130 F.3d 1432 (10th Cir. 1997), 97-2122, United States v. Carter

Docket Nº:97-2122.
Citation:130 F.3d 1432
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Israel CARTER, Jr., Defendant-Appellant.
Case Date:December 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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130 F.3d 1432 (10th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Israel CARTER, Jr., Defendant-Appellant.

No. 97-2122.

United States Court of Appeals, Tenth Circuit

December 16, 1997

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Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, NM, for appellant.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States Attorney, and Charles L. Barth, Assistant United States Attorney, with him on the brief, Albuquerque, NM), for appellee.

Before PORFILIO, McKAY and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Israel Carter, Jr., appeals his convictions for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. §§ 846 and 841(a)(1), and possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), claiming (1) the district court erred in denying his requested instructions on venue; (2) the evidence presented at trial was insufficient to support his convictions; (3) he was denied effective assistance of counsel during plea negotiations; and (4) the government was presumptively vindictive in refusing to renew a plea offer extended to him prior to his first trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the conspiracy conviction, reverse the possession with intent to distribute conviction, and remand with directions to vacate that conviction and resentence.

I.

On May 31, 1995, Michael Pelligrini and Tony Savilla, two DEA task force officers, were looking for possible drug couriers at a Greyhound bus station in Albuquerque. A bus en route from Los Angeles to New York arrived at the station at approximately 3:15

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p.m., and all of the passengers got off the bus so that the bus could be cleaned and serviced. The officers boarded the bus to look at baggage being transported by the passengers and noticed a new bag with plastic wrapping material on the handles. Because drug couriers typically use new bags to transport drugs, Savilla touched the bag and felt two brick-type objects. When the passengers reboarded the bus, the officers inquired about each passenger's baggage and discovered the bag belonged to a passenger whose bus ticket identified her as Anthlia Jackson, but whose real name is Anthlia Craft. Her bus ticket indicated she was traveling from Los Angeles to Tulsa. The officers searched the bag, along with another bag being transported by Craft, and discovered two kilograms of cocaine in the new bag and clothing in both bags. Craft was arrested, and a controlled delivery of the cocaine to Craft's connection in Tulsa was arranged.

Pelligrini, Savilla, Craft, and Mark Barela, another task force agent, traveled by air to Tulsa on June 1, 1995. The officers arranged for a state trooper to stop the bus approximately ten to fifteen miles from the Tulsa bus station. Pelligrini, Savilla, and Craft reboarded the bus, carrying Craft's two bags. When the bus arrived at the Tulsa station between 6:00 and 6:15 a.m., Craft got off the bus with her two bags and walked to a pay phone. She placed a call to a pager number. Approximately five minutes later, Craft placed a second call to a pager number. The task force agents located outside the station observed Carter arrive at the station in a red Mustang automobile. Carter entered the bus station a few minutes after the second call to the pager number, approached Craft, and began talking to her. Carter and Craft then left the station with Carter carrying the new bag containing the cocaine and Craft carrying the other bag. As Carter neared the driver-side door of his Mustang, a local sheriff's officer drove a vehicle with official markings and flashing lights up to the Mustang and blocked its movement. Other officers also approached Carter. Barela, who was wearing a DEA raid jacket, pointed his handgun at Carter and yelled, "Police officer. Halt. Freeze." R. II at 128. Carter, who was approximately fifteen to twenty feet from Barela, looked at Barela, placed the bag containing the cocaine on the ground, and began walking at a fast pace toward the bus station and toward Barela. Barela continued to command Carter to halt, but Carter did not heed the commands. Barela began walking toward Carter to prevent him from reaching the street and as they neared each other, Carter walked between Barela and the building. With the assistance of other officers, Barela knocked Carter to the ground and arrested him.

After Carter was taken to the Tulsa DEA task force office, he was searched and a pager and approximately $1,948 in cash were recovered. Two messages from the pay phone at the bus station, which corresponded to the two calls placed by Craft, were still on the pager. Carter agreed to waive his rights and be interviewed. He told the officers Craft's sister had asked him to pick up Craft at the bus station. Although he acknowledged knowing Craft for approximately five years, he could not remember the name of Craft's sister or her telephone number. As for the cash, Carter told the officers he had received approximately $3,000 from his mother as a portion of an insurance settlement she had received. He told the officers he mowed lawns for a living and had earned approximately $100 each for three lawns in the week prior to the incident. Finally, Carter told the officers he lived in Okmulgee, approximately thirty-eight miles from the bus station. An officer subsequently drove from Okmulgee to the bus station and testified at trial that the trip took forty-two minutes, indicating Carter could not have driven from his home to the station after receiving the pages from Craft.

Carter was originally indicted in Oklahoma federal court on June 7, 1995, on one count of possession with intent to distribute cocaine, but the case was dismissed. He was reindicted with Craft on July 7, 1995, in federal district court in New Mexico on one count of

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conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. His court-appointed counsel, Edward Bustamante, moved to withdraw as Carter's counsel. The court denied the motion. On March 19, 1996, the government faxed Bustamante a letter with a proposed plea agreement for a 57-month sentence in exchange for a guilty plea. Carter rejected the proposed plea agreement. The indictment was subsequently dismissed without prejudice for violation of the Speedy Trial Act.

Carter was indicted for the third time on May 9, 1996, for conspiracy and possession with intent to distribute. On July 7, 1996, a superseding indictment was filed charging Carter and Craft with the same counts charged in the May 9 indictment. Carter was represented by Bustamante at trial and was convicted by a jury of both counts on July 23, 1996. Bustamante again moved to withdraw and the motion was granted. The district court appointed Jacquelyn Robins to represent Carter. Robins filed a motion for judgment of acquittal and a motion for new trial. The court granted the motion for new trial with no detailed explanation. However, at Carter's second trial, the district court explained to the jury why the motion for new trial had been granted:

This case has several wrinkles to it, ladies and gentlemen. It's the second time I've tried it. The first time I tried it, the government in their opening statement and throughout the trial was of the opinion that the codefendant [Craft] was going to testify, and at the last minute she did not testify.

Well, the government had told the jury everything she was going to say in their opening statement, so I had to grant--I granted a new trial, based on the misunderstanding that the government had that she was going to testify.

She told the government, I think, the day or two before the trial that her house had been broken in to and that she had been threatened. And I think she had a child or something, and the child was threatened.

So Mr. Carter got a new attorney, Ms. Robins. Based on--I made a finding of ineffective assistance of counsel on behalf of his other attorney, so we got him a new attorney.

R. IV at 262-63.

Prior to his second trial, Carter tried unsuccessfully to persuade the government to renew the original plea offer. The case proceeded to trial and Carter was convicted a second time on both counts. His motions for judgment of acquittal were denied. Carter then filed a motion to require the government to...

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