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United States v. Thorpe

United States District Court, District of Columbia

March 11, 2019


          MEMORANDUM OPINION (MARCH 7, 2019) [DKT. ## 127, 128]


         On July 31, 2013, after a seven-day trial, defendants Aaron Thorpe ("Defendant Thorpe") and Melvin Knight ("Defendant Knight") were found guilty by a jury of nine counts each of being a felon in possession of a firearm, conspiracy, assault with a dangerous weapon, kidnapping while armed, burglary while armed, possession of a firearm during a crime of violence, and obstruction of justice. Both raised a number of challenges to their convictions and sentences on appeal, including claims that their Superior Court trial counsel were constitutionally deficient.[1] Our Circuit Court affirmed defendants' convictions and sentences, but remanded their ineffective-assistance-of-counsel ("IAC") claims for me to consider in the first instance. To that end, I held three days of evidentiary hearings on May 24 and 25, and September 20, 2017, after which I accepted post-hearing briefing in the form of motions to vacate the convictions based on ineffective assistance of Superior Court counsel. Ultimately, the briefing was completed on May 24, 2018.

         Because Thorpe and Knight's IAC claims ultimately stem from the same allegation of the insufficiency of Thorpe's Superior Court trial counsel, Frederick Iverson, I will consider them together. Having closely reviewed the evidence presented during three days of evidentiary hearings and in the parties' extensive briefing, Thorpe and Knight's IAC claims are, for the reasons set forth below, DENIED.


         A. Superior Court Proceedings

         On January 28, 2013, police arrested Thorpe and Knight for the D.C. Code offense of kidnapping while armed, among other things. In all of their Superior Court proceedings, Defendant Thorpe was represented by David Knight ("Attorney Knight"), while Defendant Knight was represented by Frederick Iverson ("Attorney Iverson"). Defendants were held without bond pending a preliminary hearing in the Superior Court. At the February 1, 2013 preliminary hearing, the federal prosecutor stated that the Government had "extended a plea offer to one count of Assault With A Deadly [sic] Weapon to both defendants." 2/1/13 Transcript, Government's Motions Hearing Exhibit 1. The next time defendants appeared before the Superior Court was February 19, 2013, when Assistant United States Attorney Britten Shaw told the court that the Government's understanding was that defendants would not be accepting the pre-preliminary hearing plea and there would be no further plea offers at that time. 2/19/13 Transcript, Government's Motions Hearing Exhibit 2, at 2-3. The case was therefore set for trial in the Superior Court on May 15, 2013.

         B. Federal Court Trial and Appeal

          On May 7, 2013, a federal grand jury indicted each defendant with the federal offense of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), as well as the D.C. code offenses of conspiracy, assault with a dangerous weapon, two counts of armed kidnapping, first-degree burglary while armed, two counts of possession of a firearm during a crime of violence, and obstruction of justice. The defendants' Superior Court charges were subsequently dismissed on May 10, 2013. At a June 4, 2013 status hearing before this Court, Assistant United States Attorney Emory V. Cole communicated his understanding that "defendants are not amenable to even discussing a non[-trial] disposition...the defendants have indicated they want to go to trial." 6/4/13 Transcript, Status Hearing, at 4. Both defendants were assigned new defense counsel in the federal proceeding-Shawn Moore represented Defendant Knight while Joseph Conte represented Defendant Thorpe.

         Two months later, after a seven-day trial, a jury convicted both defendants on all counts. The Government's evidence at trial established that on the night of January 28, 2013, Thorpe and Knight donned masks and police-like attire and lay in wait for Edmund Peters and his female companion-Luttitia Fortune. Brandishing weapons, the defendants assaulted Peters and Fortune and forced them into Peters' apartment. Their alleged purpose was to steal narcotics and cash from Peters' drug trafficking operation. Fortunately, a next-door neighbor witnessed the altercation outside Peters' apartment entrance and called the police station to let them know their officers were having a difficult time. When the police arrived, they surrounded the apartment and ordered those inside to come out. The defendants, in response, threatened Peters and Fortune in an effort to get them to fabricate a false story to law enforcement about the events that had transpired. To say the least, the police never fell for their concoction of lies.

         On March 10, 2014, I sentenced Thorpe to 300 months' imprisonment. Thorpe Judgment [Dkt. # 84] at 3. I sentenced Knight to 268 months' imprisonment. Knight Judgment [Dkt. # 86] at 3. Prior to sentencing, defendants requested new counsel on the grounds that they would have never been brought to federal court had their Superior Court attorneys provided effective assistance. I granted defendants' requests for new counsel but told them that sentencing would not wait for any habeas motions to be filed, assuming they went forward with those motions at all. Howard Katzoff appeared for Defendant Thorpe and Chris Davis appeared for Defendant Knight, respectively, at their sentencings, and in their subsequent appeal and remand for IAC claims.[2]

         On appeal, Knight and Thorpe raised several challenges. First, they raised a challenge claiming a violation of the Speedy Trial Act ("STA"). Second, Thorpe argued that the 25-year sentence I gave him was unreasonable. And third, both defendants argued that they received ineffective assistance of counsel from their Superior Court counsel regarding the wired plea offer they received in the Superior Court. United States v. Knight, 824 F.3d 1105, 1109 (D.C. Cir. 2016). Our Circuit Court rejected defendants' other challenges but remanded their IAC claims for me to consider in the first instance. Knight, 824F.3dat 1113.

         C. Post-Conviction Evidentiary Hearings

         Following our Circuit's remand, defendants moved for a waiver of attorney-client privilege with respect to their Superior Court counsel-Attorney Iverson and Attorney Knight-which I granted. I ordered the production of documents related to defendants' representation in Superior Court, including billing records, jail visit records, hearing transcripts, and communications between counsel and the government regarding the plea offer. I then held three days of evidentiary hearings on May 24, May 25, and September 20, 2017. Attorneys Iverson and Knight testified about their interactions with defendants between the initial Superior Court hearing on February 1, 2013 and the hearing at which the prosecutor represented that defendants had rejected the wired plea deal on February 19, 2013. Defendants Thorpe and Knight also testified, as did the D.C. Jail Custodian of Records.

         Testimony of Attorney Iverson

         Attorney Iverson testified that he had practiced as a CJA attorney in Superior Court since 1998, handling "somewhere between 80 and 100-plus cases a year." 5/24/17 Tr. 80- 82. He first spoke with Knight for "five" or "six minutes" at the January 29, 2013, presentment in Superior Court. 5/24/17 Tr. 84. While he "[didn't] have any recollection of the actual events of [Knight's] presentment," 5/24/17 Tr. 85-86, Attorney Iverson testified that at a typical presentment,

You can talk to them briefly. Tell them what they have been charged with. You're basically introducing yourself, telling them about the process, you're going to try to get them out, whether you believe, based on the charges, they'll probably be held, what the next step will be as far as them coming to court for a preliminary hearing, things of that nature, find out if they have any family in the audience, or who you're going to be contacting. But that's pretty much what goes on at that point.

5/24/17 Tr. 85. After the presentment, Iverson testified that, on January 31, 2013, he received an email "from Trevor McFadden, [Assistant] United States Attorney at that time...spelling] out the pre-preliminary hearing plea offer that the government was making at that time." 5/24/17 Tr. 87. That same day, Attorney Iverson testified that he visited Defendant Knight at the D.C. Jail to discuss the Government's plea offer, among other things. 5/24/17 Tr. 91-92, 100.

         Afterwards, Iverson testified that he met with Defendant Knight "several times" to discuss the case. 5/24/17 Tr. 88.[3] Iverson's billing records reflect that on February 1, 2013, he "conference[d] [client" at the courthouse, and also "conference[d] co-defendant attorney, conference[d] government attorney and family." 5/24/17 Tr. 96. He also met with Defendant Knight, co-counsel, and the prosecutors on February 19, 2013, before the hearing, for roughly an hour in total. 5/24/17 Tr. 97-98, 126. On cross, Attorney Iverson was asked whether he had any record of meeting with Defendant Knight between the hearings on February 1 and February 19. The Government produced evidence that he visited the jail on February 5, 2013, but Iverson had neither billing records memorializing that visit nor any independent recollection of that visit. 5/24/17 Tr. 120-21.[4] Attorney Iverson testified that he "believe[d] [his] billing records are accurate." 5/24/17 Tr. 100.

         Attorney Iverson could not recall the exact details of what he discussed with Defendant Knight about the plea offer. On the one hand, Iverson testified that he found out the case was going to federal court "abruptly" at the hearing on February 19, 2013. 5/24/17 Tr. 133. He testified that he ''wasn't focused on the possibility of him going over to Federal Court and weighing those options with [Defendant Knight]," because he was focused on "preparing our case to go to trial in D.C. Superior Court." 5/24/17 Tr. 147. Attorney Iverson further stated that there was "nothing in [the government's plea] letter to make [him] focus on the federal side." 5/24/17 Tr. 147.

         Yet, on the other hand, Attorney Iverson testified that in a typical case he "would have discussed the plea offer" with his client, 5/24/17 Tr. 92, including "the terms of the plea offer," id. at 100, "possible penalties," id. at 102, "what are the maximum penalties," id., and "what his co-defendant would do or not do." Id. at 103. Attorney Iverson had "some recollection of some conversations with [Defendant Knight] about the case...going over some of the strengths and weaknesses about the evidence [, ] what [they] expected the evidence to be at trial, talking to [Knight] about some of the weaknesses in defenses, what [he] thought would be the strength of the government's case, [and] why [he] thought [they] wouldn't prevail on certain issues." 5/24/17 Tr. 100-01. Iverson specifically recalled Defendant Knight being "hopeful that Mr. Peters would not cooperate with the government or would not testify" against him." 5/24/17 Tr. 112-13. When asked if he had discussed the nature of the wired plea offer with his client, Iverson did not "have an independent recollection of explaining to [Knight] wired [pleas]; and that [ ] he can't get the deal unless his co-defendant takes the deal." 5/24/17 Tr. 103.

         After reviewing a transcript of the February 19, 2013 hearing, Iverson recalled that "[a]t that time" of the hearing, "we were not accepting the plea offer, m'am no. If we were accepting it, I would have spoken up and said, we don't want to go forward with a preliminary hearing, we want the plea offer." 5/24/17 Tr. Ill. 115-16. Iverson testified "that was the decision my client and I had made-my client had made" after "discuss[ing] his options." 5/24/17 Tr. 110-11. He insisted, "I don't make the decision." 5/24/17 Tr. 110. Once Defendant Knight was indicted in federal court, Iverson testified that he "wouldn't have been his lawyer at that point," regardless of Knight's satisfaction with his representation, "because I'm not admitted in Federal Court. And once it leaves D.C. Superior Court, it's not my case anymore, and that's the end of my representation." 5/24/17 Tr. 115.

         Testimony of ...

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