U.S. v. Span
| Citation | 75 F.3d 1383 |
| Decision Date | 02 February 1996 |
| Docket Number | Nos. 94-10238,94-15997,s. 94-10238 |
| Parties | 96 Cal. Daily Op. Serv. 763, 96 Daily Journal D.A.R. 1184 UNITED STATES of America, Plaintiff-Appellee, v. Darlene SPAN; Jerry Span, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Darlene and Jerry Span, Phoenix, Arizona, Pro pers, defendants-appellants, and Chadwick M. Cord, Phoenix, Arizona, for defendants-appellants.
Paul V. Rood, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.
Appeals from the United States District Court for the District of Arizona.
Before: GIBSON, * GOODWIN, and HUG, Circuit Judges.
Darlene and Jerry Span, sister and brother, were each convicted in federal court of assaulting a federal officer in violation of 18 U.S.C. § 111. 1 Their convictions were affirmed on direct appeal, United States v. Span, 970 F.2d 573 (9th Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993), and they now appeal pro se the district court's denial of their petition for a writ of coram nobis under 28 U.S.C. § 1651, and their motion to vacate their federal sentences under 28 U.S.C. § 2255.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court's denial of the Spans' section 2255 motion. We find that the Spans were denied their Sixth Amendment right to effective assistance of counsel due to their trial counsel's failure to offer proper jury instructions, and their counsel's failure to object to misleading instructions. 2
The Spans own a building supply store in Phoenix, Arizona. On April 7, 1988, two federal marshals, David Dains and Garry Grotewold, appeared at the Spans' store in search of a fugitive, Mickey Michael. The Spans have a brother by that name, and the marshals were mistakenly informed that the brother was the fugitive for whom they searched.
The trial produced two very different versions of events. Two witnesses testified for the defense: Kerrie Rogers and Helen Brock. Neither knew the Spans personally. They were both customers at the Spans' store who were shopping that day and happened to witness the encounter between the Spans and the marshals. They testified that the marshals drove up to the Spans' store and approached Ms. Span. She met and greeted them. They showed her a wanted flyer, and asked her if she knew the subject. Ms. Span said she did not know the person At that point, Marshal Dains ran up to Ms. Span, grabbed her from behind by her ponytail, and threw her against a fence. They both fell to the ground, with Ms. Span trying to get Marshal Dains' hands off her hair. In the scuffle, Dains broke his glasses, which cut and scratched his face. He then dragged Ms. Span backwards, picked her up and pushed her against a car and held her in a chokehold until local police arrived. Marshal Grotewold tackled Mr. Span from behind. "He just come down with a karate chop to the back of his head and his knee and hit him and that was the end of Jerry." 3 [RT Mar. 2, 145]. Marshal Grotewold threw Mr. Span to the ground, then picked him up, threw him on the car and held him in a chokehold until the local police arrived.
on the flyer. They started arguing, and the marshals accused Ms. Span of hiding the fugitive. Ms. Span insisted that she did not know the person on the flyer. She offered to make a copy of the flyer to pass around, but the marshals refused. Mr. Span then approached and asked Ms. Span what was happening. Ms. Span read the flyer to Mr. Span, he said he did not know the fugitive, and they returned the flyer to the marshals and asked them to leave. The Spans said they were busy and that they couldn't help the marshals anymore, and they began to walk away
The two marshals told quite a different story at trial. They testified that it was Ms. Span who attacked Marshal Dains from behind, clawed his face, and popped his knee. Only after Ms. Span attacked first did Marshal Dains move her onto the car to more easily handcuff her. Similarly, they testified that Mr. Span hit Marshal Grotewold in the chest, and only after feeling what he thought was Mr. Span going for his gun did Marshal Grotewold strike Jerry. The marshals testified that they identified themselves as such; the defense witnesses testified to the contrary. The Spans did not testify. 4
After receiving the adverse verdict, the Spans filed a motion for a new trial, which was denied. Their conviction was affirmed. Span, 970 F.2d 573. We found error in the jury instructions, but did not reverse because trial counsel had waived the error. The Spans filed a coram nobis petition, and then a section 2255 motion to vacate the judgment. The district court ruled on the petition and motion together, denying both and vacating the stay of their sentences. The Spans now appeal the denial of their coram nobis and section 2255 petitions.
Coram nobis relief is available only if, inter alia, "a more usual remedy is not available." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). In this case a more usual remedy, under section 2255, is available. 5 We thus convert the Spans' coram nobis petition into a section 2255 petition. See Baker v. United States, 932 F.2d 813, 814 (9th Cir.1991) (). We review the district court's denial of a section 2255 motion de novo. Doganiere v. United States, 914 F.2d 165, 167 (9th Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1398, 113 L.Ed.2d 454 (1991). We review factual findings for clear error. Id.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " 'An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.' " Frazer v Claims of ineffective assistance of counsel can be raised for the first time on a section 2255 motion. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). We review ineffective assistance of counsel claims de novo. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir.1991).
United States, 18 F.3d 778, 782 (9th Cir.1994) (quoting Strickland, 466 U.S. at 685, 104 S.Ct. at 2063). To prevail on a claim of ineffective assistance of counsel, petitioner must show 1) his attorney's performance was unreasonable under prevailing professional standards; and 2) there is a reasonable probability that but for counsel's unprofessional errors, the results would have been different. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). "Strickland defines a reasonable probability as 'a probability sufficient to undermine confidence in the outcome.' " Id.
Our review of counsel's performance is highly deferential. United States v. Cochrane, 985 F.2d 1027, 1030 (9th Cir.1993). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance which, under the circumstances, might be considered sound trial strategy. United States v. Molina, 934 F.2d 1440, 1447 (9th Cir.1991).
Although the Spans allege numerous errors by their trial counsel, we reverse because of counsel's bungled handling of the jury instructions and do not reach the other issues. We find that the defense counsel's conduct with respect to the jury instructions was unreasonable and far below prevailing professional standards. See Gray v. Lynn, 6 F.3d 265, 269 (5th Cir.1993) () (quoting Ricalday v. Procunier, 736 F.2d 203, 207 (5th Cir.1984)); Patterson v. Dahm, 769 F.Supp. 1103, 1107-13 (D.Neb.1991) ().
The erroneous jury instructions were the subject of the direct appeal. We held that while there was error--defendants lost an opportunity to instruct the jury on an important affirmative defense--trial counsel failed to preserve the issue for appeal and the conviction was affirmed.
There were four affirmative defenses at issue in the trial. The first was general self-defense. Defendants offered an instruction based on Ninth Circuit Model Instruction 6.05 (West 1989): [Defendant's No. 10].
The second theory of defense was based on a mistake of fact that would negate general intent--that is, that the Spans did not know that the two marshals were federal officers. The defendants offered the following instruction:
The Defendants' state of knowledge may be a relevant consideration under the crime charged. The crime upon which Jerry Span and Darlene Span have been charged does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent. [Defendants' No. 15].
The district court rejected these two instructions, and instead substituted a more specific "self-defense"...
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