Opinion
No. CR96-4023-MWB
August 31, 2000
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
I. INTRODUCTION AND FACTUAL BACKGROUND
In a three count second superseding indictment returned on September 19, 1996, defendant Lawrence Stanley Held, along with Teresa Ann Carmen, Jose Pedro Mateos-Armijo, Leon Salomon, Daniel Ramirez-Jaimes, Jose Martin Leon, and James Harvey Hayes, was charged with conspiring to distribute methamphetamine and cocaine, in violation of 18 U.S.C. § 846, and possessing methamphetamine with intent to distribute, in violation of 18 U.S.C. § 841(a)(1).
Defendant Held was only charged under two of the three counts contained in the second superceding indictment.
Trial commenced on September 30, 1996, with defendant Held being represented by counsel Donald Sylvester. On October 2, 1996, defendant Held was convicted on both counts of the second superceding indictment. After the trial, defendant Held's attorney filed an application to withdraw as counsel. The application was granted and the Federal Public Defender was appointed to represent defendant Held.
On March 3, 1997, defendant Held was sentenced. Assistant Public Defender Kevin C. Techau represented defendant Held at sentencing. The parties stipulated that defendant Held was accountable for more than 300 grams and less than 1,000 grams of actual d-methamphetamine, which resulted in a base offense level of 34 for defendant Held. Defendant Held received a four-level minimal role reduction and a two-level upward adjustment for obstruction of justice. With these adjustments, defendant Held's total offense level was calculated to be a level 32. Although defendant Held's criminal history placed him in criminal history category 4, the parties agreed that defendant Held's criminal history was overrepresented and agreed that a criminal history category 2 assessment was appropriate for defendant Held. With a total offense level of 32 and a criminal history category 2, the sentencing guidelines called for a sentencing range of 135 to 165 months. The court sentenced defendant Held to the minimum sentence permitted under the sentencing guidelines, 135 months on each charge, to be served concurrently and two concurrent five year terms of supervised release. Defendant Held appealed his sentence.
On appeal, counsel Techau filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), on defendant Held's behalf, stating that defendant Held contended there was insufficient evidence upon which to convict him of the charges. Counsel Techau then sought leave to withdraw, which was granted. The Eighth Circuit Court of Appeals then allowed defendant Held to file a pro se supplemental brief in support of his argument that there was insufficient evidence upon which to convict him of the charges. Defendant Held also argued that a new trial should be granted because of errors regarding the drug quantity calculation, the evidence regarding the type of methamphetamine involved in the case, and the admissibility of evidence seized as a result of a search at United Parcel Service. Defendant Held further contended that his trial and appellate counsel were ineffective. The Eighth Circuit Court of Appeals denied defendant Held's appeal on April 16, 1998.
Pursuant to 28 U.S.C. § 2255, defendant Held then filed his pro se Motion To Vacate, Set Aside Or Correct Sentence which is presently before the court. Defendant Held raises five separate claims of ineffective assistance of counsel in his § 2255 motion: First, that his trial counsel was ineffective for failing to request a new trial based on the admission of Government Exhibit #9, a business card with notations on it evidencing a drug transaction; second, that his trial counsel was ineffective for failing to request a limiting instruction with regard to the admission of Government Exhibit #9; third, that his counsel at the time of sentencing was ineffective for failing to object to the obstruction of justice enhancement; fourth, that his counsel at the time of sentencing was ineffective for failing to request a downward departure based on aberrant behavior; and, fifth, that his appellate counsel was ineffective for failing to appeal the admission of Government Exhibit #9. The court appointed counsel for defendant Held and set a briefing schedule.
An evidentiary hearing on defendant Held's motion was held on July 28, 2000. The United States offered no testimony. Defendant Held offered the testimony of himself. The United States was represented by Assistant United States Attorney Janet L. Papenthien. Defendant Held was represented by Stanley E. Munger and Jay E. Denne of Munger Reinschmidt, Sioux City, Iowa.
II. LEGAL ANALYSIS A. Standards Applicable To § 2255 Motions
The Eighth Circuit Court of Appeals has described 28 U.S.C. § 2255 as "the statutory analogue of habeas corpus for persons in federal custody." Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987). In Poor Thunder, the court explained the purpose of the statute:
[Section 2255] provides a remedy in the sentencing court (as opposed to habeas corpus, which lies in the district of confinement) for claims that a sentence was `imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'Id. at 821 (quoting 28 U.S.C. § 2255). Of course, a motion pursuant to § 2255 may not serve as a substitute for a direct appeal, rather "[r]elief under [this statute] is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
The failure to raise an issue on direct appeal ordinarily constitutes a procedural default and precludes a defendant's ability to raise that issue for the first time in a § 2255 motion. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997), cert. denied, 118 S.Ct. 730 (1998); Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir. 1996), cert. granted, 118 S.Ct. 31 (1997); Reid v. United States, 976 F.2d 446, 447 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993) (citing United States v. Frady, 456 U.S. 152 (1982)). This rule applies whether the conviction was obtained through trial or through the entry of a guilty plea. United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998); Walker v. United States, 115 F.3d 603, 605 (8th Cir. 1997); Matthews, 114 F.3d at 113; Thomas v. United States, 112 F.3d 365, 366 (8th Cir. 1997) (per curiam). A defendant may surmount this procedural default only if the defendant "`can show both (1) cause that excuses the default, and (2) actual prejudice from the errors asserted.'" Matthews, 114 F.3d at 113 (quoting Bousley, 97 F.3d at 287); see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Held readily acknowledges that none of the claims presented in his § 2255 motion were raised on appeal. He asserts that this procedural default should be excused, however, because it was the result of ineffective assistance of counsel. A defendant alleging ineffective assistance of counsel in the context of a § 2255 motion must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of the deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Apfel, 97 F.3d at 1076; Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). The court need not address whether counsel's performance was deficient if the defendant is unable to prove prejudice. Apfel, 97 F.3d at 1076 (citing Montanye v. United States, 77 F.3d 226, 230 (8th Cir.), cert. denied, 117 S.Ct. 318 (1996)); see also Strickland, 466 U.S. 697 (stating "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."); Pryor v. Norris, 103 F.3d 710, 712 (8th Cir. 1997) (observing "[w]e need not reach the performance prong if we determine that the defendant suffered no prejudice from the alleged ineffectiveness."). With these standards in mind, the court now turns to its consideration of the issues raised in Held's § 2255 motion.
B. Analysis Of Issues Related to Government Exhibit #9 1. New trial based on Government Exhibit #9
The court initially takes up defendant Held's contention that his trial counsel was ineffective for failing to request a new trial based on the admission of Government Exhibit #9. Government Exhibit #9 is a business card found on the person of defendant Held at the time of his arrest which contains the notation "Grams Sold $60 me owe $30." Gov't Ex. #9. At trial, defendant Held's counsel objected to the admission of Government Exhibit #9 on the grounds that the exhibit was: "immaterial and irrelevant to any of the issues in this case and in this indictment as it is remote in time to the charges that are brought about against this defendant." Tr. at p. 106. Defendant Held now argues that Government Exhibit #9 was inadmissible under Federal Rule of Evidence 404(b). The government asserts that Government Exhibit #9 was properly admitted as direct evidence of the charged conspiracy.
The court concludes that defendant Held is unable to demonstrate that he suffered prejudice from the alleged ineffectiveness of his trial counsel in failing to raise the admission of Government Exhibit #9 as a ground for new trial. Government Exhibit #9 is direct evidence of the conspiracy. See United States v. Roulette, 75 F.3d 418, 424 (8th Cir.) ("Any drug activity by a conspirator during the conspiracy is relevant evidence of the existence of the conspiracy."), cert. denied, 519 U.S. 853 (1996); see also United States v. O'Dell, 204 F.3d 829, 834 (8th Cir. 2000) ("Possessing methamphetamine, even a small amount, during the period in which he is accused of conspiring to distribute the same drug is direct evidence that defendant participated in the conspiracy, and therefore Rule 404(b) is not implicated."); United States v. Brown, 956 F.2d 782, 786 (8th Cir. 1992) (holding that evidence of defendant's sale of cocaine which occurred within period of charged conspiracy was admissible direct evidence); United States v. Jones, 880 F.2d 55, 59 (8th Cir. 1989) (holding that evidence of defendant's drug-related activity throughout period of conspiracy was admissible evidence of conspiracy to possess and distribute marijuana and/or cocaine). Furthermore, the jury could consider overt acts in furtherance of the conspiracy as circumstantial evidence establishing knowing participation in the conspiracy. See United States v. Scott, 668 F.2d 384, 387 (8th Cir. 1981); see also United States v. Pazos, 993 F.2d 136, 139 (7th Cir. 1993); United States v. Burrell, 963 F.2d 976, 988 (7th Cir.), cert. denied sub nom. Henry v. United States, 506 U.S. 928 (1992); United States v. Arboleda, 929 F.2d 858, 865 (1st Cir. 1991); United States v. Hernandez, 896 F.2d 513, 518 (11th Cir.), cert. denied, 498 U.S. 858 (1990). Additionally, as direct evidence of the conspiracy, it did not constitute extrinsic act evidence subject to the Federal Rule of Evidence 404(b) standard of admissibility. O'Dell, 204 F.3d at 834; see United States v. Kenshaw, 71 F.3d 268, 270 (8th Cir. 1995) ("Direct evidence of participation in a conspiracy is probative of the crime charged and thus does not constitute other crimes evidence within the meaning of Rule 404(b)."); United States v. McMurray, 34 F.3d 1405, 1412 (8th Cir. 1994) (evidence obtained during a prior arrest, including a gun and a scale with cocaine residue, was "part of the government's proof that the appellants were engaged in a conspiracy to distribute cocaine," and therefore did not constitute Rule 404(b) evidence), cert. denied, 513 U.S. 1179 (1995); United States v. Severe, 29 F.3d 444, 447 (8th Cir. 1994) (holding that coconspirator's testimony that defendants delivered a kilogram of cocaine to her residence "did not implicate Rule 404(b) because it tend[ed] to prove whether a conspiracy to distribute cocaine existed"); Brown, 956 F.2d at 786 (holding that evidence of defendant's sale of cocaine that occurred during the period of the conspiracy was not other bad acts evidence subject to Rule 404(b)); United States v. Stephenson, 924 F.2d 753, 762 (8th Cir.) ("evidence which is probative of a crime with which a defendant is charged, and not solely of some other uncharged crimes, is not evidence of `other bad acts.'") (quoting United States v. Westbrook, 896 F.2d 330, 334 (8th Cir. 1990)), cert. denied, 502 U.S. 916 (1991); United States v. Tejada, 886 F.2d 483, 487 (1st Cir. 1989) ("Rule 404(b) applies just to evidence of other bad acts or crimes — those other than the crime charged. Where evidence of `bad acts' is direct proof of the crime charged, Rule 404(b) is, of course, inapplicable."). Because Government Exhibit #9 was admissible as an overt act in furtherance of the conspiracy, defendant Held was not unfairly prejudiced by its admission. Therefore, this portion of defendant Held's motion is denied.
2. Limiting instruction
Defendant Held further asserts that his trial counsel was ineffective for failing to request a limiting instruction with regard to Government Exhibit #9. See United States v. Abrams, 108 F.3d 953, 956 (8th Cir. 1997) (holding that the district court "did not err by failing to give a limiting instruction sua sponte in this case."); United States v. Perkins, 94 F.3d 429, 435-36 (8th Cir. 1996) (stating "we have never found it to be plain error when a court does not give a limiting instruction of any kind sua sponte with respect to Rule 404(b) type evidence"), cert. denied, 519 U.S. 1136 (1997); United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir.) (holding that court need not issue prior crimes limiting instruction sua sponte), cert. denied, 515 U.S. 1132 (1995). The flaw in this argument is that it assumes that Government Exhibit #9 was only admissible under Federal Rule 404(b). The court, however, has determined that Government Exhibit #9 was direct evidence of participation in the charged conspiracy and thus did not constitute other crimes evidence within the meaning of Rule 404(b). Since Government Exhibit #9 was not admitted under Rule 404(b), no limiting instruction was required to be given regarding that exhibit. Therefore, the court concludes that defendant Held has not demonstrated that he was prejudiced by his trial counsel's failure to request a limiting instruction regarding Government Exhibit #9. Therefore, this portion of defendant Held's motion is also denied. 3. Appeal of the admissibility of Government Exhibit #9
Defendant Held also claims that his appellate counsel was ineffective for failing to appeal the admission of Government Exhibit #9. However, because Government Exhibit #9 was properly admitted into evidence, the court concludes that defendant Held has not demonstrated that he was prejudiced by his appellate counsel's failure to raise its admission as an issue on appeal. Therefore, this portion of defendant Held's motion is also denied.
C. Analysis Of Sentencing Issues 1. Obstruction of justice adjustment
Defendant Held further contends that his counsel at the time of sentencing was ineffective for failing to object to the obstruction of justice enhancement and his failure to request specific findings from the court for imposing the enhancement. Defendant Held's Presentence Investigative Report contains the following recommendation with respect to an adjustment for obstruction of justice:
U.S.S.G. § 3C1.1, comment. (n. 3(b)) provides a list of examples of the types of conduct to which the obstruction of justice enhancement applies and the list includes committing, suborning, or attempting to suborn perjury. The government contends that the defendant committed perjury by testifying at trial that he had no knowledge of the contents of the package or involvement in the drug operation, the jury disbelieved his testimony and, therefore, this adjustment should be applied. The Probation Officer concurs with the government and recommends that the two level increase should be applied pursuant to U.S.S.G. § 3C1.1.
Presentence Investigation Report at p. 8. Defendant Held's counsel initially filed a written objection to this portion of the Presentence Investigation Report. However, in The Addendum To The Presentence Report, the United States Probation Officer reports:
The defendant initially made several guideline objections; however, following first draft disclosure the parties have agreed to the following guideline computations and in exchange the defendant will withdraw all objections. The parties agreed that since the actual weight of the d-methamphetamine attributable to the defendant is 1,000.38 grams and based on information gathered from the Drug Enforcement Administration Laboratory regarding the margin of error in calculating the weight and purity of methamphetamine, the defendant should be held accountable for a drug quantity amount less than 1,000 and more than 300 actual grams of d-methamphetamine. The parties have also agreed that a Criminal History Category IV significantly over represents the defendant's criminal history or likelihood that he will commit further crimes; therefore, a downward departure to a guideline range equivalent to a Criminal History Category II is appropriate pursuant to U.S.S.G. § 4A1.3.
Addendum To Presentence Investigation Report, at p. 1.
The fact that defendant Held's counsel entered into negotiations with the government regarding sentencing issues is buttressed by an affidavit of Held's counsel, who avers:
8. I also spoke with AUSA Jarman concerning the guideline calculation and presentence investigation report. I attempted to negotiate with him regarding the guideline sentencing range based on the drug quantity amount, Held's criminal history, and an adjustment for obstruction of justice.
9. In chambers, on the morning of Held's sentencing, Judge Bennett visited with AUSA Jarman, Probation Officer Jackson and me concerning Held's sentencing and the objections and downward departure motions I was prepared to make. After some back and forth discussion, AUSA Jarman agreed to an actual weight of less than 1,000 actual grams of methamphetamine and a departure in the criminal history category. Under the circumstances, based on my review of the facts of the case, the law and my previous experience with both Judge Bennett and AUSA Jarman, I felt this was the best result Held would be able to obtain. I represented agreement with the stipulation pending review with Held. I then explained the proposed stipulation, and the consequences to Held including the legal consequences on a possible appeal by agreeing to the stipulation and not pursuing the remaining sentencing objections and motions. Held agreed to the stipulation and dropping objections and motions. The sentencing was completed with the stipulation.
Techau Aff. at ¶¶ 8-9.
As a result of the stipulation worked out between Held's counsel and the government, defendant Held's total offense level was calculated to be a level 32 with a criminal history category 2. The sentencing guidelines called for a sentencing range of 135 to 165 months. The court sentenced defendant Held to the minimum sentence permitted under the sentencing guidelines, 135 months on each charge. If defendant Held's counsel had not entered into the agreement with the government, defendant Held faced the possibility that the court might have found him to be responsible for the drug quantity set out in the Presentence Investigation Report, 1,000.38 gram, and may also have left his criminal history at a level 4. Under these circumstances, Held would have been assessed a base offense level of 36. With a four level reduction for role in the offense and a two level increase for obstruction of justice, Held would have been assessed an adjusted offense level of 34. With a criminal history category 4, defendant Held's sentencing guideline range would have been 210 months to 262 months. Even if his attorney had prevailed on his objection to the two level increase for obstruction of justice, Held would have been assessed an adjusted offense level of 32. Again, with a criminal history category 4, defendant Held's sentencing guideline range would have been 168 months to 210 months. The court concludes that defendant Held's counsel's failure to object to the two level increase for obstruction of justice during sentencing was a matter of strategy and did not deny Held reasonably effective assistance of counsel. The court finds that the stipulation defendant Held's counsel worked out with the government is within the "wide range" of permissible professional legal conduct, and thus does not constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 689 (holding that actions or omissions by counsel that might be considered sound strategy do not constitute ineffective assistance of counsel). Because the court concludes that the performance of defendant Held's counsel was not deficient in this regard, it need not address the prejudice argument raised by defendant Held. The court nonetheless will address the topic.
If the government sought a two-level enhancement under Guidelines § 3C1.1 for obstruction of justice, here, Held's alleged perjury at the trial, the court concludes that such an enhancement was warranted. An enhancement under § 3C1.1 is warranted where a defendant testifying under oath "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993). The Eighth Circuit Court of Appeals has instructed that:
In assessing an enhancement under § 3C1.1 for perjury, "[t]he district court must review the evidence and make [an] independent finding, by a preponderance of the evidence, of perjury in order to impose a sentence enhancement for obstruction of justice." Thomas, 93 F.3d at 489. "[I]t is preferable for a district court to address each element of the alleged perjury in a separate and clear finding." See Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111. United States v. Taylor, 207 F.3d 452, 454 (8th Cir. 2000). The court finds that defendant Held willfully intended to provide false testimony regarding his involvement in the drug conspiracy and his knowledge of the contents of the package he picked up. Thus, the court concludes that defendant Held has not demonstrated that he was prejudiced by his counsel's failure to object at the time of sentencing to the two level enhancement under Guidelines § 3C1.1 for obstruction of justice. Therefore, this portion of defendant Held's motion is also denied.
2. Downward departure for aberrant behavior
Finally, defendant Held asserts that his counsel at the time of sentencing was ineffective for failing to request a downward departure based on aberrant behavior. The government argues in its resistance that defendant Held did not qualify for a downward departure on the ground of aberrant behavior.
The Eighth Circuit Court of Appeals have indicated that acts of aberrant behavior may, in an appropriate case, support a downward departure. United States v. Allery, 175 F.3d 610, 614 (8th Cir. 1999); United States v. Weise, 89 F.3d 502, 507 (8th Cir. 1996). Eighth Circuit precedent defines aberrant behavior as a "`spontaneous and seemingly thoughtless act,'" Weise, 89 F.3d at 507 (quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)); United States v. Premachandra, 32 F.3d 346, 349 (8th Cir. 1994) (because the Sentencing Commission did not consider single acts of aberrant behavior when formulating the Guidelines, a spontaneous and thoughtless act may be the basis for departure). Here, the court cannot characterize defendant Held's conduct as spontaneous. When defendant Held initially went to the United Parcel Service to pick-up the package containing methamphetamine, he was told that it was unavailable because it had been put on a truck for delivery and that he would have to return later to get the package. Defendant Held followed these instructions, he left and returned later to pick-up the package. Defendant Held's conduct was neither "spontaneous" nor was it a "seemingly thoughtless act," Weise, 89 F.3d at 507.
A second line of Eighth Circuit precedent intimates that "the aberrancy of offense conduct can be evaluated in light of the extent to which that conduct deviated from that typical of those who commit the relevant offense." Allery, 175 F.3d at 614 (citing United States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997)). Here, the court does not find anything extraordinary about Held's actions. See United States v. Wind, 128 F.3d 1276. 1278 (8th Cir. 1997) (reversing downward departure based on aberrant behavior where the district court did not specify anything extraordinary about case).
The court concludes that defendant Held did not meet the requirements for a downward departure on the ground of aberrant behavior. Thus, defendant Held was not unfairly prejudiced by his counsel's failure to seek a downward departure on that ground. Therefore, this portion of defendant Held's motion is denied.
D. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1), a § 2255 petitioner may not appeal a final order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." A court may not issue such a certificate unless the petitioner can demonstrate a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); United States v. Apker, 174 F.3d 934, 937 (8th Cir. 1998). In describing the standard for issuing a certificate of appealability, the Second Circuit Court of Appeals has explained that "`the petitioner need not show that he should prevail on the merits. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). In the instant case, the parties vigorously dispute whether Held received ineffective assistance of counsel because his counsel failed to request a new trial based on the admission of Government Exhibit #9 and whether his appellate counsel was ineffective for failing to appeal the admission of Government Exhibit #9. These questions appear to be "debatable among jurists of reason." Id. With respect to his other claims, however, defendant Held has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Therefore, the court shall grant a certificate of appealability, but, pursuant to 28 U.S.C. § 2253 (c)(3), the certificate shall be limited to the issues of whether defendant Held received ineffective assistance of counsel because his trial counsel failed to request a new trial based on the admission of Government Exhibit #9 and whether his appellate counsel was ineffective for failing to appeal the admission of Government Exhibit #9.
III. CONCLUSION
The court has considered each of the grounds raised in defendant Held's motion pursuant to 28 U.S.C. § 2255, and for the reasons set forth above, concludes that defendant Held is not entitled to have his sentence vacated, set aside, or corrected. Therefore, defendant Held's § 2255 motion is denied, and this matter is dismissed in its entirety.
IT IS SO ORDERED.