The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant Jose Marquez's claim that he received ineffective assistance of counsel at trial. After a two-month-long trial in 2000, Mr. Marquez was convicted of conspiracy to distribute narcotics and acquitted of two other charges of possession with intent to distribute narcotics. Following his conviction, Mr. Marquez filed a motion for a new trial on the ground that his trial counsel was ineffective. The Court granted the motion on August 3, 2001, see United States v. Marquez, Opinion, Criminal No. 99-0043, Dkt. No. 516 (D.D.C. Aug. 3, 2001) ("Marquez I"), and the government appealed. The court of appeals reversed this Court on procedural grounds. See United States v. Marquez, 291 F. 3d 23 (D.C. Cir. 2003). On remand, after extensive briefing on sentencing issues, the Court sentenced the defendant to 72 months in prison, but permitted him to remain on bond pending appeal.
Mr. Marquez directly appealed his conviction, again raising an ineffective assistance of counsel claim. The court of appeals remanded the case for an evidentiary hearing to permit this Court to determine the adequacy of Mr. Marquez's representation after hearing testimony from his trial counsel. See United States v. Marquez, No. 05-2112 (D.C. Cir. May 2, 2006). Upon consideration of the testimony at the evidentiary hearing, the arguments of the parties in their briefs and in open court, and the entire record in this case, the Court again concludes that Mr. Marquez's counsel was ineffective and therefore that Mr. Marquez should be afforded a new trial.
Defendant Jose Marquez originally was indicted along with six others on March 2, 1999. The government charged him in three counts of a nine-count indictment, specifically with: (1) conspiracy to distribute cocaine, cocaine base and heroin, in violation of 21 U.S.C. § 846; (2) unlawful possession with 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 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. Beginning on March 6, 2000, Mr. Marquez stood trial with two co-defendants and alleged co-conspirators, Pedro Agramonte and Jose Diplan.*fn1
The two possession counts against Mr. Marquez arose out of a series of events on February 4, 1999, when DEA agents observed Mr. Marquez leave the El Pacifico pool hall along with Mr. Agramonte and Mr. Diplan. At trial, the agents testified that they saw Mr. Marquez get into a blue Oldsmobile that they knew had been used earlier that day to transport heroin and drive it a short distance -- from the pool hall to an alley behind an apartment building. At the apartment building, Mr. Agramonte and Mr. Diplan had allegedly cut and packaged the heroin that had been hidden in the car. When he left the car, Mr. Marquez threw the car keys in the grass next to the apartment building. DEA agents then arrested him.
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 Jose Ismael Medina-Torres. Mr. Soto Canales's testimony concerned conversations between Mr. Marquez and Henri Alberto, one of the alleged leaders of the narcotics distribution conspiracy. At various times, Mr. Soto Canales testified 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 the drugs for sale 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 May 3, 2000, the jury found Mr. Marquez guilty of the conspiracy charge but acquitted him on the two substantive counts. Following the trial, Mr. Marquez moved for an extension of time to file a motion for a new trial based on ineffective assistance of counsel. The Court sought new counsel to represent Mr. Marquez on his motion. In the interim, the Court failed to rule on the motion for extension of time within the seven-day period then required by Rule 33 of the Federal Rules of Criminal Procedure. On August 3, 2001, the Court issued a lengthy opinion granting Mr. Marquez's motion for a new trial. That opinion is included as an appendix to this Opinion and, except where otherwise noted, the findings and conclusions in Part III of that Opinion are incorporated by reference. See Marquez I at 12-50.
On appeal, the court of appeals dismissed the case on jurisdictional grounds, holding that this Court had forfeited its authority to grant the new trial motion when it failed to rule on Mr. Marquez's motion for an extension of time to file within the seven-day period specified by Rule 33 of the Federal Rules of Criminal Procedure. See United States v. Marquez, 291 F.3d 23, 27-29 (D.C. Cir. 2002). The court of appeals suggested that Mr. Marquez pursue his ineffective assistance claim by collaterally attacking his conviction or by directly appealing it. See id. at 29. After the court of appeals' decision, this Court entered a judgment of conviction and imposed a sentence of 72 months. Mr. Marquez directly appealed his conviction. The second time around, the court of appeals considered the merits of the case. See United States v. Marquez, No. 05-2112 (D.C. Cir. May 2, 2006). The court concluded, however, that based on the trial record alone it was unable to determine whether Mr. Marquez had received ineffective assistance of counsel. See id. The court remanded the record to this Court for an evidentiary hearing to determine whether Mr. Marquez's counsel was ineffective as defined by the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984). See id. On remand, this Court heard testimony from Mr. Marquez's trial counsel to assist it in determining whether her representation of Mr. Marquez at trial met the Strickland test.
The evidentiary hearing only confirmed for the Court what it had concluded immediately after the trial in this case: Mr. Marquez's trial counsel was woefully inadequate. She had no sufficient explanation, based on strategic or tactical reasons, or otherwise, for her deficient and damaging performance. The Court stands by its initial finding that counsel was ineffective, the rationale for which is more fully explained in its original opinion granting Mr. Marquez's new trial motion. See Marquez I at 12-50.
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. See Strickland v. Washington, 466 U.S. at 686. Under the familiar two-prong Strickland test, a defendant claiming ineffective assistance of counsel must show: (1) that counsel's performance was "deficient," that is, that it fell below an objective standard of reasonableness "under prevailing professional norms"; and (2) that the deficient performance prejudiced the defense. Id. at 687-88. This requires showing that the defense counsel's errors "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Recognizing the wide range of sound trial strategy that a constitutionally effective attorney might choose, the Supreme Court has put the burden on the defendant to overcome the presumption that trial counsel's performance "falls within the wide range of reasonable professional assistance." Id. at 689. The defendant must show that counsel's alleged errors were not the result of sound trial strategy. See id.
In judging counsel's performance under Strickland, the question is not whether "a particular act or omission" was unreasonable, but whether "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. at 689-90. In other words, a court must consider the cumulative effect of counsel's errors. SeeLindstadt v. Keane, 239 F.3d 191, 202 (2nd Cir. 2001) (holding that although some of the errors counsel made would not alone reach constitutional ineffectiveness, "the cumulative weight of error convinces this Court that the ineffectiveness of counsel reached the constitutional threshold."); Henry v. Scully, 78 F.3d 51, 53 (2nd Cir. 1996) (concluding that the court need not determine whether one or two of counsel's errors amounted to ineffective assistance because the "aggregate effect of these three instances of inaction by defense counsel convinces us that the magistrate and district judge were correct in finding" ineffective assistance of counsel).
As to the second prong of the Strickland test, prejudice, the defendant must show a "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. As the court of appeals has emphasized, "Strickland requires reasonable probability, not certainty." United States v. Gaviria, 116 F. 3d 1498, 1514 (D.C. Cir. 1997) (emphasis in original); see also United States v. Williams, 358 F.3d 956, 926 (D.C. Cir. 2004) (defendant "need not show that his attorney's performance 'more likely than not' altered the outcome of the case") (quoting Strickland v. Washington, 466 U.S. at 693) (emphasis in original)). In making this determination, the trial court must consider the "totality of the evidence" and whether counsel's errors "have had a pervasive effect on the inferences to be drawn from the evidence" that "alter[s] the entire evidentiary picture...." Strickland v. Washington, 466 U.S. at 695-96.
The court of appeals concluded that because the trial record alone usually does not reflect whether counsel's alleged errors are supported by sound trial strategy or whether they were prejudicial, it was appropriate to remand the record for an evidentiary hearing to this Court, "'the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.'" United States v. Marquez, No. 05-2112 at 2 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)). In Massaro, the Supreme Court recognized that when evaluating an ineffective assistance of counsel claim, deference should be paid to the trial court judge who, "having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel's conduct and whether any deficiencies were prejudicial." Id. at 506; see also United States v. Williams, 358 F.3d at 962 (holding that after an evidentiary hearing, "[i]f the District Court finds that [the defendant] received ineffective assistance of counsel, [the defendant] must be afforded a new trial").
The trial in this case took eight weeks and the government called 42 witnesses to testify in its case-in-chief. Yet, the government introduced very little evidence against Mr. Marquez, and almost all of it related to the events of February 4, 1999, when Mr. Marquez drove a blue Oldsmobile some hours after an aborted drug sale in which he was not involved. Indeed, a description of that incident was virtually the only mention of Mr. Marquez in the government's detailed opening statement. See 3/6/00 Tr. at 107-12.*fn2 In his opening statement, the prosecutor mentioned numerous individuals and events both in the District of Columbia and in Philadelphia leading up to February 4, 1999, but he only mentioned Mr. Marquez once (as a friend of Mr. Agramonte's) prior to describing the events of February 4, 1999. See 3/6/00 Tr. at 117-22, 126. Even when describing the testimony the government would offer through the two key witnesses against Mr. Marquez, the prosecutor never mentioned Mr. Marquez.
During the course of the trial, several DEA agents testified about Mr. Marquez's activities on February 4, 1999, but neither they nor anyone else testified that Mr. Marquez did anything with respect to the aborted drug sale except to drive the blue Oldsmobile from the El Pacifico pool hall to an alley near an apartment building several hours after the transaction was called off by alleged co-conspirator Pedro Agramonte. The government's case against Mr. Marquez on the two substantive counts arising from these events was thin, and so it was not surprising that the jury acquitted him on both of those counts.
In the Court's view, the evidence introduced by the government against Mr. Marquez on the conspiracy charge in its case-in-chief was even thinner; in fact, it was virtually nonexistent. The conspiracy purportedly lasted from the spring of 1998 until early February 1999.*fn3 Over the first several weeks of trial the government introduced detailed testimony describing the activities of alleged co-conspirators Roger Ramirez, Henri Alberto, Antonio Alberto, Jose Ismael Medina-Torres, Juan Zavala, Bertilio Soto Canales, Miguel Romero and Pedro Agramonte in the many drug transactions conducted over the course of the alleged conspiracy. The jury viewed numerous video tapes depicting seven drug transactions that took place during that period, involving Roger Ramirez and Jose Ismael Medina-Torres -- two of the government's primary witnesses. No one testified that Mr. Marquez was involved in any of these drug sales, including the sale on February 4, 1999, or in any of the trips taken by Henri Alberto, Antonio Alberto, Pedro Agramonte and Jose Ismael Medina-Torres to Philadelphia to transport kilogram quantities of drugs back to Washington, D.C. Despite all of the evidence presented regarding these drug sales and the conspiracy of which they were a part, Mr. Marquez was never implicated in these events by any of his alleged co-conspirators or by any other witness. For weeks on end, Mr. Marquez simply was not mentioned in the trial of this case.
The only testimony to implicate Mr. Marquez in the conspiracy came from two of the alleged co-conspirators, government witnesses Bertilio Jesus Soto Canales and Jose Ismael Medina-Torres. Yet, on direct examination, even their testimony did not establish Mr. Marquez's participation in the conspiracy. Both testified about isolated events: Mr. Soto Canales testified about a single drug transaction which he did not personally witness, and Mr. MedinaTorres described two conversations in which Mr. Marquez offered to sell drugs belonging to Henri Alberto; yet no drugs or money changed hands. In fact, neither of the witnesses testified that they ever personally saw Mr. Marquez with any type of drug. In addition, their accounts of Mr. Marquez's activities were vague and often confusing. This evidence barely implicated Mr. Marquez in any sort of illegal activity and did little to support an inference that Mr. Marquez was a member of the charged conspiracy.
A. Cross-Examination of Government Witness Bertilio Jesus Soto Canales*fn4
Bertilio Jesus Soto Canales 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. Near the end of his direct testimony, he testified that he knew Mr. Marquez, having 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 in evidence 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 allegedly told Soto Canales 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 Henri Alberto give drugs to Mr. Marquez in the apartment. Mr. Soto Canales recanted the grand jury testimony at trial. As described in greater detail in Marquez I, Mr. Marquez argues that trial counsel's errors in dealing with these statements allowed a third, much more damaging, statement to be admitted, specifically that Mr. Soto Canales claimed at one time to have personally 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. See Marquez I at 12-23.
At one point during the trial, the prosecutor proffered that he thought that Mr. Soto Canales would testify that he actually saw Henri Alberto give Mr. Marquez drugs. See 3/21/00 Tr. 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 in the apartment. Id. at 1413-14. Defense counsel responded: "I have the grand jury transcript, and I don't recall seeing that in the grand jury transcript that Henri gave Marquez drugs." Id. at 1414. When the prosecutor showed defense counsel the grand jury testimony, she 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 ("I didn't see that. I'm sorry. I didn't see that. I only saw the previous page and I didn't see that.").
In the presence of the jury, the prosecutor read a portion of Mr. Soto Canales's grand jury testimony in which Mr. Soto Canales testified that he had witnessed Henri Alberto give drugs to Mr. Marquez in the apartment. See 3/21/00 Tr. at 1425-27. Mr. Soto Canales conceded that he had so testified in the grand jury, but he then recanted his grand jury testimony. See id. at 1426-27. He explained 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. See id. Mr. Soto Canales had not actually seen any drug transaction. See id. Trial counsel then objected to Mr. Soto Canales' recantation as hearsay (which it was) even though this hearsay testimony, explaining away his grand jury testimony, was helpful to her client. See id. at 1427.
Although defense counsel's objection and her motion to strike the "hearsay" statement in the apartment may have seemed reasonable to counsel at first, the Court explained outside the presence of the jury that the statement probably helped the defendant more than the government because it directly contradicted the witness's inculpatory grand jury testimony. See 3/21/00 Tr. at 1452-55. If the jury was going to be permitted to consider Mr. Soto Canales's grand jury testimony as substantive evidence anyway under the Federal Rules of Evidence ("I saw Mr. Alberto give Mr. Marquez drugs," see id. at 1426-27), the Court suggested that it would be good defense strategy to put the recantation and the subsequent explanation before the jury as well. Even after thinking about the matter overnight, trial counsel argued that she wanted this "hearsay" testimony excluded. See 3/22/00 Tr. at 1487-88. In Marquez I, the Court held that this was not a legitimate strategic decision on any theory but a serious blunder that had devastating and foreseeable consequences. See Marquez I at 23-30.
On direct examination, Mr. Soto Canales also testified that he actually did not hear Mr. Marquez say anything on the street outside of the pool hall. See 3/21/00 Tr. at 1416. At the end of the direct examination, and outside the presence of the jury, the Court's Spanish interpreter clarified an earlier statement made by Mr. Soto-Canales that suggested he might have heard Mr. Marquez and Mr. Alberto discuss drugs outside the pool hall.*fn5 The Court had initially excluded that statement as hearsay, but in light of the interpreter's clarification, the Court ruled that after counsel completed her cross-examination, the prosecutor could voir dire the witness outside the presence of the jury to establish a foundation for admitting it. See Marquez I at 19-22. But defense counsel's subsequent ill-considered cross-examination of Mr. Soto Canales made the voir dire unnecessary.
Before Mr. Marquez's counsel began her cross-examination, Mr. Soto Canales had given three inconsistent statements concerning his knowledge of the alleged drug exchange between Mr. Marquez and Mr. Alberto. In his grand jury testimony, he indicated that he saw a drug transaction between Mr. Marquez and Henry Alberto in the apartment. At trial, on direct examination, he recanted this testimony and instead said only that Henri Alberto had told him of a drug transaction that had taken place in the apartment. Later, according to a clarification made by the Court's Spanish interpreter, Mr. Soto Canales then made a vague statement, not yet before the jury, that suggested he might have heard Mr. Marquez and Mr. Alberto discuss drugs on the street outside the pool hall. See Marquez I at 21-22. Although the record after direct examination reflected that Mr. Soto Canales had not heard anything on the street outside the pool hall, during her cross-examination defense counsel asked a question that allowed Mr. Soto Canales to contradict his earlier testimony and to testify before the jury that he personally heard Mr. Marquez ask Mr. Alberto for drugs.
Defense counsel first asked Mr. Soto Canales whether he had seen Mr. Marquez and Mr. Alberto exchange drugs. In response to her question, Mr. Soto Canales answered: "I never did, but they spoke." See 3/22/00 Tr. at 1505. Counsel attempted to cut him off. Id. ("My question requires a yes or no answer."). Yet, counsel's very next question was whether Mr. Soto Canales had ever heard Mr. Marquez and Mr. Alberto discuss drugs. Id. And the answer of course was, "Yes, I heard." See id. This was a question no competent counsel would have asked in view of the discussion with the interpreter outside the presence of the jury. And it opened the door to even more damaging testimony on redirect, when the government was able to establish a clear link between Mr. Marquez's statement on the street and the statement in the apartment. See Marquez I at 23.
B. Cross-Examination of Government Witness Jesus Ismael Medina-Torres*fn6
Ismael Medina-Torres was the only other government witness to testify about Mr. Marquez. On direct examination, Mr. Medina-Torres's testimony consisted of two damaging statements: (1) that Mr. Marquez had accompanied Mr. Agramonte to Mr. Medina Torres's house to collect a drug debt but that Mr. Marquez stayed by the car and they never spoke; and (2) that Mr. Marquez had offered to sell Mr. Medina-Torres 62 grams of powder cocaine that belonged to Henri Alberto, but that no actual sale ever occurred. See 4/4/00 Tr. at 2317-20, 2345-47; Marquez I at 30-31. No other witness or evidence corroborated Mr. MedinaTorres's testimony. Defense counsel's strategy, she later explained, was to attack his credibility, his primary vulnerability. See 7/25/07 Tr. at 19.*fn7 Indeed, counsel began her cross-examination by establishing Mr. Medina-Torres's motivation to lie and curry favor with the government. See id. at 98-99; Marquez I at 31-32.*fn8
Then, in an attempt to attack the veracity of Mr. Medina-Torres's testimony about Mr. Marquez's offer to sell him 62 grams of cocaine, defense counsel introduced for the first time information about Mr. Medina-Torres's debriefings with the FBI.*fn9 She attempted to establish that Mr. Medina-Torres never mentioned Mr. Marquez's alleged 62 gram offer to the FBI during his numerous debriefings with FBI agents, and that his testimony was a recent fabrication motivated by Mr. Medina-Torres' desire to curry favor with the government after his arrest. In response to her questions, Mr. Medina-Torres confirmed that he never told the FBI agent about Mr. Marquez's offer to sell him drugs. He did testify, however, that he had mentioned to the FBI someone with Mr. Marquez's nickname "El Chino." See 4/4/00 Tr. at 2397.*fn10
Defense counsel then inquired about two specific dates -- March 8 and March 18, 1999 -- on which she suggested that Mr. Medina-Torres was debriefed by FBI agents. Because defense counsel had mentioned the specific dates of March 8 and March 18, 1999, the Court permitted the prosecution to clarify on redirect examination that those debriefings were with DEA agents, and not with the FBI. And because defense had opened the door to a discussion of debriefings on March 8 and March 18, the Court also permitted the prosecution to explore the very damaging details of those two DEA debriefings. Had defense counsel not broadened the inquiry to include these DEA debriefings (in addition to the FBI debriefings), the prosecutor would have been precluded from asking about them on redirect, as any such inquiry would have been beyond the scope of cross-examination.
On redirect, however, the government established three incriminating facts: (1) Mr. Medina-Torres had told the DEA agents (not the FBI) about Mr. Marquez's offer to sell him 62 grams of cocaine and that the cocaine belonged to a leader of the conspiracy, Henri Alberto, see 4/5/00 Tr. at 2472-73, 2478-80; (2) at the March 18 debriefing with the DEA, Mr. Medina-Torres viewed a photo spread containing Mr. Marquez's picture and identified him as "El Chino," see id. at 2467-72; and (3) the person Mr. Medina-Torres identified as "El Chino" to the FBI agent and in the DEA photo spread and the person with whom he discussed the purchase of 62 grams of cocaine was in fact the defendant, Mr. Marquez. See id. at 2472, 2479-80. Thus, while intending to limit the scope of her questioning to debriefings with FBI agents, counsel had forgotten or overlooked the material she had received in pre-trial discovery and under the Jencks Act -- including FBI 302's and DEA-6's*fn11 -- and inadvertently referred to two DEA debriefing sessions -- to the great detriment of her client. See Marquez I at 37-38 & n.9.*fn12
III. THE EVIDENTIARY HEARING
On July 25, 2007, the Court held an evidentiary hearing to determine whether Mr. Marquez's counsel could offer any reasonable explanation for the decisions she made and the strategy she employed at Mr. Marquez's trial. ...