Jones v. U.S.
| Decision Date | 25 September 2003 |
| Docket Number | CIV. No. 3:00CV703(EBB).,CRIM. NO. 3:92CR39(EBB). |
| Citation | 306 F.Supp.2d 142 |
| Parties | Lopez D. JONES, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Connecticut |
Lopez D. Jones, Ray Brook, NY, pro se.
Anthony E. Kaplan, U.S. Attorney's Office, New Haven, CT, for Plaintiff.
RULING ON PETITIONER'S MOTION UNDER 28 U.S.C. SECTION 2255
Lopez D. Jones (hereinafter "Jones" or "Petitioner") has filed a Motion to Vacate and Set Aside or Correct His Conviction, pursuant to 28 U.S.C. § 2255, challenging his conviction of engaging in a continuing criminal enterprise (CCE) and his sentencing as pertaining to his conspiracy conviction. He also asserts an ineffective assistance of counsel claim. After a thorough review of the parties' moving papers and exhibits thereto, it was determined that a hearing was unnecessary in order to decide the present motion. Said motion is now ready for decision.
The court sets forth only those facts deemed necessary to an understanding of the issues raised in, and the decision rendered on, this motion.
On or about July 23, 1992, Jones, along with fifteen other individuals, was indicted in a forty-five count Superseding Indictment. Jones was charged in Count One of the indictment with conspiring with his co-defendants, from in or about September 1991 to on or about June 22, 1992, to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. Section 846. Jones was also charged in Count Forty, pursuant to Title 21, U.S.C., § 848, with supervising a CCE known as The Jungle Boys, a drug trafficking gang operating in the Church Street housing complex in New Haven, Connecticut.
The indictment and evidence produced at trial resulted from a six-month investigation by a task force of federal, state and local agents that was charged with investigating gang-related narcotics activity in New Haven. The evidence was gathered through confidential informants, physical surveillance, video and photographic surveillance, wiretaps and undercover agents.
At the close of the evidence at trial, the court instructed the jury on the law for each count. With respect to Count Forty, the CCE charge, the court instructed the jury that in order to find Jones guilty of operating a CCE it must find unanimously: (1) that Jones committed one of the violations of narcotics laws alleged in the indictment; (2) that the offense was part of a series of three or more offenses committed by the defendant under consideration, in violation of narcotics laws; (3) that the violations were committed with five or more persons; (4) that Jones acted as an organizer, supervisor or manager of at least five persons; and (5) that Jones obtained substantial income or resources as a result of this continuing series of violations.
The court instructed the jury that it had to unanimously agree on the series of violations that constituted the CCE charge. In charging the jury, the court also stated that, in determining whether Jones was guilty of the CCE offense, the jury could look to violations charged in the indictment, as well as acts which were not charged in the indictment. On May 28, 1993, the jury convicted Jones on two counts: (1) conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. section 846; and (2) supervising a continuing criminal enterprise, in violation of 21 U.S.C. section 848.
At Jones' sentencing hearing on August 31, 1993, after reviewing the trial transcript and pre-sentence investigation report that was prepared by the United States Probation Court, this court determined that Jones' offense level was thirty-eight, based on his conviction for supervising a CCE (U.S.S.G. § 2D1.5), and the distribution of fifteen to fifty kilograms of cocaine U.S.S.G. § 2D1(c)(3). In addition, the court found that Jones qualified as a career offender pursuant to U.S.S.G. § 4B1.1 based on a prior conviction on April 22, 1983 for Robbery in the Second Degree, and on May 2, 1986 for possession of marijuana with intent to sell. However, while this court considered the robbery conviction in calculating Jones' criminal history category, the court found that, because the prior offenses had been committed ten years before, and Jones was young at that time, a departure to Criminal History Category III was warranted. This court's calculation yielded a guideline range of 292 to 365 months, and the court sentenced Jones to 328 months imprisonment, five years of supervised release, and $100 in mandatory special assessments. The final judgment of conviction was entered on or about September 2, 1993.
The Second Circuit Court of Appeals denied Jones' appeal and thereby affirmed his conviction. See United States v. Jackson, 60 F.3d 128 (2d Cir.1995). Jones' petition for certiorari was denied by the United States Supreme Court on March 4, 1996. See Jones v. United States, 516 U.S. 1165, 116 S.Ct. 1057, 134 L.Ed.2d 201 (1996).
Pursuant to 28 U.S.C. section 2255, Jones now moves this court to correct or set aside his sentence. Jones claims that his CCE conviction under Count Forty should be vacated under Richardson v. United States, 526 U.S. 813, 824, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), because the jury did not specify which three violations in the jury charge they found to comprise the CCE and because of the court's instruction that the jury may look to evidence outside of the indictment in comprising the CCE charge. Further, Jones asserts that he has a right to be re-sentenced under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) since the court, rather than the jury, made a determination as to the quantity of drugs involved in the respective crimes. Jones also alleged various other sentencing violations and an ineffective assistance of counsel claim.
In Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), the Supreme Court announced a new rule of law in interpreting the meaning of the phrase "series of violations" in 21 U.S.C. § 848(c)(2), the CCE statute. The Court found that each violation that makes up the series in a CCE charge is a separate element of the crime. Therefore, in order to find a defendant guilty of engaging in a CCE, the jury must unanimously agree on which of the individual violations constituted the continuing series. Id. at 824, 119 S.Ct. 1707. Accord United States v. Flaharty, 295 F.3d 182, 197 (2d Cir.2002). Accordingly, Richardson requires jury instructions that contain a unanimity instruction for each violation.
In Jones' 2255 Petition, he claims that this court violated the principals set forth in Richardson in three ways. First, Jones contends that the court erroneously failed to conduct special interrogatories of the jury to ensure that they did unanimously agree on the three specific violations when concluding defendant committed a CCE violation. Second, Jones asserts that the court violated Richardson by improperly instructing the jury that it may consider acts not mentioned in the indictment when determining the CCE violation. Third, Petitioner also argues that aiding and abetting a crime cannot constitute a predicate offense to a CCE charge, and that there was insufficient evidence to find him guilty on the basis of aiding and abetting. Finally, Petitioner asserts an ineffective assistance of counsel claim for failing to object to the jury instruction in respect to the CCE charge.
A motion for relief pursuant to section 2255 must generally be filed within one year of a defendant's conviction becoming final. 28 U.S.C. § 2255 Para. 6. Although Jones' 2255 motion was filed on March 20, 2000, approximately four years after his conviction became final, it is not time-barred because it was filed within one year of the Supreme Court decision in Richardson, which announced a new rule that has been held to apply retroactively to cases on their first habeas review. Santana-Madera v. United States, 260 F.3d 133, 138-9 (2d Cir.2001). The Second Circuit declared in Santana-Madera that "[b]y deciding that a jury had to agree unanimously on each of the offenses comprising the `continuing series' in a CCE Count, Richardson interpreted a federal criminal statute and, in doing so, changed the elements of the CCE offense." Id. at 139. Accordingly, the Court declared that "the Richardson rule is substantive, and therefore should be applied retroactively in a defendant's first federal habeas proceeding." Id. Since this is Jones' first section 2255 petition, the standards set forth in Richardson shall be retroactively applied to Jones' conviction and sentencing.
B. Merits of Petitioner's Richardson Claim
Count Forty of the Superseding Indictment charged Petitioner as follows:
From in or about May, 1990, and continuing thereafter through and until June 22, 1992, the exact dates being unknown to the Grand Jury, in the District of Connecticut, and elsewhere, the defendant LOPEZ D. JONES, a/k/a "Donald Lopez Jones", a/k/a "Rock", a/k/a "L", a/k/a "Lopez", a/k/a "Loggie", a/k/a "Lopes", did willfully, knowingly and intentionally engage in a Continuing Criminal Enterprise in that he did violate and cause others to violate Title 21, United States Code, Sections 846, 841(a)(1) and 860, and Title 18, United States Code, Section 2, as alleged in Counts One through Thirty-Nine of this Indictment, which counts are incorporated herein by reference, which violations and others were part of a continuing series of violations of said statutes undertaken by the defendant LOPEZ D. JONES, in concert with at least five other persons, with respect to whom the defendant occupied a position of organizer, supervisor, and manager, and from which continuing series of violations the...
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