United States District Court, S.D. New York
October 6, 2005.
ANTHONY GRIFFITH, Petitioner,
UNITED STATES OF AMERICA, Respondent. CHRISTOPHER GRIFFITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: HAROLD BAER JR., District Judge
OPINION & ORDER
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
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
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
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.
IT IS SO ORDERED.
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