U.S. v. Morrison, s. 92-3232

• Decision Date: 17 December 1996
• Docket Number: Nos. 92-3232,94-3146 and 95-3041,s. 92-3232
• Parties: , 45 Fed. R. Evid. Serv. 1114 UNITED STATES of America, Appellee, v. Ron MORRISON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 619

98 F.3d 619

321 U.S.App.D.C. 170, 45 Fed. R. Evid. Serv. 1114

UNITED STATES of America, Appellee, v. Ron MORRISON, Appellant.

Nos. 92-3232, 94-3146 and 95-3041.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 20, 1996.

Decided Oct. 22, 1996.

Rehearing Denied Dec. 17, 1996.

Appeals from the United States District Court for the District of Columbia (No. 91cr00693-02).

Ron Morrison, appearing pro se, was on the briefs for appellant.

Mark J. Rochon, Washington, DC, argued the cause and filed the briefs for appellant.

E. Vaughn Dunnigan, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Roy W. McLeese, III, and Geoffrey G. Bestor, Assistant United States Attorneys, were on the brief. Elizabeth Trosman entered an appearance.

Before: EDWARDS, Chief Judge, WALD and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

On July 7, 1992, a jury found Ron Morrison guilty of conspiracy to distribute and to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846, two separate instances of possessing crack cocaine with intent to distribute it in violation of 21 U.S.C. § 841, and using and carrying deadly weapons during and in relation to these drug offenses in violation of 18 U.S.C. § 924(c). The jury also found Morrison guilty on two counts of conspiring, and attempting, to prevent potential witnesses from testifying truthfully in his trial, in violation of 18 U.S.C. § 1512(b). Morrison filed a motion to vacate his sentence under 28 U.S.C. § 2255 on the ground of ineffective assistance of counsel on February 4, 1994, which the district judge who presided over his trial denied on August 29, 1994. This court consolidated Morrison's appeal of the denial of his § 2255 motion and his direct appeal of his convictions.

Morrison asserts that the district court erred in denying his § 2255 motion, and abused its discretion by ruling on the motion without first conducting an evidentiary hearing. Morrison also argues that the district court improperly limited cross-examination of a government witness, that his convictions under § 924(c) should be vacated in light of the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and that there was insufficient evidence to support one of his convictions under § 1512(b).

We find merit only in the claim based on Bailey, and thus we affirm the district court's summary denial of Morrison's § 2255 motion, as well as all of Morrison's convictions except his convictions under § 924(c), which we reverse. We remand the case for resentencing in light of this reversal. We find that the decision of his trial counsel on which Morrison bases his claim of ineffective assistance was a reasonable strategic choice, and the record does not indicate that it resulted in prejudice to his trial. The court's limitations of the cross-examination of key government witness Paulette Glenn were not abuses of discretion, because they were imposed to prevent witnesses from giving speculative answers and to prevent the introduction of evidence with no probative value on issues in the case. Finally, the jury was presented with sufficient evidence to support its conclusion that Morrison attempted to "corruptly persuade" Doris Holmes to give specific false testimony in an official proceeding, in violation of 18 U.S.C. § 1512(b).

I. BACKGROUND

On November 8, 1991, police executed a search warrant at a house rented by Paulette Glenn in Southeast Washington, D.C. In the living room, police found a jacket belonging to Ron Morrison with $113 cash in the pocket, Morrison's loaded .38 caliber pistol underneath a sofa, and over thirty plastic bags containing a total of 5.467 grams of crack cocaine. Morrison was in New York at the time of this first search. On November 16, 1991, police executed a second search warrant at this same house. As they entered, they saw Morrison run from the living room, where he had been packaging crack in plastic bags, toward the back door. An associate of Morrison's inside the kitchen had been guarding the back door with a sawed-off shotgun. Police found the loaded shotgun, ammunition, and drug paraphernalia in the kitchen.

Morrison evaded the police and fled to North Carolina. While in North Carolina he asked Doris Holmes, with whose son he was acquainted, to tell anyone who asked that Morrison had been living with her for a year, and that she took care of Morrison's children. Holmes refused.

Morrison returned to the District of Columbia and was arrested and jailed in March of 1992. Soon after his return, Morrison's girlfriend Audrey Wilson visited Glenn and told her that Morrison wanted to see her. On a second visit, Wilson told her that Morrison wanted Glenn to sign an affidavit stating that he had been in the dining room, rather than the living room, when the police conducted their second search. Some days later three associates of Morrison's entered Glenn's home at five o'clock in the morning and told her that Morrison had asked them to bring her to New York. Glenn said she couldn't go with them because her mother was ill, and they left. Later Wilson visited Glenn yet again, asked her whether she would sign an affidavit that Morrison's lawyer would bring to her, and offered her some furniture if she signed the affidavit.

Glenn met with the prosecutor in charge of Morrison's criminal case and told him of her conversations with Wilson and with Morrison's associates. The prosecutor asked Glenn to visit Morrison in jail wearing a recording device, to collect evidence regarding attempts by Morrison to tamper with potential witnesses against him. The prosecutor specifically instructed her not to ask Morrison about the drug and weapon violations with which Morrison had already been charged. When Glenn arrived at the jail she found Wilson visiting Morrison. Wilson left as Glenn entered, and Morrison and Glenn had a brief conversation which the police recorded. Later, with Glenn's assistance, a police secretary prepared a transcript of the tape.

II. DISCUSSION

A. Ineffective Assistance of Counsel

On February 4, 1994, Morrison filed a pro se motion under 28 U.S.C. § 2255 with the district judge who presided over his trial, arguing that he had been denied the effective assistance of counsel guaranteed by the Sixth Amendment because his lawyer had failed to seek suppression of the taped conversation between himself and Paulette Glenn at trial, and because this failure constituted such a severe breach of the normal standards of competence required of defense counsel, and was so prejudicial to the presentation of his defense, that it required the court to vacate his conviction. The government filed an opposition, to which it attached a declaration by Morrison's trial counsel in which she explained that she had not objected to the admission of the taped conversation because it was "on its face, purely exculpatory and consistent with Mr. Morrison's theory of the case which was plain denial of the charges," and because the arguments that the government intended to use to cast the conversation in an incriminating light were "not ... particularly persuasive" and "did not outweigh the exculpatory use" that she intended to make of the taped conversation. Appellee Appendix ("App.") at 53-55. She added that Morrison himself had not wanted her to object to the admission of the tape recording, because he agreed that it was exculpatory and that it would give him the benefit of having the jury hear his claims of innocence without the risk involved in testifying at trial and subjecting himself to cross-examination. Id. at 53-54. Morrison then filed a reply to the government's opposition, in which he contradicted his counsel's argument that the taped conversation was exculpatory, and claimed that he couldn't recall having had any conversation with her regarding the admission or exclusion of the conversation. District Court Case No. CR91-693-02 document 134, page 9, footnote 2.

On August 24, 1994, the district judge denied the motion, holding that "[r]eview of the informant's statement in evidence, the closing arguments of both counsel in response to it, and defense counsel's affidavit reconfirm that defense counsel made a 'reasonable strategic or tactical judgment,' " because "the taped statement was arguably exculpatory, and furnished the defendant with favorable testimony which could not have been otherwise available to him unless he had waived his Fifth Amendment privilege." App. at 63. Morrison now appeals the district court's denial in this court.

Morrison's claim of ineffective assistance is based on his assertions that the conversation would have been excluded had an objection been made, the taped conversation actually was incriminating, and the government's significant use of it in closing argument severely prejudiced the outcome of the trial. The government acknowledges the first point, that the conversation would have been suppressed had a timely objection been made at trial, because Glenn was acting as a government agent when she visited the defendant in jail, and Morrison made the taped statements about crimes for which he had already been indicted without having counsel present, in violation of his rights under the Sixth Amendment. See Brief for Appellee at 20. We disagree, however, with Morrison's second and third claims--that the conversation was so clearly incriminating that his lawyer's failure to object exhibited gross incompetence, and that the government's use of the taped conversation at trial severely eroded the trial's fairness.

To demonstrate that his counsel was constitutionally ineffective, Morrison must show both that she "made errors so serious that [she] was not functioning as the 'counsel' guaranteed the...