U.S. v. Jimenez, 90-1114

• Decision Date: 19 March 1991
• Docket Number: No. 90-1114,90-1114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph JIMENEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 356

928 F.2d 356

UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph JIMENEZ, Defendant-Appellant.

No. 90-1114.

United States Court of Appeals, Tenth Circuit.

March 19, 1991.

Charles Szekely, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender with him on the brief), Denver, Colo., for defendant-appellant Charles Joseph Jimenez.

John M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty. and Bernard E. Hobson, Asst. U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee U.S.

Before ANDERSON and EBEL, Circuit Judges, and SAFFELS, District Judge ^*.

SAFFELS, District Judge.

This appeal arises from a sentence entered by the district court following the defendant's guilty plea on two conspiracy counts enumerated in his Indictment, Count 1 charging a violation of 21 U.S.C. Sec. 846, conspiracy to distribute cocaine; and Count 2 charging a conspiracy to defraud the United States of its lawful taxes in violation of 18 U.S.C. Sec. 371. In this appeal, defendant-appellant, Charles Joseph Jimenez, raises four contentions of error: (1) that he was denied effective assistance of counsel at sentencing because his trial counsel had an actual conflict of interest; (2) that the government attorney's actions immediately prior to sentencing and statements made during the sentencing proceeding constituted a violation of the parties' plea agreement; (3) that his sentence was disproportionate; and (4) that the use of the estimated amount of cocaine distributed in the conspiracy in the presentence report to determine his offense severity rating violated his due process rights. We affirm.

I.

On December 5, 1989, Charles Joseph Jimenez, the defendant/appellant herein, along with four other individuals, was named in an indictment charging multiple counts of conspiracy to distribute cocaine, conspiracy to defraud the United States of taxes, and various Interstate Travel Act counts. On March 5, 1990, defendant entered a plea of guilty to Counts 1 and 2 of the Indictment, charging conspiracy to distribute cocaine and conspiracy to defraud the United States out of lawfully owed tax money, respectively. On April 9, 1990, defendant was sentenced by the Honorable Zita Weinshienk, United States District Judge for the District of Colorado, to imprisonment for a term of 20 years as to the first count of the Indictment and imprisonment for 5 years as to the second count of the Indictment, to run concurrently with each other, but consecutive to an 8-year sentence the defendant was currently serving which was previously imposed by the United States District Court for the District of Wisconsin.

The present Indictment arose out of a lengthy investigation of motorcycle gang activity in Denver, Colorado, and the distribution of controlled substances. Upon the government's motion to disclose copies of transcripts of grand jury testimony, on January 4, 1990, the district court entered an order that copies of the transcripts of testimony given before the grand jury be disclosed to attorneys for the defendants for trial preparation. The order further stated "that the disclosed copies of the Grand Jury transcripts and materials are not to be reproduced and are to be retained in the personal custody or offices of the attorneys for the Defendants." A Denver attorney, Robert A. Flynn, was appointed to represent the defendant on January 18, 1990.

On February 28, 1990, a plea agreement was reached. In exchange for Jimenez's plea of guilty to Counts 1 and 2 of the Indictment, the government agreed to dismiss the other pending charges of the Indictment and not to file any additional charges based on criminal activities then known by the government. The letter embodying the plea agreement also referred to an Exhibit "A," in which the government agreed to recommend that defendant's sentences as to both counts be served concurrently with each other and with the defendant's current federal sentence. The government further agreed that "the Government would recommend no more than a 7 year maximum [sentence] as to this defendant." Pursuant to this agreement, defendant entered his plea of guilty on March 5, 1990. The district court then ordered a presentence investigation and set the matter for sentencing on April 9, 1990.

Between the entry of the plea of guilty and the sentencing date, the government's attorney, by letter dated April 3, 1990, furnished a report to the probation officer doing the presentence report. The government's report stated that certain excerpts of grand jury testimony given by a cooperating witness (i.e., Paul M. Ensmenger) had appeared posted to the wall of a "biker bar" in Florida. The excerpt was contained in the materials covered by the court's order of disclosure of grand jury materials. Although no harm came to the witness, government agents were very concerned about this disclosure. The report alleged that "Jimenez may be involved" in disseminating grand jury materials and in witness intimidation and stated that the disclosure incident should be brought to the attention of the court.

When Jimenez appeared for sentencing on April 9, 1990, a discussion occurred with the court concerning the disclosure of grand jury materials. After counsel stated their respective appearances, the district court judge read into the record the text of the court's January 4, 1990, order concerning disclosure of grand jury materials. The following colloquy occurred:

THE COURT: Now I understand from reading this case that that order was not followed; and I'd like to know precisely why Mr. Jiminez ¹ was given a copy of the grand jury transcript and why he was permitted to mail a copy to another state. That copy very clearly by order was to remain in the custody of the attorney only, not Defendant, and to be returned. Mr. Flynn?

MR. FLYNN: Your Honor, no copies were made in my office of the transcripts. The transcripts were loaned to the defendant for the simple reason that he was detained-- THE COURT: Why were they even shown to the defendant? This order says they're to be disclosed to the attorneys only, not defendants.

MR. FLYNN: My understanding of the disclosure, your Honor, was that they could be used for preparation of the defense.

(R.Vol. III., 3).

. . . . .

THE COURT: How did he [the defendant] get a copy of it, Mr. Flynn?

MR. FLYNN: It was provided to him by me, your Honor.

THE COURT: You mailed it to him?

MR. FLYNN: I delivered it to the FCI.

THE COURT: The original?

MR. FLYNN: The original, with the understanding that it would be reviewed and returned to me.

THE COURT: And you did that after reading this order.

MR. FLYNN: Your Honor, this order was entered before I came into the case. I must say that I never specifically saw the order. I am aware of the rules in this district, and I take full responsibility for it.

(R. Vol. III, 4).

. . . . .

MR. FLYNN: Now the defendant is going to speak to your Honor directly about this; and he is going to apologize for what has occurred, as I do for my not making it clearer that under no circumstances could it be reproduced and sent out. Perhaps much of that blame should be laid on me. And I think at the same time, the defendant should have been aware not to do that, but, you know, communications go back and forth out of the FCI, and I'm merely saying that it was no secret what the status of Mr. Ensminger was or has been for some time.

(R.Vol. III, 15).

. . . . .

As the sentencing hearing continued, the government attorney made the following remarks:

MR. HOBSON: Very well, Judge. Let me say to start off with, I will acknowledge the fact that we recommended 7 years and a concurrent sentence at the time of the plea and that we will stand by that recommendation if for no other reason than as a matter of honor. However, Judge, we feel like we have pointed out to the Court some factors that certainly we suggest bear consideration; and as the Court has already noted, we note that these were recommendations; and while I'm not trying to go behind the plea agreement, certainly, or I would simply say that we no longer recommend 7 years, we do acknowledge that it's up to this court, as the Court has already very well made us aware.

Your Honor, quite frankly, if I thought I could prove or file or sustain an intimidation charge against this defendant, I would have filed it and very gladly. While I feel that that has occurred in this case, unfortunately, I don't feel that I can file a case based on what I know certainly at this point. I very much would have liked to. That doesn't mean it didn't happen, however, Judge....

I also want to point out that to suggest that someone with this defendant's background--and I'm anticipating what he's going to say here to a certain extent--is naive enough to think it harmless to pass this kind of material along and quite frankly to in effect see that it's disseminated--I think that that's unreasonable. I don't know what Mr. Jiminez is going to say. I'm going to be curious to hear it myself.

And I agree with Mr. Flynn that the information has been out there certainly ever since the raids were conducted back in 1988; and indeed, perhaps as far back as 1987, many defendants have known that we were coming, so to speak. But I don't think it's unreasonable, Judge, to fear the printed page mailed to the biker bar door more than the spoken word about who is cooperating, who is flipping, who is doing what. And I just find this whole episode very disturbing, and I think obviously so does the Court. And I just ask that it be considered. And that's really all I have to say, Judge.

(R.Vol. III, 18-20).

With regard to the dissemination incident, defendant Jimenez made the following statements to the sentencing court:

THE DEFENDANT: In regards to Mr. Ensminger, Gonzo Salvador asked for materials about Mr. Ensminger, which I sent him. At the time, I didn't realize it was wrong for me to send these materials to him, not...