DENISE COTE, District Judge.
Joseph Jordan filed a
This criminal case is over a decade old. On February 14, 2008, Jordan was indicted in the Southern District of New York. On August 26, 2008, a twelve-count superseding indictment ("Indictment") was filed against Jordan. Trial on five counts of the Indictment, counts which principally charged Jordan with witness tampering and transmitting threatening communications, began on October 6, 2008. On October 16, the jury found Jordan guilty of each of the five counts. On September 16, 2009, Jordan was sentenced to forty years' imprisonment. On March 9, 2016, the conviction was affirmed by summary order.
In brief, the evidence at trial established that Jordan met a woman ("Victim") in New York City in July 2007. Their relationship quickly became verbally and physically abusive. On December 3, the Victim and her mother fled New York City, arriving ultimately at her sister's house in Virginia. Jordan located the Victim and harassed and threatened the Victim, her mother, his sister and her brother-in-law with telephone calls. Jordan posted the telephone number for the Virginia residence on the website Craig's List. Strangers began to call that home in response to advertisements for sex and for housing. The relatives changed their telephone number and contacted the police, but Jordan found the new number.
During this same time, Jordan harassed the Victim's former boyfriend as well. Jordan made threatening calls to him and many strangers called the man in response to Craig's List and print advertisements for sex and housing.
Jordan also registered a domain name with the Victim's name and posted messages on the website explaining that he had hurt her physically and emotionally. Fearing for her life, in mid-December the Victim fled to London to stay with her aunt in her aunt's official London residence. The aunt was the Ambassador of Trinidad and Tobago to Great Britain ("Ambassador"). Jordan began calling the Ambassador's residence and the Embassy. The Ambassador called the police and changed the telephone number of the official residence. The Victim and the Ambassador then began receiving facsimiles at the Embassy, as well as emails and texts which contained threats to attack the Ambassador's residence and to kidnap the Victim. Some of the facsimiles contained allegations of misconduct by the Ambassador's husband.
Jordan was arrested in New York on January 11, 2008, and held in custody. After his arrest, he began writing letters in an unsuccessful effort to discourage the Victim and the Ambassador from testifying against him. In some of these communications he used his own name; sometimes he forged the names of others, including on an affidavit purporting to come from his ex-wife ("Affidavit"). Among other things, the Affidavit asserted that his ex-wife would testify at trial to the defendant's good character. The Affidavit's assertions and authenticity were refuted at trial by a testimonial stipulation executed by Jordan, his counsel and the Government.
Jordan also sent fabricated documents to Trinidad and Tobago government offices including a purported press release from "Jordan Family Media Relations." The press release contained defamatory allegations about the Ambassador's husband and predicted that those allegations would be explored at trial. It asserted that the Ambassador's transfer to a post in the United States "has been delayed pending discussion to resolve the legal case without trial — a trial that may prove a huge embarrassment for the government of Trinidad and Tobago." The Ambassador testified to the emotional distress and professional humiliation that these communications caused.
This Court has issued three prior Opinions in this case. Of particular significance to this habeas petition, Jordan's motion to set aside the jury's verdict was denied.
In due course, CJA counsel for Jordan made a motion to set aside the verdict or grant a new trial on several grounds, including that Jordan's trial attorneys were ineffective. CJA counsel attached to his submission nearly 100 pages that Jordan wanted to be considered on the motion, and later submitted an additional 25-page memorandum prepared by Jordan.
The pre-sentence motion for a new trial included the following claims that his trial counsel was ineffective. Jordan argued that the representation they provided to him was deficient because his defense counsel compelled him to accept the testimonial stipulation that eliminated the need for his ex-wife to testify at trial; they decided not to contest the issue of identity; they failed to prepare him adequately to testify; they failed to call certain witnesses he had identified for his defense; and generally they did not consult with him sufficiently in preparation for the trial.
In addition to arguments regarding the deficiencies in trial counsel's performance, the motion for a new trial raised other issues relevant to the pending petition. These include challenges to the trial's fairness on the basis of the Government's summation arguments to the jury, the fears expressed on one occasion by two jurors, and alleged deficiencies in the jury charge.
Jordan has filed the following materials in connection with this
The Government's opposition to the motion was filed on July 6, 2018. On August 17, the Court granted Jordan's request to receive copies of the documents he had submitted to the Court in support of his petition. On August 17, Jordan's time to reply to the Government's submission was extended to September 21. Jordan's reply was received by the Court on October 1, and his special appendix was filed on October 5. On February 13, 2019, Jordan requested appointment of counsel and an evidentiary hearing. On May 7, he requested a certificate of appealability in the event his petition is denied.
Jordan contends in this petition that the two Federal Defenders who represented him at trial provided ineffective assistance. When making a claim of ineffective assistance, a petitioner must show that "defense counsel's performance was objectively unreasonable" and that "the deficient performance prejudiced the defense."
Jordan has failed to show that any of the alleged deficiencies in his attorneys' performance at trial prejudiced him. The Government's evidence that Jordan committed the crimes with which he was charged was substantial.
As the summary order affirming the conviction observed, the Government's evidence included Jordan's transmission of seven specific threats, such as the threat that he would take the Victim "off the planet." The Court of Appeals observed that the evidence that Jordan "knew that his communications would be interpreted as threats was overwhelming and essentially uncontroverted." Because Jordan has not shown that the jury verdict would have been any different if his counsel had performed differently at trial, this petition can be denied on that ground alone. In any event, as described below, Jordan has also failed to show that his counsel's performance was constitutionally deficient.
Jordan asserts that he was precluded from testifying and that his counsel did not adequately prepare him to testify. Jordan made this claim in his motion to set aside the verdict, and it was rejected in the December 2008 Opinion. 591 F. Supp. 2d at 714-17. On his direct appeal, he also asserted that there had been a violation of his right to testify. That claim was considered and determined by the Court of Appeals to be without merit.
As described in the December 2008 Opinion, Jordan requested and was given an opportunity to consult with independent CJA counsel regarding his right to testify. That attorney assured the Court that Jordan was aware of his right to testify or not to do so. The Court also gave Jordan detailed instructions regarding his right to testify. Jordan, who was an active participant in his defense, had prepared a lengthy outline of his anticipated testimony for his attorneys to review. There was a five-day break in trial proceedings just before the day on which Jordan would have taken the stand and he consulted with his attorneys about his possible testimony during that break. His attorneys also gave Jordan a written outline of the questions they planned to ask him should he decide to take the stand. In the end, fully advised of his rights, Jordan decided not to take the stand.
In this petition, Jordan complains that his trial counsel erred in listing a 1992 prior conviction for assault with a dangerous weapon in their outline of his direct testimony. Assuming that the inclusion of that conviction on the outline was an error, that error does not provide a basis to find that counsel was constitutionally deficient in advising Jordan about his right to testify or in preparing him to take the stand. Nor is there any basis to find that the error had any impact on his decision not to testify. This issue was explored in detail in the December 2008 Opinion, and it is rejected again for the reasons explained there.
Jordan asserts that his counsel failed to obtain the dismissal of two jurors who mentioned during the trial that they were concerned about Jordan's access to their personal information. This claim is not properly brought as an ineffective assistance claim through a habeas petition; it is not actually a claim premised on defense counsel's performance. This claim, which challenges the fairness of the trial proceedings, was raised in Jordan's motion for a new trial and rejected in the December 2008 Opinion. 591 F. Supp. 2d at 720. In his direct appeal Jordan also asserted that the Court erred in responding to this juror issue, and the Court of Appeals rejected it on the merits.
This claim arises from the fact that two jurors expressed fear of the defendant the day before deliberations began.
Jordan complains that his attorneys should have but did not object to a Government argument at summation, which Jordan inaccurately describes in his petition as an argument that the defendant "could not" dispute the evidence against him. He asserts that the prosecutor's argument was an improper comment on his failure to testify.
In his petition, Jordan cites to pages 856-57 of the trial transcript as the passage containing the objectionable comments by the Government. In this part of its summation, the Government briefly outlined critical evidence on two of the five counts tried before the jury, pointing out several times that there was "nothing in dispute" or "no dispute" about portions of the evidence. For instance, "there's no dispute that he sent the faxes," referring to Jordan and faxed communications that had been received into evidence.
The Government's summation argument cannot fairly be construed as a comment on the defendant's failure to take the stand in his own defense. At no point during its summation did the Government refer to Jordan's failure to testify at trial, and the passage to which Jordan points does not contain an implicit comment on the matter. The Government is entitled to describe the evidence presented during trial and to draw the jury's attention to those facts in dispute and those about which there is little or no dispute. "Although the government cannot comment on a defendant's failure to testify, it is permissible to draw the jury's attention to the fact that a defendant did not call witnesses to contradict the government's case or support his own theory of what happened."
Jordan makes several arguments regarding the scope of Section 1512(b) of Title 18, United States Code, which is the statute underlying his convictions on Counts Four and Five. Among other things, § 1512(b) makes it a crime for a defendant knowingly to use intimidation, threats, or corrupt persuasion with the intent to prevent the testimony of a person in an official proceeding. 18 U.S.C. § 1512(b). The jury found that Jordan knowingly used intimidation and threats with the intent of influencing or preventing the testimony of the Victim and the Ambassador, in Counts Four and Five, respectively. 591 F. Supp. 2d at 700. Jordan made several arguments on direct appeal about these two counts and § 1512(b).
While Jordan has expanded on his protected speech argument in the instant petition, the time to make these arguments was on direct appeal. The constitutional challenge to the statute, which Jordan suggests, was rejected in
Jordan principally makes two arguments about his counsel's performance in connection with the § 1512(b) charges. He contends that his attorneys should have more actively pursued the affirmative defense that the communications on which his conviction was based, such as the press release sent to Trinidad and Tobago government offices and his post-arrest correspondence with the Victim, were "truth-seeking" communications. On the other hand, he also appears to argue that his counsel should not have asked for a charge on the affirmative defense of truth seeking unless counsel were going to argue in support of that defense in the defense summation.
The draft jury charge, distributed to both Jordan and his attorneys before the charging conference, contained a charge on this affirmative defense. In response to the Court's inquiry, Jordan's counsel requested that the affirmative defense remain in the charge. Accordingly, the jury was instructed on the affirmative defense. The Court advised the jury,
The failure by defense counsel to argue on summation that Jordan's communications were intended to seek truthful testimony, as opposed to an effort by Jordan to dissuade witnesses from participating in the trial, does not constitute a failure to represent him effectively. Defense counsel represented Jordan vigorously. They were entitled to use their best judgment about what arguments would have the most impact during summation.
Jordan argues that his counsel should have sought a jury charge on 18 U.S.C. § 1512(d) as a lesser-included offense of Count Five, which was charged under § 1512(b). In particular, Jordan suggests that the press release sent to the Trinidad and Tobago government offices constituted only "harassment" punishable under § 1512(d), not an offense under § 1512(b).
A defendant is entitled to a lesser-included offense instruction under federal law "
Applying this test, § 1512(d) is not a lesser-included offense of § 1512(b). Section 1512(d) requires proof that the defendant (1) intentionally harassed another person, (2) thereby hindering, delaying, preventing, or dissuading any person, (3) from attending or testifying in an official proceeding. Section 1512(b), by contrast, requires proof that the defendant (1) knowingly used intimidation, threatened, corruptly persuaded, or engaged in misleading conduct towards a person, (2) with the intent to influence, delay, or prevent the testimony of any person in an official proceeding. In short, § 1512(d) requires proof that the defendant engaged in intentional harassment, while § 1512(b) contains no such element and can instead be violated through knowing corrupt persuasion or misleading conduct. Thus a violation of § 1512(b) does not necessarily entail a violation of § 1512(d), and no instruction on the latter would have been appropriate under Rule 31(c). Jordan's attorneys therefore committed no error in declining to seek such an instruction.
It is true that the Second Circuit has, in
In any event, Jordan was not prejudiced by the fact that counsel did not request an instruction on § 1512(d) because — even had such an instruction been given — there is no reasonable probability that a jury would have acquitted him of the offense charged in Count Five. As described above, the press release sent to government offices of the Trinidad and Tobago made defamatory allegations about the Ambassador's husband and predicted that those allegations would be explored at Jordan's trial. It also asserted that the Ambassador's transfer to the United States had been delayed pending discussions "to resolve the legal case without trial — a trial that may prove a huge embarrassment for the government of Trinidad and Tobago."
The press release provided compelling evidence that Jordan acted knowingly to intimidate the Ambassador, which requires proof that his threatening words created a reasonable likelihood that the Ambassador would be in fear of harm; to threaten her, which requires proof that the words were designed to arouse fear that he would cause harm; and to corruptly persuade her, which requires proof that he acted with wrongful intent while conscious that his conduct was wrongful.
Jordan complains that his attorneys erred in not moving to suppress mail he sent to the Victim following his arrest. Jordan explains that these letters were part of the evidence supporting Count Four's witness tampering charge.
As described in the December 2008 Opinion, following his arrest, Jordan began to write letters to dissuade the Victim and the Ambassador from testifying against him at trial. 591 F. Supp. 2d at 702. Jordan mailed some of those letters to a friend with directions on how to locate the necessary addresses and instructions to forward them to their intended recipients.
Jordan has failed to show that any motion to suppress the correspondence provided to the Government by a third party would have succeeded. Jordan had no expectation that the letters would remain private after they left his possession.
Jordan contends that his attorneys provided ineffective assistance when they stipulated regarding the testimony that his ex-wife would provide if called as a trial witness. Jordan raised this same issue to attack his trial attorneys' performance in his motion for a new trial, and it can be rejected again for the reasons previously given. 591 F. Supp. 2d at 712-13.
In brief, as part of the evidence offered in support of Count Four, which charged Jordan with using intimidation and threats with the intent of preventing or interfering with the Victim's testimony, the Government introduced into evidence the Affidavit, purportedly from his ex-wife, that Jordan fabricated and sent to the Victim. The stipulation, which Jordan personally executed, made the ex-wife's testimony about the authenticity and accuracy of the Affidavit unnecessary.
As explained in the December 2008 Opinion, there were compelling reasons why Jordan would have wanted to keep his ex-wife from testifying about the Affidavit. Moreover, Jordan not only signed the stipulation that made her testimony unnecessary, but also affirmed to the Court several hours after he executed the stipulation that he stood by it.
In his petition, Jordan does not acknowledge that he himself signed the stipulation and that he was examined about his execution of the stipulation by the Court. Nor does the petition acknowledge that the ex-wife had flown to New York and was at the courthouse and prepared to testify if the stipulation had not been executed.
The Court has considered each of the arguments made by Jordan regarding the performance of his trial counsel and finds no basis for concluding that this petition should be granted on the ground that they provided him with ineffective assistance. The request for a hearing is also denied.
Because Jordan has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue.
