United States of America, Plaintiff-appellee, v. Jonathan R. Swapp, Defendant-appellant, 951 F.2d 1261 (10th Cir. 1991)

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.

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."

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)).

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.