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United States v. Cole

February 22, 2010

UNITED STATES OF AMERICA RESPONDENT
v.
TERRANCE LARNELL COLE PETITIONER



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

MEMORANDUM OPINION REGARDING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255 (DOC. NO. 288)

I. Introduction

Before the Court is petitioner Terrance L. Cole's Motion to Vacate Sentence under 28 U.S.C. § 2255 (Docket No. 288) and request for an evidentiary hearing. After careful consideration of petitioner's motion and traverse brief, the government's response, and the entire record of the case, including transcripts of the trial and the decision of petitioner's direct appeal by the United States Court of Appeals for the Third Circuit, the Court will deny petitioner's motion for relief pursuant to 28 U.S.C. § 2255.

II. Background

On September 20, 2004, a federal grand jury sitting in the Western District of Pennsylvania returned a superseding indictment charging Terrance L. Cole, Kevin L. Gray, and Quincy L. Jones with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 848 (count one), and conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956 (count two). The superseding indictment also included forfeiture allegations against petitioner.

After failed motions to suppress evidence, Jones pled guilty, however petitioner and Gray proceeded to trial in February of 2005. After a five week trial Gray was found guilty of count one, however, the jury was unable to reach a verdict as to petitioner.

For the second trial, petitioner hired attorney Alan R. Baum as trial counsel. Before the start of the second trial, the government moved to have the jury impaneled anonymously such that the juror's names, addresses and employers would not be made public to either party. Petitioner's counsel did not oppose the motion and the motion was granted by the District Judge Thomas M. Hardiman.*fn1 After a three week trial in August of 2005, the jury returned a guilty verdict against petitioner on both counts and returned a forfeiture verdict of $50,000,000 against him.

After the guilty verdict, petitioner moved for a new trial based on newly discovered evidence where he claimed that he was unaware that the jury was impaneled anonymously and that he only discovered this fact after the conclusion of the trial. Judge Hardiman denied the motion and sentenced petitioner to life imprisonment on count one and 20 years on count two.

In petitioner's direct appeal, the Court of Appeals for the Third Circuit addressed petitioner's contentions that 1) the District Court erred in denying his motion for a new trial; 2) that petitioner's attorney was ineffective because he did not allow petitioner to participate in the decision to impanel an anonymous jury; 3) that the impaneling of an anonymous jury violated the Confrontation Clause and the Federal Rules of Civil Procedure; and 4) that the admission of certain evidence violated the Fourth Amendment. (Docket No. 281-2 at 2).

Petitioner claimed that the District Court abused its discretion in denying a new trial based on newly discovered evidence. The alleged newly discovered evidence was that petitioner claimed to have been unaware of the fact that the jury was impaneled anonymously until after the conclusion of the trial. (Docket No. 281-2 at 4). The District Court denied the motion for the new trial on the basis that the evidence was not newly discovered. "The District Court found [petitioner], 'knew full well during the voir dire process in open court that the juror's names, addresses, and places of business were not being disclosed, and there was never any objection lodged during the voir dire process during trial.' App. 365" United States Court of Appeals' Opinion, (Docket No. 281-2 at 4). The Court of Appeals stated:

Whether to impanel an anonymous jury was discussed during a chambers conference when [petitioner] was not present. However, the anonymous jury was selected in [petitioner's] presence, and the judge's discussion of the voir dire made clear the jurors were to answer only by number (Tr. 8/15/05, p. 8); [petitioner] must have realized what was going on and could have objected then or later as he was present for the discussion of an anonymous jury when Juror 197 was excused but Juror 16 was not (Tr. 8/17/05, p. 6). (Docket No. 281-2 at 4) as amended.*fn2

The Court of Appeals affirmed the denial of a new trial holding that the District Court's finding that petitioner did know or could have known the jury was impaneled anonymously was not erroneous and the claim that his discovery constituted newly discovered evidence was unfounded. (Docket No. 281-2 at 4-5).

As to the ineffective assistance of counsel claim, the petitioner claimed that his attorney was ineffective in conceding to the government's motion for an anonymous jury. (Docket No. 281-2 at 5-6). The Court of Appeals stated that it was not clear from the record that impaneling an anonymous jury was detrimental to petitioner or that his counsel's reasoning was ineffective; however, the Court of Appeals stated that what petitioner's counsel said or bargained for during the pretrial conference might ...


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