United States v. Cordova

340 F. App'x 427
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 31, 2009
Docket08-4060
StatusUnpublished
Cited by1 cases

This text of 340 F. App'x 427 (United States v. Cordova) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cordova, 340 F. App'x 427 (10th Cir. 2009).

Opinion

ORDER AND JUDGMENT *

ROBERT HENRY, Chief Judge.

Jesse Christopher Cordova was convicted of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues (1) that the evidence obtained from the warrantless search of his car and home *429 should be suppressed because his parole agreement allowing the search was not in effect and, in the alternative, because police lacked reasonable suspicion; (2) that statements made during his custodial interrogation should be suppressed because they were obtained in violation of his due process rights and his Sixth Amendment right to counsel; and (3) that the introduction of a prosecution witness without reasonable notice violated his Sixth Amendment Confrontation Clause rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Cordova’s conviction.

I. BACKGROUND

Mr. Cordova, a parolee at the time, was charged in a two-count indictment with possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Mr. Cordova moved to suppress ammunition found by officers during a parole search of his car and residence. Mr. Cordova also moved to suppress statements he made during interviews with a corrections officer while he was in custody awaiting parole revocation proceedings. After an evidentiary hearing, the district court denied Mr. Cordova’s motion to suppress and his motion for reconsideration. Following a jury trial, Mr. Cordova was convicted on both counts and sentenced to 130 months in prison.

Mr. Cordova was previously convicted of an unrelated felony and signed a parole agreement promising not to possess firearms or violate any law. He also agreed that he would “permit officers from Adult Probation and Parole to search [his] person, residence, vehicle or any other property under [his] control without a warrant at any time, day or night, upon reasonable suspicion to ensure compliance with the conditions of [his] parole.” Rec. vol. Ill, doc. 113, at 12.

A woman familiar with Mr. Cordova alerted his parole officer that Mr. Cordova might be violating the terms of his parole. Annette Martinez, who lived with Kollete Espinoza, Mr. Cordova’s girlfriend, called a correctional facility to report that Mr. Cordova was threatening Ms. Espinoza, he had shotguns in his vehicle, and he admitted to Ms. Espinoza that he was using cocaine. Mr. Cordova’s parole officer, Danny Platis, learned of the call and requested a police report. Mr. Platis then spoke with Ms. Martinez by telephone to confirm information in the report. Mr. Platis also met with Ms. Martinez and Ms. Espinoza at their residence.

Mr. Platis called Mr. Cordova and asked him to come to the parole office. There, Mr. Platis questioned Mr. Cordova, who denied that he had been using cocaine. Mr. Platis conducted a test for drug use, which was positive for cocaine. Mr. Platis then arrested Mr. Cordova, in the process taking his car keys. Mr. Platis and another officer went outside to his vehicle, where Mr. Cordova’s mother was waiting for him in the passenger seat. The officers ordered her out of the vehicle and stated that they would search the vehicle, only afterwards asking for consent. The search of the vehicle revealed shotgun shells under the front seat. After discovering the shells, officers escorted Mr. Cor-dova to his residence where they located one red silver tip 12-gauge shotgun shell, sitting upright on his kitchen table.

Following Mr. Cordova’s arrest, David Olive, an officer with the Department of Corrections, interrogated Mr. Cordova three times. Each time, Mr. Cordova signed a waiver form stating that he was aware of his rights. After the first interview turned up no inculpatory evidence regarding the firearms, the officers investigated an anonymous call to Mr. Platis in which the caller claimed Mr. Cordova may *430 have given weapons to a friend to hold. Investigation of the call led to the home of Clifford Peterson, who claimed he had firearms belonging to Mr. Cordova, including a Ruger Model 1022 Carbine, a 12-gauge Winchester shotgun, and a Winchester Model 94 80/30. Mr. Olive interviewed Mr. Cordova again. This time, Mr. Olive falsely claimed that officers had found Mr. Cordova’s fingerprints on the firearms at the Peterson residence. Mr. Cordova answered that he had inspected the weapons to purchase them, but had declined. Four days later, Mr. Cordova told Mr. Olive he wanted to talk. At that meeting, Mr. Olive told Mr. Cordova:

I do know you were in the possession of many other firearms, and I’m in the process of tracking those down. But what will work in your favor is, if I do track them down, they will all count as one criminal episode. Now, if those firearms are used in an additional shooting and used in violent crimes, then that’s something that’s going to come back on you. So, if you’re truthful[ ], I want to get them, get them locked in and get them off the street. I do know that you were in possession of them. I have interviewed a lot of Hispanics, your side of the trailer park, with a Hispanic officer.

Rec. vol. III, doc. 113, at 111-12. Substantial portions of this statement were misleading. Mr. Olive did not have proof Mr. Cordova was in possession of other firearms, and Mr. Olive had not received many statements from other residents incriminating Mr. Cordova.

Mr. Olive made a number of additional misleading statements meant to induce Mr. Cordova to confess. He told Mr. Cor-dova: “Now, for your own behalf, come forward with the truth, will you?” id. at 115; “I can’t show you my hand, but you will probably be shocked in your transport to Federal Court,” in essence threatening Mr. Cordova with federal prosecution in which sentences are much higher, id. at 114-15; and “I have other witnesses that I haven’t told you about, but I’ve given you the opportunity and will just go from there,” id. at 117. Mr. Olive also told Mr. Cordova that he was aware Mr. Cordova had “lots of firearms,” other than the three discovered at Mr. Peterson’s house, id. at 118, and that the only thing Mr. Cordova could do to help himself was to “come truthful,” id. at 119. Before Mr. Cordova left the interview, Mr. Olive told him that he had an “eight-hour window” to talk more and to help himself, and after which the window would close. Mr. Olive then said, “The benefit that you have in contacting me before the eight hours is up is that in the Federal system when you cooperate, the Courts do take that into consideration as far as sentencing goes.... [Tjhey do take into consideration that you weren’t very cooperative with me.” Rec. vol. I, doc. 37, at 16.

Mr. Cordova requested yet another meeting with Mr. Olive. Mr. Cordova stated that Mr. Peterson and he had helped Ms. Espinoza move some items to a storage facility. Mr. Cordova had discovered the guns wrapped in a blanket among the items to be moved. Because he was a felon, he asked Mr. Peterson to keep the guns. According to Mr.

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Bluebook (online)
340 F. App'x 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cordova-ca10-2009.