United States v. Cross
| Citation | 249 F.Supp.3d 339 |
| Decision Date | 18 April 2017 |
| Docket Number | Case No. 09-cr-00281-11 (CRC). |
| Parties | UNITED STATES of America, v. Elohim Bey CROSS, Defendant. |
| Court | U.S. District Court — District of Columbia |
Fernando Campoamor–Sanchez, Jocelyn Patricia Bond, Margaret J. Chriss, Mary Ann Snow, John K. Han, Melinda Ann Williams, Timothy W. Lucas, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.
Elohim Bey Cross, Otisville, NY, pro se.
Matthew J. Peed, Clinton Brook & Peed, Washington, DC, for Defendant.
MEMORANDUM OPINION
In 2011, a jury convicted Defendant Elohim Bey Cross of conspiracy to distribute and possess with the intent to distribute over one kilogram of heroin, and he was sentenced to twenty years in prison. To obtain the conviction, the prosecution had to prove, among other things, that Cross reasonably foresaw that the conspiracy he joined distributed, or intended to distribute, more than one kilogram of heroin. The government met that burden mainly with the testimony of Cross's supplier, who told the jury that he sold Cross 1.2 to 1.3 kilograms for further distribution. In this petition for post-conviction relief under 28 U.S.C. § 2255, Cross contends that his trial counsel was ineffective for failing to use evidence in her possession that would have contradicted the supplier's testimony on this crucial point. For the reasons that follow, the Court agrees that Cross's counsel was deficient in this one respect, and that the error was prejudicial to the jury's drug-quantity finding. It will therefore grant Cross's petition and vacate his sentence. However, as discussed further below, the Court will direct the parties to submit supplemental briefing on the effect of the Court's ruling on Cross's conviction.
In 2009, federal investigators tapped the telephones of Mouloukou Toure, a suspected heroin distributor in Washington, D.C. United States v. Cross, 766 F.3d 1, 2 (D.C. Cir. 2013).1 Through those wiretaps, they learned that Toure was importing heroin from a Toronto-based supplier operating under the alias "Big Brother," and that Toure was selling that heroin to other, lower-level distributors, including Cross. Id. In numerous wiretapped conversations with Toure, Cross placed narcotics orders in coded language, discussed purchasing prepaid cell phones for the purpose of evading police, and learned about a police raid on Toure's stash house. Id.; see also Gov't's Opp'n Def.'s Mot. Vacate ("Gov't's Opp'n"), Ex. B (wiretap transcripts). The conversations also led the FBI to a Comfort Inn in Maryland, where an agent observed Toure enter and then exit a particular hotel room. Cross, 766 F.3d at 2. Later, an agent obtained records from the hotel's manager, showing that Cross had stayed there for weeks at a time through 2009 and had paid in cash. Id. at 2–3. When Cross learned from a hotel clerk that law enforcement agents had gotten the records, he called Toure in alarm, worried that there were still "things" in his hotel room but hopeful that they would be "hard to find"; Toure told him that he should have been moving locations more frequently, and that he had to "be careful." Gov't's Opp'n, Ex. B, at EC_ 000033. The FBI searched the hotel room, though, and found bags of heroin and cocaine base in the drawer of a nightstand, plus drug paraphernalia such as surgical face masks, a digital scale, and disposable gloves. Cross, 766 F.3d at 3. After the search, Cross again called Toure in a panic, looking for guidance. See Gov't's Opp'n, Ex. B, at EC_000037–38.
In November 2009, a grand jury charged Cross with a single count of conspiring to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i) & 846, which carries a mandatory minimum of ten years' incarceration.2 In March 2010, the government gave notice pursuant to 21 U.S.C. § 851 that, if convicted, Cross was subject to an enhanced mandatory minimum sentence of twenty years due to a 2007 Maryland conviction for cocaine possession, which carried a maximum punishment of four years' incarceration and therefore qualified as a "felony drug offense" under 21 U.S.C. § 841(b)(1)(i). See Notice of Prior Felony Convictions, ECF No. 81.3 In June 2010, the attorney who would go on to represent Cross during the remaining pretrial, trial, and sentencing phases of the case, first entered her appearance. See Notice of Attorney Appearance, ECF No. 138.
Cross went to trial in July 2011.4 In addition to introducing the wiretap and physical evidence detailed above, the government elicited testimony from Toure, who had pled guilty. His testimony included the statements that he had imported a total of 4.8 kilograms of heroin from Big Brother, and that he had distributed a total of 1.2 to 1.3 kilograms of that amount to Cross. See Trial Tr. 18–19, 33, 65 (July 19, 2011 p.m.); Trial Tr. 36, 48, 50 (July 21, 2011 a.m.). Toure's testimony was the only evidence at trial regarding these total drug amounts. In defense, Cross's counsel pressed the theory that he had merely purchased drugs from Toure as part of a simple buyer/seller relationship, and that even if that relationship constituted a conspiracy, it was a much more limited conspiracy than the broader, international one with which Cross was charged. Accordingly, counsel asked the trial court to instruct the jury not to convict Cross if it found that he had engaged in a separate conspiracy with Toure alone. See Trial Tr. 27 (July 20, 2011 p.m.).
The court rejected that request, finding that there was not sufficient evidence for a "multiple conspiracies" instruction. See id. at 24–25. The court did, however, instruct the jury that "a simple buyer/seller relationship alone does not make out a conspiracy." Id. at 51. During closing arguments, the prosecution nevertheless argued that a two-man conspiracy—between Cross and Toure—was sufficient for conviction. See Trial Tr. 47, 52 (July 21, 2011 a.m.). It stressed that Toure's testimony regarding the 1.2 or 1.3 kilograms of heroin he distributed to Cross was, standing alone, sufficient to establish the drug quantity element of the charge. See Trial Tr. 23:7–25 (July 21, 2011 a.m.). Defense counsel, too, in an effort to discredit the testimony, nevertheless highlighted it: She called the 1.2/1.3–kilogram figure a "magic number" that Toure "needed to tell" the jury. Id. at 36:4–10.
Although the jury was instructed on two lesser-included offenses with lower drug-quantity elements, see Trial Tr. 54–56 (July 20, 2011 p.m.), it voted to convict on the one-kilogram heroin conspiracy charge. See Verdict Form, ECF No. 327. At sentencing, defense counsel argued that permitting Cross's 2007 Maryland conviction for simple cocaine possession to trigger a ten-year enhancement (for a mandatory minimum of twenty years) under 21 U.S.C. § 841 would violate the Eighth Amendment's cruel-and-unusual punishment bar—in part because, under Maryland law, the offense is considered a misdemeanor. See Def.'s Mem. in Aid of Sentencing 5–7, ECF No. 345; Md. Code Ann., Crim. Law, § 5–601(c)(1). The court rejected that argument, noting that "it's undisputed that [the Maryland conviction] carries a maximum penalty of four years," and that "a qualifying felony drug offense is one that's punishable in excess of one year, regardless of how it's classified by name." Sentencing Tr. 17 (Oct. 21, 2011). At the sentencing hearing, defense counsel also argued that the Presentence Investigation Report should not have attributed more than one kilogram of heroin to Cross. Id. at 5–6. The Court rejected that argument as well, reasoning that the jury had found that drug amount as "an essential element of the charged offense." Id. at 15–16. The Court then sentenced Cross to 240 months' imprisonment.
Represented by new counsel, Cross brought a direct appeal of his conviction on two grounds: that it was error for the trial court not to give the multiple-conspiracies instruction he requested, and that the prosecutor's closing argument that a two-man conspiracy was sufficient to convict was improper. See Cross, 766 F.3d at 2. The D.C. Circuit affirmed Cross's conviction on the ground that any errors on the part of the court or the prosecutor were harmless—primarily because there was sufficient evidence for the jury to convict Cross of the larger, charged conspiracy. Id. at 4–8.
In January 2015, Cross filed this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, identifying fourteen grounds for relief. Def.'s Mot. Vacate, ECF No. 397 (); Def.'s Mot. Expand Record, ECF No. 412 (). After the Court appointed him counsel, Cross withdrew nine of those claims. See Notice Regarding Withdrawal of Claims, ECF No. 440; Second Notice Regarding Withdrawal of Claims, ECF No. 444.5 His remaining five claims encompass three main grounds for relief. Cross argues: (1) that his trial counsel was ineffective for failing to use specific evidence to challenge the drug quantity attributable to him (Grounds III & V); (2) that his trial and appellate counsel were ineffective for failing to challenge, under Carachuri–Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), the ten-year enhancement of his sentence (Grounds I & IX); and (3) that the prosecution engaged in misconduct by failing to correct Toure's testimony about drug amounts (Ground IV).6
After the parties submitted written briefing on the motion, the Court held an evidentiary hearing and oral argument, focused on the claim that trial counsel was ineffective for failing to utilize material evidence suggesting that the quantity of heroin attributable to Cross was under one kilogram. During the evidentiary portion of the hearing, Cross's trial counsel testified at length regarding her recollection of the relevant...
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