Category: Crime

Plea Deal Accepted in Murder/Arson Case

By Carlos Padilla HERALD Editor

A plea deal was struck between the State of New Mexico and accused murderer and arsonist Willie Garcia Jr., on Wednesday morning, Nov. 12, in the Seventh Judicial District Courthouse in Truth or Consequences. Mr. Garcia has been incarcerated since shortly after the death of 27-year-old Mical Lee Culpepper, who died in May 2012.

Sentencing will take place in approximately 45 days.

If sentenced to the maximum term in prison allowed by law due to this plea agreement – 5-1/2 years – Willie Garcia Jr., may be out of prison before this year’s sophomores at Hot Springs High School receive their diplomas for graduation.

QUESTION OF COMPETENCY

On Wednesday morning, Seventh Judicial District Court Chief Judge Kevin Sweazea opened the proceedings for the plea hearing, where Seventh Judicial District Attorney Clint Wellborn went on record as the prosecutor in the case and Steve Aarons went on record as the defense attorney representing Mr. Garcia.

Judge Sweazea acknowledged that the agenda to last week’s hearing indicated that the court was set to hear the plea and disposition, and that the court had been awaiting a competency report.

“Has that been prepared?” Judge Sweazea asked.

“It has, Your Honor,” Mr. Aarons offered, addressing the court, adding that he was filing in open court a notice of withdrawal of the competency issue.

Mr. Aarons went on to state that he had received a report Monday evening, Nov. 10, that in the opinion of the individual who had prepared the report after interviewing Mr. Garcia, that although Mr. Garcia does “have a history of multiple head injuries, the neuropsychological screening” indicates that “his memory, attention and language skills are sufficient for him to be able to work with his attorney in a rational and factual manner in his defense.”

Mr. Aarons had in fact been the individual to breech the issue of Mr. Garcia’s competency in the first place.

In question to the legal matters at hand, Garcia was found to possess “more than an adequate grasp of the fundamentals,” Mr. Aarons stated, reading from the report. “He does have a significant substance abuse history for which he could benefit from treatment. He is to remain on appropriate psychotropic medications to maintain competency.”

Aarons addressed the court, stating that he was now satisfied, as Garcia’s attorney, that his client’s competency was determined to be intact by the forensic psychologist, who he stated has a distinguished reputation in the state of New Mexico in her field.

With that said, Mr. Aarons requested that the issue of competency be withdrawn from the court.

Judge Sweazea, who was given the original report by defense attorney Aarons, ordered that the attorney needed to file the report with the court clerk’s office, as the issue of competency had been raised with the court regarding Mr. Garcia.

PLEA AGREEMENT

With that issue being put to bed, so to speak, Judge Sweazea asked the attorneys present in court if they wished to proceed with the plea agreement. Both attorneys stated that they were in fact prepared to proceed.

District Attorney Wellborn addressed the court, asking to specifically address the matter of Garcia being considered for a habitual offender enhancement.

Defense attorney Aarons spoke to the habitual offender enhancement, confirming that Mr. Garcia’s prior criminal offense was more than 10 years old, however, because Garcia was not released from probation until 2007, which was within 10 years, that placed Garcia “within the zero to 5-1/2 years.”

Asking for clarification, Judge Sweazea was told by Mr. Aarons that the figure of 5-1/2 years included the potential prison sentences combined.

In the portion of the plea agreement that discusses sentencing, Judge Sweazea stated, it references a statute that the offenses are nonviolent offenses. “Does that mean that they are not serious offenses?” he asked District Attorney Wellborn, who stated that the statute does state that the offense included in the plea agreement were considered nonviolent.

Willie Garcia Jr., was then sworn in by Chief Judge Sweazea.

reprinted by permission of the Truth or Consequences Herald
State v. Pfauntsch (NM App 2013)

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STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOSEF E. PFAUNTSCH, Defendant-Appellant.

31,674

COURT OF APPEALS OF THE STATE OF NEW MEXICO

APPEAL FROM DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge

Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM

for Appellee

Aarons Law Firm, PC
Stephen D. Aarons
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BUSTAMANTE, Judge.

Page 2

{1} Defendant Pfauntsch, a German national and United States permanent resident, appeals the district court’s denial of his motion to withdraw his plea of “no contest” to charges of aggravated battery against a household member and criminal damage to property of a household member. He maintains that he was improperly advised of the immigration consequences of the plea, contrary to State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, which requires attorneys to determine their clients’ immigration status and advise them of the specific consequences of a plea agreement on their immigration status, and that it was therefore error for the district court to deny his motion to withdraw the plea. We conclude that the district court erred in determining that there was no ineffective assistance by the attorney because Defendant failed to disclose his immigration status to the attorney. We reverse and remand for proceedings consistent with this Opinion.

BACKGROUND

{2} With representation by attorney Troy W. Prichard (Prichard), Defendant pled “no contest” to aggravated battery against a household member contrary to NMSA 1978, Section 30-3-16C (2008), and criminal damage to property, contrary to NMSA 1978, Section 30-3-18(A) (2009). At the plea hearing, the district court conducted a plea colloquy during which Defendant told the district court that he was a United States citizen. See Rule 5-303 NMRA. The judge approved the plea agreement,

Page 3

including the portion of the agreement that indicated that the district court had concluded “[t]hat [D]efendant understands that a conviction may have an effect upon [D]efendant’s immigration or naturalization status and that . . . [D]efendant has been advised by counsel of the immigration consequences of this plea agreement.” Defendant was sentenced to supervised probation for a period of three years.

{3} The next day, before the judgment and sentence was filed, Defendant filed a motion for reconsideration. He argued that the district court should reconsider its denial of a conditional discharge, and requested withdrawal of the plea as alternative relief.

{4} Nearly a month later, the State moved to revoke Defendant’s probation based on Defendant’s “fail[ure] to report for his initial intake appointment.” Three days after this motion, Defendant filed a pro se motion to change the plea to “not guilty.” Alleging that his attorney had “failed to respond to [his] request[,]” Defendant maintained that the plea was made “under pressure . . . by [his] attorney,” and that “[his] intelligence was clouded by the use of medical marijuana for several month[s] before and up to the morning of the plea agreement.” He stated, “My attorney claimed it was not a ‘guilty’ plea and he did not explain that I would be losing my civil rights, although the judge did.” Although Defendant argued that “[his] attorney did not

Page 4

explain the extent of the consequences for making a no contest plea[,]” this motion did not mention his immigration status specifically.

{5} The next motion to withdraw the plea agreement was filed approximately nine months later by Defendant’s new counsel, Stephen D. Aarons. This motion specifically cited Prichard’s failure to “discuss with [D]efendant or the [district] court any possible immigration issue.” In the motion, Defendant argued that Prichard was “ineffective per se in failing to make any inquiry as to [D]efendant’s status as a citizen born in Germany who had . . . later emigrated to the United States.” No affidavits were attached to the motion, but Defendant attached several affidavits to his reply to the State’s response in opposition to the motion. One of these was an affidavit in which Prichard stated that “[he] was not aware of [Defendant’s] status as a German[-]born immigrant.” Prichard also stated that “[Defendant] never before disclosed this status to [him], and[,] therefore[,] I never discussed with [Defendant] certain details of the possible consequences to immigration and naturalization status as a result of pleading no contest or otherwise being found guilty of [a]ggravated [b]attery on a [h]ousehold [m]ember, a third degree felony[.]”

{6} Defendant also attached his own affidavit, in which he stated that “[m]y first attorney, . . . Prichard, knew that I was born in Germany, [and] emigrated to America as an adult.” He also stated, “At no time did . . . Prichard discuss that a finding of

Page 5

guilt by the court to a domestic violence felony could affect my immigration and naturalization status” and that “fear of an unknown future impact upon my immigration and naturalization status [among other consequences is a] consequence[] that . . . Prichard did not tell me and would have strengthened my resolve to contest this unjust felony domestic violence conviction.”

{7} After a hearing, the district court made two findings and one conclusion relevant to this appeal. First, it found that “[u]pon questioning from the [district c]ourt, [Defendant] stated that he was a United States [c]itizen.” Second, it found that “Prichard states in his affidavit that [D]efendant did not disclose any information that [D]efendant was a German[-]born immigrant and not a U[nited] S[tates] citizen.” Finally, it concluded that “[D]efendant cannot complain of ineffective assistance of counsel where he is responsible for the lack of information provided to his counsel and the misinformation provided to this court. Defense counsel is not a ‘mind[-]reader’ and cannot be expected to anticipate every consequence of [D]efendant’s nondisclosure.”

{8} Additional facts are included as pertinent to our analysis.

DISCUSSION

{9} We review the district court’s denial of a motion to withdraw a plea for an abuse of discretion. Paredez, 2004-NMSC-036, ¶ 5. “The district court abuses its

Page 6

discretion in denying a motion to withdraw a guilty plea when the undisputed facts establish that the plea was not knowingly and voluntarily given.” Id. (internal quotation marks and citation omitted). “Where . . . a defendant is represented by an attorney during the plea process and enters a plea upon the advice of that attorney, the voluntariness and intelligence of the defendant’s plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea.” State v. Carlos, 2006-NMCA-141, ¶ 9, 140 N.M. 688, 147 P.3d 897. Thus, if counsel was ineffective in advising a defendant on the terms or consequences of the plea agreement, then the plea was not entered into voluntarily and the district court’s acceptance of the plea is an abuse of discretion. See Paredez, 2004-NMSC-036, ¶ 5 (stating that “whether [the d]efendant’s plea was voluntary and knowing . . . requires th[e] Court to examine whether [the d]efendant should have been informed that his guilty plea . . . almost certainly would result in his deportation[.]”). We review claims of ineffective assistance of counsel de novo. Carlos, 2006-NMCA-141, ¶ 9.

{10} In order for this Court to assess an ineffective assistance claim on direct appeal, there must be adequate facts in the record. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61; Paredez, 2004-NMSC-036, ¶ 22. If this is not the case, “an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary

Page 7

hearing if the defendant makes a prima facie case of ineffective assistance.” Roybal, 2002-NMSC-027, ¶ 19. In cases like this one, when a prima facie case is made, remand may be more appropriate than habeas corpus proceedings, because “[o]nce [the d]efendant has exhausted his direct appeal, he could be immediately deported.” Paredez, 2004-NMSC-036, ¶ 23.

{11} “Proof of ineffective assistance is two-fold: (1) [the d]efendant must show that counsel’s performance fell below that of a reasonably competent attorney, and (2) [the d]efendant also must prove that the deficient performance prejudiced the defense.” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729 (internal quotation marks and citation omitted). “The [d]efendant has the burden of proving both prongs of the test.” Id. As to the first prong, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Nevertheless, it is clear that “an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable.” Paredez, 2004-NMSC-036, ¶ 15 (quoting United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010). In addition, “an attorney’s non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance.” Id. ¶ 16. As a result, “criminal defense attorneys are

Page 8

obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain.” Id. ¶ 19. Failure to do so “will be ineffective assistance of counsel if the defendant suffers prejudice by the attorney’s omission.” Id.

{12} We turn now to the facts of this case. First, we note that the parties agree on several significant points. For instance, Defendant and the State agree that Prichard never advised Defendant of the specific immigration consequences of his plea. Similarly, the parties agree that “the burden of determining a defendant’s immigration status lies on defense counsel.” Thus, as a consequence of these facts, the parties agree that the issue before this Court is whether Prichard asked Defendant about his immigration status and, if so, whether Defendant answered the inquiry truthfully and accurately. The premise behind this framing of the question is that Prichard’s failure to advise Defendant on the immigration consequences of the plea is excusable either because, as the State argues, “Prichard had no reason to believe that Defendant was not a United States citizen” or because “it may be inferred that Defendant told . . . Prichard on his own that he was a United States citizen.” We reject this premise for two reasons.

{13} First, it is clear that under Paredez attorneys have an affirmative duty to determine the immigration status of their clients. Not only is this rule stated explicitly

Page 9

in Paredez, see 2004-NMSC-036, ¶ 19 (“We hold that criminal defense attorneys are obligated to determine the immigration status of their clients.”), but it is implicit in the Supreme Court’s ruling that failure to properly advise a non-citizen is ineffective assistance. How else can an attorney ensure that he or she is effective at providing the required advice other than by making an explicit inquiry into the client’s immigration status?

{14} To the extent that the parties argue over whether there were indicators of Defendant’s immigration status to be found in his accent, his place of birth, the location of his wedding, or the fact that his wife needed an interpreter in court, we conclude that reliance by attorneys on such indicators is, at minimum, ill-advised. Given the great variety of circumstances under which people are born, reared, and obtain citizenship in this country, it is misguided to advise or not advise a client based on conjecture about his or her citizenship. Thus, the absence of external cues that a client is a non-citizen does not excuse an attorney from affirmatively determining the immigration status of the client.

{15} Second, the evidence does not support an inference that Defendant told Prichard that Defendant was a citizen. The State points to three facts: (1) that Defendant told the district court at the plea hearing that he was a citizen, (2) that Prichard’s “affidavit does not state . . . that . . . Prichard never asked Defendant about his citizenship[,]” and (3) that “Defendant did not appear to understand the meaning of the phrase “United

Page 10

States citizen.” The State argues that these facts, together with the presumption that counsel provided adequate assistance, create an inference that Defendant told Prichard that he was a United States citizen. We are not persuaded. The fact that Prichard’s affidavit does not address explicitly whether he inquired about Defendant’s citizenship status is extraordinarily weak evidence that he actually did ask about citizenship. By this reasoning, the fact that Prichard also does not assert that Defendant told him he was a citizen might mean that Defendant never claimed citizenship—a conclusion directly contrary to the State’s argument. See Stambaugh v. Hayes, 1940-NMSC-048, ¶ 14, 44 N.M. 443, 103 P.2d 640 (“Where evidence is equally consistent with two hypotheses, it tends to prove neither.” (internal quotation marks and citation omitted)). Furthermore, to reach the State’s conclusion requires stacking inferences on inferences. See Gonzales v. Shoprite Foods, Inc., 1961-NMSC-123, ¶ 10, 69 N.M. 95, 364 P.2d 352 (“[I]nferences must be reasonably based on other facts established in evidence and not based merely on conjecture or other inferences.”). For instance, we must infer that Defendant’s statements to the court accurately reflect his conversations with Prichard throughout the representation up to that point, a supposition we are unwilling to make given the differences between the attorney-client relationship and the district court’s role during a plea colloquy. See Paredez, 2004-NMSC-036, ¶ 12 (stating that “defense counsel is in a much better position [than the district court] to ascertain the personal circumstances of [the] client” (alteration, internal quotation

Page 11

marks, and citation omitted)); State v. Garcia, 1996-NMSC-013, ¶ 12, 121 N.M. 544, 915 P.2d 300 (“New Mexico’s [R]ule [5-303] governing its plea procedures protects both the important rights of the defendant and ensures the proper administration of criminal law.”).

{16} We conclude that Prichard’s failure to advise Defendant of the immigration consequences of his plea cannot be excused on the grounds that Prichard assumed Defendant was a citizen because there was no reason to believe otherwise. We also conclude that the evidence does not establish that Defendant told Prichard that he was a citizen and, therefore, Prichard’s failure to advise Defendant properly is also not excused on that basis. Accordingly, it was an abuse of discretion for the district court to conclude that Defendant was prohibited from claiming ineffective assistance because he failed to notify Prichard of his immigration status.

{17} The second prong of the ineffectiveness test hinges on “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Paredez, 2004-NMSC-036, ¶ 20 (internal quotation marks and citation omitted). That is, “[the d]efendant must show he would not have entered into the plea agreement if he had been given constitutionally adequate advice about the effect that his . . . plea would have on his immigration status.” Id. (internal quotation marks and citation omitted). In this analysis, we consider whether Defendant made pre-plea statements evincing a desire to go to trial, the strength of the evidence against Defendant, and

Page 12

whether the Defendant has strong connections to this country. See Carlos, 2006-NMCA-141, ¶¶ 20, 21. We also may consider the timing of the defendant’s motion(s) to withdraw. See Paredez, 2004-NMSC-036, ¶ 21 (stating that “[i]t . . . would be logical to infer from the fact that [the d]efendant filed a motion to withdraw his guilty plea only six days after he was sentenced that [the d]efendant would not have pleaded guilty if he had known beforehand of this dire consequence”). “To establish prejudice, a defendant generally must introduce evidence beyond solely self-serving statements.” Carlos, 2006-NMCA-141, ¶ 20.

{18} On appeal, Defendant established, and the State does not dispute, that (1) Defendant requested reconsideration or withdrawal of the plea agreement the day after it was entered, and (2) he had lived in the United States for over forty years. In addition, Defendant’s affidavit includes the text of an email he claims to have sent to Prichard three days before the plea hearing, in which he stated, “I cannot accept responsibility for actions I did not commit” and “I cannot allow myself to be led to slaughter without a fight. Please look at the exhibits and find the right experts to testify.” Although the State argues that this email is not probative of Defendant’s reluctance to plead “no contest” because the first sentence states, “I request that you file for an immediate appeal should [the Judge] decide to rule in error on Monday[,]” it is sufficient, together with the undisputed facts, to raise “a distinct possibility” that

Page 13

Defendant would have decided against a plea if he had been properly advised. Paredez, 2004-NMSC-036, ¶ 22.

{19} Defendant has established a prima facie showing that he was prejudiced by the lack of counsel on the immigration consequences of his plea. See id. Because the district court concluded that Defendant did not demonstrate that his counsel was ineffective, it did not reach the issue of prejudice and made no findings as to whether Defendant would have rejected the plea had he been properly advised. “We prefer that the district court address the prejudice issue and provide findings underlying or reasons for the court’s ultimate determination.” Carlos, 2006-NMCA-141, ¶ 22. Hence, we remand for an evidentiary hearing on whether Defendant was prejudiced by his counsel’s failure to advise him of the immigration consequences of a “no contest” plea. See Roybal, 2002-NMSC-027, ¶ 19 (“[A]n appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.”).

CONCLUSION

{20} Defendant has established that his counsel’s performance fell below that of a reasonably competent attorney when counsel failed to advise Defendant of the immigration consequences of a “no contest” plea. Defendant has also made a prima facie showing that justifies holding an evidentiary hearing to determine whether he

Page 14

was prejudiced by his counsel’s omission. We therefore reverse and remand to the district court for a determination of whether Defendant was prejudiced by this failure.

{21} IT IS SO ORDERED.

_____________
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

_____________
RODERICK T. KENNEDY, Chief Judge

_____________
TIMOTHY L. GARCIA, Judge

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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Two 1st degree murder convictions reversed

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State v. Marino Leyba, NM Sup Court 2012-NMSC-037

Double homicide of pregnant girlfriend and her father. Gary Mitchell handled first trial which resulted in two first degree murder convictions. Mr. Aarons appealed to supreme court and will handle remand to district court.

[/column]
Rowley v. Morant (D.N.M. 2012)

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TRAVIS R. ROWLEY, Plaintiff,
v.
KEVIN MORANT et al, Defendants.

No. 1:10CV1182 WJ/WDS

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

Dated: July 26, 2012

STIPULATED ORDER EXTENDING DISCOVERY DEADLINES THIS MATTER came before the court on plaintiff’s unopposed Motion for Stipulated Order Extending Discovery Deadlines. (Doc 43) The court FINDS all remaining parties agree in the relief requested and it is well taken.

IT IS THEREFORE ORDERED that discovery is reopened. All discovery including interrogatories and depositions shall be complete by 28 September 2012 except upon leave of court for good cause shown. The court reserves ruling on the issue of expert witness disclosures.

____________
W. Daniel Schneider
United States Magistrate Judge

Stipulations of Counsel:

Stephen D Aarons
Attorney for Plaintiffs

Kathryn C. Levy
Attorney for City Defendants

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United States v. Munoz-Chavez (DNM 2012)

UNITED STATES OF AMERICA
v.
Mario Alberto Munoz-Chavez

Case Number: 1:12CR01182-001JB
USM Number: 66089-051

UNITED STATES DISTRICT COURT District of New Mexico

Date Signed: July 5, 2012

Judgment in a Criminal Case
(For Offenses Committed On or After November 1, 1987)Defense Attorney: Stephen D. Aarons, Appointed THE DEFENDANT:

[×] pleaded guilty to count(s) Information

[ ] pleaded nolo contendere to count(s) which was accepted by the court.

[ ] after a plea of not guilty was found guilty on count(s)

The defendant is adjudicated guilty of these offenses:

+-----------------------------------------------------------------------------+
¦Title and Section,    ¦Nature of Offense   ¦Offense Ended  ¦Count Number(s)  ¦
+----------------------+--------------------+---------------+-----------------¦
¦8 U.S.C. Sec. 1   1326¦Reentry of a Removed¦03/28/2012     ¦                 ¦
¦(a)/(b)               ¦Alien               ¦               ¦                 ¦
+-----------------------------------------------------------------------------+

The defendant is sentenced as provided in pages 2 through 4 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on count .

[ ] Count dismissed on the motion of the United States.

IT IS FURTHER ORDERED that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

July 2, 2012
Date of Imposition of Judgment

James O. Browning
Signature of Judge

Honorable James O. Browning
United States District Judge
Name and Title of Judge

Page 2

IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 97 days or time served, whichever is less .

The Court recommends that Immigration and Customs Enforcement begin immediate removal proceedings.

Pursuant to section 5D1.1(c), the court will not impose a term of supervised release.

The Court has considered the Guidelines and, in arriving at its sentence, has taken account of the Guidelines with other sentencing goals. Specifically, the Court has considered the Guidelines’ sentencing range established for the applicable category of offense committed by the applicable category of Defendant. The Court believes that the Guidelines’ punishment is appropriate for this sort of offense. Therefore, the sentence in this judgment is consistent with a guideline sentence. The Court has considered the kind of sentence and range established by the Guidelines. The Court believes that a sentence of 97 days reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords adequate deterrence, protects the public, avoids unwarranted sentencing disparities among similarly situated defendants, effectively provides the Defendant with needed education or vocational training and medical care, and otherwise fully reflects each of the factors embodied in 18 U.S.C. Section 3553(a). The Court also believes the sentence is reasonable. The Court believes the sentence is sufficient, but not greater than necessary, to comply with the purposes set forth in the Sentencing Reform Act.

[ ] The court makes the following recommendations to the Bureau of Prisons:

[×] The defendant is remanded to the custody of the United States Marshal.

[ ] The defendant shall surrender to the United States Marshal for this district:

[ ] at on
[ ] as notified by the United States Marshal.

[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

[ ] before 2 p.m. on
[ ] as notified by the United States Marshal
[ ] as notified by the Probation or Pretrial Services Office.

RETURN I have executed this judgment as follows:

Defendant delivered on _________________________ to __________________________at _________________________ with a Certified copy of this judgment.

_________________________
UNITED STATES MARSHAL

Page 3

_________________________
DEPUTY UNITED STATES MARSHAL

Page 4

CRIMINAL MONETARY PENALTIES The defendant must pay the following total criminal monetary penalties in accordance with the schedule of payments.

[×] The Court hereby remits the defendant’s Special Penalty Assessment; the fee is waived and no payment is required.

+------------------------------------------+
¦Totals:¦Assessment  ¦Fine   ¦Restitution  ¦
+-------+------------+-------+-------------¦
¦       ¦$waived     ¦$0.00  ¦$0.00        ¦
+------------------------------------------+

SCHEDULE OF PAYMENTS Payments shall be applied in the following order (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal monetary penalties shall be due as follows:

The defendant will receive credit for all payments previously made toward any criminal monetary penalties imposed.

A [ ] In full immediately; or

B [ ] $ immediately, balance due (see special instructions regarding payment of criminal monetary penalties).

Special instructions regarding the payment of criminal monetary penalties:Criminal monetary penalties are to be made payable by cashier’s check, bank or postal money order to the U.S. District Court Clerk, 333 Lomas Blvd. NW, Albuquerque, New Mexico 87102 unless otherwise noted by the court. Payments must include defendant’s name, current address, case number and type of payment.

Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program, are to be made as directed by the court, the probation officer, or the United States attorney.

United States v. Gould, 672 F.3d 930 (10th Cir., 2012)

UNITED STATES of America, Plaintiff–Appellee, v. John GOULD, Defendant–Appellant. No. 11–2057. United States Court of Appeals, Tenth Circuit.

Summaries: Source: Justia A New Mexico jury convicted former prison guard Defendant-Appellant John Gould of two counts of depriving an inmate of his rights under color of law, and two counts of filing a false report. The convictions arose out of Defendant’s use of excessive force against two inmates in two different detention centers and his filing of false reports to cover the incidents up. On appeal, Defendant sought reversal of all the charges against him, arguing that the delay between his conviction and the entry of the final judgment violated his Sixth Amendment rights, and that the district court erred in excluding certain evidence. Finding no violation of Defendant’s constitutional rights, and finding that if there was an error in excluding the evidence, it was harmless, the Tenth Circuit affirmed the district court’s decisions. [672 F.3d 933]

Stephen D. Aarons of Aarons Law Firm PC, Santa Fe, NM, for Defendant–Appellant. Lisa J. Stark, Attorney, (Thomas E. Perez, Assistant Attorney General; Jessica Dunsay Silver, Principal Deputy Chief, with her on the brief), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, BALDOCK and TYMKOVICH, Circuit Judges.
BRISCOE, Chief Judge.
A New Mexico jury convicted John Gould, a former prison guard, of two counts of
depriving an inmate of his rights under color of law, in violation of 18 U.S.C. § 242, and two
counts of filing a false report, in violation of 18 U.S.C. § 1512(b)(3). These convictions arose
out of Gould’s use of excessive force against two inmates in two different detention centers,
and his subsequent filing of false reports to cover up the incidents. Gould seeks reversal of
his convictions and dismissal of all charges against him, arguing 1) that the delay between his
conviction and the entry of final judgment violated his Sixth Amendment right to a speedy
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-2-
trial; and 2) that the district court erred in excluding from evidence three memoranda he
wrote. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I
In 2002, Gould was employed as a lieutenant and shift leader at the Doña Ana County
Detention Center in New Mexico. On October 16, 2002, Gould asked two officers to move an
inmate from one cell to another, and they radioed back that the inmate was resisting. Gould
told the officers to standby and wait for him, but they continued to try to move the inmate.
Two other officers began to assist them, and then the four officers began assaulting the
inmate. Another officer who saw the fight sent out an “officer down” radio call to all the
officers in the facility. This officer also joined the assault. Gould responded and arrived to
find four or five officers on top of the inmate, with another forty-five officers looking on.
Gould twice pepper sprayed the inmate in the face and then assaulted him. The inmate was
badly injured, suffering three fractured ribs, a broken elbow, a fractured shoulder, bleeding
in the eye, and myriad bruises and abrasions. The following morning, Gould filed a false
report about the incident.
In August 2004, a grand jury returned an indictment charging Gould with deprivation of
rights under color of law and filing a false report. Five other officers also filed false reports
and were charged, but they ultimately entered into plea agreements and testified against
Gould.
The August 2004 indictment also contained two additional charges which arose out of a
separate incident that occurred at the Cibola County Detention Center. There, Gould shot
twelve rounds of nonlethal projectiles at a prisoner from close range, causing deep bruising
and an infected wound. As a result of the Cibola County incident, Gould was convicted of
deprivation of rights under color of law and filing a false report, but he does not raise any
evidentiary challenges regarding those convictions. But he does argue with respect to all four
convictions that the delay between his conviction and sentencing and
[672 F.3d 934]
the final entry of judgment violated his Sixth Amendment right to a speedy trial.1
A. District court proceedings
We relate the tortured procedural history of this case, which is punctuated by long,
inexplicable periods of delay. After a nine-day jury trial, the jury convicted Gould on all four
counts on April 2, 2007. Eight days later, on April 10, 2007, Gould filed a motion for a new
trial based on alleged Brady violations stemming from the government’s failure to produce
documents from 2003 regarding the Doña Ana County victim’s psychological state. The
district court denied the motion on January 2, 2008. Both parties filed several motions to
continue sentencing thereafter. On April 16, 2008, the government filed a motion to continue
and a motion to disclose to defense counsel a 2005 competency report which again pertained
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-3-
to the same Doña Ana County victim. On March 25, 2009, the court granted the motion to
disclose the 2005 competency report. On May 6, 2009, more than one year after his
conviction, the district court sentenced Gould to ninety-seven months on each count, with
the sentences to run concurrently. On that same date, May 6, 2009, Gould filed a renewed
motion for a new trial, which referred to the 2005 competency report. On November 18,
2010, Gould moved for reconsideration of his sentence, based on the delay between his
conviction and his sentencing and on the continuing delay between his sentencing and the
entry of final judgment. The district court entered the final judgment on January 19, 2011,
623 days after his sentencing and 1388 days after his conviction. The district court denied
Gould’s motion for reconsideration on February 23, 2011 and his renewed motion for a new
trial on March 16, 2011. Thereafter, Gould filed a timely notice of appeal.
Throughout the period that elapsed from his conviction until entry of final judgment,
Gould was held in administrative segregation. He was placed in administrative segregation
for his own protection because of his past employment as a prison guard. Gould was housed
in a single cell for twenty-three hours each day, removed only for exercise or showers. Gould
maintains that, had the final judgment been entered earlier, he would have been transferred
to a Bureau of Prisons facility where only inmates with law enforcement backgrounds are
held, and he would have been allowed to move from administrative segregation to general
population. Indeed, since entry of judgment, he has been transferred to such a facility and
placed into the general population. He has also advanced to trustee status, a designation that
offers an inmate some additional freedoms.
II
Gould raises two issues. First, he seeks “appropriate relief” 2 on the grounds
[672 F.3d 935]
that the trial court violated his Sixth Amendment right to a speedy trial by delaying
imposition of his sentence. 3 Second, he seeks reversal of his convictions on the grounds that
the district court erred in excluding as hearsay several memoranda Gould had written.
A. The district court did not violate Gould’s Sixth Amendment right to a speedy
trial.
1. Standard of review
We review Gould’s Sixth Amendment claim de novo, but accept the district court’s
factual determinations unless clear error is shown. United States v. Seltzer, 595 F.3d 1170,
1175 (10th Cir.2010); United States v. Lampley, 127 F.3d 1231, 1239 (10th Cir.1997). A
district court’s factual finding is clear error only if it “is simply not plausible or permissible in
light of the entire record on appeal.” United States v. Garcia, 635 F.3d 472, 478 (10th
Cir.2011).
2. The Period of delay
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-4-
The parties disagree about how we should calculate the period of delay, and whether all
or part of the period from conviction to the entry of final judgment should be considered.
Gould argues that the delay totals 1,388 days, which includes the period from his conviction
on April 2, 2007, until the court entered judgment on January 19, 2011. Aplt. Br. at 8. The
government argues that the delay totals only 765 days, which includes the period from
Gould’s conviction until his sentencing on May 6, 2009. The government suggests that we
not consider the delay between sentencing and entry of the final judgment. Aplee. Supp. Br.
at 42. In support of this view, the government relies on our statement in United States v.
Yehling that “[t]he Sixth Amendment guarantees all criminal defendants the right to a
speedy trial; we have applied this right from arrest through sentencing” as the basis for its
argument that the Sixth Amendment only requires a speedy trial through sentencing. Id. at
31 (citing United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir.2006)). However, Yehling
went on to apply the Sixth Amendment to a period after sentencing, which included
consideration of a motion for a new trial. Moreover, Yehling recognized the need to prevent
“unreasonable delay from arrest through sentencing and throughout the appellate
[672 F.3d 936]
process.” 456 F.3d at 1243. The defendant in Yehling also asserted a Fifth Amendment due
process claim, and the opinion could be read as relying on the Fifth Amendment for the
extension of the right to a speedy trial to any post-sentencing period. Id. We have not
explicitly addressed whether the right to a speedy trial includes the right to a timely entry of
judgment. As regards the present case, we will assume without deciding that the right to a
speedy trial extends to the entry of final judgment. See Dickey v. Florida, 398 U.S. 30, 44, 90
S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring) (“This Court has assumed,
arguendo, but has not decided, that the interval between judgment and sentencing is
governed by the [speedy trial] clause.”). Thus, in determining whether the delay violated
Gould’s Sixth Amendment right, we consider the entire 1,388 day period that elapsed from
Gould’s conviction until the entry of final judgment.4
In conducting our speedy trial analysis, we must first address whether we consider the
period as a whole, or as two periods: the period between Gould’s conviction and sentencing,
and the period from sentencing to entry of final judgment. The government and the district
court both break the delay into two periods. The district court first looked at the delay from
conviction to sentencing, and then separately considered the delay from sentencing to the
entry of final judgment. Gould does not explicitly contest the district court’s approach, but
his arguments address the period as a whole, and not as two separate periods. Aplt. Br. at 14.
We conclude that it is appropriate to consider the period of delay as a whole. The right to
a speedy trial is enumerated in the Sixth Amendment. The Sixth Amendment guarantees a
speedy trial, which requires the entire trial, start to finish, be speedy. As we are assuming
here that the right to a speedy trial extends to the entry of final judgment, we will consider
the entire period from conviction to entry of final judgment as a whole, and not on a
piecemeal basis.
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-5-
3. The delay did not violate Gould’s right to a speedy trial
To determine whether a particular delay violates a defendant’s right to a speedy trial, we
apply the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972):
(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his
right; and (4) prejudice to the defendant. None of the factors are necessary or sufficient;
rather, the factors are related and should be considered together with other relevant
circumstances.
Yehling, 456 F.3d at 1243 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182) (internal citations
omitted).
a. Length of delay
“The first factor, length of delay, functions as a ‘triggering mechanism.’ ” Id. (citing
Barker, 407 U.S. at 530, 92 S.Ct. 2182). The remaining factors are examined only if the delay
is first determined to be long enough to be presumptively prejudicial. Id. Here, both parties
agree that the length of delay is sufficient to trigger the remaining Barker factors. Aplee.
Supp. Br. at 42; Aplt. Br. at 8, 14.
[672 F.3d 937]
b. Reason for delay
We next assess the reason for the delay in this case. As a preliminary matter, we must
first determine what portion of the delay resulted from the defendant’s actions—a “[d]elay[ ]
attributable to the defendant do [es] not weigh against the government.” United States v.
Abdush–Shakur, 465 F.3d 458, 465 (10th Cir.2006). “[T]he reason for the delay[ ] ‘weighs
against the government in proportion to the degree to which the government caused the
delay.’ ” Yehling, 456 F.3d at 1244 (quoting United States v. Batie, 433 F.3d 1287, 1291 (10th
Cir.2006)).
The district court determined that Gould bore responsibility for 481 of the 764 days of
delay between conviction and sentencing because he had filed three motions for continuance
and also delayed his filing of a promised renewed motion for new trial for eleven months.
Although the district court noted that the government also filed three unopposed motions for
continuance, the district court noted the government’s April 16, 2008, motion to continue,
which resulted in 343 days of the 481 day delay, was sought to provide Gould time to file the
promised renewed motion for new trial. ROA, Vol. 1 at 781. Thus, the district court allotted
this period of delay to Gould. Id. In its April 16 motion to continue, however, the government
noted that Gould planned to file a renewed motion for new trial upon receiving a mental
health evaluation for the Doña Ana County victim. Id. at 649. The government filed a motion
to disclose that mental health evaluation on April 16, 2008, concurrent with its motion to
continue. Id. at 653. The district court failed to rule on the motion to disclose the mental
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-6-
health evaluation until March 25, 2009. Id. at 664. Therefore, attributing all of the 343 days
that elapsed after the government’s motion to continue to Gould was clear error, as it
appears that the district court’s delay in ordering disclosure of the 2005 report prevented
Gould from filing his renewed motion for new trial. Id. at 649, 658; Garcia, 635 F.3d at 478.
In light of the district court’s delay, we determine that the government bears responsibility
for the period of delay from April 16, 2008, to March 25, 2009. Gould then bears
responsibility for only 138 days of the 764 days of delay between conviction and sentencing.
The district court also found that the remaining delay of 623 days, between sentencing
and the entry of the final judgment, was the result of the court’s clerical error and thereby
attributable to the government. ROA, Vol. 1 at 797. Thus, in total, Gould bears responsibility
for roughly ten percent of the delay, while the government bears responsibility for the
remaining ninety percent. Because the government is responsible for the bulk of the delay,
this factor weighs against the government.
However, in determining how heavily the delay weighs against the government, we must
also assess the cause of the delay. Purposeful delay or delay to gain advantage weighs heavily
against the government, while “[a] more neutral reason such as negligence or overcrowded
courts [is] weighted less heavily.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Before the district
court, Gould expressly declined to allege that the government purposely delayed the
proceedings, stating that “this was not purposeful delay or purposeful delay to achieve some
sort of a benefit. This is just simple inadvertence and crowded calendars.” ROA, Vol. 3 at
281–82; see also id., Vol. 1 at 794 (trial court noting that Gould “[d]oes not assert intentional
delay”). Immediately after Gould made this statement, however, the prosecutor told the
court that she made periodic telephone inquires about the status of the
[672 F.3d 938]
final judgment, but did not file any motion seeking resolution of the matter, because, “as far
as filing anything on the record, frankly, Your Honor, my fear would be to induce exactly
what we’ve got here, to induce [Gould’s lawyer] to file a motion saying that there had been
some sort of delay that would necessitate further proceedings on this.” Id., Vol. 3 at 299.
Now, on appeal, Gould points to this statement to argue that the prosecutor may have been
purposefully complicit in the delay.
Given the arguments presented before the district court, Gould is now precluded from
arguing that the government’s delay was attributable to anything other than negligence or
inadvertence. After hearing the prosecutor’s statement, the district court provided Gould an
opportunity for further argument, but Gould did not avail himself of that opportunity.
“[F]ailure to raise an argument before the district court generally results in forfeiture on
appeal.” United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir.2007). “Nevertheless, this
court has recognized an exception where the argument involves a pure matter of law and the
proper resolution of the issue is certain.” Id. at 1202. The question Gould now presents is a
fact question regarding the government’s motivation in allowing the delay and/or
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-7-
purposefully refraining from filing a motion seeking entry of the final judgment, and
therefore does not fall within the issue-of-law exception.
While the government caused a majority of the delay in this case, we do not deem the
delay purposeful. This factor weighs in Gould’s favor, but not heavily.
c. Defendant’s assertion of his right
The defendant’s assertion of his right is “[p]erhaps [the] most important” of the four
Barker factors. Batie, 433 F.3d at 1291. “[T]he defendant’s assertion of the speedy trial right
is entitled to strong evidentiary weight in determining whether the defendant is being
deprived of the right.” United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (citations
and quotations omitted). While a defendant who fails to demand a speedy trial does not
inherently waive that right, “[w]e emphasize that failure to assert the right will make it
difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 532,
92 S.Ct. 2182. And the defendant’s burden of showing he desired a speedy trial “is not
satisfied merely by moving to dismiss after the delay has already occurred.” Batie, 433 F.3d
at 1291. Thus, if the defendant fails to demand a speedy trial, moves for many continuances,
or otherwise indicates that he is not pursuing a swift resolution of his case, this factor weighs
heavily against the defendant.
In the present case, the district court found that this factor weighed against Gould
because Gould made no effort to contact the court for eighteen months after the sentencing
on May 6, 2009, until he filed a motion for reconsideration of his sentence on November 18,
2010. ROA, Vol. 1 at 799. This eighteen-month period constitutes the great majority of the
twenty-month delay between sentencing and entry of judgment. Moreover, the November
2010 motion, which was filed more than forty-three months after his conviction, was the first
time Gould asserted his right to a speedy trial. Id. at 783. Gould’s counsel admitted that
Gould had not appropriately asserted his right: “I understand that there’s some concern that
the defendant didn’t [assert] his right as much as he should have, and I think that’s a fair
finding by the court.” Id. at 799. As a result of Gould’s long delay in asserting
[672 F.3d 939]
his right, this factor weighs heavily against him.
d. Prejudice to the defendant
“[A] showing of prejudice may not be absolutely necessary in order to find a Sixth
Amendment violation, [but] we have great reluctance to find a speedy trial deprivation where
there is no prejudice.” Perez v. Sullivan, 793 F.2d 249, 256 (10th Cir.1986). “In fact, it might
be said that once a defendant has been convicted it would be the rarest of circumstances in
which the right to a speedy trial could be infringed without a showing of prejudice.” Id.
“Prejudice is assessed in light of the interests the speedy trial and due process rights
were designed to protect: preventing oppressive incarceration, minimizing anxiety and
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-8-
concern of the defendant, and limiting the possibility that the defense will be impaired.”
Yehling, 456 F.3d at 1244–1245 (quotations and citations omitted). But the prejudice
calculus changes once a defendant has been convicted: “once a defendant has been convicted,
the rights of society increase in proportion to the rights of the defendant. Post-conviction
prejudice therefore must be substantial and demonstrable.” Id. (quotations and citations
omitted).
When addressing the potential for prejudice to the defendant, the possibility that the
defense will be impaired “is the most serious ‘because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system.’ ” Dirden, 38 F.3d at 1138 (citing
Barker, 407 U.S. at 532, 92 S.Ct. 2182). We have also given some weight to the anxiety and
concern of the defendant, but our cases suggest that we require the defendant to show some
“special harm suffered which distinguishes his case.” Id. Further, “the anxiety of an accused
is not to be equated for constitutional purposes with anxiety suffered by one who is
convicted, in jail, unquestionably going to serve a sentence, and only waiting to learn how
long that sentence will be.” Perez, 793 F.2d at 257.
Finally, once a defendant had been convicted, we have not considered conditions of
incarceration when determining prejudice, where a defendant claims that the conditions
would have been different after sentencing:
The benefits arguably available to defendant in [a different] penitentiary are entirely
speculative not only concerning whether he would have qualified, but also concerning the
extent to which he would have participated or benefited…. We decline to attach Sixth
Amendment speedy trial dimensions to amenities and benefits a convicted felon might
receive in one prison but not another.
Id. (footnote and citations omitted). Thus, the prejudice prong of the Barker test presents a
high bar for a defendant who has been convicted, and, as previously stated, failure to show
prejudice is nearly fatal to a speedy trial claim. Id. at 256.
In the present case, the district court found Gould failed to show that he was prejudiced
by the delay in his sentencing and the entry of judgment. Gould did not argue that the delay
impaired his defense, relying instead on allegations of psychological harm resulting from his
oppressive confinement and the oppressive confinement itself. ROA, Vol. 1 at 784, 789, Vol. 3
at 289–90. This alleged prejudice is foreclosed by our decision in Perez. In that case, as here,
the defendant claimed prejudice due to the conditions he encountered in one prison as
opposed to the conditions he expected to encounter in another, and we declined to extend
speedy trial protection for such speculative claims.
[672 F.3d 940]
Perez, 793 F.2d at 257. Moreover, an inmate has other avenues available to challenge
conditions of confinement, which counsels against our extending Sixth Amendment
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-9-
protection to this type of claim. Thus, Gould does not show that he was prejudiced from the
delay, which weighs heavily against him.
e. Assessing the four factors
On the whole, the four factors favor denial of Gould’s Sixth Amendment speedy trial
claim. While the length of the delay suffices to trigger a Barker analysis, and the reason for
the delay weighs lightly in Gould’s favor, his failure to adequately assert his speedy trial
rights and his inability to show prejudice weigh heavily against him. In particular, because
“we have great reluctance to find a speedy trial deprivation where there is no prejudice,” his
failure to show prejudice alone is nearly fatal to his claim. Id. at 256. Balancing these factors,
we must conclude that Gould has not established a Sixth Amendment speedy trial violation.
While this result is troubling given the lengthy delay from conviction to the entry of final
judgment, a delay which certainly exceeded the norm of timely criminal case processing, it
does not rise to the level of a constitutional speedy trial violation.
B. Any district court error in excluding the memoranda was harmless.
Gould argues the district court erred in excluding three memoranda he wrote and sent
to Major Barela, his supervising officer: (1) a memorandum expressing Gould’s concern over
pranks by other officers (the prank memorandum), (2) a memorandum stating Gould’s belief
that the officers who attempted to extract the prisoner may have been lying to him about
what happened before he arrived (the lying memorandum), and (3) a memorandum asking
for a state police investigation of the altercation with the prisoner (the investigation
memorandum). In response to objections raised by the government, the district court held
that all three documents were hearsay, offered for the truth of the matter asserted in the
documents, and excluded them. However, the district court did allow Gould to testify as to
his writing of the memoranda, as well as their contents.
Gould made no argument for admission of the first report over the government’s
objection, but did argue that the second and third documents should have been admitted
under Federal Rule of Evidence (FRE) 106: “[i]f a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to be considered at
the same time.” Gould sought to admit the documents to provide context for reports offered
by the government that contained Gould’s false statements about the altercation. On appeal,
Gould reasserts his FRE 106 argument, and also argues for the first time that the memoranda
should also have been admitted for non-hearsay purposes, to show that Gould had accused
other officers of misconduct and called for an investigation. Although Gould also argues that
the government objected to the memoranda on relevance grounds, we need not address this
argument as we note from the trial transcript only hearsay objections were raised. ROA, Vol.
4, Trial Vol. 7 at 252–54, 287–89, 294–95.
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-10-
The prank memorandum describes Gould’s concern over a series of pranks in 2001 that
involved Officers Tagert, Fraembs, and Gonzales, Sergeant Freeland, and Lieutenant
Schlender. As a result of the memorandum, Lieutenant
[672 F.3d 941]
Schlender ultimately resigned. Officers Tagert, Fraembs, and Gonzales and Sergeant
Freeland all testified against Gould at trial, although Gould only questioned Sergeant
Freeland about the prank memorandum. She stated that she believed Gould was not an
honest person, based largely on her belief that his statements in the prank memorandum
were dishonest. Sergeant Lopez, who also testified against Gould, stated that she had heard
about the memorandum and Lieutenant Schlender’s subsequent resignation, and testified
that she was intimidated by Gould. During his own testimony, Gould sought to introduce the prank memorandum after testifying as to its contents. After the government’s hearsay objection, Gould did not counter the objection but simply moved on. On appeal, Gould argues that the prank memorandum should have been admitted to show that he had reported the officers’ prior alleged misbehavior, which would suggest that they had a reason to dislike and testify against him.
The lying memorandum expresses Gould’s concern that the officers who were already
fighting with the inmate when Gould arrived may have lied to him about events leading up to the altercation. Hoping to show his good intentions and to counter the false report charges, Gould sought to admit the memorandum to show that he expressed his misgivings about the incident almost immediately after it ended. When the government objected on hearsay
grounds, Gould argued first that the document went to his state of mind and then that the document should be allowed in under FRE 106.
The investigation memorandum apparently indicates that Gould wanted an outside
investigation of the altercation, and Gould sought to offer it to show that he wanted a
thorough investigation, not a coverup. Although we granted Gould’s motion to supplement the record on appeal with the three excluded memoranda, only two of the excluded memoranda have been provided. An unrelated memorandum on guard training methods was submitted instead of the investigation memorandum.5 Supp. ROA at 2. Although our review of the investigation memorandum’s exclusion would have been facilitated by its inclusion in the record on appeal, the trial transcripts contain sufficient information about the contents of the memorandum for us to consider the issue. Even if we were to assume that the exclusion of all three memoranda was error, the error was harmless. “A non-constitutional error, such as the admission or exclusion of impeachment evidence, is subject to harmless error analysis.” United States v. Clifton, F.3d 1173, 1179 (10th Cir.2005). “[A] non-constitutional error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” Id. (quoting United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir.2004)). The court allowed Gould to testify in detail as to the contents of all three memoranda. Further, the United States v. Gould, 672 F.3d 930 (10th Cir., 2012) -11- contents of the memoranda were not disputed; the government’s witnesses ratified Gould’s testimony about the memoranda. For example, Sergeant Lopez testified that Gould [672 F.3d 942] repeatedly stated his belief that the officers who had been instructed to move the prisoner were not telling Gould the truth about their actions leading up to the altercation, and officers involved in the beating testified that Gould instigated the investigation against them. The exclusion of evidence is harmless when the substance of the excluded evidence comes before the court through other means. United States v. Bowling, 619 F.3d 1175, 1184 (10th Cir.2010) (holding exclusion of evidence was harmless error when the evidence was at most cumulative).
III
The judgment of the district court is AFFIRMED.
——–
Notes:
1. The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
2. Gould does not specify the “appropriate relief” he seeks. Gould first raised his speedy
trial claim in a motion for reconsideration, and the district court correctly concluded that it lacked the power to modify his sentence. See United States v. Mendoza, 118 F.3d 707, 709 (10th Cir.1997) (“A district court does not have the inherent power to modify a previously imposed sentence; it may do so only pursuant to statutory authority.”); 18 U.S.C. 3582(c) (giving district courts authority to modify a sentence in three circumstances: upon motion of the Director of the Bureau of Prisons, under Rule 35 or other Federal Rules of Criminal Procedure, or where the Sentencing Commission has lowered the sentencing range). Courts may reduce a prisoner’s sentence for a Sixth Amendment violation, but only when the prisoner seeks the reduction under a statute granting the court such authority. For example, a prisoner may seek resentencing in a habeas petition based on a Sixth Amendment violation. See, e.g., Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir.1991). In the present procedural setting, our power is limited; the only relief we could possibly grant would be to dismiss the charges against him, and given that the delay here is post-conviction, even that is questionable. United States v. Seltzer, 595 F.3d 1170, 1181 (10th Cir.2010) (affirming district United States v. Gould, 672 F.3d 930 (10th Cir., 2012) [12] court’s dismissal with prejudice of charges against a defendant due to a two-year preconviction delay).
3. Gould includes the phrase “due process” in his statement of issues on appeal, but then
only cites the Sixth Amendment in support of his argument. The Sixth Amendment does not offer due process protection, and Gould does not make any the Fifth Amendment due
process arguments. Accordingly, we do not address any due process claims. See Fed. R.App. P. 28(a)(9)(A) (“[T]he argument … must contain … appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”)
4. As this court has noted, however, “the extension of Sixth Amendment speedy trial
safeguards past the transition from accused to convict will not be entirely free of doubt until the Court directly examines and resolves the question.” Perez v. Sullivan, 793 F.2d 249, 253 n. 2 (10th Cir.1986).
5. Gould refers to the guard training memorandum and discusses its content in his brief.
Aplt. Br. at 2. He then references the investigation memorandum, as if the investigation
memorandum were the memorandum he had just discussed. Id. The two memoranda are
clearly different, however, and the guard training memorandum does not appear to have
been an issue in the trial. The government pointed out Gould’s error, but Gould failed to file any reply brief or otherwise respond in any way to this apparent record mixup.
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US v. Maestas, 639 F.3d 1032 (10th Cir 2011)
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639 F.3d 1032

UNITED STATES of America, Plaintiff–Appellee,
v.
Moses Earnest MAESTAS, Defendant–Appellant.

No. 10–2226.

United States Court of Appeals, Tenth Circuit.

[639 F.3d 1033]

Stephen D. Aarons, Aarons Law Firm PC, Santa Fe, NM, for Defendant–Appellant.John C. Anderson, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff–Appellee.Before MURPHY, HARTZ, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Defendant–Appellant Moses Earnest Maestas appeals from the district court’s denial of his motion to suppress evidence—specifically, forty-two grams of methamphetamine and a handgun—seized from an enclosed garbage storage area. Mr. Maestas argues that he had a reasonable expectation of privacy in the place where the evidence was seized, and that the seizure

[639 F.3d 1034]

therefore violated his Fourth Amendment rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s denial of Mr. Maestas’s motion to suppress.

BACKGROUND

On June 29, 2009, the Federal Bureau of Investigation and the Albuquerque, New Mexico, police department arranged for an undercover officer to make a controlled purchase of methamphetamine from Mr. Maestas. The law enforcement officers expected the purchase to take place at a triplex residential unit located at 13101 Mountain Road NE in Albuquerque, New Mexico. The Mountain Road residence was rented by a man known as “Road Dog,” R., Vol. III, at 8–9 (Suppression Mot. Hr’g Tr., dated Mar. 4, 2010), but Mr. Maestas had spent a considerable amount of time there over the preceding three months.

The officers observed Mr. Maestas pull up in a maroon Nissan Maxima car and enter the residence. Before entering the home, however, he “place[d] a black firearm in the small of his back.” R., Vol. I, at 20 (Plea Agreement, filed Mar. 9, 2010). Once inside, Mr. Maestas “pulled out a ziplock bag that contained clear crystalline substance and started running his fingers through the contents of the ziplock bag.” Id. Mr. Maestas then realized that he needed scales to weigh the drugs, so he gave his brother (who was present at the residence) forty dollars and sent him out to purchase scales.

Shortly thereafter, Mr. Maestas received a phone call informing him that law enforcement had the house surrounded. Mr. Maestas then took the ziplock bag of methamphetamine and went out the back door. As he stepped out, “he looked around,” reached “to the small of his back,” and walked toward the enclosed garbage storage area adjacent to the residence. R., Vol. III, at 32. Mr. Maestas disappeared momentarily inside the fenced-in area; during that time, the observing officer “could not see him.” Id. Once he reemerged, Mr. Maestas attempted to re-enter the residence, but the undercover officer had locked him out. Mr. Maestas was then arrested. The officers subsequently searched the enclosed garbage storage area and “discovered a black hand-gun placed near a fence and behind a garbage can” and “a ziplock bag that contained the crystalline type substance inside one of the garbage cans.” R., Vol. I, at 21. The bag contained forty-two grams of methamphetamine.

Mr. Maestas was charged with one count of distributing five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), one count of possessing with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(a). Mr. Maestas moved to suppress the methamphetamine and firearm recovered from the property; these items served as the basis for the second and third counts.¹ Mr. Maestas argued that he had a reasonable expectation of privacy in the enclosed garbage storage area because (1) he was a guest in the home and, consequently, should be afforded the protections of the Fourth Amendment, and (2) the Fourth Amendment protections applicable

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to the residence extended to the enclosed garbage storage area, which is within the curtilage of the home. The district court denied the motion, holding that

Defendant Maestas failed in his burden to establish a privacy interest in the dwelling and certainly not the exterior, common garbage area where the physical evidence was located. Accordingly, Maestas lacked a subjective expectation of privacy necessary to challenge the search…. [E]ven if Maestas’ connection to the home had been less tenuous and he was the type of overnight guest to which Fourth Amendment privacy expectation has been assigned, the items were located i[n] an area shared with other apartment residents where garbage is placed outside for pickup. Surely Defendant Maestas has established no legitimate, reasonable expectation of privacy in that area.R., Vol. I, at 30 (Mem. Op. & Order Denying Def.’s Mot. to Suppress, filed Apr. 5, 2010).

Mr. Maestas pleaded guilty to all three counts, reserving his right to appeal the district court’s denial of his motion to suppress. This timely appeal followed.

STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, “we consider the totality of the circumstances and view the evidence in a light most favorable to the government.” United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002) (quoting United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.1999)) (internal quotation marks omitted). The district court’s factual findings are reviewed for clear error, and “the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo.” Id. (same). “The burden of proof is on the defendant to demonstrate that he has a reasonable expectation of privacy in the place searched….” United States v. Johnson, 584 F.3d 995, 998 (10th Cir.2009).

DISCUSSION

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A defendant invoking the protection of the Fourth Amendment “must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (emphasis added); see also United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) (“It is well-established that ‘the Fourth Amendment is a personal right that must be invoked by an individual.’ ” (quoting Carter, 525 U.S. at 88, 119 S.Ct. 469)). In order to meet this burden, “the defendant must show that he had a subjective expectation of privacy in the premises searched and that ‘society is prepared to recognize that expectation as reasonable.’ ” Higgins, 282 F.3d at 1270 (quoting United States v. Conway, 73 F.3d 975, 979 (10th Cir.1995)).

Under the Fourth Amendment, it is axiomatic that people have a reasonable expectation of privacy in their own homes. Griffin v. Wisconsin, 483 U.S. 868, 884, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). However, “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.” Carter, 525 U.S. at 89, 119 S.Ct. 469. For example, in Minnesota v. Olson, the Supreme Court held that an overnight guest has a reasonable expectation of privacy in the home of his host. 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Extending this principle further, this court

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has “held that a social guest who does not stay overnight has a reasonable expectation of privacy” in the host’s property. Poe, 556 F.3d at 1122 (citing United States v. Rhiger, 315 F.3d 1283, 1286 (10th Cir.2003)). In order for a social guest to qualify for protection under the Fourth Amendment, there must be a “degree of acceptance into the household,” Rhiger, 315 F.3d at 1286 (quoting Carter, 525 U.S. at 90, 119 S.Ct. 469) (internal quotation marks omitted), or an “ongoing and meaningful connection to [the host’s] home” establishing the person’s status as a social guest, id. at 1287.

On the other hand, “an individual does not possess an expectation of privacy to challenge the search of another’s property when he or she is present solely for commercial or business reasons” and otherwise has no meaningful connection with the home. Id. at 1286 (citing Carter, 525 U.S. at 90–91, 119 S.Ct. 469). More specifically, in Carter, the Supreme Court found no expectation of privacy when the defendants were in the home for the sole purpose of packaging cocaine for distribution—they were “not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours,” and “[t]here [wa]s no suggestion that they had a previous relationship with [the resident of the home], or that there was any other purpose to their visit.” 525 U.S. at 90, 119 S.Ct. 469.

Initially, Mr. Maestas argues that his relationship with Road Dog and the three-month period during which he frequented the residence “established a ‘meaningful connection’ to the apartment and an expectation of privacy there.” Aplt. Reply Br. at 3. Mr. Maestas testified that during the three-month period preceding his arrest he was at the house “on a regular basis,” R., Vol. III, at 9, that he frequently “stayed there overnight” when he was using drugs, id. at 10, that he would “shower there” and “g[e]t cleaned up there,” id. at 12, that he would spend time there “talk[ing] to [Road Dog] … about life,” id. at 16, and that “Road Dog [did not] have any problem with the fact that [he] w [as] staying the night there at his Mountain Road residence,” id. at 10. On the other hand, the government argues that “the record is clear that on the day of his arrest, Maestas was present at the Mountain Road apartment for no purpose other than to conduct an illegal narcotics transaction,” and therefore he “had no reasonable expectation of privacy in the Mountain Road apartment.” Aplee. Br. at 8.

As stated above, the district court concluded that Mr. Maestas’s “connection to the home had been [too] tenuous and he was [not] the type of overnight guest to which Fourth Amendment privacy expectation has been assigned.” R., Vol. I, at 30. Accordingly, the district court concluded that the search did not violate the Fourth Amendment. We need not, however, definitively decide this issue. In this instance, we assume without deciding that Mr. Maestas was a social or overnight guest at Road Dog’s residence and that for Fourth Amendment purposes his expectation of privacy was coterminous with the expectation of privacy of the tenant, Road Dog. Under these assumptions, Mr. Maestas had a reasonable expectation of privacy in the apartment. But that does not necessarily resolve the issue of whether Mr. Maestas—standing in the shoes of the tenant, Road Dog—had a reasonable expectation of privacy in the garbage storage area adjacent to the triplex residence. That is the issue before us for decision.

Mr. Maestas argues that the garbage storage area is within the curtilage protected by the Fourth Amendment, while the government argues that it is not. Under well-settled Fourth Amendment jurisprudence,

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the privacy expectation that one has in the home generally extends to the “curtilage” of the home. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir.2007). “Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom v. Romero, 616 F.3d 1108, 1128 (10th Cir.2010) (brackets omitted) (quoting Reeves, 484 F.3d at 1254) (internal quotation marks omitted). In determining whether an area around a home is within the “curtilage,” the court generally considers four factors: “(1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the house; (3) the manner in which the area is used; and (4) the steps the resident has taken to protect the area from observation.” Id.

Regarding the first, second, and fourth factors, the evidence presented in this case demonstrates that the garbage storage area at issue abuts one unit of the triplex, is enclosed by a fence, and is largely shielded from observation. See R., Vol. III, at 17–18, 32 (stating that the area was “an enclosed area adjacent to the residence,” surrounded by a “coyote fence,” and that the officer “could not see” Mr. Maestas when he entered the area). However, as stated above, “curtilage” is defined as “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom, 616 F.3d at 1128. Consequently, our observation that “it is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home” is at least arguably relevant to our assessment of the third factor. United States v. Long, 176 F.3d 1304, 1308 (10th Cir.1999).² However, ultimately we need not opine on whether the garbage storage area located outside Road Dog’s residence is in fact within the curtilage. Even assuming, arguendo, that it is, Mr. Maestas cannot demonstrate that he had a reasonable expectation of privacy in the area.

Road Dog lived in a multi-unit residential complex—namely, a triplex. Thus, the garbage storage area was not used exclusively by Road Dog and his guests; to the contrary, it was used by at least two other tenants in the triplex (and presumably their guests), and it was accessible by the landlord (and presumably his or her agents). See R., Vol. III, at 14 (stating that the area contained “three trash cans” that were used by the “three residents at the apartment complex”). The government argues that “[t]he communal nature of the garbage area defeats any argument that Maestas maintained a legitimate expectation of privacy in that space.” Aplee. Br. at 10–11. Although we have stated in dicta that “[a]partment tenants who move personal items into a common hallway cannot reasonably believe those items will be left uninspected,” United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir.2007), we have never definitively ruled on whether an individual can have a reasonable expectation of privacy in the common or shared areas of a multi-unit residential

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dwelling, see United States v. Martin, 613 F.3d 1295, 1299 & n. 1 (10th Cir.2010) (recognizing the “disagreement among our sister courts about the Fourth Amendment status of apartment building common areas,” but finding it “unnecessary to resolve whether [the defendant] possessed a reasonable expectation of privacy in the apartment building’s atrium or entryway”).

In general, most circuit courts have found that “shared” or “common” areas in apartment complexes or multi-unit dwellings, such as hallways, entryways, and basements, are not areas over which an individual tenant can have a reasonable expectation of privacy. See, e.g., United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir.2002) (holding that “tenants in a large, high-rise apartment building, the front door of which has an undependable lock that was inoperable on the day in question, [do not] have a reasonable expectation of privacy in the common areas of their building”); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.1993) (holding that a tenant in an apartment complex “has no reasonable expectation of privacy in the common areas of the building”); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir.1992) (holding that the defendant did not have a reasonable expectation of privacy in the shared hallway or the backyard of a three-story, multi-unit apartment building); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (holding that an apartment tenant does not have “a reasonable expectation of privacy in the hallway of the apartment building”). The general reasoning behind this conclusion, as the Eleventh Circuit explained in Miravalles, is that apartment tenants

have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like. The reasonableness of a tenant’s privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control.

280 F.3d at 1332 (citations omitted).³

Most courts have found this reasoning applies even to multi-unit complexes with a small number of units, such as duplexes. See, e.g., United States v. McCaster, 193 F.3d 930, 933 (8th Cir.1999) (holding that a tenant of a two-unit complex had no reasonable expectation of privacy in the shared hall closet of the dwelling, which was accessible by two other tenants and the landlord); United States v. Holland, 755 F.2d 253, 255 (2d Cir.1985) (holding that the defendant did not have a reasonable expectation of privacy in the entryway of a two-unit dwelling); see also United States v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (holding that the defendant had no Fourth Amendment right to privacy in the basement of a four-apartment residence, which was accessible to all tenants

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and the landlord, even though the officer “gained entry to the basement as an uninvited person”).⁴

On the other hand, at least one court has recognized that under certain unique circumstances a different result may be warranted—specifically, when all the occupants of a multi-unit residential dwelling have a familial or other special relationship with each other. In United States v. King, the Sixth Circuit held that the defendant “had a reasonable expectation of privacy in the basement of the two-family duplex where he resided,” when “he shared the downstairs unit with his brother while his mother and siblings resided in the upstairs unit.” 227 F.3d 732, 748–50 (6th Cir.2000). In other words, the defendant had a valid privacy interest in the shared basement of the two-unit residential dwelling because, among other things, the residents were all “family members.” Id. at 749; see also United States v. Mendoza, 281 F.3d 712, 721 (8th Cir.2002) (Bye, J., dissenting) (disagreeing with the majority’s holding that the defendant did not have a Fourth Amendment privacy interest in the vestibule of a duplex because, among other reasons, “[t]he only two tenants of the duplex were boyfriend and girlfriend, and thus they shared a common interest in excluding the public from the common vestibule”).

Keeping these principles in mind, we need not establish any bright-line rules that would generally define the Fourth Amendment’s reach over common or shared areas of multi-unit residential dwellings. See United States v. Holt, 264 F.3d 1215, 1231 (10th Cir.2001) (en banc) (per curiam) (“Because of ‘the fact-specific nature of the reasonableness inquiry,’ the Supreme Court has generally ‘eschewed bright-line rules’ in the Fourth Amendment context.” (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996))), abrogated on other grounds as stated in United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir.2007); see also United States v. Villegas, 495 F.3d 761, 767 (7th Cir.2007) (noting that the inquiry “is necessarily fact dependent, and whether a legitimate expectation of privacy exists in a particular place or thing must be determined on a case-by-case basis” (citations omitted) (internal quotation marks omitted)). We conclude that on the particular facts of this case Mr. Maestas has failed to demonstrate that he had a subjective expectation of privacy in the garbage storage area which society is willing to accept as being objectively reasonable. First, the fact that this was a common area shared by all three tenants (and presumably their guests) and the landlord (and presumably his or her agents) weighs against a conclusion that Mr. Maestas had a reasonable expectation of privacy in the area. See, e.g., McCaster, 193 F.3d at 933 (finding no Fourth Amendment right to privacy in the hall closet of a two-unit dwelling when “[t]he evidence showed that two other tenants, as well as the landlord, had access to the closet”); McGrane, 746 F.2d at 634 (holding that the tenant did not have a reasonable expectation of privacy in the common storage area of the complex, which was “accessible to all tenants and the landlord”); see also Barrows, 481 F.3d at 1249 (“Apartment tenants who move personal items into a common hallway

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cannot reasonably believe those items will be left uninspected.”).

Second, Mr. Maestas has not demonstrated that Road Dog had any sort of familial or other special relationship with the other tenants—as in King—that might warrant a different result. See 227 F.3d at 748–50. Finally, the area in question was located outside of the multi-unit complex and was used to store cans of garbage. Cf. Long, 176 F.3d at 1308 (“[I]t is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home.”). Under these specific facts, it cannot be said that Mr. Maestas had a reasonable expectation of privacy in the shared garbage storage area of Road Dog’s triplex. Accordingly, the district court did not err in denying the motion to suppress.

CONCLUSION

Based on the foregoing, we AFFIRM the district court’s denial of Mr. Maestas’s motion to suppress the methamphetamine and firearm.

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Notes:
1. The first count was based on a June 8, 2009, controlled transaction in which Mr. Maestas sold an officer eighteen grams of methamphetamine. This transaction and the resulting charge were not implicated by the motion to suppress, and Mr. Maestas does not challenge his conviction on this count on appeal.
2. In Long, police officers “seized three garbage bags from atop a trailer parked near [the defendant’s] garage.” 176 F.3d at 1306. On appeal, we concluded that “the district court’s determination that the trailer was outside the curtilage [was] not clearly erroneous.” Id. at 1308. In noteworthy respects, however, the garbage area in Long differs from the one at issue here. In Long, “no fence or other barrier enclosed the trailer,” and the defendant did not “attempt[ ] in any way to shield [the trailer] from public view.” Id.
3. But see United States v. Carriger, 541 F.2d 545, 549–50 (6th Cir.1976) (holding that “a tenant in an apartment building has a reasonable expectation of privacy in the common areas of the building not open to the general public,” where the apartment building was locked and the officer gained access to the common area “without permission” by entering the complex as several workmen left the building). The Sixth Circuit has recognized that Carriger is “outside of the mainstream” in finding a reasonable expectation of privacy in such common areas and has declined to move further in this regard by broadly applying its holding. United States v. Dillard, 438 F.3d 675, 683 (6th Cir.2006); see Nohara, 3 F.3d at 1242 (“[W]e join the First, Second, and Eighth Circuits which have rejected this [ Carriger ] rationale and held an apartment dweller has no reasonable expectation of privacy in the common areas of the building whether the officer trespasses or not”).
4. But see United States v. Fluker, 543 F.2d 709, 716 (9th Cir.1976) (holding that the defendant had a reasonable expectation of privacy in the shared hallway of a duplex, where the door to the hallway was “always locked and [ ] only the occupants of the two apartments and the landlord had keys thereto”); Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974) (holding that the defendant had a reasonable expectation of privacy in the shared backyard of a four-unit complex).
[/column]

Category: Crime

State v. Marino Leyba, NM Sup Court 2012-NMSC-037