U.S. v. Trestyn
| Decision Date | 11 May 2011 |
| Docket Number | 10–8046.,Nos. 10–8029,s. 10–8029 |
| Citation | 646 F.3d 732 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Adam Joseph TRESTYN, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Crystal Kay Herren, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Thomas A. Fleener of Fleener & Vang, LLC, Laramie, WY, for Defendant–Appellant Adam Joseph Trestyn.James Alfred Bustamante, San Francisco, CA, for Defendant–Appellant Crystal Kay Herren.Eric J. Heimann, Special Assistant United States Attorney (Christopher A. Crofts, United States Attorney; Steven K. Sharpe, Assistant United States Attorney with him on the brief), Office of the United States Attorney, Cheyenne, WY, for the Plaintiff–Appellee.Before KELLY, TACHA, and EBEL, Circuit Judges.EBEL, Circuit Judge.
In these consolidated direct criminal appeals, Defendants–Appellants Adam Trestyn and Crystal Herren challenge the district court proceedings that led to their guilty pleas for possession with intent to distribute MDMA and aiding and abetting: First, Herren argues that the district court denied her Sixth Amendment right to counsel of choice when it refused to continue a suppression hearing. Second, Trestyn and Herren raise ineffective assistance of counsel claims. Third, Trestyn and Herren challenge the district court's refusal to suppress illicit drugs discovered in their minivan during a traffic stop. And fourth, Trestyn challenges the sentence imposed on him.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we conclude as follows: First, the district court did not deny Herren her Sixth Amendment right to counsel of choice when it refused to continue the suppression hearing. Second, because this is a direct appeal, we dismiss Trestyn's and Herren's ineffective assistance of counsel claims without prejudice. Third, the district court erred in denying Trestyn's and Herren's motions to suppress. Based on that error, we reverse and vacate Trestyn's and Herren's convictions and sentences, and, thus, we need not address Trestyn's challenge to his sentence.1
On July 1, 2009, at approximately 5:30 p.m., Wyoming Highway Patrol Trooper Nykun was patrolling a section of Interstate 80, west of Cheyenne, Wyoming. Trooper Nykun noticed a silver Honda Odyssey minivan traveling eastbound displaying a rear California license plate but no front license plate. Trooper Nykun knew that California law requires vehicles to display both front and rear license plates, see Cal. Veh.Code § 5200 (West 2003), so he initiated a traffic stop.
Trooper Nykun approached the minivan on foot and informed Trestyn, who was driving, that he stopped the vehicle for a license plate violation. Trestyn explained that he and Herren purchased the car in California and were travelling back to Ohio. Herren, seated in the passenger seat, explained that the seller did not have a front license plate for the minivan. Trestyn then provided documents related to the purchase. Trooper Nykun asked Trestyn to provide a driver's license and to come to his patrol car. So Trestyn exited the minivan, gave Trooper Nykun a New York driver's license, and walked to the patrol car.
At this point, Trestyn, seated in the front passenger seat of the patrol car with the door open, explained that he and Herren found the minivan on the Internet and flew to California to purchase it for $9,000. Trooper Nykun found the story unusual because of the state of Ohio's economy at the time; specifically, he found it unusual that Trestyn and Herren would “fly all the way out to California to purchase an older van that you could probably get in Ohio for either the same price or cheaper.” (Aplt. Trestyn App., vol. III at 31–32.)
After Trestyn described how the two purchased the minivan, Trooper Nykun asked Trestyn for proof of insurance. Trestyn responded that it was in the minivan, so Trooper Nykun and Trestyn exited the patrol car. Trooper Nykun approached Herren at the front passenger's side window of the minivan. There Trooper Nykun asked Herren for proof of insurance, and she provided an insurance card with the name “Crystal K. Herren.” Herren explained, just as Trestyn did, that she and Trestyn flew from Ohio to California to purchase the minivan for $9,000. Trooper Nykun asked Herren if the minivan was in her name, and she responded that it was. At this point, Trooper Nykun asked Trestyn to go sit in the minivan, and Trooper Nykun returned to his patrol car.
At 5:38 p.m., seated back in his patrol car, Trooper Nykun radioed Trooper Germain and requested that Trooper Germain come to his location to perform a canine free air sniff. Trooper Germain is a certified narcotics-detection-canine handler, and his dog, Bonnie, was certified to detect the odors of marijuana, methamphetamine, cocaine, and heroin by the California Narcotic Canine Association. Trooper Germain responded that he would be en route to Trooper Nykun's location in about five minutes.
Then, Trooper Nykun contacted dispatch to run a driver's license check on Trestyn in Ohio, California, and New York. While waiting for the driver's license check to be completed, Trooper Nykun began filling out the paperwork for a warning for the missing front license plate and reviewed the purchase agreement for the minivan provided by Trestyn and Herren. Shortly thereafter, dispatch asked Trooper Nykun for Trestyn's middle name, which was not listed on his New York driver's license but which was needed to complete the driver's license check with Ohio. Trooper Nykun could not find Trestyn's middle name in the paperwork that he had, so Trooper Nykun once again approached the minivan. When Trooper Nykun asked Trestyn for his middle name, he also asked Herren for her driver's license. At this point, Herren provided an Ohio driver's license.
At 5:41 p.m., Trooper Nykun returned to his patrol car where dispatch explained that Ohio and California reported expired identifications for Trestyn while New York reported a valid license. Trooper Nykun then asked dispatch to run a driver's license check on Herren and a vehicle identification number (VIN) check on the minivan. Trooper Nykun waited in his patrol car for Trooper Germain to arrive as those checks were being performed.
Once Trooper Germain arrived at the scene, his canine, Bonnie, alerted at the minivan signaling to the troopers that she detected the odor of a controlled substance. Eventually, the troopers recovered four bundles of white powder wrapped in grey duct tape and dryer sheets from underneath a plastic speaker cover. The troopers arrested Trestyn and Herren, and a more thorough search of the minivan at the Cheyenne Drug Enforcement Agency/Division of Criminal Investigation office revealed four more packages of white powder. Laboratory tests confirmed that the white powder was MDMA, also known as ecstasy.
A grand jury indicted Trestyn and Herren on July 23, 2009, with two drug trafficking counts. On September 2, 2009, Trestyn filed a motion to suppress the evidence seized as a result of the search of the minivan. The district court scheduled a hearing for September 29, 2009, to consider the motion. But on September 25, 2009, Herren filed a similar motion to suppress, and so the district court rescheduled the hearing for October 2, 2009.
On October 1, 2009, the day before the suppression hearing, Herren filed two additional motions. First, Herren filed a motion and affidavit for the admission of California attorney James Bustamante pro hac vice as Herren's counsel. Second, Herren filed a motion to continue the suppression hearing in order to give Bustamante adequate time to prepare for the hearing.
At the beginning of the suppression hearing, Herren's counsel, Mr. Bustos, asked the district court to continue the hearing so that Bustamante, who was not present, could appear on behalf of Herren. Judge Brimmer orally denied the motion during the following exchange:
Mr. Bustos: If I may be able to address another matter first, Your Honor.
The Court: Well, with regard to your motion to continue, we just can't do that.
Mr. Bustos: Well, if I may, Your Honor, the situation is that my client, Miss Herren, she's adamant that she wants to be represented by different counsel in this matter. It is not that she's negative towards me, and she will say that, it is just that she prefers another attorney.
The Court: We will hear that after the motion is heard.
Mr. Bustos: And with that said, then, I would then move to withdraw Miss Herren's motion at this time, Your Honor.
The Court: Well, we don't do that. You've got adequate counsel at the moment. You're in good hands and couldn't be in better hands, and so we will go ahead with our motion.
The Defendant: Your Honor, I don't want to go ahead with the motion. I have a right to the counsel of my choice, and I have retained Mr. James Bustamante.
The Court: I'm sorry, we're going to go ahead with the motion. I happen to be running the court, not you, Dear.
(Aplt. Herren App., vol. II at 240–41.)
After denying the motion to continue, Judge Brimmer first heard testimony from Trooper Nykun. Trooper Nykun detailed the traffic stop of Trestyn and Herren and the subsequent discovery of the MDMA in the minivan. Then, before Bustos began cross-examining Trooper Nykun, Herren once again addressed the court to explain that she wanted Bustamante to represent her. Judge Brimmer responded as follows:
Mr. Bustos has been appointed as your attorney by the Court.2 Your attorney that you would like, Bustamante, isn't here. If he were here, I would admit him and let him proceed. But he hasn't seen fit to come. This hearing was well-known to everyone beforehand. He could have arrived and he didn't. Please sit down. Mr. Bustos can ask questions in your behalf.
( Id. at 283.) After that, Bustos moved to withdraw as Herren's attorney, but Judge Brimmer also denied that motion. Bustos went on to cross-examine Trooper Nykun....
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