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U.S. v. SMITH
December 2, 2002
UNITED STATES OF AMERICA
DAMEIA O. SMITH
The opinion of the court was delivered by: Jan E. Dubois, United States District Judge
Presently before the Court is defendant's Motion to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody Under
28 U.S.C. § 2255 (Document No. 123, filed September 4, 2002). For the
reasons set forth in this Memorandum, the Court denies defendant's
Motion.I. PROCEDURAL HISTORY
On August 3, 1999, defendant Dameia O. Smith ("Smith" or "defendant")
was indicted by a federal grand jury and charged with one count of
interference with interstate commerce by armed robbery, in violation of
18 U.S.C. § 1951 (Count One); two counts of use of a firearm in the
commission of a crime of violence, in violation of 18 U.S.C. § 924(c)
(Counts Two and Six); one count of unauthorized use of a government
computer in furtherance of a criminal or tortious act, in violation of
18 U.S.C. § 1030(a)(2)(B) and § 1030(c)(2)(B)(ii) (Count Three);
(c) one count of solicitation to commit a crime of violence, in violation
of 18 U.S.C. § 373 (Count Four); one count of attempted murder of a
federal witness, in violation of 18 U.S.C. § 1512(a)(1)(C) (Count
Five); and one count of intimidation of a federal witness, in violation
of 18 U.S.C. § 1512(b)(3) (Count Seven).
The case was tried before a jury from January 18 through 31, 2000. The
jury returned a verdict of guilty on Count Three and not guilty on Count
Seven. The jury did not reach a verdict on Counts One, Two, Four, Five
and Six and the Court declared a mistrial with respect to
those counts. On May 11, 2000, following a second trial, the jury returned
a verdict of guilty on the remaining counts, Counts One, Two, Four, Five,
Defendant was sentenced, inter alia, to a term of imprisonment of 481
months on August 24, 2000. The Third Circuit affirmed the conviction and
sentence in an unreported opinion dated July 9, 2001, see United States
v. Smith, 265 F.3d 1057 (Table, No. 00-2557) (3d Cir. 2001); defendant's
petition for writ of certiorari to the Supreme Court of the United States
was denied on October 29, 2001. See Smith v. United States, 122 S.Ct. 503
This case arises out of an armed robbery and defendant's unauthorized
use of a government computer during defendant's employment as a tax
examining clerk by the Internal Revenue Service ("IRS") in an effort to
locate and murder the victim of the robbery to prevent the victim from
testifying at defendant's robbery trial. The facts of the case, viewed in
the light most favorable to the verdict winner, are summarized below.
On September 6, 1998, Smith robbed Marie Tate ("Tate"), a shift
supervisor at a Kentucky Fried Chicken ("KFC") in Philadelphia,
Pennsylvania, of $1,887.66 in cash receipts from KFC as she was
attempting to make a deposit at a bank in Bala Cynwyd, Pennsylvania. A
"shiny, silver" firearm was used in the robbery. Tate knew Smith through
a co-worker at KFC, Faiona Hagigal ("Hagigal"), who was one of Smith's
girlfriends and the mother of his child.
Approximately two weeks after Smith robbed Tate, the Lower Merion
Township Police Department charged Smith with armed robbery. The arrest
was based on evidence that Smith used his own ATM card at the location of
the robbery nine (9) minutes before the robbery occurred and bank
surveillance cameras recorded Smith "wandering around the bank" and then
robbing Tate. Resp.'s Br. at 4. In addition, Tate, in an interview with
investigators several days after the robbery, gave a description of the
robber that was consistent with what Smith was seen wearing on the
surveillance tape and stated that she recognized the robber's voice as
that of Smith.
At the time the state robbery charges were filed, authorities provided
Smith a copy of a probable cause affidavit which referred to an interview
with Tate. Shortly thereafter, Smith told another one of his girlfriends
and co-worker, Shaquiyyah Jenkins ("Jenkins"), that he had been charged
with a robbery and that if Tate was able to identify him in court,
"something might happen to her." Id.
As a tax examining clerk for the IRS, Smith had access to the IRS's
Integrated Data Retrieval System ("IDRS"), a computer database which
includes tax and personal information for all taxpayers. The IDRS may
only be used by authorized IRS employees for official government tax
administration purposes. In June 1998, Smith unlawfully used the IDRS to
obtain personal information on Jenkins; this unauthorized access
triggered an internal IRS investigation and eventually led to a criminal
referral by the IRS to the U.S. Department of the Treasury's Inspector
General for Tax Administration ("TIGTA") in November 1998. TIGTA is a
federal law enforcement agency charged with investigating and seeking
prosecution of IRS employees who commit federal crimes.
Tate testified against Smith at a preliminary hearing in the Montgomery
County Court of Common Pleas on December 14, 1998. At that hearing,
Smith's next court appearance was scheduled for February 26, 1999. On
January 18, 1999, Smith told Linette Joseph ("Joseph"), another one of
his girlfriends, that "he had to go to court on February the 26th, 1999,
for robbing a girl at an ATM machine" and that "he was going to kill
— kill the girl before they go to court." Trial Transcript, Jan.
24, 2000, at 161 (Testimony of Linette Joseph). At this time, Smith owned
a black Smith & Wesson .380 semi-automatic pistol which he showed to
both Joseph and Arthur Hart ("Hart"), a friend of Joseph's.
On January 25, 1999, Smith drove with Hart from Baltimore, Maryland, to
Tate's home. Smith explained to Hart that the person who lived in the
home was a witness against him in a robbery case, handed Hart the .380
semi-automatic pistol, and repeatedly asked Hart to go into the house and
shoot Marie Tate (and her mother if she was home). Despite Smith's
persistent efforts to persuade Hart to kill Marie Tate, Hart refused and
Smith's subsequent urging of Hart to reconsider failed. Later that same
evening, Smith told Hart that, because Hart refused to kill Tate, Hart
would have to "help" Smith rob a bank; Hart agreed to Smith's demands and
participated in an attempt to rob a bank outside of Philadelphia on
January 27, 1999. This attempt failed, but Hart and another individual
were captured by police shortly thereafter and immediately began
cooperating with authorities.
By January 29, 1999, a second federal investigation by TIGTA into
Smith's involvement in the KFC robbery and his unauthorized use of an IRS
computer had begun. Soon afterwards, federal agents determined that Smith
unlawfully used the IDRS to obtain Tate's home address and began to
interview witnesses in connection with that crime and the KFC robbery.
On February 5, 1999, Smith was arrested in Baltimore and charged with
illegal possession of a weapon. The firearm taken from Smith's car by
police on February 5, 1999, was the same gun that Smith handed to Hart in
his unsuccessful attempt to convince him to murder Tate on January 25,
In his habeas motion, Smith claims relief on the following grounds: (1)
his trial counsel was constitutionally ineffective because he recommended
that Smith not testify at trial; (2) his separate convictions for using a
firearm in the course of two violent crimes should be set aside because
the government failed to produce the gun allegedly used in the armed
robbery, and the other firearm introduced in evidence in connection with
the attempted murder charge was seized by police before that crime was
committed; (3) his conviction for attempted murder under the federal
witness tampering statute should be set aside because Tate was not a
federal witness until after the alleged attempted murder; and (4) the
government lacked jurisdiction to prosecute the armed robbery. The Court
will address these arguments in turn.
A. Claimed Ineffective Assistance of Counsel — Counsel's
Recommendation that Defendant Not Testify at Trial
The Court, in evaluating whether counsel's performance fell below an
objective standard of reasonableness, must determine "whether counsel's
assistance was reasonable considering all the circumstances." Id. at
688. In this analysis, the Court must be "highly deferential," and "must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action `might be considered sound trial strategy.'" Id. at 689. The Court
must not use the benefit of hindsight to second-guess strategic decisions
made by counsel unless they are unreasonable. Id. at 690.
As to the Strickland prejudice prong, the Court's inquiry must focus on
whether defendant has demonstrated "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id.
Smith claims that his trial counsel was ineffective for recommending to
him that he not testify at trial. Smith asserts that he "wanted to take
the stand, but [his] lawyer said it was a bad idea." Pet.'s Mtn. at 5.
For the reasons set forth below, the Court denies Smith's claim of
ineffective assistance of counsel on this ground.
"It is well established that the right of a defendant to testify on his
or her behalf at his or her own criminal trial is rooted in the
Constitution." United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir.
1995). "The right is personal and can be waived only by the defendant,
not defense counsel." United States v. Leggett, 162 F.3d 237, 245 (3d
Cir. 1998), cert. denied, 528 U.S. 868 (1999) (citing Pennycooke, 65 F.3d
at 10). When a defendant chooses not to testify, the decision is "an
important part of trial strategy best left to the defendant and counsel"
and not something that should be interfered with by the court.
Pennybrooke, 65 F.3d at 11. Although it is the duty of defense counsel to
inform defendant of his right to testify, the decision itself is
ultimately that of the defendant. Id. at 12; see also Jones ...