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United States District Court, S.D. New York

October 6, 2005.


The opinion of the court was delivered by: HAROLD BAER JR., District Judge


On October 6, 2003, pro se Petitioners Anthony and Christopher Griffith (the "Griffiths") moved to vacate their convictions and sentences pursuant to 28 U.S.C. § 2255. Each raises thirty-two separate claims, with Anthony Griffith raising one additional claim on his own.*fn1 They seek new trials, or alternatively, evidentiary hearings. For the reasons stated below, the petitions are both DENIED.


  Given the large number of claims raised, and that two prior opinions have stated the factual record in detail, this Court assumes knowledge of the general facts of this case. See United States v. Griffith, 284 F.3d 338 (2d Cir. 2002); United States v. Griffith, No. 99cr786, 2000 U.S. Dist. LEXIS 12655 (S.D.N.Y. Sept. 5, 2000).

  Briefly, the Griffiths, who are brothers, recruited several minor females for the purposes of prostitution and the production of at least one pornographic videotape, and on at least two occasions they transported a minor round-trip between New York and New Jersey for those purposes.

  On September 22, 2000, following a jury trial in this Court, the Griffiths were found guilty of conspiracy to violate and violation of (1) 18 U.S.C. §§ 2422 and 2423 (transportation of a minor in interstate commerce with the intent that she engage in prostitution), and (2) 18 U.S.C. § 2251(a) (use of a minor to engage in sexually explicit conduct for the purposes of producing a videotape). The Griffiths were originally found guilty on eight counts total involving two minors, "Ebony" and "Jody Ann." Following the trial, the government agreed to dismiss two of those counts as multiplicitous. This Court then granted the Griffiths' Motion for Judgment of Acquittal on two additional counts pursuant to Fed.R.Crim.P. 29(c) and 33. Griffith, 2000 U.S. Dist. LEXIS 12655 (S.D.N.Y. Sept. 5, 2000). Consequently, the Judgment of Conviction was entered on the four remaining counts that involved "Ebony" and not "Jody Ann."

  Anthony and Christopher Griffith were sentenced by this Court to 126 and 120 month terms of imprisonment, respectively. They appealed their convictions to the Second Circuit Court of Appeals on four separate grounds: (1) that Section 2251(a) is an unconstitutional exercise of Congress' Commerce Clause power and, in any event, there was insufficient evidence to support their convictions under that statute; (2) this Court incorrectly instructed the jury that Sections 2422 and 2423 do not require that the Griffiths know their victim was a minor; (3) this Court's erroneous jury instructions, coupled with the dismissal of the "Jody Ann" counts, prejudiced the jury against the Griffiths; and (4) the Griffiths claimed they were denied a fair trial because this Court restricted cross-examination of Ebony about her drug use, sexual history, and relationship with her father. Christopher Griffith petitioned and received permission to file his own pro se brief in connection with the appeal. In addition to repeating the arguments contained in his attorney's brief, the pro se brief argued that (1) the conspiracy count was duplicitous, (2) there was insufficient evidence to support conviction under Sections 2422(a) and 2423(a), and (3) all evidence obtained as a result of kidnapping charges that were later recanted should have been suppressed. On March 21, 2002, the Court of Appeals denied both of the brothers' appeals. See United States v. Griffith, 284 F.3d 338 (2d Cir. 2002).


  A. Standard of Review

  To prevail on a Section 2255 motion, the petitioner must demonstrate the


right to be released upon the ground that the sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255 (2005). As a collateral action, Section 2255 is not a substitute for direct appeal and claims raised on direct appeal are procedurally barred. United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 1998). Reconsideration is only appropriate where there is an intervening change in the law and the new law would have exonerated a defendant had it been in place before the conviction was affirmed on direct appeal. Id.

  Section 2255 claims that were not raised on direct review are also procedurally barred "unless they raise constitutional or jurisdictional claims, or result in a `complete miscarriage of justice.'" Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002) (quoting Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980). A petitioner who seeks to raise a claim in a Section 2255 motion that he did not raise on direct appeal must show "cause and prejudice" or a "fundamental miscarriage of justice" for his failure to do so. United States v. Frady, 456 U.S. 152, 165 (1982). To show "cause" the petitioner must demonstrate that he was prevented from filing a direct appeal. Coleman v. Thompson, 501 U.S. 722, 752 (1991) (cause is "something external to the petitioner" which "cannot be fairly attributed to him"). Similarly, "actual prejudice" requires that a petitioner "establish that the errors worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal marks and citations omitted).

  B. Claims Previously Considered and Rejected on Appeal

  Most of the Griffiths' thirty-three claims were previously raised and considered on appeal and are thus barred from consideration by this Court.

  1. Claims Explicitly Rejected by the Second Circuit

  Sixteen of the claims in the Griffiths' petition were previously raised and expressly decided by the Second Circuit and are therefore barred. Seven of those claims — numbers 4, 5, 6, 7, 8, 10, and 13 — challenge either the constitutionality of 18 U.S.C. § 2251(a) or whether the facts proven at trial satisfy the statute. Section 2251(a) prohibits any person to use or entice a minor to engage in sexual conduct for the purpose of producing a visual depiction if (1) that person knows or has reason to know that the visual depiction will be transported in interstate commerce, or (2) the visual depiction was produced using materials that had traveled in interstate commerce, or (3) the visual depiction itself had traveled interstate commerce. The Second Circuit addressed these issues and concluded that Section 2251(a) was constitutionally applied to the Griffiths and the evidence against them satisfied the elements of the statute. Griffith, 284 F.3d at 345-47.

  Eight more claims — numbers 1, 2, 3, 9, 11, 12, 14 and 23 — essentially allege, first, that 18 U.S.C. § 2423 and § 2251(a) require that the Griffiths knew Ebony was a minor and, second, that the Griffiths had no such knowledge.*fn2 But this issue was also decided by the Second Circuit when it concluded that neither statute imposed such a requirement, and that "the district court did not err in instructing the jury that the government was not required to prove under [either statute] that the Griffiths knew that Ebony was a minor." Griffith, 284 F.3d at 348-49, 351.

  Claim 22, alleges that because the jury's guilty verdicts on the Jody Ann counts were overturned by this Court, the same jury was incapable of rendering a proper guilty verdict on the Ebony counts. Again, the Second Circuit decided the issue, holding "[t]he Griffiths did not suffer any prejudicial spillover" between the counts, and noted the strength of the government's case on the Ebony counts independent of those involving Jody Ann. Griffith, 284 F.3d at 351.

  Accordingly, these sixteen claims are barred because they have already been expressly decided by the Second Circuit.

  2. Claims Implicitly Decided by the Second Circuit

  Seven of the Griffiths' claims — numbers 15, 20, 21, 25, 30, 31, and 32 — were previously raised in Christopher Griffith's pro se supplemental brief. Although the Second Circuit did not spell out its reasons for rejection of these additional claims, the Court did grant Griffith permission to file a supplemental pro se brief, to which the Government responded. As such, it is presumed that the Second Circuit considered each argument and this Court does not now have the right to permit the Defendants to relitigate them. See, e.g., Douglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993) (the fact that claims were presented to a judge and he dismissed the habeas petition entirely indicates that the claims were considered and rejected on the merits and as such were precluded from consideration in a second habeas petition); United States v. Jones, 918 F.2d 9, 10-11 (2d Cir. 1990) (rejecting the argument that appellate decision's failure to discuss explicitly an issue permitted prisoner to raise the issue again in habeas). In any event, these claims are without merit.

  In claim 15, the Griffiths contend that the conspiracy count of their convictions was impermissibly duplicitous because it alleged a conspiratorial agreement to commit four different crimes. Despite the fact that this is an issue that should have been raised before a verdict was reached, courts have held that an indictment is not duplicitous merely because it alleges a conspiracy to commit multiple crimes. United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992) (quoting United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980).

  Claims 20 and 21 challenge the sufficiency of the evidence as to the interstate commerce elements of their Mann Act convictions, 18 U.S.C. § 2422, and § 2423. In addition to the Second Circuit, this Court has already dealt with this issue in the Griffiths' post trial motion to set aside the verdict or order a new trial pursuant to Fed.R.Crim.P. 29 and 33. This Court held that "the evidence in this case is more than sufficient to support a finding by the jury that the defendants, by virtue of their travel on interstate highways, took full advantage of the channels of interstate commerce to further their unsavory business endeavors." Griffith, 2000 U.S. Dist. LEXIS 12655 (S.D.N.Y. Sept. 5, 2000).

  Claim 25 argues that the convictions under Sections 2422(a) and 2423(a) must be vacated because the Griffiths were engaging in "private adult prostitution protected by the First Amendment and privacy rights under the U.S. Constitution and U.S. Supreme Court law." (Pet. at 34.) Setting aside the issue as to whether a constitutional right exists with regard to adults, clearly there is no such right when it comes to minors, as was the case here. See New York v. Ferber, 458 U.S. 747 (1982).

  Claims 30, 31, and 32 argue that there was no probable cause to arrest the Griffiths and that their statements and seized property should have been suppressed as "fruit of the poisonous tree." Unfortunately, the evidence at trial proved that the arresting detective had reason to believe that the Griffiths had participated in abducting Jody Ann, held her against her will, and attempted to force her to engage in prostitution. This belief was corroborated by other evidence and testimony. While it is true that Jody Ann admitted that the Griffiths had not actually kidnapped her by force, all that matters to establish probable cause was that it was reasonable for the detective to believe her at the time she made the statements. Bernard v. United States, 25 F3d 98, 102 (2d Cir. 1994) ("probable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on the information).

  B. Claims Not Raised on Appeal

  Aside from claim numbers 26 and 27, which allege ineffective assistance of counsel, the balance of the claims are waived because they were not raised on direct appeal and the Griffiths have not shown either (1) cause for their failure to raise the claim and prejudice that resulted, or (2) the claim would result in a miscarriage of justice if barred from consideration. Frady, 456 U.S. at 167 (citing Davis v. United States, 411 U.S. 233 (1973)). As such, claims numbered 16, 17, 18, 19, 24, 28, 29, and 33 must be rejected.

  To show "cause," the Griffiths must demonstrate that "some objective factor external to the defense impeded" petitioner's efforts to raise the claim on appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986). Rather than discuss why they were prevented from raising these claims, the Griffiths discuss the merits. Likewise, the Griffiths do not attempt to show any fundamental miscarriage of justice which would permit "a federal habeas court [to] grant the writ [of habeas corpus] even in the absence of a showing of cause for the procedural default." Doe v. Menefee, 391 F.3d 147, 160 (2d Cir. 2004) (quoting Murray, 477 U.S. at 496) (internal marks omitted). This exists only "[i]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id.; see also Underwood v. United States, 166 F.3d 84, 88 (2d Cir. 1999) ("[in] collateral-review jurisprudence, the term `miscarriage of justice' means that the Defendant is actually innocent") (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (internal marks omitted). To prove their actual innocence the Griffiths must present "new reliable evidence . . . that was not presented at trial." Schlup v. Deleo, 513 U.S. 298, 324 (1995). The Griffiths fail to argue actual innocence or offer any new evidence towards that end, but rather seek to re-argue issues that have been disposed of at least twice in the course of these proceedings.

  Notwithstanding that they are procedurally barred, these claims also fail on the merits.

  The Griffiths' claim number 19 states that it was improper for this Court to charge the jury that the voluntary participation of a female being transported across state lines is no defense to the Mann Act charges. In fact this is the law. United States v. Lowe, 145 F.3d 45, 52 (1st Cir. 1998).

  Claim 29 states that the Government's failure to disclose that Jody Ann had previously lied to the police deprived them of a fair trial. As this Court held in the Griffiths' Rule 33 motion, "the Government provided defendants, in advance of trial, with notice of impeachment material relevant to the credibility of Jody Ann. Counsel for each of the Griffiths cross-examined her at length about the inconsistencies in the story she told state prosecutors and the New York City Police Department." (Tr. 237-248, 257-274.) Griffith, 2000 U.S. Dist. LEXIS 12655 at *14.

  Claim numbers 16, 24, 28, and 33 raise numerous objections to the Griffiths' sentences. Claims 16, 24 and 28 argue that the sentences imposed were erroneous. Both sentences were within the applicable ranges pursuant to the United States Sentencing Guidelines and were otherwise appropriate. Claim 33 states that a sentencing enhancement for obstruction of justice should not have been applied for lying to this Court because it was understandable that he confused the difference between the ages 17 and 18. But this argument is belied by the proof at trial. Indeed Ebony testified that she told Anthony Griffith that she was 17. (Tr. at 88.) There were also written and videotaped statements of Anthony Griffith that stated he had been told and believed that Ebony was 17 years old. (Tr. at 379-80.) In light of this evidence in the record that Anthony Griffith lied to this Court about his belief that Ebony was 18 years old, the Court was justified in its 2 point enhancement for obstruction of justice (U.S.S.G. § 3C1.1).

  C. Ineffective Assistance of Counsel

  Both claims 26 and 27 must fail because neither establishes that (1) their counsel's conduct fell below an objective standard of reasonableness, and (2) the outcome of the case would have been different had counsel not committed the alleged errors. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong of the Strickland test, this Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). Petitioners must also "affirmatively prove prejudice." Strickland, 466 U.S. at 693.

  In claim 26, the Griffiths argue their pre-trial lawyers misrepresented the likely penalties had they plead guilty. An "objective standard of reasonableness" requires "that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution," Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999). Here, the prosecution offered two plea deals; one involved a range of 63-78 months and the other 78-97 months. The Griffiths, however, rejected both and believed they deserved more favorable offers of 33 and 46 months imprisonment. It is counsels' failure to procure such an offer that spawned the ineffective assistance claim. But since this offer was never made by the Government the fact that the Griffiths believe they were entitled to such a bargain does not indicate that their counsel misrepresented the offer that was in fact made. The Griffiths' own exhibit shows numerous letters were sent by counsel accurately informing them of the sentences proposed by the actual offers. (Pet. Ex. C.) Moreover, in his reply to the government's opposition to this petition, Anthony Griffith admits that the terms of the plea offer were the same as those represented in counsel's letters. (Pet. Reply at 11.) In claim 27, the Griffiths contend their trial counsel "was ineffective for failing to object to Special Agent Michael Andrew's presence [in the courtroom] during the entire trial proceeding." (Pet. at 38.) But objective standards of effective assistance do not require counsel to make such an objection. The Second Circuit has held that "it is within a trial court's discretion to exempt the government's chief investigative agent from sequestration, and it is well settled that such an exemption is proper under [Federal Rules of Evidence] Rule 615(2), deeming the agent-witness a `representative' of the government." United States v. Rivera, 971 F.2d 876, 889 (2d Cir. 1992); see also United States v. Jackson, 60 F.3d 128, 137 (2d Cir. 1995) ("[T]he exclusion of a single agent from sequestration does not generally constitute error under Rule 615.") In light of such well-settled precedent it is reasonable for the Griffiths' counsel not to have objected to the agent's presence in the courtroom. As such, the Griffiths' ineffective assistance of counsel claims must fail.


  For the aforementioned reasons, the Section 2255 motions are DENIED. The Clerk of the Court is ORDERED to close these motions and remove the case from my docket.



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