he understood, but then professed ignorance of any of the matters about which the government wanted his testimony. (Id., pp. 45-46).
Graham's counsel at all times encouraged his client to agree to cooperate, although never formally "advising" him that the plea offer be accepted -- a decision, he says, he always leaves to the client without recommendation from him. (Tr. of April 7, pp. 86-87). Some weeks after the courthouse meeting with the prosecutors, in early fall, 1992, Graham's trial counsel concurred in the prosecutors' suggestion that Graham, who was being held without bond pending trial, be transferred from District of Columbia Jail to the Montgomery County, Maryland, Detention Center, where other cooperating witnesses were housed. The purpose was to remove Graham from the presence and influence of the Newton Street Crew principals, also then at D.C. Jail, against whom the government wanted Graham's testimony. Graham immediately protested the transfer and demanded to be returned to D.C. Jail, as he was, and where he remained thereafter. (Id., pp. 106-107).
Graham's trial was scheduled for May 25, 1993. In the weeks immediately preceding the trial Graham corresponded with trial counsel about the merits of the case, offering his own suggestions on the law and trial strategy, but saying nothing about a guilty plea or cooperation. (Gov't Exs. 4 through 10).
On May 19, 1993, two other Newton Street Crew members, Donnie Strothers and Toby Hoyle, both close acquaintances of Graham, were found guilty by a jury after a month-long trial, largely on the testimony of the same witnesses who were expected to testify against Graham. With a week to go until Graham's trial, the prosecution team, believing the Strothers and Hoyle convictions to afford a persuasive argument to convince Graham that he, too, would be convicted, tried once more to interest him in a plea bargain. Not only did the lead prosecutor exhort, he taunted Graham, asking him why he was willing to "do life" for Mark Hoyle, who had no respect for him. And the cooperating witnesses, who would testify against him a week hence, directly confronted Graham, telling him the same thing and urging him to join them. Graham was unmoved. (Tr. of Apr. 25, 1995, pp. 91-96). Graham maintained that he intended to "take his chances in court." (Id., pp.48-51).
A little more than two months following the jury's verdict of June 7, 1993 finding him guilty, Graham's Presentence Report was completed. Both Graham and trial counsel professed to have been startled by the Presentence Report disclosing that Graham would receive a mandatory life sentence without parole in the absence of a departure from the Sentencing Guidelines. Nevertheless, his attorney never spoke of his own surprise at the sentencing proceedings, and Graham himself had nothing to say when invited to allocute. (Tr. of Aug. 25, 1993, p. 7).
Graham noted his appeal on the day of sentencing, and his current counsel, Joseph F. Yenouskas, Esquire, was appointed by the Court of Appeals to represent him on appeal.
Seven or so months after he had been sentenced, and the life sentence, anticipated or not, a fait accompli (and, not altogether coincidentally, shortly before the Newton Street Crew principals were to go to trial in early spring, 1994), Mr. Yenouskas contacted a prosecutor to ask whether there was any possibility of post-conviction cooperation by Graham that might afford him an opportunity to escape the life sentence he was then serving.
Mr. Yenouskas was told by the AUSA that the government's case against Mark Hoyle was nearly complete, but that Graham's testimony could be helpful to the government with respect to Mario Harris and to drug sales in the vicinity of the "fish market on 14th Street." Was Graham interested? The response, relayed by Yenouskas: Graham wanted what the AUSA interpreted as a "guaranteed" reduction in sentence in return for still unspecified cooperation. Told that no guarantee would be forthcoming, although the prosecutor believed the judge would be inclined to depart downward were the government to make the appropriate motion, nothing further was heard from Mr. Yenouskas or Mr. Graham. (Tr. of Apr. 25, 1995, pp. 96-107).
Upon the uncontroverted evidence that "cooperation" was a non-negotiable condition of any and every plea bargain overture the government directed at Graham, and that the cooperation expected of him always entailed, for the government's purposes, Graham's testimony against Mark Hoyle and his co-defendants, the Court finds that El Tora Graham was and remained at all times intransigent with regard to any plea bargain the government was willing to offer him. Whether or not the possibility of a life sentence was confirmed by his own lawyer, Graham knew full well that, in the absence of an agreement, the government intended and expected to convict him of charges carrying a mandatory life sentence. Whatever his motivations -- adulation or fear of, or loyalty to Mark Hoyle, or a general disdain for "snitches" -- El Tora Graham was, in the Newton Street vernacular, a "go-hard" who never seriously considered a plea bargain at all. He was therefore not prejudiced by the absence of his attorney's advice on the subject of a maximum sentence.
For the foregoing reasons, it is, this 8th day of May, 1995,
ORDERED, that the motion to vacate, set aside or modify sentence is denied; and it is
FURTHER ORDERED, that defendant's sentence as imposed by the Court on August 25, 1993, is confirmed; and it is
FURTHER ORDERED, that all other pending motions in connection herewith are denied as moot.
Thomas Penfield Jackson
U.S. District Judge