United States v. Bell

• Decision Date: 28 July 2015
• Docket Number: No. 08–3037, 11–3032.,08–3037, 11–3032.
• Citation: 795 F.3d 88
• Parties: UNITED STATES of America, Appellee v. Gregory BELL, also known as Boy–Boy, also known as Bunga, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 88

UNITED STATES of America, Appellee

v.Gregory BELL, also known as Boy–Boy, also known as Bunga, Appellant.

No. 08–3037, 11–3032.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 2015.

Decided July 28, 2015.

Sicilia C. Englert and Robert S. Becker, appointed by the court, argued the causes for appellants. With them on the joint briefs was Michael E. Lawlor, appointed by the court.

James M. Perez and Stratton C. Strand, Assistant U.S. Attorneys, argued the causes for appellee. With them on the briefs were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, BROWN and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge BROWN.

Opinion dissenting in part and concurring in part filed by Circuit Judge WILKINS.

BROWN, Circuit Judge:

“[L]ike a bad penny, it return[s] to [us] again.” Letter from Abigail Adams to Mary Smith (Oct. 6, 1766) (referencing unattributed aphorism). We revisit the Congress Park Crew (“Crew”), “a loose-knit gang that ran a market for crack cocaine in the Congress Park neighborhood of Southeast Washington, D.C., for nearly thirteen years.” United States v. Jones, 744 F.3d 1362, 1365 (D.C.Cir.2014). Previously, we affirmed the sentences imposed on three of six jointly-tried Crew members; two additional members now appeal: one challenging his conviction and both challenging their sentences. We affirm the district court.

I

In 2005, eighteen Congress Park Crew members were indicted on various crimes including conspiracy and crack distribution. Eleven members pleaded guilty and one member was tried separately in 2006; the remaining six Crew members were tried together in 2007. In Jones we found the district court did not err in its sentencing of three of the jointly-tried Crew Members—Joseph Jones, Desmond Thurston, and Antwuan Ball. Id. at 1367–70. The present consolidated appeal concerns two additional Crew members tried in 2007—David Wilson and Gregory Bell (collectively “Defendants”). Wilson was convicted of two counts of aiding and abetting first-degree murder, seven counts of distributing crack cocaine, and one count of using a communications facility in relation to a narcotics offense. Bell was convicted of three counts of distributing crack cocaine. The Defendants were acquitted of a mélange of other charges including all narcotics and racketeering conspiracy charges and, in Wilson's case, a third count of aiding and abetting murder.

Wilson challenges his conviction at trial. He claims ineffective assistance of counsel based on substitutions of his defense attorneys, that two uncharged murders were improperly admitted into evidence, and that the Government failed timely to produce pieces of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Both Defendants also challenge the sentences imposed on them for crack cocaine distribution. We address each issue in turn.

II

Wilson's most facially credible argument is that substitutions of trial counsel deprived him of effective representation. But we are ultimately unpersuaded by his theory on appeal, which hinges on an extension of the doctrine of presumptive prejudice.

A

The course of Wilson's representation was marked by a number of substitutions of his lead and secondary court-appointed counsels.¹ We summarize the substitutions most pertinent to the present appeal. In January 2007—approximately two months prior to trial—Jenifer Wicks assumed the role of lead counsel, after previously assisting as secondary counsel for several years. On February 5, 2007, Gary Proctor was appointed to assist Wicks, and trial began on February 13, 2007. Approximately four months into trial, and shortly before the close of the Government's case, Wicks was hospitalized then subsequently released with medical instructions to refrain from stressful work. In Wicks's prolonged absence Proctor filed a motion for mistrial or severance. Proctor asserted he was, in his view, unable to adequately represent Wilson because, inter alia, he had limited federal trial experience² and had missed significant portions of the Government's case at trial, amounting to approximately one third of the Government's case by Proctor's unverified but uncontested estimation.

The district court initially granted severance but the Government sought reconsideration, proposing a “brief continuance[,] ... a week or two, to allow Mr. Proctor to get up to speed,” before allowing the Government “to finish its five to six days or so of its case,” then a longer continuance (“a month and a half”), to provide Proctor time to prepare Wilson's case in defense.

J.A. 3383–84. Finding the Government's proposal “eminently fair,” J.A. 3386, the district court reversed its earlier grant of severance. Secondary counsel³ was appointed to assist Proctor in his new role as lead counsel, and trial resumed in general accordance with the Government's proposal.

Proctor represented Wilson as lead counsel through the remainder of trial arguments. Although the dissent assumes Wicks's departure from the case robbed the defense of the benefits of her prior work, Proctor's ability (or inability) to directly consult with Wicks, in preparing and conducting Wilson's defense at trial, is sparsely developed in the record before us. But see J.A. 3417 (indicating Wicks had at least some capacity to accept telephone calls, albeit without providing insight into the extent of her availability or to what extent Proctor or Davies employed Wicks as a resource), 3486 (Proctor noting he “dragged Ms. Wicks out of retirement one more time,” to be present in the courtroom during his closing arguments).⁴

B

Despite being acquitted on a number of serious offenses—including counts of aiding and abetting murder, assault with intent to murder, and RICO and narcotics conspiracy—Wilson asserts Proctor's representation fell below the minimum threshold of professional competence required by the Sixth Amendment. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rather than identifying deficiencies in Proctor's actual representation and then arguing prejudice under Strickland 's two-part test, see id. at 687–88, 104 S.Ct. 2052, Wilson argues Proctor's representation was presumptively unreliable.

In United States v. Cronic the Supreme Court identified three “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See also Woods v. Donald, –––U.S. ––––, 135 S.Ct. 1372, 1378, 191 L.Ed.2d 464 (2015) (reiterating that Cronic applies only in such circumstances). “Most obvious, of course, is the complete denial of counsel.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. The Court also recognized the presumption in the constructive absence of counsel, “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,” or where “[c]ircumstances ... [are] present ... [such that] although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”Id. at 659–60, 104 S.Ct. 2039.

Courts have limited Cronic to “a very narrow range of situations.” United States v. Hughes, 514 F.3d 15, 18 (D.C.Cir.2008) ; United States v. Thompson, 27 F.3d 671, 676 (D.C.Cir.1994). For example, Cronic is only applicable for failure to test a prosecutor's case where “the attorney's failure ... [is] complete,” Hughes, 514 F.3d at 18 ; the presumption is “reserved for situations in which counsel has entirely failed to function as the client's advocate.” Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Compare Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (unconscious attorney presumptively prejudicial, if unconscious during a critical stage of a proceeding), with Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (no presumptive prejudice where counsel “failed to mount some case for life after the prosecution introduced evidence in the sentencing hearing and gave a closing statement”) (internal quotation marks omitted); Cronic, 466 U.S. at 649–50, 104 S.Ct. 2039 (presumption inapplicable where a young attorney represented a defendant in a complex mail fraud case, where the attorney specialized in real estate law, it was his first jury trial, and he had twenty-five days to prepare versus the Government's four and one-half years); Bellamy v. Cogdell, 974 F.2d 302, 303–04 (2d Cir.1992) (no per se prejudice where 71 year-old defense attorney suffered from a variety of physical ailments that left him “virtually incapacitated” and “at times” unable to concentrate, even where those incapacities led to the suspension of the attorney's license shortly after the defendant's conviction at trial).

Wilson would have us extend Cronic to cases where a substitution means at least one specific defense counsel was not continuously present during each and every critical stage of trial.⁵ In Wilson's view, in cases where counsel is substituted, the duration of the continuance granted to allow substitute counsel to prepare is irrelevant. See Reply Brief for Appellant David Wilson at 7, United States v. Bell, No. 08–3037 (June 30, 2014) (“Wilson's complaint is not that Proctor [ ] needed more time to prepare after Wicks became ill; Wilson's argument is that an effective defense was impossible without Wicks.”). Because the issues are not factually developed on the record before us, Wilson's theory of presumptive prejudice cannot hinge on the substitute counsel's inability to consult with his predecessor or on prior counsel...