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United States v. James

United States District Court, District of Columbia

May 15, 2019

UNITED STATES OF AMERICA
v.
ANTHONY MARCELLUS JAMES, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         In 2013, Defendant Anthony James was tried and convicted of possession with intent to distribute 28 grams or more of cocaine base. He represented himself at trial, although attorney Edward Sussman assisted in certain respects as standby counsel. On appeal, James argued that Sussman was constitutionally ineffective, principally because he had subpoenaed several witnesses for the wrong date, rendering them unable to testify at trial. Declining for the time being to decide whether a pro se defendant even has a constitutional right to effective standby counsel, the Court of Appeals remanded the claim to this Court to “determine whether standby counsel's performance was deficient and prejudicial.” United States v. James, 719 Fed.Appx. 17, 18 (D.C. Cir. 2018). With the benefit of an evidentiary hearing and further briefing, the Court now rejects Defendant's claim because any ineffectiveness did not prejudice his case.

         I. Background

         The Court explains in some detail the three stages of legal proceedings: first, Defendant's trial and conviction; second, his appeal; and last, the remand proceedings before this Court.

         A. Trial

         James was charged with possession with intent to distribute 28 grams or more of cocaine base, which was recovered in a search warrant executed in May 2012 on his apartment at 1100 21st Place, NE, in Washington. The centerpiece of his current claim - as in many ineffective-assistance-of-counsel situations - is what transpired at trial. The Court will, accordingly, give a somewhat lengthy account of the proceedings there.

         James's case was originally assigned to Judge John D. Bates, who presided over most of the pre-trial proceedings. For the first several months after his arrest, Defendant was represented by David Bos of the Federal Public Defender's Office. Bos withdrew after James grew dissatisfied with his representation and was replaced by attorney Edward Sussman. See ECF Nos. 14, 16. The relationship with Sussman, however, fared little better. Defendant thus indicated to the court on May 2, 2013, that he wished to proceed pro se and forgo Sussman's - or any other attorney's - representation. See ECF No. 151 (Tr. Status Hearing 5/2/13) at 3-5. At a hearing, Judge Bates engaged in an extended colloquy with James to insure that he understood the risks of that decision. Id. Satisfied that Defendant had “articulately and unmistakably asserted his rights under Faretta v. California, 422 U.S. 806 (1975), ” and that he “[wa]s aware of the seriousness of the charges against him and [wa]s cognizant that proceeding without the assistance of a trained lawyer constitutes a distinct handicap, ” the court found that the waiver of Defendant's right to counsel was “voluntary, knowing, and intelligent.” See ECF No. 43 (Order on Pro Se Representation). It thus allowed James to represent himself.

         At the same time, the court directed Sussman to remain in the case, but now as standby counsel. Id. Sussman's role, Judge Bates explained, would be to give Defendant “advice and some assistance in the courtroom and outside of the courtroom.” Tr. Status Hearing 5/2/13 at 13. James, however, would “be in charge” and responsible for “making the decisions.” Id. at 22. During the same hearing, Defendant also inquired into whether he could have assistance investigating the case and gathering witnesses - efforts that Sussman had been spearheading. Id. at 6, 22. Judge Bates explained that he could have the assistance of the same investigator who had been working with Sussman so far, but what investigation should be pursued would be James's “decision, ” within reasonable bounds. Id.

         Several weeks before trial, the case was reassigned to Judge Robert L. Wilkins. With James continuing to represent himself, trial began on July 10, 2013. Proceeding over three days, the Government offered the following evidence in its case-in-chief. The U.S. Park Police executed a warrant at the apartment Defendant shared with his adult son, Anthony Dunn; the two, who were the sole residents and leaseholders, were also the only ones present that day. After entering the apartment, the officers handcuffed both men and placed them on a couch in the living room. See ECF No. 99 (Tr. D a y 2) at 256-57, 261. While an officer was asking Dunn for basic identifying information, “Mr. James interrupted and stated, ‘My son doesn't know anything about this. I'm taking all of this.'” Id. at 265. When Defendant made that statement, the officers had not yet found any contraband in the apartment. Id. at 266. A detective advised James of his Miranda rights, and he declined at that point to answer further questions. Id. at 267.

         In the subsequent search, the police found in the kitchen and dining area 4.9 grams of cocaine base packaged in small plastic bags and 33.3 grams of cocaine base in one larger plastic bag. See ECF No. 100 (Tr. Day 3) at 349-55, 389. They also discovered several hundred small unused plastic bags, two digital scales, a false-bottom Dr. Pepper can with some white residue on the interior, and a bulletproof vest. Id. at 357-69. During the search, James interjected again that his son did not know about anything in the apartment. See Tr. D a y 2 at 268. Officers reread Defendant his Miranda rights - which he now agreed to waive - and began questioning him about the contraband. Id. at 268-72. According to the lead detective, James made statements taking responsibility for the cocaine in the apartment and identified where and in what amounts it would be found along with its cash value; on cross-examination, the detective admitted that James may have known that the officers had recovered narcotics before making some of these admissions. Id. at 268-78, 295-96. Officers also found over $300 in cash on Defendant after he was arrested. See Tr. Day 3 at 330-31. An expert testified that the amounts of cocaine found in the apartment and the manner in which it was packaged were indicative of a mid-level distributor. Id. at 499-501. Several stipulations were also presented to the jury, including one in which Defendant admitted that within 72 hours before May 1, 2012, a person purchased $20 of crack cocaine from a woman in his apartment. See Tr. Day 2 at 284-85; ECF No. 69-3 (Stipulation).

         In addition to vigorously cross-examining the Government's witnesses, Defendant put on his own case. On July 16, the fourth day of trial, he began his defense by calling Detective Glenn Luppino, who also participated in the search of the apartment. Under Defendant's questioning, the witness - consistent with the lead detective - agreed that James could have seen some of the contraband the police recovered from where he was seated in the living room. See ECF No. 101 (Tr. Day 4) at 551. Defendant then called his next-door neighbor, Angela Pearson. She testified that James's wife had not been living at his apartment in the past several months, that James had been out of town the several days before the police raided his apartment, and that there are frequent break-ins in the neighborhood. Id. at 564-66. Last, Defendant gave wide-ranging testimony on his own behalf. Among other things, he said that he was in North Carolina in the days before the police arrived, that many other people had keys to his apartment - including his then-girlfriend, Porsha Foster, who stayed over five nights a week and kept personal items there - that neither he nor his son knew anything about the drugs the police had recovered, and that he only made statements to police about the cocaine to prevent his son from being arrested. Id. at 570-604. After testifying, Defendant was asked by Judge Wilkins if he had any other evidence. James said that he did not and thus rested his case. Id. at 618.

         The same afternoon, the Government put on a brief rebuttal case. It first called Porsha Foster, who testified that she stayed over at James's apartment several times a week and that she had seen him on a previous occasion within several months of his arrest bagging cocaine in his living room. Id. at 633-36. The second rebuttal witness was Delonte Black, a confidential informant for the Park Police. Black - consistent with the stipulation previously entered into evidence - testified that he had purchased crack cocaine from a woman in James's apartment about a week before the search warrant was executed. Id. at 641-66. Upon questioning from the Government, he identified that woman as Defendant's wife. Id. at 666. Black also testified that two days before the police searched the apartment, James had given another man in the neighborhood cocaine in exchange for washing his car. Id. at 668-69.

         With an eventful day four drawing to a close, Defendant sought to present a surrebuttal case, seeking to call his investigator, Robert Versis, to testify to statements Porsha Foster had made that were inconsistent with her rebuttal testimony. Id. at 683-84. The Court allowed the testimony on this narrow issue. Id. at 685-86. Versis then averred that Foster had told him on the phone that she had never seen Defendant sell or possess drugs. Id. at 688. James then rested his surrebuttal case, and the evidence closed. Id. at 690.

         July 17, the trial's fifth day, was not without drama of its own. As the parties were discussing the proposed verdict form before closing arguments, James interjected to point out his “wife, who was supposed to be here to testify for [him] yesterday, subpoena wasn't renewed from the old one she had last week, so she wasn't aware that she was supposed to have been here yesterday to give testimony.” See ECF No. 102 (Tr. Day 5) at 707. Tania James, who was present in the courtroom, handed up her subpoena to Judge Wilkins, who inquired as to why it was dated July 17, rather than July 16 or another earlier date. Id. at 708. Sussman did not know why it said that date, though he wondered aloud whether the defense case at one point had been expected to begin on the 17th. Id. at 708-09. He further explained that Versis, the defense investigator, had tried to reach Tania on the 16th but had been unable to do so, and they “just continued on.” Id. at 708. James then interjected that another witness, Lynetta Church, had also received a subpoena for the 17th. Id. at 709. When the Court inquired of Defendant why he had not insured that Ta n i a or Church was present on the 16th or asked for a bench warrant, he explained that he thought they were subpoenaed for that day and “just didn't show up.” Id. at 710. And because he thought they had chosen not to show up, rather than that they had been subpoenaed for a different day, he did not ask for a bench warrant or a continuance. Id. at 710- 12. Judge ...


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