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.
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
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].
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