Criminal Practice – No Sentencing Relief After Government Misconduct

U.S. v. Dyess (Lawyers Weekly No. 13-01-0922, 30 pp.) (Shedd, J.) No. 11-7335, Sept. 16, 2013; USDC at Charleston, W.Va. (Faber, J.) 4^th Cir.

Holding: Despite government misconduct in the investigation and prosecution of a large-scale drug conspiracy, including the leading investigator’s affair with defendant’s then-wife and subornation of perjury, the 4^th Circuit, after remand of the case because of the government misconduct, denies post-conviction relief and upholds defendant’s life sentence on his guilty plea to conspiracy to distribute cocaine, cocaine base and marijuana.

Defendant contends his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because the indictment did not allege a specific drug quantity. He argues that because his conviction and sentence did not become final until after Apprendi, the superseding indictment’s failure to supply a drug amount limits his maximum sentence to 20 years. Defendant raised his Apprendi argument on remand to the district court and raised it in his brief to us in the earlier appeal. In our earlier decision, we specifically noted that defendant argued for resentencing on the basis of the intervening decision in Apprendi, that the district court denied this relief and that we affirmed the convictions and sentences. This conclusion plainly bars defendant from raising this claim in his present motion under 28 U.S.C. § 2255.

Even assuming defendant could raise this claim, under the facts of this case, it still fails on review for plain error. A cursory review of the record reveals the conspiracy charged here indisputably involved quantities of cocaine and cocaine base far in excess of the minimum amounts necessary to sustain the sentences, and any Apprendi error does not seriously affect the fairness, integrity or public reputation of judicial proceedings so far as to warrant notice.

The court also rejects defendant’s claim that his trial counsel was ineffective for failing to object to the lack of drug quantity in the indictment and for failing to discover the lead investigator’s misconduct.

While defendant subjectively claims he would have gone to trial had he known of the relationship between the investigator and his wife, objectively a reasonable defendant would have pled guilty and offered substantial assistance.

We affirm the district court’s denial of defendant’s § 2255 motion.

Dissent

Gregory, J., dissenting as to part III: Even though the majority holds that defendant cannot raise his Apprendi claim in his habeas petition, it offers an analysis of the merits of the claim. When a sentence violates Apprendi because the underlying indictment fails to allege drug quantities sufficient to raise the maximum sentence, a defendant’s substantial rights are violated. Here, the indictment did not allege a drug quantity. As the trial judge indicated, defendant’s maximum sentence should therefore have been 20 years, not life.

This is far from being a normal case. The trial judge, who had been on the bench for some 34 years before he passed away, observed on remand that the case presented questions of ethical conduct and the appearance of impropriety unprecedented in that court’s experience. The lead AUSA who prosecuted this case also managed case agents and witnesses who allegedly (and by their own admissions) stole drug proceeds, suborned perjury, lied under oath and tampered with witnesses. The lead investigator made a full-fledged and successful effort to woo defendant’s wife, even marrying her after defendant was sentenced. He literally crafted exhibits to illustrate drug quantity that the wife and he referred to while giving testimony at defendant’s sentencing hearing. On remand, the lead investigator claimed his Fifth Amendment right to silence. We have never truly learned the extent to which his misconduct tainted the evidence against defendant. Given that defendant’s admissions took place in the context of rampant government wrongdoing, they should not prevent us from noticing Apprendi error. While we may have affirmed the district court’s finding that sufficient untainted evidence remained to sustain the conviction, it is undeniable that government misconduct in this case severely weakened the evidence against defendant.

The best way for the prosecution to repair the damage to the integrity and reputation of judicial proceedings would have been to concede to re-sentencing in a conciliatory effort to condemn this mess to history.

I respectfully dissent.