Opinion
Criminal Action No. 93-158-01, Civil Action No. 97-2019.
January 21, 1998
MEMORANDUM
I. BACKGROUND
Petitioner Denis J. McIntyre is currently incarcerated at FCI-Schuylkill pursuant to a 240-month sentence imposed after his conviction for conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. § 846, and distribution of methamphetamine. 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2. The court of appeals affirmed his conviction and sentence. (C.A. No. 94-2167). The government's case against McIntyre and his co-defendant, Loretta Fish, relied heavily on the testimony of William Kelly, a methamphetamine manufacturer and distributor who implicated McIntyre. McIntyre testified in his own defense, essentially claiming to be a methamphetamine user with friends of dubious character, but not a distributor. His pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 raises claims of ineffective assistance of trial, sentencing and appellate counsel, and prosecutorial misconduct by the Assistant United States Attorney ("AUSA"). For the reasons which follow, the Court will deny his motion without a hearing.
II. DISCUSSION
Under Section 2255, a person in custody pursuant to the sentence of a federal court may challenge his conviction and his sentence. To obtain relief section 2255 relief on his counsel claims, McIntyre must demonstrate that his attorney's representation fell below an objective standard of reasonableness, and a reasonable probability that, but for his attorney's error, the result of the trial, sentencing or appeal would have been different. Strickland v. Washington, 466 U.S. 668, 687-96 (1984); United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). While courts should defer to counsel's decisions under the presumption that most actions reflect reasoned strategic choices, id. at 189-90, an attorney's complete failure to investigate reasonable theories or contact potential witnesses cannot be deemed reasonable trial strategy.United States v. Gray, 878 F.2d 702 (3d Cir. 1989). A successful section 2255 claim for prosecutorial misconduct must demonstrate that it created a fundamental defect in the trial.United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). The court has reviewed McIntyre's motions, memoranda and supplemental pleadings; the government's response; and the trial and sentencing transcripts.
B. McIntyre's Claims
1. Failure to obtain transcripts
McIntyre claims that his trial counsel was ineffective for failing to obtain transcripts of testimony given by George Waidelich at a previous trial where Waidelich claimed to have sold witness William Kelly 6 rather than 2 gallons of P2P, a crucial element of D/L-methamphetamine production. The knowing offer of perjured testimony or the failure to correct false testimony may deny a defendant a fair trial where that testimony could have affected the jury's judgment. Giglio v. United States, 405 U.S. 150 (1972); United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). The court agrees with the government, however, that Waidelich's inconsistent statements related to matters collateral to the conduct for which McIntyre was accused — the amount of gallons Waidelich may have sold Kelly. See Landano v. Rafferty, 856 F.2d 569, 573 (3d Cir. 1988). McIntyre was interested in the Waidelich testimony only to the extent it shaded Kelly's credibility, but McIntyre's counsel thoroughly impeached Kelly regarding his inconsistent testimony as to the amount of P2P involved. Accordingly, the Court will deny this claim as McIntyre cannot demonstrate that his counsel's conduct prejudiced him.
2. Failure to effectively impeach witness Kelly
McIntyre claims that his trial counsel failed to use a list of questions that McIntyre prepared to impeach Kelly. Specifically, he asserts that the questions would have impeached Kelly as to the two overt acts concerning Waidelich by demonstrating that Kelly lied in order to obtain convictions for the Government. Review of the transcript confirms that McIntyre's counsel extensively impeached Kelly, and there can have been no doubt in anyone's mind that Kelly was not a model citizen. McIntyre's counsel was not obliged to abdicate his legal and strategic judgement and ask every question prepared by McIntyre. Moreover, the court instructed the jury to look upon Kelly's testimony "with disfavor, because it came from a corrupt and polluted source. . . . [I]t's common sense that somebody who's been involved in a crime and who has something to gain or lose on the outcome of . . . what he's doing may have to be looked at and should be looked at with very, very great caution on your part." (NT 4/13/94 at 237-38).
3. Failure to call witnesses
McIntyre claims that his trial counsel was ineffective for failing to call three witnesses to impeach Kelly: Detective James Nelson and Trooper John Freed, both of whom interviewed Kelly; and Kelly's associate Arthur Hummel, whose description to government agents of the Summer 1989 Quakertown cook allegedly contradicted Kelly's testimony that methamphetamine from that cook was delivered to both McIntyre and co-conspirator Robin Morgan.
McIntyre's counsel impeached Kelly by noting the inconsistencies with both Nelson and Freed's interview notes; the court cannot say that using the agents' interview notes for impeachment rather than calling them as impeachment witnesses was ineffective. See United States v. Ciancaglini, 945 F.Supp. 813 (E.D. Pa. 1996). Additionally, Hummel's prior statement about the Quakertown cook was at worst ambiguous and did not clearly contradict Kelly's testimony. Even McIntyre acknowledges that his attorney questioned Kelly regarding his inconsistent testimony about the Quakertown cook, when he contends that the impeachment could have been "even stronger." (Reply Brief at 9).
4. Failure to object to evidence of co-conspirator's conviction
Carol Gibbs-Morgan was the owner, along with her husband, of a house in Croyden. Government witness Kelly testified that Gibbs-Morgan made the house available to McIntyre for an April 1990 cook. Testifying for McIntyre, Gibbs-Morgan stated that neither she nor her husband had offered their house keys to McIntyre or allowed him to use their house at any time, including April 1990. On cross-examination, the AUSA noted that Gibbs-Morgan had not testified at her sister-in-law Robin Morgan's trial, although her story, if believed, would have exculpated both Robin Morgan and McIntyre on at least part of the conspiracy charge. Accordingly, the AUSA asked Gibbs-Morgan on cross-examination whether she was aware that Robin Morgan had been tried and convicted of many of the same charges facing McIntyre. McIntyre claims that his attorney was ineffective for failing to object to this line of questioning.
The relevant portion of the AUSA's cross-examination of Ms. Gibbs-Morgan is as follows:
Q. Now, Ms. Morgan, you are aware, are you not, that Robin Morgan was arrested in October of 1992 on methamphetamine trafficking charges?
A. I'm aware of that, yes, now.
Q. And you're aware, are you not, that the trial of those charges took place in late June and July 1, 1993?
A. Yes, I am aware.
Q. In fact you were at her trial, were you not?
A. Yes, I was.
Q. You were in the courtroom?
A. Yes.
Q. You were in the courtroom on all three days of her trial, were you not?
A. Yes, I was.
Q. An your husband was also?
A. I don't think he made it all three days.
Q. But he was there during quite a bit of the trial, was he not?
A. Yes. Excuse me, I think I was only there two days `cause I think the last day was the jury went out and I don't think I was there that day.
Q. And you are aware from attending the trial that Ms. Morgan went to trial on many of the same charges now facing Denis McIntyre, is that correct?
A. Yes I am.
Q. And while you attended that trial you heard William Kelly testify?
A. Yes.
Q. You heard him testify about making methamphetamine with Mr. McIntyre's assistance in the basement of your home, did you not hear him testify about that?
A. I did hear him say that.
Q. And you heard him also testify about Robin Morgan's extensive methamphetamine sales, did you not?
A. Yes, I heard him say that.
Q. Ma'am, you didn't testify at Robin Morgan's trial, did you?
A. No, I did not.
Q. She was your sister-in-law — she is your sister-in-law?
A. Yes, she is.
Q. And yet you did not come forward to tell that jury what you're trying to tell this jury now, did you?
A. Well, I'm not — I never came forward because I was never asked to come forward. I did volunteer that information to her attorney.
Q. And you were right there in the courtroom?
A. Yes.
Q. You could have — had you chosen to — you could have told that jury what you're asking this jury to believe right now? Is that not correct, you could have?
A. No, I could not.
[Objection by McIntyre's counsel].
The Court: Objection's on the basis of being argumentative and I think it is, Ms. Miller, so sustained.
Q. Now you are aware that Ms. Morgan was convicted of all charges, are you not?
A. Yes, I am aware.
Q. You are aware that she is not serving a 3-year sentence for those charges?
A. Yes, I am, yes.
. . .
Q. You are aware, are you not, that Ms. Morgan's house was forfeited under the federal drug laws because methamphetamine was sold from that house, are you not aware of that?
A. Now I am, yes.
Q. Ma'am, you are aware, are you not, that if your home was used to manufacture methamphetamine your home might be forfeitable under the federal drug laws, are you not aware of that?
A. Yes, yes, I am.
Q. And it is in your best interests to attempt to make it appear that no methamphetamine activity ever occurred in your home, is it not? (NT 4/11/94 at 107-11).
The government may not introduce the fact of a coconspirator's guilty plea as evidence of a defendant's guilt. See United States v. Gaev, 24 F.3d 473, 476 (3d Cir. 1994); United States v. Thomas, 998 F.2d 1202 (3d Cir. 1993); United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949). Similarly, the government may not admit evidence of a co-conspirator's conviction on the same charges facing the defendant. See, e.g., United States v. Newman, 490 F.2d 139 (3d Cir. 1974). The prohibition is not absolute, however, and such evidence may be admitted for a "valid purpose." Gaev, 24 F.3d at 476,quoting United States v. Gambino, 926 F.2d 1355, 1363 (3d Cir. 1991).
The AUSA's questions cannot be said to have fit into either of the two classic exceptions to this rule: rebutting the improper inference that only the defendant is being prosecuted, but not his co-conspirators, or forestalling an anticipated defense attack on the credibility of a co-conspirator who testifies for the government. Thomas, 998 F.2d at 1205;Toner, 173 F.2d at 142. The government argues that McIntyre (and his co-defendant Fish) opened the door to this evidence by attacking Kelly's credibility — at other points during the trial — on the grounds that Kelly would say anything to obtain convictions ("bonus points"), and therefore better treatment from the government. Accordingly, the government argues, its questioning merely demonstrated that Kelly's cooperation had already led to a conviction — Robin Morgan's — thus blunting the inference that Kelly needed to score any "bonus points" in McIntyre's trial.
The government also argues that, regardless of any deficiency on the part of counsel, McIntyre cannot demonstrate prejudice from the use of Gibbs-Morgan's testimony, as he was acquitted of the counts relating to her testimony. The government is incorrect. McIntyre was convicted of a conspiracy (Count One) encompassing April 1990, the time period about which Gibbs-Morgan testified. Moreover, when discussing the evidence for this count in her closing argument, the AUSA noted both Gibbs-Morgan's testimony and the April 1990 cook. (NT 4/13/94 at 136 150).
Neither party has accurately characterized the record. McIntyre telescopes pages of testimony into a pithy and prejudicial exchange, sketching an AUSA intent on telling the jury that Robin Morgan had been convicted of the same crimes with which McIntyre was charged. The government's explanation also distorts the exchange and requires an excessively broad view of relevance. Of course, the government was entitled to counter the defendants' attacks on Kelly's credibility. See Gambino, 926 F.2d at 1363. Yet, while Gibbs-Morgan was obviously offered to refute Kelly's testimony about the Paul Street cook, the court cannot find that the government's questions to Gibbs-Morgan were intended as — or were — a measured response to the defendants' insinuations about Kelly's need for "bonus points." Those attacks were remote in time to Gibbs-Morgans's testimony. As McIntyre notes, evidence about Kelly's cooperation with the government and veracity as a witness should have been made, and were made, when Kelly himself was on the stand Nevertheless, the transcript makes clear that the fact of the conviction was offered incidentally to a valid purpose and that it did not unduly prejudice McIntyre.
The case law does not offer specific guidance on these facts.See, e.g., Gaev, 24 F.3d at 478-79 (collecting cases). Robin Morgan herself was not testifying, and Gibbs-Morgan was not a co-conspirator testifying for the government who had earlier pled guilty to the same charges facing the defendant. See, e.g., United States v. Werme, 939 F.2d 108, 115 n. 4 (3d Cir. 1991) (encouraging district courts to "flush out" problems stemming from government's use of a co-conspirator's guilty plea in advance of trial). The court must therefore seek general guidance from the case law. Gaev instructs that:
The trial judge must balance the probative value and prejudicial effects of evidence before deciding whether to admit it. Although the case law shows the balancing is often implicit rather than explicit, the standard remains that of Federal Rule of Evidence403.24 F.3d at 478.
As noted, McIntyre's counsel did not object to the questioning, and the court did not engage in an express balancing of the probative value and prejudicial impact of the evidence of Robin Morgan's conviction. On examination of the transcript, however, the court finds that the questions were not asked for an invalid purpose, and that, even without a curative or limiting instruction, the questions did not create a substantial risk that McIntyre's guilt was determined by the outcome of the criminal prosecution against Robin Morgan, rather than by the evidence against him. Bisaccia v. Attorney General of N.J., 623 F.2d 307, 312 (3d Cir. 1980).
The jury instructions are not particularly helpful to the government's argument. The jury was instructed that: "although the defendants are being tried together, you must give separate consideration to each defendant," (NT 4/13/94 at 224); and that "questions asked by a lawyer for either party to this case were not evidence," id. at 236. See Mujahid, 990 F.2d at 116 (rejecting instructions which "do not specifically address the evidentiary use of [the co-conspirator]'s guilty plea.").
The transcript reveals instances where the court cautioned the AUSA against overzealousness, but there is no evidence of misconduct in connection with her questioning of Gibbs-Morgan,see Government of Virgin Islands v. Mujahid, 990 F.2d 111, 115 (3d Cir. 1993), and it is clear that the fact of Morgan's conviction was not offered as substantive evidence of McIntyre's guilt. Gambino, 926 F.2d at 1367; see also, Thomas, 998 F.2d at 1209 (Rosenn, J., dissenting) ("Moreover, Toner merely states that a guilty plea of a witness cannot be used to establish the guilt of the defendant."); Newman, 490 F.2d at 143 ("[G]uilty pleas and convictions of co-defendants are not admissible to demonstrate the guilt of defendants yet to be convicted."). Nor did the AUSA improperly emphasize Robin Morgan's conviction. Gaev, 24 F.3d at 477 n. 3; Thomas, 998 F.2d at 1207 (citing Bisaccia, 623 F.2d at 313). The manifest purpose of the AUSA's questions was to impeach Gibbs-Morgan; their thrust was that Gibbs-Morgan was only now coming forward with her story in order to "sanitize" her property and prevent against a possible forfeiture. Accordingly, the fact of Robin Morgan's conviction — and the subsequent forfeiture of her property — was necessary to demonstrate that Gibbs-Morgan had a motive to fabricate testimony. This impeachment was grounded in a fair and reasonable inference from the fact of Gibbs-Morgan's earlier silence at Robin Morgan's trial, and it would have been clear to the jury that the AUSA was attacking the credibility of a defense witness, not seeking to put on evidence supporting the charges against McIntyre.
This conclusion is further supported by the AUSA's discussion of Gibbs-Morgan's testimony in closing:
Now, you've heard Phil Morgan's wife, Carol, testify that how can this be, because she had already moved into the house, she told you in April of '90, so how can it be that a cook took place there if she didn't know it, if she didn't see it? She came into this trial in 1994 and testified to that. But last year, as she admitted to you, when her own sister-in-law was on trial for exactly the same thing, the Paul Street methamphetamine cook, she did not testify on behalf of [her] sister-in-law. Why not? Ladies and gentlemen, I submit that you know why not. It was because what she was saying was not true, was not correct. And indeed that it wasn't until her sister-in-law was sentenced and as part of her sister-in-law's sentence, Robin Morgan lost the home that she was living in because she had sold methamphetamine out of that house. Once Carol Morgan realized that she could actually lose her home under the Federal Drug Laws, because this cook had taken place in her home, she decided it was time to tell the story that that couldn't have happened, that couldn't be true because I was there. She didn't think of that in 1993 when her sister-in-law was on trial. She thought about that obviously more recently.
NT 4/13/94 at 146; cf., Bisaccia, 623 F.2d at 308-09 (prosecutor's closing argument expressly characterized co-conspirator's plea as substantive evidence of defendant's guilt).
Finally, while the court does not agree that McIntyre was acquitted of all conduct about which Gibbs-Morgan testified,see supra n. 2, the April 1990 cook was but one of several incidents comprising the charged conspiracy, and there was overwhelming evidence to support a finding, beyond a reasonable doubt, that McIntyre had engaged in the other acts. See Werme, 939 F.2d at 115-16.
The court will deny this claim for ineffective assistance of counsel. McIntyre cannot demonstrate "extreme" misconduct, id. at 108; see also Bissacia, 623 F.2d at 313, and therefore cannot show a reasonable probability that, but for counsel's failure to object to the questioning of Gibbs-Morgan, the result of his trial would have been different. This holding is limited to the unusual facts surrounding the mention of Robin Morgan's conviction; the court does not believe that those facts trigger the proscriptions contained in the case law.
5. Failure to object to character evidence
McIntyre repeatedly testified that many of his friends and acquaintances were drug dealers and users, and that they had served time in prison. When the AUSA cross-examined McIntyre, she noted that his friend, jeweler Chet Ferretti, was a convicted methamphetamine dealer, and she also asked McIntyre "do you have any friends who are not methamphetamine dealers?" McIntyre claims that his attorney failed to object to this prejudicial character evidence. The court agrees that McIntyre himself laid the groundwork for this question, and that moreover, the AUSA made a fair rebuttal to McIntyre's contention that, despite his poverty, he had bought jewelry from his friend Ferretti.
6. Failure to object to impeachment of Tittermary
McIntyre charges his attorney with ineffectiveness for failing to object to the AUSA's impeachment of defense witness Edward Tittermary. McIntyre called Tittermary to testify about taped conversations between the two men which appeared to refer to drug dealing. Tittermary testified that the conversation referred to money he owed McIntyre for roof repair and automobile tires; on cross-examination, the AUSA asked him whether he sold methamphetamine. McIntyre argues that this was improper impeachment of a defense witness by extrinsic evidence of his bad character, when there was no evidence that he did sell methamphetamine. The court will deny this claim, as it interposed its own objection at the time, and as the record reveals evidence — albeit more ambiguous than the government represents — that Edward Tittermary distributed methamphetamine, including the testimony of Kelly and Tittermary's brother Larry.
7. Failure to object to improper closing remarks
McIntyre claims that his attorney was ineffective for failing to object to the AUSA's statement in her rebuttal that the government had other witnesses — "witness after witness" — but had not called them. The court agrees that, viewed in their context, the remarks were a fair and measured rebuttal to the defense attorneys' claims in closing argument that the government had not called several witnesses, and that the jury should infer from that those witnesses would not help the government's case.
8. Failure to move to suppress evidence not linked to the alleged conspiracy
In the Spring of 1992, the government searched co-conspirator Robin Morgan's house and found evidence connecting McIntyre with Morgan, including a slip of paper with the notation "Denis-2700." The government contended that the note referred to the amount that McIntyre owed Morgan for methamphetamine. McIntyre alleges that his attorney should have objected to this evidence, as it was taken twenty nine months after the last alleged overt act of the conspiracy in the indictment. The court will deny this claim; the note was not itself limited in time to the period alleged in the conspiracy, and McIntyre's attempt to limit this note to 1992 contradicts his own testimony that it referred to a debt accumulated over several years. (NT 4/12/94 at 125).
9. Subornation of perjury
McIntyre claims that the AUSA suborned perjury and withheld impeachment material when she allowed William Kelly to falsely testify about an amount of P2P involved in a transaction with George Waidelich which differed from the amount Waidelich had testified to at an earlier trial. (This claim is similar to McIntyre's first claim but asserts prosecutorial misconduct rather than ineffective assistance of counsel).
This claim lacks merit, as, even if Kelly's testimony were exculpatory matter, the government cannot be faulted for failing to turn over material that was not only public record but which was known to McIntyre and his counsel. Moreover, even if the prosecutor were aware of the discrepancy between Waidelich and Kelly's testimony about the amount of P2P, that would not demonstrate that Kelly committed perjury or that the prosecutor suborned it. See United States v. Thomas, 987 F.2d 1298, 1300 (7th Cir. 1993). Further, as noted above, McIntyre's attorney fully explored these inconsistencies in his cross-examination of Kelly. See United States v. Miller, 59 F.3d 417, 423 (3d Cir. 1995).
10. AUSA's withholding of evidence
McIntyre contends that the government withheld a transcript of an interview with Hummel, which would have contradicted Kelly's account of the Quakertown cook, as well as agents Freed and Nelson's notes of their interviews with Kelly. The claim is meritless, as McIntyre admits that his lawyer did obtain the transcript during trial, and the record demonstrates that McIntyre's lawyer had and used the agents' interview notes.
11. Ineffective Assistance of Appellate Counsel
McIntyre contends that his appellate counsel was ineffective for failing to raise the following claims of prosecutorial misconduct: the AUSA's introduction of evidence that co-conspirator Morgan was convicted on the same charges; the AUSA's introduction of evidence that his friends were less than solid citizens; the AUSA's impeachment of witness Tittermary; and, the AUSA's reference to "witness after witness." Having found these claims to be meritless, the court will not find appellate counsel to have been ineffective for failing to pursue them.
12. Methamphetamine sentencing
McIntyre claims that his trial counsel failed to properly argue the purity of the methamphetamine at sentencing, and that this failure resulted in a higher sentence level. He also faults appellate counsel for not raising the claim on direct appeal. The transcript of the sentencing hearing reveals, however, that McIntyre's attorney extensively litigated the drug purity issue. These issues were raised at two sentencing hearings, at which a defense expert testified and at which a prosecution expert witness was cross-examined; indeed, McIntyre himself was allowed to cross-examine the prosecution witness. (NT 10/28/94 at 30-33). Moreover, appellate counsel did raise this claim in the court of appeals, which rejected it. Because this and the preceding claims lack merit, the court will deny McIntyre's section 2255 motion.
An order follows.
ORDER
AND NOW, this 21st day of January 1998, upon consideration of Denis McIntyre's Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 283); the Government's Answer thereto (Dkt. # 289); and McIntyre's Reply and supplemental pleading (Dkt. # 291 293), it is hereby ORDERED that the Motion to Vacate, Set Aside or Correct his sentence is DENIED, for the reasons contained in the accompanying Memorandum.