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United States District Court, S.D. New York

November 8, 2004.

CHRISTOPHER BISHOP, Defendant-Petitioner,

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


Plaintiff Chris Bishop, appearing pro se, has filed a motion for relief pursuant to 28 U.S.C. § 2255. Following a jury trial presided over by the undersigned, Bishop was convicted of conspiring to traffic in firearms without a license, in violation of 18 U.S.C. § 371; trafficking in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A); and possessing one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Bishop was sentenced by this Court principally to concurrent terms of 60 months' imprisonment on the conspiracy and trafficking counts, and a consecutive term of 17 months' imprisonment on the felon-in-possession count. The Second Circuit affirmed Bishop's conviction and sentence on direct appeal. United States v. Bryce (Bishop), No. 02-1350, 59 Fed. Appx. 398, 2003 WL 1025230 (2d Cir. Mar. 7, 2003), cert. denied 124 S.Ct. 273 (2003). In addition to his § 2255 motion, Bishop requests that counsel be appointed to represent him — a request which I now deny, for the reasons stated below.


  The facts as developed at trial have been recounted in a prior opinion, 2002 WL 413915, familiarity with which is assumed. Between July and October of 1999 Bishop participated in a conspiracy to purchase guns in Kentucky and sell them for a substantial profit in New York City. Bishop's alleged co-conspirators were Quincy Hale, Craig Bryce, Anthony Drake, and Don Saunders. Hale testified for the government at Bishop's trial, and the government also introduced the plea allocutions of Bryce, Drake, and Saunders, appropriately redacted and made the subject of a limiting instruction by the Court. The other principal government witnesses were Fonda Reeks, Bishop's girlfriend and roommate in the late summer of 1999, and John Robert, a New York City undercover detective who purchased guns from Saunders.

  According to Hale's testimony, beginning in the fall of 1998, he and Bryce collaborated on several occasions to buy guns in Kentucky and resell them in New York City. Because Hale had the necessary Kentucky identification documents, he purchased the guns at Bryce's direction. In the summer of 1999, Hale came into contact with his former high school classmates Bishop and Drake, both of whom recently had been released from prison, and discussed his gun trafficking plans. (Bishop had been released from a halfway house in July). Both Bishop and Drake showed interest in participating. The three of them then made plans to purchase a number of guns and transport them to New York, where Bryce would arrange for them to be sold.

  Hale testified further that he, Bishop, and Drake each contributed money toward the purchase of the guns — $400 by Hale, $1,000 by Bishop, and $300-$350 by Drake. Between August 26 and 27, 1999, they selected and Hale purchased five guns from one pawnshop and twelve guns from another pawn shop, all of which they picked up the next day. Because of Drake's and Bishop's prior criminal histories, Hale alone submitted the necessary paperwork to purchase the guns.

  The first group of five guns was distributed as follows: Bishop took two, one of which he sold, Drake took one and sold it, and Hale took two. The second group of twelve guns was placed in a closet at Bishop's apartment, which he shared with his then girlfriend Fonda Reeks. According to Hale, Bishop obtained a rental car, and on August 27, he and Drake left for New York with the guns hidden in a speaker cabinet in the trunk.

  Although Hale helped them load the guns in the car, he decided to stay in Kentucky. Bishop later called Hale from New York and told him that he and Drake had so far realized $1,500 from the sale of some of the guns. When Bishop and Drake returned, they showed Hale a photograph of them in New York City with Bryce and some gold jewelry they bought there. They also told Hale that they had left some guns with Bryce to sell. Bryce later told Hale that he had sent an additional $1,000 from the sale of the guns to Bishop. Hale eventually received approximately $350 in payment in kind from Bishop.

  Fonda Reeks corroborated Hale's testimony in several respects. She testified that in July 1999, Bishop, Hale, and a third person (Drake) started planning a trip to New York City to see "Shorts" (Bryce). Bishop's mother rented a car for him to use for the trip (since he himself did not have a credit card). On the week of the trip, Bishop brought home a heavy box and placed it in the closet of the apartment, instructing Reeks not to bother it. Immediately before the New York trip, Bishop told Reeks to stay upstairs while he was downstairs with Hale and Drake. After Bishop left, Reeks noticed that a speaker cabinet was missing and that the box in the closet was much lighter and contained only smaller empty boxes. When Bishop returned from New York, he showed Reeks the same photograph and jewelry that he showed Hale. Later, he received in the mail a money order from Bryce. Bishop informed Reeks that Bryce still owed him money and that Hale claimed that Bishop owed him money.

  John Robert testified that while he was working undercover, he purchased eight guns from Don Saunders in New York City between September 1999 and February 2000.*fn1 Saunders told Robert that the guns he sold came from Kentucky and also named "Shorts" (Bryce) and "Slim" (Hale) as suppliers. Three of the guns bought by Robert were traceable to the purchases made by Hale on August 25, 1999. Another gun was traceable to a purchase made by Bryce.

  Bishop returned to prison on October 28, 1999. According to Hale and the plea allocutions of Bryce and Saunders, the others continued to deal in firearms through the end of 1999 and into the beginning of 2000.

  Following a jury trial, Bishop was convicted of conspiring to traffic in firearms without a license, in violation of 18 U.S.C. § 371; trafficking in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A); and possessing one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On June 11, 2002, I sentenced Bishop principally to concurrent terms of 60 months' imprisonment on the conspiracy and trafficking counts, and a consecutive term of 17 months' imprisonment on the felon-in-possession count. I further ordered that the federal sentence run consecutive to a state sentence Bishop was serving for a Kentucky parole violation. Upon appeal, both conviction and sentence were affirmed by the Second Circuit by summary order.

  On July 15, 2004, Bishop filed this present motion for relief pursuant to 28 U.S.C. § 2255. The government opposed the motion in a memorandum of law filed on August 27, 2004. Bishop then wrote a letter to the Court, dated September 1, 2004, not addressing the substantive merits of his case but requesting appointment of counsel on his behalf. The government responded in a letter brief, dated October 29, 2004, opposing Bishop's request. STANDARD OF REVIEW

  In assessing a § 2255 motion, relief is only available "for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in [a] complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (internal quotation marks and citation omitted). § 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam). Nor may a petitioner assert a claim under § 2255 that has not been asserted on direct review, unless the petitioner "can demonstrate either cause [for the default] and actual prejudice or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citation omitted). Finally, a "court may entertain and determine such motion without requiring the production of the prisoner at the hearing." 28 U.S.C. § 2255; see Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001).

  Bishop makes four separate claims in his § 2255 motion. First, he claims ineffective assistance of counsel. Second, that he was incorrectly sentenced. Third, there was insufficient evidence to convict him. And fourth, Bishop alleges prosecutorial misconduct. For the reasons stated below, Bishop's motion will be denied in its entirety.


  A. Request for appointment of counsel

  "Petitioners do not have a constitutional right to counsel in a collateral challenge to a conviction or sentence." Jackson v. Moscicki, Nos. 99 Civ. 2427 (JGK), 99 Civ. 9746 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000), citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). 28 U.S.C. § 2255 states, "Appointment of counsel under this section shall be governed by section 3006A of title 18." That section states, in turn, that the Court has discretion to appointment counsel to represent a petitioner seeking § 2255 relief when "the interests of justice so require."

  The Second Circuit has articulated factors that courts should consider when deciding whether to appoint an attorney to represent an indigent civil litigant in an analogous context:

In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

  While these standards were first articulated in the context of a statutory provision now codified at 28 U.S.C. § 1915(e), they are also applicable in considering whether the interests of justice require appointment of counsel in a § 2255 petition.

  Elaborating on these factors, the Court added in Cooper v. A Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989):

For many reasons courts should not grant such applications indiscriminately. Volunteer lawyer time is a precious commodity. Courts are given a major role in its distribution. Because this resource is available in only limited quantity, every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste.
  For reasons explained below, Bishop's claims do not meet the threshold requirement that they are likely to be of substance. Therefore, Bishop's request for appointment of counsel is denied.

  B. Ineffective assistance of counsel

  Well-established standards govern consideration of claims of ineffective assistance of counsel. To establish such a claim, a convicted defendant has the burden to show (1) that counsel's representation "fell below an objective standard of reasonableness" measured by "prevailing professional norms," and (2) that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 668, 688, 694 (1984); accord United States v. Best, 219 F.3d 192. Reasonable probability means "probability sufficient to undermine the confidence in the outcome. Strickland, 466 U.S. at 694, cited in Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994). Fairly assessing an attorney's representation "requires that every effort be made to eliminate the distorting effect of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689 (citations and quotation omitted). Mere omission of a nonfrivolous argument, and actions or omissions that might be regarded as "sound trial strategy," do not amount to ineffective assistance. Id., cited in McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999).

  The Supreme Court has recognized that the "object of an ineffectiveness claim is not to grade counsel's performance." Strickland, 466 U.S. at 697. Therefore, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. Here, Bishop fails to establish the second prong of his burden. Given the strong evidence of guilt presented at trial, "there is little reason to believe that alternative counsel would have fared any better." United States v. Simmons, 923 F.3d 934, 956 (2d Cir. 1991).

  Almost immediately after being released from a halfway house, Bishop conspired to purchase and sell guns without a license. Bishop himself invested the lion's share of the "seed money," $1,000, to the cause. According to Hale, soon after Bryce purchased the guns for the group, Bishop sold one and kept one for his own possession.

  Two witnesses — Hale and Reeks — provided corroborating testimony at trial as to Bishop's planned trip to New York and evidence of dealing in firearms. Reeks also provided evidence strongly implicating Bishop in hiding the guns in his apartment, and then again in his rented car, to be transported to New York. The car used for the New York trip was rented by Bishop's mother, and when Bishop returned to Kentucky he displayed the gold jewelry he bought with the proceeds from the firearms sales as well as a photograph of him together with Drake and Bryce. According to Reeks, Bishop then received a money order in the mail from Bryce, though he told her that Bryce still owed him money. The evidence adduced at trial pointing to Bishop's guilt is overwhelming. It is not possible to conclude that, but for errors on his attorney's part, the result would have been any different.

  Moreover, Bishop's motion fails to demonstrate that the representation by his former counsel, Neil Checkman, Esq., fell below an objective standard of reasonableness. Bishop claims that Checkman failed in the following respects: He introduced Bishop's prior record to the jury, admitted to charged conduct, opened the door to prejudicial testimony, failed to fully interview witnesses or investigate the case, and refused to make requested arguments before this Court and on appeal, forcing Bishop to submit pro se motions on his own behalf. I consider these claims in turn.

  1) Bishop's Prior Record

  In his opening statement, Checkman informed the jury that at the time of the alleged offense, Bishop was on parole and at some point was returned to prison.*fn2 This would lead to a necessary inference on the jury's part that Bishop had a prior criminal record. Bishop alleges that Checkman's introduction of his prior incarceration prejudiced him before the jury.

  One of the three counts arising from the superseding indictment against Bishop charged that he was in possession of one or more firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), which makes it a criminal act for "any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition." These are elements necessary to be proven by the government.

  In a letter addressed to the Court and dated November 20, 2001, Checkman proposed a stipulation intended to eliminate the need for the government to establish Bishop's prior conviction element of § 922(g)(1) even if evidence of such conviction were withheld from the jury. As Checkman noted:

This would prevent the jury from hearing about the defendant's prior felony conviction for assault without negative consequences to the government's prosecution. The defendant could then proceed to trial without having to deal with the prejudicial effect that the introduction of such evidence normally engenders.*fn3
Id. In the alternative, Checkman requested that the § 922(g)(1) count be severed from the indictment and tried separately.

  The government opposed the stipulation. Citing United States v. Gilliam, 944 F.2d 92 (2d Cir. 1993), the government argued that Checkman's proposal would improperly remove an element of the charged offense from the jury's consideration, but agreed to withhold from the jury information regarding the nature of Bishop's prior felony, if not the existence of the felony itself.

  Gilliam held that a defendant's "prior conviction is a critical element of § 922(g)(1) that cannot be divorced from the crime." 944 F.2d at 101 (internal quotation marks omitted). Therefore, I could not properly approve Checkman's stipulation, which would have removed an essential element of a crime from the jury's consideration.*fn4 This left the possibility of either severing Bishop's felon-in-possession count from his indictment and trying it separately, or bifurcating the trial and trying the third count separately, but before the same jury. Neither possibility had been contemplated in Gilliam, which involved a single count gun charge indictment, though other courts have taken this route. See, e.g., United States v. DeSantis, 802 F.Supp. 794 (E.D.N.Y. 1992). However, for reasons stated in my prior opinion, 2001 WL 1543815 (S.D.N.Y. Dec 04, 2001), I declined to sever the felon-in-possession count for separate trial or bifurcate the trial.*fn5

  It is fair to say that this ruling, while correct, presented Checkman with a tactical problem. He could not prevent the jury from discovering, at a bare minimum, that his client had a prior felony record. But Checkman did his best to use this circumstance to Bishop's advantage, arguing that the conspiracy to buy and sell guns had begun well before Bishop had been released from prison, and indeed had continued long after Bishop returned to prison. In this fashion, Checkman separated his client as much as possible from Hale and Bryce, the architects of the conspiracy, as well as from Drake. Thus, Checkman stated in his opening statements:

You will learn that the scheme to buy guns cheap and sell them dear was developed by Bryce and Hale while Chris Bishop is in jail.
You will learn that the scheme to buy guns cheap and sell them dear in New York continued after Chris Bishop was back in jail.
Tr. 27.

  I understood Checkman's strategy at the time of trial — and in fact told him so*fn6 — and I understand it now. Counsel's tactic did not fall below objective standards of reasonableness.

  2) Admission of charged conduct

  Bishop next argues that Checkman made an error when he acknowledged to the jury, in his opening statement, that Bishop had participated in the drive from Kentucky to New York City. During trial, the government introduced certified records that showed that Bishop's mother had rented the car used to transport the guns to New York. Furthermore, Reeks provided detailed testimony identifying Bishop as a member of the team that traveled to New York. She testified that Bishop called her several times during the trip, and also showed her the jewelry and other souvenirs he brought back with him. In the face of such overwhelming evidence, it would have strained credulity for Checkman to challenge the evidence concerning Bishop's New York trip. Instead, Checkman approached the case with an alternative strategy, by conceding that Bishop was in the car but challenging Hale's assertion that the trip involved trafficking of firearms. This was not an error on the part of counsel.

  3) Quincy Hale's prejudicial testimony

  In conjunction with the crimes that led to Bishop's trial, Bishop's co-conspirator Quincy Hale was arrested on March 29, 2000. Shortly thereafter, Hale was taken to be questioned at a post-arrest interview with an agent from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and officers of the New York Police Department ("NYPD").

  In this course of this interview, Hale made several admissions. Among them, Hale admitted to purchasing 20 handguns*fn7 on behalf of Craig Bryce, and at Bryce's request, in Kentucky. He admitted to knowing that Bryce would be selling the guns in New York. Hale also admitted that he did not go to New York to sell the guns himself, feigning sickness, and that they were taken instead by Anthony Drake. He admitted that Drake and Bryce could not sell all the weapons purchased, and therefore Drake left some of the guns with Bryce and returned to Lexington, Kentucky. Hale admitted that Bryce was supposed to sell the remaining guns and forward the profits to himself and Drake, but never did, instead selling the firearms to his brother, Dwayne Bryce. Finally, during the post-arrest interview, Hale positively identified both Bryce brothers from a photo array.

  What Hale never did during questioning by ATF and NYPD officers was accuse, implicate, or otherwise identify Bishop as a perpetrator of any of the crimes committed. It was only much later that Hale implicated Bishop as a participant in the scheme.

  This revelation was useful for Bishop's defense. That Hale, who had otherwise provided elaborate details of the events of the gun trafficking to government agents during his post-arrest interview, did not once mention Bishop by name severely tested the credibility of his trial testimony implicating Bishop. At least, this was the hope of defense counsel, who was able to elicit this admission during his cross-examination of Hale. Tr. 182-187.

  However, Checkman's examination of this witness came with consequences, as he well knew. Checkman's cross-examination opened the door for the government to ask Hale why he had not identified Bishop at the time of arrest. Prior to trial, the government had agreed not to question Hale on this particular issue during direct examination, but only under the condition that it not be raised during cross. Tr. 190. Checkman was conscious of this, both prior to trial and during his cross-examination, as is evidenced by his statement to the Court at the end of the first day of trial, after the jury had been excused:

Well, what I can say is that, I certainly couldn't argue that the government on cross-examination can't visit that particular subject with Mr. Hale. I won't comment on his answer or the credibility of his answer; I will leave that to the jury. But, certainly, I am not going to argue that I didn't open the door to redirect when I chose that line of questioning, your Honor; I wasn't oblivious to it.
Tr. 192-193.

  The following morning, on redirect, the government asked Hale why he did not mention Bishop's name during the post-arrest interview. His response was as follows:

Because he shot some girl in the head and I thought he would probably do the same thing to me.
Tr. 207.

  Following the government's redirect, I gave the jury limiting instructions cautioning them to consider Hale's answer solely for the purpose of evaluating his credibility as a witness, rather than as evidence that Bishop had ever shot anybody. Tr. 218-220. The efficacy of such limiting instructions by trial judges is presumed by appellate courts. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.").

  Given Checkman's declaration that he was fully aware of his decision to question Hale about why he chose not to identify Bishop during his post-arrest interview, I infer that this was part of Checkman's trial strategy. Weighing the costs and benefits, Checkman decided that the assault on Hale's credibility outweighed the obvious risks involved in Hale's accusation, which Checkman knew would be immediately couched by my limiting instructions. I find that Checkman's defensive strategy, while unsuccessful in leading towards his client's acquittal, did not fall below an objective standard of reasonableness.

  4) Full investigation and representation

  Finally, Bishop alleges that Checkman failed to investigate the case fully. Specifically, he asserts that Checkman did not interview the owners of the Kentucky pawnshops where the guns were purchased, nor Bishop's girlfriend and roommate, family members, or friends. Bishop also contends that Checkman failed to make requested arguments before the court and on appeal, forcing Bishop to submit pro se motions to preserve several key issues.

  "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. There is no "checklist" for judicial evaluation of an attorney's representation. Id. at 688.

  Bishop has failed to demonstrate that any deficiencies in Checkman's investigations in any way prejudiced the trial. He has merely stated that Checkman failed to interview a certain subset of potential witnesses, without intimating what these potential witnesses would say that might alter the guilty verdicts against him. Ineffective assistance of counsel claims often postulate "an attorney's failure to present available exculpatory evidence." Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 2001), quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992). But Bishop fails utterly to show that any of the indicated individuals would be sources of evidence exculpating him. On the contrary, Fonda Reeks, Bishop's former girlfriend and roommate (whose ardor for Bishop had understandably cooled) gave trial testimony strongly inculpating Bishop. Under these circumstances, I do not find any failure of Checkman to fully investigate the case, rising to a level that jeopardized Bishop's constitutional protections.

  Nor do I find any merit to Bishop's claim that Checkman refused to make requested arguments before the Court or on appeal. First, Bishop makes no specific allegation of which arguments he requested and Checkman failed to make, either in Court or on appeal, making it infeasible to assess the substantive merits of his claim. Second, even presuming that the arguments Bishop raises in this present motion are the arguments he alleges Checkman failed to raise, for reasons stated in this opinion, I do not find Bishop's arguments to have merit. Bishop cannot show prejudice based on his claim that Checkman failed to raise issues in trial or on appeal. Therefore, he fails to meet the second Strickland prong.

  C. Bishop's Sentence Bishop contends he was incorrectly sentenced on two grounds. First, he argues that he should have been given credit for time served in federal custody. Second, he contends that the Court improperly sentenced him based on United States Sentencing Guidelines ("U.S.S.G.") from the year 2001 rather than 2000. Both arguments are unavailing.

  1) Time spent in federal custody

  Bishop first argues that he should have been given credit for time spent in federal custody. In March of 1999 Bishop was paroled from state custody after serving time for state court convictions for assault in the second degree and escape in the second degree. After violating parole, Bishop was returned to state prison on or about October 1999.

  On September 13, 2000, Bishop was writted into federal custody from state prison in order to face trial for his federal charges. At the completion of the trial, Bishop was returned to Kentucky to attend a state parole board hearing, and then writted into federal custody again to be sentenced for his federal crimes. Bishop now argues that the approximately 31 months of time he served in federal custody between September 13, 2000 and June 11, 2002, the day he was sentenced by this Court, should have been credited against the 77 months of his federal sentence.

  This issue is governed by 18 U.S.C. § 3585(b). The statute provides that "[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences — (1) as a result of the offense for which sentence was imposed," but only if that detention time "has not been credited against another sentence." That latter requirement is fatal to Bishop's claim, since it is common ground that Bishop's pre-federal trial federal detention was credited against his Kentucky sentence for parole violation.

  As noted, Bishop was paroled from state custody in March 1999 and returned to state custody as a parole violator in December 1999. Prior to Bishop's sentencing by this Court, his counsel advised that "his Kentucky sentence continues to run while he is in federal custody." Checkman letter dated June 5, 2002 at 1. In that circumstance, counsel conceded, "Mr. Bishop would not be entitled to credit under 18 U.S.C. § 3585(b) for the time he was in federal custody prior to sentence." Id. The government took the same position, writing to the Court: "At the time he was writted into federal custody, on or about September 13, 2000, and at all times since, Mr. Bishop has been serving a state sentence." AUSA Failla letter dated June 7, 2002 at 2. At the sentencing hearing on June 11, 2002, I reverted to this subject:

THE COURT: I had asked counsel to address in letter briefs two questions. I, has Mr. Bishop been held in federal custody since September 13, 2000; if so, is he entitled to credit under 18 United States Code, Section 3585(b) for that time. It seems to me that both the government and the defendant agree that in the particular circumstances of this case, Mr. Bishop is not entitled to any credit under 3585(b). That's the government's position, is it not, Ms. Failla?
MS. FAILLA: It is, your Honor.
THE COURT: You agree with that, Mr. Checkman, in the circumstances of this case?
MR. CHECKMAN: I do, your Honor.
Tr. 20. Counsel's joint conclusion was clearly correct. The Second Circuit has made it plain that the phrase "credited against another sentence" as used in § 3585(b) includes state as well as federal sentences. See, e.g., Werber v. United States, 149 F.3d 172, 175 (2d Cir. 1998) (§ 3585(b) "precluded crediting that time to the federal sentence, because the California court had already credited most of Werber's pre-sentence federal detention against the California sentence.").

  2) Applicable Guidelines Bishop argues that the Court erred in sentencing him based on the 2001 sentencing guidelines, contending that the 2000 guidelines should have been used.*fn8 U.S.S.G. § 1B1.11 instructs Courts to use the Guidelines manual "in effect on the date that the defendant is sentenced" unless to do so would violate the ex post facto clause of the Constitution.

  In calculating Bishop's offense level, Bishop was given a base level of 20 and a four-level enhancement, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), and § 2K2.1(b)(1)(D) respectively.*fn9 Both sections of the Guidelines were identical in 2000 and 2001. This fact was made explicit by the Probation Office's Presentence Investigation Report ¶ 32 which noted that "[h]ad the guidelines in effect at the time the instant offense occurred been utilized, there would be no difference in the resulting guideline calculations." Therefore, Bishop's assertion that the enhancement level would be sufficiently lower under the 2000 Guidelines is meritless.

  Bishop also argues that regardless of which version of the Guidelines was used, it was erroneous to assign him a four-level enhancement, since the trial left it unclear exactly how many firearms were involved in his offense. To support his claim, Bishop notes that the government only introduced three or four firearms as evidence, with the remaining unaccounted for. He also notes that several firearms never left the borders of Kentucky.

  During trial, the government introduced exhibits documenting the purchase of all 17 guns. Hale also testified to the purchase of and Bishop's intention to sell the guns in question. Furthermore, that some of the guns may not have left Kentucky makes no difference, since they were still "involved" in the offense, as § 2K2.1(b)(1) demands. Bishop was assigned the proper level of enhancement.

  D. Sufficiency of Evidence

  Bishop argues that there was insufficient evidence to convict him on any of the three counts. "A defendant who challenges the sufficiency of the evidence supporting his conviction bears a heavy burden." United States v. Velasquez, 271 F.3d 364, 370 (2d Cir. 2001) (citations and internal quotation marks omitted). In order to succeed, he must "demonstrate that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. When evaluating whether the evidence was sufficient to convict a defendant, a court must "consider all of the evidence, both direct and circumstantial, in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government." Id. Furthermore, a court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence."

  As a general note, Bishop's contention that the evidence was insufficient to support the claim that he "engaged in the business of dealing guns," as required by 18 U.S.C. § 922(a)(1)(A), was an issue that Bishop raised and lost in a prior motion for judgment of acquittal pursuant to Fed.R. Crim. P. 29. See 2002 WL 413915 (S.D.N.Y. Mar. 15, 2002). Bishop failed to raise this argument again on appeal.

  1) The Transportation element of count 3

  Bishop first argues that I erroneously regarded — and misinstructed the jury to regard — the transportation element of Bishop's felon-in-possession count to be proven under a preponderance of evidence standard, rather than beyond a reasonable doubt. In doing so, Bishop contends that I mistakenly conflated the transportation element of the felon-in-possession count with venue, the latter of which government need only prove by a preponderance of evidence. See United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999).

  This is not the case. In my instructions to the jury I made clear that each element of the felon-in-possession count must be proven beyond a reasonable doubt.


In order to sustain its burden of proving the defendant guilty of Count 3, the government must prove each of the following three elements beyond a reasonable doubt. . . .
Second: That on or about the date charged in the indictment, the defendant knowingly shipped or transported or possessed the firearm. . . .
The second element that the government must prove beyond a reasonable doubt is that in or about August and September 1999, the dates set forth in the indictment, the defendant knowingly possessed or shipped or transported one or more firearms.
To "transport" means to transfer or to convey something from one place or person to another place or person. To "ship" means to cause something to be transported.
Tr. 759-761.

  In this case, I find that the government has introduced ample evidence to prove the transportation element beyond a reasonable doubt. Both Hale and Reeks testified to Bishop's travels. Also, the government also presented telephone and hotel records establishing Bishop's travel to New York with approximately 15 guns. 2) Counts 1 and 2

  Bishop argues that there was no direct evidence implicating him in any of the crimes. As I instructed the jury, the law is clear that circumstantial evidence "is of no less intrinsic worth than direct evidence and, indeed circumstantial evidence alone may support a guilty verdict." United states v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). Tr. 713-714. For reasons already stated both in this opinion and in my prior opinion resolving Bishop's Rule 29 motion, 2002 WL 413925, the evidence presented against Bishop is more than sufficient to sustain the charges against him beyond a reasonable doubt.

  E. Prosecutorial Misconduct

  Finally, Bishop submits that the government engaged in prosecutorial misconduct in two respects. First, that the government failed to disclose exculpatory evidence, and second, that the government vindictively decided to obtain a superseding indictment only after Bishop had withdrawn his guilty plea, in order to punish him.

  1) Disclosure of exculpatory evidence

  The government has a duty to disclose evidence favorable to the accused when it is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). The government's Brady obligations were laid out by the Second Circuit in In re United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001):

The prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. This duty covers not only exculpatory material, but also information that could be used to impeach a key government witness. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Brady does not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material "that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In the context of Brady, a defendant is deprived of a fair trial only where there is a reasonable probability that the government's suppression affected the outcome of the case, see id. at 682, 105 S.Ct. 3375, or where the suppressed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
With respect to when the prosecution must make a disclosure required by Brady, the law also appears to be settled. Brady material must be disclosed in time for its effective use at trial, see, e.g., Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001), or at a plea proceeding, see United States v. Persico, 164 F.3d 796, 804 (2d Cir. 1999); Tate v. Wood, 963 F.2d 20, 24 (2d Cir. 1992).
  On this aspect of the case, Bishop contends that the government learned from interviews conducted by its agents but failed to disclose that "the defendant was not identified as someone who was present at the time the firearms were purchased." Motion at 11. To the extent that Bishop's argument can be understood, there is no substance to it. Presumably Bishop is referring to interviews by ATF agents of the owners of the gun shops involved. But the government never contended that Bishop entered the gun shops and was present during the purchase of the guns. On the contrary: the government's theory of the case was that because of his criminal record Bishop remained outside the shops and left the actual purchases to a co-conspirator. Consequently, testimony by a gun shop owner that Bishop was not present "when the firearms were purchased" would not exculpate Bishop under Brady; nor would it impeach under Giglio the government's key witness, Hale, who testified that Bishop remained outside the gun shops for the reason stated. The government did not call any gun shop owners to testify, proving the purchases of the firearms through the testimony of Hale and the paperwork generated by the sales, and so no question arises under Giglio with respect to impeaching interview statements that may have been given by shop owners to ATF agents.

  2) Government vindictiveness Bishop was initially charged with one count of conspiracy to traffic in firearms without a license, a violation of 18 U.S.C. § 371, and two counts of trafficking in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A). Superseding Indictment S1 00 Cr. 312 (JSM/CSH) (the "S1 Indictment"). On April 27, 2001, Bishop pleaded guilty to Counts One and Two, a plea that was eventually accepted by Judge Martin by Order of May 4, 2001.

  Three days later, Bishop filed a pro se motion to withdraw his plea, which the government opposed. In a letter brief filed in opposition to the motion, dated May 18, 2001, the government requested "a brief period of adjournment before a new trial date is set in, in order to permit it to go before the Grand Jury and seek to obtain a superseding indictment," in the event that the Court permitted Bishop to withdraw his plea.

  This is exactly what happened. In time, Judge Martin allowed Bishop to withdraw his guilty plea, and also appointed him new counsel, at Bishop's request. The government then sought a superseding indictment before a Grand Jury, which it obtained on July 2, 2001. The superseding indictment, S2 00 Cr. 312 (JSM/CSH) (the "S2 Indictment") added the additional felon-in-possession crime, 18 U.S.C. § 922(g)(1), and added Don Saunders as a co-defendant. Following the superseding indictment, the government entered a new round of plea negotiations with Bishop's new counsel, Checkman, where the government reiterated its prior plea offer, which Bishop had initially entered and later withdrew. This time, Bishop rejected the offer outright.

  On October 16, 2001, Bishop filed a motion seeking dismissal of the S2 Indictment, claiming prosecutorial vindictiveness. Judge Martin rejected the motion, by Order of November 19, 2001, noting that the government had reinstated its prior plea offer to Bishop after obtaining the S2 Indictment. Bishop once again alleges prosecutorial vindictiveness in his instant motion. A presumption of vindictiveness "generally does not arise in the pretrial setting." United States v. Koh, 199 F.3d 632, 639-40 (2d Cir. 1999). Absent such presumption, the defendant must demonstrate actual vindictiveness by "prov[ing] objectively that the prosecutor's charging decision was a direct and unjustifiable penalty that resulted solely from the defendant's exercise of a protected legal right." United States v. Sanders, 211 F.3d 711, 766 (2d Cir. 2000) (internal citation and quotation omitted). Such a showing requires "direct evidence, such as a statement by the prosecutor evidencing the vindictive motive." Koh, 199 F.3d at 640 (internal citation and quotation omitted).

  Bishop presents no evidence of vindictiveness by the government in this case. He merely makes a conclusory assertion that the reason the government added the felon-in-possession count was to punish him. In point of fact, after adding the felon-in-possession count, the government reinstated its prior plea offer to Bishop. I agree with the conclusion' reached by Judge Martin and find that there is no merit to Bishop's allegations of prosecutorial misconduct.


  For the foregoing reasons, Bishop's motion under 28 U.S.C. § 2255 is denied in its entirety. The Court perceives no need for an evidentiary hearing or further submissions.


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