The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
Petitioner, Sam Parsons ("Parsons"), represented by counsel,
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his conviction in New York State
Supreme Court (Monroe County) on April 21, 1998. The parties have
consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
Parsons was indicted by a Monroe County Grand Jury on one count
of criminal sale of a controlled substance in the first degree;
one count of criminal possession of a controlled substance in the
first degree; one count of criminal possession of a controlled
substance in the third degree; and one count conspiracy in the
second degree. The issue presented by the instant habeas petition
is whether the trial court's charge regarding the element of
"knowing possession" created a mandatory presumption, thereby
unconstitutionally shifting the burden of persuasion from the
state to the defendant on that element of the crime of criminal
possession of a controlled substance. At Parsons's trial, one of
the key issues for resolution by the jury was whether petitioner "knowingly possessed" the seized cocaine.
Trial counsel defended on the theory that Parsons, a person of
limited intelligence, essentially was acting as the drug dealer's
"mule" and was not aware of the contents of the package later
discovered to contain cocaine.
A. Transcripts of Wire-tapped Phone Calls
For about eight months, the Rochester Police Department
conducted telephone and visual surveillance on suspected drug
dealer Robert Gray ("Gray") and his associate Steven "Shorty"
Maldonado ("Shorty"). On December 5, 1996, the police obtained
information from a wiretapped conversation between Gray and
Shorty and that a drug transaction was scheduled to occur the
following day. On December 6, 1996, at 9:04 a.m., Gray called
Shorty and said that he was going to "send Sam in a couple of
minutes." Gray asked Shorty to "open up" one of his "girls"
(bricks of cocaine) and "make" him "two two dollars and fifty
cents and ah [sic] half a dollar" (divide up the cocaine into
smaller parcels). Gray said that he was "gonna send [his] boy"
over to Shorty's residence at 434 First Street. Gray told Shorty
that he would bring "the change" with him and asked Shorty to
page him "so [he] can tell [his] man to meet [him] right quick."
Gray called Shorty again at 10:34 a.m. Shorty informed Gray
that he was waiting for Gray at "4-3-4" (i.e., 434 First
Street). Gray indicated that he was "waiting on" Sam because Sam
had his car and had to give him a ride. Gray told Shorty that
they would be there "in a minute."
At 10:41 a.m., Gray called Shorty again. The following exchange
Robert Gray ("RG"): Sam, coming right now.
Shorty Maldonado ("SH"): Yeah, he just got here.
RG: Okay, I'm on my way so what I'm doing, fitting
[sic] to meet the dude [the buyer, Calvin Jessie]
at that number and send him, send down to ride back
with Sam soon as he come [sic]. SH: What you [sic] gonna do?
RG: Send the money right back with Sam.
SH: And, eh, what Sam, Sam came to get what?
SH: All of this.
RG: And then I'm ma [sic] send the, the what I owe
you I'm ma [sic] send that with him right now.
. . .
RG: So, how many you giving Sam right now?
SH: Uh, the cracked [i.e., the kilo of cocaine Gray
had asked him to open up] and two [intact kilos].
. . .
SH: You gonna come though?
RG: Yeah, I'm coming, I was waiting on this guy, I'm
waiting on him now, after waiting on Sam.
There was a phone call between Gray and Jessie (no time given
in the police log) on December 6 in which Gray told Jessie, "As
soon I [sic] page you just come right over there on . . . B
[i.e., Bernard] Street, you know how I used to do that with my
lawyer . . . Sambo." Gray called Jessie again (no time given) and
said, "I'm on Bernard." The transcripts of the foregoing calls
were part of the prosecution's discovery, and were included as
part of the papers in respondent's appendix of exhibits submitted
in connection with the habeas petition. Apparently, however,
there was another phone call at about 9:00 a.m. on December 6
between Gray and Parsons, the transcript of which was introduced
at trial. In that phone call, Gray directed Parsons to take his
car for an oil change that morning. The prosecution conceded that
Parsons's name was not mentioned in any of the overt "drug talk"
recorded in the phone conversations.
1. Calvin Jessie: The Buyer Jessie testified that on December 5, he arranged with Gray to
purchase some cocaine on December 6. On the morning of December
6, Jessie went to Bernard Street, parked in front of a blue
house, and got into a car with Gray and Parsons. Parsons was on
the driver's side. Jessie told Gray that he "wanted the coke,"
and Gray told Sam to go into the back and pick it up. Parsons
went around the back of the house and returned with a brown bag.
Jessie looked inside and saw a half kilo of cocaine. Jessie said
that he wanted the whole kilo instead. Gray then sent Parsons
back to get the whole kilo. Parsons returned to the garage and
brought back another bag. Satisfied, Jessie handed Parsons
$15,000 in cash. Tr. at 256-63.
Jessie went over to Bernard Street right after Gray called him
at about 10:40 a.m. to come pick up the cocaine. Tr. at 277, 300.
It would have taken him about fifteen or twenty minutes to get
from his house on Elmdorf Avenue to Bernard Street, and he left
right after the phone call. Therefore, Jessie would have arrived
at Bernard Street at about 11 a.m.
According to Jessie, the cocaine was "in a bag bundled up in a
bag" Tr. at 298. It was wrapped up in tape and plastic, with the
tape covering all of the cocaine so that it was not visible.
Id. at 308. Jessie testified that he routinely engaged in drug
transactions with Gray and that he picked up cocaine from Parsons
on "numerous" occasions. Id. at 322. Jessie received five years
to life in return for his testimony, saving twenty years off his
2. Juan Zuluaga: The Supplier
Zuluaga, Gray's supplier of cocaine from Queens, testified that
he transported a shipment to Rochester on December 5 and brought
it to Shorty Maldonado's residence at 434 First Street at about 5
or 6 p.m. Zuluaga saw Gray, accompanied by Parsons, at First
Street on December 6 at about 9 or 10 a.m. (Note: This was
somewhat inconsistent with the wiretapped telephone conversations which placed Parsons at 434 First Street at 10:41
a.m., unaccompanied by Gray.) According to Zuluaga, Gray took two
kilos of cocaine that day, but he did not pay for the cocaine at
the time. Gray and Parsons returned between 3 p.m. and 5 p.m.,
and Parsons had $39,000 in cash with him. Zuluaga testified that
Parsons always was with Gray during the cocaine transactions. Tr.
at 367-72. Like Jessie, Zuluaga benefitted from his cooperation
with the prosecution and shaved thirteen years off his minimum
3. Ussia and Celorio: The Undercover Officers
Starting at 9:23 a.m., Ussia surveilled Shorty Maldonado's
residence at 434 First Street on December 6. He saw Zuluaga's car
(a blue Chevy Monte Carlo) and a light blue van. At about 10:43
a.m., a maroon Buick (Gray's car) pulled up into the driveway of
434 First Street. Parsons got out of the maroon Buick, looked up
and down the street a couple of times, and walked back up the
driveway toward the side door. At 10:55 a.m., Parsons got back
into the maroon Buick. Ussia did not see if Parsons had anything
in his hands. There was no one else in the car at that time. Tr.
At about 11 a.m. on December 6, Celorio observed the maroon
Buick at the intersection of Hollister Street and Clifford
Avenue. He saw a male black operating the vehicle, but he did not
see anyone else in the car. Celorio followed it to 309 Bernard
Street where the car pulled partway into the driveway. The same
male driver was inside the vehicle and Gray was standing at the
rear of the vehicle. Celorio did not know where Gray came from.
Tr. at 433. Celorio was driving by 309 Bernard Street when he saw
Gray outside the maroon Buick. Celorio did not observe the maroon
Buick any further and left the area apparently, an
"investigative decision" was made to terminate surveillance at
that point so that the undercover officers would not "get made." Tr. at 444. (Presumably, this was the drug sale between
Gray and Jessie, as scheduled in the two phone calls between Gray
and Jessie. The police did not actually observe the drug deal
itself, because they terminated surveillance too early.)
At 11:14 a.m., Ussia observed the maroon Buick southbound on
Portland Avenue. Ussia spun around, began trailing it, and
followed it to 434 First Street, where it pulled into the
driveway. This time, Gray was driving and Parsons was in the
passenger seat. The blue Monte Carlo and light blue van still
were parked outside 434 First Street. At 11:21 a.m., the Buick
backed out of the driveway. Ussia followed it to 15 Strathallan
Park, one of the properties owned by Gray. At that point Gray
exited the vehicle and entered the residence at 15 Strathallan
Park. After a few minutes, Gray returned to the vehicle, made a
U-turn and left. Ussia ceased surveillance at that time.
Petitioner's 37-year-old brother, Douglas, testified for the
defense that he lived at 309 Bernard Street in the upstairs
apartment with his wife and son. Douglas testified that his
brother did not reside at 309 Bernard Street, but rather lived at
353 Bernard Street with his girlfriend and daughter. Douglas said
that his brother used to come visit his parents at 309 Bernard
Street a couple of times a week. Douglas stated that although his
brother finished high school, he was of marginal intelligence and
only received a "special ed" diploma. Douglas testified that
Parsons was "kind of like a slow learner" and had "problems . . .
reading." Tr. at 573. The defense theory was that, in light of
his low intelligence, Parsons could not form the intent required
to commit the crimes with which he was charged. Parsons's brother