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United States v. Drew

United States District Court, District of Columbia

April 4, 2013

UNITED STATES OF AMERICA,
v.
ANDRE DREW, Defendant

Page 13

For ANDRE DREW, Defendant: Tony Lenell Axam, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.

For USA, Plaintiff: Julieanne Himelstein, LEAD ATTORNEY, U.S. ATTORNEY OFFICE, Washington, DC; Margaret J. Chriss, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

Page 14

Gladys Kessler, United States District Judge.

MEMORANDUM OPINION

Defendant has filed a Motion, Pursuant to 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence [Dkt. No. 82]. Upon consideration of the Motion, the Government's Opposition [Dkt. No. 85], Defendant's Reply [Dkt. No. 87], and the entire record in this case, the Court concludes, for the following reasons, that the Motion will be denied.

I. PROCEDURAL BACKGROUND

On February 22, 2006, Defendant was indicted in the Superior Court for the District of Columbia in Case No. 2005-FEL-7174 on multiple counts of child sexual abuse and using a minor in a sexual performance. Defendant was represented in that case by Brandi Harden, Esq. On December 1, 2006, Ms. Harden filed a Motion to Withdraw citing irreconcilable differences with Defendant, and on December 7, 2006, the Superior Court granted her Motion. On January 22, 2007, Defendant filed a pro se Motion to Dismiss, alleging that Ms. Harden's representation had been ineffective and, therefore, the case should be dismissed.

On January 31, 2007, a Federal Grand Jury charged Defendant by indictment with one count of Enticing a Minor in Sexual Conduct for the Purpose of Production (18 U.S.C. § 2251 (a)) (Count 1); two counts of First Degree Child Sexual Abuse (D.C. Code § 22-3008) (Counts 2 and 3); and one count of Second Degree Child Sexual Abuse (D.C. Code § 22-3009) (Count 4). On January 31, 2007, the Superior Court dismissed without prejudice the case against Defendant on the understanding that he had been indicted in this Court.

Two experienced criminal defense lawyers were appointed to represent Defendant in the criminal proceedings in this case. Counsel filed multiple pre-trial Motions on Defendant's behalf including a

Page 15

Motion to Suppress Evidence and Statements. At a Motions Hearing on May 1, 2007, the United States agreed that it would not use Defendant's statements in its case-in-chief. 5/1/07 Tr. 43. The Government also agreed that the search of Defendant's apartment had been illegal, that it would not use in its case-in-chief the pornographic photos of D.B. and A.B. that were recovered during that search, and that it would not use the evidence recovered on the same day from Defendant's car. Id. at 51. However, the Government did not concede that the evidence that was produced by Defendant's brother pursuant to a subpoena duces tecum was improperly obtained. Id. at 53-57. At a pre-trial hearing a few days later, the Court agreed with the Government's position. 5/7/07 Tr. 35. Therefore, Defendant's Motion to Suppress Evidence and Statements was denied in part as moot and denied in part on the merits.

On May 8, 2007, Defendant's jury trial began. It concluded on May 15, 2007, when the jury found Defendant guilty on Count 1 (Enticing a Minor in Sexual Conduct for the Purpose of Production) and Count 2 (First Degree Child Sexual Abuse). The jury deadlocked on Count 3 (First Degree Child Sexual Abuse) and Count 4 ...


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