Opinion
CIVIL NO. 98-4990 (JBS), [CRIM. NO. 96-141 (JBS)].
July 31, 2000
Dwight Collins, F.C.I. Fort Dix, Fort Dix, New Jersey, Petitioner pro se.
Robert J. Cleary, United States Attorney, By: Mary A. Futcher, Assistant U.S. Attorney, Camden, New Jersey, Attorney for Respondent.
OPINION
I. INTRODUCTION
This matter comes before the Court on petitioner Dwight Collins' application for post-conviction relief pursuant to 28 U.S.C. § 2255. On August 14, 1996, a jury found petitioner guilty of conspiracy to distribute and to possess with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. § 846, possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and using or carrying a semiautomatic pistol in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) and (2). On October 18, 1996, this Court sentenced petitioner to 208 months imprisonment and five-years supervised release, a fine of $2,000, and a special assessment fee of $150.
In the present application, petitioner asserts four grounds for § 2255 relief. First, petitioner claims that he was denied effective assistance of counsel in violation of the Sixth Amendment, due to counsel's failure to move the court to suppress illegally obtained testimony, failure to object to erroneous jury instruction, failure to properly inform petitioner of maximum sentence exposure, and failure to impeach the government's witness. Second, petitioner claims that he was denied due process because the government permitted and reinforced perjured testimony. Third, petitioner argues that there was insufficient evidence to convict him of violating 18 U.S.C. § 924(c) (using or carrying a weapon in connection with a drug trafficking offense). Fourth, petitioner argues that he was subjected to double jeopardy in violation of the Fifth Amendment because he was sentenced for both conspiracy to distribute cocaine and conspiracy to use firearms in a drug trafficking offense.
This latter ground was raised in petitioner's motion to amend his petition, filed May 1, 2000, which this Court hereby grants. The new ground will be deemed to relate back to the initial date of the petition — November 4, 1998 — and is therefore timely.
For reasons now discussed, this Court finds petitioner's claims for § 2255 relief to be without merit, and as such, this petition will be denied in its entirety.
II. BACKGROUND
Petitioner was convicted for his involvement in a drug transaction that took place on March 7, 1996 in the parking lot of the Hilton Hotel in Cherry Hill, New Jersey. (Resp't's Br. at 3.) The details of the arrest and conviction, as developed from the evidence at trial, are as follows.
Tanika Miller went to the Hilton Hotel to deliver a previously negotiated kilogram of cocaine. (Id.) The purchasers of the cocaine, however, were undercover DEA task force officers. (Id.) The officers showed Miller $25,000 cash and Miller showed the officers cocaine which was stored in her car. (Id.) Miller and the officers then decided to return to the lobby of the hotel to finalize the deal. (Id.) On their way across the parking lot, co-conspirators William Thompson and Zel Tisby, performing counter-surveillance of the transaction, confronted and surrounded the undercover officers. (Id.) Thompson pulled a MAC 11, a semi-automatic assault weapon, from his pants and pointed it at one of the officers. (Id.) DEA surveillance agents moved in and Thompson and Tisby were arrested after a short foot chase. (Id.)
Thompson, in a post-arrest statement, said that petitioner told him and Tisby to follow Miller to make sure that Miller came back with his money from the cocaine deal. (Id.) Thompson also said that petitioner gave them the weapon. (Id.)
Miller, in a post-arrest statement, said that petitioner, who she called "Worm," was her source for the cocaine. (Id.) Miller also agreed to cooperate with law enforcement officials. (Id.) Miller placed several consensually monitored telephone calls to petitioner in which she told petitioner that her car had broken down and that she was stranded with all the money. (Id.) When petitioner arrived at the location where Miller told him she was stranded, petitioner was arrested. (Id.) Officers found documents with one of petitioner's names and a cocaine-cutting agent in petitioner's car. (Id.) DEA lab analysis determined that the cutting agent was used to cut the cocaine that was involved in the Hilton Hotel transaction. (Id.)
On March 12, 1996, a Grand Jury indicted petitioner for (1) conspiracy to distribute and to possess with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. § 846, (2) possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and (3) aiding and abetting the using or carrying a semiautomatic pistol in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) and 2. (Id. at 2.)
Petitioner's jury trial before the undersigned began on August 5, 1996. (Pet'r's Br. at 3.) On August 14, 1996, petitioner was found guilty of the charged offenses. (Id.) On October 18, 1996, petitioner received a sentence of 208 months imprisonment and five years supervised release, a fine of $2,000, and a special assessment fee of $150. (Resp't's Br. at 2.)
Petitioner appealed his case to the Third Circuit Court of Appeals. (Id.) On November 14, 1997, his conviction was affirmed. (Pet'r's Br. at 3; Resp't's Br. at 2.)
Petitioner timely filed the present petition for post-conviction relief under 28 U.S.C. § 2255 on November 4, 1998. (Resp't's Br. at 2.) Respondent filed its Answer on January 19, 1999. (Id. at 1.) Petitioner filed a Reply Brief on February 10, 1999 and a Motion to Amend Petition with Additional Legal Argument on May 1, 2000. (Pet'r's Reply Br. at 1; Pet'r's Mot. to Amend at 1.) The Respondent did not answer petitioner's Motion to Amend, and the Court has deemed the proffered arguments incorporated into the initial petition.
III. DISCUSSION
In his petition for post-conviction relief, petitioner raises the following grounds for relief: (1) ineffective assistance of counsel due to failure to move the court to suppress illegally obtained testimony, failure to object to erroneous jury instruction, failure to properly inform petitioner of maximum sentence exposure, and failure to impeach government witness, (2) denial of due process because the government permitted and reinforced perjured testimony, (3) insufficient evidence to convict defendant of violating 18 U.S.C. § 924(c), use or carry of a firearm in connection with a drug trafficking offense, and (4) double jeopardy due to convictions for conspiracy to distribute cocaine and conspiracy to use firearms during a drug trafficking offense.
A. Standard of Review
A prisoner who is in custody under the sentence of a federal court can move the court under 28 U.S.C. § 2255 to correct his sentence if it is erroneous. Hill v. United States, 368 U.S. 424, 426 (1962). The sentencing court is authorized to discharge or resentence a defendant if it concludes that it 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." Hill, 368 U.S. at 426-27 (quoting 28 U.S.C. § 2255). However, "[s]ection 2255 does not afford a remedy for all errors that may be made at trial or sentencing." United States v. Essig, 10 F.3d 968, 977 n. 25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178 (1979)). The Supreme Court has found that a claim of legal error, unlike a claim of jurisdictional or constitutional error, is not cognizable under § 2255, unless the alleged legal error raises a "fundamental defect which inherently results in a complete miscarriage of justice." Addonizio, 442 U.S. at 185 (quoting Hill, 368 U.S. at 428).
B. Analysis
Petitioner raises the following four general grounds for relief in his petition: (1) ineffective assistance of counsel, (2) denial of due process, (3) insufficient evidence to convict, and (4) double jeopardy. An evidentiary hearing is not necessary for the disposition of these claims.
Under Rule 8(a) of the rules governing § 2255 proceedings, if the district court "upon a review of those proceedings and of the expanded record" determines that "an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates." 28 U.S.C. foll. § 2255, Rule 8(a). Whether to order an evidentiary hearing in connection with the review of a § 2255 motion is committed to the sound discretion of the district court. United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992) (citing Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In exercising such discretion, the court must accept the truth of the factual allegations, unless they are clearly frivolous on the face of the existing record.Forte, 865 F.2d at 62. If the prisoner's allegations raise an issue of material fact, the court must hold an evidentiary hearing in order to make findings of fact and conclusions of law, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See Walker v. Johnson, 312 U.S. 275, 285 (1941);United States v. Constanzo, 625 F.2d 465, 468 (3d Cir. 1980). Moreover, the "district court need not hold a hearing where the record as it stands decisively answers the Section 2255 motion." United States v. Leiby, 820 F.2d 70, 73 (3d Cir. 1987).
Here, the record before the Court is complete and detailed, making further discovery unnecessary. As detailed below, the file and record in this case provide all the information necessary to decide whether petitioner's claims for ineffective assistance of counsel, denial of due process, insufficient evidence, and double jeopardy warrant § 2255 relief.
1. Ineffective assistance of counsel claims
Petitioner argues that he received ineffective assistance of counsel in violation of the Sixth Amendment because his counsel did not move the court to suppress illegally obtained testimony, did not object to erroneous jury instructions, did not properly inform petitioner of his maximum sentence exposure, and did not impeach the government's witness based on prior perjured testimony.
Although the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel, there is a strong presumption that counsel acted within a wide range of reasonable professional conduct.Kimmelman v. Morrison, 477 U.S. 365, 377 (1986). To rebut the presumption, the petitioner (1) must identify particular conduct that was unreasonable and (2) must demonstrate that the counsel's deficient performance so prejudiced the petitioner that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Stated differently, the petitioner must not only prove that his counsel's representation was unreasonable compared to prevailing professional norms, but must also prove that there is a reasonable probability that but for the counsel's errors, the result of the proceeding would have been different. Id.; Kimmelman, 477 U.S. at 384. When examining the claim, the court must avoid the "distorting effects of hindsight" and measure the deficiency of counsel's performance by an "objective standard of reasonableness." Strickland, 466 U.S. at 687-89.
a. Failure to suppress testimony
Petitioner claims that he received ineffective assistance of counsel in violation of the Sixth Amendment because his counsel did not move to suppress testimony which was allegedly obtained in violation of 18 U.S.C. § 201(c)(2). (Pet'r's Br. at 4.)
Tanika Miller pled guilty to her role in the same drug transaction for which petitioner was indicted. Her plea agreement stated that if she cooperated and provided substantial assistance to the government (such as testifying against petitioner), the government would move the Court, pursuant to Section 5K1.1 of the Sentencing Guidelines, for a downward departure of her sentence. Petitioner, therefore claims that Tanika Miller was promised a lesser sentence for her testimony in violation of 18 U.S.C. § 201(c)(2) which states that
Whoever, directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon trial, hearing, or other proceeding, before any court, . . . shall be fined under this title or imprisoned for not more than two years, or both.18 U.S.C. § 201(c)(2). Relying on the Tenth Circuit's now vacated opinion in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleton I), rev'd en banc, 165 F.3d 1297 (10th Cir.) (Singleton II),cert. denied, 527 U.S. 1024 (1999), petitioner argues that the Court erred in not suppressing the testimony of Tanika Miller. He therefore claims that he received ineffective assistance of counsel because his counsel did not move to suppress the Miller's testimony.
Petitioner raises an argument that has been rejected by every circuit that has considered it. Prosecutors do not violate 18 U.S.C. § 201(c)(2) when they request leniency for a cooperating witness who testifies truthfully against another criminal defendant.See, e.g., United States v. Smith, 196 F.3d 1034, 1038 (4th Cir. 1999);United States v. Hunte, 193 F.3d 173, 174 (3d Cir. 1999); United States v. Stephenson, 183 F.3d 110, 118-119 (2d Cir. 1999); United States v. Lara, 181 F.3d 183, 197 (1st Cir. 1999); United States v. Condon, 170 F.3d 687, 688-89 (7th Cir. 1999); United States v. Johnson, 169 F.3d 1092, 1097 (8th Cir. 1999); United States v. Lowery, 166 F.3d 1119, 1122-24 (11th Cir. 1999); Singleton II, 165 F.3d at 1298;United States v. Ramsey, 165 F.3d 980, 987 (D.C. Cir. 1999); United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert. denied, 526 U.S. 1138 (1999); United States v. Ware, 161 F.3d 414, 418 (6th Cir. 1998), cert. denied, 526 U.S. 1045 (1999); United States v. Abraham, 29 F. Supp.2d 206, 209 (D.N.J. 1998). The practice of allowing cooperating defendants to testify with the expectation of leniency or a pardon is a long-standing practice, acknowledged and approved by a century of Supreme Court jurisprudence. Hunte, 193 F.3d at 176; Abraham, 29 F. Supp.2d at 212. Therefore, in general, 18 U.S.C. § 201(c)(2) does not bar testimony given in hope of leniency. Hunte, 193 F.3d at 176. However, it does bar testimony if the plea agreement included a promise to give untruthful testimony or if the prosecutor promised a fee to the cooperating witness which was contingent on the outcome of the trial.Abraham, 29 F. Supp.2d at 212.
Here, the plea agreement with Tanika Miller was the total agreement and it only promised her the possibility of a downward departure at sentencing. Any downward departure in Miller's case depended on her substantial assistance, not on the outcome of petitioner's trial. In addition, nothing indicates that Miller's testimony was untruthful. Her testimony corroborated with other evidence such as consensually recorded telephone conversations about the drug transaction, Tanika Miller's telephone toll records which showed conversations immediately prior to the drug deal, the cocaine cutting agent found in petitioner's car, and petitioner's own testimony. Further, the full extent of Miller's cooperating plea agreement was disclosed to petitioner's counsel before trial and was a basis for strenuous cross-examination of Miller at trial. Therefore, there was no reason for the court to suppress the truthful testimony of Tanika Miller against her codefendant.
Because the testimony used by the government was appropriate, petitioner's counsel had no reason to move to suppress it. Defense counsel simply did not file what would have been a frivolous or meritless motion. That decision was not unreasonable.
b. Failure to object to erroneous jury instructions
Petitioner claims that his trial counsel should have objected to the jury instruction about the element of "use" of a firearm during and in relation to a drug trafficking crime found in 18 U.S.C. § 924(c)(1). (Pet'r's Br. at 7.)
The Supreme Court defined the term "use" in 18 U.S.C. § 924(c)(1) as requiring the "active employment" of a firearm. Bailey v. United States, 516 U.S. 137, 144 (1995). "Proximity and accessibility" of a firearm is not enough. Id. Active employment includes "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire" the firearm. Id. at 148. In addition, if a person attempts to change the circumstances by referring to a firearm, he also has "used" the firearm. Id.; United States v. Ramos, 147 F.3d 281, 284-85 (3d Cir. 1998) ("silent but obvious and forceful presence of a gun on a table" is sufficient to show "use"). Although the "mere presence" of guns is not enough to constitute active employment, the Supreme Court has narrowly defined "mere presence" as "the presence of guns in a nearby closet for the purpose of providing a sense of security and/or emboldening a defendant." Ramos, 147 F.3d at 285 (citing Bailey, 516 U.S. at 148.)
Here, petitioner claims that the jury instructions permitted the jury to convict petitioner based on mere presence. The Court instructed the jury as follows:
[I]t is not necessary for the government to establish that the weapon was fired, loaded, brandished or even handled. It is sufficient if the proof establishes that circumstances surrounding the drug transaction suggest that the defendant intended to have a firearm available for possible use during this transaction, or the circumstances surrounding the locations where the firearm was present suggest that the firearm was strategically located so as to quickly, readily be available for use during this transaction. . . . In order to satisfy this element, the government must establish some relation between the alleged use or carrying and the offenses charged in counts I and II. For example, it is sufficient if you find that the firearm was present for potential use to protect a defendant, the money, the cocaine, or to intimidate others during the course of the offense charged in counts I and II. On the other hand, if you find that the presence of this firearm played no part, you must find the defendant not guilty of count III.
Sentencing Tr. at 201-02. The Court correctly instructed the jury that the Government did not need to establish that the weapon was actually fired, loaded, brandished, or even handled, so long as it was present with the intent to use it when necessary. Mere presence of a gun was not enough; for example, if the gun had been located in a closet or in a car beyond the reach of the defendants, the jury could not have convicted petitioner on Count III. Instead, the jury needed to be sure that either the evidence proved that petitioner intended to have a firearm available for possible use or proved that the weapon was readily available for immediate use.
In addition, the evidence in this case reasonably showed that the weapon was "used" during the transaction. Detective Dean testified that he first saw something in the waist of Thompson's pants when he approached him in the parking lot. (Resp't's Br. at 5.) Thompson then put his right hand down his pants and pulled up something black. (Id.) Thompson pointed the gun at Dean and began to run. (Id.) Thompson's gun in the waist of his pants was strategically located for immediate use. Thompson actively employed his gun by displaying it to and brandishing it toward Detective Dean.
As a result, the jury was correctly instructed about the term "use" and the evidence at trial indicated that a gun had been "used" during the drug transaction. Therefore, petitioner's counsel's decision to not object to the jury instruction was not unreasonable.
c. Failure to properly inform petitioner of maximum sentence exposure
Petitioner claims that he received ineffective assistance of counsel because his counsel did not inform him properly about his maximum sentence exposure. Prior to petitioner's trial, the Government extended to him an informal plea agreement which stated that the mandatory sentence for Count III, use and carry of a firearm, is a consecutive five-year term of imprisonment. (Resp't's Br. at 8.) However, subsequent to the plea agreement, the government realized it had mistakenly listed the five-year mandatory sentence for use and carry of a firearm instead of the ten-year mandatory sentence for use and carry of a semi-automatic weapon. (Id.) As a result, the plea agreement that petitioner rejected anticipated a five-year sentence, but the sentence that petitioner actually received after his trial was the mandatory ten-year sentence. Petitioner, therefore, claims that he received ineffective assistance of counsel because counsel did not advise petitioner that he would receive a five-year sentence if he signed the plea agreement but a ten-year if he proceeded to trial. Petitioner claims that if he had known, he would have entered into the five-year consecutive sentence plea agreement with the government. (Id.)
Petitioner's argument assumes that, had he signed the plea agreement, he would have received a five-year mandatory sentence, but that because he went to trial, he received a ten-year sentence. However, while the government's miscalculation of petitioner's sentence exposure was unfortunate, it did not estop the government from seeking the higher penalty for one of petitioner's codefendants, William Thompson. The mandatory sentence error was discovered after Thompson had signed a written plea agreement, but before he was sentenced. (Resp't's Br. at 7-8.) The government realized that, while the five-year mandatory sentence applies to use or carry of a "firearm," the ten-year mandatory sentence applies if the firearm is a "semiautomatic assault weapon." 18 U.S.C. § 924(c)(1)(A)(i) and 924(c)(1)(B)(i). The Cobray nine-millimeter semiautomatic pistol, Model M-11 which was used during the drug transaction was a semiautomatic assault weapon, as defined by 18 U.S.C. § 921(a)(30)(A) as "any of the firearms, or copies or duplicates of the firearms in any caliber, known as. . .(vi) SWD M-10, M-11, M-11/9 and M-12."
Due to the error, this Court allowed Thompson to withdraw his plea. Then, the Court determined after oral arguments that the government was not collaterally estopped from seeking a ten-year mandatory sentence. (Resp't's Br. at 8.) Thompson entered into another plea agreement which included the ten-year mandatory, consecutive sentence for Count III. (Id.)
Therefore, although petitioner assumes that he would have received a five-year mandatory sentence had he signed the plea agreement, his assumption is incorrect. Because the issues in petitioner's case are identical to the issues in Thompson's case, the government would not have been collaterally estopped from seeking a ten-year mandatory sentence for petitioner even if he had signed the plea agreement. As a result, even if he had entered a plea of guilty, petitioner would still have received the mandatory ten-year consecutive sentence.
The real issue, therefore, is whether petitioner would have signed a ten-year mandatory sentence plea agreement but for his counsel's ineffective advice, not whether petitioner would have signed a five-year mandatory sentence plea agreement but for his counsel's failure to inform him of the ten-year mandatory sentence after trial.
In order to prove ineffective assistance of counsel, the petitioner (1) must identify particular conduct that was unreasonable and (2) must demonstrate that the counsel's deficient performance so prejudiced the petitioner that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's conduct is unreasonable when an attorney incorrectly or insufficiently advises a defendant about a plea agreement, so that the defendant cannot make an intelligent decision about whether to accept it or not. United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). Here, however, petitioner's counsel's advice was based on a mistake in the proposed plea agreement itself. Based on the information provided by the government, petitioner's counsel reasonably advised petitioner that he would receive the mandatory five-year term if he accepted the plea agreement or if he went to trial. The advice was not unreasonable given the fact that the government had not yet charged defendant with use of a semi-automatic weapon.
Even if petitioner could prove that his counsel acted unreasonably, he has been unable to demonstrate that his counsel's deficient performance so prejudiced petitioner that he was deprived of a fair trial. To show actual prejudice, petitioner must show that there is a reasonable probability that he would have accepted the government's plea agreement.Day, 969 F.2d at 45 n. 8. Petitioner can prove reasonable probability by (1) testifying that he would have accepted the plea, (2) proving that the proposed plea agreement was much more favorable than the actual sentence, and (3) proving that at trial he followed counsel's advice not to testify in light of his criminal history. Kates v. United States, 930 F. Supp. 189, 192 (E.D.Pa. 1996) (quoting Day, 969 F.2d at 46.)
Petitioner claims that but for the error, he would have accepted the plea agreement. However, this post-conviction argument is unavailing. Petitioner has continually maintained his innocence throughout his trial, his appeal, and even in this current petition where he claims that there was insufficient evidence to convict him on the weapons charge. He rejected the mandatory five-year consecutive sentence plea agreement because he hoped that he could prove his innocence at trial, perhaps believing that the evidence against him was purely circumstantial. (Resp't's Br. at 10.) In light of petitioner's claims of innocence when he was confronted with a five-year sentence, it seems highly unlikely that petitioner would have accepted responsibility when confronted with the correct prospect of a ten-year sentence.
In addition, petitioner has been unable to prove that the proposed plea agreement was much more favorable than his actual sentence. He argues that there is a difference because he received a ten-year mandatory sentence for Count III instead of a five-year mandatory sentence. However, as explained above, petitioner had to receive the ten-year mandatory consecutive sentence upon conviction whether or not he signed the plea agreement. All other differences between petitioner's plea agreement and his ultimate sentence relate to Counts I and II of his indictment, differences which were not affected by the mistake in question, differences of which petitioner was aware when he decided not to accept the agreement, and differences which petitioner has never included in his ineffective assistance of counsel claims. Therefore, petitioner has not established that the proposed plea agreement was much more favorable than his actual sentence.
As a result, because petitioner has been unable to prove that his counsel was ineffective or that the outcome of his case would have been substantially different, this Court cannot offer relief on this mandatory sentence claim.
d. Failure to impeach government witness
Petitioner next claims that he received ineffective assistance of counsel because his counsel failed to sufficiently cross-examine Tanika Miller about her "earlier instances of perjury." (Pet'r's Br. at 15.)
To establish ineffective assistance of counsel, petitioner must show that his counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. However, the Court must make "every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's performance at the time." Id. at 689. As a result, the petitioner must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Petitioner claims that his counsel failed to sufficiently cross-examine the government's witness, petitioner's codefendant, Tanika Miller, about lying during her bail hearings. After her arrest for her participation in the Hilton Hotel drug transaction, Miller was placed on house arrest with excused absences from her residence for school, church, and work. However, Miller violated her conditions of bail on two occasions, once to go to the grocery store and the Cherry Hill Mall, and the other time to visit her boyfriend in the hospital. (Resp't's Br. at 14.) She did not tell her pretrial services about either excursion. (Id.) As a result, at a bail hearing, the Honorable Robert B. Kugler found that she had lied to her pretrial services officer and revoked her pretrial release. (Id.)
While Miller had violated her conditions of bail and while Judge Kugler found that she had lied to her probation officer, Miller was able to present proof as to her whereabouts during the violations. She presented dated receipts for groceries and for her son's shoes which she bought at the Cherry Hill Mall. She verified the Easter church service that she attended after her visit to the hospital. She also verified the times that she departed and arrived at her home with bus schedules. She may have been untruthful with her pretrial services officer, but her verifiable explanations were ones that many jurors may find reasonable, understandable, and excusable. Her family needed groceries; her son needed shoes; her boyfriend was in the hospital. She committed no crimes and did not testify falsely about these events. Thoroughly questioning Miller about her violations would have revealed to the jury a caring person, rather than the incessant liar the petitioner hoped to unmask. It was not an unreasonable defense strategy to avoid this humanizing cross-examination.
Moreover, defense counsel did ask Miller about her bail violations. At trial, defense counsel asked Miller why she went back to jail after her release on bail. (Resp't's Br. at 14.) Miller responded that she had gone food shopping. (Id.) Defense counsel then asked Miller if she remembered that a judge had found that she had lied to her probation officer and that that was the reason that she returned to jail. (Id.) Miller responded, "[y]es, that's what he said, but that's not what happened at all." (Id.) Defense counsel said, "[o]h, you didn't lie then?" (Id.) Miller responded, "[n]o." (Id.)
Through this cross-examination, defense counsel ensured that the jury heard that a judge found that Miller had lied. Defense counsel also showed the jury a witness who continued to dispute the finding of a judge. By denying Miller the opportunity to explain the circumstances of Judge Kugler's finding, petitioner's counsel downplayed Miller's explanations and instead highlighted Miller's inconsistencies.
Petitioner cites Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996), to support his claim, but the case is distinguishable. In Berryman, the Third Circuit held that a defendant had received ineffective assistance of counsel when his counsel failed to cross-examine a rape victim about prior inconsistent testimony. Id. at 1098. However, unlike the present case, the conviction in Berryman rested solely on the questionable identification testimony of the rape victim. Id. at 1092, 1098. InBerryman, therefore, defense counsel erred in not pointing out that the victim's identification testimony was inconsistent in prior testimony.
As opposed to the situation in Berryman, Miller's testimony was never inconsistent as it related to the facts surrounding her arrest or her bail violations. She always maintained the same explanation for her whereabouts during her bail violations. In addition, petitioner's conviction did not rest solely on Miller's testimony. Instead, Miller's testimony was corroborated by other evidence such as Miller's telephone records which showed several pages to petitioner's beeper number immediately before and during the drug transaction, a cocaine-cutting agent in petitioner's car which matched the cocaine involved in the transaction, and consensual telephone recordings during which petitioner said to Miller "[e]verything went alright?" and "I'm saying, you sure everything is alright?" and "I was scared, I thought something might have happened to you." (Resp't's Br. at 21-23.) As a result, because the facts of this case are clearly distinct from the facts in Berryman, petitioner has not established that his counsel was ineffective for failure to cross-examine the government's witness in greater intensity upon these particulars. The overall cross-examination was robust, focussed, and effective under all the circumstances.
Accordingly, this Court cannot offer petitioner relief on his claim that defense counsel failed to impeach the government's witness.
2. Denial of due process because government allowed and reinforced perjured testimony
Petitioner next claims that the government violated his due process rights because the Assistant United States Attorney allegedly permitted the government's witness, petitioner's codefendant Tanika Miller, to perjure herself, and reinforced her perjury. (Pet'r's Br. at 17.)
It is well established that a conviction that is obtained by the knowing use of false testimony is fundamentally unfair and violates the due process rights of the defendant. United States v. Agurs, 427 U.S. 97 (1975); Donnelly v. DeChristoforo, 416 U.S. 637 (1973); Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959);United States v. Galvis-Valderamma, 841 F. Supp. 600, 610 (D.N.J. 1994). Likewise, the defendant's due process rights are violated when the government, although not soliciting false evidence, allows false evidence to go uncorrected when it appears. Napue, 360 U.S. at 269. Here, however, the conviction was not obtained by false testimony overlooked by the government.
At trial, petitioner's attorney asked Miller why she went back to jail after she had been released on bail. She responded that she went food shopping. (Pet'r's Br. at 17.) Petitioner's attorney then asked whether she remembered that a judge had found that she had lied to her probation officer and whether she remembered that that was the reason that she returned to jail. (Resp't's Br. at 14.) Miller responded, "[y]es, that's what he said, but that's not what happened at all." (Id.) Petitioner's attorney then said "[o]h, you didn't lie then?" (Id.) Miller responded "[n]o, I didn't." (Id.) The Assistant United States Attorney objected and stated that "[t]hat was — that's somewhat not the exact finding of the court". (Id.)
Petitioner claims that, because the Honorable Robert Kugler found that Miller had lied, he was denied due process because under oath Miller said that she did not lie and because the government objected by saying that the court did not exactly find that Miller had lied. (Pet'r's Br. at 17.)
Contrary to petitioner's arguments, Miller admitted that a judge found that she had lied. Then, consistent with her testimony at her bail hearings, she said that although the judge found she lied, she believed she had not. She maintained her explanations about why she violated her bail restrictions to go grocery shopping and shoe shopping, and to visit her boyfriend in the hospital. She consistently insisted that she had not lied; she just had "been less than candid" with her pretrial services officer. (Resp't's Br. at 18.) For example, she told her officer that she went to church when the whole truth was that she went to the hospital and then to church. Therefore, under oath, Miller told what she consistently maintained as the truth of her story. To her, it was true that her bail was revoked because she went grocery shopping and it was true that she never lied, but it was also true that a judge had found that she had lied to her pretrial services officer based on her half-truths.
In addition, the Assistant United States Attorney did not reinforce any perjured testimony. At a one point during a bail hearing, Judge Kugler said, "[t]he violations are clear, and there's no dispute, she agrees that she did violate the conditions of release. What concerns me a great deal is that she wasn't truthful". (Pet'r's Br. at 19.) Then, Miller's counsel presented additional information about Miller's whereabouts and Miller presented testimony about where she had been. Finally, Judge Kugler decided to revoke Miller's bail because, based on all of the information presented, he felt that Miller had failed to take responsibility for her actions and prove that she was trustworthy. Judge Kugler concluded by saying that "this is a tragic situation . . . reasonable minds may differ. Some other judge may find differently. This is a very close question. There's no question about it. It's a very difficult decision that I've reached." (Id. at 20.)
The record shows that Judge Kugler said at one point during the bail hearing that he thought Miller lied. However, the proceedings continued until he finally revoked Miller's bail based on several factors. The finding that Miller had lied was just one part of his decision to revoke Miller's bail. To say that it was the sole reason that her bail was revoked was, in the words of the Assistant United States Attorney, "somewhat not the exact finding of the Court." The government was not reinforcing perjury; the government was attempting to clarify what occurred during Miller's complicated bail hearings. Nothing distorted the fact that Miller admitted that she had violated her conditions of release and that her bail was revoked as a result of her half-truthful explanation.
Therefore, because the Court did not allow perjured testimony and because the government did not reinforce perjured testimony, this Court cannot offer relief to petitioner based on his due process claim.
3. Insufficient evidence to convict petitioner of his 18 U.S.C. § 924(c) weapons charge
Petitioner claims that the evidence was insufficient to support the jury's guilty verdict on Count III of his indictment, which charged petitioner with knowingly aiding and abetting William Thompson in using and carrying a Cobray nine millimeter semiautomatic pistol, model M-ll, serial number 85-0000616, during and in relation to the commission of a drug trafficking felony, in violation of 18 U.S.C. § 924(c) and 2. (Pet'r's Br. at 22.) The jury was given two theories of criminal liability for Count III: (1) that petitioner aided and abetted Thompson in committing the firearm offense, and (2) imputed responsibility. (Resp't' Br. at 24-7.)
When a petitioner raises a claim about the insufficiency of evidence, the court must view the evidence in the light most favorable to the government as the verdict winner and determine whether a jury could have found every element of the crime beyond a reasonable doubt. Ramos, 147 F.3d at 284, citing United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1994).
a. Aiding and Abetting theory
The Court first instructed the jury on the aiding and abetting theory of criminal liability regarding Count III of his Indictment. In accordance with the jury instructions and with 18 U.S.C. § 2 , the jury needed to find that the petitioner willfully associated himself with, and willfully participated in, the criminal venture, namely, William Thompson's use or carrying of a firearm, in order to convict petitioner under an aiding and abetting theory.
On this point, the Court instructed the jury as follows:
Defendant, Dwight Collins, also known as Derick Arnold, is charged with aiding and abetting the commission of the firearms offense charged in Count III. And I'll remind you of the definition of aiding and abetting. In a case where two or more persons participate in the commission of a crime, the guilt of any particular defendant may be established without proof [that he] did every act constituting that crime. In other words, every person who willfully participates in the commission of a crime can be found guilty of that crime.The particular statute provides, quote, "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal," close quote. In order to aid and abet in committing a crime, the evidence must show that the defendant, first, willfully associated himself in some way with the criminal venture, and second, willfully participated in it as though he wanted it to happen, that is, that he willfully did something or failed to do something so that the criminal venture would succeed. It is not necessary that a defendant had agreed to or even knew of all the details, minor or otherwise, of the crime in order to aid and abet its commission, nor is it necessary that the defendant participated in every phase of the scheme. Accordingly, if you find that defendant Derick Arnold knowingly participated or assisted another person, namely William Thompson, in the use or carrying of a firearm during or in relation to the offense charged in Counts I and II, then you may find defendant . . . Dwight Collins is guilty of aiding and abetting the commission of the firearm offense, as charged in Count III. You may not, of course, find defendant Dwight Collins guilty of aiding and abetting, and thus guilty of the substantive offense, unless you find beyond a reasonable doubt that every element of the particular offense as I've earlier defined it in these instructions was committed by William Thompson, and that the defendant Dwight Collins participated in the commission of the offense as an aider and abettor. (Resp't's Br. at 24-25.)
18 U.S.C. § 2 provides:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
18 U.S.C. § 2 has routinely been applied in conjunction with 18 U.S.C. § 924(c) to convict defendants of aiding and abetting in using or carrying a firearm. United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996). See also United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995); United States v. Rivera, 68 F.3d 5 (1st Cir. 1995); United States v. Medina 32 F.3d 40 (2d Cir. 1994); United States v. Warren, 42 F.3d 647 (D.C. Cir. 1994); United States v. Reiswitz, 941 F.2d 488 (7th Cir. 1991). To be convicted of aiding and abetting an 18 U.S.C. § 924(c) violation, the defendant must perform some act that facilitated or encouraged the use or carrying of the firearm. See, e.g., United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999); United States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998); United States v. Bancalari, 110 F.3d 1425, 1429-30 (9th Cir. 1997); Medina, 32 F.3d at 45. Merely aiding the underlying crime and knowing that a gun may be used or carried cannot support a conviction under 18 U.S.C. § 924(c). Garth, 188 F.3d at 113; Woods, 148 F.3d at 848; Medina, 32 F.3d at 45; United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995). However, "once knowledge on the part of the aider and abettor is established, it does not take much to satisfy the facilitation element." Bazemore v. United States, 138 F.3d 947, 950 (11th Cir. 1998), citing United States v. Bennett, 75 F.3d 40, 45 (1st Cir. 1996). An individual does not need to be physically present when the gun is used to be convicted of aiding and abetting under 18 U.S.C. § 924(c). Salazar, 66 F.3d at 729. Instead, encouraging others to use a gun in the commission of the underlying crime is sufficient. Woods, 148 F.3d at 848; United States v. Pipola, 83 F.3d 556, 564 (2d Cir. 1996). Benefiting from the use of the gun is also sufficient because a defendant should not knowingly benefit from the protection afforded by a firearm and then subsequently evade criminal liability for its presence. Bazemore, 138 F.3d at 950; United States v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992).
From the evidence presented at trial, a reasonable jury could have found beyond a reasonable doubt that petitioner willfully associated himself with, and willfully participated in, the criminal venture by facilitating or encouraging William Thompson's use or carrying of a firearm. Petitioner does not dispute that the evidence at trial showed that Miller testified that petitioner was her cocaine supplier for the transaction, that petitioner asked Tanika Miller if they could rob "them" (meaning the undercover officers), that Miller did not know the gunmen (Thompson and Tisby), that petitioner and Miller were the only ones who knew where the drug transaction was to occur, and that because only petitioner knew that the cocaine was short, only he would recognize the need for enforcers in case the purchasers detected the shortage. (Pet'r's Br. at 23; Resp't's Br. at 28; Pet'r's Reply Br. at 16.) This evidence is clearly sufficient to lead a reasonable jury to the conclusion that petitioner knew and anticipated that firearms might be used during a drug transaction where the cocaine was short, that petitioner encouraged Thompson and Tisby to go to the site where only he knew that Miller would be with the drug purchasers who could be "robbed," and that petitioner sought the benefit of the presence of the gun during the transaction which involved cocaine that he supplied.
From this evidence, the jury reasonably concluded that petitioner arranged for Thompson and Tisby to be present and to use the force of a firearm to rob the buyers with whom he had arranged the transaction and whom he knew he was shorting. The likelihood that petitioner would send armed enforcers to the meeting place was especially great given the quantities of drugs and money involved and the expectation that Tanika Miller would be dealing with more than one purchaser. It was reasonable for the jury to conclude that petitioner procured the attendance of an armed confederate who would enforce the transaction.
Therefore, the evidence at trial was sufficient for a reasonable jury to convict petitioner on an aiding and abetting theory of criminal liability for the 18 U.S.C. § 924(c) offense. Accordingly, this Court cannot offer petitioner relief on his aiding and abetting insufficiency claim.
b. Imputed Responsibility theory
Second, the Court instructed the jury on the imputed liability theory of criminal liability regarding Count III of his Indictment.
On this point, the Court instructed the jury as follows:
Now I'd like to say a few words about imputed responsibility on the Count III charge against Dwight Collins. If you have found the defendant Dwight Collins guilty of the conspiracy offense charged in Count I, then the law also provides a second way defendant Dwight Collins may be convicted on Count III.If in light of my instructions, you find beyond a reasonable doubt that Dwight Collins, also known as Derick Arnold, was a member of the conspiracy charged in Count I of the Indictment, and thus guilty of the conspiracy count, then you may also, but you are not required to, find him guilty of the firearms crime charged against him in Count III, provided that you find beyond a reasonable doubt, each of the following five elements. First, that the firearms crime charged in Count III was actually committed by William Thompson. Second, that William Thompson was a member of the conspiracy charged in Count I. Third, that this firearm crime was committed in furtherance of the conspiracy. Fourth, that defendant Dwight Collins, also known as Derick Arnold, was a member of that conspiracy when this firearms crime was committed. And fifth, that defendant Dwight Collins, also known as Derick Arnold, reasonably foresaw the commission of this firearms crime as a natural consequence of the conspiracy. If you find all five of these elements to exist beyond a reasonable doubt, then you may find defendant Dwight Collins, also known as Derick Arnold, guilty of the firearms crime, even though he did not personally participate in the acts contributing to the crime, or did not have actual knowledge of it. (Resp't's Br. at 26.)
A defendant convicted of conspiracy is liable for the reasonably foreseeable acts of his co-conspirators if the acts are committed in furtherance of the conspiracy. United States v. Ramos, 147 F.3d 281 (3d Cir. 1998), citing Pinkerton v. United States, 328 U.S. 640 (1946). A defendant may be found guilty of violating 18 U.S.C. § 924(c) under this Pinkerton theory of imputed liability. Id. (citing United States v. Casiano, 113 F.3d 420, 427 (3d Cir.), cert. denied, 328 U.S. 640 (1997)).
In order to convict petitioner under the theory of imputed liability, evidence needed to establish to the jury that the firearms crime was actually committed by William Thompson, that William Thompson was a member of the conspiracy, that the firearms crime was committed in furtherance of the conspiracy, that petitioner was a member of that conspiracy when the firearms crime was committed, and that petitioner reasonably foresaw the commission of this firearms crime as a natural consequence of the conspiracy.
Here, the evidence submitted at trial was sufficient to establish that William Thompson used and carried a gun during and in relation to the drug trafficking offense. Detective Dean testified that he first saw something in the waist of Thompson's pants when he approached him in the parking lot. (Resp't's Br. at 5.) Dean then testified that Thompson put his right hand down his pants, pulled up something black, and pointed the gun at Dean. (Id.)
Here, the evidence was also sufficient to establish that William Thompson was a member of the conspiracy charged in Count I. Testimony revealed that Thompson followed Miller throughout the drug transaction and then pulled out his gun when Miller and the undercover agents were returning to the hotel lobby to finalize the deal. (Id. at 3.)
The evidence was also sufficient to establish that the firearm crime was committed in furtherance of the conspiracy. The firearm was used during the drug transaction. (Resp't's Br. at 3.) Petitioner had asked Tanika Miller if they could rob "them" (meaning the undercover officers). (Resp't's Br. at 28.) Thompson and Tisby followed Miller throughout the drug transaction. (Id. at 3.) The transaction was tenuous because the cocaine was short; Miller only had a half-kilogram of cocaine instead of the whole kilogram that the purchasers asked for. (Pet'r's Br. at 26.)
The evidence also was sufficient to establish that petitioner was a member of the conspiracy when the firearms crime was committed. Miller's telephone toll records showed numerous pages to petitioner's beeper number immediately before the transaction. (Resp't's Br. at 21.) Miller testified that petitioner supplied the cocaine. (Id.) Consensually-recorded telephone conversations between Miller and petitioner immediately following the transaction included questions from petitioner such as "Everything went alright?" and "You sure everything is alright?" and "I was scared, I thought something might have happened to you." (Id. at 22.) The cocaine-cutting agent used to cut the cocaine was found in petitioner's car. (Id. at 3.)
The evidence was also sufficient to show that petitioner reasonably foresaw the commission of this firearms crime as a natural consequence of the conspiracy. Petitioner asked Miller if they could rob the purchasers. (Pet'r's Br. at 23.) He also knew the cocaine was short and that enforcers may be needed if the purchasers realized there was a shortage. (Id.)
Therefore, because the evidence was sufficient to establish imputed liability for Count III of petitioner's indictment, this Court cannot offer petitioner relief on his insufficient evidence claim.
4. Double Jeopardy claim because petitioner was convicted of conspiracy under 18 U.S.C. § 924(c)
Petitioner also argues that he was subjected to double jeopardy in violation of the Fifth Amendment because he was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and he was convicted of conspiracy to use firearms in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) and 2. (Pet'r's Mot. to Amend at 3.) He claims that the conspiracy to distribute cocaine conviction should have been held to encompass the possession of a firearm for use in that conspiracy. (Id.) As support, petitioner points to U.S.S.G. § 2D1.1(b)(1), the firearms enhancement for drug sentences. He claims that because a firearms enhancement is available for drug sentences, firearms are encompassed in a drug sentence and a defendant, therefore, cannot be convicted of both possession of a firearm and a drug trafficking offense without being convicted twice for the same offense.
The Fifth Amendment guarantee against double jeopardy affords a defendant protection against multiple punishments for the same offense.Albernaz v. United States, 450 U.S. 333, 343 (1981). However, it is well settled that an agreement or conspiracy can give rise to distinct offenses under separate statutes without violating the double jeopardy clause. See, e.g., Harris v. United States, 359 U.S. 19 (1959); Gore v. United States, 357 U.S. 386 (1958); American Tobacco Co. v. United States, 328 U.S. 781 (1946).
Therefore, to determine whether two statutes proscribe the same offense, the Court must use the rule of statutory construction articulated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932) to determine whether Congress intended that two statutory offenses may be punished cumulatively. Morehead, 959 F.2d at 1506.
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
Blockburger, 284 U.S. at 304. While the assumption underlying the rule is that Congress ordinarily does not intent to punish the same offense under two different statutes, the Blockburger test is a rule of statutory construction only meant to discern congressional purpose. Whalen v. United States, 445 U.S. 684, 691-92 (1980); Albernaz v. United States, 450 U.S. 333, 340 (1981). Therefore, "[t]he Blockburger test. . . should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz, 450 U.S. at 340. As a result,
[w]here. . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statute proscribe the `same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.United States v. Stokes, 858 F. Supp. 434, 439 (D.N.J. 1994), quoting Missouri v. Hunter, 459 U.S. 359, 368-69 (1983).
Here, petitioner was convicted of 21 U.S.C. § 846 which reads, "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Within the same subchapter is 21 U.S.C. § 841(a)(1), which reads, "it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."
Petitioner was also convicted of aiding and abetting under 18 U.S.C. § 2, which reads, "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal," for the violation of 18 U.S.C. § 924(c) which reads,
any person who, during and in relation to any. . . drug trafficking crime (including a. . . drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such. . . drug trafficking crime — be sentenced to a term of imprisonment of not less than 5 years.18 U.S.C. § 924(c), emphasis added.
Here, the Court must first apply the Blockburger test to the statutes at issue. Congress is deemed to have intended multiple punishments if each offense requires proof of a fact that the other does not require.Blockburger, 284 U.S. at 304. Here, 18 U.S.C. § 924(c) requires proof that petitioner's codefendant used or carried a firearm during any drug trafficking crime. 21 U.S.C. § 846 and 841(a)(1) require proof of a conspiracy to manufacture, distribute, or dispense cocaine. Each offense requires proof of a fact that the other offense does not require; therefore, the consecutive sentences do not violate the double jeopardy clause.
In addition, because the Blockburger test is a rule of statutory construction, the dispositive inquiry is really whether Congress intended cumulative punishments under the statutes. Stokes, 858 F. Supp. at 441. Here, the text of 18 U.S.C. § 924(c) and its legislative history make it clear that Congress intended for multiple convictions and sentences in a case such as petitioner's.
18 U.S.C. § 924(c) is an enhancing statute which imposes more severe penalties where firearms facilitated a drug trafficking offense. The plain language of section 924(c), "in addition to the punishment provided for such. . . drug trafficking crime," shows a clear Congressional intent to impose an additional punishment in a drug trafficking offense where a firearm is used. See, e.g., United States v. Martin, 961 F.2d 161, 163-64 (11th Cir.), cert. denied, 506 U.S. 895 (1992); United States v. Lanzi, 933 F.2d 824, 826 (10th Cir. 1991);United States v. Moore, 917 F.2d 215, 229-30 (6th Cir. 1990), cert. denied, 499 U.S. 963 (1991); United States v. Holloway, 905 F.2d 893, 894-95 (5th Cir. 1990); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir. 1987); United States v. Doffin, 791 F.2d 118, 120-21 (8th Cir.), cert. denied, 479 U.S. 861 (1986); Stokes, 858 F. Supp. at 441.
Moreover, the Congressional intent is evidenced in the legislative history of the statute's revision in 1984 which specifically made the provision applicable to a "drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." See Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 1005(a), 98 Stat. 2138-2139. In the Senate Judiciary Report, Congress stated:
The Committee has concluded that subsection 924(c) should be completely revised to ensure that all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences for their commission with a dangerous weapon, receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense or for any other crime.Stokes, 858 F. Supp. at 442, quoting Senate Judiciary Report, S.Rep. No. 225, 98th Cong., 2d Sess. 3312-313 ("Senate Judiciary Report"), reprinted in 1984 U.S. Code Cong. Admin. News 3182, 3490-91.
As a result, petitioner's claim fails because the statutes at issue do not violate the guarantee against double jeopardy under the Blockburger test and because Congress has expressly stated its intent for multiple convictions in a case such as this. Accordingly, this Court cannot offer petitioner relief on his double jeopardy claim.
CONCLUSION
For the reasons set forth above, petitioner's application for relief pursuant to 28 U.S.C. § 2255 is denied. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the petition of Dwight Collins for post-conviction relief pursuant to 28 U.S.C. § 2255, and the amendment thereto filed May 1, 2000, and the Court having considered the submissions of the parties, and for the reasons stated in the Opinion of today's date;
IT IS this ___ day of July, 2000, hereby ORDERED that petitioner's motion for leave to amend be, and hereby is, GRANTED, and;
IT IS FURTHER ORDERED that the petition of Dwight Collins for relief from his conviction and sentence, pursuant to 28 U.S.C. § 2255 be, and hereby is, DENIED.