United States v. Jose M. Quintero-Barraza

57 F.3d 836 UNITED STATES of America, Plaintiff-Appellee, v. Jose M. QUINTERO-BARRAZA, Defendant-Appellant. No. 93-10764. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 16, 1995. Decided June 15, 1995. 1 Tang, Senior Circuit Judge, filed a dissenting opinion. 2 John C. Lambrose, Office of the Federal Public Defender, Las Vegas, NV, for defendant-appellant. 3 Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee. 4 Appeal from the United States District Court for the District of Nevada. 5 Before: TANG, O'SCANNLAIN, Circuit Judges, and MERHIGE, Senior District Judge. * MERHIGE, Senior District Judge: 6 Jose Martin Quintero-Barraza ("Appellant") appeals his jury conviction for possession with intent to distribute a controlled substance ( 21 U.S.C. Sec. 841 (a)(1)) and aiding and abetting the same ( 18 U.S.C. Sec. 2 ). His appeal also encompasses a sentence imposed on each of the two counts of the indictment returned against him. This court has jurisdiction under 28 U.S.C. Sec. 1291 . I. 7 In March, 1993, Nevada State Troopers Rosell Owens and Ken Roles stopped a vehicle containing two persons for allegedly travelling 75 miles per hour in…

Jose Martin Quintero-Barraza (“Appellant”) appeals his jury conviction for possession with intent to distribute a controlled substance ( 21 U.S.C. § 841 (a)(1)) and aiding and abetting the same ( 18 U.S.C. § 2 ). His appeal also encompasses a sentence imposed on each of the two counts of the indictment returned against him. This court has jurisdiction under 28 U.S.C. § 1291 .

I.

In March, 1993, Nevada State Troopers Rosell Owens and Ken Roles stopped a vehicle containing two persons for allegedly trav-elling 75 miles per hour in a 65 mile per hour zone. Subsequent to the stop, Owens asked Appellant for permission to search the vehicle. Appellant consented to a search which yielded approximately ten pounds of methamphetamine, air fresheners (which are allegedly used to mask the odor of drugs), and a dated receipt from a Las Vegas Best Western motel bearing Appellant’s name.

Appellant and the passenger were placed under arrest. Appellant was interviewed by Nevada Division of Investigation Officer Mark Hoekenga soon thereafter. Appellant allegedly stated that he had borrowed the car from one Ramon Lopez to use for vacation purposes. Appellant also purportedly told Hoekenga that he…

dissenting:

I respectfully dissent. Quintero-Barraza’s conviction was based entirely on circumstantial evidence, arrived at only after an initially deadlocked jury was given an Allen charge. Had defendant’s counsel rendered effective assistance, there is a “reasonable probability that, but for counsel’s unprofessional efforts,” the defendant would not have been convicted. Strickland v. Washington, 466 U.S. 668, 690 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674 (1984). Three of the attorney’s errors had a direct impact on whether the jury found the defendant guilty or innocent. Defense counsel (1) allowed the court to impanel a facially biased juror who believed the defendant to be guilty even before the trial started, (2) failed to call expert witnesses to bolster the defendant’s claim of innocence, and (3) failed to object to an Allen charge that did not have a beyond a reasonable doubt instruction.

In conjunction, these three errors affected the jury’s ability to render a fair verdict and severely “undermine[d] confidence in the outcome” of defendant’s trial. Strickland, 466 U.S. at 687-88, 694 , 104 S.Ct. at 2064, 2068 . Even if we focus on each error individually, defense…