United States v. Hutchins, Case No. 3:08cr39/MCR/CJK
| Decision Date | 21 August 2012 |
| Docket Number | Case No. 3:08cr39/MCR/CJK,3:09cv566/MCR/CJK |
| Parties | UNITED STATES OF AMERICA, v. CHRISTOPHER MICHAEL HUTCHINS, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
This matter is before the court upon defendant's motion to vacate, set aside, or correct sentence (doc. 135), filed pursuant to 28 U.S.C. § 2255. The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636, and NORTHERN DISTRICT OF FLORIDA LOCAL RULE 72.2(B). Having conducted a careful review of the record and the arguments presented, the undersigned concludes that the motion should be denied.
The defendant, Christopher Michael Hutchins ("Hutchins"), and co-defendants Abraham David Saftchick ("Saftchick") and Howard D. Fisher ("Fisher"), were charged with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846. (Doc. 3, pp. 1-2). Defendant entered a plea of guilty to that charge (doc. 73), and the district court sentenced him to seventy-two months' imprisonment. (Doc. 132, p. 67).
Coconspirator Justin Mikhael ("Mikhael") became the subject of a criminalinvestigation by the Florida Department of Law Enforcement, the Okaloosa County, Florida, Drug Task Force, and the Drug Enforcement Administration. (PSR ¶¶ 10-11). On November 14, 2006, a surveillance camera was installed near Mikhael's residence to monitor and record activity. (PSR ¶ 18). On March 15, 2007, this camera observed defendant arriving at Mikhael's residence in a rental van and departing with a small bag. (PSR ¶ 35). Mikhael later advised law enforcement that, on this occasion, defendant had picked up $20,000 that Mikhael owed Hutchins for the purchase of marijuana. (PSR ¶ 35). On April 5, 2007, Mikhael's residence was searched and large quantities of marijuana, large sums of U.S. currency, and several firearms were found. (Doc. 145-3, pp. 6-8).2 Mikhael subsequently informed officers that he utilized the firearms for protection after being shot during a drug transaction. (Doc. 145-3, p. 9). Mikhael was arrested, entered a guilty plea, and agreed to cooperate with the government. (Doc. 118-2, pp. 3-4; Doc. 145-3, p. 8).
Mikhael identified Saftchick as one of his primary sources of marijuana and Hutchins as Saftchick's partner. (PSR ¶ 12). Mikhael stated that he met Hutchins about halfway through his dealings with Saftchick. (PSR ¶ 15). Defendant telephoned Mikhael, told him Saftchick was in a drug rehabilitation program, and offered to continue providing him with marijuana. (PSR ¶ 15). When Mikhael ordered marijuana from Saftchick or Hutchins, Howard Fisher delivered it. (PSR ¶ 14). Mikhael explained that he purchased twenty pounds of marijuana from Hutchins on approximately seven occasions. (PSR ¶ 16).
On April 15, 2008, a grand jury returned an indictment charging defendant, Saftchick, and Fisher with conspiracy to distribute 100 kilograms or more ofmarijuana. (Doc. 3, pp. 1-2). A warrant was issued for defendant's arrest (doc. 10), and he was arrested on May 23, 2008, in Fort Lauderdale, Florida. (Doc. 51). State and federal law enforcement officials also executed a warrant to search defendant's residence in Davie, Florida. (PSR ¶ 46). This search led to the seizure of $32,000 and several firearms. (PSR ¶ 46). On July 29, 2008, defendant pleaded guilty to the sole count in the indictment. (Doc. 73; PSR ¶ 8). Defendant stipulated to the factual basis proffered by the government, defining the parameters of the conspiracy:
Between approximately January of 2005 and May of 2007, the defendant participated in a conspiracy or agreement with other persons, including co-defendants Abraham Saftchick and Howard Fisher to acquire distribution quantities of marijuana and provide the marijuana to others. Justin Mikhael made arrangements with the defendant and co-defendant Abraham Saftchick for distribution quantities of marijuana to be delivered to Mikhael's residence in Destin, Florida. The defendant and co-defendant Abraham Saftchick would make arrangements for co-defendant Howard Fisher to deliver distribution quantities of marijuana to Justin Mikhael at his residence in the Destin, Florida area. The marijuana provided by the defendant and delivered by Fisher would then be stored at Mikhael's residence until Mikhael would, in turn, distribute the marijuana to others in the Northern District of Florida. The amount of marijuana acquired and distributed in this manner by the defendant over the course of the conspiracy exceeded 100 kilograms.
(Doc. 74-2).
Although the defendant did not enter into a formal plea and cooperation agreement with the government (doc. 116, pp. 1-2; doc. 118, p. 3), he did engage in a proffer interview with law enforcement in an effort to encourage leniency at sentencing. (Doc. 110, p. 6; Doc. 116-2, pp. 1-3). During this interview, conducted on August 20, 2008, defendant described the operation of the conspiracy and the individuals involved. (Doc. 118, p. 3; Doc. 132, pp. 16-17).
The veracity of Hutchins's interview responses came into question when Saftchick, in speaking with law enforcement, made statements tending to contradict those of the defendant. (Doc. 132, p. 22). The conflict between the two sets of statements concerned the role of defendant's father in the conspiracy; Hutchins denied that his father was involved, whereas Saftchick identified Hutchins's father as a party to the drug trafficking conspiracy. (Doc. 116, p. 3). To resolve this conflict, the prosecutor requested that defendant undergo a polygraph examination. (Doc. 135, p. 14). Michael Dutko ("Dutko"), defendant's attorney, did not feel it would be in Hutchins's best interests to submit to the polygraph without establishing conditions to ensure the exam's fairness. (Doc. 135, p. 18). The prosecutor did not agree to Dutko's proposed conditions and the polygraph was never conducted. (Doc. 132, pp. 27-28).
A presentence investigation report was prepared to aid the court in determining Hutchins's sentence. The report recommended that all three defendants be held responsible for the firearms possessed by coconspirator Justin Mikhael during the conspiracy and seized at his residence. (PSR ¶¶ 53, 60).
After receiving the presentence investigation report, Dutko objected to its recommendation that Hutchins be held responsible for Mikhael's firearm possession. (PSR ¶ 125). Defense counsel contended that "Hutchins can make a credible argument that Mikhael's possession of the firearms was not reasonably foreseeable to Hutchins, and that it was clearly improbable that Mikhael's possession was connected to the conspiracy." (PSR ¶ 125). In preparation for the sentencing hearing, Dutko contacted a federal sentencing specialist, Michael H. Berg ("Berg"), to solicit advice on arguing against the proposed firearm enhancement to the court.(Doc. 135, pp. 7-8). Dutko also employed Marc Fagelson ("Fagelson"), who served for twenty-five years as an Assistant U.S. Attorney in the Southern District of Florida, to assist him in preparing for the sentencing phase. (Doc. 145-2, pp. 1-3).
At defendant's sentencing hearing, counsel continued to object to the enhancement for possession of a firearm by coconspirator Justin Mikhael. (Doc. 132, pp. 6-12). The court, however, overruled the objection and adopted the same position it had in the sentencing hearings of co-defendants Saftchick and Fisher, finding that possession of a firearm by a coconspirator in a large drug trafficking conspiracy was reasonably foreseeable. (Doc. 132, pp. 11-12). In consideration of this finding, the court enhanced defendant's base offense level by two levels. (Doc. 132, pp. 12-13). Although the government did not file a substantial assistance motion pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K1.1, Dutko argued successfully that defendant's cooperation entitled him to a downward departure from the prescribed guidelines range. (Doc. 132, p. 62). Accordingly, the court sentenced Hutchins to seventy-two months' imprisonment, below the guideline range of seventy-eight to ninety-seven months. (Doc. 132, pp. 13, 70).
Pursuant to 28 U.S.c. § 2255, defendant timely filed the instant motion to vacate, set aside, or correct sentence (doc. 135), asserting two grounds on which he believes he is being held in violation of the Constitution, laws, or treaties of the United States. The government filed a response in opposition (doc. 145), and the defendant filed a reply. (Doc. 150). Hutchins contends defense counsel rendered ineffective assistance by failing to: (1) object to the court's failure to determine that defendant agreed to Mikhael and Saftchick's firearm possession; and (2) followdefendant's instructions to accept the prosecutor's request to submit to a polygraph examination (regardless of the conditions), and failing to have defendant enter into a written plea and cooperation agreement so as to "protect [his] interest[s]."3 (Doc. 135, p. 3).
As a preliminary matter, the court notes certain general rules applicable in § 2255 proceedings following direct appeals, as well as the distinction between review under § 2255 and direct appeal. "Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding." Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). "A ground of error is usually 'available' on direct appeal when its merits can be reviewed without further factual development." Id. "A claim not raised on direct appeal is procedurally defaulted unless the petitioner can establish cause and prejudice for his failure to assert his claims on direct appeal." McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). "Further, a § 2255 mo...
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