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December 2, 2002


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, and Six.

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 (2001).


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.

On October 7, 1998, eight (8) days before Tate was scheduled to testify against Smith at a preliminary hearing on Smith's state robbery charges, Smith again 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, 1999.

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 ...

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