US v. Custis, Crim. No. S 91-0334.

• Decision Date: 16 March 1992
• Docket Number: Crim. No. S 91-0334.
• Citation: 786 F. Supp. 533
• Parties: UNITED STATES of America v. Darren CUSTIS.
• Court: U.S. District Court — District of Maryland

786 F. Supp. 533

UNITED STATES of America v. Darren CUSTIS.

Crim. No. S 91-0334.

United States District Court, D. Maryland.

March 16, 1992.

Richard D. Bennett, U.S. Atty., Robert E. Sims and Thomas DiBiagio, Asst. U.S. Attys., Baltimore, Md., for plaintiff.

Fred Warren Bennett, Federal Public Defender, Tyler C. Johnston and Mary French, Asst. Federal Public Defenders, Baltimore, Md., for defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

This criminal case under the Armed Career Criminal Act, 18 U.S.C. § 924(e) is before the Court on issues regarding the sentencing of Mr. Darren Custis and his motion for new trial.

First, Mr. Custis has challenged the constitutional validity of his prior convictions, arguing, inter alia, that he was denied effective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as to two of his prior convictions. Mr. Custis contends that these convictions cannot be used to sentence him as a thrice-convicted armed career criminal. Thus, before addressing the arguments on the merits as to the various points raised by counsel going to the validity of the prior convictions, this Court examined the circumstances in which collateral attack should be allowed on prior convictions under 18 U.S.C. § 924(e). From its analysis, this Court now concludes that, with one narrow possible exception, collateral attacks on prior convictions should not be entertained at sentencing, for reasons that will be explained herein.

This opinion will also address the defendant's motion for new trial, based upon newly discovered evidence concerning the veracity of two Government witnesses. Specifically, two of the police officers who testified at the suppression hearing and at trial, and whose testimony constituted the principal evidence in support of Mr. Custis' conviction for possession of a firearm, have been indicted for perjury arising in the course of their work in an unrelated case. The indictments were filed after the trial in this case, but before sentencing. The defendant argues that this new information concerning the officers seriously undermines confidence in the jury's guilty verdict on the firearms count in the present case. The Government, in turn, rejects the notion that a new trial should be granted upon these grounds. Because this Court finds that the law and the equities in this case support the grant of a new trial, defendant's new trial motion will be granted, as explained further below.

Factual Background

Mr. Custis was tried by jury in November of 1991 on a three-count indictment charging him with (1) possessing, with the intent to distribute, cocaine, (2) carrying a firearm in connection with a drug trafficking offense, and (3) possessing a firearm after having been convicted of a crime punishable by a term of imprisonment exceeding one year. At trial, three Baltimore City police officers testified on behalf of the Government. Two of the officers, Christopher Wade and John Mohr, originally arrested the defendant on state narcotics and firearms charges. As part of "Operation Triggerlock," a federal prosecution was undertaken pursuant to 18 U.S.C. §§ 922 and 924. A third officer testified regarding the defendant's purported admissions concerning the firearm. During the trial, Mr. Custis testified on his own behalf, admitting to possession of a small amount of cocaine for his personal use, but denying ownership and/or possession of the gun. After a three day trial, the defendant was convicted of the lesser-included offense of possession of cocaine, as well as the felonin-possession of a firearm charge, in violation of 18 U.S.C. § 922(g) and § 924(e)(1), but was acquitted of the charge of carrying a firearm during the commission of a drug trafficking crime.

In February 1992, as the result of an investigation into an unrelated, earlier case conducted by the Baltimore City State's Attorney's Office, Officers Wade and Mohr were indicted for misdemeanor perjury, arising from allegedly false statements in applications for search warrants¹. Subsequent to the indictment, defense counsel sought to obtain by subpoena all records regarding the state's investigation of these officers, as well as the officers' personnel records.² The purpose of the subpoenas was to determine whether or not those records contained information relevant to a motion for new trial. This Court subsequently quashed the subpoenas, pursuant to an Order requiring the prosecutor to submit an affidavit stating that, upon review, the records contained no Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), exculpatory information (including impeachment information) extant before the trial of Mr. Custis. The Court received the requisite affidavit prior to the sentencing hearing, and finds, on the basis of that affidavit and its attachments, that there was no violation of Brady³ in the present case.

Collateral Attack on Prior Convictions Used to Calculate Armed Career Criminal Status

The Government here requests application of the Armed Career Criminal enhancement of 18 U.S.C. § 924(e) to Mr. Custis. The defendant must have been convicted of three prior violent felonies to trigger the enhancement, which raises the penalty for the felon-in-possession of a firearm charge under § 922(g) from a maximum of ten years to a minimum of fifteen years, with a maximum of life. 18 U.S.C. § 924(e)(1). Under U.S.S.G. § 4B1.4, the minimum possible guideline sentence is 188 months. Unlike the statutory scheme for enhancement of sentences in drug cases, the Armed Career Criminal Act provides no statutory right to challenge prior convictions relied upon by the Government for enhancement. Compare 18 U.S.C. § 924(e) with 21 U.S.C. § 851. Thus, the only relevant question is the extent to which any other statute, the Constitution itself, or case law gives the defendant such a right.

The only statute conceivably relevant is 18 U.S.C. § 3661, which provides simply that the Court may consider any relevant information at sentencing. That statute does little to shed light upon the present situation.

The Constitution, as interpreted by the Supreme Court, appears to prohibit use of prior convictions to enhance sentences only where the convictions are void because the defendant was deprived of the opportunity to retain counsel, or, being indigent, was deprived of the opportunity to have counsel appointed. In other words, the conviction cannot be used to enhance only if it was obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). (For reasons that follow, even this narrow prohibition may not apply in § 924(e) cases.)

This Court knows of no binding authority on the point from the United States Court of Appeals for the Fourth Circuit. Other circuits have addressed the issue of collateral attack upon prior convictions at sentencing and have allowed defendants to challenge prior convictions on constitutional grounds other than deprivation of the right to counsel, without specifically addressing the origin and nature of the "right" to raise the challenge, but simply allowing it to proceed. See, e.g., United States v. Day, 949 F.2d 973, 980-81 (8th Cir.1991). This Court's analysis of Day and the cases collected therein, though, leads to the conclusion that, to the extent the cases have extended the rule of Tucker and Burgett to entertain collateral attacks in cases not involving the frank deprivation of the right to any representation by counsel, they are unsound.

For example, the passage from Tucker, 404 U.S. at 448-49, 92 S.Ct. at 592-93, relied upon in Day, 949 F.2d at 981, simply does not extend to guilty pleas in which counsel has incompetently performed; rather, Tucker concerned itself only with defendants who had been cut off from any right to counsel at all. A guilty plea that can be attacked on ineffective representation grounds is very different from a situation where the defendant never was afforded the right to see a lawyer at all, but was nonetheless convicted. It is only the latter situation that is so fundamentally unfair that a resulting conviction cannot be used for enhancement later under Tucker. See United States v. Graves, 554 F.2d 65, 82 (3d Cir.1977), cited with approval in Grandison v. Warden, 580 F.2d 1231, 1240-41 (4th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979).

Furthermore, and most importantly, the decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), should be read as foreclosing any collateral attack, whether before conviction on the § 924(e) underlying gun offense or at sentencing for it, on a predicate conviction, even where the predicate conviction could otherwise be challenged under Tucker and Burgett. Although Lewis did not directly involve § 924(e), it construed a gun control statute (since repealed) essentially in pari materia with § 924(e)'s base offense (18 U.S.C. § 922(g)), viz., 18 U.S.C.App. former § 1202(a). If, as it appears, a conviction void under Tucker could be used as a predicate for convicting someone of the substantive firearms offense under Lewis, a fortiori it can be considered at sentencing on that offense, immune from collateral attack. This Court recognizes that Lewis, 445 U.S. at 67, 88 S.Ct. at 922, distinguished Burgett but that distinction is neither logically supportable nor persuasive. If the "void" prior conviction is "reliable" enough to support indictment and conviction, it is logically "reliable" enough to be a predicate for an enhanced sentence.

Additionally, this Court's basis for precluding collateral attack at sentencing (on grounds other than, possibly, total deprivation of counsel) includes the persuasive arguments made by Judge...