Opinion
C/A No.: 3:01-2047-17 CR No.: 3:96-122
December 4, 2001
ORDER
The petitioner, Don Prince, initiated this action pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. This represents petitioner's third post-verdict attempt to challenge his conviction for murder-for-hire. Several of the issues raised in the instant petition have already been raised on direct appeal and rejected by the United States Court of Appeals for the Fourth Circuit. As to the remaining claims, the court finds no genuine issue of material fact and agrees with the government that summary judgment is appropriate.
PROCEDURAL HISTORY
In 1996, a four-count indictment was filed charging brothers Roger Prince ("Bill") and Don Prince ("Don") with violations of 18 U.S.C. § 1958(a), the murder-for-hire statute. Counts 1 and 2 charged Bill and Don with conspiracy to travel and to cause someone else to travel in interstate commerce with intent to murder Frederick "Peaches" Andrews ("Andrews") and Charlie Dorn Smith ("Smith"), respectively, in exchange for money. Count charged that Don traveled in interstate commerce from North Carolina to South Carolina on December 14, 1995, with intent that the murder of Andrews be committed for $5,000. Count 4 alleged that Bill caused another to travel in interstate commerce with the intent that a murder be committed for the payment of $5,000.
Both defendants were tried before a jury in July, 1996. The jury found both defendants guilty on all counts. Don was thereafter sentenced to 120 months incarceration on Count 1; 91 months on Count 2 (these two sentences to am consecutively); and 91 months on Count 3 (to run concurrently). Don previously took an unsuccessful appeal to the Fourth Circuit Court of Appeals, where he raised numerous alleged errors at his trial. The Fourth Circuit affirmed the sentence and conviction, observing that the evidence against Don was overwhelming. Don thereafter unsuccessfully sought certiorari from the United States Supreme Court.
Don subsequently filed a motion for a new trial which was denied by this court.
FACTUAL HISTORY
In 1992, Bill Prince was convicted in South Carolina state court for conspiracy and solicitation in the murder of Bill's foster father, Billy Graham ("Graham"). Bill and Smith hired a man to kill Graham because they owed Graham money, and because Bill had a life insurance policy on Graham. Andrews testified against Bill in the Graham murder trial. Smith and Andrews were the two proposed victims in the murder-for-hire convictions of Bill and Don that form the basis of Don's instant petition.
Bill remained free on bond during the pendency of his appeal of his conviction of Graham's murder and became a fugitive when his appeal was rejected. Bill remained a fugitive from 1994 until 1995. During this time, Don helped Bill evade law enforcement, ran Bill's business, and arranged medical appointments. When Don's ex-girlfriend learned of Graham's murder and Don's efforts to keep Bill out of jail, Don threatened her to "keep her quiet"
After Bill's arrest, Don traveled from North Carolina to South Carolina to visit Bill in prison. He also attempted to secure affidavits in an effort to obtain a new trial for Bill. For a year, the brothers tried to get an affidavit from Andrews, who had testified against Bill in the Graham murder trial Don and Bill then hatched a plot to kill Andrews and Smith.
In the fall of 1995, Scott Sherpinskas ("Sherpinskas"), an FBI informant who was an inmate with Bill, contacted authorities regarding Bill and Don's desire to hire someone to kill Smith and Andrews. Sherpinskas testified at trial that he and Bill began discussing the contract murders in October, 1995. Bill became enraged when Bill's son, DeWitt, filed suit to gain control of Bill's business, and Bill believed Smith was behind it. Bill decided to kill his son, as well as Andrews and Smith, but then decided to merely frame DeWitt in a drug offense.
Bill arranged the murders with Sherpinskas, who was acting on FBI instructions. Bill assured Sherpinskas that Don would travel from North Carolina to pay Sherpinskas in South Carolina. If Sherpinskas could not find a hit man, Bill told Sherpinskas Don would find someone else.
George Thomas Young ("Young") testified that while he and Bill were imprisoned, they discussed plans to kill Smith and Andrews. Neither Sherpinskas nor Young knew of Bill's conversations with the other man. Young testified that Bill planned for Young to kill Smith and Andrews after Young's release from prison on December 1, 1995, in exchange for money from Don. Bill gave Young maps to Smith's girlfriend's house and to Andrews' house. He explained that Don would help Young find the houses and would pay Young for the murders.
After Young's release, Don traveled from North Carolina to meet with Young and showed Young the two residences. Don paid Young $2,000 and provided him with calling cards to call Don. In the first week of Young's release, he frequently called Don, and Don called Young at least once. On December 7, 1995, before Don knew of the "murder" of Andrews, 1 Don met with Young to discuss the murder plots. Young's wife and a neighbor corroborated that Young met with Don and had a map to Smith's girlfriend's house. Evidence showed Young could accurately describe both houses.
On December 8, 1995, Sherpinskas pretended he had arranged Andrews' murder. Bill negotiated the pay-off for Andrews' murder and the down payment for Smith's murder and assured Sherpinskas that Don would pay Sherpinskas' hit man. Bill and Sherpinskas arranged the code word "Turbeville" for Don to use, so that the hit man could recognize Don.
Don visited Bill in prison on December 14, 1995. Shortly after, Don traveled to a rest area off Interstate 95 to pay the hit man. At the pre-arranged location, Don asked the hit man Sherpinskas showed Don a photograph that depicted Andrews' "dead body" on December 8, 1995. (who was actually an undercover agent) if he knew the way to Turbeville. Don and the hit man discussed the pay-off, and Don told the man to get rid of the envelopes that contained the $5,000 pay-off. The hit man asked if Don had seen the article reporting Andrews' disappearance, and Don said he had been called about it earlier that morning. The two men discussed "doing Smith," but Don said to hold off on that.
Don was arrested after he paid the hit man for Andrews' murder. Upon arrest, Don stated with disgust: "The things you would do for your brother." Don testified at trial and claimed he hired Young to find stolen equipment and never knew of any murder plot. He testified he believed he was paying the hit man for Andrews' affidavit, despite his knowledge that Andrews was missing.
As noted previously, Don and Bill both appealed their conviction to the United States Court of Appeals for the Fourth Circuit raising eleven issues. The Fourth Circuit rejected all eleven grounds of error, addressing some on the merits and summarily affirming as to others. In so doing, the Fourth Circuit noted, on more than one occasion, that the evidence against the defendants was overwhelming. Among the issues raised and rejected on appeal, Don argued that this court erred in (1) denying a motion to sever the trials, (2) instructing the jury that they could not find one defendant guilty and the other defendant not guilty of the two-person conspiracy, and (3) denying a motion to consolidate Counts 1 and 2.
PETITIONER'S CONTENTIONS
In the petition presently before the court, Don alleges that his trial attorney, Jack Swerling, rendered constitutionally ineffective assistance. He contends Swerling was deficient in:
(1) Failing to move for a severance on the grounds that Bill (Don's co-defendant) would give favorable testimony in a separate trial;
(2) Failing to inform the court that he (Swerling) had previously represented Bill;
(3) Failing to object to the court's charge on inconsistent verdicts; and
(4) The cumulative effect of Swerling's errors.
Don also argues that his rights under the Double Jeopardy Clause of the Fifth Amendment were violated when he was sentenced for two counts of conspiracy to commit murder-for-hire and that U.S.S.G. § 1B1.2(d) violates the double jeopardy provision.
The court has carefully reviewed the record in this matter, the earlier appeal, and the alleged grounds of error. Having done so, the court agrees with the government that an evidentiary hearing is not necessary and that summary judgment is appropriate as to all claims.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
(A) The Severance Issue
Don argues that Swerling was ineffective by failing to move for a severance on the ground that Bill (Don's brother and co-defendant) might provide favorable testimony in a separate trial. It should be noted that Swerling did move for a severance on numerous occasions in this case. He first made such a motion on January 24, 1996, prior to trial. Thereafter, he moved for a severance (1) when the court agreed to permit evidence of the Graham murder, Bill's fugitive status, Don's assistance, and insurance policies on Smith and Graham; (2) when this court allowed into evidence testimony regarding a racial remark in a letter by Bill; (3) when this court allowed a letter from Bill to his wife in evidence, in which Bill said he would have done the same thing for Don; (4) when the court admitted into evidence a letter by Bill regarding Smith, Graham, and Bill's son; and (5) when the court admitted Bill's threat to Young. The court denied a severance each time the motion was made and the Fourth Circuit affirmed this court's rulings.
Don now argues that if the motion to sever had been properly styled as one based upon the need for his co-defendant's testimony, it would have been granted, and that Swerling was constitutionally ineffective for failing to do so.
When the motion to sever is based on prospective co-defendant testimony, the defendant must show: (1) a bona fide need for the co-defendant's testimony; (2) the likelihood the co-defendant would waive his Fifth Amendment privilege and testify at a second trial; (3) the substance of the co-defendant's testimony; and (4) the exculpatory nature and effect of such testimony. United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).
When it became apparent that Bill's proposed testimony was a central aspect of this motion, the court allowed, over the government's strenuous objection, the deposition of Bill to be taken. The court has received and reviewed the transcript of Bill's deposition. It appears that it is now Bill's position that he wished to testify in his brother's behalf; that he would have completely exonerated his brother as having nothing to do with the murder-for-hire scheme; and that he would have taken this position regardless of whether his case or Don's case was tried first. Rather significantly however, Bill also testified that if called to testify for his brother in a separate trial, he would have also attempted to exonerate himself. In other words, Bill was not willing to accept blame for the effort to have the witnesses killed, while at the same time stating that his brother had nothing to do with the plan. Rather, it was, and remains, Bill's position that neither he nor his brother had anything to do with the murder-for-hire scheme. This position is borne out by the fact that Bill continues to litigate his own underlying conviction.
Even if Don were able to satisfy the first three prongs of the Reavis test, his claim must fail on the fourth element. He has failed to show that the nature and effect of such testimony would be to exculpate him. Thus, Swerling cannot be faulted for failing to move for severance on this ground.
As the government observes in most compelling fashion in its memorandum, Swerling had an abundance of reasons not to move for a separate trial. To begin with, Bill already had a previous conviction for murder and, as noted above, if called to testify in Don's case, he would not only have attempted to exonerate Don, but would have attempted to exonerate himself as well. The evidence, both direct and circumstantial, against Bill was substantial.
According to Swerling's affidavit, he reasoned that insisting on a separate trial and calling on Bill to testify in an attempt to exonerate his brother would have been counterproductive. Rather, Swerling reasoned that it would be better to be tried together so that a contrast could be drawn between Don and Bill (who had a prior murder conviction and against whom the evidence was much more compelling). Although this strategy did not work at trial, and the jury convicted both defendants, the court cannot conclude that Swerling was constitutionally ineffective in seeking to secure a severance on the ground that Bill's testimony would have helped.
(B) The Previous Representation
Don next contends that Swerling was ineffective in failing to inform the court that he had previously represented Bill Prince. It appears from the record that Swerling represented Bill previously on a supplemental petition for re-hearing and a supplemental motion for a new trial in connection with his state court conviction. As to this representation, Bill acknowledged that "[a]t no time did we ever discuss any underlying facts of the case or any information which I would deem privileged or of a confidential nature." See undated affidavit of Bill Prince attached to Jack Swerling affidavit (Ex. 9 attached to government's memorandum). Bill continued "I see absolutely no reason why Mr. Swerling cannot represent my brother . . . in the current case . . . as I perceive no conflict of interest arising from Mr. Swerling's prior representation of me." Id.
Even more importantly, Don was one of the individuals who paid Swerling the retainer to represent Bill with respect to the petition and motion. Don, therefore, had full knowledge that Bill had previously provided limited representation to Bill.
In this aspect of his motion, Don alleges that Swerling had a three-fold conflict of interest. He first argues that Swerling's alleged conflict of interest prevented him from calling Bill as a witness at trial. As the government observes, however, Bill made his own decision to exercise his Fifth Amendment right and to not testify at trial. This was confirmed to this court in a colloquy the court conducted during the trial.
Secondly, Don alleges that Swerling should have removed himself from the case so that he (Swerling) could act as a witness. In connection with his earlier representation of Bill, Swerling received $5,000 (as a retainer for legal fees) at a Waffle House on Two Notch Road in Columbia. Thus, the argument goes, had Swerling not been the attorney of record, he could have testified as to this method of payment, thereby providing circumstantial evidence that the payment at a rest stop on Interstate 95 for the alleged Graham murder was innocuous.
The court is not persuaded by this argument. As the government observes in its memorandum, although cash exchanged hands at both the Waffle House and the rest stop, the similarities ended there. Bill was not a fugitive or in jail at the time Swerling was paid in cash. No code words were used during the exchange with Swerling. Moreover, had Don wished to have this evidence presented, there were alternative ways of proving it, such as a stipulation by the government or testimony by Swerling's office manager.
As to his third alleged conflict. Don contends that Swerling failed to inform the court that he had previously represented Bill because he did not want to be removed from the case and thereby lose his retainer. The court agrees with the government that nothing in the record supports this conclusory and inflammatory allegation.
(C) The Jury Charge on Inconsistent Verdicts
The government charged that the brothers Bill and Don were engaged in a two-person conspiracy to procure the murder of two witnesses. During deliberations, the jury submitted a question asking whether it would be possible to convict one of the brothers for conspiracy and to acquit the other. The court responded, over the objection of the defendants, that such was not possible, in view of the fact that the indictment charged that Bill and Don, and they alone, were the members of the alleged conspiracy. On appeal, Don charged that the court's response to the question was error, and the Fourth Circuit rejected this contention.
Don once again attempts to raise this issue, although under an ineffective assistance of counsel claim. An attempt to resurrect an issue already decided on appeal under the guise of collateral review must be rejected.
Even if the court were to consider the claim, the court agrees with the government that the claim is meritless. In United States v. Thomas, 900 F.2d 37 (4th Cir. 1990), the Fourth Circuit refused to disturb a verdict where the jury acquitted one co-conspirator and convicted the other in an indictment that charged a two-person conspiracy. Seizing upon this holding, Don argues that the court's response to the jury question was incorrect. The court's response was not incorrect. Thomas merely held that an inconsistent verdict must be allowed to stand as to the defendant who was convicted. This does not mean that the court is bound to instruct the jury that inconsistent verdicts are permissible. The court discerns no error as to this claim.
(D) The Cumulative Effect of Swerling's Errors
Citing the dissenting opinion in Hoots v. Allsbrook, 785 F.2d 1214, 1223 (4th Cir. 1986) (Ervin, J., dissenting), Don contends that the cumulative effect of counsel's alleged errors deprived him of effective assistance. The actual holding in Hoots was the opposite. Don's argument is further foreclosed by the Fourth Circuit's decision in Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998), which rejected the application of a cumulative error approach in federal collateral proceedings.
II. THE DOUBLE JEOPARDY CLAIMS
At trial and on appeal, Don argued that Counts 1 and 2 were actually parts of a single conspiracy to murder two people and should be consolidated. This court denied the motions and the Fourth Circuit affirmed the conviction on both counts in the face of the double jeopardy argument. Again, issues that had been decided on direct appeal may not be ligated under Section 2255.As to the double jeopardy aspect of the sentencing procedure, the government has conceded that both Counts 1 and 2 should have been consolidated for sentencing because they presented one conspiracy to kill two victims. However, as the government observes, the resulting error was harmless. Don's guideline sentencing range was 188 to 235 months. The sentencing range thus exceeded the ten-year statutory maximum for each offense. The Sentencing Guidelines Manual, under U.S.S.G. § 5G1.2(d) directs the sentencing court to impose a consecutive sentence when the sentence for the count with the highest statutory maximum is less than the total punishment ( i.e., the sentence the court has chosen within the guidelines range). In light of this guideline, this court was required to sentence Don to at least one consecutive sentence in order to reach the total punishment mandated by his guideline range. This court made clear its intention to sentence Don to 211 months of incarceration. This court could have given Don the same 211 months sentence by sentencing him to 120 months on Count 1, and 91 months consecutive as to Count 3, instead of 91 months as to Count 2. This court clearly stated its target sentence. Therefore, the fact that the court reached its target by a consecutive sentence as to Count 2 (instead of a consecutive sentence as to Count 3) is a harmless technicality.
Finally, Don appears to argue that U.S.S.G. § 1B1.2(d) violates the Double Jeopardy Clause and is, therefore, unconstitutional. This guideline provides that "a conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate conspiracy for each offense that the defendant i conspired to commit." This section was not applied to Don's sentence, and this issue is therefore not properly before this court. Even if the issue were properly before this court, it could not succeed. See United States v. Malpeso, 115 F.3d 155, 167-68 (2nd Cir. 1997).
For all the foregoing reasons, the court has determined that an evidentiary hearing is not necessary and that Don Prince is entitled to no relief. Accordingly, the motion by the government for summary judgment is granted and this action is hereby dismissed with prejudice. The government has moved to strike Prince's polygraph report. The motion is granted. See U.S. v. Herrera, 832 F.2d 832 (4th Cir. 1987).
IT IS SO ORDERED.