Vega v. Suthers, 98-1024

Citation195 F.3d 573
Decision Date26 October 1999
Docket NumberNo. 98-1024,98-1024
Parties(10th Cir. 1999) JUAN CRUZ VEGA, Petitioner-Appellant, v. JOHN SUTHERS, Director of Colorado Department of Corrections; BOB HICKOCK, Warden of Delta Correctional Center, Delta, Colorado; KEN SALAZAR, Attorney General for the State of Colorado, Respondents-Appellees. <A HREF="#fr1-*" name="fn1-*">*
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Appeal from the United States District Court for the District of Colorado. D.C. No. 95-Z-2708

Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, (David F. Vela, Colorado State Public Defender, with him on the brief), for Petitioner-Appellant.

Roger Griffin Billotte, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, (Ken Salazar, Attorney General, with him on the brief), for Respondents-Appellees.

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

I. INTRODUCTION

MURPHY, Circuit Judge.

Juan Cruz Vega was convicted in Colorado state court on charges of possessing more than twenty-eight grams of cocaine with intent to distribute. See Colo. Rev. Stat. 18-18-105(1), (3) (1991). Although the presumptive sentencing range1 for a conviction on such charges was from four to sixteen years,2 Vega was sentenced to a term of imprisonment of twenty-four years and one day because he was found to be a "special offender."3 Vega was adjudged a special offender because he had "introduced, distributed, or imported" the cocaine "into the state of Colorado." Colo. Rev. Stat. 18-18-107(1)(d) (1991).4

On direct appeal, Vega argued as follows: (1) he was denied due process of law and the right to a trial by jury because the trial court refused to allow him to raise an entrapment defense to the special-offender charge; and (2) he was denied his Sixth Amendment right to confront the witnesses against him because the trial court had excluded evidence of internal Drug Enforcement Agency incentives for the conviction of drug offenders. The Colorado Court of Appeals and Colorado Supreme Court, in turn, rejected Vega's contentions and affirmed his conviction and sentence. See People v. Vega, 870 P.2d 549, 554 (Colo. Ct. App. 1993); Vega v. People, 893 P.2d 107, 120 (Colo. 1995) (en banc).

After his conviction and sentence were affirmed on direct appeal, Vega filed the instant 2254 habeas corpus petition. In the petition, Vega raised the same two claims he raised on direct appeal. The district court concluded that Vega was not entitled to habeas relief for substantially those reasons stated by the Colorado Supreme Court on direct appeal and, therefore, dismissed Vega's petition with prejudice. Exercising jurisdiction pursuant to 28 U.S.C. 2253,5 this court affirms.

II. BACKGROUND
A. Factual Background

The prosecution of Vega grew out of a sting operation that began with the arrest of John Anderson in Colorado on arson and burglary charges. Anderson, who also had drug charges pending against him in Nevada, approached law enforcement officials in Colorado in hopes of providing information in exchange for a reduction of the charges against him and for leniency in sentencing.

Anderson convinced agents of the Drug Enforcement Administration ("DEA") and the Arvada, Colorado Police Department ("APD") to allow him to negotiate with individuals who might import narcotics into Colorado. Anderson began his work with the DEA and APD by calling Charlie Aponte, an individual Anderson had known for some period of time. Anderson called Aponte in California and indicated that he "was in Colorado and had a buyer" and that he "would like to do some business." Aponte indicated that he would "look into it." Although Anderson made several additional calls from November of 1990 through January of 1991, the telephone negotiations did not come to fruition. Nevertheless, Anderson was released from custody in Colorado so that he could travel to California in the hope of consummating a sale and delivery of drugs to Colorado. Anderson remained in California for a number of weeks to continue negotiations with Aponte. Aponte eventually agreed to provide Anderson with drugs during one of their meetings.

At some point, Vega, a friend of Aponte, became involved in the conspiracy to deliver drugs to Colorado. On the evening of January 14, 1991, after the deal had been finalized, Anderson, Aponte, Vega, and an additional co-conspirator flew to Denver with three kilograms of cocaine. Upon arrival in Denver, undercover DEA agents met the group at the airport and transported them to a hotel where the deal was to be consummated. The DEA agents videotaped the transaction at the hotel and then arrested Vega and the others.

Vega was charged with possession of cocaine with intent to distribute in violation of Colo. Rev. Stat. 18-18-105 (1991) and as a special offender pursuant to Colo. Rev. Stat. 18-18-107 (1991) because he had imported the cocaine into Colorado. At trial, Vega asserted entrapment as an affirmative defense6 to both the possession-with-intent-to-distribute and special-offender charges. The trial court, however, refused to instruct the jury that the entrapment defense applied to the special-offender charge. It reasoned that the special-offender statute did not define a substantive offense, but rather was a sentence enhancement provision to which affirmative defenses did not apply. The trial court also excluded, as irrelevant, proffered cross-examination questions concerning internal DEA incentives to promote the arrest and conviction of drug traffickers.

The jury found Vega guilty of distribution of cocaine and returned a special verdict finding beyond a reasonable doubt that Vega had imported the cocaine into Colorado. Based on the special verdict, the trial court found that Vega was a special offender subject to enhanced sentencing under Colo. Rev. Stat. 18-18-107 (1991) and imposed a sentence of twenty-four years and one day.

B. Procedural History
1. Colorado State Court Proceedings

Vega appealed his conviction to the Colorado Court of Appeals ("CCA"), which affirmed. See People v. Vega, 870 P.2d 549 (Colo. Ct. App. 1993). The Colorado Supreme Court ("CSC") granted certiorari to review the decision of the CCA. See Vega v. People, 893 P.2d 107, 109 & n.1 (Colo. 1995). Before the CSC, Vega argued that the trial court had erred in excluding his proffered line of cross-examination because evidence of internal DEA incentives was relevant to Vega's entrapment defense. Vega also argued, for the first time, that evidence of the incentives was relevant for the purpose of establishing bias in the DEA agents' testimony. The CSC rejected Vega's claim that the proposed cross-examination was relevant to the issue of entrapment, concluding, as had the CCA, that the Colorado entrapment statute creates a subjective test. Id. at 119 (noting that under Colorado's subjective entrapment defense, "while police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact on the subjective state of mind of the defendant").

As to Vega's claim that the proposed cross-examination was relevant to demonstrate bias in the DEA agents' testimony, the CSC exercised its prerogative to ignore Vega's procedural default and reviewed the issue on the merits. Id. That review led the CSC to conclude the trial court had erred in precluding the proposed cross-examination because the "testimony would have revealed the specific benefits that would accrue to the agents should Vega be convicted of the charges against him and would have demonstrated the DEA agents' 'motive[s] for favoring the prosecution' and strong interest in the outcome." Id. at 120 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Nevertheless, applying those factors identified by the Supreme Court in Van Arsdall, the CSC concluded, after a thorough and detailed analysis, that the trial court's error in limiting Vega's cross-examination was harmless beyond a reasonable doubt. Id.

The CSC also rejected Vega's claim that denying him an opportunity to present an entrapment defense to the special offender charge violated the Due Process Clause. Id. at 113-17. The CSC began its analysis of this issue by considering "the language of the statute, its legislative history, and the criteria [the CSC had] applied in the past to distinguish substantive offenses from sentencing provisions" and concluding, purely as a matter of state law, that 18-18-107 is a "sentencing provision to which affirmative defenses do not apply." Vega, 893 P.2d at 113. That conclusion, according to the CSC, necessitated a further analysis of whether 18-18-107 "violates due process limitations placed on the power of states to define criminal offenses." Id.

In analyzing that question, the CSC looked to the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Vega, 893 P.2d at 114. According to the CSC, McMillan stands for the proposition that the Due Process Clause acts to limit the ability of the states to define certain operative facts as sentencing enhancements rather than elements of a crime. Id. at 114-15. Analyzing the non-exclusive factors identified by the Court in McMillan, the CSC concluded that treating 18-18-107 as a sentencing enhancement comported with the Due Process Clause because: (1) although 18-18-107 requires "a sentencing judge to impose a greater sentence than otherwise is available" for the underlying offense, the special offender sentence is not "disproportionate" to the sentence available for the underlying crime and does not "drive the penalty determination entirely"; (2) Vega had pretrial notice of the possibility of the special-offender enhancement and the benefit of a jury finding beyond a reasonable doubt that he had imported the cocaine into Colorado; and (3) there was no indication in either the text of 18-18-107 or its legislative history that the special-offender provision was designed to surreptitiously evade constitutionally-mandated...

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