Appeal from United States District Court for the Southern District of Iowa - Des Moines
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: October 19, 2012
Before LOKEN, SMITH, and BENTON, Circuit Judges.
Brandon Reeves Tyerman was convicted of being a felon in possession of
ammunition and a firearm, and being a felon in possession of a stolen
firearm. He appeals, alleging that the district court*fn1
improperly admitted evidence, refused a jury
instruction, and denied motions for a new trial based on improper
testimony and cumulative error. He also attacks the sufficiency of the
evidence at trial. At sentencing, the district court applied an
enhancement for obstruction of justice, which Tyerman challenges.
Having jurisdiction under 28 U.S.C. § 1291, this court
In June 2008, Tyerman was charged in Iowa state court with stalking, going armed with intent, and burglary of a vehicle. During the plea negotiations, locating the firearm was a top priority for the state district attorney. Tyerman disclosed its location to his attorney, Peter Berger. Police proceeded to recover the firearm from Timothy Yasunaga's house (Tyerman had stayed with Yasunaga a few times).
In June 2009, a federal grand jury charged Tyerman on four counts. The district court severed the first two counts. This appeal concerns the remaining two counts: felon in possession of a firearm and ammunition, and possession of a stolen firearm. See 18 U.S.C. § 922(g)(1); 18 U.S.C. § 922(j). Tyerman moved to suppress the firearm, which the district court denied. In October 2009, Tyerman pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). He later attempted to withdraw the plea. The district court denied his request, sentencing him to 50 months' imprisonment. This court reversed and remanded the case. United States v. Tyerman, 641 F.3d 936, 944 (2011). While the appeal was pending before this court, the Bureau of Alcohol, Tobacco, and Firearms mistakenly destroyed the firearm in question. ATF is to destroy firearms only after the final disposition of a case.
On remand, Tyerman withdrew his plea. Before trial, Tyerman objected to prior acts the government intended to introduce. In December 2007, he threatened to kill his wife and her family after she said she was filing for divorce. She filed for divorce in March 2008. In April, Tyerman wrapped a telephone cord around her neck, and threatened to end both of their lives. The next day, she obtained a protective and no-contact order. Tyerman violated this order several times with phone calls and text messages. Tyerman was found hiding in a trailer on his in-laws' property -- where his wife was staying. He had also installed a GPS tracking device on her car. On June 4-5, Tyerman tried to drive his truck across a soybean field on his in-laws' property. The truck became stuck. (Over Tyerman's objection, the district court permitted this prior-acts evidence.) Inside the truck, police found a Barretta gun case, an empty magazine, and ammunition. Those items are the basis of the charges in this case.
In October 2011 a jury convicted Tyerman on both counts. At sentencing, a U.S. Marshal testified that prison guards discovered two homemade handcuff keys in Tyerman's cell. According to the Marshal, during the investigation, other inmates revealed Tyerman's plans to escape from jail and his use of the law library (which lacked surveillance) to practice removing handcuffs. Finding the Marshal credible, the district court applied a two-level adjustment for obstruction of justice based on the attempted escape, sentencing Tyerman to 72 months' imprisonment.
Tyerman contends that the district court erred in denying his motion to suppress the firearm. He argues that attorney Berger's disclosure of the firearm's location violated the attorney-client privilege, and his Fifth and Sixth Amendment rights. The district court's denial of a motion to suppress is reviewed, as to factual findings, for clear error, and as to legal conclusions, de novo. United States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012).
Ineffective-assistance-of-counsel claims under the Sixth Amendment present mixed questions of law and fact and are reviewed de novo. United States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005). Tyerman contends that Berger was ineffective because disclosing the firearm's location violated the attorney-client privilege. The government counters that Tyerman implicitly waived the privilege because he disclosed the firearm's location in plea negotiations.
A claim for ineffective assistance of counsel has two elements: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
To establish a Sixth Amendment claim based on violation of the attorney-client privilege, this court requires the defendant to prove "that the government knowingly intruded into the attorney-client relationship." United States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986). Tyerman admits that the government did not knowingly intrude and only passively received the information. While he argues that the Fourth, Seventh, and Ninth circuits have left open whether deliberate intrusion is required, this court has not. Id.
Further, the attorney-client privilege can be waived, either explicitly or implicitly. United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998). The parties agree that there was no explicit waiver. During plea negotiations, however, Tyerman disclosed the gun's location to Berger. Berger then relayed the gun's location to the district attorney. As the state bond-review hearing indicates, Tyerman was aware that his disclosure was communicated to the district attorney:
BERGER: At the Court's request, and the County Attorney's request, you worked with me and Tim [Yasunaga] to have the gun, which everybody was worried about in the case, located in the house where you were staying, correct?
BERGER: And that's where you were staying, at Tim's house, correct?
Because Tyerman's disclosure to Berger came during plea negotiations, he implicitly authorized Berger to share the information with the district attorney. He thus implicitly waived the attorney-client privilege as to the communications about the gun's location.*fn2 This waiver, in addition to his admission of no deliberate government intrusion, demonstrates that his Sixth Amendment rights were not violated.
Tyerman, assuming that the attorney-client privilege was breached, argues that his Fifth Amendment rights were violated by a fundamentally unfair trial. Due process claims are reviewed de novo. United States v. Summage, 575 F.3d 864, 872 (8th Cir. 2009). To constitute a due process violation, the government's conduct must be truly outrageous and "shock the conscience of the court." United States v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999), quoting United States v. Pardue, 983 F.2d 835, 847 (8th Cir. 1993). Tyerman demonstrates no government misconduct at all, thus there is no Fifth Amendment violation.*fn3
Both parties agree that ATF's destruction of the firearm was improper. As a result, Tyerman attempted to dismiss the case, introduce evidence of the firearm's destruction, and include a spoliation jury ...