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Pierre v. United States

August 22, 2008

EVENSLEY JEAN PIERRE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM & ORDER

On November 19, 2003, a jury found Petitioner Evensley Jean Pierre ("Petitioner") guilty of conspiracy with intent to distribute cocaine and attempted possession of cocaine with intent to distribute. (03-CR-445, Docket Entry # 35; see 03-CR-445, Docket Entry # 10 ("Indictment") at 2-3.) The evidence at trial established that Petitioner made an agreement to smuggle from Haiti into the United States 2,553 grams of cocaine. The evidence at trial also established that Petitioner attempted to take possession of the cocaine from Jean Menelas ("Menelas"), a drug courier who flew from Haiti to John F. Kennedy Airport ("JFK") in Queens, New York.

On February 11, 2005, the court sentenced Petitioner to 97 months of imprisonment followed by four years of supervised release. (Government's Response in Opposition ("Gov't Resp.") (Docket Entry # 12) at 2.) On December 29, 2005, the Second Circuit affirmed Petitioner's conviction. United States v. Evensley Jean Pierre, 161 Fed. Appx. 121 (2d Cir. Dec. 29, 2005).

Petitioner now brings this motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 pro se , seeking to vacate his sentence on the ground of ineffective assistance of trial counsel. For the reasons set forth below, Petitioner's motion is denied.

I. FACTUAL AND PROCEDURAL HISTORY

A. Indictment and Pre-Trial Negotiations

On March 18, 2003, Immigration and Customs Enforcement ("ICE") agents arrested Petitioner and Menelas at JFK. (Trial Tr. ("Tr.") at 79.) On March 19, 2003, Petitioner was arraigned in the Eastern District of New York. (03-CR-445, Docket Entry # 2.) The court appointed attorney Paul J. McAllister ("McAllister") as Petitioner's counsel. (03-CR-445, Docket Entry # 6; see Gov't. Resp. Exh. A, Decl. Of Paul J. McAllister ("McAllister Decl.") at 1.) On April 16, 2003, a grand jury indicted Petitioner for, inter alia, conspiracy to possess 500 or more grams of cocaine with intent to distribute and attempting to possess 500 or more grams of cocaine with intent to distribute, both in violation of 21 U.S.C. § 846. (Indictment at 2-3.)

On or about May 2, 2003, the United States ("Respondent") provided McAllister with a plea offer for Petitioner. (Gov't. Resp. Exh. C, Plea Offer to Jean Pierre Evensley ("Plea Offer") at 1.) In the Plea Offer, Respondent estimated that if Petitioner pled guilty to the conspiracy and attempt charges, his sentencing range, according to the United States Sentencing Guidelines, would be 60 to 71 months. (Id. at 2.) The Plea Offer specifically explained, in bold-faced type, that 21 U.S.C. 841(b)(1) imposed a statutory minimum sentence of 60 months. (Id.) McAllister asserts in his declaration that he counseled Petitioner to plead guilty. (McAllister Decl. at 1-2.)

In September, 2003, Petitioner retained attorney Scott Brettschneider ("Brettschneider") as new counsel, and the court relieved McAllister.*fn1 (Motion for a Writ of Habeas Corpus ("Habeas Motion") (Docket Entry # 1) at 3; 03-CR-445, Docket Entry # 25 ("Sept. 2003 Conf. Tr.") at 2.) Brettschneider requested a month to familiarize himself with the case and speak with Petitioner about a plea agreement. (Sept. 2003 Conf. Tr. at 3.) At a status conference in October, 2003, the court scheduled a trial for November 17, 2003. (03-CR-445, Docket Entry # 27 at 4.)

B. Petitioner's Trial

During the trial, Respondent introduced the testimony of three fact witnesses: Customs and Border Protection Inspector Frank Russo ("Inspector Russo"), ICE Agent Michael Giovanoni ("Agent Giovanoni"), and ICE Agent Kevin O'Malley ("Agent O'Malley"). (Tr. at 39, 58, 130.) Respondent also introduced, inter alia, expert testimony from ICE Agent Timothy Flood ("Flood"), tape recordings of two conversations between Petitioner and Menelas, several documents that were seized from Petitioner, and Petitioner's travel records. (Id. at 87, 91-96, 101-02, 196.) Petitioner was represented at trial by Brettschneider, John Scarpa ("Scarpa"), and their associate John Russo ("Attorney Russo"). (Id. at 2; 03-CR-445, Docket Entry # 32.) Brettschneider and Attorney Russo were present during the entire trial. (Tr. at 1, 152, 340.) Attorney Russo made the opening statement and cross-examined two witnesses. (Id. at 31, 158, 201-02, 211.) Brettschneider cross-examined two witnesses and delivered the closing argument. (Id. at 53, 103, 375.) Scarpa was not present during jury selection or the Respondent's case, but he presented the defense case. (Id. at 231.)

1. Respondent's Case

Inspector Russo testified that Menelas arrived at the American Airlines terminal at JFK on March 18, 2003. (Id. at 41.) Inspector Russo escorted Menelas to a baggage search area and discovered cocaine hidden in a secret compartment of Menelas's luggage. (Id. at 45-48.) Upon finding cocaine, Inspector Russo arrested Menelas and turned him over to ICE Agents Giovanoni and O'Malley. (Id. at 48-49.)

Agents Giovanoni and O'Malley testified that when they arrived at the American Airlines terminal, Menelas was wearing a cream, black, and brown sweater. (Id. at 62, 134.) The agents interviewed Menelas for ten to fifteen minutes and learned that Menelas had expected to meet a man with dredlocked hair at JFK. (Id. at 62, 65, 134.) The agents decided to conduct a controlled delivery and persuaded Menelas to cooperate with them. (See id. at 63, 134.) Agent O'Malley wired Menelas up with a hidden tape recording device. (Id. at 135.) Thus equipped, Menelas left the baggage claim area and walked into the passenger lobby. (Id. at 66-67.) A short time later, Petitioner and another man, later determined to be Antoine Rudden ("Antoine"), arrived in the passenger lobby. (Id. at 67, 136.) Petitioner walked up to Menelas and spoke with him briefly. (Id. at 70, 137.) Menelas then walked out of the airport terminal. (Id. at 76, 137.) Soon thereafter, Petitioner and Antoine followed Menelas outside. (Id. at 77.) Petitioner approached Menelas, spoke to him, and handed him money. (Id. at 77, 140.)

Respondent used Agent Giovanoni to introduce into evidence recordings of the two conversations between Petitioner and Menelas. (Id. at 57.) Respondent also played the tapes for the jury and handed out translations of the conversations. (Id. at 75, 78.) In the first recording, Petitioner asked Menelas if he was "FanFan." (Gov't. Resp. Exh. H, Tr. of Recordings ("Recordings Tr.") at 1.) Menelas replied, "yes, FanFan." (Id.) Petitioner then told Menelas to go outside to the taxi stand. (Id.) In the second recording, Petitioner instructed Menelas to take a taxi to 223 Linden Boulevard. (Id. at 2.) Petitioner told Menelas to wait there until Petitioner arrived. (Id.)

After Petitioner's second conversation with Menelas, Petitioner and Antoine walked towards the terminal's parking lot. (Tr. at 79, 141.) As they were walking, Agents Giovanoni and O'Malley arrested them. (Id.) Agents Giovanoni and O'Malley testified that they interviewed Petitioner and Antoine for approximately ten to fifteen minutes at the American Airlines terminal in JFK. (Tr. at 80, 141-42.) The agents then drove Petitioner and Antoine to the ICE office in Terminal Four of JFK. (Id. at 81, 141.)

At the ICE office, Agents Giovanoni and O'Malley interviewed Petitioner for much of the night. (Id. at 82, 142.) Petitioner told the agents that he went to JFK at the request of his "cousin LouLou" to pick up a friend. (Id. at 84, 154.) During the course of the night, however, Petitioner gave four different names for the friend: Freddie, Eddie, Randy, and Gaudy. (Id. at 84-85, 154.) According to Agent Giovanoni, Petitioner said that he approached Menelas because he wanted to know "if there was anyone else still inside," and that Menelas "asked him if he was going to Brooklyn." (Id. at 85.) Petitioner then said that he told Menelas he was going to Long Island, not Brooklyn, and gave Menelas $20 for a taxi to Brooklyn. (Id.) When Agent Giovanoni asked why Petitioner "would give a stranger $20," Petitioner responded that it was "something Haitian people do for each other." (Id. at 85-86.) Agent O'Malley testified that Petitioner "denied ever giving an address to [Menelas]." (Id. at 155.)

During the agents' testimony, Respondent introduced into evidence an envelope and a scrap of paper found in Petitioner's pocket when he was arrested. (Id. at 88, 92, see also Gov't. Resp. Exh. I, Copy of Envelope ("Envelope").) Agent Giovanoni testified that someone had written on the Envelope, in Creole, the words "cream," "sweater," "black," and "brown" as well as the phrases, "FanFan his name," "David my name," and "$2 kids." (Tr. at 90-91.) According to Agent O'Malley, Petitioner stated that he did not use David as a name or a nickname. (Id. at 157.) Agent Giovanoni also read off the scrap of paper the words "LouLou," "$20,000," and "$4." (Id. at 92-93.) Petitioner explained to the agents that the word "LouLou" referred to his cousin in Haiti. (Id. at 157.) Petitioner did not, however, "have an explanation for the dollar amounts." (Id.) Respondent also introduced into evidence Petitioner's travel records, which showed that he had traveled from Haiti to JFK eight days before his arrest. (Id. at 99-101.)

Respondent last called Agent Flood to testify about the analysis of the cocaine found in Menelas's luggage. (Id. at 196, 207.) The cocaine weighed 2,553 grams net and was 79% pure. (Id. at 207.)

2. Petitioner's Case

The defense first attempted to call Petitioner's wife, Pascale Jean Pierre ("Pascale") as a fact witness. (Id. at 225.) Because she had been sitting in the courtroom during Respondent's case, however, Respondent objected to her testimony. (Id. at 226.) Brettschneider and Attorney Russo argued that they only intended to call Pascale to testify that she went to Haiti with Petitioner in March, 2003, for the purpose of demonstrating that Petitioner's trip to Haiti was not part of the alleged conspiracy. (Id. at 227.) The court agreed to allow Pascale's testimony subject to the restriction that she not discuss the transaction between Petitioner and Menelas. (Id.) According to Pascale, she and Petitioner went to Haiti in February and March of 2003 for Carnival. (Id. at 235-36.) When she was in Haiti, LouLou lent her his car "so that [she] could get around." (Id. at 260.)

Scarpa then sought to elicit testimony from Pascale on her conversation with Petitioner the day he was arrested. Respondent objected to Scarpa's questions. (Id. at 242.) Scarpa argued to the court that he was trying to buttress the defense's argument that Pascale's cousin LouLou asked Petitioner to pick a friend up from the airport, and that Petitioner did not know that LouLou's friend was a drug smuggler. (Id. at 255-57.) The court rejected Scarpa's argument and instructed him to stop his line of questioning. (Id. at 258.)

After Pascale's testimony, Scarpa requested a fifteen-minute recess to discuss with Petitioner whether he would testify. (Id. at 268.) Once the recess ended, Scarpa called Petitioner as a witness. (Id. at 269-70.)

Petitioner testified that on the morning of March 18, 2003, Pascale asked him to pick up someone named FanFan from the airport. (Id. at 283.) Petitioner's understanding was that Pascale relayed the request from her cousin LouLou. (Id.) Petitioner remembered meeting LouLou several weeks earlier in Haiti. (Id. at 276). Petitioner testified that LouLou initially thought his name was David and so he was supposed to identify himself to "FanFan" as David.*fn2

(Id. at 283.) Petitioner agreed to pick FanFan up as a favor to LouLou. (Id. at 285.)

Later in the day, LouLou called Petitioner and called him by his proper name, not David. (Id. at 284.) This left Petitioner feeling puzzled. (Id.) Petitioner became increasingly worried when, on the way to the airport, he received a phone call from his cousin NerNer. (Id. at 287.) NerNer told Petitioner that he should not pick up "FanFan" because "LouLou is bad." (Id.) Petitioner resolved that he did not want to get involved and so he would send FanFan on his way without picking him up. (Id. at 288.)

When Petitioner arrived at the airport, he walked up to Menelas and asked him if his name was "FanFan." (Id. at 289.) When Menelas said yes, Petitioner responded that his name was "David" and told Menelas to go outside. (Id.) Petitioner testified that he wanted to send Menelas to a location with a lot of Haitians, so he told him to take a cab to 223 Linden Boulevard, an area with "a lot of Haitian restaurants." (Id. at 290.) Petitioner denied that he was ...


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