United States v. Mitchell

UNITED STATES COURT OF APPEALS
Filed 8/8/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 95-4122
v. (D.C. No. 94-CV-925-S)
(D. Utah)
ROBERT W. MITCHELL,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before PORFILIO, JONES,** and TACHA, Circuit Judges.
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) and 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This order and judgment is not binding precedent, except under the doctrines of law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.
**
Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Defendant Robert Mitchell appeals from an order denying his 28 U.S.C. § 2255motion. We affirm.1
Defendant was convicted of various drug offenses and sentenced to three hundred
sixty months’ imprisonment. We affirmed his conviction on direct appeal. United States v.
Mitchell, 17 F.3d 1437, 1994 WL 55597 (10th Cir. 1994)(table), cert. denied, 114 S. Ct. 2174(1994).
Defendant filed this § 2255 motion on September 21, 1994. The district court denied
it without holding a hearing “for the reasons outlined in the responsive pleadings of the
United States.” R. Vol. I, doc. 24. On appeal, defendant argues he was prosecuted in
violation of the Double Jeopardy clause, and that trial and appellate counsel were ineffective
for failing to raise this and other claims.
Initially, we reject the government’s argument that, unless defendant can show cause
and resulting prejudice for his failure to raise his ineffective assistance of counsel claims at
sentencing and on direct appeal, they are procedurally barred. We held in United States v.
Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995), that “claims of constitutionally ineffective
counsel should be brought on collateral review, in the first petition filed under 28 U.S.C.
§ 2255.” However, his Double Jeopardy claim is barred because it was not previously raised,
1
Because this appeal was properly before the court on the merits prior to the signing
of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (Apr. 24,
1996), we do not consider whether this appeal warrants a certificate of appealability. In any
event, the question of the applicability of the Act is moot, since the disposition suggests the
petition is moot.
2
unless he can show cause and resulting prejudice. United States v. Frady, 456 U.S. 152,
167-68 (1982). Counsel’s ineffectiveness in not raising the Double Jeopardy claim can
constitute cause excusing his procedural default. Medina v. Barnes, 71 F.3d 363, 370 (10th
Cir. 1995).
To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that counsel’s deficient
performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). The
prejudice prong is established by proof of “a reasonable probability that, but for counsel’s
purported unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. A claim of ineffective assistance is reviewed de novo. Brewer v. Reynolds, 51
F.3d 1519, 1523 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996).
Defendant contends that the civil forfeiture of his property barred a subsequent
prosecution for the same conduct. In United States v. German, 76 F.3d 315, 319-20 (10th
Cir. 1996), we adopted the view taken by several other circuits that if a defendant does not
contest a civil forfeiture action by filing a claim, no jeopardy attaches and the protections of
the Double Jeopardy clause are not invoked.2 The record shows that no timely claim was
filed. See United States v. Hardwell, 80 F.3d 1471, 1485 (10th Cir. 1996). We do not
2
We applied German to all pending appeals in States v. Denogean, 79 F.3d 1010, 1013
(10th Cir. 1996). This appeal was pending on January 31, 1996, the date German was
decided.
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consider defendant’s argument that he did file a claim to contest the forfeiture because this
contention was not raised in the district court. Walker v. Mather (In re Walker), 959 F.2d
894, 896 (10th Cir. 1992). In fact, defendant stated in the district court that he was in default
in the forfeiture proceedings. R. Supp. Vol. I, doc. 15 at 3.
We do not address defendant’s argument, raised for the first time in his reply brief,
that the failure to notify him he may be waiving his Double Jeopardy rights by not timely
filing a claim bars the government from later claiming waiver. Codner v. United States, 17
F.3d 1331, 1332 n.2 (10th Cir. 1994). Because we conclude the Double Jeopardy issue lacks
merit, counsel was not ineffective for failing to raise it, United States v. Cook, 45 F.3d 388,
393 (10th Cir. 1995), and defendant is procedurally barred from raising it in this proceeding.
The next issue is whether trial counsel was ineffective for not moving to suppress a
videotape obtained pursuant to a search that was not authorized by a search warrant.
Defendant does not refute the government’s contention that the videotape was edited to
delete all nudity, sexual paraphernalia, and sexual activity before it was shown to the jury.
Further, the tape merely corroborated the testimony of one of the government’s witnesses.
Finally, we fail to see how the tape improperly attacked defendant’s character, rather than
that of the witness depicted in the tape. Defendant has not shown prejudice from counsel’s
failure to move to suppress the videotape.
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We reject defendant’s argument that all evidence seized in the search should have
been suppressed pursuant to United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988),
because thirty tapes were seized that were not authorized by the warrant. Of the numerous
items seized in the search, the tapes were included in a leather bag that also contained phone
records. Phone records were specifically described in the search warrant. The record
provides no indication that the warrant was used as a pretext for a general search.
Defendant also contends that counsel was ineffective for not moving to suppress
results of the search because information used to obtain the search warrant was stale.
[P]robable cause is not determined simply by counting the number of days
between the facts relied on and the issuance of the warrant. Rather, whether
information is too stale to establish probable cause depends on the nature of
the criminal activity, the length of the activity, and the nature of the property
to be seized.
United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (citation omitted). If the
property is likely to stay in the same place for a lengthy time, probable cause may be found
despite the existence of a substantial delay between the event relied on and issuance of the
warrant. Id. The passage of time is less critical where the affidavit recites facts indicating
ongoing, continuous criminal activity. Id.The affidavit stated that defendant had been involved in ongoing, continuous drug
activities for at least the past three years. It further stated that he kept large amounts of cash
at his home that was a direct result of his drug activities, that he or a subordinate traveled
every four to six weeks to other locations to purchase three to six kilograms of cocaine, that
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he traded cocaine for firearms which he kept at his residence, and that he kept notes pertinent
to cocaine trafficking. The items sought included records pertinent to drug trafficking, cash,
firearms, and vehicles. Under these circumstances, we conclude the information provided
by the informants was not too stale to support probable cause for the search.
Defendant further argues that the affidavit omitted material information that one of
the informants unsuccessfully tried to make controlled buys from defendant. “[I]t is a Fourth
Amendment violation to knowingly or recklessly omit from an affidavit [in support of a
search warrant] information that would have vitiated probable cause.” United States v.
Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993). If the affidavit would have shown probable
cause existed assuming the omitted facts were included, no grounds for suppression exist.
See id. Even if the omitted information had been included, there was more than ample other
information to support a finding of probable cause for the search. We conclude trial counsel
was not ineffective for failing to move to suppress the results of the search.
Defendant next argues that trial counsel was ineffective for failing to engage in
pretrial preparation, interview witnesses, or object to the introduction of certain evidence.
We conclude defendant failed to show ineffective assistance of counsel. Even if evidence
that Richard Long had unsuccessfully attempted to make controlled buys from defendant had
been disclosed, we do not believe this would have changed the outcome of the trial, based
on the other overwhelming evidence of guilt. Further, defendant failed to identify any other
allegedly exculpatory evidence that would have been discovered if counsel had interviewed
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Richard Long. As already discussed, the videotape was edited to eliminate all sexually
explicit scenes and merely corroborated a witness’s testimony. Defendant has not
demonstrated that the danger of unfair prejudice from exhibits 18 and 19 (sexually explicit
photographs) substantially outweighed their relevance in showing the social nature of
defendant’s relationship with some of the witnesses. There has been no showing that
government witnesses would have testified as to what is a normal investigative procedure.
Defendant has not identified the coconspirator statements to which counsel should have
objected. All of the items that were sent to the jury room had been shown to the jury when
they were identified, so counsel’s failure to object to their being sent to the jury room could
not prejudice defendant. There was more than ample evidence that the witnesses saw the
contents of the packages of cocaine on several occasions and identified it as such.
Defendant next argues that trial counsel was ineffective for failing to object to
testimony that $69,000 was obtained from the proceeds of sales of cocaine. He claims this
testimony was speculation because he never told the witnesses that the money constituted
proceeds from cocaine sales. He has not identified the testimony to which counsel should
have objected, so we cannot review this contention. We note, however, it would not be
necessary for defendant to have told witnesses that the money was derived from cocaine sales
if the witnesses’ testimony was based on their own observations. We do not address
defendant’s contention that the government failed to prove its case on the money laundering
count under United States v. McDougald, 990 F.2d 259 (6th Cir. 1993), because it is raised
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for the first time in his reply brief. Codner, 17 F.3d at 1332 n.2.
The next contention is that trial counsel was ineffective for failing to ensure that all
materials favorable to the defense were disclosed. Defendant has not refuted the
government’s assertion that it turned over all such materials, and we do not address his claim
that the government failed to disclose Richard Long’s testimony at John Gutke’s grand jury
because it is raised for the first time on appeal. Defendant does argue that information
relating to an investigation conducted before December 21, 1990, was withheld in violation
of the Jencks Act. This Act requires the government, on motion of a defendant, to produce
any “statement” of a witness it has called that relates to the subject matter to which the
witness has testified. 18 U.S.C. § 3500(b). Defendant has made no showing the government
had in its possession any pre-December 21, 1990 statements of witnesses it had called. Thus,
he has not shown counsel was ineffective for failing to ensure such evidence was turned
over.
Defendant next contends that trial counsel was ineffective for failing to object to the
district court’s application of U.S.S.G. § 2D1.2(a)(1). This guideline provides for a two-
point increase in the base offense level “applicable to the quantity of controlled substances
directly involving a protected location.” Defendant correctly points out that, under the
application note to this section, the two-point increase applies only to quantities of drugs
involved in transactions near a protected location. He argues that the district court
improperly increased his base offense level for cocaine that was not involved in transactions
8
near the school (the “protected location”) as well as for amounts that were involved in
transactions near the school. However, defendant has not provided any citation to the record
supporting his assertion that some of the cocaine on which the district court based the
sentence was not involved in transactions taking place near a protected location. We will not
search the record to provide support for his argument. SEC v. Thomas, 965 F.2d 825, 827
(10th Cir. 1992).
Defendant argues that trial counsel was ineffective because he did not object to the
district court’s application of U.S.S.G. § 2D1.1(b)(1), which added two points to his base
offense level for possession of a dangerous weapon. He contends there was no evidence that
he used a firearm during the commission of any drug transaction. However, § 2D1.1(b)(1)
allows an enhancement when a firearm is possessed during an offense; it does not have to
be used. Bailey v. United States, 116 S. Ct. 501, 509 (1995); see United States v. Lang, 81
F.3d 955, 963 n.4 (10th Cir. 1996). The application note to § 2D1.1(b)(1) provides that the
adjustment should be applied if a weapon was present, unless it is clearly improbable the
weapon was connected with the offense. See Lang, 81 F.3d at 964. There is ample evidence
that defendant carried or wore a firearm when he engaged in drug transactions. See, e.g.,
R. Supp. Vol. III at 160-62. Defendant has pointed to no evidence showing it was clearly
improbable the firearm was connected with the offense. Thus, he has not shown counsel was
ineffective for failing to raise this objection.
Defendant next claims counsel was ineffective because he failed to object to the
9
district court’s calculation of the quantity of drugs attributable to defendant as relevant
conduct. The district court determined that forty-eight kilograms of cocaine were attributable
to defendant’s conduct, resulting in a base offense level of thirty-four. U.S.C.G.
§ 2D1.1(c)(5).
A district court’s drug quantity determination will not be disturbed unless it has no
record support or unless we are firmly convinced that an error has been made. United States
v. Sloan, 65 F.3d 149, 151 (10th Cir. 1995). The sentencing court may estimate the amount
of drugs attributable to a defendant if the information on which the estimate is based has
some support in the facts of the case and bears “sufficient indicia of reliability.” United
States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995) (quotation omitted).
Our review of the record convinces us that the district court’s computation of the
quantity of drugs attributable to defendant has record support, and counsel therefore was not
ineffective for failing to object to that computation. Donna Bennett testified that she
transported two kilograms of cocaine for defendant on three separate occasions. R. Supp.
Vol. IV at 66, 74, 77. She knew what it was because her husband, Duane, broke open the
packages so he could snort some of the cocaine. Id. at 69. Bennett herself was a regular user
of cocaine. Id. at 48. Ryan Nielson testified that he transported three kilograms of cocaine
for defendant on three occasions, R. Supp. Vol. VI at 167, 189; R. Supp. Vol. VII at 2, and
another kilogram on another occasion, R. Supp. Vol. VI at 196. He saw the contents of one
of the packages because it was cut open. Id. at 167. Nielson was a former narcotics officer.
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Id. at 144. Defendant’s sister, Cindy Broadbent, testified that she transported seven
kilograms of cocaine for defendant. R. Supp. Vol. II at 141. She knew what it was because
one of the packages was opened and the contents broken down. Id. at 140. This testimony,
alone, places defendant well within the base offense level of thirty-four. The district court
would have had to find that less than fifteen kilograms were involved for a lower base
offense level to apply.
Finally, defendant’s contention that the district court erred in forcing defendant to
proceed with trial counsel at sentencing after there had been a breakdown in communications
was raised in his direct appeal and may not be relitigated. See Galloway, 56 F.3d at 1242.
Therefore, the judgment of the United States District Court for the District of Utah is
AFFIRMED. The request to supplement the record is denied. The request to amend the
opening and reply briefs is denied as moot. The mandate shall issue forthwith.
Entered for the Court
Nathaniel R. Jones
Senior Circuit Judge
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