United States of America v. James Christopher Benvie

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES CHRISTOPHER BENVIE,
Defendant - Appellant.
No. 20-2147
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:19-CR-01715-RB-1)
_________________________________
Josh Lee, Assistant Federal Public Defender (and Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
C. Paige Messec, Assistant United States Attorney (and Fred J. Federici, Acting United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before HARTZ, KELLY, and CARSON, Circuit Judges.
_________________________________
KELLY, Circuit Judge.
_________________________________
Defendant-Appellant James Benvie was convicted of impersonating a
government employee, 18 U.S.C. § 912, and sentenced to 21 months’ imprisonment
and a year of supervised release. On appeal, Mr. Benvie argues that the district court
erred by (1) instructing the jury that “U.S. Border Patrol” and “Border Patrol” were
FILED
United States Court of Appeals
Tenth Circuit
November 18, 2021
Christopher M. Wolpert
Clerk of Court
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synonymous, (2) imposing five special conditions of supervised release without
adequate explanation, and (3) imposing a mandatory condition of supervised release
(drug testing) in the judgment and commitment order. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the conviction but remand for
reconsideration of the conditions of supervised release and removal of the mandatory
condition of drug testing.
Background
In early 2019, a group of individuals called the United Constitutional Patriots
(UCP) began camping along a 52-mile stretch of the U.S.-Mexico border along the
eastern edge of New Mexico, near El Paso, Texas. 4 R. 28–32. Mr. Benvie met this
group and subsequently began posting videos on Facebook of the group’s attempts to
capture aliens they contended were illegally crossing the border. 4 R. 199–200.
While filming, Mr. Benvie was usually accompanied by members of the UCP who
were often dressed in camouflage fatigues and carried firearms. 4 R. 227. In
June 2019, Mr. Benvie was indicted based on two encounters with aliens that were
captured on video. 1 R. 12–13.
The first incident (April 15, 2019) began with Mr. Benvie approaching a group
of aliens and yelling “Alto” (“stop” in Spanish) and “U.S. Border Patrol.” Gov.
Ex. 1, at 0:00–0:05. He then proceeded to question the aliens through an interpreter.
Id. at 0:05–5:45. Thereafter, a Border Patrol agent arrived on scene and took the
aliens into custody. Id. at 6:18–7:10.
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The second incident (April 17, 2019) began with Mr. Benvie driving along the
border wall. Gov. Ex. 8, at 0:00–1:38. At the end of his drive, he found a group of
aliens entering the country and exclaimed: “Alto, Alto,” and “Siente,” (an attempt to
say “sit” in Spanish). Id. at 8:47–8:58. The aliens initially ignored him, and he then
said, “Border Patrol.” Id. at 9:01–9:02. Another member of the UCP drove up and
Mr. Benvie told the aliens to walk toward the truck. Id. at 9:45–9:51. The driver of
the truck told the aliens to sit and called Border Patrol. Id. at 10:07–10:39. A Border
Patrol agent arrived shortly and took the aliens into custody. Id. at 11:17–13:45.
At trial, the government presented these videos as well as testimony from an
FBI agent and two Border Patrol agents. 4 R. 28–157. The government also
presented Rule 404(b) witnesses. 4 R. 158–92. Mr. Benvie testified that he said
“Border Patrol” in the videos because he was trying to tell the aliens that he could
connect them with Border Patrol — or as he described it, like a ticket scalper outside
a stadium. 4 R. 209–12, 231–32.
During deliberations, the jury sent a note asking: “Is it the same, under the
definition of the law, that ‘U.S. Border Patrol’ and ‘Border Patrol’ carry the same
weight?” 1 R. 86. Over objection from defense counsel, the district court responded
with the following instruction: “‘U.S. Border Patrol’ and ‘Border Patrol’ are
synonymous, both referring to the same federal agency.” 1 R. 86; 4 R. 319. Defense
counsel questioned whether the terms carried the same weight and thought there was
a difference. 4 R. 318–19. Defense counsel stated:
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I don’t think it’s the same—I don’t think—I don’t believe the
“Border Patrol,” by itself, is—carries the same weight as “U.S. Border
Patrol” because you’re identifying as a United States agent and “Border
Patrol” doesn’t have that connotation, and so I’d object on those
grounds.
4 R. 320. The district court overruled the objection, and the jury returned a guilty
verdict on both counts. 4 R. 320–21.
At sentencing, when discussing the mandatory conditions of supervised
release, the district court suspended the mandatory drug testing condition given Mr.
Benvie’s low risk of substance abuse. 5 R. 43–44. However, the written judgment
reflected that testing was required because the district court did not check the box
that would have suspended the drug testing condition. 1 R. 120. The district court
did not impose a fine but adopted five special conditions of supervised release and
stated that it thought the combined punishment was “sufficiently punitive.” 5 R. 44–
45.
Discussion
A. The Jury Instruction
Mr. Benvie first contends that the district court erred when it instructed the
jury that “U.S. Border Patrol” and “Border Patrol” are synonymous. Properly
preserved claims of instructional error are reviewed for an abuse of discretion.
United States v. Olea-Monarez, 908 F.3d 636, 639 (10th Cir. 2018). Instructions as a
whole are reviewed de novo to determine whether they properly state the law and
issues in a particular case. United States v. Cushing, 10 F.4th 1055, 1073 (10th Cir.
2021). A party may preserve an error by making an “objection to the court’s action
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and [stating] the grounds for that objection.” Fed. R. Crim. P. 51(b). However, a
party is not required “to use any particular language or even to wait until the court
issues its ruling.” Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
The focus is on whether the party “alert[s] the court to the issue.” Harris v. Sharp,
941 F.3d 962, 979 (10th Cir. 2019).
Mr. Benvie preserved his objection to the district court’s response to the jury’s
inquiry. Defense counsel argued that the court should tell the jury to “just follow the
instructions as given.” 4 R. 317. According to defense counsel, “there [was] a
difference” and “U.S. Border Patrol” and “Border Patrol” did not carry “the same
weight.” 4 R. 318–19. The objection was adequate to make the district court aware
that Mr. Benvie opposed the instruction.
When a jury requests clarification of an issue, the “trial judge should clear [it]
away with concrete accuracy.” Olea-Monarez, 908 F.3d at 639 (quoting Bollenbach
v. United States, 326 U.S. 607, 612 (1946)). Here, the jury sought clarification as to
whether “under the definition of the law” the terms “U.S. Border Patrol” and “Border
Patrol” were the same. 1 R. 86. Mr. Benvie contends that the district court
impermissibly weighed in on the factual significance of each term. Aplt. Br. at 17.
Yet there was no factual dispute at trial about the meaning of the two terms. The
terms were used interchangeably to refer to the federal agency. See, e.g., 4 R. 206,
210–14, 218, 227, 232, 235–39, 246, 273–77, 282–83, 310–14, 330, 349. Mr. Benvie
referred to either the federal agency or its agents as “Border Patrol” over 75 times.
See 4 R. 197–272. He admitted that in the second video, when he said, “Border
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Patrol,” that he was referring to the federal agency. 4 R. 231. In fact, his defense,
that his use of the term “Border Patrol” was a referral to the federal agency, would be
undermined if there was a factual dispute about the definition of “Border Patrol.”
The district court’s response was appropriate. We note that the Supreme Court
uses both terms interchangeably. See Hernandez v. Mesa, 137 S. Ct. 2003, 2004–05
(2017) (per curiam). Nor does the impersonation statute require that a defendant use
the term “U.S.” or “federal” to be convicted. See 18 U.S.C. § 912. The cases Mr.
Benvie relies upon are not to the contrary. In both United States v. Nickl, 427 F.3d
1286 (10th Cir. 2005), and United States v. Chanthadara, 230 F.3d 1237 (10th Cir.
2000), a district court weighed in on factual issues and made statements favoring the
prosecution. For example, in Nickl, the district court had stated: “I would never have
accepted her guilty plea unless she would have convinced me that’s what she
intended, and she did.” 427 F.3d at 1292. Here, the district court recognized that the
jury was concerned with “definitional work,” a legal issue, and simply determined
that there was not a meaningful distinction between the two terms. 4 R. 319.
Even assuming the district court erred, the error was harmless. “[T]he
conclusion that a jury instruction was erroneous does not necessarily end the
inquiry,” because instructional errors are subject to harmless error review. United
States v. Holly, 488 F.3d 1298, 1304 (10th Cir. 2007). Harmless errors are not
reversible. See Neder v. United States, 527 U.S. 1, 7 (1999). “[T]he burden of
proving harmless error is on the government,” however, this court has discretion to
initiate harmless error review. Holly, 488 F.3d at 1307. “[W]here a defendant did
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not, and apparently could not, bring forth facts contesting the omitted element,” the
error is harmless. Neder, 527 U.S. at 19.
B. The Special Conditions of Supervised Release
Mr. Benvie also argues that various special conditions of supervised release
were imposed without adequate explanation at sentencing. Mr. Benvie failed to
object. 5 R. 44–45. Therefore, this court reviews their imposition for plain error.
United States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019). An error is plain “if
there is (1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Koch, 978 F.3d 719, 724 (10th Cir. 2020) (quoting
id.).
To impose a special condition of supervised release, a district court “must
analyze and generally explain how, with regard to the specific defendant being
sentenced, the special condition furthers the three statutory requirements set out in
18 U.S.C. §3583(d).” Id. at 725. While we need not be “hyper technical in requiring
the court to explain why it imposed a special condition of release,” the district court’s
“explanation must be sufficient for this court to conduct a proper review.” United
States v. Martinez-Torres, 795 F.3d 1233, 1238 (10th Cir. 2015). Specifically,
retributive considerations may not be reasons for a special condition of supervised
release. See Tapia v. United States, 564 U.S. 319, 326 (2011); 18 U.S.C. § 3583(c).
After release from prison, Mr. Benvie is required to: (1) “complete 50 hours of
community service”; (2) “submit to a search of [his] person, property, automobile,
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[and] computers”; (3) “not to incur new credit charges, negotiate or consummate any
financial contracts, or open additional lines of credit without prior approval of the
Probation Office”; (4) “provide the Probation Office access to requested financial
information and authorize the release of financial information”; and (5) “reside at a
residential reentry center for a term of up to three months.” 5 R. 44–45. On appeal,
the government concedes that a remand is appropriate for the first four special
conditions; Mr. Benvie withdrew his challenge to the fifth condition. Aplee. Br.
at 19; Aplt. Reply Br. at 15. Therefore, we consider whether the first four conditions
require remand. We agree that they do.
The district court simply stated as justification for all five special conditions
“that the total combined sanction, without a fine, is sufficiently punitive.” 5 R. 45.
This statement does not sufficiently explain, even in generalized terms, how the
special conditions further the requirements of § 3583(d), and may justify the
conditions using an impermissible rationale. See Tapia, 564 U.S. at 326.
Accordingly, given our developing caselaw in this area, it constitutes clear error. It
is reasonably probable that if the district court had explained its reasoning for the
conditions and ensured that its reasoning was supported by the record, then the court
may have refrained from imposing some, if not all, of the conditions. See United
States v. Burns, 775 F.3d 1221, 1225 (10th Cir. 2014). Thus, this omission affects
substantial rights. For the same reasons the first three elements of plain error are
met, so is the fourth. See id. Therefore, we remand for reconsideration of the first
four supervised-release conditions. See id.
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C. The Mandatory Drug Testing Condition
Finally, Mr. Benvie challenges the mandatory drug testing condition appearing
in the judgment and commitment order. Where “oral and written orders conflict, . . .
we look to the oral pronouncement.” United States v. Martinez, 812 F.3d 1200, 1203
(10th Cir. 2015). The oral pronouncement controls because a “defendant has the
right to be present at sentencing.” United States v. Barwig, 568 F.3d 852, 857–58
(10th Cir. 2009). This is because “[t]he imposition of punishment in a criminal case
affects the most fundamental human rights: life and liberty.” United States v.
Villano, 816 F.2d 1448, 1452 (10th Cir. 1987).
The district court stated that it would “suspend the mandatory drug testing
condition.” 5 R. 44. However, the written judgment and commitment order requires
that Mr. Benvie “submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the
court.” 1 R. 120. As noted, the district court did not check the box which would
have suspended that condition. Given the conflict, we will remand so the district
court can conform the judgment and commitment order to the oral sentence on this
point.
The conviction is AFFIRMED and the case is REMANDED for resentencing
in accordance with this opinion.
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