JOHN E. OTT, Magistrate Judge.
The cases referenced above are before the court on the motion of defendant Jeremy Travon Malone, to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255 and the amendment thereto. (Docs. 1 & 22).
On June 27, 2007, the Grand Jury issued a two-count indictment against Malone and his co-defendant, Taurus Javier Blackburn, charging them in Count One with conspiracy to distribute and possess with intent to distribute in excess of fifty (50) grams of cocaine base and cocaine powder, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (c) and 846. (07-0250 Doc. 1). In a second count, Blackburn individually was charged with distributing cocaine base and cocaine powder on June 1, 2006, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and (c). (Id.) Malone initially retained James R. Foley to represent him in this matter. (07-250 Doc. 2; Docket Entry dated July 18, 2007). Foley filed a motion to withdraw, which was granted, after Blackburn retained new counsel, Jerry S. Barclay. (07-250 Doc. 19; Docket Entry dated August 7, 2007).
Mr. Barclay filed several motions for disclosure of various documents and for disclosure of prior bad act evidence (FED. R. EVID. 404(b)) from the United States. (07-250 Docs. 20 & 21). They were complied with. Mr. Barclay also filed a motion to sever Malone's trial from that of his co-defendant. (Doc. 26). The motion to sever was denied. (Doc. 32). Ultimately, Malone and the United States were unable to reach a plea agreement, and the case proceeded to trial on January 7, 2008. The jury convicted both defendants (Blackburn and Malone) as charged on January 15, 2008. (07-250 Docs. 48 & 49).
The United States Probation Office prepared a Presentence Investigation Report ("PSR") on Malone. (07-250 Doc. 58 (Sealed)). Mr. Barclay filed objections to the report. (07-150 Doc. 52). He also filed a motion seeking the production of the drug evidence for weighing and analyzing. (Id. at Doc. 53). The motion was denied, but the court treated it as an objection to the presentence report. (Id. at Docket Entry dated May 1, 2008). On May 1, 2008, the court held a sentencing hearing. (Id. at Doc. 74). Malone was sentenced to 120 months in prison followed by 60 months of supervised release. (Id. at Doc. 60 (Judgment)).
Mr. Barclay timely filed a notice of appeal on Malone's behalf. (Id. at Doc. 62). He also filed a motion to withdraw as counsel. (Id. at Doc. 65). The motion to withdraw was granted, and new counsel, Mr. Raymond Johnson, Jr., entered a notice of appearance. (Id. at Doc. 77).
On appeal, the defendant challenged (1) the sufficiency of the evidence, (2) the use of extrinsic evidence under FED. R. EVID. 404(b), (3) the allowance of evidence concerning the defendant's resisting arrest and attempting to escape, and (4) the court's excusing of a juror for cause. On August 12, 2009, the Eleventh Circuit affirmed Malone's conviction and sentence in an unpublished opinion. (07-250 Doc. 93). Malone did not petition the United States Supreme Court for a writ of certiorari.
On April 26, 2010, Malone moved to vacate his conviction and sentence pursuant to § 2255. (Doc. 1). Therein, he asserts that Mr. Barclay rendered ineffective assistance of counsel when Barclay (1) wrongly advised him that it "did not matter" whether Malone conspired to possess powder cocaine or cocaine base, (2) failed to file a motion to suppress the seizure of the package containing the drugs in Los Angeles, California, and (3) failed to challenge the expert testimony concerning the composition of the drugs. (Id.) The United States responded with a lengthy memorandum. (Doc. 5). Malone next filed a reply. The court then determined that an evidentiary hearing would be necessary concerning the defendant's first claim — the information regarding cocaine and cocaine base. Counsel, Brian Clark, was appointed to represent the defendant for the hearing and for filing any objections to the court's findings, if appropriate. (Doc. Entry dated June 21, 2012).
The court conducted an evidentiary hearing on the first claim as to the events occurring prior to the trial of the case. The defendant and Mr. Barclay testified. The court thereafter afforded the parties an opportunity to submit briefs in support of their positions. The parties submitted briefs. (Docs. 19, 21, 22).
On May 6, 2013, counsel for the defendant, Mr. Clark, requested leave to withdraw from further representation of the defendant. (Doc. 23). The motion was denied. Counsel remains responsible for the representation of the defendant at this juncture.
The evidence adduced at trial establishes that on June 27, 2006, the defendant mailed a package from the Madison Lake Post Office in Huntsville, Alabama. (Doc. 84 at 235-38).
Two days later, Postal Inspector Norbert Jaworowski of the United States Postal Service saw Taurus Blackburn enter a post office in Los Angeles carrying a white box that he thought looked suspicious because the seams of the box were taped up so as to "cover up the openings."
Inspector Jaworowski pulled the package from the counter line and immediately inspected the label, taking note of the addressee and the sender information on it. (Id.) His inspection revealed that the return address was non-existent. (Id.) He called the sender's telephone number only to find that the line was disconnected. (Id. at 171). The totality of these circumstances left Inspector Jaworowski "fairly certain that there was something in the box that didn't belong there." (Id. at 168).
Jaworowski sent the package (unopened) to Postal Inspector Stephen Matthews in Birmingham, Alabama for further inspection. (Id. at 173). Inspector Matthews presented the package before a narcotics trained dog, who alerted to the presence of drugs inside the package. (Id. at 184-87). After obtaining a search warrant, Inspector Matthews opened the package and found two speakers filled with bags of what appeared to be powder cocaine, crack cocaine, and marijuana. (Id. at 187-95). Forensic tests conducted by Dr. Dale Forrester confirmed that the bags contained 82.37 grams of powder cocaine, 50.53 grams of cocaine base (crack), and 12.1 grams of marijuana. (07-0250 Doc. 84 at 358). Inspector Matthews testified that those quantities of cocaine and crack cocaine are typically associated with distribution (as opposed to mere personal use). (Id. at 327-28). He estimated that the street value of 50 grams of crack would be over $2,500 and the street value of 82 grams of powder cocaine would be about $4,000 to $4,500. (Id. at 330).
On July 3, 2006, Inspector Matthews arranged to have the package delivered to its intended destination. (Doc. 89 at 184, 196). The package arrived at the home of the defendant's mother,
After the grand jury returned its Indictment, police officers arrested the defendant in July 2007. (Id. at 395-96). They told him that he was being arrested for trafficking in cocaine and inspected his car, where they found a large two-gallon vacuum-sealed bag that contained marijuana residue. (Id.) While the lead officer was preparing a search warrant for the defendant's home, Malone slipped out of his handcuffs, squeezed through the metal partition of the police vehicle, and drove the police car two to three miles down the street. (Id. at 397). The defendant abandoned the car and hid in some bushes. (Id.) When police dogs found him, he fought both the dogs and the officers before he was subdued and taken into custody. (Id. at 397). Officers then executed a search warrant at the defendant's house and found six one-gallon bags of marijuana along with smaller bags and scales in the kitchen. (Id. at 397-98).
Agent Jeffery Rice testified at the hearing that the defendant had a distribution amount of marijuana in the residence, valued at approximately $6,000 to $7,000. (Id. at 402). Agent Rice also testified that the bags and scales were indicative of drug trafficking. (Id.)
Malone did not testify at trial. Through his counsel, the defendant conceded that he knew Blackburn and communicated with him from time to time and that he mailed a package to Blackburn using his own name, address, and telephone number. (Doc. 89 at 157-59). However, the defendant argued that there was never any indication that his package contained contraband and pointed out that someone in California (other than the defendant) put drugs in the package addressed to his sister. (Doc. 85 at 664-66). Co-defendant Blackburn testified at trial. The jury rejected Blackburn's testimony that he did not know there were drugs in the package when he shipped it from California. They further rejected his testimony that the speakers that Malone sent to him were sent back because they did not belong to him. The jury found both defendants guilty. Specifically, the defendant was convicted of conspiracy to possess with intent to distribute 50 grams or more of crack and 50 grams or more of cocaine. (Doc. 86 at 720).
As noted above, Malone asserts three grounds for relief, all of which involve challenges to counsel's effectiveness at the trial level. None of the claims have any merit.
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Constitution, Amend. VI. "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The applicable standard of review in examining claims of ineffective assistance of counsel is well-settled:
Cummings v. United States, 202 Fed. App'x 374, 377 (11th Cir. 2006). The Eleventh Circuit Court of Appeals has further stated:
Johnson v. Alabama, 256 F.3d 1156, 1175-77 (11th Cir. 2001).
It is well-settled that a court need not address both components of the ineffectiveness inquiry if the defendant makes an insufficient showing on one.
Strickland, 466 U.S. at 697.
Malone first contends that Mr. Barclay incorrectly advised him that it did not matter whether he would be convicted for distributing powder cocaine or for distributing crack cocaine. (Doc. 1-1 at 6). According to Malone,
(Id. at 7). Based on this information, Malone asserts that he did not testify even though he told counsel that he and Blackburn "had an agreement to possess eight (8) ounces of cocaine hydrochloride to be distributed in Alabama," which would have justified jury instructions on a lesser included offense.
(Doc. 5-1 at ¶ 9). Mr. Barclay also states that Malone never
(Id. at ¶ 12). Premised on the foregoing, the court deemed a hearing necessary. Counsel was appointed for the defendant, and a hearing was conducted. (Doc. 16 ("Hr. Tr.")).
At the evidentiary hearing, the defendant admitted to conspiring with Blackburn to distribute nine (9)
The defendant never told his counsel that he "did not agree to the cocaine base." (Id. at 8). He admitted that he never directly asked his attorney if it would matter whether he testified to trafficking in cocaine powder or crack cocaine. (Id.) Instead, he posed a hypothetical question to Mr. Barclay, asking what would happen if he testified that he only expected powder cocaine rather than powder cocaine with crack cocaine. According to the defendant, Mr. Barclay answered that such testimony would likely not matter because he most likely would be held accountable for what was found in the package. (Id. at 8-10). The defendant complained at the hearing that this answer angered him because he already knew about the disparity in the sentences for cocaine and crack cocaine. (Id. at 12). Following this response from counsel, he decided "to not reveal anything, just plead the Fifth and go — just say I didn't know about any drugs." (Id.) The defendant attributes his subsequent problems and ineffective representation to counsel's answer to the hypothetical question. (Id. at 33-34).
On cross-examination, the defendant admitted he could not remember what he told Mr. Barclay about the speakers being sent to and from California other than what ever he said, it was not the truth. (Id. at 18, 22-23, 25). Malone also stated that he "never told him [he] was expecting anything illegal in the package." (Id. at 19, 23-24). At one point in their conversations, Malone told Mr. Barclay that he was expecting the speakers. (Id. at 23). He also told Mr. Barclay that he would not cooperate with the prosecution against Blackburn because he did not know anything about the drugs. (Id. at 29).
Mr. Barclay testified that he could not recall being asked a hypothetical question by the defendant, but that he (Barclay) extensively talked with the defendant about the implications of cocaine, crack cocaine, the sentencing guidelines, and cooperating with the prosecutors. (See U.S.S.G. § 5K1.1).
The court finds the testimony of Mr. Barclay to be credible. It appears that the defendant was not being candid with his counsel, thus hampering his ability to represent Malone's interests. Mr. Barclay was as effective as he could be under the circumstances. He informed the defendant of the relevant substantive law, the applicable guidelines, and the prospect of cooperating in exchange for a more favorable recommendation from the prosecutor. His trial strategy was dictated, in large part, premised on the defendant's insistence that he did not know that the drugs were in the package when it was returned. Based on the representations of the defendant, counsel performed within the range expected of counsel. The choices were clearly the defendant's, and he must now accept the consequences for the same.
Furthermore, the court finds that the defendant's testimony precludes a finding of prejudice because he acknowledged that he was aware of the sentencing disparity between cocaine and crack cocaine before he posed the hypothetical to Mr. Barclay.
In sum, the court finds the defendant's first ineffective assistance of counsel claim to be without merit.
Malone next contends that Mr. Barclay rendered ineffective assistance by failing to challenge the search of the package containing the drugs. (Doc. 1-1 at 14). Specifically, Malone contends that Jaworowski's initial seizure of the package in Los Angeles, California, was in violation of the Fourth Amendment because there was no reasonable suspicion of criminal activity to justify the seizure at that juncture. (Id.) Malone defines the operative moment as when the package was removed from the normal flow of mail and held for further investigation. (Id. at 16). He also asserts that the evidence fails to demonstrate sufficient characteristics to justify a seizure under the "drug package profile." (Id.) Lastly, he asserts that the facts of this case suggest that a motion to suppress would have been successful. (Id. at 17).
The United States responds that Malone lacks standing to challenge the lawfulness of the seizure. (Doc. 5 at 24). The prosecution cites to United States v. Smith, 39 F.3d 1143, 1145 (11th Cir. 1994), in support of its position. They also assert that the seizure of the package was supported by reasonable suspicion. (Id. at 25-27). Malone retorts that Smith is inapposite, reasonable suspicion is lacking, and an evidentiary hearing on this issue is necessary. (Doc. 7 at 9-15).
The court in United States v. Arrendondo, 2012 WL 1677055 (M.D. Fla. May 14, 2012), articulated relevant principles for this discussion. The court stated:
In the present case, Malone did not have a legitimate expectation of privacy in the package at the time it was initially seized. In United States v. Pierce, 959 F.2d.1297 (5th Cir. 1992), the Fifth Circuit Court of Appeals held that where the defendant is neither the sender nor the addressee on the package, he has no privacy interest in the same. Id. at 1303. The court further noted that because the "only [admitted] interest in suppressing the package and its contents [was] to avoid its evidentiary force against him," his Fourth Amendment claim of standing was rejected. Id.; See also United States v. Parks, 119 Fed. App'x 593, *4 (5th Cir. 2004) (same) (citing United States v. Givens, 733 F.2d 339, 341-42 (4th Cir. 1984); United States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (both holding that a defendant who was neither the sender nor the addressee of the package lacked standing to contest the legality of its search)). In the present case, the defendant was neither the sender nor the addressee. His only asserted interest is to avoid its evidentiary force against him. Accordingly, he does not have a legitimate expectation of privacy in the package sent by Blackburn to Malone's mother's address and addressed to his sister.
Even if standing is assumed,
As noted above, the right to be free from unreasonable seizures includes one's mail. Van Leeuwen, 397 U.S. at 251. However, the Fourth Amendment is not violated by detaining mail until a search warrant can be obtained based on facts that create reasonable suspicion. Id. at 252-53; see also United States v. Banks, 3 F.3d 399, 403 (11th Cir. 1993) (per curium). To determine whether the handling of a package is supported by reasonable suspicion, the court must look to the "totality of the circumstances" "to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002). The court must permit "officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'..." Id. (citations omitted). The only relevant admonition by the Arvizu Court was that "an officer's reliance on a mere `"hunch" `is insufficient to justify a stop...." Id. at 274 (citations omitted). Counterbalancing that admonition, the Court stated that "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard...." Id. (citations omitted). However, even if the initial seizure of a mailed package is valid, a continued detention could at some point become an unreasonable seizure within the meaning of the Fourth Amendment. Van Leeuwen, 397 U.S. at 252, 90 S. Ct. at 1032. The Court's discussion in Van Leeuwen while not directly on point, is instructive:
Van Leeuwen, 397 U.S. at 252, 90 S. Ct. at 1032. The Court also stated,
Id.
The detaining officer in this case, Inspector Jaworowski, articulated particularized and objective grounds at the initial suppression hearing explaining why the package appeared suspicious. (See Doc. 89 at 166-67, 171-72). Jaworowski was an experienced postal inspector assigned to the narcotics team. (Id. at 166). He had thirty years in law enforcement, and, according to the defendant, 9,950 successful stops of suspicious packages.
The totality of the facts created a reasonable suspicion that the package contained contraband sufficient to justify detaining the package until a search warrant was issued.
Lastly, Malone alleges that Mr. Barclay was ineffective in failing to challenge the evidence establishing that there was cocaine base in the package. (Doc. 2 at 18-25). Specifically, he challenges the testimony of Inspector Matthews, asserting that Matthews was not properly questioned concerning his assessment. (Id. at 19-20). He also challenges the testimony of the prosecution's expert, Dr. Forrester, asserting that he (Forrester) conflated the terms "crack" and "cocaine base," despite the legal differences. (Id. at 18-24). Although the defendant abandoned this claim at the evidentiary hearing, the court will address the same for completeness. (Doc. 16 at 25).
The trial testimony clearly established that "Exhibit 24" was 50.53 grams of the crack form of cocaine base. Contrary to the defendant's assertions, Matthews was qualified to testify about his assessment, Forrester did not state that crack cocaine is the only form of cocaine base, and the evidence was sufficient to hold the defendant accountable for his conduct. Additionally, The defendant has not produced any evidence demonstrating that the drugs were anything else. Finally, his challenges to the cross-examination, or lack thereof, concerning Matthews and Forrester are insufficient to warrant relief. Nothing the defendant asserts demonstrates that Forrester's methods were out-of-the-ordinary, unreliable, or subject to challenge. To the contrary, he used infrared spectroscopy, a well-accepted scientific testing method that can accurately identify chemical compounds, including crack cocaine. (Doc. 2 at 32; Doc. 7 at 23-26). There is no doubt that Dr. Forrester's technique is sound and that his conclusions are accurate. Similarly, nothing in the record demonstrates that the testimony of Inspector Matthews was unreliable or otherwise untrustworthy.
For the foregoing reasons, Malone's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (10-8020 Doc. 1) is without merit and due to be denied. It is so
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L. Ed. 2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. The filing of objections generally is not a proper vehicle to make new allegations or present additional evidence. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Objections not meeting the specificity requirement set out above will not be considered by a district judge.
A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.
(Id. at 12).
Id., 905 F.2d at 1380, n.1.
