United States v. Hood

Filing

[9789342] Affirmed; Terminated on the merits after oral hearing; Written, signed, published;. Judges Tymkovich, Seymour and Holmes, authoring. Mandate to issue.

United States v. Hood

Case: 09-4156

Document: 01018478774

FILED Date Filed: 08/17/2010 Page: 1

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U n i t e d States Court of Appeals T e n t h Circuit

A u g u s t 17, 2010
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

U N I T E D STATES OF AMERICA, Plaintiff-Appellee, v. J O H N MCALLISTER HOOD, Defendant-Appellant. N o . 09-4156

A P P E A L FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH ( D . C . No. 1:07-CR-00078-DS-1) __________________________________ J i l l Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal P u b l i c Defender, on the brief), Denver, Colorado, for Defendant-Appellant. * S t e p h e n J. Sorenson, Assistant United States Attorney (Carlie Christensen, Acting U n i t e d States Attorney, with him on the brief), Salt Lake City, Utah, for PlaintiffAppellee. __________________________________ B e f o r e TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges. _________________________________ H O L M E S , Circuit Judge. W e GRANT Mr. Hood's motion to substitute Assistant Federal P u b l i c Defender Jill Wichlens for Assistant Federal Public Defender Vicki M a n d e l l - K i n g , but note that Ms. Mandell-King argued this matter before us.
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D e f e n d a n t - A p p e l l a n t John McAllister Hood was convicted after a jury trial o f possession with intent to distribute fifty grams or more of actual me t h a mp h e t a mi n e in violation of 21 U.S.C. § 841(a)(1). Before trial, Mr. Hood h a d sought to dismiss the indictment against him based on the government's d e s t r u c t i o n of evidence, but the district court denied his motion. After the jury r e n d e r e d its guilty verdict, Mr. Hood also challenged a document filed by the g o v e r n me n t , called a Notice of Intent to Enhance Punishment pursuant to 21 U . S . C . § 851 ("Enhancement Information"). The Enhancement Information was s u p p o s e d to notify Mr. Hood of the government's intention to seek enhanced p e n a l t i e s for certain prior drug convictions. Mr. Hood challenged the E n h a n c e me n t Information on the grounds that it contained incorrect information a s to the court and place of conviction for one of his prior drug convictions. The d i s t r i c t court rejected Mr. Hood's challenge to the Enhancement Information, g r a n t e d the government's motion to correct the error contained therein, and s e n t e n c e d Mr. Hood to life imprisonment pursuant to 21 U.S.C. § § 841(b)(1)(A)(viii) and 851. Mr. Hood now appeals, arguing: (1) the district court should have d i s mi s s e d the indictment against him because the government destroyed p o t e n t i a l l y exculpatory evidence, which deprived him of due process; (2) in the a l t e r n a t i v e , the district court should have imposed sanctions on the government

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f o r such destruction; (3) the district court should not have sentenced him to life i mp r i s o n me n t because the Enhancement Information contained a non-clerical, p r e j u d i c i a l error; and (4) based on Mr. Hood's statements about defense counsel a t his sentencing hearing, the district court should have inquired sua sponte into M r . Hood's relationship with defense counsel to investigate a possible conflict. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM. I . Background O f f i c e r s from the Weber-Morgan Narcotics Strike Force, a multij u r i s d i c t i o n a l unit based in Ogden City, Utah, arrested Stacy Wilbert on S e p t e mb e r 14, 2006. Ms. Wilbert had been working for police as a confidential i n f o r ma n t , but they discovered she had continued to use and sell me t h a mp h e t a mi n e . Upon her arrest, Ms. Wilbert gave officers permission to s e a r c h her home, where they discovered thirteen bags of methamphetamine that w e i g h e d a total of 32.2 grams. Ms. Wilbert then identified Mr. Hood as her s u p p l i e r and agreed to call Mr. Hood to arrange for a drug deal. 2 In order to a v o i d causing Mr. Hood to become suspicious, Ms. Wilbert informed the officers t h a t she would order the same amount of methamphetamine from Mr. Hood that " s h e always purchased from him." R., Vol. III, Pt. 1, at 147 (Jury Trial, dated

N u me r o u s recorded conversations took place between Ms. Wilbert a n d Mr. Hood, but the computer files containing the recordings were accidentally e r a s e d . Although Mr. Hood challenged the destruction of that evidence in his p r e - t r i a l Motion to Dismiss, he does not challenge its destruction on appeal. -3-

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A p r . 29, 2009). This "regular amount," id., was a quarter of a pound, or a p p r o x i ma t e l y 113 grams. M r . Hood arrived at Ms. Wilbert's home carrying a backpack. Officers t o o k the backpack from him, whereupon he stated "I am fucked." Id. at 109. Inside his backpack, officers found a large amount of white crystal substance that a presumptive field test identified was 542 grams of methamphetamine. The d r u g s were contained inside of five plastic bags. Mr. Hood admitted to officers t h a t he was "a large scale dealer and that he had several Mexican connections." Id. at 112; accord id. at 153. He also admitted that he owned the me t h a mp h e t a mi n e found in his backpack. A n officer later combined the drugs from the five plastic bags found in Mr. H o o d ' s backpack into a separate bag and sent that bag to the crime lab for testing. At the crime lab, the drugs were found to have a net weight of 526 grams. Testing also revealed that the drugs were 90.6% pure methamphetamine, meaning t h a t out of the net 526 grams, 476.5 grams were pure methamphetamine. The g o v e r n me n t does not dispute that the five plastic bags later were destroyed. The d r u g s that law enforcement obtained from Mr. Hood were released later to a K-9 u n i t and then subsequently returned for use in his prosecution. 3 T h e drugs were mistakenly released to the K-9 unit. The secretary f o r the Weber-Morgan Narcotics Strike Force was notified that the case against M s . Wilbert had terminated and that she was the only defendant connected to the d r u g s . The secretary in turn notified the Ogden City Police Department that the (continued...) -43

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O n August 8, 2007, a federal grand jury charged Mr. Hood by a singlec o u n t indictment with possession with intent to distribute fifty grams or more of a c t u a l methamphetamine in violation of 21 U.S.C. § 841(a)(1). Mr. Hood t h e r e a f t e r filed a Motion to Dismiss and/or For Other Relief for Destruction of E v i d e n c e and Request for Hearing on September 12, 2008. He argued in relevant p a r t that the government impermissibly combined the drugs from each of the five b a g s into one container and destroyed the bags. As a result, he contended, he was u n a b l e to test the amount of pure methamphetamine seized from him. Mr. Hood a l s o argued that the officers in the Ogden City Police Department destroyed the c h a i n of custody as to the methamphetamine when they released the drugs to a K9 training unit. He alleged that those actions violated his due process rights under C a l i f o r n i a v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U . S . 51 (1988). The district court held an evidentiary hearing on the motion and received p o s t - h e a r i n g memoranda. It denied Mr. Hood's motion to dismiss, holding that Defendant fail[ed] to establish what the apparent exculpatory v a l u e of the destroyed evidence is or that the destroyed e v i d e n c e would exculpate him. Field tests and Crime lab r e p o r t s establish the presence of methamphetamine and witness (...continued) e v i d e n c e was no longer needed and could be destroyed. Rather than being d e s t r o y e d , the drugs were released for K-9 training; the drugs were useful for t r a i n i n g purposes because they had been identified as a particular quantity of me t h a mp h e t a mi n e . Subsequently, officers became aware that they needed the e v i d e n c e for Mr. Hood's case and the drugs were returned. -53

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t e s t i mo n y establishes Defendant's possession. . . . At most, Defendant's position amounts to an argument t h a t the destroyed evidence would be potentially useful. However, the Court finds that Defendant has not presented any e v i d e n c e of bad faith and, therefore, has failed to meet his b u r d e n of establishing that the government acted in bad faith a s required under Youngblood. S u p p l . R., Vol. I, at 73 (Mem. Decision & Order, dated Jan. 13, 2009) (footnote o mi t t e d ) . The case proceeded to trial. M r . Hood's trial commenced on April 29, 2009. At trial, Mr. Hood argued t h a t there was a reasonable doubt as to whether he possessed fifty grams or more o f methamphetamine. He theorized that police had added the methamphetamine f o u n d in Ms. Wilbert's home to that found in his backpack to total fifty grams or mo r e . At the close of the government's case, Mr. Hood moved for a judgment of a c q u i t t a l , which was denied. In denying that motion, the district court held that "I t h i n k the evidence is clear . . . that what was retrieved from [Ms. Wilbert] and w h a t was retrieved from the defendant was separated, and I see no reason not to a l l o w this matter to be submitted to the jury." R., Vol. III, Pt. 2, at 298 (Jury T r i a l , dated Apr. 30, 2009). Mr. Hood presented no witnesses and the jury a d j u d g e d him guilty of the single-count indictment. Well before trial, on January 4, 2008, the government had filed an E n h a n c e me n t Information, notifying Mr. Hood that he could be subject to i n c r e a s e d punishment due to two prior drug convictions. Those prior convictions

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w e r e identified as follows: (1) conviction of the illegal possession/use of c o n t r o l l e d substance, a third-degree felony, obtained in Salt Lake Third District C o u r t , Salt Lake County, case number 981900910; and (2) conviction of the i l l e g a l possession/use of a controlled substance, a third-degree felony, obtained in D a v i s County Court, case number 061700272. One of Mr. Hood's arguments on appeal arises from the government's i n c o r r e c t identification of the court and place of conviction in case number 9 8 1 9 0 0 9 1 0 . That undisputed error came to light in the following way: After Mr. H o o d ' s conviction in this case, the Probation Office prepared a Presentence R e p o r t ("PSR"). The PSR concluded that the § 851 enhancement dictated that a ma n d a t o r y minimum sentence of life imprisonment be imposed upon Mr. Hood. He objected to that conclusion, challenging the Enhancement Information's r e f e r e n c e to his conviction as being obtained in Salt Lake Third District Court, S a l t Lake County, case number 981900910. Mr. Hood explained that Case Number 981900910 in the Third Judicial District Court, S a l t Lake County, is the matter of State of Utah v. Michael R o y c e Jackson, a Class C Misdemeanor, Criminal Trespass ma t t e r . . . . [In] the Second Judicial District, Ogden District t h e r e is a case entitled State of Utah v. John M. Hood, Case N o . 981900910, for which further investigation is being c o n d u c t e d . However, the designated case specifically set forth b y the government in its notice is not an appropriate predicate o f f e n s e for a life sentence pursuant to 21 U.S.C. § 851. S u p p l . R., Vol. IV, at 79 (Def.'s Position as to Sentencing Factors, filed July 9, 2009). -7-

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I n response, the government filed a Motion to Correct Clerical Error, in w h i c h it sought "to amend a clerical mistake" in the Enhancement I n f o r ma t i o n -- v i z . , to change the court and place of conviction in case number 9 8 1 9 0 0 9 1 0 from Salt Lake Third District Court, Salt Lake County to Second D i s t r i c t Court, Weber County. Id. at 84 (Mot. Correct Clerical Error, filed July 9, 2 0 0 9 ) ; see also id. at 86 (Position of Party with Respect to Sentencing Factors, f i l e d July 13, 2009). The government argued that Mr. Hood had been given r e a s o n a b l e notice and an opportunity to be heard under § 851 because he had been g i v e n a copy of his criminal history record on August 24, 2007, and this copy c o n t a i n e d the correct court and place of conviction in case number 981900910. Moreover, after its filing of the Enhancement Information, on August 5, 2008, the g o v e r n me n t had provided a copy of the relevant police report in that case to Mr. H o o d . As a result, the government believed that "[t]he defendant was, without q u e s t i o n , well aware of the conviction intended to be used for the enhancement a n d amendment to eliminate the clerical error [wa]s appropriate." Id. at 130 ( G o v ' t Resp. to Def.'s Sentencing Mem., filed July 20, 2009). At Mr. Hood's sentencing hearing, defense counsel did not dispute that Mr. H o o d had received an accurate copy of his criminal history record and the police r e p o r t from case number 981900910, but argued that the incorrect court and place o f conviction in the Enhancement Information was not a clerical error that could b e corrected under § 851(a)(1). The court disagreed and granted the -8-

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g o v e r n me n t ' s motion to correct the error. Toward the conclusion of that hearing, d e f e n s e counsel noted that in challenging an Enhancement Information, it was p o s s i b l e to challenge the underlying convictions themselves "as to whether or not t h e defendant is the individual who was charged and convicted and whether or not t h e y were represented by counsel and adequately protected by [sic] their c o n s t i t u t i o n a l rights." Suppl. R., Vol. VII, at 113 (Sentencing Hr'g, dated July 2 2 , 2009). However, defense counsel declined to raise such a challenge, stating t h a t "I have conducted that investigation and have intentionally elected not to r a i s e that motion." Id. The district court proceeded to sentence Mr. Hood to a term of life i mp r i s o n me n t under 21 U.S.C. §§ 841(b)(1)(A)(viii) and 851, and to 120 months' s u p e r v i s e d release. This appeal timely followed. I I . Discussion M r . Hood raises four challenges to his conviction and sentence. We a d d r e s s each in turn. A . Youngblood Challenge M r . Hood does not deny that he had methamphetamine in his backpack on S e p t e mb e r 14, 2006. Rather, he argues that the district court should have d i s mi s s e d the indictment against him because the government destroyed p o t e n t i a l l y exculpatory evidence. More specifically, Mr. Hood challenges law e n f o r c e me n t ' s destruction of the plastic bags found in his backpack, law -9-

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e n f o r c e me n t ' s combination of the individually bagged methamphetamine into one a g g r e g a t e amount of drugs, and its decision to send the methamphetamine to the K - 9 training unit. According to Mr. Hood, without that evidence, he was unable to pursue e f f e c t i v e l y his defense that he did not possess fifty or more grams of me t h a mp h e t a mi n e , but possessed a lesser amount. 4 As he argued at trial, Mr. H o o d theorizes on appeal that "if some of the bags alleged to have been found in h i s backpack had already been at Stacy Wilbert's house, and if the bags properly a t t r i b u t e d to him contained less than 50 grams of actual methamphetamine, he c o u l d not have been convicted of violating 21 U.S.C. § 841([b])(1)(A)(viii)." Aplt. Reply Br. at 2. Mr. Hood contends that, had the evidence at issue not been destroyed, he w o u l d have been able to test the contents of each bag recovered from his b a c k p a c k before it was "commingl[ed]" and that "he needed fingerprint analysis o f the bags." Aplt. Opening Br. at 19. He sets forth several hypothetical ma t h e ma t i c a l equations to demonstrate that it is at least possible that all of the T h e amount of drugs with which Mr. Hood was charged and c o n v i c t e d , fifty or more grams of actual methamphetamine, is significant under 21 U . S . C . § 841(b)(1)(A)(viii). That section provides that if a person possesses with i n t e n t to distribute fifty grams or more of methamphetamine, "such person shall b e sentenced to a term of imprisonment which may not be less than 10 years or mo r e than life" and "[i]f any person commits such a violation of this s u b p a r a g r a p h . . . after two or more prior convictions for a felony drug offense h a v e become final, such person shall be sentenced to a mandatory term of life i mp r i s o n me n t without release." 21 U.S.C. § 841(b)(1)(A)(viii). -104

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f o l l o w i n g propositions could be true: the drugs he brought in his backpack, when c o mb i n e d with the drugs found in Ms. Wilbert's home, could have totaled 526 g r a ms ; the combination of the purity levels of all the drugs could be 476.5 grams o f actual methamphetamine; and the amount of actual methamphetamine Mr. H o o d carried in his backpack could have been less than fifty grams. He states t h a t "[t]hese hypotheticals are plausible but unprovable, given the negligent g a t h e r i n g and handling and ultimate destruction of the evidence in this case." Aplt. Reply Br. at 5. Mr. Hood therefore contends that the government's d e s t r u c t i o n of potentially exculpatory evidence violated his due process rights u n d e r Trombetta and Youngblood. However, we disagree. W e begin, as always, by explicating the applicable standard of review. As w e stated in United States v. Smith, W e review a district court's determination that the government d i d not destroy potentially exculpatory evidence for clear e r r o r . The inquiry into allegations of prosecutorial bad faith p r e s e n t s a mixed question of fact and law in which the q u i n t e s s e n t i a l factual question of intent predominates. The b u r d e n is on [the defendant] to show bad faith. 5 3 4 F.3d 1211, 1223­24 (10th Cir. 2008) (citation omitted) (internal quotation ma r k s omitted). The district court did not clearly err in concluding that Mr. Hood cannot e s t a b l i s h a due process deprivation under the standards set forth in Trombetta and Y o u n g b l o o d . Addressing the former, we noted,

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F o r [the] destruction of evidence to rise to the level of a f f e c t i n g a defendant's Due Process rights under California v. T r o m b e t t a , the evidence must both possess an exculpatory v a l u e that was apparent before the evidence was destroyed, and b e of such a nature that the defendant would be unable to o b t a i n comparable evidence by other reasonably available me a n s . U n i t e d States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003) (internal quotation ma r k s omitted); accord United States v. Bohl, 25 F.3d 904, 909­10 (10th Cir. 1 9 9 4 ) . In Youngblood, the Supreme Court "extended Trombetta to provide that, if t h e exculpatory value of the evidence is indeterminate and all that can be c o n f i r me d is that the evidence was potentially useful for the defense, then a d e f e n d a n t must show that the government acted in bad faith in destroying the e v i d e n c e . " Bohl, 25 F.3d at 910 (internal quotation marks omitted); accord S m i t h , 534 F.3d at 1224; United States v. Beckstead, 500 F.3d 1154, 1158 (10th C i r . 2007). Mr. Hood cannot satisfy either test. Initially, Mr. Hood has conceded that t h e destroyed evidence was only potentially exculpatory, thereby eliminating any c l a i m he may have had under Trombetta. Moreover, Mr. Hood cannot succeed u n d e r Youngblood because, even if we assume that the evidence was potentially e x c u l p a t o r y , Mr. Hood conceded in his Reply Brief and at oral argument that the o f f i c e r s did not act in bad faith in destroying the evidence. 5 Consequently, his A l t h o u g h Mr. Hood had argued before the district court that the o f f i c e r s had acted in bad faith under a conspiracy theory, he now maintains that (continued...) -125

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Y o u n g b l o o d challenge must necessarily fail. "[U]nless a criminal defendant can s h o w bad faith on the part of the police, failure to preserve potentially useful e v i d e n c e does not constitute a denial of due process of law." Youngblood, 488 U . S . at 58; accord Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007). Mr. Hood attempts to salvage his claim by contending that we should hold t h a t bad faith is not required in this case pursuant to Justice Stevens's c o n c u r r e n c e in Youngblood. Justice Stevens provided a sixth vote in Youngblood, b u t he only concurred in the judgment. Specifically, he declined to join in the Y o u n g b l o o d majority's opinion, reasoning that "it announces a proposition of law t h a t is much broader than necessary to decide this case." 488 U.S. at 60 (Stevens, J . , concurring). In particular, Justice Stevens objected to the majority's d e t e r mi n a t i o n that law enforcement's failure to preserve potentially useful e v i d e n c e does not amount to a due process violation, unless the defendant can s h o w that law enforcement acted in bad faith. See id. at 60­61. He wrote, "[i]n my opinion, there may well be cases in which the defendant is unable to prove t h a t the State acted in bad faith but in which the loss or destruction of evidence is n o n e t h e l e s s so critical to the defense as to make a criminal trial fundamentally u n f a i r . " Id. at 61. Mr. Hood's reliance on Justice Stevens's concurrence is unavailing for two (...continued) t h e officers acted negligently and "us[ed] less than best practices" and admits that t h e y did not act in bad faith. Aplt. Reply Br. at 2. -135

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r e a s o n s . First, at the risk of stating the obvious, Justice Stevens was not speaking f o r a majority of the Court in Youngblood. Indeed, no other justice joined his c o n c u r r e n c e . We have never applied Justice Stevens's view as controlling p r e c e d e n t . And we see no tenable basis for doing so here. S e c o n d , even if we could accept the proposition that law enforcement bad f a i t h is not required in cases where the loss or destruction of evidence is so c r i t i c a l to the defense as to render the trial fundamentally unfair, we would have l i t t l e difficulty concluding on the facts before us that this is not such a case. Mr. H o o d ' s defense turned in large part on the theory that the police had corruptly c o n s p i r e d to add the methamphetamine found in Ms. Wilbert's home to that found i n Mr. Hood's backpack in order to subject him to the enhanced criminal penalty a s s o c i a t e d with possession of fifty or more grams of methamphetamine. To be c r i t i c a l to that defense, the lost or destroyed evidence would have to be, at the v e r y least, favorable to Mr. Hood (e.g., reveal Ms. Wilbert's fingerprints on the d e s t r o y e d plastic bags). But, as Mr. Hood concedes, it was not apparent "whether t h e evidence would favor the government or the defendant." Aplt. Reply Br. at 7. Furthermore, Mr. Hood had ample opportunity to advance his defense theory b e f o r e the jury in other ways. As the government details in its brief, defense c o u n s e l extensively cross-examined witnesses regarding whether the drugs o b t a i n e d from Mr. Hood and Ms. Wilbert were kept separate or (illicitly) c o mb i n e d . Mr. Hood's counsel challenged the handling of evidence and the chain -14-

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o f custody, and also vigorously argued the conspiracy theory before the jury. Thus, the jury was fully apprised of the nature of Mr. Hood's defense, thereby r e d u c i n g , or perhaps even eliminating, any prejudice that might otherwise flow f r o m the absence of the destroyed evidence. Cf. Youngblood, 488 U.S. at 59 ( S t e v e n s , J., concurring) ("[A]lthough it is not possible to know whether the lost e v i d e n c e would have revealed any relevant information, it is unlikely that the d e f e n d a n t was prejudiced by the State's omission. In examining witnesses and in h e r summation, defense counsel impressed upon the jury the fact that the State f a i l e d to preserve the evidence and that the State could have conducted tests that mi g h t well have exonerated the defendant." (emphasis added)). M o r e o v e r , on the question of fundamental fairness, as Justice Stevens's Y o u n g b l o o d analysis suggests, "our overriding concern [is] with the justice of the f i n d i n g of guilt" and "a State's failure to turn over (or preserve) potentially e x c u l p a t o r y evidence therefore must be evaluated in the context of the entire r e c o r d . " Id. at 60 (Stevens, J., concurring) (internal quotation marks omitted). The record here indicates that the jury would have had little, if any, basis to adopt M r . Hood's theory. As the government has argued, "There was strong evidence t h a t Stacy Wilbert's drugs and Hood's drugs were handled entirely separately, n e v e r commingled, and that no conspiracy was hatched to add drugs to those c a r r i e d by Hood." Aplee. Br. at 30. Furthermore, there was evidence in the r e c o r d that Mr. Hood regularly distributed methamphetamine to Ms. Wilbert in -15-

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q u a n t i t i e s in excess of fifty grams and that, when Mr. Hood was arrested, he was b r i n g i n g Ms. Wilbert the "regular amount," R., Vol. III, Pt. 1, at 147, of a p p r o x i ma t e l y 113 grams. Consequently, even if we could be guided by Justice S t e v e n s ' s concurrence, on the facts of this case, we would conclude that "the loss o r destruction of evidence" was not "so critical to the defense as to make a c r i mi n a l trial fundamentally unfair." Youngblood, 466 U.S. at 61 (Stevens, J., concurring). In sum, we hold that the district court did not clearly err in rejecting Mr. H o o d ' s claim that his due process rights had been violated under Trombetta and Youngblood. B . Civil Spoilation Claim I n the event that we were to conclude (as we do) that there was no due p r o c e s s deprivation, Mr. Hood argues in the alternative that the district court s h o u l d have imposed some other sanction on the government for the spoilation of e v i d e n c e . He urges us to apply the civil spoilation standard under which a court ma y impose certain sanctions even in the absence of bad faith. See Henning v. U n i o n Pac. R.R. Co., 530 F.3d 1206, 1219­20 & n.6 (10th Cir. 2008) ("A s p o l i a t i o n sanction is proper where (1) a party has a duty to preserve evidence b e c a u s e it knew, or should have known, that litigation was imminent, and (2) the a d v e r s e party was prejudiced by the destruction of the evidence." (internal q u o t a t i o n marks omitted)). Mr. Hood contends that "the district court should -16-

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h a v e imposed sanctions by excluding government evidence concerning the q u a n t i t y of drugs. . . . Had the court done so, Mr. Hood would likely have been c o n v i c t e d of a lesser-included offense, one that does not carry life imprisonment." Aplt. Opening Br. at 35; see also Aplt. Reply Br. at 9­16. A l t h o u g h Mr. Hood argued in his Reply Brief that this claim was raised b e f o r e the district court, defense counsel filed a supplemental authority pursuant t o Federal Rule of Appellate Procedure 28(j), indicating that "this Court's d i s c u s s i o n of plain-error review in United States v. Wardell, 591 F.3d 1279, 1 2 9 7 ­ 9 8 (10th Cir. 2009), may be helpful to the Court's resolution" of this issue. Operating with commendable candor, defense counsel then conceded at oral a r g u me n t that this claim was not raised below. Accordingly, we review it for p l a i n error. See Wardell, 591 F.3d at 1297. Under that "rigorous" standard, Mr. Hood's argument fails. Id. When a p p l y i n g plain-error review, "we may reverse a district court's ruling only if [the d e f e n d a n t ] demonstrates (1) error (2) that is plain and (3) that affected [his] s u b s t a n t i a l rights. If these three elements are met, then we may, in our discretion, c o r r e c t an error that seriously affects the fairness, integrity or public reputation of j u d i c i a l proceedings." Id. at 1297­98 (first alteration in original) (internal q u o t a t i o n marks omitted). Even if we assume arguendo that it was error for the d i s t r i c t court not to apply the civil standard governing the spoilation of evidence a n d not to sanction the government for such spoilation, Mr. Hood "cannot -17-

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e s t a b l i s h that such error is plain--that is, obvious and clear." Id. at 1298. "[W]e d o not deem an error to be obvious and clear unless it is contrary to current `wells e t t l e d law'--that is, to the current law of the Supreme Court or the Tenth C i r c u i t . " Id. (quoting United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2 0 0 8 ) ) . Mr. Hood has cited to no case applying this civil discovery doctrine to t h e criminal context and, as a result, he cannot prevail under plain-error review. C . Error in the Enhancement Information I n his third claim on appeal, Mr. Hood contends that the district court s h o u l d not have sentenced him to a mandatory term of life imprisonment because t h e government's Enhancement Information contained what he believes to be a n o n - c l e r i c a l , prejudicial error--viz., the Information lists the incorrect court and p l a c e of conviction for one of his predicate prior drug convictions. Accordingly, M r . Hood argues that the error could not be corrected prior to sentencing, in the w a y that a clerical mistake may be amended under 21 U.S.C. § 851(a)(1). The e r r o r , he contends, resulted in his failure to identify the particular conviction u p o n which the Enhancement Information relied and Mr. Hood urges us to c o n c l u d e that the district court erred by enhancing his sentence. We find that any e r r o r was harmless. W e review de novo the legality of a sentence, including the adequacy of an i n f o r ma t i o n filed under § 851. See United States v. Gonzalez-Lerma, 14 F.3d 1 4 7 9 , 1484 (10th Cir. 1994), overruled on other grounds by United States v. -18-

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B o t e r o - O s p i n a , 71 F.3d 783, 787 (10th Cir. 1995); accord United States v. King, 1 2 7 F.3d 483, 487 (6th Cir. 1997). Section 851 provides in relevant part that N o person who stands convicted of an offense under this part s h a l l be sentenced to increased punishment by reason of one or mo r e prior convictions, unless before trial, or before entry of a p l e a of guilty, the United States attorney files an information w i t h the court (and serves a copy of such information on the p e r s o n or counsel for the person) stating in writing the p r e v i o u s convictions to be relied upon. Upon a showing by the U n i t e d States attorney that facts regarding prior convictions c o u l d not with due diligence be obtained prior to trial or before e n t r y of a plea of guilty, the court may postpone the trial or the t a k i n g of the plea of guilty for a reasonable period for the p u r p o s e of obtaining such facts. Clerical mistakes in the i n f o r ma t i o n may be amended at any time prior to the p r o n o u n c e me n t of sentence. 2 1 U.S.C. § 851(a)(1). "A district court cannot impose an enhanced sentence u n l e s s the Government complies with § 851(a)'s requirements." United States v. B a l d e r a m a - I r i b e , 490 F.3d 1199, 1204 (10th Cir. 2007). Mr. Hood asserts that "[t]he question in this appeal is whether the i d e n t i f i c a t i o n of the wrong court and location is a clerical error capable of c o r r e c t i o n , or if it is such that the Information was insufficient to enhance Mr. H o o d ' s sentence to life imprisonment." Aplt. Opening Br. at 37. In other words, M r . Hood posits that if we are unable to conclude that the error in the E n h a n c e me n t Information is a correctable clerical error, we must determine that t h e Enhancement Information cannot provide the basis for his life sentence and, a c c o r d i n g l y , declare that sentence to be fatally infirm. Our decisional options,

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h o w e v e r , are not so narrowly circumscribed. Even if we were to conclude that t h e error in the Enhancement Information was more than a correctable clerical e r r o r (i.e., non-clerical), we still would be free to conclude that such an error was h a r ml e s s . In Gonzalez-Lerma, for example, we effectively endorsed and applied a h a r ml e s s - e r r o r analysis. 14 F.3d at 1486. There, the Enhancement Information c o n t a i n e d an incorrect date of conviction, did not specify the place of conviction o t h e r than specifying the state in which the conviction occurred, and did not p r o v i d e a case number. Id. at 1485. We determined that the incorrect date was a c l e r i c a l mistake that could be amended any time prior to the pronouncement of s e n t e n c e under § 851(a)(1). Id. at 1486. As for the omitted information r e g a r d i n g the precise location of the conviction and the case number, we d e t e r mi n e d that, despite those omissions, the government's Enhancement I n f o r ma t i o n provided sufficient notice to the defendant of its intent to enhance his s e n t e n c e based on the prior conviction. Id. We said that § 851 was enacted to f u l f i l l the due process requirement that a defendant "receive reasonable notice and o p p o r t u n i t y to be heard relative to the recidivist charge even if due process does n o t require that notice be given prior to trial on the substantive offense," and d e t e r mi n e d that the defendant had received sufficient notice and an opportunity to b e heard. Id. at 1485­86 (internal quotation marks omitted). The government h a d allowed defense counsel "to explore the contents of the judgment" and the -20-

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d e f e n d a n t had not challenged his prior conviction, but rather had challenged the t i mi n g of the Enhancement Information and its specificity. Id. at 1486. We a p p l i e d harmless error review and declined to adopt a "hyptertechnical approach" t o § 851. Id. We also applied a harmless-error analysis in United States v. LopezG u t i e r r e z , 83 F.3d 1235, 1246 (10th Cir. 1996), which involved a decidedly nonc l e r i c a l error. In that case, the district court had failed to comply with § 851(b) w h e n it did not ask the defendant whether he affirmed or denied the previous c o n v i c t i o n . Id. We concluded that the error was harmless: the defendant did not a l l e g e any prejudice caused by the omission, and the defense counsel had c o n c e d e d the fact of the previous conviction during a pre-trial motion. Id. at 1246­47. A c c o r d i n g l y , our precedent indicates that even if we find that an error is n o n - c l e r i c a l -- v i z . , not an error subject to correction under § 851(a)(1)'s express t e r ms -- w e nonetheless may conduct an inquiry into whether any such error was p r e j u d i c i a l . See also United States v. Severino, 316 F.3d 939, 944 (9th Cir. 2003) ( " T h e clerical error provision, which allows the government to correct `clerical mi s t a k e s ' in an information before sentencing, does not raise the inference that no o t h e r mistakes are permitted. . . . If the error is deemed to be clerical, the g o v e r n me n t may simply correct it by filing an amended information without s h o w i n g that defendant was not misled. If the error is non-clerical, however, the -21-

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i n f o r ma t i o n is deemed defective unless the government shows that defendant c o u l d not reasonably have been misled to his prejudice as to the identity of the p r i o r conviction." (footnote omitted)). A p p l y i n g these principles here, we conclude that even if we were to accept M r . Hood's contention that the Enhancement Information's error regarding the c o u r t and place of conviction was not clerical, we would still reject his challenge t o the Enhancement Information on harmless-error grounds because he was not p r e j u d i c e d . 6 Mr. Hood has not disputed that he received a copy of the relevant p o l i c e report for that conviction as well as a pretrial report that accurately r e c o u n t e d his criminal history. Moreover, although the Enhancement Information i d e n t i f i e d the wrong court and location for the relevant conviction, it did include o t h e r correct identifiers like the proper case number. Significantly, at the time M r . Hood filed his objections to the PSR, he expressed (through counsel) his a c t u a l knowledge of a conviction associated with his name that had all of the s a me information found in the Enhancement Information and, in addition, had the c o r r e c t court and location of conviction. In other words, at the time he filed his s e n t e n c i n g objections, Mr. Hood was aware of facts that would have allowed him t o reasonably infer that the conviction of which he had knowledge was the same c o n v i c t i o n listed in the Enhancement Information, notwithstanding its flawed A l t h o u g h Mr. Hood argues that the error was not harmless, he makes n o attempt to explain how he was harmed and we are convinced by the g o v e r n me n t ' s argument that he did not suffer any prejudice. -226

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d e s c r i p t i o n there. And finally, at the sentencing hearing, defense counsel e x p l i c i t l y declined to contest that Mr. Hood was in fact the person who had s u f f e r e d the at-issue conviction listed in the Enhancement Information. Because M r . Hood had sufficient notice of the prior conviction upon which the government s o u g h t enhancement as well as an opportunity to be heard, the Enhancement I n f o r ma t i o n ' s incorrect identification of the court and place of conviction would b e at most harmless error. We therefore affirm the district court's enhancement o f Mr. Hood's sentence. 7 D . The Court's Duty to Inquire Into Relationship With Defense Counsel I n Mr. Hood's fourth and final claim, he argues that the district court sua s p o n t e should have inquired into Mr. Hood's relationship with defense counsel to i n v e s t i g a t e a possible conflict based on Mr. Hood's statements about defense c o u n s e l at his sentencing hearing. 8 This argument can gain no traction. As B e c a u s e we affirm the district court's enhancement under § § 841(b)(1)(A)(viii) and 851, we need not address Mr. Hood's contention that he d o e s not qualify for career-offender status under the Guidelines. Mr. Hood stated that "there are some reasons that we didn't talk a b o u t at trial that I felt were pertinent. I asked [defense counsel] about some of t h e s e things and he advised me different [sic] or did it in a different manner." Suppl. R., Vol. VII, at 102. Mr. Hood also referred to the fact that the defense p r e s e n t e d no witnesses on his behalf at trial, saying "[a]t my trial, we didn't call a n y witnesses on my behalf, not one. I've asked [defense counsel] that. He says t h a t it wasn't necessary. I don't understand that." Id. at 104. Mr. Hood also n o t e d that the defense did not present any expert witnesses. He later stated that "I s h o u l d have taken the stand at my trial. I never did that. I was advised not to do (continued...) -238 7

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t h e government rightly states, "there is no statutory or case law suggesting the (...continued) t h a t , which I think was a gross injustice. I should have been able to testify and s p e a k on my behalf." Id. at 105. Mr. Hood also said that "I asked [defense c o u n s e l ] several times to have the evidence tested. I believe that is a right of mi n e . [Defense counsel] said no numerous times. I also asked him for a bench t r i a l . . . . He told me no." Id. at 107. He continued, I asked [defense counsel] if he could beat this case. He told me that we're going to throw the dice up and not throw the d i c e down. You know, had I known that was the case, I might h a v e worked with the government on a deal. I don't know. Now I'm looking at life. I just feel like that [sic] these things w e r e not handled properly. For reasons why, I don't know. [ D e f e n s e counsel] did very well in his motions to suppress and h i s evidentiary hearing. I d . at 108. Mr. Hood then began to explain further the legal arguments in his mo t i o n to dismiss, but the court interrupted him, saying, W e ' r e not here to reargue these matters. The Court has made r u l i n g s , Mr. Hood. . . . I agree with you, I think [defense c o u n s e l ] has done an exceptional job to bring to the Court's a t t e n t i o n those matters that need to be brought to the Court's a t t e n t i o n . [Defense counsel] has appeared in my court many t i me s and I have found him to be very, very competent in e v e r y respect. N o w if there is any error, if there is anything shown to t h e appellate court that is wrong in your behalf, those matters w i l l be reviewed and you will receive further consideration. But I'm not here to retry this case. . . . I don't know all that's g o n e on behind the scenes, but I do know that [defense c o u n s e l ] has brought to the attention of the Court those e v i d e n t i a r y matters that were pertinent to this case and the C o u r t has made rulings. . . . . . . We're not here retrying the case. I d . at 108­09. Mr. Hood indicated that he understood and that he had nothing f u r t h e r to say. -248

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d u t y Hood advocates. To the contrary, the cases suggest that district courts g e n e r a l l y do not have a duty sua sponte to inquire into the attorney-client r e l a t i o n s h i p . " Aplee. Br. at 50. A district court has no such duty, particularly w h e n it is presented only with the unsworn, unsupported, and at times c o n t r a d i c t o r y , allegations of the defendant at his sentencing hearing. Cf. United S t a t e s v. Meacham, 567 F.3d 1184, 1187­88 (10th Cir. 2009) (holding that the d i s t r i c t court did not abuse its discretion in denying, without an evidentiary h e a r i n g , a motion for a new trial based on counsel's alleged refusal to allow d e f e n d a n t to testify on his own behalf; discussing the fact that the claim regarding c o u n s e l ' s refusal was unsupported by an affidavit or testimony under oath); U n i t e d States v. Stark, 507 F.3d 512, 516 (7th Cir. 2007) (in holding that a trial c o u r t is not required to question a defendant sua sponte to ensure that he k n o w i n g l y and intelligently has decided not to testify, stating that "[c]riminal d e f e n d a n t s and their lawyers often do not see eye to eye. If a district court were c o mp e l l e d to inquire into every potential conflict it thought it had spotted, there w o u l d be a risk of multiple, unnecessary proceedings, some of which might even i mp e r i l the attorney-client relationship. More is needed before this kind of j u d i c i a l duty arises."); United States v. Van De Walker, 141 F.3d 1451, 1452 ( 1 1 t h Cir. 1998) (rejecting argument that there is a per se requirement that a d i s t r i c t court inquire into decision of criminal defendant not to testify, and d i s c u s s i n g concerns about intruding into the attorney-client relationship or -25-

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i n f l u e n c i n g the defendant's choice); United States v. Robinson, 913 F.2d 712, 716 ( 9 t h Cir. 1990) (holding that the district court did not err in failing to make f u r t h e r inquiries into the defendant's complaints about counsel when the d e f e n d a n t made no motion for substitution of counsel). We decline to impose this d u t y upon district courts or to interfere unnecessarily in the attorney-client r e l a t i o n s h i p . In so holding, we emphasize that we do not suggest that Mr. Hood i s unable to raise these issues in a collateral ineffective-assistance-of-counsel c l a i m. He remains free to do so. I I I . Conclusion F o r the foregoing reasons, we AFFIRM Mr. Hood's conviction and sentence.

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