UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 28, 2011
XAVIER WILLIAMS, MICHAEL WILLIAMS, ELIJAH BOBBY WILLIAMS PETITIONERS,
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
(Xavier Williams) (Michael Williams) (Elijah Bobby Williams)
MEMORANDUM AND ORDER
Xavier Williams ("Xavier"), Elijah Bobby Williams ("Bobby"), and Michael Williams ("Michael") (collectively "petitioners") all move to vacate, set aside, or correct their respective sentences pursuant to 28 U.S.C. § 2255. Each of the petitioners sets forth numerous claims of ineffective assistance by his respective counsel at trial and at sentencing. For the reasons that follow, all three petitions are denied.
All three petitioners were charged with operating a violent criminal organization that enriched its members by trafficking in cocaine and cocaine base in New York and Pennsylvania. Initially, and indeed until shortly before the trial of Bobby and Michael, the government sought the death penalty against all three defendants for their roles in a February 1996 triple homicide in Pennsylvania. After Xavier's counsel persuaded the government not to seek the death penalty against him, the cases were severed. Bobby and Michael were thus tried separately from Xavier on a superseding indictment that charged fifteen counts:
Ԝracketeering, in violation of 18 U.S.C. § 1962(c) (Count One); racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four)*fn2 ; murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 2, 1959(a)(1) (Counts Five through Seven); conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Eight); murder while engaged in a narcotics conspiracy, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 848(e)(1)(A) (Counts Nine through Eleven); use of a firearm during and in relation to a drug trafficking crime or crime of violence (specifically, murder), in violation of 18 U.S.C. §§ 2, 924(j) (Counts Twelve through Fourteen); and conspiracy to launder money derived from narcotics trafficking, in violation of 18 U.S.C. § 1956(h) (Count Fifteen).
Because all three petitioners were initially indicted for death-eligible offenses, each was appointed two counsel, including one "learned in the law of capital cases." 18 U.S.C. § 3005.
On May 6, 2005, after a six-week trial, a jury returned separate verdicts for Bobby and Michael, finding Bobby guilty on all counts except Counts Three and Four, and Michael guilty on all counts except Count Four. The jury determined that neither Bobby nor Michael should receive the death penalty, and each was subsequently sentenced to life imprisonment on August 17, 2005.
After the conclusion of Bobby and Michael's trial, Xavier was tried separately on a superseding indictment charging fourteen counts that mirrored Bobby's and Michael's indictment through Count Thirteen, omitted one of the firearm counts, and charged the money laundering count as Count Fourteen instead of Count Fifteen. On July 6, 2005, after the close of the government's case at trial, this Court dismissed Counts Five, Six, Seven, Nine, Ten, Eleven, and Twelve upon the government's motion. As a result, Xavier ultimately faced seven counts in a redacted Superseding Indictment, which charged: racketeering, in violation of 18 U.S.C. § 1962(c) (Count One); racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four); conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Five); use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Six); and conspiracy to launder money derived from narcotics trafficking, in violation of 18 U.S.C. § 1956(h) (Count Seven). On July 8, 2005, after a three-week trial, the jury found Xavier guilty on all remaining counts except Count Four. He was sentenced to life imprisonment on October 11, 2005.
On October 23, 2007 the Second Circuit affirmed Xavier's, Michael's and Bobby's convictions and sentences. United States v. Williams, No. 05-6036-cr, 2007 WL 3105760 (2d Cir. Oct. 23, 2007)(summary order); United States v. Williams, 506 F.3d 151 (2d Cir. 2007). Xavier and Bobby filed petitions for a writ of certiorari with the United States Supreme Court in January 2008. Both petitions were denied on February 19, 2008. Williams v. United States, 552 U.S. 1223 (2008)(Xavier); Williams v. United States, 552 U.S. 1224 (2008)(Bobby). Michael filed a petition for writ of certiorari to the Supreme Court in February 2008. His petition was denied on March 24, 2008. Williams v. United States, 552 U.S. 1290 (2008).
I.Standard of Review
A claim of ineffective assistance of counsel is analyzed under the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a "defendant claiming ineffective assistance must (1) demonstrate that his counsel's performance 'fell below an objective standard of reasonableness' in light of 'prevailing professional norms,' and
(2) 'affirmatively prove prejudice' arising from counsel's allegedly deficient representation." United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 688, 693). "[T]he burden rests on the accused to demonstrate a constitutional violation." United States v. Cronic, 466 U.S. 648, 658 (1984).
To satisfy the "performance" prong, "the record must demonstrate that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687) (internal quotation marks omitted). In carrying out this inquiry, "[j]udicial scrutiny of counsel's performance must be highly deferential" and the court should make every effort "to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Indeed, the court should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009) (quoting Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001)) (internal quotation marks omitted). Counsel's omissions fall outside this range of reasonableness only if they "cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness." Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010); Mazzuca, 570 F.3d at 502; Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001).
In considering an ineffective assistance of counsel claim, the district court has discretion to determine whether an evidentiary hearing is required. 28 U.S.C. § 2255; Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003). The Second Circuit has stated that:
To warrant a hearing on an ineffective assistance of counsel claim, the defendant need establish only that he has a "plausible" claim of ineffective assistance of counsel, not that "he will necessarily succeed on the claim." Armienti v. United States, 234 F.3d 820, 823 (2d Cir. 2000). (quoting United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993)). Rule 4(b) of the Rules Governing § 2255 Proceedings further provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rules Governing § 2255 Proceedings for the United States District Courts, Rule 4(b), 281 U.S.C. foll. § 2255.
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009).
Each petitioner raises more than ten ineffective assistance of counsel claims. Before discussing the individual claims of ineffective assistance, it is worth noting that it is hard to imagine a case where more effective assistance was provided at public expense. Each defendant was appointed two counsel, one each from the capital case panel who met the statutory requirement that they be "learned" in the law applicable to death penalty cases. Over one and a half million dollars of public funds were expended in their defense, not only on counsel, but on jury consultants, psychiatrists, psychologists, investigators, experts and mitigation specialists. Finally, as this judge can attest, all counsel represented these defendants with vigor, intelligence and dedication. Quite simply, these defendants not only did not receive ineffective assistance, they received highly effective assistance in the finest traditions of the American justice system. Nonetheless, we consider each claim in turn.*fn3
A petitioner's claim that defense counsel was ineffective in the context of plea negotiations is evaluated under the two- pronged Strickland test. See Pham, 317 F.3d at 182. "Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government." Id. "Even if there might be circumstances where defense counsel need not render advice as to acceptance of a plea bargain, there can be no doubt that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution." Id. (internal quotation marks and citations omitted). See also Roccisano v. Menifee, 293 F.3d 52, 60 (2d Cir. 2002) ("[D]efense counsel in a criminal case must advise his client of the merits of the government's case, of what plea counsel recommends, and of the likely results of a trial[.]").
"With respect to a claim that counsel's ineffective assistance led to the rejection of a plea offer that, properly informed, would have been accepted, a petitioner seeking a hearing must proffer arguably credible evidence of a prima facie case that, but for counsel's improper advice, the petitioner would have accepted the plea offer." Puglisi v. United States, 586 F.3d 209, 215 (2d Cir. 2009). "This may be accomplished through the petitioner's own sworn statement if it is credible in light of all the relevant circumstances . . . but 'a judge is well within his discretion in denying a petition when the supporting affidavit is insufficient on its face to warrant a hearing.'" Id. (quoting Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974)); see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003).
The Second Circuit has stated that a petitioner's "self-serving post-conviction statement" that he would have pled had he received proper advice of counsel is usually not enough to satisfy the prejudice prong of the Strickland test. See United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998). Rather, a petitioner's statement must be accompanied by some other "objective evidence" that he likely would have pled differently. Id. The Second Circuit has recognized a "significant sentencing disparity" as an example of "objective evidence" that can warrant a hearing. See Puglisi, 586 F.3d at 216; see also Pham, 317 F.3d at 184.
In his September 4, 2009 affidavit, Xavier contends that his counsel "did not discuss plea bargaining with [him] or even attempt to negotiate a plea bargain with the government." Sept. 4, 2009 Affidavit of Xavier Williams ("XW Aff.") at 1. Xavier further contends that if counsel had discussed with him the "true risks of proceeding to trial versus pleading guilty, including the fact that [Xavier] would have received an acceptance of responsibility reduction at the very least," he would have entered a guilty plea. Id. at 1. Finally, Xavier states that "[i]f counsel had presented a proposed plea bargain to [him], [he] would have entered a guilty plea to the indictment." Id.
For the reasons discussed below, we find that Xavier's claims that his counsel (1) did not attempt to negotiate a plea bargain, and (2) did not communicate any potential bargain to him lack credibility. We also find that his claims are inconsistent with statements in his November 26, 2010 affidavit submitted to this Court. As a result, we find that Xavier's affidavits are "insufficient on [their] face to warrant a hearing." Puglisi, 586 F.3d at 215.
In an affidavit submitted to this Court on November 2, 2010, Xavier's counsel David Stern stated that he (and his co-counsel Michael Young) met with Assistant United States Attorneys ("AUSAs") Glen McGorty, Helen Cantwell, Richard Daddario, and Sharon McCarthy in May 2005 "in an effort to work out a plea acceptable to both sides." Nov. 2, 2010 Affirmation of David Stern ("Stern Aff."), at 1. Stern further stated that in the May 2005 meeting, the government offered a plea of thirty years imprisonment, and that after the meeting Stern and Young met with Xavier to discuss the plea offer. Id. According to Stern, he and Young told Xavier "the terms of the government's offer" and "gave him [their] advice and answered his questions concerning the matter." Id. at 1-2. Stern states that Xavier "decided to reject the plea offer and to proceed to trial." Id. at 2.
Stern's affidavit is consistent with the affidavit of AUSA McGorty. In his affidavit, AUSA McGorty states that a meeting between the government and Xavier's counsel took place on or about May 24, 2005 and that "at that meeting the parties discussed a possible resolution of the case prior to trial." April 26, 2010 Affirmation by Glen G. McGorty ("McGorty Aff."), at 2. McGorty further states that after the May 2005 meeting, the government spoke with Xavier's counsel and was advised that Xavier "would not be pleading guilty pursuant to any agreement with the Government, and would be proceeding to trial." Id.
We find that Xavier's declarations lack credibility for the following reasons. First, Xavier's statement that Stern "did not even attempt to negotiate a plea bargain with the government" (XW Aff. at 1) is directly contradicted by the affidavits of both Stern and AUSA McGorty, both of which detail a meeting at which a potential plea was discussed.
Second, Xavier's statement in his September 24, 2009 affidavit that prior to trial Stern "did not discuss plea-bargaining with him" (id. at 1) is inconsistent with his own affirmation that when he "met with Mr. Stern regarding any type of plea discussion, [he] asked Mr. Stern to tell the government he was willing to take 20 to 25 years. Mr. Stern stated that the government would not consider anything less than 40 to 50 years." Nov. 26 2010 Response to David Stern's Affidavit ("XW Response"), at 1. Xavier's position is also logically inconsistent with counsel's extended, persistent, and successful efforts to persuade the government to reverse its decision to seek the death penalty if Xavier was convicted on death eligible charges.
Third, had Xavier pled guilty to the indictment in order to obtain acceptance of responsibility points, as he claims he would have (see XW Aff.), he would have faced a mandatory life sentence for pleading guilty to Counts Five, Six, and Seven of the Indictment, which charged him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). As noted above, these counts were not dismissed until July 6, 2005, after the close of the government's case at trial. Thus, Xavier's statement that he would have pled guilty to the indictment is neither credible nor supported by "objective evidence" of a "significant sentencing disparity." Puglisi, 586 F.3d at 216. Indeed, Xavier maintains that he was not involved with the murders and thus contends that he "would have entered a plea to the indictment without any involvement with murder or murder conspiracy if counsel would have negotiated such a deal." XW. Aff. at 3. However, that option was never available.
Fourth, even in his affirmation submitted in response to Stern's affidavit, Xavier does not state that he would have accepted an offer of thirty years; rather, he states that he told Stern to tell the government that he was willing to accept twenty-five years. Xavier's statement that "Mr. Stern stated that the government would not consider anything less than 40 to 50 years" (XW Reply Aff. at 1) is unsupported by anything in the record and lacks credibility under the circumstances.
Thus, while there is a disparity between the thirty year sentence that Stern stated the government offered and the life sentence that was ultimately imposed*fn4 , such a disparity does not warrant a hearing in this case because, in light of all the relevant circumstances, we accept Stern's affidavit that he presented the government's position to Xavier and provided legal advice on the issue, and find that Xavier's affidavits lack credibility. It is simply inconceivable that the same experienced lawyer who fought against the death penalty would have not fulfilled his obligations in the context of plea negotiations once the death penalty was off the table.
As the Second Circuit has stated, "[i]t may . . . be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and, in an appropriate case, even affidavits." Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001). Here, where we have considered affidavits from Xavier and AUSA McGorty, and expanded the record by requesting an affidavit from Xavier's counsel, we find that ruling on the basis of the affidavits is an appropriate "middle road that avoid[s] the delay, the needless expenditures of judicial resources, [and] the burden on trial counsel and the government" associated with a full hearing. Id. at 86. See also Crisci v. United States, 108 Fed. Appx. 25, 27 (2d Cir. Aug. 31, 2004); see also Brown v. United States, 03 CV 3909 (RJD), 03 CV 4371 (RJD), 2010 WL 2594040, at *12 ("A hearing at which each declarant merely reiterates his written submission will accomplish nothing.").*fn5
2.404(b) Limiting Charge
Federal Rule of Evidence 404(b) states in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person . . . . It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Bobby and Xavier each claim that their respective counsel provided ineffective assistance by failing to request a limiting instruction under Rule 404(b), either during the introduction of evidence or at the conclusion of trial.
Bobby contends that "[n]o 404(b) instruction was ever given to the jury" and that, as a result, he "was seriously prejudiced by counsel's error . . . ." BW Mem. at 6. Bobby's claim wholly lacks merit because this Court did in fact provide the jury with a limiting instruction, which stated the following:
You have heard evidence that on earlier occasions, the defendants engaged in conduct that was similar in nature to the conduct charged in the Indictment. Let me remind you that the defendants are only on trial for committing the acts alleged in the Indictment. Accordingly, you may not consider this evidence of similar acts as a substitute for proof that the defendants committed the crime charged. Nor may you consider this evidence as proof that the defendants have a criminal personality or bad character. This evidence was admitted for a more limited purpose, and you may consider it for that purpose only.
If you determine that the defendants committed the acts charged in the Indictment and the similar acts as well, then you may but need not draw an inference that in doing the acts charged in the Indictment, the defendants acted knowingly and intentionally and not because of some mistake, accident, or other reasons. Additionally, if you find that the defendants engaged in similar acts with other persons alleged to be members of the enterprise or conspiracies charged in the Indictment, you may consider those acts in deciding whether the conspiracy existed. If you find that the defendants engaged in the earlier acts and if you find that the earlier acts had sufficiently similar characteristics to those charged in the Indictment, then you may but need not infer that the acts charged in this Indictment and the earlier conduct were part of a common plan or scheme committed by the defendants.
Nevertheless, the evidence of similar conduct is to be considered by you only on the issues I have just described and not on any other issues. You may not consider such evidence for any other purposes. Specifically, you may not consider it as evidence that the defendant you are considering is of bad character or has a propensity to commit a crime.
EBW Tr. at 3116-3117.
This charge, which closely tracks Judge Sand's Modern Federal Jury Instructions (1 L. Sand, et al., Modern Federal Jury Instructions-Criminal at 5-71-76 (Instructions 5-26, 5-26) (2010)), was sufficient. In any event, a defendant is not entitled to have the exact language he may want read to the jury, so long as the charge actually given properly addresses the necessary legal issues. See, e.g., United States v. Russo, 74 F.3d 1383, 1393 (2d Cir. 1996).*fn6 Thus, defense counsel's decision not to object to the limiting instruction was not unreasonable and did not cause Bobby prejudice.
Xavier also contends that his counsel provided ineffective assistance by failing to obtain a 404(b) limiting instruction. XW. Mem. at 7-13. Xavier's claim is without merit because Xavier's counsel actually requested that this Court not issue a limiting instruction. See XW Tr. at 2247.*fn7 As the Second Circuit stated in Strickland, "[t]here are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 689. Here, in light of the substantial evidence against Xavier, counsel's decision to not seek a limiting instruction (and thus to not draw further attention to damaging testimony) falls "within the wide range of reasonable professional assistance." Id.*fn8
"The term 'retroactive misjoinder' refers to circumstances in which the 'joinder of multiple counts was proper initially, but later developments-such as a district court's dismissal of some counts for lack of evidence or an appellate court's reversal of less than all convictions-render the initial joinder improper.'" United States v. Hamilton, 334 F.3d 170, 181 (2d Cir. 2003)(quoting United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). "In order to be entitled to a new trial on the ground of retroactive misjoinder, a defendant 'must show compelling prejudice.' Such 'compelling prejudice' may be found where there is '[p]rejudicial spillover from evidence used to obtain a conviction subsequently reversed on appeal.' The concept of prejudicial spillover . . . requires an assessment of the likelihood that the jury, in considering one particular count or defendant, was affected by evidence that was relevant only to a different count or defendant." Id. at 181-82 (internal citations omitted). There are three factors considered in analyzing a prejudicial spillover claim:
(1) whether the evidence introduced in support of the vacated count was of such an inflammatory nature that it would have tended to incite or arouse the jury into convicting the defendant on the remaining counts, (2) whether the dismissed count and the remaining counts were similar, and (3) whether the government's evidence on the remaining counts was weak or strong.
Id. (internal quotation marks omitted).
Although Xavier was originally charged with a fourteen-count indictment, the government moved to dismiss seven counts relating to a triple homicide after the completion of its direct case. Xavier argues that he was prejudiced by the presentation of evidence related to the triple homicide, and that his lawyer should have moved for a new trial based on retroactive misjoinder. XW. Mem. at 13-14.
Xavier's ineffective assistance claim is without merit because, as the government notes in its brief (Gov. Mem. at 46-47), even without the triple homicide charges, the evidence in question would have been presented to the jury in the context of the racketeering conspiracy charged in Count One, as Predicate Act Three related to the triple homicide. See, e.g., U.S. v. Morales, 185 F.3d 74, 83 (2d Cir. 1999) (rejecting retroactive misjoinder claim where, inter alia, much of the evidence at issue "would have been admissible even if the reversed counts had never been charged."). Moreover, the jury actually found Xavier not guilty of Count Four, the only remaining substantive count relating to the triple homicide, and found that the government had not proved Predicate Act Three of Count One. As the Second Circuit has stated, "where the record indicates that the jury was able to distinguish between counts or between defendants, and to assess separately the evidence pertinent to each, we have found no basis for concluding that a new trial was warranted because of prejudicial spillover. The absence of such spillover is most readily inferable where the jury has convicted a defendant on some counts but not on others." Hamilton, 334 F.3d at 183. See also, e.g., United States v. Ivezaj, 336 Fed. Appx. 6, 8-9 (2d Cir. 2009) (summary order)(rejecting retroactive misjoinder claim where jury found one of charged racketeering acts unproven). In sum, Xavier cannot show the "compelling prejudice" required for a new trial on the grounds of retroactive misjoinder.*fn9 Thus, Xavier's counsel's decision not to move for a new trial on those grounds was not unreasonable under Strickland.
An indictment is multiplicitious, and thus in violation of the Double Jeopardy Clause of the Fifth Amendment, "when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). In order to determine whether two offenses charged separately in the indictment are in fact one offense charged twice, courts apply the Blockburger "same elements" test. See id. (citing Blockburger v. United States, 284 U.S. 299 (1932), United States v. Dixon, 509 U.S. 688 (1993)). The Blockburger test considers "whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Dixon, 509 U.S. at 696.
Xavier, Michael, and Bobby all claim that their respective counsel provided ineffective assistance by failing to move for dismissal of the racketeering conspiracy count (Count Two) or the murder conspiracy count (Count Three) on double jeopardy grounds. The petitioners argue that both counts were based on the same murder conspiracy and were thus multiplicitous. XW Mem. at 15-18; MW Mem. at 5-8 BW Mem. at 7-9.
Here, the Second Circuit's recent decision in United States v. Basciano, 599 F.3d 184 (2d Cir. 2010) is on point. In Basciano, the Circuit held that a defendant may be prosecuted for both racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and conspiracy to commit murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(5). Id. at 197-99. Applying the test set forth in Blockburger and reaffirmed in Dixon, the Court held that each of the two offenses contains an element not contained in the other, thus satisfying the Double Jeopardy inquiry. Basciano, 599 F.3d at 197-98. The court noted that "the critical double jeopardy inquiry is not factual, i.e., whether the same conduct is at issue in charges brought under different statutes, but legal, i.e., 'whether the offense - in the legal sense, as defined by Congress - complained of in one count is the same as that charged in another.'" Id. at 197 (quoting Blockburger, 284 U.S. at 304). Since racketeering conspiracy under 18 U.S.C. § 1962(d) does not require proof of an agreement on a violent crime nor a specific purpose to maintain or increase one's position in a racketeering enterprise, and since conspiracy to commit murder in aid of racketeering activity under 18 U.S.C. § 1959(a)(5) does not require a pattern of racketeering nor an agreement to conduct the affairs of the enterprise through such a pattern, a defendant may be prosecuted under both statutes without violating the Double Jeopardy Clause. Id. at 199.
Thus, there was no double jeopardy violation with respect to counts two and three for any of the three petitioners, and it was not ineffective assistance for any of the petitioners' counsel to not move for dismissal under such a theory.*fn10
5. Effective Cross-Examination
All three petitioners claim that their respective counsel was ineffective during cross-examination of certain witnesses. Xavier faults his counsel for failing to use a transcript from a previous trial to impeach a witness (XW Mem. at 18), while Michael and Bobby claim their respective counsel failed to show that a number of witnesses perjured themselves and failed to locate witnesses for rebuttal or otherwise. MW Mem. at 10; BW Mem. at 10.
It is well accepted that decisions by counsel "about 'whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature' and generally will not support an ineffective assistance claim." Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987))). See also Eze v. Senkowski, 321 F.3d 110, 131 (2d Cir. 2003) (noting the "significant deference we accord a trial counsel's decision how to conduct cross examination"); United
In sum, counsel was not ineffective in failing to raise these arguments. In any event, Michael was not prejudiced because, as discussed above, his conviction on Counts Five through Seven resulted in mandatory life sentences.
States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) ("[T]he conduct of examination and cross-examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification.").
Having presided over the trials of all three petitioners, this Court observed first-hand the careful and conscientious cross-examinations conducted by all defense counsel. In each case, counsel, utilizing their considerable experience, took full advantage of the opportunities contained in the § 3500 material provided by the government. Strategic choices made by counsel in connection with such efforts do not rise to the level of ineffective assistance. And, at bottom, none of the issues raised by petitioners in the context of cross-examination raise a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.*fn11
6. Right to Testify
Xavier and Michael claim that their respective counsel did not inform them of their right to testify or sufficiently impart to them that the ultimate decision as to whether to testify or not belonged to them and not counsel, and that this constituted ineffective assistance of counsel.
A defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49 (1987); Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001). Defense counsel is obligated to inform a defendant of this right and to offer advice on whether it should be exercised, but the defendant is ultimately the one who decides on its waiver. Brown v. Artuz, 124 F.3d 73, 76 (2d Cir. 1997).
A petitioner's claim that his counsel denied him the right to testify is subject to the ineffective assistance of counsel standard set forth in Strickland. That is, against a "strong presumption" that counsel's conduct was reasonable, a petitioner must show both unreasonable performance and prejudice. Strickland, 466 U.S. at 689. Prejudice can only be shown where a defendant is denied a fair, reliable trial, id. at 687, and where the defendant shows that the "proposed testimony would have altered the outcome of the trial." Rega, 263 F.3d at 21.
Assuming, arguendo, that both Xavier and Michael's counsel did not
inform them of their right to testify, both petitioners fail to show
how their testimony could have altered the outcome at trial. The
evidence against both Xavier and Michael at their respective trials
was overwhelming, and nothing in Xavier or Michael's proposed
testimony would have changed the outcome of either trial.*fn12
As the government notes, evidence of guilt was
so compelling that Michael's testimony only ran the danger of an
adverse impression, thus increasing the chances of a jury deciding to
apply the death penalty after conviction. Accord id. at 26 (reversing
grant of habeas where petitioner's proposed "testimony would have done
more harm than good").
Since neither petitioner has established prejudice, we need not consider the performance prong of the Strickland test, i.e. what was told to each petitioner regarding the right to testify. In any event, in response to a request from this Court, Xavier's counsel has submitted an affidavit in which he states that "[a]fter presentation of the government's case at trial Mr. Young [co-counsel] and I met with Mr. Williams to discuss the advisability of his testifying in his own defense. Mr. Young and I presented our views, and explained that Mr. Williams had an absolute right to testify, and that the choice was ultimately his to make. He decided that he would not testify." Stern Aff. at 2.*fn13 This affidavit is credible. Furthermore, we note that Xavier does not contend that his counsel told him he could not testify, but rather that counsel "advised [Xavier] that he did not think it was a good idea for him to testify." XW Mem. at 24. Under the circumstances of this case, such advice was entirely reasonable. See, e.g., Haouari v. United States, 429 F.Supp.2d 671, 678 (S.D.N.Y. 2006)(denying ineffective assistance claim where petitioner's affidavit showed "only that (1) [petitioner] discussed with counsel whether or not he should testify, (2) counsel strongly advised him against it and gave reasons for this advice, and (3) [petitioner] made the decision not to testify as a result of counsel's 'insistence.'").
7. Section 924(c) Charge
Xavier claims that his counsel's failure to object to the jury instructions, which he claims constructively amended Count Six of the indictment, constituted ineffective assistance of counsel. XW Mem. at 25-27. Specifically, Xavier contends that the jury instruction for Count Six "constructively amended the indictment by allowing [him] to be convicted for possessing the firearm during and in relation to a drug trafficking crime." Id. at 27. Count Six of the Indictment charged Xavier as follows:
On or about March 1, 1996, in the Southern District of New York, XAVIER WILLIAMS, the defendant, unlawfully, willfully and knowingly used and carried a firearm, to wit, a Glock 9 millimeter semi-automatic handgun, during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, to wit, the Torres Organization's narcotics distribution conspiracy, as charged in the Indictment in Act of Racketeering Four of Count One, and Counts Two and Five.
In his petition, Xavier quotes exclusively from a portion of the jury charge relating to "aiding and abetting" a violation of 18 U.S.C. §924(c). Xavier omits, however, this Court's substantive instruction on Count Six, which stated, in relevant part, as follows:
Count Six of the Indictment charges the defendant with using or carrying a firearm during and in relation to a drug trafficking crime -- the Torres organization's narcotics distribution conspiracy -- in violation of Title 18, United States Code, Section 924(c) and 2. Count Six reads as follows: [recites the text of Count Six, provided above]
The relevant statute here provides that any person who, during and in relation to any drug trafficking crime for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall be guilty of a crime.
For Count Six, the government must prove the following elements beyond a reasonable doubt: First, that on or about March 1, 1996, the defendant used or carried a firearm, or any combination of those acts. Second, that the defendant used or carried the firearm during and in relation to a drug trafficking crime. Third, that the defendant acted knowingly, unlawfully and willingly.
The first element the government must prove beyond a reasonable doubt on Count Six is that the defendant used or carried a firearm on or about March 1, 1996.
Use of a firearm requires an active employment of the firearm by the defendant, that is, a use that makes the firearm an operative factor in relation to a drug trafficking crime. This does not mean that the defendant must actually fire or attempt to fire the weapon, although those would obviously constitute use of the weapon. Brandishing, displaying or even referring to the weapon so that others present knew that the defendant had the firearm available if needed all constitute use of the firearm. The mere possession of a firearm at or near the site of the crime without active employment as I have just described it is not sufficient to constitute use of a firearm.
I also spoke of carrying a firearm. A person carries a firearm if he has the weapon within his control in such a way that it furthers the commission of a crime or was an integral part of the commission of that crime.
The second element that the government must prove beyond a reasonable doubt is that the defendant used or carried a firearm during and in relation to drug trafficking crimes charged in the Indictment in Racketeering Act Four of Count One and Counts Two and Five, specifically, the narcotics distribution conspiracy of the Torres organization. You are instructed that these offenses qualify as drug trafficking crimes under the law.
The final element the government must prove beyond a reasonable doubt on Count Six of the Indictment is that the defendant acted "unlawfully," "willfully" and "knowingly." I have previously instructed you on the meaning of those terms, and you could rely upon those instructions in considering Count Six of the Indictment.
XW Tr. at 2456-2458 (emphasis added).
The above instruction does not provide that Xavier could be convicted for "possession." Rather, it explicitly distinguishes "possession" by stating that "[t]he mere possession of a firearm at or near the site of the crime without active employment . . . is not sufficient to constitute use of a firearm." Thus, Xavier's argument relies solely on a portion of the charge related to "aiding and abetting" a violation of 18 U.S.C. 924(c). That charge stated as follows:
Now, with respect to Count Six, I must instruct you about aiding and abetting. In Count Six, the defendant is also charged with aiding and abetting the use or carrying of a firearm in connection with a crime of violence that could be prosecuted in federal court. I have already explained the concept of aiding and abetting in connection with earlier charges, and it means the same thing with respect to Count Six. You should apply my previous instructions on that subject.
I do want, however, to give you an additional instruction that applies to aiding and abetting the use or carrying or possession of a firearm as charged in Count Six. In order to convict a defendant of aiding and abetting another's use or carrying or possession of a firearm, it is not enough to find that the defendant performed an act to facilitate or encourage the commission of the underlying crime of violence with only the knowledge that a firearm would be used or carried or possessed in the commission of that crime. Instead, you must find that the defendant performed some act that facilitated or encouraged the actual using or carrying or possession of the firearm in relation to the underlying crime. For example, if you find that the defendant actually directed another person to use or carry a gun in the commission of the underlying crime or made such a gun available to another person, then the defendant aided and abetted another person's use of a firearm. These examples are only by way of illustration and are not meant to be exhaustive.
Xw. Tr. at 2458-2459 (emphasis added).
As a preliminary matter, we note that the first part of this "aiding and abetting" charge instructs the jury with regard to "use" or "carrying"; not possession. In any event, to the extent that the remaining portion of the aiding and abetting charge erroneously included "possession," the error could not have reasonably affected the outcome of this case. This is because, amongst other reasons, the government did not proceed on an aiding and abetting theory against Xavier.*fn14 The firearm at issue was recovered in Xavier's vehicle; no juror could have reasonably thought that Xavier was being convicted on a charge of aiding or abetting someone else's possession of the firearm when all the evidence made clear that the government was proving that Xavier actually used and carried the firearm.
Thus, whatever error there may have been in the "aiding and abetting" instruction did not "affect substantial rights," United States v. Worjloh, 546 F.3d 104, 110 (2d Cir. 2008), did not affect the "outcome of the district court proceedings," United States v. Olano, 507 U.S. 725, 734 (1993), and did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings," id. at 736. "[T]he charge error . . . would not have made a difference in the result," and thus counsel's failure to object was not ineffective under Strickland. Larkins v. Herbert, 165 Fed. Appx. 40, 42 (2d Cir. 2006) (summary order).
8. "Conceded" Guilt
Bobby and Xavier claim that their respective counsel's concessions during summation constituted ineffective assistance of counsel. Both arguments are without merit.
Bobby claims that his counsel conceded guilt on the conspiracy charges during summation by stating that he was the "head of a multimillion dollar Torres organization." BW Mem. at 15-16. Bobby's argument is based on a line taken out of context. The following excerpt from the summation makes it clear that Bobby's counsel was attempting to discredit the statements of a testifying witness; not concede guilt:
Confessions are free. Why in the world would Bobby Williams confess to Earl Baldwin? And, you know, Earl Baldwin, he must have felt like he had died and gone to heaven the day that the feds showed up in his federal jail last year and said, we're here looking for information on Bobby Williams, and, you know, thank the Lord. I got something I can sell here. And it didn't take much. All they got to do is take a lifelong criminal, he's gone from burglaries to purse snatching. Told the police a lie and, well, he's got the experience, remember, because this whole story about he's working in this barber shop, some friend of his comes into the barber shop, shot in the stomach for a robbery, and somebody lied to the police and they locked him up. Somebody who thinks it would be very nice to get out of jail sooner. Michael Villafane is a lifelong criminal. A real drug dealer. In the sense of dealing in more than 50 grams, 50-kilogram quantities. Somebody who sold 20 to 50 kilograms of heroin. Whose team is he playing for? Team USA. An affection for guns. He says that he sees Bobby, the head of a multimillion dollar Torres organization, selling drugs in a bar hand to hand and in the bathroom. Conspiracy to murder, attempted murder, could walk out with time served. He realizes that he could walk out with time served."
EBW Tr. at 2973-2974 (emphasis added).
In context, it would be clear to a reasonable juror that this was not a concession of guilt, but rather an attempt to discredit the statements of a testifying witness.
Xavier contends that his counsel conceded his guilt by making the following statements during summation:
Xavier Williams used a lot of names. He had a lot of cars. He wired money and money was wired to him. . . . It's true. Xavier Williams is a small-time hustler. He goes where he can. He sells little bits of drugs. Sometimes he cooks for people . . . .
XW Tr. at 2306.
You know, Xavier couldn't keep up with his car payments, couldn't keep up with his apartment payments, was making small-time sales, the ones with the blade runner, the one time he did it for Henry Germany. He sold a few hundred grams to other people. XW Tr. at 2330.
These statements must be evaluated in the context of the overwhelming evidence against Xavier with regard to the other charges against him. Under the circumstances, it was a reasonable strategic choice to concede to certain charges in order to make more forceful arguments against others. See, e.g., Florida v. Nixon, 543 U.S. 175 (2004); Farrington v. Senkowski, 214 F.3d 237, 444 (2d Cir. 2000); Monroe v. Dale, 05 Civ. 6704 (LAK)(JCF), 2007 WL 1766770, at *7 (S.D.N.Y. June 17, 2007); Frascone v. Duncan, No. 01 Civ. 5924 (GBD), 2005 WL 1404791, at *2-3 (S.D.N.Y. June 14, 2005). Indeed, counsel presented exculpatory arguments that were more persuasive when coupled with the honesty of his concessions. See, e.g., XW Tr. at 2331 ("One thing is for certain, [Xavier] isn't a murderer and he isn't the head of some drug empire."). Unlike Michael and Bobby, Xavier was not facing the possibility of the death penalty or a mandatory life sentence.*fn15 Thus, faced with overwhelming evidence of the drug conspiracy, counsel's decision to concede Xavier's involvement in some drug related offenses in order to try to obtain acquittals on other offenses falls within the range of reasonable strategic decisions.
9. Pretrial Investigation and Preparation of Proper Defense
Michael and Bobby assert that their respective counsel failed to prepare a proper defense based on their failure to adequately interview witnesses and failure to adequately test evidence in preparation of trial. See MW Mem. at 4; BW Mem. at 3.
As was noted earlier, over $500,000 was spent on the defenses for both Bobby and Michael. These expenses included, but were not limited to, consultations with jury consultants, psychiatrists, psychologists, mitigation specialists, ballistic experts, and investigators. While the amount of money spent in the preparation for trial does not always mean that that preparation met constitutional requirements, in the cases of both Michael and Bobby it was apparent to this Court that counsel's preparation was thorough and extensive. Counsel was not required to "scour the globe on the off-chance something will turn up." Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)).
In any event, Michael and Bobby fail to point to anything that counsel should have investigated that would have altered the outcome of the trial. Michael argues that his counsel's investigator did not conduct enough witness interviews, only speaking with ten out of ninety-one individuals on the witness list.*fn16 MW Mem. at 4. Specifically, Michael contends that his counsel's investigator should have interviewed Gladys Nolan, Virginia Scott, and Patty Simon. Id. But, again, Michael fails to explain what, if any, exculpatory information these witnesses could have offered in the face of overwhelming evidence of guilt. For example, Michael claims that counsel should have interviewed Nolan "in order to find out if she had anything else to add to the case," and Scott in order to uncover "evidence that would prove Petitioner's innocence." Id. Such conclusory assertions are insufficient to establish ineffective assistance of counsel. See United States v. Feyrer, 333 F.3d 110, 120 (2d Cir. 2003) (rejecting claim of improper pretrial investigation where defendant "made only the most conclusory assertions with respect to [counsel's] shortcomings and the likely effect of these alleged deficiencies on the jury's verdict"); Polanco v. United States, 99 Civ. 5739 (CSH), 2000 WL 1072303 at *10 (S.D.N.Y. Aug. 3, 2000) (collecting cases in which ineffective assistance counsel claims fail where petitioner fails to "identify what leads counsel should have followed in such an investigation, the nature of evidence that could have been discovered or presented, or what possible witnesses should have been contacted, much less how any of this would have revealed exculpatory information or been otherwise helpful to his case").*fn17
Bobby claims that his counsel should have used an investigator to interview a T.V. talk show host named Richard Bey, who Bobby claims he was with "during the night in question," and with whom he took pictures that also included his girlfriend, Carol Johnson, "with daughter Cazica and niece Malika." BW. Mem. at 3. Bobby also claims that counsel should have interviewed "Mike Mitchell, who could have been a possible defense witness for the [p]petitioner." Id. Bobby's claim with regard to Mike Mitchell lacks any specificity and is precisely the kind of conclusory claim that courts have found insufficient. His claim regarding Richard Bey does not address conduct for which Bobby was convicted and sentenced to a mandatory sentence of life imprisonment (i.e., the drug conspiracy), and lacks specificity sufficient to suggest how a potential investigation would have countered the substantial evidence against Bobby or resulted in a reasonable probability of a different outcome at trial.
Petitioners also claim that counsel was ineffective for failing to have DNA tests performed on a mask recovered by law enforcement in a car involved with the triple homicide. BW Mem. at 3-4; MW Mem. at 4-5. The evidence was overwhelming, however, that the car was used during triple homicide and that Michael and Bobby were using the car during the time at issue. See, e.g., EBW Tr. at 1702-07; EBW Tr. at 566-67. There is not a reasonable probability that DNA tests on the mask, even if inconclusive or showing contact by other individuals, would have changed the outcome of this trial. Indeed, they very well could have provided additional evidence against the petitioners. Obviously a more substantial showing would have been necessary to have persuaded the court to have CJA funds expended for this purpose. In sum, counsel's decision not to seek DNA testing -or to conduct additional pretrial investigation - was not ineffective assistance.
10. Motion for Second Hearing
Michael claims his counsel was ineffective for failing to file a motion for a second hearing to question Detective James Cvetic, one of two affiants on a search warrant that produced much of the evidence against him. MW Mem. at 19.
Michael's motion to suppress evidence from this search had already been denied by this Court in United States v. Williams, 181 F. Supp. 2d 267 (S.D.N.Y. 2001), under the "good-faith" exception to the exclusionary rule, United States v. Leon, 468 U.S. 897 (1984). Specifically, this Court held that "Det. Tallant [the other affiant] and the other officers who conducted the search of the Rippey Street apartments did so in reasonable reliance on the later-invalidated search warrant, and, therefore, are entitled to the Leon 'good faith' exception to the exclusionary rule." Williams, 181 F. Supp. 2d at 278. As this Court noted in denying the suppression motion, "[o]nce [we] received an accurate picture of what Det. Tallant knew when he swore to the Tallant affidavit and searched the Rippey Street apartments, we were convinced that, had Det. Tallant included in the affidavit all the information he actually knew at the time, we would have found that the ensuing warrant was, in fact, supported by probable cause." Id. at 277. In spite of this ruling, and the fact that Detective Cvetic testified before this Court on October 30, 2001 and was cross-examined by defense counsel, Michael claims that his counsel was ineffective for not recalling Cvetic to question him about what Michael describes as Cvetic's "history of be[i]ng untruthful when filing affidavits in reference to witnesses." MW Mem. at 19. Michael fails to show how any additional testimony from Detective Cvetic would change this Court's Leon determination, or, more significantly, the outcome at trial. In any event, counsel's decision not to recall the witness to testify was not "below an objective standard of reasonableness." Strickland, 466 U.S. at 688.
11. Motion Based on Insufficiency of Evidence
Michael argues that his counsel's failure to make an insufficiency of the evidence motion on Count Three, the conspiracy to murder Victor Mercado, amounted to ineffective assistance of counsel. MW Mem. at 20.
Michael's ineffective assistance claim is without merit because his counsel did in fact join in a motion made by Bobby's counsel for a judgment of acquittal under Federal Rule of Criminal Procedure 29 as to all counts. See EBW Tr. at 2523. This motion was denied.*fn18
12. Multiple Conspiracy Instruction
Michael claims that his counsel's failure to request a multiple conspiracy instruction, so that the jury would understand the existence of multiple, separate organizations, constituted ineffective assistance of counsel. MW Mem. at 22-23.
As the government notes (Gov. Mem. at 79), the Second Circuit rejected a similar argument raised by Xavier on direct appeal. United States v. Williams, No. 05-6036-cr, 2007 WL 3105760, at *4 (2d Cir. Oct. 23, 2007) ("Having reviewed the record, we conclude that the government established the existence of a single conspiracy as charged in the superceding indictment. . . . And even if Xavier was entitled to a multiple conspiracy charge, he has not demonstrated that he was prejudiced by the district court's refusal to give one."). The same analysis applies here, where there was substantial evidence showing a single, continuing RICO enterprise, and where Michael has not shown that the issuance of a multiple conspiracy charge would have affected the outcome of the trial. See id. ("A refusal to give a multiple conspiracy charge does not prejudice a defendant where, as here, there was ample proof before the jury for it to find beyond a reasonable doubt that the defendant was a member of the conspiracy charged in the indictment.").
13. Counsel's Performance
Michael and Bobby each claim that their respective counsel made cumulative errors before and during trial, and therefore the court must consider the prejudicial effect of the combined errors when assessing whether counsel was ineffective. MW Mem. at 25-26; BW Mem. at 22. Both claims fail because, as the analysis above shows, neither Michael nor Bobby have shown that there is a reasonable probability that the result of their trials would have been different if counsel had acted differently.
Each of the petitioners makes various challenges to his sentence based on ineffective assistance of counsel claims. While we briefly consider all sentencing-related claims below, we note at the outset that Bobby and Michael faced mandatory life sentences after the jury decided not to impose the death penalty. Specifically, Bobby and Michael both faced mandatory life sentences for their convictions on Counts Five through Seven (murder in aid of racketeering activity). In addition, Bobby faced a mandatory life sentence for his conviction on Count Eight (conspiracy to distribute narcotics).*fn19 Thus, any claims Bobby or Michael make with respect to their counsel's performance in the context of the Sentencing Guidelines is without merit because even if counsel had made an argument that resulted in a change in the Guidelines, there would not (and indeed could not) have been an impact on either petitioner's final sentence.*fn20
14. 3553(a) Sentencing Factors
Xavier and Bobby claim that their respective sentences are unreasonable because the Court did not take all of the 18 U.S.C. § 3553(a) factors into account when imposing sentence. As a result, both petitioners claim, their counsel provided ineffective assistance by failing to object during sentencing. XW Mem. at 29-32; BW Mem. at 16-18.
As a preliminary matter, we note that Xavier already raised this same issue on appeal and his sentence was affirmed. United States v. Williams, No. 05-6036-cr, 2007 WL 3105760 (2d Cir. Oct. 23, 2007). He also raised a similar argument in a motion under 18 U.S.C. § 3582, which was rejected by the undersigned and by the Court of Appeals.
In any event, the Second Circuit has "imposed no . . . requirement that a sentencing judge precisely identify either the factors set forth in § 3553 or specific arguments bearing on the implementation of those factors in order to comply with her duty to consider all the § 3553 factors along with the applicable Guidelines range." United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (emphasis in original). "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred." United States v. Rose, 496 F.3d 209, 213 (2d Cir. 2007) (internal quotation marks omitted).
Here, this Court was aware of the relevant statutory requirements, sentencing ranges, and the § 3553 factors when imposing sentence. Indeed, Xavier points to "nothing in the record indicat[ing] misunderstanding about such materials or misperception about their relevance." Id. Furthermore, the life sentence recommended by the Guidelines for Xavier was not unreasonable under the circumstances of this case. In sum, there was no reason for Xavier's counsel to argue at sentencing that the Court had not considered all of the § 3553 factors, and any such argument would have had no impact on Xavier's sentence.*fn21
15. Drug Quantity in the PSR
Xavier and Bobby both argue that their counsel provided ineffective assistance by failing to object to the drug quantity stated in the Pre-Sentence Report and used as the basis for sentencing.
We reiterate that Bobby was facing a mandatory life sentence for his convictions for murder in aid of racketeering, and thus any objection based on drug quantity calculations would have had no impact on his sentence.
With regard to Xavier, we note that he already raised the issue of his drug quantity on direct appeal, in an 18 U.S.C. § 3582 motion to this Court, and on a subsequent appeal. All three times his argument was rejected.
In any event, as this Court stated at sentencing, "there was an abundance of testimony from numerous witnesses . . . to support a conclusion that [Xavier] distributed in excess of 150 kilograms of cocaine. Xavier Williams Sentencing Tr. at 6:16-23, Oct. 7, 2005. As for the Court's authority to make this determination, the Second Circuit has confirmed that sentencing judges are not limited to considering the facts admitted by the defendant or found by the jury beyond a reasonable doubt but are instead obligated to make their own factual findings at sentencing using a preponderance standard. See United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005) ("[D]istrict courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence."). Here, Xavier's counsel made a strategic choice not to challenge certain Guidelines calculations but to instead argue for a downward variance (i.e. a non-Guidelines sentence) from the calculated term of life imprisonment.*fn22 Such a decision was not unreasonable.
16. "Organizer or Leader" Sentence Enhancement
Xavier, Michael, and Bobby all claim that their respective counsel provided ineffective assistance by failing to object to a four-level enhancement under section 3B1.1(a) of the Guidelines for being an organizer or leader of a criminal activity that involved five or more participants. Again, Michael and Bobby's arguments must fail because their Guidelines calculations were essentially irrelevant since both were facing mandatory life sentences. Xavier's argument fails because counsel's decision to not object to the enhancement was reasonable in light of the overwhelming evidence on this issue (see, e.g., XW Tr. at 93-94, 97-98, 472-75, 518-22), as well as counsel's decision to seek a variance in spite of the Guidelines calculation.
17. Change in Guidelines
Xavier claims that his counsel was ineffective for failing to insist on the use of the Guidelines in effect at the time of the conspiracy to commit murder charged in Racketeering Act 1(a) and Count Three of the Superseding Indictment. This claim is without merit because this Court did in fact use the edition of the Guidelines Manual in effect at the time of the offense.*fn23 In any event, Xavier was sentenced to life imprisonment on Counts One, Two, and Five; any potential change to Xavier's sentence based on his Guidelines' challenge here would not have affected the total amount of time he was sentenced to prison.
18. Murder-for-hire Enhancement
Xavier claims his counsel was ineffective for failing to object to the four-level enhancement to his offense level pursuant to section 2A2.1(b)(2) for an offense involving the offer or receipt of anything of pecuniary value for undertaking a murder.
Xavier's claim fails because this enhancement was not applied to Xavier's offense level; though the PSR originally included it, the government objected to the enhancement in an October 6, 2005 letter and it was not included in the final Guidelines calculation submitted by the Probation Department.*fn24
In any event, the life imprisonment sentences for Xavier on Counts One, Two, and Five were imposed to run concurrently; thus, any change to Xavier's sentence based on his Guidelines challenge here once again would not impact the total amount of prison time to which he was sentenced.
19. Career Offender Enhancement
Michael and Bobby argue that their respective counsel provided ineffective assistance by failing to object to the career offender enhancement under section 4B1.1 of the Guidelines and the government's failure to provide the required prior felony information pursuant to 28 U.S.C. § 851. Once again, Michael and Bobby were sentenced to mandatory life terms and thus an objection to the applicable Guidelines calculations would not have affected the ultimate sentences. Thus, Michael and Bobby's respective counsel were not ineffective for failing to object to the enhancement.*fn25
20. Statutory Maximum Sentence
In a supplemental petition, Xavier contends that his counsel provided ineffective assistance by failing to object to the Court's determination of the applicable statutory maximum sentence for Counts One, Two, and Five. Xavier's Supplemental Submission ("XW Supp.")(Dkt. No. 12) at 2. Xavier contends that the applicable statutory maximum was not life imprisonment, but rather twenty years.
In support of his claim, Xavier argues that his indictment was defective because it:
(a) "failed to identify the mixtures or substances that allegedly contained cocaine base," (id. at 3);
(b) "failed to adequately allege drug quantity" (id. at
(c) incorrectly used the conjunctive when charging Xavier with a conspiracy to "distribute and possess with the intent to distribute. . ." (id. at 2 (emphasis added)).
Xavier's claims fail because, amongst other reasons:
(a) Count Five of the indictment adequately and accurately charged him with a conspiracy to "distribute and possess with the intent to distribute 50 grams and more of mixtures and substances containing detectable amounts of cocaine base, in a form commonly known as 'crack.'" "Crack" cocaine was the "mixture or substance" (21 U.S.C. § 841(b)) at issue.
(b) The indictment adequately charged drug quantity (see Count Five, supra).
(c) There was no error in the use of the conjunctive in the indictment. See Griffin v. United States, 502 U.S. 46, 56 (1991) ("'When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.'")(quoting Turner v. United States, 396 U.S. 398, 420 (1970)). The above arguments would not have been successful and thus Xavier's counsel was not ineffective for not raising them.*fn26
In addition to the above ineffective assistance of counsel claims, Michael and Bobby have each filed motions "to stop prosecutor's vindictiveness and denial of the separation order of father and son (Elijah [Bobby] Williams and Michael Williams)." Separately, Michael filed a "[m]otion for recusal of a bias, impartial, trial judge on this § 28:2255 motion under title 28 U.S.C. § 144 and § 455 for judicial bias and prejudice." We briefly address each motion below.
21. Prosecutorial Vindictiveness
Both Bobby and Michael request that this Court lift a Separation Order issued by the Bureau of Prisons ("BOP") which separated them from one another (Bobby and Michael were cell-mates until the issuance of the Separation Order). To the extent that Bobby and Michael challenge the conditions of their confinement, such a motion should be brought pursuant to 18 U.S.C. § 2241, not § 2255. "A challenge to the execution of a sentence-in contrast to the imposition of a sentence-is properly filed pursuant to § 2241." Levine v. Apker, 455 F.3d 71 (2d Cir. 2006). In any event, "[w]henever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). See also, e.g., Santulli v. United States, 02 Civ. 8664 (SAS), 2003 WL 21488084, at *2. Here, where both petitioners and presumably the Warden are located in Pennsylvania, this Court lacks jurisdiction over Michael and Bobby's § 2241 claims.*fn27
On May 28, 2010, Michael filed a motion for this Court to recuse itself on the grounds that, amongst other things, this Court allowed the indictment allegedly containing dozens of double jeopardy violations (and not including drug quantities) to go trial.
Under 28 U.S.C. § 455(a), a judge must recuse herself "in any proceedings in which [her] impartiality might reasonably be questioned." "[T]his test deals exclusively with appearances. Its purpose is the protection of the public's confidence in the impartiality of the judiciary." United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007). "The district judge has discretion in the first instance to determine whether to disqualify [herself]. . . . The recusal decision requires that the district court carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning [her] impartiality might be seeking to avoid the adverse consequences of [her] expected adverse decisions."
In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008)(internal quotation marks and citations omitted).
Here, where Michael's claims of bias (which he raises after years of litigation) are based on his disagreement with a number of legal rulings made throughout the trial phase, and his appeal has upheld his conviction and his petition for a writ of certiorari to the Supreme Court was denied, there is no basis for the motion to recuse and it is denied.