U.S.A v. Munoz

• Citation: 605 F.3d 359
• Decision Date: 18 May 2010
• Docket Number: No. 09-5357.,09-5357.
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Richard MUNOZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

605 F.3d 359

UNITED STATES of America, Plaintiff-Appellant,v.Richard MUNOZ, Defendant-Appellee.

No. 09-5357.

United States Court of Appeals Sixth Circuit.

Argued: March 2, 2010.

Decided and Filed: May 18, 2010.

Rehearing and Rehearing En Banc Denied Aug. 27, 2010.

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ARGUED: Perry H. Piper, Assistant United States Attorney, Chattanooga, Tennessee, for Appellant. Martha M. Hall, Law Offices of Martha M. Hall, San Diego, California, for Appellee. ON BRIEF: Scott A. Winne, Assistant United States Attorney, Chattanooga, Tennessee, for Appellant. Martha M. Hall, Law Offices of Martha M. Hall, San Diego, California, for Appellee.

Before: BOGGS and NORRIS, Circuit Judges; ADAMS, District Judge. ^*

OPINION

BOGGS, Circuit Judge.

This case reaches us in an unusual posture: the government appeals the district court's grant of a new trial under Federal Rule of Criminal Procedure 33. In the underlying trial, defendant Richard Munoz was found guilty of conspiracy to distribute methamphetamine and aiding and abetting distribution of methamphetamine. Approximately two months after the verdict, but before sentencing, Munoz obtained new counsel. Thereafter, Munoz belatedly moved for a new trial, arguing that trial counsel had provided constitutionally ineffective assistance. After an evidentiary hearing, the district court granted the motion, specifically grounding its new-trial grant on the violation of Munoz's Sixth Amendment right to effective assistance of counsel.

We hold that the district court did not abuse its discretion in determining that Munoz's untimely filing of his Rule 33 motion was the result of excusable neglect. However, because we find that trial counsel's assistance more than met the minimum standard required by the Sixth Amendment, we reverse the district court's grant of a new trial. We leave for another day the question, addressed neither by the district court nor the parties on appeal, whether a district court may grant a new trial based on lackluster representation that does not fall below the constitutionally required standard.

I. BACKGROUND

A. Pre-Trial Events

In July 2006, Carol Ann O'Neal was arrested for selling methamphetamine to an undercover officer in Warren County Tennessee. O'Neal cooperated with the authorities and led them to her supplier, Aaron George, a resident of Arizona. By this time, the Tennessee Bureau of Investigation (“TBI”) had taken control of the developing case. George, in turn, agreed to cooperate and identified his source, Jose Luis Tagaban, who lived in Imperial, California.

With TBI agents listening in, George called Tagaban and arranged for a methamphetamine shipment to McMinnville, Tennessee. Tagaban told George to wire $2,000 to Richard Munoz in El Centro, California. On July 17, 2006, TBI agents did so. The next day, Munoz picked up the money order. On July 20, 2006, a federal Drug Enforcement Administration agent photographed Munoz leaving a FedEx office in Imperial, California. The following day, a FedEx package containing approximately 586 grams of methamphetamine arrived at the McMinnville address George had provided Tagaban.

On July 25, 2006, federal drug charges were filed in the Eastern District of Tennessee against O'Neal, George, Tagaban, Munoz, and two others. Two days later, Tagaban and Munoz were arrested in Imperial, California. Both men waived their Miranda rights and were immediately interviewed by TBI agents Mark Delaney and Heath Frizzell. Paul Bergmann was assigned to Munoz as trial counsel. At some point thereafter, all defendants except Munoz agreed to plead guilty and cooperate with the government. The last of Munoz's co-defendants to plead guilty, George, did so on October 26, 2006-twelve days before trial.

B. Munoz's Trial1. Delaney and Frizzell

At trial, TBI agents Delaney and Frizzell testified that during their post-arrest interview with Munoz on July 27, 2006, he had admitted knowingly shipping drugs via FedEx at Tagaban's request. According to Frizzell, at that interview, Munoz had “stated that he knew there was drugs inside of the packages [he had shipped for Tagaban,] but he knew that it wasn't marijuana.” Similarly, Delaney testified that Munoz had admitted “that he knew both boxes contained drugs but he did not know ... what type of drugs,” although “he knew it was not marijuana.”

2. Tagaban

Tagaban testified that he had caused methamphetamine to be shipped to George in McMinnville, Tennessee on numerous occasions. Tagaban always shipped the drugs via FedEx, generally using a carrier named Jeffery Jimenez to take the packages to the FedEx depot. On two occasions, however, Jimenez was unavailable, and Tagaban instead used Munoz, who was both his personal friend and his co-worker at the Imperial Irrigation District, where the two men made their rounds together in the same truck.

On the first such occasion, in March or April 2006, while Tagaban and Munoz were on the job, Tagaban handed Munoz a sealed package already prepared for shipment, telling Munoz that it contained “a couple of t-shirts and a coffee mug.” However, on the second occasion-the July 2006 transaction which gave rise to the charges at issue-Tagaban prepared the shipment while Munoz watched. In Munoz's presence, Tagaban placed a clear plastic bag containing white powder in the box; when Munoz asked what the powder was, Tagaban told him it was “meth.” Tagaban asked Munoz to take the box to FedEx, and Munoz agreed to do so. Tagaban never paid Munoz for his assistance.

Tagaban also testified that he would occasionally hold parties at his house attended by his drug-dealer friends, as well as by Munoz. According to Tagaban, at one of these parties, about two months prior to his and Munoz's arrest, Tagaban “did a [drug] transaction right there in front of [Munoz],” selling two ounces of methamphetamine to a man named Jeffrey Dalente while Munoz looked on. Accordingly, Tagaban was “pretty sure [Munoz] had to know” Tagaban “[was] a drug dealer.”

3. George

George testified that he had received drugs on many occasions from Tagaban, and that he would often pay Tagaban in person while Tagaban was on the job at the Imperial Irrigation District. George would hand Tagaban between $8,000 and $20,000 in cash, “plain as day,” while Tagaban was in his Irrigation District truck. On some of those occasions, Tagaban would provide George with drugs. According to George, Munoz was “almost always” present in the passenger seat of the truck during these transactions.

George also testified that he attended some of Tagaban's parties, that he saw Munoz there, and that drugs were in use at the parties, but did not testify one way or the other as to whether Munoz saw the drugs or as to any drug transactions at the parties.

4. Munoz

Munoz contradicted much of the above testimony. He acknowledged that he was Tagaban's friend and coworker at the Imperial Irrigation District, and he admitted having retrieved the money order wired by the TBI agents at Tagaban's request. However, Munoz claimed that Tagaban had told him that the money order was from “a friend in Tennessee that owed [Tagaban] some money” and that Tagaban would be using the money to pay a bail bondsman who had posted Tagaban's bail for an unrelated arrest. Munoz also testified that while he had twice taken packages to FedEx for Tagaban, he did not know on either occasion that the package contained drugs; both times, the package had already been sealed when Tagaban handed it to him.

With respect to the second package, Munoz testified on direct examination:

Q. All right. Did [Tagaban] reassure you that it was okay, that he was just mailing things to friends?

A. Yes. I think ... Mr. Tagaban ... told me, “Don't worry about it, bro. I'm not going to put you-” He said, “Everything's fine.”

The government cross-examined Munoz on this particular point as follows:

Q. And [Tagaban] ... said to you, on the second package, “Don't worry. Everything's fine. Don't worry about it.” You agree with ... that, too?

A. Yes. He-Yes.

* * *

Q. So on that second package, he had some reason to tell you, “Don't worry about it. Everything's fine[?]”

A. I guess. I guess he did.

Q. Did you suspect that everything was not okay?

A. No. I had no reason to distrust him, no.

Q. Did you express some hesitation about sending a Fed Ex package that would cause him to say that to you?

A. No. What it was, it was that it was-I said it like a joke. I turned around, and I just said, “What, am I going to be a personal mailman?” since he had-this was the second time he had asked me.

Q. Okay. So it was a joke for you?

A. No, I was just joking around with him at the time. And he said-that's when he said that, “Come on, bro.” He goes, “Just send this package for me.” He goes-he goes, “I won't put you-” He said, “Everything-” He said, “I won't put you in a bind,” or “I wouldn't put you-” basically, yeah, “I wouldn't put you in a bind.”

With respect to his post-arrest interview with Delaney and Frizzell, Munoz testified:

A. At the end of the interview, Officer Frizzell ... asked me, ... “You knew that there was drugs in the box.” He goes, “What was in the box?” And I said, “I don't know.” And he goes, “Well-” he basically said, kind of like, “Take a guess.” And I said, “I don't know.” And he goes-I said, “I know it wasn't marijuana.” And he stated, “Because of the smell?” And I said, “Well, I think if it was marijuana, it wouldn't-I think it was something bigger, because I'm here.” And I believe there was something bigger in the box. And he asked, “Well, what do you think?” And I said, “I don't know. I think it was cocaine.” That's what I said.

* * *

Q. Did you really know what was in the box, either box?

A. No. No, I didn't.

Munoz testified that he had visited Tagaban's house several times to watch pay-per-view boxing, but that he had not attended any “parties.” The extent of the activities at those gatherings was Munoz, Tagaban, Tagaban's family and “maybe...