Opinion
00 Civ. 3513 (RPP), 99 Cr. 586 (RPP).
August 14, 2001.
Petitioner Pro Se, Eugene Romero, Reg. No. 07433-158, United States Penitentiary, Leavenworth, Kansas.
Counsel for Respondent, Mary Jo White, United States Attorney for the Southern District of New York, New York, NY.
OPINION AND ORDER
Petitioner Eugene Michael Romero moves to vacate and remand his convictions for engaging in a continuing criminal enterprise ("CCE"), in violation of 2l U.S.C. § 848(a), and conspiracy to distribute or to possess with intent to distribute heroin, in violation of 2l U.S.C. § 812, 841(a)(1), (b)(1)(A), and 846. Petitioner brings two challenges to his CCE conviction. First, Petitioner argues that the Court improperly instructed the jury in violation of Richardson v. United States, 526 U.S. 813 (1999), in that it failed to advise the jurors that they must unanimously agree on each particular violation that constitutes the series of violations, and that, under Richardson, he is actually innocent of this charge. Second, Petitioner argues that he received ineffective assistance of counsel from both his trial and appellate counsel in that neither of them objected to the lack of a specific unanimity instruction. In challenging his conspiracy to distribute or possess with intent to distribute heroin conviction, Petitioner argues that the Court improperly determined the amount of drugs in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), in that the sentencing judge, not the jury, made the factual finding as to the amount of drugs involved. For the reasons that follow, the motion is granted in part and denied in part, and Petitioner's conviction for engaging in a continuing criminal enterprise is vacated.
Background
Petitioner was arrested in August of 1991 and indicted for four offenses: Count One — conspiracy to distribute or to possess with intent to distribute heroin, in violation of 2l U.S.C. § 812 , 841(a)(1), (b)(1)(A), and 846; Count Two — conspiracy to tamper with and kill a potential government witness, in violation of 18 U.S.C. § 371; Count Three — procuring the murder of a potential government witness with the purpose of preventing the witness from providing evidence to the government relating to violations of the federal narcotics law, in violation of 18 U.S.C. § 1512 (a)(1)(c); and Count Four — engaging in a continuing criminal enterprise as an organizer, supervisor, and manager, in violation of 2l U.S.C. § 848(a). Petitioner pleaded not guilty to all charges and made a motion to dismiss Counts One and Four of the indictment, which was denied, and the denial was affirmed on interlocutory appeal. See United States v. Romero, 786 F. Supp. 1173 (S.D.N.Y.), aff'd 967 F.2d 63 (2d Cir. 1992). Voir dire and the jury trial for Petitioner and two codefendants began on May 26, 1992. At the trial, the Government presented its case, establishing that from 1979 through 1991, Petitioner acted as the leader of a massive narcotics organization involving many individuals, including Petitioner's wife and girlfriend, that packaged, distributed, and sold heroin in New York, Connecticut, Washington D.C., and Michigan. The Government also offered evidence to show that Petitioner and others in the organization murdered competitors and suspected informants in furtherance of its drug operation.
In his motion to dismiss, Petitioner argued that the prosecution for Counts One and Four was barred on double jeopardy and estoppel grounds. Petitioner based this argument on a 1987 plea agreement in which he pleaded guilty to a possession with intent to distribute heroin charge in the District of Columbia, and to a RICO conspiracy charge in the Southern District of New York. Petitioner argued that the Government should be barred from pursuing Counts One and Four because all of the alleged activity was covered by the 1987 plea agreement. The Court denied Petitioner's motion on collateral estoppel, finding that the Government did not have sufficient evidence of these offenses at the time of the 1987 agreement and that the offenses were not covered by that agreement.See United States v. Romero, 786 F. Supp. 1173, 1178-79 (S.D.N.Y. 1992). The Court also denied Petitioner's double jeopardy motion once the Government filed a superseding indictment that restricted Count One to activities occurring after 1987. See id. at 1179-82. As for Count Four, the Court held that activities covered by the 1987 agreement could be used as predicate acts for the CCE without constituting double jeopardy as long as the CCE conduct was "broader...and had continued for some months after the end" of the 1987 conduct. Id. at 1182. The Second Circuit affirmed the Court's ruling, finding that "the [1991] indictment does not constitute prosecution for the same offense as that to which appellant had previously pled guilty and. . . the prior plea agreement does not encompass the present indictment...." United States v. Romero, 967 F.2d 63, 64 (2d Cir. 1992).
The Government alleged that the activities covered by Count One of the indictment began in 1979. However, according to the second superseding indictment, Petitioner was named as an unindicted coconspirator for the conduct from 1979 through August 20, 1987, and as a defendant from August 21, 1987 forward. By narrowing Count One to conduct occurring after Petitioner's 1987 plea agreement, the Government avoided the double jeopardy problem.
On June 16, 1992, the jury returned a guilty verdict on all four counts for Petitioner. Following trial, Defendant made motions to set aside the verdict, for a new trial, and to sever Counts Two and Three. These motions were prefaced on Petitioner's claim that his trial counsel was ineffective. On November 22, 1993, the Court issued an opinion finding that Petitioner's trial counsel was effective and denying all of the motions. See United States v. Romero, 91 Cr. 586 (RPP), 1993 WL 485677 (S.D.N.Y. Nov. 22, 1993). On December 23, 1993, this Court sentenced Petitioner to a term of five years imprisonment and three years supervised release on Count Two, a term of life imprisonment on Count Three, and a term of life imprisonment and a fine of $50,000 on Count Four. Because Count One constituted a lesser included offense of Count Four, Petitioner did not receive a separate sentence for Count One. Petitioner appealed a number of the Court's decisions, and the Second Circuit rejected all of Petitioner's claims and affirmed on September 12, 1995. See United States v. Romero, 54 F.3d 56 (2d Cir. 1995),cert. denied, 517 U.S. 1149 (1996).
Pursuant to Second Circuit precedent, the Court did not impose a sentence for Count One, over Petitioner's objection. (See Tr., 12/23/93, at 42-44). According to United States v. Estrada, 751 F.2d 128 (2d Cir. 1984), in cases involving CCE counts where predicate offenses, such as conspiracy to violate the federal narcotics laws, are also charge separately, the court should only sentence a defendant on the CCE charge, not on any underlying charges:
Id. at 135. The court further held, "Should the conviction on [the compound count] be overturned as a matter of law, the defendant is not entitled to a new trial on [the lesser count] but only to a resentencing." Id.; see also United States v. Sperling, 560 F.2d 1050, 1055 (2d Cir. 1977) (holding that the conspiracy was a lesser included offense of the CCE charge and therefore vacating the sentence, but not the conviction, for the conspiracy count).
[T]he convictions on the lesser counts become combined with that on the compound offense and would not be merged out of existence. This leaves the part of the conviction on the lesser offense unaffected should the compound offense be invalidated as a matter of law. The convictions on the lesser offenses would not exist as separate convictions so long as the § 848 conviction remained in place.
Following this precedent, the Court sentenced Petitioner to life imprisonment on Count Four and did not impose any sentence on Count One. Should Count Four be vacated, Petitioner would be subject to sentencing on Count One.
On appeal, Petitioner challenged (1) the trial court's refusal to sever Counts Two and Three, and alleged (2) ineffective assistance of counsel; (3) Brady violations; (4) insufficient evidence; (5) due process violations in the delayed filing of his indictment; and (6) the presentation of false evidence to the grand jury.
Petitioner started the instant action by filing a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, dated April 17, 2000. Petitioner later filed additional papers, dated May 26, 2000, labeled as a motion to vacate his sentence, pursuant to U.S.C. § 2255. Because Petitioner is seeking to challenge his conviction and vacate his sentence, and because Petitioner is not otherwise barred from bringing a § 2255 motion, the Court construes his papers as a motion and amended motion, pursuant to 28 U.S.C. § 2255. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("It is routine for courts to construe prisoner petitions without regard to labeling in determining what, if any, relief the particular petitioner is entitled to.").
The Court assumes Petitioner's intent in filing both a § 2241 petition and a § 2255 motion was to prevent the Court from dismissing the motion as procedurally barred and thus ensure the Court would reach the merits of his claim under one of the two statutory sections. Because Petitioner raises the same arguments in both actions, the Court need not treat them as separate motions. Instead, it is necessary to determine which statutory section is appropriate for Petitioner's challenges.
Although § 2241 and § 2255 are both tools of collateral attack, § 2241 is the statutory section presenting the traditional writ of habeas corpus and is appropriate when a prisoner is challenging the manner of execution of a federal sentence (e.g., conditions of confinement), or where § 2255 relief is not available. Section 2255 is a separate statutory remedy for federal prisoners to collaterally attack their sentences. See United States v. Hayman, 342 U.S. 205 (1952). Section 2255 motions are appropriate when a prisoner is challenging imposition of a federal sentence. See 2 James S. Liebman Randy Hertz, Federal Habeas Corpus Practice and Procedure § 41.2a, at 1564 (3d ed. 1998) ("In modern postconviction practice, section 2255 of the Judicial Code largely supplants the traditional remedy of habeas corpus as the means by which federal prisoners may challenge the lawfulness of their incarceration." (footnotes omitted)). See 28 U.S.C. § 2255. In certain circumstances, exceptions are made and a federal prisoner can bring a writ of habeas corpus under § 2241 if a § 2255 motion is "inadequate or ineffective." Because Romero has not filed any other § 2255 motions and is not otherwise procedurally barred from bringing a § 2255 motion, this exception is not applicable here.
Petitioner is challenging the validity of his conviction and sentence and thus, is bringing a challenge to the imposition of his sentence. This is most appropriately brought under § 2255. Furthermore, § 2241 petitions must be brought in the district of confinement. See United States v. Russ, 520 F.2d 598, 603 (2d Cir. 1973). Because Petitioner is confined in Kansas, this Court has no jurisdiction to hear such a petition. As the sentencing court, however, this Court has jurisdiction to hear a § 2255 motion.
Petitioner's claim is attacking his conviction and sentence and, thus, is most properly considered as a motion to vacate his sentence under § 2255.
This is Petitioner's first attempt at collaterally attacking his conviction, thus he is not barred by rules against successive applications. In addition, Petitioner meets the one-year limitation period. Section 2255 states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
28 U.S.C. § 2255. As the analysis below will show, Richardson announced a new substantive rule that applies retroactively on collateral review. The Supreme Court decided Richardson on June 1, 1999. Petitioner filed his papers in April and May of 2000. Thus, Petitioner filed his motion within the one-year limitation period. See United States v. Lopez, 248 F.3d 427, 430-32 (5th Cir. 2001) (holding that Richardson is a new rule of law that applies retroactively on collateral review and, thus, meets the one-year limit of § 2255(3)).
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review..
Discussion
I. Continuing Criminal Enterprise A. The rule of Richardson v. United States.
Statute 21 U.S.C. § 848 (c) provides:
[A] person is engaged in a continuing criminal enterprise if — (1) he violates any provision of this subchapter or subchapter II of this chapter [, which contain the federal narcotics laws,] the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter — (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources.
In Richardson v. United States, 526 U.S. 813 (1999), the Supreme Court addressed the meaning of the phrase "series of violations" contained in § 848(c)(2). The Court held that each violation that makes up the "series of violations" is a separate element "in respect to each of which the jury must agree unanimously and separately." Id. at 818. (The Court assumed without deciding that a series of violations is made up of three or more violations. See id.) Prior to the Court's decision, some circuits interpreted "series of violations" as a single element and did not require jury unanimity as to each of the particular violations that made up that series. Richardson clarified that "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some "continuing series of violations' but also that the defendant committed each of the individual "violations' necessary to make up that "continuing series.'" Id. at 815. Thus, Richardson requires jury instructions that contain a specific unanimity instruction as to each violation.
B. Retroactive application of Richardson.
In order to determine whether the unanimity rule of Richardson applies retroactively to cases on collateral review, it is necessary to decide ifRichardson announced a new rule of criminal procedure or a new rule of substantive criminal law. New substantive rules apply retroactively on collateral review, whereas new procedural rules do not apply retroactively on collateral review unless they fall within two narrow exceptions. See United States v. Mandanici, 205 F.3d 519, 525 (2d Cir. 2000) ("While a new rule of constitutional criminal procedure generally does not apply retroactively on collateral review, a new rule of substantive criminal law is presumptively retroactive."); Bousley v. United States, 523 U.S. 614, 620 (1998) (holding that "because Teague by its terms applies only to procedural rules, we think it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress"); Teague v. Lane, 489 U.S. 288, 310 (1989) ("Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.").
Because Richardson interpreted 21 U.S.C. § 848 (a) as requiring proof beyond a reasonable doubt of each violation comprising the continuing series of violations of the federal narcotics laws and not just proof beyond a reasonable doubt of a series of violations of the federal narcotics laws, the Supreme Court determined the elements of a substantive crime, not a rule of procedure. As a substantive decision that interprets a criminal statute, Richardson applies retroactively to cases on collateral review. The vast majority of courts considering this issue agree. See United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001) ("We find, however, that Teague is inapplicable, becauseRichardson consisted of the Supreme Court's interpretation of a statute and is therefore retroactively available on collateral review."); Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000) ("Richardson simply articulated the meaning of `continuing series of violations' in § 848, and Teague is inapt here where we interpret a criminal statute.");Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000) ("Richardson involves the substantive construction of a criminal statute.... Therefore, in light of Bousley, Richardson applies retroactively because it set forth substantive law."); Monsanto v. United States, 143 F. Supp.2d 273, 279 (S.D.N.Y. 2001) ("Richardson announced a new substantive rule of law which applies retroactively."); see also United States v. Long, 190 F.3d 471, 476 n. 3 (6th Cir. 1999); Benevento v. United States. 81 F. Supp.2d 490, 493 (S.D.N.Y. 2000) ("Richardson explicitly redefines the substance of a CCE violation by redefining its elements.... In... redefining the elements of a CCE violation,Richardson announces a substantive change in criminal law and therefore applies retroactively."); see also United States v. Stitt, 250 F.3d 878 (4th Cir. 2001); United States v. Brown, 202 F.3d 691, 699-703 (4th Cir. 2000); United States v. Richardson, 233 F.3d 223 (4th Cir. 2000); United States v. Scott, 218 F.3d 835, 838-39 (8th Cir. 2000); United States v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000). But see Rice v. United States, 118 F. Supp.2d 451, 452 (S.D.N.Y. 2000) ("Rather than a substantive change in the law, theRichardson decision is more accurately seen as a procedural rule under the Bousley analysis — a rule that provides a procedure to improve the accuracy of convictions under the CCE statute."). Because Petitioner filed his papers in April and May of 2000, which was within one year of the Richardson decision, and because Richardson announced a new rule of substantive law that applies retroactively to cases on collateral review, Petitioner's motion is timely and can be considered on the merits. See 28 U.S.C. § 2255 (3); United States v. Lopez, 248 F.3d 427 (5th Cir. 2001).
The Supreme Court's recent decision in Tyler v. Cain, — U.S. — , 121 S.Ct. 2478 (2001), does not change this conclusion. InTyler, the Court addressed when a new rule of constitutional law applies retroactively to cases on collateral review for the purposes of 28 U.S.C. § 2244, the rule governing successive habeas petitions. According to the Court's decision, "a new rule is not made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Tyler, ___ U.S. at ___, 121 S.Ct. at 2482 (quoting 28 U.S.C. § 2244 (b)(2)(A)). In so holding, the Court denied district and circuit courts the ability to make independent assessments as to whether new rules fit the exceptions for retroactive application such that they should apply on collateral review. See id. ("The Supreme Court does not `ma[k]e' a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts.").
Two reasons distinguish the Tyler holding from the case at hand. First, the decision itself is based not on a policy analysis but on a strict interpretation of the plain meaning of the language of the statute, § 2244(b)(2)(A). The decision is limited to that statute and does not discuss AEDPA generally or other provisions of AEDPA. There is no mention of the interpretation of any rule other than the rule for successive petitions set out in § 2244(b)(2)(A). Specifically, the opinion does not refer to § 2255. Second, there is no reason to extend the holding of Tyler to this case because the language of the two relevant statutes — § 2244(b)(2)(A) in Tyler and § 2255(3) here — is different. According to the language of § 2244(b)(2)(A):
(b)(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless- (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The placement of "by the Supreme Court" after "new rule of constitutional law" and "made retroactive" supports the interpretation that the Supreme Court must make the new rule of law and the Supreme Court, not lower courts, must hold it retroactive on collateral review. Conversely, the relevant part of § 2255, governing the imposition of the time limit for filing habeas petitions, states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — ... (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."
In § 2255(3), unlike in § 2244(b)(2)(A), the phrase "by the Supreme Court" comes only after "has been newly recognized," not after "made retroactively applicable." Unlike § 2244(b)(2)(A), § 2255(3) does not state that the Supreme Court must be the court to declare a new rule retroactive. Furthermore, the plain meaning of the word order does not suggest that the Supreme Court itself must make the right retroactive for purposes of the one-year time limit under § 2255(3), and there is not reason to interpret the statute contrary to the plain meaning of its language. See Richardson, 526 U.S. at 818 ("When interpreting a statute, we look first to the language.") see also Tyler, — U.S. at — , 121 S.Ct. at 2482 (arriving at the holding "[b]ased on the plain meaning of the text read as a whole"). Therefore, the Tyler opinion interpreting different language of a different statute that governs a different rule of AEDPA does not change the above analysis with regard to applying the one-year time limit for first time petitions under § 2255. Accordingly, Richardson applies retroactively to cases on collateral review.
C. Harmless error analysis.
Having determined that Richardson announced a new substantive rule that applies retroactively to cases on collateral review and that Petitioner's motion is timely, the next step is to determine whether Petitioner's jury instruction on the CCE count was, in fact, erroneous under Richardson, and whether any error was harmless.
1. The CCE instruction.
At trial, the Court did not give a specific charge requiring unanimity as to each violation making up the series of violations in the CCE count. Indeed, the Government does not argue that the charge given conforms to the requirements of Richardson. (Gov't's Mem. of Law in Opp. at 25 ("[T]here is no dispute that the Court here did not properly instruct the jury — in light of Richardson....").) Thus, the jury instructions given on the CCE count were clearly erroneous underRichardson in that they did not require unanimity for each specific violation.
The entire jury charge on Count Four is contained in App. to Gov't's Mem. of Law in Opp'n, Tr., 06/12/92, at 2401-17. The charge on the "series of violations" section of Count Four is at id. at 2411-13, and is as follows:
Now, the second element that you must find in order to convict the defendant Mr. Romero on Count Four is that he committed one or more of these offenses as part of a continuing series of violations by him of the federal narcotics laws. In this instance, a series means three or more such violations. Now, in determining whether the defendant's conduct was part of such a continuing series of violations, you may look to the narcotics conspiracy to possess and to distribute heroin charged in Count One. That is, you may find that the evidence presented with respect to the conspiracy charged against Mr. Romero in Count One supports a finding of such a series of violations. You may also look to evidence of any violations which are not charged as separate counts in the indictment but which you find are established by evidence, including the testimony of witnesses or other evidence admitted during the trial. As I mentioned a moment ago, you may consider whether the evidence shows other offenses, such as defendant's use of a telephone to facilitate a violation of the federal narcotics laws against distribution of heroin, or any distribution of heroin by the defendant, or any possession of heroin with intent to distribute heroin by the defendant. You may also look to any narcotics laws offenses that Mr. Romero did not personally commit but that you find he aided, abetted, commanded or procured. With respect to those offenses which are not specifically charged in the indictment, if you find, in accordance with the instructions I have given you, that the defendant Romero committed any of those offenses, you can consider those offenses in determining whether his conduct from 1979 to February 1992 was part of a continuing series of violations of the federal narcotics laws. Now, I instructed you earlier in the charge that you may not consider prior convictions of the defendant as evidence of guilt in this case. You will recall that the government introduced evidence that the defendant Eugene Romero pleaded guilty to the possession of heroin in Washington, D.C. in 1987. You may not consider this conviction with respect to Eugene Romero's guilt or innocence on Count One, because this offense took place prior to August 20, 1987. However, you may consider Eugene Romero's conviction in Washington, D.C. in 1987 for possession of heroin as proof of his guilt of a violation of the federal narcotics laws on Count Four, which calls for you to consider whether Eugene Romero participated in a series of narcotics violations between 197879 [sic] and February 1992.
2. Error analysis.
a. Which error standard applies?
Although there is no dispute that the jury instructions on the CCE count were erroneous, this error is subject to an error analysis before it can be determined whether it constitutes reversible error. Among the courts that have reviewed Richardson claims thus far, there is some disagreement over which harmless error standard applies. Chapman v. California, 386 U.S. 18 (1967), established the general standard for harmless error review of cases on direct review: The government has the burden of proving "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24. InBrecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court established a different standard for harmless error review of cases on collateral attack: The petitioner has the burden of showing the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, a petitioner must establish "actual prejudice" in order to obtain relief on collateral attack. See id.
Petitioner did not object to the CCE instruction at trial and did not challenge it on direct appeal. Ordinarily, such a failure would constitute a procedural default of the claim and require that the petitioner show cause for the default and actual prejudice from the error in order to proceed with the claim on collateral review. See Bousley v. United States, 523 U.S. 614, 622 (1998) ("Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can demonstrate either cause and actual prejudice, or that he is actually innocent." (internal quotations omitted)); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) ("We now hold that failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice."). Because, however, the Government did not raise a procedural default objection in response to Petitioner's motion, this Court declines to apply a procedural default analysis and instead proceeds with a harmless error analysis. See United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997) (declining to consider a procedural default defense when the government did not raise it in the district court (citing United States v. Quiroz, 22 F.3d 489, 491 (2d Cir. 1994))); Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (reaching the merits of petitioner's claim raised in a § 2255 motion even though he did not raise the issue on direct appeal because the government did not raise the procedural default argument).
For cases holding that Richardson announced a retroactive rule of substantive law but that petitioner's claim is procedurally defaulted due to the failure to raise it on appeal, See United States v. Lopez, 248 F.3d 427 (5th Cir. 2001); United States v. Stewart, -F.3d-, 2001 WL 760262 (4th Cir. July 6, 2001); United States v. Stitt, 250 F.3d 878 (4th Cir. 2001); United States v. Scott, 218 F.3d 835, 838 (8th Cir. 2000);. All of these cases applied a plain error analysis and concluded that, although there was an error in fact and the error was plain, the Petitioner could not show that the error "affected the substantial rights of the defendant." Johnson v. United States, 520 U.S. 461, 467 (1997). Without this showing that the Petitioner was prejudiced by the error, the courts held that the erroneous instructions did not satisfy the plain error standard, and the motions were denied.
Petitioner's claim is in the form of a collateral attack, which suggests that the Brecht standard presents the correct harmless error standard. One Southern District Judge reviewing a similar case of aRichardson error on a § 2255 motion, however, held that Brecht does not apply on collateral review if "a petitioner's claim was never evaluated under the more stringent Chapman standard." Monsanto v. United States, 143 F. Supp.2d 273, 283 (S.D.N.Y. 2001) (noting that while most circuits have applied the Brecht standard regardless, the Eighth Circuit applies Chapman "where a habeas petitioner has never had his claim evaluated on direct review under the more stringent Chapman standard" (citing Orndorff v. Lockhart, 998 F.2d 1426, 1429-30 (8th Cir. 1993),cert. denied 511 U.S. 1060 (1994)). This Court agrees with the thorough analysis performed in Monsanto and holds that Chapman is the appropriate harmless error standard to apply in this case. See Monsanto, 143 F. Supp.2d at 280-286. Thus, in order for the court to find the jury instruction error harmless, the Government must show "beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U.S. 1, 18 (1999). In Neder the Supreme Court applied the Chapman harmless error rule to a case in which the jury instructions omitted an element of the offense. The Second Circuit has interpreted the holding of Neder as follows:
In sum, Neder instructs that, in reviewing a trial court's instruction that erroneously omits an element of the offense, we should begin by asking whether the evidence in the record could rationally lead to a finding favoring the defendant on the omitted element, If the answer to that question is "no," we should conclude that the error was harmless. If the answer is "yes," we must then ask whether the verdict, absent the error, would have been the same. If we conclude that the answer to that second question is "yes" beyond a reasonable doubt, the error was harmless.United States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999); see also Lanier v. United States, 220 F.3d 833, 839 (7th Cir. 2000) (applyingNeder's harmless error standard on collateral review of Richardson error); Monsanto, 143 F. Supp.2d 273.
In the case at hand, the jury instructions omitted a specific unanimity instruction for each of the violations making up the series of violations. Therefore, applying the harmless error analysis in this case means that the Government must show beyond a reasonable doubt that the jury would have unanimously agreed on the identity of the three or more violations that made up the series and that the violations were related to one another. See United States v. Jesus, 187 F.3d 148 (1st. Cir. 1999), cert. denied, 528 U.S. 1176 (2000).
b. Applying the Chapman standard.
There can be no reasonable doubt that the jury unanimously agreed on the identity of two of the necessary three violations that made up the series of violations: the conspiracy to distribute or possess with intent to distribute heroine offense charged in Count One, and the possession with intent to distribute heroin offense that Petitioner pleaded guilty to in 1987 in the District of Columbia. Whether the jury would have unanimously agreed to the identity of the necessary third violation, absent the erroneous instruction, is less obvious.
(i) The first violation: the guilty verdict on Count One. conspiracy to distribute or possess with intent to distribute heroin
The law is clear that a conspiracy drug offense may be counted as one of the three violations that make up the series of violations for a CCE offense. This is true even if it is also counted as the predicate felony required for the first element of a CCE offense. In United States v. Young, 745 F.2d 733 (2d Cir. 1984), the Second Circuit held that a § 846 conspiracy may be one of the predicate felonies under § 848(a)(1) and one of the violations making up the series of violations under § 848(a)(2). In ruling that "a "continuing series' of violations [may] consist of a § 846 offense and two of the other designated offenses..." id. at 751, the Circuit noted:
In the absence of any indication that congress intended to impose the unusual requirement that each element of a compound offense like § 848 should be satisfied by distinct and independent proof, we are unwilling to read such a limitation into the statute. We therefore hold that a lesser included § 846 conspiracy offense may serve as a predicate offense for a § 848 continuing criminal enterprise.Id. at 751-52.
In Petitioner's case, the jury found him guilty of Count One, the conspiracy to distribute or possess with intent to distribute heroin charge. Count One is an eligible violation that may be counted in the series of violations for a CCE offense. Because the jury unanimously found Petitioner guilty of Count One, and because Count One is counted as a violation in the series of violations, Petitioner cannot in good faith contend that the jury would not have unanimously agreed as to the identity of Count One as one of the three violations making up the series of violations. See United States v. Jesus, 187 F.3d 148, 162 (1st Cir. 1999) ("The guilty verdicts on [separately charged felony drug offenses]... are tantamount to the jury having found that he committed each of these violations for the purposes of the CCE count."), cert. denied, 528 U.S. 1176 (2000); Benevento v. United States, 81 F. Supp.2d 490, 493 (S.D.N.Y. 2000) ("[T]he jury, in convicting the defendant on all the other six counts of which he was charged, necessarily agreed unanimously that the defendant had committed each of three (or more) specific offenses that constituted a series of related predicate violations sufficient to support the CCE charge.").
(ii) The second violation: the 1987 guilty plea to possession with intent to distribute heroin
Petitioner's 1987 guilty plea may also serve as one of the predicate violations making up the series of violations. In fact, this Court previously determined, in a prior opinion in this case, that the guilty plea may count as a violation. "It should be noted...that much of the new evidence relating to the prior charges to which Mr. Romero pleaded guilty in August 1987. . . is admissible against Mr. Romero for purposes of proving Count Four, the CCE charge." United States v. Romero, 786 F. Supp. 1173, 1181 (S.D.N.Y. 1992) (citing Garrett v. United States, 471 U.S. 773 (1985) and United States v. Gambino, 920 F.2d 1108, 1112 (2d Cir. 1990)). The Court instructed the jury accordingly.
The jury was instructed as follows:
Now, I instructed you earlier in the charge that you may not consider prior convictions of the defendants as evidence of guilt in this case. You will recall that the government introduced evidence that the defendant Eugene Romero pleaded guilty to the possession of heroin in Washington, D.C. in 1987. You may not consider this conviction with respected to Eugene Romero's guilty or innocence on Count One, because this offense took place prior to August 20, 1987. However, you may consider Eugene Romero's conviction in Washington, D.C. in 1987 for possession of heroin as proof of his guilt of a violation of the federal narcotics laws on Count Four, which calls for you to consider whether Eugene Romero participated in a series of narcotics violations between 197879 [sic] and February 1992.
(Tr., 06/12/92 , at 2412-13.)
Petitioner pleaded guilty to the offense of possession with intent to distribute heroin. The offense is eligible to count as one of the three necessary violations constituting the series of violations. Evidence about the guilty plea was presented to the jury, and the jury was properly instructed concerning how it could consider the plea. Therefore, it cannot seriously be disputed that the jury would have unanimously found beyond a reasonable doubt that this was one of the three violations that made up the series of violations.
(iii.) The third violation
In this case, the Court instructed the jurors in accordance with Second Circuit precedents that they may consider violations not alleged in the indictment. See United States v. Sperling 506 F.2d 1323, 1344 (2d Cir. 1974) and United States v. Simmons 923 F.2d 934, 952 (2d Cir. 1991). In view of Richardson, this instruction would not comply with the requirement that every material element of an offense be alleged in the indictment. See also United States v. Tran, 234 F.3d 798 (2d Cir. 2000). Nevertheless, many of the overt acts alleged in Count One are eligible to be predicate offense for the violations of Count Four. See United States v. Tipton, 90 F.3d 861, 884 (4th Cir. 1996) ("This language essentially tracked the statutory definition of the offense and hence satisfies basic constitutional guarantees. ....Count 2, as indicated, identified and incorporated by reference all violations of 21 U.S.C. § 841 and 846 charged against the appellants elsewhere in the indictment."); United States v. Stages, 881 F.2d 1527, 1531 (10th Cir. 1989) ("[A] CCE indictment is sufficient where, as here, the CCE counts charge appellants in the language of the statute, and the indictment additionally alleges at least three violations in another count or counts."); United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984) (holding a CCE indictment is sufficient where other counts and the allegations contained in other counts are or contain potential violations); see also United States v. Paulino, 935 F.2d 739 (6th Cir. 1991) (same). In this case, Count One of the indictment alleges approximately thirty-five overt acts. Any of those overt acts that is also a felony narcotics offense as enumerated in subchapters I or II of Title 21 may count as a violation for purposes of the series of violations.
The Court charged the jury on the series of violations as follows:
You may also look to evidence of any violations which are not charged as separate counts in the indictment but which you find are established by evidence, including the testimony of witnesses or other evidence admitted during the trial.
Tr., 06/12/92, at 2411.
Id. at 2412.
With respect to those offenses which are not specifically charged in the indictment, if you find, in accordance with the instructions I have given you, that the defendant Romero committed any of those offenses, you can consider those offenses in determining whether his conduct from 1979 to February 1992 was part of a continuing series of violations of the federal narcotics laws.
The overwhelming majority of cases reviewing claims of Richardson errors have concluded that the lack of a specific unanimity instruction was erroneous but harmless. In fact, of all the cases this Court reviewed, it uncovered only one circuit court case in which the court held that the Richardson error was not harmless and vacated the conviction. See United States v. Brown, 202 F.3d 691, 703 (4th Cir. 2000) ("In this circumstance, we are unable to conclude, beyond a reasonable doubt, that the jury would have agreed upon three specific predicate offenses.... We must therefore reverse Brown's CCE conviction."). Almost every single one of these cases, however, reviewed a case in which the defendant was also convicted of charges in the indictment with numerous separate offenses that could constitute the predicate violations making up the series of violations for a CCE offense. Therefore, if the jury found a defendant guilty of three or more separate offenses, all of which were predicate offenses which could count as violations making up the series of violations, there was little doubt that the jury had, in fact, unanimously agreed on the identity of each separate violation. Although it is true that the government is not required to separately charge and obtain a conviction on the offenses that make up the series of violations, the fact that they were separately charged and that the jury found a defendant guilty of the individual offenses leaves no reasonable doubt that it unanimously agreed as to which violations made up the series of violations. See e.g., United States v. Lone, 190 F.3d 471, 476 n. 3 (6th Cir. 1999) ("In this case, the error was clearly harmless as the jury also unanimously found him guilty of more than three drug violations committed in the course of the ongoing conspiracy to distribute cocaine."); United States v. Jesus, 187 F.3d 148, 162 (1st Cir. 1999) ("The guilty verdicts on... [separate counts, each of which are eligible to be a predicate violation] are tantamount to the jury having found that he committed each of these violations for the purposes of the CCE count."), cert. denied, 528 U.S. 1176 (2000); Benevento v. United States, 81 F. Supp.2d 490, 493 (S.D.N.Y. 2000) ("Here, however, the jury, in convicting the defendant on all the other six counts of which he was charged, necessarily agreed unanimously that the defendant had committed each of three (or more) specific offenses that constituted a series of related predicate violations sufficient to support the CCE charge."); see also Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000); Lanier v. United States, 220 F.3d 833, 837-8 (7th Cir. 2000);Monsanto v. United States, 143 F. Supp.2d 273 (S.D.N.Y. 2001).
In Petitioner's case, however, as in Brown, the Government did not separately charge at least three violations. The Government did present a great deal of evidence of other acts by the defendant that could constitute violations of the federal narcotics law such as aiding and abetting in the distribution of red apple brand heroin in various locations in the Southern District of New York, Washington D.C., Boston, etc. and using a telephone to facilitate a violation of the narcotics laws. Much of the evidence consisted of testimony from cooperating coconspirators who were alleged to be or who admitted to being participants in the organization and gave highly convincing testimony about the activities of the defendant as the conspiracy's supervisor. However the government has not attempted to show proof beyond a reasonable doubt of a third violation, and without a separate verdict of guilty on a third predicate violation offense, this Court cannot conclude beyond a reasonable doubt that the jury would have unanimously agreed to the identity of a third violation making up the "series of violations", had they been properly instructed. Accordingly, the Court cannot find harmless error.
II. Ineffective Assistance of Counsel
Petitioner challenges the performance of both his trial and appellate counsel as ineffective. The ground for this challenge is the failure of both counsel to either request a charge instructing the jury that they must unanimously agree to each specific violation that makes up the series of violations for the CCE offense or to object to the lack of such a specific unanimity charge. Inexplicably, the Government did not respond to this challenge.
To bring a successful claim for ineffective assistance of counsel, a petitioner must show both (1) that his counsel's performance was deficient and (2) that his counsel's deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687 (1984). This is the test for both trial and appellate counsel. See Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998). To establish deficiency, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Because a petitioner must establish both deficiency and prejudice to succeed on an ineffective assistance of counsel claim, if the petitioner cannot establish one prong, the court need not analyze the remaining prong. See id. at 697.
The difficulty in Petitioner's claim is that he alleges his counsel were ineffective for failing to raise, object, or appeal an instruction that was not erroneous at the time of trial or appeal. The Supreme Court did not rule that jury instructions for CCE offenses need to contain a specific unanimity requirement for each violation until 1999, seven years after Petitioner's trial and four years after his appeal. At the time the instruction was given, it was not inconsistent with Second Circuit and Supreme Court law. "Counsel is not required to forecast changes in the governing law." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Counsel should be aware of the potential for change, however, and courts must look to the state of the law as it existed at the time of counsel's performance to determine whether an issue should have been raised. See Bloomer, 162 F.3d at 193 ("Although an attorney is not usually faulted for lacking the foresight to realizes that a higher court will subsequently identify a defect in jury instructions similar to those used at his client's trial, an attorney nonetheless may be held responsible for failing to make such an objection when precedent supported a "reasonable probability' that a higher court would rule in defendant's favor." (citations omitted). For example, in Mayo, the Second Circuit held that counsel acted unreasonably in failing to raise a claim on appeal where there were clear indications in New York Court of Appeals cases that the trial court acted erroneously. See Mayo, 13 F.3d at 534-36. If at the time of Petitioner's trial, there was evidence that the law on CCE instructions might change, Petitioner's attorneys may have been obliged to object, even though the instructions given had not yet been declared erroneous. However, a review of the case law developing in the 1990s does not support Petitioner's claim that there was sufficient possibility of change such that his attorneys should have had the foresight to object. In United States v. Ogando, 968 F.2d 146 (2d Cir. 1992), the Second Circuit commented favorably on the use of special interrogatories that required the jury to specify which supervisors and which violations comprised the CCE count, but they did not require such an instruction and did not reverse a conviction for the failure to do so. Later, in United States v. Alli-Balogun, 72 F.3d 9 (2d Cir. 1995), the Second Circuit noted that the Third and Seventh Circuits had conflicting rules on the need for unanimity instructions as to the series of violations, the Third requiring it and the Seventh not, but that the Second Circuit had not yet squarely addressed the issue. In holding the lack of a specific unanimity test was not erroneous, the Court noted, "[W]e do not see how an error can be plain error when the Supreme Court and this court have not spoken on the subject, and the authority in other circuits is split." Alli-Balogun, 72 F.3d at 12. Again, the court declined to squarely address the issue. "We do not need to decide whether the statute before us requires a specific unanimity instruction, and whether a failure to give such a unanimity instruction, had it been requested, would have been reversible error." Id. at 13. Although the Second Circuit did not decide the issue, other than to hold it was not plain error to decline to give a specific unanimity instruction, some lower courts interpreted it as a decision that such an instruction was not required. See e.g., United States v. Comer, 96 Cr. 22 (RSP), 1997 WL 473060, at *7 (N.D.N.Y. Aug. 11, 1997) ("[T]he Second Circuit ruled that defendants were not entitled to a special interrogatory requiring the jury to list the five supervisees and the three series offenses required for a Section 848 conviction." (citing United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992))).
At the time of Petitioner's trial, the Second Circuit had not issued a definitive ruling requiring a specific unanimity instruction for CCE charges. In fact, it affirmed a conviction for a CCE count in a case in which a specific unanimity instruction was not given. See Ogando, 968 F.2d at 149. Although a specific unanimity instruction was not unheard of in 1992, it was not required. See id. Counsels' failure to raise or appeal this instruction, which was not contrary to circuit law at the time, was not ineffective. See Walker v. Jones, 10 F.3d 1569, 1573 (11th Cir. 1994) (rejecting petitioner's ineffective assistance of counsel claim for failure to object to a jury instruction later found erroneous where the lower courts had rejected challenges to the jury instructions and the Supreme Court had not yet ruled on the issues); Garcia v. United States, 15 F. Supp.2d 367, 379 (S.D.N.Y. 1998) ("An attorney's assistance does not fall below an objective standard of reasonableness when he fails to make an argument that conflicts with existing law."). Cf. United States v. Scott, 218 F.3d 835, 837-38 (8th Cir. 2000) (denying an ineffective assistance of counsel claim on the grounds that there was no prejudice and noting that at the time of trial and appeal, the Supreme Court had not yet ruled on the CCE issue, the circuits were split, and the Eighth Circuit had not decided the issue).
III. Apprendi
Petitioner raises an Apprendi challenge with respect to Count One, arguing that the Court determined the amount of drugs involved as 300 kilograms of heroin without a jury finding the same. The Government replies that Petitioner received a sentence at or below the statutory maximum for each offense charged in the indictment, and, therefore,Apprendi does not apply.
A. Standard
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Although Apprendi clarified that a factor that increases the sentence beyond the maximum must be found by a jury, it did not establish whether all factors that can bear on sentencing are elements that need to be determined by a jury. Specifically, Apprendi did not directly hold that juries need to determine every factor that can affect sentencing; it held that juries must determine factors that increase the sentence. In the aftermath of Apprendi, the lower courts have been left to sort out exactly what kinds of factors a jury must find.
The Second Circuit has interpreted Apprendi to require that a jury must find beyond a reasonable doubt any factor that subjects a defendant to a sentence in excess of the statutory maximum, but the Circuit has also held that where a judge sentenced a defendant to or less than the maximum, no Apprendi challenge lies. "We therefore join the other nine circuits that have ruled on direct review that a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury." United States v. Garcia, 240 F.3d 180, 184 (2d Cir.) (collecting cases from other circuits). In so holding, the Second Circuit reaffirmed the role of discretion entrusted to a judge in sentencing a defendant. See id. at 183 ("We see nothing in the Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum... ."), cert. denied, 121 S.Ct. 2615 (2001).
In United States v. White, the Second Circuit again clarified thatApprendi does not give grounds for a defendant to challenge his sentence any time the sentencing judge found a factor instead of the jury. The Circuit announced:
Where, as here, factual determinations were used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process. ... Apprendi does not alter this conclusion, as, again, we read it to apply only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not when they merely affect the length of a sentence within the statutory range.United States v. White, 240 F.3d 127, 136 (2d Cir. 2001). Thus, even if a sentencing judge finds facts that affect the sentence ultimately given to the defendant, no Apprendi challenge lies unless the fact was an element of the crime or the fact served to increase the defendant's sentence beyond the statutory maximum.
B. Application
Count One of the indictment alleged that Petitioner conspired to distribute or possess with intent to distribute heroin in an amount greater than one kilogram. Thus, the Government did include an allegation of the quantity of drugs in the indictment. However, in the charge, this Court instructed the jury that it did not need to determine the amount of heroin involved in order to find Petitioner guilty of Count One. At the sentencing hearing this Court determined that the amount of heroin involved was three hundred kilograms. (See Tr., 12/23/93, at 44.)
Even though the indictment charges that the objectives of the conspiracy involved certain amounts of narcotics — in particular, 1 kilogram or more of heroin — these amounts are not an element of the criminal objective. You need only find that the co-conspirators agreed to distribute, or to possess with intent to distribute, heroin." (Tr., 06/12/92, at 2373.)
According to Second Circuit precedent, Petitioner does not have anApprendi challenge merely because the jury did not determine the quantity of drugs. Rather, an Apprendi challenge lies only if Petitioner received a sentence in excess of the statutory maximum based on the drug quantity. In Petitioner's case, because Count One merged with Count Four for sentencing purposes, Petitioner was not sentenced on Count One. See United States v. Estrada, 751 F.2d 128 (2d Cir. 1984). Because he was not sentenced on Count One, he obviously did not receive a sentence in excess of the statutory maximum due to the quantity. Therefore, Petitioner does not have an Apprendi challenge to Count One. Furthermore, Petitioner was sentenced to five years on Count Two and life imprisonment on Count One, both of which are within the statutory range. He was not sentenced in excess of the statutory maximum on any of the counts. Therefore, he cannot bring an Apprendi challenge to any of his sentences.
On June 27, 2001, the Second Circuit sitting en ban heard oral arguments in the case of United States v. Thomas, 98-1051. The Supreme Court granted certiorari to Thomas and remanded the case to the Second Circuit for review in light of Apprendi. In deciding to hear the case en banc, the Second Circuit requested briefing on the following three issues that formed the main questions for review:
United States v. Thomas 248 F.3d 76, 78 (2d Cir. 2001). Although the Second Circuit has not yet issued an opinion in Thomas, the outcome of that case will not affect Petitioner's claim in the instant § 2255 motion because this Court did not sentence Petitioner on the drug offense in Count One. Thus, even if the Second Circuit rules it is an error to for the judge to determine the amount of drugs, the error was not acted upon. Although the Court determined the relevant quantity of drugs involved to be 300 kilograms, any error did not have an effect because the Court did not sentence Petitioner on that basis. If Petitioner is sentenced on Count One, then Petitioner will be subject to any safeguards the Second Circuit may create in Thomas. However, Petitioner could still be sentenced on the drug conviction without a jury determination as to the quantity of drugs as long as he is not sentenced in excess of the statutory maximum for the offense.
(1) Does drug quantity under 21 U.S.C. § 841, when it increases a defendant's sentence above a statutory maximum, constitute an element of the offense under the analysis used in Apprendi v. New Jersey, 530 U.S. 466 (2000), Castillo v. United States, 530 U.S. 120 (2000), and Carter v. United States, 530 U.S. 255 (2000), such that it must be alleged in the indictment? (2) Assuming that an indictment's failure to allege drug quantity is error, under what circumstances is that error subject to harmless or plain error review? (3) Should this Court's analysis in the instant case be governed or influenced by United States v. Tran, 234 F.3d 798 (2d Cir. 2000), [holding that the failure of an indictment to allege every material element of the offense is a jurisdictional defect not subject to plain or harmless error review] and, if so, is Tran's reasoning sound?
Conclusion
For the reasons discussed above, Petitioner's motion under 28 U.S.C. § 2255 is granted in part and denied in part. Petitioner's conviction and sentence for engaging in a CCE, pursuant to 21 U.S.C. § 848 (a), is vacated. All of Petitioner's other motions are denied.
IT IS SO ORDERED.