United States v. Cooks

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 5, 2026
• Docket: 25-6047
• Status: Unpublished

Opinion

Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 5, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee.

v. No. 25-6047 (D.C. No. 5:23-CR-00094-D-2) DONALD EUGENE COOKS, (W.D. Okla.) a/k/a Little Bit,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BALDOCK, and MORITZ, Circuit Judges. _________________________________

In this direct criminal appeal, Donald Cooks’ counsel filed a brief under

Anders v. California, 386 U.S. 738, 744 (1967), along with a motion to withdraw.

We have jurisdiction under 28 U.S.C. § 1291. Having obtained a response directly

from Mr. Cooks, and having conducted the independent review that Anders requires,

see 386 U.S. at 744, we conclude there is no arguable ground for appeal. We

therefore grant the motion to withdraw and dismiss the appeal.

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 2

BACKGROUND

Twice during the night and early morning of July 18-19, 2022, alarms

summoned police to a post office building in Oklahoma City. Both times, everything

appeared to be in order. But later on July 19, another alarm sounded shortly before

midnight. This time, police discovered a woman (identified by the initials K.P.) next

to a pickup truck in the parking lot, with packages in the truck bed, on the ground,

and in a cart. K.P. said she was waiting for someone. The truck belonged to

Mr. Cooks. Nearly an hour after police detained K.P., Mr. Cooks arrived on foot and

told them his truck had been stolen from a nearby Motel 6, where he was staying. He

said he had tried to report the theft to an officer who had been at the Motel 6, but he

did not know the VIN so the officer told him to report the theft once he obtained it.

He used his phone to track his truck. He first said he did not know who took the

truck, but then he said he did know and named K.P.

An officer went to the Motel 6, obtained a key to Mr. Cooks’ motel room, and

entered the room to “clear” it and make sure no one else was there. R. vol. III at 149.

While there, he saw a Dell laptop computer wrapped in plastic. In the motel’s

dumpster, the officer found an empty Dell computer box as well as empty packages

addressed to different people. And he reviewed motel surveillance footage that

showed Mr. Cooks and two other men bringing packages into the motel in the early

morning hours of July 19. Police later obtained a search warrant for Mr. Cooks’

room, using an affidavit that noted the presence of the Dell laptop as well as the

surveillance footage and the empty packages in the dumpster.

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A postal inspector surveyed the post office building, finding no signs of a

break-in, and he confirmed that packages found in and by the truck belonged to that

particular post office. During his investigation, he learned that a mail carrier might

be involved in the break-in, and he interviewed rural carrier associate Irwin Sawyer,

who worked out of the building. Mr. Sawyer initially said that, after making

Mr. Cooks’ acquaintance at a nearby gas station, he gave Mr. Cooks a fake code to

the keypad lock on one of the employee doors of the post office building. He later

testified that he met Mr. Cooks at the gas station; he was frustrated about the post

office messing up his paychecks; learning he was a postal employee, Mr. Cooks

asked him questions about the post office building and what was there; and he sold

the real code to Mr. Cooks for cash, knowing he intended to break into the building.

Mr. Cooks was indicted with one count of conspiracy to commit mail theft, in

violation of 18 U.S.C. §§ 371 and 1708, and two counts of possession of stolen mail,

in violation of § 1708. He was detained pending trial. Telephone calls made from

jail indicated Mr. Cooks did not want K.P. to testify, and he had people deliver that

message to her. Although K.P. initially had seemed willing to cooperate with the

postal inspector, she became hesitant, then she stopped responding entirely and could

not be located for trial. The government therefore added one count of witness

tampering, in violation of 18 U.S.C. § 1512(b)(1), to the charges against Mr. Cooks.

Mr. Cooks went to trial before a jury, which found him guilty of all four

counts. Before sentencing, he requested to waive his right to counsel. After holding

a hearing, see Faretta v. California, 422 U.S. 806, 835 (1975), the district court

3 Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 4

allowed him to represent himself, with the assistance of standby counsel. At

sentencing, the government requested the district court upwardly vary from the

Sentencing Guidelines range of 57 to 71 months’ imprisonment, and it requested a

120-month sentence. The district court agreed an upward variance was appropriate,

but not to the extent the government requested. It imposed a 92-month sentence—

60 months on Counts 1 through 3 and 92 months on Count 4, all to run concurrently.

DISCUSSION

Mr. Cooks is represented by counsel on appeal. Under Anders, if counsel finds

an appeal “to be wholly frivolous, after a conscientious examination of it, he should

so advise the court and request permission to withdraw . . . accompanied by a brief

referring to anything in the record that might arguably support the appeal.” 386 U.S.

at 744. After allowing the defendant an opportunity to respond, the court “then

proceeds, after a full examination of all the proceedings, to decide whether the case is

wholly frivolous.” Id. If the court “finds any of the legal points arguable on their

merits (and therefore not frivolous) it must, prior to decision, afford the indigent the

assistance of counsel to argue the appeal.” Id. But if it does not find any arguable

points, the court may grant the motion to withdraw and dismiss the appeal. See id.

As stated, counsel filed an Anders brief and a motion to withdraw, and

Mr. Cooks filed a pro se response. The government filed a notice of intent not to file

a brief. Having reviewed the proceedings, we do not identify any arguable issues for

appeal.

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I. Suppression of Evidence

Both counsel and Mr. Cooks identify a potential issue regarding the

suppression of evidence due to the warrantless initial search of Mr. Cooks’ hotel

room. Counsel recognizes that “[t]he warrantless search of Mr. Cooks’s room at the

Motel 6 appears to involve a straightforward Fourth Amendment violation.” Aplt.

Opening Br. at 14. He also recognizes that the application for the search warrant

relied, in part, on the presence of the plastic-wrapped Dell computer the officer saw

when conducting the initial search. Nevertheless, counsel concludes the warrantless

search does not present an arguable issue for appeal because (1) trial counsel did not

preserve the issue, and (2) the other evidence listed in the search warrant supported a

finding of probable cause. We need not go beyond the first reason.

Mr. Cooks’ counsel did not file a motion to suppress before the deadline for

pre-trial motions. 1 Instead, he raised the issue mid-trial. Counsel did not object

when the prosecution examined an officer about how he obtained a key to Mr. Cooks’

room and what he saw there, and he elicited testimony about those events on

cross-examination. But then he objected during the subsequent testimony of another

officer who executed the search warrant. Out of the jury’s hearing, counsel stated he

want[ed] to make an objection for the purposes of the record to an illegal search. . . . There was an illegal entry that formed the probable cause basis

1 Months before trial, Mr. Cooks filed a pro se motion to suppress, which the district court denied because he was represented by counsel and had no right to hybrid representation. That decision also does not present an arguable issue on appeal. See United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir. 2013) (recognizing that represented defendant “had no right to submit motions other than through his attorney”). 5 Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 6

for the warrant. So we object to any testimony regarding anything found in the motel room and any photographs of any items found in the motel room.

R. vol. III at 173. The court inquired whether counsel was aware of the factual basis

for the objection before the motions deadline, and counsel admitted that he was. The

court then denied the objection as untimely.

Under Fed. R. Crim. P. 12(b)(3)(C), a defendant must move to suppress before

trial “if the basis for the motion is then reasonably available and the motion can be

determined without a trial on the merits.” “If a party does not meet the deadline for

making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the

defense, objection, or request if the party shows good cause.” Fed. R. Crim. P.

12(c)(3). The basis for the motion was apparent well before trial; counsel admitted

he knew of the underlying factual basis before the motions deadline. So the mid-trial

objection was undoubtedly untimely. Yet counsel offered no reason why he did not

file a pre-trial motion to suppress, much less a reason that would establish good

cause. Because Rule 12(c)(3) plainly requires a showing of good cause, there is no

colorable argument that the district court erred in denying the untimely effort to

suppress evidence. We therefore need not consider whether it is arguable whether

the motion would have succeeded had the district court reached the merits.

II. Ineffective Assistance of Counsel

Mr. Cooks identifies a second potential issue—whether his trial counsel was

ineffective for failing to timely move to suppress the evidence from his motel room.

But ineffective-assistance claims should in nearly all cases be raised in collateral

6 Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 7

proceedings under 28 U.S.C. § 2255; if “brought on direct appeal [they] are

presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc). Mr. Cooks asserts that this

is the rare case in which the court should consider an ineffective-assistance claim on

direct appeal. We have held, however, that ineffective-assistance claims may be

considered on direct appeal “only where the issue was raised before and ruled upon

by the district court and a sufficient factual record exists.” United States v. Flood,

635 F.3d 1255, 1260 (10th Cir. 2011). Here, the issue was not raised before and

ruled upon by the district court, and the record is insufficient. The claim therefore is

not arguable in this appeal.

III. Other Potential Issues

Counsel states he also examined (1) “[w]hether there was any defect in the

indictment, defect in the jury instruction[s], or failure of evidence to support a

challenge to Mr. Cooks’s convictions,” and (2) “[w]hether Mr. Cooks’s sentence was

procedurally or substantively unreasonable.” Aplt. Opening Br. at 2. But he did not

identify a colorable argument to challenge any of these aspects of the conviction and

sentence. Nor do we.

That includes the grant of Mr. Cooks’ post-trial request to waive his right to

counsel. The district court held a Faretta hearing, at which it determined Mr. Cooks

met the requirements to represent himself. See United States v. Pemberton, 94 F.4th

1130, 1143 (10th Cir.) (listing four requirements to grant a request to waive counsel),

cert. denied, 145 S. Ct. 604 (2024). The record would not support an argument that 7 Appellate Case: 25-6047 Document: 50 Date Filed: 03/05/2026 Page: 8

the Faretta hearing was inadequate, leaving no arguable ground to challenge the

waiver of counsel as unknowing or involuntary. See id. (recognizing that “a

contemporaneous and comprehensive Faretta hearing is generally a sufficient

condition to a knowing waiver” (emphasis and internal quotation marks omitted)).

CONCLUSION

We grant counsel’s motion to withdraw (Dkt. No. 36) and dismiss the appeal.

Entered for the Court

Timothy M. Tymkovich Circuit Judge