U.S. v. McCullah, 93-7118

• Decision Date: 05 February 1996
• Docket Number: No. 93-7118,93-7118
• Citation: 76 F.3d 1087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Javilo McCULLAH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1087

76 F.3d 1087

UNITED STATES of America, Plaintiff-Appellee, v. John Javilo McCULLAH, Defendant-Appellant.

No. 93-7118.

United States Court of Appeals Tenth Circuit.

Feb. 5, 1996.

Gary Peterson, Oklahoma City, Oklahoma (Stephen J. Greubel and Stephen J. Knorr of Office of Federal Public Defender, Tulsa, Oklahoma, with him on the brief), for defendant-appellant.

Robert J. Erickson, Department of Justice, Washington, DC (John Raley, United States Attorney, Sheldon J. Sperling and Paul G. Hess, Assistant United States Attorneys, Muskogee, Oklahoma, with him on the brief), for plaintiff-appellee.

Before SEYMOUR, Chief Judge, ANDERSON and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

This appeal challenges a death sentence imposed under the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e). Defendant-appellant John Javilo McCullah was convicted of drug conspiracy, 21 U.S.C. § 846 (Count 1); conspiracy, 18 U.S.C. § 371 (Count 13); interstate travel with intent to commit murder, 18 U.S.C. §§ 1958, 2 (Count 14); and murder in furtherance of a continuing criminal enterprise, 21 U.S.C. § 848(e) and 18 U.S.C. § 2 (Count 16), and sentenced to death on the capital murder charge. Mr. McCullah appeals both his conviction and sentence on the capital charge as well as his convictions and sentences on other related counts. We affirm all of Mr. McCullah's convictions, but we remand the case for resentencing.

Background

This case arises from the activities of a large California-based drug organization managed by Joseph "Eddie" Arvizu. The Arvizu organization distributed cocaine and marijuana across the country in trucks. Members of the organization included: Ray Molina, Mr. Arvizu's cousin and confidante; Norwood Hutching, an Oklahoma rancher and businessman who oversaw the cross-country transportation; Tony Wiscowiche, a close confidante of Mr. Arvizu; Thomas "Stimey" Sanchez, a guard and occasional drug courier; and Gabriel Lozano, another guard and courier.

In April 1991, a pickup truck containing nearly 100 kilograms of cocaine was stolen from the Arvizu organization by James Shiew, one of the organization's cross-country drivers. The truck was parked at the Hulbert, Oklahoma, residence of Ruth Ford at the time of the theft. Upon learning of the truck's disappearance, Mr. Hutching launched a search, offering a reward for the truck's recovery. Both Mr. Hutching and Mr. Arvizu questioned Mr. Shiew about the theft, but he skillfully diverted suspicion from himself and instead implicated a man named Avery Rogers. Mr. Rogers, who operated a combination used car lot and pig farm, was a friend of Ruth Ford, from whose residence the truck had been stolen. Mr. Hutching and Mr. Arvizu soon began to suspect that Mr. Rogers and Ms. Ford were behind the theft.

The Arvizu organization, led by Mr. Arvizu himself, set up headquarters in Tulsa, Oklahoma, to oversee the recovery of the stolen drugs. The organization attempted to kidnap Ms. Ford and make her reveal the whereabouts of the drugs, but this plan was thwarted when Ms. Ford refused to open her door.

Mr. Arvizu's next plan involved an attempted kidnapping and torture of Mr. Rogers. This plan was abandoned when one of Mr. Rogers' farm animals began making noise, betraying the kidnappers' presence.

Mr. Arvizu then decided to attempt a roadside ambush of Mr. Rogers. As Mr. Rogers drove home along a wooded road in his truck, a car blocked the road ahead of him while a van blocked the rear. Mr. Molina and Mr. Sanchez emerged from the car and began firing at Mr. Rogers. Mr. Rogers backed his truck off the road out of the ambush and eventually smashed his truck into a tree in the woods. Under cover of the woods, Mr. Rogers returned to his home on foot and notified the police. After the failure of this ambush, Mr. Arvizu and his party returned to California.

Mr. Arvizu continued to plot against Mr. Rogers after his return to California. In May 1991, Mr. Arvizu hired three non-English-speaking Mexican gunmen--"pistoleros"--and had Mr. Wiscowiche drive them to Oklahoma. Meanwhile, Mr. Molina recruited Joe Mendoza and Mr. McCullah in California to assist in the recovery of the stolen drugs. Mr. McCullah, Mr. Molina, Mr. Mendoza, and Mr. Sanchez all drove from California to Oklahoma together in late May.

Mr. Molina's group rendezvoused with the pistoleros at a lake house in Wagoner, Oklahoma. They were joined there by two other Mexican nationals, bringing the total to five: Poncho, Carlos, Juan, Mikey, and Roberto. Mr. Arvizu and Mr. Hutching arrived at the lake house shortly thereafter, the latter bringing a large cache of firearms. Mr. Arvizu and Mr. Hutching then departed the lake house, never to return.

The group remained at the lake house for about two weeks under the supervision of Mr. Molina. During that time, several plans were devised to kill Mr. Rogers. The initial plan, formulated by Mr. Arvizu and Mr. Molina, was to kidnap and torture Mr. Rogers until he revealed the whereabouts of the drugs, then kill him. A second plan, suggested by Mr. Molina, was to go to Mr. Rogers' used car lot and kill everyone there and then to go after Ms. Ford. The plan finally adopted, designed by either Mr. Wiscowiche and Mr. McCullah, or by Mr. Sanchez, Mr. McCullah and Poncho, was to lure Mr. Rogers away from the used car lot and kill him. Mr. McCullah, being the lone non-Hispanic, volunteered to act as the lure, reasoning that he would arouse less suspicion than the others.

The group then undertook the necessary preparatory steps. Mr. Wiscowiche and Mr. McCullah, acting on Mr. Arvizu's instructions, purchased a total of four used vehicles for the operation. At Mr. Molina's direction, Mr. McCullah and Mr. Wiscowiche also purchased ammunition for the various weapons, and Mr. Wiscowiche cleaned the weapons. Mr. Wiscowiche, Mr. McCullah, and Poncho drove around the region and selected an appropriate ambush site. Mr. McCullah, accompanied by Mr. Wiscowiche, reconnoitered the area around the used car lot. Finally, Mr. Wiscowiche attempted to cut the telephone line leading to Mr. Rogers' car lot, but inadvertantly only cut the ground wire.

On June 3, 1991, Mr. McCullah, posing as a prospective customer, met Mr. Rogers' at his used car lot. Mr. Rogers took Mr. McCullah for a test drive in a Pontiac Fiero, driving out to the ambush site. At the conclusion of the test drive, Mr. McCullah stated that he would return later that day, but he failed to do so. Mr. McCullah reported back to the lake house that Mr. Rogers was "going for the bait."

The next morning, Mr. Molina departed for Los Angeles. He gave Mr. Wiscowiche $5000 to distribute among the people remaining at the lake house, with $2000 to go to Mr. McCullah. Mr. Wiscowiche distributed the money as directed.

Pursuant to the ambush plan explained by Mr. McCullah and Poncho, the other participants drove to their assigned places. Mr. McCullah returned to Mr. Rogers' used car lot, chose another car and asked to test drive it. Unable to accompany him, Mr. Rogers asked one of his employees, Jewell Leon Collins, primarily a detail man, to accompany Mr. McCullah on the test drive. Mr. Collins bore no resemblance to Mr. Rogers. Regardless, Mr. McCullah departed the lot with Mr. Collins in a 1975 Chevrolet.

Mr. McCullah drove the Chevrolet to the prearranged ambush site with Poncho and Carlos following them in another car. Mr. Mendoza and Juan were already on-site in another car to pick up the gunmen. Upon arrival at the ambush site, Mr. McCullah stopped the car and quickly exited the vehicle, leaving Mr. Collins in the vehicle. At the same time Poncho emerged from the trailing car, ran to the Chevrolet, and fired a single shot at point-blank range into Mr. Collins' head, killing him instantly. Mr. McCullah drove away in Poncho and Carlos's car, while Poncho and Carlos joined Mr. Mendoza and Juan in the waiting vehicle. The four drove onto a nearby dirt road and discarded their firearms in the undergrowth.

The entire group except for Mr. McCullah, who apparently returned to California by himself, rendezvoused at a restaurant in Wagoner, Oklahoma, and then proceeded to the Tulsa airport. Mr. Wiscowiche, Carlos and Poncho flew back to Los Angeles, and the others returned by car or bus.

Soon after the murder, the Arvizu organization's drug trafficking operation came under the scrutiny of California law enforcement officials. As the investigation progressed, some members of the organization, including Mr. Lozano, Mr. Wiscowiche and Mr. Shiew, were persuaded to come forward and cooperate with the investigation. This allowed the FBI to piece together what happened in Oklahoma and led to the eventual arrest and 29-count superseding indictment of Mr. McCullah, Mr. Molina, Mr. Mendoza, Mr. Sanchez, and Mr. Hutching. Mr. Arvizu fled to Mexico in January 1992 and has not been seen since. Before the trial began, Mr. Mendoza negotiated a plea bargain in return for his cooperation and trial testimony.

After a one month trial, the jury found Messrs. Molina, Sanchez and McCullah guilty on all counts with which they were charged, respectively, and Mr. Hutching guilty on all counts except counts 26 and 27. The government sought the death penalty against Messrs. Hutching, Molina and McCullah. The jury separately considered the death penalty for each defendant, beginning with Mr. Hutching, then Mr. Molina, and finally Mr. McCullah. The jury rejected the death penalty as to Mr. Hutching and Mr. Molina, but sentenced Mr. McCullah to death.

Mr. McCullah filed a timely notice of appeal, alleging numerous errors in both the guilt and penalty phases of his trial.

Discussion

Guilt Phase Challenges

I. Assistance of Counsel

Mr. McCullah claims that the district court committed multiple errors in its provision of counsel for him. Mr. McCullah argues that two counsel were not properly appointed, that his counsel were not "learned in the law", and that...