United States v. Adams

FILED
United States Court of Appeals
Tenth Circuit
November 29, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-6255
v. (D.C. No. 5:10-CR-00011-D-3)
(W.D. Okla.)
CARRI O. ADAMS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.
Defendant Carri O. Adams was tried and convicted, with co-defendant
Wallace Laverne Lawrence III, on seven counts of wire fraud/aiding and abetting,
18 U.S.C. § 1343 and § 2, for her role in a scheme using internet ads to defraud
persons seeking help in paying bills. The district court imposed a sentence of
eighteen months on each count, to run concurrently, followed by two years of
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
supervised release on each count, also to run concurrently, and ordered Adams to
pay restitution of $7406. After timely initiation of this appeal, counsel moved to
withdraw and filed an Anders brief explaining why he believes there to be no
non-frivolous grounds for appeal. See Anders v. California, 386 U.S. 738 (1967);
10th Cir. R. 46.4(B)(1). We grant the motion and dismiss the appeal.
Under Anders, counsel must first “conscientiously examine[] a case and
determine[] that any appeal would be wholly frivolous,” and then
counsel must submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record. The
client may then choose to submit arguments to the court. The [c]ourt
must then conduct a full examination of the record to determine
whether the defendant’s claims are wholly frivolous. If the court
concludes after such an examination that the appeal is frivolous, it
may grant counsel’s motion to withdraw and dismiss the appeal.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted).
The Anders brief submitted in this case discusses three issues initially identified
in the docketing statement, as well as a potential claim of ineffective assistance of
counsel. Adams did not submit any additional arguments on her own behalf.
The first issue concerns the sufficiency of the evidence supporting Adams’s
conviction. As explained at greater length in our related decision affirming her
co-defendant’s conviction in United States v. Lawrence, No. 10-6257, ample
evidence demonstrated the existence of the fraudulent scheme and Adams’s
participation in it, establishing in particular her direct or aiding and abetting
liability for the internet ads underlying the wire fraud counts. In fact, the
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evidence indicated that it was her computer experience that played an important
role in the incorporation of internet ads into the scheme. We agree with counsel
it would be frivolous to argue that “taking the evidence—both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom–in
the light most favorable to the government, [no] reasonable jury could find
[Adams] guilty beyond a reasonable doubt.” United States v. Keck, 643 F.3d 789,
793 (10th Cir. 2011) (internal quotation marks omitted).
The second issue concerns the district court’s denial of Adams’s motion to
suppress evidence found during a warrant-based search of her vehicle following
the arrest of her co-defendant, who was driving it at the time. The motion to
suppress was based on the fact that the warrant mis-identified the model year and
did not include the vehicle identification number (VIN). The district court noted
that a factual error will not invalidate a warrant if it “otherwise describes the
premises with sufficient particularity so that the police can ascertain and identify
the place to be searched,” United States v. Lora-Solano, 330 F.3d 1288, 1293
(10th Cir. 2003), and held that the warrant, which correctly identified not only the
color, make, and model but license tag as well, adequately described the vehicle
to be searched. R. Vol. 1 at 130 (also noting lack of any precedent for requiring a
VIN to validate warrant for search of vehicle). The court added that suppression
would not, in any event, be appropriate in light of the good faith of the officers
securing and executing the warrant. Id. at 131 (citing United States v. Leon,
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468 U.S. 897 (1984)). Once again, we agree with counsel it would be frivolous to
challenge this ruling on appeal.
The third issue concerns the asserted “incredibility” of co-defendant Sandra
Acuna, who pled guilty and testified for the government at trial. As counsel
notes, witness credibility is generally not a proper issue for appeal. We do not
encroach upon the jury’s authority in this area unless the testimony in question “is
inherently incredible–that is, only if the events recounted by the witness were
impossible under the laws of nature or the witness physically could not have
possibly observed the events at issue.” United States v. Cardinas Garcia,
596 F.3d 788, 794 (10th Cir.) (internal quotation marks omitted), cert. denied,
130 S. Ct. 3299 (2010). Nothing of the sort is evident here. 1
Finally, counsel notes that Adams now believes her trial counsel was
constitutionally ineffective in various respects. As this court clarified some time
ago, however, ineffective assistance claims are reserved for collateral review in
all but exceptional circumstances; on direct appeal, they are “presumptively
dismissible, and virtually all will be dismissed.” United States v. Galloway,
56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Here, it would be especially
1
Adams objected to admission of Acuna’s plea agreement, in which Acuna
agreed to provide truthful testimony, as an improper vouching for veracity. But,
as the district court noted, we have held that “it is perfectly permissible for a
prosecutor to introduce a witness’s plea agreement on direct examination, even if
it includes a truthfulness provision.” United States v. Harlow, 444 F.3d 1255,
1262 (10th Cir. 2006).
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inappropriate to pursue such matters, which were not raised, developed, or ruled
on in the proceedings below. See United States v. Flood, 635 F.3d 1255, 1260-61
(10th Cir. 2011) (noting ineffective assistance claims have been considered on
direct appeal “only where the issue was raised before and ruled upon by the
district court and a sufficient factual record exists”).
We have also conducted a thorough independent review of the record and
have not uncovered any non-frivolous issues relating to Adams’s conviction or
sentence. As to the latter, we see no procedural error in the calculation of the
applicable sentencing guideline range, nor any basis upon which she could rebut
the presumption of substantive reasonableness attached to her within-guidelines
sentence, see generally United States v. Reyes-Alfonso, 653 F.3d 1137, 1145-46
(10th Cir. 2011) (discussing presumption of reasonableness), petition for cert.
filed (U.S. Oct. 25, 2011) (No. 11-7115).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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