United States District Court, District of Columbia
ELLEN SEGAL HUVELLE, District Judge.
Filing motions pursuant to 28 U.S.C. § 2255, Ernest Glover and Helery Price now seek to vacate their convictions for conspiracy to distribute phencyclidine ("PCP") on the basis that they have been deprived of their Sixth Amendment right to the effective assistance of counsel at trial and on appeal. ( See Glover's Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 28, 2013 [ECF No. 325] ("Glover Mot."); Price's Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 25, 2013 [ECF No. 329] ("Price Mot."). The government opposes any relief. For the reasons stated herein, both motions will be denied.
After a jury trial, Glover and Price were each convicted of one count of conspiracy to possess with intent to distribute and to distribute one kilogram or more of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv) & 846. ( See Judgment (Glover), Aug. 11, 2008 [ECF No. 283]; Judgment (Price), Aug. 11, 2008 [ECF No. 277]). Both were sentenced to imprisonment for life pursuant to the applicable statutory mandatory minimum,  and their convictions were affirmed on appeal. See United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012). A co-defendant, Anthony Suggs, was also tried and convicted by the same jury, and the Court has previously denied his § 2255 motion. See United States v. Suggs, No. 07-cr-0152, 2015 WL 7566658, at *12 (D.D.C. Nov. 24, 2015) (" Suggs § 2255 Opinion "), appeal filed, United States v. Suggs, No. 15-3092 (D.C. Cir. Dec. 30, 2015). That opinion included an extensive background section, see Suggs § 2255 Opinion at *1-3, which the Court will not repeat here, but will proceed directly to the specific claims raised by Glover and Price.
In their § 2255 motions, Glover and Price raise multiple claims of ineffective assistance of counsel. Those claims pertain to the following events: (1) Glover's counsel's alleged failure to investigate and learn of his drug addiction; (2) Price's counsel's one-day absence from the courtroom during trial due to illness; (3) the admission into evidence of items seized during the June 19, 2007 search of Glover's residence; (4) the admission into evidence of five conversations recorded by the bug installed in alleged co-conspirator Lonnell Glover's truck and related testimony about those conversations (the "truck bug" evidence); (5) the admission into evidence of FBI Agent Bevington's lay opinion testimony explaining conversations recorded by the truck bug and by the wiretap on Suggs' cell phone; (6) the jury's exposure to the "overwhelming" odor of PCP; and (7) the Court's response to a jury note. In addition, both Glover and Price claim that even if no claim succeeds individually, the cumulative impact of counsel's mistakes entitles them to relief.
Of these claims, two - the claim based on the response to the jury note and the claim based the jury's exposure to the odor of PCP - were also raised by Suggs and were denied for reasons that are equally applicable here. See Suggs § 2255 Opinion, 2015 WL 7566658, at *9-11. The Court will not repeat that analysis here, but rather incorporates by reference the analysis and conclusions set forth in its earlier decision. The remaining claims, including any additional facts necessary for an understanding and analysis of each claim, are addressed below.
I. LEGAL STANDARDS
A. Section 2255
Section 2255 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 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). 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 (2003).
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel at trial and on appeal. Strickland v. Washington, 466 U.S. 668 (1984). In order to establish ineffective assistance of counsel, a defendant "must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687. "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" under "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 694. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id .; see also Harrington v. Richter, 562 U.S. 86, 112 (2011) (A "reasonable probability" means that "[t]he likelihood of a different result must be substantial, not just conceivable.") In assessing prejudice, courts must determine "if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland, 466 U.S. at 696; see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (" Strickland places the burden on the defendant, not the [government], to show a reasonable probability' that the result would have been different." (quoting Strickland, 466 U.S. at 694)).
II. GLOVER'S COUNSEL'S ALLEGED FAILURE TO ADEQUATELY INVESTIGATE HIS CASE
Glover claims that his trial counsel failed to adequately investigate his case because he failed to learn that Glover was a long-time user of and addicted to heroin, and thus he failed to "present this line of available defense." (Glover Supp. at 38.) A failure to investigate can constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 691 ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"). "[T]o show prejudice, a defendant basing an inadequate assistance claim on his or her counsel's failure to investigate must make a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result.'" United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987)). Here, however, the record establishes that Glover's trial counsel knew of his heroin addiction, and he made use of that fact throughout the trial. ( See, e.g., 2/19/08 am Tr. at 48 ("My client has had some problems in his life.... My client has struggled with an addiction to heroin as well. The evidence is going to show that also."); see also 2/19/08 am Tr. at 50-51 ("But you are going to hear evidence that this man has struggled with a heroin addiction for some time.").) Thus, Glover's claim that his counsel failed to investigate and learn of his heroin addiction is clearly contradicted by the record. In addition, to the extent that Glover is suggesting that his trial counsel should have utilized this information differently, he fails to suggest any alternative use, much less one that would render trial counsel's choice outside the realm of reasonable strategic alternatives. Accordingly, the Court rejects Glover's claim of ineffectiveness based on an alleged failure to investigate.
III. PRICE'S COUNSEL'S ABSENCE FROM THE COURTROOM
Price claims that his counsel was ineffective because he failed to raise a Sixth Amendment objection to the proceedings that were held while he was absent from the courtroom.
During the trial, Price's counsel fell ill and was unable to attend court for a day. (Minute Entry, Mar. 3, 2008.) In his absence, no witnesses were called to testify. However, the Court did have the jury go through their exhibit books to make sure they were up-to-date ( see 3/3/08am Tr. at 19-37), and, out of the jury's presence, addressed several issues with counsel for Price's co-defendants, such as scheduling the remaining witnesses and possible stipulations ( id. at 3-19, 37-79). The Court also distributed to counsel who were present its proposed revisions to the conspiracy jury instruction for counsel to review. ( Id. at 13-14.) It briefly explained some of the changes it had made and advised counsel that it would "take up substantive objections" to its proposed revision after Price's counsel was "back." ( Id. at 43.) The next day, when Price's counsel was back in court, the Court confirmed with all counsel that there was nothing further to address with regard to the jury instructions. ( See 3/4/08am Tr. at 66.) Trial testimony finished later that same day, and the Court instructed the jury. After it finished with the instructions, the Court again asked counsel whether there was anything further for it to address, and all counsel responded that there was not. ( See 3/4/08pm Tr. at 40.)
The Sixth Amendment guarantees a defendant's right to have counsel present "at all critical stages of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80 (2004); see United States v. Cronic, 466 U.S. 648, 653-654 (1984). If a defendant's counsel is absent at a "critical stage, " that is a per se Sixth Amendment violation. Woods v. Donald, 135 S.Ct. 1372, 1375-76 (2015); Cronic, 466 U.S. at 659. A "critical stage" is one that "h[olds] significant consequences for the accused." Bell v. Cone, 535 U.S. 685, 696 (2002); see also Van v. Jones, 475 F.3d 292, 313 (6th Cir. 2007) (critical stage if "there was a reasonable probability that [the defendant's] case could suffer significant consequences from his total denial of counsel at the stage").
Price contends that his counsel was absent at a "critical stage" because "substantive issues were discussed, " in particular the Court's proposed revisions to the conspiracy instruction. (Price Mot. at 23.) A close review of the record confirms that Price's counsel was not absent for a "critical stage" of the proceedings. As the transcript from that date confirms, the Court was well-aware of the importance of not addressing any substantive issues that pertained to Price in the absence of Price's counsel. ( See, e.g., 3/3/08am Tr. at 13 ("I can't[, ] obviously[, ] proceed without [Price's counsel]."); id. at 54-55 ("I can't take it up without him.").) More importantly, it also confirms that the discussion that took place that day in court pertaining to the conspiracy instruction or to any other matter was not substantive. Finally, Price's counsel had ample opportunity, when he returned to court the following day, to raise objections to the conspiracy instruction, but he did not do so. See Van v. Jones, 475 F.3d at 313 ("perhaps the best way" of determining whether a proceeding is a critical stage is "to ask whether [the defendant] had any opportunity, subsequent to the [proceeding], to recover or exercise whatever privilege he lost at the hearing"). Accordingly, as Price was not deprived of counsel at a critical stage of the proceedings, there was no Sixth Amendment violation.
IV. EVIDENTIARY CLAIMS
The three remaining claims of ineffective assistance all pertain to evidence that defendants contend should not have been admitted at trial: the items seized during the search of Glover's residence; portions of Agent Bevington's lay opinion testimony; and the truck bug evidence. To prevail on an ineffectiveness claim premised upon counsel's failure to file a motion to suppress or to object to the admission of evidence at trial, a defendant must at a minimum establish that the evidence was, in fact, wrongfully admitted. See, e.g., United States v. Wood, 879 F.2d 927, 934 (D.C. Cir. 1989); see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Accordingly, the Court will consider first whether any of the challenged evidence should have been excluded and, if any of the evidence was inadmissible, whether its admission was prejudicial to Glover or Price.
A. ADMISSIBILITY OF EVIDENCE SEIZED DURING THE SEARCH OF GLOVER'S RESIDENCE
On June 19, 2007, the police conducted a search of Glover's residence. During that search, it seized a number of items, including cash, a digital scale, a $1 bill with heroin on it, little baggies (one with heroin in it), two shoe boxes filled with small glass bottles and tops, two turkey basters, two eye droppers, a juice bottle with 178.1 grams of PCP; 2 vanilla extract bottles containing 6.2 grams of PCP, two funnels, a turkey baster, a shotgun, a rifle, and boxes of ammunition. No motion to suppress was filed, and the seized items were introduced into evidence at trial. ( See 2/21/08pm Tr. at 52-72 (testimony of FBI Agent Tim Ervin).) Glover now claims that this evidence was seized in violation of the Fourth Amendment because the warrant authorizing the search had expired.
To support his claim that the warrant authorizing the search had expired, Glover has submitted of a copy of a warrant that was issued on June 8, 2007, and that expired on June 18, 2007, one day before the search occurred. ( See Glover Supp., Ex. A.) However, a second warrant was obtained on June 15, 2007, and that warrant did not expire until June 25, 2007. ( See 2d Gov't Resp. at 12-13 & Ex. A.) More importantly, the first warrant was returned as unexecuted, while the "return of warrant" from the second warrant shows that it was the warrant pursuant to which the search was conducted. ( Id., Ex. A, at 2.) Accordingly, Glover's claim that the search of his residence was carried out pursuant to an expired warrant is meritless.
B. ADMISSIBILITY OF FBI AGENT BEVINGTON'S TESTIMONY
Agent Bevington testified throughout defendants' trial, introducing into evidence over 80 conversations recorded by the wiretap on Suggs' cell phone and five conversations recorded by the truck bug and, occasionally, he gave his opinion as to the meaning of those recorded conversations. See Suggs § 2255 Opinion, 2015 WL 7566658, at *1. As set forth in greater detail in the Suggs § 2255 Opinion, 2015 WL 7566658, at *2, *5, to the extent Agent Bevington's opinion was based on his having listened to all of the interceptions, not just those that were introduced into evidence, or based on knowledge he had gained over the course of the investigation, the admissibility of his testimony was called into question when the Court of Appeals held in a related case that Agent Bevington's testimony had exceeded the scope of permissible lay opinion testimony under Federal Rule of Evidence 701. See United States v. Hampton, 718 F.3d 978. 984 (D.C. Cir. 2013). In light of Hampton, Glover and Price now argue that on several occasions counsel should have objected to Agent Bevington's testimony as violating Rule 701.
Many of defendants' challenges to Agent Bevington's testimony were addressed and rejected in the Suggs' Opinion. Thus, as explained therein, there was no Rule 701 error in Agent Bevington's testimony explaining the meaning of Suggs Activations 89, 2093, or 2227, see Suggs § 2255 Opinion, 2015 WL 7566658, at *5 & nn.13, 14, and if there was an error in Agent Bevington's testimony about Suggs Activations 199, 200, and 248, it was largely nullified by defense counsel's cross-examination and thus counsel's failure to object could not constitute deficient performance, see Suggs § 2255 Opinion, 2015 WL 7566658, at *5 & n.14. Defendants' remaining challenges have similar problems.
First, defendants argue that Agent Bevington should not have been allowed to testify that Price was known by the nickname "Brother" ( see 2/27/08am Tr. at 96 (re Suggs Activation 186); 2/27/08pm Tr. at 22 (re Truck Bug Activation 604)) because his earlier testimony indicated that he had acquired that knowledge " during the course of the interceptions " (2/27/08am Tr. at 93 (emphasis added)). Although on the surface it appears that the Agent Bevington's opinion might have been based on interceptions that were not played for the jury, the rest of the sentence makes it clear that he is basing his opinion on a conversation that was in fact played for the jury. Compare id. at 93 (Bevington testifying that he knew "Brother" was a nickname for Price because "Mr. Suggs and Ernest Glover spoke about Mr. Price and referred to him as Helery Price, Brother Price") with Suggs Activation 2083 (recorded conversation between Suggs and Glover that was played for the jury during which Suggs refers to Price by name and also as Bro/Brother/Old Brother Price). In addition, even if Agent Bevington's testimony somehow violated Rule 701, counsel's failure to object caused no prejudice given that other admissible evidence, such as the contact list from Suggs' cell phone, established that Price's nickname was Brother. See also United States v. McGill, No. 06-3190, 2016 WL 790413, at *19 (D.C. Cir. Mar. 1, 2016) (no prejudice where "admissible evidence confirmed" "problematic" testimony).
Second, defendants challenge Agent Bevington's testimony about the following exchange between Suggs and Glover:
Glover (talking about "Brother"):
Man, don't want to work a job, man, don't want to do nothing, Ap. Just want to walk around, look slick, talk slick and gamble. You know, that man ain't trying to do nothing concrete and serious.
Suggs (in response):
He gotta get something to cover him up though man.
(Suggs Activation 186.) According to Agent Bevington's testimony, what Suggs meant was that "Mr. Price needs to have a job so he appears to be getting money legitimately." (2/27/08am Tr. at 96-97). Defendants contend that Agent Bevington "relied on his knowledge of the entire investigation and having listened to all the calls to give him what he called context' to make this  conclusion." (Price Mot. at 16 (quoting 2/19/08pm Tr. at 55).) However, simply asserting something does not make it true. As there is nothing in Agent Bevington's testimony itself that suggests it was based on anything that was not available to the jury, and as his testimony appears to be a perfectly plausible interpretation of the actual words used in the conversation, the Court is not persuaded that there was a Rule 701 error, much less an error sizeable enough that counsel could be faulted for failing to object to this testimony.
Third, defendants challenge Agent Bevington's testimony that during two of the truck bug conversations (Truck Bug Activations 186 and 706), the parties (Lonnell Glover and Suggs in the first conversation and Lonnell Glover and Cornell Glover in the second one) are talking about Ernest Glover selling PCP. ( See 2/20/08am Tr. at 74-76; 2/21/08pm Tr. at 11-12.) Again, though, there is nothing in the Agent Bevington's testimony to suggest that his opinion is based on information that was not before the jury, except to the extent it was based on his expert knowledge of PCP distribution in the District of Columbia. ( See 2/21/08pm Tr. at 11-12 (explaining that reference to having "16" meant 16 ounces of PCP).) He was not interpreting any other "coded" language, and his testimony appears to be a perfectly plausible interpretation of the actual words used in the conversation. Thus, the Court again finds no Rule 701 error and, even if it did, it would not be the type of error that counsel could be faulted for failing to raise an objection to.
Finally, defendants challenge Agent Bevington's testimony on cross-examination about what Suggs and another co-defendant (James Parker) could have meant when they were talking about "getting together." (2/21/08am Tr. at 36.) Defense counsel asked Agent Bevington to admit that he couldn't say that "they weren't getting together the next day to place bets or gamble, " and Agent Bevington responded that although he could not "say that definitively... based on our investigation, all of the calls, I believe it would be something different." ( Id. (emphasis added).) Given that this answer was in response to defense counsel's question and that the testimony added nothing to the case against defendants, counsel cannot be faulted for failing to object to this testimony.
Accordingly, although Agent Bevington's testimony as a lay opinion witness created the potential for Rule 701 violations, the Court rejects defendants' claim that any actual violations occurred or, even assuming that a violation occurred, it was so de minimis that counsel's failure to object cannot be deemed a deficient performance.
C. ADMISSIBILITY OF TRUCK BUG EVIDENCE
On March 19, 2007, the government filed an application seeking authorization under Title III to install a bug in Lonnell Glover's truck. The supporting affidavit from FBI Special Agent Ryan Pardee identified Glover and Price as persons who were "participat[ing]" in an ongoing conspiracy to distribute PCP in the District of Columbia and who "have used, are using, and will continue to use the vehicle described herein [Lonnell Glover's truck] in connection with the above-described offenses." (Aff. ¶¶ 5-6.) The affidavit further stated that there was "probable cause to believe [Glover, Price, and others] are committing, and will continue to commit, offenses involving drug trafficking, and are using cellular telephone conversations and oral communications in and within the vicinity of the target vehicle to promote, manage, establish, and carry out unlawful activity and to facilitate the ...