U.S. v. Maxwell

• Decision Date: 28 May 1992
• Docket Number: No. 91-4011,91-4011
• Citation: 966 F.2d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grant S. MAXWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 545

966 F.2d 545

UNITED STATES of America, Plaintiff-Appellee, v. Grant S. MAXWELL, Defendant-Appellant.

No. 91-4011.

United States Court of Appeals, Tenth Circuit.

May 28, 1992.

David J. Jordan, Asst. U.S. Atty. (Dee Benson, U.S. Atty., Richard D. Parry, Asst. U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Harry Caston (Shawn D. Turner, with him on the brief) of McKay, Burton & Thurman, Salt Lake City, Utah, for defendant-appellant.

Before LOGAN and BRORBY, Circuit Judges, and OWEN, ^* District Judge.

BRORBY, Circuit Judge.

Defendant Grant Scott Maxwell appeals his conviction following a jury trial on single counts of possessing marijuana with intent to distribute and carrying a firearm during a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 924(c)(1) (Supp.1990), respectively.

Mr. Maxwell raises three claims of error. He asserts: (1) his attorney's failure to interview and call expert witnesses on his behalf constituted ineffective assistance of counsel; (2) the police department's referral of his case to federal court rather than state court violated his constitutional right to procedural due process and (3) the district court imposed an excessive period of supervised release. We affirm Mr. Maxwell's conviction and sentence.

On October 29, 1989 police officers responded to a report of an unconscious male in an automobile parked outside a service station. The first officer on the scene found Mr. Maxwell slumped in the driver's seat with his foot on the accelerator, the car's transmission in park and the engine racing. When the officer reached through the front window and turned off the engine, Mr. Maxwell awoke. Mr. Maxwell appeared incoherent and vacillated between normal speech and abstract "off the wall" dialog unrelated to the situation. The officer noticed an empty knife scabbard on the front seat, but observed no knife. A quick pat-down search of Mr. Maxwell's clothing for weapons revealed a plastic baggy containing a syringe, a prescription bottle and pills. The officer initially placed Mr. Maxwell under arrest for possession of drug paraphernalia and suspicion of driving under the influence of drugs or alcohol. ¹ However, the drug distribution and weapons charges arose after officers found a partially open gym bag in the car which contained approximately thirteen ounces of marijuana, assorted pills and a .22 caliber semiautomatic pistol loaded with seven rounds of ammunition. Mr. Maxwell unsuccessfully moved to suppress all evidence seized during the search, and a trial ensued.

Mr. Maxwell, a drug treatment counselor at a Salt Lake City area hospital specializing in substance abuse, portrayed himself as a troubled drug abuser struggling to curb a long-term drug addiction. Mr. Maxwell testified he bought the marijuana to help wean himself from a more serious $200-$300-a-week drug habit involving cocaine, Valium and other substances. He adamantly denied any intent to sell the drug. Mr. Maxwell also maintained he did not realize the bag contained a handgun, explaining his father inadvertently left it in the bag following a recent hunting trip. A hospital administrator from the facility where Mr. Maxwell worked testified the hospital previously helped Mr. Maxwell combat a substance abuse problem, but personnel observed no behavior indicating Mr. Maxwell involved himself in the distribution of illicit drugs.

In contrast, the prosecutor pursued testimony aimed at characterizing Mr. Maxwell as a drug dealer who desperately needed money to support an expensive cocaine addiction. Highlighting the government's case, an expert witness in narcotics enforcement testified the quantity of marijuana found in Mr. Maxwell's car--when viewed together with the weapon and other drug paraphernalia--represented a sales quantity of the drug rather than a volume typically associated with personal use. The jury agreed, rejecting the lesser included offense of simple possession of marijuana and opting for a guilty verdict on the more serious charge of possession with intent to distribute the drug.

Mr. Maxwell petitioned for a new trial, contending his attorney's failure to call expert witnesses to testify that habitual drug users commonly possess thirteen ounces of marijuana for personal use constituted ineffective assistance of counsel. To support his claim, Mr. Maxwell provided the district court with signed affidavits from two psychiatrists and a physician certified in addiction medicine attesting that habitual users of marijuana often seek out as much of the drug as possible. Nevertheless, the district court denied the motion. The district court found Mr. Maxwell did not show his attorney exercised less than the "skill, judgment, and diligence of a reasonably competent defense attorney." The court also found Mr. Maxwell failed to demonstrate that but for his attorney's alleged incompetence, the trial would likely have resulted in a different verdict. Mr. Maxwell responded with a motion to depart from the United States Sentencing Guidelines' (Guidelines) minimum mandatory sentence on the weapons charge, claiming the police department's referral of the case to federal prosecutors violated his due process rights. The district court denied the motion, sentencing Mr. Maxwell to six months in prison for the drug offense and a consecutive five year minimum mandatory prison term for the weapons charge. The district court imposed six years of supervised release following his release from prison.

I

On appeal, Mr. Maxwell renews his claim that his attorney represented him so ineffectively that fairness dictates a new trial. He asserts that although his attorney recognized a need for expert testimony that thirteen ounces of marijuana represented a typical quantity for a drug addict's personal use, counsel failed to secure available witnesses for trial. As a result, Mr. Maxwell maintains he was unable to counter the government's allegation that the quantity of marijuana evidenced his intent to distribute the drug. Moreover, Mr. Maxwell claims his attorney could not make a reasonable strategic decision to forego expert testimony because he interviewed only one of five individuals defendant recommended as experts. In sum, defendant contends the jury probably would not have convicted him on the distribution charge had his attorney secured expert testimony from available medical practitioners specializing in substance abuse.

Most claims challenging the effectiveness of defense counsel in a federal criminal trial are brought during habeas proceedings pursuant to 28 U.S.C. § 2255. See Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991). However, because post trial proceedings here developed a factual record of sufficient depth and detail for review of "the tactical reasons for trial counsel's decisions, the extent of trial counsel's alleged deficiencies, and the asserted prejudicial impact on the outcome of the trial," we may resolve the matter on direct appeal. Id. at 807. A claim of ineffective assistance of counsel raises a mixed question of law and fact which requires "us to view the 'totality of the evidence before the judge and jury.' " United States v. Miller, 907 F.2d 994, 997 (10th Cir.1990) (quoting Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980)); see also Laycock v. New Mexico, 880 F.2d 1184, 1187 (10th Cir.1989) (ineffective assistance of counsel claims subject to de novo review). Because the Sixth Amendment right to counsel embodies the right to the effective assistance of counsel, we must overturn any conviction where counsel's actions "so undermined the proper functioning of the adversarial process" that legitimate questions remain whether the trial produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).

To succeed with a claim of ineffective assistance of counsel, a defendant must demonstrate "his attorney's performance fell below an objective standard of reasonableness" and that but for counsel's deficiencies a reasonable probability exists the proceedings would have resulted in a different verdict. Miller, 907 F.2d at 997; see also United States v. Rhodes, 913 F.2d 839, 844 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1079, 112 L.Ed.2d 1184 (1991). Restated, Mr. Maxwell must show his attorney's performance was both substandard and prejudicial to his defense, taking into account the strength of the government's case. United States v. Rivera, 900 F.2d 1462, 1474 (10th Cir.1990). Trial strategies necessarily evolve without the benefit of hindsight. Accordingly, we afford a high level of deference to the reasonableness of counsel's performance in light of all the circumstances at the time of the alleged error. See Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; Miller, 907 F.2d at 997. The ultimate inquiry, of course, focuses " 'on the fundamental fairness proceeding.' " Miller, 907 F.2d at 997 n. 6 (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069).

Mr. Maxwell's trial attorney, Mr. Randall Cox, admitted during a post trial hearing that his client gave him the names of "quite a few" character witnesses. Mr. Cox testified that he elected not to pursue those individuals, however, because his client's character was not in issue. Instead, Mr. Cox contacted at least four potential experts, including a psychiatrist specializing in addictive medicine and a fellow counselor at the drug treatment facility where defendant worked, but all refused to testify that thirteen ounces of marijuana represented an amount typically associated with personal use. ² Although one specialist appeared willing to testify as to the underlying reason for Mr. Maxwell's reliance on marijuana, Mr. Cox saw little benefit from her probable testimony....