Opinion
Civil Case No. 2:03 CV 864 TC, Criminal Case No. 2:98 CR 586 TC.
October 20, 2004
ORDER
Petitioner Mesa Rith has filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Mr. Rith contends that his trial counsel was ineffective in his performance during trial and during the sentencing proceedings. For the reasons discussed below in this order, the court denies Mr. Rith's motion.
STATEMENT OF FACTS
Procedural Background
On December 2, 1998, the Grand Jury indicted Sonasi Manu Pouha in a two-count indictment alleging violations of 18 U.S.C. §§ 2113(a) (d) and 924(c), armed bank robbery and carrying and using a firearm during and in relation to a crime of violence. (Indictment, United States v. Pouha, No. 2:98CR586 TC (criminal docket no. 9) (the docket will hereinafter be cited as "Cr. Doc.").) On January 13, 1999, the Grand Jury returned a Superceding Indictment charging Mr. Rith in the same two counts with Mr. Pouha and adding allegations that the Defendants aided and abetted one another in violation of 18 U.S.C. § 2. (Cr. Doc. 25.) On February 10, 1999, a Second Superceding indictment was returned, alleging the same two counts but naming a third Defendant, Phoma Xayso. (Cr. Doc. 45).
Before trial, Mr. Pouha entered a plea of guilty and agreed to testify at the trial of his codefendants. In exchange, the United States agreed to consider making a motion that the court depart below the statutory minimum sentence in imposing sentence on Mr. Pouha. (Cr. Doc. 154.)
On October 2, 2000, the trial of Mr. Rith and Mr. Xayso began. On October 6, 2000, the Jury found Mr. Rith and Mr. Xayso guilty of both counts of the Second Superceding indictment. United States Probation Officer Tristan Smart prepared a Presentence Report ("PSR"). The United States objected to the PSR for several reasons, including the reason that the PSR did not apply Section 3C1.1 of the Sentencing Guidelines for willful obstruction of justice which provides a two-level enhancement. (Cr. Doc. 231, 236.) Mr. Rith's attorney filed objections to the PSR, but did not respond to the government's objection that the PSR should include a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction or impeding the administration of justice. (Cr. Doc. 247, 265 272.)
At the sentencing, the court stated that it did not find petitioner's testimony at trial to be believable. ("I was the trial judge, and I heard Mr. Rith testify in some detail that he was not involved in the bank robbery, a contention that the jury rejected and I myself found not believable. . . . According to Mr. Rith, he was at the time of the robbery involved in obtaining medical care for his girlfriend's brother. . . . I myself found it to be false." (Transcript of May 23, 2001 Sentencing Hearing at 16.)
The court sentenced Mr. Rith to imprisonment for 137 months on Count 1 and 84 months on Count 2, the two terms of imprisonment to run consecutively. (Cr. Doc. 278.)
Mr. Rith's Alibi Defense
On April 13, 2000, Mr. Rith filed a notice of alibi, identifying Fongsamount "Tina" Chanthavong, Daosadet Chanthavong, and Taikham Chanthavong as alibi witnesses. (Cr. Doc. 155.) On May 4, 2000, petitioner filed his second notice of alibi, identifying Kongphet "Pit" Chanthavong and Phouthavong "Noy" Chanthavong as alibi witnesses. (Cr. Doc. 161.) On May 30, 2000, and July 19, 2000, petitioner filed motions requesting that the deposition of witness Daosadet Chanthavong be taken. (Cr. Doc. 167, 172.) The deposition was first scheduled to take place on June 1, 2000, and was later rescheduled for July 25, 2000, at the West Valley City Police Station. Each scheduled deposition was cancelled due to the health of the witness. (Cr. Docs. 167, 172, and 173.)
The Trial
The jury trial began on October 2, 2000. The government's case-in-chief included bank personnel, who described the details of the robbery, and several other witnesses, who were involved in various ways with Mr. Rith in the robbery. The key witness was Sonasi Pouha, who had earlier plead guilty to his role in the robbery. Mr. Pouha testified as follows regarding Mr. Rith's involvment in the robbery: He and Mr. Rith planned the robbery together; Mr. Rith drove Mr. Pouha and Phoma Xayaso to the Zion's bank on November 24, 1998; It was Mr. Rith who supplied the guns for the robbery; Mr. Rith returned to Mr. Pouha's house with his girlfriend shortly after the robbery in petitioner's red car; and initially, it was planned that Mr. Pouha's brother would go to the police station to flatten the tires of the police vehicles. (October 3, 2000 Transcript of Jury Trial at 158-238 (hereinafter "[date] Trial Tr.".)
Mr. Pouha's testimony was corroborated by the testimony of several witnesses, including his mother, Mele Pouha. (Oct. 3, 2000 Tr. at 250-254.) Ms. Pouha testified that on the day of the robbery, before agents with the Federal Bureau of Investigation came to look for her son, Mr. Rith came to her house between 2:15 p.m. and 3:00 p.m. to talk to Pouha. Ms. Pouha testified that Mr. Rith was driving in a red car.
Michael Anthony Chanthachack, a friend of Mr. Rith's since childhood, testified that in November 1988, he and Mr. Rith had planned to rob two banks. (Oct. 4, 2000 Trial Tr. at 113-141). Mr. Chanthachack described a planning meeting at a friend's house a few weeks before the robbery was to take place. Present at this planning meeting were Mr. Chanthachack, his brother Somchay, Mr. Rith, Mr. Phoma Xayaso, and a few others. Part of the plan was to have an accomplice go to the police station to flatten the tires of the police cars. Because Mr. Chanthachack was placed on an ankle monitor for another criminal offense shortly before the planned robbery, he did not take part in the robbery. Mr. Chanthachack recounted a conversation he had with Mr. Rith about a week after the robbery. During this conversation, Mr. Rith admitted that he had robbed the bank. Mr. Rith described the robbery in some detail, telling Mr. Chanthachack that they had taken approximately $7,000; that they had taken three cash registers from the bank; that he had been the driver of the car and "the older . . . Polynesian kid" had been "the one that got all the money from the bank;" and how they had thrown the 30-30 rifle into a field because a police officer had followed them after the robbery. (Id. at 118.)
Michael Anthony Chanthachack's brother, Somchay Chanthachack ("Somchay") testified that he had been at the planning meeting described by his brother. (Oct. 4, 2000 Trial Tr. at 144-154). Somchay testified that Mr. Rith said "[t]hat he was going to rob a bank with some of his Tongan friends, Polynesian friends, and that they were going to rob a bank." (Id. at 147.) About a week after the robbery, Mr. Rith told Somchay that he, "Phoma and Sonsai" had robbed a bank. (Id. at 149.) Mr. Rith told Somchay that they had gotten about "seven and-a-half grand," and that they lost two of the guns, "a 30-30, and it was sawed off, and I believe a.38." (Id.) The rifle was lost when the robbers "dropped it in the field or whatnot as they was running from the bank." (Id.) Mr. Rith told Somchay "the Tongan kid got caught like a day later, like at his house, and all the money and whatnot." (Id.)
Mr. Rith testified in his defense. According to Mr. Rith, on the day of the robbery, November 24, 1998, his girlfriend Phouthavong "Tina" Chanthavong's younger brother Daosadet was diagnosed with leukemia. (Oct. 4, 2000 Trial Tr. at 178-191.) Mr. Rith claimed his girlfriend paged him and asked him to come back to her house to take her little brother to the hospital. Mr. Rith testified that he, at his girlfriend's mother's request, went to Hunter High School to pick up another family member, Kongphet "Pit" Chanthavong. Mr. Rith testified that he and the family then went to the clinic. While at the Instacare, Doasadet was diagnosed with leukemia, and was taken by his family to Primary Children's Medical Center for treatment. The court received into evidence the medical records showing that Daosadet Chanthavong was admitted into the hospital on November 24, 1998. (Defense Ex. P.)
Before resting his case, outside the presence of the jury, Mr. Rith's attorney, Ronald Jorgensen, told the court:
I asked for and received as part of the C.J. A. appointment the appointment of an investigator, and it was Carrington Carrington. . . . She had interviewed my alibi witnesses. . . . The alibi, you know, subject to their-you know, their-it checks out. It's a good alibi. . . .
I issued-apparently about a month — a little over a month ago I called Carrington Carrington. . . . At that point I — I wrote a letter outlining exactly what I needed and what needed to be investigated. I primarily — I kind of prioritized them. Number one priority was of course getting my alibi witnesses together. I then issued — I got subpoenas issued. These subpoenas were in two lumps, you might say, two groups. One I gave to the marshals. They were my institutional type subpoenas, the police and that such. But with these alibi witnesses coming from a Laotian family, I decided that we would want to do — we would want to find them.
I also knew that this Laotian family was — is a divorced family, and it's a — a hard to locate family. They keep moving. However, I also knew that we should be able to locate them because they do have this son that's been in the hospital and spending most of his time in the hospital. . . . [W]e can find the son; usually mom is there. . . . Anyway, so I mean it's not like that they totally should disappear. I then tried to call my investigator and talk to them. I was not able to get a hold of them for the two weeks before trial. I had notified them of the trial date. . . . I find — I call them again. I keep leaving messages. I send them a fax. I said, 'I'm desperate. I need these. Maybe we can gather them up.' I finally — my wife told — calls, she calls. And finally they get a hold of them. They say, 'Well, we just got back from a two week vacation.' . . .
Finally last night Ms. Carrington did talk to me about 12:00 telling me that — that Rand had tried — her husband tried to find these witnesses and had not been able to locate them. I said, 'okay. Meet me at 5:00 o'clock.' Maybe we could — right after court. Maybe we could go look for them. And if we can't find them, maybe at least I could put my investigator on and say, 'we looked for them. We can't find them. We can't produce them. They're unavailable.' . . . But he never showed up, and I waited until. . . . Because I like these people, so I feel a little bit of betrayal.
(Oct. 5, 2000 Trial Tr. at 61-62.)
Petitioner's counsel then made a motion for mistrial, the government objected, and the court denied the motion stating:
I'm going to deny it. I recognize your sincerity there, [counsel], but it's frequently my experience that witnesses don't show up. And there's been no showing, other than Mr. Carrington's somewhat conclusory statement conveyed to me by you that they were good witnesses. We have no knowledge that these witnesses would have in any way — there are no specifics given. And as stated, no motion for a continuance was filed. . . . We are almost through with this trial. You have two defendants. There's Mr. Xayaso, who has his interests as well, and the government. And with that, we will go forward, sir, but your record is preserved.
(Id. at 67).
In rebuttal, the government's called employees of the Taylorsville Instacare who testified that the Chanthavong family came to the Instacare and Daosadet Chanthavong was registered at 4:12 p.m. (Id. at 81-82.) The testimony established that based upon the number of individuals who were seen at the clinic on November 24th between the hours of 2:00 and 5:00, Daosadet and his family could not have arrived any earlier than 3:30 p.m., and probably arrived closer to 4:00 p.m. (Id. at 85, 89-90.) (The robbery occurred at approximately 2:00 in the afternoon.)
The government also called Shea Montiel, a friend of the Chanthavong family, as a rebuttal witness. Ms. Monteil testified that on November 24th she went to the Chanthavong residence to ask Tina to Thanksgiving dinner and noticed that Daosadet was ill. While at the Chanthavong residence, Tina asked Ms. Montiel to go and pick up her younger brother Pit at his girlfriend's house. (This testimony is contrary to that of Mr. Rith, who testified that he went to Hunter High School to pick up Pit. (Oct. 4, 2000 Trial Tr. at 183-84.)) Ms. Montiel testified that she and Tina went for Pit. (Oct. 5, 2000 Trial Tr. at 97.) When she, Tina and Pit arrived at the Chanthavong residence, the family was preparing to take Daosadet to the hospital. Ms. Montiel said that she saw Mr. Rith "for only a slight second" that day, when he arrived to take the Chanthavongs to the clinic. (Id. at 100.)
At the conclusion of the four-day jury trial, Mr. Rith and Mr. Xayso were guilty on both counts. (Cr. Doc. 213 and 214.)
ARGUMENT
Mr. Rith advances a number of grounds in support of his claim that his counsel was ineffective. They include: (1) failure to retain a competent defense investigator; (2) failure to produce the defense investigator at trial; (3) failure to investigate, locate, and serve subpoenas upon, and produce petitioner's alibi witnesses at trial; (4) failure to depose a terminally ill witness before trial; (5) failure to investigate, preserve the testimony of, and to produce at trial alibi witnesses; (6) failure to requesting a continuance of the trial after the defense investigator and alibi witnesses were not present for trial; (7) failure to object to an enhancement for obstruction of justice at sentencing pursuant to U.S.S.G § 3C1.1; and (8) under a "cumulative error analysis" based upon the allegations of ineffectiveness as described above.
To establish ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. United States v. Cook, 49 F.3d 663, 665 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the first prong of Strickland, the court determines whether "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.Upchurch v. Bruce, 333 F.3d 1158, 1163 (10th Cir. 2003). The defendant "must overcome the strong presumption that 'counsel's conduct falls within the wide range of reasonable professional assistance,' and we are reminded that there are 'countless ways to provide effective assistance' of counsel.'" U.S. v. Sanders, 372 F.3d 1183, 1185 (10th Cir. 2004) (quoting United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993) (quoting Strickland, 466 U.S. at 689)). Furthermore, the defendant "must show that his counsel's performance was deficient in that it 'fell below an objective standard of reasonableness.'" attorneys are held up to a "objective standard of reasonableness." U.S. v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004) (quoting Strickland, 466 U.S. at 688). A district court will "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Because of this "strong presumption" that attorneys will generally act reasonably for their clients, to prove an attorney was deficient the client must show the "acts or omissions" committed by the attorney which "were outside the wide range of professionally competent assistance." Id. at 690.
Under the second prong of Strickland, the court must determine whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Sanders, 372 F.3d at 1185 (quotingStrickland, 466 U.S. at 688). A court, however, may not set aside a conviction or a sentence solely because the outcome would have been different absent counsel's deficient performance.Lockhart v. Fretwell, 506 U.S. 364, 369-70. Rather, to establish the prejudice, a defendant must demonstrate that counsel's performance was deficient to the extent it rendered the proceeding "fundamentally unfair or unreliable." Id.
A defendant who succeeds in demonstrating deficient performance by counsel, no matter how egregious, must also satisfy the prejudice part of the test. The Strickland court explained: "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.
Performance
The heart of Mr. Rith's arguments is the failure of his counsel to produce at trial the alibi witnesses. According to Mr. Rith, these witnesses would have substantiated his testimony that at the time of the robbery, he was with his girlfriend's family, trying to obtain medical treatment for his girlfriend's brother. But it is clear that defense counsel made considerable effort to locate and interview the witnesses. The problem arose when his private investigator was unable to secure the witnesses' presence at trial. However, the court is not going to examine this question in detail. Because, even assuming that defense counsel's performance was deficient, Mr. Rith has failed to demonstrate prejudice from his counsel's alleged errors. See Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001) (finding, without analysis, that although counsel's error might be deficient, no prejudice to petitioner: "'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'") (quotingStrickland, 466 U.S. at 697); United States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992) (same).
The government presented overwhelming evidence of Mr. Rith's guilt. Not only did Mr. Rith's co-defendant, Sonasi Pouha, who had previously plead guilty to the bank robbery charges, testify against Mr. Rith, but two friends of Mr. Rith, the Chanthachack brothers, corroborated Mr. Pouha's testimony. The Chanthachacks testified about planning the bank robbery with Mr. Rith and then, later, about the detailed accounts of the robbery Mr. Rith gave them. Further, Mr. Pouha's mother, Mele Pouha, testified that on the day of the robbery, Mr. Rith and another person came to her home, in a red car, to speak with Mr. Pouha.
Finally, the government's rebuttal witnesses, the staff from the medical clinic and Shea Monteil, cast considerable doubt on the veracity of Mr. Rith's testimony. Ms. Monteil testified that, contrary to Mr. Rith's story, it was she and Mr. Rith's girlfriend, Tina, who picked up Pit Chanthavong before the Chanthavong family went to the medical clinic. According to Ms. Monteil, it was only after they returned with Pit that Mr. Rith arrived. When her testimony was combined with the evidence from the medical clinic witnesses, who established that the Chanthavong family did not arrive at the clinic before 3:30 p.m., and probably arrived closer to 4 p.m., it was clear that Mr. Rith could well have taken part in the robbery of the bank at 2:17 p.m., before coming to the Chanthavong home.
As far as Mr. Rith's claim that his attorney's failure to object to the enhancement he received at time of sentencing for obstruction of justice, the court's remarks left no doubt that she had, based on her observations at trial, concluded that Mr. Rith had committed perjury. Therefore, defense counsel's failure to object to the enhancement in his written objections had no effect.
ORDER
For the foregoing reasons, Mr. Rith's § 2255 Petition is DENIED.