US v. Wren, Civ. A. No. 187-150.
| Decision Date | 02 March 1988 |
| Docket Number | Civ. A. No. 187-150. |
| Citation | 682 F. Supp. 1237 |
| Parties | UNITED STATES of America v. Charles Robert WREN. |
| Court | U.S. District Court — Southern District of Georgia |
Roy E. Paul, Savannah, Ga., for Wren.
Asst. U.S. Atty. J. Michael Faulkner, Augusta, Ga., for the U.S.
Defendant, Charles Wren, currently incarcerated in the Federal Correctional Institution in Lexington, Kentucky, moves to vacate the revocation of his probation pursuant to 28 U.S.C. § 2255. For the following reasons, the motion will be denied.
Wren was originally convicted by a jury on February 16, 1979, for possession of stolen mail, uttering a forged document and conspiracy under a two-count indictment. On June 1, 1979, this Court imposed a modified probated sentence. On March 23, 1984, Wren's probation was revoked following a hearing and he was given an eight-year sentence. The Court found that Wren violated the terms of his probation by planning and participating in a drugstore burglary; by participating in an extortion attempt on a bank; and by possessing firearms.
The revocation was upheld on direct appeal. 751 F.2d 1259 (11th Cir.1984) (table). Wren then moved for reduction of sentence under Fed.R.Crim.P. 35, which was denied without a hearing. The denial was affirmed. 786 F.2d 1179 (11th Cir.1986) (table). Wren then moved to vacate his original 1979 sentence under § 2255. The motion was denied and is presently on appeal. Eleventh Circuit Docket No. 87-8461.
Wren has now filed this § 2255 motion collaterally attacking the revocation of his probation in March 1984.1 Wren's primary contention is that he received ineffective assistance of counsel at the revocation hearing. He also asserts that this Court erred at the hearing because it assisted the Government during the hearing; and because it relied on uncounseled prior convictions in imposing sentence. Only his ineffectiveness claim warrants extended discussion.
Wren was arrested for probation violations on February 27, 1984. On March 4, 1984, his appointed counsel, Assistant Public Defender Martin Puetz, perfected Wren's release on a property bond. Wren then met with Puetz and planned a defense to the revocation.
A revocation hearing was set for March 23, 1984. According to Wren, three days prior to the hearing Puetz informed him that Puetz' associate, Public Defender Davis Cohen, would be representing Wren at the hearing. The reason given to Wren, and repeated to the Court at the hearing, was that the 23rd was Puetz' birthday.
Although they had conferred by telephone several days prior, Cohen met Wren for the first time in the lobby of the Court less than 15 minutes prior to the hearing. At that time, Wren was told that Cohen planned to attempt to dismiss the proceeding due to the Government's delay in seeking the revocation. The hearing proceeded as follows:
At the outset, Cohen informed the Court that he had just met Wren and that he was substituting for Puetz. Cohen then proceeded to support the dismissal for delay theory with Wren's testimony and through argument. The Court reserved a ruling on the motion and the Government was directed to present its case regarding the probation violations.
The Government commenced by detailing the extortion attempt. James Menger was the manager of a branch bank in Augusta, Georgia, and he testified that on September 23, 1982, he received a phone call at the bank from an unidentified male. The caller told Menger to remove all of the money from the bank vault and deliver it to a shopping center in return for his wife who was supposedly abducted. When Menger called his wife at her place of work, the phone lines were dead; and it was established that they had been recently cut by unknown person(s). However, Mrs. Menger—who had not been abducted—was quickly located, and no money was removed from the bank or delivered to any extortioners.
The evidence establishing Wren's involvement in the attempt consisted primarily of the testimony of James Florida, a deputy sheriff and friend of Wren; the testimony of James Davies, an FBI agent; and transcripts of tape recorded conversations between Wren and Florida. While the recorded conversations only circumstantially implicated Wren in the crime, Florida also related to the Court an unrecorded conversation in which Wren admitted that he placed the call to Menger at the bank.
Wren neither admitted nor denied that he was involved in the crime. Rather, during his testimony regarding the delay motion, he testified that he had no memory of where he was during that day. Cohen's cross-examination of Florida was vigorous. He attempted to discredit Florida generally by casting the entire relationship between Wren and Florida in a conspirational light. He also attempted to discredit Florida's recollection of Wren's "admission conversation" by pointing out that it appeared to be the only unrecorded conversation, despite Florida's then-existing cooperation with the FBI and access to recording devices.
The Government next proceeded to establish Wren's involvement in the drugstore burglary. Walter Miller, testifying under a plea agreement with the federal prosecutors, outlined various conversations he had with Wren and others regarding proposed bank burglaries and described in detail a burglary of a Revco drugstore in Augusta which was designed to be a test run for more lucrative jobs. He testified that Wren participated in the planning of the burglary and that Wren was the driver and lookout for the job. He also stated that Wren insisted that the four perpetrators carry firearms and that Wren took a sawed-off automatic rifle to the job.
Cohen cross-examined Miller and stressed his unreliability due to his extensive rap-sheet and by virtue of his presumed self-interest arising from the plea agreement.
The Government then produced Joseph Berry, who was also involved in the burglary. Berry, testifying under a plea agreement, essentially repeated the scenario described by Miller. He added that Wren provided him with a .32 caliber revolver for the job. He also testified that the proceeds from the burglary—primarily drugs—were split evenly among the four participants and that Wren took his split.
Again Cohen attempted to impeach Berry by stressing his extensive rap-sheet and his plea agreement.
The final probation violation charged was possession of firearms. In addition to the testimony of Miller and Berry, the Government produced James Ford, a Richmond County Police Sergeant, who testified that he saw guns at Wren's pawn shop on January 20, 1983; that the guns were in a desk drawer; and that he and Wren had a brief discussion about them when Ford was there on a call from Wren.
Cohen's cross-examination focused on whether Ford could be certain that the guns were real and/or in working order considering that he did not actually handle the guns and whether it was likely that the guns belonged to an employee of Wren's identified as Tom.
At that point, the Goverment moved for the Court to take notice of Wren's conviction, sentencing and placement on probation, and then "concluded the Government's presentation." Transcript, p. 145. The following exchange took place:
The Government then called Probation Officer Don Williams, who testified that he informed Wren of the terms and conditions of his probation and that Wren signed the conditions. Williams then read into the record the condition which prohibits the violation of any federal, state or local law.
Cohen did not challenge Williams about the probation terms and conditions, nor Wren's understanding thereof; rather, Cohen elicited from Williams testimony about the delay between the authorization for the issuance of a warrant for Wren's arrest and the actual arrest of Wren (approximately five weeks).
On that note, the evidence was concluded and the discussion turned back to the merits of the motion to dismiss based on prejudicial delay.
The Court then entered its findings, concluding that Wren participated in the burglary, participated in the extortion attempt and possessed firearms, all in violation of the terms of his probation. The Court also found that the Government did not intentionally delay petitioning for revocation; nor that Wren was materially prejudiced by the delay. After allowing counsel and Wren to make statements, the Court imposed consecutive four-year terms on each of the original two counts.
At the outset, the Court notes that this motion is limited to Wren's ineffectiveness claims. The issue of delay has been examined by the appellate court and is not before this Court. However, because ineffectiveness claims...
To continue reading
Request your trial
-
People v. Silva
...Otherwise, the appointment is a useless formality." Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965); see United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga. 1988)(an indigent federal probationer's statutory right to appointed counsel at a probation revocation hearing under 18 U.S......
-
Ex Parte Graves
...Warden, 223 Conn. 834, 613 A.2d 818, 821-2 (1992) (citing Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965) & United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988)). In 1997, the Supreme Court of Connecticut reaffirmed its holding and rationale in Lozada. Iovieno v. Commissioner......
-
Lozada v. Warden, State Prison
...Otherwise, the appointment is a useless formality." Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965); see United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988) (an indigent federal probationer's statutory right to appointed counsel at a probation revocation hearing under 18 U.S......
-
Krebs v. Weber
...Lozada, 613 A.2d at 821 (emphasis added) (quoting Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965)) (citing United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988) ("an indigent federal probationer's statutory right to appointed counsel at a probation revocation hearing ... `woul......