United States of America, Plaintiff-appellee, v. George Jerry Ruminer and Ada Ruminer, Defendants-appellants, 786 F.2d 381 (10th Cir. 1986)

In a bench trial after a jury was waived, defendants George Jerry Ruminer and Ada Lee Ruminer were convicted of conspiracy to manufacture amphetamine,¹  the manufacture of amphetamine,²  and possession of amphetamine with the intent to distribute.³  Defendant George Jerry Ruminer was also convicted on six counts of using a telephone to facilitate the manufacture of amphetamine.⁴  The evidence on commission of the offenses was submitted to the court by way of written stipulation. In this direct appeal from their convictions, the defendants contend that the trial court erred in denying their motion to suppress evidence obtained through an unlawfully executed search warrant. The defendants further contend that the trial court erred and abused its discretion in considering for purposes of sentencing certain statements made by the defendants during plea discussions.

* The execution of the search warrant

After conducting an evidentiary hearing on the motion to suppress, the trial court found, inter alia, that "the law enforcement officers waited a reasonable time, under the circumstances, before entering the house (approximately 5 to 10 seconds)." Specifically, the trial court found that the search warrant was executed August 5, 1983, at approximately 11:15 p.m., at the defendants' residence; that the defendants were in the northeast corner of the house at the time; and that the lights were out in the house when two agents approached the front door, knocked on the storm door, and announced, "Police officers--we have a search warrant." The trial court also found that at about the same time the knock and announce occurred at the front door, officers at the bedroom window saw a form run out of the bedroom. Upon seeing the movement in the bedroom, the officers announced themselves and thrust a gun through the window on the defendant George Jerry Ruminer. Upon hearing this commotion, the agents at the front door broke the glass on the storm door and forcibly entered through the door.

If the record clearly establishes the defendants' contention that the executing officers failed to announce their authority and purpose before forcibly entering the dwelling, and that no exigent circumstances were shown, the evidence seized must be suppressed as the fruit of an unlawful search. See Sabbath v. United States, 391 U.S. 585, 586, 589, 88 S. Ct. 1755, 1757, 20 L. Ed. 2d 828 (1968); Miller v. United States, 357 U.S. 301, 313, 78 S. Ct. 1190, 1197, 2 L. Ed. 2d 1332 (1958); see also United States v. Baker, 638 F.2d 198, 202 (10th Cir. 1980). Section 3109⁵  provides:

The officer may break open an outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

Section 3109 requires notice in the form of an express announcement by the officers of their purpose and authority for demanding admission, although "the burden of making an express announcement is certainly slight." Miller, 357 U.S. at 309, 78 S. Ct. at 1195; see United States v. Remigio, 767 F.2d 730, 732 (10th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 535, 88 L. Ed. 2d 465 (1985). This requirement is grounded in the Fourth Amendment⁶  and serves several purposes: (i) it decreases the potential for violence; (ii) it protects the privacy of the individual by minimizing the chance of forcible entry into the dwelling of the wrong person; and, (iii) it prevents the physical destruction of the property by giving the occupant time to voluntarily admit the officers. W. LaFave & G. J. Israel, supra at 230-31; see Remigio, 767 F.2d at 732;.

When reviewing the denial of a motion to suppress we must accept the findings of fact by the trial court unless they are clearly erroneous. United States v. Gay, 774 F.2d 368, 375 (10th Cir. 1985); United States v. Ortiz, 445 F.2d 1100, 1103 (10th Cir.), cert. denied, 404 U.S. 993, 92 S. Ct. 541, 30 L. Ed. 2d 545 (1971). The credibility and weight to be attached to the evidence are determined by the trial court. United States v. Pappas, 735 F.2d 1232, 1233 (10th Cir. 1984); United States v. Walker, 524 F.2d 1125, 1129 (10th Cir. 1975). Moreover the evidence presented at the suppression hearing and the trial must be considered in the light most favorable to the Government. Gay, 774 F.2d at 375.

There was credible testimony that the officers announced their authority and purpose before forcibly entering the house. (Tr. II, 45, 54, 65-66, 71, 80). The record also supports the trial court's finding that the officers waited approximately five to ten seconds before entering. (Id.). "The time that Sec. 3109 requires officers to wait before they may construe no response as a denial of admittance depends largely on factual determinations made by the trial court." United States v. Davis, 617 F.2d 677, 695 (D.C. Cir. 1979), cert. denied, 445 U.S. 967, 100 S. Ct. 1659, 64 L. Ed. 2d 244 (1980); United States v. Jackson, 585 F.2d 653, 662 (4th Cir. 1978); see also Ortiz, 445 F.2d at 1102 n. 2. Courts have upheld the validity of searches where the delay was one minute,⁷  thirty seconds,⁸  fifteen to twenty seconds,⁹  ten seconds,¹⁰  and forcible entry immediately after announcement has been upheld where there was likelihood of an attempt to escape, to resist, or to destroy evidence. See Jackson, 585 F.2d at 661-62. A perusal of the cases shows the futility of fixing a hard and fast rule. The rule is not an inflexible one.

The trial court found that the officers waited some five to ten seconds before entering the dwelling. The officers at the window were justified in acting in the manner in which they did because they observed a figure leaving the room.¹¹  Such a person could have left the room to obtain a weapon or to destroy evidence. The trial court was confronted with conflicting testimony and chose to believe the officers. See Baker, 638 F.2d at 202. Given the testimony placed before him, we do not believe that the trial court erred in concluding that the officers did not violate Sec. 3109 in the exigencies confronting them.

II

The sentencing proceedings

The defendants further contend that the trial court erred in considering certain statements made by the defendants during plea discussions in setting the sentences.¹²  In its Post-trial Sentencing Memorandum, the Government argued that a defendant's lack of cooperation with law enforcement officials should be taken into account by the trial court in assessing the appropriate sentence. Finding the Government's argument persuasive, the trial court did consider the fact that the defendants failed to cooperate with law enforcement officials by suggesting false leads. (Tr. III, 15).

We believe the Supreme Court's decision in Roberts v. United States, 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1982), is controlling. In Roberts, the Court held that a trial judge may properly consider a defendant's refusal to cooperate with the Government by refusing to name others involved in the criminal activities, such as drug suppliers. Id. at 554-55 n. 3 and 558, 100 S. Ct. at 1360-61 n. 3 and 1363. The defendants here not only refused to cooperate with law enforcement officials, but also suggested false leads. Such affirmative misconduct on the part of the defendants wasted valuable law enforcement resources expended in following-up the false leads. (Post-trial Sentencing Memorandum at 9, Tr. I at 66; Government argument at sentencing, Tr. III at 14). These facts were not disputed by defense counsel.

Few facts available to a sentencing judge are more relevant to "the likelihood that [a defendant] will transgress no more, the hopes that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society." United States v. Grayson, 438 U.S. 41, 51, 98 S. Ct. 2610, 2616, 57 L. Ed. 2d 582 (1978) (quoting United States v. Hendrix, 505 F.2d 1233, 1236 (2d Cir. 1974)).¹³  "Unless his silence is protected by the privilege against self-incrimination ... the criminal defendant no less than any other citizen is obliged to assist the authorities." Roberts, 445 U.S. at 558, 100 S. Ct. at 1363.¹⁴  The defendants here shirked their responsibilities "of community life that should be recognized before rehabilitation can begin." Id. Moreover, the defendants' conduct here was more egregious than the defendant's conduct in Roberts. These defendants not only generally failed to cooperate with officials, but also suggested false leads in a purposeful attempt to hinder the investigation. We are not faced with the problem of drawing inferences from an ambiguous silence. See id. at 563, 100 S. Ct. at 1365 (Brennan, J., concurring). Instead there was affirmative misconduct here which is relevant to the sentencing judge in his duty to fix the appropriate sentence.

The defendants contend, however, that their misconduct occurred during plea discussions and that Fed.R.Evid. 410 does not permit the use of the statements against them in any criminal proceeding. Rule 410 makes statements made during plea discussions inadmissible if used against the defendant. The Government conceded at sentencing that the defendants' statements suggesting false leads were made during plea discussions; however, the Government maintains that Fed.R.Evid. 1101(d) (3) excludes the application of the Federal Rules of Evidence at the sentencing stage of a criminal proceeding, generally, and in these circumstances. We agree. Rule 1101(d) (3) is clear; it expressly excludes the application of the Federal Rules of Evidence (other than with respect to privileges) at "sentencing."

The defendants also rely on Fed. R. Crim. P. 11(e) (6). Rule 11(e) (6) is essentially identical to Rule 410.¹⁵  It also provides that statements made during plea discussions are inadmissible against the defendant in any criminal proceeding. However, unlike the Federal Rules of Evidence, the Federal Rules of Criminal Procedure contain no counterpart to Rule 1101(d) (3). There thus appears to be an inconsistency between the two rules.

The provision defining the scope of the Federal Rules of Criminal Procedure is found in Rule 1. Rule 1 provides " [t]hese rules govern the procedure in all criminal proceedings...." We agree with the Fifth Circuit that the phrase "all criminal proceedings" as used in Rule 1 includes "all possible steps in the criminal case from its inception to judgment and sentence." United States v. Choate, 276 F.2d 724, 727 n. 7 (5th Cir. 1960). Rule 11(e) (6) also contains its own scope provision. The effect of Rule 11(e) (6) is that evidence of "any statement made in the course of plea discussions" is not admissible "in any civil or criminal proceeding...." However, the Advisory Committee Notes to the 1979 amendments to the rule attempt to limit the scope provision of Rule 11(e) (6) to align it with its evidentiary counterpart, Rule 410. In clearing up an ambiguity, which has no relevance here, in Rule 11(e) (6) the committee noted in the comments on the 1979 amendments that " [n]o change is intended with respect to provisions making evidence rules inapplicable in certain situations. See, e.g., Fed.R.Evid. 104(a) and 1101(d)."

We find the Advisory Committee Notes to Rule 11(e) (6) persuasive, but we rest our affirmance more squarely on the specific principles governing criminal sentencing in the United States District Courts as clearly articulated by Congress and the Supreme Court. Congress has directed that:

[N]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

18 U.S.C. § 3661 (formerly 18 U.S.C. § 3577). It is thus permissible for a district judge to consider information in sentencing that would be inadmissible for the purpose of determining guilt.

For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.

Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 60, 82 L. Ed. 43 (1937); see Smith v. United States, 551 F.2d 1193, 1196 (10th Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 113, 54 L. Ed. 2d 90 (1977). The fundamental sentencing principle that "a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come" [Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2615, 57 L. Ed. 2d 582 (1978), quoting United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591, 30 L. Ed. 2d 592 (1972) ] rests upon the role of the sentencing judge in the federal system.

The Supreme Court in discussing the function of a sentencing judge has stated:

A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.

Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed. 1337 (1949).

Thus, the sentencing judge had the duty and authority to consider all relevant factors, both mitigating factors favoring lesser punishment and those unfavorable to the defendants. We are convinced that the prohibition of Rule 11(e) (6) (D) of the Rules of Criminal Procedure was not intended to apply to the sentencing stage of a trial. Moreover, the intent of Congress is clear: the sentencing judge has the authority to consider a wide range of sources and types of information in determining a proper sentence, see 18 U.S.C. § 3661 and F.R.E. 1101(d) (3), subject to constitutional limitations and those imposed by rules and decisions. E.g., Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927) (a plea of guilty which is permitted to be withdrawn may not be used in evidence against a defendant permitted to enter a later plea of not guilty). We hold that the trial court did not err here in his conclusion that he should give "reasonable (Tr. III at 20), in the sentencing determinations made, to the defendants' refusal to cooperate with the Government.

AFFIRMED.