Opinion
18-16965 CV-16-08138-PCT-JAT CV-24-08062-PCT-JAT(JFM)
03-11-2024
DUANE THOMAS LEE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Duane Thomas Lee, the Defendant, proceeding Pro Se, and respectfully moves this Honorable Court with his Motion to Dismiss, Engaging in continuing criminal enterprise, in violation of 21 USCS §848, and conspiracy to distruste narcotics and possession with intent to distribute, in violation of 21 USCS §§841 and §846, are not crimes of violence within meaning of 18 USCS §16(b), and consequently defendant's convictions under 18 USCS §924(c), which prohibits [use of firearm] 'during' commission of "crime of violence", must be vacated. United States v. Cruz, 805 F.2d 1464, 22 Fed.R.Evid. Serv. (CBC) 283 (11th Cir. 1986), cert, denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987),cert, denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987).
Double Jeopardy In United States v. Burt, 765 1364, 1364 (9th Cir. 19851); we considered the lesser included offense implications involved in conspiracy charge under Section §846, and the C.C.E. ("Continuing Criminal Enterprise") charge under 21 USCS §848. We discussed the result of the Supreme Court's decision in Jeffers v. United States, 432 U.S. 137, 53 L.Ed.2d 168, 97 S.Ct. 2207 (19771), and the later case of Garrett v. United States, 471 U.S. 773, 85 L.Ed.2d 2407 (1985). Relying on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Defendant contends that the [evidence] was "insufficient" to prove the C.C.E. offense because the government "failed" to prove beyond a reasonable doubt each of the least three violations necessary to make up a continuing series and that counsel was ineffective for 'failing' to raise that argument at trial and during the plea bargining stages.
Richardson ['held'] that "a jury must unanimously agree not only that the defendant committed some 'continuing series of violations' but also that the defendant committed each of the individual 'violations' necessary to make up that continuing series." Id. at 815.
1. ISSUES
(a) Double Jeopardy-In United States v. Burt, 765 1364, 1364 (9th Cir. 1985), we considered the lesser included offense implications involved in conspiracy charges under Section §846, and the C.C.E. ("Continuing Criminal Enterprise" hereinafter) charge under 21 U.S.C. §848. We discussed the result of the Supreme Court's decision in Jeffers v. United States, 432 U.S. 137, 53 L.Ed.2d 168, 97 S.Ct. 2207 (1977), and the later case of Garrett v. United States, 471 U.S 773, 85 L.Ed.2d 764, 105 S.Ct. 2407 (1985).
In Burt, we 'vacated' the section §846 conspiracy sentences which ran consecutively to the section §848 CCE sentence. It is clear from Jeffers that Congress did not intend to allow cumulative punishment for violations of section §846 conspiracies and "greater offense" of a section §848 CCE violation. Jeffers, 432 U.S. at 155. The remedy required is for the district court to 'vacate' the convictions for the lesser offense. Ball v. United States, 470 U.S. 856, 864-65, 84 L.Ed.2d 740, 105 S.Ct. 1668 (1985). The fact that the sentences for these offenses were to be 'served' concurrently with the CCE sentence still constitutes [cumulative punishment]. "The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be 'ignored'." Id. at 865.
2. Mr. Lee's 'Richardson and Ruthledge's' Claims
Defendant contends that the district court [erred] by failing to give the jury a 'unanimity instruction' on Lee's CCE charge,and that he was [wrongly convicted] of both conspiracy and CCE because conspiracy is a lesser included offense of CCE. See Ruthledge, 517 U.S. at 303 ('holding' that convicting a defendant for [both] 'drug conspiracy' in violation of 21 U.S.C. §846 and CCE in violation of 21 U.S.C. §848 is plain error because §846 is a lesser included offense of §848). See also Richardson, 526 U.S. at 818 ("holding' that, in order to convict someone of engaging in a CCE, the jury must be unanimous as to which specific violations of engaging in a CCE, the jury must be "unanimous" as to which specific violations of the federal drug laws comprise thee"continuing series of violation(s)" underlying the CCE charge). Mr. Lee asserts when the district court vacates either his conspiracy convictions or his CCE conviction. For this reason, and because for other crimes regardless of this court's resolution of these issues, Mr. Lee puts forth the district court's "remedy" that both of Mr. Lee's conviction for conspiracy and CCE cannot stand, but simply suggests that the court [dismiss the CCE conviction] of the Indictment; as doing so will remedy both the 'Richardson and Ruthledge' problems with Mr. Lee's convictions. Mr. Lee, further asserts that this "remedy" serves the interest: of judicial economy and efficiency. Accord United States v. Richardson, 195 F.3d 316, 317 (7th Cir. 1999) (accepting a similar government proposal in similar circumstances).
Defendant [challenges] his conspiracy charges under §924(c). He contends that the conspiracy charges of which he has been convicted, organizing a continuing criminal enterprise, [C.C.E. conviction]: 21 USC §848; and 21 USC §846, [conspiracy]. Engaging in continuing criminal enterprise, in violation of 21 USCS §924(c), which prohibits [use] of firearm during commission of crime of violence, must be 'vacated'. See United States v. Cruz, 805 F.2d 1464, 22 Fed.R.Evid. Serv. (CB-C) 283 (11th Cir. 1986), cert, denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), cert, denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987). Engaging in a continuing criminal enterprise, conspiracy to distribute narcotics and possession with intent to distribute are [not crimes of violence] within the meaning of 18 USCS §16(b), this Court, in a unanimous opinion,has already read the nearly identical [language] of 18 U.S.C.S. §16(b) to 'mandate' a categorical approach. And, importantly,the Court did so without so much as mentioning the practical and constitutional concerns described above. Instead, the Court got there based entirely on the text. In Leocal, the Court wrote:
"In determining whether petitioner's conviction falls within the [ambit] of §16, the statute 'directs' our focus to the 'offense; of conviction. See §16(a) (defining a crime of violence as 'an offense that has as an element the use... of physical force against the person or property of another' (emphasis added)); §16(b) (defining the term as 'any other offense that is a felony and that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course committing the offense (emphasis added)). This language 'requires' us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." 543 U.S., at 7, 125 S.Ct. 377, 160 L.Ed.2d 271. See also Dimaya, 584 U.S., at___, 138 S.Ct. 1204, 200 L.Ed.2d 549, 563) (plurity opinion) (reaffirming that "§16b)'s text... demands a 'categorical approach'"). And what was true of §16 (b) seems to us at least as true of §924(c) (3) (B): It's not even close; the statutory text [commands] the 'categorical approach'.
Defendant challenges his 21 U.S.C. §846 and 18 U.S.C. §848 convictions under §924(c). He contends that the charged crimes of which he has convicted organizing a continuing criminal enterprise, conspiracy to possess a controlled substance with intent to distribute, are not felonies that,by their nature, involve a substantial risk of the use of physical force.
Because the court's conclude that the language of the statute, its legislative history and other evidence of congressional intent are, at best, [ambiguous] as to whether drug trafficking offenses are "crimes of violence", we adhere to the principle of lenity which requires the strict construction of penal statute.
The categorical reading is also [reinforced] by §924(c) (3) (B)'s role in the broader context of the federal criminal code. Dozens of federal statutes use the phrase 'crime of violence' to refer to presently charged conduct. Some cross-reference §924(c)'s defintion, while others are governed by the virtually identical definition in §16. The choice appears completely random. To 'hold' that §16(b) requires the categorical approach while §924(c)(3)(B) requires the case-specific approach would make a hash of the federal criminal code. Pp. ___-___, 204 L.Ed.2d at 770-771.
Section §924(c)(3)(B)'s history provides still further evidence that it carries the same categorical approach [command] as §16(b). When Congress enacted the definition of "crime of violence" in §16 in 1984, it also employed the term in numerous places in the Act,including §924(c). The two statutes, thus, were originally designed to be read together. And when Congress added a defintion of "crime of violence" to §924(c) in 1986, it 'copied the definition from §16' without making any material changes to the language of the residual clause, which would have been a bizarre way of suggesting that the two clauses should bear drastically different meanings. Moreover, §924(c) originally prohibited the use of a firearm in [connection] with 'any' federal felony, before Congress narrowed §924(c) in 1984 by limiting its predicate offenses to "crimes of violence". Pp. ___-___, 204 L.Ed.2d, at 771-773.
3. PLAIN LANGUAGE
Section §16(b) defines a "crime of violence" as a felony that,by its nature, involves a substantial risk that violence 'may' be used against people or property. 'On its face' this language is [ambiguous].
On the one hand, as defendant argues,there is the "by its nature" language of the statute. He contends that, by using the words "by its nature" Congress has made the determination that crimes of violence occur only when the predicate offense necessarily 'involves the use of force". If the predicate crime does not necessarily require the "use of force", then it is not "by its nature" a [crime of violence]. Because the 'sale of drugs' by an individual to his friend, relative, or even a stranger, is often a 'consensual transaction in which 'violence is not involved', the sale itself need not necessarily involve a substantial risk of physical force.
It is principally upon the basis of this argument that our sister courts have determined that 'drug trafficking is not a crime of violence. See United States v. Diaz, 778 F.2d 86 (2d Cir. 1985); United States v. Wells, 623 F.Supp. 645 (S.D. Iowa, aff'd, 773 F.2d 230 (8th Cir. 19851); United States v. Bushey, 617 F.Supp. 292 (D. Vt. 1985) But see United States v. Rivera, No. SS 85 Cr 33 (JF-K) (S.D.N.Y. May 7, 1985) [Available on WESTLAW, DCTU database]. We find this analysis inadequate.
To [adopt] this interpretation "ignores" other portions of the statutory language. The use of the terms "may" and "substantial risk" in this context is critical;it emphasizes Congress' determination that violence need not be a necessary ingredient of the underlying predicate offense. Rather the statue requires merely that the predicate crime create a "substantial risk of the possible 'use' of force". Moreover, if violence were a necessary ingredient under §16(b), then §16(a) would be [redunant].
Moreover,in so 'limiting' the application of §924(c), the legislative history expressly referred to cases involving [possession] of narcotics with intent to distribute as cases involving crimes that were not crimes of violence. The House Report recognized that the "crime of violence" limitation was
designed to refine the offense by confining it to its proper and practical bounderies as a means of deterring and punishing the 'employment of a firearm' in relation to an offense that 'by its nature' involves physical force or 'substantial risk' thereof. This will not, in the Committee's judgment, produce any significant practical constraint on the scope of the offense since experience under [the earlier version of §924(c) indicates that the statute is not frequently utilized in situations in which the associated offense 'is not a "crime of violence" 'as defined herein, [n.43].
Under that intpretation, there would be some conspiracies, such as those involving two small-scale student dealers, which would not support a separate §924(c) firearms violation. Indeed, when Congress has intended to make the distinction between large and small-scale transactions,it has shown itself fully able to draw that distinction explicitly. See 28 U.S.C. §994(i)(5) (requiring a 'substantial quantity' of a controlled substance").
Prior to 1984, §924(c) provided for the imprisonment of one who "uses a firearm to commit any felony." 18 U.S.C. §924(c) (1) (1982). In 1984, as part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2139-39, Congress revised that rule and provided that the firearm penalty should apply only to those who engage in a "crime of violence". In making this change, Congress recognized that it was limiting the types of crimes to which the additional firearms punishment applied. See S. Rep. No. 307, 97th Cong., 1st Sess., 888 (1981) (hereafter cited "S. Rep. No. 307"); (some narrowing is caused by limiting the offenses with which the display, use or possession of a firearm must be associated to crimes of violence rather than any felony").
4. Counsel's Failure to Challenge Double Jeopardy Claim
Defendant contends that he is being punished [twice] for a single criminal offense and that counsel was 'ineffective at trial' and on appeal for not 'raising" this Double Jeopardy issue.
The Supreme Court has addressed the Double Jeopardy issue in the context of concurrent conspiracy (§846) and C.C.E. (§848) convictions:
A guilty verdict on a §848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of §846; conspiracy is therefore a lesser included offense of C.C.E..... [w]e adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, "[o]ne of [ petitioner's] convictions, as well as its concurrent sentence, is [unauthorized] punishment for a separate offense" and must be vacated. Ruthledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (citing Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).
Mr. Lee's sentence was not based on the C.C.E. Offense, so his term of imprisonment must be [reduced].
The C.C.E. statute requires that the defendant [engaged] in a "continuing series of violations" of the federal narcotics laws. 21 U.S.C. 848. Along with most of our sister circuits, we have interpreted this provision to require [three predicate violations], each of which is an element of a C.C.E. Offense, se, Monsanto v. United States, 348 F.3d 345, 348 (2d Cir. 2003).
Defendant argues that his indictment as well as his Pre-sentence Report did not [identify] the “three predicate violations" and therefore [failed] to charge a C.C.E. The court must review the defendant's interpretation of §848(b)(2)(A). That provision requires the 'threshold drug amount' to be "involved" in a single felony violation of the drug laws. The district court's interpretation, which permitted aggregation, was [erroneous]. Nevertheless, the court should conclude that the [error] Was not harmless in light of "[no drug quantity finding]" of insufficent evidence introduced against Mr. Lee.
A continuing series' is generally considered to consist of three violations. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570, 71 (9th Cir. 1989). A charged conspiracy under §846 may be considered as a predicate offense when determining if there are at 'least three violations'. Id.
Defendant counsel 'failed' to challenged the insufficient evidence from pre-trial stages through appeals via joining in motions in limine seeking to bar evidence of conflicting statements of co-conspirators and to challenge unreliable testimony of heresay. Defense counsel did not maintain no objections to the government's witness(es)' direct testimony and cross examining them, in violation of the Confrontation Clause. Defendant counsel did not file a Post-Verdict Motion for Acquittal-challenging the sufficiency of the evidence of both the conspiracy §846 charge and the §848 C.C.E. charges,and raising no issues as to [determining] a "continuing series" of three violations. Defense counsel could have taken other than raising: a Richardson argument.
A Richardson claim essentially "is a claim that the [jury] has not been told that §848 requires unanimous agreement on the three particular acts [comprising] the 'series of violations.'" Stephens v. Herrera, 464 F.3d 895, 899 (9th Cir. 2006).The defendant contends the interpretation of the statute that each violation is a separate element is 'supported by considerations of (a) the statutory language, (b) history and tradition regarding jury unanimity, and (c) potential fairness; (2) a jury in a federal criminal case cannot convict unless it 'unanimously finds that the government has proven each element of a crime'; and (3) arguments for an interpretation that each violatoin is a means making up a SINGLE ELEMENT are not sufficiently powerful to overcome the considerations of language, tradition, and potential unfairness.
Ineffective Assistance of Counsel
A defendant is [entitled] to effective assistance of counsel at all"critical stages" of the criminal process, including trial, [sentencing], and direct appeal. United States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir. 2003).
More particularly with 'respect to the performance prong',a defendant must show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced, a [just result]" or that "counsel made errors so serious that defendant by the Sixth Amendment." Id. at 686-87. Strickland v. Washington, 466 U.S. 668. There is a strong presumption' that counsel's performance falls "with the wide range of reasonable professional assistance." Id. at 689. This is so because "[it] is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved [unsuccessful], to conclude that a particular act of ommission of counsel was unreasonable." Id.
The Strickland standard is "highly demanding" and requires consideration of counsel's "overall performance throughtout the case," Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.ED.2d 305 (1986), and "the totality of the [evidence] before the judge or jury." Strickland, 466 U.S. at 695.In evaluating an ineffective assistance of counsel claim, the court may consider the performance and prejudice components of the Strickland test in either order. Id. at 697.
Criminal Law §46.6: Effective counsel-Sentencing-Prejudice
For purposes of the rule that a criminal defendant-in order to obtain relief for an alleged violation of the right to effective counsel under the Federal Constitution's Sixth Amendment-must show that counsel's performance was deficient and that such performance [prejudiced] the defense, a defendant establishes prejudice where it is shown that (1) the trial court [erred] in a federal Sentencing Guidelines (18 USCS Appx) determination, and (2) as a result of such error, about which counsel failed to argue, the defendant's sentence was [increased]; although the amount by which a defendant's sentence is 'increased' amy possibly be a factor to consider in determining whether counsel's performance in failing to argue the point constitutes 'ineffective assistance, the amount of increase cannot, under a determinate system of constrained discretion"such as the Guidelines, serve as a bar to a showing of prejudice; thus, it is error to engraft onto the prejudice branch of the ineffective assistance test an additional requirement that [denies] relief when the increase in sentence is said to be not so significant as to render the outcome of sentencing [unreliable or fundamentally unfair].
The Sixth Amendment right to effective assistance of counsel [extends] to the consideration of [plea offers] that lapse or are rejected. That right applies to "all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 556 U.S 778, 129 S.Ct. 2079, 173 L.Ed.2d 955. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, established that Stricland's two-part test governs ineffective assistance claims in the plea bargin context.
Defendant raises the following issues on appeal to those just mentioned above:
(1) Brady violations with respect to the 'disclosure' of F.B.I. report(s) (if any substantial reports even exist in my case) as well as [arrest records], of government witness(es);
(2) disclosure of any [drug-trafficking violations] to support a C.C.E. conviction at trial;
(3) any disclosure of direct or circumstantial illegal proceeds obtained from defendant from government which it claims it has but has no evidence to prove;
(4) Failure to [suppress] illegal proceeds seized from him, which government has no substantial evidence;
(5) expert testimony from an F.B.I. forensic examiner(s) nor is there any labotorary testing of seized controlled substance(s) along with testimonial F.B.I. agent(s) confirming the specific analysis results of the seized controlled Substance(s);
(6) counsel's [failure] to object or appeal the 21 U.S.C. §846 and 21 U.S.C. §848 charges which [violates] the Double Jeopardy Clause of the U.S. Constitution, also is inconsistent with ALLEYNE V. UNITED STATES, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
Its position is that Mr. Lee must demonstrate that the district court's [failure] to give the "unanimity instruction" prejudiced him, as he is 'required' to do on 'plain error review'. See Olano, 507 U.S. at 734;
(7) that his convictions (§846 and §848) for carrying a firearm during the commission of a crime of violence; is [improper] because trafficking in drugs is not crime of violence;
(8) that Mr. Lee's sentences on the conspiracy and possession counts merge, as a matter of law, with his conviction for organizing a continuing criminal enterprise, and consequently must be vacated;
(9) that the trial court made various errors in its [evidentiary rulings] which were either 'prejudicial' to defendant or in violation of Fed.R.Evid. §404(b);
(10) that 'the' government was [improperly] permitted to introduce into evidence the 'plea agreements' of its cooperating witness which there was no direct examination thereby [impermissibly] bolstering thier testimony before it was attacked;
(11) that the government's proof at trial was flawed because it varied in two respects from the indictment-first in proving a multiple conspiracy rather than a single one and second, in proving a date of possession for one of the counts which varied by an unestimated date(s) alleged in the indictment;
(12) that-the [evidence] was 'insufficient to support' the verdicts reached by a jury.
Defendant argues that the Double Jeopardy Clause requires vacatur of his (non)-three attempts conviction(s) that were to be supported for his C.C.E. conviction. See United States v. Housley, 907 F.2d 920, 922 (9th Cir. 1990) (ruling that 'district courts cannot impose cumulative punishments for both attempt and C.C.E. offenses unless the offenses are distinct.) Mr. Lee argues that the court must vacate the §846 and §848 charges and [reverse] under United States v. Barona, 56 F.3d 1087 (9th Cir. 1995). In Barona, the court reversed that appellants' convictions under 21 USC §848, a crime which required them to be "supervisors". Id. at 1096. The government suggusted a list of possible "supervisees" to the jury, including individuals who could not legally qualify as such. Id. The "jury [had] received an instruction that followed the language" of the statute but it was not instructed that a supervisee cannot be "one who is only a customer." Id. at 1097-98. Absent additional assurances "that proper differentiation could be made," the court 'reversed' the conviction. Id. at 1098. 2010 U.S. App. LEXIS 5674, United States v. Valencia, March 8, 2010. Defendant further argues that after sentencing hearing, as a result, the defendant's offense level was increased by two levels for purposes of the Guidelines, and the [sentence] 'exceeds 24 months' in terms of imprisonment. The defendant's counsel did not object nor did not (1) submit papers or a motion of appeal or offer extensive oral arguments on the grouping issues in the District, or (2) raise this issue on appeal to the United States Court of Appeals for the 9th Circuit, for appellate review.
The defendant contends that filing a notice of appeal would have resolved this issue by filing a motion in the District Court to correct his sentence by an appeal. The defendant alleges that the failure of his counsel's to press the grouping issues as well as the "Double Jeopardy Clause" issue [constituted] ineffective assistance of counsel for purposes of the Federal Constitution's Sixth Amendment, as the defendant argued that (1) absent the allegedly ineffective assistance, his offense level would have been 'two levels lower' or it would not have 'exceeded 24 months' in term of imprisonment, with a Guidelines sentencing range of 'over 24 months' that he received was thus an 'unlawful increase of over 24 months', way over the government's recommended sentencing range that was never 'part of the plea agreements terms', when Mr. Lee signed the plea agreement in the first instance.
The defendant cites Glover, 531 U.S. 202, on certiorari, the U.S. Supreme Court 'reversed' the Court of Appeals' judgment and remanded the case for further proceedings. In an opinion by Kennedy, J., expressing the unanimous view of the court,it was 'held' that (1) for purposes of the Strickland v. Washington 'rule' for obtaining relief for an alleged violation of the Sixth Amendment right to effective counsel, a defendant establishes 'prejudice' where it is shown that (a) the trial court [erred] in a Guidelines determination, and (b) as a result of such error, about which by a defendant's sentence is [increased]; (2) although the amount by which a defendant's sentence is increased may be possibly be a factor to consider in determining whether counsel's performance in [failing] to argue or object the point constitutes ineffective assistance, the amount of 'increase' cannot serve as a bar to a showing of prejudice; (3) thus, it is error to engraft onto the prejudice branch of the ineffective assistance test an additional requirement that denies relief when the increase in sentence is said to be not so significant as to render the outcome of sentencing [unrelieble] or [fundamentally unfair]; and (4) on the assumption that the District Court erred in the Guidelines determination in question, the defendant 'established' prejudice. This Court's jurisprudence suggests that any amount of actual [jail time] has Sixth Amendment significance. E.g., Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006.
"If a criminal defendant could have [raised] a claim or error on direct appeal but nonetheless failed to do so,he must demonstrate" either "cause excusing his procedural default, and actual prejudice resulting from the claim of error," United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1998), or that he is actually innocent of the offense, Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim" Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Murray v. Carrier, 477 U.S. 478, following the accused's conviction, defense counsel filed a notice of appeal which assigned the denial of the discovery motion as error, but counsel failed to include that claim in the petition for appeal,even though state rules precluded review of the alleged errors not assigned in that petition. The U.S. Court of Appeals for the Fourth Circuit (1) reversed the judgment of the District Court, 'holding' that an act or omission by counsel which shows ignorance or oversight may satisfy the "cause" requirement of Wainwright v. Sykes, 724 F.2d 396, and (2) remanded for a determination as to whether the procedural default in this case was the result of such attorney error or reflected a deliberate appellate strategy, (724 F.2d 396, adhered to 754 F.2d 520).
Personals [engaged] in C.C.E. (continuing criminal enterprise) if he commits [felony] as defined in 21 USCS §801 et seq. and such violations; series as used in §848 refers to 3 or more federal narcotics law vilations. United States v. Ordonez, 722 F.2d 530, 14 Fed.R.Evid. Serv. (CBC) 1335 (9th Cir. 1983); reh'g denied, amended, 737 F.2d 792 (9th Cir. 1984).
The C.C.E. statute requires that the defendant [engaged] in a "continuing series of violations" of the federal narcotics laws. 21 U.S.C. §828(c)(2). Along with most of our sister circuits,we have interpreted this provision to require [three predicate violations], each of which is an element of a C.C.E. Offense, se., Monsanto v. United States, 348 F.3d 345, 348 (2d Cir. 2003).
Defendant argues that his indictment as well as his Pre-sentence Report did not [identify] the "three predicate violations" and therefore [failed] to charge a C.C.E. The court must review the defendant's interpretation of §848(b)(2)(A). That provision requires the 'threshold drug amount' to be "involved" in a single felony violation of the drug laws. The district court's interpretation, which permitted aggregation, was [erroneous]. Nevertheless, the court should conclude that the [error] was not harmless in light of "[no drug quantity finding]" of insufficent evidence introduced against Mr. Lee. A 'continuing series' is generally considered to consist of three violations. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570, 71 (9th Cir. 1989). A charged conspiracy under §846 may be considered as a predicate offense when determining if there are at 'least three violations'. Id.
Defendant counsel 'failed' to challenged the insufficient evidence from pre-trial stages through appeals via joining in motions in limine seeking to bar evidence of conflicting statements of co-conspirators and to challenge unreliable testimony of heresay. Defense counsel did not maintain no objections to the government's witness(es)' direct testimony and cross examining them in violation of the Confrontation Clause. Defendant counsel did not file a Post-Verdict Motion for Acquittal-challenging the sufficiency of the evidence of both the conspiracy §846 charge and the §848 C.C.E. Charges, and raising no issues as to [determining] a "continuing series" of three violations. Defense counsel could have taken other than raising; a Richardson argument.
A Richardson claim essentially "is a claim that the [jury] has not been told that §848 requires unanimous agreement on the three particular acts [comprising] the 'series of violations.'" Stephens v. Herrera, 464 F.3d 895, 899 (9th Cir. 2006).The defendant contends the jury instruction was insufficient about the required Unanimity and standard of pro of and is presumed to have convicted on that basis. Stated in the conjunctive-there is no allegations of distribution -no proof; 2) no use of a communication device(s); 3) no conspiracy actually took place; 4) and no use of a place to . distribute a controlled substance; and 5) no "continuing series" of violations has been 'proven' at trial. In other words,by finding defendant guilty of the C.C.E. Offense, it did not arguably find unanimously and beyond a reasonable doubt that defendant [committed] violations of each of the statutes named in the C.C.E. count.
The amount of pre-trial investigation that is reasonable defies precise measurement. It will necessarily depend upon a variety of factors including the number of issues in the case, the relative complexity of those issues, the strength of the government's case, and the [overall strategy of trial counsel].
In making that determination, court's should not judge the reasonableness of counsel's efforts from the omniscient perspective of hindsight, but rather from the perspective of counsel, taking into account all of the circumstances of the case, but only as those circumstances were [known] to him at the time of question. When a defense counsel [fails] to investigate his client's only possible defense, although requested by him to do so it can hardly be said that the defendant has had the effective assistance of counsel.
Attorneys must 'conduct' a [substantial investigation] which includes an independant examination of the facts,circumstances, pleadings and laws [involved].
To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea [to a lesser charge or a sentence of less prison time].Any amount of [additional jail time] has Sixth Amendment significance. Montejo v. Louisana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955. There, the defendant had alleged that his counsel had given him inadequate advice about his plea, but failed to show that he would have proceeded to trial had he received the proper advice. 474 U.S., at 60, 106 S.Ct. 366, 88 L.Ed.2d 203.
In Trevino v. Thaler, 569 U.S. 413 (2013), the court ruled that Martinez's holding applies as well to States like Texas, in which the "state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,"(id. at 432).
CONCLUSION
For the reasons set out above, the defendant, proceeding Pro Se, in all respects to this Honorable Court, the Defendant moves this Honorable Court to grant his Motion to Dismiss the 21 U.S.C. §846 and 21 U.S.C. §848 charges. Mr. Lee's conviction on the conspriracy count [merges], as a matter of law, with his conviction for organizing a continuing criminal enterprise. In addtion, because 'drug trafficking' is not a crime of violence, Mr. Lee's convictions for violating 18 USC §924(c) must be reversed.
The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the U.S. prohibits the Government from mounting successive prosecutions for offenses growing out of the [same criminal episode]. Ruthledge, 517 U.S. at 303; 526 U.S. at 818; Jeffers, 432 U.S. at 155; Garrett, 471 U.S. 773; Burt, 765 U.S. 1364; Cruz, 800 F.2d 1464; and Richardson, 526 U.S. at 818.
WHEREFORE, Defendant, Lee's respectfully prays that this Honorable Court enter an Order dismissing the §846 and §848 charges of the Indictment, and defendant requests for [time served], in all respects, be granted.