Appeal from the United States District Court for the Northern District of Oklahoma. (D.C. No. 4:11-CR-00166-CVE-2).
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.
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.
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.
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 re-communicated it to him. R., Vol. I, at 235 (Op. & Order, filed May 18, 2012).
We turn first to Mr. Watson's ineffective-assistance-of-counsel claim.
The 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; United States v. Flood, 713 F.3d 1281');"> 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)) (internal quotation marks omitted). And to demonstrate prejudice, " a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted). More specifically, when a defendant's claim is that counsel's deficient performance caused him to reject a plea offer and proceed to trial, he must show that
there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 1385; see Frye, 132 S.Ct. at 1410 (holding that, to demonstrate prejudice resulting from counsel's deficient performance that caused a defendant to forgo a favorable plea offer, a defendant must show that " he would have accepted the offer to plead" and that " there is a reasonable probability neither the prosecution nor the trial court would have prevented
the offer from being accepted or implemented" ).
" In evaluating an ineffective assistance of counsel claim, we 'accept the district court's underlying factual findings unless clearly erroneous,' and 'we review de novo whether counsel's performance was legally deficient and whether any deficiencies prejudiced the defendant.'" Rodriguez-Rivera, 518 F.3d at 1216 (quoting Anderson v. Att'y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005)). " Courts are free to address [ Strickland 's] two prongs in any order, and failure under either is dispositive." Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011); see Strickland, 466 U.S. at 697 ( " [T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." ). The district court concluded that Mr. Watson's counsel, Mr. Wallace, did not provide deficient performance, and that even if he had, it was unlikely that Mr. Watson could establish prejudice. We affirm solely on the latter ground--that is, assuming arguendo that Mr. Wallace's performance was deficient, Mr. Watson failed to prove that he was prejudiced thereby.
Mr. Watson directs nearly all of his efforts on appeal to establishing that his second counsel, Mr. Wallace, provided deficient performance by not contacting the government regarding the prior plea offers and subsequently communicating any plea offers to Mr. Watson, as well as by not adequately advising him of the potential consequences of proceeding to trial. Assuming without deciding that Mr. Wallace's failure in these respects constituted deficient performance, Mr. Watson still bears the burden of proving prejudice-- viz., proving, inter alia, that, but for Mr. Wallace's allegedly deficient performance, Mr. Watson would have accepted the government's offer. See Frye, 132 S.Ct. at 1410; Lafler, 132 S.Ct. at 1385.
Mr. Watson cannot demonstrate prejudice because he does not point to any evidence that he would have accepted a plea offer had Mr. Wallace discussed it with him. Instead, he merely makes two unadorned assertions that there is a reasonable probability he would have pleaded guilty had Mr. Wallace done so. See Aplt. Opening Br. at 24 (" The undersigned counsel submits to the Court that a review of the record establishes that if Mr. Watson would have been properly advised [of the punishment he faced] and the substantial risk that he would have been found guilty . . . by the jury, there is more than a reasonable probability that [Mr. Watson would have pleaded guilty]." ); Aplt. Reply Br. at 6 (" If [Mr.] Wallace . . . had inquired about the offer by contacting the Assistant U.S. Attorney [and] informed [Mr.] Watson of the particulars of the offer and its benefits [to] him, . . . there is more than a reasonable probability that [Mr. Watson would have pleaded guilty]." ).
Thus, the most that can be said with respect to prejudice is that Mr. Watson asserts he was prejudiced; his mere self-serving statement, which does no more than open the door to conjecture, is not enough. Cf. Heard v. Addison, 728 F.3d 1170, 1184 (10th Cir. 2013) (" [W]e remain suspicious of bald, post hoc and unsupported statements that a defendant would have changed his plea absent counsel's errors, and if the defendant can muster no other evidence of how he would have responded if he had received effective assistance of counsel, the inquiry will focus on the objective evidence." ). Mr. Watson must prove
with evidence that there is a reasonable probability that, inter alia, he would have accepted the plea agreement had Mr. Wallace discussed it with him. See Strickland, 466 U.S. at 693 (" [T]he defendant [must] affirmatively prove prejudice." (emphasis added)); see also id. at 695 (" In making [the prejudice] determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." (emphasis added)). This he has not done.
Mr. Watson also does not demonstrate prejudice for the additional reason that he did not provide evidence of the other showings required by Frye and Lafler--viz., that the plea offer, had he accepted it, " would have been adhered to by the prosecution and accepted by the trial court."  Frye, 132 S.Ct. at 1411; see also Lafler, 132 S.Ct. at 1385. Mr. Watson does not even confront these possibilities, let alone provide arguments or evidence as to why these additional requirements are met.
Mr. Watson's failure to point to any evidence in support of prejudice provides a sufficient basis, standing alone, to reject his ineffective-assistance claim. However, we also note that our independent review of the record validates the district court's conclusion that the record is devoid of evidence in support of Mr. Watson's assertion of prejudice. Instead, the evidence at least arguably supports the opposite inference. The district court found that Mr. Greubel informed Mr. Watson of both plea offers as well as the consequences of pleading guilty and of proceeding to trial. Fully apprised of this information, Mr. Watson rejected both plea offers, and the second rejection occurred after Mr. Watson knew that Mr. Shuck was cooperating with the government. Furthermore, the district court found that Mr. Watson " repeatedly" told Mr. Greubel that he would not plead guilty to a felony because that would require the forfeiture of his insurance license. R., Vol. I, at 235. In short, the inference that might reasonably be drawn from this evidence is that under no circumstances did Mr. Watson intend to plead guilty--even though he knew his co-defendant was cooperating with the government--because he would have necessarily lost his insurance license. In other words, there is no evidence that, had Mr. Wallace re-discussed the plea offer with him, Mr. Watson would have changed his mind. Accordingly, even if Mr. Wallace's failure in this regard amounted to deficient performance, we would be hard-pressed to conclude that Mr. Watson was prejudiced by it. Whether counseled by Mr. Wallace about the government's plea offer or not, Mr. Watson would have made the same decision to reject a plea deal and proceed to trial; thus, any prejudice that Mr. Watson suffered by going to trial would not have been because of any alleged deficient performance by Mr. Wallace.
However, lest our independent review of this evidence suggest to the contrary, let us underscore the point that is determinative here: Mr. Watson bears the burden of " affirmatively prov[ing]" that there is a reasonable probability that he would have accepted the plea had Mr. Wallace communicated the offer to him, Strickland, 466 U.S. at 693; see also Frye, 132 S.Ct. at 1410; Lafler, 132 S.Ct. at 1385, and this he has utterly failed to do. Were mere assertions that a defendant suffered prejudice sufficient, the prejudice
prong of Strickland would be a formality, met in every case. Of course, it is not. Accordingly, Mr. Watson's ...