United States v. Caraveau ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 7 1997
FOR THE TENTH CIRCUIT
_________________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-8115
(D. Wyo.)
v. (D.C. No. 96-CR-60)
DONALD CARAVEAU,
Defendant-Appellant.
_______________________________
ORDER AND JUDGMENT*
______________________________
Before BRORBY, BARRETT, and McKAY, 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); 10th Cir. R. 34.1.9. The case is therefore 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This order and judgment is not binding precedent, except under the doctrines of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.
Donald Caraveau appeals his conviction for conspiracy to possess with intent to
distribute and distribution of methamphetamine in violation of 21 U.S.C. § § 841(a)(1),
841(b)(1)(B), and 846. Michael Stukey, who was also indicted for participating in the
conspiracy, testified against Mr. Caraveau in the district court. Mr. Caraveau contends
that the district court erred by refusing to give his suggested jury instruction addressing
the uncorroborated testimony of an accomplice witness. Additionally, Mr. Caraveau
brings ineffective assistance of counsel claims against his trial and appellate attorneys.
We exercise jurisdiction under 28 U.S.C. § 1291, and affirm the district court’s
decision and dismiss Mr. Caraveau’s ineffective assistance of counsel claims without
prejudice. Such claims of ineffective assistance of counsel should be brought in collateral
proceedings pursuant to 28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995) (en banc).
The district court’s refusal to give Mr. Caraveau’s particular instruction is
reviewed for abuse of discretion. Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1442
(10th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3137 (U.S. Aug. 6, 1997) (No.
97-232). The instructions themselves are reviewed de novo “to determine whether, as a
whole, they correctly stated the governing law and provided the jury with an ample
understanding of the issues and applicable standards.” Id.; United States v. Swallow, 109
F.3d 656, 658 (10th Cir. 1997).
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Mr. Caraveau asserts that according to United States v. Owens, 460 F.2d 268 (10th
Cir. 1972), the district court committed plain and reversible error when it failed to recite
Mr. Caraveau’s suggested instruction on the testimony of accomplices. United States v.
Owens requires no such result. Owens holds that where the only evidence directly
implicating a defendant is the testimony of acknowledged accomplices, a cautionary
instruction apprising the jury of the potentially unreliable nature of the accomplices’
testimony is required. Id. at 269. Such a cautionary instruction was not required in Mr.
Caraveau’s case because evidence was presented at trial in support of the accomplice
testimony; Mr. Stukey’s testimony was corroborated in part by Federal Express receipts
and Mr. Caraveau’s own taped statement.
Moreover, even if the accomplice testimony had been uncorroborated, the jury was
properly cautioned by the district court’s instructions. See United States v. Torres, 53
F.3d 1129, 1140 (10th Cir.), cert. denied, 515 U.S. 1152 (1995); United States v.
Chatman, 994 F.2d 1510, 1514-15 (10th Cir.), cert. denied, 510 U.S. 883 (1993); Owens,
460 F.2d at 269. The court instructed the jury that accomplice testimony
may be received and considered by the jury, even though not corroborated
by other evidence, and given such weight as the jury feels it should have.
The jury, however, should determine whether an accomplice’s testimony
has been affected by any interest the accomplice may have in obtaining a
reduction in punishment or other benefit and should keep in mind that such
testimony is always to be received with caution and considered with great
care.
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R., Vol. 2, Inst. 36. In another instruction, the district court stated that the “evidence of
Mr. Stukey’s plea of guilty is admitted . . . so that you may assess the credibility of Mr.
Stukey as part of your duty in assessing the credibility of each and every witness who
appeared in this case.” R., Vol. 2, Inst. 40A. The district court committed no error in
refusing to give Mr. Caraveau’s suggested instruction. The given instructions, as a
whole, were sufficiently cautionary, and Mr. Caraveau “is not entitled to ‘any specific
wording of instructions.’” United States v. McGuire, 27 F.3d 457, 462 (10th Cir. 1994)
(quoting United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir. 1989)).
The judgment of the trial court is AFFIRMED, and the ineffective assistance of
counsel claims are DISMISSED without prejudice.
Entered for the Court
Monroe G. McKay
Circuit Judge
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