* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID BLOOMGREN, Defendant - Appellant. No. 00-8036 (D.C. No. 99-CR-135-J) (D. Wyoming)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and KELLY , Circuit Judges.
Defendant-Appellant David Bloomgren appeals his convictions and sentences for conspiring to distribute and possess with intent to distribute methamphetamine, possession with intent to deliver methamphetamine, and being a convicted felon in possession of firearms. He ra ises four issues on appeal. First, he contends that perjured testimony went unc orrected by the Government at trial, and therefore the district court abused its discretion in denying his motion for a new trial. Second, he asserts that the Government failed to preserve or- 2 -

collect actual or potentially exculpatory evidence, and therefore the district court abused its discretion in denying his motion to dism iss or for a new trial on those grounds. Third, he alleges that in light of Appren di v. New Jersey , 530 U.S. 466 (2000), his drug sentences should be reversed becau se the jury was not instructed that they had to find drug quantity beyond a reason able doubt. Finally, Appellant argues that the Sentencing Commission has not promu lgated guidelines to assist the court in ordering community restitution, thereb y violating the command of 18 U.S.C. § 3663(c), and depriving the district court of authority to impose restitution. The parties are familiar with the fac ts, so we will discuss only those facts relevant to our resolution of the issues. Our jurisdiction arises under 28 U.S.C. § 1291, andwe affirm.

I. A. Presentation of Allegedly Perjured Testimony We review a district court’s denial of a motion fora new trial based on prosecutorial misconduct for abuse of discretion. See United States v. Gabaldon , 91 F.3d 91, 93 (10th Cir. 1996). Claims alleging the prosecution’s knowing use of perjured testimony also fall under an abuse of d iscretion standard of review.
See United States v. Wolny , 133 F.3d 758, 762 (10th Cir. 1998).1 Neither party has provided an explanation of why o r how the witness’s

name changed. - 3 - Bloomgren claims April Pellman, a witness for the p rosecution, perjured herself during the following exchange between her and Bloomgren’s counsel on re-cross examination: Q: Did you have any–have any drug problems in 1996 with the law? A: No, sir. Q: You weren’t arrested in ‘95 or ‘96? A: No, sir. Q: For nothing? A: For nothing. (ROA Vol. 6 at 29.) In 1996, Pellman, under the name April Daley, 1 was prosecuted under a Wyoming statute for possession of marijuana. The g overnment prosecutor in the instant case, Michael Blonigen, prosecuted Pellman, under the name of April Daley, for this incident in 1996. Bloomgren claims Pellman’s answer that she did not have any drug problems with the law in 1996 is false. He argues that because Blonigen prosecuted Pellman in 1996, he knew her an swer on the stand was false, yet failed to correct it. The prosecution’s knowing use of perjured testimonyviolates a defendant’s Due Process rights. See Wolny , 133 F.3d at 762. To obtain a new trial, a defendant must show: “(1) that the testimony was fa lse, (2) that it was material, and (3) that it was knowingly and intentionally use d by the government to obtain2We need not decide whether Pellman’s testimony was in fact false. She

pled guilty to the offense and entered into a treat ment program. Under the Wyoming statute, a judgment is not entered, and upo n successful completion of probation, a dismissal occurs. She was asked a rather vague question, and there is no indication that her involvement with the law, wh ich did not amount to a conviction, constituted “problems” with the law in her mind. There is also no indication in the record that Pellman was arrested.

3 The entirety of Blonigen’s testimony on this issu e suggests that he reviewed Pellman’s file upon Bloomgren filing his m otion for a new trial, as opposed to reviewing the file priorto trial. - 4 - a conviction.” Id. (considering a motion for mistrial). We need not consider the first two requirements because we conclude Bloomgre n has not demonstrated that the Government knew Pellman’s testimony was false. 2 Bloomgren generally claims that Blonigen’s statements to the court regarding the defense’s post-trial motion demonstrate Blonigen’s knowledge that Pellman had been convicted in 1996. Upon review of the record, we fail to see how Blonigen’s comments establish his knowledge that Pellman perjured herself on the stand. Blonigen stated that he did “not rec all” the case, but that he had reviewed her file. 3 (ROA Vol. 13 at 33.) The 1996 incident was an un remarkable misdemeanor case that happened several years prior to the instant case. Further, April Pellman was charged under a different name, April Daley. Blongien told the court “I did not recall [April Pellman] by thatname, [April Daley], until [defense counsel] filed this motion, in fact, I did n’t recall the case until [defense counsel] went back and reviewed it all.” (Id. at 35.) Bloomgren offers no- 5 -

evidentiary support for his allegation that Blonige n knew at trial that Pellman’s testimony was false. Given this lack of evidence, the trial court did not abuse its discretion in refusing to grant Bloomgren’s motion for a new trial based on the Government’s alleged use of perjured testimony.

B. Failure to collect and preserve evidence This court reviews a district court’s conclusion th at the government did not destroy potentially exculpatory evidence for clear error. See United States v. Bohl , 25 F.3d 904, 909 (10th Cir. 1994). The nondisclo sure of evidence is divided into two distinct universes: Brady v. Maryl and , 373 U.S. 83 (1963) and its progeny govern exculpatory material that is still i n the government’s possession, and California v. Trombetta , 467 U.S. 479 (1984), and Arizona v. Youngblood , 488 U.S. 51 (1988), govern exculpatory evidence no longer in the government’s possession. See United States v. Gomez , 191 F.3d 1214, 1218 (10th Cir. 1999). This case concerns evidence in the latter category.

1. Trombetta Bloomgren claims that the police failed to collect and preserve exculpatory evidence during its search of the Ranch, such as cl othing, documents, and personal effects belonging to others, which would d emonstrate that others stayed- 6 -

at the Ranch. He also claims that fingerprints wer e possibly damaged or destroyed when a rifle was allegedly mishandled, an d that those prints could have demonstrated that others had access to the rifle. For police destruction of evidence to rise to the l evel of affecting a defendant’s Due Process rights under California v. Trombetta , the evidence “must both possess an exculpatory value that was apparentbefore the evidence was destroyed, and be of such a nature that the defenda nt would be unable to obtain comparable evidence by other reasonably available m eans.” 467 U.S. at 489. Bloomgren has not demonstrated that the evidence ha d apparent exculpatory value. Further, the fact that comparable evidence was presented at trial demonstrates that Bloomgren had other reasonable me ans of obtaining the evidence. Taking the fingerprint evidence first, Appellant of fers mere speculation about what fingerprint testing would have shown. T here was no reason for the police to believe that this fingerprint evidence wo uld “play a significant role in [Bloomgren’s] defense.” Trombetta , 467 U.S. at 488. Bloomgren never requested fingerprint testing of the rifle. At tri al, he admitted that he knew of the rifle (ROA Vol. 5 at 60), and his son’s testimony p laced the rifle in his hands. (ROA Vol. 10 at 85.)- 7 -

Comparable evidence was presented at trial to show that others had access to the Ranch. The housekeeper testified that small children and individuals with clothing sizes different than that of Bloomgren liv ed in the house. Photographs of the bathroom where the drugs, firearms, and safe co ntaining Bloomgren’s personal documents were located, showed both men’s and women’s toiletries. These photos were admitted into evidence. A police officer testified at trial that he found both men’s and women’s clothing in the hou se. The police did not destroy these items; they simply did not seize them . The presentation of this evidence means that the failure to collect simply w as not prejudicial. Because Bloomgren has not demonstrated that the evi dence in question had apparent exculpatory value, and even if he had, bec ause comparable evidence was presented at trial, he has not established a violat ion of Trombetta

.

2. Youngblood When the evidence in question is only “potentially useful” to the defendant, as opposed to having exculpatory significance, the defendant must show that the police acted in bad faith when destroying the evide nce in order to sustain a due process challenge. Youngblood , 488 U.S. at 58. Even assuming that the clothes and fingerprints were “potentially useful,” which w e doubt, Bloomgren has not demonstrated that the police acted in bad faith.- 8 -

In Bohl , this court identified five factors it found usefu l in determining whether the government acted in bad faith: (1) the government had been explicitly placed on notice that defendants believed the evide nce to be exculpatory; (2) defendant’s assertion that the evidence was potenti ally exculpatory was supported with objective evidence and was not “merely conclus ory;” (3) the government still had the evidence within its control when it receive d notice from the defendants about the evidence’s exculpatory value; (4) the evi dence disposed of was central to the government’s case; and (5) the government of fered no innocent explanation for its failure to preserve the evidence. 25 F.3d at 911-12. In this case, Bloomgren has not established any of these factors to support his argument that the police acted in bad faith. We find no clear error in the district court’s deni al of Bloomgren’s motion for a new trial on the basis of destruction of evid ence. Accordingly, we affirm that decision.

C. Apprendi Bloomgren was convicted of conspiracy to distribute and possess with intent to distribute quantities of methamphetamine totaling 2130.52 grams in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A) and § 846 (Count 1) and possession with intent to deliver methamphetamine i n violation of §§ 841 (a)(1)4The indictment for Count 2 did not allege a quanti ty of methamphetamine.

5 The Government’s information seeking an enhanced p enalty satisfies the requirement that the offense be properly charged. - 9 - and (b)(1)(B) (Count 2). 4 Prior to trial, the Government filed an informat ion pursuant to 21 U.S.C. § 851, seeking an enhanced pe nalty based on Bloomgren’s prior felony drug conviction. The trial court did not instruct the jury that they had to find specific quantities of methamphetamine for Counts 1 and 2. Bloomgren claims that his 360 month sentences for C ounts 1 and 2 run afoul of Apprendi , 530 U.S. 466, because the issue of drug quantity was never submitted to the jury. Because he did not raise th e issue below, we review for plain error. United States v. Keeling , 235 F.3d 533, 538 (10th Cir. 2000), cert. denied , 533 U.S. 940 (2001). In this case, we find no Apprendi error because Bloomgren’s 360 month sentences fall within the statutory maximum. See United States v. Wilson , 244 F.3d 1208, 1215 (10th Cir. 2001) (“If drug quantitydid not cause [defendant’s] sentence to exceed the statutory maximum, Apprendi does not require that the jury make findings on quantity.”), cert. denied , 533 U.S. 962 (2001). If a specific quantity of drugs is not found, the statute provide s a maximum sentence of twenty years. 21 U.S.C. § 841 (b)(1)(C). Here, however, the § 851 enhancement 5 increased the maximum penalty under § 841(b)(1)(C) to thirty years, which is the sentence that Bloomgren received. Therefore, Appre ndi does not apply here6We acknowledge that some of our cases have explici tly gone through the

plain error analysis of United States v. Olano , 507 U.S. 725, 732-36 (1993), in evaluating Apprendi challenges where the defendant’s sentence did not exceed the statutory maximum, as opposed to stating that Appre ndi does not apply unless the sentence received exceeds the statutory maximum. S ee, e.g. , United States v. Heckard , 238 F.3d 1222, 1235 (10th Cir. 2001) (finding def endant’s “substantial rights” were not affected where his sentence fell w ithin the statutory maximum); United States v. Hishaw , 235 F.3d 565, 576 (10th Cir. 2000) (same), cert. denied , 533 U.S. 908 (2001). In any event, we have upheld defendants’ sentences against Apprendi challenges, where, as here, they were within the s tatutory maximum, whether we have held that Apprendi was not applicable or that no “substantial rights” were affected under a plain error analysis. - 10 - because it is a highly specialized challenge that o nly pertains to sentences that exceed the statutory maximum. 6

D. Sentencing Guidelines Lastly, Bloomgren argues that the Sentencing Commis sion has not promulgated adequate guidelines for community resti tution, and that therefore, the trial court had no authority to order restitution. The interpretation of a statute is a question of law that we review de novo. United States v. Acosta-Olivas , 71 F.3d 375, 377 (10th Cir. 1995). When there is no identifiable victim, 18 U.S.C. § 3 663(c) authorizes community restitution. That section directs the Un ited States Sentencing Commission (“USSC”) to “promulgate guidelines to as sist courts in determining the amount of restitution” that is appropriate. 18 U.S.C. § 3663 (c)(7)(A). In- 11 -

response, the USSC crafted United States Sentencing Guideline § 5E1.1(d), which instructs courts to “tak[e] into consideration the amount of public harm caused by the offense and other relevant factors” when orderi ng community restitution, and cross-references a USSG section that contains a max imum limit for the fines. Given that Congress has given the USSC “substantial discretion” in enacting and formulating sentencing guidelines, Mistretta v. Uni ted States , 488 U.S. 361, 377 (1989), we are well-satisfied that there are adequate guidelines governing the imposition of community restitution.

II.
We AFFIRM the district court’s opinion with respectto all issues raised.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge