David Christie v. USA
Filing
10
OPINION: Based upon the facts and conclusions of law set forth above, Petitioner's motion to vacate, set aside, or correct his sentence is denied. (Signed by Judge Robert W. Sweet on 5/22/2014) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
DAVID CHRISTIE,
Petitioner,
13 Civ. 7780 (RWS)
08 Cr.
1244 (RWS)
OPINION
- against UNITED STATES OF AMERICA,
Respondent.
----------------------------------------x
A P P E A RA N C E S:
, ...._,
1
Pro Se
DAVID CHRISTIE
Federal Correctional Complex
P.O. Box 5010
Oakdale, LA 71463-5010
Attorneys for the Respondent
PREET BHARARA
United States Attorney for the
Southern District of New York
One St. Andrew's Plaza
New York, New York 10007
By:
Christian R. Everdell, Esq.
Christopher D. Frey, Esq.
~
''
Sweet, D.J.
Petitioner David Christie ("Petitioner" or "Christie")
moves to vacate, set aside, or correct his sentence pursuant to
28 U.S.C.
§
2255 (the "Petition") on grounds of ineffective
assistance of counsel for failing to (1) object to the
Government's purported constructive amendment of Christie's
criminal indictment;
(2) object to the Government's failure to
identify specific property subject to forfeiture; and (3) advise
Christie of his right to testify at trial and provide an
explanation for why he should not testify.
For the reasons set forth below, Christie's Petition
is denied in its entirety.
Procedural History
On January 20, 2010, a jury trial commenced against
Christie before this Court, after which Christie was found
guilty of (1) one count of distribution and possession with
intent to distribute 5 kilograms and more of mixtures and
substances containing a detectable amount of cocaine and
possession with intent to distribute 100 kilograms and more of
marijuana, in violation of 21 U.S.C.
1
§
846, and (2) one count of
importing into the United States from Jamaica five kilograms and
more of cocaine and 100 kilograms and more of marijuana, in
violation of 21 U.S.C. § 963.
In late January 2011, this Court reviewed sentencing
submissions from both parties and sentenced Christie to 240
months' imprisonment to be followed by 5 years' supervised
release.
In accordance with his sentence, Christie was required
to pay a special assessment of $200 and to forfeit property in
an amount to be determined.
On February 3, 2011, a forfeiture
order against Christie was issued in the amount of $3,150,000.
On February 16, 2011, Christie appealed his
conviction.
On August 1, 2012, the Second Circuit denied
Christie's appeal and affirmed this Court's judgment.
Christie
subsequently filed a petition for a writ of certiorari in the
United States Supreme Court which was denied on January 7, 2013.
On October 30, 2013, Christie moved to vacate, set
aside or correct his sentence, the Petition at issue here.
Petition was marked fully submitted on March 7, 2014.
2
The
The Facts
An indictment was filed against Christie on May 20,
2009 ("the Indictment"), alleging two counts.
Count One
charged Christie and six others with conspiracy to distribute
and to possess with intent to distribute five kilograms or
more of cocaine and 100 kilograms or more of marijuana,
violation of 21 U.S. C.
§
84 6.
in
Count Two charged Christie
and six others with conspiracy to import into the United
States five kilograms or more of cocaine and 100 kilograms or
more of marijuana,
in violation of 21 U.S.C.
§
963.
The evidence at trial established that,
from 2004
through 2008, Christie was the leader of an international drug
trafficking conspiracy that smuggled hundreds of kilograms of
cocaine and marijuana from Jamaica into the United States,
where the drugs were sold for millions of dollars in profit.
Christie used different methods to transport the drugs, but
each method involved concealing the drugs on commercial
airline flights that departed from Montego Bay, Jamaica and
were destined for various United States airports,
Newark Liberty International Airport
Miami International Airport
("Newark Airport")
("Miami Airport") .
3
including
and
The Government's proof at trial included
testimony of three cooperating witnesses -
(1) the
Sekou Gooden, Wayne
Eulett, and Patrick Coulton - each of whom provided an
insider's view of the charged conspiracy and who testified
about the means and methods that Christie and the other
members of the conspiracy used to import the drugs into the
United States and distribute them;
(2) the testimony of
Special Agent Christopher Durant of the Department of Homeland
Security,
Immigration and Customs Enforcement
("ICE''), who
described an under-cover meeting and subsequent telephone
conversations with Christie, during which they discussed
transporting multi-kilogram quantities of cocaine by boat to
Miami; and
( 3)
the testimony of ICE Special Agent Michael
Alfonso, who, among other things,
recounted Christie's post-
arrest admissions that, on multiple occasions, he shipped
large quantities of cocaine on commercial airline flights
traveling from Jamaica to the United States.
1.
The Newark Method (2003-2007)
Christie joined the conspiracy in 2004, when he
became the principal source of cocaine and marijuana.
227-29,
597-600).
(Tr.
Prior to that time, other conspirators had
4
been smuggling drugs into the United States through Newark
Airport
Christie joined other
(the "Newark Method") .
conspirators in importing and distributing drugs using the
Newark Method.
Sekou Gooden, a cooperating witnesses,
testified
about how the Newark Method was initially set up and how it
worked.
Selmor Reid,
one of Gooden's acquaintances from
Jamaica with whom he had sold marijuana in the past,
the cocaine to a man identified only as
the Montego Bay airport.
"Dave," who worked at
"Dave" would ensure that the drugs
were placed on Continental Airlines flights bound
(Tr.
211-12,
the wall of
airplane.
plane
221-22).
supplied
for Newark.
The drugs were hidden behind a panel
in
"Bin Four," an area in the cargo section of the
(Tr.
218-19)
in Jamaica,
Once the drugs were concealed on a
Reid would relay the tail number of the
plane containing the drugs to Gooden,
who would then provide
it to Philmour Gayle, a baggage handle for Continental Airlines.
(Tr. 219-20)
After the plane had landed at Newark Airport,
Gayle would identify it by the tail number,
remove the drugs
from the cargo section,
and hand them over to Gooden.
220-21).
in turn,
McPherson,
Gooden would,
who would distribute
give the drugs to Gossett
the drugs to customers
5
('It.
in the
New York area.
('It.
season, members
During the 2003-2004 winter
221-22).
of the conspiracy
imported over 100 kilograms
of cocaine and over 150 pounds of marijuana from Jamaica into
Newark using this method.
1
(Tr. 225-26).
Christie joined the conspiracy for the 2004-2005
winter season.
(Tr. 227-38,
Christie joined the
598-610).
conspiracy because Reid and Gayle had a falling out, and Gayle
refused to work any longer with Reid.
('It.
227).
Needing a
new source of supply for cocaine in Jamaica, Gooden asked his
friend Wayne Eulett to contact Christie.
(Tr. 227-28,
599)
Gooden knew that Eulett was friendly with Christie and knew
that Christie was a large-scale drug supplier in Montego Bay.
('It.
227-29,599).
phone.
('It.
229,
Eulett put Christie in touch with Gooden by
599-600).
When they spoke, Christie told
Gooden that he already knew how the Newark Method worked
because he knew "Dave" at Montego Bay Airport and had spoken
to him about it.
(I'r. 229-30,
232).
Christie negotiated a
commission structure with Gooden -- for every five kilograms
of cocaine that Christie sent, he would give one kilogram of
cocaine to Gayle and the others at Newark Airport as payment.
1
It was noted at trial that the conspirators used the Newark Method primarily
in the winter because customs inspectors seldom patrolled the tarmac then,
making it easier to remove drugs from the planes unnoticed.
(Tr. 224-25).
6
('It.
230-31).
In this way, Christie replaced Reid as the
principal source of supply of cocaine and marijuana for the
conspiracy.
(Tr.232).
During the 2004-2005 winter season,
the Newark
Method worked in much the same way as the prior season.
232-34) .
('It.
Aside from Christie replacing Reid, the most
significant change was that Christie asked Wayne Eulett to be
in charge of his cocaine once it arrived in the United States.
('It.
233-34,
601- 08).
Eulett received Christie's portion of
the drugs from Gooden and held them until Christie sent his
customers to pick up the drugs.
('It.
233,
601-04).
McPherson received the remainder of the drugs, which belonged
to "Dave," and distributed them to other customers.
233) .
('It.
Gooden also testified about two other more minor drug
suppliers,
"Spy" and "Cecil," who placed smaller quantities of
their cocaine on the same Continental Airlines flights on
three or four occasions.
('It.
236-37).
In total,
Christie
sent over 150 kilograms of cocaine to Newark Airport over the
course of the 2004-2005 winter season.
('It.
235).
During the 2005-2006 winter season, the price of
cocaine rose sharply in Jamaica, making cocaine smuggling much
7
less profitable.
(Tr.
238).
As a result, Christie started
sending marijuana to the United States using the same method.
(Tr.
Over the course of the 2005-2006 winter
238-39).
season, Christie sent over 150 pounds of marijuana through
Newark Airport.
(Tr.
239).
By the end of 2006 and into 2007,
the Newark Method
was beginning to break down because of the continued high
price of cocaine in Jamaica and personal disputes among the
co-conspirators.
(Tr.
240,
609-11).
Gooden had a falling
out with McPherson because he found out that McPherson was
romantically involved with Gooden 's wife.
Also,
(Tr. 240,
610).
Christie became upset with Eulett for giving some of his
cocaine to Gooden without permission.
(Tr.
609-10).
As a
result, Eulett broke off contact and moved to Philadelphia.
(Tr.
610-11).
In addition, Gayle and the team at Newark
Airport refused to receive any more loads of marijuana.
269-74, 288-90,
(Tr.
292- 95; GX 201T, GX 206T, GX 207T).
Although Christie continued to press Gooden to convince the
team at Newark Airport to receive shipments of marijuana
292-95; GX 207T), by the end of 2007 the Newark Method was
effectively defunct.
8
(Tr.
2. The Miami Method (2007-2008)
With the Newark Method facing serious problems,
Christie explored a different distribution channel and began
sending cocaine on flights from Montego Bay Airport to Miami
International Airport
(the "Miami Method") .
The Miami
Method, which lasted from 2007 through March 2008, was
described by cooperating witness Patrick Coulton.
(Tr. 703-
28). Coulton worked for American Airlines as a baggage
handler in Miami.
(Tr. 692-93) . For several years prior to
his arrest in March 2008, Coulton had unloaded drugs from
flights that came into Miami from Jamaica.
(Tr. 703-06).
These drugs were hidden behind the walls of certain sections
of the passenger cabin of the plane.
(Tr. 706,
708). Until
early 2007, Coulton's principal contacts in Jamaica for these
drug shipments were Peter Dixon, and,
later, David Lewis.
(Tr. 705 - 07).
Christie inserted himself into this pre-existing
distribution channel in the beginning of 2007.
15) .
(Tr . 713 -
In early 2007, Coulton began speaking to someone he
knew only as the "Boss" or "Big Man," who was the new source
of supply for the cocaine entering Miami Airport.
9
(Tr. 713-
14) .
Telephone records and Coulton's voice identification
confirmed that the "Boss" was Christie.
( Tr . 7 1 7 -18 ; GX
103A, GX 504B, GX 505B).
Coulton received the tail number of the inbound
plane containing the drugs from either Christie or David
Lewis, and used it to track the plane and identify it when it
landed in Miami.
(Tr. 709-10). Coulton then entered the
airplane and removed the drugs.
(Tr. 710-11). He then
reported to Christie or Lewis that he had received the drug
shipment and received instructions from one of them about
where to deliver the drugs in Miami.
(Tr. 712-13, 718-2 0)
This method was in place up until March 11, 2008, when
Coulton was arrested in possession of approximately two
kilograms of Christie's cocaine.
(Tr. 722-25; GX 102, GX
603) .
3. Christie's Negotiations with the Undercover Agent and
Arrest (2008-2009)
With the Miami Method shut down, Christie explored
other avenues to continue distributing his cocaine and
marijuana. Throughout the first half of 2008, Christie spoke
10
several times to Gooden to persuade him to convince Gayle
that the price of cocaine in Jamaica was too high and that
the Newark team should start receiving loads of marijuana
instead.
(Tr. 269-74, 288-90, 292-95; GX 201T, GX 206T, GX
207T) . Christie also spoke to Gooden about a plan to start
sending cocaine to the United States on flights leaving from
Trinidad and Tobago, where Christie could obtain cocaine more
cheaply, by hiding the cocaine behind "Bin Four" in the cargo
section of the airplane -- the same hiding spot that was used
in the Newark Method.
(Tr. 280-291; GX 203T, GX 206T, GX
410).
Unbeknownst to Christie, Gooden had been arrested on
December 20, 2007, and was cooperating with the Government.
(Tr. 242-46)
Law enforcement officers instructed Gooden to
tell Christie that he could introduce him to a drug
trafficker named "Bigga," who owned a boat and who could help
Christie smuggle cocaine from Panama into the United States.
(Tr. 296-97).
In fact,
"Bigga" was ICE Special Agent
Christopher Durant serving in an undercover capacity.
482) .
11
(Tr.
On September 24, 2008, Christie met with Special
Agent Durant in Jamaica.
(Tr. 482-83).
At that meeting,
Christie discussed using Special Agent Durant's boat to
transport a load of marijuana to the Bahamas so that he could
amass enough money to pay Colombian paramilitaries for 300
kilograms of cocaine that he would then conceal in Special
Agent Durant's boat and ship to Florida.
212T).
(Tr. 488-517; GX
After the meeting, Christie and Special Agent Durant
spoke several times by telephone to further discuss the
proposed drug transaction.
(Tr. 518-39; GX 213T-216T, GX
219T, GX 225T).
On January 19, 2009, Christie traveled to Panama to
meet with Special Agent Durant about the proposed boat
transaction.
(Tr. 799).
Christie was refused entry into
Panama and was flown to Miami, where he was arrested.
799, 802-03).
(Tr.
Following his arrest, and after being advised
of his Miranda rights, Christie made several statements to
law enforcement officers regarding his past criminal
activity.
(Tr. 809-19).
Among other things, Christie stated
that he started sending marijuana from Jamaica to the United
States in 1995, and that he started sending cocaine from
Jamaica to the United States in 1996 using Colombian and
12
Jamaican suppliers.
(Tr. 812-13, 817).
Christie said that
he used airplanes to send the drugs from Jamaica, and said
that he had a contact at the Montego Bay airport who helped
get the drugs on the flights.
(Tr. 813).
Christie also said
that he knew Eulett, who he knew by the nickname "Primer,"
and that Eulett introduced him to Gooden, whom he knew as
"Q."
(Tr. 818).
Christie further stated that he sent Gooden
multiple kilograms of cocaine over a period of several years,
and that some of the cocaine went to Eulett.
(Tr. 818).
Finally, Christie said that in early 2008, he started sending
drugs to someone in Miami named "Mr. P," who was later
established to be Mr. Coulton, who worked for American
Airlines at Miami Airport.
(Tr. 715,
818).
Christie did not off er any evidence in his defense at
trial.
Applicable Standard
In order to prevail on a claim of ineffective
assistance of counsel, a defendant must satisfy two rigorous
legal standards:
(1) that counsel's performance fell below "an
objective standard of reasonableness" under "prevailing
13
professional norms," Strickland v. Washington, 466 U.S. 668,
688-89 (1984), and (2) that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 693-94.
The
Petitioner need not establish that he will necessarily succeed
on his claims, but he must establish that the claim is
plausible.
2009)
Puglisi v. United States, 586 F.3d 209, 213
(2d Cir.
(quoting Armienti v. United States, 234 F.3d 820, 823 (2d
Cir. 2000).
Under the first prong of the Strickland analysis, the
defendant must overcome a "strong presumption" that counsel's
conduct generally "'falls within the wide range of reasonably
professional assistance,' bearing in mind that '[t]here are
countless ways to provide effective assistance in any given
case' and that '[e]ven the best criminal defense attorneys would
not defend a particular client in the same way.'"
v. Aguirre, 912 F.2d 555, 560 (2d. Cir. 1990)
Strickland, 466 U.S. at 689).
United States
(quoting
Accordingly, it is well
established that "[a]ctions or omissions by counsel that might
be considered sound trial strategy do not constitute ineffective
assistance."
Mason v. Scully, 16 F.3d 38, 42
(internal quotation marks omitted).
(2d Cir. 1994)
A fair assessment of the
reasonability of an attorney's actions requires an evaluation of
14
"challenged conduct on the facts of the particular case, viewed
as of the time of counsel's conduct" and must resist the
temptation of hindsight.
Id., at 690.
By contrast, a finding of prejudice under the second
prong of the Strickland test relies on the benefit of hindsight
in order to determine "whether there is a reasonable probability
that, absent the errors, the fact finder would have had a
reasonable doubt respecting guilt."
48, 63-64
Henry v. Poole, 409 F. 3d
(2d Cir. 2005) (quoting Strickland, 466 U.S. at 695).
'Reasonable probability' in this context means the attorney's
errors were of such magnitude that they "undermined confidence
in the outcome."
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) .
Even so, "an error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment."
Lindstadt v. Keane, 239 F.3d 191, 204
(2d Cir. 2001) (internal
quotation marks omitted) (quoting Strickland, 466 U.S. at 691).
Indeed, the central inquiry of the prejudice prong of the
Strickland test is whether the result of the trial would have
been different, not whether counsel committed an error,
irrespective of its impact, reasonable or not.
15
Discussion
As set forth below, each of Christie three arguments
that he was provided ineffective assistance of counsel must fail
under a Strickland analysis.
A. The Indictment Was Not Constructively Amended
Christie argues first that he was denied effective
assistance of counsel because his defense attorney failed to
object to the Government's purported constructive amendment of
the Indictment.
(Pet. at 10).
To prevail on a constructive
amendment claim, a defendant must show "the trial evidence or
the jury charge operates to broaden the possible bases for
conviction from that which appeared in the indictment."
United
States v. Rigas, 490 F.3d 208, 225 (2d Cir.2007) (internal
quotation marks and alterations omitted).
In other words, a
defendant must establish "that the terms of the indictment are
in effect altered by the presentation of evidence and jury
instructions which so modify essential elements of the offense
charged that there is a substantial likelihood that the
defendant may have been convicted of an offense other than that
charged in the indictment." United States v. D'Amelio,
16
683 F.3d
412, 416 (2d Cir. 2012) (quoting United States v. Mollica, 849
F.2d 723, 729 (2d Cir. 1988)) (emphasis added in D'Amelio).
Courts in the Second Circuit have "consistently
permitted significant flexibility in proof, provided that the
defendant was given notice of the core of criminality to be
proven at trial."
United States v. Banki,
685 F.3d 99, 118 (2d
Cir. 2012) (quoting Rigas, 490 F.3d at 228) (emphasis in Banki;
footnote and internal quotation marks omitted).
They have
clarified that "where a generally framed indictment encompasses
the specific legal theory or evidence used at trial, there is no
constructive amendment."
Rigas, 490 F.3d at 228
internal quotation marks omitted).
(alteration and
Facts which increase a
mandatory minimum sentence, however, must be submitted to the
jury and found beyond a reasonable doubt.
States, 133 S. Ct. 2151, 2158
Alleyne v. United
(2013).
More specifically, drug quantity is an essential
element of an "aggravated" drug offense and "must always be
pleaded and proved to a jury or admitted by a defendant to
support conviction or sentence on an aggravated [drug]
offense[.]"
United States v. Gonzalez, 420 F.3d 111, 131 (2d
Cir. 2005).
See also Alleyne, 133 S. Ct. at 2163.
As such,
conviction on an aggravated drug offense when the indictment
17
does not allege specific statutory drug quantities is an error
"akin to a constructive amendment."
U.S. v. Thomas, 274 F.3d
655, 670-671 (2d Cir. 2001).
Indictments need not charge a defendant with a lesserincluded offense, however, in order for the trial court to
submit that offense to the jury.
674
(2d Cir. 2001) . 2
U.S. v. Dhinsa, 243 F.3d 635,
A defendant who is charged with an
aggravated drug offense may still be convicted of a "lesserincluded" drug amount, even if that lesser amount is not
specifically alleged in the indictment.
See United States v.
Berrios, 279 Fed. App'x 82, 85 (2d Cir. 2008).
Christie argues that he received ineffective
assistance of counsel because his attorney failed to object to a
purported constructive amendment of the Indictment on two
grounds:
(1) that the jury was permitted to find drug amounts
that were not specifically alleged in the Indictment because the
jury instructions and verdict sheet included lesser-included
amounts of cocaine and marijuana for both counts of the
Indictment and (2) that the Indictment was constructively
In the context of drug trafficking crimes, "lesser-included" offenses refer
to offenses involving smaller drug amounts than the particular statutory
quantities alleged in the indictment.
See United States v. Evans, 293 Fed.
App'x 63, 68 (2d Cir. 2008).
2
18
amended by the introduction into evidence of hashish and heroin
transactions, which were drug types that were not present in the
Indictment, and the general use of the word "narcotics" in the
charge made to the jury after the references to hashish and
heroin were made.
Both of Christie's arguments as to
constructive amendment must fail on their own merits and,
consequently, as bases for an ineffective assistance of counsel
claim.
1. Submission of Lesser-Included Offenses to the Jury
Did Not Constitute A Constructive Amendment
Drug quantities that increase mandatory minimum
sentences must be alleged in the indictment and found by a jury.
Gonzalez, 420 F.3d at 131.
By contrast, a jury may consider
and convict on -- lesser-included offenses even if those
offenses are not specifically alleged in the indictment.
See
Dhinsa, 243 F.3d at 674; see also Berrios, 279 Fed. App'x at 85
(no constructive amendment where defendant was charged with
conspiring to distribute five kilograms or more of cocaine, but
jury found between 500 grams and five kilograms).
The Supreme
Court's recent decision in Alleyne, on which Christie heavily
relies, does not alter this standard.
3
3
Alleyne held that any fact that increases the mandatory minimum penalty must
be alleged in the indictment and submitted to the jury.
The Government
19
Christie argues that the inclusion of the lesserincluded offenses in the jury instructions and the verdict sheet
constituted a constructive amendment by going beyond the scope
of the Indictment and allowing the jury to "determine elements
of the crime outside of the elements determined by the grand
jury."
(Pet. at 14).
Under Dhinsa, however, submission of
less-included offenses to the jury is not improper.
Moreover,
were there not sufficient basis in case law to allow the
submission of the lesser-included charges, the fact that
Christie was not even convicted on the lesser-included amounts
that were ultimately listed on the verdict sheet defeats his
claim.
(See Tr. 1048-50).
The Indictment charged Christie with participating in
two narcotics conspiracies, each of which involved "5 kilograms
and more" of cocaine, pursuant to 21 U.S.C. §§ 84l(b) (1) (A) and
960 (b) (1) (B), and "100 kilograms and more" of marijuana,
pursuant to 21 U.S.C. §§ 841 (b) (1) (B) and 960 (b) (2) (G).
There
is no dispute that the jury convicted Christie of both counts
listed in the Indictment and specifically found that the
rightly points out that this has been the rule in the Second Circuit with
respect to drug quantities since Gonzalez in 2005, predating both the Alleyne
decision and the Indictment in Christie's case.
See Gonzalez, 420 F.3d at
131.
20
conspiracies involved those very same drug amounts.
1048-50) . 4
(See Tr.
The scope of the Indictment, in other words, remained
exactly the same.
As such, Christie has failed to establish that any
uncertainty exists whatsoever as to whether he was convicted of
conduct other than that which was the subject of the grand
jury's indictment.
See Rigas, 490 F.3d at 227.
Christie's
claim that he received ineffective assistance of counsel on this
argument must then, likewise, be rejected, as his attorney would
have had no basis in law to object to the inclusion of the
lesser-included charges on the verdict sheet on constructive
amendment grounds.
2. Introduction of Evidence of Hashish and Heroin and
General Use of the Word "Narcotics" Did Not
Constitute A Constructive Amendment
Christie's argument that the introduction into
evidence of testimony regarding hashish and heroin, and the
general use of the word "narcotics" after their inclusion, must
also be rejected.
The relatively sparse references to hashish
4
If anything, the inclusion of the lesser-included charges afforded Christie
the opportunity to be indicted either on the higher quantities alleged in the
indictment or the lesser-included amounts, which carried less severe
mandatory minimum sentences.
21
and heroin in the trial record, and the context in which they
were introduced, strongly indicates that their introduction into
evidence had little to no effect on the outcome of the case.
Neither did these references cast doubt on what crimes Christie
was indicted on and convicted of.
See Banki, 685 F.3d at 118
(courts in the Second Circuit have "consistently permitted
significant flexibility in proof, provided that the defendant
was given notice of the core of criminality to be proven at
trial" (internal quotation marks and citation omitted; emphasis
in Banki).
As state above, Christie was unambiguously convicted
on the very same charges on which he was indicted.
The trial transcript tends to indicate that testimony
regarding hashish and cocaine did not operate to specifically
connect Christie to these drugs.
The only type of drug that
Coulton -- the witness who testified that he himself had been
involved in the unloading shipments of hashish, in conjunction
with marijuana and cocaine, at Miami International Airport
ever specifically connected to Christie was cocaine.
713, 720, 722-725)
hashish to Miami.
(Tr. 712-
Coulton never testified that Christie sent
Neither was testimony regarding heroin
directly linked to Christie.
(Tr. 400-03).
All of the
testimony pertaining to heroin related to conversation between
Gooden and another cooperating witness.
22
Id.
Christie was not
··----
··-----·----·--·-----------------
mentioned in these conversations and was not linked to any
transaction involving heroin.
Id.
Furthermore, Christie's attempt to construe the
general use of "narcotic" in the charge to the jury as an
imprecision that might have led to his conviction "on a charge
the grand jury never made" against him is directly contradicted
by the fact that sufficient evidence was entered on the charges
pertaining to cocaine and marijuana and the fact that Christie
was, in fact, convicted of the charges in the Indictment without
variation.
(Pet. at 15) .
Given the scarcity of and lack of
emphasis on the evidence pertaining to hashish and heroin, it is
implausible that this Court's use of the word "narcotics" in its
instructions to the jury modified the essential elements of the
offense charged such that "there is a substantial likelihood
that the defendant may have been convicted of an offense other
than that charged in the indictment."
See D'Amelio, 683 F.3d at
416 (quoting Mollica, 849 F.2d at 729)
(emphasis added).
Accordingly, for the reasons stated above, a claim of
ineffective assistance of counsel which seeks to establish that
Christie's attorney should have objected to the mere mention of
other narcotic substances -- and the use of "narcotic" as a
general term after their mention -- as constructive amendments
23
of the indictment misses the mark and must be denied.
B. Petitioner Was Not Entitled to Jury Determination of
Forfeitable Property
Christie contends that his attorney provided
ineffective assistance of counsel, ostensibly by failing to
object to the "circumvention" of a jury determination of
specific property for forfeiture by only seeking a money
judgment. 5
(Pet. at 1 7) .
21 U.S.C.
§
853(a) provides for
forfeiture of property by any person who is convicted of a
violation of the Controlled Substances Act.
Under
§
853, the
government may seek to forfeit, among other things, specific
property used by the defendant in the commission of the offenses
of the conviction, or, if it chooses, may seek a money judgment
in an amount estimated to be correlative to the proceeds
obtained by the defendant as a result of the offenses of the
conviction.
Under Rule 32.2 of the Federal Rules of Criminal
Procedure, if the Government seeks to forfeit specific property
5
Christie's prose Petition is not entirely clear, but construing the
Petition liberally as courts must, this Court interprets the Petition to
allege that the Government chose to seek a money judgment purposely to
circumvent a jury determination of the nexus between the property to be
seized and the commission of the crimes he was convicted of.
(Pet. 17-18.)
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[A] prose complaint,
however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.").
24
after trial, the defendant and the Government each have the
option of requesting that the jury determine whether the
specific property is subject to forfeiture.
P. 32.2(b) (5)
See Fed. R. Crim.
the court
("In any case tried before a jury .
must determine
. whether either party requests that the jury
be retained to determine the forfeitability of specific
property[.]").
If the Government seeks a money judgment,
however, the Court alone determines the forfeiture amount at
sentencing.
See United States v. Perkins, No. 09-CR-968
2014 WL 119326, at *1-*2 (E.D.N.Y. Jan. 10, 2014)
(DLI),
("[I]f the
government does not seeks specific property, but rather a
personal money judgment, the court itself determines the amount
of money that the defendant will be ordered to pay.")
United States v. Galestro, No. 06-CR-285
at *11 (E.D.N.Y. July 15, 2008)).
(quoting
(ARR), 2008 WL 2783360,
The defendant is not entitled
to have the jury decide the amount of the money judgment.
See
United States v. Tedder, 403 F.3d 836, 841 (7th Cir. 2005); see
also United States v. Watts, 934 F. Supp. 2d 451, 493 (E.D.N.Y.
2013)
(Rule 32.2 does not provide for a jury determination of a
money judgment forfeiture).
Courts outside of this Circuit have clearly indicated
that the Government has the discretion to choose whether to
pursue a money judgment rather than forfeiture of specific
25
property.
United States v. Gregoire,
638 F.3d 962,
972
(8th
Cir. 2011)
("to avoid submitting forfeiture issues to the jury,
the government abandoned this claim of forfeiture in the
indictment").
In the event that the Government should choose to
seek a money judgment, the Court is not required to ascertain
whether a defendant prefers a jury determination of
forfeitability of specific property via special verdict.
See
United States v. Grose, 461 F. App'x 786, 806 (10th Cir. 2012)
cert. denied, 133 S. Ct. 213 (2012)
("The government did not
seek forfeiture of any specific property in the indictment.
The
district court was not required to determine if Grose wanted a
special verdict.")
(emphasis in original) ; see also Perkins,
2014 WL 119326, at *1-*2
(quoting Galestro, 2008 WL 2783360, at
*11) .
In this case, the Government sought only a money
judgment.
As a result, Christie had no right under Rule 32.2 or
otherwise to a jury determination of the money judgment, nor did
he have a separate right to challenge the government's election
to seek a money judgment in lieu of a jury-determined forfeiture
of specific property.
Accordingly, Christie's ineffective
assistance of counsel claim must fail as his attorney would have
had no clear basis in law on which to levy an objection.
26
---------------------------
c. Petitioner Was Not Denied the Right to Testify At Trial
Christie contends that his counsel failed both to (1)
advise Christie of his constitutional right to testify at trial
and (2) provide an explanation for why he had advised him not to
testify.
(Pet. at 18).
Both arguments must be rejected.
Every defendant in a criminal case has a
constitutional right to testify on his or her own behalf. Rock
v. Arkansas, 483 U.S. 44
(1987); United States v. Ferrarini, 219
F.3d 145, 151 (2d Cir. 2000).
Defense counsel must inform the
defendant of his or her right to testify and offer advice on
whether or not that right should be exercised.
In doing so,
defense counsel "should always advise the defendant about the
benefits and hazards of testifying and not testifying, and may
strongly advise the course that counsel thinks best."
v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
See Brown
When all is said and
done, however, the defendant -- rather than defense counsel
is the one who must ultimately decide whether or not to exercise
the right to testify.
See id. at 78
(collecting cases).
If a defendant wishes to waive the right to testify,
he or she simply remains silent.
(collecting cases).
See Brown, 124 F.3d at 78-79
An on-the-record colloquy is generally not
27
conducted when a defendant waives the right to testify.
fact,
In
requirement of an on-the-record colloquy has been rejected
due to concerns that it could inappropriately influence the
defendant to testify, thereby jeopardizing the right against
self-incrimination, and because it would require the trial court
to inject itself into a sensitive area of trial strategy
properly reserved to the defendant and his attorney.
79 & n.2; see also United States v. Pennycooke,
See id. at
65 F.3d 9, 11
(3d Cir. 1995).
Courts have observed, however, that the absence of an
on-the-record waiver of the right to testify opens the door to
conviction challenges on the basis that a defendant was not
informed of their right to testify, or that they were ordered by
the attorney to waive their right.
In response to this concern,
courts have emphasized that in order to establish a denial of
the right to testify, a "barebones assertion by a defendant,
albeit under oath, is insufficient to require a hearing or other
action on his claim that his right to testify in his own defense
was denied him.
succeed."
It just is too facile a tactic to be allowed to
Underwood v. Clark, 939 F.2d 473,
476 (7th Cir.
1991); see also United States v. Castillo, 14 F.3d 802, 805 (2d
Cir.), cert. denied, 513U.S. 829 (1994).
28
A defendant's claim of denial of right to testify is
thus reviewed in the same manner as an ineffective assistance of
counsel claim under Strickland.
See Brown, 124 F.3d at 79
("Because the burden of ensuring that the defendant is informed
of the nature and existence of the right to testify rests upon
defense counsel, we conclude that this burden is a component of
the effective assistance of counsel").
A defense attorney's
failure to inform a defendant of his right to testify is
sufficient to satisfy the performance prong of the Strickland
test, though courts are entitled to presume that such misconduct
on the part of defense counsel is rare.
See Brown, 124 F.3d at
80 (citing United States v. Teague, 953 F.2d 1525, 1534
Cir.)
(en bane), cert. denied, 506 U.S. 842
(11th
(1992)); see also
Strickland, 466 U.S. at 689; Pennycooke, 65 F.3d at 12.
While it is undoubtedly preferable that a defense
counsel clearly and unambiguously advise his client of a
defendant's constitutional right to testify in his own defense,
in practice, not all instances of advice are perfectly
delivered.
Courts are entitled to presume that blatant
misconduct on the part of defense counsel in this arena is rare.
In Christie's case, there is no reason to suspect that Christie
was not adequately informed.
See Brown, 124 F.3d at 80 (citing
United States v. Teague, 953 F.2d 1525, 1534
29
(11th Cir.)
(en
If, in fact,
bane), cert. denied, 506 U.S. 842 (1992).
it were
the case, as Christie contends, that defense counsel had advised
Christie not to testify without providing an explanation, the
advice that he not testify would have necessarily flagged for
Christie that there was an opportunity for him to testify at
trial that he was electing not take advantage of.
Furthermore,
in the absence of evidence corroborating Christie's bare
assertion that his right to testify in his own defense was
denied him, a hearing or other action on this particular claim
is not warranted.
See Underwood,
939 F.2d at 476; see also
Castillo, 14 F.3d at 805 (citing Underwood)
.6
Similarly, Christie offers no proof but his bald
assertion that his attorney did not provide an explanation in
order for him to make an informed decision.
also, then, be disregarded.
To be sure,
This claim must
from an evidentiary
perspective, it would be difficult for Christie to provide proof
of a total lack or absence of his attorney's explanation of his
right to testify.
Nevertheless, a bare assertion that no
explanation was given unaccompanied by any corroborating
6
It bears noting that repeated reference was made regarding Christie's right
to testify (or not) at trial.
(See Tr. 144, 891, 899, and 1035). While this
is not dispositive as to whether Christie's counsel performed his
professional duty in advising Christie on his constitutional right to testify
in his own defense, it provides further indication that both Christie would
have been aware of his opportunity to testify, as well as the fact that he
was explicitly -- on the advice of his lawyer -- choosing not to take the
stand.
30
evidence, however, cannot automatically nudge Christie's claim
into the realm of plausibility.
See Aguirre, 912 F.2d at 560
(quoting Strickland, 466 U.S. at 689); see also Puglisi, 586
F.3d at 213 (quoting Armienti v. United States, 234 F.3d 820,
823 (2d Cir. 2000)).
Moreover, assuming arguendo that Christie was not
adequately advised with respect to his right to testify, his
claims must still fail as he cannot show, under the prejudice
prong of the Strickland test, that "there is a reasonable
probability that but for counsel's unprofessional errors, the
result .
at 692.
. would have been different."
Strickland, 466 U.S.
Christie includes in his Petition statements that he
claims he would have made had he taken the stand and which he
argues would have created a reasonable doubt in the mind of the
jury.
(Pet. at 18-21).
His arguments are, however,
unpersuasive as the evidence entered against Christie at trial
overwhelmingly tended toward proving his guilt.
Christie's characterization of the trial as a
credibility contest is inaccurate.
presented, among other things,
At trial, the Government
(1) the testimony of three
cooperating witnesses who each worked with Christie during and
in relation to the charged conspiracy,
31
(2) the testimony of an
ICE agent who described an undercover meeting and subsequent
telephone conversations with Christie, during which they
discussed transporting multi-kilogram quantities of cocaine by
boat to Miami, and (3) the testimony of another ICE agent, who,
in addition to other statements, recounted Christie's postarrest admissions that, on multiple occasions, he shipped large
quantities of cocaine on commercial airline flights traveling
from Jamaica to the United States.
Christie argues in his
Petition that he would have contested and/or denied all evidence
entered against him, or that certain damning evidence was
produced under duress.
(Pet. at 18-21).
It cannot be said,
however, that in the face of such devastating evidence entered
against him, that there is a 'reasonable probability' that
Christie's categorical denials would have effected a different
outcome.
See Strickland, 466 U.S. at 693-94; see also Puglisi,
586 F.3d at 214.
Accordingly, Christie's claim that but for his
attorney's failure to advise him of his right to testify -- and,
in turn, Christie's subsequent failure to exercise that right
the result of the trial would have been different must be
denied.
32
CONCLUSION
Based upon the facts and conclusions of law set forth
above, Petitioner's motion to vacate, set aside, or correct his
sentence is denied.
It is so ordered.
New York, NY
May
t,. 1/",
2014
U.S.D.J.
33
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