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United States v. Cleveland

United States District Court, D. New Mexico

October 2, 2018


          Jennifer M. Rozzoni Letitia Carroll Simms Michael D. Murphy Niki Tapia-Brito Novaline Wilson Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Donald Kochersberger Business Law Southwest, L.L.C. Albuquerque, New Mexico -and- Theresa M. Duncan Ms. Duncan Earnest L.L.C. Albuquerque, New Mexico Attorneys for the Defendant


         THIS MATTER comes before the Court on the Defendant's Motion to Appear for All Hearings and to Assure Participation of Learned Counsel, filed February 26, 2018 (Doc. 52)(“Motion”). The primary issues are: (i) whether, because Defendant, Kirby Cleveland, faces a capital prosecution, the Court should allow him to participate in all substantive hearings in the case; and (ii) whether the Court should extend all deadlines so counsel can participate in the defense, because Cleveland has a right to effective assistance of counsel in his capital case. The Court is reluctant to hold hearings outside Cleveland's presence, but the Court recognizes that circumstances may arise in which Cleveland cannot attend a hearing. Accordingly, the Court will grant Cleveland's first request in part and deny it in part. The second issue is now moot, because it is related to counsel's participation in recusal hearings and the Honorable Kenneth Gonzales, United States District Judge for the District of New Mexico, has now recused himself, and the case has been assigned to this Court.


         The Court draws its facts about the offense at issue from the Indictment, filed April 12, 2017 (Doc. 20)('Indictment”). The Court recognizes that the Indictment largely represents Plaintiff United States of America's version of events and that Cleveland is presumed innocent.

         Before becoming a United States District Judge, Judge Gonzales served as the United States Attorney for the District of New Mexico from 2010 to 2013. See “Kenneth John Gonzales, ” Wikipedia, (last viewed September 22, 2018). During his tenure as the United States Attorney, Cleveland's first federal prosecution, United States v. Cleveland, No. CR 12-2062 MCA, was litigated in the District of New Mexico. See United States v. Cleveland, No. CR. 12-2062 MCA, Indictment at 1, filed August 21, 2012 (Doc. 46).

         On July 18, 2013, Cleveland pled guilty to violations of 18 U.S.c. § 1153 and 18 U.S.c. § 113(a)(6), for an assault on Jane Doe resulting in serious bodily injury. See United States v. Cleveland, No. CR. 12-2062 MCA, Judgment at 1, filed November 27, 2013 (Doc. 102)(“ Judgment”). The Honorable M. Christina Armijo, then-Chief United States District Judge for the District of New Mexico, sentenced Cleveland to 24 months in prison and three years of supervised release. See Judgment at 1. Cleveland entered supervision on April 7, 2014, but after absconding from supervision, he was remanded to custody on July 14, 2016, for lying to the probation officer, violating the probation officer's instructions, using alcohol and other intoxicants, and not completing a substance abuse treatment program. See United States v. Cleveland, No. CR. 12-2062 MCA, Petition for Revocation of Supervised Release at 1, filed July 17, 2015 (Doc. 109); Judgment at 1-2, filed August 8, 2016 (Doc. 121); Second Petition for Revocation of Supervised Release at 1, filed February 27, 2017 (Doc. 122). Cleveland returned to supervision on September 6, 2016, with the supervision set to end on September 5, 2018. See United States v. Cleveland, No. CR. 12-2062 MCA, Second Petition for Revocation of Supervised Release at 1. Before completing his supervised release, around February 26, 2017, to March 11, 2017, Cleveland escaped “from Diersen Residential Reentry Center in Albuquerque, ” New Mexico. Indictment at 2. Cleveland killed John Doe, Navajo Nation Division of Public Safety Patrol Officer, with a firearm around March 11, 2017. See Indictment at 2.


         A federal Grand Jury indicted Cleveland in the current case on April 12, 2017. See Indictment at 1. Two attorneys represent Cleveland: Theresa M. Duncan, the learned counsel, [1]and Donald Kochersberger. See Transcript of Hearing at 3:8-10 (taken January 24, 2017)(Court)(“January Tr.”); Matthew J. Dykman, District of New Mexico, CJA Information Manual at 8 (2017). Originally, the case was assigned to Judge Armijo. The case was reassigned to Judge Gonzales on January 11, 2018. On January 24, 2018, Plaintiff United States of America informed Judge Gonzales that he served as the United States Attorney when the United States prosecuted Cleveland's first case. See Clerk's Minutes at 1, filed January 26, 2018 (Doc. 36)(“January Minutes”). On January 25, 2017, the parties -- without Cleveland -- held a telephone conference with Judge Gonzales to discuss the matter. See January Minutes at 1. Judge Gonzales referred the case to the Honorable Karen Molzen, then-Chief United States Magistrate Judge for the District of New Mexico, for findings of recusal. See Order of Reference at 1, filed January 26, 2018 (Doc. 37); Proposed Findings and Recommended Disposition, filed January 26, 2018 (Doc. 38). The parties agreed to another status conference, which Judge Gonzales scheduled for February 1, 2018. See January Minutes at 3; Clerk's Minutes at 1, filed February 2, 2018 (Doc. 42)(“February Minutes”). During the conference, Ms. Duncan raised the fact that she would start trial before this Court for the case against members of the Syndicato de Nuevo Mexico prison gang (“SNM”) on the following Monday. See January Transcript at 8:22-25 (Ms. Duncan). Judge Gonzales, nevertheless, asked Ms. Duncan and Mr. Kochersberger to file a motion in response to the recusal issue by the “close of business on Monday.” January Tr. at 9-11 (Court). On January 26, 2018, the day after the telephone conversation, the United States filed its Notice of Intent to Seek the Death Penalty, filed January 26, 2018 (Doc. 39).

         The parties held the scheduled status conference -- again without Cleveland present -- on February 1, 2018. See February Minutes at 1-2. Ms. Duncan did not participate, because she was in Las Cruces, New Mexico for the SNM case. See Transcript of Status Conference at 3:15-16 (taken February 1, 2017)(Court) (“February Tr.”); Motion at 7; Transcript of Opening Statements at 7:5 (taken January 31, 2018)(Court); id. at 12:1-5 (Duncan). In the conference, Judge Gonzales decided that then-Chief Magistrate Judge Molzen should further review the recusal issue, particularly in light of additional documents that the United States discovered. See Order Resulting From Status Conference at 1-2, filed February 2, 2018 (Doc. 44)(“Status Conference Order”). Judge Gonzales also asked the parties to propose a scheduling order for this case by February 28, 2018, even though Ms. Duncan expected to remain in trial for the SNM case for four to eight weeks. See January Tr. at 6:10-16; id, at 6-7; id, at 12-15. The parties and Judge Gonzales set a status conference for March 2, 2018. See Order Setting an In Person Status Conference, filed February 5, 2018 (Doc. 47).

         Then-Chief Magistrate Judge Molzen determined that, while Judge Gonzales did not actively participate in the prosecution of Cleveland's first case, Judge Gonzales emailed the prosecutor to say, “Nice job, Nova!” after Cleveland's guilty plea.[2] Second Report by the Magistrate Judge at 1-2, filed February 2, 2018 (Doc. 45)(“Second PFRD”). Then-Chief Magistrate Judge Molzen concluded that “recusal does not appear mandatory, ” but the email “should be disclosed.” Second PFRD at 1. Then-Chief Magistrate Judge Molzen did not make a further recommendation, “because the [28 U.S.c. § 455(b)(3)] ‘appearance of impartiality' analysis requires consideration of all relevant information and would extend beyond the documents that [she] reviewed in camera, ” so “a further recommendation seems outside the scope of the order of referral.” Second PFRD at 2 (emphasis in original).

         1.The Motion.

         Cleveland filed the Motion on February 26, 2018, before the Court received the case. See Motion at 1. Cleveland asks that: (i) he “be allowed to appear for all substantive hearings in the case”; and (ii) “the Court extend all existing and future deadlines to allow [Ms. Duncan] an opportunity to meaningfully participate in the defense of the case” after the SNM trial. Motion at 1. Cleveland argues that the Court should ensure a defendant's presence at all meetings at which the parties and the Court discuss “historical factual issues.” Motion at 1, 2 (citing Fed. R. Crim. P. 43(a)(2); 3A C. Wright, Federal Practice and Procedure § 721.1, at 12 (2d ed. 1983); Grayton v. Ercole, 691 F.3d 165, 172 (2d Cir. 2012)). Cleveland admits that the Federal Rules of Criminal Procedure leave an exception for “conference[s] or hearing[s] on . . . question[s] of law.” Motion at 2 (citing Fed. R. Crim. P. 43(b)(3)). Cleveland contends, however, that his presence is particularly important given that he faces a capital prosecution. See Motion at 3-5.

         Regarding Ms. Duncan's participation, Cleveland requests that the Court delay establishing deadlines and requiring filings until Ms. Duncan can participate. Motion at 9. Cleveland explains that his concerns arose, because Ms. Duncan's presence “was of no consequence” to Judge Gonzales at the February 1, 2018, hearing. Motion at 7. Despite Ms. Duncan's commitment to the SNM trial, the court deemed that she could participate in scheduling matters. See Motion at 7. Cleveland argues that “[t]he right to effective assistance of counsel is dependent on the very right to counsel itself.” Motion at 7 (citing Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)). According to Cleveland, “[b]y not permitting [Ms. Duncan] an opportunity to be present at every hearing in this case, and to meaningfully participate in every facet of this case, this Court would render the Sixth Amendment right to counsel meaningless.” Motion at 8.

         2. The Hearing.

         The case was reassigned to this Court on March 5, 2018. The Court held a status conference on March 21, 2018. See Transcript of Hearing at 2:23 (taken March 21, 2018)(“Tr.”).[3] The Court began by explaining that it would “prefer . . . [to] grant [Cleveland's] motion in large part, ” Tr. at 41:24-25 (Court), but had reservations, because “there might be a circumstance[] that would be unusual that you waived or didn't care about, ” Tr. at 42:1-2 (Court). The Court offered to “try to schedule things and make sure that [counsel is] available to participate and not try to have hearings without you present.” Tr. at 42:3-5 (Court). Cleveland agreed with the Court and described the motion to assure participation of learned counsel as targeted at “the disqualification of Judge Gonzales and making sure [counsel] could participate.” Tr. at 42:10-13 (Ms. Duncan). Regarding the motion to appear for all hearings, Cleveland's counsel admitted that she knew the Court's “practice is to have the defendants present for all hearings, ” but “didn't want to withdraw a request that [they felt was] important.” Tr. at 42:14-20 (Ms. Duncan). The Court indicated that it would grant the motion to appear for all hearings, with a “caveat in case there is an emergency and we . . . deal with it at that time, ” because “over a two-year period it's hard to anticipate everything that would come up.” Tr. at 42:25-43:3 (Court).


         The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V.

         The United States Court of Appeals for the Tenth Circuit has held that “[t]he constitutional right of the defendant to be present at trial is rooted in both the Confrontation Clause and the Due Process Clause.” United States v. Beierle, 810 F.3d 1193, 1198 (10th Cir. 2016)(citing United States v. Gagnon, 470 U.S. 522, 526 (1985)(per curiam)). “The Confrontation Clause assures the defendant of ‘the privilege to confront one's accusers and cross-examine them face to face.'” United States v. Beierle, 810 F.3d at 1198 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)). Beyond actual presentation of evidence at trial, presence at court proceedings implicates the Due Process Clause and not the Confrontation Clause. See United States v. Beierle, 810 F.3d at 1198. Pursuant to the Due Process Clause, then, “‘the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'” United States v. Beierle, 810 F.3d at 1198 (original alterations omitted)(quoting United States v. Gagnon, 470 U.S. at 526). “[T]he exclusion of a defendant . . . from the courtroom during argument on a question of law does not violate defendant's constitutional right to be present at every step of the proceedings.” United States v. Beierle, 810 F.3d at 1199 (citing Deschenes v. United States, 224 F.2d 688, 693 (10th Cir. 1955)). Given the importance of the defendant's presence, rule 43 of the Federal Rules of Criminal Procedure codifies this due process principle. See United States v. DeLeon, No. CR 15-4268 JB, 2017 WL 2272936, at *18 (D.N.M. Feb. 6, 2017)(Browning, J.).


         The Sixth Amendment's Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Tenth Circuit “has determined the Confrontation Clause does not apply at noncapital sentencing proceedings under the Guidelines.” United States v. Phillips, 165 Fed.Appx. 677, 681 (10th Cir. 2006)(cited in United States v. Mata, No. CR 05-2046 JB, 2006 WL 4079127, at *10 (D.N.M. May 2, 2006)(Browning, J.)). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court of the United States of America held that, consistent with the Sixth Amendment, “[testimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Davis v. Washington, 541 U.S. 36, 59 (2004). In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court further elaborated on what a “testimonial” statement is:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. at 822. The Tenth Circuit has restated this rule, defining a testimonial statement as “a ‘formal declaration made by the declarant that, when objectively considered, indicates' that the ‘primary purpose of the [statement is] to establish or prove past events potentially relevant to later criminal prosecution.'” United States v. Morgan, Nos. 12-1408, 12-1442, 13-1032, 2014 WL 1378207, at *9 (10th Cir. 2014)(alteration in original) (quoting United States v. Smalls, 605 F.3d 765, 777-78 (10th Cir. 2010)). Accord United States v. Chaco, 801 F.Supp.2d 1200, 1207- 10 (D.N.M. 2011)(Browning, J.) (discussing developments in Tenth Circuit precedent on the test regarding what qualifies as a testimonial statement).[4]

         In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court addressed whether the admission of an affidavit by a forensic chemist, who swore that the substance which the police seized from the defendant was cocaine of a certain amount, violated the Confrontation Clause. See 557 U.S. at 307. The Supreme Court first concluded that such affidavits were testimonial, because they were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, ” and because, under Massachusetts law, the affidavit's sole purpose was to provide prima facie evidence of the content of the substance seized. 557 U.S. at 310. The Supreme Court then used the affidavit introduced by the prosecution to outline its concerns regarding the lack of cross-examination when such affidavits are introduced as evidence:

The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.” At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs.” At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination.

557 U.S. at 320. Because there was no opportunity to cross-examine on these issues, the Supreme Court concluded that introduction of the affidavit violated the defendant's rights under the Confrontation Clause. See 557 U.S. at 329 (“The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.”)(emphasis in original). The Supreme Court has since extended this holding to “forensic laboratory report[s] containing a testimonial certification -- made for the purpose of proving a particular fact -- through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” Bull coming v. New Mexico, 564 U.S. 647, 661 (2011)(“ Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'” (quoting Melendez-Diaz, 557 U.S. at 310 n.6)). See United States v. Harry, No. CR 10-1915 JB, 2014 WL 1950409 at *13 (D.N.M. 2014)(Browning, J.) (discussing the Confrontation Clause, but finding no violation where statement was not testimonial).

         Except in rare cases, the prosecution's use of live or recorded video testimony without the defendant having the ability to confront the witness face-to-face violates a defendant's Confrontation Clause rights -- absent a showing of unavailability and prior opportunity to confront the witness. See United States v. Sandoval No. CR 04-2362 JB, 2006 WL 1228953, at *7-9 (D.N.M. 2006)(Browning, J.). In Maryland v. Craig, 497 U.S. 836 (1990) -- which the Supreme Court decided before Crawford v. Washington -- the Supreme Court rejected a Confrontation Clause challenge to a Maryland statute that allowed a child witness in a child molestation case, under certain circumstances, to testify via a one-way closed circuit television, which did not allow the witness to view the defendant. See Maryland v. Craig, 497 U.S. at 860. While upholding the constitutionality of a child's testimony outside the defendant's presence, the Supreme Court in Maryland v. Craig recognized that the “central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” 497 U.S. at 845.[5]

         The Supreme Court in Maryland v. Craig recognizes that the context of an adversary proceeding before the trier of fact involves “[t]he combined effect of these elements of confrontation -- physical presence, oath, cross-examination, and observation of demeanor by the trier of fact” that “is the norm of Anglo-American criminal proceedings.” 497 U.S. at 846. The Supreme Court in Maryland v. Craig also acknowledges the peculiar power of face-to-face confrontation in that “face-to-face confrontation enhances the accuracy of fact finding by reducing the risk that a witness will wrongfully implicate an innocent person, ” 497 U.S. at 846 (citing Coy v. Iowa, 487 U.S. 1012, 1019-20 (1988)), and that “face-to-face confrontation forms ‘the core of the values furthered by the Confrontation Clause, '” Maryland v. Craig, 497 U.S. at 847 (quoting California v. Green, 399 U.S. 149, 157 (1970)).

         The Supreme Court explains in Maryland v. Craig that the Confrontation Clause “reflects a preference for face-to-face confrontation at trial, ” but that the preference “must occasionally give way to considerations of public policy and the necessities of the case.” 497 U.S. at 849 (internal quotation marks omitted). The Supreme Court emphasizes that the preference for face-to-face confrontation is strong, and that a defendant's Sixth Amendment confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” 497 U.S. at 850.

         While the issue is decidedly less clear, a violation of a defendant's Confrontation Clause rights does not occur when the defendant calls by videoconference or telephonically one of his or her own witnesses who is aligned with him. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . . .”). Cf. United States v. Olguin, 643 F.3d 384, 392 (5th Cir. 2011)(“The Sixth Amendment guarantees the right to confrontation against a party testifying against him, not against others.”). The need for “adversariness” is not present when the witness is aligned with the defendant. Maryland v. Craig, 497 U.S. at 845. The Supreme Court spoke in Crawford v. Washington about the need for the defendant to have “an adequate opportunity to cross- examine” a witness to satisfy the Confrontation Clause, a need which is not present when the witness is aligned with the defendant. See 541 U.S. at 58. The Federal Rules of Evidence, for example, generally do not permit a party to ask leading questions -- a key tool of cross examination -- of a witness aligned with the party calling the witness. See Fed.R.Evid. 611(c).[6] A defendant also waives a Confrontation Clause ...

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