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UNITED STATES v. GREEN

December 19, 1994

UNITED STATES OF AMERICA,
v.
DESI L. GREEN, Defendant.



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

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court is the Defendant's Motion, pursuant to 28 U.S.C. ยง 2255, to Vacate Sentence and Order for a New Trial and the Government's Opposition thereto. Upon a careful review of the papers, the applicable law, the entire record herein, and the oral arguments of Counsel, the Court shall deny the Defendant's Motion.

 On April 16, 1991, the Defendant was tried and convicted of one count of distribution of PCP. Defendant was then sentenced on June 13, 1991, to a term of 163 months of imprisonment. Subsequently, the Defendant filed a notice of appeal. The appeal was stayed pending this Court's decision on the Defendant's Motion, now before the Court, which challenges his criminal conviction based upon the alleged ineffective assistance of trial counsel.

 In his Motion, Defendant alleges that trial Counsel committed four errors: (1) failure to object to evidence of a drug sale the Defendant was not involved in; (2) failure to object to the admission of statements that did not meet the co-conspirator exception to the rule on hearsay evidence; (3) failure to object to the trial Court's anti-deadlock jury instruction; and (4) failure to object when the Court overheard jury deliberations and decided to conduct a recess on that basis. According to the Defendant, these four alleged errors show that trial Counsel ineffectively assisted him at trial.

 The Government, in its Opposition, denies that trial Counsel was ineffectively rendered.

 FACTS

 On January 4, 1991, the Defendant and Jeffrey Harris were arrested in a Safeway parking lot in Washington, D.C. after they attempted to sell one gallon of phencyclidine ("PCP") to undercover agents of the Drug Enforcement Administration ("DEA").

 The evidence at trial concerned three transactions between the Defendant, Jeffrey Harris, and undercover DEA agents involved in the sale of PCP.

 In the first transaction, the evidence established that Jeffrey Harris sold 16 ounces of PCP to the DEA agents on December 7, 1990 outside his home in Washington, D.C. An informant arranged the transaction and the price. After arriving at Jeffrey Harris' house, the agents attempted to negotiate a lower price but Mr. Harris responded that "he didn't know. He had to check with his man, because he gets it from another guy. He got to negotiate with his boy . . . " (R. at 36, 229.)

 In the second transaction, the evidence showed that the Defendant and Jeffrey Harris sold 32 ounces of PCP to the DEA agents. After the agents arrived on the scene, the informant told, the DEA agents that Mr. Harris had said that "his man wasn't there yet . . . he'd be back in about . . . ten minutes." (R. at 42, 241.) The DEA agents noticed Defendant driving a white Toyota very slowly around the area near Mr. Harris' house. A few minutes later, Mr. Harris came outside, walked past the agents' car, but did not stop, telling the agents "my man is on his way" as he walked out to the street. (R. at 42.) The Defendant subsequently pulled over with the engine running, and Mr. Harris walked over to the car. Defendant pointed at the agents and Mr. Harris turned to look in their direction. Mr. Harris conversed with the Defendant. Defendant then handed a brown paper bag to Mr. Harris. Mr. Harris returned to the DEA agents' car carrying the bag that was discovered to have contained two bottles of liquid PCP. Defendant drove off, but then appeared approximately five minutes later. The DEA agents then asked Mr. Harris if he would "go talk to his boy" to negotiate the price for the purchase of a gallon of PCP. Mr. Harris then appeared to carry on a conversation with the driver of the white Toyota. Mr. Harris returned to the DEA agents' car and told the agents that "his boy couldn't lower the prices because the guy that he gets it from, the prices go up and down and he couldn't guarantee lowering the prices on anything." (R. at 47, 244.)

 A detective then transported the Defendant to the DEA office. During the drive, the Defendant indicated that he had knowledge of other individuals involved with PCP, where he had seen large quantities of PCP, and where he had obtained the PCP involved in his arrest.

 DISCUSSION

 I. THE COURT SHALL DENY THE DEFENDANT'S MOTION BECAUSE THE REPRESENTATION OF THE DEFENDANT BY COUNSEL WAS NEITHER DEFICIENT NOR PREJUDICIAL IN EACH OF THE FOUR INSTANCES CITED BY THE DEFENDANT.

 A convicted Defendant's claim of ineffective assistance of trial counsel has two components, both of which must be satisfied for the Defendant to prevail. First, the representation of the Defendant must have been deficient to the extent that the attorney's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied, 467 U.S. 1267 (1984); United States v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 308 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 287 (1992); United States v. Potson, 284 U.S. App. D.C. 125, 902 F.2d 90, 98 (D.C. Cir. 1990). In analyzing this first component, the court is to examine the particular circumstances of the case to determine the reasonableness of the Defendant's representation. Strickland, 466 U.S. at 688, 690. However, with respect to this component, there is a "strong presumption" that counsel's conduct was reasonable and that the challenged action was a sound trial strategy. Strickland, 466 U.S. at 688, 690; Nix v. Whiteside, 475 U.S. 157, 165 (1986).

 The second component that the Defendant must show is that the alleged deficiency of counsel prejudiced the Defendant. Strickland, 466 U.S. at 668, 687 (1984); United States v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 308 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 287 (1992); United States v. Potson, 284 U.S. App. D.C. 125, 902 F.2d 90, 98 (D.C. Cir. 1990). In this case, the Court finds that based upon a review of the papers, the applicable law, and oral argument, the representation of the Defendant by Counsel was ...


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