U.S. v. Dawson

• Decision Date: 21 September 1988
• Docket Number: No. 87-1352,87-1352
• Citation: 857 F.2d 923
• Parties: UNITED STATES of America v. Lonnie DAWSON.
• Court: U.S. Court of Appeals — Third Circuit

Page 923

857 F.2d 923

UNITED STATES of America v. Lonnie DAWSON.

No. 87-1352.

United States Court of Appeals Third Circuit.

Argued June 20, 1988.

Decided Sept. 21, 1988.

Carol A. Koller (argued), Defender Ass'n of Philadelphia, Federal Court Div., Philadelphia, Pa., for appellant.

Paul J. Van De Graaf (argued), Asst. U.S. Atty., U.S. Attorney's Office, Philadelphia, Pa., for appellee.

Before GIBBONS, HIGGINBOTHAM and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Appellant Lonnie Dawson seeks review of a district court order denying his motion to vacate or modify his sentence. He petitioned the district court under 28 U.S.C. Sec. 2255, claiming that his trial counsel was ineffective for failing to call or interview several potential witnesses. Appellant argues that the district court erred in denying his motion without first conducting a hearing on the issue. We have jurisdiction under 28 U.S.C. Sec. 1291. Because we agree that at least some of appellant's allegations raise a substantial challenge to his convictions, we will remand to the district court for a hearing.

I.

April 14, 1982, appellant Dawson was indicted on charges related to the distribution of narcotics and the attempted shooting of a federal informant. Specifically, he was convicted of engaging in a continuing criminal enterprise, distribution of heroin and methamphetamine, use of a telephone in distribution, obstruction of justice and conspiracy to violate civil rights. His codefendants were William Hoskins, with whom he allegedly ran the distribution enterprise, and Robert Hardwick and Kenneth Shank, who worked for appellant and Hoskins.

The government's case rested principally on recordings and wiretaps, and the testimony of Lawrence Simons. Simons testified that, after his release from prison, he worked at a convenience store operated by appellant and Hoskins, and also carried drugs and money for them. Simons testified that, as part of his illegal activities, he sometimes delivered narcotics to Michael Johnson. After Simons became an informant in 1982, he was "wired" several times for meetings with appellant, including one on February 23, 1982. Simons testified that he met appellant at the home of appellant's girlfriend, Yasmin Rollins, then went to another location to receive narcotics. Government agents confirmed that the meeting took place. A recording of the meeting supports Simons' testimony. Additionally, appellant's fingerprints were identified on narcotics delivered two weeks later.

Simons also testified to an incident which occurred on April 4-5, 1982. Simons and appellant met a third man at a bar, who showed them large quantities of methamphetamine stored in an upstairs room. Simons also had a photograph of himself, appellant and the third man taken at the bar. They were also joined by Robert Hardwick and James Watt, an unindicted coconspirator. Simons was wearing a transmitter and was carrying marked money, most of which he said he had given to appellant. DEA agents testified that they saw Simons and appellant, heard their conversation on the transmitter, and saw Simons and appellant leave the bar around one a.m. (There is no recording available since the agents had used up the tapes before the pair arrived at the bar.) Outside the bar, the agents attempted to contact Simons. Simons, believing appellant had observed the contact, left the area.

A state police officer testified that, at 1:20 a.m., he saw three men in a car. The car matched the description of that driven to the bar by Hardwick and Watts. One man was wearing an overcoat. Another got out of the car and the car drove off. The officer approached the man who remained, who identified himself as Watts. Watts was carrying the bulk of the marked bills.

Several witnesses testified that they saw two men together, not just one, during and after the chase. Simons testified that, while driving early that morning, he was chased by two men in a large black car and shot at. The chase ended when the pursuing car struck a telephone pole. Simons testified that, based on seeing the relative sizes of the two pursuers, they were Hoskins and Watts. A resident testified that, at 4:00 a.m., he heard the crash and saw two men leave the site, one wearing a long coat, and walk in the direction of Chester, Pennsylvania. A waitress at a Chester restaurant about two miles away from the crash site testified that two men entered at about 4:45 a.m., one wearing a light-colored jacket. They ordered sandwiches and one used the phone. They left in a dark car which had pulled up in front of the restaurant. At the trial, the waitress tentatively identified appellant as one of the two men, and confirmed that she had made a prior identification of him from photographs. The government also recorded a call that morning to Hoskins, allegedly from appellant, referring to the chase. Hoskins reported the car stolen at 4:50 a.m.

A second call later that morning was made to Rollins, allegedly by appellant. The caller asked Rollins to meet him at a local Sheraton and "bring us a hit". At the Sheraton, federal agents arrested appellant and Hardwick hiding in the back of Shank's car. Rollins was arrested also. A gun was found in her pocketbook.

Appellant was convicted on November 1, 1982, by a federal jury. He was sentenced to 134 years in prison and fined $230,000. After the conviction was affirmed on appeal, he moved for a reduction of sentence. On January 23, 1985, the district court reduced appellant's sentence to 65 years in prison--50 on the CCE charge, 10 on the civil rights charge and 5 for obstruction--and reduced the fine to $100,000. August 12, 1986, appellant filed a petition to modify, reduce or set aside his sentence under 28 U.S.C. Sec. 2255.

II.

A.

The petition alleges that appellant's trial counsel, Mr. Preminger, failed to call or even interview several prospective witnesses. He alleges that Preminger failed to interview Michael Johnson, though appellant told him to. A federal agent testified that he had made recordings of conversations between Johnson and appellant related to narcotics transactions, which were part of the indictment. In an affidavit, Johnson states that he was prepared to testify that he had no illegal dealings with appellant, and that the conversations actually were between Johnson and Freddie Rollins. (Freddie Rollins, Yasmin's brother, died two months before the trial.) Johnson himself was not indicted until 1983. He pleaded guilty to those charges, he claims in part out of fear that otherwise he might get a sentence as long as that given to appellant.

Yasmin Rollins' affidavit states that she could have supported Johnson's testimony that his conversations were with Freddie Rollins. She also states that conversations allegedly between her and Dawson were with Freddie, and that she was present at other conversations with her brother alleged to be with Dawson. She alleges she could have testified that the February, 1982 transaction at Rollins' home took place between Simons and Freddie, while appellant was in another room. She claims she told trial counsel she was willing to testify, but that counsel never contacted her.

Appellant also submitted the affidavit of his sister, Wendy Dawson, who claims that she was working with appellant in Philadelphia during most of the day on March 18, 1981, a date on which appellant allegedly drove to Delaware to pick up a methamphetamine component. Wendy Dawson's affidavit states that she has time cards which support her assertion. She states that Preminger was "supposed to call me concerning a picture" the government contends was taken of appellant in Delaware, but that Preminger never called. Appellant also alleges that Wendy Dawson's husband, David Jones, would have testified that the picture was of him. Jones did not submit an affidavit, and appellant does not allege that Preminger knew of this testimony.

Appellant alleges that Watts, "if called to testify," would have said that he received the marked money directly from Simons, and that appellant was in no way involved. Appellant also states that Hardwick testified on June 23, 1982, that he alone chased and shot at Simons, then later called appellant to pick him up at the restaurant. Appellant alleges that Preminger was aware of this testimony but "made no attempt to utilize this at trial," such as by moving for a severance. ¹ Last, appellant alleges that he asked counsel to interview Evelyn Davis, but he did not do so. Davis, he alleges, would have testified that she saw Simons "manufacturing evidence against defendant Dawson." No more is specified.

B.

The district court denied the motion without a hearing. Noting that it did not have his testimony, the court assumed that Preminger knew of the availability and substance of all the testimony. The court nevertheless found "inconceivable" that Johnson, not indicted at that time, would testify that he was guilty of serious charges. Also, because the tapes were "over-whelmingly incriminating as to Johnson," the testimony would have been subject to "serious attack." The court concluded that a decision not to "pursue Johnson as a defense witness" was not an unreasonable tactical choice. The court made the same conclusions about Yasmin Rollins and David Jones, especially regarding their likely credibility in view of their connection to appellant. The court also notes that the jury had the opportunity to hear the tapes and determine if the voice on them was appellant's, and that the federal agents observed appellant with Simons during the February 1982, transaction.

The court dismissed the affidavit of Wendy Dawson for three reasons. First, appellant did not allege that Preminger knew of her testimony; second, supporting documents she mentions in her affidavit were not produced; and third, as appellant's sister, her credibility is questionable. The court dismissed the allegations relating...