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U.S. v. SHARK

July 31, 2001

UNITED STATES OF AMERICA
V.
CHARLES SHARK



The opinion of the court was delivered by: John Garrett Penn, District Judge

      MEMORANDUM

Currently pending before the Court is defendant's Motion to Vacate, Set Aside or Correct the Sentence pursuant to 28 U.S.C. § 2255 [# 353]. For the reasons contained in this memorandum, defendant's 2255 motion is granted in part and denied in part.

BACKGROUND

Charles Shark ("Shark") was charged and convicted by a jury of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846 (1988 and Supp. V 1993); unlawful distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (1988 and Supp. V 1993); and criminal forfeiture, in violation of 21 U.S.C. § 853(a)(1) (1988). The trial was conducted by the Hon. Charles R. Richey.

On October 29, 1993, Shark was sentenced by the Hon. Stanley Sporkin. Judge Sporkin, adopting the sentencing recommendations of the probation office, applied the career offender provisions of the United States Sentencing Guidelines and sentenced Shark to 360 months on the conspiracy and distribution counts, to be served concurrently. As for the criminal forfeiture count, Judge Sporkin ordered forfeiture in the amount of $117,600.00. Judge Sporkin also ordered Shark to serve a term of five (5) years supervised release and to pay a special assessment of $100.

A timely notice of appeal was filed on November 8, 1993. On April 18, 1995, the defendant's conviction was affirmed on appeal in United States v. Shark, 311 U.S.App.D.C. 182, 51 F.3d 1072, cert. den., Shark v. United States, 516 U.S. 955, 116 S.Ct. 405, 133 L.Ed.2d 324 (1995).

On January 21, 1994, defendant filed a motion for a new trial based on newly discovered evidence. That motion was denied by Judge Richey on April 12, 1994. Upon Judge Richey's death, this matter was referred to this Court.

On April 28, 1997, defendant filed a motion for a new trial pursuant to 28 U.S.C. § 2255 [# 353]. The government filed a motion to dismiss for untimeliness, which was denied by this Court on July 8, 1997.*fn1 Shark filed a supplement to his 2255 mation on December 5, 1997 [# 366]. The government responded to the 2255 motion on January 15, 1998 [# 368]. Shark filed a reply on April 30, 1998 [#373]. The Court granted Shark additional time to file a "traverse reply,"*fn2 which he filed on July 30, 1999 [# 387].

Shark's current attorney entered an appearance on December 1, 1998 [# 384]. At some point Shark's new counsel indicated that he wished to file supplemental material to the various papers that had already been filed regarding Shark's 2255 motion. At a status hearing on July 26, 2000, the parties agreed to establish a new briefing schedule. The Court required Shark's supplemental memorandum be drafted so that it addressed all of the grounds for relief Shark wished to raise. The Court ruled that the government would only be required to respond to arguments raised in the supplemental brief. See Order of the Court (filed July 27, 2000) [# 403]. At the status hearing, the Court explicitly admonished Shark's counsel that the Court would also only consider the arguments raised in the supplemental brief.

Shark filed his supplemental memorandum on November 9, 2000 [# 408]. After several amendments to the briefing schedule, the government filed its response to the supplemental memorandum on January 22, 2001 [# 417]. Shark filed his reply on February 19, 2001 [# 422]. An evidentiary hearing on the supplemental 2255 motion was held on June 4 and 5, 2001.

The Court also notes that, in response to issues raised by Shark in his 2255 motion, the probation office filed a memorandum on November 2, 1999, which revised the original presentence investigation report ("PSR") and proposed a recalculated sentence. Shark filed a response to the probation office's memorandum on January 21, 2000 [# 392].

DISCUSSION

Shark's 2255 motion is based on six separate grounds. The Court will first address the four grounds which pertain to the conduct of the trial and appeal. The Court will then address the two remaining grounds which pertain to the sentence.

I. Grounds pertaining to the conduct of the trial and appeal

A.

Shark's first challenge to his conviction is that Judge Richey violated his Fifth Amendment right to a fair trial by creating a conflict of interest for his trial counsel. During the trial, Judge Richey and Shark's trial counsel, Michelle Roberts ("Roberts"), had a contentious exchange with regards to Shark's motion to suppress audiotape transcripts offered by the government. During a sidebar conference, Judge Richey expressed his annoyance at how late the motion to suppress was made. Judge Richey stated, on the record, that he had specifically warned Roberts's law partner, Mark Rochon ("Rochon"), about making a timely motion to suppress, that he believed Rochon had a track record of always asking for continuances, and that he considered Roberts's objection untimely. Furthermore, Judge Richey said that he had specifically lectured Rochon, that Rochon never paid attention to the Court, and that "next time I'm going to get his attention and put him in the cell block." Mat. at 25.*fn3

Shark alleges that after this exchange, Roberts withdrew the motion to avoid conflict with the court. Shark charges that "Judge Richey's actions clearly dampened the ardor and resolve of trial defense counsel when he threatened her on the record." Mot. at 4. Shark cites Tejeda v. Dubois, 142 F.3d 18 (1st Cir. 1998), as support for the proposition that hostility between defense counsel and the trial judge is grounds to vacate a conviction.

This matter has already been decided by the D.C. Circuit on direct appeal. See Shark, 311 U.S.App.D.C. 182, 186, 51 F.3d 1072, 1076. As an automatic presumption of prejudice attaches in cases of conflicts of interest, the court held that Shark's constitutional claim regarding Judge Richey's conduct was ingenious, since it allowed him to avoid the stricter standard for establishing ineffective assistance of counsel. The court rejected this approach, doubting that "mere fear of rebuke from the court could ever give rise to a conflict of interest sufficient to establish a predicate for ineffective assistance." Id. Otherwise, "any provocation of the court, even on the smallest matter, could be maneuvered into an excuse for invalidating a conviction." Id. The court found that a claim alleging that judicial hostility impaired counsel's zealousness usually implicates the right to a fair trial. The court noted that

[w]hen no objection is made at trial to the circumstances allegedly constraining defense counsel's freedom to act in her client's best interests, . . . review [is] only for plain error, in keeping Fed. R.Civ.P. 52(b). Under the standard set forth by that Rule, the defendant must show that the court's error was "particularly egregious," and [the court is] to correct only those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings."

Id. (citations omitted).

The court reasoned that virtually any rebuke from the court sufficient to create a conflict of interest would create an ineffective assistance of counsel claim, which Shark could demonstrate by showing deficiency of performance and prejudice. The court held that Shark could not "avoid those requirements by seeking to make out a claim of ineffective assistance of counsel under the more lenient . . . standard when the asserted conflict of interest is said to arise from ordinary friction between a judge and defense counsel at trial." Id. As such, Shark's motion for a new trial based on the alleged conflict of interest created by Judge Richey must be denied.

B.

Shark alleges that there were two instances of prosecutorial misconduct during the trial which violated his Sixth Amendment rights. First, Shark alleges that the prosecutor knowingly used perjured testimony during the course of trial. Second, Shark alleges that the government failed to disclose previous instances of perjury by Johnny St. Valentine Brown ("Brown"), a police detective, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Turning to the first allegation, Shark alleges that the prosecutor, Assistant United States Attorney Kenneth Kohl ("Kohl"), distorted testimony by two co-defendants to substantiate the forfeiture amount alleged in the indictment. Mot. at 33. Shark claims that Kohl knew the co-defendants had pled to forfeiture amounts of $7,420.00, yet asked both to tell the jury what forfeiture amounts they had been charged with in order to solicit answers of $117,600.00. Id. Kohl then used this as evidence to support Shark's forfeiture amount in his closing argument. Id. Shark alleges that Kohl's extrapolation was not just a harmless exaggeration, but led to an impermissibly determined quantity used in sentencing. Id. at 34. Shark alleges that

Kohl deliberately sought to have the cooperating co-defendants testify to an amount that he knew neither had pled guilty to in their forfeiture count. Kohl's efforts to get a misleading factor on which to make a forfeiture determination was calculated to mislead the jury and the sentencing court. He later used the false premise establish [sic] in the testimony of [the co-defendants] in his closing argument.

Mot, at 33-34.

The government does not directly respond to whether this amounts to a violation of Shark's Sixth Amendment rights. However, when discussing whether Roberts's failure to object to Kohl's closing argument might be ineffective assistance of counsel, the government argues that Shark cannot establish that he was prejudiced. this argument since there were other witnesses who corroborated his participation in the conspiracy. Gov't Opp'n at 39.*fn4 Several witnesses testified about Shark's participation. Shark was free to cross-examine them, and the jury was free to evaluate their credibility. Furthermore. the Court keeps in mind that the prosecutor's closing arguments are not evidence. and that the jury was instructed as much. Final Jury instructions of the Hon. Charles R. Richey (filed July 22, 1993) [# 191] at 4. Considering this, the Court holds that Shark has failed to establish prosecutorial misconduct as to Kohl's closing arguments.

Turning now to the testimony of Detective Brown, Shark alleges that the government violated his Sixth Amendment right to a fair trial when it failed to disclose that Detective Brown had committed perjury on multiple occasions by testifying falsely as to his academic credentials. Shark argues that under Brady, the government had an obligation to turn over this information. The Supreme Court has determined that the government has an obligation to turn certain types of information over to the defense. As the Supreme Court has held,

[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

Shark argues that the information regarding Browns perjury easily meets at least the first two criteria — namely that it could have been used to impeach his testimony and that it was not revealed to the defendant. Mot. at 36. Shark argues that he was prejudiced by this omission since Brown testified as an expert witness on the practices of drug traffickers. Mot. at 36.

The government contests that a Brady violation occurred. First, the government argues that defendant has failed to establish that Detective Brown testified falsely to the jury hearing Shark's case The government argues that Brown did not testify at all about his academic credentials — his testimony was based solely on his law enforcement experience and "street" experience. Gov't Opp'n at 41. Second, the government argues that it could not have turned over the information in 1993, when Shark's trial occurred, because the perjury occurred in July 1999, when Brown lied about his academic credentials during a civil deposition. Id. The government contends that it never had any information about Brown's perjury at the time of Shark's trial, and that such knowledge cannot be imputed to it. Id. at 41-43.

The Court must conclude that Shark has failed to establish that he was prejudiced by Brown's testimony. First, Shark has failed to establish that Brown testified about his academic credentials, the subject of the subsequent perjury, at trial. Shark even concedes as much. Mot. at 37. Furthermore, as Brown's perjury in a civil deposition had not yet occurred, defendant is not able to contradict the government's contention that it did not possess information about Brown's possible perjury. Since the government did not have such information, it could not have disclosed it. This result is consistent with other cases in this court. See United States v. Davis, 113 F. Supp.2d 1, 4-5 (D.D.C. 2000) (Harris, J.); United States v. Spinner; 109 F. Supp.2d 18, 20-21 (D.D.C. 2000) (Friedman, J.); United States v. Williams, 77 F. Supp.2d 109 (D.D.C. 1999) (Hogan, J.); but see United States v. Jones, 84 F. Supp.2d 124 (D.D.C. 1999)(Sporkin, J.). As such, Shark's motion for a new trial based on prosecutorial misconduct must be denied.

C.

Shark alleges multiple instances of ineffective assistance by his trial counsel at all stages of proceedings — before the trial, during the trial, and during sentencing. Shark alleges that all of these errors resulted from Mark Rochon ("Rochon") withdrawing from the trial at the last minute and substituting his partner, Michelle Roberts ("Roberts"), as trial counsel. According to Shark, Rochon made the substitution since he felt that he did not get along well with Judge Richey. Mot. at 19. Although Shark initially objected to the substitution, he eventually agreed. Id.

Before the trial, Shark alleges Roberts made the following mistakes: 1) that she failed to perform a complete factual and legal review; 2) that she failed to seek copies of the plea agreements of cooperating co-defendants; 3) that she failed to investigate the background of testifying officers; 4) that she failed to interview cooperating co-defendants; 5) that she failed to locate and interview a witness who could have corroborated Shark's story; 6) that she failed to timely review audio/video tapes and transcripts; 7) that she failed to review the tapes and transcripts with Shark; 8) that she failed to find "Tutu," a prostitute Shark was allegedly visiting when he was arrested; and 9) that she failed to discuss the possible sentencing guidelines with Shark.

During the trial, Shark alleges Roberts made the following mistakes: 1) that she withdrew a motion to suppress transcripts of audio tapes after a confrontation with Judge Richey over the timeliness of the objection and his alleged threat to penalize her firm, and that she also withdrew the motion without consulting Shark; 2) that she failed to demand an evidentiary foundation for the tapes; 3) that she failed to object to impermissible closing arguments by the prosecutor; 4) that she failed to point out inconsistencies in the testimony of the police officers; 5) that she failed to allow Shark to testify on his own behalf; and 6) that she failed to bring Shark up to the bench for bench conferences.

During sentencing, Shark alleges Roberts made the following mistakes: 1) that she failed to object to application of the career offender enhancement; and 2) that she failed to object to the amount of drugs Shark was deemed responsible for.

These various claims of ineffective assistance of counsel must be rejected. First, the D.C. Circuit has already considered and rejected Shark's ineffective assistance claim regarding Roberts's withdrawal of the motion to suppress transcripts of the audiotapes. Shark, 311 U.S.App.D.C. 182, 184-84, 51 F.3d 1072, 1074-75 (1995) (concluding that withdrawal of the objection in exchange for having Shark's name deleted from the transcript and a favorable jury instruction was a tactical choice).

Shark's remaining ineffective assistance claims are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court held that

[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires ...

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