Bond v. U.S.

• Decision Date: 06 August 1993
• Docket Number: No. 92-3289,92-3289
• Parties: Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

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1 F.3d 631

Earl Dean BOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-3289.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1993.

Decided Aug. 6, 1993.

Alan G. Kimbrell (argued), St. Louis, MO, for petitioner-appellant.

Robert T. Coleman, Asst. U.S. Atty., Thomas Edward Leggans (argued), Crim. Div., Fairview Heights, IL, for respondent-appellee.

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Earl Dean Bond appeals from the denial of his 28 U.S.C. Sec. 2255 motion to vacate, correct, or set aside his sentence. Because we conclude that the district court erred in barring Bond's ineffective assistance of counsel claim, we reverse its judgment and remand for further proceedings.

I. FACTS

A jury convicted Bond of engaging in a continuing criminal enterprise (CCE); conspiring to distribute cocaine and more than fifty kilograms of marijuana; and attempting to possess with the intent to distribute more than fifty kilograms of marijuana. He appealed, and we affirmed. See United States v. Bond, 847 F.2d 1233 (7th Cir.1988). As a result of his conviction and sentence, Bond forfeited approximately $128,000 discovered in a brown suitcase that was seized by drug enforcement agents from a hotel room in Chesterfield, Missouri. That seizure and the admission of the money into evidence at his trial are the focal points of Bond's section 2255 motion and this appeal. Bond contends that agents seized the suitcase pursuant to an invalid search warrant, which was subsequently quashed by a state court judge. Conceding that the warrant was invalid, the government maintained at Bond's trial that the search and seizure were nonetheless justified under the exigent circumstances exception to the warrant requirement. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct 1942, 1949, 56 L.Ed.2d 486 (1978); United States v. Hughes, 993 F.2d 1313, 1315 (7th Cir.1993).

Bond's section 2255 motion focuses primarily on the fact that his trial counsel did not move to suppress the allegedly improper evidence until the trial was well under way. The district court found the motion untimely and admitted the money into evidence. Bond also claims that his trial counsel should have made an offer of proof as to why suppression would have been appropriate.

At a hearing on the section 2255 motion, Robert Ciuffa, an attorney who represented Bond in Missouri state court, testified that he had convinced a state court judge to quash the warrant pursuant to which Bond's bag had been seized and to order that the suitcase and money be returned to Bond. Ciuffa recalled that at the state hearing, an Assistant United States Attorney had not disputed Bond's contention that the suitcase had been seized pursuant to the search warrant alone. ¹ After the state judge quashed the warrant, Ciuffa obtained the suitcase and money from the St. Louis County Police Department. But before long, federal drug enforcement agents seized the items from Ciuffa without a warrant and without arresting Bond. Bond had not yet been indicted on federal charges at that time.

Bond also testified at the section 2255 hearing. Bond said that two months prior to trial, he had told his trial attorney about the seizure of the suitcase from the hotel room, explaining that he "felt that the Government was going to use that as part of [its] evidence...." (Dec. 19, 1991 Tr. at 19.) He had informed his new counsel that Ciuffa had been successful in quashing the warrant and that Ciuffa "had all the records and that he should be contacted to help us on a suppression motion." (Id.) According to Bond, he and his trial counsel had discussed the filing of a motion to suppress "on numerous occasions," and his attorney had "said that he would contact Mr. Ciuffa and get all the records and make arrangements to file a motion to suppress." (Id. at 19-20.) Finally, Bond testified that he had asked his counsel about the motion to suppress on the first day of his trial, and counsel had told him "that it had been filed but it had been denied." (Id.)

In fact, Bond's attorney had never filed a motion to suppress. Instead, he raised the issue for the first time during the third week of trial, when he told the district court that the money had been seized by drug enforcement agents and that it should be excluded from evidence because its admission would violate both the Missouri and United States Constitutions. The exchange that then took place between the district court, Bond's trial attorney, and the government attorney seemingly contradicts Bond's account inasmuch as it suggests that his trial counsel had been unaware until, at the earliest, the week before Bond's trial that the search warrant had been quashed:

[Bond's Counsel]: That document [the order quashing the search warrant] wasn't given to me. It was laying out here in the courtroom Monday when we started to pick the jury. Quite frankly, I didn't catch it. I don't see much problem with stopping the evidence now regarding it, but I do think that as long as it's been declared, the search and seizure were declared unconstitutional by a recognized Court, that it shouldn't proceed.

MR. MERKEL: ... [I]n regards to the material that [counsel] has, we talked the week before trial about that material, and I told him about the suppression of it over in St. Louis, and we met in my office, and he didn't have enough time to stay, and I said I would get it to him as quickly as I could, the additional copies of documents that had not been provided, as far as I could tell, up to that time. We copied those and I laid them out here for everybody the morning that we picked the jury, Monday, and that's correct, but there was discussion about it before that time. As to, and there is a search warrant involved in what happened with DEA that was never in fact executed as far as I can tell, but which was returned and the money listed as what was seized.... There was a state court judge that ordered that money returned. It was returned to Mr. Bond's attorney at that time, and reseized immediately by DEA pursuant to the arrest that they effected, and that's what they did, as my evidence would show, they arrested them on that date, went down, printed them, and everything else and then they were released, per our instructions, for future indictment. Our theory is that that was, that was seized pursuant to the arrest.

THE COURT: The second arrest.

MR. MERKEL: The arrest occurred at the time that they were armed with a certain warrant. They had a search warrant in their back pocket which they did not use, but they made a return on it....

THE COURT: They seized the money after they had given it back to them.

MR. MERKEL: It has been suppressed. I don't think that that's binding on this Court. Number one, I think that's a question that can still be answered here. Number two, this is in the form, I think, of a motion to suppress, and I think it's awfully late in the game to be raising that question. I mean, that's a pretrial motion, as I understand it, under Rule 12.

[Bond's Counsel]: It would be awful tough to have done that when you get the document in and of itself on the day that the trial begins. As far as the discussion the week before that, he may have mentioned it.... There was an awful lot of talking going on with a lot of people. But at the same time, but I think that once a court of competent jurisdiction has found that evidence to be suppressed and that was it was illegally seized--

THE COURT: Here is what I have a problem with, they seized it, and it was suppressed, then they seized it again. Well, the second seizure has never been suppressed.

* * * * * *

THE COURT: I am going to leave it like it is. Let's go.

(Trial Tr. at 449-51, Bond App. at 11-13.)

Bond ultimately was convicted, and he retained new counsel on appeal. Bond testified at the section 2255 hearing that he discussed with appellate counsel the possibility of raising the suppression issue on appeal and that he never instructed counsel to abandon the issue. (Dec. 19, 1991 Tr. at 22.) Nonetheless, his appellate counsel did not raise the ineffectiveness of counsel claim Bond now pursues or the related claims that follow from it. Instead, Bond's direct appeal challenged only the CCE conviction, the sufficiency of the evidence supporting it, and the sufficiency of the CCE count in the indictment. We rejected these arguments and affirmed Bond's conviction. See Bond, 847 F.2d at 1236-40.

Bond's section 2255 motion advances essentially the same arguments he raised on direct appeal, but on different factual grounds that focus on the cocaine charges. The linchpin of his motion is the new claim that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to keep from the jury evidence purportedly seized in violation of the Fourth Amendment.

II. ANALYSIS

A defendant may challenge his conviction under section 2255 on a ground not raised on direct appeal only by showing: (1) both good cause for his failure to raise the issue on direct appeal and actual prejudice from the newly-asserted errors (see United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)); or (2) that the district court's refusal to consider the issue on procedural grounds would lead to a fundamental miscarriage of justice. See Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986). The district court dismissed Bond's motion, finding no cause for his failure to raise the issues on direct appeal.

One possible cause for a movant's failure to raise the ineffectiveness issue on direct appeal may be that appellate counsel were themselves ineffective. See Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). For instance, appellate counsel may be "constitutionally deficient in omitting a dead-bang winner even while zealously pressing...