Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
U.S. v. SHARK
July 31, 2001
UNITED STATES OF AMERICA
The opinion of the court was delivered by: John Garrett Penn, District Judge
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
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
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
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
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.
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
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.
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 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.
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
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
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
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