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Giles v. United States

United States District Court, W.D. North Carolina, Charlotte Division

September 8, 2017

ERIC GILES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and supplemental § 2255 motion to vacate, (Doc. No. 11).

         I. BACKGROUND

         Petitioner was indicted in a marijuana trafficking conspiracy involving numerous co-conspirators including the co-defendant with whom he was tried, Kyle Corsi. (Crim. Case No. 3:09-cr-203, Doc. No. 102). The counts pertaining to Petitioner are: Count (1), conspiracy to possess with intent to distribute a mixture and substance containing a detectable amount of marijuana (100 kilograms or more) in violation of 21 U.S.C. § 846, 841(a)(1), 841(b)(1)(B); Count (2), conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(ii), 1956(h); Count (3), conspiracy to structure a currency transaction to evade reporting requirements in violation of 18 U.S.C. § 371, 31 U.S.C. § 5324(a)(3); Counts (4) and (6), possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c); Count (5), possession with intent to distribute a mixture and substance containing a detectable amount of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), 18 U.S.C. § 2; and Counts (7) and (8), possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Id., Doc. No. 102 at 4).

         The facts of the case, as summarized by the Fourth Circuit Court of Appeals, are as follows:

Giles and Corsi were members of a marijuana distribution ring operating in Chapel Hill and Charlotte, North Carolina. As the ring-leader, Giles would travel to California to procure “high-grade” marijuana. Giles would then send packages containing several pounds of marijuana through the mail from a fictitious business-Norcal Athletics-to Corsi and other distributors back in North Carolina. When a package arrived, Giles would send a text message that “the eagle has landed” to notify a given distributor that the package was ready for pickup and distribution. To finance the purchases, the distributors made large cash deposits into bank accounts that Giles managed. However, pursuant to Giles' instructions, the distributors kept their individual deposits under $10, 000 to avoid federal reporting requirements. Over its three years of operation, the distribution ring sold over one hundred kilograms of marijuana and made deposits totaling several hundred thousands of dollars.
On October 26, 2009, after over a year tracking the operation and intercepting packages containing marijuana en route from “Norcal Athletics” to North Carolina, federal agents arrested Giles in Charlotte. With Giles' consent, agents searched his vehicle and confiscated his cellular phone and approximately one pound of marijuana. At that time, Giles identified his source of marijuana in California, but stated that any packages sent by Norcal Athletics contained only athletic gear, and denied knowledge of the contents of the package of marijuana seized from his car. That same day, agents searched Giles' residence, and discovered receipts and other documentation linking him to shipments from California to North Carolina.
On the evening of Giles' arrest, six federal agents and two uniformed police officers went to Corsi's residence to attempt to speak with him about the marijuana distribution ring….. Agent Morgan informed Corsi that the officers had information that there might be narcotics in the residence, and hoped to talk with him and obtain his consent for a search. Corsi became agitated and denied the officers consent to enter the house.… After several minutes, Corsi shouted … that he knew why the officers were there and that he was ready to talk and “be a man about it.”
… Corsi .. admitted that he had been receiving high-grade marijuana from California through the mail. He explained that his supplier would send text messages indicating when the packages had arrived in North Carolina and were ready for pickup. Corsi also explained that other members of the ring would deposit money into the drug supplier's bank account to prepay for the marijuana, but stated that he had never done so. However, after Agent Morgan showed Corsi bank surveillance photographs of him and an unidentified woman (who Corsi then identified as his girlfriend) making cash deposits, Corsi admitted to making several deposits into the drug supplier's account. After approximately thirty minutes, the agents concluded the interview and left the residence without arresting Corsi.
A week later, on November 3, several agents and officers returned and arrested Corsi at his residence…. Agent Morgan ascertained from the officer that Corsi had been informed of his Miranda rights, and then asked Corsi several clarifying questions regarding his October 26 statements. Corsi confirmed several statements from his earlier interview, including that packages he received from Norcal Athletics had contained marijuana.….

United States v. Giles, 518 Fed.Appx. 181, 183-85 (4th Cir. 2013).

         Prior to trial, the Government raised a potential Bruton[1] problem due to its intent to introduce co-Defendant Corsi's statement mentioning Petitioner. It proposed using neutral pronouns “drug supplier” or “source of supply” in place of Petitioner's name. (Id., Doc. No. 242 at 5); see also (Id., Doc. No. 118). Petitioner's counsel objected that the proposed pronouns are not neutral because they imply wrongdoing, and that the jury would “certainly realiz[e]” that these pronouns refer to Petitioner. (Id., Doc. No. 242 at 5-6). The Court overruled the objection and found that the use of pronouns “allows the jury to understand the confession in context, but avoids the constitutional issue in an appropriate way and in a way that's been approved by the Fourth Circuit.” (Id., Doc. No. 242 at 6).

         The Government called numerous unindicted co-conspirators[2] at trial who testified that Petitioner was the head of a marijuana distribution organization that lasted for three years and brought hundreds of pounds of marijuana into North Carolina from California, and transferred over one million dollars of marijuana sale revenue from North Carolina back to California to fund additional marijuana purchases.

         The Government presented evidence that police found a firearm in the home Petitioner shared with his girlfriend in December 2007.[3] (Id., Doc. No. 268 at 141). Petitioner's girlfriend gave police permission to search the home when they arrived to investigate a domestic dispute. Police discovered a firearm on the top shelf of a cabinet within inches of marijuana, money, and a bong. (Id., Doc. No. 268 at 147-49). The Government argued that this gun possession violated § 922(g) because Petitioner had a 1991 conviction for assault with great bodily injury in violation of California Penal Code Section 245(a)(1), which is a felony offense punishable by more than a year in prison. Defense counsel refused to stipulate that the California conviction is a felony, arguing that it is a misdemeanor conviction under a “wobbler” statute. The Court ruled that the California conviction is a prior felony conviction for purposes of § 922(g), and the only issue for the jury in that regard is whether Petitioner is the same person who was convicted in the California case. (Id., Doc. No. 269 at 8-10).

         The Government introduced co-Defendant Corsi's pre-arrest statement to police during DEA Agent Christopher Morgan's direct testimony, with the Bruton modifications it had proposed pre-trial. During this testimony there were approximately 14 references, both by the prosecutor and Agent Morgan, to co-Defendant's “drug supplier” or “source of supply.” (Id., Doc. No. 270 at 84-89).

         In addition to the numerous unindicted co-conspirators' testimony, the Government also introduced evidence of packages that Petitioner sent from California to various North Carolina addresses that corresponded to marijuana shipments, some of which were intercepted by United States Postal Inspectors, bank account activity by Petitioner and the co-conspirators in amounts just under the $10, 000 reporting limit that corresponded to marijuana purchases in California and shipments to North Carolina, and surveillance images of Petitioner in California banks and post offices corresponding to drug transactions and shipments.

         Petitioner chose not to testify at trial or present a defense case. (Id., Doc. No. 270 at 201).

         The jury found Petitioner not guilty of Count (4), and guilty of the remaining counts with the special findings that 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana was reasonably foreseeable to Petitioner in Count (1), and that the objects of the conspiracy in Count (2) were to violate 18 U.S.C. § 1956(a)(1)(A)(i) (with intent to promote) and 18 U.S.C. § 1956(a)(1)(B)(ii) (with intent to avoid a transaction reporting requirement). (Id., Doc. No. 159).

         Petitioner filed a pro se motion for new trial prior to sentencing in which he attached “newly discovered evidence, ” i.e., a 1998 California court document containing a crossed-out entry stating “17(b) REDUCE FELONY TO MISD.” (Id., Doc. No. 201). Petitioner argued that this entry shows that his 1991 assault conviction was reduced from a felony to a misdemeanor. The Government filed a California court official's declaration that no motion to reduce was filed in Petitioner's case, but that such a motion was filed in his co-defendant's case, and the crossed-out entry appeared to correct a human error. (Id., Doc. No. 212). The Court denied the pro se motion for new trial because Petitioner was not diligent in uncovering the proffered evidence, and that it would not likely alter the verdict because the crossed-out entry refers to a co-defendant. United States v. Giles, 2011 WL 13152579, *1-2 (Aug. 15, 2011). The Fourth Circuit affirmed on June 17, 2016, because, after reviewing the record, it found no abuse of discretion in either of bases for the Court's ruling. United States v. Giles, 652 Fed.Appx. 210 (4th Cir. 2016). The United States Supreme Court denied certiorari on March 20, 2017. Giles v. United States, 137 S.Ct. 1359 (2017).

         The presentence investigation report (“PSR”) grouped together Counts (1), (2) and (5) and used the base offense level of for violation of 18 U.S.C. § 1956, for an underlying offense from which the laundered funds were derived, conspiracy to possess with intent to distribute marijuana, based on the quantity of drugs for which Petitioner is responsible (at least 100 but less than 400 kilograms of marijuana). (Id., Doc. No. 237 at ¶ 30-31). Two levels were added because Petitioner was convicted of violating 18 U.S.C. § 1956. (Id., Doc. No. 237 at ¶ 32). Four levels were added because Petitioner was a leader/organizer of the offense. (Id., Doc. No. 237 at ¶ 34). The resulting adjusted offense level subtotal for that group was 32. (Id., Doc. No. 237 at ¶ 36).

         The base offense level for Count (3) is the base offense level of six plus the number of offense levels corresponding to the value of the funds (14 levels) resulting in a base offense level of 20. (Id., Doc. No. 237 at ¶ 20). Two levels were added because Petitioner knew the funds were proceeds of unlawful activity. (¶ 38). Two more levels were added because Petitioner was convicted of violating 31 U.S.C. § 5324 and he committed the offense as part of a pattern of unlawful activity involving more than $100, 000 in a 12-month period. (¶ 39). This resulted in an adjusted offense level subtotal of 24 for Count (3). (Id., Doc. No. 237 at ¶ 43).

         The base offense level for Counts (7) and (8) was 20 because Petitioner violated 18 U.S.C. § 922(g)(1) after sustaining a felony conviction for a controlled substance offense. (Id., Doc. No. 237 at ¶ 43-44). Two levels were added because the offense involved three firearms. (¶ 45). Four levels added because Petitioner used or possessed the weapon in connection with the felony offense of distributing marijuana. (Id., Doc. No. 237 at ¶ 46). The adjusted offense level for Counts (7) and (8) was 26. (Id., Doc. No. 237 at ¶ 50).

         The offense guideline that produces the highest offense level is the one for Counts (1), (2) and (5), and therefore, the adjusted offense level subtotal for that group of 32 was used. (Id., Doc. No. 237 at ¶ 51, 52); see USSG § 3D1.3(b). No Chapter Four enhancements applied, so the resulting total offense level was 32, plus the statutory minimum sentence for Count (6) pursuant to § 924(c). (Id., Doc. No. 237 at ¶ 53, 55, 56). Petitioner had two criminal history points and a criminal history category of II. (Id., Doc. No. 237 at ¶ 65). The resulting guidelines imprisonment range was 135 to 168 months plus a mandatory consecutive five-year sentence for Count (6). (Id., Doc. No. 237 at 103).

         The Court sentenced Petitioner in the middle of the advisory guideline range to a total of 196 months' imprisonment (136 months as to Counts (1) and (2), 120 months as to Counts (3), (7) and (8), 60 months as to Count (5), all concurrent, and 60 months as to Count (6), consecutive), followed by a total of four years of supervised release. (Id., Doc. No. 250); (Id., Doc. No. 272 at 55-57).

         Petitioner argued on direct appeal that the Court erred by admitting text messages obtained from Petitioner's cellular phone as party admissions under Fed. R. Ev. 801(d)(2)(A), rather than statements between co-conspirators under Fed. R. Ev. 801(d)(2)(E). The Fourth Circuit affirmed on April 12, 2013. It rejected Petitioner's claim as refuted by the record. Further, considering the defendants' failure on appeal to demonstrate that any of the admitted text messages were not sent “in the course and furtherance of the conspiracy, ” it was unable to conclude that the Court abused its discretion by admitting the text messages. United States v. Giles, 518 Fed.Appx. 181, 189 (4th Cir. 2013) (quoting Bourjaily v. United States, 483 U.S. 171, 186 (1987)). The Fourth Circuit further found that Petitioner's un-briefed argument that the Court used the wrong evidentiary standard when determining whether a conspiracy existed at the time the text messages at issue were sent, even if preserved, was meritless. Id.

         On July 23, 2015, counsel filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582, guidelines Section 1B1.10 and Amendment 782. (Id., Doc. No. 296). The Court granted the motion on July 13, 2016, and reduced the sentence to 109 months for Counts (1), (2), (3), (7) and (8), or time served if less than that figure, and the sentence remained unchanged for Counts (5) and (6).

         Meanwhile, Petitioner filed the instant § 2255 motion to vacate on November 14, 2014, raising a number of claims of ineffective assistance of trial and appellate counsel, and several other claims of constitutional error. (Doc. No. 1). The Government filed a Response addressing each of Petitioner's claims. (Doc. No. 6). Petitioner filed a reply. (Doc. No. 10). On June 23, 2016, Petitioner filed a “Motion to Vacate Supplement (Johnson Claim), ” in which he raises a new claim based on Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 11).

         II. SECTION 2255 STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The Strickland standard is difficult to satisfy because the “Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The prejudice prong inquires into whether counsel's deficiency affected the judgment. See Strickland, 466 U.S. at 691. A petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In considering the prejudice prong of the analysis, a court cannot grant relief solely because the outcome would have been different absent counsel's deficient performance, but rather, it “can only grant relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.'” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a reviewing court need not even consider the performance prong. Strickland, 466 U.S. at 697.

         To establish prejudice in the context of appellate representation, a petitioner must show a “reasonable probability ... he would have prevailed on his appeal” but for his counsel's unreasonable failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) (“The test for prejudice under Strickland is not whether petitioners would likely prevail upon remand, but whether we would have likely reversed and ordered a remand had the issue been raised on direct appeal.”).

         III. DISCUSSION

         A. Claims of Ineffective Assistance of Trial Counsel

         The Government argues that Petitioner's claims ineffective assistance of trial counsel fail on the merits. For the following reasons, the Court agrees.

         1. Petitioner contends that trial counsel was ineffective for failing to argue he is actually innocent of violating § 922(g) because his 1991 California conviction for assault with great bodily injury is a misdemeanor, not a felony. He appears to argue that counsel was ineffective for failing to present at trial a 1998 document which demonstrates that the California court converted his assault conviction into a misdemeanor. (Crim. Case No. 3:09-203-RJC-DCK, Doc. No. 201-1 at 9).

         Section 922(g)(1) makes it unlawful for a person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to, inter alia, “possess in or affecting commerce, any firearm or ammunition….”

         A crime is considered a felony under California law if it is punishable by death, imprisonment in state prison, or imprisonment in county jail for 16 months, or two or three years. Cal. Penal Code §§ 17(a), 1170(h). When a crime is punishable at the court's discretion either by state prison or county jail, it is a misdemeanor “for all purposes” if, inter alia, “the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.” Cal. Penal Code § 17(b)(3). Section 245 is a so-called “wobbler” statute because it can result in imprisonment in a state prison greater than a year or imprisonment in a county jail for less than a year, and therefore wobbles between a felony and a misdemeanor. United States v. Adams, 716 F.3d 1066, 1070 (8th Cir. 2013).

         Petitioner's claim of ineffective assistance is refuted by the record insofar as counsel argued at trial that Petitioner's 1991 California assault conviction is a misdemeanor that cannot support a § 922(g) violation. Counsel's failure to discover, obtain, and present the 1998 California document at trial was not ineffective assistance because it does not demonstrate that the California conviction is, in fact, a misdemeanor and thus would not have probably changed the outcome of trial. Petitioner raised this issue in his pro se motion for a new trial, at which time the Court examined the 1998 California document and found that it did not demonstrate that Petitioner's 1991 conviction had been converted to a misdemeanor. The Court found that the crossed-out notation purportedly converting the felony conviction to a misdemeanor resulted from human error and actually referred to the co-defendant. The Fourth Circuit affirmed the Court's ruling on this issue, Giles, 652 Fed.Appx. at 210, and it need not be reconsidered here. See generally Pepper v. United States, 562 U.S. 476, 506 (2011) (law of the case doctrine generally provides that, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case”) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)); Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017).

         The Court has already determined that the 1998 document did not refer to Petitioner's case and would not have resulted in a different trial outcome, and the Fourth Circuit affirmed. It is impossible for Petitioner to demonstrate ineffective assistance of counsel under these circumstances.

         2. Petitioner contends that counsel was ineffective for allowing the Government to characterize him as a “drug supplier” and “source of supply” before the jury heard co-Defendant's redacted confession using those ...


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