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United States v. Cross

United States District Court, District of Columbia

April 18, 2017



          CHRISTOPHER R. COOPER United States District Judge.

         In 2011, a jury convicted Defendant Elohim Bey Cross of conspiracy to distribute and possess with the intent to distribute over one kilogram of heroin, and he was sentenced to twenty years in prison. To obtain the conviction, the prosecution had to prove, among other things, that Cross reasonably foresaw that the conspiracy he joined distributed, or intended to distribute, more than one kilogram of heroin. The government met that burden mainly with the testimony of Cross's supplier, who told the jury that he sold Cross 1.2 to 1.3 kilograms for further distribution. In this petition for post-conviction relief under 28 U.S.C. § 2255, Cross contends that his trial counsel was ineffective for failing to use evidence in her possession that would have contradicted the supplier's testimony on this crucial point. For the reasons that follow, the Court agrees that Cross's counsel was deficient in this one respect, and that the error was prejudicial to the jury's drug-quantity finding. It will therefore grant Cross's petition and vacate his sentence. However, as discussed further below, the Court will direct the parties to submit supplemental briefing on the effect of the Court's ruling on Cross's conviction.

         I. Background

         In 2009, federal investigators tapped the telephones of Mouloukou Toure, a suspected heroin distributor in Washington, D.C. United States v. Cross, 766 F.3d 1, 2 (D.C. Cir. 2013).[1]Through those wiretaps, they learned that Toure was importing heroin from a Toronto-based supplier operating under the alias “Big Brother, ” and that Toure was selling that heroin to other, lower-level distributors, including Cross. Id. In numerous wiretapped conversations with Toure, Cross placed narcotics orders in coded language, discussed purchasing prepaid cell phones for the purpose of evading police, and learned about a police raid on Toure's stash house. Id.; see also Gov't's Opp'n Def.'s Mot. Vacate (“Gov't's Opp'n”), Ex. B (wiretap transcripts). The conversations also led the FBI to a Comfort Inn in Maryland, where an agent observed Toure enter and then exit a particular hotel room. Cross, 766 F.3d at 2. Later, an agent obtained records from the hotel's manager, showing that Cross had stayed there for weeks at a time through 2009 and had paid in cash. Id. at 2-3. When Cross learned from a hotel clerk that law enforcement agents had gotten the records, he called Toure in alarm, worried that there were still “things” in his hotel room but hopeful that they would be “hard to find”; Toure told him that he should have been moving locations more frequently, and that he had to “be careful.” Gov't's Opp'n, Ex. B, at ¶ 000033. The FBI searched the hotel room, though, and found bags of heroin and cocaine base in the drawer of a nightstand, plus drug paraphernalia such as surgical face masks, a digital scale, and disposable gloves. Cross, 766 F.3d at 3. After the search, Cross again called Toure in a panic, looking for guidance. See Gov't's Opp'n, Ex. B, at ¶ 000037- 38.

         In November 2009, a grand jury charged Cross with a single count of conspiring to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i) & 846, which carries a mandatory minimum of ten years' incarceration.[2] In March 2010, the government gave notice pursuant to 21 U.S.C. § 851 that, if convicted, Cross was subject to an enhanced mandatory minimum sentence of twenty years due to a 2007 Maryland conviction for cocaine possession, which carried a maximum punishment of four years' incarceration and therefore qualified as a “felony drug offense” under 21 U.S.C. § 841(b)(1)(i). See Notice of Prior Felony Convictions, ECF No. 81.[3] In June 2010, the attorney who would go on to represent Cross during the remaining pretrial, trial, and sentencing phases of the case, first entered her appearance. See Notice of Attorney Appearance, ECF No. 138.

         Cross went to trial in July 2011.[4] In addition to introducing the wiretap and physical evidence detailed above, the government elicited testimony from Toure, who had pled guilty. His testimony included the statements that he had imported a total of 4.8 kilograms of heroin from Big Brother, and that he had distributed a total of 1.2 to 1.3 kilograms of that amount to Cross. See Trial Tr. 18-19, 33, 65 (July 19, 2011 p.m.); Trial Tr. 36, 48, 50 (July 21, 2011 a.m.). Toure's testimony was the only evidence at trial regarding these total drug amounts. In defense, Cross's counsel pressed the theory that he had merely purchased drugs from Toure as part of a simple buyer/seller relationship, and that even if that relationship constituted a conspiracy, it was a much more limited conspiracy than the broader, international one with which Cross was charged. Accordingly, counsel asked the trial court to instruct the jury not to convict Cross if it found that he had engaged in a separate conspiracy with Toure alone. See Trial Tr. 27 (July 20, 2011 p.m.).

         The court rejected that request, finding that there was not sufficient evidence for a “multiple conspiracies” instruction. See id. at 24-25. The court did, however, instruct the jury that “a simple buyer/seller relationship alone does not make out a conspiracy.” Id. at 51. During closing arguments, the prosecution nevertheless argued that a two-man conspiracy-between Cross and Toure-was sufficient for conviction. See Trial Tr. 47, 52 (July 21, 2011 a.m.). It stressed that Toure's testimony regarding the 1.2 or 1.3 kilograms of heroin he distributed to Cross was, standing alone, sufficient to establish the drug quantity element of the charge. See Trial Tr. 23:7-25 (July 21, 2011 a.m.). Defense counsel, too, in an effort to discredit the testimony, nevertheless highlighted it: She called the 1.2/1.3-kilogram figure a “magic number” that Toure “needed to tell” the jury. Id. at 36:4-10.

         Although the jury was instructed on two lesser-included offenses with lower drug-quantity elements, see Trial Tr. 54-56 (July 20, 2011 p.m.), it voted to convict on the one-kilogram heroin conspiracy charge. See Verdict Form, ECF No. 327. At sentencing, defense counsel argued that permitting Cross's 2007 Maryland conviction for simple cocaine possession to trigger a ten-year enhancement (for a mandatory minimum of twenty years) under 21 U.S.C. § 841 would violate the Eighth Amendment's cruel-and-unusual punishment bar-in part because, under Maryland law, the offense is considered a misdemeanor. See Def.'s Mem. in Aid of Sentencing 5-7, ECF No. 345; Md. Code Ann., Crim. Law, § 5-601(c)(1). The court rejected that argument, noting that “it's undisputed that [the Maryland conviction] carries a maximum penalty of four years, ” and that “a qualifying felony drug offense is one that's punishable in excess of one year, regardless of how it's classified by name.” Sentencing Tr. 17 (Oct. 21, 2011). At the sentencing hearing, defense counsel also argued that the Presentence Investigation Report should not have attributed more than one kilogram of heroin to Cross. Id. at 5-6. The Court rejected that argument as well, reasoning that the jury had found that drug amount as “an essential element of the charged offense.” Id. at 15-16. The Court then sentenced Cross to 240 months' imprisonment.

         Represented by new counsel, Cross brought a direct appeal of his conviction on two grounds: that it was error for the trial court not to give the multiple-conspiracies instruction he requested, and that the prosecutor's closing argument that a two-man conspiracy was sufficient to convict was improper. See Cross, 766 F.3d at 2. The D.C. Circuit affirmed Cross's conviction on the ground that any errors on the part of the court or the prosecutor were harmless-primarily because there was sufficient evidence for the jury to convict Cross of the larger, charged conspiracy. Id. at 4-8.

         In January 2015, Cross filed this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, identifying fourteen grounds for relief. Def.'s Mot. Vacate, ECF No. 397 (asserting thirteen grounds for relief); Def.'s Mot. Expand Record, ECF No. 412 (asserting a fourteenth ground for relief). After the Court appointed him counsel, Cross withdrew nine of those claims. See Notice Regarding Withdrawal of Claims, ECF No. 440; Second Notice Regarding Withdrawal of Claims, ECF No. 444.[5] His remaining five claims encompass three main grounds for relief. Cross argues: (1) that his trial counsel was ineffective for failing to use specific evidence to challenge the drug quantity attributable to him (Grounds III & V); (2) that his trial and appellate counsel were ineffective for failing to challenge, under Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the ten-year enhancement of his sentence (Grounds I & IX); and (3) that the prosecution engaged in misconduct by failing to correct Toure's testimony about drug amounts (Ground IV).[6]

         After the parties submitted written briefing on the motion, the Court held an evidentiary hearing and oral argument, focused on the claim that trial counsel was ineffective for failing to utilize material evidence suggesting that the quantity of heroin attributable to Cross was under one kilogram. During the evidentiary portion of the hearing, Cross's trial counsel testified at length regarding her recollection of the relevant trial proceedings and the defense strategy she pursued. She answered questions posed by the Government, Cross's appointed post-conviction counsel, and the Court.

         II. Legal Standard

         A defendant may move the sentencing court to vacate his sentence if he believes that it “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). It is the defendant's burden to show by a preponderance of the evidence that he is entitled to relief. See United States v. Soomai, 23 F.Supp.3d 9, 11 (D.D.C. 2014) (citing United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C. 2009)); see also United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973). In making that showing, the defendant is procedurally barred from raising any available claim that he failed to raise on direct appeal, unless he can “demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). In an exception to this rule, however, a defendant may raise an ineffective assistance of counsel claim “whether or not [he] could have raised the claim on direct appeal.” United States v. Rivera-Niebla, 37 F.Supp.3d 374, 376 (D.D.C. 2014) (citing Massaro v. United States, 538 U.S. 500, 504 (2003)).

         III. Analysis

         A. Ineffective Assistance Claim Based on Drug-Quantity Evidence

         To succeed on a claim of ineffective assistance of counsel, a defendant must show both that (1) “counsel's performance was deficient, ” such that it “fell below an objective standard of reasonableness, ” and that (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Establishing prejudice requires a defendant to demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         Cross argues that his trial counsel was ineffective for failing to use evidence in her possession to undermine Toure's testimony regarding the amount of drugs he sold to Cross. Here is the argument: Toure testified that he imported 4, 800 grams of heroin from Big Brother; that about 1, 500 grams of that amount was distributed to one co-conspirator, Anthony Merritt; and that roughly another 1, 300 grams was collectively distributed to Antonio Valdez and another co-conspirator (not Cross). Trial Tr. 65-67 (July 19, 2011 p.m.). Toure also testified that he distributed “[a]pproximately 1200 to 1300 gram[s]” of heroin to Cross. Id. at 33:25. But Cross argues that a chart created by law enforcement detailing the quantities of heroin that the FBI recovered from the alleged co-conspirators, which was produced to the defense in discovery, makes Toure's numbers impossible to reconcile. The document, hereinafter referred to as the “drug-quantity chart, ” is a four-page spreadsheet titled “Operation Prizefighter: Drug Analysis Summary Chart.” Def.'s Reply Supp. Mot. Vacate (“Def.'s Reply”), Attach. at 28-32. It provides the date, location, description, type of controlled substance, and weight in grams for various drug seizures associated with the charged conspiracy. As relevant here, the chart indicates that 623.4 grams of heroin were obtained in “[c]ontrolled buy[s]” from Toure, [7] and that 944.3 grams were seized from Toure's stash house. It also indicates that 1, 984.4 grams were found in Merritt's stash house, significantly more than the 1, 500 grams Toure estimated he distributed to Merritt. Id.

         Hypothetically, the amounts recovered from Merritt's stash house could have been from a source other than Toure. However, assuming the truth of Toure's testimony, the amounts seized directly from Toure-i.e., the amounts purchased through controlled buys (623.4 grams) and found in Toure's stash house (944.3 grams)-must have come from the 4.8 kilograms imported from Big Brother. This follows because, according to Toure, Big Brother was his first and only heroin source. See Trial Tr. 63:17-25, 65:1-3 (July 19, 2011 p.m.). And when those amounts recovered from Toure are added to the 1, 300 grams supposedly distributed to Valdez and the 1, 500 grams supposedly distributed to Merritt, the total comes to just under 4, 400 grams. That would leave just over 400 grams of heroin for Cross-not the “[a]pproximately 1200 to 1300 gram[s]” that Toure claims to have distributed to him. Trial Tr. 33 (July 19, 2011 p.m.).

         The following table summarizes the drug amounts discussed above. It makes clear why-when the amounts distributed or recovered by law enforcement are deducted from the 4.8-kilograms Toure claims to have imported-it is not possible that Toure distributed more than one kilogram of heroin to Cross, as he claimed to have done.[8]


Evidentiary Source

Heroin Amount

Total Amount Imported

Toure's Testimony

4, 800 grams

Distributed to Valdez

Toure's Testimony

1, 300 grams

Distributed to Merritt

Toure's Testimony

1, 500 grams

Recovered through Controlled Buys from Toure

Drug-Quantity Chart

623.4 grams

Recovered from Toure's Stash House

Drug-Quantity Chart

944.3 grams

Recovered from Cross

Drug-Quantity Chart

22.029 grams

Possible Amount Remaining for

Distribution to Cross

Amount Toure Claimed to Have Distributed

to Cross

Toure's Testimony and

Drug-Quantity Chart

Toure's Testimony

432.3 grams

1, 200 to 1, 300 grams

         Understandably, Cross contends that the drug-quantity chart was highly material, and exculpatory as to the drug quantity attributed to him. Moreover, he has submitted documentation showing that his trial counsel was aware of the information reflected in the chart prior to and during trial. In particular, Cross has submitted a document in his own handwriting, which he supposedly presented to his counsel before trial, calculating imported and recovered drug amounts based on Toure's testimony during his co-conspirator Valdez's trial, and showing that the two columns do not add up. Def's Reply, Attach. at 33-34; see also id. at 17-20 (relevant excerpts from Valdez trial). Cross has also attached several documents in his trial counsel's handwriting, reflecting her attempts to reconcile the drug-amount figures. Id at 21-26. Because his counsel's failure “to introduce [this] highly exculpatory evidence impeaching the testimony of the government's star witness, on an issue going directly to guilt and punishment, was objectively unreasonable and highly prejudicial, ” Cross argues, he was unconstitutionally deprived of effective assistance of counsel. Def.'s Reply 3.

         1. Whether Trial Counsel's Performance Was Deficient

         The Court begins by evaluating Strickland's deficiency prong, which turns on whether counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. A lawyer's performance was not objectively reasonable if it was “not supported by a reasonable strategy.” Massaro v. United States, 538 U.S. 500, 505 (2003). Of course, there is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S.Ct. 10, 12 (2013) (quoting Strickland, 466 U.S. at 690). But a defendant may overcome that presumption by demonstrating either that the relevant decision was not justified by counsel's actual trial strategy, or that “no sound strategy posited by the [opposing party, here the government] could have supported the conduct.” United States v. Abney, 812 F.3d 1079, 1087 (D.C. Cir. 2016) (quoting Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005)) (alterations in original).

         When evaluating counsel's performance, a balance must be struck between surveying the forest and examining the trees. On the one hand, a reviewing court must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct” and “in light of all the circumstances.” Strickland, 466 U.S. at 690. On the other hand, performance that is by-and-large competent cannot cure a singular, constitutionally defective error. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[T]he right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial.”); Henry v. Poole, 409 F.3d 48, 72 (2d Cir. 2005) (court may not rely on “counsel's competency in all other respects” in evaluating effectiveness). In particular, when a lawyer “fails . . . to introduce ...

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