Opinion
CRIMINAL ACTION NO. 3:02CR1LN, CIVIL ACTION NO. 3:05CV12LN.
March 31, 2008
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant L.B. Smith for relief pursuant to 28 U.S.C. § 2555. The government opposes the motion and the court, having considered the parties' memoranda and submissions, together with the record and the evidence adduced at the December 13, 2007 evidentiary hearing, now concludes that the motion is well taken and is due to be granted.
On December 10, 2001, Smith, along with three others, Travis Burks, Edward Vargas and Benjamin Vargas, were arrested in Richland, Mississippi for conspiracy to distribute narcotics. All four were subsequently indicted for conspiracy to distribute 11.5 kilograms of cocaine hydrochloride in violation of 21 U.S.C. § 846, and Smith and Burks were charged with one count of attempted possession with intent to distribute 11.5 kilograms of cocaine hydrochloride, as proscribed by 21 U.S.C. § 846, and one count of aiding and abetting each another in the commission of the offense, in violation of 18 U.S.C. § 2. On June 21, 2002, a jury convicted Smith of conspiracy to distribute, and attempted possession of 11.5 kilograms of cocaine, and on September 3, 2002, he was sentenced to two 151-month terms of imprisonment to run concurrently. His conviction was affirmed by the Fifth Circuit on January 4, 2004, and on January 3, 2005, Smith filed a timely motion to vacate pursuant to 28 U.S.C. § 2255.
In his motion, Smith sets out eight grounds for relief, reciting as follows:
1. Prosecutors withheld exculpatory evidence in violation of Brady v. Maryland, 10 L. Ed. 215;
2. Trial counsels provided ineffective assistance of counsel in violation of the sixth amendment;
3. Appellate counsel provided ineffective assistance of counsel in violation of the due process clause of the Fourteenth Amendment;
4. Petitioner was procedurally deprived of his constitutional rights to have a jury make determination beyond a reasonable doubt whereby the court enhanced his sentence based on factors not in the indictment;
5. Petitioner's sentence violates established rights and laws of this circuit in violations of US v Cooper, 274 F.3d 230 (2001);
6. Petitioner's due process rights were violated and his rights to a fair trial denied where hearsay testimony was allowed, over objections of trial counsel;
7. Petitioner's due process rights were violated through the illegal questioning of co-defendant and suggestion that at co-defendants' guilty pleas he had implicated petitioner; and
8. Petitioner's convictions violates [sic] Jackson v. Virginia, 443 US 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
Each of the first three grounds, the government's alleged Brady violation and the alleged ineffective assistance of both his trial counsel and appellate counsel, relate to cell phones that were seized at the time of plaintiff's arrest. In a nutshell, the government claimed at trial that a certain cell phone seized at the time of the arrest, one with a 205 area code, had likely been used to initiate the drug transaction and had otherwise been used in connection with the transaction; and it claimed that this particular cell phone belonged to Smith. Smith maintains that, in fact, his cell phone was seized at the time of the arrest; but it was not the 205 cell phone which the government was claiming belonged to him. Instead, his cell phone had a 601 area code. He informed his attorneys of this at trial, when he first realized what the government was contending; but they ignored him and never challenged in any way the government's assertion that the 205 cell phone belonged to plaintiff. He charges that as a result of his counsels' failure to clarify the phone ownership issue, the jury was allowed to believe — for they had no reason to think otherwise — that Smith owned the cell phone that had likely been used to initiate the drug transaction. He maintains that in this regard, his trial counsels' performance was constitutionally deficient.
To evaluate Smith's claims, the court reviewed the trial transcripts, paying particular attention to the role that the cell phones played in the prosecution of Smith and on defense counsels' handling of issues related to the cell phones. The following summary of the case and the evidence adduced at trial provide background and context for the evaluation of defendant's § 2255 claims and the evidence that he ultimately presented at the evidentiary hearing held in this matter:
At Smith's preliminary examination and detention hearing held on December 11, 2001 following his arrest, the magistrate judge found Smith to be indigent and appointed Thomas Powell as his counsel. The grand jury returned the indictment on January 8, and on January 18, Smith was arraigned and pled not guilty. The magistrate judge set a March 3, 2002 trial date, and entered a standard discovery order, requiring the government to make available to defendant within thirty days, any evidence described in Rule 16 of the Federal Rules of Criminal Procedure and requiring it to produce as soon as possible all information accumulated during the investigation which constituted Brady exculpatory materials. On February 6, 2002, Jerry Rushing, the Assistant United States Attorney prosecuting the case, having reviewed the case file and having spoken to the investigating agents, sent Powell a letter outlining the discovery that had been produced, advising of the materials which were being supplied contemporaneously with the letter and advising that certain physical evidence was available for inspection. Near the end of the letter, having not previously identified any cell phones in the list of physical evidence available for inspection, Rushing wrote:
There were also 3 phones seized at the time of the arrest of Mr. Smith and Mr. Burk[s]. Two phones are believed to belong to Mr. Burk[s] and one phone believed to belong to Mr. Smith. A subpoena has been issued for these phone records but I have not received them as of this date.
Powell faxed the letter to Hattiesburg attorney Robert Davis, a friend of Smith's family, who had agreed to assist in Smith's defense.
There is no indication that Davis was or has been admitted to practice in this court.
On the government's motion, the court continued the trial of all the defendants. Thereafter, on June 13, 2002, Burks pled guilty to Counts One and Three of the indictment, and Vargas pled guilty to Count 1. Smith proceeded to trial on June 20, 2002.
The proof at trial showed the following: On December 9, 2001, Edward Vargas and his father, Benjamin Vargas, while traveling eastbound on Interstate 20, were stopped by a Mississippi Highway Patrol (MHP) officer. After a consensual search, Edward Vargas was found to be in possession of 11.5 kilograms of cocaine; the two were arrested. Following the arrest, Edward, who intended to deliver the drugs to Burks, agreed to participate in a controlled delivery of the cocaine. To this end, he called his cocaine supplier, Carlos Harrarah, in Mexico and claimed that the car had broken down. Vargas later placed a second call to let Harrarah know that he had gotten a hotel room at the Ramada Inn in Richland, Mississippi. Harrarah informed Vargas that he would have "Stephen" contact him.
After Edward's second call to Mexico, he received a call at 3:19 a.m. on the hotel phone from Burks, who, phone records showed, was using a cell phone with a 316 area code. Burks told Vargas that he would "wait till it gets day light" and then he would "be up there." Burks stated that he wanted to wait until his "partner shows up" and that he expected to arrive at 8:00 a.m. At 8:06 a.m., a call from the cell phone with the 205 area code was placed to the hotel.
Burks and Smith arrived at the Ramada Inn around 9:00 a.m. Video surveillance showed that Burks went to the Vargases' hotel room, while Smith remained in the car. Immediately upon entering the room, Burks was observed talking on a cell phone and the phone records for the 316 phone show an incoming call at this time. At about the same time, the phone records for the 205 phone show outgoing calls to Hattiesburg, Mississippi. After Vargas and Burks briefly discussed the transaction, Burks and Smith left the hotel and drove to a nearby truck stop, where one of them went inside the store.
About thirty-five minutes later, the two returned to the hotel and began to examine the car. During this time, Vargas asked Burks, who was standing in close proximity to Smith: "Did he tell you where the drugs were at?" Burks did not respond initially, but when Vargas asked again, Burks responded in the affirmative.
A short time later, after Vargas' vehicle was started, the arrest signal was given. When the officers moved in to arrest the men, Smith was seen on the videotape taking two or three skip steps away from the scene before complying with the officers' instructions to "get down."
Upon arrest, officers found that Burks had $5100 cash on him and that there were no tools in the car in which Smith and Burks had traveled from Hattiesburg. Smith admitted to the arresting officers that he was owner the automatic pistol found protruding from under the passenger seat of the car that Burks had rented. Smith informed the officers (and the officers found it to be true) that Smith had lawfully purchased the gun at a Hattiesburg sporting goods store a month or so before his arrest.
As has turned out to be significant for the purposes of the current motion, the jury also heard testimony from an arresting officer, John Cooley, that at the time of arrest, Burks and Smith each had a cell phone clipped to his belt. On cross-examination, Smith's attorney did not ask Cooley any questions about the number or type of cell phones which were reported to have been found on the defendants.
The topic of cell phones arose again during the testimony of Ryan Spradlin, a special agent with the United States Customs Service and the government's final witness. Spradlin initially testified, without objection, that officers on the scene seized two cell phones during the arrest and that he had subpoenaed the phone records from Nextel and WorldCom, the service providers. The number for the Nextel phone was 316-761-5654 and was listed to "Kevin L. Henson" of Wichita, Kansas; it was later determined that Burks was a resident of Wichita, Kansas, Henson was Burks' roommate and Burks was the one actually using that phone. The number for the WorldCom phone was 205-213-7728 and was listed to Sybil Smith of Columbiana, Alabama.
Spradlin testified that phone records showed that at 4:06 p.m. on December 4, 2001, five days before the Vargases were arrested, the 205 cell phone was used to make a three-minute call to Burks' 316 cell phone. Ten minutes later, Burks' cell phone was used to call an El Paso, Texas phone number. Several more calls were made from the 316 phone to the El Paso number that day. On December 7, 2001, a call was placed from the 205 cell phone to Burks' 316 number and, as before, a call was placed to El Paso, Texas from the 316 cell phone not long thereafter. At around this point in Spradlin's testimony, without objection, Rushing began to treat the El Paso, Texas cell phone number as being synonymous with Harrahah, the Mexican drug supplier.
Regarding the 205 cell phone, Spradlin was asked by the prosecutor:
Q: And the 205, the Alabama phone number, do you know the last name of the person that phone is listed under?
A. Yes. The last name of the person that the phone was listed under was Smith.
He was also asked about the seizure of phones at the time of arrest. Contrary to Rushing's representation in his letter to Powell during discovery reciting that three phones had been seized at the time of the arrest, two of which were believed to be Burks and one of which was believed to be Smith's, Rushing asked Spradlin:
Q. And there were two phones seized that night at that location-right-at the hotel?
A. Correct.
Q. One from L.B. Smith.
Mr. Davis: Objection, Your Honor, unless he can show the foundation. I'd like to see the foundation for this testimony.
The Court: I think — has there not already been testimony of this summary.
Mr. Rushing: Yes, sir.
The Court: I will overrule the objection.
A. Two telephones were seized. One telephone was seized from L.B. Smith, one telephone was seized from Travis Burks. Both individuals were wearing cellular phones on their waistband.
Q. And do you have calls, direct calls at one time from one number-from the 205 number to the 316 number and immediately from 316 to the El Paso number, the connection in Texas?
A. Yes, on several dates actually, December 4th and December 7th, as I described.
On cross-examination, Spradlin stated that he was not aware of any other phones being seized and admitted that he had not personally observed either defendant with a cell phone as he was in the surveillance van. Davis posed this question to Spradlin: "Now, the reason you're saying that (205) 213-7728 is Mr. Smith's phone is because it's in the name of an individual named Sybil Smith. Is that correct?" Spradlin replied: "I am telling you that because at the time of the two individuals' arrest, the officers that arrested those individuals obtained evidence, currency cellular phones, and presented those to myself or to Jeff Jackson who I was standing next to. So that is why I'm telling you that." Davis made no further inquiry as to the identity of Sybil Smith and any possible relationship she might have, to defendant Smith, nor did he make any effort to show that, in fact, three, not two phones had been seized, and to show that the third phone was the phone owned by Smith and which Smith had been observed wearing clipped to his waistband. Rather, Davis's approach was to downplay the significance of the calls made from the 205 phone to the 316 phone in the days preceding the transaction. To that end, Davis pointed out that each of the calls from the 205 number to the 316 number on December 4th and 7th was only one minute long, and attempted to have Spradlin concede that, given the way that cell phone providers calculate cell phone usage, these calls could have been made by the 205 number but never have been answered by the 316 number. Spradlin responded that it would depend on the cell phone provider's service plan.
In Smith's defense, Davis and Powell offered only the testimony of Burks. Burks testified that Smith was a childhood friend whom he knew to work on cars. He testified that he contacted Smith on the morning of December 10, 2001 and asked him to accompany him to check out a car that was not running. According to Burks, Smith did not know about the drug transaction. Davis did not ask Burks any questions about what time he first contacted Smith nor at what number he called Smith that morning to ask for help with the car. Further, while Burks admitted that the 316 phone was his, he stated that he did not know to whom the 205 number belonged.
At the time of his change of plea hearing, Burks, through his attorney, apprised the court that although both he and Smith were charged in Count 3 and he was guilty to that offense, he anticipated being called as a witness for Smith and did not "want the court to have the impression that [he] was (saying) that heand Smith did it."
The court notes that on cross-examination, Edward Vargas testified that he "was only going to give the car to Travis Burks, nobody else."
The prosecutor began his closing argument with the unchallenged proposition — which was presented as a fact — that the 316 phone belonged to Burks while the 205 phone belonged to Smith. The prosecutor highlighted the phone records establishing the phone calls from the 205 phone to the 316 phone, and in turn, from the 316 phone to an El Paso number, on December 4th and December 7th, the days leading up to the transfer of the drugs from Mexico, through El Paso and on to Mississippi by way of the Vargases. Rushing reminded the jury of how Vargas came to be apprehended and the fact that on the same day, Burks had flown into Mississippi from Kansas, arriving in the same city where Smith lived. Rushing argued that upon their initial arrival at the hotel, Smith and Burks drove through the parking lot to make sure that there was no surveillance and only returned after they thought that it was safe to do so. According to Rushing, Smith remained in the car with the loaded gun as protection for Burks and the quarter of a million dollars worth of cocaine. Finally, Rushing urged that Smith had to have overheard Vargas ask Burks where the drugs were only minutes prior to arrest, and yet did not react negatively because he was a knowing member of the conspiracy to possess the drugs.
In his closing, Powell urged that if Smith had heard Vargas' question to Powell at all, he had no time to react one way of the other before the group was arrested. He reminded the jury of Edward Vargas' testimony that he knew of no involvement on Smith's part and of Burks' testimony in which he affirmatively denied that Smith was involved. Powell further pointed out that Smith lawfully possessed the firearm and that Smith, consistent with the defense theory that Smith was just there to fix the car, was seen on the video tapes attempting to get the car running.
Regarding cell phones, Powell, implicitly conceding that the 205 phone was properly attributable to his client, stated:
The government also wants to rely on phone records. All the phone conversations that were audiotaped and videotaped were of the Vargases and Travis Burks. There's no connection with Mr. Smith on any of these phone calls making a call to anybody to set up a drug transaction.
Now, they want to make a connection between a call to Mr. Burks in Kansas and a call to Mexico, but a very short phone calls [sic] without knowledge of what was said is not evidence. It is conjecture, but that's not evidence. I mean, every other phone call was audiotaped or videotaped.
These phone calls — you cannot say that these phone calls are a connection without knowing what was said. Nobody knows. And if you look at the record, even on here on December 7th, there are four calls at 1:23 p.m. that occur at the same time. How can that be? As my colleague said yesterday, that means that somebody probably did not even answer the phone; otherwise how can there be four phone calls all at the same time?
In his rebuttal, Rushing urged the jurors to use their common sense to conclude that the drugs from Texas were headed to Mississippi to be distributed in Mississippi by Smith, the only defendant who was actually a Mississippi resident. He further urged the jurors to use their common sense to conclude that the December 4th and 7th phone calls from Smith's 205 phone were obviously calls placing drug orders from Burks, who then contacted his Texas-based supplier. He argued that it was only reasonable to assume that with that much money at stake, Burks would not have brought someone with him who was not part of the scheme and that he brought Smith and Smith's gun along for protection. Rushing concluded his argument as follows:
I can tell you this: I can tell you that Mr. Harraha[h] is not going to ship $250,000 worth of cocaine to Mississippi and not know where it is going. And is it just a coincidence that Mr. Burks happened to be in Mississippi on the same day? Of course not. And the reason that those drugs were headed to Mississippi, and the only person in Hattiesburg, Mississippi, in this conspiracy is who? It's the defendant with this phone record that made those calls back in December 4th, December 7th and December 8th. And that is the man sitting right over there.
The issue of the 205 phone came up again at Smith's September 3, 2002 sentencing hearing, where Smith was represented by John Collette. At that hearing, Collette, in an attempt to "correct some incorrectness as far as who owned [the 205 cell phone]," provided the court with an affidavit from Sybil Smith, the Alabama resident under whose name the 205 cell phone was listed, in which she stated that although she did not own a cell phone, she had received a $3168.95 bill from WorldCom. She further stated that she did not know nor have any knowledge of L.B. Smith. The government's representative responded that he had seen the affidavit but failed to see its relevance as "it was undisputed that this phone was in his possession at the time of arrest."
On appeal, Smith, represented by attorney Julie Epps, raised four errors:
a. Sufficiency of the evidence to support his convictions;
b. Error in overruling Smith's counsel's objection to the admission of testimony by Agent Ryan Spradlin that the 205 cell phone was seized from Smith;
c. Error in the prosecution's questioning of Travis Burks about his guilty plea and the suggestion that Burks had implicated Smith at Burks' plea hearing; and
d. Error in the prosecution acting as an unsworn witness.
On January 4, 2004, the Fifth Circuit affirmed the conviction. On the question of the sufficiency of the evidence, the court wrote:
[e]vidence adduced at trial indicated that Smith accompanied his co-defendant to the site of the drug deal, possessed and used a cell phone to communicate with individuals and location involved in drug trafficking, was referred to as a `partner' in the drug trafficking, possessed a loaded 9 millimeter handgun at the scene of the drug deal, and remained at the scene after it was clear that drugs were present.United States v. Smith, 85 Fed. Appx. 5, 6 (5th Cir. 2004). The Fifth Circuit further concluded that "Spradlin's challenged statement, regarding Smith's possession of a cell phone, was cumulative to testimony previously introduced at trial" and thus, was harmless and that the prosecution's alleged improper cross-examination of Burks did not survive plain error review.Id.
The central theme of Smith's claim as to the first and second bases for relief is that the government, without objection or clarification from trial counsel, incorrectly and falsely represented to the jury that only two cell phones were found on the defendants on the day they were arrested. Neither the government nor his own counsel made known to the jury that, in fact three cell phones, were recovered at the time of arrest and that of those, the 205 and 316 phones belonged to Burks and that Smith's one and only cell phone was one with a 601 area code. Smith maintains that the government's alleged subterfuge and his own counsels' alleged failure to correct this error was key to his conviction because the jury was allowed to erroneously attribute to him ownership of the 205 cell phone which was shown to have been used in the commission of the drug crime. Smith insists that he was not a participant in the conspiracy, but instead, had simply received a call from Burks (on his 601 cell phone) early on the morning of December 10, 2001 asking Smith to accompany him to look at a car that had broken down.
In support of his position, among other things, Smith provided a copy of the February 6, 2002 letter from prosecutor Jerry Rushing to Powell in which Powell stated that three cell phones had been seized, two believed to belong to Mr. Burks and one believed to be Smith's. Smith also submitted an affidavit from his wife Felicia Smith, who confirmed that between 7:00 and 7:30 on the morning of December 10, 2001, while the couple were in bed, her husband had gotten a call from a friend on his cell phone with the number 601-408-9141, a phone which he had owned and used for three years. According to Mrs. Smith, the friend asked her husband to help him with a disabled car. Mrs. Smith further stated that L.B. kept the phone with him at all times because it was integral to running his automobile detail business, that when he left their home on the morning of the 10th, the phone was in the clip holder on L.B.'s waistband and that she never saw the phone after his arrest.
In connection with his motion, Smith further submitted a copy of his business card and a cancelled check from his business, both which listed only two numbers, a land-based line and a cell phone number 601-408-9141. Finally, Smith provided telephone records for the 601 phone which he claims is his, showing an incoming call to the 601 number at 7:18 a.m. on December 10, 2001. The records also showed a number of calls from the 601 phone to the 205 phone during November 2001; by way of explanation, Smith testified that those calls to the 205 number were by him to his friend Burks.
In light of the pivotal role that the cell phones played in the case, the court concluded that an evidentiary hearing was required as to grounds one and two; the court appointed counsel to assist Smith in presenting his claims. At the outset of the hearing, the following stipulations were read into the record:
Number 1: Jerry Rushing is an assistant United States attorney for the Southern District of Mississippi. He was employed in that capacity in 2001, was lead prosecutor in the criminal case of the United States v. L. B. Smith III, number 3:02cr1TSL. That case proceeded to trial on June 20th, 2002.
Number 2: On February 6th, 2002, Rushing sent a letter to petitioner's trial attorney, Thomas Powell — and that letter would be attached as Petitioner's Exhibit Number 1 — in connection with his duty to provide discovery to the defense in the prosecution of United States v. L. B. Smith III.
Number 3: Sometime before sending this letter, Rushing reviewed the prosecution file in this case and spoke with agents who investigated this case.
Number 4: Assistant United States Attorney Jerry Rushing has no independent recollection of where he received information that led him to state there were three cell phones recovered in this case and that two of the cell phones were believed to belong to Travis Burks.
Number 5: Petitioner L.B. Smith III timely filed this action under 18, U.S.C., Section 2255, alleging that the government withheld exculpatory evidence, namely, evidence that there were three cell phones recovered rather than two.
Number 6: On December 10th, 2001, officers with the Mississippi Bureau of Narcotics, the Immigration and Customs Enforcement and the Drug Enforcement Agency arrested L. B. Smith III and Travis Burks. At least two cell phones were seized as a result of this arrest.
Number 7: It is the routine practice of all law enforcement agencies involved in the investigation and prosecution of this case to document in official agency reports collection of personal property such as cell phones that occurs in connection with an arrest. Agents are further responsible for storing such personal property and evidence and for documenting a chain of custody showing each person who has possession of such items and where they are stored.
Number 8: Assistant United States Attorney Gaines Cleveland handled the appeal in this case and represents the government in this habeas petition.
After contacting law enforcement agencies involved in the investigation of L.B. Smith, Antonio Vargas and Travis Burks, he has not been able to locate any existing reports that document the collection, seizure, logging or chain of custody of any cell phones in this case, nor do the agent incident reports or disposition of evidence forms refer to the cell phones.
Number 9: The only documentation relating to the collection of cell phones in this case is Petitioner's Exhibit Number 1.
Number 10: Documents were destroyed by the court April 19, 2007.
Number 11: Agent Jeff Jackson was principally in charge of the recovery, logging and labeling of personal property and evidence in connection with the arrest of L.B. Smith and Travis Burks. He filed an incident report that is in the government's possession. The incident report does not refer to the recovery of any cell phones in this case.
Number 12: Agent Jeff Jackson was principally in charge of the destruction of evidence at the conclusion of this case. He documented the evidence that was destroyed after Mr. Smith's conviction. His destruction of evidence report makes no reference to destruction of cell phones.
Number 13: The government has possession of numerous reports that were made in connection with this case. None of those reports indicate that the cell phones that were recovered were returned to the defendants, their relatives or anyone else or any other government agency.
At the hearing, Smith's wife, consistent with her affidavit, testified that on the morning of December 10, 2001, L.B. received a phone call on his one and only cell phone 601-408-9141, which he used to keep in touch with her while he was working. She stated that Smith kept his cell phone clipped to his waist at all times and that he would frequently use the phone to check on her. On cross-examination, she conceded that she had been able to obtain her husband's cell phone records and that the government did not prevent her husband from doing so before trial. On re-direct, she testified that no one ever returned the 601-408-9141 phone following her husband's arrest.
At the hearing, defendant L.B. Smith testified. He stated that he was in the automobile detail business and also did minor automobile repairs. His customers primarily reached him by his cell phone, 601-408-9141. Smith stated that he had known Burks all his life and had kept in touch with him after Burks moved to Kansas with his uncle. Smith testified that he received a call from Burks on the morning of December 10th, requesting assistance with a car that had broken down on Highway 49; Smith only discovered that the car was in Jackson after he had been in the car with Burks for four or five minutes. Smith testified that his plan was to do a quick inspection of the car to see if it could be started and if it could not be, to tow it to a "Speedee deal." Smith testified that he always carried a gun with him.
Smith stated that during the trip, Burks told him to take the cell phone in the center console and use it to find the location of the car. He called the number that he was given and an Asian lady answered the phone, saying "Ramada Inn." Smith stated that, during the hour-and-a-half trip from Hattiesburg, Burks never disclosed that they were to pick up drugs in Jackson or that the mission was part of a drug deal. Smith testified that after they arrived at the Ramada Inn where the car was located, they left the hotel to go get some oil because Vargas had reported that it was leaking oil. Smith denied trying to flee when the officers commenced the take down, he stated that he was shocked and frightened.
Smith testified his 601 phone was clipped to his waist at the time of arrest and that the phone which he had used to call the hotel was in the car. Smith stated that he was never given access to his 601 cell phone after his arrest and has not seen it since his arrest.
Regarding his trial counsel, Smith testified that he and Davis came to Jackson in preparation for trial. He stated that during this meeting, they examined the videotape of the incident. According to Smith, during the 30 to 40 minute meeting, neither of the attorneys mentioned anything to him about a cell phone. Smith stated that the gist of his defense was to be that "he was never around no dope. I wasn't on no wiretap about no dope. I ain't had nothing to do with no drugs. So, basically, our whole defense, I was in the wrong place at the wrong time, basically." He later met with Mr. Davis and again, the issue of cell phone or cell phone records was not brought up.
Smith stated that he first realized that the 205 phone was being attributed to him during Spradlin's testimony, when Spradlin began to diagram the interaction between the cell phones in the days leading up to December 10, 2001. According to Smith, when he heard this testimony, he told Davis "That's not my phone. I mean I had a phone, but that's not my phone." Smith reported that Davis told him to settle down and be quiet and at one point, asked if Smith wanted to represent himself. Smith testified that his attorneys did not take a break to discuss the cell phone situation, nor had they ever shown him Rushing's letter wherein he stated that there were three phones. Smith also testified that during trial, he saw a brown box on the prosecution table which contained three cell phones and that although he pointed this out to his attorneys, they made no further inquiry.
On cross-examination, Smith explained that his claim that the government withheld evidence was based on the fact that the government had taken his 601 cell phone and then brought another phone to court and attributed it to him. Smith further denied that he used the 205 phone around 9:00 a.m. when Burks first went into the hotel room to meet Vargas and did not know if Burks had taken both phones into the room with him and could not say which phone Burks was using. Smith further denied that he overheard Vargas ask Burks if he knew where the drugs were. Smith reiterated their plan to take the car to a "Speedee deal" if they were unable to get it cranked and further explained that he always carried a gun with him. Upon questioning from the prosecution, Smith stated Burks had used him and that anyone sitting at the prosecution's table could have seen the cell phones had they looked in the brown box.
For its part, the government presented the testimony of Agent Spradlin. Spradlin testified that he was aware of only two cell phones being recovered on December 10, 2001 and had he been aware of the 601 phone, he would have subpoenaed the toll records for that phone and conducted an analysis of the call pattern. Spradlin also reviewed the pattern of calls from the 205 phone to the 316 phone to El Paso. The government's attorney asked: "Now, if Burks had the 205 number and the 316 number, does it make any sense he would be calling himself?" Spradlin responded: "Not to me."
Spradlin further stated that there were no cell phones present at trial and that even without the cell phone proof, the record showed that Smith was at the scene to fix a car without tools, was carrying a loaded 9-millimeter hand gun and overheard Vargas ask Burks about the drugs and did not react negatively.
On cross-examination, Spradlin again clarified that he had not been the officer who took physical possession of the cell phones and had no recollection of seeing any reports which quantified the number of cell phones recovered. The cell phone numbers for which he obtained the records and upon which he conducted his analysis were provided by other agents. According to Spradlin, DEA agent Jeff Jackson would have been responsible for the collection of the physical evidence. Spradlin further stated that some effort was made to determine if Sybil Smith had any relationship to Smith, but he could not recall the results of the efforts.
On redirect, Spradlin stated that had the cell phones come into his possession, he would have made a record of receiving them and, per his agency's policy, for chain of custody purposes would have had whomever was receiving the item from him sign for it. He had no explanation for the lack of any records related to the collection of the cell phones.
In his motion for relief, Smith charges that the government violated his due process rights both by intentionally withholding exculpatory evidence, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (due process requires that the government disclose to the accused any favorable evidence in its possession that is material to guilt or punishment), and by knowingly eliciting false testimony from a number of its witnesses in violation of Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 153 L. Ed. 2d 104 (1972) (prosecution may not elicit false testimony, nor may it allow false evidence, although unintentionally solicited, to go uncorrected). He further maintains that his trial counsel was ineffective and served to exacerbate the government's alleged deception by failing to counter the government's assertion that the 205 phone belonged to him. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) (to prevail on an ineffective assistance claim, defendant must establish both deficient performance by his attorneys and prejudice therefrom).
With reference to the alleged Brady and Giglio violations, Smith takes the position that Rushing's February 6, 2002 letter establishes the fact that three cell phones were recovered when Smith and Burks were arrested on December 10, 2001. He contends that this "fact" is buttressed by the additional facts that (1) the prosecutor who made the statement cannot recall the source of the information, (2) the government has no reasonable explanation as to why Rushing included this statement in his letter and (3) the government agencies involved in this case have no documentation of any cell phones being seized, when at least two phones were admittedly known to have been seized. According to Smith, because Spradlin was the lead agent and admittedly spoke to Rushing prior to the February 6, 2002 letter, he was necessarily the individual who informed Rushing that three phones had been seized, two belonging to Burks and one belonging to Smith. He reasons that prior to or upon putting Spradlin on the stand, Rushing was obligated to "inform the defense that this testimony was, at least, contradicted by earlier statements by agents that this phone (the 205 phone) belonged to Burks and that an additional phone was discovered." Regarding the government's duty under Giglio, Smith takes the position that, even if Rushing forgot the name of the specific agent who recovered the three phones, he should have moved to correct this false testimony at whatever point in the litigation his memory was refreshed.
For its part, the government denies that Rushing's February 6, 2002 letter was an admission to the effect that three cell phones were recovered and that two were attributable to Burks and one to Smith. See United States v. Santisteban, 501 F.3d 873, 878-79 (8th Cir. 2007) (holding that even if the statement in a prosecutor's memo was an admission, because the internal hearsay statements of the criminal defendant and the law enforcement agent did not fall within hearsay exceptions, the prosecutor's memo was not admissible). Instead, it maintains that the letter was intended only to alert defense counsel to its "potential evidence" and to put counsel on notice that cell phone records would be involved in the case. It further takes the position that Smith's defense counsel were not ineffective for failing to seek the admission of the inadmissible letter and that, in any event, given the other evidence in this case, Smith cannot show that he was prejudiced by this alleged error.
Despite the government's protest to the contrary, the court is persuaded that Smith has shown by a preponderance of the evidence that three cell phones were seized by law enforcement agents on December 10, 2001. Felicia Smith credibly testified that her husband received a call on his 601 cell phone on the morning of December 10, 2001 and the phone records for the 601 phone reflect an incoming call at 7:19 a.m. on that morning. The court further credits her testimony that Smith had the 601 phone in the clip holder on his waist when he left their Hattiesburg home that morning. The 601 cell phone records submitted by Smith show that the phone made a call to directory assistance at 9:28 a.m. on the morning of the 10th. This call is within the time frame that Burks and Smith were in Jackson and thus, the logical inference is that Smith had and used his 601 phone that morning. Further, there is the fact that although it is customary for law enforcement agents to document the collection of personal property from a defendant, there is no such record in this case. This leaves Rushing's February 6, 2002 letter as the prosecution's only documentation as to the collection of any cell phones in this case. Rushing's statement regarding the number of phones is a declarative statement of fact and clearly was not intended as merely a statement of belief that three cell phones might have been collected. This statement was necessarily based on information received from one of the case agents that three phones were collected and arguably would have been an admission under Rule 801(d)(2)(B), see United States v. Garza, 448 F. 3d. 294 (5th Cir. 2006), and certainly could have been used by trial counsel to impeach Jackson's and Spradlin's credibility.
This being said, it is clear that the government has not run afoul of its duty to disclose under Brady. Quite simply, by Rushing's letter, the government did disclose that three cell phones had been seized. This information was presented to defense counsel and per Rushing's letter, it would appear that the phones themselves would have also been made available to defense counsel had they only made the necessary request. In the court's opinion, however, Smith has proven a violation of Giglio.
"The Due Process Clause of the Fourteenth Amendment forbids the State from knowingly using perjured testimony." Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (citing Giglio, 405 U.S. at 153, 92 S. Ct. at 766). Elaborating on this principle, the Fifth Circuit has written:
In Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), the Supreme Court made clear in no uncertain terms that due process is violated when the prosecutor obtains a conviction with the aid of false evidence which it knows to be false and allows to go uncorrected. It is immaterial whether or not the prosecution consciously solicited the false evidence. It is also immaterial whether the false testimony directly concerns an essential element of the Government's proof or whether it bears only upon the credibility of the witness. As the Court explained in Napue, "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." 360 U.S. at 269, 79 S. Ct. at 1177.United States v. Barham, 595 F. 2d 231, 241-42 (1979). Thus, inGiglio, the Court held that a new trial is required if the Government has presented false testimony and such "false testimony could in any reasonable likelihood have affected the judgment of the jury." Giglio, 405 U.S. at 154, 92 S. Ct. at 766.
In order to prevail on his claim under Giglio, Smith must demonstrate that "(1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false." Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). Here, Smith has established all three elements. The court has concluded that at the time of Smith's and Burks' arrest on December 10, 2001, three cell phones were seized. It follows that evidence presented by the government to the effect that only two cell phones were seized was false. Moreover, the testimony regarding the number of cell phones was obviously material. As for the third element, while the court is not persuaded that Rushing intentionally elicited false testimony from the witnesses, given that his February 6, 2002 letter is probative of innocence and was in his possession, Rushing may be presumed to have recognized its significance although he may have actually overlooked it. See United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399-2400, 49 L. Ed. 2d 342 (1976) (holding that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist and focusing not on prosecutor's non-disclosure, but on the effect of the non-disclosure on the trial).
In assessing whether false testimony "could in any reasonable likelihood have affected the judgment of the jury,"
[t]he reviewing court must focus on the impact on the jury. A new trial is necessary when there is any reasonable likelihood that disclosure of the truth would have affected the judgment of the jury." [United States v. Anderson, 574 F.2d 1347, 1356 (1978)]. As we explained in Anderson, this "reasonable likelihood" standard of materiality is a "low threshold" standard. Id. at 1355. It is a brother, if not a twin, of the standard ("harmless beyond a reasonable doubt") for determining whether constitutional error can be held harmless. See Chapman v. California, 1967, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705. A strict standard is appropriate because, as the Supreme Court has explained, false testimony cases involve not only "prosecutorial misconduct," but also "a corruption of the truth-seeking function of the trial process," United States v. Agurs, 427 U.S. [97], at 104, 96 S. Ct. at 2397.Barham, 595 F. 2d at 242. Here, the prosecution linked the 205 cell phone directly to the drug conspiracy and then proclaimed, without challenge, that Smith owned cell phone. The theory of defense put up by Smith's attorneys, that Smith had no knowledge of the conspiracy and had done nothing more than show up to help Burks with a broken-down vehicle, was in no way plausible in light of the unchallenged evidence that Smith owned the cell phone that was used to initiate the drug transaction and in light of the absence of proof as to the existence of a third cell phone which was owned by Smith.
That being the case, even were the court not persuaded that defendant had established that three cell phones were actually seized and thus that a Giglio violation occurred, the court would (and does) conclude that Smith received ineffective assistance of counsel at trial and is thus entitled to relief on this additional basis.
Smith further charges that his appellate counsel, Julie Epps, was ineffective because, on direct appeal, she failed to raise the issue of trial counsels' ineffectiveness. By her affidavit, Epps has explained that although she thought the issue related to trial counsels' handling of the cell phones had merit, she concluded that the record was not sufficiently developed on the cell phone issue to present it on appeal. Smith has not been prejudiced by Epps' failure to raise this issue or any other claims of ineffective assistance of counsel on direct appeal.Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003) (holding that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal," and recognizing the advantage of allowing court which tried the case to evaluate trial counsel's effectiveness and any prejudice which may have resulted from counsel's performance).
"Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial." Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 1694 (2003). To demonstrate prejudice, Smith must show that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"Pratt v. Cain, 142 F.3d 226, 232 (5th Cir. 1998) (quotingStrickland, 466 U.S. at 694, 104 S. Ct. 2052). "A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the proceeding." Id.
As the Supreme Court recognized in Strickland:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Strickland 466 U.S. at 690-92, 104 S. Ct. at 2066. Here, it cannot be reasonably contended that trial counsels' handling of the cell phone issue constituted a reasonable trial strategy. Some four months before trial, counsel received the February 6, 2002 letter from Rushing advising that three cell phones had been recovered and evidencing a belief that two of them belonged to Burks and one belonged to Smith. The letter further advised that phone records for the phones had been subpoenaed and that the information received as a result thereof would be provided to counsel when received by the government. However, instead of providing counsel with phone records for three phones, prior to trial, the government's exhibit list referenced only records pertaining to two cell phones, a fact, as the government now points out, should have put defense counsel on notice that it was proceeding at trial on a theory that only two cell phones, and not three, had been recovered. Counsel obviously failed to comprehend this change in theory, and then failed to investigate the issue of ownership of either of the cell phones listed on the government's exhibit list or of the third cell phone mentioned in Rushing's letter. It is apparent that counsels' failure to challenge the government's assertion that Smith owned the 205 cell phone or to show that Smith owned and used a different phone was not part of any trial strategy but rather the product of counsels' inattention and failure to investigate.
The court reaches this conclusion based on its review of the trial record in this case and its consideration of the matters presented by Smith's motion and at the evidentiary hearing. The court has not considered Powell's failure to provide an affidavit on this issue to be an admission as to the matters alleged in the motion.
Had counsel investigated the issue of the ownership of the cell phones listed in the government's exhibit list, they would have determined that their client denied ownership of the 205 phone and that he further could prove that he owned and regularly used a different phone. An investigation by counsel on this issue would have led them to Felicia Smith, who credibly testified that her husband used the 601 cell phone every day and that on the morning of December 10, 2001, he had it clipped to his waistband. Moreover, an investigation of Smith's 601 cell phone records would have shown that Smith received an incoming call around 7:19 a.m. on the morning of December 10, 2001, a fact consistent with his defense, and that the phone was used to dial directory assistance at 9:28 a.m. on December 10, 2001. The 601 cell phone records would also have demonstrated the absence of any call activity in the early morning hours of December 10, 2001, around the time that Burks had been contacted by or had contacted the Mexican supplier. An investigation by trial counsel relating to the 205 cell phone would have shown, as well, that Smith had no relationship to the "Sybil Smith" who was the listed owner of the 205 cell phone.
Furthermore, apart from the issue of ownership of the 205 cell phone, a cursory review of the 316 phone records would have shown a number of calls from Burks to different numbers in Hattiesburg and thus shown that Burks had a number of Hattiesburg contacts and hence countered the government's insinuation that Smith was the sole connection to Hattiesburg. See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) ("A defendant who alleges failure to investigate must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.").
Counsels' failure to investigate not only utterly impeded their ability to maintain a consistent defense at trial, but it further prevented them from challenging, in any meaningful way, the government's inconsistent representations regarding the number of cell phones seized and the lack of any other documentation on the issue of seizure of the cell phones. Such attacks could have been used to undermine the government's witnesses' credibility and simply were not. In sum, in the court's opinion, counsels' deficiencies are too numerous and substantial to be regarded as trial strategy.
The government maintains, though, that Smith can still have no relief because he has not shown he was prejudiced by his counsels' deficiencies. The government reasons that even were the 205 phone not properly attributable to Smith, there is still "ample proof to establish [his] guilt." The court is not persuaded. Given the government's uncontested evidence that Smith owned the phone that was likely used to initiate the drug transaction, the theory urged by counsel, that Smith, like Vargas' father, had just innocently shown up on the scene of a major drug transaction, was entirely implausible. The strongest evidence the government had in this case to establish Smith's involvement was the fact that he owned the phone that set up the transaction. Without that as an established fact, there was an innocent explanation for Smith's presence at the transaction which the jury could easily have credited. Had the jury been presented with the evidence that Smith did not own the 205 cell phone, then this would likely have resulted in a different outcome. See Strickland, 466 U.S. at 694, 104 S. Ct at 2052. Accordingly, the court concludes that Smith has satisfied both prongs of Strickland, and is therefore entitled to a new trial.
Regarding the remaining grounds, the court concludes that they do not warrant relief. In Ground Four, Smith, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), takes the position that his sentence was illegally enhanced two levels for possession of a weapon based on facts not contained in the indictment and not submitted to a jury. That is, he contends that it was error for the court, relying on the presentence investigation report, to have found the facts necessary to support the enhancement and instead, it should have put the issue before the jury. However, as United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the case which established that, in federal courts, any fact, other than a prior conviction, which is used to enhance a defendant's sentence must be proved to a jury by proof beyond a reasonable doubt, does not apply retroactively to § 2255 motions, relief may not be had on this ground. United States v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005).
By Ground Five, defendant urges that his "sentence violates established rights and laws of this circuit in violation ofUnited States v. Cooper, 274 F. 3d 230 (2001) [(district court's factual finding with regard to sentencing consideration is determined by a clearly erroneous standard)]." Although it is not altogether clear from the motion, it appears that Smith takes issue with the court's findings that the entire 11.5 kilograms of cocaine found in Vargas' rented car were within the drug conspiracy. According to Smith, the court's factual finding in this regard is "clearly erroneous" and warrants reversal. As the government points out, the argument set out by defendant is not of constitutional import and does not afford a basis for relief on collateral review. Hill v. United States, 368 U.S. 424, 428-29, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962) (Section 2255 sounds only in constitutional or jurisdictional errors).
Grounds Six, Seven and Eight urged by Smith are merely reiterations of arguments that were made on his direct appeal and are, for this reason, barred on collateral review. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (holding that issues raised and disposed of in a previous appeal from an original conviction are not considered in § 2255 motions).
Implicit in the conclusion that the remaining grounds do not warrant relief, is the court's determination that Smith's motion to amend his § 2255 motion to add a claim based on the post-trial destruction of evidence should be denied as moot. See Ferguson v. Roper, 400 F.3d 635 (8th Cir. 2005) (concluding that [Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)], does not apply to claims that evidence was lost or destroyed after trial).
Based on the foregoing, it is ordered that defendant's motion for relief pursuant to § 2255 is granted and defendant will be granted a new trial.
It is further ordered that defendant's motion for production of documents is denied, as the court's in camera inspection of the agents' reports did not reveal any information bearing on the cell phone issue.
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED.