Opinion
Cr. File No. 99-33 (MJD/JGL), Civ. File No. 01-274 (MJD)
February 22, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Sylvan Pinque's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Based on that petition, this Court ordered that an evidentiary hearing be held and appointed a federal public defender to represent Defendant for the purpose of that hearing. The Court held the evidentiary hearing on January 22, 2002, and sought post-hearing briefing from counsel for both sides and from Defendant. For the reasons that follow, the Court denies Defendant's writ of habeas corpus.
BACKGROUND
The Government filed a criminal Complaint in this matter on October 2, 1998, for the prosecution of Sylvan Pinque ("Pinque"). Federal Public Defender Andrew Mohring ("Mohring") was assigned to defend Pinque. On April 8, 1999, Pinque was charged by Superseding Indictment with four counts: (1) Count 1 for aiding and abetting distribution of approximately 25.8 grams of cocaine base on or about September 22, 1998; (2) Count 2 for aiding and abetting distribution of approximately 49.9 grams of cocaine base on or about October 1, 1998; (3) Count 3 for conspiring to distribute and to possess with intent to distribute approximately 25.8 grams of cocaine base on or about September 22, 1998; and (4) Count 4 for conspiring to distribute and to possess with intent to distribute approximately 49.9 grams of cocaine base on or about October 1, 1998 (See Superseding Indictment dated Apr. 8, 1999; Clerk Doc. No. 38.)
On April 18, 1999, pursuant to Pinque's motion, the Court removed Mr. Mohring as counsel and assigned Ms. Patricia Crumley ("Crumley") from the Roster of Private criminal defense attorneys. On April 30, 1999, after a three-day jury trial, the jury returned a verdict of guilty on all four counts of the Superseding Indictment. A sentencing hearing was scheduled to be held on October 5, 1999. Pinque then expressed dissatisfaction with his attorney, Ms. Crumley. Accordingly, the Court removed Ms. Crumley as counsel and assigned Mr. Mark D. Nyvold ("Nyvold") as defense counsel for sentencing. On December 17, 1999, the Court held a sentencing hearing. The Presentence Investigation Report (PSR) determined that the "relevant conduct" for Defendant's four convictions totaled 75.7 grams of crack cocaine. The PSR determined that as to Counts 3 and 4 of the Indictment, a mandatory minimum of ten years of imprisonment applied. The PSR placed Defendant at a base offense level of thirty-two. The PSR then applied a two-level adjustment for holding a leadership role in the offense. The PSR placed Defendant in criminal history category II. The PSR applied two additional criminal history points pursuant to U.S.S.G. § 4A1.1(d), because at the time of the offense, Defendant was on probation in Ramsey County for fleeing police in a motor vehicle. With a total offense level of 34 and a criminal history category of II, Defendant faced a guideline range of 168 to 210 months imprisonment.
Mr. Nyvold filed an exhaustive Motion and Memorandum for Downward Departure on the basis that Pinque's criminal history category significantly overrepresented the seriousness of his criminal history. The Court granted Defendant's Motion for Downward Departure and placed Defendant in criminal history category I. (See Statement of Reasons at pp. 3-4.) The Court also determined that it would not apply the PSR's two-level adjustment for a leadership role in the offense. (Id. at p. 3.) Accordingly, the Court determined that Defendant had a total offense level of 32 and belonged in criminal history category I. (Id. at 4.) The Court determined that the guideline range of 121 to 151 months applied. (Id.) The Court then sentenced Defendant at the very bottom of that guideline range to a 121-month term of imprisonment. (Id.) The Court also concluded that "[t]he sentence is within the guideline range . . . and the court finds no reason to depart from the sentence called for by application of the guidelines." (See Judgement in a Criminal Case, Statement of Reasons, p. 6.)
Defendant, represented by Mr. Nyvold, appealed to the Eighth Circuit Court of Appeals. On December 8, 2000, the Eighth Circuit affirmed Defendant's conviction. United States v. Pinque, 234 F.3d 374 (8th Cir. 2000).
Now Defendant has filed a habeas petition pursuant to 28 U.S.C. § 2255. Defendant raises several grounds in support of the motion:
1. Trial counsel Patricia Crumley was ineffective for failing to call supporting witnesses;
2. Trial counsel Patricia Crumley failed to argue that government agents were Defendant's only co-conspirators;
3. Appellate counsel Mark Nyvold was ineffective for failing to raise trial counsel's conflict of interest on appeal;
4. The trial court erred when it imposed a ten-year mandatory minimum sentence;
5. Appellate counsel Mark Nyvold was ineffective for failing to argue application of a five-year mandatory minimum to Counts 3 and 4;
6. The evidence submitted at trial was insufficient to support his conviction; and
7. The multiplicative nature of the Indictment resulted in jury confusion.
The Court granted Defendant's request for an evidentiary hearing and appointed a federal public defender, Katherine Menendez, to represent Defendant. Defendant presented his own testimony, and the Government presented the testimony of Patricia Crumley, Esquire. The parties submitted post-hearing briefs. Having considered the testimony and the parties' written submissions, the Court will now address the issues.
DISCUSSION A. Ineffective Assistance of Counsel
A defendant must show that counsel's performance was deficient and that the defendant suffered prejudice as a result of the deficient performance in order to prevail on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate that counsel's performance was deficient, the defendant must show that counsel's errors were so serious that counsel was not functioning as "counsel" guaranteed by the Constitution. Id. In so doing, the defendant must specify what acts or omissions on the part of counsel were not the result of reasonable professional judgment, and the court's review of counsel's performance is highly deferential. Id. at 689-90. A presumption exists that counsel's conduct falls within the range of reasonable professional assistance. Id.
1. Conflict of Interest
In his moving papers, Defendant argues that trial counsel Ms. Crumley was ineffective for failing to call Georgia Giles as a supportive witness at his request. Defendant asserts that Ms. Crumley did not call Ms. Giles because she had two separate conflicts of interest. Defendant asserts that (1) Ms. Giles was represented by a fellow member of Ms. Crumley's firm; and (2) Ms. Crumley was personally involved with Ms. Giles's uncle. At the hearing on the matter, Ms. Crumley testified that Ms. Giles was represented by attorney William McGee and that she and Mr. McGee were never members of a firm together. Further, Ms. Crumley testified that she had served as a University board member in the 1980s and that Ms. Giles's uncle served on the board as well. However, Ms. Crumley testified that she never had a personal relationship with Ms. Giles's uncle. Finally, Ms. Crumley asserted that the actual reason she did not call Ms. Giles to testify was due to her conversation with Ms. Giles's counsel, Mr. McGee. According to Ms. Crumley, Mr. McGee did not intend to advise his client to take the stand in Defendant's case. Furthermore, Ms. Crumley determined that Ms. Giles's testimony would not have been helpful to the case. Ms. Crumley testified that she discussed this strategy with Defendant and that he agreed. At the hearing, Defendant also raised two additional witnesses he claims Ms. Crumley failed to call at his request. Defendant asserts that Ms. Crumley failed to call either Edy Henderson or "Walduck" as a witness. Ms. Crumley testified that she reviewed all the statements and the file of this case. Ms. Crumley testified that she discussed the case and the statements with Defendant and that Defendant made the ultimate determination about who would be called as a witness at his trial. Further, Ms. Crumley testified that there was additional evidence that implicated Defendant in the underlying offenses in this case, and that it is very doubtful the testimony of these individuals would have been helpful. After consideration of the testimony at the hearing, the Court finds that Ms. Crumley's testimony is credible in all respects. Accordingly, Defendant has failed to demonstrate that Ms. Crumley had a conflict of interest or that her representation was otherwise deficient.
Furthermore, as the Government argues, when a Defendant bases his ineffective assistance of counsel claim on an alleged conflict of interest on the part of his attorney, the Defendant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Government argues that because the record does not support the claims of conflict of interest, pursuing that argument on appeal would have been futile. The Court agrees. Accordingly, Defendant has failed to demonstrate prejudice because Mr. Nyvold did not raise trial counsel's alleged "conflict of interest" on appeal.
2. Co-conspirators
Defendant also argues that Ms. Crumley was ineffective because she failed to argue that government agents were his only co-conspirators and failed to request a jury instruction on the issue. However, in his direct appeal, Defendant challenged the jury instructions. Specifically, Defendant asserted that the Court erred when it failed to state that in order to convict him of conspiracy, the jury had to find that Defendant conspired with at least one person who was not a government agent. The Eighth Circuit determined in its previous Order of December 8, 2000:
Mr. Pinque's substantial rights were not affected by the absence of this instruction, because the jury heard a great deal of evidence tending to show that Mr. Pinque conspired with at least one person who was not a government agent during each conspiracy for which he was convicted. With respect to the first conspiracy, an informant testified that, at Mr. Pinque's request, he received crack from a girlfriend of Mr. Pinque's while Mr. Pinque was present. The informant further testified that his girlfriend was a common source of drugs for Mr. Pinque. The same informant testified regarding the second conspiracy as well, indicating that he went with Mr. Pinque to another girlfriend's house to obtain more crack. An undercover police officer indicated that this same girlfriend was present when he purchased crack from Mr. Pinque later that day, and that the girlfriend was in fact carrying the crack. We believe that it is clear that the instruction that Mr. Pinque now requests could not have changed the outcome of his trial, and thus that his substantial rights were not violated by its omission.
Pinque, 234 F.3d at 378. Accordingly, Defendant cannot demonstrate prejudice from Ms. Crumley's failure to argue that government agents were the only co-conspirators or failure to request a jury instruction on that issue. As the Eighth Circuit's findings suggest, such a request or instruction could not have changed the outcome of the trial. Id.
3. Mandatory Minimum
Finally, Defendant argues that appellate counsel Mr. Nyvold was ineffective for failing to argue application of a five-year mandatory minimum sentence and failing to object to application of a ten-year mandatory minimum sentence with respect to Counts 3 and 4. Additionally, Defendant argues that the trial court erred in applying the PSR's ten-year mandatory minimum sentence to Counts 3 and 4, where the drug quantity involved was less than the requisite 50 grams. Specifically, Defendant argues that "relevant conduct," although used to determine the appropriate sentencing guideline, cannot be used to determine the statutory minimum and maximum sentences.
Notwithstanding Defendant's argument, the Court never applied a ten-year statutory mandatory minimum to Counts 3 and 4. The Court was clear in its finding that the appropriate guideline range in this case was 121-151 months, and that no downward departure outside these guidelines was warranted. Accordingly, the Court sentenced Defendant to 121 months imprisonment. To the extent that the PSR misstated the applicable mandatory minimum sentence for Counts 3 and 4 and the Court cited that misstatement, Defendant was not prejudiced by it. Therefore, Mr. Nyvold's failure to raise this issue did not prejudice Defendant.
B. Aiding and Abetting
Defendant argues that the evidence was insufficient to support his conviction. Specifically, Defendant argues that with respect to Counts 1 and 2, the Indictment does not charge any other person "as a principle offender" and does not "identify any related charges or convictions." (Supp. Mot. at 6.) Indeed, Defendant argues that Counts 1 and 2 could not be "factually or legally sustained" because no principal offense was alleged to have been committed or proven at trial and no principle offender was identified. (Traverse in Opp. at 5.) Defendant argues that trial counsel was ineffective for failing to argue this point. Defendant also argues that appellate counsel was also ineffective for failing to raise the issue on appeal.
The Court finds that Defendant's arguments are without merit. A defendant may be convicted as an aider and abettor when the principal has not been convicted, has not even been charged, or may be unknown. See Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969); United States v. Provenzano, 334 F.2d 678, 691 (3d Cir. 1964), cert. denied, 379 U.S. 947 (1964). Indeed, an individual may be indicted for commission of a substantive crime and convicted by proof showing him to be an aider and abettor. See Pigman, 407 F.2d at 239-240. The evidence at trial was sufficient to show that Defendant was an aider and abetter. Furthermore, Defendant was charged in Counts 3 and 4 with the substantive offense of conspiracy to distribute and to possess with intent to distribute cocaine. Accordingly, the Court concludes that trial and appellate counsel's representation was not deficient.
C. Multiplicative Indictment
Defendant argues that the multiple charges in the Superseding Indictment were confusing to the jury. Because Defendant failed to raise this argument on direct appeal, it is procedurally barred. United States. v. Frady, 456 U.S. 152, 165 (1982); Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994).
CONCLUSION
Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant's Petition (Clerk Doc. No. 81) is DENIED.