United States v. Foster, 13 C 6456 (09 CR 316-2)
| Decision Date | 09 June 2014 |
| Docket Number | No. 13 C 6456 (09 CR 316-2),13 C 6456 (09 CR 316-2) |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Respondent, v. BERNARD FOSTER, Defendant-Movant. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
MEMORANDUM OPINION AND ORDER
On November 20, 2009, a jury convicted Foster of one count of knowingly and intentionally distributing at least five but fewer than fifty grams of crack cocaine, and three counts of knowingly and intentionally distributing fifty or more grams of crack cocaine. (See Verdict [Dkt. 94].)1 The Court sentenced Foster to concurrent prison terms of 240 months. (See J. [Dkt. 147].) Foster appealed his conviction and sentence, which were affirmed. (See United States v. Foster, No. 11-3097 (7th Cir. Dec. 20, 2012) [Dkt. 188].) Foster now moves pursuant to 28 U.S.C. § 2255 to have his conviction and sentence vacated because he received ineffective assistance of counsel.
Foster contends that his counsel provided ineffective assistance in a multitude of ways. To prevail on any of his claims, Foster must establish both that his attorneys' performance "fell below an objective standard of reasonableness," and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Moreover, Foster must submit affidavits or otherevidence, not simply reply on his own unsworn and uncorroborated assertions, to merit relief. See United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir. 1989) ().
Foster's first claim is that his counsel was ineffective during plea negotiations because they failed "to provide [him] with a fair and accurate assessment of his chances of being acquitted," and did not tell him that "tainted evidence" would be admitted during the trial or that the confidential informant ("CI") who made controlled buys of drugs from Foster would not have to testify. (§ 2255 Mot. at 3-4.) However, counsel had no way of knowing what the Court's evidentiary rulings would be or that the CI would, just days before trial, admit that he lied to government agents, and thus invoke his Fifth Amendment right not to testify. Counsels' lack of prescience does not make them ineffective. See United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1057 (7th Cir. 1977) ().
Foster also faults his counsel for failing to interview or depose the CI before trial. The record shows, however that defense counsel did ask to interview the CI, but the CI declined the request. (See PSR, Ex. N, Letter to CI from Boutros (Nov. 12, 2009) ( ). Moreover, counsel would have needed the Court's permission to depose the CI, which would have been granted only if there were "exceptional circumstances," and doing so was "in the interest of justice." Fed. R. Crim. P.15(a). "Exceptionalcircumstances exist when the prospective witness is unavailable for trial and the absence of his or her testimony would result in injustice due to the materiality of the testimony to the case." United States v. Groos, 616 F. Supp. 2d 777, 790 (N.D. Ill. 2008) (quotation omitted). Here, the CI was available to testify at trial, and thus not a candidate for deposition, until he asserted his Fifth Amendment rights just days before the trial started. Further, after he asserted his Fifth Amendment rights, the Court could not force the CI to testify either in a deposition or at trial. As a result, this ineffective assistance claim fails.
Foster also contends that his lawyers should have moved to suppress the evidence "obtained by the CI using flawed ATF procedures based on the 'fruit of the poisonous tree' doctrine." (§ 2255 Mot. at 4.) The 'fruit of the poisonous tree' doctrine prohibits the government from introducing evidence at trial that was obtained through violations of a defendant's constitutional rights. See United States v. Ienco, 182 F.3d 517, 526 (7th Cir. 1999). But Foster does not say, and the Court cannot see, how the government agents' use of a CI who, unbeknownst to them, was stealing some of the buy money they gave him, violated any of Foster's constitutional rights. Because there was no reason for counsel to move to suppress evidence obtained by the CI, their failure to do so does not make them constitutionally ineffective.
Foster's next claim is that counsel should have argued against the CI's invocation of the Fifth Amendment, and should have, at the Court's invitation, offered examples of testimony the CI could give that would not be cumulative or impeaching. Contrary to Foster's belief, the record establishes that defense counsel argued repeatedly and emphatically that the CI had waived his Fifth Amendment rights. (See R. at 17-26, 192-94, 356-65; Foster Mem. Supp. Testimony CI [Dkt. 76].)Moreover, counsel did not offer examples of permissible testimony because there were none. The evidence against Foster was offered through the government agents who observed and recorded the CI's drug purchases from Foster. Thus, the CI's testimony about the same transactions would have been cumulative, and his testimony about stealing buy money and lying about it to the agents and grand jury would have been impeaching, neither of which is admissible. See Fed. R. Evid. 403 (); United Sates v. Silva, 71 F.3d 667, 670-71 (7th Cir. 1995) (). There simply was no material evidence that the CI, and only the CI, could offer. Defense counsels' inability to change that fact, and the Court's rejection of their Fifth Amendment waiver argument, does not make their performance deficient.
Foster also contends that his lawyers should have argued that the recordings made by the CI were "testimonial" in nature, and thus their admission violated the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 53-59 (2004) (). But again, the record shows that defense counsel raised this argument, albeit unsuccessfully, both before this Court and the Seventh Circuit. (See Def.'s Consol. Resp. Gov't's Mots. Limine at 2-4 [Dkt. 59]; United States v. Foster, No. 11-3097, at 13-20 (7th Cir. Dec. 21, 2012 [Dkt. 188]).) Thus, counsel cannot be faulted for failing to raise it.
Counsels' next purported error was not impeaching Special Agent Mask with false statements he allegedly made to the grand jury. Specifically, Foster says Mask testified that on March 20, 2009, Foster sold the CI a semiautomatic pistol with serial number 951749, but that weapon was in fact recovered from a co-defendant's home two weeks later. (§ 2255 Mot. at 5.) Foster is correct about the substance of Mask's grand jury testimony. (See PSR, Ex. I, Grand Jury Tr. at 10-19.) But he offers nothing to support his unsworn assertion that the gun was actually found in co-defendant Gardner's home two weeks later. Because there is no evidence that Agent Mask gave false grand jury testimony, and thus that defense counsel could have impeached him with it at Foster's trial, this ineffective assistance claims fails. See United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001) ().
Foster also faults counsel for not calling witnesses to rebut the government's case. He does not, however, identify any witnesses that should have been called or describe what testimony they could have offered. Absent such evidence, Foster is not entitled to relief on this claim. See Granada v. United States, 51 F.3d 82, 85 (7th Cir. 1995) (); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) () (footnotes omitted).
In addition, Foster says his lawyers should have argued that his sentence could not be enhanced because of a prior felony drug conviction and career offender status because the facts supporting the enhancements were not found by the jury to have been proved beyond a reasonable doubt. As support for this argument, Foster cites Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151 (2013), in which the Supreme Court held that "any fact that increases the mandatory minimum [sentence]" must "be submitted to the jury and found beyond a reasonable doubt." Id. at 2155. However, the Court's holding does not apply to "the fact of a prior conviction," even those that support a career offender enhancement. See id. at 2160 n.1 ; United States v. Boyce,...
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