F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 2 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-8102
JESUS HUMBERTO CARDENAS, also (D.C. No. 02-CR-125-05-D)
known as Widow Peak, (D. Wyoming)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Jesus Cardenas, who entered a conditional plea of guilty to conspiracy
to traffic in methamphetamine, in violation of 21 U.S.C. § 846, appeals the denial of his
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
motion to dismiss. He argues his conspiracy charges are barred by double jeopardy or, in
the alternative, that his counsel was ineffective in presenting support for his double
jeopardy defense. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm
Cardenas’ conviction, but dismiss without prejudice his ineffective assistance of counsel
claim.
I.
Washington indictment and plea agreement. On January 23, 2001, Cardenas was
charged in Washington with conspiracy to possess with intent to distribute more than 500
grams of a mixture and substance containing a detectable amount of methamphetamine
during the period of September 15 to November 16, 2000. Pursuant to a plea agreement,
he pled guilty to a superseding indictment charging him with a one-day conspiracy
occurring on November 16, 2000, and involving a single distribution of 411 grams of
methamphetamine. He was sentenced to 87 months’ imprisonment.
Wyoming indictment. On July 18, 2002, Cardenas was charged in Wyoming with
conspiracy to distribute and possess with intent to distribute over 500 grams of a mixture
and substance containing a detectable amount of methamphetamine during the period of
January 1996 through the return of the indictment. The indictment alleged he assisted co-
conspirators in transporting quantities of methamphetamine ranging from one to ten
pounds from Yakima, Washington, to Wyoming customers, who in turn sold the
methamphetamine and sent the proceeds to Yakima, often via wire transfers.
2
Cardenas argued in his motion to dismiss the indictment that the Wyoming
prosecution was barred by the double jeopardy clause of the Fifth Amendment. After the
district court denied his motion to dismiss, Cardenas entered a conditional plea of guilty,
reserving the right to appeal the denial of the motion. Cardenas was sentenced to 131
months’ imprisonment.
II.
Double jeopardy
The double jeopardy clause protects against “‘successive punishments and []
successive prosecutions for the same criminal offense.’” United States v. Mintz, 16 F.3d
1101, 1104 (10th Cir. 1994) (quoting United States v. Dixon, 509 U.S. 688, 696 (1993)).
“[I]f two charges of conspiracy are in fact based on a defendant’s participation in a single
conspiracy, the former jeopardy clause bars the second prosecution.” United States v.
Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988). Cardenas has the burden of proving
double jeopardy applies and “must prove ‘in fact and in law’ that only one conspiracy
existed in order to prevail on [his] double jeopardy claim.” Mintz, 16 F.3d at 1104
(quoting Daniels, 857 F.2d at 1394). “We review the factual findings underlying the
defendant’s double jeopardy claim for clear error.” United States v. Rodriguez-Aguirre,
73 F.3d 1023, 1024-25 (10th Cir. 1996). “The district court’s ultimate determination
regarding double jeopardy is, however, a question of law we review de novo.” Id. at
1025.
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Cardenas asks us to apply a totality of the circumstances test to his claim of double
jeopardy. However, this circuit continues to follows the “same evidence” test set forth in
Blockburger v. United States, 284 U.S. 299 (1932), to determine whether two conspiracy
prosecutions violate the double jeopardy clause. Mintz, 16 F.3d at 1104. The
Blockburger “same evidence” test “provides that offenses charged are identical in law
and fact only if the facts alleged in one would sustain a conviction if offered in support of
the other.” Id. (internal quotation omitted).
At the hearing on Cardenas’ motion to dismiss on double jeopardy grounds, his
attorney called no witnesses and presented no evidence.1 Instead, he noted that both the
Washington indictment and the Wyoming indictment charged Cardenas with conspiracy
to distribute methamphetamine. He noted the time period charged in the Wyoming
indictment encompassed the one-day conspiracy charged in the Washington indictment.
The district court applied the Blockburger “same evidence” test and concluded Cardenas
had failed to demonstrate that the Washington conspiracy was the same conspiracy
charged in the Wyoming indictment or that they were interdependent conspiracies. At the
1
At the hearing, Cardenas’ attorney made an “offer of proof” that Cardenas would
testify, if called, that his co-conspirators in the Wyoming indictment were the source of
the methamphetamine. Under the Rules of Evidence, an “offer of proof” serves a
particular function. Error may only be “predicated upon” a ruling which excludes
evidence when “the substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked.” Fed. R. Evid.
103(a)(2). In this case, there was no ruling barring Cardenas or any other witness from
testifying and we do not consider the “offer of proof” as evidence that the two
conspiracies were interdependent.
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change of plea hearing, Cardenas testified that the source of methamphetamine for both
conspiracies was the same and he sought reconsideration of the denial of the motion to
dismiss. The court again concluded Cardenas failed to establish that the two conspiracies
were interdependent and denied the motion.
Based on the record before us, we agree with the district court. “In a double
jeopardy analysis involving conspiracies, the court must determine whether the two
transactions were interdependent and whether the Defendants were united in a common
unlawful goal or purpose.” Mintz, 16 F.3d at 1104 (internal quotation omitted). The
conspiracy charged in the Washington indictment involved only three participants and a
single transaction on one day. There was no allegation or evidence that the conspiracy
involved transportation of methamphetamine outside Washington. In contrast, the
conspiracy charged in the Wyoming indictment involved a larger and different set of
participants, a series of transactions, distribution of methamphetamine from Washington
into Wyoming and Montana, and a time period spanning six years. The fact that the two
alleged conspiracies overlapped for a single day does not establish that they were
interdependent. In short, the indictments do not evince any double jeopardy problem
because the facts alleged in one case would not sustain a conviction if proven in the other
case. Further, even assuming the same co-conspirators were the source of the
methamphetamine that Cardenas was charged with distributing in both cases, that fact
does not by itself establish the two alleged conspiracies were interdependent.
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Ineffective assistance of counsel
Cardenas argues his trial counsel rendered ineffective assistance because he “did
not call [or] subpoena a single witness to testify at the hearing on [his] motion to dismiss
on grounds of double jeopardy.” Aplt. Br. at 27.
As a general rule, an ineffective assistance of counsel claim should be brought in a
defendant’s first collateral attack, not on direct appeal. See United States v. Montoan-
Herrera, 351 F.3d 462, 465 (10th Cir. 2003). “Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.” United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “Some rare claims which are
fully developed in the record may be brought either on direct appeal or in collateral
proceedings.” Id. at 1242 (emphasis added). At this point, Cardenas’ trial counsel has
not had an opportunity to explain his decisions. In order to show he was prejudiced by
trial counsel’s failure to call certain witnesses at the hearing on the motion, Cardenas
must prove their testimony would have established the two conspiracies were
interdependent. The record presently before us does not establish that any witness would
have given such testimony.
We AFFIRM Cardenas’ conviction, but DISMISS without prejudice his
ineffective assistance claim.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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