United States v. Pullen ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3226
(D.C. No. 98-CR-40080)
BOBBY G. PULLEN, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore,
appellant’s request for oral argument is denied, and the case is ordered submitted
without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Bobby G. Pullen brings this pro se appeal of his
federal conviction, following a jury trial, of one count of possession with intent to
distribute approximately 320 pounds of marijuana, a controlled substance, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, with reference to 21 U.S.C.
841(b)(1)(B). Mr. Pullen was sentenced to 262 months in prison followed by five
years supervised release. Our jurisdiction arises under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, and we affirm.
I. Background
On July 25, 1998, a Kansas Highway Patrol Officer, Lt. Kindlesparger,
engaged in a high speed chase with Mr. Pullen after clocking him for speeding.
Mr. Pullen attempted to evade Lt. Kindlesparger by driving through a highway
construction zone on the shoulder. Once Mr. Pullen was stopped, and while
Lt. Kindlesparger was arresting him, his unattended truck rolled down an
embankment into a ditch. 1
As soon as back-up officers arrived at the scene,
Lt. Kindlesparger went into the ditch to ascertain if there were any passengers in
1
Mr. Pullen was arrested for various state traffic violations including
reckless driving, fleeing to elude an officer, and speeding.
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the truck requiring assistance. 2
In the cab-enclosed bed of the truck,
Lt. Kindlesparger discovered a large quantity of marijuana.
At this point, one of the other officers at the scene, Trooper Jason DeVore,
had custody of Mr. Pullen, who was behaving in a verbally abusive and
belligerent manner. Trooper DeVore testified that he read Mr. Pullen his Miranda
warnings, placed him in the patrol car, and attempted to calm him down. At this
point, Mr. Pullen confessed to Trooper DeVore that he had picked up the
marijuana in Arizona and was delivering it to certain persons in Illinois. Trooper
DeVore then approached Mr. Pullen about doing a controlled delivery of the
marijuana. Once Mr. Pullen indicated his willingness to cooperate with a
controlled delivery, Trooper DeVore transported Mr. Pullen and the truck to the
Lincoln County Sheriff’s office where he was subsequently interviewed by
Sergeant Keesling, a Kansas Highway Patrol Officer assigned to the Kansas DEA
drug task force.
Prior to this interview, Sergeant Keesling learned from Trooper DeVore
that Mr. Pullen was wanted on an outstanding felony warrant from the State of
Missouri. The officers testified that, although they contacted the agency issuing
2
It appears that the first back-up officer at the scene was Kansas Highway
Patrol Officer Lt. Ladner, who was escorting Kansas Governor William Graves to
a state function. Both Governor Graves and Lt. Ladner testified at trial as to the
reckless and dangerous manner in which Mr. Pullen had been driving.
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the warrant in Missouri and received permission to continue with the controlled
delivery before executing the warrant, they did not inform Mr. Pullen that they
knew about the warrant.
Trooper DeVore and Sergeant Keesling both testified that Mr. Pullen
refused to have the interview tape recorded, and although Mr. Pullen orally
waived his Miranda rights, he refused to sign a written waiver form because he
was frightened that if he signed anything, the others involved in the drug
operation would find him and harm him. During the interview by Sergeant
Keesling, Mr. Pullen again indicated his willingness to cooperate in a controlled
delivery of the drugs to their intended destination in Illinois.
Once they reached Illinois, Mr. Pullen refused to place the necessary
contact telephone calls unless the law enforcement officers agreed to allow him to
make the delivery alone. Because the officers considered him under arrest on the
outstanding warrant from Missouri, and because allowing him to proceed
unescorted was not standard procedure, they refused to permit him to make the
delivery without an officer with him. The controlled delivery was subsequently
aborted, and Mr. Pullen was placed in state custody in Illinois. Sergeant Keesling
testified that, after the operation was abandoned, Mr. Pullen told him he had no
intention of going through with the delivery, but only wanted access to the truck
by himself so he could escape.
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It is unclear from the record exactly what transpired between the time
Mr. Pullen was placed in state custody in Illinois on July 26, 1998, and the time
he was indicted on the federal charges in Kansas on September 9, 1998. Because,
however, Sergeant Keesling conducted another interview with Mr. Pullen in
Missouri on September 10, 1998, in an attempt to gain additional information on
the Illinois delivery, we can assume that Mr. Pullen was extradited from Illinois
to Missouri on the outstanding warrant. Mr. Pullen was arrested on the federal
charges on October 6, 1998, convicted on April 15, 1999, and sentenced on July
14, 1999.
Mr. Pullen brings his appeal pro se asserting that: (1) his transport from
the State of Kansas to the State of Illinois, without a court proceeding, violated
his pre-transfer rights under the Uniform Criminal Extradition Act (Extradition
Act), 18 U.S.C. § 3182, codified in Kansas at Kan. Stat. Ann. §§ 22-2701 through
22-2730; (2) the trial court erred in denying his motion to dismiss his indictment;
(3) he did not knowingly and intelligently waive his rights pursuant to Miranda v.
Arizona , 384 U.S. 436 (1966); (4) the trial court erred in its jury instruction
advising the jury that they could consider the arguments of the attorneys; (5) he
was denied effective assistance of trial counsel; and (6) he was denied his
constitutional right to due process and a fair trial by the government’s actions in
allegedly “destroying, disposing of, concealing, suppressing and fabrication of
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evidence, as well as using false statements, perjured testimony and tainted and
fabricated evidence, and failure to disclose exculpatory evidence.” Appellant’s
Initial Br. at ix. We will address each of Mr. Pullen’s issues in turn.
II. Discussion
A. Violation of extradition rights–
Mr. Pullen asserts that his transport from Kansas to Illinois to assist in the
controlled delivery was in violation of his rights under the Extradition Act. 3
The
Extradition Act “establishes procedures for the interstate transfer of persons
against whom criminal charges are outstanding.” Cuyler v. Adams , 449 U.S. 433,
435 n.1 (1981). These rights are guaranteed in Article IV, § 2, cl.2, of the United
States Constitution 4
and 18 U.S.C. § 3182. 5
“A prisoner transferred under the
3
The Uniform Criminal Extradition Act is codified in Kansas as Kan. Stat.
Ann. §§ 22-2701 to 22-2730, and codified in Illinois as 725 Ill. Comp. Stat. 225/1
to 225/32.
4
Article IV, § 2, cl.2, provides:
A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on
Demand of the executive Authority of the State from which he fled,
be delivered up, to be removed to the State having Jurisdiction of the
Crime.
5
18 U.S.C. § 3182 provides:
(continued...)
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Extradition Act is explicitly granted a right to a pretransfer ‘hearing’ at which he
is informed of the receiving State’s request for custody, his right to counsel, and
his right to apply for a writ of habeas corpus challenging the custody request.”
Cuyler , 449 U.S. at 443.
Insofar as Mr. Pullen is arguing that he was not afforded these rights prior
to being transported from Kansas to Illinois, his argument fails for several
reasons. First, although it is not entirely clear from the record, it appears that
Mr. Pullen was extradited from Illinois to Missouri after the controlled delivery
plan was abandoned. It was at that time that he should have been afforded his
pretransfer rights or challenged the extradition procedure if he was denied these
rights. See Gee v. State of Kansas , 912 F.2d 414, 416 (10th Cir. 1990) (“Before
5
(...continued)
Whenever the executive authority of any State or Territory demands
any person as a fugitive from justice, of the executive authority of
any State, District or Territory to which such person has fled, and
produces a copy of an indictment found or an affidavit made before a
magistrate of any State or Territory, charging the person demanded
with having committed treason, felony, or other crime, certified as
authentic by the governor or chief magistrate of the State or Territory
from whence the person so charged has fled, the executive authority
of the State, District, or Territory to which such person has fled shall
cause him to be arrested and secured, and notify the executive
authority making such demand, or the agent of such authority
appointed to receive the fugitive, and shall cause the fugitive to be
delivered to such agent when he shall appear. If no such agent
appears within thirty days from the time of the arrest, the prisoner
may be discharged.
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a fugitive in custody is extradited to the demanding state, he may challenge the
authority of the asylum state by seeking a federal writ of habeas corpus.”)
(citing Michigan v. Doran , 439 U.S. 282, 289 (1978)). Once Mr. Pullen was
extradited to Missouri, however, the writ of habeas corpus was no longer
available to challenge the extradition procedures of the asylum state. See Gee ,
912 F.2d at 416.
Second, we have held that “the constitutional dimension of extradition
exists only when demand is made by one jurisdiction for the surrender of a person
in another jurisdiction.” Ortega v. City of Kansas City , 875 F.2d 1497, 1499
(10th Cir. 1989). There was no evidence that either Missouri or Illinois made
a demand on Kansas for Mr. Pullen’s extradition. To the contrary, Sergeant
Keesling testified that the issuing agent in Missouri was notified of Mr. Pullen’s
arrest and subsequently gave the DEA agent permission to proceed with the
controlled delivery in Illinois.
We have no record indicating what procedures took place in Illinois before
Mr. Pullen was returned to Missouri. What we do know is that, under the
circumstances here, Mr. Pullen’s argument that Kansas had a duty to provide him
with Extradition Act pretransfer rights prior to transporting him to Illinois is
without merit. See Ortega , 875 F.2d at 1500 (“[T]he Uniform Criminal
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Extradition Act does not establish an exclusive procedure by which law
enforcement officials may arrest non-residents.”).
B. Motion to dismiss indictment–
Next, Mr. Pullen claims that the district court erred in denying his pretrial
motion to dismiss his indictment. Mr. Pullen contends that he was in federal
custody from the time of his arrest in Kansas on July 25, 1998, but because he
was not indicted on federal charges until September 9, 1998, forty-six days later,
he was held in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 - 3174.
“The question of whether, or when, the actions of federal authorities trigger
the time requirement of section 3161(b) is a question of law” which we review
de novo. United States v. Bagster , 915 F.2d 607, 609 (10th Cir. 1990). The
applicable provision of the Speedy Trial Act provides that “[a]ny information or
indictment charging an individual with the commission of an offense shall be
filed within thirty days from the date on which such individual was arrested or
served with a summons in connection with such charges.” § 3161(b).
We have held that “a person is not ‘arrested in connection with’ a charge,
within the meaning of section 3161(b) of the Speedy Trial Act, unless there is
some coincidence of (1) a pending federal complaint and (2) federal custody
based on that complaint.” Bagster , 915 F.2d at 611.
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Mr. Pullen was arrested in Kansas by Kansas state troopers on state charges
of various traffic violations. Once he indicated a willingness to cooperate with
a controlled delivery of the drugs, these troopers were assisted by Sergeant
Keesling, a member of the Kansas Highway Patrol assigned to the DEA task force
in Kansas. Sergeant Keesling testified that when the controlled delivery was
aborted, Mr. Pullen was placed in the custody of the State of Illinois for
extradition proceedings in connection with the outstanding warrant from the
State of Missouri. See R. Vol. 3 at 72. He further testified that he never told
Mr. Pullen he was under arrest on federal charges and no decision regarding
federal charges was made until Sergeant Keesling presented the case to the
Kansas grand jury on September 9, 1998.
Contrary to Mr. Pullen’s assertion, there was no federal complaint filed and
no indication that Mr. Pullen was in federal custody until federal charges were
filed on September 9, 1998. See Bagster , 915 F.2d at 611 n.2 (stating that filing
of complaint and service of summons are predicates to running of time
requirement of § 3161(b)). Following the filing of a formal complaint, Mr. Pullen
was taken before a federal magistrate on October 6, 1998, well within the time
requirements of the Speedy Trial Act. Therefore, we discern no error in the
district court’s denial of Mr. Pullen’s motion to dismiss on Speedy Trial Act
violations.
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C. Knowing and intelligent waiver of Miranda rights–
Mr. Pullen asserts that his rights under Miranda , 384 U.S. at 469-73
(imposing upon law enforcement personnel the obligation to advise a suspect of
the possible use of his statements against him in a criminal proceeding and of his
right to have counsel present during interrogation), were not knowingly and
intelligently waived. His various arguments on this issue, however, appear to be
somewhat protean.
In his motion to suppress, Mr. Pullen stated that he had been given his
Miranda rights at the scene of the Kansas arrest, see Supp. R. Vol. 1, doc. 37 at 2.
He went on to argue that, because the police offered “assistance” in exchange for
his cooperation, his statements were coerced; the delay of more than six hours in
his arraignment mitigated against voluntariness; and his statements were protected
as made in the course of plea negotiations. On appeal, Mr. Pullen appears to
abandon most of these arguments and asserts that he was never given any
Miranda warnings at all.
This assertion is belied by the testimony of the law enforcement officers at
trial. Although Lt. Kindlesparger testified that he did not issue Miranda warnings
to Mr. Pullen, Trooper DeVore testified at the motions hearing and at trial that
when he arrived on the scene, he read Mr. Pullen the Miranda warnings from the
card he carried. See R. Vol. 3 at 28, Vol. 4 at 173-74. At this point, Mr. Pullen
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confessed that he was transporting the marijuana from Arizona to Illinois, and
provided Trooper DeVore with details of the arrangement. Trooper DeVore then
talked to Mr. Pullen about cooperating with a controlled delivery.
Later, prior to being interviewed by Sergeant Keesling, Mr. Pullen was
presented with a “48-hour waiver and Miranda waiver.” As explained by
Sergeant Keesling, this form documents a defendant’s understanding and waiver
of his Miranda rights and also indicates that the defendant is cooperating with the
DEA, is doing so with no promises concerning his cooperation other than
informing the prosecution of the cooperation, and is waiving the right to be taken
immediately before a judge. Id. Vol. 3 at 70-71. Although Sergeant Keesling
testified that Mr. Pullen refused to sign the form out of fear of harm from his drug
contacts in Illinois, he testified that Mr. Pullen orally agreed to the terms of the
waiver form. Id. at 71. The form, which was introduced as evidence at
Mr. Pullen’s trial, was marked “Agreed but refused to sign” and witnessed by
Sergeant Keesling and Trooper DeVore. Id. , Vol. 4 at 188-89.
“The ultimate question of whether a statement was voluntary is a question
of law reviewed de novo.” United States v. Hernandez , 93 F.3d 1493, 1501
(10th Cir. 1996). In Moran v. Burbine , 475 U.S. 412 (1986), the Supreme Court
defined two “dimensions” of the Miranda inquiry as follows:
First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather
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than intimidation, coercion, or deception. Second, the waiver must
have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.
Only if the “totality of the circumstances surrounding the
interrogation” reveals both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the
Miranda rights have been waived.
Id. at 421 ( quoting Fare v. Michael C ., 442 U.S. 707, 725 (1979)).
Mr. Pullen asserts that he was tricked into waiving his rights by officers
who led him to believe that he was only under arrest for misdemeanors and who
never informed him that he was under arrest on the felony drug violation. This
assertion is refuted by the testimony of the police officers involved. First,
Trooper DeVore testified that after he had initially read Mr. Pullen his Miranda
rights, he volunteered information about where and to whom he was to deliver
the marijuana in Illinois. Moreover, after Mr. Pullen was again advised of his
Miranda rights by Sergeant Keesling, the entire substance of the interview
concerned the drugs and the controlled delivery. See United States v.
Toro-Pelaez , 107 F.3d 819, 825 (10th Cir. 1997) (“An express statement of
waiver by the defendant is not required; instead, waiver can be inferred from the
defendant’s actions and words.”) ( citing North Carolina v. Butler , 441 U.S. 369,
373 (1979))
After a hearing, the district court denied Mr. Pullen’s motion to suppress.
All of the testimony at the motions hearing and at trial supports the district
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court’s conclusion that Mr. Pullen was fully informed of his Miranda rights and
knowingly and intelligently waived same. Mr. Pullen’s assertions to the contrary
are unsupported and without merit.
D. Supplemental jury instruction–
Next, Mr. Pullen claims that the trial court’s response to a question from
the jury during deliberations was erroneous and prejudiced his right to a fair trial.
During deliberations, the jury sent a question to the court asking: “Are we
not to consider the fact that the Defendant possessed and had the knowledge that
what he possessed was marijuana since both lawyers state that he possessed and
knew of the marijuana in their closing statements?” R. Vol. 5 at 337. At a bench
conference with both counsel and Mr. Pullen, Mr. Pullen’s counsel suggested that
the jury should be reminded to read the instructions already given, while the
prosecutor said he would leave the answer to the discretion of the court.
Thereafter the court instructed the jury that they were “at liberty to consider the
evidence, the arguments and anything that will help [them] in [their]
deliberations, including admissions made by parties through their attorneys.”
Id. at 340. There was no contemporaneous objection to this response.
Because Mr. Pullen did not timely object to the supplemental instruction,
we can only review for an (1) “error,” (2) that is “plain,” and (3) that “affect[s]
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substantial rights.” Fed R. Crim P. 52(b); see also United States v. Sides ,
944 F.2d 1554, 1562 (10th Cir. 1991) (“Failure to object to the jury charge in
a timely and specific manner precludes appellate review, and the judgment will
be reversed only if the trial court committed plain error.”) (quotation omitted).
“‘Plain errors’ are those which are obvious and substantial, and which when
viewed in light of the entire record seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Nall , 949 F.2d 301,
309 (10th Cir. 1991) (citations omitted). “Only rarely will we reverse based on
allegedly erroneous instructions to which there was no objection at trial; the party
claiming plain error has the heavy burden of demonstrating fundamental
injustice.” Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 553 (10th Cir.),
cert. denied , 120 S. Ct. 48 (1999) (quotation omitted).
In its initial charge to the jury the court issued an instruction which
advised, inter alia, that “[s]tatements and arguments of counsel are not evidence
in the case. When, however, the attorneys on both sides stipulate or agree as to
the existence of a fact, the jury must, unless otherwise instructed, accept
the stipulation and regard that fact as proved.” R. Vol. 1, doc. 75, jury
instruction #28.
Mr. Pullen attempts to persuade us that the trial court’s response to the
jury’s question led to jury confusion or misunderstanding. Our reading of the
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trial court’s response, however, indicates that it was basically a reiteration of the
court’s previous instruction. The court’s initial charge to the jury was correct and
unchallenged, and we assume the jury was fully capable of understanding and
following the court’s instructions. See United States v. Carter , 973 F.2d 1509,
1513 (10th Cir. 1992) (“We presume jurors will remain true to their oath and
conscientiously follow the trial court’s instructions.”). Insofar as the response
may have been inartfully worded or inconsistent, considering the overwhelming
evidence presented establishing Mr. Pullen’s possession of the marijuana, we
determine that the response did not substantially influence or taint the jury’s
verdict. See United States v. Olano , 507 U.S. 725, 734 (1993) (holding that in
considering a claim under the plain error standard, the burden is on the defendant
to establish that the forfeited error was prejudicial).
E. Ineffective assistance of trial counsel–
“Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.” United States v.
Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) ( en banc ). This, however, is one
of those rare cases where the claim was well developed by the district court
and the record on appeal is so well documented, that this court will review
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Mr. Pullen’s claim on direct appeal. 6
See United States v. Carter 130 F.3d 1432,
1442 (10th Cir. 1997); United States v. Gallegos , 108 F.3d 1272, 1279-80
(10th Cir. 1997).
A claim of ineffective assistance of counsel is governed by Strickland v.
Washington , 466 U.S. 668 (1984). To establish ineffectiveness, Mr. Pullen must
prove: (1) that counsel’s performance “fell below an objective standard of
reasonableness,” and (2) that the deficient performance prejudiced the defense,
which requires a showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 687-88, 694; see also Williams v. Taylor , 120 S. Ct. 1495,
1511-12 (2000).
In his post-trial motion, Mr. Pullen provided the trial court with a list of
witnesses that he claimed counsel refused to subpoena. We agree with the trial
court’s conclusion, however, that Mr. Pullen did not indicate what the substance
of the testimony of these witnesses would be or how their testimony would have
refuted the prosecution’s evidence. We further agree with the trial court’s
determination that defense counsel’s failure to present an “entrapment” theory
6
Mr. Pullen raised the issue of ineffective assistance of defense counsel in
his post-trial pro se motion for a judgment of acquittal or, in the alternative, for
a new trial. In dismissing the motion, the district court thoroughly discussed
Mr. Pullen’s claims and found that he had not received ineffective assistance.
See R. Vol. 1, doc. 87 at 8-14.
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was not error in that Mr. Pullen offered no evidence to support such a theory.
Noting that Mr. Pullen’s trial counsel was his third attorney appointed only one
month before trial, the court analyzed Mr. Pullen’s complaint that counsel did not
spend enough time with him and found that, under the circumstances, counsel’s
meetings and written correspondence with Mr. Pullen were adequate. Mr. Pullen
does not persuasively challenge these findings on appeal.
Mr. Pullen claimed to the trial court and on appeal that his counsel failed to
object to tainted, false, misleading, and altered testimony by the various law
enforcement witnesses. In his motion to the trial court, as well as on appeal,
these claims are presented as general, conclusory allegations with no specific
description of the testimony or evidence to which his attorney should have
objected.
Mr. Pullen asserts that his counsel “lied” to him in an attempt to convince
him to enter into a plea agreement. Once again, he did not inform the court as to
the nature of these lies or how they served to prejudice his trial.
During closing statements, Mr. Pullen’s counsel commented that there was
very little doubt that Mr. Pullen had possession and knowledge of the marijuana.
He then concentrated his argument on the premise that the prosecution failed to
prove that Mr. Pullen intended to distribute the drug. To the extent Mr. Pullen
argues that his defense counsel was ineffective because he admitted that
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Mr. Pullen was guilty of possession in his closing argument, we recognize that
this conduct can “represent[] a pardigmatic example of the sort of breakdown in
the adversarial process that triggers a presumption of prejudice.” United States v.
Williamson , 53 F.3d 1500, 1510 (10th Cir. 1995). In viewing the evidence against
Mr. Pullen “from counsel’s perspective at the time,” Strickland , 466 U.S. at 689,
however, we determine that counsel’s strategic decision to “winnow[] out weaker
arguments” in favor of “focusing on one central issue,” is an acceptable exercise
in professional judgment. Jones v. Barnes , 463 U.S. 745, 751-52 (1983); see also
Williamson , 53 F.3d at 1512 (holding that counsel’s strategy of conceding guilt to
lesser charge, while arguing for acquittal on major charge, did not constitute
ineffective assistance). Moreover, our own review of the transcript demonstrates
that counsel’s closing argument is replete with attempts to fortify and advocate
for Mr. Pullen’s interests. Therefore, we agree with the trial court that the
strength of the government’s case against Mr. Pullen is more than ample to
overcome any presumption of prejudice.
In his appellate brief, Mr. Pullen lists twenty-four different acts by defense
counsel which he asserts denied him effective assistance. Underlying a majority
of Mr. Pullen’s complaints is the theme that defense counsel did not do all of the
things that Mr. Pullen instructed him to do. We have held that “[c]ounsel does
not have to take every position and make every argument that the client requests.”
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United States v. Boigegrain , 155 F.3d 1181, 1187 (10th Cir. 1988); see also
United States v. Dawes , 874 F.2d 746, 748 (10th Cir. 1989) (per curiam) (“There
is no right to counsel who will blindly follow a defendant’s instructions.”),
overruled on other grounds by United States v. Allen , 895 F.2d 1577 (10th Cir.
1990). Here, Mr. Pullen did not provide adequate support for his premise that the
result of his trial would have been different if defense counsel had taken any of
the alleged omitted or refused actions. We agree with the trial court that defense
counsel’s performance did not fall below a reasonable standard, and therefore,
Mr. Pullen did not meet his burden of proof as to his claims of ineffective
assistance of counsel.
F. Destruction of exculpatory evidence–
Finally, Mr. Pullen alleges that the government destroyed, concealed, and
suppressed exculpatory evidence and presented tainted, false, and perjured
testimony in order to convict him. Mr. Pullen argues that the government
destroyed evidence of an “operation” being conducted prior to Mr. Pullen’s arrest
and concealed “recording devices” that were inside the truck that Mr. Pullen was
driving. Appellant’s Initial Br. at 80-81. Mr. Pullen does not identify this
“operation” or these “recording devices” with any specificity, but appears to make
his argument amid a general claim that he was the victim of a conspiracy involving
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law enforcement personnel, both state and federal in three states, the prosecutor,
and the courts. In rejecting these arguments in Mr. Pullen’s post-trial motion, the
trial court considered Mr. Pullen’s allegations conclusory--without support either
factually or legally. We agree.
III. Conclusion
Following a careful review of the trial transcripts, the record on appeal, and
the parties briefs, we find no reversible error in Mr. Pullen’s trial. Therefore,
Mr. Pullen’s conviction and sentence are AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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