U.S. v. Lewis
| Citation | 156 F.Supp.2d 1280 |
| Decision Date | 07 August 2001 |
| Docket Number | No. 893CR259T23B.,No. 897CV1272T23B.,893CR259T23B.,897CV1272T23B. |
| Parties | UNITED STATES of America v. Terry Ray LEWIS. |
| Court | U.S. District Court — Middle District of Florida |
James A. Muench, Asst. U.S. Atty., Tampa, FL, for Plaintiff.
Susan Hartmann Swartz, Law Office of Stanley R. Swartz, Bradenton, FL, for Defendants.
Pursuant to 28 U.S.C. § 2255, Terry Ray Lewis moves to vacate, set aside, or amend a sentence entered consequent upon his convictions for (1) conspiracy to manufacture, to possess with the intent to distribute, and to distribute cocaine base; (2) possession with the intent to distribute 50 grams of more of cocaine base; (3) possession with the intent to distribute cocaine; and (4) possession of a firearm in relation to an offense under 21 U.S.C. §§ 841 and 846 in violation of 18 U.S.C. § 924(c). Lewis also attacks the order of forfeiture entered consequent upon his convictions.
Lewis alleges with respect to each of his claims that, by failing to assert the substance of the arguments that Lewis raises in his motion, Lewis' counsel was ineffective to the extent that counsel's performance deprived Lewis of his right under the Sixth Amendment to effective representation of counsel. Of course, this claim is measured by the familiar standard elaborated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a demonstration by a movant (1) that counsel performed inadequately as measured by an objective standard of reasonableness and (2) that counsel's inadequate performance actually prejudiced the movant. In other words, Strickland requires a reasonable probability that, if counsel had performed in accordance with the applicable standard, the results of the proceeding would have differed. A movant must establish satisfactorily both elements of Strickland; if either element is unsatisfied, the motion fails to establish a deprivation of the right to effective counsel. Bottoson v. Moore, 234 F.3d 526, 532 (11th Cir.2000) ().
Lewis' first basis for relief is that a witness' testimony at trial violated 18 U.S.C. § 201(c)(2). Lewis initially cited United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), and United States v. Lowery, 15 F.Supp.2d 1348 (S.D.Fla.1998), in support of this argument. However, as Lewis concedes, these precedents are reversed in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999), and United States v. Lowery, 166 F.3d 1119 (11th Cir.1999), cert. denied, 528 U.S. 889, 120 S.Ct. 212, 145 L.Ed.2d 178 (1999), respectively. For the reasons stated in Singleton and Lowery, this argument is rejected.
Lewis' second claim arises under 18 U.S.C. § 3161(b), which provides that an indictment "charging an individual with the commission of an offense" must be filed within thirty days after the defendant is arrested or served with a summons "in connection with such charges." Lewis was arrested on September 22, 1993.1 A criminal complaint issued on September 23rd, charging Lewis with possession with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). (Doc. 2) The indictment followed on September 24th and contained in its sole count the violation of Section 841(a)(1) recited in the complaint. (Doc. 5) The superseding indictment, on which Lewis was tried, issued on March 1, 1994, and added counts alleging conspiracy in violation of 21 U.S.C. § 846, possession of cocaine with the intent to distribute, and possession of a firearm in violation of 18 U.S.C. § 924(c). Lewis asserts that the superseding indictment offends Section 3161(b) because more than thirty days elapsed between the arrest and the superseding indictment. Lewis asserts that his counsel was ineffective because of the failure to raise this alleged defect.
In support of this argument, Lewis relies heavily on United States v. Palomba, 31 F.3d 1456 (9th Cir.1994), in which the defendant alleged ineffective assistance of counsel based upon counsel's failure to raise the Speedy Trial Act. In Palomba, a complaint was filed on April 10, 1990, and a warrant issued on April 11th. Palomba was arrested on April 12th and charged with false statements, mail fraud, and conspiracy under 18 U.S.C. §§ 1001, 1341, and 371, respectively. An indictment was filed on April 20th, charging Palomba with one count of conspiracy to defraud and one count of false statements under 18 U.S.C. §§ 371 and 1001, respectively. The indictment omitted the mail fraud charges alleged in the complaint that resulted in Palomba's arrest. Palomba initially appeared on May 15th and arraignment followed on May 17th. After some postponements, the district court scheduled a trial for July 30th. On July 13th, the United States filed a superseding indictment that (1) charged Palomba with two counts of mail fraud (the charge that appeared in the complaint but not in the initial indictment), (2) charged Palomba for the first time with wire fraud in violation of 18 U.S.C. § 1343, and (3) again charged Palomba with false statements under 18 U.S.C. § 1001, a charge appearing in both the complaint and the initial indictment. Palomba moved for a continuance because of the need for additional trial preparation, and the trial was continued until October 30th, at which time the defendant was convicted on all counts. The conviction and sentence were affirmed. United States v. Palomba, 972 F.2d 1346 (9th Cir.1992).
Palomba sought relief under 28 U.S.C. § 2255 and alleged, in pertinent part, that counsel was ineffective for failing to seek dismissal under 18 U.S.C. § 3162(a)(1) of the allegations of mail fraud in the superseding indictment because, in violation of 18 U.S.C. § 3161(b), those charges, which were included in the complaint but excluded from the initial indictment, were brought more than thirty days after Palomba's arrest. The Ninth Circuit explicitly stated the basis for agreeing with Palomba that his counsel was ineffective for not seeking dismissal of the mail fraud charges that appeared in the complaint but not in the initial indictment:
Under Sections 3161(a) and 3162(b), the government may prosecute a defendant accused in a complaint and untimely charged in a subsequent indictment when the respective offenses are punishable under different statutes, despite the fact that they arose from the same criminal transaction.... By the same token, where as here, the charges in the complaint and a later indictment are brought under the same statute, such charges shall be dismissed under Section 3161(b), absent substantial discrepancies in time, place and manner between the underlying criminal episodes "apparent on the face of the complaint." [United States v.] Pollock, 726 F.2d at 1462. In short, the superseding indictment charged Palomba in an untimely manner with an offense which was contained in the complaint but which was not preserved against Section 3162(a) dismissal either by such facial factual differences or by inclusion in the timely original indictment. Accordingly, defense counsel erred in failing to move for dismissal of the mail fraud charges untimely raised in the superseding indictment under Section 3161(c) of the STA.
In other words, Palomba interprets Sections 3161(b) to require that, within thirty days after a defendant is arrested or a summons is issued based upon a charge in a complaint, the United States must file an indictment that includes the charge on which the arrest or the summons is based. Simply stated, Palomba requires that, when a complaint is filed and the defendant is arrested or a summons is issued based on a charge, the United States must indict the defendant on that charge within thirty days, or that charge is subject to dismissal if presented for the first time in an indictment filed more than thirty days after the arrest or issuance of the summons. Palomba requires only that, if a defendant is arrested or a summons issued based on a charge, the United States must file an indictment including that charge, if at all, within thirty days. Palomba teaches nothing about a superseding indictment and nothing about an indictment based upon charges not in the complaint and not the basis of either a defendant's arrest or the issuance of a summons. In any event, the charge in the criminal complaint against Lewis (possession with the intent to distribute fifty grams or more of cocaine base) appears in both the timely initial indictment and again in the superseding indictment. Palomba is distinctly inapposite to the history of Lewis' arrest and indictment.2
Lewis also relies on United States v. Van Brandy, 563 F.Supp. 438 (S.D.Cal. 1983), in which the defendants were arrested at or near the scene of an attempted bank robbery. The original indictment of August 25, 1982, charged each of the three defendants with conspiracy to rob a bank under 18 U.S.C. §§ 2113(a) and 371 and attempted bank robbery under 18 U.S.C. § 2113(a). On December 10, 1982, "the Friday before trial," the grand jury returned a superseding indictment that added three counts (Counts 3, 4, and 5; one as to each defendant) for possession of a firearm by a felon in violation of 18 U.S.C. § 1202(a)(1) and added one count (Count 6, as to all three defendants) for carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). Because the defense was unprepared to proceed with respect to the superseding indictment, the district court severed the new counts and proceeded to trial on the original counts of the indictment. After a mistrial and other matters not pertinent to Lewis' claims, the defendants were convicted on Counts 1 and 2, leaving only the issue of the disposition of the severed claims, Counts 3 through...
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