                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 16, 2010
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT

UNITED STATES OF AMERICA,

      Plaintiff–Appellee,
                                                        No. 09-4186
                                              (D.C. No. 2:07-CR-00111-DB-1)
v.
                                                         (D. Utah)
MARTIN R. VANDEMERWE,

      Defendant–Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.


      Martin Vandemerwe appeals his conviction for possession of

methamphetamine with intent to distribute. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

                                         I

      On June 1, 2006, police obtained a search warrant for Vandemerwe’s

basement apartment in West Jordan, Utah. The warrant was based largely on


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
information provided by two confidential informants to Detective Rapela, the

supporting affiant. According to Rapela’s affidavit, the first confidential

informant (“CI#1”) told Rapela of a person named “Martin” who was selling

methamphetamine in West Jordan. CI#1 reported giving an acquaintance a ride to

a certain apartment, where the acquaintance purchased an ounce of

methamphetamine. After CI#1 identified the apartment, Rapela learned that

“Martin” was Martin Vandemerwe through an independent investigation.

      The second confidential informant (“CI#2”) was James Mickelsen. While

conducting surveillance of Vandemerwe’s apartment, Rapela observed a vehicle

parked in Vandemerwe’s driveway that was registered to Mickelsen. When

Mickelsen departed, Rapela stopped his vehicle pursuant to an existing arrest

warrant and discovered approximately eleven grams of methamphetamine on

Mickelsen’s person. Mickelsen admitted to Rapela that he obtained the

methamphetamine from Vandemerwe, and stated that Vandemerwe had

approximately two to three ounces of methamphetamine in his residence. Rapela

informed Mickelsen his cooperation would be shared with the prosecutor.

      Also included in Rapela’s affidavit was information obtained from

Detective Shumway of the West Jordan City Police Department. Shumway told

Rapela that she knew Vandemerwe’s apartment to be a “drug house” at which she

had arrested Jeff Pickelsimer, a known drug user.

      While Rapela obtained the search warrant, other officers observed two

                                          2
women, later identified as Joanna Wood and Audrey Reinhardt, enter

Vandemerwe’s apartment and leave twenty to thirty minutes later. When an

officer approached the women’s vehicle, Wood admitted to the officer that she

had methamphetamine in her purse. Wood and Reinhardt were taken into

custody.

      Rapela returned to Vandemerwe’s apartment with the search warrant, took

Vandemerwe into custody, and advised him of his Miranda rights. Vandemerwe

initially denied possessing any methamphetamine. However, after Rapela told

Vandemerwe that he had just spoken with Wood and Reinhardt, Vandemerwe

admitted he had given methamphetamine to Wood a short time earlier. He also

admitted he had a small amount of methamphetamine under the bathroom sink.

Police proceeded to find a small plastic baggie containing methamphetamine

under Vandemerwe’s bathroom sink. They also found two types of “cut”—white

powdery substances added to methamphetamine to increase its weight.

      Vandemerwe denied having any other methamphetamine, claiming that he

had given all of his remaining drugs to another person. But after further

searching police found a black “Case Logic” bag hidden in a dropped ceiling.

The bag contained approximately five ounces of methamphetamine and several

plastic baggies. When confronted with the bag, Vandemerwe admitted that it was

the methamphetamine he claimed to have given to another person. He also

indicated that he owed $1,100 per ounce for the methamphetamine, and expressed

                                         3
concern that he would have to explain the loss of this methamphetamine to his

suppliers.

      A jury convicted Vandemerwe on one count of possession of

methamphetamine with intent to distribute.

                                        II

      Vandemerwe first claims that the government violated his right to due

process by failing to preserve the methamphetamine seized from Mickelsen.

However, the record on appeal does not demonstrate that police actually failed to

preserve this evidence. During the cross-examination of Rapela, defense counsel

inquired about the methamphetamine seized from Mickelson:

      Q. The items that we have introduced into evidence, 16, 17 and 18,
      number 16 is the meth from Wood’s purse; is that right?
      A. Yes.
      Q. 17 is the meth from under the sink?
      A. Yes.
      Q. 18 is the Case Logic bag and the contents?
      A. Yes.
      Q. Including the methamphetamine that was in there?
      A. No. I believe the methamphetamine was marked as an exhibit.
      Q. 15?
      A. Yes.
      Q. We don’t have the meth that was seized from Mr. Mickelsen, do
      we?
      A. No, sir.
      Q. Is that in existence today or did that get destroyed?
      A. I am not certain.

      This exchange reveals that the drugs seized from Mickelsen were not in

court, and that Rapela was unsure whether the drugs had been destroyed. At best,

the record is ambiguous as to whether the drugs were preserved. Vandemerwe did
                                        4
not question Rapela on this specific point, nor did he advance his due process

argument before the district court.

      “When a party asserting an issue fails to provide a record sufficient for

considering that issue, the court may decline to consider it.” 10th Cir. R. 10.3(B).

We have noted that “[a]n appellant who provides an inadequate record does so at

his peril.” Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996)

(citation omitted). Our sister circuits have observed that destruction of the

evidence claims must be raised before the district court to be considered on

appeal. See United States v. Larkins, No. 95-5685, 1996 WL 411216, at *2-3 (6th

Cir. July 22, 1996) (unpublished); United States v. Robinson, 503 F.2d 208, 214

(7th Cir. 1974) (“[F]ailure to raise the issue below denied the trial judge an

opportunity to pass on the factual questions . . . this has left the record so

incomplete that we cannot resolve it . . . .”).

      Because Vandemerwe did not raise this issue before the district court, he

forfeited the issue, and the record is inadequate to support appellate review. 1

We will not assume that the drugs were destroyed on the sole basis of Rapela’s

ambiguous testimony. Rather we decline to address the issue given


      1
        The concurrence emphasizes the distinction between an appellant’s failure
to develop an adequate record below and his failure to submit an adequate record
for appellate review. In the instant case, this is a distinction without a difference.
Whether Vandemerwe failed to develop the record at trial or merely submitted an
incomplete record is irrelevant, because the result is the same: we do not have an
adequate record for appellate review. Failure to submit an adequate record
necessarily follows from the failure to develop the record below.
                                          5
Vandemerwe’s failure to develop an adequate record. 2

                                         III

      Vandemerwe next argues that the district court erred by failing to hold a

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), on the veracity of

the warrant affidavit. “[W]e have not expressly indicated what standard of review

applies to a district court’s refusal to conduct a Franks hearing.” United States v.

Archuleta, 222 F. App’x 710, 715 (10th Cir. 2007) (unpublished). Our sister

circuits are split with respect to the appropriate standard of review on this issue.

See United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002). Some employ a

clear error standard of review. See United States v. Buchanan, 985 F.2d 1372,

1378 (8th Cir. 1993); United States v. Skinner, 972 F.2d 171, 177 (7th Cir. 1992);

United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990); United States v. 15

Black Ledge Drive, 897 F.2d 97, 100 (2d Cir. 1990). Other circuits apply a de

novo standard of review. See United States v. Gonzalez, Inc., 412 F.3d 1102,

1110 (9th Cir. 2005); United States v. Martin, 332 F.3d 827, 833 (5th Cir. 2003).

It is not necessary to resolve the standard of review in this case, because we

would affirm the district court’s determination under either standard.

      2
        The Sixth Circuit has indicated that plain error review of destroyed
evidence claims may be appropriate in some cases. See United States v. Edge,
989 F.2d 871, 876 (6th Cir.1993) (per curiam). Even if plain error review were
applicable (which we do not decide), we conclude that the district court did not
plainly err given the absence of evidence plainly showing that the
methamphetamine at issue was actually destroyed. See United States v. James,
257 F.3d 1173, 1182 (10th Cir. 2001) (to obtain relief under plain error standard,
alleged error must be plain or obvious).
                                         6
      Under Franks, there is a “presumption of validity with respect to the

affidavit supporting the search warrant.” 438 U.S. at 171.

      Before the defendant will be entitled to [a Franks] hearing, however,
      the defendant must allege deliberate falsehood or reckless disregard
      for the truth, and those allegations must be accompanied by an offer
      of proof. Affidavits of witnesses should be provided to the court or
      their absence satisfactorily explained. Allegations of negligence or
      innocent mistake are insufficient. If these requirements are met, then
      the defendant must show that the remaining content of the warrant
      affidavit is insufficient to support a finding of probable cause. The
      standards of deliberate falsehood and reckless disregard set forth in
      Franks apply to material omissions, as well as affirmative falsehoods.

United States v. Artez, 389 F.3d 1106, 1116 (10th Cir. 2004) (quotations

and citations omitted).

      Rapela’s affidavit states that CI#1 reported giving an acquaintance a ride to

Vandemerwe’s apartment, where the acquaintance purchased methamphetamine.

Vandemerwe offered an affidavit from an investigator who interviewed the

acquaintance. According to the investigator’s affidavit, the acquaintance denied

purchasing methamphetamine. However, Vandemerwe has not alleged that

Rapela knew of this alleged falsehood or recklessly disregarded it. Nor does the

investigator’s affidavit contradict any statement contained in Rapela’s affidavit.

      Vandemerwe also contends that the affidavit was problematic because

Rapela failed to mention that the basis for referring to Vandemerwe’s apartment

as a “drug house” was an arrest that occurred two years earlier. The affidavit

refers to the arrest, but does not provide a timeframe. This challenge fails

because the timing of the arrest would not refute the existence of probable cause.
                                         7
See id., 389 F.3d at 1117 (omission of the fact that defendant’s two prior arrests

occurred “many years ago and did not result in convictions” was immaterial to the

probable cause analysis).

      Finally, Vandemerwe argues that a Franks hearing was required because

Rapela omitted certain information regarding his interaction with Mickelsen, a/k/a

CI#2. Specifically, Vandemerwe argues that the affidavit should have included:

(1) the fact that Rapela communicated to Mickelsen his suspicion that

Vandemerwe was the source of Mickelsen’s methamphetamine; and (2) the fact

that Rapela told Mickelsen he might receive lenient treatment if he provided

reliable information. But neither putative omission was actually left out of the

affidavit. First, Rapela’s affidavit states that “CI#2 admitted the

methamphetamine your affiant had discovered had just been given to him by

VANDEMERWE.” This statement conveys that it was Rapela who suggested that

the methamphetamine originated with Vandemerwe. Second, Rapela states in his

affidavit that “[y]our affiant told CI#2 that their [sic] cooperation would be

passed on to the prosecutor in his/her case for consideration.” Thus, Rapela

included his suggestion to Mickelsen of the possibility of lenient treatment.

      Vandemerwe has not met his burden of presenting proof to entitle him to a

Franks hearing. We therefore affirm the district court’s order denying

Vandemerwe’s motion.

                                         IV

                                          8
      Lastly, Vandemerwe argues the evidence was insufficient to establish that

he possessed the methamphetamine discovered in the “Case Logic” bag because it

was discovered in an area of the house accessible by his part-time roommate,

Mickelsen. Vandemerwe did not raise the issue of the sufficiency of the evidence

before the district court, and thus we review only for plain error. United States v.

Kaufman, 546 F.3d 1242, 1247 (10th Cir. 2008), cert. denied, 130 S. Ct. 1013

(2009).

      Even though we must review their sufficiency of the evidence claim
      for plain error, a conviction in the absence of sufficient evidence of
      guilt is plainly an error, clearly prejudiced the defendant, and almost
      always creates manifest injustice. Therefore, plain error review and
      de novo review are functionally equivalent so long as the fourth
      prong of plain error review—that the error seriously affects the
      fairness, integrity, or public reputation of judicial proceedings—is
      also met.

Id. at 1263 (quotation omitted).

      “Evidence is sufficient to support a conviction if a reasonable jury could

find the defendant guilty beyond a reasonable doubt, given the direct and

circumstantial evidence, along with reasonable inferences therefrom, taken in a

light most favorable to the government.” United States v. Nelson, 383 F.3d 1227,

1229 (10th Cir. 2004). Evidence is evaluated by “considering the collective

inferences to be drawn from the evidence as a whole.” Id. We do not weigh

conflicting evidence or second-guess the fact-finding decisions of the jury. See

Van Nattan v. United States, 357 F.2d 161, 162 (10th Cir. 1966).

      “Constructive possession exists when a person does not have actual
                                         9
possession, but knowingly holds the power to exercise dominion and control over

an object.” United States v. Sullivan, 919 F.2d 1403, 1430 (10th Cir. 1990)

(quotations omitted).

      In cases of joint occupancy, where the government seeks to prove
      constructive possession by circumstantial evidence, it must present
      evidence to show some connection or nexus between the defendant
      and the firearm or other contraband. A conviction based upon
      constructive possession will be upheld only when there is some
      evidence supporting at least a plausible inference that the defendant
      had knowledge of and access to the weapon or contraband.

United States v. Mills, 29 F.3d 545, 549-550 (10th Cir. 1994) (quotations and

alteration omitted).

      According to Rapela’s testimony, when police discovered the “Case Logic”

bag of methamphetamine in the ceiling, Vandemerwe stated that he owed $1,100

an ounce for that methamphetamine, and that the methamphetamine was the same

five ounces he claimed to have given to another person. This testimony provides

the requisite nexus between Vandemerwe and the methamphetamine required to

establish constructive possession. Vandemerwe’s statements, relayed by Rapela,

indicate not only knowledge of, but also control and dominion over, the

methamphetamine in the “Case Logic” bag. Viewed in the light most favorable to

the government, the evidence was sufficient for a reasonable juror to conclude

beyond a reasonable doubt that Vandemerwe constructively possessed that

methamphetamine.

                                         V

                                        10
     For the foregoing reasons, we AFFIRM the district court’s ruling and

Vandemerwe’s conviction.

                                   Entered for the Court



                                   Carlos F. Lucero
                                   Circuit Judge




                                     11
09-4186, United States v. Vandemerwe

HOLMES, Circuit Judge, concurring.

      I appreciate the thoughtful work reflected in the principal opinion in this

case. I concur in its outcome and embrace the lion’s share of its reasoning. In

particular, that opinion holds in part that Mr. Vandemerwe forfeited his failure-to-

preserve-evidence claim and that the record is inadequate to support appellate

review. I do not disagree with these holdings. However, I write separately to

explicate the basis for my agreement. In particular, I seek to clarify that, as to the

inadequacy of the record, the problem is not that Mr. Vandemerwe failed to

submit an adequate record (e.g., documents or transcripts reflecting the district

court proceedings) to this court on appeal, but rather that he failed to develop

before the district court adequate facts that would allow us to make a legal ruling

concerning the purported failure to preserve evidence.

      As the principal opinion establishes, Mr. Vandemerwe failed to raise the

preservation-of-evidence issue below. A litigant’s failure to raise an issue before

the district court generally results in “forfeiture” of that issue on appeal. United

States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007). Although we may exercise

our discretion in certain instances to entertain an issue despite a lack of

preservation, id., our case law indicates that we should not address an issue raised

for the first time on appeal when it would require us to resolve factual disputes,

or when the evidence presented at trial is insufficient to permit us to resolve

adequately the legal issues presented on appeal. See, e.g., id. at 1202 (stating that
the court will address new issues on appeal where “no additional findings of fact

or presentation of evidence [are] required for the issue’s disposition”); United

States v. Easter, 981 F.2d 1549, 1556 (10th Cir. 1992) (“[P]lain error review is

not appropriate when the alleged error involves the resolution of factual

disputes.”); cf. United States v. Hamilton, 587 F.3d 1199, 1216 n.9 (10th Cir.

2009) (“By failing to present the [Fifth and Fourth Amendment suppression]

claims to the district court, Mr. Hamilton effectively prevented the court from

making factual findings that would be germane to the disposition of Mr.

Hamilton’s claims . . . . Accordingly, we would not be situated on this sparse and

deficient record to conclude [under plain error review] that any errors by the

district court concerning Mr. Hamilton’s Fifth and Fourth Amendment claims

were obvious and clear.”).

       Due to the factual nature of such claims, at least one of our sister circuits

has concluded that destruction-of-the-evidence claims generally must be raised

before the district court to be considered on appeal. See United States v.

Robinson, 503 F.2d 208, 214 (7th Cir. 1974) (“[F]ailure to raise the [destruction-

of-evidence] issue below denied the trial judge an opportunity to pass on the

factual questions involved . . . . [T]his has left the record so incomplete that we

cannot resolve it . . . .”).

       In this case, the record developed before the district court did not establish

whether the drugs had been preserved or destroyed; that is, the evidence produced

                                          -2-
at trial was insufficient to establish that fact. When asked whether the

methamphetamine seized from Mr. Mickelsen was “in existence today” or was

“destroyed,” Detective Rapela stated that he “was not certain.” Detective Rapela

also acknowledged that the government “d[id]n’t have the meth that was seized

from Mr. Mickelsen” as an exhibit before the court; however, this ambiguous

acknowledgment does not establish that the drugs were destroyed or that the

government failed to preserve them. At most, Detective Rapela’s testimony

establishes that the evidence seized from Mr. Mickelsen was not admitted into

evidence at trial, and that Detective Rapela was unsure of its whereabouts at that

time. Because the record developed before the district court leaves open

important factual issues—most notably, whether the evidence seized from Mr.

Mickelsen was in fact lost or destroyed—the record is inadequate to permit

resolution of Mr. Vandemerwe’s claim that the government failed to preserve

evidence. Therefore, we decline to review this claim.

      As explained, Mr. Vandemerwe has lost his right to appellate review of his

forfeited claim because he failed to develop an adequate record before the district

court. I respectfully submit that the principal opinion’s analysis does not

properly reflect this fact; indeed, it obscures it. The principal opinion rests its

holding on the premise that Mr. Vandemerwe has failed to “provide” an adequate

record to this court on appeal. In support of its holding, the principal opinion

cites Tenth Circuit Rule 10.3(B), which states that “[w]hen the party asserting an

                                          -3-
issue fails to provide a record sufficient for considering that issue, the court may

decline to consider it.” However, Rule 10.3 governs the “content” of the physical

record submitted to the court on appeal—for example, by enumerating the

“essential” and “required” contents that must be included in the appellate record.

10th Cir. R. 10.3(A), (C).

      This court has applied Rule 10.3(B) in cases where, unlike here, the

appellant has submitted an incomplete record of the proceedings below. See, e.g.,

Allan v. Springville City, 388 F.3d 1331, 1334 (10th Cir. 2004) (refusing to

consider the appellant’s challenge to a jury instruction because she failed to

“submit an adequate record” in that “her appendix d[id] not include the transcript

of the jury instruction conference” (citing 10th Cir. R. 10.3(B))); Travelers

Indemnity Co. v. Accurate Autobody, Inc., 340 F.3d 1118, 1121 (10th Cir. 2003)

(“The failure of both appellant and cross-appellant to include in the appendix the

document that controls the resolution of the issues on appeal—the Travelers

insurance policy issued to Autobody—deprives them of the right to challenge the

judgment of the district court.”); King v. Unocal Corp., 58 F.3d 586, 588 (10th

Cir. 1995) (The appellant “failed to provide us with a copy of the pages of

transcript containing his objections to several of the challenged instructions.

Because Appellant did not provide us with a proper record, we cannot review his

appellate issue.” (citing 10th Cir. R. 10.3(B))); see also, e.g., United States v.

Gutierrez-Vasquez, 373 F. App’x 860, 862 (10th Cir. 2010) (refusing to consider


                                          -4-
whether the appellant’s plea was voluntary because “neither Mr.

Gutierrez-Vasquez nor his counsel have submitted the transcript of his plea

hearing for our review or provided any other information regarding the hearing

for us to consider, other than the Plea Minute Sheet” (citing 10th Cir. R.

10.3(B))).

      There is no indication here that the record before this court on appeal is

somehow incomplete because Mr. Vandemerwe failed to submit necessary

portions of it to us. Therefore, the principal opinion’s reliance on Rule 10.3, and

case law applying that rule, is misplaced. Nevertheless, I agree with that

opinion’s ultimate determination that Mr. Vandemerwe forfeited his failure-to-

preserve-evidence claim and that the record is inadequate to support appellate

review.




                                         -5-
