United States v. Orozco

916 F.3d 919

UNITED STATES of America, Plaintiff - Appellant,

v.Gregory OROZCO, Defendant - Appellee.

No. 18-3003

United States Court of Appeals, Tenth Circuit.

FILED February 26, 2019

Carrie N. Capwell, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, District of Kansas, James A. Brown, Assistant United States Attorney, Chief, Appellate Section, with her on the briefs), Kansas City, Kansas, for Plaintiff - Appellant.

James R. Campbell, Coffman & Campbell, Burlington, Kansas, for Defendant - Appellee.

Before LUCERO, SEYMOUR, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellee Gregory Orozco was convicted by a jury of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 846 (Count 1), and possession with intent to distribute five grams or more of methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) & 18 U.S.C. § 2 (Count 2). Mr. Orozco then filed a motion for a new trial alleging that the government violated his Sixth Amendment right by interfering with his right to call a witness on his behalf. The district court granted the motion, vacated the two convictions, and dismissed the underlying counts of the superseding indictment. United States v. Orozco, 291 F.Supp.3d 1267, 1283 (D. Kan. 2017). The government now appeals, challenging the district court’s finding of prosecutorial misconduct and the remedy imposed. Exercising jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings. On remand, the district court should vacate its dismissal of the underlying counts of the superseding indictment to allow for retrial.

Background

On February 23, 2013, Deputy United States Marshals (DUSMs) converged on a pickup truck that matched the description of a fugitive’s vehicle after observing one of its occupants engage in what appeared to be a drug transaction. 3 Aplt. App. 364–65, 448–50. The deputies ordered the three passengers — Tommy Cordell-Eastland, Amy Stimec-Smart, and Mr. Orozco — out of the vehicle. 2 Aplt. App. 273–74; 3 Aplt. App. 375, 379–80, 451–53. The deputies then searched the truck and found an unloaded firearm and a clear plastic case containing pills, marijuana, and four empty bags ordinarily used for storing user-quantities of narcotics. 3 Aplt. App. 387–89, 536–37. They also found a loaded magazine that fit the recovered firearm, id. at 527, 531–32, a large amount of U.S. currency, id. at 532–33, and a small pink nylon case containing SIM cards, a flash drive, and a bag containing 41.3 grams of methamphetamine. Id. at 389–90, 505–09; 5 Aplt. App. 993.

Mr. Orozco was arrested and charged with two drug counts and two firearms counts. 1 Aplt. App. 26–28. At trial, Mr. Cordell-Eastland and his wife Brittany Eastland testified that they had purchased both user-quantities and occasional larger quantities of methamphetamine from Mr. Orozco. 2 Aplt. App. 133, 137, 144, 176–78; 5 Aplt. App. 557–59, 563. Mr. Cordell-Eastland also testified that the currency seized from the truck was the proceeds of his repayment of a $1,000 drug debt to Mr. Orozco. 2 Aplt. App. 155–56, 162, 165. Felix Leal and Jose Alejandro Ruiz testified that they gave or sold methamphetamine to Mr. Orozco for resale on numerous occasions. 4 Aplt. App. 631–32, 636; 5 Aplt. App. 907–08, 914–16. Mr. Ruiz also testified that he sold Mr. Orozco a chameleon-colored Chevrolet Camaro unrelated to narcotics transactions. 4 Aplt. App. 648–50. The government also called Deputy Chris Johnson, who testified that Mr. Orozco told him that the methamphetamine found in the car was his. 4 Aplt. App. 742.

Mr. Orozco intended to call two witnesses. However, one witness exercised his Fifth Amendment right not to testify. 5 Aplt. App. 950. The other witness, Mr. Ruiz-Salazar, was the brother of Jose Alejandro Ruiz, and was to testify that he, not his brother, was friends with and sold the Camaro to Mr. Orozco. Id. at 953–54. Mr. Orozco’s attorney, James Campbell, requested a hearing to discuss the witnesses that the defense planned to present. Id. at 948–50. When the district court asked why Mr. Campbell sought a hearing, Assistant United States Attorney Terra Morehead suggested that Mr. Campbell was concerned about the scope of her impeachment and cross examination; Mr. Ruiz-Salazar had been indicted in a federal drug case in the Western District of Missouri (WDMO), and cross examination or impeachment could have adverse consequences on his other pending case. Id. at 954. As for her own concerns, Ms. Morehead stated:

[O]ne reason I wanted to bring it up is to make sure that there had been full conversation with him about the consequences of this, that he would be subject to cross examination. And if — if it’s obviously determined that he’s not being truthful, that there could be consequences, you know, beyond that, not only in this case but in the case there. Because if he were to perjure himself here, that could have consequences in his pending case there.

Id. She further sought to avoid a situation where Mr. Ruiz-Salazar took the stand only to invoke the Fifth Amendment at cross examination. Id. at 955–56. Ms. Morehead then informed the court that Mr. Campbell had been allowed the opportunity to interview Mr. Ruiz-Salazar prior to his testimony, and that Mr. Ruiz-Salazar’s attorney, Tracy Spradlin, had indicated that Ms. Morehead would be allowed that same opportunity. Id. at 964. The court agreed, and it allowed Ms. Morehead to do so during recess. Id.

After recess, Mr. Ruiz-Salazar no longer wanted to testify. Id. at 1008. According to Ms. Spradlin, Mr. Ruiz-Salazar was worried about incriminating himself, and was "feeling a little uneasy." Id. at 1009. Ms. Spradlin further expressed that "in relation to some of the stuff going on with his current case, he’s decided that he would rather not [testify]." Id. Mr. Campbell then speculated that "Mr. Ruiz’[s] position changed when he was advised through [Ms. Spradlin based on her conversation with Ms. Morehead] that his testimony may very well have an influence on his case in the Western District." Id.

In response, Ms. Morehead explained:

I would take exception that I ever represented anything like that to his counsel. And I don’t think she would say that either. So we discussed the fact that he had pending charges, we discussed the fact that if he was found to be lying under oath that there could be perjury consequences. And that was the extent of any consequence that I’m aware of that he could face ....

Id. Mr. Orozco then decided to testify, as he felt "forced to" in the absence of any other witnesses. Id. at 1010; 6 Aplt. App. 1078; 7 Aplt. App. 1142.

The following morning, before he testified, Mr. Orozco told the court that when he and Mr. Ruiz-Salazar rode a van back to jail the previous day, Mr. Ruiz-Salazar recounted his conversation with Ms. Spradlin following her conversation with Ms. Morehead. 6 Aplt. App. 1075–76, 1078. According to Mr. Orozco, Ms. Morehead told Ms. Spradlin to tell Mr. Ruiz-Salazar that "if you get in my way, I’m going to get in your way," and therefore that Ms. Spradlin felt that Mr. Ruiz-Salazar should "step away from this case." 7 Aplt. App. 1140. The district court proceeded with the trial, but it agreed to hold a separate hearing to investigate Mr. Orozco’s allegations. Id. at 1143. Mr. Orozco was convicted on both drug counts and acquitted on both firearm counts. 1 Aplt. App. 26–28.

Mr. Orozco subsequently filed a motion for a new trial, alleging that the government interfered with his right to a fair trial. See 6 Aplt. App. 1071. The district court held two hearings in which it heard testimony from Mr. Orozco, Mr. Ruiz-Salazar, and Ms. Spradlin. See 6 Aplt. App. 1071, 1106. The government presented no evidence, let alone from Ms. Morehead. Mr. Orozco reiterated that "the prosecutor told [Mr. Ruiz-Salazar] if — if they get in her way, she will get in their way. So Ms. Spradlin told him just get away from this case, so he felt threatened and decided not to testify on my behalf."¹ Id. at 1078. Ms. Spradlin prepared an affidavit, which provided that "Ms. Morehead did advise me that Mr. Ruiz-Salazar could be charged with perjury should he testify," that "Ms. Morehead ... was aware of Mr. Ruiz-Salazar’s current indictment and which Western District AUSA was handling that indictment," but that she "[did] not recall all the specifics of [their] conversation in enough detail to state anything further." 7 Aplt. App. 1148.

Ms. Spradlin also testified under oath at the first hearing, and Mr. Campbell engaged in the following exchange with her on direct examination:

Q. Ms. Spradlin, how — what was the tone of your conversation with Ms. Morehead?

A. I — I don’t really know how to put it, the tone.

Q. Was it confrontational?

A. I think it was assertive, I don’t think I would say confrontational.

Q. Was it made clear to you that Ms. Morehead was going to seek ramifications against your client if he testified in the matter?

A. I don’t think it was made clear. It was — it was just discussed that that was a strong possible outcome that could happen.

* * *

Q. How long did that conversation take?

A. Five minutes or less.

6 Aplt. App. 1091–92. Ms. Spradlin also testified that she was not sure when Mr. Ruiz-Salazar decided not to testify. Id. at 1094.

On direct examination of Mr. Ruiz-Salazar, Mr. Campbell asked him if he "told Mr. Orozco that if you got in the prosecutor’s way that the prosecutor would get in your — in your case," and whether he "[felt] threatened that if he were to testify in Mr. Orozco’s case that it would impact his case," to which he responded "Yes." Id. at 1119–20. When asked what led to his decision not to testify, he responded, "Because the attorney and I talked that it wasn’t the moment to testify." Id. at 1120–21. Mr. Campbell asked, "excluding anything [his] attorney told [him], was there anything else that made [him...