accessed the IDRS without authorization and without a
legitimate government purpose; this time he utilized the IDRS to obtain
Tate's home address and other personal information.
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
Under Strickland v. Washington,
claim of ineffective assistance of counsel at
trial, a convicted defendant must demonstrate that his counsel's
performance (1) "fell below an objective standard of reasonableness," id.
at 688, and (2) that counsel's deficient performance prejudiced the
defendant. Id. at 692. As articulated by the Supreme Court in
Strickland, "[t]he benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having
produced a just result." Id. at 686. The ultimate focus of the Strickland
inquiry is always on the "fundamental fairness of the proceeding whose
result is being challenged." Id. at 696.
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 v. Barnes,
463 U.S. 745, 751 (1983) ("[T]he accused has the ultimate authority to
make certain fundamental decisions regarding the case, [including] as to
whether . . . to testify in his or her own behalf.").
Where a defendant is aware of and understands his right to testify,
however, counsel's alleged failure to call the defendant to the stand
does not constitute ineffective assistance of counsel. See United States
v. Castillo, 14 F.3d 802, 804-05 (2d Cir. 1994) (concluding that
defendant was not denied his right to effective assistance of counsel
where defendant had been advised of his right to testify in the first
but was dissuaded from testifying by counsel in the second
trial); United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (holding
that defense counsel's decision not to call defendant to the stand,
despite defendant's repeatedly expressed desire to testify on his own
behalf, was not ineffective assistance of counsel, but was a "reasonable
tactical decision" by counsel not to "subject [defendant] to all of the
risk attendant on cross-examination"); United States v. Aguirre,
912 F.2d 555, 562-63 (2d Cir. 1990) (ruling that there was no ineffective
assistance of counsel where counsel "informed [defendant] that the
decision [to testify] ultimately was his, that [defendant] listened
`intently,' and that he `assented' to the advice").
To prevail on an ineffective assistance claim premised on trial
counsel's alleged refusal to allow a client to testify, the petitioner
must do more than just assert that his lawyer refused to allow him to
testify. "It is extremely common for criminal defendants not to testify"
and a defendant merely claiming that he was denied the right to testify
in his own defense is thus "too facile a tactic to be allowed to
succeed." Underwood v. Clark, 939 F.2d 473, 475 (7th Cir. 1991). "[I]n a
subsequent collateral attack on the conviction the defendant must produce
something more than a bare, unsubstantiated, thoroughly self-serving, and
none too plausible statement that his lawyer (in violation of
professional standards) forbade him to take the stand." Id. at 476.
In this case, there is no evidence of record that Smith desired to
testify on his own behalf and was prevented from doing so by his lawyer.
The issue was first raised in the presence of the Court during a sidebar
conference after the government rested in the first trial, as follows:
"THE COURT: . . . Before we let [the jury] go, we've got to tell
them what we're going to do tomorrow.
DEFENSE COUNSEL: We're either going to put on a case or not and if
we don't, then we'll go to closing.
THE COURT: Are you going to offer any evidence or not?
DEFENSE COUNSEL: I don't know. I've got to — if my [client]
— my [client] says he wants to testify, but I would like to spend
the night trying to convince him not to testify. That's my humble
opinion, but he's a man of his own opinion and I would just like to have
him colloquied that if he's going to testify then it's against my advice
. . ."
Trial Transcript, January 24, 2000, at 187-88. After a weekend break in
the trial, the defense introduced defendant's bank statements into
evidence and then rested. Smith did not take the witness stand in the
first trial. See Trial Transcript, January 27, 2000, at 54.
During the retrial of May 2000, defense counsel suggested, in the
presence of defendant, that the Court determine on the record whether or
not the defendant wanted to testify. See Trial Transcript, May 10, 2000,
at 111, 116-17. Relying on the Third Circuit's decision in Pennybrooke,
which concluded that "it is inadvisable for a court to question a
defendant directly about his or her waiver of the right to testify,"
Pennybrooke, 65 F.3d at 11, the Court declined to conduct a colloquy on
Smith's decision not to testify. Trial Transcript, May 10, 2000, at 117.
However, the Court did make Smith fully aware of his constitutional right
to testify in his own defense:
"THE COURT: . . . The defendant has certain rights during the trial
and I won't enumerate all of them but one of them is the right to
testify or to refuse to testify . . . These are issues on which
you should have full and frank discussion with your attorney and then
you should decide, based on what your attorney tells you and what
you think is right under all the circumstances after hearing from
your attorney and I'm not going to advise you one way or another."
Id. at 117-18. Following this statement by the Court and brief
testimony from another witness, defendant rested without testifying at
the second trial. See id. at 129-30.
The record clearly demonstrates that Smith was made aware of his right
to testify and chose not do to so. It is also undisputed that Smith and
his attorney were instructed that the decision whether or not to testify
was Smith's alone. That is all the law requires. Smith has failed to
overcome the presumption that counsel's advice that Smith not take the
stand was "sound trial strategy." Strickland, 466 U.S. at 689. Smith's
claim of ineffective assistance of counsel on this ground is simply a
"barebones assertion," insufficient to warrant habeas relief. Underwood,
939 F.2d at 476.
B. Defendant's Challenges to His Separate Convictions for Using a
Firearm in the Course of Two Violent Crimes
Smith claims that, although he was convicted of two separate counts
(Counts Two and Six) of using a firearm in the commission of a crime of
violence — each involving a separate gun — the government
recovered only one of the firearms. It is correct that the black .380
semi-automatic pistol Smith handed to Hart in the attempted murder of
Tate was the only gun the government offered in evidence at trial, and
that the "shiny, silver" gun used by Smith in the Tate robbery was never
recovered. Because the "shiny, silver" firearm was not produced, Smith
contends that his conviction for use of that firearm in connection with
the robbery must be set aside.
Smith also alleges that the .380 semi-automatic pistol allegedly used
in the attempted murder on January 25, 1999, was actually recovered by
the Baltimore police on January 5, 1999, twenty (20) days before the
attempted murder. That argument is based on the fact that the tag on the
firearm in the custody of the Baltimore police was dated January 5,
1999. Smith failed to raise these firearm claims on direct appeal of his
conviction and sentence.
A motion under 28 U.S.C. § 2255 cannot be used as a substitute for
a direct appeal. See Government of the Virgin Islands v. Nicholas,
759 F.2d 1073, 1074 (3d Cir. 1985). "The type of claim cognizable under
[a § 2255] motion is extremely limited." Eisenfelder v. United
States, 871 F. Supp. 793, 796 n. 8 (M.D.Pa. 1994). A petitioner is barred
from collaterally attacking his sentence pursuant to § 2255 so far as
that attack is based on issues that could have been, but were not, raised
on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63
(1982); United States v. Essig, 10 F.3d 968, 978 (3d Cir. 1993). To avoid
the bar, defendant must prove both (1) "cause" excusing his failure to
raise the issues earlier, and (2) "actual prejudice" resulting from his
failure to do so. See Frady, 456 U.S. at 168; Essig, 10 F.3d at 978-979.
"Cause" must be objective — something external to the petitioner,
something that cannot be fairly attributed to him. See Coleman v.
Thompson, 501 U.S. 722, 751 (1991); Murray v. Carrier, 477 U.S. 478, 488
(1986). The "actual prejudice" must be so substantial that the integrity
of the entire trial is infected. Frady, 456 U.S. at 169-70.
West Pageh 427
Therefore, unless petitioner can show "cause" for his procedural default
and "actual prejudice" from it, these issues are waived. Id. at
Smith could have, but did not, raise his firearm claims on direct
appeal. In his motion, he provided no explanation for his failure to raise
these claims. Accordingly, the Court concludes that Smith has not
satisfied his burden of showing cause that excuses this procedural
default, and the firearm claims are deemed to be waived. See id. at
162-63; Essig, 10 F.3d at 979. Notwithstanding this conclusion, the Court
will address defendant's firearm claims on the merits in turn.
1. Defendant's Argument That His Conviction for Using a Firearm in
the Course of a Robbery Should Be Set Aside Because the Government
Failed to Produce the Gun Allegedly Used in That Crime
This firearm issue raised by defendant was rejected by the Third
Circuit in United States v. Beverly, 99 F.3d 570 (3d Cir. 1996). In that
case, the defendant was charged with two counts stemming from an armed
robbery of a postal letter carrier. On appeal, the defendant challenged
the sufficiency of the evidence to convict him of using a firearm in the
commission of a violent crime — the "chrome-plated" revolver
allegedly used by the defendant was never recovered and the only evidence
presented regarding the firearm charge was the testimony of the robbery
victim. Id. at 571. The victim testified that he saw the gun on two
different occasions — when the defendant first stopped him and
while riding in the back seat of the defendant's car — and that he
was in "close proximity to [the defendant] while [defendant] brandished
the weapon." Id. at 573. The Third Circuit held that the victim had
"ample time to view the weapon while he was in the defendant's car," and
that his testimony provided sufficient evidence for a jury to conclude
that the defendant utilized a firearm in the commission of the robbery.
In this case, two witnesses testified that they saw Smith in possession
of a "shiny, silver" firearm — Tate testified that the firearm
Smith used in the course of robbing her was a "shiny, silver" handgun;
Jenkins testified that she often saw Smith carrying a "silver"
semi-automatic pistol. The testimony of Tate and Jenkins is sufficient
evidence to support Smith's firearm conviction under
18 U.S.C. § 924(c). See id.; see also Parker v. United States,
801 F.2d 1382, 1383 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070 (1987)
(upholding a conviction under 18 U.S.C. § 924(c) arising out of a
bank robbery where the gun was never recovered and the only evidence
offered by the government as to its existence was the testimony of two
bank employees that the defendant carried a gun with which he threatened
to "blow their heads off").
As stated above, petitioner failed to raise this firearm claim on
direct appeal and he has not shown cause for this procedural default.
Moreover, because the claim is without merit, petitioner has failed to
show prejudice. This argument for § 2255 relief is thus denied.
• Defendant's Argument that the Conviction for Using a Firearm in an
Attempted Murder Should be Set Aside Because the Firearm He
Allegedly Used in the Attempt was Seized by Police Before the
Defendant's second firearm claim also is without merit. The evidence
presented at trial established that Smith was arrested on February 5,
1999, and that .380 semi-automatic pistol introduced in