UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, :

v. : Cr. No. 92-213(TFH)

xxxxxxxxxx, :

Defendant. :

MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

AND INCORPORATED MEMORANDUM OF FACTS AND LAW

Defendant xxxxxxl, through counsel, respectfully moves this Court, pursuant to 28 U.S.C. з 2255, to vacate, set aside, or correct the sentences he received in this case. As grounds for his Motion, Mr. xxxxxxxx states as follows:

1. This Motion is based upon all the files, records and proceedings in this case.

2. On or about May 10, 1992, a federal grand jury returned an indictment charging Mr. xxxxxxxx with conspiracy to distribute in excess of 50 grams of cocaine base. On or about November 4, 1992, a nine-count superseding indictment was returned against Mr. xxxxxxxx and co-defendant Dennis Mitchell. Count One charged both of them with conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than fifty grams of crack cocaine, in violation of 21 U.S.C. зз 846 and 841(a)(1), (b)(1)(A)(ii)(II) and (b)(1)(A)(iii); Count Two charged Mr. xxxxxxxx with engaging in a criminal enterprise, in violation of 21 U.S.C. з 848(b); Counts Three through Eight charged Mr. xxxxxxxx with six offenses of distribution of more than 50 grams of cocaine base (co-defendant Mitchell was only charged in one of the distribution counts, Count VI), in violation of 21 U.S.C. зз 841(a) and 841(b)(1)(A)(3); Count Nine sought to forfeit cash proceeds of $2,000,000. Prior to trial, at the request of the government, the district court dismissed Counts Three through Seven of the Indictment.

3. On August 18, 1993, Mr. xxxxxxxx was convicted of engaging in a criminal enterprise (CCE), conspiracy to possess and to possess with intent to distribute in excess of five kilograms of cocaine and in excess of 50 grams of cocaine base, and distribution of more than 50 grams of cocaine base, Counts One through Three of a re-typed Indictment. Additionally, the jury determined that $1,000,000 was subject to forfeiture.

4. On January 25, 1994, Mr. xxxxxxxx was sentenced to three concurrent terms of life without parole on the three counts for which he was convicted; the court also imposed terms of supervised release on each count, and a special assessment of $50 for each count. On December 13, 1993, the district court entered an Order of Forfeiture authorizing the United States to seize $1,000,000 in United States currency.

5. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the convictions. United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995).

6. A petition for writ of certiorari was denied on October 10, 1995. xxxxxxxx v. United States, 116 S.Ct. 327 (1995).

7. There have been no petitions, applications, motions or proceedings filed or maintained by Mr. xxxxxxxx in any other federal court with respect to the judgment entered in this case.

8. For the reasons set forth below, Mr. xxxxxxxx prays that this Court set aside his convictions and sentence in this case.⁽¹⁾

MEMORANDUM OF FACTS AND LAW

I. INTRODUCTION

In this Motion, Mr. xxxxxxxx requests the court to vacate his conviction for conspiracy, in light of the Supreme Court's recent decision in Rutledge v. United States, 116 S.Ct. 1241 (1996). Further, Mr. xxxxxxxx moves the court to vacate his convictions and sentences on all counts on the grounds that his trial counsel rendered ineffective assistance.

II. BECAUSE THE OFFENSE OF CONSPIRACY

IS A LESSER-INCLUDED OFFENSE

OF THE CONTINUING CRIMINAL ENTERPRISE,

CONVICTION ON THE CONSPIRACY COUNT

MUST BE REVERSED.

In Rutledge v. United States, 116 S.Ct. 1241 (1996), the Court interpreted the phrase "in concert" in the CCE statute, 21 U.S.C. з 848, to signify mutual agreement in a common plan or enterprise, and therefore held that that element of the CCE statute requires proof of a conspiracy that also violates 21 U.S.C. з 846. The Court further held that because з 846 does not require proof of any fact that is not also part of a CCE offense, conspiracy is not a different offense from CCE, but rather a lesser-included offense of CCE, for double jeopardy purposes. 116 S.Ct. at 1247. Rutledge was convicted for both offenses, and sentenced to concurrent terms of life imprisonment. However, because the district court had imposed special assessments of $50 on both counts, the Court determined that Rutledge had been twice punished for the same conduct, in violation of the principles of double jeopardy, and therefore reversed and remanded so that the conspiracy conviction could be vacated. Id., 1250-51.

Because Mr. xxxxxxxx was convicted of conspiracy and of operating a continuing criminal enterprise, and because the court imposed sentences on both counts, including special assessments of $50 on each count, Rutledge dictates that this court vacate the conviction for conspiracy and the sentence imposed on that conviction.

II. MR. xxxxxxxx'S CONVICTIONS SHOULD

BE REVERSED BECAUSE OF THE INEFFECTIVE

ASSISTANCE OF COUNSEL.⁽²⁾

Mr. xxxxxxxx contends that his counsel was ineffective in representing him and that as a consequence, he was deprived of a fair trial. Specifically, Mr. xxxxxxxx contends that counsel was ineffective in (1) failing to locate an essential defense witness, Sonja Allen, to testify at the trial of this case; (2) failing to procure certain records relating to a business owned by Calvin Stevens, a government witness, so that the records could be used to impeach Stevens' trial testimony; (3) failing to locate an expert in telecommunications and failing to call the expert to impeach trial testimony of Calvin Stevens; (4) failing to cross-examine government witnesses and to present expert testimony to show that a substantial portion of the five-kilogram shipment of cocaine base which forms the basis for Mr. xxxxxxxx's conviction on Count Three of the retyped Indictment was inexplicably missing when the evidence was introduced at trial; (5) failing to subpoena and call as a defense witness Darryl Tucker, who was a co-defendant in a case involving the government's witness Calvin Stevens, because of a conflict of interest; and (6) failing to call as witnesses on behalf of the defense persons named by the government as unindicted co-conspirators with Mr. xxxxxxxx.

On December 22, 1993, Mr. xxxxxxxx filed a Second Motion for New Trial Based Upon Newly-Discovered Evidence (hereafter, Motion), based upon certain evidence which was not available to him at trial. In the Motion, he related that Sonja Allen would have had crucial evidence to offer at trial that would have impeached the testimony of a crucial government witness, Calvin Stevens, that a telephone expert would have also impeached Stevens' testimony and that certain business records would have impeached that testimony.⁽³⁾

In a proceeding before this court on January 7, 1994, the court denied that motion, finding that none of the evidence was newly-discovered and finding that counsel failed to exercise due diligence in finding the witnesses/evidence and presenting it on Mr. xxxxxxxx's behalf. 1/7/94 Tr. 54-56.

On January 26, 1996, Mr. xxxxxxxx filed a subsequent Motion for New Trial, raising the government's failure to comply with the requirements of Brady v. Maryland, 373 U.S. 83 (1963) in several respects, including failure to inform the defense about drugs that were missing from the five-kilogram shipment of cocaine base that formed the basis for Mr. xxxxxxxx's conviction on the distribution count of the indictment.⁽⁴⁾ It is Mr. xxxxxxxx's position that counsel should have investigated the discrepancy, as noted in the Motion, between the amount of drugs the police claimed they seized, the significantly lesser amount of drugs turned over to the Drug Enforcement Administration, and Calvin Stevens' possible role in the disappearance of a portion of the drugs seized, should have inquired into the missing drugs at trial, and should have called an expert witness to explain that there were no scientific explanations which would have explained the discrepancy in drug amounts. Counsel did none of these things.

Finally, Mr. xxxxxxxx contends that there were essential witnesses that should have been called at trial. Darryl Tucker was one such witness. Tucker delivered a quantity of cocaine base to an undercover police officer and was arrested. He and Dwayne Robinson had earlier made arrangements with the officer to sell him two ounces of cocaine base. Tucker had obtained the cocaine base from Calvin Stevens. Stevens was arrested shortly after the sale. See, transcript of plea of Calvin Stevens in Criminal Number 90-363, United States District Court, August 30, 1990, pp. 24-26. Darryl Tucker, as a participant in the offense for which Stevens was arrested, was a potential witness against Stevens concerning the transaction that led to his arrest. Tucker was not interviewed by the defense or subpoenaed to testify at trial. Dwayne Robinson was previously represented by counsel for Mr. xxxxxxxx in Criminal Number 91-0034, in the United States District Court. Mr. xxxxxxxx contends that Tucker was not contacted by the defense or called to testify at trial, because of a desire by his counsel to protect Robinson, counsel's former client.

Additionally, there were several alleged unindicted co-conspirators who were named at the trial of this case but who were never contacted by the defense and were not subpoenaed to testify on behalf of Mr. xxxxxxxx. Obviously, as alleged co-conspirators,

these witnesses would have had potentially relevant testimony to offer at trial. Counsel failed to make any effort to obtain their presence.⁽⁵⁾

In failing to properly investigate this case, and in failing to call necessary witnesses at trial and to produce documentary evidence at trial, counsel rendered ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984). Under the standards set forth in Strickland, counsel is obligated to conduct pretrial investigation, including locating and interviewing potential defense witnesses, and subpoenaing favorable witnesses to testify at trial. Williams v. Washington, 59 F.3d 673 (7th Cir. 1995); Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994); Bryan v. Scott, 28 F.3d 1411 (5th Cir. 1994); Chambers v. Armontrout, 907 F.2d 8225 (8th Cir. 1990); United States v. Gray, 878 F.2d 720 (3d Cir. 1989); Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989); Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986); Thomas v. Lockhart, 738 F.3d 304 (8th Cir. 1984). This rule applies to expert as well as lay witnesses. United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993). Counsel has a similar obligation to investigate evidence that might favor the defense. Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993); Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992).

In light of the foregoing, and Mr. xxxxxxxx's Affidavit, which will be submitted as an Addendum, this court should conduct a hearing to determine these allegations of ineffective representation.

CONCLUSION

Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, Mr. xxxxxxxx requests that an evidentiary hearing be conducted at which proof may be offered concerning the issues raised in his motion and memorandum. After an evidentiary hearing, the Court should vacate his convictions and sentences, and grant such other relief as it deems appropriate.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_________________________

Reita Pendry

Assistant Federal Public Defender

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)208-7500

1. Pursuant to the pertinent instructions accompanying the Model Form for Motions Under 28 U.S.C. з 2255, prescribed by the Rules Governing Section 2255 Cases in the United States District Courts, we have set forth in our memorandum the pertinent facts and applicable law in support of our motion. However, in discussing the facts relating to our legal claims, we do not mean to suggest that an evidentiary hearing on these claims is unnecessary. To the contrary, because our allegations involve factual, as well as legal issues, a full hearing on this motion is required.

2. Because of the nature of the claims raised in this Section of this Motion, the court may deem it appropriate to permit counsel to withdraw and to appoint substitute counsel to fully develop the claims. Undersigned counsel is setting forth these claims on Mr. xxxxxxxx's behalf to assure that they are presented to the court within the time deadline established by the Anti-terrorism and Effective Death Penalty Act, Pub. L. 104-132 (Apr. 24, 1996), зз 101, 105.

3. The averments and arguments in that Motion are incorporated herein by reference.

4. Pages 5-7 of that Motion are incorporated herein by reference.

5. An Affidavit from Mr. xxxxxxxx setting forth the names of these witnesses and his desire to have them, as well as Darryl Tucker, called as witnesses at the trial of this case, will be submitted as an Addendum to this Motion as soon as it is received by counsel. As the attached Memorandum demonstrates, counsel has not had access to Mr. xxxxxxxx for over two weeks and has been unable to procure the necessary Affidavit.