United States v. Busch

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD ALFRED BUSCH, Defendant-Appellant.

No. 22-2161

United States Court of Appeals, Tenth Circuit

July 30, 2024

(D.C. No. 5:20-CR-01486-KG-2) (D. N.M.)

Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Veronica S. Rossman, Circuit Judge

Donald Alfred Busch was convicted after a jury trial in the District of New Mexico on charges of conspiracy, carjacking resulting in death, carrying a firearm while committing a crime of violence, and being a felon in possession of a firearm or ammunition. The district court imposed a sentence of 480 months in prison. Mr. Busch now appeals, advancing challenges to his conviction and sentence. As we explain, many of Mr Busch's appellate challenges were not preserved in the district court or properly developed on appeal, and the arguments appropriately before us are unavailing. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I^[1]

A

On the evening of May 27, 2019, Mr. Busch and his ex-girlfriend Tristyn Carlo were arguing over text message. Carlo had recently started dating Justin Swenson. Mr. Busch said he would "come down" to Swenson's house and show her and Swenson "how dumb he could be." RIII.874. A little after midnight, Mr. Busch went to Swenson's house and saw Carlo's car parked outside. He thought Carlo was "in there banging [Swenson]." RI.153.

Mr Busch drove a few miles away to a property where his friend, Stetson Barnes, lived in a trailer. There, he asked Barnes and two others-Jehra Hedgecock and Tyson Terrell-to help him steal a dirt bike^[2] from Swenson. Hedgecock drove the group to Swenson's house in her truck. Mr. Busch, Barnes, and Hedgecock each carried a handgun.^[3] When they arrived, Hedgecock got out of her truck and knocked on Swenson's front door, but no one answered. Mr. Busch and Terrell walked to the garage and looked at Swenson's dirt bikes, while Barnes stood near the tailgate of the pickup truck. Mr. Busch selected a dirt bike, brought it outside the garage, and tried to start it.

Swenson then came to the front door with a gun in his hand. Mr. Busch, Barnes, and Hedgecock pulled out their guns and pointed them at Swenson. Mr. Busch shouted at Swenson to get back in the house. Swenson responded, "Chill the fuck out," and went back inside. Mr. Busch again tried to start the dirt bike, but he was unsuccessful. He then pushed the dirt bike down the driveway and off Swenson's property. Barnes, Terrell, and Hedgecock got back inside the truck, with Hedgecock driving, Terrell in the passenger seat, and Barnes in the backseat.

As Hedgecock pulled away from the property, Barnes and Swenson exchanged gunfire. In a few seconds, Barnes fired twelve shots into the house, and Swenson fired four shots at the pickup truck. One of Barnes's shots ultimately penetrated the house, killing Swenson.

Mr. Busch was arrested about a week later. Mr. Busch's firearm was never recovered. A federal grand jury indicted Mr. Busch for committing a carjacking resulting in death under 18 U.S.C. § 2119(3); engaging in a conspiracy to commit carjacking under 18 U.S.C. §§ 2119(3) and 371; carrying a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(2); and being a felon in possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1). Barnes, Terrell, and Hedgecock were charged as co-defendants with Mr. Busch in the same indictment.^[4]

B

Mr Busch and co-defendants Barnes and Terrell proceeded to jury trial.^[5]We briefly highlight aspects of the trial proceedings relevant to the appellate issues and will discuss these facts in more detail in our analysis.

At the pretrial conference, Mr. Busch's counsel mentioned for the first time his desire to call a toxicology expert to testify about Swenson's alleged methamphetamine intoxication on the night of the offense. The expertdesignation deadline had expired, but the district court agreed to "reconsider a deadline if there's good cause, if [Mr. Busch] [did] have an expert," since there was "some time before trial." RIII.2142. Mr. Busch never proposed a toxicology expert.

Before trial, each defendant and the government filed a set of proposed jury instructions. The court then drafted a preliminary set of jury instructions, including one on the elements of carjacking under § 2119(3), which said

To find a Defendant . . . guilty of this crime, you must be convinced that the United States has proved each of the following elements beyond a reasonable doubt: First, the Defendant took a Yamaha motorcycle from the presence of another person; Second, the Defendant did so by means of force and violence, or intimidation; Third, the motor vehicle had been transported, shipped, and received in interstate or foreign commerce; Fourth, the Defendant intended to cause death or serious bodily harm; and Fifth, someone died as a result of the crime.

ECF No. 280 at 10.^[6] At the jury instruction conference, the government asked the district court to modify the instruction by separating the first four elements (simple carjacking) from the final element (the death-results element). The government also proposed placing the death-results element in a separate interrogatory. Mr. Busch's counsel opposed the government's proposal. "I would object to doing that," defense counsel said. RIII.1532. "I think it's totally proper the way the Court's done it." The district court ultimately gave a single instruction with all five elements for carjacking resulting in death, in the form endorsed by Mr. Busch.

Co-defendant Barnes requested a self-defense instruction on the charges of carjacking under § 2119(3) and carrying a firearm in violation of § 924(c)(1)(A)(2).^[7] The district court ultimately concluded self-defense was available only as to the § 924(c)(1)(A)(2) offense against Barnes-and not as to the carjacking charge. On the record before us, Mr. Busch did not participate in the pre-trial litigation on the self-defense instruction.

The jury heard testimony over the course of eight days. The government presented evidence from fifteen witnesses, including the officers who investigated the incident, Carlo, Hedgecock, and two firearms and ammunition experts. Barnes testified in his defense; the other defendants did not.

When the government rested, Mr. Busch moved for a judgment of acquittal on all charges. The court denied the motion. The jury convicted Mr. Busch as charged in the indictment. Mr. Busch was sentenced to concurrent prison terms of 60 months on Count 1 (conspiracy), 396 months on Count 2 (carjacking), and 120 months on Count 7 (felon in possession), and a consecutive term of 84 months on Count 4 (using a firearm in a crime of violence), for a total of 480 months.

This timely appeal followed.

II

Mr. Busch urges reversal of his conviction and sentence. His opening brief raises seven issues-some of which overlap. We understand his appellate challenges as follows.

First, Mr. Busch argues the evidence was insufficient to support a conviction. He challenges the sufficiency of the evidence on his carjacking conviction under § 2119(3).^[8] He contends a dirt bike is not a "motor vehicle" within the meaning of the statute. And he insists the evidence was insufficient to show he intended to harm Swenson. He also appeals his conspiracy conviction based on insufficient evidence of his specific intent to commit the underlying carjacking offense and the interdependence among the coconspirators. Mr. Busch likewise challenges his firearms-related convictions (for being a felon in possession and using a firearm in a crime of violence), contending the government failed to prove beyond a reasonable doubt he carried a gun.

Second, Mr. Busch challenges aspects of the jury instructions. He contends the jury was erroneously instructed on the carjacking offense because the death-results element was not set out in its own interrogatory. And he insists he was entitled to a jury instruction on self-defense to the carjacking charge.

Third, Mr. Busch contends the district court erred by excluding his proposed toxicology expert.

Finally, Mr. Busch contends his sentence is procedurally unreasonable because the district court erroneously imposed a two-level sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

As we explain, Mr. Busch's appellate claims are unpreserved, underdeveloped on appeal, or unavailing on the merits. We discuss each in turn and affirm the district court.

III

A

Mr Busch argues there was insufficient evidence to sustain a conviction for carjacking resulting in death under 18 U.S.C. § 2119. As a general rule, we review sufficiency-of-the-evidence challenges to criminal jury verdicts de novo. United States v. Cornelius, 696 F.3d 1307, 1316 (10th Cir. 2012). Sufficient evidence exists to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Here the statute of conviction provides criminal penalties for "[w]hoever, with the intent to cause death or serious bodily harm, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation." 18 U.S.C. § 2119. Mr. Busch asserts § 2119 "was . . . directed at cars" and not dirt bikes-the vehicle he took from Swenson. Opening Br. at 35. He further contends the evidence was insufficient to prove either of the charges for which the carjacking offense is a predicate, namely the conspiracy count and the § 924(c) count. See Opening...