U.S. v. Scales
| Decision Date | 25 November 2002 |
| Docket Number | No. CRIM.98-114-A.,CRIM.98-114-A. |
| Citation | 231 F.Supp.2d 437 |
| Parties | UNITED STATES of America v. Anthony SCALES |
| Court | U.S. District Court — Eastern District of Virginia |
Peter Hugh White, Hunton & Williams, McLean, VA, for Plaintiff.
Robert Stanley Powell, Arlington, VA, Frank Salvato, Alexandria, VA, for Defendant.
The matter is before the Court on defendant Anthony Scales' pro se motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Both defendant and the government have fully briefed the issues raised in defendant's motion and the matter is now ripe for disposition.1 Oral argument is dispensed with because the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process.
The trial record reflects that in the early morning hours of December 20, 1997, Officer William Bunney of the Alexandria Police Department solicited a prostitute, Kathleen Simmons, in the course of an undercover vice patrol operation in Alexandria, Virginia. At the time of the solicitation, Simmons entered Officer Bunney's unmarked van, where a listening device was hidden, and informed Officer Bunney that she was able to purchase two rocks of crack cocaine from a local source for $40. At Simmons' direction, Officer Bunney then drove the unmarked van to the Lynnhaven area of Alexandria, where he gave Simmons two pre-recorded $20 bills. While in Lynnhaven, Simmons approached defendant, her local crack cocaine source, entered his vehicle, and purchased two rocks of crack cocaine from defendant using the pre-recorded bills provided by Officer Bunney. Simmons then returned to Officer Bunney's unmarked van with the two rocks of crack cocaine in her possession. Based on this series of events, both Simmons and defendant were charged with possession and distribution of crack cocaine in the Circuit Court of the City of Alexandria. Moreover, at the time of his arrest by state authorities, defendant, a convicted felon, was found to be in possession of a firearm.
While the state drug charges were pending against defendant and Simmons, a federal investigation commenced into defendant's drug trafficking activities. Simmons ultimately received a subpoena to testify before a federal grand jury concerning defendant's drug trafficking activities. On receipt of the subpoena, Simmons promptly contacted defendant by telephone, who directed her not to testify. Simmons complied with defendant's request and disregarded the federal subpoena. Nonetheless, on March 19, 1998, a federal grand jury sitting in the Eastern District of Virginia returned a five-count indictment against defendant based on his conduct on December 20, 1997, charging him with the following offenses: (i) distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1), (ii) using and carrying a firearm during a crime of violence or a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Counts 2 and 4), (iii) possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 3), and (iv) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 5). Following the filing of the five-count indictment, federal agents attempted to arrest defendant at his residence, but were unsuccessful.
Following the filing of the federal indictment, on March 29, 1998, Simmons observed defendant driving a silver Isuzu in Alexandria, Virginia. Simmons, wishing to purchase a quantity of crack cocaine, motioned for defendant to stop his vehicle and defendant complied. After Simmons entered the vehicle, defendant accused Simmons of talking to law enforcement authorities regarding his drug trafficking activities. Defendant then drove Simmons to an apartment in Washington, D.C. and left her there in the custody of the resident, Anthony Collins, to smoke crack cocaine.
Later that day, defendant returned to Collins' apartment and told Simmons that he (defendant) would take her home. Simmons and defendant then entered defendant's vehicle, with defendant seated in the driver's seat, Simmons seated in the front passenger seat, and another individual, Raymond Jackson, seated directly behind Simmons. Later, while defendant drove the vehicle, Jackson wound a rope around Simmons' neck and began to choke her, telling her "You snitched, bitch." Defendant then stopped the vehicle in a remote area of Washington, D.C., where he and Jackson began punching Simmons repeatedly in the face. Defendant eventually took a gun from Jackson, shot Simmons in the back of the head, and then threw her out of the vehicle onto the ground. Outside the vehicle, defendant and Jackson continued to strike Simmons with their fists and feet and hit her head against the curb, as well. Simmons testified at defendant's trial that she then "played dead" in the hope that defendant and Jackson would cease striking her. The ruse worked, as defendant and Jackson then fled the scene in defendant's vehicle. Defendant later traveled to Charlottesville, Virginia and told his girlfriend, Deana Hubbard, that he had "beaten and killed" the woman with whom he had been arrested on state drug charges. Contrary to defendant's belief in this regard, Simmons miraculously survived the gunshot wound to the head and the brutal physical attack to become the government's star witness at defendant's federal trial, identifying defendant as her assailant in the course of a compelling direct examination.
Also testifying at defendant's trial was Officer Darell Garner, a member of the Metropolitan Police Department. Officer Garner was the first law enforcement officer to arrive at the scene of Simmons' attack, in response to a 911 telephone call placed by an unidentified individual. Upon arrival at the scene, Garner spoke with an unidentified white male who reported that he had observed a gray Isuzu Trooper in the vicinity of the attack. This white male was neither identified by name nor detained by law enforcement authorities at the scene. Officer Garner also questioned Simmons at the scene, who, despite her serious injuries, was able to name defendant as being one of her assailants. Based on Simmons' statements, officers from the Metropolitan Police Department obtained a color photograph of defendant from the Alexandria Police Department. When the officers later showed this photograph to Simmons at the hospital, she confirmed that the photograph depicted "Scales, the one who tried to kill me."
Defendant was eventually apprehended and arrested by law enforcement authorities on April 2, 1998. At the time of his arrest, he was found to be in possession of a pill bottle containing 1.824 grams of crack cocaine. A subsequent search of defendant's Isuzu revealed blood stains on the window, seat, seatbelt, and roof of the front passenger area. A comparative DNA analysis of these blood stains and blood drawn from Simmons revealed that Simmons was the likely source of the blood found in defendant's vehicle. In this regard, the government's expert witness testified at defendant's trial that the chance of a random blood match was one in 110,000 African-Americans.
On April 30, 1998, a federal grand jury sitting in the Eastern District of Virginia returned an eleven count superseding indictment against defendant. Specifically, in addition to the five counts charged against him in the original indictment on March 19, 1998, the superseding indictment charged defendant with the following additional offenses: (i) obstruction of justice, in violation of 18 U.S.C. § 1503 (Counts 6 and 8), (ii) attempted killing of a witness, in violation of 18 U.S.C. § 1512(a) (Count 7), (iii) using and carrying a firearm during a crime of violence or a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 9), (iv) kidnaping, in violation of 18 U.S.C. § 1201 (Count 10), and (v) possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 11).
On August 5 and 6, 1998, following a three-day jury trial, defendant was found guilty of ten of the eleven counts charged against him in the superseding indictment,3 namely:
(i) distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1);
(ii) using and carrying a firearm during a crime of violence or a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Counts 2, 4 and 9);
(iii) possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 3 and 11);
(iv) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 5);
(v) obstruction of justice, in violation of 18 U.S.C. § 1503 (Counts 6 and 8); and
(vi) attempted killing of a witness, in violation of 18 U.S.C. § 1512(a) (Count 7).
On March 19, 1999, defendant was sentenced to life imprisonment on Count 7, five years on Counts 2 and 5, and twenty years on Counts 1, 3, 4, 6, 8, 9 and 11.4 The sentences imposed on Counts 1, 3, 5, 6, 7, 8 and 11 were ordered to run concurrently with one another, while the sentences imposed on Counts 2, 4 and 9 were ordered to run consecutively with one another and with the concurrent sentences imposed on Counts 1, 3, 5, 6, 7, 8 and 11. Defendant, by counsel, appealed his convictions and sentence to the Court of Appeals for the Fourth Circuit, which affirmed on January 30, 2001. See United States v. Scales, 2 Fed.Appx. 390 (4th Cir. 2001). Defendant, by counsel, subsequently filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on June 11, 2001. See Scales v. United States, 533 U.S. 910, 121 S.Ct. 2259, 150 L.Ed.2d 244 (2001). Thereafter, on May 22, 2002, defendant, proceeding pro se, filed the instant motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255, alleging that his trial counsel, Joseph McCarthy, and his sentencing and appellate counsel, Frank Salvato...
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