U.S. v. Jansen

• Decision Date: 22 August 2002
• Docket Number: No. 4:CR-98-240.,4:CR-98-240.
• Citation: 218 F.Supp.2d 659
• Parties: UNITED STATES of America v. Robert John JANSEN, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

218 F.Supp.2d 659

UNITED STATES of America v. Robert John JANSEN, Defendant

No. 4:CR-98-240.

United States District Court, M.D. Pennsylvania.

August 22, 2002.

COPYRIGHT MATERIAL OMITTED

Eric Pfisterer, U.S. Attorney's Office, Harrisburg, PA, for U.S.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

Before the court is Robert John Jansen's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. After a jury convicted him of possession with intent to distribute a controlled substance, Jansen was sentenced to a term of imprisonment of 121 months. In his § 2255 motion, he brings the following six claims, all of which are framed in terms of ineffective assistance of counsel: (1) his sentence violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) his base offense level was too high, as a certain amount of the drugs associated with the crime was for his own personal use; (3) evidence of his involvement in a prior drug transaction was erroneously admitted; (4) certain statements he made to the police should have been excluded as falling within the scope of inadmissible plea discussions; (5) the jury should have been instructed to consider a lesser included offense of simple drug possession; and (6) counsel failed to call a witness who would have stated that Jansen, at the time of his arrest, invoked his Fifth Amendment right to counsel, which rendered all further police questioning improper. We will hold a hearing relating to the issue of Jansen's invocation of his right to counsel. Each of Jansen's other claims will be denied.

DISCUSSION:

I. STANDARD OF REVIEW

Section 2255 allows prisoners in federal custody to attack the validity of their sentences. In general, § 2255 is a vehicle to cure only jurisdictional errors, constitutional violations, proceedings that resulted in a "complete miscarriage of justice," or events that were "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (citations omitted); see also United States v. Addonizio, 442 U.S. 178, 185-86, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (citations omitted); United States v. Essig, 10 F.3d 968, 977 n. 25 (3d Cir.1993) (citations omitted).

"Generally, if a prisoner's § 2255 [motion] raises an issue of material fact, the district court must hold a hearing to determine the truth of the allegations." Essig, 10 F.3d at 976 (citations omitted). A defendant is not entitled to a hearing, however, if his allegations are contradicted conclusively by the record or if they are patently frivolous. Solis v. United States, 252 F.3d 289, 295 (3d Cir.2001) (citations omitted). In the same vein, "[a] district court need not hold a hearing if the motion and files and records of the case show conclusively that the movant is not entitled to relief." United States v. Melendez, No. CRIM. 00-00069-01, CIV. 01-3305, 2001 WL 1251462, at *2 (E.D.Pa. September 21, 2001) (slip copy) (citing Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989)).

II. FACTS AND PROCEDURAL HISTORY

On June 30, 1998, Jansen and coperpetrator Andrew DeHart, traveling in a car heading westbound on Interstate Route 80, were stopped by the police. Upon stopping the car, the police discovered in the trunk a VCR containing cocaine powder. In addition, Jansen was carrying on his person 34.2 grams of cocaine powder and 16.3 grams of cocaine base.

The police read Jansen his Miranda warnings. After hearing the warnings, Jansen told the police that he and DeHart were returning from New York City and bringing the cocaine in the VCR to Richard Willow, who was located in Middleburg, Pennsylvania. He stated that twice a month for the previous five months, he had traveled to New York in order to pick up a large amount of cocaine powder. During these trips, Jansen said, he would purchase a certain amount of cocaine for himself, pick up a VCR containing cocaine powder for delivery to Richard Willow, and receive some cocaine as payment for his services. He stated that the drugs on his person, consisting of both cocaine powder and cocaine base, were for his personal use.

On October 13, 1998, a grand jury sitting in the Middle District of Pennsylvania returned an indictment against Jansen. According to the indictment, Jansen "did knowingly and intentionally distribute, and possess with intent to distribute, cocaine and cocaine base, also known as crack cocaine," in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Indictment, Rec.Doc. No. 1.)

A two-day jury trial was held January 11 and 12, 1999. While testifying, Jansen recanted many of the statements that he made to the police. His contention at trial was that DeHart alone planned on delivering the VCR to Willow. Jansen claimed that, at the time of the stop, he knew of DeHart's intention to deliver the drugs but was not personally involved in the transaction. Jansen also claimed, consistent with his statements to the police, that the drugs on his person were for his own use.

During closing arguments, the government asserted that the jury should believe the statements that Jansen made to the police. Specifically, it contended that the cocaine powder found on Jansen's person was payment for the delivery of the drugs in the VCR, and that the cocaine base found on Jansen's person was purchased for personal use. In any event, the government argued, Jansen had the intent to distribute the cocaine in the VCR. According to the prosecution, this version of the story "fit[] the facts" and "[made] sense as to what he did and why he went [to New York]." (Trial Transcript, Rec. Doc. No. 58, at 54.) The defense's theory was that while Jansen possessed the drugs on his person, he had no intent to distribute the drugs in the VCR, and the drugs that he possessed were for his personal use only.

The jury was charged with the task of determining whether Jansen possessed with intent to distribute a controlled substance. The court made it clear that the jury was required to decide whether Jansen possessed with intent to distribute a controlled substance only. The court explained that the government was not required to prove the exact identity of the controlled substance, and the jury was told that the statute would be satisfied whether the material in question was cocaine powder cocaine base or both, so long as the government proved beyond a reasonable doubt that the material was a controlled substance. The jury was not instructed regarding a lesser included offense of simple possession of a controlled substance.

Jansen was convicted.

The probation officer prepared a presentence report. Using the 1998 edition of the United States Sentencing Commission Guidelines Manual, he calculated Johnson's sentence as follows:

• The Guideline for a violation of 21 U.S.C. § 841 is U.S.S.G.§ 2D1.1. Because Jansen, at the time of his arrest, possessed both cocaine powder and cocaine base, the drug quantity was determined by assessing each material's marijuana equivalent in accordance with the drug equivalency table that appears in Application Note 10 to § 2D1.1. Upon his arrest, Jansen possessed on his person 34.2 grams of cocaine powder, which converted into 6.84 kilograms of marijuana, and 16.3 grams of cocaine base, which converted into 326 kilograms of marijuana. Inside the trunk of the car, the police recovered 448 grams of cocaine powder, which converted into 89.6 kilograms of marijuana.

In addition to his responsibility for the drugs found at the time of his arrest, Jansen was charged with accountability for drugs that he had previously trafficked. Upon his arrest, he told police that twice per month for the previous five months he had made similar trips to New York. He stated that each time, he had received a one-ounce payment of cocaine for delivering to Willow a VCR that contained an unknown quantity of cocaine powder. Based on this admission, it was reasonable — and even conservative — to infer that Jansen made an additional ten trips and each time transported five ounces of cocaine powder. Jansen, then, was accountable for an additional 50 ounces (1,417.5 grams) of cocaine powder, which converted into 283.5 kilograms of marijuana.

In all, Jansen was responsible for the equivalent of 705.94 kilograms of marijuana. Section 2D1.1(c)(5) dictated that accordingly, Jansen's base offense level was 30.

• As there were no upward or downward adjustments, Jansen's total offense level also was 30.

• Jansen was charged with 5 criminal history points, giving him a criminal history category of III.

• Based on a total offense level of 30 and a criminal history category of III, Jansen's Guideline imprisonment range was 121 to 151 months.

At sentencing, counsel for Jansen made several objections that are immaterial to the instant motion. The court sentenced Jansen to a term of imprisonment of 121 months.

Jansen filed an appeal with the Third Circuit. The appeal focused on the suppression of evidence obtained in accordance with his arrest. The Third Circuit affirmed this court's admission of the evidence, and Jansen's conviction and sentence remained. The instant motion followed.

III. ANALYSIS

Jansen's § 2255 motion focuses exclusively on claims of ineffective assistance of counsel. Before beginning our analysis, we note that procedural default is not an issue, as claims for ineffective assistance of counsel may be raised for the first time in a motion under § 2255. United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir.1999) (citing United States v. DeRewal, 10 F.3d 100, 103 (3d Cir.1993)).

To succeed on a claim of ineffective assistance of counsel, a defendant must show that (1) the performance of counsel fell below an objective standard of reasonableness; and (2) the errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 691-692, 104 S.Ct. 2052, 80 L.Ed.2d...