The opinion of the court was delivered by: LEISURE
Petitioners pro se Jorge Garcia ("Garcia") and Wasang Thomas Mock ("Mock"), and petitioner Raul A. Rodriguez ("Rodriguez"), by counsel, are federal prisoners challenging their sentences pursuant to Title 28, United States Code ("U.S.C"), Section 2255. Though petitioners have filed separate motions, they assert both common and individual claims for relief. For the reasons stated below, the motions are denied.
The original Indictment in this action was filed on December 18, 1990. The Indictment charged petitioners Garcia and Rodriguez, as well as Pedro Valdez, with criminal acts stemming from their involvement in a narcotics distribution operation headquartered in Apartments 23 and 24 of a building on West 143rd Street in Manhattan ("Apartment 23" or "Apartment 24"). The Indictment consisted of four counts: (1) conspiracy to possess with intent to distribute more than fifty grams of "crack" cocaine and more than five kilograms of cocaine, from November 29, 1990, up to and including the date of the Indictment, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute approximately six kilograms of "crack" cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2; (3) possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; (4) using and carrying a firearm, specifically a loaded .32 caliber handgun, during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §§ 2, 924(c).
On March 20, 1991, pursuant to a cooperation agreement with the Government, Pedro Valdez pleaded guilty to Counts One and Four of the Indictment. In response to this plea, the Government filed a superseding Indictment, dated April 25, 1991, that amended the charges in the original Indictment and deleted Valdez as a defendant (the "S1 Indictment"). Count One of the S1 Indictment extended the time period of the conspiracy back to December, 1988, and forward to April, 1991. Counts Two and Three charged defendants with possessing, respectively, approximately 2.9 kilograms of "crack" and 3.7 kilograms of cocaine. Count Four charged Rodriguez and Garcia with using and carrying a firearm, specifically a loaded .32 caliber handgun, during and in relation to a drug trafficking offense.
Trial on the S1 Indictment commenced on July 23, 1991, before the Honorable Mary Johnson Lowe (the "First Trial"). Though he was not indicted in the action, Mock testified on behalf of Garcia. Mock stated that neither Garcia nor Rodriguez manufactured or sold narcotics, and that Mock and Garcia had been partners in a legitimate auto parts business. On July 31, 1991, immediately following this testimony, but outside the presence of the jury, Mock was arrested. The warrant for Mock's arrest, dated May 24, 1991, was based on a sealed Complaint charging Mock with participation in the narcotics conspiracy.
The First Trial ended on August 2, 1991, in a mistrial. Eleven members of the jury voted to acquit the defendants, and one voted to convict.
On August 13, 1991, less than two weeks after the end of the First Trial, the Government filed a second superseding Indictment (the "S2 Indictment"). The S2 Indictment charged Mock, Rodriguez, and Garcia with (1) conspiracy to distribute and possess with intent to distribute more than fifty grams of "crack" cocaine, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute approximately 2.9 kilograms of "crack" cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841((b)(1)(A), and 18 U.S.C. § 2; (3) possession with intent to distribute approximately 3.7 kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and (4) using and carrying a firearm, specifically a loaded .32 caliber handgun, during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c). In addition, the S2 Indictment charged Mock with two counts of perjury stemming from his testimony at the First Trial, in violation of 18 U.S.C. § 162.
Trial on the S2 Indictment commenced in this Court on January 6, 1992. The Government adduced substantial evidence that implicated petitioners in the manufacture and sale of narcotics, including 2.9 kilograms of "crack" cocaine seized from Apartment 24, a loaded .32 caliber handgun, extensive drug paraphernalia, and drug records in Mock's handwriting that reflected $ 232,787 in cocaine sales from a three-and-a-half-month period in 1990.
On January 24, 1992, the jury convicted Garcia and Rodriguez on Counts One through Four of the S2 Indictment, and Mock on Counts One through Six.
On July 23, 1992, this Court sentenced both Mock and Garcia to life imprisonment, plus a mandatory five-year sentence to be served consecutively. On January 5, 1993, this Court sentenced Rodriguez to 248 months imprisonment, plus a five-year term of supervised release.
B. The Section 2255 Petitions
Counsel for Rodriguez filed a petition pursuant to 28 U.S.C. § 2255 on April 10, 1997. Mock and Garcia filed pro se petitions on April 21, 1997, and April 24, 1997, respectively.
1. Petitioners' Common Claims
In their several motions, petitioners raise two common claims. First, each petitioner argues that the holding of Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), requires this Court to vacate his conviction on Count Four of the S2 Indictment, for using or carrying a firearm during and in connection with a drug trafficking offense. See 18 U.S.C. § 924(c). Petitioners contend that the evidence at the Second Trial did not prove "use" of a firearm as that term was defined in Bailey. Therefore, they argue, their convictions cannot stand. Rodriguez further claims that his firearm conviction is invalid under United States v. Medina, 32 F.3d 40 (2d Cir. 1994). He contends that he did not know or have reason to know that a gun was used or carried during and in connection with his narcotics activities, see Medina, 32 F.3d at 46, and that his conviction therefore cannot stand.
Each petitioner also asserts that he received ineffective assistance of counsel. Mock asserts that his counsel was ineffective due to his failure to object to allegedly improper perjury instructions, his failure to argue that the cocaine base seized from Apartment 24 was not "crack", but some other form of cocaine base, and his filing of a "lackadaisical" severance motion with the Court. Rodriguez contends that his counsel was ineffective due to his failure to file a motion for recusal and his failure to argue that the cocaine base seized from Apartment 24 was not "crack". Garcia argues that his counsel was ineffective due to his decision to call Mock as a witness at the First Trial, his failure to object to the Government's "constructive amendment" of the Indictments, and his failure to cross-examine Valdez properly.
2. Petitioners' Individual Claims
Petitioners also assert several individual claims. Mock contends that the Court should vacate his conviction because (1) the Court's perjury instructions were improper under United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995); (2) "prejudice" from these allegedly improper instructions "spilled over" into the narcotics and firearms Counts of the S2 Indictment; (3) joinder of the perjury Counts with the narcotics and firearm Counts of the S2 Indictment was prejudicial; and (4) the Court's conspiracy instructions contained improper "judicial rhetoric".
Rodriguez claims that (1) the Court's "improper" instructions on the § 924(c) Count of the S2 Indictment prejudicially "spilled over" into the narcotics and firearm Counts; (2) the Court improperly applied the enhanced "crack" sentencing guidelines of 18 U.S.C. § 841 and U.S.S.G. § 2D1.1; (3) the Court unconstitutionally deprived him of his right to represent himself; and (4) the Court should have recused itself because of bias.
Garcia argues that (1) the Government constructively amended the Indictments in this action; (2) the Government acted vindictively in so amending the Indictments; (3) the Court gave improper instructions to the jury on the amount and nature of narcotics introduced at the Second Trial; ...