United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Notice of Appeal [Docket
No. 80] filed by defendant Michelle R. Paup. Defendant
appeals her conviction of theft of government property of a
value less that $1, 000 and removal of theft detection
devices after a jury trial presided over by Magistrate Judge
Kathleen M. Tafoya in Criminal No. 14-mj-07006-KMT. The Court
exercises jurisdiction over this appeal pursuant to 18 U.S.C.
§ 3402 and Fed. R. Crim P. 58(g)(2)(D). Neither party
requested oral argument.
December 20, 2013, defendant went to the Army and Air Force
Exchange Service store (the “Exchange”) at
Buckley Air Force Base (the “Base”) in Aurora,
Colorado. Video surveillance showed that defendant loaded a
shopping cart with merchandise, including three jackets and
five perfume sets. She cut a theft detection device off at
least one item and, after wrapping the device in tissue
paper, threw the device away in a trash receptacle inside the
store. Defendant left the Exchange with her loaded cart
without paying. She was confronted outside the store by an
employee of the Exchange's loss prevention department.
Base security officers responded and searched defendant's
purse, discovering two additional purses, which had been
taken from the Exchange, and a pair of wire cutters.
December 20, 2013, defendant was served with a violation
notice alleging that she had shoplifted from the Exchange. On
August 14, 2014, the government filed an information charging
defendant with (1) Theft of Government Property of a value
less than $1000 in violation of 18 U.S.C. § 641 and (2)
Unlawful Acts - Theft Detection Devices, in violation of
Colo. Rev. Stat. § 18-4-417 as assimilated by 18 U.S.C.
§ 13. Docket No. 6. The penalty sheet attached to the
information stated that Count 2 was a “Class 1
Misdemeanor” with a penalty of “Max 18
months.” Docket No. 6-1.
September 29, 2014, defendant signed a consent to proceed
before a magistrate judge. Docket No. 7. Defendant was
arraigned on October 9, 2014. Docket No. 9. On October 23,
2014, the government filed an amended penalty sheet, which
revised the listed maximum penalty for Count 2 to no more
than “1 year imprisonment.” Docket No. 11.
October 14, 2014, the magistrate judge set a motions hearing
for December 2, 2014 and set defendant's trial to begin
on December 15, 2014. Docket No. 10. At the motions hearing,
the magistrate judge set a December 8, 2014 trial preparation
conference. Docket No. 30 at 3. On the morning of December 8,
2014, defendant filed a motion to continue the trial so that
she could investigate the possibility of presenting expert
psychological evidence to show that she lacked the necessary
mens rea to commit the charged offenses. Docket No. 32 at 1,
¶ 3. In particular, defendant stated that she was
scheduled to be examined by her psychologist, Dr. Dana Satir,
regarding her “psychological maladies and dissociative
disorders.” Id., ¶¶ 3-4. At the
trial preparation conference that afternoon, the government
objected to granting a continuance, noting that defendant had
raised the same issue at an August 14, 2014 hearing when
requesting a 60-day delay before the Information was filed.
Docket No. 123 at 9:13-10:5; see also Docket No. 5
(minute entry from August 14, 2014 hearing noting
“Discussion regarding setting trial dates and resetting
Arraignment out 60 days.”). Over the government's
objection, the magistrate judge vacated the trial and granted
an ends of justice continuance. Docket No. 34 at 1-2. The
magistrate judge set a January 27, 2015 deadline for
defendant to make her psychological expert disclosures to the
government. Id. at 2. She set a February 9, 2015
deadline for the government's expert disclosures.
Id. The trial was reset for February 23, 2015.
did not comply with the disclosure deadline. Instead, on
February 6, 2015, defendant emailed her witness list to the
government and the magistrate judge's chambers. Docket
No. 39-1 at 2. Defendant's witness list included Dr. Lon
Kopit, who defendant said would be called to “testify
to the mental health issues of defendant and her lack of the
requisite mental state (mens rea) elements of the crimes
charged.” Id. at 1, ¶ 1. On February 9,
2015, the government moved to exclude Dr. Kopit's
testimony as being untimely disclosed and, in the
alternative, requested a hearing pursuant to Fed.R.Evid. 702.
Docket No. 39 at 1.
February 10, 2015, the magistrate judge held a second trial
preparation conference, at which she granted the
government's motion to exclude. Docket No. 40. The
magistrate judge found that defendant had failed to provide
timely notice of Dr. Kopit's proposed testimony. Docket
No. 124 at 10, ll. 8-20, and at 16, ll. 1-11. The magistrate
judge continued the remainder of the trial preparation
conference because the parties were not properly prepared.
Docket No. 40 at 2.
February 12, 2015, defendant filed a motion requesting that
the magistrate judge reconsider whether to bar Dr. Kopit from
testifying. Docket No. 49. The magistrate judge held the
third and final trial preparation conference the next day.
Docket No. 51. The magistrate judge declined to reconsider
her prior order barring Dr. Kopit from testifying.
Id. at 1; Docket No. 109 at 4 (citing United
States v. Adams, 271 F.3d 1236, 1244 (10th Cir. 2001)).
trial began on February 23, 2015. Docket No. 57. The trial
lasted three days and was tried to a jury. Docket Nos. 57-59.
The defendant testified in her own defense. Docket No. 58 at
4. On February 25, 2015, the jury convicted defendant on both
counts. Docket No. 59-3.
22, 2015, the magistrate judge held a sentencing hearing.
Docket No. 67. The magistrate judge found that defendant
committed perjury through her trial testimony and applied a
two-level obstruction of justice enhancement pursuant to
U.S.S.G. § 3C1.1. Docket No. 104 at 25:13-26:19. The
magistrate judge imposed concurrent sentences of thirty days
imprisonment on each of the two counts and one year of
supervised release. Docket No. 74 at 2-3. She ordered
restitution in the amount of $734.41, which was the full
retail value of the stolen merchandise. Id. at 5;
Docket No. 104 at 24:16-19. Judgment entered on May 28, 2015.
Docket No. 74 at 1. The present appeal followed. See
Docket No. 80.
appeal from a misdemeanor conviction by a magistrate judge,
the “scope of the appeal is the same as in an appeal to
the court of appeals from a judgment entered by a district
judge.” Fed. R. Crim. P. 58(g)(2)(D). The standard of
review depends upon whether the reviewed issue presents
questions of fact, questions of law, or mixed questions of
fact and law. Supre v. Ricketts, 792 F.2d 958, 961
(10th Cir. 1986). The Court reviews legal findings de novo
and factual findings for clear error. Lozano v.
Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001) (citing
Pierce v. Underwood, 487 U.S. 552, 558 (1988)).
Defendant raises five alleged errors subject to varying
standards of review: (1) that the magistrate judge lacked
subject matter jurisdiction to hear Count 2, Docket No. 129
at 16-18; (2) that the magistrate judge abused her discretion
in excluding defendant's psychological expert for failure
to meet the disclosure deadline, id. at 18-25; (3)
that the magistrate judge abused her discretion by allowing
the government to question defendant about a pending state
shoplifting charge, id. at 26-31; (4) that the
magistrate judge erred by applying an enhancement to the
sentencing guidelines based on perjury, id. at
31-34; and (5) that the magistrate judge clearly erred in
ordering restitution for the full retail value of the items
that defendant took from the Exchange. Id. at 35-38.
Subject Matter Jurisdiction
this district has designated them to hear misdemeanor cases,
magistrate judges have jurisdiction to “try persons
accused of, and sentence persons convicted of, misdemeanors
committed within” the District of Colorado. 18 U.S.C.
§ 3401; see also 28 U.S.C. § 636(a)(3);
D.C.COLO.LCrR 57.1(b)(16). Under Colorado law, Count 2 of the
information, charging defendant with removing theft detection
devices, is classified as a “class 1 misdemeanor,
” Colo. Rev. Stat. § 18-4-417, subject to a
maximum sentence of eighteen months imprisonment. Colo. Rev.
Stat. § 18-1.3-501(1)(a). Persons convicted in federal
court of incorporated state law crimes are “subject to
a like punishment.” 18 U.S.C. § 13(a). This
provision requires “federal sentencing courts to abide
[by] any maximum and minimum prison terms [pre]scribed by
state law for an assimilated crime.” United States
v. Christie, 717 F.3d 1156, 1171 (10th Cir. 2013)
(citations omitted). Under federal law, offenses “not
specifically classified by a letter grade in the section
defining it” are classified based on the “maximum
term of imprisonment authorized.” 18 U.S.C. §
3559(a). Crimes subject to maximum terms of imprisonment from
five days to one year are classified as misdemeanors. 18
U.S.C. § 3559(a)(6)-(8); see also Gomez v. United
States, 490 U.S. 858, 870 n.18 (1989) (“A
misdemeanor is any offense for which the maximum term of
imprisonment that may be imposed does not exceed one
year.” (internal quotation marks omitted)). An offense
with a maximum term of imprisonment of eighteen months is a
Class E felony under federal law. 18 U.S.C. §
argues that the magistrate judge lacked jurisdiction to hear
this case because Count 2 carries a potential punishment of
more than one year of imprisonment under Colorado law. Docket
No.129 at 8. The issue of subject matter jurisdiction is
reviewed de novo. Niemi v. Lasshofer, 770 F.3d 1331,
1344 (10th Cir. 2014) (citing Dahl v. Charles F. Dahl,
M.D., P.C. Defined Benefit Pension Trust, 744 F.3d 623,
628 (10th Cir. 2014)).
Tenth Circuit has held that a “magistrate judge's
lack of statutory authority is not a jurisdictional defect,
so any objection is waived if not raised.” Clark v.
Poulton, 963 F.2d 1361, 1367 (10th Cir. 1992). Here,
defendant consented to the magistrate judge presiding over
her trial and sentencing and also failed to raise her
jurisdictional argument in front of the magistrate judge.
Defendant acknowledges that this issue is “possibly
foreclosed by circuit precedent.” Docket No. 129 at 16.
Nevertheless, defendant wants to preserve the issue for
Court agrees that the issue of whether defendant waived her
objection to the magistrate judge's jurisdiction is
foreclosed by the Tenth Circuit's decision in
Clark. As a result, the Court concludes that
defendant's jurisdictional argument is waived.
Exclusion of Psychological Expert
magistrate judge excluded defendant's mental health
expert, Dr. Lon Kopit, from testifying at trial. Docket No.
124 at 10:3-20 and at 17:1-6. Rulings excluding evidence are
reviewed for an abuse of discretion. Adams, 271 F.3d
at 1243 (citing United States v. Rice, 52 F.3d 843,
847 (10th Cir. 1995)).
considering whether to exclude evidence on the basis of
untimely disclosure, a court considers “three factors:
(1) the reason for the delay in disclosing the witness; (2)
whether the delay prejudiced the other party; and (3) the
feasibility of curing any prejudice with a
continuance.” Adams, 271 F.3d at 1244 (citing
United States v. Wicker, 848 F.2d 1059, 1061 (10th
argues that the magistrate judge erred in barring defendant
from presenting expert testimony from Dr. Kopit. Docket No.
129 at 21. First, defendant argues that the sanction imposed
for untimely disclosure was unduly harsh because defense
counsel's failure to meet the deadline was not in bad
faith. Id. at 21-23. Second, defendant argues that
the magistrate judge's decision to exclude was predicated
on legal error insofar as the magistrate judge doubted the
admissibility of Dr. Kopit's testimony as to
defendant's mens rea. Id. at
emphasizes the lack of bad faith and a statement by the Tenth
Circuit that “[i]t would be a rare case where, absent
bad faith, a district court should exclude evidence rather
than continue the proceedings.” United States v.
Golyansky, 291 F.3d 1245, 1249 (10th Cir. 2002).
However, in Adams, the Tenth Circuit found that a
district court's decision to exclude expert psychological
testimony “could be sustained on the grounds of
untimeliness alone” under the first Wicker
factor, notwithstanding a lack of bad faith. Adams,
271 F.3d at 1244. The defendant in Adams disclosed a
psychological report to the government more than a month
after the relevant deadline and three days before trial,
id. at 1243, which “left the government no
opportunity to conduct its own psychological examination of
the defendant, or otherwise mount a rebuttal.”
Id. at 1244. The government indicated that it would
need up to 120 days to conduct its own psychological
examination of the defendant. Id. Given that the
government's need to conduct an examination “would
significantly delay the trial, ” the Tenth Circuit
found that the trial court's exclusion of the
psychologist's testimony was proper. Id.
relation to the first Wicker factor, the magistrate
judge considered defendant's explanations for her failure
to comply with the disclosure deadline and rejected them. In
particular, defendant did not offer any justification for her
failure to request an extension of the disclosure deadline,
Docket No. 124 at 11:3-14 and at 15:15-16:20, did not explain
why she simply listed Dr. Kopit as a witness without
providing the government with some indication of Dr.
Kopit's expected testimony, id. at 15:15-25,
and, by the time of the last two trial preparation
conferences, still had not produced Dr. Kopit's report.
Docket No. 124 at 11:25-26:1; Docket No. 109 at 19:1, 42:17.
relation to the second and third Wicker factors, the
magistrate judge credited the government's claims that it
was prejudiced by defendant's untimely and insufficient
disclosure. When the magistrate judge asked the government
what it could do to cure the prejudice, the government
indicated that it would need to receive the expert's
report, review the records that the report relied on, review
the records of Dr. Satir, and then determine whether to seek
a medical examination of the defendant under Fed. R. Crim. P.
12.2. Docket No. 109 at 29-33. The magistrate judge
reasonably concluded that the government's investigation
into the defendant's mental state would take considerable
time. Id. at 40:17-20. The judge noted that
we can set a different trial date if we absolutely have to.
But I'm not inclined to do that on the eve of trial like
this. One reason is because I don't have any time to set
it. I don't have another date to give you for another
month or so. And the Government from what they've told
me, boy, that's going to take a lot longer than a month
to get all these medical records and have a 702 hearing and
interview these experts, maybe take a deposition.
Docket No. 109 at 40:12-20. The fact that the magistrate
judge was faced with a considerable delay of the trial if she
allowed the expert's testimony justifies the exclusion of
the testimony on timeliness grounds alone, as was the case in
Adams, where the trial court was also faced with
the magistrate judge did not abuse her discretion in
excluding Dr. Kopit's testimony because it constituted a
reasonable effort to manage her docket. At the pretrial
conference on February 10, 2015, the magistrate judge
expressed frustration that the defense had “a whole
half year” to find an expert, but failed to properly
endorse one. Docket No. 124 at 12:20-21. The magistrate judge
noted that, in addition to not making any progress in
producing an expert report, defendant was ignoring the
court's rules: “you do not care about the dates
that I set; you do not care about the deadlines that I've
set.” Id. at 13:3-5. Given defendant's
persistent failures to follow court rules and to disclose the
expert report, the magistrate judge did not abuse her
discretion in holding firm on deadlines that she had already
extended once to no effect. See, e.g., Docket No.
123 at 18:20-24, at 20:18-19, and at 25:11-14; Docket No. 124
at 10:9-18 and at 12:17-20.
the magistrate judge's various comments about the
admissibility of Dr. Kopit's testimony, the Court
concludes that such comments do not constitute legal error.
As an initial matter, the magistrate judge's decision to
exclude Dr. Kopit's testimony was based on the
untimeliness of the disclosure and an effort to enforce her
rulings and manage her docket. Docket No. 124 at 10:3-20 and
at 17:1-6. Moreover, the magistrate judge was correct that
Dr. Kopit's testimony, as described in defendant's
witness list, would have been partly inadmissible.
Defendant's witness list stated that Dr. Kopit would
testify about defendant's “mental health issues . .
. and her lack of the requisite mental state (mens rea)
elements of the crimes charged.” Docket No. 39-1 at 1,
¶ 1.0. The magistrate judge accurately noted that Dr.
Kopit could not opine directly on whether defendant lacked
the requisite mental state, as the witness list indicated he
would. Fed.R.Evid. 704(b) (“In a criminal case, an
expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition
that constitutes an element of the crime charged or of a
defense.”). Defendant acknowledged this limitation,
Docket No. 109 at 11:20, but maintained that Dr. Kopit could
bring up facts to the jurors so that they could draw
inferences about defendant's mental state. Id.
at 10:23-25. The magistrate judge responded,
“Right.” Id. at 11:1. Moreover, rather
than conclusively determining that any portion of Dr.
Kopit's testimony was inadmissible, the magistrate judge
stated that the issues would have to be resolved through
“hearings outside the jury on that or motions in
limine.” Id. at 43:13-14. The magistrate
judge's comments about admissibility do not constitute an
erroneous view of the law that tainted her exclusion
Court finds that the magistrate judge did not abuse her
discretion in ...