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United States v. Morrow

United States District Court, D. Columbia.

April 30, 2015

UNITED STATES OF AMERICA,
v.
MIQUEL MORROW, Defendant Criminal No. 04cr355-01 (CKK)

Miguel Morrow, aka: JULIO, Defendant (1:04cr355), Pro se, INEZ, KY USA.

For Miguel Morrow, aka: JULIO, Defendant (1:04cr355): Joanne Roney Hepworth, LEAD ATTORNEY, HEPWORTH & PENDRY, Washington, DC USA; Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC USA.

Lionel Stoddard, aka: OOKS, Defendant (1:04cr355), Pro se, JONESVILLE, VA USA.

For Lionel Stoddard, aka: OOKS, Defendant (1:04cr355): Edward Charles Sussman, LEAD ATTORNEY, LAW OFFICES OF EDWARD C. SUSSMAN, Washington, DC USA; Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC USA; William Gregory Spencer, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC USA.

Carlos Aguiar, aka: LOS, Defendant (1:04cr355), Pro se, WAYMART, PA USA.

For Carlos Aguiar, aka: LOS, Defendant (1:04cr355): Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC USA; Tony L. Booker, LEAD ATTORNEY, Arlington, VA USA.

For Omar Holmes, aka: O, Defendant (1:04cr355): H. Heather Shaner, LEAD ATTORNEY, LAW OFFICES OF H. HEATHER SHANER, Washington, DC USA.

Bryan Burwell, aka: BUSH, Defendant (1:04cr355), Pro se, Bruceton Mills, WV USA.

For Bryan Burwell, aka: BUSH, Defendant (1:04cr355): Anthony Douglas Martin, LEAD ATTORNEY, ANTHONY D MARTIN, PC, Greenbelt, MD USA; Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC USA.

For Aaron Perkins, aka: SHORT, Defendant (1:04cr355): Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC USA; Cynthia Katkish, Attorney at Law, Cynthia Katkish, Washington, DC USA.

For Guidel Olivares, Defendant (1:04cr355): A. Eduardo Balarezo, LEAD ATTORNEY, BALAREZO LAW, Washington, DC USA; Leta Adia McCollough, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC USA.

MIGUEL MORROW, Petitioner (1:12-cv-01323-CKK), Pro se.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

On July 15, 2005, Miquel Morrow (" Morrow" ) was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity (" Count I" ), including the armed robbery of the Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 (" Racketeering Act 1" ), the armed robbery of the Riggs Bank located at 7601 Georgia Avenue, N.W., Washington, D.C., on or about March 5, 2004 (" Racketeering Act 2" ), the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 (" Racketeering Act 3" ), the armed robbery of the SunTrust Bank located at 5000 Connecticut Avenue, N.W., Washington, D.C., on or about June 29, 2004 (" Racketeering Act 4" ), the armed robbery of the Chevy Chase Bank located at 3601 St. Barnabas Road, Silver Hill, Maryland, on or about May 10, 2004 (" Racketeering Act 5" ), the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 (" Racketeering Act 6" ), the assault with intent to kill while armed of Edwin Arrington on or about April 23, 2004 (" Racketeering Act 7" ), and assault with intent to kill while armed of Edwin Arrington on or about May 15, 2004 (" Racketeering Act 9" ); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation (" Count II" ); armed robbery of Bank of America on or about January 22, 2004 (" Count III" ); using and carrying a firearm during and in relation to a crime of violence on or about January 22, 2004 (" Count IV" ); armed robbery of Riggs Bank on or about March 5, 2004 (" Count VII" ); using and carrying a firearm during and in relation to a crime of violence on or about March 5, 2004 (" Count VIII" ); armed robbery of Industrial Bank on or about June 12, 2004 (" Count X" ); using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 (" Count XI" ); unlawful possession of a firearm on or about June 12, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year (" Count XII" ); armed robbery of SunTrust Bank on or about June 29, 2004 (" Count XV" ); using and carrying a firearm during and in relation to a crime of violence on or about June 29, 2004 (" Count XVI" ); unlawful possession of a firearm on or about June 29, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year (" Count XVII" ); and assault with intent to kill while armed of Edwin Arrington on or about May 15, 2004 (" Count XIX" ). Presently before the Court is Morrow's pro se [774] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and [832] Motion for Appointment of Counsel. Upon a searching review of the parties' submissions,[1] the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Morrow's conviction and sentence at this time. Given that the Court has determined that a hearing is not necessary in this matter, the Court finds that the interests of justice do not require that the Court appoint Morrow counsel in this matter and, accordingly, his request is denied. Accordingly, the Court shall DENY Morrow's [774] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and [832] Motion for Appointment of Counsel.

I. BACKGROUND

On August 3, 2004, a federal grand jury indicted Morrow and six other codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland.[2] Indictment, ECF No. [10]. The United States Court of Appeals for District of Columbia Circuit (" D.C. Circuit" ) described the factual scenario:

[Morrow and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK-47s instead of handguns because they surmised the metropolitan police " wouldn't respond" when Appellants " robb[ed] banks with assault weapons." The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.

United States v. Burwell, 642 F.3d 1062, 1064-65, 395 U.S.App.D.C. 241 (D.C. Cir. 2011) (citation omitted). The matter proceeded to trial in this Court, and Morrow was tried alongside five other codefendants. On July 15, 2005, a jury convicted Morrow on thirteen counts upon which he was charged in the indictment; the jury found Morrow not guilty of a fourteenth count (Count XVIII). Verdict Form, ECF No. [471].

On May 17, 2006, this Court sentenced Morrow to 240 months of imprisonment on Count I, 60 months of imprisonment on Count II, 300 months of imprisonment each on Counts III, VII, X, and XV, and 120 months of imprisonment each on Counts XII and XVII, to run concurrently to each other. The Court further sentenced Morrow to 120 months of imprisonment on Count IV, 300 months of imprisonment each on Counts VIII and XI, life imprisonment on Count XVI, and 60 months of imprisonment on Count XIX, to run consecutively to each other and to any other sentence. See Judgment in a Crim. Case, ECF No. [640]. Morrow filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Morrow's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062, 395 U.S.App.D.C. 241 (D.C. Cir. 2011), aff'd in part en banc, 690 F.3d 500, 402 U.S.App.D.C. 193 (D.C. Cir. 2012). Morrow did not file a petition for writ of certiorari with the Supreme Court of the United States. Morrow currently is serving his sentence.

Pending before the Court is Morrow's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Morrow's motion is premised on overarching ineffective assistance of counsel claims with respect to four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his trial counsel, Joanne Hepworth, and his appellate counsel, David B. Smith. Specifically, Morrow claims that his counsel rendered him ineffective assistance by: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial, failing to move to dismiss based on this challenge during trial, and failing to raise this challenge at sentencing and on appeal; (3) failing to properly advise Morrow regarding a plea offer extended by the government; (4) failing to request an informant jury instruction at trial; (5) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (6) failing to properly cross-examine two government witnesses at trial; (7) failing to challenge government misconduct at trial and on appeal; (8) failing to properly challenge juror misconduct and bias at trial and on appeal; (9) failing to argue that the rule of lenity precluded the imposition of certain sentences at sentencing and on appeal; (10) failing to prepare and file a writ of certiorari with the Supreme Court of the United States. Morrow also asserts that he is entitled to relief based on intervening changes in the law.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence was imposed " in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. " [T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Nonetheless, " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) " cause" for his failure to do so and " prejudice" as a result of the alleged violation, or (2) " actual innocence" of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, " [w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show 'cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion." United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000), aff'd, 22 Fed.Appx. 3 (D.C. Cir. 2001) (citation omitted).

A defendant claiming ineffective assistance of counsel must show (1) " that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms," and (2) " that this error caused [him] prejudice." United States v. Hurt, 527 F.3d 1347, 1356, 381 U.S.App.D.C. 259 (D.C. Cir. 2008) (citation omitted). " Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is the petitioner's burden to show that counsel's errors were " so serious" that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). " The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions . . . . [I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of . . . counsel's other litigation decisions." Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims, the Court must give consideration to " counsel's overall performance," Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), and " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689. Moreover, " [t]he 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.

III. DISCUSSION

A district court may deny a Section 2255 motion without a hearing when " the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). " 'The decision whether to hold a hearing is committed to the district court's discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.'" United States v. Orleans-Lindsay, 572 F.Supp.2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C. 2005), aff'd, 304 Fed. App'x 877 (D.C. Cir. 2008). " The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion." Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031, 295 U.S.App.D.C. 7 (D.C. Cir. 1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992)). To warrant a hearing, the petitioner's Section 2255 motion must " raise[] 'detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's 'personal knowledge or recollection.'" Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)).

Based on a thorough review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion at this time. As explained below, Morrow has not proffered detailed and factual allegations outside of the record such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall render its findings on these claims based on the parties' pleadings and the record.

Morrow raises 10 ineffective assistance of counsel claims related to counsel allegedly: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial, failing to move to dismiss based on this challenge during trial, and failing to raise this challenge at sentencing and on appeal; (3) failing to properly advise Morrow regarding a plea offer extended by the government; (4) failing to request an informant jury instruction at trial; (5) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (6) failing to properly cross-examine two government witnesses at trial; (7) failing to challenge government misconduct at trial and on appeal; (8) failing to properly challenge juror misconduct and bias at trial and on appeal; (9) failing to argue that the rule of lenity precluded the imposition of certain sentences at sentencing and on appeal; (10) failing to prepare and file a writ of certiorari with the Supreme Court of the United States. Further, Morrow also asserts that he is entitled to relief based on intervening changes in the law. The Court shall address each claim in turn.

A. Speedy Trial Challenge

Morrow alleges that his trial counsel was ineffective by failing to move to dismiss in the instant action based on a violation of the Speedy Trial Act.[3] Def.'s Memo. at 12-15; Def.'s Reply at 1-3. Pursuant to 18 U.S.C. § 3161(c)(1), a trial for a defendant who has pled not guilty must commence within 70 days from the filing and making public of the indictment, or from the date that Defendant appeared before a judicial officer of the court in which the charge is pending, whichever is later. In a case involving multiple defendants, the speedy trial clock resets upon the initial appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70, 382 U.S.App.D.C. 54 (D.C. Cir. 2008). In other words, all codefendants share the speedy trial computation of the latest codefendant. Id. (quoting Henderson v. United States, 476 U.S. 321, 323 n.2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). However, pursuant to section 3161(h), there are several scenarios under which the Court may toll this 70 day time period.

In the instant action, Morrow was indicted pursuant to a sealed indictment on August 3, 2004, and arrested on August 9, 2004. Malvin Palmer was the last of Morrow's codefendants to be arrested and arraigned. Palmer's arrest and arraignment occurred on August 25, 2004. Accordingly, August 25, 2004 is the operative date under the Speedy Trial Act for calculating the 70-day period for all codefendants in this matter, see Van Smith, 530 F.3d at 969-70, and Morrow's trial commenced on April 5, 2005, 223 days from this date.

However, on September 27, 2004, 33 days from the operative date, the Court held a status hearing with Morrow and his seven codefendants present, to discuss the Government's Notice to the Court of Plan, in Consultation with Defense Counsel, for Future Actions in this Case. See Notice to the Court of Plan, ECF No. [90]. At the hearing, Morrow's counsel, indicated on the record in the presence of Morrow, that this was a complex case under the Speedy Trial Act, allowing for tolling of the Act for a reasonable period of time in order to prepare the case. Order (Oct. 4, 2004), ECF No. [92]. Indeed, Ms. Hepworth explained on the record in Morrow's presence: " We do not object to the complex case designation. We believe, at least from Mr. Morrow's perspective, it's appropriate." [4] Tr. 6:20-22 (Sept. 27, 2004), ECF No. [675].

Following the hearing on October 4, 2004, 40 days from the operative Speedy Trial Act date, the Court entered a written order tolling the time period under the Act pursuant to 18 U.S.C. § § 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). Order (Oct. 4, 2004). Specifically, the Court cited the nature of the case (eight codefendants and an alleged conspiracy to rob six separate banks on six different dates), the possible expert testimony on DNA, hair, fingerprint, and firearm analysis, and the possible testimony of lay witnesses from the banks, as well as the number of potential witnesses at trial (potentially sixty government witnesses). Id. at 1-2. In its Order, the Court noted that it was " the consensus of the parties and the Court that it would be unlikely that this case would be ready to proceed to trial within the next several months due to the extensive discovery involved, the complexity of the case, and the breadth of forensic evidence requiring expert testimony." Id. at 2.

The Court, specifically with the consent of Defendants, their counsel, and the government, ultimately held that: (1) the case was so unusual or so complex, due to the nature of the prosecution that it was unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A),[5] (B)(ii) (2004) [6]; (2) the failure to grant the requested additional time to prepare the case would result in a miscarriage of justice to the Defendants, 18 U.S.C. § 3161(h)(8)(B)(i) (2004)[7]; and (3) the failure to grant the requested additional time would deny the Defendants reasonable time necessary for the effective preparation of the case, taking into account the exercise of due diligence, 18 U.S.C. § 3161(h)(8)(B)(iv) (2004)[8]. Id. at 2-3. Based on these findings, the Court concluded that the ends of justice required that the case proceed to trial outside of the 70-day period prescribed by the Speedy Trial Act.[9] Id. at 3.

Given the Court's specific written findings tolling the time frame under the Speedy Trial Act in compliance with the requirements of 18 U.S.C. § 3161(h) (2004), the Court finds that Morrow's related ineffective assistance of counsel claim fails. Morrow argues that the requirements of an " ends-of-justice" continuance were not met because the grant of a continuance allowed the government to bolster its case against Morrow by giving the government time to negotiate with codefendants who testified against Morrow. Def.'s Memo. at 14-15. While one reason for granting the continuance was to give the prosecution time to prepare because of the complex nature of the case, this characterization is inaccurate because the continuance also specifically was granted to give the defense time to effectively prepare their case and to avoid a miscarriage of justice. Accordingly, it is clear that the Court granted the continuance only after specifically finding that it benefited both the government and the Defendants.

Morrow also cites Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), in support of his argument. However, Zedner is distinguishable from the instant action. The Supreme Court in Zedner addressed the propriety of a district court's grant of a continuance when the court did not make express findings on the record either orally or in writing regarding the end-of-justice balance. Zedner, 547 U.S. at 506. Here, it is clear that the Court made formal written findings on this issue close in time to the hearing and, as such, Zedner is distinguishable.

Finally, Morrow asserts that " at no point did counsel ever explain to Mr. Morrow his right to a speedy trial, or the mandatory dismissal for that violation . . . . Had counsel done so in this case, Mr. Morrow would have insisted that a motion to dismiss was filed." Def.'s Memo. at 15. Even assuming arguendo that Morrow's counsel did commit an error by not advising of him of his statutory Speedy Trial rights, and that his counsel misrepresented that she had explained his rights to her client and that her client had consented to the designation of the case as complex, Morrow was not prejudiced by this error. The Court tolled the time under the Speedy Trial Act pursuant to 18 U.S.C. § § 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). None of those provisions require the consent of the defendant. Rather, a party or the Court may move for tolling under these provisions, but the Court applying the appropriate legal standard must determine whether such a continuance is permissible. Accordingly, even if Morrow's counsel had objected to the tolling of the time prior to the entry of the Court's findings, it is not reasonably likely that this objection would have dissuaded the Court from finding that the case was complex and that all parties needed additional time to prepare given that this was a case involving several codefendants alleged to have been involved in a conspiracy that included the armed robbery of six different banks. Further, if Morrow's counsel moved to dismiss the indictment on the basis that there was a violation of the Speedy Trial Act, it is not reasonable to conclude that the Court would have dismissed the indictment given that it followed the required procedures under the Act for tolling. See Order (Oct. 4, 2004). Finally, the Court notes that Morrow and his codefendants filed 40 substantive pre-trial motions which added to the complexity of the case and independently tolled the Speedy Trial clock.[10] See 18 U.S.C. § 3161(h)(1)(F) (2004). Accordingly, the Court concludes that there was no Speedy Trial Act violation in the instant action regardless of the consent issue.

Given that the Court followed the required process for tolling time under the Speedy Trial Act regardless of whether Morrow consented to the tolling, Morrow cannot establish that his counsel acted in an objectively unreasonable manner by failing to move to dismiss the case on the basis that the Court violated the 70-day requirement of the Act, nor can he establish that there is a reasonable likelihood of a different result had trial counsel made such a motion.[11] Accordingly, Morrow's ineffective assistance of counsel claim premised on trial counsel's failure to move to dismiss the instant action on the basis of a Speedy Trial Act violation is without merit.

B. Double Jeopardy and Multiplicity Challenges

Morrow next argues that his trial counsel was ineffective by failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and for failing to move to dismiss the indictment based on this challenge. Def.'s Memo. at 16-19, 25, 29-30; Def.'s Reply at 3-5. Specifically, Morrow objects to Count I of the indictment, conspiracy to participate in a racketeer influenced corrupt organization (" RICO" ) pursuant to 18 U.S.C. § 1962(d), which Morrow argues is multiplicitous of the other charged robbery offenses. Def.'s Memo. at 16-18, 21; Def.'s Reply at 3-4. Morrow also argues that his multiple charges under 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a crime of violence, were improper because they arise out of the same conspiracy. Def.'s Memo. at 17-19. Morrow's claims for ineffective assistance of counsel on these issues fail because: (1) his trial counsel did challenge the RICO charge, Count I, prior to trial on the grounds that it was multiplicitous, and Morrow raises no additional valid arguments that his counsel should have advanced; and (2) Morrow's four charged violations under 18 U.S.C. § 924(c) do not violate the Double Jeopardy clause because they are based on distinct, separately charged criminal offenses that occurred on different dates.

Turning first to the RICO charge, Morrow's codefendant filed a Joint Defense Motion to Dismiss the Indictment due to Multiplicitous and Duplicitous Charging prior to trial which the Court considered on Morrow's behalf. Sealed Jt. Def.'s Mot. to Dismiss Indictment, ECF No. [172]. The Court issued a Memorandum Opinion on March 16, 2005, finding that the arguments in that motion were without merit. Memo. Op. (Mar. 16, 2005), at 13-22, ECF No. [437]. Morrow appears to raise two arguments as to the deficiency of the arguments raised in the motion: (1) trial counsel should have relied on different case law to establish that the RICO charge was multiplicitous of other charged offenses; and (2) trial counsel should have argued that the RICO charge and the charges of armed robbery brought against him were multiplicitous. The Court shall address each argument in turn.

Morrow asserts that the RICO charge required proof that Morrow: committed the robberies at issue; protected members of the enterprise; maintained weapons, body armor, and money of the enterprise in safe places; and retaliated against persons who interfered with the operation of the enterprise. Morrow argues that this conduct also forms the bases of other charged offenses for which Morrow was convicted and, accordingly, the RICO charge violates the Double Jeopardy clause. Def.'s Memo. at 16. Morrow provides a lengthy quote from the Second Circuit's holding in United States v. Basciano, 599 F.3d 184 (2d Cir. 2010), in support of his argument.[12] However, Basciano is distinguishable from the instant action because in that case, the Second Circuit addressed the issue of bringing multiple RICO charges against the same defendant based on the same enterprise. See id. at 188-89 (indicating that the defendant was indicted for one count of substantive racketeering, and three counts of conspiracy to murder in the aid of racketeering, and that the government conceded that the racketeering charges stemmed from the same enterprise but argued that they involved different patterns of racketeering). In contrast, the instant action does not raise the same concerns as those in Basciano because Morrow was charged with one RICO charge related to one enterprise. Accordingly, the Court is not persuaded that Morrow's counsel was ineffective by failing to make this additional argument on Morrow's behalf.

Further, to the extent that Morrow may be arguing that the RICO charge (Count I), and the charges for the armed robbery of the Bank of America on or about January 22, 2004 (Count III), armed robbery of the Riggs Bank on or about March 5, 2004 (Count VII), armed robbery of the Industrial Bank on or about June 12, 2004 (Count X), armed robbery of the SunTrust Bank on or about June 29, 2004 (Count XV), and assault with intent to kill while armed of Edwin Arrington on or about May 15, 2004 (Count XIX), are multiplicitous charges, an argument that does not appear to have been advanced in his pre-trial motion, the Court finds that this argument also is without merit. Multiplicitous charges " improperly prejudice a jury by suggesting that a defendant has committed not one but several crimes." United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981). " An indictment is multiplicitous, and thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a defendant's exposure to criminal sanctions." United States v. Anderson, 39 F.3d 331, 353-54, 309 U.S.App.D.C. 54 (D.C. Cir. 1994), rev'd en banc, 59 F.3d 1323, 313 U.S.App.D.C. 335 (D.C. Cir. 1995) (en banc). Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the relevant test for determining whether two counts of an indictment are multiplicitous is as follows: " [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [count] requires proof of an additional fact which the other does not." Id. at 304. However, " the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history." Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Indeed, " the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress." Id. Accordingly, it is particularly relevant to the instant action that " Congress intended that a RICO violation be a discrete offense that can be prosecuted separately from its underlying predicate offenses." United States v. Crosby, 20 F.3d 480, 484, 305 U.S.App.D.C. 290 (D.C. Cir. 1994).

Here, Count I charges racketeering acts that require the government to establish an " enterprise" and the " continuing" commission of stated offenses such as armed robbery and acts involving murder. In contrast, Counts III, VII, X, and XV are charges for the substantive crime of armed robbery on different dates in different locations. Count XIX was a charge for assault with intent to kill while armed, a crime separately charged under the D.C. Code. Given the clear congressional intent to allow RICO violations to be prosecuted separately from underlying offenses, the Court finds that Counts I and III, VII, X, XV, and XIX are not multiplicitous in violation of the Double Jeopardy clause. Accordingly, the Court cannot conclude that trial counsel acted in an objectively unreasonable manner by not raising this specific challenge to Morrow's indictment, nor can the Court conclude that appellate counsel was deficient for failing to do so.

Turning to Morrow's argument regarding Counts IV, VIII, XI, and XVI, each for using and carrying a firearm during a crime of violence under 18 U.S.C. § 924(c), Morrow asserts that he was impermissibly charged with multiple § 924(c) charges arising out of the same conspiracy in violation of the Double Jeopardy clause.[13] Morrow cites the D.C. Circuit's ruling in United States v. Anderson, 59 F.3d 1323, 313 U.S.App.D.C. 335 (D.C. Cir. 1995) (en banc), in which the Circuit held that a defendant could not be convicted of multiple counts of using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), if each of the charges was tied to the same predicate offense, in that case a narcotics conspiracy. Anderson, 59 F.3d at 1324-25, 1334. In Anderson, the D.C. Circuit ultimately held that " only one § 924(c)(1) violation may be charged in relation to one predicate crime." Id. at 1334. Morrow also cites to the D.C. Circuit's holding in United States v. Wilson, 160 F.3d 732, 333 U.S.App.D.C. 103 (D.C. Cir. 1998), that a defendant cannot be convicted of more than one offense under 18 U.S.C. § 924(c), based on one use of one firearm even if he was convicted of two underlying offenses in relation to that conduct, first-degree murder and killing a witness with the intent to prevent him from testifying. Id. at 748-50. Notably, both Anderson and Wilson were decided based on the rule of lenity, not on double jeopardy grounds. Anderson, 59 F.3d at 1333; Wilson, 160 F.3d at 749; see also United States v. Kelly, 552 F.3d 824, 830 n.5, 384 U.S.App.D.C. 171 (D.C. Cir. 2009) (noting that the holding in Wilson was based on the rule of lenity). Moreover, Anderson and Wilson also are distinguishable from the instant action because, here, Morrow was charged with four violations of § 924(c) based on four distinct armed robberies for which he was separately charged and convicted in violation of 18 U.S.C. § § 2113(a) & (d), 2 (Counts III, VII, X, and XV).

" [The Double Jeopardy clause] prohibits the executive branch from doubling down, bringing multiple prosecutions or seeking successive punishments against a defendant for the same criminal offense." United States v. Cejas, 761 F.3d 717, 730 (7th Cir. 2014). Here, Morrow was separately charged with and convicted of using or carrying a firearm during and in relation to a crime of violence during bank robberies on January 22, 2004 (Count IV), March 5, 2004 (Count VIII), June 12, 2004 (Count XI), and June 29, 2004 (Count XVI). Each of the four charged § 924(c) violations is based on a different criminal offense, i.e., the separate charged bank robberies, and, thus, do not violate the Double Jeopardy clause. Id. at 731 (rejecting defendant's argument that his two § 924(c) convictions violated the Double Jeopardy clause because his possession of the gun was continuous and uninterrupted, and holding that his conviction of the two charges was proper because he was convicted of possessing a gun during his drug activity and separately for possessing a gun during his criminal conduct on a different occasion approximately one week later); United States v. Davis, 306 F.3d 398, 418 (6th Cir. 2002), cert. denied 537 U.S. 1208, 123 S.Ct. 1290, 154 L.Ed.2d 1054 (2003) (" Because Congress expressly provided that courts may impose punishment for a violation of § 924(c) in addition to the punishment imposed for the predicate felony, Defendant's double jeopardy arguments lack merit." ); United States v. Rose, 251 Fed. App'x 708, 710 (2d Cir. 2007), cert. denied 552 U.S. 1238, 128 S.Ct. 1462, 170 L.Ed.2d 289 (2008) (" Here, [defendant's] four Section 924(c) convictions arose out of four separate bank robberies, and the convictions were therefore proper." ). Accordingly, Morrow's ineffective assistance of counsel claim as to his four § 924(c) convictions fails because he has not demonstrated that he was prejudiced by trial or appellate counsels' failure to raise this issue. Further, the Court concludes that Morrow's counsel did not render him ineffective assistance because his argument with relation to the four charged violations of § 924(c) is without merit.

For the reasons described, the Court finds that Morrow's ineffective assistance of counsel claims related to the multiplicity and double jeopardy challenges to the indictment are without merit.

C. Plea Offer

Morrow alleges that his trial counsel failed to properly explain to him the sentencing differences between accepting a plea offer and proceeding to trial. Morrow submitted an affidavit that was filed alongside his § 2255 motion attesting to the following facts:

[C]ounsel failed to inform me of the correct consequences of proceeding to trial versus pleading guilty. Instead, counsel informed me that I faced a life sentence regardless of whether I pled guilty or was convicted following a jury trial. Counsel also never told me that a second § 924(c) charge carried a mandatory minimum sentence of twenty-five years, and/or that a subsequent conviction would carry a sentence of life. Had counsel properly informed me of the likely consequences of trial, and that I could have entered a guilty plea and avoided the life sentence imposed after conviction by the jury, as did several of my co-defendants, I would have pled guilty pursuant to a plea agreement instead of proceeding to trial.
. . .
Counsel refused to discuss the government's proposed plea agreement with me. In fact, I have yet to see a copy of that agreement. In addition, counsel failed to inform me that the decision whether to plead guilty belonged solely to me. When I inquired of counsel what my sentence would be if I pled guilty, as opposed to the sentence I would receive if found guilty following trial, counsel informed me that there would no noticeable difference. When I pressed counsel for a more definite answer, counsel simply replied that it depends of [sic] which charges I pled guilty to.

Def.'s Declaration ¶ ¶ 4-5, ECF No. [774-2]. For the reasons described herein, the Court finds that Morrow's ineffective assistance of counsel claim fails because the sentencing consequences resulting from the plea offer and from a possible conviction were discussed on the record in open court in Morrow's presence and Morrow indicated that he had discussed the sentencing consequences with his counsel. Further, the Court finds that Morrow's ineffective assistance of counsel claim fails because Morrow was not charged with any violations of 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a crime of violence, at the time that the plea offer was extended to and rejected by him. Finally, the Court finds that Morrow was not prejudiced by his trial counsel's alleged failure to inform him of the fact that the decision to plead guilty or proceed to trial belonged solely to him.

A criminal defendant's right to effective assistance of counsel under the Sixth Amendment extends to the plea-bargaining process. Lafler v. Cooper, __ U.S. __, __, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). The Court employs the two-part Strickland test in analyzing an ineffective assistance of counsel claim arising out of the plea negotiations. Id. First, a defendant must show that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. United States v. Hurt, 527 F.3d 1347, 1356, 381 U.S.App.D.C. 259 (D.C. Cir. 2008). This Circuit has recognized that a lawyer who makes a plainly incorrect estimate of a likely sentence due to ignorance of applicable law of which he should have been aware while advising his client on the prudence of accepting a plea offer falls below the threshold of reasonable performance within the meaning of ...


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