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UNITED STATES v. THOMAS

July 6, 1992

UNITED STATES OF AMERICA
v.
JAMES B. THOMAS.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court is the defendant's Motion to Vacate Sentence and for New Trial pursuant to 28 U.S.C. § 2255. The defendant bases his claim for relief on ineffective assistance of counsel at trial. Specifically, he attacks his trial counsel's alleged failure to properly object to the introduction of tape recorded telephone conversations between an undercover police officer and unindicted juvenile co-conspirator, and trial counsel's failure to object to dual testimony of a police officer as both a factual witness and an opinion witness.

 The Court has carefully considered the submissions of the parties, the arguments of counsel, the transcript of the trial, the applicable law, and the entire record herein, and concludes that the defendant's motion must be denied.

 I. Background

 A. Procedural History

 The defendant was charged in an indictment filed on July 19, 1988 with one count of conspiracy to distribute phencyclidine ("PCP") and to possess cocaine with the intent to distribute it, and with one count of distribution of PCP. A jury trial began on September 8, 1988. The defendant was convicted the following day on the conspiracy count. The jury was unable to reach a decision on the distribution count, and it was dismissed. The Court sentenced the defendant to 121 months imprisonment, to be followed by thirty six months of supervised release, on November 14, 1988. A Notice of Appeal was timely filed, but on appeal, the defendant's conviction was affirmed. United States v. Thomas, 896 F.2d 589 (D.C. Cir. 1990). The Court of Appeals affirmed this Court under the plain error standard, holding that because the alleged errors were not the subject of proper objections, this Court did not have the opportunity to consider the issues raised. Id.

 B. Evidence Offered At Trial

 At trial, the government presented three witnesses. The government's first witness was Officer Christopher Benefiel, assigned to the Drug Enforcement Agency ("DEA") from the Fairfax County Police Department. He testified that on March 11, 1988, at about 1:00 p.m., he and DEA Agent Preston L. Grubbs were working undercover. Tr. 1-2. As part of an attempt to arrange a large PCP transaction, they went to the Pizza Hut restaurant at 7435 Georgia Avenue, to meet with Damion Chase (also known as "Zeke"), a juvenile co-conspirator, and an individual Officer Benefiel did not know. Zeke introduced the other individual (the defendant herein) as "Tony". Tr. 3. The defendant said that he was Chase's PCP supplier. Tr. 6. Officer Benefiel stated that he would supply two kilos of cocaine in exchange for two gallons of PCP, plus $ 5,000. The defendant, who did all the negotiating with the officers at the restaurant, agreed to this arrangement. Tr. 7-9; 53-54.

 During the course of this meeting, the participants discussed the location and the logistics of the proposed transaction. Tr. 11. They agreed that the location would be 6501 Georgia Avenue, N.W., in a Safeway parking lot. Tr. 9, 11.

 On March 14, 1988, Chase (the juvenile) and Officer Benefiel had a series of telephone conversations, the purpose of which was to confirm defendant's identity and confirm that he was not a police officer or informant. Tr. 13. During the conversations, Benefiel and Chase planned a smaller drug transaction to precede the larger exchange described above. Tr. 14. The smaller transaction was to take place on March 15, 1988 at 5:00 p.m. at 6501 Georgia Avenue, N.W., with the presence of the defendant. At trial, the prosecution proposed playing audio tapes of these conversations to the jury. Tr. 14. Defense counsel objected on hearsay grounds, arguing that the tapes were hearsay as to the juvenile co-conspirator, Chase, and that Chase should be available for cross-examination at trial. Id. The Court overruled the objection, citing the co-conspirator exception to the hearsay rule. Tr. 14-15.

 Officer Benefiel testified that on March 15, 1988 at 5:00 p.m., he appeared at 6501 Georgia Avenue, the selected site for the smaller transaction. The defendant was not present as had been agreed, so Officer Benefiel refused to make the transaction and departed, returning at 6:00 p.m. Tr. 30-31. The defendant and Chase then approached Benefiel and entered his car, with the defendant sitting in the front seat. Tr. 32-33, 82. Officer Benefiel gave the defendant $ 1200 and Chase gave Benefiel four bottles of what was later shown to be PCP. Benefiel and the defendant then began to review arrangements for the larger transaction involving the two gallons of PCP and two kilograms of cocaine. Tr. 34.

 Next, DEA Agent Preston L. Grubbs testified at trial regarding his participation in the March 11, 1988 meeting with Chase and the defendant. He confirmed parts of Benefiel's factual testimony regarding the negotiation of the proposed exchange of PCP and cocaine. Tr. 49-52; 54-55.

 Government counsel then asked Agent Grubbs about his experience in purchasing and supervising purchases of narcotics as a DEA agent. Defense counsel objected to this line of questioning, arguing that the prosecution was trying to qualify the witness as "some kind of drug expert". Tr. 55-56. The Court indicated that the government could qualify the witness to render an opinion if it wanted to. Defense counsel objected, stating that "an expert ain't just some Bozo who works for the Drug Enforcement Agency". Tr. 59-60. After further discussion, the Court allowed the government to qualify the witness to render opinions. Tr. 60. After some questioning, defense counsel again objected to the witness' qualifications. The Court overruled the objection, noting that Fed. R. Evid. 702 allows a witness to testify where, inter alia, experience qualifies him or her to state an opinion. Tr. 67. The Court directed government counsel to lay further foundation on the witness' qualifications, and precluded counsel from referring to the witness as an "expert". Tr. 67-68. Before allowing the witness to answer the prosecutor's questions concerning the amount of PCP that was involved, its value, and the reason drug dealers employ juveniles, the Court gave the jury the following limiting instruction:

 Ladies and gentlemen of the jury, the Rules of Evidence or the law ordinarily do not permit witnesses to testify as to opinions or conclusions; however, there is an exception to this rule, and that exists as to those witnesses who, by education, experience, or training, have become qualified to give an opinion in some art, science, profession, or calling. These witnesses who are so qualified may state an opinion as to relevant and material matters in which they are qualified by virtue of their education, training, or experience, and they may also state their reasons for their opinions.

 You are not bound by the opinion of a witness. If you should decide that the opinion of a witness is not based upon sufficient education and experience, or if you should conclude that . . . the reasons given in support of this opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion in whole or in part. In other words, ladies and gentlemen, you should give the opinion testimony such weight ...


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