United States District Court, S.D. New York
November 8, 2004.
CHRISTOPHER BISHOP, Defendant-Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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
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.
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
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
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.
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.
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
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
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
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
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
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
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.
It is SO ORDERED.