United States v. Suggs

• Decision Date: 24 November 2015
• Docket Number: Crim. No. 07–0152–01 (ESH)
• Citation: 146 F.Supp.3d 151
• Parties: United States, v. Anthony Maurice Suggs, Defendants.
• Court: U.S. District Court — District of Columbia

146 F.Supp.3d 151

United States,

v.Anthony Maurice Suggs, Defendants.

Crim. No. 07–0152–01 (ESH)

United States District Court, District of Columbia.

Signed November 24, 2015

Anthony F. Scarpelli, William John O'Malley, Jr., John K. Han, U.S. Attorney's Office, Washington, DC, for United States.

Patrick M. Donahue, Donahue Law Firm, Annapolis, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

ELLEN SEGAL HUVELLE

, United States District Judge

Pursuant to 28 U.S.C. § 2255

, defendant Anthony Maurice Suggs has filed a motion to vacate his conviction. (See Suggs' Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 23, 2013 [ECF No. 323] (“Suggs Mot.”), as supplemented, see Supplemental Motion Under 28 U.S.C. § 2255 & Supplemental Memorandum in Support, June 26, 2015 [ECF No. 363] (“Suggs Supp.”).) The government opposes any relief. (See United States' Resp., Apr. 1, 2014 [ECF No. 349] (“1st Gov't Resp.”); United States' Resp., Sept. 4, 2015 [ECF No. 370] (“2d Gov't Resp.”).) For the reasons stated herein, the motion will be denied.

BACKGROUND

On June 12, 2007, a federal grand jury indicted Suggs and six co-defendants, Julian Johnson, James Lawrence Parker, Ernest Milton Glover,¹ Glendale Earl Lee, Helery Price and Ngozi Joy, for conspiracy to distribute and to possess with intent to distribute one kilogram or more of phencyclidine (PCP) and also charged Suggs with one count of unlawful possession with intent to distribute (“PWID”) one kilogram or more of PCP, in violation of 21 U.S.C. §§ 841(a)(1)

, 841(b)(1)(A)(iv) & 846. (See Indictment, June 12, 2007 [ECF No. 1].) A superseding indictment against Suggs, Parker, Ernest Glover, Lee, and Price was filed on October 16, 2007. (Superseding Indictment, Oct. 16, 2007 [ECF No. 65].) Parker entered a plea of guilty to conspiracy to distribute one kilogram or more of PCP (see Plea Agreement, Feb. 11, 2008 [ECF No. 151] ), and the remaining defendants proceeded to trial.²

At trial, the government's evidence included, inter alia , visual and video surveillance of Suggs and others; approximately 80 conversations recorded by a wiretap on Suggs' cell phone, which was active from January 9, 2007 until April 7, 2007; five conversations recorded by a bug installed in alleged co-conspirator Lonnell Glover's truck, which was active from March 22, 2007 to June 19, 2007 (the “truck bug”);³ testimony from FBI Agent John Bevington, the case agent, who gave his opinion as a lay witness under Federal Rule of Evidence 701

as to the meaning of some of the recorded conversations; evidence that Suggs was living with Joy at Joy's house; evidence seized from Joy's house, including 7.7 kilograms of PCP; evidence seized from the residences of Parker, Ernest Glover, and Lee; and expert testimony from a federal drug investigator about modus operandi of PCP distribution operations in the District of Columbia, two forensic chemists and a fingerprint expert.

The jury found Suggs, Ernest Glover and Price guilty of conspiracy and found Suggs guilty of PWID, in each instance finding that the offense involved one kilogram of more of PCP. (See Verdict Forms, Mar. 13, 2008 [ECF Nos. 171, 172, 173].) The jury was unable to reach a verdict as to Lee, resulting in a mistrial. (Minute Entry, Mar. 18, 2008.) At his second trial, Lee was acquitted. (See Judgment of Acquittal, May 8, 2008 [ECF No. 211].) The three convicted defendants were each sentenced to the statutory mandatory minimum: 240 months for Suggs and life imprisonment for Ernest Glover and Price.⁴ (See Judgment, Aug. 11, 2008 [ECF No. 281]; Judgment, Aug. 11, 2008 [ECF No. 283]; Judgment, Aug. 11, 2008 [ECF No. 277].) On appeal, the Court of Appeals affirmed all three convictions and sentences. See United States v. Ernest Glover , 681 F.3d 411, 416 (D.C.Cir.2012)

.⁵ Defendants' petitions to the Supreme Court seeking writs of certiorari were denied.

After the appeals in the instant case were final, the Court of Appeals considered appeals by defendants in two related cases. See United States v. Hampton , 718 F.3d 978 (D.C.Cir.2013)

and United States v. Lonnell Glover , 736 F.3d 509 (D.C.Cir.2013). The first case was an appeal by Jerome Hampton, who had been indicted, along with Lonnell Glover and others, for conspiracy to distribute PCP and heroin (see supra note 3) and convicted after a jury trial. See Judgment, United States v. Jerome Hampton , No. 07–cr–0153 (D.D.C. Aug. 6. 2010). At Hampton's trial, as at Suggs' trial, the evidence included recorded conversations accompanied by FBI Agent Bevington's lay opinion testimony explaining the meaning of those conversations. Hampton , 718 F.3d at 981. On appeal, the Court concluded that Agent Bevington's testimony had exceeded the scope of lay opinion testimony permitted by Federal Rule of Evidence 701⁶ when he “interpreted ... [intercepted] conversations on the basis of his listening to all of the calls” (approximately 20,000 in total), even though only 100 calls were admitted into evidence and available to the jury. Hampton , 718 F.3d at 983. According to the Court, “[w]hen an agent, particularly a case agent, provides interpretations of recorded conversations based on his ‘knowledge of the entire investigation,’ 'the risk that he was testifying based upon information not before the jury, including hearsay, or at the least, that the jury would think he had knowledge beyond what was before them, is clear.” Id . at 982–83 (quoting United States v. Grinage , 390 F.3d 746, 750 (2d Cir.2004) (internal citations omitted)). Under those circumstances, the Court held that “the jury had no way of verifying his inferences or of independently reaching its own interpretations” and the testimony, “ ‘rather than being helpful to the jury, ... usurped the jury's function.’ ” Id . at 983 (quoting Grinage , 390 F.3d at 751 ). Noting that “[t]he government's evidence consisted largely of wiretap interceptions and recordings from a listening device” and Agent Bevington's interpretation of those recorded conversations, the Court concluded that the error was not harmless and reversed Hampton's conviction. Id . at 984.⁷

The second case was an appeal by Lonnell Glover from his conviction for conspiracy to distribute cocaine. At his trial, as at Suggs' trial, the evidence included conversations recorded by the truck bug. On appeal, the Court held that the warrant authorizing installation of the truck bug was “facially insufficient” under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq .,

and Federal Rule of Criminal Procedure 41⁸ and therefore, that none of the conversations recorded by the truck bug should have been admitted into evidence. See

Lonnell Glover , 736 F.3d at 513–14. Noting that the truck bug evidence constituted “some of the ‘most incriminating’ and ‘most powerful’ evidence at trial,” the Court further held that the error required reversal of Lonnell's Glover's conviction. Id. at 516

(quoting United States v. Saro , 24 F.3d 283, 287 (D.C.Cir.1994) ). Subsequently, and for the same reason, the Court of Appeals granted the government's unopposed motion to vacate Lonnell Glover's conviction in a separate case for conspiracy to distribute PCP and heroin. See Order, United States v. Lonnell Glover , No. 10–3075 (D.C. Cir. July 29, 2014).⁹

Suggs has now filed a motion pursuant to 28 U.S.C. § 2255(a)

, asking the Court to vacate his conviction. His two primary claims, which were fully developed in a supplemental brief filed by appointed counsel, stem from the Court of Appeals' decisions in Hampton and Lonnell Glover. Relying on those cases, he claims that he was deprived of his Sixth Amendment right to effective assistance of counsel at trial and on appeal due to his counsel's failure to object to the admission of the truck bug recordings and his counsel's failure to object to the scope of Agent Bevington's testimony. He has also adopted the ineffectiveness claims made by his co-defendants that apply to him: (1) that appellate counsel was ineffective for failing to challenge the Court's response to a jury note; and (2) that trial and appellate counsel were ineffective in failing to object to the jury's exposure to the odor of PCP from containers that were brought into the courtroom. (See Suggs' Motion to Adopt, Jun. 26, 2015 [ECF No. 365]; Minute Order granting Motion to Adopt, June 27, 2015). Finally, Suggs' pro se motion included two additional claims: (1) that the government committed a Brady violation; and (2) that Agent Bevington impermissibly testified as an expert. As these claims cover a wide range of events, the additional facts underlying each claim will be set forth in the analysis portion of this Memorandum Opinion.

ANALYSIS

I. LEGAL STANDARD FOR § 2255

MOTION

Section 2255(a)

provides that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a)

. “A district judge must grant a prompt hearing under § 2255 unless ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Pollard , 959 F.2d 1011, 1030 (D.C.Cir.1992) (quoting 28 U.S.C. § 2255(b) ). “The decision whether to do so is committed to the district court's discretion.” Id . at 1030–31 ; see also

United States v. Morrison , 98 F.3d 619, 625 (D.C.Cir.1996) (A “district judge's decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also...