U.S. v. Meacham

• Decision Date: 29 May 2009
• Docket Number: No. 08-3082.,08-3082.
• Citation: 567 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Dewayne MEACHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

567 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Gary Dewayne MEACHAM, Defendant-Appellant.

No. 08-3082.

United States Court of Appeals, Tenth Circuit.

May 29, 2009.

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, CO, appearing for Appellant.

David M. Lind, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, with him on the brief),

Office of the United States Attorney for the District of Kansas, Wichita, KS, appearing for Appellee.

Before TACHA, McKAY, and ANDERSON, Circuit Judges.

TACHA, Circuit Judge.

A jury convicted defendant-appellant Gary Dewayne Meacham of four counts of possessing unregistered destructive devices, in violation of 26 U.S.C. § 5861(d), and one count of aiding and abetting an arson, in violation of 18 U.S.C. § 844(i) and § 2. He appeals the district court's denial, without first holding an evidentiary hearing, of his motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. He also appeals his sentence. We have jurisdiction under 28 U.S.C. §§ 1291 and 3742(a). We AFFIRM the district court's decision regarding the Rule 33 motion but REMAND for resentencing.

I. BACKGROUND

Tony Bishop, who lives in rural Caney, Kansas, reported to the Montgomery County sheriff in February 2005 that his mailbox had been blown up. His only neighbor was Mr. Meacham, who lived with his wife and children across the road. A few months before, Mr. Bishop and Mr. Meacham had been involved in a fist fight.

After determining that an explosive device had been used to destroy the mailbox, and based on information from an informant, the authorities obtained a warrant to search Mr. Meacham's residence and shop. The search revealed four homemade explosive devices and evidence that the devices had been manufactured in Mr. Meacham's shop. None were registered to Mr. Meacham in the National Firearms Registration and Transfer Record. The search also uncovered seven firearms that were registered to Mr. Meacham.

Mr. Meacham was charged with the five counts noted above and proceeded to trial. The government's primary witness was Mr. Meacham's son, Gary DeWayne Meacham, Jr. ("DeWayne"). Sixteen years old at the time of the offenses, he had been charged as a juvenile and placed on probation. DeWayne testified that he and Jerry Simpson, whom Mr. Meacham had allowed to live on the property, assisted Mr. Meacham in blowing up Mr. Bishop's mailbox. He explained that his father was drunk, that he showed DeWayne some explosive devices, and that he told DeWayne and Mr. Simpson to set off the bombs on Mr. Bishop's property. DeWayne said that his father wanted to get back at Mr. Bishop for the fist fight.

DeWayne testified that Mr. Simpson put the first bomb in the mailbox, but it did not explode. DeWayne then put a second bomb into the mailbox, and again, it failed to explode. DeWayne put a third bomb into the mailbox, and it exploded and destroyed the mailbox. Mr. Meacham did not testify at trial. The jury convicted him of all five charges.

During the presentence investigation, Mr. Meacham's trial counsel, Steven Gradert, filed a motion to withdraw based on the breakdown in his relationship with Mr. Meacham. The district court held a hearing and granted the motion. Mr. Meacham's new counsel, David Moses, then entered his appearance.

Through Mr. Moses, Mr. Meacham moved for a new trial under Rule 33, claiming that Mr. Gradert had rendered ineffective assistance at trial. The motion stated: "During the trial, Defendant wished to testify in his own behalf," but Mr. Gradert "refused to permit Defendant to testify on his own behalf." The motion also described what Mr. Meacham's testimony would have been. In short, he would have denied any involvement in the crimes and would have suggested that the explosives found in his home belonged to Mr. Simpson.

Without holding a hearing, the district court denied the motion. In doing so, the district court noted that "this is merely an assertion by counsel in a brief; it is not supported by any affidavit or other testimony under oath from the defendant." United States v. Meacham, 2008 WL 516534, at *3 (D.Kan. Feb.22, 2008).

The district court went on to state:

Defendant's motion does not claim that he did not understand [his right to testify], nor does it address whether Mr. Gradert told him he had such a right. The motion further fails to specify what actions or words Mr. Gradert took or uttered, except to state in conclusory fashion that he "refused to let" the defendant testify. Nowhere does defendant's brief specify in what respect Mr. Gradert's conduct went beyond the realm of a recommendation not to testify into a genuine usurpation of the right to testify. Absent such a basis, the defendant is not entitled to a new trial, nor is he entitled to an evidentiary foray that will further delay his sentencing.

Id.

Mr. Meacham proceeded to sentencing, where he received a 120-month term of imprisonment. He now appeals, asking this court to remand with instructions to the district court to hold an evidentiary hearing on his motion for a new trial. He also contends that he is entitled to be resentenced because the district court incorrectly calculated the applicable range under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines").

II. DISCUSSION

A. Denial of Motion for New Trial Without Holding an Evidentiary Hearing

Citing United States v. Galloway, 56 F.3d 1239 (10th Cir.1995) (en banc), the government argues that Mr. Meacham may only claim ineffectiveness of counsel in collateral proceedings, not on direct appeal. In Galloway, however, we did not consider the precise question facing us today. Rather, that case simply held that a defendant is not required to bring an ineffectiveness claim on direct appeal. Id. at 1241. We reasoned that we could not resolve such a claim without the district court first having developed a factual record and an opinion on the subject, and that in most instances, these prerequisites are not fulfilled until the defendant initiates collateral proceedings. Id. at 1240-41. But we recognized that in rare cases the record is fully developed below. In those instances, the defendant may bring an ineffectiveness claim either on direct appeal or in collateral proceedings. Id. at 1242.

Thus, Galloway does not speak to the issue before us: whether the district court should have held an evidentiary hearing before denying Mr. Meacham's motion for a new trial based on his counsel's alleged ineffectiveness. That question is governed by our decision in United States v. Sands, 968 F.2d 1058 (10th Cir.1992). There, as in the instant case, the defendant filed a motion for a new trial based on ineffective assistance of counsel. The district court denied the motion without conducting a hearing. Id. at 1061. On appeal, we recognized that ineffectiveness claims are generally not resolved on direct appeal, but we also observed that a defendant has the "right to seek a new trial as part of the original criminal proceedings (rather than by way of collateral attack) on the grounds of ineffectiveness of counsel." Id. at 1066. We stated, however, that in those circumstances, a hearing on a motion for a new trial is required only when the defendant's ineffectiveness claim is "colorable." Id.

Turning back to the case before us, we conclude that Mr. Meacham has not presented a colorable claim of ineffective assistance; accordingly, the district court did not abuse its discretion in denying a hearing. See Sands, 968 F.2d at 1066. In the motion, Mr. Moses contended that Mr. Gradert "refused to let" Mr. Meacham testify at trial. See Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir.2004) (obstructing defendant's efforts to testify on his own behalf satisfies the first prong of the Strickland standard). We point out, as did the district court, that this is simply an assertion by counsel in a brief; it is not supported by any affidavit or other testimony under oath from Mr. Meacham. See Meacham, 2008 WL 516534, at *3.¹

In addition, the motion does not describe in sufficient detail the circumstances of Mr. Gradert's behavior. We do not know what words Mr. Gradert uttered in any conversation with Mr. Meacham or what additional steps counsel took to prevent Mr. Meacham from taking the stand. Relatedly, the motion does not claim that Mr. Meacham was unaware of his constitutional right to testify at trial. Without such a claim, and without additional explanation, it is difficult to perceive how Mr. Gradert actually prevented Mr. Meacham from testifying. Of course, only an evidentiary hearing would reveal all of the relevant facts. To be entitled to such a hearing, however, a defendant must assert more than the bare conclusion that counsel "refused to let" the defendant testify. Cf. Cannon, 383 F.3d at 1171 (setting forth a detailed claim in a habeas petition that counsel prevented the petitioner from testifying at trial; petitioner alleged, among other things, that petitioner had begun to take the stand when "trial counsel quickly sprang out of the chair and said that the defense rests in order to cut the petitioner off"). Accordingly, we conclude that Mr. Meacham's ineffectiveness claim is not colorable and that the district court did not abuse its discretion in denying the motion for a new trial without first holding an evidentiary hearing.²

B. Sentencing

The district court grouped the five counts of conviction pursuant to U.S.S.G. § 3D1.2(c) and (d), and calculated the base offense level under § 2K2.1. See United States v. Meacham, 2008 WL 789833, at * 1 (D.Kan. Mar.19, 2008). Because the destructive devices met the definition set forth in 26 U.S.C. § 5845(a), and because the district court determined that Mr. Meacham was a "prohibited person," Meacham, ...