Defendant bears burden of showing improper coercion when seeking exclusion of coerced third party testimony

DUE PROCESS/SENTENCING United States v. Dowell, No. 03-1341, ___ F.3d ___ (10th Cir. Dec. 6, 2005)(Colorado). Appeal of conviction and sentence for destroying government property by fire and forcibly interfering with IRS employees and administration in violation of 18 U.S.C. § 2, 844(f)(1) and (2), and 26 U.S.C. § 7212(a). HELD: (1) While government bears burden of demonstrating voluntariness of defendant’s admissions or confessions, when defendant moves to exclude coerced testimony of third party on due process grounds, burden of proving improper coercion is on defendant. (2) Jury’s verdict convicting defendant of interfering with IRS encompassed two factual findings necessary for sentencing guideline terrorism enhancement to apply. Therefore, district court did not violate Sixth Amendment by applying terrorism enhancement to sentence. Read the opinion here.