Fisher v. U.S.
| Decision Date | 30 July 2009 |
| Docket Number | Civil Action No. 08-11186-RCL. |
| Citation | 638 F.Supp.2d 129 |
| Parties | Casey FISHER, Petitioner v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Peter K. Levitt, United States Attorney's Office, Boston, MA, for Respondent.
Casey Fisher ("Fisher") petitions this Court to vacate his sentence and grant a new trial pursuant to 28 U.S.C. § 2255. (Pet'r Br., Doc. No. 117.1) Fisher is currently serving a 168-month sentence imposed by this Court after he pled guilty to one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 and was found guilty by a jury of one count of the use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958(a), and one count of solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373.
Fisher asserts two related claims of ineffective assistance of counsel. First, he claims that the advice he received from his attorney not to testify at trial was based on his attorney's objectively unreasonable and overly optimistic reading of the case law regarding the murder-for-hire statute. Had his attorney provided effective advice, he contends that he would have chosen to testify and that his testimony would have altered the result of the trial. Second, Fisher claims that but for that same erroneous advice about the murder-for-hire statute, he would have pled guilty, as opposed to proceeding to trial, and would potentially have received a lesser sentence. The United States has moved to dismiss the petition without a hearing, arguing that Fisher's claims are procedurally barred and, in the alternative, are completely unwarranted in law and fact.
On April 24, 2002, Alain Brousseau ("Brousseau"), a Canadian truck driver, was apprehended at a United States checkpoint in Champlain, New York. United States v. Fisher, 494 F.3d 5, 6 (1st Cir.2007). Brousseau attempted to cross the U.S. border from Canada with 166 kilograms of hydroponic marijuana, hidden in seven large duffel bags in the rear of his tractor trailer. Id. After his apprehension Brousseau agreed to cooperate with law enforcement authorities by allowing them to monitor a controlled delivery of the marijuana to Route 79 Auto Sales ("Route 79" or "the garage") that same evening. Id. at 7; Day 2 Trial Tr. 34, 57, Doc. No. 89. Route 79 was an auto garage located in Lakeville, Massachusetts, and operated by Fisher. (Trial Day 2 Tr. 34.) Route 79 also served as a marijuana storehouse for George Otero ("Otero"), a close associate of Fisher and a major player in marijuana trafficking in the state of New Hampshire.2 (Id. at 35-36, 84.)
When Brousseau arrived at the garage, Fisher and his brother, John Fisher ("John"), helped Brousseau unload the marijuana from the tractor into the garage. Fisher, 494 F.3d at 7. As Brousseau pulled his tractor away from the garage, authorities stopped the tractor and moved in to arrest Brousseau, John, and Fisher. Id.; Day 2 Trial Tr. 62. Brousseau was arrested by authorities; however, Fisher and John managed to escape away into the woods. Fisher, 494 F.3d at 7; Day 2 Trial Tr. 63.
In October 2002, John was arrested and charged in the United States District Court for the Northern District of New York with conspiracy to possess marijuana with intent to distribute. Fisher, 494 F.3d at 7. On July 23, 2003, Fisher was indicted and charged, in a sealed indictment filed in this district, with one count of conspiracy to possess with intent to distribute marijuana, pursuant to 21 U.S.C. § 846. (Indictment, Doc. No. 1.) He was not, however, apprehended at the time.
On August 28, 2003, Fisher arranged a meeting with Otero at which the two discussed the case pending against John. Fisher, 494 F.3d at 7. Otero agreed to tape record the conversation, as part of his ongoing cooperation with the authorities in relation to his involvement with the drug bust at Route 79. During the conversation, Fisher explained to Otero his belief that Brousseau's testimony was the only piece of evidence the government had against his brother. Id. Additionally, Fisher informed Otero that he wanted to "get rid" of Brousseau so there would be no evidence against John. Id. Fisher also stated that he was going to ask "Ray-Ray," otherwise known as Raymond Aucoin ("Aucoin" or "Ray Ray")3 to murder Brousseau.
Sometime before August 31, 2003, Fisher arranged by phone to meet with Aucoin in person. At that meeting, he asked Aucoin to murder Brousseau. Id. Fisher, however did not yet know Brousseau's identity or name; consequently, sometime between the date he met first met with Aucoin and August 31, 2003, Fisher made phone calls to a man named Norman Ouimette, who lived in Canada, to ask if he knew the identity of the truck driver. Id. Ouimette ultimately provided Fisher with Brousseau's name. Fisher then met with Aucoin on August 31 and gave Aucoin a small piece of lined paper with Brousseau's name handwritten on it. (Day 2 Trial Tr. 98.)
Pursuant to the information gained from the earlier recorded conversation between Fisher and Otero, investigators ordered surveillance of Aucoin. On September 5, 2003, Aucoin flagged down the local police officer who was conducting surveillance and agreed to become a cooperating witness in the case against Fisher. Id. It was during this meeting that Aucoin informed authorities that Fisher had asked him to murder Brousseau. Id.
On September 8, 2003, Aucoin met with Special Agent Walter Houghton ("Houghton") for the first time. Agent Houghton, a customs and immigration agent, served as the case agent for the case against Fisher. (Day 2 Trial Tr. 55; Day 5 Trial Tr. 93, Doc. No. 92.) Aucoin informed Agent Houghton that Fisher had asked him to murder Brousseau. He also provided Agent Houghton with the piece of paper upon which Fisher had written Brousseau's name. Fisher, 494 F.3d at 7.
On September 10, 2003, at the direction of law enforcement, Aucoin met with Fisher and informed him that he would not murder Brousseau. Id. at 7. In order to arrange this meeting, Fisher called Aucoin at least once. At the meeting, Aucoin also told Fisher that he had found another hit man, Sgt. Michael Grassia ("Grassia") serving in an undercover capacity, who would kill Brousseau. Fisher and Aucoin discussed the price that Grassia would charge and whether it would be necessary to provide Grassia with any of the money before Brousseau's murder was confirmed. The two also discussed how Grassia would be able to access Brousseau in prison in Canada.
On September 19, 2003, after a series of phone calls between Aucoin and Fisher, at least one of which was initiated by Fisher, Aucoin, Fisher, and Grassia, met at the Lion's Club in Lakeville, Massachusetts. Id. During this meeting, Grassia and Fisher discussed the "hit" on Brousseau and Grassia demanded an initial $5,000 payment from Fisher, as a sign of good faith, with the other $5,000 due upon completion of the job. Id. Fisher assured Grassia that he would be able to get the money and that the money would be available the following Friday. Id. On September 23, 2003, before Fisher engaged in any conduct consistent with accepting Grassia's offer, authorities arrested Fisher on a warrant for the indictment issued on July 23, 2003. Id.
On October 29, 2003, a superseding indictment was issued against Fisher, charging him with conspiracy to possess marijuana with intent to distribute marijuana, in violation of 21 U.S.C. § 846; use of interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958(a); and solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373. (Superseding Indictment, Doc. No. 14.) On June 6, 2005, Fisher pled guilty to count one of the superseding indictment, conspiracy to possess with intent to distribute at least 100 kilograms of marijuana. Fisher, 494 F.3d at 8 n. 1.
On November 29, 2004, a six-day jury trial began on the two remaining counts. During trial, the government produced witnesses4 who testified to previous drug transactions in which Fisher was involved, the controlled marijuana delivery made by Brousseau, Fisher's previous crimes, and the conversations and meetings between Fisher, Otero, Aucoin, and Grassia. (See generally Day 2—Day 5 Trial Trs.) Through witness testimony and tapes introduced at trial, the government sought to demonstrate that Fisher wanted Brousseau dead, made calls in furtherance of that goal, and knew it would come at a price of $10,000. (Day 5 Trial Tr. 37.)
Fisher's defense strategy, arrived at after consultation with his attorney, had at least two components. First, Fisher's attorney attempted to undermine testimony supporting an inference that Fisher ever had the necessary intent, while using a facility in interstate commerce, to commit the murder of Brousseau. Defense counsel sought to demonstrate that since Fisher never acted upon his agreement to produce $5,000 in order for Grassia to complete the job, he committed no crime. (Id.) Through the testing of witnesses' credibility, particularly Aucoin's, defense counsel sought to undermine juror confidence in their testimony and weaken the government's case against his client. (Id. at 60.) Defense counsel actively cross-examined witnesses and tested their credibility on the stand. (See generally Day 2—Day 5 Trial Trs.) In closing arguments, Fisher's counsel spent the majority of his time forcefully arguing that Fisher never possessed the requisite intent to be convicted under 18 U.S.C. § 1958.
Second, and more important for the purpose of the instant petition, Fisher's attorney pursued what Fisher has labeled, in his moving...
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