The opinion of the court was delivered by: Judge Michael J. Davis United States District Court
MEMORANDUM OF LAW & ORDER
This matter is before the Court on Defendant Larry Darnell Williams' Motion for Acquittal Notwithstanding the Verdict [Docket No. 123], Motion to Dismiss for Ineffective Assistance of Counsel [Docket No. 124], and Motion for New Trial [Docket No. 126].
After Williams was originally indicted in July 2004, he was represented by CJA panel counsel Lee Johnson. The original Indictment charged Williams with Count 1, possession with intent to distribute crack, Count 2, possession of a firearm during a drug trafficking crime, and Count 3, felon in possession of a firearm, all occurring on January 17, 2004. When Williams retained Calandra Harris in October 2004, Johnson had already attended a pretrial motion hearing on the original Indictment.
The Government filed a Superseding Indictment against Williams on December 21, 2004, adding a count for drug trafficking conspiracy, a count for possession of a firearm during a drug trafficking crime, and a count for felon in possession of a firearm, all related to Williams' arrest in July 2004.
In the Second Superseding Indictment, filed February 15, 2005, the Government added a crack possession charge related to May 19, 2004. In the Second Superseding Indictment, Williams was charged with: Count 1, drug trafficking conspiracy to distribute and to possess with intent to distribute a mixture or substance containing a detectable amount of cocaine base "crack," from January 2004 to July 15, 2004; Count 2, possession with intent to distribute a mixture or substance containing a detectable amount of cocaine base "crack," on January 17, 2004; Count 3, possession with intent to distribute a mixture or substance containing a detectable amount of cocaine base "crack," on May 19, 2004; Count 4, possession of a firearm during a drug trafficking crime, on January 17, 2004; Count 5, felon in possession of a firearm, on January 17, 2004; Count 6, possession of a firearm during a drug trafficking crime from March 2004 to July 15, 2004; and Count 7, felon in possession of a firearm from March 2004 to July 15, 2004. On March 10, 2005, the Court granted the Government's motion to dismiss Counts 4 and 5 - the gun charges related to Williams' January 17, 2004 arrest. Counts 6 and 7 became new Counts 4 and 5 - gun charges relating to the time period March 2004 to July 15, 2004. Williams' trial was scheduled to begin on March 10, 2005.
B. Possible Conflict of Interest Related to Nunziata Williams
On March 8, 2005, the Government filed a Notice of Possible Issue of Successive Representation. [Docket No. 113] The Government had learned that Harris had contact with Nunziata Williams, one of the Government witnesses for Williams' upcoming trial. It asserted that Harris had represented Larry Williams in connection with a robbery, for which both Larry Williams and Nunziata Williams were arrested. At Larry Williams' direction, Harris had visited Nunziata Williams while she was in jail. The Government further alleged that Nunziata Williams also sought Harris's advice on a family law matter, but never retained Harris.
The Court ordered a hearing on March 10 to address the conflict of interest issue. At the hearing, Harris testified under oath that she had never had an attorney-client relationship with Nunziata Williams, that her ability to cross-examine Nunziata Williams would not be affected by her prior contacts with her, and that her brief prior contacts with Nunziata Williams were unrelated to any issues in this case. The Court concluded that the possibility of a conflict was remote. [Docket No. 117] Out of an abundance of caution, the Court informed Williams that, although a conflict was unlikely to arise, he had the option to continue the trial and obtain new counsel. Williams clearly indicated his desire to continue with Harris's representation. The Court concluded that he gave a knowing and intelligent waiver of any potential conflict of interest that Harris may have had as a result of her prior contact with Nunziata Williams and permitted Harris to continue in her representation of Larry Williams.
C. Williams' Discharge of Harris
Larry Williams' trial commenced on March 10, 2005. On March 14, Williams moved to discharge Harris and to represent himself for the remainder of the trial. The Court conducted a hearing on the issue of self-representation and granted a recess to allow Williams to further discuss the issue with Harris. After the recess, Williams again asserted his desire to proceed pro se. The Court granted Williams' motion, concluding that he had voluntarily and intelligently decided to exercise his right to self-representation. [Docket No. 121] The Court ordered Harris to continue as standby counsel for Williams.
The following morning, March 15, Williams requested that Harris give a closing argument on his behalf to the jury. After a prolonged colloquy with Williams, the Court ordered Harris to give the closing argument.
On March 16, the jury found Williams guilty of Counts 1, 2, 3, and 5. The jury found Williams not guilty of Count 4. [Docket No 136] On March 23, Williams filed the current pro se post-trial motions.
On October 25, 2005, the Court appointed Federal Public Defender Andrea George to represent Williams and assist him with his pro se post-trial motions. Since Williams originally filed his post-trial motions, the Court has received extensive supplemental briefing and, after multiple continuances, the Court held an in-depth evidentiary hearing on Williams' allegations. At this point, the record before the Court is complete and all legal issues have been fully argued.
A. Motion for Acquittal Notwithstanding the Verdict
When deciding a motion for acquittal, the Court views the evidence and all reasonable inferences from it in the light most favorable to the verdict. United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995). If there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt, that verdict must be upheld. Id. Based on its review of the evidence submitted at trial, the Court concludes that there is sufficient evidence for a reasonable jury to find, beyond a reasonable doubt, the existence of the essential elements of Counts 1, 2, 3, and 5 of the Second Superceding Indictment. Williams' Motion for Acquittal is denied.
B. Motion to Dismiss for Ineffective Assistance of Counsel
Williams moves to dismiss the Second Superceding Indictment on the grounds that his counsel's assistance was ineffective. As explained in Part III(C), the Court has determined that Williams' Sixth Amendment right to effective assistance of counsel was not violated. Additionally, alleged deficiencies by Williams' private counsel, without the allegation of any irregularity by a Government actor, are not an appropriate impetus to dismiss the indictment against Williams. See United States v. Williams, 372 F.3d 96, 111 (2d Cir. 2004) (noting that dismissal of the indictment is appropriate when "the government violates a protected right of the defendant and (2) the government's conduct is sufficiently outrageous"). Williams' Motion to Dismiss is denied.
Under Rule 33 of the Federal Rules of Criminal Procedure, the Court may vacate any judgment and grant a new trial if the interest of justice so requires. The decision of whether to grant a new trial is within the broad discretion of the district court. United States v. Dodd, 391 F.3d 930, 934 (8th Cir. 2004).
Williams asserts that he is entitled to a new trial based on ineffective assistance of counsel. In order to gain relief, Williams must establish both that his counsel's performance "fell below an objective standard of reasonableness," and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). The burden is on Williams to establish a "reasonable probability that, but for counsel's unprofessional errors, the result would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Counsel's performance is deficient if it falls outside of the "wide range of reasonable professional assistance," although there is a strong presumption that counsel's conduct falls within this broad spectrum. Strickland, 466 U.S. at 689. "Counsel's performance is deficient when it is less competent than the assistance that should be provided by a reasonable attorney under the same circumstances." Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir. 1990) (citing Strickland, 466 U.S. at 687). Attorney decisions are presumed to be reasonable, and "strategic choices made after thorough investigation of the law and facts . . . are virtually unchallengeable." Simmons v. Iowa, 28 F.3d 1478, 1481 (8th Cir. 1994) (quoting Strickland, 466 U.S. at 690).
2. Overall Allegations of Ineffective Assistance
Williams asserts that Harris's performance was deficient in a number of ways. Although many of Williams' allegations of specific instances of ineffective assistance of counsel are contained in his Motion to Dismiss, the Court will address all of Williams' allegations from both the Motion to Dismiss and the Motion for a New Trial when deciding his Rule 33 motion. Bracken v. Dormire, 247 F.3d 699, 703 (8th Cir. 2001) (noting that courts should broadly interpret pro se filings). Additionally, Williams asserted additional grounds for ineffective assistance of counsel after the Court appointed new defense counsel in October 2005.
The Court has reviewed each accusation and concludes that, even in totality, they are insufficient to warrant grant of a new trial. Williams fails to allege that many of Harris's alleged errors resulted in prejudice. However, even if Williams had alleged prejudice, the Court concludes that, in light of the overwhelming evidence against Williams, he cannot establish a reasonable probability that, but for Harris's actions, the outcome of his trial would have been different. The Court now addresses each allegation in turn.
3. Conflict of Interest Regarding Nunziata Williams
Williams claims that Harris was burdened by an actual conflict of interest due to her relationship with Government witness Nunziata Williams. "A criminal defendant's right to effective assistance of counsel includes the right to be represented by counsel free of conflict." Gumangan v. United States, 254 F.3d 701, 705 (8th Cir. 2001) (citation omitted). A defendant can knowingly, voluntarily, and intelligently waive the right to the assistance of an attorney unhindered by a conflict of interest. Id. at 705-06. Prejudice will be presumed when the defendant's counsel "actively represented conflicting interests and . . . an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692 (citation omitted). "The mere fact that a trial lawyer had previously represented a prosecution witness does not entitle a defendant to relief. The defendant must show that this successive representation had some actual and demonstrable adverse effect on the case, not merely an abstract or theoretical one." United States v. Flynn, 87 F.3d 996, 1001 (8th Cir. 1996) (citations omitted).
The Court conducted a pretrial hearing on the conflict of interest issue, during which Williams was informed of his rights and offered the opportunity to obtain new counsel. Williams voluntarily gave a knowing and intelligent waiver of any potential conflict of interest that Harris may have had as a result of her prior contact with Nunziata Williams. Williams' request for a new trial based on Harris's previous relationship with Nunziata Williams is denied.
Although Williams alleges that Harris failed to obtain a renewed pretrial release hearing on his behalf, he offers no evidence that this action affected the outcome of his trial or that, if she had obtained a hearing on this issue, there was a reasonable probability that the Court would have granted pretrial release. The original Detention Order demonstrates that Williams presented a risk of danger to the community, having at least two prior convictions for crimes of violence and a drug crime, and a great risk of nonappearance, having a recent prior conviction for fleeing from the police and facing a substantial time of imprisonment if convicted of the alleged offenses. [Docket No. 21]
5. Williams' Trial Clothing
Williams claims that Harris failed to provide him with civilian clothing for trial, forcing him to wear his prison uniform throughout trial. Before the start of trial, the Court offered Williams the option to wear civilian clothing from the Federal Public Defenders' office or the clothes that Williams was wearing when he was arrested. Despite the Court's advice that he change out of his prison uniform, Williams refused. Any prejudice to Williams resulting from wearing his prison uniform throughout trial is attributable to Williams' own refusal to change his clothing, not to any actions by Harris.
6. Quality of Relationship Between Williams and Harris
Williams makes a series of allegations related to his relationship with Harris both before and during trial.
i. Communication Regarding Plea Offer
According to Williams, Harris informed him of the Government's plea offer against his wishes; he asserts that he had already informed her that he would not accept a plea. Failure to inform a defendant of a plea offer may constitute unreasonable performance. United States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir. 1994). In telling Williams of the plea offer, Harris was fulfilling her duties as effective counsel. Her actions were not deficient.
ii. Alleged Breakdown in Communication
Williams also raises the argument that Harris was ineffective due to her failure to sufficiently communicate with him. Williams asserts that Harris did not take his calls for up to two weeks at a time. He claims that during their conversations, Harris would not discuss the issues that he wanted to discuss. Additionally, he alleges that Harris's co-counsel attended Williams' February 7, 2005, hearing in Harris's place, attempted to discuss her fee, and falsely stated that she would visit him in jail even if it were after 10:00 p.m. Williams also objects to the tone of a letter from Harris informing him that the Government had filed a superseding indictment against him. Finally, he objects overall that Harris's communications with him were too infrequent, both in-person and over the telephone.
According to the log at the Sherburne County Jail, between October 1, 2004, and October 31, 2005, Harris visited Williams at the Sherburne County Jail four times. Harris became counsel of record on October 19, 2004. [Docket No. 36] She visited Williams at the Sherburne County Jail twice on October 5, 2004; once on October 28, 2004; and once on December 12, 2004.
Williams also submits telephone records of his calls from the Sherburne County Jail to Harris's cellular and office telephones. He points out that between August 2004 and March 2005 there were thirteen telephone calls longer than five minutes. In total, Harris spoke with Williams by telephone for approximately six and one-half hours. She did not speak to Williams by telephone or at the jail after February 15, 2005, until March 21, 2005.
While Williams' math is correct, according to the telephone records, Williams and Harris were in constant contact, often speaking multiple times in one day. However, many of these telephone calls lasted for periods of time shorter than five minutes. Williams is also correct that the visitor and call logs show no contact after February 15 and before March 21, 2005. However, Harris did meet Williams in person on for arraignment, on February 28, 2005, and during trial, which started on March 10, 2005.
While Harris's communication with Williams may not have been optimal, it was sufficient. They were in frequent contact, though brief telephone conversations, until the last few weeks before trial. In any case, Williams is unable to show prejudice. See Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) ("Even if his attorneys' infrequent visits somehow rendered their performance 'deficient,' petitioner has not properly alleged that he was prejudiced by this deficiency. . . . [H]e has provided 'no explanation how additional meetings with his counsel, or longer meetings with his counsel, would have led to new or better theories of advocacy or otherwise would have created a 'reasonable probability' of a different outcome.' '[T]he mere fact that counsel spent little time with [petitioner] is not enough under Strickland, without evidence of prejudice or other defects.") (quoting Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir. 2005); Bowling v. Parker, 344 F.3d 487, 506 (6th Cir. 2003)).
Although a complete breakdown in communication between counsel and client may give rise to a presumption of ineffectiveness, United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988), Williams' allegations do not rise to that level. Harris vigorously presented Williams' defense, filing pretrial motions, presenting a strong opening statement on Williams' behalf, making appropriate objections and cross-examining witnesses until Williams discharged her, and presenting a strong closing argument as standby counsel. "It is well-established that the Sixth Amendment does not require an attorney and a client to have a meaningful attorney-client relationship or good rapport." United States v. Golden, 102 F.3d 936, 942 (7th Cir. 1996) (citation omitted). "The sixth amendment requires the court to satisfy itself that the defendant is adequately represented, not to speculate on the complex emotional relationship of a client and h[is] lawyer." Id. (citation omitted). The communication difficulties and disagreements between Harris and Williams outlined above are insufficient to demonstrate ineffective assistance of counsel.
The Court observed Harris's performance in this case and concludes that her representation of Williams was able and professional. Moreover, Williams does not allege that these alleged failures of communication resulted in prejudice. Additionally, on March 10, during the conflict of interest hearing, Williams explicitly informed the Court that he wished to continue with Harris's representation. Williams' stated desire to continue with Harris's representation is inconsistent with his claim that her pretrial actions led to a complete breakdown in communication.
b. Relationship During Trial
Williams also raises allegations regarding of his relationship with Harris during the trial, claiming that she was angry and hostile. He has submitted copies of notes exchanged between Harris and Williams. The notes appear to relate to Harris's and Williams' comments on particular witnesses and evidence presented during trial, as well as Williams' questions and comments on evidentiary rules and procedure. The notes are undated and out of context. It appears that Williams was displeased with Harris's failure to ask particular questions of particular witnesses. These notes do not demonstrate that Harris's performance was deficient. Trial strategy decisions, such as deciding which questions to ask a particular witness or which evidence to introduce, are "virtually unchallengeable." Bowman v. Gammon, 85 F.3d 1339, 1345 (8th Cir. 1996). Additionally, Williams does not allege any particular prejudice.
Williams further asserts that Harris failed to disclose evidence in a timely manner to Warren "Pat" Robinson, a private investigator hired by Williams' family. Specifically, Williams claims that, during trial, when the Government provided Harris a disk of a recorded telephone conversation between Defendant Williams and Nunziata Williams, she gave Robinson a disk with no data. Williams claims that this "[n]ondisclosure was so serious that there is a reasonable probability that the evidence would have produced a different verdict." This broad statement is insufficient to show prejudice. Williams does not mention the contents of the telephone conversation or how revelation of that information to Robinson could have led to a different verdict. Additionally, during the October 21, 2005, evidentiary hearing before the Court, Robinson testified that Harris did give him the disk containing the correct recording, but that he had not been able to figure out how to play the disk with the correct program until after trial. The Court finds that Harris did give the correct disk to Robinson in a timely manner.
Williams complains that Harris refused to give a closing argument on his behalf until ordered to so by the Court. Williams discharged Harris as his attorney prior to closing arguments and stated his intent to proceed pro se. Because Williams was representing himself, Harris had no obligation to prepare his closing argument for him. In any case, once ordered to do so by the Court, Harris complied and presented a closing argument that was professional and competent.
Williams' allegations regarding his relationship with Harris during trial do not rise to the level of a complete breakdown in communication between counsel and client. See United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988). Even if Williams and Harris did not have a good rapport, the Court concludes that Harris's performance was objectively competent. Having observed both Harris and Williams throughout the trial, the Court concludes that the differences that arose between Williams and Harris were likely to have arisen with any attorney. Moreover, Williams does not allege that Harris's actions resulted in specific prejudice.
7. Harris's Trial Preparation
a. General Pro Se Allegations
In his pro se filings, Williams makes a series of allegations that Harris failed to reasonably prepare for trial and investigate, failing to seek out witnesses before and during trial, that she told Williams "her intent to withhold evidence in the defendant's case," and that Harris failed to obtain "paperwork" from Williams' prior counsel. These "vague and conclusory" allegations are insufficient to demonstrate deficient performance. United States v. Robinson, 64 F.3d 403, 405 (8th Cir. 1995). Additionally, Williams alleges no particular prejudice from Harris's action.
In supplemental filings, made after the Court appointed counsel for Williams, Williams alleges specific allegations regarding Harris's trial preparation.
b. Specific Allegations Regarding Failure to Interview Witnesses
Harris did not interview any witnesses for Williams' trial.
[T]he decision to interview a potential witness is not a decision related to trial strategy. Rather, it is a decision related to adequate preparation for trial. Reasonable performance of counsel includes an adequate investigation of the facts of the case, consideration of viable theories, and development of evidence to support those theories.
Counsel has a duty . . . to investigate all witnesses who allegedly possessed knowledge concerning [the defendant's] guilt or innocence. . . . [I]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. Henderson v. Sargent, 926 F.2d 706, 711 (8th Cir. 1991) (citations omitted). However, there is "no per se rule that failure to interview witnesses constitutes ineffective assistance of counsel." Sanders v. Trickey, 875 F.2d 205, 209 (8th Cir. 1989).
Whether Harris's decision not to interview a particular witness was reasonable depends, in part, on the Court's finding of what Williams told Harris. "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland v. Washington, 466 U.S. 668, 691 (1984) (citation omitted). See also Cooley v. Nix, 738 F.2d 345, 347 (8th ...