United States v. Underwood, Civ. A. No. 77-0299.

• Decision Date: 03 November 1977
• Docket Number: Civ. A. No. 77-0299.
• Citation: 440 F. Supp. 499
• Parties: UNITED STATES of America v. John UNDERWOOD, Petitioner.
• Court: U.S. District Court — District of Rhode Island

440 F. Supp. 499

UNITED STATES of America v. John UNDERWOOD, Petitioner.

Civ. A. No. 77-0299.

United States District Court, D. Rhode Island.

November 3, 1977.

William A. Dimitri, Jr., Asst. U. S. Atty., Providence, R. I., for plaintiff.

John Underwood, pro se.

OPINION

PETTINE, Chief Judge.

The petitioner, John R. Underwood, presently incarcerated in the U.S. prison in Atlanta, Georgia, was convicted in this Court, J. Day presiding, on February 20, 1976 for the unlawful distribution of a schedule II narcotic drug controlled substance, cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced on June 30, 1976 to five years, with a special parole term of at least three years in addition. The First Circuit affirmed that conviction 553 F.2d 91 (1st Cir. 1977) (per curiam). The Supreme Court denied certiorari on March 28, 1977, 430 U.S. 950, 97 S.Ct. 1590, 51 L.Ed.2d 799.

Petitioner now brings suit attacking his sentence under 28 U.S.C. § 2255 (1970) alleging that his conviction was based on illegally seized evidence, that he was denied the effective assistance of counsel, that the prosecution suppressed exculpatory evidence, that his sale of cocaine to a government agent, for which he was convicted, was the result of entrapment, and that he was convicted on perjured testimony.

Upon review of Mr. Underwood's petition and his accompanying memorandum, the objection and memorandum of the U.S. attorney and the trial transcript, and after a conference on the record with the prosecution and defense attorneys, this Court finds that no genuine or crucial issue of fact requires resolution nor is a further expansion of the record or evidentiary hearing required pursuant to Rules Governing § 2255 Proceedings for the U. S. District Courts, R 7, 8 (Sept. 28, 1976). See Miller v. U. S., 564 F.2d 103, at 105-106 (1st Cir. 1977). This Court finds that the petitioner is not entitled to relief.

Entrapment

Petitioner's claim of entrapment is without merit. The issue was squarely presented to the jury and then squarely put in issue on appeal. After reviewing his claim of entrapment, the First Circuit affirmed the conviction. When an issue has been dispositively determined by appeal, it is thereafter foreclosed. Boeckenhaupt v. U. S., 537 F.2d 1182 (4th Cir. 1976), cert. denied 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142; Meyers v. U. S., 446 F.2d 37, 38, 38 n. 1 (2d Cir. 1971); Clayton v. U. S., 447 F.2d 476 (9th Cir. 1971). But cf. Kaufman v. U. S., 394 U.S. 217, 230-31, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

Illegal Search and Seizure

Petitioner claims that following his arrest on June 24, 1975, police officers made a warrantless search of his apartment, resulting in an illegal seizure of cocaine.

According to the testimony of both arresting officers and petitioner, petitioner agreed, on June 24, to sell approximately two ounces of cocaine to Drug Enforcement Administration Agent Herbert J. Lemon, Jr., whose true identity was unknown to petitioner at the time. Both petitioner (Transcript at 310) and Agent Lemon (Transcript at 58) testified that petitioner handed approximately two ounces of cocaine to Agent Lemon, while the two voluntarily met in petitioner's apartment on the third floor of a multi-unit apartment building. Agent Lemon then requested petitioner to accompany him downstairs to collect the payment from his "moneyman", really Agent McCarthy, who was waiting just outside the front door of the apartment building (Transcript at 58, 243, 315). More officers arrived and petitioner was arrested. He was then taken back upstairs to his third floor apartment. Petitioner testified that he was handcuffed by the time he reached his apartment. (Transcript at 315). Petitioner now contends that police officers searched his apartment and seized cocaine in addition to that amount he voluntarily gave Agent Lemon. The testimony of the arresting officer, Agent McCarthy, tends to corroborate petitioner's account. (Transcript at 253-56).

The cocaine allegedly illegally seized, however, was not the basis of the indictment nor was it admitted into evidence directly as a full exhibit. Count four of the indictment, the only charge for which petitioner was convicted, was based only on the cocaine petitioner handed to Agent Lemon. However, evidence of the allegedly illegally seized cocaine was placed before the jury by the testimony of Agent Lemon when he stated that he sent the samples of substances obtained from petitioner or petitioner's apartment for chemical analysis (Transcript at 59-60). He testified, upon examination by the Assistant United States Attorney:

Q Could you tell the jury and the Court exactly what you sent down to New York at that time?

A Yes, sir. I sent down three separate exhibits: one exhibit would be the two ounces of cocaine —

The Court: Two ounces?

The Witness: Yes, sir.

A (Continued) — that Mr. Underwood handed to me on that date. I also sent down the clear plastic baggie that he had shown me behind the bar that contained cocaine, and additionally I sent down the other small package that he told me had cocaine, I sent all three of these to our lab in New York.

Defense counsel did not object to this testimony. He did object to the prosecution's request that the lab request forms Agent Lemon wrote to accompany the seized evidence be marked for identification only. He objected that the evidence was illegally seized and that even marking for identification would be "cumulative" and "prejudicial" (Transcript at 62). The Assistant United States Attorney conceded that defense counsel's objection might be well-founded if the forms were admitted as a full exhibit. The Court did not finally rule but permitted the items to be marked for identification "until we see" (Transcript at 63).

Defense counsel did not move to suppress the cocaine prior to trial, as required by Fed.R.Crim.P. 12(b)(3). Nor did counsel move to suppress the testimony of Agent Lemon at trial. Although defense counsel did object at trial, he failed to press the Court for a ruling. If these failures constitute an inexcusable "waiver" of his fourth amendment rights, this Court cannot now examine, pursuant to § 2255, the petitioner's fourth amendment claim.

In determining whether the defense counsel waived the constitutional claim, the Court has looked to the standard announced in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) rather than in Kaufman v. U. S., 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). See, Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Kaufman, the defense counsel did make a timely motion to suppress but failed to raise the fourth amendment issue on appeal. The Supreme Court held that a court could nonetheless grant relief to a federal prisoner pursuant to 28 U.S.C. § 2255. However, the Court noted that relief may be withheld if the federal prisoner deliberately bypassed orderly trial and appellate procedures. Kaufman v. U. S., 394 U.S. at 227 n. 8, 89 S.Ct. 1068. Defendant would be held to have deliberately bypassed appropriate procedures if the procedural default was an "intentional but not inadvertent", Wainwright v. Sykes, 433 U.S. at 110, 97 S.Ct. 2497 (Brennan, J. dissenting), relinquishment or abandonment of a known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). At the time of Kaufman, a motion to suppress had to be made before trial unless no opportunity to so move existed or defendant was unaware of the grounds for the motion. Fed.R.Crim.P. 41(e). Nonetheless, the Kaufman Court only held that § 2255 relief for a fourth amendment claim was definitely barred by a deliberate procedural by-pass before or at trial. The Court did not enumerate what other circumstances might bar § 2255 relief. 394 U.S. at 227 n. 8, 89 S.Ct. 1068. See Whitney v. U. S., 513 F.2d 326 (5th Cir. 1974). In Davis v. U. S., 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) the petitioner had failed to move to challenge the racial composition of a federal grand jury before trial as required by Fed.R. Crim.P. 12(b)(2). The Court held that his failure was not to be measured by whether the defendant had deliberately bypassed the pretrial motion procedure but whether the defendant could show "cause" why the procedure was not followed and that he suffered actual prejudice as a result. Davis v. U. S. 411 U.S. at 244-45, 93 S.Ct. 1577. Kaufman was distinguished because the express waiver provision of Rule 12 put the defendant and his counsel on clear notice that Congress intended a Rule 12 default to operate as a waiver with regard to subsequent relief, excepting upon a showing of cause acceptable to the Court. Since Davis, the Federal Rules of Criminal Procedure have been amended so that a motion to suppress is now governed by the express waiver provision of Rule 12, which was the subject of the Davis decision and not by Rule 41 which was the basis of the Kaufman decision.¹

Thus, according to Rule 12(f), failure to make a timely motion to suppress constitutes a waiver unless cause is shown to excuse the failure. The dual Davis tests of "cause" and "prejudice" determine whether relief from the procedural default should be granted.

Upon review of the trial transcript, the Court can find no special reasons which would excuse the defense counsel's failure to press for suppression. In so far as "cause" under Rule 12 and Davis refers to those reasons which excuse or justify an attorney's failure to comply with a procedural rule, this Court finds no "cause". Presumably defense counsel was aware of the illegal seizure but did not suspect that the government would introduce that evidence directly or indirectly. Thus, Counsel probably saw no need to move for suppression before trial. Even if this were not the case and even if this would excuse his failure to move before...