United States v. Dittmer

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON WILLIAM DITTMER, Defendant-Appellant.

No. 22-4095

United States Court of Appeals, Tenth Circuit

May 31, 2024

(D.C. No. 4:21-CR-00115-JNP-PK-1) (D. Utah)

Before PHILLIPS, SEYMOUR, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Michael R. Murphy Circuit Judge

Jason Dittmer pleaded guilty to one count of possession of methamphetamine with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of conspiracy to obstruct justice, see 18 U.S.C. § 1512(c)(1), (k). In exchange for Dittmer's guilty plea the government agreed to (1) dismiss three additional possession-with-intent-to-distribute charges; (2) recommend Dittmer's offense level be decreased two levels for acceptance of responsibility, U.S.S.G. § 3E1.1(a), and move for an additional one level acceptance-of-responsibility reduction, id. § 3E1.1(b); and (3) and recommend Dittmer be sentenced at the low end of the advisory Sentencing Guideline range. The district court varied downward from the bottom of the advisory sentencing range and imposed upon Dittmer a sentence of fifty months' imprisonment.

Dittmer asserts his guilty plea was not knowing and voluntary because he was not informed of all elements of the § 1512(c)(1) charge. He claims that to prove a violation of § 1512(c)(1), the government must demonstrate he contemplated a particular proceeding, at the time of his obstructive conduct, that was reasonably likely to be federal (i.e., the "nexus" requirement). In response, the government notes Dittmer did not raise this issue below and, thus, can only obtain appellate relief by demonstrating the district court committed plain error. It further argues the nexus requirement is not an element of a § 1512(c)(1) charge but is, instead, "an implicit limitation" courts "have read into" § 1512(c)(1)'s mens rea element. Gov't Response Br. at 16. At a minimum, the government avers, the answer to this question is not plain. And, in any event, according to the government, any error did not affect Dittmer's substantial rights because he failed to show a reasonable probability that, absent the error, he would not have pleaded guilty. See United States v Dominguez Benitez, 542 U.S. 74, 83 (2004).

This court need not resolve whether the nexus requirement is an element of a § 1512(c)(1) charge or, even if not, whether the Due Process Clause still requires a discussion of the nexus requirement as part of a knowing and voluntary plea. Nor need we resolve whether the answer to these questions is clear or obvious. Instead, it is enough to conclude Dittmer failed to demonstrate any assumed error affected his substantial rights. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court's judgment of conviction.

II. BACKGROUND

Dittmer has an extensive criminal history. His juvenile record includes fifty-one incidents, including drug charges and crimes like assault, theft, and burglary. His adult criminal record dates to 2003. It includes convictions in approximately twenty-five separate cases of using/distributing drugs, burglary, and domestic violence.

On June 1, 2021, Dittmer sold heroin to a confidential informant working with the Washington County Drug Task Force ("WCDTF"). Three days later, Dittmer sold 2.5 grams of methamphetamine to the informant in another WCDTF controlled purchase. On August 3, 2021, a WCDTF officer stopped Dittmer for driving with a suspended license. A drug dog indicated there were drugs inside Dittmer's truck. The officer searched the truck and Dittmer's person and found 14.8 grams of methamphetamine. Dittmer admitted the methamphetamine was his. On August 23, 2021, officers watched Dittmer as he sat in Anthony Ricketts's car. Dittmer exited Ricketts's car and drove away in his own vehicle. Officers stopped both vehicles. In Ricketts's car, officers found syringes, a digital scale, and about 12 grams of methamphetamine. Ricketts said Dittmer was a drug dealer and the drugs belonged to Dittmer. Officers found more drugs and drug-dealing equipment in Dittmer's possession, including a digital scale, two bags of marijuana, glass pipes, oxycodone and morphine pills, a syringe of heroin, and three baggies containing a total of approximately 5.4 grams of methamphetamine.

Officers arrested Dittmer and booked him into jail. On August 24, 2021, Dittmer called his friend Nicole Baty from a phone in the jail. A WCDTF officer monitored the call. Dittmer told Baty officers had taken his phone "as evidence" and said she needed "to log into my email and erase my phone." Baty agreed to do so. Dittmer provided Baty his account usernames and passwords. The next day, Dittmer again phoned Baty in a monitored call. Baty said she had been "able to get into [Dittmer's] account," "deleted [his] phone," and then "locked it and secured it."

On November 3, 2021, a federal grand jury indicted Dittmer on five counts: (1) distributing heroin on June 1, 2021, see 21 U.S.C. § 841(a)(1), (b)(1)(C); (2) distributing methamphetamine on June 4, see id.; (3) possessing five grams or more of methamphetamine with intent to distribute it on August 3, see id. § 841(a)(1), (b)(1)(B); (4) possessing methamphetamine with intent to distribute on August 23, see id. § 841(a)(1), (b)(1)(C); and (5) conspiring to obstruct justice, see 18 U.S.C. § 1512(c)(1), (k). The parties negotiated a plea agreement. Dittmer agreed to plead guilty to Count 4 (possessing methamphetamine with intent to distribute) and Count 5 (conspiring to obstruct justice). The government agreed to dismiss the three remaining counts, including Count 3, a possession-with-intent-to-distribute count that carried a five-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(B)(viii). The government also agreed to move for a full three-level reduction in Dittmer's offense level for acceptance of responsibility and to recommend a sentence at the low end of the Sentencing Guidelines range.

The plea agreement described the elements of the obstruction charge as follows: (1) "The defendant did knowingly and intentionally combine, conspire, confederate, and agree with another"; (2) "To corruptly alter, destroy, mutilate, and conceal a record and document, that is, content of his cell phone"; (3) "With the intent to impair its integrity and availability for use in an official proceeding." The plea agreement also incorporated a stipulation of facts. Dittmer agreed he "knowingly and intentionally combined, conspired, confederated, and agreed with [Baty] to corruptly alter, destroy, mutilate, and conceal a record and document, that is, content of my cell phone, with the intent to impair its integrity and availability for use in an official proceeding." He further stipulated his "conduct obstructed justice by destroying evidence in a federal narcotics investigation."

The plea agreement stated Dittmer understood the charges and "what the United States [was] required to prove" to convict him. Dittmer asserted he had an opportunity to discuss the nature of the charges with his attorney and his attorney explained the nature of the charges against him. He acknowledged he discussed this case and this plea with his lawyer as much as he wished, was satisfied with [his] lawyer, and had no additional questions. At the change of plea hearing on January 24, 2022, Dittmer told the district court he reviewed the plea agreement "in detail" with his counsel. He affirmed he had enough time to discuss his case with his lawyer and was satisfied with his representation. The district court recited the factual stipulation for the obstruction count. Dittmer agreed those facts were true. The district court accepted Dittmer's guilty plea, finding he was "aware of the nature of [his] pleas and charges and the consequences of them" and his plea was knowing and voluntary and supported by facts.

A few months after the district court accepted his guilty plea, defense counsel, Paul Riddle, informed the court Dittmer wanted new counsel appointed so he could potentially pursue withdrawing his plea. He believed evidence existed that would question the "credibility of the investigation." The district court granted Dittmer's request to consult with a different attorney and appointed Robert Hunt for that limited purpose. At a hearing on May 16, 2022, Riddle told the district court both he and Hunt discussed the issue with Dittmer and both attorneys agreed there was no basis for a motion to withdraw the plea. Because Dittmer continued to desire to move forward with an attempt to withdraw his guilty plea, the district court allowed Riddle to withdraw and appointed Ariel Taylor to represent Dittmer. On August 29, 2022, Taylor informed the court he had investigated Dittmer's allegations and found "no basis in the facts or the law" to support them. Taylor concluded any motion to withdraw the plea "would be frivolous." Because Dittmer still believed his claims warranted withdrawing his plea, the district court allowed Dittmer to represent himself for purposes of such a motion.

The district court ultimately denied Dittmer's pro se motion to withdraw his plea. It explained Dittmer had suggested several grounds for withdrawal, including that a particular detective was not credible, some evidence was inappropriately obtained, law enforcement searched the wrong phone, and Dittmer had been inappropriately arrested on a warrant that should have been rescinded. The district court concluded none of these constituted a "fair and just reason" for withdrawing the plea and the factors governing motions to withdraw a plea weighed against Dittmer's request. The court explained Dittmer had not asserted a claim of innocence, had benefited from a long record of...