United States v. Watson

• Decision Date: 11 September 2014
• Docket Number: No. 12–5104.,12–5104.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Vincent Bret WATSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

766 F.3d 1219

UNITED STATES of America, Plaintiff–Appellee,

v.Vincent Bret WATSON, Defendant–Appellant.

No. 12–5104.

United States Court of Appeals,Tenth Circuit.

Sept. 11, 2014.

J. Lance Hopkins, Tahlequah, OK, for Defendant–Appellant.

Joel-lyn A. McCormick, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, with her on the brief), Tulsa, OK, for Plaintiff–Appellee.

Before HOLMES, MURPHY, and MATHESON, Circuit Judges.

HOLMES, Circuit Judge.

Defendant–Appellant Vincent Watson was convicted by a jury of five counts relating to the cultivation and distribution of marijuana. He raises three challenges to his conviction on appeal: (1) that his second counsel provided ineffective assistance by failing to adequately pursue, and communicate with him about, the possibility of entering into a plea agreement with the government; (2) that the district court violated his rights under the Speedy Trial Act (“STA” or “the Act”) by granting the government an ends-of-justice continuance following his co-defendant's decision to plead guilty and cooperate with the government a week before trial was scheduled to begin; and (3) that the district court improperly admitted testimony regarding Mr. Watson's previous cultivation and distribution of marijuana. For the reasons that follow, we reject all three of Mr. Watson's claims and affirm his conviction.

I

Pursuant to a five-count indictment, Mr. Watson and his co-defendant, David Shuck, were charged with: one count of conspiring to manufacture marijuana in violation of 21 U.S.C. § 846 (Count 1); one count of manufacturing 100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1) (Count 2); two counts of using and maintaining a place for the purpose of manufacturing marijuana in violation of 21 U.S.C. § 856(a)(1) (Counts 3 and 4); and one count of possessing with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) (Count 5). The conspiracy charged in Count 1 was alleged to have lasted from sometime in 2010 to approximately July 29, 2011. We set forth only the factual and procedural background relevant to each of Mr. Watson's three claims.¹

Following Mr. Watson's indictment and arrest, Assistant Federal Public Defender Stephen Greubel was appointed to represent him. Well before trial was scheduled to begin, Mr. Greubel met with the government on behalf of Mr. Watson to discuss the possibility of a plea agreement; the government offered to enter into a plea agreement with Mr. Watson. Under that agreement, Mr. Watson would be obliged to plead guilty to Count 3—a felony charge of using and maintaining a place for the purpose of manufacturing marijuana. In return, the government would, inter alia, dismiss all of the remaining charges in the indictment against Mr. Watson. Mr. Greubel relayed that offer to Mr. Watson and explained to him the consequences of pleading guilty. Mr. Watson rejected the offer, explaining to Mr. Greubel that he did not want a felony conviction on his record because that could result in the loss of his license to sell insurance.

At the January 6, 2012, pretrial conference, both Mr. Watson and Mr. Shuck stated that they intended to go to trial. Three or four days later, however, Mr. Greubel was informed that Mr. Shuck intended to plead guilty and begin cooperating with the government. Sometime between January 9 and 11, due to the changed circumstances, Mr. Greubel again contacted the government to see whether the opportunity for Mr. Watson to enter into a plea agreement was still available. The government informed Mr. Greubel that, other than the third base-offense-level point for acceptance of responsibility that was included in its first plea offer, the same plea deal previously offered remained available until the end of business on January 11.

On January 11, Mr. Greubel met with Mr. Watson to relay the terms of the government's second plea offer. Again, Mr. Watson stated that he was not interested in pleading guilty and that he wanted to go to trial. Moreover, Mr. Watson informed Mr. Greubel that he had retained counsel, W. Creekmore Wallace, II, to represent him at trial and that Mr. Greubel's services were no longer needed. After the meeting, Mr. Greubel called Mr. Wallace and informed him of the government's most recent plea offer and of Mr. Watson's rejection of it. Mr. Wallace later acknowledged that he learned of the government's second plea offer as well as Mr. Watson's rejection of it, and indicated that he never personally discussed plea negotiations with Mr. Watson.

The trial was set to begin on January 17, 2012. But, in light of Mr. Shuck's recent change of plea and willingness to cooperate, the government moved to continue the trial pursuant to an ends-of-justice continuance under the STA, 18 U.S.C. § 3161(h)(7)(A). According to the government, debriefing sessions with Mr. Shuck on January 10 and 11 necessitated that it seek a continuance to further investigate the information that he provided. Specifically, the government asserted that it required more time (1) to conduct additional debriefing sessions with Mr. Shuck, (2) to interview numerous individuals identified by Mr. Shuck that might be material witnesses, and (3) to obtain documents described by Mr. Shuck. Relying on the government's three asserted bases, the district court granted its motion for an ends-of-justice continuance and continued the trial for thirty-five days, until February 21, 2012.²

Prior to the newly set trial date, the government filed notice under Federal Rule of Evidence 404(b) of its intent to offer evidence at trial regarding Mr. Watson's past drug-related conduct. Specifically, the government intended to offer the testimony of two witnesses—Mr. Shuck and a then-unnamed witness—regarding Mr. Watson's cultivation and distribution of marijuana in the mid-to-late 1990s through approximately the mid–2000s. After questioning Mr. Shuck outside of the presence of the jury and over Mr. Watson's objection, the district court granted the motion as to Mr. Shuck, reasoning that such evidence was intrinsic to the crimes alleged and thus was not other-acts evidence subject to the strictures of Rule 404(b). Accordingly, at trial, the government offered Mr. Shuck's testimony regarding his and Mr. Watson's past marijuana cultivation and distribution.

The government did not call the unnamed witness specified in its 404(b) notice to testify during its case-in-chief. After Mr. Watson took the witness stand in his own defense, however, the government did call that witness in rebuttal; the previously unnamed witness was Ms. Shelby Armbruster. Again, over Mr. Watson's objection, the district court admitted her testimony, but for a different reason than it admitted Mr. Shuck's—that is, instead of concluding that her testimony was intrinsic to the crimes charged, or even that it was admissible under Rule 404(b), the district court concluded that it was admissible to impeach Mr. Watson's earlier testimony.

In the end, the jury found Mr. Watson guilty on all five counts. A few weeks after trial, Mr. Watson sent a letter to the district court stating that he wanted a second chance at the government's plea offer and that, for a variety of reasons, he had been unable to give it full and appropriate consideration at the time it was presented to him. Shortly thereafter, Mr. Wallace withdrew as Mr. Watson's counsel and Lance Hopkins was appointed to represent Mr. Watson. Subsequently, Mr. Watson filed a motion to vacate the jury's verdict and for a new trial on the grounds that Mr. Wallace provided ineffective assistance of counsel by failing to inform Mr. Watson of the risks of proceeding to trial and, relatedly, for failing to enter into plea negotiations with the government.

The district court denied the motion, reasoning that Mr. Wallace did not provide deficient performance because, inter alia, Mr. Greubel adequately informed Mr. Watson of the consequences of proceeding to trial and the potential benefits of pleading guilty, and Mr. Wallace was aware that Mr. Watson had rejected the government's two prior offers. Furthermore, the district court noted that, even if Mr. Wallace's performance was deficient, “it is doubtful” that Mr. Watson could establish that he was prejudiced by the deficient performance because “[t]here is no evidence ... that there was a reasonable probability that [Mr. Watson] would have accepted the plea offer” had Mr. Wallace recommunicated it to him. R., Vol. I, at 235 (Op. & Order, filed May 18, 2012).

II

We turn first to Mr. Watson's ineffective-assistance-of-counsel claim.³The primary thrust of Mr. Watson's claim is that his second attorney, Mr. Wallace, provided ineffective assistance by failing to adequately discuss with him the government's plea offers and the possible consequences of proceeding to trial.

The Sixth Amendment provides defendants a right to the effective assistance of counsel, and this right “extends to the plea-bargaining process.” Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Like other claims of ineffective assistance of counsel, ones made “in the plea bargain context are governed by the two-part test set forth in Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). This test requires a defendant to demonstrate that counsel's performance (1) was unconstitutionally deficient, and (2) resulted in prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; United States v. Flood, 713 F.3d 1281, 1286 (10th Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 341, 187 L.Ed.2d 159 (2013). “The performance prong of Strickland requires a defendant to show that counsel's representation fell below an objective standard of reasonableness.” Lafler, 132 S.Ct. at 1384 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)) (...