The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Opinion of August 3, 2001 Criminal No. 99-0043 USA v. Jose Marquez
This matter is before the Court on the motion of defendant Jose Marquez for a new trial. After a trial lasting eight weeks and concluding on May 3, 2000, Mr. Marquez was convicted of conspiracy to distribute narcotic drugs and acquitted of two other charges. Through counsel appointed after trial, defendant filed a motion for a new trial based on his trial counsel's asserted ineffective representation. Upon consideration of the arguments of the parties in their briefs and at the motions hearing, the Court grants defendant's motion for a new trial.
Defendant Jose Marquez originally was indicted with six others on March 2, 1999; he went to trial on a superseding indictment returned on June 1, 1999. He was charged in three counts of the nine-count indictment with: (1) conspiracy to distribute cocaine, cocaine base and heroin, in violation of 21 U.S.C. § 846; (2) unlawful possession with the intent to distribute 100 grams or more of heroin and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i) and 18 U.S.C. § 2; and (3) unlawful possession with the intent to distribute heroin within 1000 feet of a school and aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2. Mr. Marquez, along with two of his co-defendants and alleged co-conspirators, Pedro Agramonte and Jose Diplan, stood trial beginning on March 6, 2000.*fn1
The two possession counts against Mr. Marquez arose out of the same series of events occurring on February 4, 1999. Special Agent David Buckel of the Drug Enforcement Administration testified that he witnessed Mr. Marquez leave the El Pacifico pool hall along with Mr. Agramonte and Mr. Diplan. See March 15, 2000 Trial Transcript ("3/15/00 Tr.") at 974-75, 981-82, 986-88. After speaking with Mr. Agramonte and Mr. Diplan, Mr. Marquez walked over to a blue Oldsmobile that the agents knew had a secret compartment for the storage of drugs and had been used earlier that day to transport heroin. The agents saw Mr. Marquez drive the car a short distance from the pool hall to an alley behind the apartment building where Mr. Agramonte and Mr. Diplan had allegedly cut and packaged the heroin that had been hidden in the car. See id. at 976-80. When he left the car, Mr. Marquez threw the car keys in the grass next to the apartment building; he was then arrested by DEA agents. See id. at 980-86. Special Agent David Crosby of the DEA was present when Mr. Marquez was arrested and testified that Mr. Marquez denied any knowledge of the blue Oldsmobile that he had just been seen driving. See 3/7/00 Tr. at 251-52.
With respect to the conspiracy count, the evidence against Mr. Marquez consisted primarily of the testimony of two alleged co-conspirators who had pled guilty and had become witnesses for the government: Bertilio Jesus Soto Canales and former co-defendant Jose Ismael Medina-Torres. Mr. Soto Canales's testimony concerned conversations between Mr. Marquez and Henri Alberto, one of the alleged leaders of the conspiracy. Mr. Soto Canales claimed at different points in his testimony that he either heard these conversations directly or that they were related to him by Mr. Alberto. Mr. Medina-Torres testified to discussions that he had with Mr. Marquez in which -- according to Mr. Medina-Torres -- Mr. Marquez offered to sell him powder cocaine and revealed that these drugs belonged to Henri Alberto. Mr. Medina-Torres's testimony also concerned debriefings he had with the FBI and the DEA in which he discussed his conversations with Mr. Marquez.
On April 20, 2000, the Court considered and denied Mr. Marquez's motion for judgment of acquittal. See 4/20/00 Tr. at 3626-32. With respect to the two substantive counts, the Court concluded that there was sufficient albeit sparse evidence of the defendant's guilt. See id. at 3628. The Court found that there was less evidence against him on the conspiracy count, that this was a much closer call, but that there was still enough to permit the case to go to the jury. See id. at 3629-33. On May 3, 2000, the jury concluded its deliberations, finding Mr. Marquez guilty of the conspiracy charge but acquitting him on the two substantive counts.
On May 4, 2000, the day after the jury returned its verdict, the Court spoke with Mr. Marquez's trial counsel in Chambers to recommend that she file a motion for a new trial based on a claim that she had provided ineffective assistance of counsel at trial, telling her at the same time that she could no longer represent Mr. Marquez if he chose to argue ineffective assistance of counsel. See June 13, 2000 Status Conference Transcript ("Status Tr.") at 7-8. On May 8, 2000, defendant, through trial counsel, filed a motion for an extension of time to file a new trial motion on grounds of ineffective assistance of counsel and to request the appointment of new counsel to pursue the ineffective assistance claim. On May 10, 2000, Mr. Marquez, again through trial counsel, filed an amended motion for an extension of time to file a new trial motion and a motion to set aside the verdict and for judgment of acquittal. Co-defendant Diplan filed a motion for a new trial on May 9, 2000, and co-defendant Agramonte filed a motion for a new trial on May 10, 2000. These two motions were denied by the Court in an opinion issued on July 12, 2000.
On May 23, 2000, the Court granted Mr. Marquez's motion for an extension of time nunc pro tunc to May 10, 2000, and appointed Edward Sussman as his new counsel. On June 2, 2000, the court of appeals issued a decision in United States v. Hall, 214 F.3d 175 (D.C. Cir. 2000), holding that the failure of a defendant to file a motion for a new trial within the seven-day period specified in Rule 33 of the Federal Rules of Criminal Procedure deprives the district court of jurisdiction to consider the new trial motion, unless within the seven days the defendant has filed a motion for an extension of time to file such a motion and the district court has acted on the motion for extension. That same day, the government filed a motion based on Hall, arguing that this Court had no authority to consider defendant's new trial motion. On June 13, 2000, the Court denied the government's motion.
Before reaching the merits of Mr. Marquez's new trial motion based on trial counsel's alleged ineffective assistance, the Court first must determine whether it has jurisdiction to decide the issue. In its opposition to Mr. Marquez's motion for a new trial, the government reiterates its contention that the Court lacks jurisdiction to grant defendant's motion because Mr. Marquez failed to file his motion for a new trial within seven days of the jury's verdict and because this Court failed to act on his motion for an extension of time within the seven-day period. See Rule 33, Fed. R. Crim. P.; see also United States v. Hall, 214 F.3d 175, 178 (D.C. Cir. 2000). Relying on Hall, the government argues that Rule 33, as written, contains a clear and unambiguous deadline for filing a new trial motion or for the extension of that deadline, and Mr. Marquez's failure to file in time in the absence of this Court's granting an extension within seven days of the verdict deprives the Court of jurisdiction to consider the motion. The Court does not agree.
Rule 33 of the Federal Rules of Criminal Procedure provides that a motion for a new trial "may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period." Rule 33, Fed. R. Crim. P. Although requiring strict adherence to the seven-day time period of Rule 33, the court of appeals in Hall did not completely foreclose the possibility that there might be certain instances when a defendant's failure to comply with Rule 33 may be excused. The court in Hall held that the failure to comply with the deadline for filing may be excused when there exists "the 'unique circumstances' that the cause of the failure to meet the Rule's deadline was an erroneous ruling or assurance by the District Court itself." United States v. Hall, 214 F.3d at 177 (quoting Carlisle v. United States, 517 U.S. 416, 428 (1996)). No "unique circumstances" were present in either Hall or Carlisle, but the Supreme Court found that such circumstances did exist in Thompson v. INS, 375 U.S. 384, 386-87 (1964), upon which the Court relied in Carlisle.
Thompson involved a motion for a new trial that was filed 12 days after the district court had denied a petition for United States citizenship. See Thompson v. INS, 375 U.S. at 385. Although the motion actually was filed two days late and should not have been considered, the district court erroneously concluded that the motion was filed "in ample time."
Id. When the district court denied petitioner's motion for a new trial, he filed a notice of appeal. See id. The court of appeals concluded that the motion for a new trial had been filed out of time and therefore did not toll the running of the 60-day period for filing a notice of appeal. See id. at 385-86. The court of appeals held that the time for an appeal began to run when the district court entered final judgment in the case and not when it denied the new trial motion. See id. The time in which to file a notice of appeal had long since expired, and the court of appeals therefore concluded that it could not consider petitioner's appeal and dismissed the case. See id.
The Supreme Court reversed, concluding that "unique circumstances" existed that excused petitioner's failure to file a timely notice of appeal. Thompson v. INS, 375 U.S. at 386. The Court in Thompson reasoned that petitioner had relied on the district court's express assurance that the new trial motion had been filed on time, thus tolling the time for filing a notice of appeal and preserving petitioner's right to appeal until 60 days after the court had ruled on the motion for new trial. See id. If the district court had not erroneously assured petitioner that his new trial motion was timely, he would have filed a notice of appeal within 60 days after the entry of judgment rather than waiting until the new trial motion was resolved. See id. at 386-87. On these facts, the Supreme Court concluded that petitioner lost his right to appeal because of the erroneous advice of the district court, not because of his or his lawyer's error, providing the kind of "unique circumstances" that allowed the court of appeals to exercise jurisdiction over the case. See id.
Similarly, Mr. Marquez's failure to file a timely motion for new trial is excused because of the erroneous advice he received from this Court. Immediately after the trial, the Court instructed trial counsel to talk to her client promptly about raising the issue of her own ineffective assistance but advised her that she herself could not argue the motion or continue to represent Mr. Marquez if that issue was to be raised. See Status Tr. at 7-8. Because trial counsel could no longer represent the defendant, the Court contacted the Federal Public Defender to arrange for new counsel. See id. at 7. After talking to her client, defense counsel timely filed a motion for an extension of time and for appointment of new counsel and then an amended motion, both within seven days of the verdict; each motion requested additional time in which to file a new trial motion. In the motion, counsel stated that she believed that ineffective assistance of counsel might be asserted as a basis for a new trial and that she had discussed this possibility with her client and explained to him that she herself could not file a motion raising an ineffectiveness claim; a new lawyer would be required. In these circumstances and in light of the Court's instructions, all defense counsel could have done was to ask the Court for an extension of time while new counsel was obtained for the defendant.
At the June 9, 2000 status conference, the Court made clear that Mr. Marquez's failure to file a new trial motion within seven days of the verdict was attributable to the Court's error in not granting the motion for extension of time within those seven days while seeking new counsel, and not to any error on the part of trial counsel:
I was in error. [Defense counsel] was not in error. I made the mistake. I wasted seven days. I called [defense counsel] in and spoke with her and urged her to raise an ineffective assistance of counsel [argument] and told her I had no idea how I would rule but in the interests of her client she had an obligation to raise the issue. She might win, she might lose. I told her she couldn't represent him if she raised that issue. She told me she had to talk with Mr. Marquez and his family and that was going to take some time. I called Mr. Kramer [the Federal Public Defender] and said we need a new lawyer, find somebody. [Defense counsel] timely filed her motion.
These are the kinds of unique circumstances that the Supreme Court had in mind and that [Chief] Judge Edwards must have had in mind when he decided Hall.
Status Tr. at 7-8. The Court took "full responsibility" for Mr. Marquez's situation and explained that trial counsel was "as diligent as could be" in the circumstances. Id. at 8. Thus, under the Supreme Court's "unique circumstances" exception acknowledged in Hall, Mr. Marquez's failure to file a motion for a new trial within seven days is excusable because of the Court's error.
The court of appeals also stated in Hall that "there was no reason why Mr. Hall could not have filed a motion for a new trial within Rule 33's 7-day time limit." United States v. Hall, 214 F.3d at 178. In this case, there is a very good reason why Mr. Marquez could not have filed a motion for new trial; the Court instructed his lawyer that since the issue that Mr. Marquez would be raising in the new trial motion would be her own ineffective assistance of counsel, she could no longer represent Mr. Marquez. See Status Tr. at 7. Furthermore, because the Court had told trial counsel that she could no longer represent Mr. Marquez if he decided to raise this issue, Mr. Marquez effectively was unrepresented during this critical time when the Court was seeking new counsel for him. Because Mr. Marquez's attorney, unlike trial counsel in Hall, was unable to file a new trial motion during this period and because Mr. Marquez was in effect unrepresented when his right to seek a new trial purportedly expired, the Court finds that his failure to comply with the seven-day deadline of Rule 33 should be excused. The Court therefore has jurisdiction to decide his motion for new trial.*fn2
Finally, even if defendant's failure to file his motion for new trial within seven days cannot be excused despite the Court's clear direction to trial counsel, the Court likely would conclude that her failure to file a new trial motion within seven days itself constituted ineffective assistance of counsel. The remedy therefore would be to allow Mr. Marquez to argue on collateral attack both that his trial counsel provided ineffective assistance of counsel at trial and during the seven-day period immediately after trial when she failed to file a new trial motion. To conclude that this Court had no jurisdiction to consider Mr. Marquez's motion for new trial would merely delay consideration of these issues that ultimately would be raised on collateral attack. Under the unique circumstances exception of Hall and for the additional reasons explained here, the Court concludes that Mr. Marquez's failure to file a new trial motion within seven days of the verdict may be excused and that the Court has jurisdiction to consider the motion on its merits.
III. MOTION FOR A NEW TRIAL: INEFFECTIVE ASSISTANCE OF COUNSEL
Rule 33 of the Federal Rules of Criminal Procedure says only that the district court may grant a new trial to a defendant "if the interests of justice so require." Rule 33, Fed. R. Crim. P. In attempting to explain what Rule 33's "interests of justice" standard means, Professor Wright has said: "Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." 3 CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE § 556 (2nd ed. 1982). A new trial should be granted only if the moving party has shown that "the error was substantial, not harmless, and that the error 'affected the defendant's substantial rights.'" United States v. Walker, 899 F. Supp. 14, 15 (D.D.C. 1995), aff'd, 99 F.3d 439 (D.C. Cir. 1996) (quoting United States v. Johnson, 769 F. Supp. 389, 395-96 (D.D.C. 1991)).*fn3 In the end, whether to grant a motion for a new trial is "a decision committed to the Court's sound discretion." United States v. Neill, 964 F. Supp. 438, 441 (D.D.C. 1997).
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), announced the standard that a defendant must meet to prevail on an ineffective assistance of counsel claim:
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 showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687. Under the first part of the test, the defendant must show that counsel fell below an objective standard of reasonableness and under the second part, that the deficient performance prejudiced the defendant by depriving him of a fair trial. See id. at 688; see also United States v. Bruce, 89 F.3d 886, 892 (D.C. Cir. 1996). The "benchmark" for judging any claim of ineffectiveness is "whether's counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. at 686.
Recognizing that it is "all too tempting" for a defendant to second-guess counsel's decisions made at trial, the Supreme Court has said that trial counsel is entitled to a substantial presumption that she acted within this objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 689-90. Because a court must assume that there is a wide range of sound trial strategy that a constitutionally effective attorney might choose, it is up to the defendant to overcome this presumption and show that the challenged action was not the result of sound trial strategy. See id. Even if trial counsel's errors are substantial and objectively unreasonable, a defendant still must make an affirmative showing of prejudice. See id. at 692-93. Under the Strickland test: The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 694. "[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilty." Id. at 695.
B. Cross-Examination of Government Witness Bertilio Jesus Soto Canales
Bertilio Jesus Soto Canales, a co-conspirator cooperating with the government, had no knowledge of the events of February 4, 1999, and spent most of his two days on the witness stand testifying about his drug activities with Henri Alberto, Antonio Alberto, Pedro Agramonte, Roger Ramirez and Jose Ismael Medina-Torres.*fn4 Near the end of his direct testimony, he testified that he knew Mr. Marquez and had met him at the El Pacifico pool hall located next door to the grocery store run by Mr. Marquez's mother-in-law. See 3/21/00 Tr. at 1410. During the government's direct examination of Mr. Soto Canales, there were two statements admitted regarding Mr. Marquez's alleged involvement in the charged drug conspiracy: (1) a statement allegedly made to Mr. Soto Canales by Henri Alberto in which Mr. Alberto told the witness that Mr. Marquez had come to Mr. Alberto's apartment to get drugs (the statement in the apartment), and (2) Mr. Soto Canales's grand jury testimony in which he testified that he actually witnessed Mr. Alberto give drugs to Mr. Marquez in the apartment; Mr. Soto Canales recanted this testimony at trial. Defendant argues that trial counsel's errors in dealing with these statements allowed a third, much more damaging statement to be admitted in which Mr. Soto Canales claimed personally to have heard Mr. Marquez ask Mr. Alberto for drugs and claimed that (in response) Mr. Alberto told Marquez to come to the apartment in about an hour. This third statement allegedly was made on the street outside the El Pacifico pool hall (the statement on the street).
Mr. Marquez argues that trial counsel's errors in eliciting this testimony constitute ineffective assistance because they resulted from counsel's (1) lack of familiarity with the discovery she had received in the case, and (2) her overly aggressive objections and ill-conceived questions on cross-examination -- actions that cannot be attributed to reasonable strategic judgments. Furthermore, he argues that these errors opened the door to additional inculpatory evidence against Mr. Marquez that otherwise would not have been admitted and allowed Mr. Soto Canales the opportunity to reconcile the inconsistencies between his grand jury testimony and his testimony at trial.
After identifying Mr. Marquez in court and explaining how he met him, Mr. Soto Canales began describing two occasions when he, Mr. Alberto, Mr. Agramonte and Mr. Marquez were outside the pool hall in a car. See 3/21/00 Tr. at 1410-12. When trial counsel objected to the introduction of any testimony about discussions among the four of them as hearsay, the Court asked for a proffer as to what Mr. Soto Canales would say about the conversations. See id. at 1413. The prosecutor wasn't sure what the witness would say, responding: "I guess he could give one of two or three responses. He may respond to something incriminating. He may have an innocent response to that particular question." Id. The prosecutor then proffered, however, that he thought that Mr. Soto Canales would testify that he actually saw Mr. Alberto give Mr. Marquez drugs. See id. at 1412-13. Defense counsel responded that she was unaware of any such testimony, that "[t]his is totally new" to her, and that she was "totally taken... by surprise." Id. at 1413. The prosecutor promptly pointed out that Mr. Soto Canales had testified before the grand jury that he saw Mr. Alberto give Mr. Marquez drugs and that there had been conversations about this transaction; and he argued that any testimony about such conversations would be admissible under the co-conspirator exception to the hearsay rule. After the Court asked the prosecutor to show defense counsel the grand jury testimony to which he alluded, she then acknowledged the accuracy of the prosecutor's proffer, explaining that she simply had missed that portion of the grand jury transcript. See id. at 1414-15.
Resuming his direct testimony, Mr. Soto Canales described a meeting that took place between Mr. Alberto and Mr. Marquez while he and Mr. Agramonte remained in a car parked outside of the El Pacifico pool hall:*fn5
Q: While the four of you were together, did anybody mention drugs?
A: Chino took Henri out of the car, and they went to talk together.
Q: Were you able to overhear what they said?
A: No. Then they would come back to the car.
Q: What happened after they came back to the car.
A: Well, sometimes they would say--they would tell us--tell me and Cuba to get out of the car, and then they would get in the car.
Q: Do you know what would happen then?
[DEFENSE COUNSEL]: Objection, speculation.
THE COURT: Do you know what happened after you got out of the car from your own personal knowledge?
THE WITNESS: Just Henri said that they had drugs, that's all. MR. BLACK [the prosecutor]: Who had drugs?
INTERPRETER: Could the witness be asked to repeat the question asks the interpreter?
THE COURT: You want him to repeat the question or him to repeat the-
[DEFENSE COUNSEL]: Same objection, Your Honor.
THE COURT: I think you better come to the bench.
Id. at 3/21/00 Tr. 1416-17. At the bench, the government proffered that if Mr. Soto Canales was not about to testify that he had seen a transfer of drugs to Mr. Marquez, he would at least testify that Mr. Alberto told him that he (Mr. Alberto) gave drugs to Mr. Marquez and that this statement therefore was admissible under the co-conspirator exception to the hearsay rule as a statement in furtherance of the conspiracy. See id. at 1417-20. The Court rejected the government's argument and excluded the statement. See id. at 1421-24.
After the bench conference, the prosecutor asked the witness if he ever actually saw Mr. Alberto give Mr. Marquez drugs and Mr. Soto Canales said that he had not. See 3/21/00 Tr. at 1425. The prosecutor then read a portion of Mr. Soto Canales's grand jury testimony in which Mr. Soto Canales testified that he had witnessed Mr. Alberto give drugs to Mr. Marquez. See id. at 1425-27. Mr. Soto Canales conceded that he had so testified in the grand jury, but he recanted his grand jury testimony, explaining that Mr. Marquez had come to Mr. Alberto's apartment, that Mr. Marquez and Mr. Alberto had gone into another room where Mr. Soto Canales could not see or hear them, and that after Mr. Marquez left Mr. Alberto had told Mr. Soto Canales that he had given Mr. Marquez drugs, but that he (Mr. Soto Canales) had not actually seen any drug transaction. See Tr. 1426-27. Trial counsel objected to the Alberto statement as hearsay. See id. at 1427.
At the end of the day, outside the presence of Mr. Soto Canales and the jury, the Court revisited defense counsel's objection regarding the alleged conversation in Mr. Alberto's apartment. The Court summarized the situation:
THE COURT: Mr. Soto Canales was going to say that when he was in the car with Mr. Marquez, Mr. Agramonte and Henri Alberto that Mr. Henri--I'm sorry, Henri Alberto said that Mr. Marquez--I'm sorry.
That Henri Alberto said that he gave drugs to Mr. Marquez, and I said at that point that I do not think that there was a sufficient connection to the conspiracy or that this was a statement in furtherance of the conspiracy, and that it would be very prejudicial. And obviously with coconspirator statements, the Court has a balancing test to conduct under Rule 403.
So Mr. Black decided instead based on what was in the grand jury testimony in which Mr. Soto Canales said that he saw Mr. Henri give Mr. Marquez drugs in the house, and based on--in the apartment, and based on Mr. Black's understanding that it may not have occurred in the apartment but actually occurred in the car, Mr. Black in good faith asked the question about whether he ever ...