Opinion
No. 00 Civ. 868 (TPG) and No. 94 Cr. 417 (TPG)
January 7, 2003
OPINION
This is a motion under 28 U.S.C. § 2255 to vacate a conviction and sentence. The Government has answered. The court finds that the motion is without merit. It is denied and dismissed.
Piggott was tried in 1995 along with several other defendants in connection with a nationwide drug trafficking and money laundering ring. Piggott was convicted on numerous counts relating to both narcotics and money laundering. He was also convicted of operating a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. He was sentenced to life imprisonment on the continuing enterprise count, 360 months on each of the narcotics counts and 240 months on each of the money laundering counts, all sentences to be served concurrently.
Piggott appealed. In addition to his attorneys brief, he filed a briefpro se. On December 10, 1997 the Court of Appeals affirmed Piggott's conviction and sentence, filing a summary order dealing with most of the points and a decision dealing with the others. The decision is reported at 141 F.3d 394. Certiorari was denied by the Supreme Court on October 5, 1998.
The § 2255 motion is dated September 22, 1999 and was filed on October 4, 1999 in the Pro Se Clerks office. For some reason it was not docketed with the Clerk of the Court until February 7, 2000. Piggott filed an addendum to his petition dated February 14, 2000. He filed a second addendum dated May 16, 2000 and a third addendum dated June 24, 2000. He filed a Motion for Judicial Notice dated August 28, 2000, which reiterates the point made in the addendum of May 16, 2000 and makes some additional arguments on the same point. There is a fourth addendum dated January 19, 2001 and a second Motion for Judicial Notice dated February 18, 2002. Piggott filed a third Motion for Judicial Notice dated May 22, 2002.
The original motion listed 13 grounds in the AO 243 Form provided for § 2255 motions (hereafter "the Form"). The Form was accompanied by a brief of 93 pages with exhibits (hereafter "the Brief").
Grounds of the Original Motion
The listing below attempts to coordinate the grounds specified in the Form with the grounds as presented in the Brief. The grounds were designated in the Form with numbers and in the Brief with letters.
Ground 1
Ground 1 in the Form is discussed in Ground A of the Brief. It asserts that trial counsel was ineffective in failing to object to erroneous jury instructions. The alleged improper jury instructions were: (1) the court allowed aggregation of substantive narcotics offenses to reach the quantity of narcotics required for CCE conviction; and (2) the court failed to use the proper wording in various instructions regarding criminal state of mind.
Ground 2
Ground 2 in the Form asserts that counsel was ineffective in failing to object to jury instructions which amended the indictment. Ground 2 in the Form is discussed in Grounds B and C of the Brief.
Ground B of the Brief asserts that counsel failed to object to an instruction that the jury need not find all items alleged in the indictment.
Ground C of the Brief repeats the claim that trial counsel improperly failed to object to the court's instructions on criminal state of mind, and asserts the following additional point. The indictment failed to allege that there was a nexus between the money laundering transactions and interstate or foreign commerce, and thus the court impermissibly amended the indictment by instructing the jury on this point. Counsel failed to object.
Grounds 3 and 4
Grounds 3 and 4 in the Form are discussed in Ground D of the Brief and assert that the Drug Enforcement Administration had no authority to take action in this case.
Ground 5
Ground 5 in the Form asserts generally that counsel was ineffective in failing to propose or except with regard to the jury instruction on the CCE count. The specific points regarding Ground 5 are stated in Grounds 6, 7 and 8.
Ground 6
Ground 6 in the Form is discussed in Ground E of the Brief and asserts the following claim. Only Title 21 offenses can be predicate offenses in connection with the CCE charge, and the court allowed the jury to find Piggott guilty of certain predicate offenses on the basis of aiding and abetting. Since the aiding and abetting statute is in Title 18, aiding and abetting could not be used as a basis for CCE conviction.
Ground 7
Ground 7 in the Form is discussed in Ground E of the Brief, asserting that a finding by the jury of conspiracy was necessary for the CCE conviction, and that counsel failed to object to the fact that the judge gave no such instruction to the jury.
Ground 8
Ground 8 is also discussed in Ground E of the brief. This is a repetition of the claim about improper aggregation in connection with the CCE count presented as part of Ground 1, as described earlier.
Ground 9
Ground 9 in the Form reiterates certain earlier points. It is not discussed separately in the Brief.
Ground 10
Ground 10 in the Form is discussed in Ground F of the Brief. The claim is that there was a failure to comply with required procedures in connection with the Virginia wiretap.
Ground 11
Ground 11 in the Form is discussed in Ground I of the Brief. The claim is that 21 U.S.C. § 841, 846 and 848 "are not positive law" and do not "reach petitioner's conduct as charged."
Ground 12
Ground 12 in the Form is discussed in Ground H of the Brief. The contention is that the DEA had no standing to bring the charges in this case because the alleged violation took place on "State lands," and the DEA had not acquired jurisdiction under the procedures contemplated by 40 U.S.C. § 255.
Ground 13
Ground 13 in the Form is discussed in Ground G of the Brief and asserts that 21 U.S.C. § 841 and 846 are "commercial unpromulgated statutes."
Additional Filings
The February 2000 Addendum reiterates the interstate commerce point referred to earlier. It also makes the following additional arguments. (1) The application for one of the wiretaps referred to 18 U.S.C. § 1956 and 21 U.S.C. § 821, 841, 843 and 846, but not 21 U.S.C. § 848. It was improper to use the evidence for this wiretap in connection with the CCE count, 21 U.S.C. § 848 being the CCE statute. (2) The wiretap authorization signed by Judge Stanton was obtained through misconduct and fraud because the order of the Attorney General referred to in the application had expired — i.e., the order with the number described in the application had expired.
The June 2000 Addendum asserts that, although the crime of aiding and abetting was referred to in the indictment, there was a failure to provide a sufficient pleading of it.
The August 2000 Motion for Judicial Notice asserts that the indictment was filed when the court was not in session.
The January 2001 addendum makes the claim that the sentence on the CCE charge violated the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
The February 2002 Motion for Judicial Notice is a repetition of certain earlier points.
The May 2002 Motion for Judicial Notice asserts that appellate counsel was inadequate in failing to raise inadequacy of trial counsel. There is also further discussion of the Apprendi point.
DISCUSSION
The court is mindful of the severity of the life imprisonment penalty imposed upon Piggott. However, the trial revealed that Piggott was one of the leaders in a massive narcotics operation that involved wide distribution of large quantities of cocaine and heroin and the laundering of the monetary proceeds of those transactions. The proof of guilt was conclusive beyond the slightest doubt. Piggott was afforded a fair trial and was represented by an attorney appointed under the Criminal Justice Act, who struggled as effectively as possible to defend Piggott. Unfortunately, he could not change the facts. Piggott sought to play a role in the proceedings on his own behalf, to supplement the representation of his lawyer. This was allowed within the bounds of good order. Particularly, Piggott made numerous pro se applications following the trial. On appeal, Piggott filed a pro se brief, in addition to having the case briefed by his lawyer.
Turning to the § 2255 motion, the cases hold that in order to prevail on such a motion the moving party must demonstrate a constitutional error or an error of law or fact that constitutes a fundamental defect resulting in a complete miscarriage of justice.Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996). Such a motion is not a substitute for direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998). A defendant normally cannot use a § 2255 motion to litigate issues that could have been raised on direct appeal but were not. Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998). An exception is made where there is a showing of either (1) cause for failing to raise the issue, and prejudice resulting therefrom, or (2) actual innocence. Rosario, 164 F.3d at 732. It is sufficient, for the present purposes, to say that cause and prejudice refer to circumstances beyond the mere omission of points that might have received consideration on appeal.
Of course, issues that are actually raised on appeal and disposed of by the appellate court cannot be relitigated on a § 2255 motion.Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995).
The court will now discuss the points made in the original § 2255 motion filed in October 1999.
Ground 1
Piggott complains that his trial counsel failed to object to the court's charge regarding the continuing criminal enterprise count. Under 21 U.S.C. § 848(b)(2)(A), the Government needed to prove that one of the offenses on which the charge was predicated involved in excess of 150 kilograms of cocaine. The court instructed the jury that it could aggregate several predicate offenses to reach this quantity requirement. Piggott's attorney did not object to this instruction.
This point was raised on appeal. The Court of Appeals held that the trial court's instruction about aggregation was improper, but not reversible error. The reason why the error was not reversible was that, although none of the substantive narcotics offenses involved in excess of 150 kilograms of cocaine, the jury found that Piggott was guilty of conspiracy, which clearly involved 150 kilograms of cocaine or more, and that the crime of conspiracy satisfied the requirement that there be a finding of an offense involving that quantity of cocaine. Thus Piggott's argument about the continuing criminal enterprise charge was rejected by the Court of Appeals on direct appeal, and cannot now be the basis for a claim of ineffective counsel in his § 2255 motion.
In connection with Ground 1, Piggott also asserts that the court failed to instruct the jury sufficiently on the subject of the criminal state of mind and that his lawyer did not make a proper objection. Piggott complains that the court did not use the phrase "unlawfully, knowingly and intentionally" in connection with the continuing criminal enterprise charge, and did not use the word "willfully" in connection with the money laundering counts. These are points which could have been raised on direct appeal, but were not. Under the authorities cited earlier, these arguments cannot be the basis for § 2255 relief. However, the simple answer on the merits is that the court, while not using the precise formulas advocated by Piggott, gave unmistakable instructions regarding criminal knowledge and intent based precisely upon the relevant statutes. There is no basis for finding counsel ineffective in connection with this subject.
Ground 2
With respect to the substantive narcotics counts, the court instructed the jury that the Government did not need to prove the quantity of narcotics alleged in the indictment and did not need to prove that the drugs were of the exact type as alleged in the indictment. Piggott concedes that these instructions were correct. But Piggott objects to the fact that the court went on to say that the jury should understand that "the Government need not prove everything in the indictment." Piggott asserts that this amounted to an amendment of the indictment. The argument was waived by not being presented on direct appeal, but, in any event, there is no substance to the claim. The court did not give the jury freewheeling authority to disregard the charges in the indictment. The court provided the jury with complete descriptions of what the jury was required to find in order to convict Piggott on the various offenses, and these descriptions were based on the indictment and were correct in law. Of course, not every detailed allegation in an indictment needs to be proved.
Piggott objects that certain language used in the court's instructions relaxed the Government's burden of proof. This contention is without the slightest substance, and need not be discussed in detail.
Also, in connection with Ground 2, Piggott repeats his claim regarding the instruction on criminal state of mind. This matter has already been dealt with in the discussion above.
Another point made in Ground 2 is that the indictment failed to allege that there was a nexus between the money laundering transactions and interstate or foreign commerce, and that the court impermissibly amended the indictment by instructing the jury that there must be proof of such nexus. Piggott raised precisely the same argument in his direct appeal. The Court of Appeals held that the allegations in the indictment were sufficient to imply the necessary effect on interstate or foreign commerce.
There is no basis in Ground 2 for finding ineffective assistance of counsel.
Ground 3 and 4
These contentions are invalid on their face.
Ground 5
The specific points relating to Ground 5 are covered in Grounds 6, 7 and 8.
Ground 6 and 7
These points cannot be raised on the present motion because they could have been presented on appeal and were not. In any event, the contentions are without merit.
Ground 8
This is a repetition of the claim about improper aggregation asserted in Ground 1. No additional discussion is necessary.
Ground 9
This is a repetition of Ground 2. No additional discussion is necessary.
Ground 10
Piggott contends that his counsel failed to prepare adequately for trial. Specifically, Piggott complains about the fact that his counsel did not object to the Government's failure to furnish the defendants with the Virginia wiretap application and order at least 10 days before the commencement of trial, as required by 18 U.S.C. § 2518(9). The point about the 10 day requirement was raised on direct appeal. It is true that the requirement was not literally complied with, and the Court of Appeals noted that Piggott's counsel did not object. However, the Court found no ground for reversal. The Government, well in advance of trial, notified the defendants that it intended to introduce evidence from the Virginia wiretap and offered to provide the defendants with the application and order. This circumstance, together with the fact that the evidence supporting Piggott's conviction was overwhelming, caused the Court of Appeals to hold that reversal of Piggott's conviction on this ground "would be highly inappropriate." There is no basis for § 2255 relief on the ground of inadequate counsel.
Grounds 11-13
These contentions are meritless on their face. In any event, Grounds 12 and 13 were raised by Piggott in his pro se appeal brief. They were not specifically discussed by the Court of Appeals, but were included in the "other arguments" found to be without merit.
Subsequent Filings
The court will now discuss the points made in the various subsequent filings. In connection with these filings, there is an issue about timing. The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2255, imposes a one-year limitation on § 2255 motions. Since certiorari was denied in Piggott's case on October 5, 1998, any motion filed after October 5, 1999 is barred. However, Piggott's subsequent filings are not barred if they can be considered amendments that "relate back" to the date of the original motion. See Fed.R.Civ.P. 15(c). The Government contends that the subsequent filings do not relate back. However, the court considers that they do.
The first claim made in the February 2000 addendum is that a wiretap was authorized on the basis of an application that referred to 18 U.S.C. § 1956 and 21 U.S.C. § 821, 841, 843 and 846, but not 21 U.S.C. § 848. The latter section, as already described, relates to a continuing criminal enterprise. 18 U.S.C. § 2517(5) provides that when an investigative officer intercepts communications relating to offenses other than those specified in the authorizing order, such communications can be used as evidence only when a subsequent application is promptly made to a judge and such judge finds that the contents were intercepted in accordance with the statute. Piggott contends that the evidence from the wiretap in question could not be used against him on the continuing criminal enterprise charge because § 848 was not mentioned in the application and there was no subsequent application to add it. This is an issue that could have been raised on direct appeal but was not, and is therefore waived. However, the claim has no merit. The § 848 count is hardly an offense "other than those specified in the order" — i.e., narcotics offenses and money laundering. Piggott's conviction on the continuing criminal enterprise charge was based upon his narcotics activity. To put it simply, the "enterprise" was Piggott's narcotics enterprise.
In the February 2000 addendum, Piggott also claims that the New York wiretap authorization signed by Judge Stanton was obtained through misconduct and fraud because the order of the Attorney General authorizing the application was given the wrong number in the papers presented to Judge Stanton. This was obviously a typographical error. There was an order of the Attorney General in effect. The issue raised by Piggott has no substance. In any event, it was an issue that Piggott presented to the Court of Appeals on his direct appeal in his pro se brief. The Court of Appeals did not address this point specifically, but included it in the general rejection of "the defendant's other arguments."
The claims raised in the June 2000 addendum and the August 2000 Motion for Judicial Notice could have been asserted on direct appeal, but were not. They cannot be raised in this § 2255 motion. In any event, they are entirely without merit.
The January 2001 addendum asserts that the life sentence on the CCE charge violated the Apprendi decision of the Supreme Court. The sentence in the Piggott case was imposed in 1996, and the Apprendi decision came down in 2000. Although the Second Circuit has not yet ruled on the question, the federal courts that have dealt with the issue have ruled that Apprendi cannot be applied retroactively by way of a collateral review of a sentence. See McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001); Rivera v. United States, 136 F. Supp.2d 263, 264 (S.D.N.Y. 2001). In any event, Piggott's claim that the jury did not make the necessary findings under the CCE statute is without merit. The jury did so.
The February 2002 Motion for Judicial Notice is a repetition of earlier points and requires no further discussion.
The May 2002 Motion for Judicial Notice, in addition to further discussion of Apprendi, asserts that appellate counsel was inadequate in failing to raise inadequacy of trial counsel. There is no basis for holding trial counsel inadequate on the present motion. The same is true for appellate counsel.
CONCLUSION
For the foregoing reasons, the motion of James Piggott under 28 U.S.C. § 2255 is denied and dismissed.