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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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Wikipedia

Stephen D Aarons (born: November 23, 1954) is a New Mexico attorney, born in St. Louis and noted for representing clients in death penalty and high profile cases. These include the successful appeal in 2012 of the Marino Leyba, Jr., double murder conviction, and the 2008 Robertson High School hazing case.^[3] ^[4]^[5] Aarons is an active member in good standing of the New Mexico and Missouri State bar associations, and has been a member of the bar of the United States Supreme Court since 1983.^[6] In 1993 Aarons received an AV rating from Martindale-Hubbell,^[7]^[8], and holds the highest possible ratings from Avvo,^[9] Superlawyers,^[10] and the National Trial Lawyers Association (USA)^[11]

Career

Early Career

At the 1975 College Democrats of America convention in Atlanta, Aarons was elected National President and he was reelected the following year at the The Mayflower in the District of Columbia. Aarons participated in a State Department sponsored trip with the United States Youth Council to visit Egyptian President Anwar Sadat and retired Israeli Prime Minister Golda Meir as a precursor to their Camp David Accords.^[12] After law school, Aarons began his practice of law as a VISTA lawyer in Great Falls, MT. Much of this work was devoted to general civil litigation and misdemeanor defense for Native American clients including members of the Niitsítapi or Blackfeet Nation. Aarons was then commissioned as a United States Army Judge Advocate. After completing the Basic Course, Aarons was assigned to the VII Corps in Augsburg, (West) Germany. Months later, Aarons received orders to serve as the Command Judge Advocate for the United States Army Field Station Augsburg. During three years on active duty in Augsburg, Aarons prosecuted over 50 courts-martial and acted as individual defense counsel in the murder trial of an American Serviceman in Nürnberg, (West) Germany and served in that capacity in several other courts-martial throughout Europe.^[13] Aarons was a SOFA legal observer for criminal trials in Germany courts against defendants who were United States citizens and also inspected German prisons where United States citizens remained in custody. In 1983, Aarons was admitted to the bar of the Supreme Court of the United States.^[14]

Oxford Debate

After Aarons completed his three year tour of active duty, he remained in Europe and studied International Law at Oxford University while residing with the De La Salle Brothers and Greyfriars at their 1 Marston Ferry residence. During residence, Aarons taught University of Maryland evening law courses to US airman at RAF Upper Heyford. Aarons agreed to take the Second Affirmative in a Oxford Union debate entitled “There is no moral difference between the foreign policies of the United States and the Soviet Union.” British Leftist Professor E. P. Thompson and US Secretary of Defense Caspar Weinberger were the keynote speakers. Aarons, then a US Army Reserve Captain and Judge Advocate, spoke in favor of the proposition in part because of widespread concerns over the USS New Jersey recently firing hundreds of rounds from its 16″ guns into Beruit, Lebanon, destroying a hospital and killing countless civilians (See USS New Jersey in the Lebanese Civil War), all in retaliation for the suicide bombing of 288 US Marines there. (See 1983 Beirut Barracks Bombing). Both Thompson and Weinberger referred to Aarons’ argument, Weinberger straying from his typed script^[15] to praise the young Captain while pointing out that such dissent by a Soviet counterpart might have resulted in his court-martial! ^[16]. Somewhat surprisingly, Weinberger won this debate, by a vote of 271 to 240, ^[17] thereby astonishing the American embassy staff in London, which had urged him not to participate in it, ^[18] and eliciting a congratulatory phone call early the next morning from British Prime Minister Margaret Thatcher. ^[19] According to John Lewis Gaddis in his article “On Moral Equivalency and Cold War History” in Ethics & International Affairs, Volume 10 (1996), Weinberger was instrumental later that month in withdrawing the USS New Jersey and formulating a different strategy for the United States in the Middle East. ^[20]

Capital Defender

By 1985, Aarons had returned to the United States and became employed as an assistant public defender in Clovis, New Mexico, moving the next year to Santa Fe. There he was assigned as defense counsel in several dozen death penalty cases. He assisted Governor Toney Anaya in the commutation of death sentences for all five death row inmates in New Mexico including Aarons’ client Eddie Lee Adams,^[21] due to growing opposition in New Mexico to capital punishment. Even after Aarons left the public defender department for private practice, he continued to accept assignments under Public Defender contract to handle death penalty cases until 2009, when New Mexico Governor Bill Richardson signed into law a bill abolishing capital punishment in thst state.^[22]

Private Practice

In 1989 until 1992, Aarons practiced civil and criminal law at the Jones Firm^[23] in Santa Fe. Since November 1992 he has remained in private practice as the managing partner of Aarons Law Firm PC,^[24] accepting state and federal criminal cases throughout New Mexico.

Notable Cases

Torreon Cabin Murders

In 1997 Aarons was hired to represent Shaun Wilkins, who was accused with three others in the 1995 murders of Ben Anaya Jr., 17; his girlfriend, Cassandra Sedillo, 23; and her two sons, Matthew Garcia, 3, and Johnny Ray Garcia, 4. The four were found dead in a cabin in April of 1996 in the Manzano Mountains near Torreon, New Mexico.^[25] The case against Wilkins was weak,^[26]^[27] the trial ended with a hung jury, and the district attorney eventually declined to retry the case.^[28] ^[29] In 2002 Wilkins and codefendant Roy Buchner hired civil rights attorney Ray Twohig to file a lawsuit against police for malicious prosecution in the Torreon case. In January 2011 a federal jury declined to award damages to them.^[30] Two other defendants were found guilty; Lawrence Nieto was convicted before the Wilkins trial and was originally sentenced to 130 years in prison. Errors in the prosecution caused Nieto’s conviction to be overturned, and before Nieto’s retrial he brokered a plea agreement involving a 39 year sentence. NM Corrections officials have twice mistakenly released Nieto. ^[31]

Robert Fry Trials

In 2002 Aarons accepted a special NM Public Defender contract to represent Robert Fry, who had already been convicted in the death of Betty Lee, 36 from Shiprock, NM. Fry had received a death sentence for the Lee murder but was also facing first degree murder counts involving the 1996 fatal stabbings of 18-year-old Matthew Trecker and 25-year-old Joseph Fleming at a counter culture store in Farmington, NM, and throwing 40-year-old Donald Tsosie off a cliff in Navajo country.^[32] During a police interview, Fry implicated himself in the earlier crimes and gave detailed “theories” of how the crimes were carried out. ^[33]^[34] Robert Fry was found guilty again in the Tsosie trial, and a third time in the Trecker and Fleming trial. Unlike the death sentence in Lee, the juries in Tsosia and Trecker/Fleming did not impose the death penalty. Despite New Mexico’s abolition of capital punishment, Robert Fry and another man were grandfathered and, as a result, Fry remains on death row awaiting execution for the muirder of Betty Lee.^[35]

LANL Security Breach

The family of Jessica Quintana hired Aarons in 2006 to represent her for sneaking classified documents out of the Los Alamos National Laboratory (LANL). Hired right out of high school, Quintana could not finish her work before the contract deadline and decided to take some of the classified work home; she walked unchallenged into her top secret vault and downloaded information onto a computer flash drive. She also removed 228 pages of classified documents about underground nuclear weapons tests in the 1970s, and took the material home.^[36] The case received international attention from the media including a special report by CBS Evening News, a front page article in Newsweek,^[37] and articles in the London Times and the Washington Post.^[38] As soon as Aarons brokered a plea bargain with the Department of Justice, Quintana pled guilty to one misdemeanor, received one year of supervised release, and cooperated fully with FBI investigators.^[39]

Tak and Pung Sil Yi Murder

In 2007 Tak and Pung Sil Yi were brutally murdered in their Albuquerque home. Two magazine salespeople, Michael Lee and Travis Rowley, were charged with capital murder. Aarons acted as defense counsel for Rowley, while Lisa Hood acted for Michael Lee. Defense counsel argued Rowley’s confession was obtained via trickery, which was supported by the lack of forensic evidence linking the pair to the crime. Charges were eventually dismissed after another man, Clifton Bloomfield, connected to the scene by forensic evidence, confessed to the murders. ^[40]^[41]. The City of Albuquerque settled with Lee in his civil rights lawsuit, agreeing to pay him $950,000 in damages.^[42]. Rowley’s suit is pending trial.

Robertson High School Hazing Case

In 2008, the national media learned of a hazing incident at the Robertson High School in Las Vegas, New Mexico.^[43] involving five football players as respondents: Michael G (age 17); Lucas M (17); and Steven G (17); Marcus G (16); and, Santiago A (16). Santiago’s family hired Aarons, who maintained the allegations were overblown and, while a horrible hazing situation had occurred, Santiago was not an active participant. ^[44] The case drew national attention ending up on CBS and Fox News.^[45]^[46]^[47] In the end Santiago would enter a plea of no contest. Judge Jim Hill agreed with the defense arguments, saying, “Based upon what I have heard in the evidence … it is my belief that you have less involvement than the other five individuals involved in this case.” Instead of putting Santiago in detention, Judge Hill originally sentenced Santiago to community service and sealed his juvenile adjudication from the public.^[48] Six victims later sued the school board, and received a $5.25 million settlement.^[49]

Hernandez Medicaid Trial

In 2012 Aarons found himself enlisted as a defense attorney in a Medicaid fraud case. His client Catherine Hernandez and her husband Joe were charged with Medicaid fraud and falsifying documents^[50] related to their 29 and 32 year old sons with spina bifida. Aarons maintained Hernandez and her husband were being unfairly prosecuted for mistakes on complicated paperwork, which happened due to the elimination of case workers by the state. The Hernandezes were convicted by a Jury in January 2012. ^[51]^[52] The couple were later ordered to repay $59,000.00.^[53] In light of their conviction Aarons told the ABQJournal Medicaid needed to provide better guidance on complex billing by family care providers so that others didn’t end up facing similar prosecution.^[54] The case has been used as an example by some to suggest New Mexico needs to improve its Human Services Departments monitoring of Medicaid, is alleged to be prone to waste.^[55]

Terry Clark

As a public defender, Aarons represented two capital defendants who were spared death warrants but, after being tried a second time years later, both were sentenced to death and were executed. In 1986, appellate defender Sheila Lewis and Aarons were assigned to represent Terry Clark. Clark had confessed to his minister to killing a young child. In a rare legal maneuver, Clark pled guilty to first degree murder in hopes of being sentenced before Governor Toney Anaya completed his term of office. However, district judge Stanley F. Frost refused to hold a sentence hearing before Anaya’s last day in office and, as a result, Clark was not among the five men on death row whose death sentences were commuted by Anaya to life in prison without possibility of parole. The following year, a jury in Tucumcari, New Mexico returned with a death sentence against Clark. The New Mexico Supreme Court eventually overturned that sentence, however, finding reversible error in misleading the jury as to the meaning of life in prison. Clark was entitled to another trial and the NM Public Defenders assigned a prominent capital defense lawyer, Gary Mitchell, to represent Clark. Aarons testified at the 1996 retrial in Silver City, New Mexico. So did former governor Anaya, who testified why he would have commuted Clark’s sentence had he the legal authority to do so. The second jury also returned a death sentence and, after Clark abandoned his habeas corpus petition, he was executed by lethal injection on 6 November 2001.^[56] ^[57]

Gregg Braun

In 1989, Aarons represented Gregg Braun. Braun was eventually convicted of killing five people in four states, the last victim at a truck stop in Springer, New Mexico. Braun was the son of a prominent Kansas lawyer, Lelyn Braun, had a college degree in criminal justice, and no criminal history before his week long cocaine induced killing spree.^[58] Aarons handled Braun’s preliminary hearing as to the Springer murder and negotiated with New Mexico prosecutors. Gary Mitchell eventually tried the case in Las Vegas, New Mexico and Braun was found guilty but mentally ill. The New Mexico jury spared Braun a death sentence, as did juries in Kansas and Texas. However Oklahoma imposed the death penalty as to the murder in its jurisdiction, and Braun was executed on July 20, 2000.^[59].

Other Cases

Aarons handled countless other high profile cases throughout the State of New Mexico, including:

• In 1986, Cloyd Norman Hall was arrested in Tucumcari, New Mexico for the fatal shooting of a state policeman^[60] ^[61] and faced a death penalty trial in Fort Sumner, New Mexico.^[62] The jury acquitted Hall of first degree murder, and he was sentenced by Judge Stanley F. Frost for lesser crimes.

• In the October 1988 trial of David Morton for the murder of his Santa Fe neighbor, Terri Lynn Mulvaney,^[63] the judge declared a hung jury after eleven of twelve jurors voted not guilty.^[64] The lone holdout was the foreman. Twenty years later, Morton confessed in prison to several murders including Mulvaney, and was sentenced to life in prison as to each.^[65]

• Later that month, Samuel Edward Wilson of Mountainair, New Mexico was convicted of murder for hire, but all twelve jurors voted to spare his life from the death penalty.^[66]. Aarons represented Wilson before the New Mexico Supreme Court, which overturned the conviction two years later.^[67]

• Pierre Burck, ex Marine, acquitted in the 1999 homicide of his cousin in Ohkay Owingeh, New Mexico^[68]

• Alfredo DeVargas was acquitted in Tierra Amarilla, New Mexico for the February 2001 fatal shooting Lloyd Griego.^[69]

• Fred Mestas claimed self defense and in 2002 was acquitted in the Cottonwood Trailer Park homicide in Santa Fe.^[70]

• In 2003, Orlando Torrez fatally shot a young woman at a party in Taos, New Mexico.. After his conviction of first degree murder, Aarons represented him on appeal and the New Mexico Supreme Court overturned his conviction.^[71] Torrez was retried and again convicted of first degree murder.^[72]

• Anthony Anaya, a Santa Fe tow truck driver, was acquitted of murder in the November 2004 shooting death of a suspected drug dealer, claiming to have been at the “wrong place, wrong time.”^[73] Two other defendants were later convicted of murder.^[74]

• Elias Romero was tried in 2008 for murder and aggravated arson. Three others had already been tried and convicted.^[75] The Taos jury acquitted Romero of all counts.^[76]

Personal Life

In 1954, Steve Costello was born in St. Louis to Donald Eugene Costello and Teddye Ann [nee Ward] Costello and was raised with two younger brothers Kenneth (1957) and Thomas Costello (1961). The family lived in Chicago from 1957 to 1967 and then returned to Ballwin, Missouri where Costello graduated in 1972 from Parkway West High School. Costello received his undergraduate degree from George Washington University and his law degree from Saint Louis University Law School. Costello attempted in May and June 1979, with his brother Tom Costello paddling a donated Fulbot kayak, to break the world record for longest journey swimming set in 1932. They began on the Missouri River just below the dam in Yankton, South Dakota and continued into the Mississippi River until arriving at Cairo, Illinois where a water spout halted the project.^[77]. After a failed wedding engagement in 1979, Costello changed his name to Stephen Donald Aarons.

Aarons married Doris Valdez in a private civil ceremony in 1992 before Justice Stanley Frost and, the following year, they renewed their vows in the Blessed Sacrament Chapel of Saint Francis Cathedral. They have one child, Ian (b. 1996). They built their retirement home in the foothills above Tesuque, New Mexico. Doris and Ian are recognized by the Apache nation due to ancestral blood.

In 2008, after twenty-eight years of reserve service, Aarons retired from the US Army Judge Advocate General’s Corps^[78] as a Lieutenant Colonel. Aarons helped coach his son’s Carlos Gilbert elementary school basketball team, which went undefeated one year,^[79], and a regional championship little league baseball squad. Aarons served four years as head coach of the St. Michael’s High School chess team; in Ian’s last year at St. Michael’s, the chess team took home the 2012 NMAA state championship trophy.^[80]

External Links

New Mexico Criminal Defense Lawyers Association
Who’s Who in American Law
Avvo Biography
National Institute for Trial Advocacy
US Army Judge Advocate General’s Legal Center and School Alumni
Martindale-Hubbell Legal Directory
College Democrats of America
Aarons Law PC

References

↑ Avvo.com – Santa Fe Attorney Stephen Aarons
↑ Avvo.com – Santa Fe Attorney Stephen Aarons
↑ Santa Fe New Mexican: Robertson High School Hazing Case
↑ Santa Fe New Mexican: Court Overturns Santa Fe Murder Convictions
↑ ABQ Journal: Murder Convictions Tossed
↑ Avvo.com – Santa Fe Attorney Stephen Aarons
↑ Martindale Hubbell Ratings
↑ Martindale Hubbell: Stephen Aarons
↑ 10.0/10.0 Avvo Rating.
↑ New Mexico Superlawyer (2007). Retrieved on 17 December 2012.
↑ The National Association of Trial Lawyers: Top 100 Profile
↑ “Anwar el-Sadat, the Daring Arab Pioneer of Peace”. NY Times. 7 October 1981. http://www.nytimes.com/learning/general/onthisday/bday/1225.html. Retrieved 14 December 2012.
↑ National Trial Lawyers Association Top 100: Background on Stephen D. Aarons
↑ Directory of Bar of US Supreme Court.
↑ Air Force Magazine: September 2012
↑ National Review: Yank at Oxford
↑ New York Times: Weinburger Victorious at Oxford Debate
↑ Weinberger Urged Not to Participate in Debate
↑ British PM Thatcher Congratulates Weinberger
↑ Weinberger Instrumental in withdrawing USS New Jersey
↑ Eddie Lee Adams Death Sentence Commuted. Retrieved on 15 December 2012.
↑ Death Penalty Info. Retrieved on 14 December 2012.
↑ Jones Firm. Retrieved on 14 December 2012.
↑ Aarons Law Firm PC. Retrieved on 14 December 2012.
↑ ABQ Journal: Nieto Sentanced to 39 Years in Torrean Cabin Murders
↑ Steve Terrell (July 1, 1997). “Lopez Trial Delayed”. Santa Fe New Mexican: pp. B-2. http://newspaperarchive.com/santa-fe-new-mexican/1997-07-01/page-8?tag=wilkins+torreon&rtserp=tags/wilkins?ndt=by&py=1997&pey=1997&plo=torreon.
↑ Ollie Reed Jr (9/22/1997). “Wilkins’ attorney lays cabin killings on Popeleski”. Albuquerque Tribune: p. A1. http://www.accessmylibrary.com/article-1G1-108371237/wilkins-attorney-lays-cabin.html. “Retitling the Torreon cabin killings case “Popcorn’s Last Revenge,” defense attorney Stephen Aarons told a jury today that the shooter in the grisly deaths is not his client, Shaun Wilkins.”
↑ Leslie Hoffman (09/01/1999). “Popeleski guilty in deaths of 2 children”. The Albuquerque Tribune. http://www.accessmylibrary.com/article-1G1-108347190/popeleski-guilty-deaths-2.html.
↑ Man Convicted in Cabin Killings gets 39 Years
↑ Jury Declines to Award Damages.
↑ Man Convicted in Cabin Killings Released Early
↑ Scott, Robert (2005). Monster Slayer. United States: Pinnacle. pp. 320. ISBN 0786016035. http://www.amazon.com/Monster-Slayer-Robert-Scott/dp/0786016035.
↑ ABQ Journal:Man Convicted of Two Murders
↑ AVVO.com: Legal Cases
↑ New York Times: Death Penalty Repealed in New Mexico
↑ CBS News: Los Alamos Breach Easy
↑ “Trailer, Secrets and Los Alamos; How could a clerk walk off with a nuclear trove?”. Newsweek. 11/13/2006. http://www.highbeam.com/doc/1G1-154036293.html. Retrieved 17 December 2012.
↑ ABC News: Guilty Plea is Los Alamos Security Breach
↑ AQB Journal: Former Los Alamos Archivist Pleads to a Single Charge
↑ Attorney: Prosecutors tricked Rowley
↑ Charges Against Lee, Rowley Dropped
↑ “Albuquerque To Pay $950K in Yi Murders”. Albuquerque Journal. June 22, 2011. http://www.abqjournal.com/main/2011/06/22/news/albuquerque-to-pay-950k-in-yi-murders.html.
↑ Santa Fe New Mexican: Hazing & Rape Allegations Emerge
↑ Santa Fe New Mexican: Retiring DA Might Keep Hazing Case
↑ CBS News: New Mexico Hazing Case
↑ KRQE: Catalogue and Chronology of Robertson High Hazing Case
↑ Fox News: Horrific High School Hazing Case Shocks New Mexico
↑ Santa Fe New Mexican: Judge Sentences Teen to Community Service
↑ “$5.25M Settles Hazing Suit”. Sep 2, 2011. http://www.abqjournal.com/main/2011/09/02/north/525m-settles-hazing-lawsuit-2.html. Retrieved 17 December 2012.
↑ Santa Fe New Mexican: AG accuses S.F. couple of Medicaid fraud
↑ Santa Fe New Mexican: Couple Convicted of Medicaid Fraud
↑ High Beam Research: Santa Fe Husband and Wife found Guilty of Fraud
↑ New Mexico Attorney Generals Office: Couple Ordered to Repay $59,000.00
↑ ABQ Journal North: Couple Convicted of Fraud
↑ SF Reporter: Rate of Return
↑ Clark execution.
↑ Child’s killer executed.
↑ Braun gravesite.
↑ Braun murders.
↑ Cloyd Norman Hall, 107 N.M. 17 (1987).
↑ “Accused cop killer jailed in Santa Fe”. Santa Fe New Mexican. 04/30/1986. http://newspaperarchive.com/santa-fe-new-mexican/1986-04-30/page-19. Retrieved 17 December 2012.
↑ Jonathan, Abbott. Hall Successful Defense. Retrieved on 17 December 2012.
↑ Mark Utgaard (09/30/1988). Serial Killer Theory Aired “Serial killer theory aired as trial opens”. Santa Fe New Mexican: p. A3. http://newspaperarchive.com/santa-fe-new-mexican/1988-09-30/page-3?tag=david+morton&rtserp=tags/?pc=25876&psi=66&pci=7&pt=10637&pep=david-morton Serial Killer Theory Aired.
↑ Mark C. Utgaard (10/13/1988). “Mistrial declared in murder case after jurors deadlock”. The New Mexican: p. A-1, 2. http://newspaperarchive.com/santa-fe-new-mexican/1988-10-13/page-1/.
↑ Steve Terrell (2/8/2003). Finally, Closure “Finally, closure”. Santa Fe New Mexican: pp. A1, A8. http://newspaperarchive.com/tags/?pc=25876&psi=66&pci=7&pt=10637&pep=david-morton Finally, Closure.
↑ Mark C. Utgaard (10/28/1988). “Wilson gets life in murder-for-hire case”. Santa Fe New Mexican: p. A1. “Defense lawyers get something too – sharp rebuke from irked jury”
↑ Kay Bird (02/16/1990). Santa Fe New Mexican: p. B3. “The high court, voting 4-1, voided the conviction of Ed Wilson”
↑ “Jury Acquits Ex Marine”. The New Mexican. 14 July 1999. http://newspaperarchive.com/santa-fe-new-mexican/1999-07-14/. Retrieved 16 December 2012.
↑ Geogg Grammer (04/12/2002). “Jury: Man acted in self-defense”. The Santa Fe New Mexican: p. B-1.
↑ “Jury Says Killing Self Defense”. Albuquerque Journal. http://business.highbeam.com/2872/article-1G1-84119452/jury-says-killing-selfdefense. Retrieved 16 December 2012.
↑ Barry Massey (6/3/2009). “State court overturns sentence in Taos Murder”. Associated Press. http://www.masnewmexico.com/index.php?view=article&catid=64%3Asanta-fe&id=446%3Astate-court-overturns-sentence-in-taos-murder&format=pdf&option=com_content&lang=en. Retrieved 17 December 2012.
↑ Vic Vela (5/26/2010). “Man Guilty in Murder – Again, first conviction overturned”. Albuquerque Journal North. http://www.abqjournal.com/north/262348302902north05-26-10.htm. Retrieved 17 December 2012.
↑ Pawloski, Jeremy (05 November 2005). “Man Acquitted in Drug Dealer’s Death”. Albuquerque Journal North. http://www.abqjournal.com/north/405379north_news11-05-05.htm. Retrieved 16 December 2012.
↑ Jeremy Pawloski (11/19/2005). [but two other defendants were convicted “Couple Convicted in Shooting Death”]. Albuquerque Journal North: p. A1. but two other defendants were convicted.
↑ “Final trial begins in 2003 murder”. Taos News. 02/28/2008. http://www.taosnews.com/news/article_50703ec7-0e96-50dd-bd93-7c8516f62a89.html. Retrieved 17 December 2012.
↑ “Fourth Defendant Found Not Guilty”. Albuquerque Journal North. 02/29/2008. http://www.abqjournal.com/north/289315north_news02-29-08.htm. Retrieved 17 December 2012.
↑ http://www.guinnessworldrecords.com/world-records/2000/longest-journey-swimming World Record in Long Distance Swimming Broken
↑ Army JAG Corps Reserves. Retrieved on 15 December 2012.
↑ Boys team Undefeated Season City Champs. Carlos Gilbert PTK News. Retrieved on 04/02/2008.
↑ [www.nmsco.org/StandingsStateNMAA2010.pdf 2012 Standings].

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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.
Cordova Trial Will Proceed

By Vic Vela / Journal Staff Writer

SANTA FE, N.M. — A Rio Arriba County vehicular homicide case will survive, even though the truck allegedly driven by the defendant in a fatal Memorial Day weekend crash did not.

A judge Thursday denied a defense motion to dismiss charges against Juan de Dios Cordova, despite his lawyers’ argument that Cordova’s ability to defend himself has been prejudiced because his truck was crushed into scrap metal instead of held as evidence.

State District Judge T. Glenn Ellington did say that Cordova has legal remedies to ensure that he gets a fair trial. His defense attorneys maintain that the pickup is “the most important piece of evidence in this case.”

Also Thursday, on a secondary matter, the judge denied defense motions that sought to have Rio Arriba County Sheriff Tommy Rodella held in contempt of court for testimony during a preliminary hearing on Cordova’s case and for comments he made in a radio interview.

Cordova, 56, is alleged to have been drunk behind the wheel on the High Road to Taos on May 28, before striking and killing motorcyclist Mark Wolfe, 51, of Algodones. Wolfe’s wife, Debbie Hill, 50, was seriously injured. Other friends who were part of a group on motorcycle riders returning from a rally in Red River were also hurt.

Cordova is accused of fleeing the scene and ditching his truck along the side of the road. He was arrested later at his home in Cordova. A blood sample taken several hours after the wreck showed his blood-alcohol concentration was 0.14 percent, nearly twice the state’s presumed level of intoxication.

Cordova has claimed he wasn’t driving when the fatal wreck occurred.

He faces one count of vehicular homicide; two counts of great bodily injury by vehicle; two counts of aggravated DWI; and one count of leaving the scene of an accident.

The truck that hit Wolfe, which was supposed to held as evidence, was destroyed in a mishap involving a towing company owner who was storing the truck for the Rio Arriba County Sheriff’s Office. Freddie Seeds, owner of Total Secure Towing in Española, sold it as scrap metal and has said he had a deputy’s approval to release the truck.

Representatives of the Sheriff’s Office and the District Attorney’s Office have denied ever giving Seeds permission to release the vehicle. They found out it had been destroyed during a preliminary hearing on Cordova’s charges that started in September.

Cordova’s Public Defenders Damian Horne and Kathryn Fischer argue that the state had a duty to preserve the truck. The defense attorneys contend the truck had “mechanical defects” that contributed to the wreck, and it can never be tested by an expert witness. They also claim they’re not able to put on evidence that the pickup’s tires blew out before the crash.

‘Murky waters’

Chief Deputy District Attorney Juan Valencia conceded the truck’s importance in the case, but said that it wouldn’t be prudent to dismiss the charges against Cordova outright.

“The defense is asking for you to wade into very murky waters on what the destroyed truck might prove,” the prosecutor said. “There’s so much other evidence that the jury is entitled to hear.”

Valencia also said that the DA’s Office “could not anticipate” the actions of the towing company owner Seeds. The prosecutor said Seeds was “operating under his own thought process” and should have known better than to get rid of a truck in a vehicular homicide case.

Fischer said that regardless of how the truck came to be destroyed and whose fault it was is a “red herring.”

“None of that matters,” she argued. “… We have nothing. We’ve been left with nothing.”

Ellington agreed that the state “clearly had a duty” to preserve the truck, and the pickup and the evidence associated with it is “material” to the case. But, the judge said, “It is possible to construct remedies to protect Mr. Cordova’s due process rights without dismissal of the case.”

The judge said the defense will be allowed at trial to put on expert testimony about what could have been gained by preserving the truck, as well as “how it came to be destroyed.” The defense team will also be “allowed to argue mechanical failure was a possibility.”

As for what led to the truck’s demise, Chief Deputy District Attorney Dorie Biagianti Smith said State Police is expected to report findings by January.

Contempt charges

Another issue taken up by Ellington on Thursday were accusations by the defense attorneys that Rio Arriba County Sheriff Tommy Rodella had committed contempt of court.

Two contempt motions were filed. One of them deals with Rodella’s court testimony about telephone conversation he had with a deputy, Paula Archuleta, who is at the center of a dispute over who authored a particular Sheriff’s Office report.

Horne accused Rodella of stating “outright falsehoods” in his testimony during the preliminary hearing about the duration and nature of his phone call with Archuleta.

Rodella’s attorney Stephen Aarons countered that the sheriff is standing by his testimony and that “there has to be a knowing falsehood” present for contempt.

Horne’s other contempt motion is critical of Rodella for going on a radio show and praising his deputies for their “exceptionally fine work in the case,” even though the judge had told the sheriff not to discuss the case.

Rodella’s “self-congratulatory oration about having gotten their man” over Rio Arriba County airwaves “virtually destroyed” Cordova’s shot at getting a fair trial there, Horne argued.

Aarons said that there was no gag order in place during or after the preliminary hearing, and the sheriff was trying to defend his office’s handling of the Cordova case. “Attacks on him and the department were made,” Aarons said. “He felt there was another side of it that weren’t discussed in court.”

The judge rejected both contempt motions. Ellington said the statements that the sheriff made on the radio were akin to protected “political speech.”

But the judge did order that “no more statements be made publicly in order to protect the (jury pool).”

As for the other contempt issue, the judge said that “the court knows (contempt) when it sees it. It is an affront on the process and proceedings (of the courtroom),” a line that apparently Ellington didn’t think Rodella crossed.
Lawyers.com Review

5.0/5.0 submitted on 09/18/11

My children were placed in state custody due to allegations that were simply untrue. We have been fighting this case for six months. However, I know the outcome will be positive on our end. Steve is very knowledgeable on every case he takes on. He isn’t just a lawyer but also a friend who will believe in you and stick by you until the end. He is also very well liked and respected throughout the courthouse. I once had the lawyer on the opposing side tell me he respected Steve.
Lawyers.com Review

5.0/5.0 submitted on 09/12/11

We hired him for our son who was in jail. He worked hard to get our son out of jail and got the charges dismissed after several court dates.
Lawyers.com Review

5.0/5.0 submitted on 09/09/11

Mr. Aarons is very caring and understanding. I am glad that I have chosen him as my attorney. I would highly recommend Mr. Aarons.

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Cordova Trial Will Proceed

By Vic Vela / Journal Staff Writer

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Born

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

By Vic Vela / Journal Staff Writer