Vann v. United States of America

Filing 14

REPORT AND RECOMMENDATIONS re 2 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Rayvell Vann by Magistrate Judge Kevin R. Sweazea. Objections to R&R due by 9/15/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

No. 1:16-cv-01204-PJK-KRS
No. 1:12-cr-00966-PJK

v.
RAYVELL VANN,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Rayvell Vann, an inmate presently incarcerated at Leavenworth, seeks review of his
sentence pursuant to 28 U.S.C. § 2255. In his pro se motion, Vann asserts his attorneys rendered
constitutionally ineffective assistance because they (1) failed to call certain witnesses at trial who
would have “cast doubt” on his possession of drugs; (2) did not challenge the validity of
incriminating statements he made post arrest; and (3) prevented him from testifying on his own
behalf at trial. Acting under an order of reference from United States Circuit Judge Paul J. Kelly,
Jr. to conduct proceedings, see 28 U.S.C. § 636, the Court has considered the parties’
submissions together with the record and RECOMMENDS Vann’s motion be DENIED and
this matter be DISMISSED WITH PREJUDICE.
I. BACKGROUND
A. Facts
In early April 2012, Vann flew from Omaha, Nebraska, where he lived, to Los Angeles,
California to negotiate the purchase of marijuana and PCP. [Doc. 266, pp. 153-54]. 1 After

1

The docket numbers (“Doc.” ) cited herein refer to the criminal docket unless denominated as “CV Doc.” In the
District of New Mexico, pleadings and other papers submitted in Section 2255 cases commenced before January 1,
2017, are filed in the underlying criminal case and a separately opened civil matter created upon the filing of the
United States v. Vann
Proposed Findings & Recommended Disposition
Page 1 of 17

staying in Los Angeles for about five days, Vann bought a one-way ticket to Kansas City,
Missouri aboard Amtrak’s Southwest Chief about two hours before its scheduled departure time.
[Id., pp. 103; 153-54]. This short window and the fact Vann paid cash, both of which suggest to
law enforcement agents a possible drug transport, caught the attention of a confidential informant
within the Drug Enforcement Agency. [Id., pp. 103-104]. The informant alerted DEA Special
Agent Kevin Small, an Albuquerque-based interdiction specialist, that Vann, among other
suspects, would be aboard the Southwest Chief on April 9, 2012. [Id, pp. 102-103].
Because trains in the United States do not screen luggage, trains are prime targets for
smugglers to use in transportation, and interdiction agents utilize “consensual encounters” as a
tool for combatting the West-East movement of drugs across the nation. [Id, pp. 95-96]. A
“consensual encounter” in the drug-interdiction world is a voluntary or consensual conversation
with a suspect to gather information as to whether the person is transporting narcotics. [Id., pp.
95-96]. As the name implies, the suspect is under no obligation to answer questions, and
participates in the conversation with the agent voluntarily. [Id.].
Knowing the train would make a scheduled stop in Albuquerque between 10:30 and
11:00 a.m., Agent Small prepared to board the train and conduct a consensual encounter with
Vann. [Id., pp. 114-121]. Agent Small was accompanied by two partners from local law
enforcement agencies, Task Force Officers Danny Joseph and Jeannette Tate. [Id., pp. 115].
After boarding the Southwest Chief, Agent Small found Vann in car 412 sitting in a window
seat. [Id., p. 118]. Vann agreed to talk to Agent Small and allowed Agent Small to search
Vann’s luggage, a laptop case and small duffle bag. [Id., pp. 128-29]. Inside the duffle bag was
a large, pink gift box that spanned the entire length of the bag, along with what appeared to be
motion challenging the sentence. The two electronic dockets, while similar, are not identical. For that reason, the
Court uniformly cites to the criminal docket except when a submission is only available among the civil filings.
United States v. Vann
Proposed Findings & Recommended Disposition
Page 2 of 17

clothing for a small baby or child’s doll. [Id. pp. 128-30]. On the exterior of the box was a
crude, handwritten inscription to “Aunt Bertha from the Washington Family.” [Doc. 238-2].
Agent Small immediately suspected the box contained controlled substances and asked Vann to
accompany him to the lower level of the train car. [Doc. 266, pp. 129-30].
Once there, Vann initially denied that there were narcotics in the box. [Doc. 281-1, p.
15]. However, when Agent Small pressed Vann on the details of Bertha Carter, the box’s
addressee, Vann immediately asked to make a deal with the agent. [Id., p. 16]. Vann confessed
that the gift box contained “a bottle and a half” of codeine cough syrup and “some [OxyContin]
pills.” [Id. p. 17]. Nonetheless, Vann refused Agent Small’s request to open and search the gift
box. [Id., p. 20]. Agent Small informed Vann that he would be cuffed, escorted off the train, and
taken to the DEA office where Agent Small would prepare a search warrant. [Id., p. 21].
Agent Small obtained a warrant. Upon cutting into the gift box, Agent Small smelt ether,
which he knew to be indicative of PCP. [Doc. 266, pp. 133-35]. Ultimately, Agent Small
extracted two bottles of cough syrup containing codeine, two juice jars containing over 100
grams of PCP, and 25 OxyContin pills. [Id., pp. 138; 147]. Because PCP is dangerous, Agent
Small enlisted the help of Agent Jeff Mauldin, who is specially trained in handling hazardous
drugs, to take samples of the PCP for analysis at the DEA lab in Dallas, Texas. [Id., pp. 142;
144]. A private company later disposed of the remainder of the PCP not used for samples
because of the substance’s volatility.
After Agent Small retrieved the items from the box, he and Officer Tate interviewed
Vann. [Id., p. 152-53]. Agent Small first informed Vann he was under arrest for the PCP and
codeine cough syrup. [Id.]. Vann waived his Miranda rights and admitted he had gone to Los
Angeles to purchase a gallon of PCP and twenty pounds of marijuana, which he did and which

United States v. Vann
Proposed Findings & Recommended Disposition
Page 3 of 17

he said he shipped to Omaha via UPS. [Id., p. 153-54]. Vann claimed to be unaware that PCP
was in the gift box. [Id., p. 153]. Vann further explained he planned to sell the drugs: he bought
the full bottle of the cough syrup for $120, the less full bottle for $80, and planned to sell the full
bottle for $250. [Id., pp. 153-55]. Vann expected to receive $1,400 per pound for the marijuana
on the street and said an eight-ounce bottle of PCP would fetch $1200. [Id.]. Because the
marijuana had been fronted to him, Vann clarified, he had to pay $600 per pound, substantially
more than the $400 cash price had negotiated in February of 2012 in Los Angeles. [Id.]. As for
the OxyContin, Vann related he purchased the pills for $10 each and would sell them in Omaha
for $50 apiece. [Id.].
B. Procedural Posture
On October 10, 2012, a grand jury returned a two-count second superseding indictment
charging Vann with possession with intent to distribute 100 grams and more of a controlled
substance containing phencyclidine (PCP) contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(B) and
18 U.S.C. § 2 (Count 1); and possession with the intent to distribute a controlled substance
containing codeine, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(E)(3) and 18 U.S.C. § 2 (Count
2). [Doc. 64]. Vann pleaded not guilty [Doc. 72].
After a two-day jury trial on March 12 and 13, 2013, a jury convicted Vann on both
counts. [Docs. 179; 182; 183]. Judge Kelly sentenced Vann, who represented himself at the
October 1 and 18, 2013 sentencing hearings with his trial attorneys as standby counsel, to 180
months incarceration followed by a term of eight years supervised release on Count I and twelve
months incarceration along with a year of supervised release on Count II, to run concurrently.
[Doc. 227].

United States v. Vann
Proposed Findings & Recommended Disposition
Page 4 of 17

Vann appealed his conviction and sentence on November 1, 2013. [Doc. 231]. The Tenth
Circuit affirmed in a published opinion. See United States v. Vann, 776 F.3d 746 (10th Cir.
2015). The Court of Appeals rejected Vann’s claim that he was denied a fair trial when,
notwithstanding Batson v. Kentucky, 476 U.S. 79 (1986), the District Court allowed the
Government to use a preemptory strike to excuse the only African-American in the venire panel.
See Vann, 776 F.3d. at 757. The court also determined that the Agent Small’s experience in
interdiction qualified him to testify reliably as an expert. See id. at 758. Further, under a plain
error review, the Court of Appeals found that the prosecution’s statements during closing were
sufficiently grounded in the record such that any discrepancy between the evidence actually
adduced and argument did not amount to misconduct. See id. at 762. Finally, the Court of
Appeals concluded that Vann validly waived his right to counsel during sentencing. See id. at
763.
The Tenth Circuit issued its mandate on April 2, 2015. [Doc. 274]. Vann’s conviction
and sentence became final on November 2, 2015, when the Supreme Court denied Vann’s
petition for certiorari. [See Docs. 274-75]. Vann timely filed the instant motion on October 31,
2016 collaterally attacking his 180-month sentence pursuant to section 2255. [Doc. 277]. The
Government responded on April 19, 2017. [Doc. 281]. Vann did not submit a reply.
II. STANDARD OF REVIEW
Section 2255 authorizes a federal prisoner to move the court that sentenced him to
“vacate, set aside or correct the sentence” on the grounds 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.” 28 U.S.C. § 2255(a). In

United States v. Vann
Proposed Findings & Recommended Disposition
Page 5 of 17

reviewing a motion under Section 2255, the Court presumes that the proceedings leading to
defendant’s conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir.
1989). To prevail, defendant must show a defect in the proceedings that resulted in a “complete
miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974).
III. ANALYSIS
Vann articulates three separate reasons why the Court should set aside his sentence on the
basis of ineffective assistance of counsel: counsel (1) failed to call Dr. Eugenia Brazwell, Mike
Lepic, and Richard Baca as witnesses; (2) did not vigorously cross examine Agent Small on
Vann’s unrecorded post-arrest interview during which Vann admitted to sending PCP and
marijuana to Omaha via UPS; and (3) prevented Vann from testifying at trial. To prevail, Vann
must satisfy the twin burden of establishing that (1) “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2)
“the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). “Prejudice” in this context requires Vann to “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. The Court must presume “[s]trategic or tactical decisions on the part of
counsel are . . . correct, unless they were completely unreasonable, not merely wrong, so that
they bear no relationship to a possible defense strategy.” Moore v. Marr, 254 F.3d 1235, 1239
(10th Cir. 2001) (quotation and citation omitted).
A. Failure to Call Witnesses
According to Vann, Dr. Brazwell, the director of toxicology at TriCore Laboratories in
Albuquerque, would have cast doubt on whether the substance Agent Small recovered from the
gift box was, in fact, PCP. Lepic, Vann claims, witnessed a conversation between Vann and Dr.

United States v. Vann
Proposed Findings & Recommended Disposition
Page 6 of 17

Brazwell that Vann believes should have been placed into evidence through the testimony of
Lepic. Finally, Baca, a private investigator Vann’s attorneys hired, learned the DEA previously
had disciplined Agent Small. Vann says Baca would have told the jury of Agent Small’s
workplace malfeasance and about the proper handling and disposal of PCP. It is undisputed that
these individuals did not testify.
“[T]he decision of which witnesses to call is quintessentially a matter of strategy for the
trial attorney.” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). Matters of strategy and
tactics are significant in ineffective assistance claims because counsel’s decisions in those areas
“are presumed correct, unless they were completely unreasonable, not merely wrong, so that they
bear no relationship to a possible defense strategy.” Moore, 254 F.3d at 1239. After all,
“[u]nlike a later reviewing court, the attorney observed the relevant proceedings [and] knew of
materials outside the record.” Harrington v. Richter, 562 U.S. 86, 105 (2011). In terms of a
witness the inmate claims would have cast doubt, as the Tenth Circuit has explained, just as
easily “as one can speculate about favorable testimony, one can also speculate about unfavorable
testimony.” Boyle, 544 F.3d at 1139 (citing United States v. Snyder 787 F.2d 1429, 1432 (10th
Cir. 1986)). Thus, the Court may not presume a witness’s testimony would have been
beneficial; the plaintiff must establish what the witness would actually say. See Snow v.
Sirmons, 474 F.3d 693, 730 (10th Cir. 2007).
1.

Mike Lepic and Richard Baca

Vann’s claims as to Lepic and Baca are easily resolved. Vann does not identify what
Lepic would actually have actually testified to at trial. The Court therefore is unable to
meaningfully address either prong of Strickland. Even had Vann crossed this initial threshold,
the Court cannot say trial counsel’s decision fell outside the “wide latitude” the law affords them.

United States v. Vann
Proposed Findings & Recommended Disposition
Page 7 of 17

See Moore, 153 F.3d at 1121. Vann’s proposed testimony from Lepic about a conversation Vann
says he had with Dr. Brazwell—the substance of which is unknown and Vann contends Lepic
witnessed—would have been inadmissible hearsay. See Fed. R. Evid. 801(c). 2 The Court
certainly cannot fault a lawyer for adhering to the evidentiary rules by not attempting to offer
inadmissible hearsay evidence.
Although Vann makes an offer of proof for Baca, it is unclear how Baca could testify to a
2002 disciplinary incident involving Agent Small. Certainly, Agent Small’s propensity for
falsifying evidence, which is what Vann says the disciplinary action shows, is troubling and
should feature in a sound defense. Baca, however, had no personal knowledge of the matter and
presumably would relate the statements of others to the jury, which statements would have been
inadmissible hearsay. More significantly, Vann cannot overcome Judge Kelly’s pretrial ruling
prohibiting Vann “from cross-examining DEA Special Agent Small about his 2002 suspension.”
[Doc. 109]. While it is true that Vann did not respond to the Government’s motion in limine,
Vann does not argue infective assistance on that ground. Moreover, Judge Kelly did not rely on
the failure to respond as the basis for granting the motion, but instead conducted the required
balancing test under Federal Rule of Evidence 403 to determine the inadmissibility of the
proffered testimony. Thus, offering Baca’s testimony to collaterally attack Agent Small’s
credibility, even if admissible, would have violated Judge Kelly’s order. The fact that trial
counsel obeyed a court order is not grounds for relief based upon ineffective assistance.
To the extent Vann suggests Baca would have educated the jury on proper disposal
techniques of PCP, the Court is not convinced trial counsel’s performance was deficient. As the
Government points out, there is no evidence in the record that Baca had the type of expertise
2

To the extent Vann would have used Lepic’s testimony to impeach another witness at trial with specific instances
of the witness’s conduct in an effort attack the witness’s character for truthfulness, Lepic’s testimony would have
been inadmissible. See Fed. R. Evid. 608.
United States v. Vann
Proposed Findings & Recommended Disposition
Page 8 of 17

necessary to give such testimony. It does not appear Baca was ever named or disclosed as an
expert. Thus, it is possible, or even probable, that Baca would not have been permitted to testify
as an expert concerning the proper disposal of PCP. See Fed. R. Crim. P. 16(b)(1) .
Regardless, Judge Kelly determined disposal was “largely irrelevant to the issues at trial”
when denying Vann’s subpoena requests to SET Environmental, Inc. , a private contractor the
DEA hired to dispose of the remaining PCP not used as a sample in this case. [Doc. 141]. It was
therefore entirely appropriate trial strategy for Vann’s attorney to not call Baca to testify about
PCP disposal. Finally, the Court cannot discern any prejudice to Vann based upon Baca not
testifying as a witness. Dwelling on disposal techniques for PCP would underscore that the
substance possessed by Vann actually was PCP, it was highly dangerous, it came from the gift
box Vann had, and it contained over 100 grams of the substance. All of those foregoing facts
would have served to bolster Vann’s guilt for the crime with which he was convicted. Because
Vann has not met either prong of Strickland, he is not entitled to relief under Section 2255.

2. Dr. Brazwell
In a letter to the DEA laboratory in Dallas, Dr. Brazwell wrote:
I have been asked to verify the presence of and assess the percent of . . . (PCP)
present in a liquid drug mixture. One aliquot of the PCP drug mixture was
removed for the purpose of determining the purity by GC/MS analysis. The
analysis was performed and the result was used in the purity calculation.
...
The liquid chemical mixtures were delivered to the laboratory by DEA Special
Agent, Kevin Small. The two aliquots were brought up in urine and extracted
according to our SOP for the analysis and quantification of PCP. . . . The
specimens were processed along with patients and donors that had screened
positive for the presence of PCP. . . . The remaining urine was poured down the
drain after the completion of the analysis and a written report was generated
stating the findings[.]
[Doc. 281-6].
United States v. Vann
Proposed Findings & Recommended Disposition
Page 9 of 17

The significance of the letter is not lost on the Court: there was no mention at trial of the
sample being in urine at all. Of course, while the Government need not prove that Vann knew
PCP was in the gift box, only that a controlled substance was in the gift box, the Government
did have to prove that 100 or more grams of PCP was recovered from the box. See 21 U.S.C. §
841(a)(1). Taking the correspondence at face value could suggest that the samples Agent Small
collected had been contaminated or were not the same samples the DEA tested, and, inferentially
cast doubt on whether and how much of the liquid the DEA recovered was PCP.
The Tenth Circuit, however, has cautioned against this type of guesswork. See Snyder,
787 F.2d at 1432. The Court does not have the same extra-record knowledge as Vann’s trial
attorneys did. This missing information is significant because there are at least two competing,
and perhaps more plausible, inferences that might be drawn from Dr. Brazwell’s
correspondence—either that DEA agents or TriCore mixed up the samples, or more likely, that
Dr. Brazwell erroneously imported the text from a different case into her report. After all,
TriCore is not a forensic facility; it is a medically-oriented business and specimen repository.
See http://www.tricore.org/about (last visited Aug. 29, 2017). The Court does not doubt that
TriCore has technical ability to test PCP, only that Dr. Brazwell could have made a scrivener’s
error in her letter based on the more typical case she confronts. The actual report prepared by
TriCore in connection with the substance test could have either supported or dispelled Vann’s
contention, depending upon the consistency of its contents in relation to Dr. Brazwell’s
correspondence. Curiously, Vann does not submit the actual report referenced in the
correspondence. Nor does Vann explain his premise sufficiently to demonstrate that TriCore’s
mistake would have affected the outcome of his case.

United States v. Vann
Proposed Findings & Recommended Disposition
Page 10 of 17

Presenting Dr. Brazwell’s testimony could well have been catastrophic to Vann. The
Government could paint the independent testing as a technical “hail mary” that ultimately
backfired on Vann, solidifying his guilt. Critically, Dr. Brazwell confirmed the test was positive
for PCP. The Court is required to presume that the decision not to call Dr. Brazwell was
strategically sound, and one of the many ways different attorneys might choose to provide
effective assistance to a criminal defendant. See Moore, 254 F.3d at 1239. Ultimately, giving all
deference to Vann, the following are likely scenarios: either the DEA made a mistake with the
sample, TriCore made a mistake with the sample, or Dr. Brazwell cut and pasted inapplicable
text into her correspondence. Vann does not explain why one scenario is more likely than the
other, or how his attorneys’ decision to not address or attack the issue was something beyond
merely wrong and instead was “completely unreasonable.” Fox v. Ward, 200 F.3d 1286, 1296
(10th Cir. 2000) (citation omitted). On the record before it, the Court cannot determine that the
performance of Vann’s counsel was constitutionally deficient concerning the issue of Dr.
Brazwell’s testimony under the first prong of Strickland.
Even assuming Dr. Brazwell would have testified that the samples were in urine, it is
unclear that these statements would have swayed the jury, which Vann must establish to succeed
under Strickland’s second prong. Three witnesses testified as to the extracting and testing of the
PCP: Agent Small, Agent Mauldin, and Chemist Cornell Wilson. The testimony established
that after obtaining a search warrant, Agent Small extracted two, 250 milliliter glass juice
containers from the gift box. [Doc. 266., p. 138]. Upon opening the box, Agent Small smelt
ether, indicative of PCP. [Id., p. 134]. Because PCP is toxic, hazardous, and cannot be sent
through the mail in large quantities, Agent Small enlisted the assistance of Agent Mauldin, who

United States v. Vann
Proposed Findings & Recommended Disposition
Page 11 of 17

is trained handling “clandestine” materials, to take samples for shipment to the DEA lab in
Dallas. [Id., p. 156].
Agent Mauldin took a “representative sample” from each juice container, placed each
sample in a separate glass tube, and packaged the glass tubes into plastic containers for added
protection. [Id., pp. 149-51]. Agent Small mailed the evidence to Dallas in a box containing a
standard-issue DEA evidence bag. [Id., pp. 160-61]. Chemist Cornell Wilson received the bag
with the samples and opened it from the other end, leaving undisturbed Agent Small’s seal. [Id.,
pp. 202-203]. Gas chromatography and mass spectrometry confirmed the substance was PCP,
and Wilson determined that the bottles from which the samples had been extracted weighed
423.5 grams. [Id., pp. 204-213].
While the PCP was at the lab, Vann requested independent testing. As a result, the lab
took a sample and placed it in a new container. [Id., p. 269]. The lab returned the evidence to
Agent Small. [Id.]. The seal where Agent Small had signed had not been breached, and there
were two signed seals from the lab, accounting for when Wilson had taken the PCP vials out for
analysis and later when some of the sample was placed into a third container for independent
testing. [Id., pp. 164; 190]. Once back with Agent Small, Agent Small delivered the third
container to TriCore. [Id., p. 165]. TriCore tested the PCP and sent it back. [Id., p. 168].
At trial, Judge Kelly overruled Vann’s foundational objection directed at the chain of
custody. Moreover, Vann’s attorneys effectively cross examined on the manner in which the
samples were gathered and sealed in the evidence bag. [Id., pp. 192 -96]. Vann’s counsel handily
extracted concessions that the samples were never marked as to which juice bottle they came
from, the PCP was never weighed, and the substance ultimately was disposed of. [Id.].
Significantly, Wilson admitted that, in arriving at the weight of the PCP, he assumed the juice

United States v. Vann
Proposed Findings & Recommended Disposition
Page 12 of 17

bottles were correctly labeled as containing 250 milliliters and that the containers were 100
percent full. [Id., p. 216]. Nor did Wilson account for how ether expands. [Id., p. 217].
The point is that the jury heard the consistent testimony of the Government’s witnesses
about how the PCPs samples were handled, namely in liquid form in a sealed evidence bag for
which each step in the chain of custody was accounted. The only curious aspect was Vann’s
request for independent testing that caused an additional seal. On cross examination, the jury
heard that the process was not without weakness. However, the jury must have determined any
imperfections in the evidence collection, preservation, and testing process did not overcome the
countervailing strength of the Government’s case. Thus, one may not conclude that even had Dr.
Brazwell testified the PCP samples “were brought up in urine,” the jury would have taken it to
mean the DEA and TriCore samples were not the same and used the difference as a basis to
acquit Vann.
In other words, the jury remained free to believe the Government’s witnesses, especially
the testimony that after Agent Small received the sample back from TriCore, the sample was sent
to Dallas so the DEA lab could confirm it was the same compound that had been sent out. [Id.,
p. 165]. Mere speculation by Vann does not satisfy Strickland’s prejudice prong: “[t]he
likelihood of a different result must be substantial, not just conceivable.” 466 U.S. at 693. Here,
Vann has not demonstrated that there is a substantial likelihood of a different result had the
witnesses he identifies testified, and the Court recommends his motion be denied.
B. Failure to Cross Examine
Agent Small testified that Vann made a number of inculpating statements after his arrest.
Agent Small testified that Vann told him during the interview that while in Los Angeles, Vann
negotiated the purchase of 20 pounds of marijuana for $600 per pound and a gallon of PCP for

United States v. Vann
Proposed Findings & Recommended Disposition
Page 13 of 17

which Vann paid $10,000. Vann mailed these items in a box by UPS to Omaha where he
planned to sell them. Vann asserts that his attorneys were ineffective for failing to point out
during Agent Small’s cross examination that this “alleged confession” was not recorded, “the
only offer of proof was Agent Small’s testimony,” and only mentioning the confession once.
Vann also claims the mailed drugs increased his sentence in violation of United States v. Alleyne,
__ U.S.__, __, 133 S. Ct. 2151 (2013). The Court disagrees.
The issue of the post-arrest incriminating statements was the subject of a motion to
suppress and an hour-and-twenty four-minute evidentiary hearing. [Doc. 175]. Vann’s counsel
argued that Miranda warnings given were insufficient and the confession was not extracted
within six hours in violation of the “prompt presentment Rule.” [Doc. 152]. Judge Kelly denied
the motion in written findings of fact and conclusions of law, determining the statements were
admissible. [Doc. 174]. At trial, Agent Small was not the only “offer of proof,” as Vann
represents. Officer Tate, Agent Small’s investigative partner, witnessed the post-arrest exchange
with Vann and testified consistently with Agent Small—that Vann stated during the interview he
had purchased or was fronted marijuana and PCP, which he sent by UPS. [Doc. 266, pp. 24345].
It appears to the Court that Vann made his best argument in motion practice to exclude
these damaging admissions at trial. The motion was unsuccessful. Of course, Vann’s attorneys
could have pointed out on cross examination that the interview was not recorded, but certainly
that was not the only way to defend Vann and does not strike the Court as deficient under
Strickland’s first prong. Instead, Vann’s lawyers focused their energy on the more obvious
strategy of challenging the amount of the PCP recovered from the box and Vann’s surprise as to
what was in the box. Vann’s counsel may not have wanted to draw additional attention to his

United States v. Vann
Proposed Findings & Recommended Disposition
Page 14 of 17

history of drug trafficking. It is, therefore, pure speculation to imagine how Vann would have
succeeded at trial with prolonged cross examination concerning whether his interview by Agent
Small was recorded.
To the extent Vann’s consternation is the enhanced sentence he received, Vann
represented himself during those proceedings and cannot now complain of ineffective assistance.
See McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8 (1984) (explaining that “a defendant who
exercises his right appear pro se cannot thereafter complain that the quality of his own defense
amount to a denial of effective assistance of counsel”). If what Vann means is that the trial
testimony he believes his attorney should have challenged on cross examination served as the
basis for an enhanced sentence, Judge Kelly was free to consider the evidence of the drugs for
which Vann was not charged as part of Vann’s background. As the Government points out: “no
limitation shall be placed on the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.
Vann’s final contention that under United States v. Alleyne, a jury had to find beyond a
reasonable doubt that he mailed the PCP and marijuana for the Court to enhance his sentence is
waived. Vann was required to raise the issue in his direct appeal, which he did not do. See
United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (“When a defendant fails to raise an
issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he
establishes either cause excusing the procedural default and prejudice resulting from the error or
a fundamental miscarriage of justice if the claim is not considered”). Vann’s challenge is
therefore procedurally defaulted, and Vann does not make any showing that an exception would
allow him to raise the issue for the first time in these proceedings.

United States v. Vann
Proposed Findings & Recommended Disposition
Page 15 of 17

C. Prevention of Testimony
Vann insists his lawyers prevented him from testifying in his own defense at trial. If true,
Vann’s attorneys’ performance was constitutionally deficient. “A criminal defendant has a
constitutional right to testify in his own behalf at trial.” Cannon v. Mullin, 383 F.3d 1152, 1171
(10th Cir. 2004) (citation omitted). Although a lawyer “should . . . discuss with the defendant
the strategic implications of choosing whether to testify, and should make a recommendation to
the defendant,” the choice “to testify lies squarely with the defendant.” Thus, “[i]f counsel were
to deprive the defendant of his right to testify in his own defense, counsel’s performance would
be deficient under the first prong of Strickland.” United States v. Stiger, 2009 U.S. Dist. LEXIS
108512, *17 (N.D. Okla. Nov. 19, 2009).
Typically, the Court must hold an evidentiary hearing to resolve factual disputes. See
Cannon v. Mullin, 383 F.3d 1152, 1172 (10th Cir. 2004). Here, it is not clear from the record
whether Vann waived his right to testify or was, as Vann contends, prevented from testifying by
his attorneys. The Court need not hold a hearing, however, because it is incumbent upon Vann to
show prejudice under Strickland’s second prong. See id. As above, Vann must at least identify
what his testimony would have been so the Court can analyze whether there was a likelihood of a
different outcome at trial. See United States v. Bailey, 245 Fed. Appx. 768, 771 (10th Cir. 2007)
(explaining that “Mr. Bailey cannot establish prejudice” and “[i]n the district court, he gave no
suggestion of the content of his testimony or how it would have affected the jury’s consideration
of the evidence”).
In his motion, Vann says he “repeatedly articulated his intention to testify on his own
behalf and his attorneys still chose not to call him as a witness at trial.” Vann also points out that
“there is no waiver of testifying on the record.” These statements do not show what Vann’s

United States v. Vann
Proposed Findings & Recommended Disposition
Page 16 of 17

testimony would have been or how his testimony would have affected the jury’s determination of
guilt. Vann therefore cannot establish prejudice. Moreover, the lack of a formal waiver after a
trial-court inquiry does not necessarily help Vann. As the Tenth Circuit has explained, the
district court “has no duty to explain to the defendant . . . he has a right to testify or to verify that
a defendant who is not testifying has waived the right.” United States v. Williams, 139 Fed.
Appx. 974, 976 (10th Cir. 2005). In fact, “a defendant must alert the trial court that he desires to
testify or that there is a disagreement with defense counsel regarding whether he should take the
stand.” Id. (citation omitted). Otherwise, “waiver of the right to testify may be inferred from the
defendant’s conduct.” Id.
Vann did not meet his burden to show prejudice due to the fact he did not testify at trial,
and the Court recommends that his motion to vacate his sentence be denied.
CONCLUSION
For the reasons stated above, the Court RECOMMENDS that Vann’s motion for relief
under 28 U.S.C. § 2255 [Doc. 277; CV Doc. 2] be DENIED and this matter DISMISSED
WITH PREJUDICE.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION.
A PARTY MUST FILE ANY
OBJECTIONS WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF
THAT PARTY WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO APPELLATE
REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.

United States v. Vann
Proposed Findings & Recommended Disposition
Page 17 of 17