United States District Court, D. New Mexico
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
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
MEMORANDUM OPINION AND ORDER
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.
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
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,
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).
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.
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,
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).
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).
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. 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).
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.
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.
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.”). 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).
LAW REGARDING THE FIFTH AMENDMENT OF THE CONSTITUTION OF
THE UNITED STATES OF AMERICA AND DUE PROCESS
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.
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.).
REGARDING THE CONFRONTATION CLAUSE
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”
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
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).
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).
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
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
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.
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). A defendant also waives a Confrontation