                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      July 7, 2009
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-8032
 v.                                                     (D. Wyoming)
 GREGORY A. GARTON,                            (D.C. No. 07-CR-00135-ABJ-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and GORSUCH, Circuit Judges.



I.    Introduction

      Defendant-appellant, Gregory A. Garton, was charged in an eight-count

superceding indictment with drug and firearms crimes. Garton moved to dismiss

Counts 1 and 6, arguing they violated the terms of a prior plea agreement. Garton

also filed a motion in limine to preclude the introduction of evidence implicating

him in an Arizona murder. The district court denied the motion to dismiss the

two counts but granted the motion in limine. At trial, a witness violated the


      *
        This order and judgment is not binding precedent except under the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.
liminal order by referencing Garton’s alleged role in the Arizona murder. The

district court gave a curative instruction and denied Garton’s motion for a

mistrial.

      The jury convicted Garton on all eight counts. He was sentenced to

seventy-five years’ imprisonment. On appeal, Garton challenges the district

court’s refusal to dismiss Counts 1 and 6, and the court’s denial of his motion for

a mistrial. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

judgment.

II.   Background

      On September 11, 2003, Garton was stopped in Rawlins, Wyoming by the

Rawlins Police Department because his vehicle had a non-functioning headlight.

During a search of Garton’s truck, officers found two loaded pistols, a shotgun, a

pipe containing a residual amount of methamphetamine, an empty duffle bag

which smelled strongly of marijuana, and a duct-taped package containing $8000

in United States currency. As a consequence of this traffic stop, Garton was

charged with being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). He pleaded guilty to the charge, entering into a

written plea agreement on March 12, 2005, containing the following provision:

      The United States agrees that in exchange for the Defendant’s plea of
      guilty to the crime charged in the Indictment the United States will
      not seek to charge the Defendant with any additional offenses arising
      out [of] the facts and circumstances giving rise to the charge
      contained in the plea agreement.

                                         -2-
Garton was sentenced to time served and two years’ supervised release.

      Two years after his felon-in-possession conviction, Garton was charged in

an eight-count superceding indictment with drug and firearms crimes. Only two

counts are relevant to this appeal. Count 1 charged Garton with conspiracy to

possess with intent to distribute and to distribute, methamphetamine, cocaine, and

marijuana. Count 6 charged that Garton carried a firearm during and in relation

to the drug-trafficking crime charged in Count 1. Both counts alleged the

criminal conduct occurred some time between January 1, 2002, and September

2006. Garton moved to have the two counts dismissed, arguing they violated the

terms of the 2005 plea agreement because the date of his Rawlins arrest fell

within the time period referenced in Counts 1 and 6. He asserted that most

corroborating physical evidence supporting Counts 1 and 6 would likely center on

evidence seized as a result of the Rawlins traffic stop. The district court denied

the motion and the matter proceeded to trial.

      Several of Garton’s alleged co-conspirators testified at his trial. Garton’s

former girlfriend, Wendi Eades Dodd, testified that she accompanied Garton on

several trips to Arizona between March 2003 and September 2003. While in

Arizona, Garton purchased marijuana and methamphetamine for distribution in

Wyoming. According to Ms. Dodd, Garton was traveling to Arizona when he was

stopped in Rawlins on September 11, 2003. Ms. Dodd testified the Arizona trips

were discontinued after the Rawlins arrest because not “many people trusted

                                         -3-
[Garton] after that.” She further stated, however, that beginning in September

2004, Garton began helping her neighbor, Robert Dodd, 1 distribute

methamphetamine. Ms. Dodd also testified that she purchased a gun on July 4,

2004, and Garton carried that firearm until January 2005 when it was seized by

police. When asked how often she saw Garton with a firearm between 2002 and

2005, Ms. Dodd stated, “He had them everywhere he went.”

        Robert Dodd corroborated many of Ms. Dodd’s statements, testifying that

Garton sold small amounts of methamphetamine for him beginning in the fall of

2004. Mr. Dodd also testified that Garton frequently traveled with him to Salt

Lake City where Dodd would purchase methamphetamine for resale in Wyoming.

When the two returned to Casper, they divided the drugs between them; a portion

of the amount Garton received was for his personal use and the remainder was for

distribution to other users in Casper. Mr. Dodd testified Garton carried a firearm

during the trips to Salt Lake City and that Garton “usually” carried a gun in a

shoulder holster.

        Several other witnesses testified about Garton’s drug trafficking activities.

Robert Clark testified that he purchased approximately 5.25 grams of crystal

methamphetamine from Garton in the fall of 2002. Becky Cavender testified that

she purchased three to four ounces of methamphetamine from Garton in the


        1
            At the time of Garton’s trial, Wendi Eades Dodd was married to Robert
Dodd.

                                           -4-
summer of 2003. According to Ms. Cavender, Garton delivered the drugs to her

apartment in a briefcase that contained both the methamphetamine and a gun.

The government also offered the testimony of Zane Grayson, who stated he

purchased a small amount of methamphetamine from Garton in the fall of 2004.

Grayson also testified that Garton traveled with Mr. Dodd to Salt Lake City on at

least two occasions to purchase large amounts of methamphetamine and he

assumed Garton brought his gun on those trips because Garton always carried a

black gun in a shoulder holster. Shaunell Brown stated that she once purchased

methamphetamine from Garton and assumed he had a black pistol with him

during the sale because he “always had it.” Marcus Grayson testified that Garton

carried two handguns “most of the time” and he characterized Garton as Mr.

Dodd’s “collection guy.”

      The government’s case was also supported by the testimony of Eric Ford

and Troy Palmer, officers with the Rawlins Police Department. Officer Ford

testified that he initiated the traffic stop of Garton’s vehicle on September 11,

2003, and found a shotgun and two loaded handguns when he searched the

passenger compartment. Garton was wearing a shoulder holster but there was no

gun in it. Ford told the jury officers also found a glass pipe commonly used to

smoke cocaine or methamphetamine, a duct-taped package later determined to

contain $8000, and a small amount of marijuana. Officer Palmer, who continued

the search after Garton’s vehicle was towed, testified there were three duffle bags

                                          -5-
in the vehicle. Two of the bags contained clothing; the third was empty and

smelled strongly of marijuana. The government also introduced the three firearms

seized from Garton on September 11, 2003.

      On the second day of trial, the government elicited testimony from Jason

Albat. Like many of the other government witnesses, Albat testified that Garton

traveled to Salt Lake City with Mr. Dodd to purchase methamphetamine and he

assumed Garton carried his pistol on the trips because he “always had his pistol

on.” 2 According to Albat, Garton was typically with Mr. Dodd “when the deals

went down.” During redirect examination, the following exchange took place

between Albat and the prosecutor when Albat was questioned about Garton’s trips

to Arizona with Ms. Dodd:

      Q:     Mr. Albat, I was asking you what [Ms. Dodd] told you about
             her trips with Mr. Garton to Arizona.
      A:     Yeah.
      Q:     What did she tell you?
      A:     She just told me that that’s where, uh, they got their weed.
             She didn’t, she didn’t mention too much other than that. Uh,
             she mentioned that one time down there that, uh, or I don’t
             know if she was present or whatever, but that [Garton] had
             shot someone down there.

Albat’s testimony was given in direct violation of the district court’s liminal

order. The court immediately instructed the jury as follows: “Ladies and

gentlemen, you will disregard the testimony of this witness with regard to that

      2
      Albat testified he once carried a firearm on a drug-purchasing trip to Salt
Lake City with Mr. Dodd. Albat’s purpose in accompanying Dodd was to “watch
[Dodd’s] back” and “make sure [Dodd] didn’t get robbed.”

                                         -6-
matter. It is stricken.” Garton’s counsel then moved for a mistrial, which was

denied.

       The jury convicted Garton of all eight counts set out in the superceding

indictment. In this appeal, Garton challenges the district court’s refusal to

dismiss Counts 1 and 6, and the court’s refusal to grant a mistrial based on

Albat’s testimony about the Arizona murder.

III.   Discussion

       A.    Prior Plea Agreement

       Garton first argues the government violated the terms of the 2005 plea

agreement when it charged him with conspiracy to possess with intent to

distribute and to distribute, methamphetamine, cocaine, and marijuana (Count 1)

and carrying a firearm during and in relation to a drug trafficking crime (Count

6). Garton seeks dismissal of the two disputed counts and a retrial on the

remaining six counts. See Santobello v. New York, 404 U.S. 257, 263 (1971)

(including specific performance as a possible remedy for a violation of a plea

agreement); see also Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1994)

(“Allowing the government to breach a promise that induced a guilty plea violates

due process.”). The question of whether the government has violated the terms of

a plea agreement is reviewed de novo. United States v. Guzman, 318 F.3d 1191,

1195 (10th Cir. 2003). Our review involves a two-step process in which we

examine the nature of the government’s promise and evaluate that promise in light

                                         -7-
of the defendant’s reasonable understanding at the time he entered into the

agreement. Id. at 1195-96.

      Here, the government agreed it would not charge Garton with any

additional crimes “arising out [of] the facts and circumstances giving rise to the”

felon-in-possession charge. The facts and circumstances giving rise to that

charge are: (1) Garton was previously convicted of a felony, (2) he knowingly

possessed a firearm on September 11, 2003, and (3) the possession was in or

affecting interstate commerce. United States v. Ledford, 443 F.3d 702, 705 (10th

Cir. 2005). The inclusion of Counts 1 and 6 in the superceding indictment was

not a per se violation of the 2005 plea agreement. Both counts allege Garton’s

criminal conduct occurred some time between January 1, 2002 and September

2006. Although that date range includes the day Garton was stopped in Rawlins,

nothing in the language of the superceding indictment compels the conclusion that

either Count 1 or Count 6 was premised, in whole or in part, on the facts or

circumstances giving rise to the felon-in-possession charge. The question

remains, however, whether the government violated the plea agreement when it

introduced evidence at trial that Garton was carrying firearms when he was pulled

over in Rawlins.

      Both Officer Ford and Officer Palmer testified about the Rawlins traffic

stop, and the firearms themselves were introduced into evidence. A review of the

record reveals this evidence was offered to prove that Garton engaged in drug

                                         -8-
trafficking activities and that he carried a firearm during and in relation to those

activities. See United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991)

(holding “firearms, large sums of cash, . . . and uncharged quantities of illegal

drugs” are admissible to show a defendant is involved in the distribution of illegal

drugs). Instruction 30 related to Count 1 and stated,

      In determining a person’s “intent to distribute” controlled substances,
      the jury may consider, among other things, the purity of the
      controlled substance, the quantity of the controlled substance, the
      presence of equipment used in the processing or sale of controlled
      substances, firearms and large amounts of cash. (Emphasis added.)

Instruction 53 related to Count 6, and informed the jury it could convict Garton

on that count if it found he carried a firearm during and in relation to the

conspiracy charged in Count 1. Further, during closing arguments the

government referenced the evidence from the Rawlins traffic stop, tying it to both

counts by arguing:

      10 days later or about Mr. Garton is back on his way down to
      Arizona. And what’s he—what does he have with him, ladies and
      gentlemen? He has two pistols with rounds in the chamber. He has a
      shotgun. He has cash wrapped in plastic and duct tape with an 8 on
      the outside of it. And he has a small amount of marijuana and
      methamphetamine, which makes sense because he’s going back down
      to Arizona to re-up.

Thus, despite its promise that it would not seek to charge Garton with additional

offenses arising out of the facts and circumstances giving rise to the felon-in-




                                          -9-
possession charge, the government used those facts and circumstances 3 at trial to

support Counts 1 and 6.

      We discern no practical difference between basing Counts 1 and 6 solely on

Garton’s September 11, 2003, firearm possession and using evidence of that

possession to prove the broader charges as set out in the superceding indictment.

However, it is unnecessary for us to definitively resolve whether the introduction

of evidence that Garton was carrying firearms on September 11, 2003, while

allegedly en route to Arizona to purchase illegal drugs, violated the terms of the

plea agreement because any error in introducing that evidence to prove Counts 1

and 6 was harmless. 4 See United States v. Pearson, 203 F.3d 1243, 1263 (10th

Cir. 2006) (concluding it was appropriate to apply a harmless error analysis to a

due process violation). Numerous witnesses testified that Garton carried a

firearm while engaged in a conspiracy to distribute illegal drugs and the majority

of those witnesses testified about events occurring after the fall of 2004, when



      3
       Garton’s possession of drug paraphernalia and $8000 in cash were relevant
to Count 1. Those facts and circumstances, however, did not give rise to the
felon-in-possession charge and, therefore, they do not implicate the 2005 plea
agreement.
      4
        Although the government does not argue harmlessness in its appellate
brief, this court will address the issue sua sponte. See Wyoming v. Livingston,
443 F.3d 1211, 1226 (10th Cir. 2006). The record is not lengthy or complex; the
testimony of the witnesses has been comprehensively summarized by the
government for purposes of Garton’s second claim of error. See id. Further,
there is no serious doubt about the harmlessness, and a retrial on Counts 1 and 6
without the September 11, 2003, evidence would be futile. See id.

                                        -10-
Mr. Dodd began renting a shop in Casper. The testimony of Officers Ford and

Palmer that Garton was carrying a firearm on September 11, 2003, was either

corroborative of or cumulative to these other witnesses. See United States v.

Clifton, 406 F.3d 1173, 1179 (10th Cir. 2005). Viewing the record as a whole,

the officers’ testimony and the admission of the firearms seized from Garton in

Rawlins on September 11, 2003, were only a minor part of the government’s case

against Garton on Counts 1 and 6. We conclude any error in admitting that

evidence was harmless beyond a reasonable doubt.

      B.     Violation of Motion in Limine

      Garton also challenges the district court’s refusal to grant a mistrial after

the government’s witness, Jason Albat, inculpated him in a murder in Arizona.

The testimony was given in direct contravention of the liminal order. This court

reviews the denial of a motion for mistrial for abuse of discretion. United States

v. Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004). When a government witness

offers improper testimony, we evaluate “(1) whether the prosecutor acted in bad

faith, (2) whether the district court limited the effect of the improper statement

through its instructions to the jury, and (3) whether the improper remark was

inconsequential in light of the other evidence of the defendant’s guilt.” Id.

Garton concedes the prosecutor did not act in bad faith. His argument, instead,

focuses first on his assertion the district court’s curative instruction was

insufficient and second on his position the improper remark was severely

                                          -11-
prejudicial because no other admissible evidence painted him as a violent

individual.

      After Albat’s improper testimony, the district court immediately gave the

jury a limiting instruction, directing it to disregard the statement. While the

instruction was short, it was comprehensive and unequivocal. Further, we assume

the jury followed the court’s clearly worded instruction. United States v.

Rodriguez-Aguirre, 108 F.3d 1228, 1237 (10th Cir. 1997). It is impossible to

deny that Albat’s testimony was inflammatory. Having reviewed the record,

however, we discern no basis to believe the jury relied on the statement to convict

Garton. The government’s admissible evidence was overwhelming on all counts.

After fully considering Garton’s arguments, we conclude the district court did not

abuse its discretion when it refused to grant a mistrial.

IV.   Conclusion

      Judgment affirmed.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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