U.S.A v. Luck

• Decision Date: 02 July 2010
• Docket Number: No. 09-6641.,09-6641.
• Citation: 611 F.3d 183
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Carlton N. LUCK, a/k/a C-4, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

611 F.3d 183

UNITED STATES of America, Plaintiff-Appellee,v.Carlton N. LUCK, a/k/a C-4, Defendant-Appellant.

No. 09-6641.

United States Court of Appeals, Fourth Circuit.

Argued: May 11, 2010.

Decided: July 2, 2010.

ARGUED: Gregory Mokodean, University of Virginia School of Law, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Anthony Paul Giorno, Office of the United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Neal L. Walters, University of Virginia School of Law, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, Ronald M. Huber, Assistant United States Attorney, Barbara Colberg, Third-Year Law Student, Office of the United States Attorney, Charlottesville, Virginia, for Appellee.

Before GREGORY and SHEDD, Circuit Judges, and ARTHUR L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Reversed, vacated, and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Senior Judge ALARCÓN joined. Judge SHEDD wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

Carlton Luck (“Luck”) appeals the district court's partial denial of his motion to set aside his conviction under 28 U.S.C. § 2255. Luck argues that his conviction for conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base should be reversed because his trial counsel was ineffective for failing to request an informant instruction, declining to call impeachment witnesses, putting Luck's prior incarceration before the jury, and not sharing Jencks material turned over by the government with Luck. We find that trial counsel was ineffective in failing to request an informant instruction and vacate Luck's conviction and sentence.¹

I.

In 2005, Luck was indicted for conspiracy to distribute and to possess with intent to distribute fifty grams or more of cocaine base (Count One); using, brandishing, or carrying a firearm during and in relation to a drug trafficking crime (Count Two); and distribution of cocaine base (Counts Three and Four). On March 21, 2005, he proceeded to trial on all charges before a jury.

At trial, the government presented evidence from three main witnesses: the police officer investigating the case and two paid informants.² Atrina Johnson (“Johnson”) and Jesse Thompkins (“Thompkins”) were the government's main witnesses. Both were informants paid for providing information to the police. Johnson approached the police on her own initiative to provide information about Luck because she wanted to reduce her exposure for a robbery charge she was facing. Thompkins also came forward without prompting by the police. He provided information on Luck to benefit Johnson, who was the mother of his child, and to earn money for himself.

Johnson testified that she met Luck through Thompkins, who was regularly purchasing cocaine base from Luck. Johnson also knew Luck because she regularly stored drugs in her attic for another man known as JaB. She testified that when JaB was arrested, Luck came to her house and retrieved the drugs JaB stored there. Thereafter, while facing a state robbery conviction, Johnson asked the police if she could work as an informant in return for a favorable report to her sentencing judge. Johnson then conducted two controlled buys for the police. On March 18, 2004, she called Luck on his mobile and asked him to sell her cocaine base. She then went to Luck's house and bought cocaine base from his brother. Johnson testified that she again called Luck on March 24, 2004, and arranged to buy cocaine base, then went to his house and purchased it from him. Charlottesville Police Detective Brian O'Donnell (“O'Donnell”) wired Johnson with video and audio recording equipment for the buys, but the image and sound quality were so poor that essentially nothing was recorded. O'Donnell was not present at the buys, so he had no direct knowledge of the dealings. Additionally, while he patted Johnson down before the buys, he did not search any of her inner garments for narcotics.

Thompkins also testified as to his knowledge of Luck's drug dealing. Thompkins frequently interacted with Luck, buying cocaine base from Luck for personal use two to three times a day for a year. He also testified that he saw Luck sell drugs to other people. Additionally, Thompkins once sold Luck a pit bull, for which Luck paid $100 in cash and $100 in cocaine base.

On April 29, 2004, a warrant was executed on Luck's house. The search recovered scales and baggies commonly used to package narcotics; however, no drugs were recovered. The police also seized Luck's mobile phone, which was the number Johnson had called to set up the buys, and a phone bill for the mobile phone showing that Luck was the account holder.

After the government presented its case in chief, Luck called several family witnesses in rebuttal. Both his mother and his aunt testified that he came to Charlottesville after a period of incarceration to turn his life around and that they had no knowledge of his involvement with drugs. Luck's uncle, who lived with Luck, testified that he never saw him involved in any drug transaction.

After deliberating a short while, the jury returned a guilty verdict on all counts, and Luck was subsequently sentenced to 444 months imprisonment. Luck's direct appeal was denied by this Court. United States v. Luck, 200 Fed.Appx. 263 (4th Cir.2006). On June 23, 2008, Luck filed a pro se motion to set aside his sentence under 28 U.S.C. § 2255 alleging that both his trial and appellate counsel provided ineffective assistance. In particular, Luck argued that trial counsel was ineffective for not requesting an informant instruction, not calling impeachment witnesses, inadequately preparing his mother and aunt to testify, not preventing the admission of two photographs, and failing to give him access to discovery materials. He also argued that appellate counsel was ineffective by failing to argue that Luck's indictment was constructively amended by the trial judge's instructions.

The district court granted Luck's motion with respect to the issue of constructive amendment and ineffective assistance by appellate counsel. Therefore, the court reversed Luck's convictions on Counts Two, Three and Four. The district court however denied Luck's motion as to the rest of his claims and affirmed his conviction on Count One. Luck timely appealed.³

II.

In an appeal of the denial of a motion under § 2255, this Court reviews the district court's decisions of law de novo. United States v. Poindexter, 492 F.3d 263, 267 (4th Cir.2007). The question of whether trial counsel provided ineffective assistance is a mixed question of fact and law which this Court reviews de novo. Smith v. Moore, 137 F.3d 808, 817 (4th Cir.1998).

III.

The issue before this Court on appeal is whether Luck's trial counsel provided ineffective assistance on a number of grounds. We address only his first argument: whether trial counsel was unconstitutionally deficient for failing to request an informant instruction. We find that counsel was ineffective and vacate Luck's conviction and sentence as to Count One of the indictment.

A.

Questions of ineffective assistance of counsel are governed by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There, the court detailed the two-prong approach courts must use when deciding ineffective assistance questions. The defendant bears the burden of proof as to both prongs of the standard. First, the defendant must show that counsel's representation “fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. Courts should be deferential in this inquiry, and have “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. The defendant must therefore overcome the presumption that the representation “might be considered sound trial strategy.” Id. (citation and internal quotation marks omitted).

Second, the defendant must demonstrate that counsel's inadequate performance prejudiced him. Id. at 687, 104 S.Ct. 2052. Thus, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability, in turn, is defined as “a probability sufficient to undermine confidence in the outcome.” Id. In cases where a conviction has been the result of a trial, the defendant must demonstrate that but for counsel's errors, there is a reasonable probability that he would not have been convicted.

B.

Luck argues that his trial counsel was ineffective because he failed to request an “informant instruction” consisting of the following:

The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest or by prejudice against a defendant.

United States v. Brooks, 928 F.2d 1403, 1409 (4th Cir.1991) (quoting Devitt & Blackmar Jury Practice and Instructions § 17.02 (3d ed.1977)). He argues that this Court should follow several circuits in holding that this instruction is always mandatory, or at the least, that in this case counsel was ineffective for failing to request the instruction.

In Brooks, this Court faced the issue of when an informant instruction is required, but did not answer that question one way or the other because we found that the witnesses were not “informers” within the meaning contained in the Devitt and Blackmar treatise. 928 F.2d at 1409....