                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 21 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 99-6151
 WILLIAM GENE EATON,                                (D.C. No. 98-CR-183)
                                                        (W.D. Okla.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BALDOCK, HENRY, and LUCERO, Circuit Judges. **


      A jury convicted Defendant William Gene Eaton on (1) two counts of bank

robbery in violation of 18 U.S.C. § 2113, (2) one count of carrying a firearm

during that robbery in violation of 18 U.S.C. § 924(c)(1), (3) one count of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), (4) three



      *
        This order and judgment is not binding precedent, except under the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. 36.3.
      **
          After examining the briefs and appellate record, the panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The
case is therefore ordered submitted without oral argument.
counts of obstruction of justice in violation of 18 U.S.C. § 1503, and (5) two

counts of tampering with a witness in violation of 18 U.S.C. § 1512(b). The

district court sentenced Defendant to life imprisonment pursuant to the Three

Strikes Statute, 18 U.S.C. § 3559(c). Defendant appeals his conviction and

sentence, arguing that the district court erred in: (1) denying his motion to

suppress letters that the Government obtained as a result of a conversation with

Defendant without his counsel, (2) denying his motion to suppress the testimony

of Billy Creech and Clifford Henderson because they received leniency or

immunity in exchange for their testimony, (3) denying Defendant’s motion to

sever four counts of the indictment for prejudicial joinder, and (4) applying the

Three Strikes Statute using convictions greater than 15 years old. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.

                                          I.

      On July 13, 1998, Defendant and Billy Eugene Creech robbed a

NationsBank in Oklahoma City. On September 10, 1998, they robbed another

NationsBank in Warr City, Oklahoma, and were arrested. From jail, Defendant

wrote several letters to his niece, Terry Darby, asking her to help him construct an

alibi for the time of the bank robberies. Darby testified before the grand jury

about the letters.




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      FBI Agents Todd Keck and Mike Beaver were investigating the bank

robberies. They identified Darby as a possible witness because she was present in

the courtroom during Defendant’s arraignment. In September, Creech told Keck

about one of Defendant’s old addresses. The apartment manager there gave Keck

a utility bill under the name Terry Eaton with the phone number 386-9011. On

the morning of October 19, Keck’s assistants gave him two addresses for Darby:

one in Oklahoma City with the phone number 386-9011 and another in Shawnee,

Oklahoma, under the name Tony Harrington.

      That morning Beaver spoke to Defendant’s stepfather, Alva Sanders.

Sanders told Beaver that Darby was Defendant’s niece. He also told Beaver that

she usually lived in her house in the city at 713 Southeast 27th Street, Oklahoma

City, phone number 632-7987, but also stayed in Shawnee with Harrington, her

boyfriend. Beaver called Keck and they traded information. In the afternoon,

Beaver called Detective Luman at the Oklahoma County Sheriff’s Office and told

him that he had Defendant’s pager and wallet and would like to return them to a

family member, possibly Defendant’s niece, Darby. Beaver also told Luman that

he was looking for addresses so he could serve subpoenas on several people,

including Darby.

      On October 20, Luman visited Defendant in his cell without counsel

present. Luman told Defendant he had a pager and wallet to give to Darby and


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wanted to know how to reach her. Defendant gave Luman Darby’s 27th Street

address and called Darby to let her know an officer was coming. Around noon,

the Sheriff’s Office called Beaver to give him Darby’s 27th Street address and

phone number. Beaver had learned the same information from Sanders the day

before. In the afternoon, Beaver went to Darby’s house on 27th Street. He gave

her Defendant’s pager and wallet and served her with a subpoena.

      On October 21, Beaver interviewed Darby at her house. She told Beaver

that she lived at both addresses, often staying with Harrington on weekends. She

also told Beaver that Defendant had sent her letters asking her to help him

construct an alibi. She gave Beaver the letters. Later that day, Darby testified

before the grand jury. The grand jury indicted Defendant on the four counts

pertaining to the bank robberies and arms charges; the counts related to

obstruction of justice and witness tampering were added later in a superseding

indictment. October 21 was the last day the Government could indict Defendant

within 30 days of his arrest pursuant to the Speedy Trial Act, 18 U.S.C.

§ 3161(b).   1




      1
        The Government filed an application for excludable continuance of time
within which to return indictment on October 9 that was denied on October 19.

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                                            II.

                                            A.

        Defendant moved to suppress the letters, arguing that the agents obtained

them in violation of his right to counsel. He argued that but for the Government’s

unlawful questioning on October 20, the Government would not have located

Darby in time for her to testify before the grand jury. The district court denied

the motion, ruling from the bench that the Government would have found the

letters from an independent source: “[T]he government had developed from an

independent source this address, and although it was perhaps confirmed by the

contact with Mr. Luman, they had this information and I’m satisfied it’s

inevitable they would find Ms. Darby as a result of having that address . . . .”

        In reviewing the denial of a motion to suppress, we review the district

court’s findings of historical fact for clear error, and review its legal conclusions

de novo, viewing the evidence in a light most favorable to the government.

United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999). The independent

source doctrine permits the introduction of evidence initially discovered during an

unlawful search, but later obtained independently from activities untainted by the

initial illegality.   United States v. Macias , No. 99-4046, 1999 WL 1244469, at *3

(10th Cir. Dec. 17, 1999) (unpublished) (quoting    United States v. Griffin , 48 F.3d

1142, 1150 (10th Cir. 1995)) .


                                            -5-
      In this case, assuming that Luman’s questioning of Defendant in his cell

was unlawful, Beaver had already obtained Darby’s 27th Street address from

Sanders. The district court correctly concluded that the agents found Darby’s

address from an independent source.

                                           B.

      Second, Defendant challenges the district court’s denial of his motion to

sever the case into three trials: one on each of the two bank robberies, and one for

the obstruction of justice and witness tampering counts. In the district court,

Defendant argued that having one trial on all the counts would be prejudicial

because (1) presenting evidence about two separate bank robberies and the other

counts would confuse the jury and (2) Defendant would be unable to testify about

one of the bank robberies without waiving his right to remain silent on the other

counts. Defendant did not tell the district court which counts he would testify to

or describe what his testimony would be. The district court denied Defendant’s

motion to sever in a written order, finding that the counts presented related issues

with overlapping facts, and that Defendant had not shown any prejudice that

would justify the expense of multiple trials.

      We review the denial of a motion to sever for abuse of discretion.   United

States v. Martin , 18 F.3d 1515, 1517 (10th Cir. 1994). The defendant must show

real prejudice from the joinder and demonstrate that the prejudice outweighed the


                                          -6-
inconvenience and expense of holding two separate trials.    Id. at 1518. If the

defendant argues that the joinder prevented him from testifying as to one of the

counts, he must indicate to the court the nature of the testimony he would have

given. United States v. Valentine , 706 F.2d 282, 291 (10th Cir. 1983).

      In this case, the risk of prejudice and confusion from joining multiple

counts in one trial was outweighed by the expense and inconvenience of holding

three separate trials covering many of the same facts. Defendant indicated that he

would have testified as to one of the counts, but did not indicate the nature of that

testimony. The district court correctly used its discretion to deny Defendant’s

motion to sever.

                                           C.

      Third, Defendant appeals the district court’s denial of his motion to

suppress Creech’s and Henderson’s testimony. Creech helped Defendant commit

the bank robberies. As part of his plea agreement, he agreed to testify against

Defendant in exchange for leniency. Henderson was imprisoned in the Oklahoma

County jail on state charges at the same time as Defendant. After Defendant told

Henderson about the robberies and his letters to Darby, Henderson approached the

Government with this information and received immunity from prosecution for

obstruction of justice in exchange for his testimony. Defendant argued to the

district court that Creech’s and Henderson’s testimony was obtained in violation


                                           -7-
of 18 U.S.C. § 201(c) because the Government offered them leniency or immunity

in exchange for their testimony. Section 201(c)(2), however, “was not intended to

apply to the United States or its attorneys.”         United States v. Singleton , 165 F.3d

1297, 1302 (10th Cir. 1999) (en banc),      cert. denied , 119 S. Ct. 2371 (1999). The

district court correctly allowed Creech and Henderson to testify because § 201(c)

does not apply to the Government’s offers of leniency and immunity.

                                                D.

       Finally, Defendant appeals the district court’s imposition of a life sentence

pursuant to the Three Strikes Statute, 18 U.S.C. § 3559(c), using convictions that

are more than 15 years old. The district court based Defendant’s sentence on two

prior convictions for serious violent felonies: one in 1983 for bank robbery, and

one in 1972 for bank robbery with a firearm. The district court overruled

Defendant’s objection, finding no legal basis for disregarding convictions that are

more than 15 years old.

       We review de novo the district court’s decision to impose a sentencing

enhancement pursuant to the Three Strikes Statute.            United States v. Gottlieb , 140

F.3d 865, 868 (10th Cir. 1998). Due process requires that a sentencing scheme be

rational. Chapman v. United States , 500 U.S. 453, 465 (1991). Convictions that

are more than 15 years old may be the basis of a sentencing enhancement pursuant

to the Armed Career Criminal Act, 18 U.S.C. § 924(e).            United States v. Lujan , 9


                                                -8-
F.3d 890, 893 (10th Cir. 1993). Nothing in the Three Strikes Statute limits the

age of convictions that may be the basis of the sentencing enhancement.

Congress had a rational basis for creating a statute that imprisons repeat offenders

for life for the protection of society. The district court correctly concluded that

Defendant’s convictions, although more than 15 years old, may be considered for

the Three Strikes Statute.   Accord United States v. Boone , No. 97-4094, 1998 WL

398782, at *2 (4th Cir. July 9, 1998) (unpublished) (holding that the Three Strikes

Statute’s lack of time limitations does not violate due process).

              AFFIRMED. 2



                                        Entered for the Court,


                                        Bobby R. Baldock
                                        Circuit Judge




       2
        We deny Defendant’s motions for permission to file a supplemental brief
and to file a brief out of time.

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