US v. Combs, Nos. 99-2341

• Decision Date: 12 October 2001
• Docket Number: 00-2018,Nos. 99-2341
• Citation: 267 F.3d 1167
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OMAR COMBS, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE PAUL WILLIAMS, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

267 F.3d 1167 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OMAR COMBS, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE PAUL WILLIAMS, Defendant - Appellant.

Nos. 99-2341, 00-2018.

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 12, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NOS. CR-98-98LH;CR-98-98BB)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Jose R. Coronado, Las Cruces, New Mexico, for Defendant-Appellant Omar Combs.

Todd B. Hotchkiss, Albuquerque, New Mexico, and Peter J. Giovannini, Las Cruces, New Mexico, on the brief, for Defendant-Appellant Bruce Paul Williams.

James R. W. Braun, Assistant United States Attorney (Norman C. Bay, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before HENRY, HOLLOWAY, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

After a jury trial, Omar Combs and Bruce Paul Williams were convicted of conspiracy to distribute marijuana and possession with intent to distribute of more than 100 pounds of marijuana. Each now appeals various aspects of his conviction and sentence. As the appeals share a factual history, we have consolidated them for the purpose of this disposition. We have jurisdiction pursuant to 28 U.S.C. 1291 and, for the reasons discussed below affirm the convictions and sentences of Messrs. Combs and Williams.

I. BACKGROUND

On the morning of January 31, 1998, Mr. Williams drove into a U.S. Border Patrol checkpoint near Alamogordo, New Mexico. Mr. Combs was the sole passenger in Mr. Williams's car. When questioned by a Border Patrol agent, Mr. Williams stated that he and Mr. Combs intended to visit a friend in Alamogordo and then drive to Louisiana. The Border Patrol agent asked for the name and the address of the friend, but Messrs. Williams and Combs could provide neither. Although this apparently troubled the Border Patrol officer, he found their story "plausible" and allowed them to drive on towards Alamogordo. Aplt. Combs App. at 77.

About five minutes later, another car arrived at the same checkpoint. This car was driven by Dewayne Lamont Green, and Allana Redman was a passenger in it. Mr. Green stated to the (same) Border Patrol agent that he and Ms. Redman were going to Louisiana. The agent noticed a strong smell of air freshener coming from the vehicle and asked permission to look in its trunk. After receiving permission, he discovered another strong odor of air freshener inside the trunk, as well as a large black suitcase that he testified seemed too hard and heavy to be filled with clothing.

The agent asked Mr. Green to drive to the secondary inspection area. At the secondary inspection area, Mr. Green and Ms. Redman were unable to produce identification. The agent informed them that they were not free to leave, yet, when the agent went to discuss the situation with other agents, Mr. Green and Ms. Redman fled the checkpoint. Police apprehended Mr. Green and Ms. Redman a short time later and discovered approximately 224 pounds of marijuana in the vehicle's trunk. Because the Border Patrol suspected that Mr. Green and Ms. Redman had some relationship to Messrs. Williams and Combs, they put out an alert on the car driven by Mr. Williams. It was soon found, and the occupants arrested, in Tularosa, New Mexico.

In February of 1998, Ms. Redman and Messrs. Williams and Combs were indicted on charges of conspiracy to distribute in excess of 100 pounds of marijuana, and for violations of 21 U.S.C. 841(a)(1) and 841(b)(1)(B).¹ Ms. Redman was also charged with fleeing from the Border Patrol checkpoint. In August of 1998, Ms. Redman pled guilty to misprision of a felony and agreed to testify for the government.

Mr. Combs characterizes Ms. Redman as having portrayed herself at trial as a "naive and unsuspecting dupe" of Messrs. Williams and Combs. Aplt. Combs Br. at 6. Ms. Redman testified that she traveled with Messrs. Williams and Combs for an extended period of time, driving from Washington, D.C. through New Orleans to New Mexico. She stated that Mr. Williams rented an additional car with Mr. Combs, and that Mr. Williams directed her to rent several different hotel rooms as they moved around Las Cruces, New Mexico. She testified that she was not aware that the trip was really about picking up marijuana until she accidentally discovered bundles of marijuana in both Combs's and Williams's suitcases on January 29, 1998. See Aplt. Combs App. at 139 (trial testimony of Ms. Redman). She also testified that after she confronted Messrs. Williams and Combs concerning her discovery of the marijuana, the two acted "upset" and began "talking to each other." Id. at 141. She claimed to be too "terrified" of them to report the illegal activity to the police. Id. at 155.

After the trial, the prosecution was informed by the United States Pretrial Services Agency ("Pretrial Services") that Ms. Redman, who was released on bond after her plea, had failed seven drug tests administered as part of her release (by testing positive for marijuana use). The prosecution then informed Messrs. Combs and Williams of Ms. Redman's transgressions.² Mr. Combs moved for a new trial on the basis that this was a violation of Brady v. Maryland, 373 U.S. 83 (1963), or that this newly discovered evidence required a new proceeding. The district court denied the motion.

II. OMAR COMBS

On appeal, Mr. Combs asserts four possible errors: that the government's failure to inform defense counsel of Ms. Redman's drug use constituted a violation of Brady; that Ms. Redman's drug use, as newly discovered evidence, warrants a new trial; that the district court abused its discretion in refusing to permit Simone Gale, a proffered defense witness, to testify; and that Mr. Combs's sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). We consider these contentions in turn.

A. Ms. Redman's Drug Use: Brady Violation

Mr. Combs argues that because Pretrial Services was aware of Ms. Redman's marijuana use during trial, and because it is "an agency of the United States government," its knowledge should be imputed to the prosecution. Aplt. Combs Br. at 6. He states that "Allana Redman was a critical witness in this case" and that "without her testimony, there was little to connect Mr. Combs to the marijuana." Id. at 5. He further states that if "she appeared to be a regular marijuana user" it "could have completely destroyed her credibility with the jury." Id. at 6. The failure of the prosecution to disclose Ms. Redman's drug use, argues Mr. Combs, should therefore be considered a Brady violation.

If a new trial motion is based on an alleged Brady violation, we review the district court's decision de novo. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999); United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994). In order to establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material. Quintanilla, 193 F.3d at 1149; see also Brady, 373 U.S. at 87.

1. Suppression of Evidence

Mr. Combs first argues that even though the prosecution was not aware of Ms. Redman's marijuana use until after the trial, it should still be deemed to have suppressed the evidence of that drug use, because it did not take the required "steps to learn of evidence" that is both "favorable to the defense" and in the possession of other government agencies. Aplt. Combs Br. at 6. In support of this proposition, Mr. Combs cites several cases in which courts found Brady violations where government agencies other than the prosecution were aware of evidence that could have helped the defense.

In United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984), the United States was held to have violated Brady when it failed to obtain personnel records from the United States Post Office and turn them over to the defense, in a case in which the defendants and the government's witness were all Post Office employees. The Deutsch court stated:

The government cannot compartmentalize the Department of Justice and permit it to bring a charge affecting a government employee in the Post Office and use him as its principal witness, but deny having access to the Post Office files. In fact it did not even deny access, but only present possession without even an attempt to remedy the deficiency. We do not suggest . . . that the government was obliged to obtain evidence from third parties, but there is no suggestion in Brady that different "arms" of the government, particularly when so closely connected as this one for the purpose of the case, are severable entities.

Deutsch, 475 F.2d at 57 (citations and footnote omitted).

In United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980), the Fifth Circuit cited Deutsch in support of the proposition that the requirement of "disclosure" is not excused "where the prosecution has not sought out information readily available to it." In Auten, the prosecution failed to conduct a criminal background check on a witness because it had only made the decision to call the witness the night before he testified. The court held that the fact "[t]hat the prosecutor, because of the shortness of time, chose not to run an FBI or NCIC check on the witness, does not change 'known' information into 'unknown' information within the context of the disclosure requirements." Id. Mr. Combs argues that in light of Deutsch and Auten, we should impute information possessed by Pretrial Services to the prosecution.

The government disagrees with Mr. Combs's position and contends that there is a distinction for purposes of Brady disclosure between government agencies and agencies acting on behalf of "the government" (i.e., the...