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UNITED STATES v. BYFIELD

July 21, 1992

UNITED STATES OF AMERICA
v.
WAYNE BYFIELD



The opinion of the court was delivered by: JOYCE HENS GREEN

 On September 12, 1989, Wayne Byfield ("Byfield") was charged in a two-count indictment with: 1) possession with intent to distribute more than 50 grams of cocaine base on or about August 18, 1989 and/or aiding and abetting in the possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A)(iii) and 18 U.S.C. § 2; and 2) using a juvenile to violate the provisions of 21 U.S.C. § 841(a). Count Two of the indictment, alleging a violation of 21 U.S.C. § 845b(a)(1), was dismissed upon the government's motion prior to trial, and the defendant proceeded to trial on Count One.

 At the conclusion of the government's case-in-chief, Byfield moved for a judgment of acquittal, which motion was denied. Tr. 154-55. *fn1" Thereafter, trial counsel, S. Edgar Wilhite ("Wilhite" or "trial counsel"), presented the defense case. Defendant renewed his motion for a judgment of acquittal at the close of all the evidence, and again, defendant's motion was denied. On December 11, 1989, after deliberating for less than two hours, the jury returned a guilty verdict.

 On December 18, 1989, Byfield filed a motion, urging this court to grant a post-trial judgment of acquittal, and on February 16, 1990, the court issued an Order setting aside the jury verdict. Specifically, the Court held that there was insufficient evidence, as a matter of law, to prove Byfield constructively possessed the cocaine base. On March 29, 1991, the Court of Appeals for the District of Columbia reversed this District Court's decision on the ground that the evidence, including the case presented by defendant's trial counsel, provided "an adequate basis for the jury's guilty verdict." United States v. Byfield, 928 F.2d 1163, 1167 (D.C. Cir. 1991).

 Byfield appeared before the Court for a status hearing on June 26, 1991, at which time he was ordered to be held without bond pending his sentencing on September 5, 1991. Defendant moved for reconsideration of that determination, which motion was denied on July 10, 1991. On August 23, 1991, Byfield submitted a motion to vacate the judgment and sentence based on ineffective assistance of trial counsel. *fn2" Consequently, by Order dated September 3, 1991, the Court cancelled the sentencing pending a ruling on defendant's motion. *fn3" For the following reasons, defendant's motion to vacate judgment shall be granted.

 I. BACKGROUND

 A. Government's Case

 At trial, the government presented evidence that on August 18, 1989, Byfield and a young girl took Amtrak's "Night Owl" train from New York to Washington, D.C. Thomas Maher ("Maher" or "Detective Maher"), an Amtrak detective, testified that as he walked through the car in which Byfield was seated, he noticed the defendant and a young woman, later identified as "Shirley," sitting together and talking quietly in the second car of the train. Maher further testified on direct examination that as he followed them off the train and into Union Station, they looked nervous.

 Byfield had no luggage, and the young girl was carrying a tote bag. They stood next to each other as they rode an escalator from the train platform. Byfield then moved ahead of the girl in the station, but she approached him several times. Byfield again moved ahead, looking back at the girl and motioning downward with both hands, signalling, according to Maher, for Shirley to stay away from Byfield. Maher observed Byfield repeat these hand gestures.

 As he was passing into the Main Hall of Union Station, Detective Maher also saw two Metropolitan Police Department ("MPD") detectives on duty in Union Station. Maher and Detective Donald Zattau ("Zattau" or "Detective Zattau"), an MPD officer, together approached the girl.

 During a consensual search of her tote bag, the detectives found, among other things, a shoebox containing an old pair of shoes and six plastic bags that held more than 600 grams of cocaine base. The tote bag also contained men's clothing.

 William Buss ("Buss" or "Investigator Buss"), another MPD detective, also testified that he had approached Byfield outside the station near the taxicab waiting area. When questioned by the investigator, Byfield said that he lived in New York and was planning to stay in Washington, D.C. for two or three days. Byfield added that he had traveled alone and carried no luggage because he had clothing at the place he was going to visit. Byfield consented to a pat-down search and left after Buss found nothing on him.

 Detective Zattau was the third witness who testified on behalf of the government. He indicated that when he noticed Byfield walking through Union Station "the girl was behind him, probably 20, 30 feet behind him." Tr. 83. He approached the young woman and when he asked her if she had a ticket, he testified that "she pointed to Mr. Byfield." Tr. 86.

 Detective Zattau, who had conducted the search of the tote bag, testified that the bag contained an Etonics Transam Trainer shoebox for sneakers, size 8-1/2, color white and light grey; a pair of old New Balance shoes; six plastic bags of cocaine base; *fn4" a pair of Bermuda-type extra-large shorts;" *fn5" a "muscle shirt, extra-large, Adidas" *fn6" and an extra-large, grey muscle shirt; a pair of green shorts, a pair of Champion brand grey shorts, and a pair of "purplish" ...


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