United States v. Samuels

                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PU BL ISH
                                                                       July 9, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                     No. 05-5186

 LAW RENCE SAM UELS, JR., also
 know n as M ichael Douglas Lewis,

       Defendant - Appellant.



                 Appeal from the United States District Court
                     for the District of N. D. Oklahoma
                         (D.C. No. 04-CR-157-CVE)


Douglas Edward Snow , Assistant United States Attorney (David E. O’M eilia,
United States Attorney, and Shannon L. Henson, Assistant United States
Attorney, on the briefs), Tulsa, Oklahoma, for Plaintiff - Appellee.

Dennis A . Caruso, Caruso Law Firm, P.C., Tulsa, Oklahoma, for D efendant -
Appellant.




Before O ’B RIE N, SE YM OU R and TYM KOVICH, Circuit Judges.


O’BRIEN, Circuit Judge.




      Lawrence Samuels, Jr., pled guilty to possession with intent to distribute
cocaine base (crack cocaine) with a reservation of some appeal rights. He was

sentenced to 210 months imprisonment. He argues the district court erred in

denying his motion to suppress evidence, failing to allow him to withdraw his

guilty plea based on ineffective assistance of counsel and failing to vacate the

plea agreement based on the doctrines of mutual mistake of fact and law , public

policy and unconscionability. W e affirm the denial of the motion to suppress and

decline to address the remaining arguments.

                                   I. Background

      On M arch 18, 2004, law enforcement officers Jeffrey Gatwood, Brandon

M cFadden and W illiam W olthuis, riding in a single police vehicle, were on patrol

in North Tulsa, Oklahoma. 1 Gatwood received a page from a reliable confidential

informant. Gatwood called the informant who told him he had seen a black man

in a white El Camino selling crack cocaine in the parking lot of a nearby

convenience store on several occasions and that this person was presently at the

store. The informant provided the name and location of the store. Upon arrival at

the store, the officers observed a black male in a white El Camino (Samuels) and

saw another man leave the store and enter the El Camino. Believing a drug

transaction was about to occur, the officers activated their vehicle’s emergency

lights and blocked the El Camino with their vehicle. W olthuis approached

      1
        W e recite the facts in light most favorable to the government. It is so
entitled because it prevailed in a contested hearing which involved fact finding,
including witness credibility.

                                         -2-
  Samuels, obtained his consent to search the El Camino and patted him down. The

  officers found a total of 9.35 grams of crack cocaine in the vehicle and $765 in

  cash on Samuels’s person. The crack cocaine was contained in several small

  baggies and was found hidden near the brake pedal.

        Samuels was indicted for possession with intent to distribute five grams or

  more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).

  Samuels filed a motion to suppress evidence, claiming the officers lacked

  reasonable suspicion to stop his vehicle in the store’s parking lot. The district

  court held a hearing on the motion. After he testified, Gatwood approached and

  spoke to M cFadden, who had not yet testified, in violation of the court’s

  sequestration order. Nevertheless, the district court relied on Gatwood’s

  testimony (along w ith other evidence) in denying the motion to suppress.

      Samuels pled guilty to the indictment pursuant to a plea agreement. However,

in reaching the agreement, both the government and Samuels’s attorney failed to

appreciate that Samuels was a career offender under the federal sentencing

guidelines. As a result, the parties erroneously estimated Samuels’s guideline range

as 100-120 months. Upon reviewing the presentence report, both parties realized

their mistake concerning Samuels’s career offender status and the resulting increase

in the sentencing range under the guidelines (210-262 months).

      Samuels did not seek to withdraw his guilty plea based upon the

misunderstanding. Instead, he filed a motion for downward departure based on 18

                                          -3-
U.S.C. § 3353(a). The district court suggested the m otion for downward departure

might be more appropriately characterized as a motion for variance and requested

briefing from the parties concerning whether their mutual mistake of law 2

constituted grounds for Samuels to withdraw his plea or for a variance. Samuels

subsequently filed a motion for variance. 3 In the motion, it was clear he was not

seeking to w ithdraw his plea. At the hearing on the motion for variance, defense

counsel moved to withdraw as counsel stating he had provided ineffective assistance

by failing to correctly advise Samuels about the applicable guideline range. The

court denied this motion, concluding: 1) counsel was not ineffective, and 2) there

were no grounds for Samuels to withdraw his plea. The court also denied Samuels’s

motions for downward departure and variance, applied the career offender

enhancement, and sentenced Samuels to 210 months imprisonment.




        2
          Samuels argues mistake of fact and law . W e agree with the district court;
  it was a mistake of law. Both attorneys were aware of Samuels’ prior
  convictions, they simply failed to appreciate the legal significance of those
  convictions.
        3
          A departure occurs “when a court reaches a sentence above or below the
  recommended Guidelines range through application of Chapters Four or Five of
  the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1
  (10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from
  the recommended range through application of § 3553(a) factors.” Id.

                                         -4-
                                    II. Discussion

A. Denial of M otion to Suppress

      At the suppression hearing, Gatwood, M cFadden and W olthuis gave differing

accounts of the details of events prior to their encounter with Samuels in the

convenience store’s parking lot. Gatwood testified that while on patrol with

M cFadden and W olthuis, he received a page from an informant with whom he had

worked over the past several years and who had given him twenty-five to thirty

reliable tips. Gatwood called the informant with his cell phone. The informant told

Gatwood he had seen a black man in a white El Camino selling crack cocaine in the

parking lot of a nearby convenience store on several occasions and the person was

presently at the store. The informant included the name and location of the store.

The officers proceeded to the store to investigate the tip. It took them five to ten

minutes to get there.

      Neither M cFadden nor W othuis could recall the phone call between Gatwood

and the informant. 4 M cFadden also testified they did not go to the store with the

intent of investigating a tip; rather, they “just happened to be in the area” when

Gatwood saw the El Camino and told them to investigate due to his tip. (R. Vol. III

at 58.) W olthuis’s testimony was different still. He said Gatwood directed them to

the store but was not sure when Gatwood told them to investigate the El Camino

         4
         Gatwood admitted the other officers should have witnessed his side of the
  telephone conversation because they were in the vehicle with him at the time he
  received the tip.

                                          -5-
and, in particular, could not say whether Gatwood told them to pull into the parking

lot upon seeing the El Camino.

      Samuels challenges the district court’s denial of his motion to suppress.

Specifically, he contends the court should have disregarded Gatwood’s testimony

concerning the tip because (1) his credibility was suspect given his violation of the

court’s sequestration order and (2) his testimony was not corroborated by M cFadden

or W olthuis. Disregarding Gatwood’s testimony, Samuels argues the remaining

evidence (M cFadden and W olthuis’s testimony) is insufficient to establish

reasonable suspicion to stop his vehicle.

      1. Violation of Sequestration Order

      Rule 615 of the Federal Rules of Evidence provides: “At the request of a

party the court shall order witnesses excluded so that they cannot hear the testimony

of other w itnesses, and it may make the order of its own motion.” This rule

“requires not only that prospective witnesses be excluded from the courtroom, but

also that they be prohibited from discussing the case with other witnesses.” United

States v. Greschner, 802 F.2d 373, 375-76 (10th Cir. 1986) (“[A] circumvention of

the rule [occurs] where witnesses indirectly defeat its purpose by discussing

testimony they have given and events in the courtroom with other w itnesses who are

to testify.”) (quotations omitted). At the suppression hearing, Gatwood violated the

sequestration order by talking with M cFadden, who had not yet testified.

Overruling Samuels’ objection, the court did not strike Gatwood’s testimony;

                                            -6-
instead, it deemed Gatwood’s testimony credible and relied upon it in denying

Samuels’ motion to suppress. Samuels argues the court should have stricken

Gatwood’s testimony.

      Because Gatwood violated Rule 615, we review the court’s decision to admit

his testimony for an abuse of discretion. United States v. Johnston, 578 F.2d 1352,

1355 (10th Cir. 1978) (the choice of sanction for a Rule 615 violation is within the

district court’s discretion). Here, the court apparently did not see the need to

impose the most serious sanction of excluding testimony. It was a carefully

considered decision. First, the judge allowed examination of Gatwood and

M cFadden in order to determine the full extent and consequences of G atwood’s

violation. W hile their testimony was conflicting, 5 the court apparently credited

M cFadden’s statement that he did not understand much that Gatwood said. Thus,

the court could reasonably conclude the violation did not affect M cFadden’s

testimony. 6 Second, the district court, sua sponte, called W olthuis to testify,

thereby considering the perspective of another officer in the vehicle at the time the



         5
          M cFadden testified: “I didn’t hear or understand what [Gatwood] was
  saying . . . . or pay any attention to what he was saying. [I heard him say]
  [s]omething about Officer . . . W olthuis and us w ere together, and that’s all I
  understood him to say.” (R. Vol. III at 56-57.) Gatwood denied making such a
  statement and testified he told M cFadden his testimony was required and asked
  him if he w anted him to w atch his belongings.
         6
          Interestingly, Samuels does not challenge the admission of M cFadden’s
  testimony, although M cFadden, having not yet testified, was most at risk of being
  influenced by a violation of the sequestration order.

                                           -7-
officers approached Samuels. Given the court’s determined efforts to get to the

truth of the matter and its considered decision based upon the available evidence,

we applaud its efforts as a reasonable exercise of discretion.

      2. Lack of Reasonable Suspicion to Stop

      W hen reviewing the denial of a motion to suppress, we review factual matters

for clear error and questions of legal reasonableness de novo. United States v.

Riccardi, 405 F.3d 852, 859 (10th Cir.), cert. denied, 126 S.Ct. 299 (2005). “W e

consider the totality of the circumstances and view the evidence in the light most

favorable to the government.” Id. at 860.

      The Fourth Amendment extends to brief investigatory stops of persons and

vehicles. Whren v. United States, 517 U.S. 806, 809-10 (1996); Terry v. Ohio, 392

U.S. 1, 9 (1968). A two part test guides us in determining whether the officers’ stop

of Samuels’ person or vehicle was reasonable. Terry, 392 U.S. at 19-20; see United

States v. Bustillos-M unoz, 235 F.3d 505, 511-12 (10th Cir. 2000). W e ask “whether

the officer’s action was justified at its inception, and whether it was reasonably

related in scope to the circumstances w hich justified the interference in the first

place.” Terry, 392 U.S. at 20. In this case, Samuels challenges the court’s

conclusion that the first prong of this test was satisfied, i.e., the officers had

reasonable suspicion to conduct the investigatory stop in the first instance.

      “A confidential tip may justify an investigatory stop if under the totality of

the circumstances the tip furnishes both sufficient indicia of reliability and

                                            -8-
sufficient information to provide reasonable suspicion that criminal conduct is, has,

or is about to occur.” United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir.

1997). To determine whether a tip is sufficiently reliable under the totality of the

circumstances, we look to “the credibility or veracity of the informant, the basis of

the informant’s knowledge, and the extent to which the police are able

independently to verify the reliability of the tip.” Id.

      Here, even though it was not corroborated by either M cFadden or Wolthuis,

the district court credited Gatwood’s testimony that 1) a confidential informant

paged him while he was on patrol with M cFadden and W olthuis, (2) the informant

told him he had observed a black male selling crack cocaine out of a white El

Camino in the parking lot of the convenience store on several occasions and this

individual was presently in the El Camino in the store’s parking lot, and 3) this

informant had provided him with accurate information twenty-five to thirty times in

the past, resulting in ten to twenty arrests. W e see no reason to disturb this

credibility determination. 7 United States v. Alexander, 447 F.3d 1290, 1294 (10th

         7
          Samuels makes the curious argument that the district court should not
  have determined Gatwood’s testimony credible unless it was corroborated by
  other witnesses. Although it is true that corroboration may bolster offered
  testimony, corroboration is generally not necessary for the court to find testimony
  credible. See M edichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1171 (Fed. Cir.
  2006) (“[C]orroboration is fundamentally about ‘credibility,’ . . . and . . . in
  reviewing factual findings under the clear error standard, this court gives great
  deference to the district court’s decisions regarding credibility of witnesses.”)
  (quotations omitted). Requiring corroboration seems to be the exception, not the
  rule. Compare People v. Guido, 184 N.E.2d 858, 860 (Ill. 1962) (“[T]he
  testimony of a single w itness, if it is positive and the witness credible, is

                                            -9-
Cir.) (at a suppression hearing, “[t]he credibility of witnesses, the weight to be

given evidence, and the reasonable inferences drawn from the evidence fall within

the province of the district court”), cert. denied, 127 S.Ct. 315 (2006); see also

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“W hen findings

are based on determinations regarding the credibility of witnesses, [Federal Rule of

Civil Procedure] 52(a) demands even greater deference to the trial court’s findings;

for only the trial judge can be aware of the variations in demeanor and tone of voice

that bear so heavily on the listener’s understanding of and belief in what is said.”).

      Gatwood’s testimony regarding the confidential informant’s past reliability

established the reliability of the tip. See Leos-Q uijada, 107 F.3d at 792-93 (tip was

reliable where informant’s previous tips resulted in the discovery of at least three

marijuana loads and led to successful apprehensions approximately fifty percent of




  sufficient to convict even though it is contradicted by the accused.”), Fisher v.
  Commonwealth, 321 S.E.2d 202, 204 (Va. 1984) (“[T]he victim’s testimony, if
  credible and accepted by the finder of fact, is sufficient evidence, standing alone,
  to support the conviction.”), Vlahos v. State, 75 P.3d 628, 636 (W yo. 2003) (“[I]n
  W yoming as well as in other states that follow the common law, no corroboration
  of accomplice testimony is required, and a conviction can be sustained on such
  testimony alone if it is convincing and credible.”); with M edichem, 437 F.3d at
  1169 (in patent context, corroborating evidence is necessary to prove certain
  claim), and M illsap v. State, 621 S.E.2d 837, 839 (Ga. App. 2005) (“To sustain a
  felony conviction based upon the testimony of an accomplice, there must be
  independent corroborating evidence, either testimony from another witness or
  corroborating circumstances, which connects the accused to the crime.”).


                                          -10-
the time). 8 Gatwood also testified drug transactions occurred often in the

convenience store itself and the area surrounding it. Illinois v. Wardlow, 528 U.S.

119, 124 (2000) (while insufficient standing alone, “the fact that the stop occurred

in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry

analysis”). Lastly, he testified the officers observed a male leave the store and enter



         8
          The district court suggested that the officers’ observation of a black man
  in a white El Camino in the parking lot of the store corroborated the tip, lending it
  some additional indicia of reliability. If that is true, it is only marginally so. The
  only information the officers corroborated about the tip before making the stop in
  this case was information that was plainly visible to any passerby. As the
  Supreme Court explained:

         An accurate description of a subject’s readily observable location and
         appearance is of course reliable in this limited sense: It will help the police
         correctly identify the person whom the tipster means to accuse. Such a tip,
         however, does not show that the tipster has knowledge of concealed
         criminal activity. The reasonable suspicion here at issue requires that a tip
         be reliable in its assertion of illegality, not just in its tendency to identify a
         determinate person.

  Florida v. J.L., 529 U.S. 266, 272 (2000). Our cases have also emphasized this
  point. See United States v. Garner, 416 F.3d 1208, 1215 (10th Cir. 2005)
  (“[W]hen the only information corroborated is readily available and does not
  itself indicate that a crime has been committed, reasonable suspicion may be
  lacking.”); United States v. Tuter, 240 F.3d 1292, 1297 (10th Cir. 2001) (“Almost
  anyone can describe the residents of, and vehicles at, a particular home without
  having any special knowledge of what goes on inside the home.”). Had the
  reliability of the informant been unknown, as in the case of a tip from an
  anonymous source, the officers would generally have needed to verify details of
  the tip beyond the identifying information available for observation by the general
  public. J.L., 529 U.S. at 270.
          How ever, the court’s comments do not affect the outcome here. Because
  the court credited Gatwood’s testimony about the informant’s reliability, the tip
  did not have to be corroborated as to the allegation of illegal conduct to have the
  indicia of reliability that would support reasonable suspicion. See id.

                                           -11-
the El Camino, which, based on his training and experience, was consistent with a

drug transaction. W e agree with the district court that the facts, considered in their

totality, supported a reasonable suspicion that illegal activity was about to occur.

B.    Failure to Allow Samuels to W ithdraw Plea Based on Ineffective Assistance
      of Counsel

      At the hearing on the motion for variance, defense counsel moved to

withdraw because he believed he had rendered ineffective assistance of counsel.

The court denied the motion to withdraw, finding counsel was not ineffective and

there were no grounds for Samuels to withdraw his plea. Samuels argues the court

erred in not allow ing him to w ithdraw his plea based on his counsel’s

ineffectiveness. W e do not reach this claim. Because Samuels did not move to

withdraw his plea, the issue is waived. Callahan v. Poppell, 471 F.3d 1155, 1161

(10th Cir. 2006) (“As a general rule, issues that are not raised before the district

court are waived.”).

      As part of this issue, Samuels attempts to assert an ineffective assistance of

counsel claim, but we decline to address the issue. “Ineffective assistance of

counsel claims should be brought in collateral proceedings, not on direct appeal.

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). Although we may review an ineffective assistance of counsel claim on

direct appeal if the record is fully developed, such cases are “rare.” Id. Here, the



                                           -12-
court addressed the ineffectiveness of defense counsel because counsel moved to

w ithdraw based on his belief he had been constitutionally ineffective. However, w e

are not prepared to say this brief portion of the record below completely develops

all issues that might be brought in collateral proceedings. A collateral proceeding

would allow consideration of the record as a w hole, including defense counsel’s

failure to move to w ithdraw the plea or vacate the plea agreement, which may assist

in the resolution of an ineffective assistance claim.

C.       Failure to Vacate Plea Agreement Based on M utual M istake, Public Policy
         and Unconscionability

         Samuels claims the district court erred in not vacating the plea agreement

based on the parties’ failure to consider his career offender status at the time they

negotiated the agreement. 9 Again, we do not reach this issue because Samuels never

requested the district court to vacate the plea agreement. 10 Callahan, 471 F.3d at

1161.

         A FFIRM E D.


           9
             In similar circumstances, where the plea agreement was made with
     knowledge that an estimated sentence is non-binding on the court, we found a
     defendant could not avoid the agreement based on a mutual mistake in calculating
     the sentencing guideline range or via an analogy to the doctrine of frustration of
     purpose. United States v. Ahlenius, 198 F.3d 259, No. 98-1414, 1999 W L
     909836, at *3 (10th Cir. Oct. 19, 1999) (unpublished). Unpublished opinions are
     not binding precedent. W e mention Ahlenius only because of its persuasive value.
     See 10th Cir. R. App. P. 32.1(A).
           10
              On appeal, Samuels does not challenge the district court’s disposition of
     motions his counsel actually made, i.e., the motions for downward departure and
     for variance.

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