* We GRANT Mr. Hood’s motion to substitute Assistant Federal

Public Defender Jill Wichlens for Assistant Federal Public Defender Vicki

Mandell-King, but note that Ms. Mandell-King argued this matter before us.

FILED

United States Court of Appeals

Tenth Circuit

August 17, 2010

Elisabeth A. Shumaker

Clerk of Court

FILED

United States Court of Appeals

Tenth Circuit

August 17, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN MCALLISTER HOOD,

Defendant-Appellant.

No. 09-4156

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF UTAH

(D.C. No. 1:07-CR-00078-DS-1)

__________________________________

Jill Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal

Public Defender, on the brief), Denver, Colorado, for Defendant-Appellant.*

Stephen J. Sorenson, Assistant United States Attorney (Carlie Christensen, Acting

United States Attorney, with him on the brief), Salt Lake City, Utah, for PlaintiffAppellee.

__________________________________

Before TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges.

_________________________________

HOLMES, Circuit Judge.

Appellate Case: 09-4156 Document: 01018478774 Date Filed: 08/17/2010 Page: 1
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Defendant-Appellant John McAllister Hood was convicted after a jury trial

of possession with intent to distribute fifty grams or more of actual

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Before trial, Mr. Hood

had sought to dismiss the indictment against him based on the government’s

destruction of evidence, but the district court denied his motion. After the jury

rendered its guilty verdict, Mr. Hood also challenged a document filed by the

government, called a Notice of Intent to Enhance Punishment pursuant to 21

U.S.C. § 851 (“Enhancement Information”). The Enhancement Information was

supposed to notify Mr. Hood of the government’s intention to seek enhanced

penalties for certain prior drug convictions. Mr. Hood challenged the

Enhancement Information on the grounds that it contained incorrect information

as to the court and place of conviction for one of his prior drug convictions. The

district court rejected Mr. Hood’s challenge to the Enhancement Information,

granted the government’s motion to correct the error contained therein, and

sentenced Mr. Hood to life imprisonment pursuant to 21 U.S.C.

§§ 841(b)(1)(A)(viii) and 851. 

Mr. Hood now appeals, arguing: (1) the district court should have

dismissed the indictment against him because the government destroyed

potentially exculpatory evidence, which deprived him of due process; (2) in the

alternative, the district court should have imposed sanctions on the government

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2 Numerous recorded conversations took place between Ms. Wilbert

and Mr. Hood, but the computer files containing the recordings were accidentally

erased. Although Mr. Hood challenged the destruction of that evidence in his

pre-trial Motion to Dismiss, he does not challenge its destruction on appeal.

-3-

for such destruction; (3) the district court should not have sentenced him to life

imprisonment because the Enhancement Information contained a non-clerical,

prejudicial error; and (4) based on Mr. Hood’s statements about defense counsel

at his sentencing hearing, the district court should have inquired sua sponte into

Mr. Hood’s relationship with defense counsel to investigate a possible conflict. 

We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. Background

Officers from the Weber-Morgan Narcotics Strike Force, a multijurisdictional unit based in Ogden City, Utah, arrested Stacy Wilbert on

September 14, 2006. Ms. Wilbert had been working for police as a confidential

informant, but they discovered she had continued to use and sell

methamphetamine. Upon her arrest, Ms. Wilbert gave officers permission to

search her home, where they discovered thirteen bags of methamphetamine that

weighed a total of 32.2 grams. Ms. Wilbert then identified Mr. Hood as her

supplier and agreed to call Mr. Hood to arrange for a drug deal.2

 In order to

avoid causing Mr. Hood to become suspicious, Ms. Wilbert informed the officers

that she would order the same amount of methamphetamine from Mr. Hood that

“she always purchased from him.” R., Vol. III, Pt. 1, at 147 (Jury Trial, dated

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3 The drugs were mistakenly released to the K-9 unit. The secretary

for the Weber-Morgan Narcotics Strike Force was notified that the case against

Ms. Wilbert had terminated and that she was the only defendant connected to the

drugs. The secretary in turn notified the Ogden City Police Department that the

(continued...)

-4-

Apr. 29, 2009). This “regular amount,” id., was a quarter of a pound, or

approximately 113 grams.

Mr. Hood arrived at Ms. Wilbert’s home carrying a backpack. Officers

took the backpack from him, whereupon he stated “I am fucked.” Id. at 109. 

Inside his backpack, officers found a large amount of white crystal substance that

a presumptive field test identified was 542 grams of methamphetamine. The

drugs were contained inside of five plastic bags. Mr. Hood admitted to officers

that he was “a large scale dealer and that he had several Mexican connections.” 

Id. at 112; accord id. at 153. He also admitted that he owned the

methamphetamine found in his backpack.

An officer later combined the drugs from the five plastic bags found in Mr.

Hood’s backpack into a separate bag and sent that bag to the crime lab for testing. 

At the crime lab, the drugs were found to have a net weight of 526 grams. 

Testing also revealed that the drugs were 90.6% pure methamphetamine, meaning

that out of the net 526 grams, 476.5 grams were pure methamphetamine. The

government does not dispute that the five plastic bags later were destroyed. The

drugs that law enforcement obtained from Mr. Hood were released later to a K-9

unit and then subsequently returned for use in his prosecution.3

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3

(...continued)

evidence was no longer needed and could be destroyed. Rather than being

destroyed, the drugs were released for K-9 training; the drugs were useful for

training purposes because they had been identified as a particular quantity of

methamphetamine. Subsequently, officers became aware that they needed the

evidence for Mr. Hood’s case and the drugs were returned.

-5-

On August 8, 2007, a federal grand jury charged Mr. Hood by a singlecount indictment with possession with intent to distribute fifty grams or more of

actual methamphetamine in violation of 21 U.S.C. § 841(a)(1). Mr. Hood

thereafter filed a Motion to Dismiss and/or For Other Relief for Destruction of

Evidence and Request for Hearing on September 12, 2008. He argued in relevant

part that the government impermissibly combined the drugs from each of the five

bags into one container and destroyed the bags. As a result, he contended, he was

unable to test the amount of pure methamphetamine seized from him. Mr. Hood

also argued that the officers in the Ogden City Police Department destroyed the

chain of custody as to the methamphetamine when they released the drugs to a K9 training unit. He alleged that those actions violated his due process rights under

California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488

U.S. 51 (1988).

The district court held an evidentiary hearing on the motion and received

post-hearing memoranda. It denied Mr. Hood’s motion to dismiss, holding that 

Defendant fail[ed] to establish what the apparent exculpatory

value of the destroyed evidence is or that the destroyed

evidence would exculpate him. Field tests and Crime lab

reports establish the presence of methamphetamine and witness

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testimony establishes Defendant’s possession. . . .

At most, Defendant’s position amounts to an argument

that the destroyed evidence would be potentially useful. 

However, the Court finds that Defendant has not presented any

evidence of bad faith and, therefore, has failed to meet his

burden of establishing that the government acted in bad faith

as required under Youngblood.

Suppl. R., Vol. I, at 73 (Mem. Decision & Order, dated Jan. 13, 2009) (footnote

omitted). The case proceeded to trial.

Mr. Hood’s trial commenced on April 29, 2009. At trial, Mr. Hood argued

that there was a reasonable doubt as to whether he possessed fifty grams or more

of methamphetamine. He theorized that police had added the methamphetamine

found in Ms. Wilbert’s home to that found in his backpack to total fifty grams or

more. At the close of the government’s case, Mr. Hood moved for a judgment of

acquittal, which was denied. In denying that motion, the district court held that “I

think the evidence is clear . . . that what was retrieved from [Ms. Wilbert] and

what was retrieved from the defendant was separated, and I see no reason not to

allow this matter to be submitted to the jury.” R., Vol. III, Pt. 2, at 298 (Jury

Trial, dated Apr. 30, 2009). Mr. Hood presented no witnesses and the jury

adjudged him guilty of the single-count indictment. 

Well before trial, on January 4, 2008, the government had filed an

Enhancement Information, notifying Mr. Hood that he could be subject to

increased punishment due to two prior drug convictions. Those prior convictions

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were identified as follows: (1) conviction of the illegal possession/use of

controlled substance, a third-degree felony, obtained in Salt Lake Third District

Court, Salt Lake County, case number 981900910; and (2) conviction of the

illegal possession/use of a controlled substance, a third-degree felony, obtained in

Davis County Court, case number 061700272. 

One of Mr. Hood’s arguments on appeal arises from the government’s

incorrect identification of the court and place of conviction in case number

981900910. That undisputed error came to light in the following way: After Mr.

Hood’s conviction in this case, the Probation Office prepared a Presentence

Report (“PSR”). The PSR concluded that the § 851 enhancement dictated that a

mandatory minimum sentence of life imprisonment be imposed upon Mr. Hood. 

He objected to that conclusion, challenging the Enhancement Information’s

reference to his conviction as being obtained in Salt Lake Third District Court,

Salt Lake County, case number 981900910. Mr. Hood explained that 

Case Number 981900910 in the Third Judicial District Court,

Salt Lake County, is the matter of State of Utah v. Michael

Royce Jackson, a Class C Misdemeanor, Criminal Trespass

matter. . . . [In] the Second Judicial District, Ogden District

there is a case entitled State of Utah v. John M. Hood, Case

No. 981900910, for which further investigation is being

conducted. However, the designated case specifically set forth

by the government in its notice is not an appropriate predicate

offense for a life sentence pursuant to 21 U.S.C. § 851.

Suppl. R., Vol. IV, at 79 (Def.’s Position as to Sentencing Factors, filed July 9,

2009).

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In response, the government filed a Motion to Correct Clerical Error, in

which it sought “to amend a clerical mistake” in the Enhancement

Information—viz., to change the court and place of conviction in case number

981900910 from Salt Lake Third District Court, Salt Lake County to Second

District Court, Weber County. Id. at 84 (Mot. Correct Clerical Error, filed July 9,

2009); see also id. at 86 (Position of Party with Respect to Sentencing Factors,

filed July 13, 2009). The government argued that Mr. Hood had been given

reasonable notice and an opportunity to be heard under § 851 because he had been

given a copy of his criminal history record on August 24, 2007, and this copy

contained the correct court and place of conviction in case number 981900910. 

Moreover, after its filing of the Enhancement Information, on August 5, 2008, the

government had provided a copy of the relevant police report in that case to Mr.

Hood. As a result, the government believed that “[t]he defendant was, without

question, well aware of the conviction intended to be used for the enhancement

and amendment to eliminate the clerical error [wa]s appropriate.” Id. at 130

(Gov’t Resp. to Def.’s Sentencing Mem., filed July 20, 2009). 

At Mr. Hood’s sentencing hearing, defense counsel did not dispute that Mr.

Hood had received an accurate copy of his criminal history record and the police

report from case number 981900910, but argued that the incorrect court and place

of conviction in the Enhancement Information was not a clerical error that could

be corrected under § 851(a)(1). The court disagreed and granted the

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government’s motion to correct the error. Toward the conclusion of that hearing,

defense counsel noted that in challenging an Enhancement Information, it was

possible to challenge the underlying convictions themselves “as to whether or not

the defendant is the individual who was charged and convicted and whether or not

they were represented by counsel and adequately protected by [sic] their

constitutional rights.” Suppl. R., Vol. VII, at 113 (Sentencing Hr’g, dated July

22, 2009). However, defense counsel declined to raise such a challenge, stating

that “I have conducted that investigation and have intentionally elected not to

raise that motion.” Id. 

The district court proceeded to sentence Mr. Hood to a term of life

imprisonment under 21 U.S.C. §§ 841(b)(1)(A)(viii) and 851, and to 120 months’

supervised release. This appeal timely followed.

II. Discussion

Mr. Hood raises four challenges to his conviction and sentence. We

address each in turn.

A. Youngblood Challenge

Mr. Hood does not deny that he had methamphetamine in his backpack on

September 14, 2006. Rather, he argues that the district court should have

dismissed the indictment against him because the government destroyed

potentially exculpatory evidence. More specifically, Mr. Hood challenges law

enforcement’s destruction of the plastic bags found in his backpack, law

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4 The amount of drugs with which Mr. Hood was charged and

convicted, fifty or more grams of actual methamphetamine, is significant under 21

U.S.C. § 841(b)(1)(A)(viii). That section provides that if a person possesses with

intent to distribute fifty grams or more of methamphetamine, “such person shall

be sentenced to a term of imprisonment which may not be less than 10 years or

more than life” and “[i]f any person commits such a violation of this

subparagraph . . . after two or more prior convictions for a felony drug offense

have become final, such person shall be sentenced to a mandatory term of life

imprisonment without release.” 21 U.S.C. § 841(b)(1)(A)(viii).

-10-

enforcement’s combination of the individually bagged methamphetamine into one

aggregate amount of drugs, and its decision to send the methamphetamine to the

K-9 training unit. 

According to Mr. Hood, without that evidence, he was unable to pursue

effectively his defense that he did not possess fifty or more grams of

methamphetamine, but possessed a lesser amount.4

 As he argued at trial, Mr.

Hood theorizes on appeal that “if some of the bags alleged to have been found in

his backpack had already been at Stacy Wilbert’s house, and if the bags properly

attributed to him contained less than 50 grams of actual methamphetamine, he

could not have been convicted of violating 21 U.S.C. § 841([b])(1)(A)(viii).” 

Aplt. Reply Br. at 2. 

Mr. Hood contends that, had the evidence at issue not been destroyed, he

would have been able to test the contents of each bag recovered from his

backpack before it was “commingl[ed]” and that “he needed fingerprint analysis

of the bags.” Aplt. Opening Br. at 19. He sets forth several hypothetical

mathematical equations to demonstrate that it is at least possible that all of the

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following propositions could be true: the drugs he brought in his backpack, when

combined with the drugs found in Ms. Wilbert’s home, could have totaled 526

grams; the combination of the purity levels of all the drugs could be 476.5 grams

of actual methamphetamine; and the amount of actual methamphetamine Mr.

Hood carried in his backpack could have been less than fifty grams. He states

that “[t]hese hypotheticals are plausible but unprovable, given the negligent

gathering and handling and ultimate destruction of the evidence in this case.” 

Aplt. Reply Br. at 5. Mr. Hood therefore contends that the government’s

destruction of potentially exculpatory evidence violated his due process rights

under Trombetta and Youngblood. However, we disagree.

We begin, as always, by explicating the applicable standard of review. As

we stated in United States v. Smith,

We review a district court’s determination that the government

did not destroy potentially exculpatory evidence for clear

error. The inquiry into allegations of prosecutorial bad faith

presents a mixed question of fact and law in which the

quintessential factual question of intent predominates. The

burden is on [the defendant] to show bad faith.

534 F.3d 1211, 1223–24 (10th Cir. 2008) (citation omitted) (internal quotation

marks omitted). 

The district court did not clearly err in concluding that Mr. Hood cannot

establish a due process deprivation under the standards set forth in Trombetta and

Youngblood. Addressing the former, we noted,

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5 Although Mr. Hood had argued before the district court that the

officers had acted in bad faith under a conspiracy theory, he now maintains that

(continued...)

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For [the] destruction of evidence to rise to the level of

affecting a defendant’s Due Process rights under California v.

Trombetta, the evidence must both possess an exculpatory

value that was apparent before the evidence was destroyed, and

be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available

means.

United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003) (internal quotation

marks omitted); accord United States v. Bohl, 25 F.3d 904, 909–10 (10th Cir.

1994). In Youngblood, the Supreme Court “extended Trombetta to provide that, if

the exculpatory value of the evidence is indeterminate and all that can be

confirmed is that the evidence was potentially useful for the defense, then a

defendant must show that the government acted in bad faith in destroying the

evidence.” Bohl, 25 F.3d at 910 (internal quotation marks omitted); accord

Smith, 534 F.3d at 1224; United States v. Beckstead, 500 F.3d 1154, 1158 (10th

Cir. 2007). 

Mr. Hood cannot satisfy either test. Initially, Mr. Hood has conceded that

the destroyed evidence was only potentially exculpatory, thereby eliminating any

claim he may have had under Trombetta. Moreover, Mr. Hood cannot succeed

under Youngblood because, even if we assume that the evidence was potentially

exculpatory, Mr. Hood conceded in his Reply Brief and at oral argument that the

officers did not act in bad faith in destroying the evidence.5

 Consequently, his

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5

(...continued)

the officers acted negligently and “us[ed] less than best practices” and admits that

they did not act in bad faith. Aplt. Reply Br. at 2.

-13-

Youngblood challenge must necessarily fail. “[U]nless a criminal defendant can

show bad faith on the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law.” Youngblood, 488

U.S. at 58; accord Snow v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007). 

Mr. Hood attempts to salvage his claim by contending that we should hold

that bad faith is not required in this case pursuant to Justice Stevens’s

concurrence in Youngblood. Justice Stevens provided a sixth vote in Youngblood,

but he only concurred in the judgment. Specifically, he declined to join in the

Youngblood majority’s opinion, reasoning that “it announces a proposition of law

that is much broader than necessary to decide this case.” 488 U.S. at 60 (Stevens,

J., concurring). In particular, Justice Stevens objected to the majority’s

determination that law enforcement’s failure to preserve potentially useful

evidence does not amount to a due process violation, unless the defendant can

show that law enforcement acted in bad faith. See id. at 60–61. He wrote, “[i]n

my opinion, there may well be cases in which the defendant is unable to prove

that the State acted in bad faith but in which the loss or destruction of evidence is

nonetheless so critical to the defense as to make a criminal trial fundamentally

unfair.” Id. at 61. 

Mr. Hood’s reliance on Justice Stevens’s concurrence is unavailing for two

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reasons. First, at the risk of stating the obvious, Justice Stevens was not speaking

for a majority of the Court in Youngblood. Indeed, no other justice joined his

concurrence. We have never applied Justice Stevens’s view as controlling

precedent. And we see no tenable basis for doing so here.

Second, even if we could accept the proposition that law enforcement bad

faith is not required in cases where the loss or destruction of evidence is so

critical to the defense as to render the trial fundamentally unfair, we would have

little difficulty concluding on the facts before us that this is not such a case. Mr.

Hood’s defense turned in large part on the theory that the police had corruptly

conspired to add the methamphetamine found in Ms. Wilbert’s home to that found

in Mr. Hood’s backpack in order to subject him to the enhanced criminal penalty

associated with possession of fifty or more grams of methamphetamine. To be

critical to that defense, the lost or destroyed evidence would have to be, at the

very least, favorable to Mr. Hood (e.g., reveal Ms. Wilbert’s fingerprints on the

destroyed plastic bags). But, as Mr. Hood concedes, it was not apparent “whether

the evidence would favor the government or the defendant.” Aplt. Reply Br. at 7. 

Furthermore, Mr. Hood had ample opportunity to advance his defense theory

before the jury in other ways. As the government details in its brief, defense

counsel extensively cross-examined witnesses regarding whether the drugs

obtained from Mr. Hood and Ms. Wilbert were kept separate or (illicitly)

combined. Mr. Hood’s counsel challenged the handling of evidence and the chain

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of custody, and also vigorously argued the conspiracy theory before the jury. 

Thus, the jury was fully apprised of the nature of Mr. Hood’s defense, thereby

reducing, or perhaps even eliminating, any prejudice that might otherwise flow

from the absence of the destroyed evidence. Cf. Youngblood, 488 U.S. at 59

(Stevens, J., concurring) (“[A]lthough it is not possible to know whether the lost

evidence would have revealed any relevant information, it is unlikely that the

defendant was prejudiced by the State’s omission. In examining witnesses and in

her summation, defense counsel impressed upon the jury the fact that the State

failed to preserve the evidence and that the State could have conducted tests that

might well have exonerated the defendant.” (emphasis added)).

Moreover, on the question of fundamental fairness, as Justice Stevens’s

Youngblood analysis suggests, “our overriding concern [is] with the justice of the

finding of guilt” and “a State’s failure to turn over (or preserve) potentially

exculpatory evidence therefore must be evaluated in the context of the entire

record.” Id. at 60 (Stevens, J., concurring) (internal quotation marks omitted). 

The record here indicates that the jury would have had little, if any, basis to adopt

Mr. Hood’s theory. As the government has argued, “There was strong evidence

that Stacy Wilbert’s drugs and Hood’s drugs were handled entirely separately,

never commingled, and that no conspiracy was hatched to add drugs to those

carried by Hood.” Aplee. Br. at 30. Furthermore, there was evidence in the

record that Mr. Hood regularly distributed methamphetamine to Ms. Wilbert in

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-16-

quantities in excess of fifty grams and that, when Mr. Hood was arrested, he was

bringing Ms. Wilbert the “regular amount,” R., Vol. III, Pt. 1, at 147, of

approximately 113 grams. Consequently, even if we could be guided by Justice

Stevens’s concurrence, on the facts of this case, we would conclude that “the loss

or destruction of evidence” was not “so critical to the defense as to make a

criminal trial fundamentally unfair.” Youngblood, 466 U.S. at 61 (Stevens, J.,

concurring). 

In sum, we hold that the district court did not clearly err in rejecting Mr.

Hood’s claim that his due process rights had been violated under Trombetta and

Youngblood.

B. Civil Spoilation Claim

In the event that we were to conclude (as we do) that there was no due

process deprivation, Mr. Hood argues in the alternative that the district court

should have imposed some other sanction on the government for the spoilation of

evidence. He urges us to apply the civil spoilation standard under which a court

may impose certain sanctions even in the absence of bad faith. See Henning v.

Union Pac. R.R. Co., 530 F.3d 1206, 1219–20 & n.6 (10th Cir. 2008) (“A

spoliation sanction is proper where (1) a party has a duty to preserve evidence

because it knew, or should have known, that litigation was imminent, and (2) the

adverse party was prejudiced by the destruction of the evidence.” (internal

quotation marks omitted)). Mr. Hood contends that “the district court should

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have imposed sanctions by excluding government evidence concerning the

quantity of drugs. . . . Had the court done so, Mr. Hood would likely have been

convicted of a lesser-included offense, one that does not carry life imprisonment.” 

Aplt. Opening Br. at 35; see also Aplt. Reply Br. at 9–16.

Although Mr. Hood argued in his Reply Brief that this claim was raised

before the district court, defense counsel filed a supplemental authority pursuant

to Federal Rule of Appellate Procedure 28(j), indicating that “this Court’s

discussion of plain-error review in United States v. Wardell, 591 F.3d 1279,

1297–98 (10th Cir. 2009), may be helpful to the Court’s resolution” of this issue. 

Operating with commendable candor, defense counsel then conceded at oral

argument that this claim was not raised below. Accordingly, we review it for

plain error. See Wardell, 591 F.3d at 1297. 

Under that “rigorous” standard, Mr. Hood’s argument fails. Id. When

applying plain-error review, “we may reverse a district court’s ruling only if [the

defendant] demonstrates (1) error (2) that is plain and (3) that affected [his]

substantial rights. If these three elements are met, then we may, in our discretion,

correct an error that seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1297–98 (first alteration in original) (internal

quotation marks omitted). Even if we assume arguendo that it was error for the

district court not to apply the civil standard governing the spoilation of evidence

and not to sanction the government for such spoilation, Mr. Hood “cannot

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establish that such error is plain—that is, obvious and clear.” Id. at 1298. “[W]e

do not deem an error to be obvious and clear unless it is contrary to current ‘wellsettled law’—that is, to the current law of the Supreme Court or the Tenth

Circuit.” Id. (quoting United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir.

2008)). Mr. Hood has cited to no case applying this civil discovery doctrine to

the criminal context and, as a result, he cannot prevail under plain-error review.

C. Error in the Enhancement Information

In his third claim on appeal, Mr. Hood contends that the district court

should not have sentenced him to a mandatory term of life imprisonment because

the government’s Enhancement Information contained what he believes to be a

non-clerical, prejudicial error—viz., the Information lists the incorrect court and

place of conviction for one of his predicate prior drug convictions. Accordingly,

Mr. Hood argues that the error could not be corrected prior to sentencing, in the

way that a clerical mistake may be amended under 21 U.S.C. § 851(a)(1). The

error, he contends, resulted in his failure to identify the particular conviction

upon which the Enhancement Information relied and Mr. Hood urges us to

conclude that the district court erred by enhancing his sentence. We find that any

error was harmless.

We review de novo the legality of a sentence, including the adequacy of an

information filed under § 851. See United States v. Gonzalez-Lerma, 14 F.3d

1479, 1484 (10th Cir. 1994), overruled on other grounds by United States v.

Appellate Case: 09-4156 Document: 01018478774 Date Filed: 08/17/2010 Page: 18
-19-

Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995); accord United States v. King,

127 F.3d 483, 487 (6th Cir. 1997). Section 851 provides in relevant part that

No person who stands convicted of an offense under this part

shall be sentenced to increased punishment by reason of one or

more prior convictions, unless before trial, or before entry of a

plea of guilty, the United States attorney files an information

with the court (and serves a copy of such information on the

person or counsel for the person) stating in writing the

previous convictions to be relied upon. Upon a showing by the

United States attorney that facts regarding prior convictions

could not with due diligence be obtained prior to trial or before

entry of a plea of guilty, the court may postpone the trial or the

taking of the plea of guilty for a reasonable period for the

purpose of obtaining such facts. Clerical mistakes in the

information may be amended at any time prior to the

pronouncement of sentence.

21 U.S.C. § 851(a)(1). “A district court cannot impose an enhanced sentence

unless the Government complies with § 851(a)’s requirements.” United States v.

Balderama-Iribe, 490 F.3d 1199, 1204 (10th Cir. 2007). 

Mr. Hood asserts that “[t]he question in this appeal is whether the

identification of the wrong court and location is a clerical error capable of

correction, or if it is such that the Information was insufficient to enhance Mr.

Hood’s sentence to life imprisonment.” Aplt. Opening Br. at 37. In other words,

Mr. Hood posits that if we are unable to conclude that the error in the

Enhancement Information is a correctable clerical error, we must determine that

the Enhancement Information cannot provide the basis for his life sentence and,

accordingly, declare that sentence to be fatally infirm. Our decisional options,

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however, are not so narrowly circumscribed. Even if we were to conclude that

the error in the Enhancement Information was more than a correctable clerical

error (i.e., non-clerical), we still would be free to conclude that such an error was

harmless. 

In Gonzalez-Lerma, for example, we effectively endorsed and applied a

harmless-error analysis. 14 F.3d at 1486. There, the Enhancement Information

contained an incorrect date of conviction, did not specify the place of conviction

other than specifying the state in which the conviction occurred, and did not

provide a case number. Id. at 1485. We determined that the incorrect date was a

clerical mistake that could be amended any time prior to the pronouncement of

sentence under § 851(a)(1). Id. at 1486. As for the omitted information

regarding the precise location of the conviction and the case number, we

determined that, despite those omissions, the government’s Enhancement

Information provided sufficient notice to the defendant of its intent to enhance his

sentence based on the prior conviction. Id. We said that § 851 was enacted to

fulfill the due process requirement that a defendant “receive reasonable notice and

opportunity to be heard relative to the recidivist charge even if due process does

not require that notice be given prior to trial on the substantive offense,” and

determined that the defendant had received sufficient notice and an opportunity to

be heard. Id. at 1485–86 (internal quotation marks omitted). The government

had allowed defense counsel “to explore the contents of the judgment” and the

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defendant had not challenged his prior conviction, but rather had challenged the

timing of the Enhancement Information and its specificity. Id. at 1486. We

applied harmless error review and declined to adopt a “hyptertechnical approach”

to § 851. Id. 

We also applied a harmless-error analysis in United States v. LopezGutierrez, 83 F.3d 1235, 1246 (10th Cir. 1996), which involved a decidedly nonclerical error. In that case, the district court had failed to comply with § 851(b)

when it did not ask the defendant whether he affirmed or denied the previous

conviction. Id. We concluded that the error was harmless: the defendant did not

allege any prejudice caused by the omission, and the defense counsel had

conceded the fact of the previous conviction during a pre-trial motion. Id. at

1246–47.

Accordingly, our precedent indicates that even if we find that an error is

non-clerical—viz., not an error subject to correction under § 851(a)(1)’s express

terms—we nonetheless may conduct an inquiry into whether any such error was

prejudicial. See also United States v. Severino, 316 F.3d 939, 944 (9th Cir. 2003)

(“The clerical error provision, which allows the government to correct ‘clerical

mistakes’ in an information before sentencing, does not raise the inference that no

other mistakes are permitted. . . . If the error is deemed to be clerical, the

government may simply correct it by filing an amended information without

showing that defendant was not misled. If the error is non-clerical, however, the

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6 Although Mr. Hood argues that the error was not harmless, he makes

no attempt to explain how he was harmed and we are convinced by the

government’s argument that he did not suffer any prejudice.

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information is deemed defective unless the government shows that defendant

could not reasonably have been misled to his prejudice as to the identity of the

prior conviction.” (footnote omitted)).

Applying these principles here, we conclude that even if we were to accept

Mr. Hood’s contention that the Enhancement Information’s error regarding the

court and place of conviction was not clerical, we would still reject his challenge

to the Enhancement Information on harmless-error grounds because he was not

prejudiced.6

 Mr. Hood has not disputed that he received a copy of the relevant

police report for that conviction as well as a pretrial report that accurately

recounted his criminal history. Moreover, although the Enhancement Information

identified the wrong court and location for the relevant conviction, it did include

other correct identifiers like the proper case number. Significantly, at the time

Mr. Hood filed his objections to the PSR, he expressed (through counsel) his

actual knowledge of a conviction associated with his name that had all of the

same information found in the Enhancement Information and, in addition, had the

correct court and location of conviction. In other words, at the time he filed his

sentencing objections, Mr. Hood was aware of facts that would have allowed him

to reasonably infer that the conviction of which he had knowledge was the same

conviction listed in the Enhancement Information, notwithstanding its flawed

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7 Because we affirm the district court’s enhancement under

§§ 841(b)(1)(A)(viii) and 851, we need not address Mr. Hood’s contention that he

does not qualify for career-offender status under the Guidelines.

8 Mr. Hood stated that “there are some reasons that we didn’t talk

about at trial that I felt were pertinent. I asked [defense counsel] about some of

these things and he advised me different [sic] or did it in a different manner.” 

Suppl. R., Vol. VII, at 102. Mr. Hood also referred to the fact that the defense

presented no witnesses on his behalf at trial, saying “[a]t my trial, we didn’t call

any witnesses on my behalf, not one. I’ve asked [defense counsel] that. He says

that it wasn’t necessary. I don’t understand that.” Id. at 104. Mr. Hood also

noted that the defense did not present any expert witnesses. He later stated that “I

should have taken the stand at my trial. I never did that. I was advised not to do

(continued...)

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description there. And finally, at the sentencing hearing, defense counsel

explicitly declined to contest that Mr. Hood was in fact the person who had

suffered the at-issue conviction listed in the Enhancement Information. Because

Mr. Hood had sufficient notice of the prior conviction upon which the government

sought enhancement as well as an opportunity to be heard, the Enhancement

Information’s incorrect identification of the court and place of conviction would

be at most harmless error. We therefore affirm the district court’s enhancement

of Mr. Hood’s sentence.7

D. The Court’s Duty to Inquire Into Relationship With Defense

Counsel

In Mr. Hood’s fourth and final claim, he argues that the district court sua

sponte should have inquired into Mr. Hood’s relationship with defense counsel to

investigate a possible conflict based on Mr. Hood’s statements about defense

counsel at his sentencing hearing.8

 This argument can gain no traction. As 

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8

(...continued)

that, which I think was a gross injustice. I should have been able to testify and

speak on my behalf.” Id. at 105. Mr. Hood also said that “I asked [defense

counsel] several times to have the evidence tested. I believe that is a right of

mine. [Defense counsel] said no numerous times. I also asked him for a bench

trial. . . . He told me no.” Id. at 107. He continued, 

I asked [defense counsel] if he could beat this case. He told

me that we’re going to throw the dice up and not throw the

dice down. You know, had I known that was the case, I might

have worked with the government on a deal. I don’t know. 

Now I’m looking at life. I just feel like that [sic] these things

were not handled properly. For reasons why, I don’t know.

[Defense counsel] did very well in his motions to suppress and

his evidentiary hearing.

Id. at 108. Mr. Hood then began to explain further the legal arguments in his

motion to dismiss, but the court interrupted him, saying,

We’re not here to reargue these matters. The Court has made

rulings, Mr. Hood. . . . I agree with you, I think [defense

counsel] has done an exceptional job to bring to the Court’s

attention those matters that need to be brought to the Court’s

attention. [Defense counsel] has appeared in my court many

times and I have found him to be very, very competent in

every respect.

Now if there is any error, if there is anything shown to

the appellate court that is wrong in your behalf, those matters

will be reviewed and you will receive further consideration. 

But I’m not here to retry this case. . . . I don’t know all that’s

gone on behind the scenes, but I do know that [defense

counsel] has brought to the attention of the Court those

evidentiary matters that were pertinent to this case and the

Court has made rulings. . . . 

. . . We’re not here retrying the case.

Id. at 108–09. Mr. Hood indicated that he understood and that he had nothing

further to say.

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the government rightly states, “there is no statutory or case law suggesting the

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duty Hood advocates. To the contrary, the cases suggest that district courts

generally do not have a duty sua sponte to inquire into the attorney-client

relationship.” Aplee. Br. at 50. A district court has no such duty, particularly

when it is presented only with the unsworn, unsupported, and at times

contradictory, allegations of the defendant at his sentencing hearing. Cf. United

States v. Meacham, 567 F.3d 1184, 1187–88 (10th Cir. 2009) (holding that the

district court did not abuse its discretion in denying, without an evidentiary

hearing, a motion for a new trial based on counsel’s alleged refusal to allow

defendant to testify on his own behalf; discussing the fact that the claim regarding

counsel’s refusal was unsupported by an affidavit or testimony under oath);

United States v. Stark, 507 F.3d 512, 516 (7th Cir. 2007) (in holding that a trial

court is not required to question a defendant sua sponte to ensure that he

knowingly and intelligently has decided not to testify, stating that “[c]riminal

defendants and their lawyers often do not see eye to eye. If a district court were

compelled to inquire into every potential conflict it thought it had spotted, there

would be a risk of multiple, unnecessary proceedings, some of which might even

imperil the attorney-client relationship. More is needed before this kind of

judicial duty arises.”); United States v. Van De Walker, 141 F.3d 1451, 1452

(11th Cir. 1998) (rejecting argument that there is a per se requirement that a

district court inquire into decision of criminal defendant not to testify, and

discussing concerns about intruding into the attorney-client relationship or

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influencing the defendant’s choice); United States v. Robinson, 913 F.2d 712, 716

(9th Cir. 1990) (holding that the district court did not err in failing to make

further inquiries into the defendant’s complaints about counsel when the

defendant made no motion for substitution of counsel). We decline to impose this

duty upon district courts or to interfere unnecessarily in the attorney-client

relationship. In so holding, we emphasize that we do not suggest that Mr. Hood

is unable to raise these issues in a collateral ineffective-assistance-of-counsel

claim. He remains free to do so.

III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Hood’s conviction and

sentence.

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