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United States v. Suggs

United States District Court, D. Columbia

November 24, 2015


          For ANTHONY MAURICE SUGGS, also known as, APPLEJACK, Defendant: Gary E. Proctor, LEAD ATTORNEY, GARY E. PROCTOR, LLC, Baltimore, MD.

         For USA, Plaintiff: Anthony F. Scarpelli, LEAD ATTORNEY, John K. Han, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Bernard J. Delia, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Special Proceedings Section, Washington, DC; William John O'Malley, Jr., LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


         ELLEN SEGAL HUVELLE, United States District Judge.

         Pursuant to 28 U.S.C. § 2255, defendant Anthony Maurice Suggs has filed a motion to vacate his conviction. ( See Suggs' Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 23, 2013 [ECF No. 323] (" Suggs Mot." ), as supplemented, see Supplemental Motion Under 28 U.S.C. § 2255 & Supplemental Memorandum in Support, June 26, 2015 [ECF No. 363] (" Suggs Supp." ).) The government opposes any relief. ( See United States' Resp., Apr. 1, 2014 [ECF No. 349] (" 1st Gov't Resp." ); United States' Resp., Sept. 4, 2015 [ECF No. 370] (" 2d Gov't Resp." ).) For the reasons stated herein, the motion will be denied.


         On June 12, 2007, a federal grand jury indicted Suggs and six co-defendants, Julian Johnson, James Lawrence Parker, Ernest Milton Glover,[1] Glendale Earl Lee, Helery Price and Ngozi Joy, for conspiracy to distribute and to possess with intent to distribute one kilogram or more of phencyclidine (PCP) and also charged Suggs with one count of unlawful possession with intent to distribute (" PWID" ) one kilogram or more of PCP, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A)(iv) & 846. ( See Indictment, June 12, 2007 [ECF No. 1].) A superseding indictment against Suggs, Parker, Ernest Glover, Lee, and Price was filed on October 16, 2007. (Superseding Indictment, Oct. 16, 2007 [ECF No. 65].) Parker entered a plea of guilty to conspiracy to distribute one kilogram or more of PCP ( see Plea Agreement, Feb. 11, 2008 [ECF No. 151]), and the remaining defendants proceeded to trial.[2]

         At trial, the government's evidence included, inter alia, visual and video surveillance of Suggs and others; approximately 80 conversations recorded by a wiretap on Suggs' cell phone, which was active from January 9, 2007 until April 7, 2007; five conversations recorded by a bug installed in alleged co-conspirator Lonnell Glover's truck, which was active from March 22, 2007 to June 19, 2007 (the " truck bug" ); [3] testimony from FBI Agent John Bevington, the case agent, who gave his opinion as a lay witness under Federal Rule of Evidence 701 as to the meaning of some of the recorded conversations; evidence that Suggs was living with Joy at Joy's house; evidence seized from Joy's house, including 7.7 kilograms of PCP; evidence seized from the residences of Parker, Ernest Glover, and Lee; and expert testimony from a federal drug investigator about modus operandi of PCP distribution operations in the District of Columbia, two forensic chemists and a fingerprint expert.

         The jury found Suggs, Ernest Glover and Price guilty of conspiracy and found Suggs guilty of PWID, in each instance finding that the offense involved one kilogram of more of PCP. ( See Verdict Forms, Mar. 13, 2008 [ECF Nos. 171, 172, 173].) The jury was unable to reach a verdict as to Lee, resulting in a mistrial. (Minute Entry, Mar. 18, 2008.) At his second trial, Lee was acquitted. ( See Judgment of Acquittal, May 8, 2008 [ECF No. 211].) The three convicted defendants were each sentenced to the statutory mandatory minimum: 240 months for Suggs and life imprisonment for Ernest Glover and Price.[4] ( See Judgment, Aug. 11, 2008 [ECF No. 281]; Judgment, Aug. 11, 2008 [ECF No. 283]; Judgment, Aug. 11, 2008 [ECF No. 277].) On appeal, the Court of Appeals affirmed all three convictions and sentences. See United States v. Ernest Glover, 681 F.3d 411, 416, 401 U.S.App.D.C. 80 (D.C. Cir. 2012).[5] Defendants' petitions to the Supreme Court seeking writs of certiorari were denied.

         After the appeals in the instant case were final, the Court of Appeals considered appeals by defendants in two related cases. See United States v. Hampton, 718 F.3d 978, 405 U.S.App.D.C. 328 (D.C. Cir. 2013) and United States v. Lonnell Glover, 736 F.3d 509, 407 U.S.App.D.C. 189 (D.C. Cir. 2013). The first case was an appeal by Jerome Hampton, who had been indicted, along with Lonnell Glover and others, for conspiracy to distribute PCP and heroin ( see supra note 3) and convicted after a jury trial. See Judgment, United States v. Jerome Hampton, No. 07-cr-0153 (D.D.C. Aug. 6. 2010). At Hampton's trial, as at Suggs' trial, the evidence included recorded conversations accompanied by FBI Agent Bevington's lay opinion testimony explaining the meaning of those conversations. Hampton, 718 F.3d at 981. On appeal, the Court concluded that Agent Bevington's testimony had exceeded the scope of lay opinion testimony permitted by Federal Rule of Evidence 701[6] when he " interpreted . . . [intercepted] conversations on the basis of his listening to all of the calls" (approximately 20,000 in total), even though only 100 calls were admitted into evidence and available to the jury. Hampton, 718 F.3d at 983. According to the Court, " [w]hen an agent, particularly a case agent, provides interpretations of recorded conversations based on his 'knowledge of the entire investigation,' 'the risk that he was testifying based upon information not before the jury, including hearsay, or at the least, that the jury would think he had knowledge beyond what was before them, is clear." Id. at 982-83 (quoting United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004) (internal citations omitted)). Under those circumstances, the Court held that " the jury had no way of verifying his inferences or of independently reaching its own interpretations" and the testimony, " 'rather than being helpful to the jury, . . . usurped the jury's function.'" Id. at 983 (quoting Grinage, 390 F.3d at 751). Noting that " [t]he government's evidence consisted largely of wiretap interceptions and recordings from a listening device" and Agent Bevington's interpretation of those recorded conversations, the Court concluded that the error was not harmless and reversed Hampton's conviction. Id. at 984.[7]

         The second case was an appeal by Lonnell Glover from his conviction for conspiracy to distribute cocaine. At his trial, as at Suggs' trial, the evidence included conversations recorded by the truck bug. On appeal, the Court held that the warrant authorizing installation of the truck bug was " facially insufficient" under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., and Federal Rule of Criminal Procedure 41[8] and therefore, that none of the conversations recorded by the truck bug should have been admitted into evidence. See Lonnell Glover, 736 F.3d at 513-14. Noting that the truck bug evidence constituted " some of the 'most incriminating' and 'most powerful' evidence at trial," the Court further held that the error required reversal of Lonnell's Glover's conviction. Id. at 516 (quoting United States v. Saro, 24 F.3d 283, 287, 306 U.S.App.D.C. 277 (D.C. Cir. 1994)). Subsequently, and for the same reason, the Court of Appeals granted the government's unopposed motion to vacate Lonnell Glover's conviction in a separate case for conspiracy to distribute PCP and heroin. See Order, United States v. Lonnell Glover, No. 10-3075 (D.C. Cir. July 29, 2014).[9]

         Suggs has now filed a motion pursuant to 28 U.S.C. § 2255(a), asking the Court to vacate his conviction. His two primary claims, which were fully developed in a supplemental brief filed by appointed counsel, stem from the Court of Appeals' decisions in Hampton and Lonnell Glover. Relying on those cases, he claims that he was deprived of his Sixth Amendment right to effective assistance of counsel at trial and on appeal due to his counsel's failure to object to the admission of the truck bug recordings and his counsel's failure to object to the scope of Agent Bevington's testimony. He has also adopted the ineffectiveness claims made by his co-defendants that apply to him: (1) that appellate counsel was ineffective for failing to challenge the Court's response to a jury note; and (2) that trial and appellate counsel were ineffective in failing to object to the jury's exposure to the odor of PCP from containers that were brought into the courtroom. ( See Suggs' Motion to Adopt, Jun. 26, 2015 [ECF No. 365]; Minute Order granting Motion to Adopt, June 27, 2015). Finally, Suggs' pro se motion included two additional claims: (1) that the government committed a Brady violation; and (2) that Agent Bevington impermissibly testified as an expert. As these claims cover a wide range of events, the additional facts underlying each claim will be set forth in the analysis portion of this Memorandum Opinion.



         Section 2255(a) provides that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). " A district judge must grant a prompt hearing under § 2255 unless 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Pollard, 959 F.2d 1011, 1030, 295 U.S.App.D.C. 7 (D.C. Cir. 1992) (quoting 28 U.S.C. § 2255(b)). " The decision whether to do so is committed to the district court's discretion." Id. at 1030-31; see also United States v. Morrison, 98 F.3d 619, 625, 321 U.S.App.D.C. 170 (D.C. Cir. 1996) (A " district judge's decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also presided over the trial in which the petitioner claims to have been prejudiced." ) " Only where the § 2255 motion raises 'detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's 'personal knowledge or recollection' must a hearing be held." 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)). Here, although the claims made are not insubstantial, their resolution does not call for an evidentiary hearing.


         Suggs raises four claims of ineffective assistance of counsel. In general, " claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice," but " an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

         A. Legal Standard for Ineffective Assistance Claims

         In order to establish ineffective assistance of counsel in violation of the Sixth Amendment, a defendant " must show that counsel's performance was deficient" and " that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding, if the error had no effect on the judgment." Id. at 691. Thus, " [f]ailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700.

         A counsel's performance is deficient if it " fell below an objective standard of reasonableness" or " prevailing professional norms." Id. at 688. " A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.

         As for establishing prejudice, " [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." Id. at 690. " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In assessing prejudice, courts " must consider the totality of the evidence before the judge or jury," id. at 695, and then determine " if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Id. at 696; see also Wong v. Belmontes, 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (" burden [is] on the defendant, not the [government], to show a reasonable probability that the result would have been different" ).

         B. Ineffectiveness Claims Based Upon Failure to Object to Admission of Allegedly Inadmissible Evidence

         Suggs' first two claims of ineffectiveness will be considered together as both are based upon counsel's failure to object to the admission of allegedly inadmissible evidence. His first claim, relying on the Court of Appeals' decision in Lonnell Glover, is that his counsel should have moved to suppress the five truck bug recordings that were introduced at trial based on the facial insufficiency of the underlying warrant. Suggs's second claim, relying on the Court of Appeals' decision in Hampton, is that on four occasions his counsel should have objected to Agent Bevington's testimony about conversations recorded by the cell phone wiretap as exceeding the scope of lay opinion testimony permitted under Federal Rule of Evidence 701.

         1. Deficient Performance -- Truck Bug Claim

         The government does not dispute that the truck bug evidence was inadmissible against Suggs[10] or that his counsel's failure to object to its admission or raise the issue on appeal satisfies the " deficient performance" prong of Strickland. ( See 2d Gov't Resp. at 10-11.) Nor is there any doubt that this evidence was highly incriminating, so the only issue for resolution is whether defendant suffered prejudice, which is addressed in Section B.3, infra.

         2. Deficient Performance -- Hampton Claim

         As for the Hampton claim, the government argues that none of Agent Bevington's testimony violated Hampton, and that if it did, counsel's failure to object did not constitute deficient performance. Moreover, the issue of prejudice must be resolved.

         As in Hampton, the number of recorded conversations that Agent Bevington listened to (approximately 2,500) greatly exceeded the number introduced into evidence (approximately 80) ( see 2/19/08pm Tr. at 27, 68), and Agent Bevington was proffered as a lay opinion witness who would be able to explain the meaning of certain otherwise innocuous " code words" based on his having listened to all 2,500 interceptions and, more generally, knowledge gleaned during the course of the investigation. ( See id. at 5.) However, unlike Hampton, before Agent Bevington ever took the stand, counsel for one of the defendants (Price) raised an objection to allowing Agent Bevington to " base his opinion not just on the phone call or the phone calls around it but on his overall knowledge of the investigation." [11] ( Id. at 7.) Although the Court overruled the objection, apparently following Judge Lamberth's decision in United States v. Eiland, No. 04-cr-0379, 2006 WL 2844921 (D.D.C. Oct. 2, 2006), and held that Agent Bevington could " say I listened to all the tapes and they used this word consistently" (2/19/08pm Tr. at 7, 14), the Court noted that it had serious reservations about both the utility and appropriateness of such testimony. ( See id. (" I don't like these kind of witnesses one bit to begin with. I think that it crosses the line. If a jury can't figure out what people are talking about on a tape, he doesn't add anything." ).) It cautioned the government against " try[ing] to make their case through some police officer who listens to all the tapes" because " [i]f the jury doesn't listen to the tapes and agree with you, Officer Bevington isn't going to make one bit of difference," urging them instead to play the recorded conversations for the jury and argue based on that evidence. ( See id. at 9 (" I have an inbred dislike of having a government agent trying to tell the jury what a tape means. You can tell them what it means based on the tapes. That's what argument is." ).)

         Perhaps in light of this colloquy, for many of the recorded conversations played for the jury, the government only asked Agent Bevington to identify the participants and the date and time of the conversation. Indeed, out of a trial that lasted nine days, during which Agent Bevington took the stand on eight separate occasions to introduce approximately 80 recordings from Suggs' cell phone, Suggs has identified only four specific instances[12] where he claims that Agent Bevington's testimony violated Hampton.

         After a careful review of the challenged testimony, the underlying recorded conversation, and the entire trial record, the Court is convinced that as two of the four instances no Hampton error occurred,[13] and for the remaining two the question is at best debatable.[14] Given the minimal nature of any transgression, it follows that counsel's failure to specifically object to the testimony about those two conversations did not constitute deficient performance. ( See also supra note 14.) This conclusion alone would be enough to defeat this claim of ineffectiveness. However, as explained infra, ...

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