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March 1, 1994

JAMES HARRIS, aka James Harris Glenn, Jr., Movant.


The opinion of the court was delivered by: ROYCE C. LAMBERTH

I. Introduction

 A jury found movant guilty of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(iii). Following the four-day jury trial in this case, this court received the following letter in chambers on August 26, 1991:

 August 23, 1991

 The Honorable Royce C. Lambert[h]

 U.S. District Court

 3rd St., & Constitution Ave., N.W.

 Washington, D.C. 20001

 RE: D.C. vs. James Glenn aka Harris

 C.A. No.: 91-0197

 Dear Judge Lambert[h]:

 This letter is concerning the case of D.C. vs. Harris, in which Mr. Harris was found guilty of possession of cocaine on July 12, 1991. I am Mr. Harris' aunt and he has asked me to write this letter to you on his behalf.

 After the trial my nephew learned that his attorney Betty Hunter has been having an affair with one [of] the police officer[s] who testified against him at trial. At no time before or during the trial did Miss Hunter ever tell my nephew that she was having an affair with one of the witness[es]. My nephew do[es] not believe that anyone was aware of this relationship at the time of the trial. Mr. Harris wants a hearing on this matter so that the Court will have an opportunity to determine whether a new trial should be given to him. I have made several phone calls to Miss Hunter to give her a chance to explain why this information was not brought to the Court's or the Movant's attention. Miss Hunter has even failed to contact the Movant to keep him abreast on the sentencing or on appeal.

 Please accept this letter as my nephew['s] request for a hearing on this problem and for a new trial based upon the representation of Ms. Hunter. My nephew has the name of the police officer who was involved with Ms. Hunter, which wil[l] be brought out [at] a later date. I am writing this letter for my nephew as he does not have a lawyer other than Miss Hunter whose advice he no longer trust. Please help Mr. Harris.

 Thanking you for your time and attention in this matter, I am,

 Very truly yours,

 Williemae Odom

 At the October 2, 1991 presentencing, this court questioned Mr. Harris on the record about this letter. *fn1" Subsequent to this colloquy, movant agreed to continued representation by Ms. Hunter. Mr. Harris was sentenced on October 8, 1991 to 97 months of incarceration and four years of supervised release on count one of an April 11, 1991 indictment. The judgment of conviction under attack by this motion was entered on October 10, 1991. *fn2"

 II. History of this Motion

 On October 17, 1991, movant filed a notice of appeal from his conviction and sentence. That appeal is pending in the United States Court of Appeals for the District of Columbia. By order of that court dated April 15, 1992, the appeal is being held in abeyance pending the filing and disposition of this motion.

 On February 12, 1993, this court temporarily granted a motion to file and conduct proceedings under seal. On March 12, 1993, the court sealed this matter until further order by the court. Also on March 12, 1993, the court signed an order permitting movant to take the deposition of Ms. Hunter. On May 19, 1993, the court allowed the movant to depose Officer Muzzatti. Interviews of other Fifth District police officers were conducted pursuant to a stipulation of counsel. On January 12, 1994, this court held an unsealed hearing in open court on this § 2255 motion. The court took this matter under advisement, keeping the findings and documents under seal pending further order of the court. The government suggests that the discovery allowed regarding this § 2255 motion should be kept under seal because of the privacy interests of the principal players in this case. This court rejects this argument. The participants' privacy interest is outweighed by the need for public awareness of the facts of this case in light of the court's decision today to grant the movant's motion. Today, in a separate order, this court unseals all materials related to this case.

 III. History of the Case *fn4"

 A. Arrest and Pretrial

 Police arrested movant and his codefendant, Thomas Roger Odom, on March 13, 1991 during the execution of two search warrants at neighboring addresses, 1237 and 1239 Gallatin Street, N.E. Tr. I at 12, 38; Tr. III at 3-119. *fn5" When the police entered the residence, movant was located in the basement of the house at 1239 Gallatin St. N.E. Tr. III at 3-4. Three other individuals were in the basement at that time: Derrick Johnson, Mark Henderson, and Carl Cooper. Id. Henderson and Cooper testified at trial in Mr. Harris' defense. Tr. III at 2; Tr. IIA at 117. Johnson, an unavailable witness, executed an incriminatory statement that was admitted in Mr. Harris' defense See Movant's Suppl. App., Tab 9. *fn6" Movant's codefendant was seized outside of the house between the 1237 and 1239 Gallatin addresses. Tr. I at 22.

 Police discovered 27 small packets of crack cocaine on the basement floor near the door of a rear storage room. The police also found $ 2,500 in cash, firearm ammunition, and empty ziplock bags in the basement. Movant was the only person in the house arrested and charged. *fn7"

 The day following Mr. Harris' arrest, Ms. Betty M. Hunter began representing Mr. Harris as court-appointed counsel. After her initial meeting with him on March 14, 1991, Ms. Hunter represented movant throughout pretrial, trial proceedings, and in his presentencing and sentencing. *fn9"

 Before meeting with Mr. Harris, Ms. Hunter questioned Fifth District Officer Marcello Muzzatti, her lover, about his role in the arrest of Mr. Harris. *fn10" Hunter Dep. at 30. Officer Muzzatti told her that he had no knowledge of the arrest of James Harris or the arrest activities in the basement. Id. at 360. Her understanding was that Officer Muzzatti had only arrested somebody outside the house, id. at 69, 71-72, and had never gone inside the house, until later when he took the doorknob off the basement door. Id. at 72. She believed that Mr. Harris had been removed from the basement prior to Officer Muzzatti's entry into the basement. Id. at 106. At this point, Ms. Hunter "satisfied [her]self, in [her] mind, that [she] could represent Mr. Harris without any ethical problems, because Officer Muzzatti knew nothing about the arrest of Mr. Harris." Id. at 78.

 B. Trial

 Movant and codefendant Odom were tried jointly before this court. At trial, the prosecution hinged on the testimony of the fifth district arresting officers, including Officers Donald Bell, Steven Naugle, and Marcello Muzzatti. Bell and Naugle proved to be the key witnesses in proving the constructive possession charge against Mr. Harris, placing him inside the house at 1239 Gallatin St., N.E.

 Officer Muzzatti was the first witness to testify in the government's case in chief. Tr. I at 16-34. Officer Muzzatti assisted the other officers in executing the search warrants. Id. at 17-18. While the other officers executed the warrants, Officer Muzzatti, along with Officer Delpo, was assigned to cover the rear of the buildings being searched. Id. at 18.

 Muzzatti heard his colleagues enter the front of 1239 Gallatin St. N.E. Id. Muzzatti then heard a door slam and crashing in the bushes, which he took to be someone running. Id. A person with a gun came toward him, moving in the yard between the houses at 1237 and 1239 Gallatin. Id. The fleeing man, ...

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