U.S. v. Owens

• Decision Date: 10 August 1989
• Docket Number: No. 87-1639,87-1639
• Citation: 882 F.2d 1493
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Freeman OWENS, Defendant-Appellant.

Page 1493

882 F.2d 1493

UNITED STATES of America, Plaintiff-Appellee, v. Donald Freeman OWENS, Defendant-Appellant.

No. 87-1639.

United States Court of Appeals Tenth Circuit.

Aug. 10, 1989.

Alan F. Zvolanek, Albuquerque, N.M., for defendant-appellant.

Mark Jarmie, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty. and Jennifer A. Salisbury, Asst. U.S. Atty., Albuquerque, N.M., were on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SETH and ANDERSON, Circuit Judges.

HOLLOWAY, Chief Judge.

Defendant Donald Freeman Owens (Owens) filed a motion for relief under 28 U.S.C. Sec. 2255 (1982), claiming that he was denied effective assistance of counsel. The district court, adopting the magistrate's proposed findings of fact and recommended disposition, denied the motion and dismissed. We affirm.

I Factual Background and Procedural Posture

Owens was convicted on ten counts of making false statements in the acquisition of firearms, a violation of 18 U.S.C. Sec. 922(a)(6) (1982) and 18 U.S.C. Sec. 924(a) (1982). He was also convicted on four counts of receiving firearms as a felon, a violation of 18 U.S.C. Sec. 922(h)(1) (1982) and 18 U.S.C. Sec. 924(a) (1982). The jury found him not guilty on one count (Count 15) charging him with possession of a firearm as a felon. We affirmed his convictions on direct appeal in United States v. Owens, No. 84-1856 (May 20, 1985). Owens then filed a Fed.R.Crim.P. 35 motion, which was denied. This motion for relief under Sec. 2255 followed. That motion was denied and this appeal was taken.

A. Evidence Seized Pursuant to the Search Warrant and Admitted at Trial

Owens' conviction was supported by documents and photographs seized at his residence during a warrant search. ¹ Police officers Nester and Harper executed an affidavit in support of the warrant. I R. 8, Ex. A. The affidavit contains a detailed description of the exterior of Owens' home. It describes the property to be searched for, including methamphetamine, a methamphetamine laboratory, methamphetamine paraphernalia, records showing the source and the prices for methamphetamine, writings showing the identity of Donald Freeman Owens or Jimmy or Jim Owens, and "ALL FIREARMS & AMMUNITION in the residence, vehicles or curtilage of the property...." I R. 8, Ex. A. The affidavit was based substantially on information obtained from a confidential informant. II R. 67.

The day before trial, Owens' attorney filed a motion to suppress evidence, arguing that the "warrant was obtained by false, inaccurate, misleading and perjured" statements in the affidavit. Mr. Farrah asked the court to grant a hearing on the motion and to suppress the evidence obtained during the search. I R. 8. The trial court denied the motion to suppress without an evidentiary hearing. I R. 11. The evidence was introduced and Owens was convicted on all but one count. No challenge to the trial court's denial of the motion to suppress and denial of the hearing was raised on direct appeal.

B. Testimony for Owens in Support of the Sec. 2255 Motion

Before ruling on Owens' motion for Sec. 2255 relief, the United States Magistrate held an evidentiary hearing pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings in the United States District Courts. ² At the hearing, Owens' attorney on appeal, Mr. Zvolanek, informed the court that he had spoken to a Mr. Thompson. Thompson is the person referred to in the affidavit who allegedly took the confidential informant to Owens' home. ³ Zvolanek said that Thompson would testify, if he were available, that he had never been to Owens' home. This testimony would contradict the information related by the confidential informant in the warrant affidavit. See footnote 3. Zvolanek requested an opportunity to depose Thompson. II R. 6, 9. The court indicated that it would consider allowing Owens' attorney the opportunity to depose Thompson, but counsel's request was never granted. II R. 96.

The first witness at the evidentiary hearing was Owens' attorney at trial and on direct appeal, Mr. Farrah. He said that he and Owens had gone to Thompson's house. Thompson indicated that he had seen Owens but did not know him and had not been in his house or dealt with him. II R. 12. Thompson also told Farrah that he had never purchased drugs from Owens. II R. 13. Farrah attempted to subpoena Thompson to testify at the hearing on the motion to suppress, but his process server was unable to locate him. II R. 16.

Shelly Watkins, who was living at Owens' residence when it was searched, testified that although she had seen Thompson down the street, she did not know him and had never seen him at Owens' house. II R. 20-21. Owens also testified that he did not know Robert Thompson and that Thompson had never been to his house. II R. 28. He also said that when he and Farrah went to talk with Thompson, Thompson said that he had never told anyone that Owens was manufacturing methamphetamine. II R. 28, 30. ⁴ Owens said that he told Farrah that the search warrant was false and asked him to file a motion to suppress. II R. 32.

C. Testimony for the Government in Opposition to the Sec. 2255 Motion

Alcohol, Tobacco, and Firearms agent Fuller, who participated in the search of Owens' home, testified that before the warrant was executed, he had investigated Owens. He had seen Owens with a known chemical supply person and had checked with the DEA to find out if they knew anything about Owens. Fuller also checked Owens' name with Albuquerque gun dealers and discovered that someone named "Jimmy Owens" had been purchasing paramilitary weapons. II R. 50. Fuller found fifteen to twenty different gun dealers that had records of having sold guns to Owens. II R. 50. He took down information from these various dealers. II R. 52. Fuller knew that Donald Freeman Owens had been purchasing guns as a felon under a false name (his brother's name was Jimmy Owens) prior to the execution of the search warrant. II R. 54, 56-58.

Fuller said that he had received information relating to all of the counts charging Owens with receiving firearms as a felon (counts IV, VI, VIII, and X) prior to the search. II R. 55-56. Fuller also said that all of the counts charging Owens with false statements in the acquisition of firearms were supported by records of which he had knowledge prior to the search. II R. 57-58. The only receipts found during the search were from Ron Peterson's guns and the Golden West in Bosque Farms. Fuller had already obtained the information from Ron Peterson's guns. II R. 65. And the receipt relating to the purchase of a weapon from the Golden West did not involve a weapon listed in the indictment. II R. 65.

Officers Harper and Nestor, co-affiants on the affidavit, admitted that most of the information in the affidavit was obtained from the confidential informant. II R. 67. They said, however, both in the hearing and in the affidavit, that they corroborated the information received from the confidential informant. Harper confirmed that Owens' residence matched the description given by the informant. II R. 68. He confirmed with postal authorities that Thompson received mail at the address given. II R. 69. He checked the registration on a vehicle at Owens' residence and performed a records check on Owens as well. II R. 71-72. Harper also had the confidential informant purchase a quantity of methamphetamine from Owens and confirmed that it was methamphetamine. II R. 75.

Harper said that after he had checked the information given by the confidential informant, he believed that he was telling the truth, although he admitted that the informant could not identify Owens at the line up. II R 76, 79. Like Harper, Nestor testified that he corroborated the information received from the informant; that he had been in contact with the informant three weeks prior to the search. II R. 90, 94-95. He advised the informant that if the information given was false, criminal charges possibly would be brought against him. II R. 91.

D. The Rulings Below

The magistrate proposed a finding that Owens' convictions for making false statements in the acquisition of firearms and for receiving firearms as a felon were supported by evidence not obtained pursuant to the contested search warrant. I R. 62, p. 2. His proposed finding also was that defendant had failed to show both that his counsel was ineffective and that there was a reasonable probability that, but for counsel's errors, the outcome would have been different. I R. 62. The district court adopted the magistrate's proposed findings after a de novo review and denied the motion. A timely notice of appeal was filed.

II Analysis

The defendant argues that he was denied his Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The claim is based on Mr. Farrah's alleged failure to provide the trial court with proper information to obtain an evidentiary hearing of the kind referred to in Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 2684-2685, 57 L.Ed.2d 667 (1978), to challenge statements made in the search warrant affidavit. ⁵ Since the principal allegation of the Sixth Amendment claim is Farrah's handling of the Fourth Amendment claim, the Franks claim, Owens must prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different, absent the excludable evidence, to demonstrate actual prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986). ⁶ The defendant's Fourth Amendment claim "is one element of proof of his Sixth Amendment claim...." Id. Accordingly, we turn first to the Fourth Amendment claim.

A. The Merit of Owens' Fourth Amendment Claim

Owens argues that if the motion to suppress had been pursued more effectively, the trial court would have granted an evidentiary hearing at...