Olden v. U.S.

Decision Date10 December 1999
Docket NumberNo. 98-1085,98-1085
Citation224 F.3d 561
Parties(6th Cir. 2000) Andre Olden, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-70998--Patrick J. Duggan, District Judge. [Copyrighted Material Omitted] Vicki L. Carmichael, Jeffersonville, Indiana, Andre Olden, Federal Medical Center, Bluegrass Unit, Lexington, KY, for Appellant.

David J. Debold, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Before: JONES, COLE, and GILMAN, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Petitioner-Appellant Andre Olden appeals the district court's denial of his § 2255 motion to vacate his conviction for narcotics distribution. Olden asserts that he was provided ineffective assistance of counsel and completely denied representation by his counsel's absences at critical stages of his trial. We hold that while Olden cannot establish prejudice to support his ineffective assistance claim, his counsel's absences at critical stages of his trial completely denied him the representation guaranteed by the Sixth Amendment. However, because we cannot determine whether Olden legitimately waived his right to his own counsel, we remand for an evidentiary hearing on that issue. Accordingly, we VACATE the district court's denial of Olden's motion to vacate, and REMAND for further proceedings consistent with this opinion.

I.

Olden was initially indicted on federal conspiracy charges in connection with a drug distribution ring. The original indictment also charged "Carlos LNU" with conspiracy and heroin distribution on March 21, 1990. On February 13, 1992, a grand jury returned a superseding indictment, which continued to charge Olden with conspiracy under Count 1, but made no mention of a "Carlos LNU."

At trial, the government presented evidence showing that Olden was a drug "runner," or distributor, for the leaders of the conspiracy, Karl Wingo and Brett Lang. See United States v. Lang, No. 92-2987, 1994 WL 629393, at *1 (6th Cir. 1994) (unpublished opinion) (affirming Olden's conviction on direct appeal). Four witnesses described several specific instances of Olden's criminal conduct. Tirrell Harris testified that in early 1989 Olden set up and consummated a drug transaction for a one-eighth kilogram of cocaine for Wingo. Similarly, Michael Zajac testified that in December 1989, in a deal set up by Wingo, he gave Olden $7000 and Olden returned with a quarter kilogram of cocaine. J.A. at 216-220.

On March 21, 1990, undercover DEA Agent Steven Mitchell, accompanied by Agent Michael Brown, arranged to make a heroin purchase from Wingo. Wingo stated that he would send an unnamed person to meet Mitchell and complete the deal. At the scheduled time, a man walked up to Mitchell's vehicle and stated he was "one of Karl's boys." J.A. at 190. Mitchell asked this individual his name, and he answered "Carlos." By the way he said his name, Mitchell immediately suspected it was an alias. In any event, Mitchell rejected the drugs offered by "Carlos," as he suspected the heroin had been "cut," or diluted through commingling with other substances. After subsequent discussions with Wingo regarding the integrity of the drugs, Mitchell agreed to accept the heroin. A second meeting took place in which Mitchell consummated the deal with the "Carlos" he had initially met.

When Olden appeared for his arraignment in November 1991, Mitchell identified Olden as the "Carlos" who sold him heroin on March 21, 1990. See J.A. at 194-95. In addition, when Olden went to the DEA office to give handwriting samples, Agent Brown positively identified Olden as the "Carlos" who had consummated the March 21 deal. Based on these identifications, all references to "Carlos LNU" were omitted from a later-filed superseding indictment. The superseding indictment, however, did not specifically charge Olden with heroin distribution on March 21; it simply removed the purported charges against "Carlos LNU" in Counts 1 and 4 of the original indictment.

The grand jury transcript indicated that the conduct formerly ascribed to "Carlos" was being imputed to Olden. Additionally, discovery on the day before the trial supplied Olden's trial counsel, Howard Wittenberg, with Agents Mitchell's and Brown's supplemental report implicating Olden as "Carlos." Lang, 1994 WL 629393, at *10. Moreover, Wittenberg admitted that he had read the grand jury testimony of an agent who asserted that Olden was "Carlos." J.A. at 306. Nevertheless, Wittenberg claimed that it was not until the government referred to Olden as "Carlos" during trial that he learned that Olden was alleged to be the "Carlos" who made the March 21, 1990 deal. Wittenberg asserted that he had been"ambush[ed]" by the "Carlos" allegations, and moved to sever Olden's trial from his co-defendants, asserting that co-conspirator Otis Wingo, Karl Wingo's brother, would provide testimony showing that another individual was the real "Carlos." J.A. at 302. Wittenberg contended that his severance motion would provide his only opportunity to call Otis Wingo since Wingo had decided not to testify. Wittenberg further alleged that by not having notice that Olden would be charged with the conduct attributed to "Carlos," he was unable fully and adequately to defend his client. The district court denied the severance motion, concluding that Wittenberg had appropriately cross-examined the issue, and "dealt with it as well as it could be dealt with if you'd known about it a month before." J.A. at 317.

At trial, in addition to the "Carlos" testimony, the government introduced wiretap testimony in which Karl Wingo discussed efforts by Olden and others to locate various drug paraphernalia before search warrants were executed. Olden responded to the "Carlos" charges by contending that the agents testified "Carlos" was fifty to sixty pounds lighter than Olden. The government, however, countered this assertion with testimony from Zajac, who stated that Olden had gained approximately sixty pounds. Additionally, both Agents Mitchell and Brown positively identified Olden as "Carlos" at trial. See J.A. at 194, 209-10. Olden was ultimately convicted of the conspiracy charge and sentenced to 165 months. On direct appeal, Olden asserted that the government constructively amended the indictment by charging him with the conduct attributed to "Carlos" and that the district court erred in denying his severance motion. See Lang, 1994 WL 629393, at *8. This court summarily rejected Olden's claims. Id.

Olden subsequently filed a § 2255 petition to vacate, asserting ineffective assistance of counsel and that Wittenberg denied him assistance altogether by his several absences during the trial. Olden emphasized Wittenberg's absences during two particular episodes of the trial when the prosecution introduced evidence allegedly pertaining to Olden's guilt. On June 5, 1992, Agent Michael Brown, among others, attested to the criminal activities of Olden's co-defendants, and witness Joanne Person testified that Olden was present at a heroin purchase she made at a local residence. See J.A. at 257. Additionally, on June 15, the government presented wiretap evidence of a conversation between Otis and Karl Wingo, in which Karl asks Otis who is with him, Otis responds that he is with Olden, and the Wingo brothers proceed to have a conversation about illicit activity. See Tr. XVIII at 72.

The district court, however, rejected all of Olden's claims, concluding that he had not established deficient representation or prejudice. Regarding Olden's denial of counsel claim, the district court additionally noted that Olden had consented to Wittenberg's absences. See J.A. at 163-64. With these rulings, the district court denied Olden's § 2255 motion. Olden now appeals.

II.

Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. See United States v. Jackson, 181 F.3d 740, 744 (6th Cir. 1999). Any findings of fact pertinent to the ineffective assistance inquiry are reviewed for clear error. See id. We apply a two-part test to determine whether a criminal defendant was denied effective assistance of counsel. First, we ascertain whether counsel's performance was professionally deficient; second, we determine whether the deficient performance prejudiced the defendant's constitutional interests. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996).

In assessing counsel's performance, we inquire whether "counsel's representation fell below an objective standard of reasonableness," as measured by "prevailing professional norms." Rickman, 131 F.3d at 1154 (quoting Strickland, 466 U.S. at 687-88). This objective reasonableness standard encompasses strategic litigation choices that simply fail to bear fruit. See Strickland, 466 U.S. at 689. To establish prejudice, a defendant must demonstrate a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Rickman, 131 F.3d at 1155 (quoting Strickland, 466 U.S. at 693-94). Prejudice is presumed, however, when a defendant demonstrates actual conflicts of interest that compromise an attorney's ability to advocate his client's interests, see id. (citing Strickland, 466 U.S. at 692), or when counsel is completely denied due to absence at a critical stage of a trial. See United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984).

Olden contends his counsel was constitutionally deficient for failing to obtain material evidence, failing to file various motions, and excessive absence. He additionally asserts that he was denied Sixth Amendment effective assistance by the aggregate effect...

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