Opinion
Civil No. 00-72916-DT, Crim No. 95-81146-DT-18
January 22, 2001
OPINION AND ORDER
On September 27, 1996, Defendant/Petitioner Yon Clamenche Snyder ("Snyder") was convicted of violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 et seq. On June 28, 2000, Snyder filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. On July 28, 2000, the Government filed an answer to Snyder's motion. On July 31, 2000, Snyder filed a "motion to amend," which this Court granted. ( See 8/9/00 Order). Snyder filed a second motion to amend his § 2255 petition on October 16, 2000. For the reasons set forth below, Snyder's motion to vacate, set aside or correct sentence pursuant to § 2255, and his second motion to amend his § 2255 petition, shall be denied.
Background
Snyder is one of five defendants who were convicted of violating the RICO statute by participating in a criminal enterprise known as the "Home Invaders." The Home Invaders enterprise was comprised of over twenty people who engaged in armed robberies of occupied dwellings in the areas of Detroit and Lansing, Michigan. On September 27, 1996, a jury convicted Snyder of Count 1: 18 U.S.C. § 1962(c), Racketeer influenced and corrupt organizations, and Count 2: 18 U.S.C. § 1962(d), Conspiracy to violate 18 U.S.C. § 1962(c). On May 5, 1997, Snyder was sentenced to 292 months imprisonment. His conviction and sentence were affirmed on direct appeal on March 11, 1999. See United States v. Carr, et al., Nos. 97-1367/1422/1513/1584/1814 (6th Cir. 1999), 1999 WL 211928.
On June 28, 2000, Snyder filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on the following grounds: 1) his Fifth Amendment right against double jeopardy was violated by his concurrent RICO sentences; 2) his Fifth Amendment privilege against self-incrimination was violated by the prosecutor's indirect reference to his failure to testify; 3) he received ineffective assistance from counsel in violation of the Sixth Amendment; and 4) the cumulative errors of counsel during the course of trial denied Snyder a fair trial.
On October 16, 2000, Snyder filed a second motion to amend his § 2255 petition, seeking to add an additional claim that under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), his constitutional rights were "violated when the factors that altered his sentence from 33 months to 292 months, were not given to the jury at trial, and proven beyond a reasonable doubt." (Pet'r's 2d Mot. to Amend at 5).
Standard of Review
Section 2255 permits a court to afford relief "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255. "To prevail on a § 2255 motion alleging constitutional error, the Petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993)). However, where the § 2255 motion alleges a nonconstitutional error, Petitioner must establish a "`fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)); accord Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200, 116 S.Ct. 1701, 134 L.Ed.2d 800 (1996).
Discussion
I. Double Jeopardy Claim
Snyder was convicted of violating 18 U.S.C. § 1962(c) and (d). Section 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.18 U.S.C. § 1962(c). 18 U.S.C. § 1962(d), which pertains to RICO conspiracies, provides "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section." Snyder now contends that sections (c) and (d) of section 1962 "charge the same offense, thus making the separate punishments imposed impermissible under the double jeopardy clause of the United States Constitution." (Def.'s Br. at 3).
In United States v. Callanan, the Sixth Circuit addressed the issue of whether concurrent sentences for conspiracy and substantive charges under RICO are permissible. United States v. Callanan, 810 F.2d 544 (6th Cir. 1987). The court applied the "Blockburger test," and also considered congressional intent in order to decide the issue. The court first considered whether the different provisions of the RICO statute required proof of a fact which the other did not. The court found that the RICO conspiracy charges and the substantive offense charges under RICO required different proofs. "The substantive RICO charge requires proof that defendants engaged in an enterprise that affected interstate commerce and they committed two or more racketeering offenses." Id. at 545. However, the conspiracy RICO charge does not require proof that defendants actually engaged in such conduct. Id. "Similarly, the conspiracy charge requires proof of an agreement to engage in conduct that would establish a substantive RICO charge . . . which need not be proved to establish the substantive charge." Id. at 546. Therefore, under the Blockburger test, the court found that concurrent sentences for the two RICO charges were permissible.
"[W]here 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 an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
The court also considered legislative history to determine congressional intent on this issue. In discussing the purposes of the RICO statute, the court noted:
The clear legislative intent expressed concurrently with the enactment of RICO is to permit, perhaps even to encourage, courts to impose cumulative sentences for RICO offenses and the underlying crimes. Cumulative sentences are the "enhanced sanctions" which Congress deemed necessary to treat the spreading disease of organized crime. In fact, if cumulative convictions and sentences were disallowed by courts, Congress' purpose to eradicate organized crime would be thwarted because the RICO penalties are in many cases lighter than penalties for underlying offenses.Id. at 546 (quoting United States v. Sutton, 700 F.2d 1078, 1081 (6th Cir. 1983)). The Sixth Circuit concluded that the "legislative history indicates that Congress intended that conspiracy to violate RICO and the acts involved in violation of the substantive RICO provision be separate offenses that do not merge for sentencing purposes." Callanan, 810 F.2d at 546. The court also stated that "[b]ecause sections 1962(c) and 1962(d) are `directed to separate evils,' we conclude that Congress intended to permit concurrent sentences for conspiracy to violate RICO and substantive RICO violations." Id.
Accordingly, the concurrent sentences imposed on Snyder for his substantive and conspiracy RICO convictions are constitutionally permissible.
II. Privilege Against Self-Incrimination
Snyder also claims that his privilege against self-incrimination was violated by the prosecutor's indirect reference to Snyder's failure to testify at trial. Snyder contends that the Court should construe several statements made by the prosecutor as comments on Snyder's election to remain silent at trial. In his brief, Snyder cites statements made by the prosecutor during his trial included in the following portion of the transcript:
Now whether we have met the burden of proof in a short time will be for you to decide. Now you heard at some lieutenant [sic] and some confusion the instructions of all the various elements. Let me indicate it is complicated. There are — or it seems it is not difficult if you deal with it conceptually and precisely because a lot of the elements are not at issue in this case, and I suggest that no one from the defense sides will argue that very much.
For instance on RICO, there are five elements. I suggest to you the first one, the enterprise existed. Nobody will claim that there was no such enterprise. I suggest the enterprise was proven virtually beyond any doubt. No one will dispute that, and something else where there will be no dispute, and that is the enterprise was engaged in interstate commerce.
There was testimony of the use of pawn shops, which helps to show that they are involved in interstate commerce, and trips to Ohio for the purpose of doing the drug activities. I don't think anyone would suggest those elements are at issue.
What will be at issue is whether or not these four defendants were involved in a ploy, associated with that enterprise, and whether they requisite [sic] patterns of racketeering activities.
. . . .
There is evidence before that indicates each and every one of those robberies, attempted robberies did occur. No one has come up here and suggested they didn't happen at all. The instructions on armed robbery can be ignored in terms of what will be argued to you. No one argued they were not armed robberies or attempted armed robberies. The argument is were those men involved in the robberies.
(9/24/96 Trial Tr., 1142-44). Snyder asserts that the above comments by the prosecutor were "negative and uninvited" and that the prosecutor's repeated references to the evidence being "not disputed" could only suggest to the jury that an inference of Snyder's guilt should be drawn from Snyder's failure to testify.
The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself . . ." U.S. CONST., amend. V. "An important corollary to that right is that neither a prosecutor nor a trial judge may comment upon a criminal defendant's failure to testify." Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir. 1983) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). "General references to evidence as uncontradicted, while not recommended, may not reflect on the defendant's failure to testify where witnesses other than the defendant could have contradicted the evidence." Raper v. Mintzes, 706 F.2d at 164.
The Sixth Circuit has outlined the following four factors that should be examined when viewing the constitutionality of indirect references by a prosecutor to the defendant's failure to testify: 1) were the comments "manifestly intended" to reflect on the accused's silence or of such a character that the jury would "naturally and necessarily" take them as such; 2) were the remarks isolated or extensive; 3) was the evidence of guilt otherwise overwhelming; and 4) what curative instructions were given and when. Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988). Furthermore, the court "will not find manifest intent if some other explanation for the prosecutor's remarks is equally plausible." Id.
Whether a jury would "naturally and necessarily" construe a prosecutor's comments to reflect on a defendant's failure to testify requires a "probing analysis" of the context in which the comments were made. Lent v. Wells, 861 F.2d at 975. In applying the four factors outlined by the Sixth Circuit to this case, the Court finds that the comments made by the prosecutor during closing arguments did not constitute improper indirect references to Snyder's decision not to testify at trial.
The Court finds that the comments at issue were not "manifestly intended" to reflect on the accused's silence or of such a character that the jury would "naturally and necessarily" take them as such. The Court does not believe that the prosecutor's statements referenced by Snyder suggested to the jury that an inference of Snyder's guilt should be drawn from his failure to testify. In his closing argument the prosecutor did make statements such as:
. . . a lot of the elements are not at issue in this case, and I suggest that no one from the defense sides will argue that very much.
Nobody will claim that there was no such enterprise. I suggest the enterprise was proven virtually beyond any doubt. No one will dispute that, and something else where there will be no dispute, and that is the enterprise was engaged in interstate commerce.
(9/24/96 Trial Tr. at 1142). However, the Court finds that these statements simply show that the prosecutor argued that it was unlikely that the defense attorneys would contest the existence of the enterprise, its effect on interstate commerce, or that various armed robberies had in fact occurred. The Court finds that the jury could have easily believed that the comments were to emphasize the fact that no evidence was. presented contesting the existence of the enterprise, its effect on interstate commerce, or the occurrence of robberies — not the failure of Snyder himself to testify. See United States v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997). In addition, after making the statements above the prosecutor indicated that the issue to be determined by the jury was whether the defendants were involved with that enterprise or whether they had committed the requisite pattern of racketeering.
The remaining comments of the prosecutor referenced by Snyder also fail to suggest that an inference of guilt should be drawn from Snyder's failure to testify. During trial, the parties stipulated that on specified dates various robberies took place. ( See 9/19/96 Trial Tr. at 824). In his closing argument, the prosecutor indicated that no one would dispute that the robberies actually occurred. However, the prosecutor followed that statement by indicating that the issue to be determined was whether the defendants were involved in those robberies.
The Court finds persuasive the Government's position that the prosecutor's comments "were nothing more than the Government's statement of what aspects of the case were at issue from the government's perspective." (Government's Answer at 6). Stating that the existence of the enterprise and armed robberies is not disputed is not equivalent to stating that Snyder's involvement in the enterprise or robberies is undisputed.
The remaining factors consider whether the remarks were isolated or extensive, whether the evidence of guilt was otherwise overwhelming, and what curative instructions were given at trial. As the Court finds that the comments at issue were not "manifestly intended" to reflect on the accused's silence or of such a character that the jury would "naturally and necessarily" take them as such, the number of comments referenced by Snyder in itself is not significant. Furthermore, the Court is satisfied that the evidence of Snyder's guilt was extensive, as numerous witnesses testified at the trial as to the activities of the "Home Invaders" organization. See United States v. Carr, et al., Nos. 97-1367/1422/1513/1584/1814 (6th Cir. 1999) at 4, 1999 WL 211928. These witnesses included nine coconspirators who testified that in numerous robberies: 1) the robbers met at Snyder's home before the robbery; 2) Snyder acted as a lookout; and 3) Snyder received proceeds from the robbery. Id. Coconspirators also testified that Snyder brought them into the organization. Id at 4-5. Finally, as the prosecutor's comments were not objected to at trial, there was no opportunity for a curative instruction by the Court. Thus, the Court finds that the prosecutor's comments were not a constitutional violation.
III. Ineffective Assistance of Counsel
Snyder also argues that he received ineffective assistance from his attorney, Patrick M. Cleary ("Cleary"), in violation of the Sixth Amendment to the United States Constitution. To establish ineffective assistance of counsel, Snyder must show "that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In deciding whether the performance of Snyder's counsel was deficient,
The court must . . . determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance . . . At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. A defendant's defense is considered prejudiced if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Snyder claims that his counsel was ineffective, as his counsel presented prejudicial and gruesome evidence against Snyder during the cross examination of two prosecution witnesses. At Snyder's trial, Federal Bureau of Investigation Agent Vader Vliet testified as a witness for the prosecution. Snyder contends that in the following portion of Cleary's cross-examination of Agent Vliet, Cleary "elicited irrelevant, but prejudicial evidence":
Q. First of all in the affidavit, were you ever given any information that Mr. Snyder was involved directly in anyway relative to drugs?
A. No.
Q. Or he himself was directly involved in — other than the government's theory — but he himself directly involved in any of violent acts that took place?
A. I am not sure what you mean by directly involved. Conspiracy theory?
Q. Okay. Let me be specific. Let me say other than the government's theory that somehow Mr. Snyder is involved as a lookout or divided up at the house, did you have any information that he himself was directly involved in pistol whipping somebody, assaulting somebody, that sort of thing?
A. We had information on one assault that he had done. I don't believe it is part of affidavit.
Mr. Sauget: May we approach?
The Court: All right.
(Sidebar conference held off the record.)
Q. Okay. Agent, that specific assault that you alluded to, if my recollection serves me correctly. that assault that alleged had nothing to do with this home invasion conspiracy business.
A. Yes.
(Def.'s Br., App. at 3-4). Snyder also referenced a portion of Cleary's cross-examination of Dwayne Smith ("Smith"), a witness for the prosecution. Snyder contends that during Cleary's cross-examination of Smith, Cleary presented "highly prejudicial" and "gruesome evidence." (Def.'s Br. at 12). Cleary's cross-examination of Smith included the following exchange:
Q. Now talk to us for a minute about Paul Kinchole. Do you know what Paul Kinchole is doing?
A. Serving time.
Q. How much time?
A. I don't know.
Q. Let's say natural life. Would you disagree with that?
A. No.
Q. In fact, Paul Kinchole participated in cutting off the heads of two teenage boys. You heard about that?
A. Yes.
Q. How do you know Paul Kinchole?
The Presentence Investigation Report indicates that "Goldie" is one of Snyder's aliases. (Def.'s Br., App. at 18).
Q. Met —
A. Goldie's house.
Q. Goldie's house?
A. Yes.
Q. Met him at Goldie's house. You set up a murder with Paul Kinchole?
A. No.
Q. Did you ever attempt to set up a murder with Paul Kinchole?
A. No.
Q. You know a guy name "T"?
A. No.
Q. Wasn't "T" your dope man?
A. No.
(Def.'s Br., App. at 8). Snyder contends that he has "found no conceivable tactical rationale for opening such lines of questioning, other than to prejudice the jurors against him." (Def.'s Br. at 13). Snyder further contends that reasonably competent counsel would not have made such prejudicial errors. ( Id.).
As a defendant, Snyder "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. However, Snyder has failed to overcome this presumption. The Court is satisfied that Cleary's cross-examination of both Agent Vliet and Dwayne Smith was part of a reasonable trial strategy on behalf of Snyder. In Cleary's questioning of Agent Vliet, it appears Cleary was trying to elicit testimony from Agent Vliet that the government's affidavit contained no information that Snyder had been directly involved in drug-related or assaultive behavior. Such testimony would have supported the defense's position that the government's only evidence of Snyder's involvement in the RICO enterprise was from the cooperating witnesses.
In Cleary's questioning of Smith, a government witness who testified against Snyder, it appears that Cleary was attempting to impeach Smith's character by associating Smith with a convicted criminal, Paul Kinchole, and with a "dope man" called "T." Although Cleary may not have anticipated that Smith would respond that he met Paul Kinchole at Snyder's house, or that Agent Vliet would mention an alleged assault unrelated to the home invasion conspiracy, the Court is satisfied that the questions at issue were asked as part of a reasonable trial strategy. Thus, Snyder is not entitled to § 2255 relief under his claim for ineffective assistance of counsel.
IV. Cumulative Errors
Snyder's fourth ground for relief is that "cumulative errors of counsel in this case during the course of petitioner's trial has [sic] denied petitioner a fair trial." (Pet. at 13). Snyder's fourth argument consists of one sentence. As he does not explain what he believes were the "cumulative errors of counsel," the Court can only assume he is referring to the same actions that constituted his ineffective assistance of counsel claim, already discussed and rejected by the Court. Accordingly, Snyder is not entitled to § 2255 relief under his claim of cumulative errors of counsel.
V. Motion to Amend
Snyder filed his original § 2255 petition on June 28, 2000. On July 28, 2000, the Government filed an answer to Snyder's motion. On July 31, 2000, Snyder filed his first motion to amend his § 2255 petition, which this Court granted. ( See 8/10/00 Order). According to this same Order, Snyder was given until September 30, 2000, to submit any additional pleadings or documents in support of his petition. Snyder did file a second motion to amend his § 2255 petition. Snyder certified that his second motion to amend his § 2255 petition was given to prison officials on October 10, 2000, for forwarding to the district court. ( See Pet'r's Motion to Amend, proof of service). Snyder's motion to amend was then filed in the clerk's office on October 16, 2000. As Snyder's second motion to amend his § 2255 petition was filed after the September 30, 2000 deadline imposed by this Court, the motion is untimely.
Assuming, arguendo, that Snyder's second motion to amend his § 2255 petition had been timely filed, the Court is nonetheless satisfied that the additional claim raised by Snyder in this motion does not entitle him to relief pursuant to 28 U.S.C. § 2255.
Snyder maintains that "his sentence exceeds the 20 year maximum sentence" provided for in 18 U.S.C. § 1963. (Pet'r's 2d Mot. to Amend at 7). Snyder further contends that his "jury trial and due process rights were violated" when factors that altered his sentence from 33 months to 292 months were not given to the jury at trial and proven beyond a reasonable doubt. ( Id. at 5). Snyder therefore argues that under Apprendi the "application of such factors without a jury determination is unconstitutional," and therefore his sentence must be vacated. (Id).
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, 120 S.Ct. at 2362-63. However, the Court notes that the Sixth Circuit has not determined whether Apprendi applies retroactively to cases on collateral review. See Ward v. Snyder, 2000 WL 1871725 (6th Cir. 2000). In any event, the Court finds that Apprendi does not apply in this case, even if Apprendi applies retroactively to cases on collateral review.
Contrary to Snyder's contention, his sentence of 292 months imprisonment does not exceed the prescribed statutory maximum for his RICO convictions. On May 5, 1997, this Court sentenced Snyder to 292 months imprisonment for his RICO convictions. 18 U.S.C. § 1963 sets forth the criminal penalties for RICO violations, providing in pertinent part,
(a) Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both . . .
The indictment charged Snyder with racketeering acts that included armed robbery in violation of MICH. COMP. LAWS § 750.529. The Michigan armed robbery statute carries with it a maximum penalty of life in prison. Because the jury made specific findings, beyond a reasonable doubt, that Snyder was guilty of racketeering acts of armed robbery ( See Jury Verdict Forms), the maximum sentence for his RICO conviction is enhanced to the maximum sentence which may be imposed for armed robbery. As armed robbery carries with it a maximum penalty of life imprisonment under Michigan law, the maximum sentence which this Court could impose is life imprisonment. Thus, Snyder's sentence of 292 months did not exceed the statutory maximum.
As this Court did not sentence Snyder to a term beyond the prescribed statutory maximum, Apprendi is "not triggered." United States v. Corrado, 227 F.3d 528, 542 (6th Cir. 2000); United States v. Munoz, 233 F.3d 410, 414 (6th Cir. 2000). Therefore, this claim does not entitle Snyder to relief under 28 U.S.C. § 2255.
Conclusion
Accordingly, for the reasons set forth above,
IT IS ORDERED that Defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, and Defendant's second motion to amend his § 2255 petition, are DENIED.