Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Chappell

United States District Court, D. Minnesota

November 14, 2017

United States of America, Plaintiff,
v.
Arthur James Chappell, Defendant.

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         In May 2009, a grand jury returned an indictment against Defendant, charging him in one count with sex trafficking of a minor. A jury found him guilty. The Court sentenced Defendant to 336 months' imprisonment. He appealed, and the Eighth Circuit reversed and remanded for a new trial. United States v. Chappell, 665 F.3d 1012 (8th Cir. 2012).

         After the case was remanded, a grand jury returned a superseding indictment against Defendant, charging him in 11 counts with sex trafficking of a minor, possession of child pornography, conspiracy to possess child pornography, conspiracy to produce child pornography, enticement to travel to engage in prostitution, transportation with intent to engage in prostitution, conspiracy to entice to travel to engage in prostitution, and conspiracy to transport with intent to engage in prostitution. A jury found him guilty on each count. The Court sentenced Defendant to a total term of imprisonment of 336 months. He appealed, and the Eighth Circuit affirmed. United States v. Chappell, 779 F.3d 872 (8th Cir.), cert. denied, 136 S.Ct. 281 (2015).

         Approximately 11 months after the Supreme Court denied his petition for a writ of certiorari, Defendant filed a motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255 (2012). For the reasons set forth below, the Court vacates his convictions and sentences on counts 8, 9, and 10 of the superseding indictment.

         I. Defendant's motions

         Defendant filed several motions after he filed his § 2255 motion. The Court addresses them before considering the § 2255 motion.

         A. Motion for sanctions [Docket No. 454]

         The government sought an extension of time to respond to Defendant's § 2255 motion. Asserting that the government misrepresented that it and Defendant's former attorney were in the process of exchanging information about Defendant's claims, Defendant moved for sanctions. According to an e-mail exchange between the government and Defendant's former attorney, the attorney initially indicated that he did not plan on responding to the § 2255 motion and that he would read the motion again and consider a response. Later, the attorney indicated that he preferred to answer any questions at a hearing, relayed certain memories of the trial, and stated he will provide an affidavit if the government cited authority to support its assertion that an affidavit is required. Having reviewed the exchange between the government and Defendant's former attorney in the days immediately preceding the government's request for an extension of time, the Court denies Defendant's motion for sanctions.

         B. Motion for reconsideration [Docket No. 472]

         The Court denied Defendant's request for a transcript under 28 U.S.C. § 753(b) and (f) (2012). After seeking leave to proceed in forma pauperis, Defendant sought reconsideration of the denial of his request for a transcript. The Court construed his motion for reconsideration as a renewed motion for the transcript and denied the renewed motion. He filed a motion for reconsideration. He subsequently obtained a copy of the transcript. The Court denies his motion for reconsideration.

         C. Motion to take his § 2255 motion out of abeyance [Docket No. 475]

         The Court granted Defendant's motion to hold his § 2255 motion in abeyance until the completion of his transfer to another institution. After his arrival at the institution, Defendant moved to take his § 2255 motion out of abeyance. The Court grants the motion.

         D. Motion to supplement [Docket Nos. 476 and 477]

         Defendant moved to supplement his § 2255 motion with a copy of a transcript of a hearing that took place on September 18, 2012. He sought to correct misstatements in his § 2255 motion and to cite portions of the record. The Court grants Defendant's motion to supplement.

         E. Motion for appointment of a magistrate judge [Docket No. 479]

         Defendant moved for the appointment of a magistrate judge to review his § 2255 motion. The Court denies the motion.

         F. Section 2255 motion [Docket No. 448]

         Section 2255 “provides a remedy for jurisdictional and constitutional errors.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc). “Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; ‘an error of law does not provide a basis for collateral attack unless the claimed error constituted “a fundamental defect which inherently results in a complete miscarriage of justice.”'” Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).

         Defendant made several claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel “may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).

         To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that his “counsel's representation fell below an objective standard of reasonableness” and (2) “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. In assessing the reasonableness of counsel's conduct, a court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.

         “[R]eview is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional issue on direct appeal.” Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013). “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). “When appellate counsel competently asserts some claims on a defendant's behalf, it is difficult to sustain [an] ineffective assistance claim based on allegations that counsel was deficient for failing to assert some other claims.” Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006). “[A]bsent contrary evidence, ‘we assume that appellate counsel's failure to raise a claim was an exercise of sound appellate strategy.'” United States v. Brown, 528 F.3d 1030, 1033 (8th Cir. 2008) (quoting Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998)); see Gray v. Norman, 739 F.3d 1113, 1118 (8th Cir. 2014) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” (quoting Link, 469 F.3d at 1205)).

         1. Ground one

         Defendant asserted that he received ineffective assistance of counsel because his attorney failed to raise certain arguments regarding voir dire in a post-trial motion or on direct appeal: (1) that the Court conducted voir dire in a manner that prevented Defendant from obtaining information about potential jurors that would allow him to intelligently exercise his peremptory strikes; (2) that the Court effectively deprived him of eight peremptory strikes by requiring him to exercise the strikes before he challenged potential jurors for cause; (3) that the Court's denial of his for-cause challenges denied him a fair and impartial jury; and (4) that the Court refused to allow him to confer with stand-by counsel during voir dire.

         The Court thoroughly questioned prospective jurors. Some potential jurors expressed concerns about viewing graphic depictions of female genitalia. They nevertheless indicated their ability to serve as jurors. The Court gave Defendant, who represented himself during voir dire, an opportunity to submit additional questions, and the Court posed additional questions to the prospective jurors. The Court asked the government and Defendant whether there was “[a]nything else” before the Court gave the prospective jurors a break and the parties exercised their peremptory strikes. Each party responded “no.” Outside the presence of the prospective jurors, the Court addressed an issue about a juror being called out of order. The jury panel returned, and the Court indicated that the parties were exercising their peremptory strikes. The Court then directed the potential jurors to leave the courtroom. After clarifying the number of peremptory strikes that each side could exercise, the Court asked the government and Defendant whether they passed the panel for cause. The government did. Defendant, after consulting with standby counsel, did not. The Court heard his for-cause challenges and denied them.

         Defendant has not demonstrated that his attorney's representation fell below an objective standard of reasonableness based on the attorney's failure to assert the issues noted above in a post-trial motion or on direct appeal. Nor has he shown any prejudice from the alleged deficiencies. See United States v. Mann, 685 F.3d 714, 719 (8th Cir. 2012) (stating that trial judges have broad discretion in determining how to conduct voir dire); United States v. Thompson, 450 F.3d 840, 843 (8th Cir. 2006) (“[A] defendant's ‘exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause.'” (quoting United States v. Martinez-Salazar, 528 U.S. 304, 317 (2000)));[1] United States v. Moore, 149 F.3d 773, 779 (8th Cir. 1998) (“When a prospective juror is challenged for cause, the trial court's ruling ‘ought not be set aside by a reviewing court, unless the error is manifest, ' that is, unless the for-cause ruling is manifestly wrong on the face of the trial record.” (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)); Cooley v. Nix, 991 F.2d 801 (8th Cir. 1993) (per curiam) (unpublished table decision) (“[A] trial court necessarily has the discretion to place restrictions on standby counsel's in-court role in cases of pure self-representation.”). The Court rejects ground one.

         2. Ground two

         Defendant asserted that he received ineffective assistance of counsel because his attorney failed to assert the following arguments in a post-trial motion or on direct appeal: (1) that Defendant's right to represent himself was denied because a sidebar took place without him or his standby counsel during voir dire; and (2) the Court's refusal to allow standby counsel to speak with Defendant during voir dire infringed on Defendant's right to represent himself.

         After Defendant and the government exercised their peremptory strikes, the Court read the names of the individuals selected to serve as jurors. The Court asked the parties whether they agreed. Defendant did not; the government did. The Court returned the list on which the parties had exercised their strikes and asked them to submit a note about the alleged error. The government and Defendant conferred. The government asked to approach to “advise the Court of [their] conversation . . . at sidebar.” Defendant did not object. A short sidebar took place.

         At the sidebar, the government indicated that Defendant authorized it to speak to the Court and that Defendant mistakenly struck a juror because he was confused by the numbering of jurors. The Court noted that the strike was an early one and that it might have affected the government's strikes, raised the possibility of allowing Defendant to amend his strike, and directed to government to check its notes and to consider the amendment to Defendant's strike. The sidebar ended.

         After conferring with Defendant, the government asked that the jury be excused to facilitate resolution of the issue. The Court excused the jurors from the courtroom and asked the government whether it had communicated to Defendant the Court's question about amending his strikes. The government responded that it had not and that it determined Defendant's exercise of his strikes had affected its subsequent strikes. The Court turned to Defendant, who explained that he was confused by the numbering of jurors and that he mistakenly struck one juror. After hearing Defendant's explanation, the Court decided that no amendment to the strikes was warranted.

         Later, after the Court issued preliminary instructions to the jurors and excused them for the day, Defendant complained about the sidebar that took place during voir dire. The government responded that Defendant had granted permission to communicate Defendant's issue to the Court at sidebar. Defendant maintained the government represented it was going to inform the Court of the need to speak outside the presence of the jury. The Court discerned no need to take action on the issue. The Court did recognize Defendant's right to participate in the trial as a defendant and as his own representative:

So if we have to have what would be sidebars by sending the jury out, I guess we can do that. Every once in a while, there's just something that would be a lot more efficient if we could do it this way, but there's no need to. And if you consent, you consent. If you don't, you don't, because you do have a right to participate in every aspect of the trial both as a defendant and as a lawyer.
Of course, the defendant doesn't have a right to come to sidebars to discuss legal matters, but the lawyer does, and you can't really come up here to sidebar.

         As to Defendant's contention that he received ineffective assistance of counsel because his attorney failed to raise the issue of the sidebar that took place without him or his standby counsel in a post-trial motion or on direct appeal, Defendant has not shown that his attorney's performance fell below an objective standard of reasonableness. Nor has he shown any prejudice. See United States v. Ortuno-Garcia, 556 F. App'x 636, 637-38 (9th Cir. 2014); Hereford v. Warren, 536 F.3d 523, 530 (6th Cir. 2008); United States v. Carmichael, 232 F.3d 510, 518 (6th Cir. 2000); United States v. Earley, 746 F.2d 412, 417-18 (8th Cir. 1984). The same is true of Defendant's contention that he received ineffective assistance of counsel because his attorney failed to raise in a post-trial motion or on direct appeal the Court's refusal to allow standby counsel to speak with Defendant. See Cooley, 991 F.2d 801. The Court rejects ground two.

         3. Ground three

         Defendant asserted that he received ineffective assistance of counsel because his attorney failed to seek the suppression of certain evidence before his second trial, in a post-trial motion, or on direct appeal. According to Defendant, he moved to suppress the evidence before his first trial, and the government agreed not to use the evidence in the first trial. After the court of appeals remanded the case and a superseding indictment was returned against Defendant, he moved again to suppress the evidence. He asserted that his attorney subsequently conceded that the suppression issue had been resolved as part of the proceedings before the first trial. The government responded that Defendant's attorney “did not litigate the basis for the search of the computers” and that Defendant's attempt to suppress the evidence would not have succeeded because a search warrant authorized the seizure and search of the computers. Defendant has not demonstrated that his motion to suppress would have succeeded. Defendant has not demonstrated that he received ineffective assistance of counsel. See United States v. Johnson, 707 F.2d 317, 323 (8th Cir. 1983). The Court rejects ground three.

         4. Ground four

         Defendant asserted that he received ineffective assistance of counsel with respect to his attempt to suppress evidence obtained as a result of a search of a hotel room in July 2007. According to Defendant, his attorney failed to interview or to call witnesses at the suppression hearing, refused to allow Defendant to testify at the suppression hearing, and failed to seek suppression of evidence obtained as a result of the search of computers and cameras seized during the search of the hotel room. Defendant also maintained he received ineffective assistance of counsel because his attorney failed to contest the entry and search of the hotel room in a post-trial motion or on direct appeal.

         At the suppression hearing, the government called three witnesses. Each was cross-examined. After the three witnesses testified, Defendant's attorney stated that Defendant himself wanted to testify. Defendant's attorney asked for time to consult with Defendant about testifying. Defendant's attorney proceeded to call one of the three witnesses to testify. After the witness testified, a break took place. After the break, Defendant's attorney asked that Defendant's motion for hybrid representation be addressed before the attorney decided whether to call Defendant to testify. The magistrate judge denied the motion for hybrid representation and asked whether Defendant was going to call any witnesses. Defendant and his attorney conferred. Defendant's attorney indicated Defendant wanted to represent himself. After an extensive colloquy with Defendant, the magistrate judge determined that Defendant was not willing to give up his right to an attorney and that Defendant would not be allowed to represent himself. The magistrate judge asked again whether Defendant had any witnesses to call. Defendant's attorney responded negatively. The hearing turned to Defendant's motion regarding a violation of Rule 5 of the Federal Rules of Criminal Procedure. Defendant's attorney called Defendant himself as the first witness to testify. The attorney asked whether Defendant knew he did not have to testify. Defendant responded, “Yes.” The attorney asked whether Defendant “want[ed] to take the stand with respect to this issue concerning Rule 5.” Defendant responded, “Five, nine and ten.”

         After the suppression hearing, Defendant submitted a memorandum in support of his request to suppress evidence seized during the search of the hotel room. He claimed that the search exceeded the scope of his consent to search. The Court denied the motion.

         An individual who Defendant asserted should have testified at the suppression hearing did testify at trial. Based on the individual's testimony about how police officers entered the hotel room, Defendant asked that the suppression hearing be reopened. Defendant's attorney stated that two investigators worked on the case and that the defense was unable to locate the individual before the suppression hearing. During a discussion of the suppression hearing, Defendant's attorney stated that Defendant testified at the suppression hearing about how the police obtained his consent to search. The government questioned whether Defendant testified at the suppression hearing. Defendant's attorney then stated that Defendant corrected him, that he told Defendant not to talk about threats because nobody would believe Defendant, and that Defendant talked about the entry into the hotel room but not about being threatened. The Court questioned whether Defendant had testified at the suppression hearing. Defendant's attorney expressed doubts and recognized that Defendant testified about issues different from suppression. After determining that Defendant had not testified in support of his motion to suppress, the Court heard Defendant's testimony. Questioned by the government about his “opportunity to bring a witness forward who was in that hotel room . . . at the earlier motions hearing, ” Defendant responded, “You can't bring a witness forward if you don't have contact with the witness. And we have been trying to contact these witnesses for a very --” After Defendant testified, the Court discerned no need to reopen the suppression hearing. If additional trial testimony called into question the decision on Defendant's motion to suppress, the Court would consider the issue in light of the trial testimony. After the parties rested, the Court heard brief arguments from the parties about the motion to suppress evidence obtained as a result of the search of the hotel room and declined to alter the previous decision.

         Even if Defendant's attorney had been able to contact the witnesses identified by Defendant, called them to testify at the suppression hearing, and called Defendant himself to testify at the suppression hearing, Defendant has not demonstrated that his motion to suppress would have succeeded. His attorney did argue that the search of the hotel room exceeded to scope of Defendant's consent. The Court ultimately heard from Defendant himself and some of the witnesses who he claimed should have testified at the suppression hearing. Defendant has not shown that his attorney performed deficiently, and Defendant has not demonstrated any prejudice from the alleged deficiencies. See Id. The Court rejects ground four.

         5. Ground five

         Defendant claimed that he received ineffective assistance of counsel because his attorney did not petition the Court to compel an individual to testify at his trial after the individual's attorney indicated the individual would invoke the privilege against self-incrimination. Defendant also asserted that his attorney was ineffective because the attorney failed to raise the argument in a post-trial motion or on direct appeal. According to Defendant, the individual did not face a real danger of prosecution because the statute of limitations had expired and because the individual could have asserted a duress defense.

         “The defendant's right to compulsory process does not include the right to compel a witness to waive his or her Fifth Amendment privilege against self incrimination.” United States v. Robaina, 39 F.3d 858, 862 (8th Cir. 1994). Defendant's assertion that the individual did not face future prosecution because charges against the individual would be untimely has no merit. See 18 U.S.C. § 3299 (2012); United States v. Coutentos, 651 F.3d 809, 817-18 (8th Cir. 2011). That the individual might be able to assert a duress defense does not deprive the individual of the privilege against self-incrimination. See United States v. Zaragoza-Moreira, 780 F.3d 971, 981 (9th Cir. 2015). The failure to petition the Court to compel the individual to testify did not constitute ineffective assistance of counsel. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.