                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 4, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-2201
          v.                                           (D. New Mexico)
 WINGROVE EDWARD MICHAEL,                     (D.C. No. 1:06-CR-01833-MCA-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.



I. Introduction

      Wingrove Edward Michael appeals his conviction of possession with intent

to distribute more than 100 kilograms of marijuana and his resulting sentence. He

argues the district court erred in denying his motion to dismiss the charge on the

grounds that the government destroyed potentially exculpatory evidence in bad

faith. He further asserts the district court erred in refusing to grant a downward

adjustment to his sentence for his minor role and for enhancing his sentence based


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
on a finding of obstruction of justice. Exercising jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court AFFIRMS.

II. Background

      As found by the district court, Michael, driving a refrigerated tractor-trailer

truck, passed through a checkpoint in New Mexico where his truck was subjected

to a routine safety inspection. During the initial inspection, a New Mexico

Department of Public Safety officer noticed the truck did not display a current

Commercial Vehicle Safety Alliance inspection sticker and Michael’s logbook

reported unusual travel activity. Based on these observations, the officer referred

Michael to a second-level safety inspection. During that inspection, Michael

identified himself as the owner of the truck, including the trailer. He also

produced a bill of lading that was unusual in several ways, including that it

identified three boxes of tools as the only cargo. This cargo would leave most of

the truck empty and would not require refrigerated transportation.

      While conducting an examination of the truck itself, the officer observed

the trailer was empty except for three wooden crates toward the front. He also

observed several features that seemed to indicate a false wall at the front of the

trailer concealing a hidden compartment. Most notably, he observed a three-foot

difference in length between the interior and the exterior of the trailer

compartment. During the inspection, the initial investigating officer could not

detect an odor of marijuana, but acknowledged in his report that another officer

                                         -2-
stated he could smell marijuana. At the conclusion of the inspection, the officer

detained Michael, performing a pat-down search and conducting a canine

inspection of the exterior of the truck. The dog alerted at the front of the trailer.

      Michael was arrested and a search warrant for the truck was obtained. The

officers then opened the three wooden crates. The crates measured approximately

four to five feet on each side and were fastened with wood screws, insulated on

the interior with Styrofoam, and sealed with silicone along the joints. Bundles

inside the crates, wrapped in contact paper, contained marijuana. The crates and

their contents were seized. Drug Enforcement Administration (“DEA”) agents

found no fingerprints on the seized evidence. The marijuana was photographed

and weighed, samples were taken for testing, and it was transferred to the DEA

drug evidence vault in Albuquerque.

      Michael was charged with a single count of possession with intent to

distribute more than 100 kilograms of marijuana in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). After the charge was filed, the DEA sent a letter to the

United States Attorney informing him that the bulk marijuana, but not the

samples, would be destroyed after sixty days unless a written request for an

exception to the DEA’s drug destruction policy was received before that period

expired. Extensive correspondence between two DEA agents, the Assistant

United States Attorney (“AUSA”), and Michael’s attorney followed. The details

of the exchanges were part of the district court’s findings and need not be

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repeated here. In essence, Michael’s attorney repeatedly asserted a general

objection to the destruction of the marijuana, and the DEA agents and the AUSA

repeatedly directed Michael’s attorney to seek a court order. Michael’s attorney

informed both a DEA agent and the AUSA of his intention to file a motion.

      After the sixty-day period had expired but before the marijuana was

actually destroyed, Michael’s attorney filed a motion to preserve the evidence. In

the motion, he explained that he contemplated hiring experts to analyze the

evidence and conduct a scientific odor analysis. He nonetheless asserted the short

time frame prevented him from fully developing a theory about the usefulness of

the evidence. The district court directed the government to file an expedited

response to Michael’s motion. The AUSA, however, testified he did not become

aware of the motion until more than a week after it was filed because of the

Thanksgiving holiday and other business. Upon learning of the motion, he sent

an email to the DEA agent. The agent stated he did not receive the email until yet

another day had gone by because of his absence from work. When he did receive

it, he informed the AUSA that the marijuana was at the burn site and destruction

would not be delayed. Thus, despite the pending motion to preserve evidence, the

marijuana was destroyed that same day. The government informed the district

court of the destruction when it filed its response.

      After acknowledging the motion to preserve evidence was moot, Michael

moved to dismiss the charge and/or suppress “the alleged marijuana evidence

                                          -4-
seized from the tractor/trailer,” arguing the government’s destruction of the

marijuana violated his due process rights. Michael subsequently submitted the

affidavit of a potential expert witness who opined how the marijuana might have

been tested to determine whether a human could have detected any odor. At a

hearing on Michael’s motion, the expert admitted various flaws in his proposed

odor analysis that could affect the reliability of the results. Michael’s attorney

indicated the expert was not retained to provide expert testimony that would be

admissible at trial, but rather only to explore potential usefulness of the evidence.

      The district court acknowledged a dispute whether the odor was detectable

and credited some evidence the government acted in bad faith when it destroyed

the marijuana, thereby raising due process concerns. It concluded, however, that

the proper remedy was to suppress any evidence the officers or any other human

could smell the marijuana. At trial, Michael testified in his own defense, stating

he did not know the crates contained marijuana. He was convicted by the jury.

      At sentencing, Michael requested a downward adjustment to his offense

level based on his minor role in the criminal activity, arguing he was nothing

more than a courier. See U.S. Sentencing Guidelines Manual § 3B1.2. The

district court denied that adjustment. In addition, Michael’s presentence report

(“PSR”) recommended a two-level upward adjustment for obstruction of justice

based on perjury pertaining to the conduct forming the basis of the offense,

notably, Michael’s false testimony that he lacked knowledge of the contents of

                                          -5-
the crates. See id. § 3C1.1. Michael objected to the enhancement, noting the

Guidelines require specific findings of the elements of perjury and that a § 3C1.1

enhancement cannot be based solely on a defendant’s decision to testify. The

district court applied the obstruction of justice enhancement, calculating

Michael’s advisory guidelines sentencing range at seventy-eight to ninety-seven

months. The court sentenced Michael to a seventy-eight month term of

imprisonment.

III. Discussion

      A. Destruction of Evidence

      Michael argues the district court erred in denying his motion to dismiss the

charge based on the government’s destruction of potentially exculpatory evidence,

namely the bundles of bulk marijuana. He asserts the destroyed evidence could

have been used to show that a human could not have detected the smell of the

contents of the bundles. This fact purportedly would bear on Michael’s

knowledge of the contents.

      To demonstrate that destruction of evidence rises to the level of a due

process violation, a defendant must show the government destroyed potentially

useful evidence, there was no reasonable avenue for obtaining comparable

evidence, and the destruction was in bad faith. Arizona v. Youngblood, 488 U.S.




                                         -6-
51, 57-58 (1988); United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994). 1 A

district court’s underlying factual determinations are reviewed for clear error.

Bohl, 25 F.3d at 909; see United States v. Gardner, 244 F.3d 784, 788 (10th Cir.

2001). This court reviews for abuse of discretion the district court’s decision to

remedy the government’s bad faith destruction of evidence by suppressing

secondary evidence rather than dismissing the charge. See United States v.

Barajas-Chavez, 358 F.3d 1263, 1267 (10th Cir. 2004); see also Bohl, 25 F.3d at

914 (explaining the weighing of factors to be considered in choosing an

appropriate remedy).

       The question on appeal is whether suppression of all odor evidence was an

adequate remedy for the bad faith destruction of the marijuana. Michael advances

no argument as to why dismissal of the charge was required, but seems to

presume dismissal is always required once a constitutional violation of this nature

is established. This court, however, has clearly stated that once a due process

violation is established, “the decision to either suppress the government’s

secondary evidence describing the destroyed material or to dismiss the indictment

turns on the prejudice that resulted to the defendant at trial.” Bohl, 25 F.3d at

914.

       1
       If evidence is not merely “potentially useful,” but rather has exculpatory
value that is apparent before its destruction, a defendant need not demonstrate bad
faith. See California v. Trombetta, 467 U.S. 479, 489 (1984). No argument has
been made here, however, that Michael can satisfy the more exacting Trombetta
standard, nor does the record support such a conclusion.

                                         -7-
      There is no reason in this case to second guess the sound judgment of the

district court in fashioning an appropriate remedy. The district court correctly

considered the prejudice that might result from Michael’s inability to access the

destroyed evidence. It appropriately noted the low probability of usefulness of

the destroyed evidence based on the expert’s admission that the proposed odor

analysis would not be able to take account of many relevant factors, such as any

change in odor over time, competing odors that might have been present in the

trailer, temperature, and wind speed.

      Moreover, the court considered what role the odor evidence might play in

the government’s case as to each element of the offense. It explained that the

destroyed evidence was not required for the government to demonstrate the nature

of the contents of the crates or the quantity of marijuana. It further noted the

government recovered no fingerprints or biometric information linking Michael to

the destroyed evidence, and Michael would be able to point to the absence of such

evidence at trial. Finally, the district court concluded the only way the

government might use the destroyed evidence to Michael’s prejudice would be to

suggest Michael could have or would have known the contents of the crates by

their distinctive odor.

      Accordingly, the district court cured any possible prejudice to Michael by

suppressing all evidence the government could otherwise introduce concerning




                                          -8-
human ability to detect the marijuana’s odor. 2 Although the issue of Michael’s

knowledge was central to the government’s case, once the district court

suppressed the odor evidence, the issue of whether humans could detect the odor

played no part in the trial. The district court carefully crafted the remedy to

protect Michael’s rights and did not abuse its discretion in choosing to suppress

secondary evidence rather than dismiss the charge.

       B. Sentencing

              1. Obstruction of Justice

       Michael argues the district court improperly enhanced his sentence for

obstruction of justice based on Michael’s testimony at trial. In the alternative,

Michael contends the district court failed to make the requisite factual findings to

support the enhancement and that this court should remand for clarification by the

district court.

       An obstruction of justice enhancement is appropriate when a court finds the

defendant has committed perjury pertaining to conduct that is the basis of the

offense for which a defendant was convicted. U.S. Sentencing Guidelines Manual

§ 3C1.1 cmt. n.4(B). In the context of § 3C1.1, perjury is committed when a


       2
        Any affirmative use Michael might have made of the odor analysis in an
effort to demonstrate his lack of knowledge is purely speculative and, in any
event, this argument is not adequately developed on appeal. It would, moreover,
have been subject to competing evidence that at least one officer detected the
odor at the time of arrest. Accordingly, there is no error in the district court’s
determination that any prejudice to Michael could be remedied by suppression.

                                          -9-
defendant makes a false statement under oath, the statement concerns a material

matter, and the defendant intends to testify falsely. United States v. Hawthorne,

316 F.3d 1140, 1145 (10th Cir. 2003). We review factual findings relating to an

obstruction of justice enhancement for clear error and legal interpretations of the

sentencing guidelines de novo. Id. Specific findings concerning each of the

elements of perjury is strongly preferred. United States v. Dunnigan, 507 U.S.

87, 95 (1993), abrogated on other grounds, United States v. Wells, 519 U.S. 482

(1997). In addition, this court requires the district court to identify, at least

generally, the statements found to be false. Hawthorne, 316 F.3d at 1146.

      Here the district court merely recited: “I am overruling that objection [to

the enhancement], and there will be the adjustment that stands for obstruction. I

think all the criteria have been met here.” In isolation, this statement would be

insufficient. Although this court strongly urges district courts to make detailed

and explicit findings on each required element supporting an obstruction of

justice enhancement based on perjury, the context of the district court’s

statements may be taken into account on appellate review. See id. at 1146.

      The context of the district court’s statements cure any deficiency here.

First, the PSR specifically recommended the obstruction of justice enhancement

based on Michael’s trial testimony that he lacked knowledge the crates in the

trailer contained marijuana. The PSR quoted Michael’s trial testimony where he

specifically answered “no” to the questions, “Did you know what was in the

                                          -10-
crates? . . . Did you know that there was marijuana in there? . . . Did you ever

suspect any marijuana being in there?” The PSR explained that the jury’s guilty

verdict necessarily indicated the jury did not find Michael’s testimony as to his

knowledge truthful, since knowledge is an element of the offense for which

Michael was convicted.

      At the sentencing hearing, Michael’s lawyer read the testimony quoted in

the PSR and focused his argument on that testimony. Michael also correctly set

out the elements of perjury the district court was required to find, and presented

argument as to how Michael’s testimony did not meet the elements. The

government likewise focused on the quoted testimony and again laid out the

elements of perjury. Immediately prior to the district court’s ruling, the

government stated:

      [Michael] was asked about three or four different ways whether he
      knew about the drugs in that trailer, and he denied it and he said
      “No.”

             So Your Honor, the point with this is, all three prongs of this
      test are satisfied. He was under oath. It was material, and it was
      material because everything that he was saying was directed at the
      facts of the case, and for the jury to conclude that his story was true.
      And the last prong itself, Your Honor, was that it was false testimony
      and it was willful. It’s not a mistake.

Immediately thereafter, the court found all the requirements for application of the

enhancement were met. While the far better practice is for the district court to

make specific findings, in the context of the dialogue at the sentencing hearing


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and the PSR, it is clear the district court found Michael’s testimony met each of

the three requirements for perjury sufficient for this court to uphold the findings

as adequate.

      Michael’s argument that the jury’s guilty verdict is not necessarily

inconsistent with his testimony that he lacked knowledge of the contents of the

crates also fails. He argues the jury could have found him guilty based on a

constructive possession rather than actual possession theory. Even if that were

true, however, constructive possession does not negate the knowledge element of

an offense. See United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th

Cir. 1998) (“Generally, a person has constructive possession when he or she

knowingly holds ownership, dominion or control over the object and premises

where it is found.” (emphasis added)). The district court here, in instructing the

jury that it could find Michael guilty based either on actual possession or

constructive possession, properly explained that “[a] person who, although not in

actual possession, knowingly has the power at a given time to exercise dominion

or control over an object, either directly or through another person or persons, is

then in constructive possession of it.” (emphasis added). That is, constructive

possession is an alternate avenue for proving possession, but does not supplant

the knowledge requirement. The jury necessarily had to find that Michael had

knowledge of the crates’ contents to find him guilty whether his possession was

actual or constructive.

                                         -12-
      Accordingly, the district court’s finding that Michael committed perjury

was not based solely on Michael’s decision to testify in his own defense, but

rather that he willfully testified to a material fact the jury necessarily found was

false beyond a reasonable doubt. See U.S. Sentencing Guidelines Manual § 3C1.1

cmt. n.2. The district court did not err in applying the two-level upward

adjustment for obstruction of justice.

             2. Minor Role Adjustment

      Michael argues he should have been granted a downward adjustment in his

offense level for his minor role in the criminal activity. A defendant may receive

a minor role adjustment if his part in the offense renders him significantly less

culpable than an average participant. Id. § 3B1.2 cmt. n.3(A). We review the

district court’s factual finding that Michael did not play a minor role for clear

error and the district court’s application of the sentencing guidelines de novo.

United States v. Bowen, 437 F.3d 1009, 1018 (10th Cir. 2006). The defendant

bears the burden of proving entitlement to a minor role adjustment by a

preponderance of the evidence. See United States v. Mendoza, 468 F.3d 1256,

1264 (10th Cir. 2006).

      In denying the minor role adjustment to Michael, the district court

explained that it had insufficient information to indicate one way or another what

Michael’s role was, including whether he was directing or acting at the direction

of others. The sole evidence before the district court was Michael’s own

                                         -13-
testimony that he was only a courier, which the district court can discredit. See

United States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004) (“A

defendant’s own testimony that others were more heavily involved in a criminal

scheme may not suffice to prove his minor or minimal participation, even if

uncontradicted by other evidence.”). Moreover, even if Michael’s role was

limited to that of a courier, a courier role is not minor per se. See United States v.

Eckhart, 569 F.3d 1263, 1276 (10th Cir. 2009) (noting the importance of drug

couriers in the drug trade and that no per se rule concerning minor role

adjustments applies to couriers). “[A] downward adjustment for a defendant’s

role in an offense turns on the defendant’s culpability relative to other

participants in the crime.” Id. (quotation omitted). It is particularly appropriate

to deny a minor role in a case such as this one where no other participant in the

crime is known to which Michael’s role can be compared. See U.S. Sentencing

Guidelines Manual 3B.1.2 cmt. n.2.

      The district court had before it more than sufficient evidence to find that

Michael’s role was not minor, including Michael’s ownership of the tractor-trailer

and control over it, and the quantity of marijuana in the trailer. Accordingly, the

district court did not clearly err in finding Michael had not met his burden to

demonstrate his role was minor.




                                          -14-
IV. Conclusion

     For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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