medical condition had been when the drug transaction took place. In view of the immateriality of the testimony in question, as well as Harrison's professed seven-year acquaintance with Zamani, the Court finds dubious the assumption that the prosecution should have concluded on the spot that Harrison was lying about his particular knowledge of Zamani's medical condition; indeed, defense counsel did not so conclude while hearing the same testimony. Thus, the Court finds that any error on the part of the Government does not amount to knowing use of perjured testimony under the relevant law.
Lastly, the Court observes that the Defendant's argument is substantially weakened by the fact that, like the Government, he was served, prior to trial, with pleadings filed by Zamani which referenced the date of his leukemia diagnosis. If the prosecutor knew or should have known of the alleged perjury, as the Defendant argues, the Defendant also knew or should have known of the alleged perjury and waived any claim on that ground by failing to object at trial. The Defendant cannot have it both ways. Moreover, the fact that the Defendant secured different counsel at the second trial, who had access to the complete record in this case, does not influence the Court's observation. Although the Defendant did not participate in all of the hearings on Zamani's continuance motions,
the Government counsel's arguably greater exposure to (not necessarily her knowledge of) the reasons why Zamani sought a continuance, does not erase the fact that the Defendant, whether personally or through his counsel, had knowledge of the date of Zamani's leukemia diagnosis.
Thus, although the Court finds that the Defendant's claim that the Government knowingly elicited perjured testimony must fail on the merits, the Court further observes that the Defendant waived the right to attack his conviction on that ground by failing to raise it at trial.
United States v. Iverson, 208 U.S. App. D.C. 364, 648 F.2d 737, 738 n.7 (D.C. Cir. 1981) ("When a criminal defendant, during his trial, has reason to believe that perjured testimony was employed by the prosecution, he must impeach the testimony at the trial and 'cannot have it both ways.'") (quoting Ross v. Heyne, 638 F.2d 979, 986 (7th Cir. 1989)). See also United States v. Biberfeld, 957 F.2d 98, 104-05 (3rd Cir. 1992), and cases cited therein (a defendant's knowledge of information constituting the alleged perjury coupled with his ability to act on it at trial is fatal to § 2255 motion).
II. THE DEFENDANT'S CONSTITUTIONAL CHALLENGES TO THE SENTENCING SCHEME FOR CRACK OFFENSES MUST FAIL UNDER THE SETTLED LAW OF THIS CIRCUIT
The Court further finds that the Defendant's constitutional challenge to the sentencing scheme for crimes involving cocaine base (a/k/a "crack") is foreclosed by the law of this Circuit. Recently, as acknowledged by counsel for the Defendant,
the equal protection challenge raised here was squarely addressed and rebuffed by the Court of Appeals for the District of Columbia Circuit in United States v. Johnson, et al., 40 F.3d 436, 1994 WL 652314 (D.C. Cir. 1994). In particular, the Court responded to the claim, raised through three separate appeals, that the Anti-Drug Abuse Act of 1986 ("1986 Act"), Pub. L. 99-570, and the federal Sentencing Guidelines violate "the equal protection component of the Fifth Amendment by disproportionately and invidiously impacting blacks through meting out of harsher penalties for offenses involving crack cocaine -- as opposed to sentences received by offenders possessing identical amounts of powder cocaine." Id. at *1.
Having reiterated the general principal that strict scrutiny is triggered only upon a showing of invidious discriminatory purpose, id. at *2, the Court of Appeals found that a racially discriminatory intent could not be attributed to Congress in passing the 1986 Act. The Court observed, "whether one believes the disparity between crack sentences and cocaine sentences is 'fair' or not, we think the scattered pieces of legislative history are quite inadequate to serve to attribute a discriminatory purpose to the Congress." Id. at *3 (citation omitted).
The Defendant argues that he still has a viable Eighth Amendment claim. However, the Court of Appeals for the District of Columbia Circuit has "already held that the disparate treatment of crack and powder cocaine easily survives both rational-basis review and Eighth Amendment challenge." Thompson v. United States, 27 F.3d 671, 678, 307 U.S. App. D.C. 221 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 650, 130 L. Ed. 2d 554, 1994 WL 649563 (citing United States v. Cyrus, 281 U.S. App. D.C. 440, 890 F.2d 1245, 1248 (D.C. Cir. 1989)). In the Court's view, its Eighth Amendment inquiry ends with Thompson and Cyrus. In Cyrus, the Court found "baseless" the argument that the higher term for cocaine base possession violates the Eighth Amendment because it is disproportionate to the crime. Cyrus, 890 F.2d at 1245. The same statutory provision has withstood numerous Eighth Amendment challenges in other circuits as well. See, e.g., United States v. Garcia, 20 F.3d 670, 673 (6th Cir. 1994); United States v. Frieberger, 28 F.3d 916, 920 (8th Cir. 1994); United States v. Savinovich, 845 F.2d 834, 839-40 (9th Cir.), cert. denied, 488 U.S. 943, 102 L. Ed. 2d 358, 109 S. Ct. 369 (1988); United States v. Easter, 981 F.2d 1549, 1556 (10th Cir. 1992), cert. denied, 124 L. Ed. 2d 665, 113 S. Ct. 2448 (1993).
The Defendant relies on United States v. Walls, 841 F. Supp. 24, 32-33 (D.D.C. 1994), however, to suggest that, notwithstanding Cyrus and Thompson, he still has a cognizable claim under the "arbitrary and capricious" theory of the Eighth Amendment. Upon review of the hearing transcripts and the Defendant's pleadings, the Court has pieced together what appears to be a two-pronged argument under this theory. First, the Defendant points to the legislative history to suggest that the penalty ratio between crack and powder was "bumped up to a hundred to one for no substantive reason other than that Congress wanted to show that they were getting tough." (Tr. Aug. 26, 1994, at 109). Second, the Defendant argues that the sentence range was arbitrary and capricious "as applied" to Edmonds. Defense counsel states that "in fact, having already served nearly four years of confinement, Edmonds would be a free man today if crack were not punished more harshly than powder." Defendant's Proposed Findings of Fact and Conclusions of Law, at 56. The Court finds no merit to either argument.
The "arbitrary and capricious" analysis, as explained by Judge Oberdorfer in Walls, is gleaned from Justice White's concurring opinion in Furman v. Georgia, 408 U.S. 238, 312, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), and from another death penalty case, Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Judge Oberdorfer concluded that application of the heightened crack sentences to two of the defendants in Walls violated the Eight Amendment because their imposition would be arbitrary and capricious and would provide "only marginal contributions to any discernable social or public purposes." Walls, 841 F. Supp. at 33 (quoting Furman, 408 U.S. at 312 (White, J., concurring)).
However, the Gregg case specifically recognized that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice," and that because of "the uniqueness of the death penalty," the "sentencing procedures created a substantial risk that [the death penalty] could be inflicted in an arbitrary and capricious manner." Gregg, 428 U.S. at 188. This Court declines to stretch the non-binding dictum of Justice White's concurrence in Furman, or Gregg's discussion in the context of the death penalty in particular, to the term-of-years sentencing scheme for crack offenses.
Even if the Court were to find the so-called "arbitrary and capricious" analysis applicable here, the Court cannot conclude that Congress' passage of the 21 U.S.C. § 841(b) was arbitrary and capricious. Indeed, counsel for the Defendant conceded as much at oral argument. (See Tr., Aug. 26, 1994, at 105). As the Court of Appeals for the Seventh Circuit explained,
Establishing prison terms for "individual crimes involves consideration of factors that, as a general matter, is largely the function of the legislature, not the courts," and, accordingly, we ordinarily grant substantial deference to the legislative determination. Thus, eighth amendment challenges to sentences that are both prescribed by the guidelines, and within the statutory maximums established by Congress, are looked on with disfavor.
United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992), cert. denied, 122 L. Ed. 2d 171, 113 S. Ct. 1026 (1993) (quoting United States v. Jones, 950 F.2d 1309, 1317 (7th Cir. 1991), cert. denied, 112 S. Ct. 1700, 118 L. Ed. 2d 410 (1992)). See also Rummel v. Estelle, 445 U.S. 263, 274, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980) ("The length of the sentence actually imposed is purely a matter of legislative prerogative.").
Further, assuming arguendo that the arbitrary and capricious analysis applies here, the Court cannot find that the sentence imposed was arbitrary and capricious "as applied" to the Defendant. The Walls case is limited to its facts, and the Defendant makes no argument that the circumstances surrounding his arrest and conviction were similar to those of the Walls defendants, whose "underlying addiction drove these defendants' behavior" as drug "cookers" in the larger enterprise. Walls, 841 F. Supp. at 33.
Accordingly, at bottom, the Defendant's argument as to the statute "as applied" consists of a claim that the sentence imposed is disproportionate to the crime in view of the sentence he would have received for a cocaine powder offense, and in view of his "single prior criminal conviction." Defendant's Proposed Findings, at 56. As described above, however, the proportionality claim has already been rejected by the Court of Appeals for this Circuit. The Court thus finds no merit to the Defendant's Eighth Amendment challenge.
III. THE COURT FINDS WITHOUT MERIT ALL THREE ARGUMENTS THE DEFENDANT SUBMITS PRO SE IN SUPPORT OF HIS CLAIM THAT HIS CONVICTION MUST BE OVERTURNED
Finally, the Court finds that the Defendant's pro se claims do not entitle him to any relief from the judgment of conviction or sentence received in this case.
A. The Court finds no merit to the Defendant's argument that the jury was improperly instructed on an "aiding and abetting" theory, as the Defendant had ample notice of the Government's pursuit of that theory and the Court has already found that there was sufficient evidence to support a conviction on that charge.
First, the Defendant argues that his conviction is invalid because the jury was instructed on an "aiding and abetting" theory while "the aiding and abetting theory was not sufficiently presented at trial as part of the case that the prosecutor built upon." Facts and Findings of 2555 [sic] Motion, at 11.
The Court flatly rejects this claim. While an aiding and abetting theory may be given where the indictment does not even allege aiding and abetting, United States v. Kegler, 233 U.S. App. D.C. 58, 724 F.2d 190, 201 (D.C. Cir. 1983), the indictment in the instant case did charge aiding and abetting, 18 U.S.C. § 2, and the Government requested an instruction on aiding and abetting in its written jury instructions filed months before trial.
Thus, the Court determines that the Defendant had more than adequate notice of the Government's theory and was in no way prejudiced by it.
In addition, the Court observes that it has already determined through careful analysis of the record and the relevant law that "there [was] ample evidence from which the jury could find beyond a reasonable doubt that Edmonds aided and abetted the distribution of the drugs." Edmonds, 765 F. Supp. at 1117. Indeed, the Court reached this conclusion "even assuming that the jury did not credit Harrison's claim that Edmonds provided the drugs . . . ." Id. at 1118. Accordingly, the Court finds the Defendant's claim that the jury was improperly instructed on an aiding and abetting theory wholly without merit.
B. The Court rejects the Defendant's claim that false testimony was given to secure an indictment because the Defendant has not proven perjury and there was sufficient competent evidence before the grand jury.
Second, the Defendant argues that he is entitled to a new trial because the indictment was based upon the allegedly perjured testimony of Agent Gary Davis. In particular, the Defendant contends, "in short, [that] Agent Davis' testimony that Harrison and Morse left his vehicle and 'met up with Edmonds,' and then came back to his vehicle with the drugs[,] is perjury, based on DEA surveillance testimony at trial."
Facts and Findings, at 15. Again, the Court finds no merit to this argument.
The "'dismissal of an indictment is only required in extreme situations, as where the prosecutor knowingly presents perjured testimony.'" U.S. v. Treadwell, 594 F. Supp. 831, 835 (D.D.C. 1984), aff'd. 245 U.S. App. D.C. 257, 760 F.2d 327 (D.C. Cir. 1985), cert. denied, 474 U.S. 1064, 88 L. Ed. 2d 788, 106 S. Ct. 814 (1986) (quoting United States v. Tham, 665 F.2d 855, 863 (9th Cir. 1981), cert. denied, 456 U.S. 944, 72 L. Ed. 2d 466, 102 S. Ct. 2010 (1982)). However, "the grand jury can act on testimony which in a trial would be incompetent evidence." Id. "Thus, even assuming, arguendo, that the witness . . . committed perjury before the Grand Jury, the indictment must be sustained if there was sufficient competent evidence before the Grand Jury." Coppedge v. United States, 114 U.S. App. D.C. 79, 311 F.2d 128, 131-32 (D.C. Cir. 1962), cert. denied, 373 U.S. 946, 10 L. Ed. 2d 701, 83 S. Ct. 1541 (1963). "Finally on this point, 'so long as the Grand Jury itself is not "tainted" in the sense that it was improperly constituted, or that its members were necessarily biased, its actions, if valid on their face, are valid.'" Treadwell, 594 F. Supp. at 831 (quoting Coppedge, 311 F.2d at 134)).
Application of these principles to the instant case reveals that the Defendant's claim lacks any merit. First, the Defendant has made no allegation that the grand jury itself was tainted. Second, the Court cannot find that Agent Davis' testimony was perjurious
or, in turn, that the prosecutor knowingly presented perjured testimony to the grand jury. See Treadwell, 594 F. Supp. at 835. Moreover, the Defendant was not prejudiced by Agent Davis' statements before the grand jury, as he had ample opportunity through counsel at trial to cross-examine Agent Davis thoroughly on any perceived inconsistencies in his testimony. Third, even if the testimony were proven to be perjury, the Court has reviewed the transcript of the grand jury testimony and finds that there was more than sufficient competent evidence before the grand jury to sustain the indictment. "It is enough . . . that there is some competent evidence to sustain the charge issued by the Grand Jury even though other evidence before it is incompetent or irrelevant in an evidentiary sense or even false." Coppedge, 311 F.2d at 132.
C. The Defendant's claim that his trial counsel was ineffective must fail because the challenged conduct of his counsel was objectively reasonable and passes the Strickland test.
Finally, the Defendant claims that his trial counsel was ineffective for entering into a prejudicial stipulation concerning the chain of custody of the narcotics. The Court cannot agree.
The appropriate standard for review to determine whether counsel was effective was put forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Defendant must identify the conduct of counsel "that is alleged not to have been the result of reasonable professional judgment." Id. at 690. In determining whether the conduct was indeed unreasonable, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 689, 690. Furthermore, even if counsel's conduct is deemed to have been professionally unreasonable, if such error had no effect on the judgment, the judgment should not be vacated. Id. at 691.
The Defendant alleges that his counsel at the second trial, Mr. Douglas, committed error in allegedly inducing the Defendant to sign a chemist stipulation that was against the Defendant's interests.
Under Strickland, the Court is to determine the reasonableness of Mr. Douglas's conduct in light of the circumstances, "applying a heavy measure of deference to counsel's judgments." Id. at 691. Upon review of the wording of the chemist stipulation that was entered into evidence, the Court finds that the stipulation merely established the chain of custody of the drugs. Such a stipulation is hardly outside prevailing professional norms and is designed to foster efficiency. In this case, it did not in any way go against the Defendant's interests with respect to any disputed element of the charges.
Accordingly, because the Defendant cannot pass the first prong of the Strickland test, i.e., by showing that Mr. Douglas's conduct was unreasonable, the Court need not consider whether the attorney's conduct prejudiced the Defendant by affecting the judgment of the jury. In light of the above, the Court summarily rejects the Defendant's claim that his Sixth Amendment right was violated because he was denied effective assistance of counsel.
The Court finds that the Defendant's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 shall be denied, as the Defendant's five claims, filed through counsel and pro se, must fail on the merits. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
December 15, 1994
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. Upon careful consideration of the written submissions and oral arguments of counsel for both parties, and those of the Defendant himself, as well as the applicable law and the entire record in this case, and for all the reasons set forth in the Court's Memorandum Opinion issued of even date herewith, the Court finds that the Defendant's Motion shall be denied.
Accordingly, it is, by the Court, this 15 day of December, 1994,
ORDERED that the Defendant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 [41, 47, 82] shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that, as the Court has held a full hearing on the Defendant's § 2255 Motion, at which the Defendant was represented by counsel and made oral arguments on his own behalf, and in view of the multitude of pleadings filed by counsel for both parties and by the Defendant pro se, the Defendant's Motion for a New Attorney , the Defendant's Motion for Permission to Represent Himself in Court along with Court-Appointed Counsel , the Defendant's Motion to Approve Expenses , the Defendant's Motion to Withdraw Richard Stern as Attorney for 2255 Motion Hearing , the Defendant's Motion to be Co-Counsel with Peter Brody, Esq. at 2255 Motion Hearing , the Defendant's Motion to Continue 2255 Hearing Until Anthony Morse is Present to Testify , the Government's Motion Requesting 10 Days to Respond to Ropes & Gray's Supplemental Submission , the Defendant's Motion to Clarify Appellant's Right and this Court's Order for Edmonds to Raise any and all Issues in his 2255 Motion , the Government's Motion for Clarification of Defendant's Representation , the Defendant's Motion for Court to Order the D.C. Detention Facility to Allow Edmonds to Go to the Law Library , and the Defendant's Motion for Disclosure of Grand Jury Transcript of DEA Agent Kahn's Testimony , shall be, and hereby are, declared MOOT.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE