Court Opinions: 10th Circuit Court of Appeals Opinion for April 6

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

United States v. Gunn

In 2004, while serving a life sentence in an Oklahoma prison, Christopher Gunn joined the Irish Mob Gang. Around 2012, the leadership of the gang changed to a high and low council hierarchy and reoriented the IMG’s focus to making money and selling drugs, including methamphetamine, heroin and marijuana. The high council made final decisions and delegated day-to-day decision-making to the low council. Gunn and several others were on the low council. 

As directed by the councils, imprisoned IMG members coordinated large transactions outside of prison. Using contraband cell phones, members acted as intermediaries between drug suppliers and buyers on the outside. Nearly all the high-ranking IMG members participated in this scheme. 

Several people sold drugs on Gunn’s behalf. Gunn would organize each transaction to have the drugs sold for cash or credit recorded on a ledger. 

When the IMG ran into problems or when a member wanted to test a new drug-dealing setup, other members would assist. Gunn offered to supply other members with drugs, introduced IMG members to suppliers and dealt drugs to other incarcerated members. 

In 2016, several high council members were arrested for drug trafficking and dispatched from the prison, creating a leadership void. Gunn was appointed to the high council.

Gunn participated in punishing misbehavior, including ordering an IMG member’s pinkie fingers cut off after he came up short on money, demoting another member for selling to an undercover agent and ordering another member stabbed after suspecting he cooperated with the government. 

In 2018, as part of its ongoing investigation into the IMG, the FBI wiretapped Gunn’s cell phone. By recording Gunn’s calls, agents witnessed two of Gunn’s transactions pay out over a week. In one of the deals, one of the sellers was arrested. 

In October 2018, a federal grand jury charged 39 IMG members and affiliates with drug conspiracy and other drug and money-laundering offenses, the first of three indictments. Gunn wasn’t among the indicted defendants. Given the conspiracy’s reach and extensive discovery involved, the government moved to declare the case complex and continue the trial, which was granted by the district court using the Speedy Trial Act. The court set the trial for Feb. 11, 2020. 

On Dec. 12, 2018, the grand jury returned a superseding indictment, this time naming 55 defendants, including Gunn and several of those he worked with. Gunn was charged with one count of drug conspiracy, one count of possessing methamphetamine with intent to distribute and one count of possessing heroin with intent to distribute. He was arraigned on Dec. 19, at which time the 70-day speedy trial clock began. According to the prior scheduling order, each newly indicted defendant had two weeks after being arraigned to object to the proposed schedule.

A year passed without incident, but on Jan. 6, 2020, with only six defendants remaining for trial, two of Gunn’s codefendants moved to continue the trial to August 2020. Gunn didn’t object and the court made a new “ends-of-justice” finding and continued the trial to Aug. 11, 2020.  

Once COVID-19 made an August 2020 trial date uncertain, the government and the four remaining defendants submitted a joint status report which detailed several things, including that there would be logistical challenges. The government proposed three separate trials but two of Gunn’s codefendants objected and the government didn’t think an August trial was possible.

A week after filing the status report, the government obtained a superseding indictment against seven defendants, including the four from the status report. The superseding indictment charged Gunn with one count of drug conspiracy and one count each of possessing methamphetamine and heroin with intent to distribute.  

In July 2020, the government moved to continue the trial from August to November 2020, citing COVID-19. The government advised the court that Gunn objected to this continuance. Agreeing with the government and finding another “ends-of-justice” finding, the court granted the motion and reset the trial for Nov. 3, 2020. 

After several delays due to COVID-19, the trial was ultimately continued to Jan. 12, 2021. A week before the trial, the chief district judge suspended jury trials through February. The district court, attempting to give a more realistic date, scheduled the trial for May 11, 2021. 

In March 2020, Gunn sought three ex parte subpoenas, two for doctors who worked with Gunn and one for the prison’s chief of security. The court granted his applications. Once the trial was continued to November 2020, Gunn reapplied for the three subpoenas, and the court granted only one of the requests for one of the doctors, John Marlar, finding that the testimony from the other two wasn’t relevant to his defense. After the next continuance, in March 2021, Gunn reapplied and the court adopted its prior order. 

During the trial, Marlar advised the court he elected not to honor his subpoena because he was now the only doctor at a rural hospital’s emergency room. The court asked Gunn’s attorney for an offer of proof to confirm his testimony would be admissible, which his attorney gave. The government objected to the doctor’s testimony. The district court found that the testimony was inadmissible and chose not to enforce the subpoena. 

The jury convicted Gunn of one count of drug conspiracy and one count each of possessing methamphetamine and heroin with intent to distribute. The court found Gunn responsible for more drug weight than the jury and also recommended a four-level offense increase. 

From a total offense level 43 and a criminal history category V, Gunn faced an advisory guideline of 1,200 months in prison. The court sentenced him to 465 months imprisonment. Gunn appealed. 

On appeal, Gunn raised five issues: if the 29-month delay violated his rights to a speedy trial; if the district court abused its discretion in its witness subpoena decision by not giving a multiple-conspiracy jury instruction and by finding Gunn responsible for more drug weight and applying sentencing enhancement; and if the evidence was sufficient to convict Gunn. 

A 10th Circuit Court of Appeals panel out of Oklahoma City, Oklahoma, affirmed the district court’s decision on Gunn’s convictions and sentence, finding that there was no reversible error in this case.

Previous articleBusiness Bills, Colorado Access To Justice Commission Codification Introduced
Next articleMinoru Yasui’s Values Live on in Colorado Inn of Court


Please enter your comment!
Please enter your name here