COURT: And in addition, the $2,000 beyond the
cost of the ecstasy was intended to be front money for the four ounces of methamphetamine; is that also true?
THE COURT: So I’m not a great mathematician, but my calculation is he then would have owed you $3,200 remaining balance which he promised – “he” being the undercover officer – promised to pay for ounce he returned to Hawaii; is that all correct?
THE DEFENDANT: That’s true.
SER 25-27. Emphasis added.
* * *
THE COURT: Now, on September 14th, the four ounces of methamphetamine that you sold to the undercover officer were not actually given to him on that day; is that correct? THE DEFENDANT: That’s correct. THE COURT: But it was given to him the next day; is that also correct? THE DEFENDANT: From my understanding, yes. THE COURT: And that was September 15th of 2012? THE DEFENDANT: That’s correct. THE COURT: And you gave the four ounces of methamphetamine to your codefendant, Mr. Cho, to pass on the undercover officer? THE DEFENDANT: No, that’s incorrect. THE COURT: How did that come about then? THE DEFENDANT: You know what, Your Honor, I have no idea how he acquired them. I set up the deal, but I have no idea how he acquired the methamphetamine. THE COURT: So you arranged for the deal, the four ounces of methamphetamine, to be sold to the undercover officer, correct?
minimum and should not have been included in the calculation
since Defendant was entrapped.5
Defendant finally asserts in his brief that inclusion
of the methamphetamine resulted in a miscarriage of justice and
seriously affected the integrity of the judicial process.6 In
support of that argument, Defendant completely misreads Alleyne
v. United States, 133 S. Ct. 2151, 186 L.ed.2d 314 (2013).
Alleyne, supra, did not eliminate a defendant’s ability to waive
the right to have a jury determine the facts necessary to
establish a mandatory minimum by pleading guilty and admitting
to those facts.
Defendant’s arguments fail because on May 2, 2014, at
his plea of guilty, Defendant acknowledged and understood that
because a mandatory minimum sentence was involved, at least with
respect to Counts 2 and 3 of the Superseding Indictment, that at
any trial the government would have to prove both the type of
5 Defendant’s Opening Brief at pages 37-39. In addition, Defendant did not object to the inclusion of the 34.1 grams of MDMA found in Cho’s possession constituted error. Defendant failed to object to the inclusion in the court below, this is also subject to plain error analysis. Defendant has failed to establish that inclusion of a quantity of the same type of drugs possessed by his coconspirators during the time period of the conspiracy is plain error. Defendant’s assertion in footnote 6 is incorrect, because the 553.2 grams of BZP found in Defendant’s storage unit was included as part of Count 5. See PSR ¶ 42. 6 Defendant’s opening Brief at pages at 39-40.
drug involved as well as its weight and purity to the jury
beyond a reasonable doubt and that he was waving that right.
THE COURT: Do you understand that at any trial the government, because this is a drug case would have to prove the type of drug involved to the jury beyond a reasonable doubt, but that by proceeding with a plea of guilty he would be waiving that right and admitting to both the type of drug involved as well as your knowledge as to the type of drug involved at the time of each of the offenses that were set forth in the superseding indictment?
THE DEFENDANT: Yes, Sir. THE COURT: Do you understand that because a mandatory
minimum sentence was involved, at least with respect to Counts 2 and 3, at any trial the government would have to prove both the type of drug involved as well as its weight and purity to the jury beyond a reasonable doubt and that you are waiving that right? THE DEFENDANT: Yes, Sir. SER 10.
In addition, as previously stated, it was clear that
the “UC” did not engage in outrageous conduct which overcame
Defendant’s will or caused him to commit a more significant
crime and that Defendant failed to meet his burden to establish
sentencing entrapment. Consequently, there was no plain error
which affected Defendant’s substantive rights.
B. The District Court Properly Applied a Two-Level Enhancement for Defendant’s Leadership Role.
1. Standard of Review
A trial court’s determination of whether a defendant
qualifies for a role adjustment is reviewed for clear error.
and told him that the rest was being delivered. PSR ¶¶ 18, 19.
It was also the Defendant that placed the five bags of ecstasy
tablets before the “UC,” representing the total amount of
ecstasy for the transaction. PSR ¶ 19; SER 23. In addition, as
discussed in the preceding section, it was the Defendant who
first raised the question and initiated the conversation when he
asked the “UC” what else he could use in Hawaii. Based on
Defendant’s inquiry, the “UC” advised Defendant that
methamphetamine was the big money maker in Hawaii. In response,
the Defendant did not hesitate and asked the “UC” what he’d be
willing to pay for a pound. PSR ¶ 19.7
It was the Defendant in August of 2012 who sent the
parcel of 997 tablets of BZP to the “UC.” PSR ¶ 21.8 It was the
Defendant who told the “UC” that he could get any drug the “UC”
wanted and at any quantity. PSR ¶ 21a;9 SER 25. As previously
stated, it was the Defendant who negotiated and reached an
agreement with the “UC” to sell him four ounces of
methamphetamine at a price of $5,200 and 10,000 ecstasy tablets
at a price of $28,000. SER 25. Defendant also admitted that he
received the $30,000 in U.S. currency as payment for the ecstasy
and partial payment for the methamphetamine. PSR ¶ 22;10 SER 26-
7 Defendant did not object to paragraph 19 of the PSR. 8 Defendant did not object to paragraph 21 of the PSR. 9 Defendant did not object to paragraph 21a of the PSR. 10 Defendant did not object to paragraph 22 of the PSR.
Certificate of Compliance Pursuant to Fed. R.App. 32(a)(7)(C)and Circuit Rule 32-1 for Case Number 14-10439 (see next page) Form Must Be Signed By Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief I certify that: (check appropriate options(s)) X 1. Pursuant to Fed.R.App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the attached
opening/answering/reply/cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and contains ________ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words, reply briefs must not exceed 7,000 words),
or is
☒ Monospaced, has 10.5 or fewer characters per inch and contains 8,305 words or
_____ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).
2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P.
32(a)(7)(B) because
This brief complies with Fed.R.App.P. 32(a)(1)(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
This brief complies with a page or size-volume limitation established by separate
court order dated and is
Proportionately spaced, has a typeface of 14 points or more and contains ______ words, or is
Monospaced, has 10.5 or fewer characters per inch and contains ______ pages or
3. Briefs in Capital Cases This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is
Proportionately spaced, has a typeface of 14 points or more and contains_____ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words)
or is
Monospaced, has 10.5 or fewer characters per inch and contains _______ words or _______ lines of text opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).
4. Amicus Briefs
Pursuant to Fed.R.App.P. 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less,
or is
Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7,000 words or 650 lines of text,
or is
Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32(a)(1)(5).
March 13, 2015 s/ Chris A. Thomas Date Signature of Attorney or Unrepresented Litigant