Mickens v. U.S.

• Decision Date: 16 June 1999
• Docket Number: No. 97-CV-2122 (TCP).,97-CV-2122 (TCP).
• Citation: 53 F.Supp.2d 326
• Parties: Thomas MICKENS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

53 F.Supp.2d 326

Thomas MICKENS, Petitioner, v. UNITED STATES of America, Respondent.

No. 97-CV-2122 (TCP).

United States District Court, E.D. New York.

June 16, 1999.

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Merrill Rubin, New York City, Jonathan Shapiro, Alexandria, VA, for petitioner.

Edny Stuart Altman, Asst. U.S. Atty., for Respondent.

MEMORANDUM AND ORDER

PLATT, District Judge.

Now before the Court is a Motion to Vacate Sentence brought pursuant to 28 U.S.C. § 2255 by petitioner Thomas Mickens ("Mickens"). For the reasons stated below, the Motion is denied.

BACKGROUND

On May 23, 1988, an indictment was filed charging Mickens with conspiring to distribute cocaine, in violation of 21 U.S.C. § 846 (one count), and with distributing cocaine in violation of 21 U.S.C. § 841 (five counts). On August 29, 1988, a superseding indictment was filed which added several new charges including one count of conspiracy to defraud the United States in violation of 21 U.S.C. § 371; four counts of income tax evasion in violation of 26 U.S.C. § 7201; one count of filing a perjurious income tax return in violation of 26 U.S.C. § 7206(1); eight counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(I) and (11); and one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3). Mickens pled not guilty to these charges. Following a four-month jury trial, Mickens was acquitted on the substantive drug possession and distribution charges but was convicted on all other counts. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800.

At trial, the substance of the prosecution's case was that Mickens orchestrated a profitable cocaine distribution network in Queens, New York over a five-year time period. Testimony was presented by two law enforcement officers who described many undercover cocaine purchases from individuals who were identified as Mickens' underlings. For instance, undercover officer Austin Fields purchased cocaine from Anthony Jacobs, a known "lieutenant" in the Mickens organization, on two separate occasions. On another occasion, surveillance agents detected Mickens in the vicinity of a narcotics deal between undercover Officer Terance Miller and George Jenkins, another underling of Mickens'.

In addition to the direct evidence of narcotics activity, the prosecution introduced evidence that Mickens engaged in a lifestyle of extravagant spending. This evidence connected Mickens to the purchase of eighteen automobiles with an aggregate value totaling approximately $556,000, and sixteen properties which included commercial property in Queens, a $730,000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens' former attorney testified that he assisted Mickens in the purchase of several properties using cash and money orders. He also testified that he assisted Mickens in laundering money by preparing contracts and closing documents that significantly understated the properties' actual prices. Furthermore, evidence indicated that many of Mickens' automobile and real estate purchases were executed with the assistance of nominees who acted on Mickens' behalf. For instance, trial evidence established that Mickens' girlfriend, Shelby Kearny, acted on his behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens' nominee in purchasing both the California condominium and a $133,350 yacht. The aggregate profits generated by the conspiracy were calculated at $1,885,000 between 1984 and 1987. (Pre-Sentence Report, United States of America v. Anthony Jacobs, 88-CR-309.)

On direct appeal, Mickens asserted that comments made by the trial Court addressing the strategy of Robert M. Simels ("Simels") during trial deprived him of his constitutional right to a fair trial. United States v. Mickens, 926 F.2d 1323 (2d Cir. 1991), cert. denied 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992). He also challenged the Court's denial of a motion to suppress certain evidence obtained during a sweep of his residence in Dix Hills, and the Court's admission of the following evidence: a threatening gesture made by Mickens towards his former attorney when the latter appeared in the courtroom to testify, a prior narcotics conviction, and incourt identifications made by car salesmen. Finally, Mickens argued that the Court's instructions to the jury regarding elements of money laundering constructively amended the indictment against him, and that the currency reporting requirements of 31 U.S.C. § 5313 were unconstitutional. Id. The Second Circuit affirmed the judgment of the District Court. Id. In addressing the issue of whether Mickens received a fair trial, the Second Circuit stated that defense counsel engaged in improper behavior during the course of the trial. Specifically, the court took note of counsel's reprehensible conduct which amounted to dilatory tactics, attempts to pry into restricted avenues of inquiry, inappropriately suggestive and argumentative questions, and reprehensible verbal attacks on the District Court.

DISCUSSION

Mickens now petitions this Court for relief pursuant to 28 U.S.C. § 2255, asserting a violation of his Sixth Amendment right to a fair trial on grounds of ineffective assistance of trial counsel, improper prosecutorial conduct, conflict of interest, insufficient evidence, improper jury instructions, a sentence calculation contrary to law, and ineffective assistance of appellate counsel.¹

A. Unfair Trial

Defendant-appellant Mickens claims that Simels' persistent combative conduct during the course of the trial deprived him of a fair trial. He asserts that Simels' conduct was so outrageous as to constitute ineffective assistance.

The standard for ineffective assistance of counsel has been set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There the Court stated: "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052. For a successful claim, the defendant must meet a two-pronged test, showing first that counsel's performance was deficient, and second that the deficiency prejudiced the defense. Id. at 687, 104 S.Ct. 2052. To show such deficiency, it must be established that "counsel made errors so serious that [he or she] was not functioning as `counsel' guaranteed by the Sixth Amendment." Id. To show prejudice, it must be established that the claimed lapses in counsel's performance rendered the trial so unfair as to "undermine confidence in [its] outcome." Id. at 694, 104 S.Ct. 2052.

The Court further stated that the Sixth Amendment inquiry asks whether the attorney's conduct was "reasonably effective." Id. at 687, 104 S.Ct. 2052. To counteract the natural tendency to fault an unsuccessful defense. a court reviewing a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides." Id. at 688, 104 S.Ct. 2052. Moreover, the reasonableness of counsel's performance should be judged "on the facts of the particular case. viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. 2052. Furthermore, there is a strong presumption that counsel's performance is within the "the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

The case law on the issue of failed trial strategy is clear. In United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir.1987), the court stated, "[w]e will not second-guess trial counsel's defense strategy simply because the chosen strategy has failed." See also United States v. Reyes, 1991 WL 95395, at *4 (S.D.N.Y. May 30, 1991). Moreover, "[a]n advocate must be given some latitude in deciding upon an appropriate trial strategy." United States v. Helgesen, 669 F.2d 69, 72 (2d Cir.1982).

Mickens argues that counsel engaged in outrageous conduct during the course of the trial which included futile and prolonged examinations, failure to abide by the Court's instructions and outright contempt for the Court's rulings. Although Simels did engage in improper behavior during the course of the trial, his conduct does not amount to deficient performance. Mickens fails to overcome the presumption that Simels' behavior "might be considered sound trial strategy." See Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) (holding that counsel's failure to file a motion to quash does not overcome presumption of effectiveness because it could have been trial strategy). Although some of Simels' performance was outlandish, there is no evidence that it could have been considered anything less than a trial tactic aimed at instilling reasonable doubt in a jury. Given the fact that Mickens' main argument at trial was that there was no evidence linking him to the drug charges, coupled with the fact that he faced substantial evidence of guilt, it was a plausible strategy for Simels to try to undermine the credibility of the government's case by characterizing Mickens as a victim of intense prosecution as well as an aggressive judicial system. Considering this, it was a plausible tactical choice for Simels to refuse to stipulate to even the most basic of facts. At the same time, Simels presented evidence calculated to draw into question the government's account of events in order to...