Opinion
S3 02 Cr. 104 (JFK), 05 Cv. 1848 (JFK).
May 5, 2008
MEMORANDUM OPINION ORDER
Petitioner Paa Smith ("Petitioner" or "Smith") moves pro se to vacate, set aside, or correct his conviction and sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.
BACKGROUND
Petitioner's conviction stems from his arrest after participating in a "buy and bust" heroin deal. On July 2, 2002, the Government filed Superseding Indictment S3 02 Cr. 104 (JFK) against Smith. Count One charged Smith with knowingly and intentionally conspiring to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). Count Two charged Smith with distribution and possession with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.
The following facts were established at trial. In 2002, a government informant (the "GI"), acting under instructions given him by agents of the New York Drug Enforcement Task Force ("DETF"), arranged a meeting with his drug supplier in New York City to purchase one kilogram of heroin. On January 4, 2002, DETF agents brought the GI to the corner of 57th Street and 11th Avenue in Manhattan. The GI telephoned his supplier and told his supplier to meet him at that location. Several minutes later, Smith and his co-defendant, George Otibu ("Otibu"), arrived together in a taxicab. Smith exited the taxi carrying a black plastic bag.
Smith and Otibu first spoke briefly. Then Otibu met separately with the GI. After the GI showed Otibu a bag filled with sham money previously given to him by the DETF agents, Otibu signaled to Smith. Smith handed the black bag to Otibu, who then gave the bag to the GI. DETF agents subsequently arrested Smith and Otibu.
The DETF agents examined the black bag and found that it contained a box which held ten bags of beige powder. A field test confirmed that the powder tested positive for opiates. A senior forensic chemist at the DEA laboratory later confirmed that the beige powder contained heroin with a net weight of approximately 1005 grams.
The scale used to determine the weight was calibrated once a month and the margin of error was 0.01 grams.
The evidence at trial also established that Smith and Otibu knew each other. Smith possessed phone numbers that were associated with phones that Otibu owned, there were 246 phone calls placed between them, and both Smith and Otibu possessed keys to Smith's apartment. The evidence further established that Smith had substantial unexplained wealth in his bank accounts. As a taxicab driver, Smith made approximately $2500 monthly, yet his bank accounts held in excess of $137,000 in the six months preceding his arrest. Smith's counsel, George R. Goltzer, Esq. ("Goltzer") cross-examined each of the Government's witnesses, but Smith did not call any witnesses.
At the conclusion of the evidence, the Court charged the jury and provided a special verdict form. On Count One, the charge of conspiracy to distribute a controlled substance, the Court instructed the jury that if it found the defendant guilty, it must also determine whether the conspiracy involved heroin, and if so, how much. The Court also instructed the jury that the defendant would be accountable for all quantities of controlled substances which he personally distributed or whose distribution he personally aided and abetted, as well as the controlled substances distributed by his co-conspirators. The Court further instructed the jury that, with respect to the controlled substances which the defendant personally distributed, the defendant was accountable as long as he knowingly and intentionally distributed or aided and abetted the distribution of some amount of the controlled substance, regardless of whether he knew, or could foresee, the type or quantity.
On Count Two, the charge of possession with intent to distribute a controlled substance, the Court instructed the jury that if it found the defendant guilty, it must also determine the quantity of heroin involved. The Court also instructed the jury that "as long as the defendant knowingly and intentionally aided and abetted or caused the distribution of an amount of heroin, or possessed that heroin with intent to distribute, he is then responsible for the entire quantity involved, regardless of whether he knew or could foresee the quantity." (Tr. 363).
References to "Tr" are to pages of the transcript of Smith's trial.
With respect to both counts, the Court instructed the jury that it was required to determine the drug type and quantity beyond a reasonable doubt. However, the jury was required only to determine the amount of heroin for which Smith was accountable within an applicable range: less than 100 grams, more than 100 grams but less than one kilogram, or one kilogram or more. (Tr. 356).
The jury returned a verdict of guilty on both counts. On the special verdict form as to Count One, the jury found Smith guilty of conspiracy, and indicated on the form that Smith personally distributed or aided and abetted the distribution of one kilogram of heroin regardless of whether or not he knew that the controlled substance was heroin. For reasons related to liability for additional amounts of heroin distributed by a co-conspirator, this Court also included on the special verdict form a question about whether the Government proved the defendant knew or could foresee that either he or his co-conspirators would distribute heroin. The jury answered no to that question. As to Count Two, the jury indicated on the form that the defendant distributed, possessed with intent to distribute or aided and abetted the distribution of one kilogram of heroin. (Tr. 403-04).
Prior to sentencing, Smith submitted two letters to the Court in which he argued that his conviction violated Apprendi Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury found that the Government had not proven that he knew the substance being distributed was heroin. In a sentencing memorandum, issued on January 21, 2003, the Court rejected Smith's argument. After making minor modifications, the Court adopted the factual findings and Sentencing Guidelines analysis contained in the pre-sentencing report and sentenced Smith to 121 months' imprisonment on each count, with the sentences to run concurrently.
On May 21, 2002, Smith filed a timely notice of appeal. On appeal, he was still represented by Goltzer. Smith again argued that Apprendi required the Government not only to prove beyond a reasonable doubt the type and quantity of controlled substance involved in his offense, but also that Smith had knowledge or reasonably foresaw the type and quantity of controlled substance as a necessary element to any sentence pursuant to 21 U.S.C. § 841(b). United States v. Otibu, 80 Fed. Appx. 148, 148 (2d Cir. 2003). On November 10, 2003, the Second Circuit affirmed Smith's conviction. In a summary order, the Second Circuit held thatApprendi did not change the longstanding principle that a defendant need not know the type or quantity of controlled substance involved in his offenses or conviction in order to be sentenced pursuant to 21 U.S.C. § 841(b). Id. Smith did not file a petition for writ of certioari with the Supreme Court, and ninety days after the entry of judgment, on February 8, 2004, his conviction became final.
Smith now seeks habeas relief principally on the grounds that (a) drug quantity was not proven beyond a reasonable doubt, as required under United States v. Booker, 543 U.S. 220 (2005); (b) his counsel was constitutionally ineffective for failing to argue that the Government must prove that Smith had specific intent to violate the narcotics law under the theory of aiding and abetting; and (c) the jury instructions impermissibly allowed the jury to infer that the Government need not prove Smith's guilt beyond a reasonable doubt.
DISCUSSION
A. Proof of Drug Quantity Beyond a Reasonable Doubt
Smith argues that, under Booker, the exact quantity of heroin for which he was sentenced was required to have been submitted to the jury for a finding beyond a reasonable doubt. Smith's argument lacks merit.
First, Booker is not applicable to Smith's case. The Second Circuit holds that Booker does not apply retroactively. Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005) (Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker was issued."). Smith's conviction was final in February 2004, approximately eleven months before Booker was decided. Booker is therefore inapplicable to the present case.
Second, even if Booker were to apply in this case, Smith's argument still fails. Under Booker and Apprendi, both drug type and quantity must be submitted to the jury for a finding beyond a reasonable doubt. United States v. Thomas, 274 F.3d 655, 673 (2d Cir. 2001) ("After Apprendi, drug type and quantity are elements of the offense under 21 U.S.C. § 841(b)(1)(A) that must be . . . submitted to the jury for its finding beyond a reasonable doubt"); United States v. Gonzalez, 420 F.3d 111, 131 (2d Cir. 2005) ("Booker reiterates Apprendi's rule . . ."). However, a finding of drug quantity beyond a reasonable doubt does not require the jury to make a finding of the specific quantity of drugs, but only of the threshold drug quantity that was present. See United States v. Arias, 409 F. Supp. 2d 281, 285 (S.D.N.Y. 2005).
Here, the jury was required only to make a finding that the drugs involved weighed "1 kilogram or more. . . ." 21 U.S.C. § 841(b)(1)(A)(1). At trial, the Government's forensic chemist testified that the powdered substance in Smith's possession was heroin that weighed approximately 1005 grams. Based on this evidence, the jury determined that Smith possessed one kilogram of heroin and indicated this finding on the special verdict form. A finding of exactly 1005 grams was unnecessary. See Arias, 409 F. Supp. 2d at 285. Accordingly, there was no violation ofBooker.
B. Ineffective Assistance of Counsel
i. Legal Standard
To assert a valid claim of ineffective assistance of counsel, a petitioner must satisfy a two-part inquiry. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that the representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 687-88. A reviewing court "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `there are countless ways to provide effective assistance in any given case' and that `even the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689).
Second, the petitioner must "affirmatively prove prejudice," demonstrating that "but for counsel's unprofessional errors, the result of the proceeding might have been different." Strickland, 466 U.S. at 693-94. If both of these elements are satisfied, a petitioner can demonstrate that his counsel's representation "was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. However, even professionally unreasonable errors by defense counsel will not warrant setting aside the judgment in a criminal proceeding unless those errors were prejudicial. Id. at 691. The ineffectiveness inquiry should focus on "the fundamental fairness" of the proceeding whose result is being challenged." Id. at 696. ii. Specific Intent as to Aiding and Abetting
Smith argues that Goltzer was constitutionally ineffective at trial and on appeal for failing to argue that the Government was required to prove that Smith had the specific intent as an aider and abetter to violate federal narcotics laws.
Smith cannot show that Goltzer acted unreasonably in choosing not to raise the argument. First, the record indicates that the Government's case rested on the theory that Smith acted as a principal in the drug transaction, and not as an aider and abetter. The evidence established conclusively that Smith possessed narcotics and handed them to Otibu to give to the buyer. The evidence also established that Smith had substantial unexplained wealth in his bank accounts in the six months preceding his arrest. In addition, Smith's familiarity with Otibu was more than a coincidence. Smith and Otibu were in constant communication and both had possession of keys to the same apartment. In light of Smith's evident culpability in the drug transaction as a principal, rather than as an aider and abetter, Goltzer acted reasonably in not raising the specific intent argument as to aiding and abetting.
Aiding and abetting is a secondary theory that the Government may rely on to convict the defendant and it is implied in every substantive charge. See United States v. Smith, 727 F.2d 214, 217 (2d Cir. 1984). It "does not constitute a discrete criminal offense but only serves as a more particularized way of identifying persons involved." United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) (quotations and citations omitted). Therefore, the jury can convict a defendant based on his actions as a principal or aider and abetter. See United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1999) ("When the jury is properly instructed on two alternative theories of liability . . . we must affirm when the evidence is sufficient under either of the theories.").
Moreover, regardless of whether the Government relied on the theory that Smith acted as a principal or as an aider and abetter, the Government established that Smith had the requisite intent under both theories. A finding of specific intent for conspiracy and the substantive offense requires the Government to prove that the defendant knowingly and intentionally participated in the drug deal. United States v. Rodriguez, 392 F.3d 539, 545, 546 (2d Cir. 2004). A finding of. specific intent for an aider and abettor requires the Government to prove that the defendant "`knew of the proposed crime.'" United States v. Cruz, 363 F.3d 187 (2d Cir. 2004) (quoting United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990)); see also United States v. Jones, 308 F.2d 26, 31-32 (2d Cir. 1962) ("[I]f a certain knowledge or intent is required to be proven in order to convict one of violating a federal criminal statute, the proof to convict one as an aider and abettor will not be different from that necessary to convict the violator, except that aiding, abetting, commanding, inducing, or procuring the commission of the crime must be proven rather than actual commission."). As discussed, the Government proved that Smith knowingly and intentionally participated in the drug deal. Since the Government established Smith's specific intent as both a principal and aider and abettor, Goltzer acted reasonably in not arguing that the Government failed to prove that Smith acted with the requisite intent as an aider and abetter.
Moreover, Smith cannot show prejudice. As discussed, the Government relied on a principal theory of culpability, rather than a theory of aiding and abetting, and in any event the Government's burden of proof regarding Smith's intent was the same under either theory of guilt. Thus, any attempt by Goltzer to argue either at trial or on appeal that the Government failed to prove specific intent as to aiding and abetting would have failed, and the result of the proceedings would not have been different.
In sum, Smith's counsel was not constitutionally ineffective for failing to argue, either at trial or on appeal, that the Government was required to prove that Smith acted with specific intent as an aider and abetter.
C. Jury Instructions
Smith argues that certain jury instructions deprived him of due process by shifting the burden of proof. To succeed on a claim that jury instructions erroneously shifted the burden of proof, a petitioner must show that "`there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet' the standard of proof beyond a reasonable doubt." Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir. 1996) (quoting Victor v. Nebraska, 511 U.S. 1, 127 (1994)). Smith contends that the Court erred by failing to instruct the jury that it must find that the defendant had specific intent to commit the crime, and that a finding of specific intent requires knowledge or foreseeability of the drug type and quantity. The record clearly indicates, however, that the jury was properly instructed regarding the Government's burden of proof beyond a reasonable doubt with respect to each element of the crimes for which Smith was charged, including the Government's requirement of proving beyond a reasonable doubt that Smith participated knowingly and willfully in the narcotics activity. Thus, Smith's claim that the Court erred in failing to give certain instructions regarding "specific intent" has no merit.
In any event, Smith's claim is procedurally barred. Because Smith failed to raise this claim on direct review, he cannot now raise this claim in his habeas petition. Montero-Melendez v. United States, No. 02 Civ. 2062, 2003 U.S. Dist. LEXIS 2071 at *5 (S.D.N.Y. Feb. 13, 2003). Although procedural default may be waived if a petitioner can show "cause for and actual prejudice from" the failure to have asserted the claim earlier, United States v. Frady, 456 U.S. 152, 167-68 (1982), Smith has not shown why he failed to raise this argument on direct appeal. Further, Smith has not shown any actual prejudice resulting from his failure to raise the argument.
D. Smith's other arguments
Smith asserts two other meritless arguments. First, Smith argues that the Sentencing Guidelines amount to ex post facto law making. For a criminal law to be ex post facto, it must be retrospective and the defendant must be disadvantaged by it. See United States v. Gonzalez, 281 F.3d 38, 45 (2d Cir. 2002). "Simply put, an amendment to a guideline that occurs after the commission of an offense is a violation of the ex post facto clause if it works to the detriment of a defendant." Id. In this case, there was no relevant guideline amendment that was enacted after the commission of Smith's offense and that was applied to his detriment at sentencing. Second, Smith argues that the Government is required to fulfill its burden of proof when the defendant does not contest an element of the crime. This argument is irrelevant because Smith has not identified any element of the crimes for which he was convicted that he did not contest and that the Government failed to prove. Further, as discussed above, the record establishes that the Government fulfilled its burden of proof as to each element of Counts One and Two.
CONCLUSION
For the reasons set forth above, the Court denies Petitioner's § 2255 motion. Because Smith has not made a "substantial showing of the denial of a constitutional right" this Court will not grant a certificate of appealability. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4). However, Smith has the right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253;Miller-El v. Cockrell, 537 U.S. 322 (2003).