Opinion
3:00 CV 1261.
November 8, 2000.
Donovan Smith, F.C.I. Allenwood, White Deer, PA. Pro Se.
United States Attorneys Office, Richard S. Hartunian, AUSA, Albany, NY. For the United States.
MEMORANDUM — DECISION ORDER
Petitioner Donovan Smith was indicted by a grand jury on four drug-related counts: (1) conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841 (a)(1); (3) distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1); and (4) possession with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841 (a)(1). Prior to trial, the government moved to dismiss the third and fourth counts, which request was granted by the Court. Thus, Petitioner went to trial on the first and second counts. A jury acquitted Petitioner of Count 1, but convicted him on Count 2. During and after trial, the Court denied Petitioner's motions for judgment of acquittal and/or for a new trial. The Court sentenced Petitioner to 97 months imprisonment.
Petitioner appealed his conviction and the government cross-appealed the sentence. The Second Circuit affirmed the conviction, but vacated the Court's sentence and remanded that matter for re-sentencing. See United States v. Smith, 182 F.3d 902 (2d Cir. 1999) (table decision). Upon re-sentencing, the Court sentenced Petitioner to 121 months imprisonment.
Petitioner now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court will address Petitioner's arguments seriatim.
1. The Court Improperly Allowed Testimony Regarding Uncharged Drug Sales
Petitioner first contends that the Court improperly permitted testimony at trial regarding uncharged drug sales. This is the very same argument Petitioner made before the Court in his motions pursuant to FED. R. CRIM. P. 29 and 33, which the Court denied. It is by now well-settled that a motion pursuant to 28 U.S.C. § 2255 is not a substitute for an appeal and that "[w]here a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (internal quotations and citations omitted), cert. denied, 119 S.Ct. 1284 (1999).
Here, Petitioner failed to present these arguments on appeal, although he had ample opportunity to do so. Accordingly, because Petitioner has failed to demonstrate cause for his failure to present this argument on appeal or prejudice resulting therefrom, Petitioner is procedurally barred from raising this issue on collateral review.
Assuming this argument to be properly before the Court, for the reasons previously articulated from the bench on August 10, 1998, the Court rejects Petitioner's argument on this ground. See Aug. 10, 1998 Tr. at p. 7. Specifically, the uncharged drug sales were not admitted as character evidence under FED. R. EVID. 404(b), but evidence in direct furtherance of the charged conspiracy.
2. Prosecutorial Misconduct
Petitioner's second argument is that the prosecutor engaged in misconduct in presenting the government's case to the grand jury. In support of this contention, Petitioner claims that "the prosecutor accused the petitioner of other crimes not being investigated by the grand jury and on which no charges had been brought [and] presented . . . hearsay testimony . . . [of] crimes wholly irrelevant to the allege[d] drug distribution that was under federal investigation. [for the purpose of either] inflam[ing] the grand jurors or . . . show[ing] [that] petitioner had a predisposition to deal in drugs." Pet. Br. at 7.
Once again, this issue is procedurally barred because Petitioner failed to raise it on direct appeal and has not sufficiently demonstrated cause for his failure to do so and prejudice resulting therefrom.
Petitioner claims that his counsel was ineffective for failure to object during trial to the prosecutorial misconduct. As will be discussed, however, there is no evidence that Petitioner was denied the effective assistance of counsel.
Even addressing this argument on its merits, it must fail. In evaluating a claim of prosecutorial misconduct, courts look at: (1) the severity of the alleged misconduct; (2) the curative measures taken; and (3) the likelihood of conviction absent any misconduct. See United States v. Locascio, 6 F.3d 924, 945-46 (2d Cir. 1993), cert. denied, 114 S.Ct. 1645 (1994).
Petitioner's claim fails because there is no indication of any misconduct. As discussed, the alleged uncharged crimes of which Petitioner complains were relevant to the conspiracy charge being considered by the grand jury. Thus, it was proper for the prosecutor to present evidence of such crimes to the grand jury. The grand jury was considering whether to charge Petitioner with a drug-related conspiracy beginning "on or before January 1996." The grand jury testimony of Albany Police Department Detective Sergeant Thomas Fitzpatrick, who was involved in much of the investigation surrounding Petitioner, that "[o]ver a period of time, I would say which extended back to sometime in 1996, we became aware of an individual . . . later determined to be Donovan Smith, who was conducting a crack cocaine trafficking business," see Feb. 26, 1998 Grand Jury Tr. of Fitzpatrick at p. 3, was relevant to the grand jury's investigation. Thus, the Court finds the argument that presenting this evidence constituted prosecutorial misconduct to be without merit.
3. Double Hearsay Before the Grand Jury
Petitioner's third argument is that the grand jury was deceived by double hearsay and, thus, the indictment should be dismissed. Specifically, Petitioner contends that Fitzpatrick's testimony misled the grand jury because he was not a direct participant in the majority of the events to which he testified and he never advised the grand jury that "it was getting an account of the events whose hearsay nature was concealed." Pet. Br. at p. 9. Petitioner also contends that his rights were violated because certain other law enforcement officials who investigated Petitioner did not testify before the grand jury and, thus, Petitioner was denied the right to "impeach by contradiction at the trial." Id. at 10. Assuming this argument to be properly before the Court (which, for the reasons previously discussed, it is not because it is procedurally barred), this argument also must be rejected.
Hearsay evidence may be introduced before the grand jury, but will render the indictment invalid (a) if the government misleads the jury into believing it is firsthand testimony or (b) if there is a high probability that the defendant would not have been indicted if only nonhearsay evidence had been used. See United States v. Ruggiero, 934 F.2d 440, 447 (2d Cir. 1991). First, Petitioner does not identify any double hearsay. Second, the Court has reviewed Fitzpatrick's grand jury testimony and finds that he truthfully informed the grand jury that other law enforcement personnel were involved in the investigation of Petitioner, see, e.g., Fitzpatrick Tr. at 3-4; he informed the grand jury that he was not involved in all aspects of the investigation; see id. at 3-4, 11; he made it clear when he was testifying as to things done by the other officers, see, e.g., id. at 4-5, 7-8, 11; he made it clear when he was personally involved, see, e.g., id. at 11-13, 17; and he also made it clear when he was testifying as to what other people had said. See, e.g., id. at 17-18. Thus, there is no basis upon which to find that the grand jury was misled by hearsay evidence. Further, based upon the direct evidence offered by Fitzpatrick, it cannot be said that there is a high probability that the defendant would not have been indicted if only nonhearsay evidence had been used.
As to Petitioner's claim that he was denied the right to impeach by contradiction, Fitzpatrick did testify at trial and, thus, he was subject to cross-examination by Petitioner. Similarly, Detectives Rozell and Guiry, the other law enforcement officers involved in the investigation of Petitioner and to whom Fitzpatrick referred in his grand jury testimony, also testified at trial and, thus, were subject to cross-examination. Petitioner was not entitled to have the other law enforcement officers testify before the grand jury. Accordingly, this argument also is without merit.
4. Ineffective Assistance of Counsel
Petitioner next claims that he was denied the effective assistance of counsel because: (1) counsel never objected to the alleged prosecutorial misconduct discussed above; (2) counsel never objected to the alleged double hearsay testimony presented by Fitzpatrick discussed above; and (3) counsel failed to file an appeal of his sentence.
For the reasons previously discussed, namely that there was no prosecutorial misconduct and no improper double hearsay before the grand jury, it cannot be said that counsel's performance in failing to object to the alleged misconduct and improper use of hearsay was objectively unreasonable. See Strickland v. Washington, 104 S.Ct. 2052 (1984).
However, if, in fact, Petitioner timely directed counsel to file an appeal and counsel failed to do so, then that may constitute the ineffective assistance of counsel and Petitioner may be entitled to file a late appeal challenging his sentence only, see Roe v. Flores-Ortega, 120 S.Ct. 1029, 1034-35 (2000), although any such appeal would seemingly be meritless and not taken in good faith because Petitioner was sentenced to the lowest possible time for the applicable offense level and criminal history category and the Second Circuit has already held that he is not entitled to a downward departure for the acceptance of responsibility, see U.S.S.G. § 3E1.1, or pursuant to the safety valve, see U.S.S.G. § 5C1.2. Moreover, as will be discussed, the Court was entitled to determine the quantity of drugs in ascertaining Petitioner's offense level because that determination did not cause Petitioner's sentence to exceed the statutory maximum contained in 21 U.S.C. § 841(b)(1)(C).
5. Apprendi
Petitioner next claims that, pursuant to the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), his conviction and sentence should be vacated because the jury did not determine a specific drug quantity applicable to him.
Petitioner was found guilty by a jury of violating 21 U.S.C. § 841 (a)(1). The jury did not determine beyond a reasonable doubt a particular quantity of drugs attributable to Petitioner. When no specific quantity of crack cocaine is proved or the amount proved is less than 5 grams, 21 U.S.C. § 841(b)(1)(C) applies. See United States v. Angle, --- F.3d ---, 2000 WL 1515159, at *8 (4th Cir. 2000). Section 841(b)(1)(C) contains a statutory maximum sentence of twenty years. Because Petitioner's sentence (121 months) is within the statutory maximum for that offense pertaining to the lowest possible amount of drugs, § 841(b)(1)(C), the fact that the jury did not determine drug quantity beyond a reasonable doubt does not violate Petitioner's constitutional rights. See id at *10.
Because Petitioner was convicted of a drug offense, the jury necessarily found beyond a reasonable doubt that he was involved with some quantity of drugs, be it large or small.
Moreover, Apprendi does not take all determinations of drug quantity away from the sentencing court. Rather, the court is prohibited from making such determinations only when doing so results in a sentence above the statutory maximum applicable to the offense established by the jury's verdict. "Under Apprendi, sentencing factors that support a specific sentence within the statutorily prescribed penalty range [for that offense established by the jury's verdict] are still properly submitted to a judge to be found by a preponderance of the evidence." Id. at *7; see also United States v. Doggett, --- F.3d ---, 2000 WL 1481160, at *5 (5th Cir 2000).
Because any findings made by the Court by a preponderance of the evidence did not elevate Petitioner's sentence beyond the statutory maximum contained in § 841(b)(1)(C), there has been no constitutional violation.
Finally, Petitioner claims that § 841 is unconstitutional because the legislature made drug quantity a sentencing factor rather than an element of the offense. This argument is without merit because: (1) some quantity, be it large or small, must be found by a jury beyond a reasonable doubt in order to convict under § 841; and (2) pursuant to the Supreme Court's decision in Apprendi, to obtain a conviction for § 841(b)(1)(A) or (B), thereby exposing a defendant to statutory minimum sentences and increased maximum sentences, the government will have to allege a quantity in the indictment and the jury will have to ascertain a drug quantity as an element of the offense.
Thus, it would be constitutional to sentence a defendant under § 841(b)(1)(C) when no quantity is alleged in the indictment or specifically determined by the jury.
6. Conclusion
For the foregoing reasons, Petitioner's motion pursuant to 28 U.S.C. § 2255 is DENIED. However, Petitioner is afforded fourteen days within which to substantiate his claim that he timely directed his attorney to file an appeal of his sentence on his behalf and that his attorney failed to do so. If Petitioner does so, he will be permitted to file a late appeal of his sentence. If Petitioner fails to timely respond or fails to respond with sufficient proof, his Petitioner will be dismissed in its entirety.
IT IS SO ORDERED
DATED: November 4, 2000 Binghamton, New York Hon. Thomas J. McAvoy U.S. District Judge