United States v. Jonathan R. Swapp , 951 F.2d 1261 ( 1991 )

951 F.2d 1261

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jonathan R. SWAPP, Defendant-Appellant.

No. 91-4027.

United States Court of Appeals, Tenth Circuit.

Dec. 17, 1991.

Before McKAY, Chief Judge, HOLLOWAY, Circuit Judge, and DUMBAULD, District Judge.1

ORDER AND JUDGMENT2

McKAY, Chief Judge.

1

Jonathan Ramon Swapp, after being convicted of several federal criminal offenses, filed a Motion for New Trial and Request for Evidentiary Hearing with the district court. He appeals from denial of the motion.

2

In his motion, Mr. Swapp claimed that he had received ineffective assistance of counsel, a claim that rested on two arguments: first, that counsel did not communicate well with Mr. Swapp; and second, that counsel did not allow Mr. Swapp to testify through admission of a taped conversation that was referred to in court as the "surrender tape."

3

We review the district court's decision on a new trial motion under an abuse of discretion standard. See United States v. Thompson, 908 F.2d 648, 650 (10th Cir.1990). In order to show a constitutional violation, Mr. Swapp must demonstrate that his counsel's conduct led to an actual breakdown of the adversarial process or otherwise rendered the trial unfair and its results unreliable. Strickland v. Washington, 466 U.S. 668, 686 (1984); Beachum v. Tansy, 903 F.2d 1321, 1330 (10th Cir.), cert. denied, 111 S.Ct. 269 (1990) (citing United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990) (rehearing en banc)).

4

The district court requested and considered supplemental memoranda from counsel, heard oral argument, and reviewed the trial transcript before acting on Mr. Swapp's motion. After thorough review of the pleadings and the record, we conclude that the district court acted within its discretion in denying Mr. Swapp's motion. We therefore AFFIRM the district court's order.

1

Honorable Edward Dumbauld, United States District Judge for the Western District of Pennsylvania, sitting by designation

2

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3