United States District Court, D. Columbia
ANTHONY MAURICE SUGGS, also known as, APPLEJACK, Defendant:
Gary E. Proctor, LEAD ATTORNEY, GARY E. PROCTOR, LLC,
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.
OPINION AND ORDER
SEGAL HUVELLE, United States District Judge.
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.
12, 2007, a federal grand jury indicted Suggs and six
co-defendants, Julian Johnson, James Lawrence Parker, Ernest
Milton Glover, 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, 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" );  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.
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. ( 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). Defendants' petitions to the
Supreme Court seeking writs of certiorari were denied.
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 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.
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 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
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
LEGAL STANDARD FOR § 2255 MOTION
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
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.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
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).
Legal Standard for Ineffective Assistance Claims
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.
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.
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" ).
Ineffectiveness Claims Based Upon Failure to Object to
Admission of Allegedly Inadmissible Evidence
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.
Deficient Performance -- Truck Bug Claim
government does not dispute that the truck bug evidence was
inadmissible against Suggs 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.
Deficient Performance -- Hampton Claim
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.
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."  ( 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." ).)
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 where he claims that
Agent Bevington's testimony violated Hampton.
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, and for the remaining
two the question is at best debatable. 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, ...