                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                OCT 30 2003
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                           No. 02-2098
                                                      (D.C. No. CR-00-1613-BB)
JOSE BENAVIDEZ,                                        (District of New Mexico)

       Defendant-Appellant.




                              ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY,
Circuit Judge.


       On December 22, 2000, Jose Benavides, (“Defendant”) was charged in a one

count indictment with unlawfully and knowingly possessing a firearm in and affecting

interstate commerce, Defendant having been previously convicted of a crime punishable

for a term exceeding one year, in violation of 18 U.S.C. §922(g)(1) and 18 U.S.C. §

924(a)(2). Defendant, with appointed counsel, pled not guilty. Trial by jury, with

different appointed counsel, resulted in a verdict of guilty. Defendant’s total offense



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
level was 28 months and his criminal history category was V, the guideline range for

imprisonment therefor being 130 months to 162 months. However, the statutory

imprisonment under 18 U.S.C. §924(a)(2) is “not more than 10 years.” In this

connection, U.S.S.G. §5G1.1(a) provides that where the statutorily authorized maximum

sentence is less than the minimum guideline range, which is our case, the statutorily

authorized maximum sentence shall be the guideline sentence. In line therewith, the

district court then sentenced Defendant to, inter alia, imprisonment for 10 years (120

months). Defendant, with another appointed counsel, appeals his conviction and the

sentence imposed thereon.

       On appeal, counsel argues three grounds for reversal: (1) error by the district court

in limiting Defendant’s trial counsel’s cross-examination of a government witness; (2)

error by the district court in denying Defendant’s trial counsel’s motion to withdraw on

the grounds that he, Defendant’s trial counsel, had a conflict of interest; and (3) that

Defendant’s alleged confessions were involuntary. We are not persuaded, and therefore

we affirm the conviction.

                                   I. Cross-Examination

       Prior to trial, the attorney who was then representing Defendant, filed two motions

to suppress any oral statements made by Defendant to Detective Rodney Porter of the

Hobbs Police Department on June 30, 2000. Shortly before trial, the district court denied

both motions. Notwithstanding this favorable ruling, at trial the United States Attorney


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did not call Porter as a government witness. However, when Defendant was presenting

his case to the jury, his attorney called Porter as an “adverse witness” and asked that he

be allowed to ask leading questions. Porter was examined and cross-examined at length

in regard to his role in the case, and his questioning of Defendant on June 30, 2000, in

the presence of a fellow officer.1 In the course thereof, it developed that Porter had

previously worked in the Midland, Texas police department, had left there in 1995 and

had gone to work for the Hobbs Police Department in 1996. However, the district court

did not allow defense counsel to question Porter as to the circumstances surrounding

Porter’s termination from his employment in Midland, Texas.

       On appeal, as indicated, present counsel for Defendant first argues that the district

court erred in not allowing trial counsel to question Porter as to the facts and

circumstances surrounding his resignation from the Midland, Texas police department,

arguing that such evidence would have bearing on Porter’s credibility. We are not

persuaded that counsel had a right to pursue this line of questioning under the

Confrontation Clause.

       At trial, counsel for Defendant admitted that Defendant was a previously



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        The fellow officer, Jim Hardy, testified as a government witness and stated that
he accompanied Porter when they questioned Defendant on June 30, 2000. At the time
the two of them questioned Defendant, Porter had a tape recorder in his shirt pocket. The
tape recording was transcribed and the transcript was given to the jury. During that
conversation Defendant said he had received the gun from his brother “because he was
being threatened.”

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convicted felon and that the gun in question was “in and affecting interstate commerce.”

Counsel’s defense was that the gun did not belong to the Defendant, nor had he ever

“possessed” it, as he was charged with doing. The government’s theory of the case was

that Defendant had “possessed” the gun in question. In this general connection, we

would note that the sufficiency of the evidence is not an issue on appeal. Further, and by

way of background, it appears that for several years before Defendant was arrested on

this charge, Defendant had on several occasions acted as an “informant” for the Hobbs

Police Department, for which services he received a cash payment from the department.

       Although Porter was not called as a witness by the government, its evidence did

show, prima facie, that Defendant had stated to Porter, Jim Hardy, and on another

occasion, an Alcohol, Tobacco, and Firearms agent that the gun was in his possession for

about one week for the purpose of protecting himself and his family, and that he decided

to pawn the gun so that he could get money to buy gas so that he could drive to a job.

Other evidence shows that Defendant and his friend, Garza, went to a pawn shop and that

Garza, pawned the gun for $50, while Defendant remained in the automobile in the

parking lot.2 In defense counsel’s examination of Porter, the conversations that Porter

and his fellow officer had with the Defendant on June 30, 2000 were fully explored. It

was in this setting that the district court denied counsel’s renewed request that he be



       In his cross-examination of the pawn broker, defense counsel asked him what
       2

Garza had told him regarding Benavides and he said that “he was doing it for
Benavides.” Garza, though subpoenaed, did not appear at trial.

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allowed to show that in 1995, Porter was terminated by the Midland, Texas police

department under circumstances which, according to defense counsel, might undermine

Porter’s credibility. As indicated, the district court precluded such line of questioning.

We find no reversible error on the part of the district court in thus holding.

       Rules of Evidence 401 reads as follows:

              “Relevant evidence” means evidence having any tendency to
              make the existence of any fact that is of consequence to the
              determination of the action more probable or less probable
              than it would be without the evidence.

       Rules of Evidence 402 reads as follows:

              All relevant evidence is admissible, except as otherwise
              provided by the Constitution of the United States, by Act of
              Congress, by these rules, or by other rules prescribed by the
              Supreme Court pursuant to statutory authority. Evidence
              which is not relevant is not admissible.

       Rules of Evidence 403 reads as follows:

              Although relevant, evidence may be excluded if its probative
              value is substantially outweighed by the danger of unfair
              prejudice, confusion of the issues, or misleading the jury, or
              by considerations of undue delay, waste of time, or needless
              presentation of cumulative evidence.

       The district court did not err in precluding this line of questioning. In our view,

the proffered line of questioning sought by counsel was not relevant, and, even if

somehow relevant, it was properly excluded under Rule 403. See United States v.

Cherosposy 340 F.3d 1148, 1167 (10th Cir. 2003); United States v. Ellzey, 936 F.2d

492, 495 (10th Cir. 1991). Porter left the Midland, Texas Police Department in 1995

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and about eight months later joined the Hobbs Police Department. The present case

involved events occurring in 2000 and Porter was testifying in 2001. Also, Jim Hardy, a

fellow officer, was present when Defendant was questioned by Porter and the jury had a

transcript of the tape recording of their conversation. Accordingly, there was no real

dispute as to what was said on June 30, 2000.

                                 II. Motion to Withdraw

       After his appointment to be trial counsel for Defendant, counsel filed a motion to

withdraw and substitute counsel, asserting as grounds therefor that his stepson was a

Captain in the Hobbs Police Department. The district court held a hearing on that matter.

At the hearing it developed, inter alia, that counsel’s stepson, though a member of the

Hobbs Police Department, had nothing to do with the investigation leading up to the

charge that Defendant was a convicted felon who possessed a firearm. At the hearing,

Defendant stated he did not know counsel’s stepson. At the hearing, Defendant also

stated, rather equivocally, that “he was willing to give him [defense counsel] a try,” even

though he preferred to have new and different counsel appointed. Counsel also indicated

at the hearing that his motion to withdraw was his way of letting all know, on the record,

that his stepson was a member of the Hobbs Police Department and thus protect himself

from any post-trial claim that counsel had a conflict of interest. After granting the

Defendant a short continuance of his trial date, the district court denied counsel’s motion

to withdraw. At trial, counsel’s stepson was not a witness, nor did it develop that he had


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any role in the case. Under the described circumstances, the district court did not abuse

its discretion in denying counsel’s motion to withdraw. See United States v. Gallegos,

38 F.3d 276, 278 (10th Cir. 1994); United States v. Johnson, 961 F.2d 1488, 1490 (10th

Cir. 1992).

       Though it was not mentioned in appellant’s opening brief, in his reply brief

appellant attempts to inject into this appeal the issue of ineffectiveness of trial counsel.

That issue is not present in the instant appeal, which is a direct appeal of a criminal

conviction and sentence. See Strickland v. Washington, 466 US 668, 688 (1984); United

States v. Galloway, 56 F.3d 1209 (10th Cir. 1995).

                              III. Voluntariness of Confession

       Finally, counsel in this Court argues that Defendant’s “confessions” to Porter,

Hardy, and the Alcohol, Tobacco and Firearms Agent, Brad Devlin, were all involuntary.

This argument is apparently based, in part, on the fact that Defendant in the past had used

drugs, though he had not been a user for several years, and that he presently took Ambien

and medication for back pain, which showed, according to counsel, that his statements

were not voluntarily made. This was all presented to the jury, without success.

       Without belaboring the matter, appellate counsel has failed to show that, as a

matter of law, his statements to Porter and Devlin were involuntary. It is a little late in

the day to be suggesting that Defendant should have been allowed to call an “expert”

witness to testify to Defendant’s general credibility.


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Judgment affirmed.

                         ENTERED FOR THE COURT

                         Robert H. McWilliams
                         Senior Circuit Judge




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