The opinion of the court was delivered by: CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Before the Court is the Defendant's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, along with the Defendant's First, Second, and Third Supplemental Memoranda in Support thereof.
The Defendant, through counsel, raises two claims which he asserts entitle him to relief from his conviction: (1) that the prosecution violated his right to due process by presenting perjured testimony; and (2) that the statutory provision under which the Defendant was convicted and sentenced, 21 U.S.C. § 841(b), must be struck down as violating the Eighth Amendment and the Equal Protection Clause of the United States Constitution.
The Defendant also raises the following claims pro se: (1) that the jury was instructed on an "aiding and abetting" theory of liability which was not properly presented by the Government; (2) that the Government knowingly presented false testimony to the grand jury by a Government agent, Gary Davis; and (3) that the Defendant was deprived of effective assistance of counsel as a result of his trial counsel's agreement to a prejudicial stipulation regarding chemist reports.
The Court is in receipt of the Government's responses to the Defendant's pleadings submitted through counsel, as well as its responses to the Defendant's numerous pro se pleadings. The Government asserts, in sum, that the Defendant's claims are procedurally barred for failure to raise them at trial, sentencing, or on direct appeal and that, notwithstanding the procedural bar, the Defendant's claims must fail on the merits.
In addition, the Government and the Defendant through counsel have each prepared proposed Findings of Fact and Conclusions of Law, exchanged the same, marked up their opponent's proposed findings to indicate those issues which remain in dispute, and filed marked-up copies with the Court. The Court is also in receipt of the Defendant's "Facts and Findings of 2555 [sic] Motion," submitted pro se.
On May 7, 1991, Defendant Rodger Edmonds was convicted by a jury of conspiracy to distribute 50 or more grams of cocaine base, distribution of 50 or more grams of cocaine base, and distribution of 50 or more grams of cocaine base within 1000 feet of a school.
Edmonds' first trial on these charges resulted in a hung jury. Approximately one week before the second trial, the Defendant rejected the counsel who had been appointed for him for the first trial, Mr. Kriegsheim, and obtained new counsel, Mr. Douglas and Ms. Ludaway. At that time, Mr. Kriegsheim gave Mr. Douglas all of the transcripts, paperwork, and all other materials that he had prepared for the case. Moreover, in contrast to the first trial, the Defendant declined to testify on his own behalf.
Based upon the trial testimony and exhibits, the Government case against the four co-defendants revolved around an alleged scheme to sell drugs to someone who, unbeknownst to the Defendants, was an undercover Drug Enforcement Agency ("DEA") agent. As part of an operation targeting high-level drug suppliers, DEA Special Agent Gary Davis had contacted Ali Zamani, a bartender at a local restaurant, concerning the purchase of crack cocaine. (Tr. 84-86). Acceding to several requests from Agent Davis, Zamani contacted Julius Harrison, with whom Agent Davis subsequently had numerous conversations regarding the purchase of kilogram and pound quantities of cocaine base. (Tr. 85-86). Harrison made it clear that the crack cocaine was not his but that he would unite Agent Davis with his source, whom Harrison called "his boy." (Id.).
Harrison and Agent Davis agreed that their transaction would take place on August 29, 1990, at 6:30 p.m., at which time Harrison was to sell four ounces of crack cocaine to agent Davis for $ 5,600. (Tr. 87, 89). Anthony Morse and the Defendant Edmonds were also present when the transaction was consummated, allegedly acting as part of the "team" participating in the deal. (See Tr. 140-55).
Harrison and Agent Davis met at Union Station at the predetermined time and drove to Third and E Streets, 520 feet from Stuart Junior High School. (Tr. 89, 141-42). During the drive, Harrison advised Agent Davis that "he would be meeting with his people and pick up the cocaine." (Tr. 94). When they arrived at Third and E Streets, Harrison got out of the unmarked police vehicle, walked down Third Street and went out of Agent Davis' sight. (Tr. 95, 143). Meanwhile, Edmonds had been cruising around the neighborhood in a black Datsun 240 accompanied by Anthony Morse. (Tr. 144). Edmonds pulled over to the right side of Third Street, and Harrison approached the Datsun and made contact with Edmonds and Morse. (Tr. 145). Five minutes later, Harrison returned to Agent Davis and asked to count Agent Davis' money before handing over the drugs. When Agent Davis refused, Harrison again exited the car and began walking up Third Street toward the Datsun driven by Edmonds. (Tr. 95, 145). This time, upon returning to Agent Davis, Harrison was said to have stated that "his people didn't like how the deal was going to go" and, after further negotiations, left the vehicle for the third time and proceeded up Third Street. (Tr. 96).
Five minutes later, Morse and Harrison returned to Agent Davis' car, while Edmonds sat on the stoop of a row house located three or four houses from the corner where Agent Davis was parked. (Tr. 146). Harrison and Morse left the vehicle, went to a nearby alley, and returned approximately five minutes later. (Tr. 97, 147-48). Edmonds left the stoop and drove to the corner of Third and E Streets. (Tr. 148, 150-51). Morse showed Agent Davis the crack cocaine, Agent Davis opened his trunk to retrieve the money, and the surveillance team responded by arresting Harrison and Morse. (Tr. 98, 151). Edmonds then accelerated from the scene and was apprehended by two police vehicles. (Tr. 98, 151-52, 158-59).
When Harrison was arrested, he possessed a business card; written on the card was the name "J. Harrison," the phone number Agent Davis used to contact Harrison, the name "Ali," Ali Zamani's phone number, Agent Davis' pager number, the name "Rog," and the pager number matching the number of the pager taken from Edmonds at the time of his arrest. (Tr. 101-04, 193-94).
The Government focused on the testimony of two witnesses to prove its case against the Defendant Edmonds. First, Julius Harrison, who had a crack cocaine habit from 1979-1988, testified in detail about the Defendant Edmonds' role as Harrison's drug supplier. (Tr. 173-74). Harrison recounted his relationship with Edmonds, which included "[a] lot, over a hundred" drug transactions. (Tr. 172-73). According to Harrison, a "pretty good friend" of his, Ali Zamani, who was very ill (and subsequently died), solicited Harrison to help him locate drugs for a Dr. Gary Cambyz (Agent Davis's undercover name). (Tr. 177-78). Harrison testified that he therefore contacted Edmonds about supplying the crack cocaine for the impending transaction with Agent Davis. (Tr. 179, 181-82). Describing the transaction in detail, Harrison claimed that Edmonds played an important role in negotiating the sale and that Edmonds also functioned as a look-out. (Tr. 182-95) Harrison testified that he "knew that he'd be getting something, either cash or cocaine, out of the deal" because "over a period of nine years of knowing Rodger, [they'd] done this a number of times, that is, they had "had exchanges of cocaine and money." (Tr. 194).
The Government also stressed the importance of testimony given by DEA Special Agent Ronald Kahn. Agent Kahn was part of the DEA surveillance team monitoring the transaction. At least twice, Agent Kahn observed the Defendant Edmonds looking at Julius Harrison and Anthony Morse while the transaction unfolded, (Tr. 149, 151), and testified that he thought Edmonds, Harrison and Morse were talking both before and during the time in which Harrison negotiated the terms of sale with Agent Davis. (Tr. 144-46, 149). Moreover, according to Agent Kahn, when Edmonds drove his car to the intersection of Third and E Streets, he had a full view of the area in which Harrison was making the exchange with Agent Davis and " was looking over towards [that area] while the transaction was taking place." (Tr. 150-51). Also, Agent Kahn observed Edmonds flee from the scene as soon as the police converged on the car in which the DEA agents were sitting. (Tr. 151-52, 158-59).
Agent Davis, the undercover police officer who invited the drug transaction and was present at the arrest, also testified for the Government at trial and in the grand jury proceedings. He testified as to the events surrounding the sale as he knew them from his end of the transaction, and also to what had occurred just prior to the arrest. (Tr. 83-139).
In his defense, Edmonds argued that he was at the wrong place at the wrong time and had no knowledge of the drug activities taking place.
On December 11, 1991, this Court sentenced Edmonds to two terms of 175 months of incarceration to run concurrently. In a Memorandum Opinion dated June 4, 1991, the Court denied the Defendant's Motion for Judgment of Acquittal and Motion for New Trial, finding that the evidence was sufficient to support his conviction, that a showing that the Defendant had knowledge that drugs were distributed within 1,000 feet of a public school area was not required, that a letter from Anthony Morse allegedly exonerating the Defendant was not "new" evidence that could form a basis for a new trial, and that even if the letter were newly discovered evidence, it was not of sufficient credibility to warrant a new trial. United States v. Edmonds, 765 F. Supp. 1112 (D.D.C. 1991).
The Defendant timely filed notice of direct appeal. On December 14, 1992, the Defendant filed, pro se, a ninety-six page motion seeking vacation of his sentence pursuant to 28 U.S.C. § 2255. By Order of November 12, 1992, the Court of Appeals stayed the appeal pending resolution of the Defendant's § 2255 motion. This Court appointed counsel for the Defendant, who then filed briefs advancing the two above-mentioned grounds for relief. As noted, the Defendant also raised three claims pro se. The Court held a hearing on the instant motion on August 26, 1994, on December 5, 1994, and on December 7, 1994, ...