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United States of America v. David Calhoun

June 28, 2012

UNITED STATES OF AMERICA
v.
DAVID CALHOUN, DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

Before the Court is Defendant David Calhoun's pro se Motion for a New Trial Pursuant to Federal Rule of Criminal Procedure 33. *fn1 For the reasons that follow, the Court finds that the grounds pursuant to which Defendant brings his Motion for a New Trial lack merit, and will deny the Motion without an evidentiary hearing. *fn2 Also before the Court is Defendant's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. *fn3 While the Court finds that most of the grounds raised in the § 2255 Motion lack merit, one of the issues raised in the Motion requires a hearing. Accordingly, the Court makes findings herein with respect to the § 2255 Motion, but will delay ruling on the entirety of the Motion until after the hearing.

I. F ACTUAL B ACKGROUND

On June 29, 2005, a grand jury in the Eastern District of Pennsylvania returned a nineteen-count indictment against Calhoun and seven co-defendants. *fn4 Calhoun was charged with conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Thirteen). Six co-defendants (Raul Estevez, *fn5 Ibel Blanch, Ricardo Cruz, Leopoldo Morell-Estevez, David Gutierrez, and Robert Garcia) pled guilty. Calhoun and co-defendant Pedro Risquet proceeded to trial, which began on April 17, 2006 before the Honorable Marvin Katz. *fn6

At trial, the Government presented evidence of a conspiracy among Calhoun and his co-defendants. The evidence at trial focused primarily on the role of Calhoun and co-defendant Risquet in the conspiracy. *fn7 Co-defendant Raul Estevez was the Government's key witness. Estevez testified that from July 2004 to February 2005, Risquet acted as Estevez's main cocaine supplier, selling about a kilogram of cocaine to Estevez once a month. *fn8 Estevez twice purchased cocaine from co-defendant Ricardo Cruz. *fn9 Estevez serviced two customers: an individual, identified in the Indictment as "Person #1," and Calhoun. *fn10

The mechanics of the conspiracy were straightforward. Estevez would receive phone calls from Calhoun when Calhoun wished to purchase cocaine. Estevez would then call Risquet and arrange for transport of the cocaine from Risquet to Estevez. Estevez would purchase the cocaine from Risquet, typically for approximately $25,000 per kilogram, and then resell it to Calhoun for a profit. To establish the mechanics of Calhoun's role in the conspiracy, the Government presented telephone conversations between Risquet and Estevez, and between Estevez and Calhoun, recorded between December 11, 2004, and February 3, 2005. *fn11

In one such conversation, recorded on December 11, 2004, Estevez informed Risquet in coded language that he had "one" at his house and that "Blanco" would be coming later to get it. *fn12 Two days later, on December 13, 2004, police observed Calhoun arrive at Estevez's residence, 260 Ruscomb Street in Philadelphia ("Ruscomb"). *fn13

On December 31, 2004, Estevez had a similarly coded conversation, this time with Calhoun. Calhoun asked when "is the next time you[r] buddy is going to be available"? *fn14

Estevez responded, "What, what the other thing, the white one? . . . let me call him to see what time he's coming to be down here." *fn15 Calhoun told Estevez that he didn't "need it tonight, but [was] just wondering . . . if he's going to be available this weekend." *fn16 Estevez responded that he would try to get it tomorrow. *fn17 Estevez testified that "the white one" referred to cocaine. *fn18

The next day, January 1, 2005, Estevez called Calhoun to tell him "that guy" would be available the following day. *fn19 On January 2, 2005, after receiving a phone call from Risquet informing him that he would be arriving at Ruscomb in an hour-and-a-half, Estevez called Calhoun to tell him that the "boy from New York," would be on his way shortly. *fn20 After a series of phone conversations, Estevez, Risquet, and Calhoun agreed to meet at 6:00 that evening. *fn21

Surveillance was established at Ruscomb as a result of these conversations. *fn22

At about 5:44 p.m., Risquet arrived at Ruscomb and entered the residence; he exited moments later, walked to the rear door of his car, appeared to retrieve something which he hid in his jacket, and went back inside. *fn23 Several minutes later, at about 6:05 p.m., Risquet left Ruscomb. *fn24

At 6:39 p.m., a police officer observed Calhoun arrive at Ruscomb. *fn25 About a minute later, Risquet returned to Ruscomb. *fn26 The two men waved to each other and entered the residence, Calhoun first, followed by Risquet. *fn27 Moments later Estevez arrived and entered the building carrying what appeared to the officer to be a trash bag. *fn28
At about 6:50 p.m., Risquet walked out of the building and went to the driver's side door of his car. *fn29 The observing officer was unable to see what Risquet was doing while in his car, but saw him exit the car moments later and re-enter Ruscomb. *fn30 Risquet emerged about two minutes later, placed something in the trunk of his car, and drove away. *fn31
At 7:05 p.m., the officer observed Calhoun leave Ruscomb looking as if "he became pregnant;" from this observation the officer deduced he was carrying something beneath his jacket. *fn32 Calhoun got in his car and drove away. *fn33 Calhoun was seen by another officer about 20 minutes later near his residence, 2426 Dicks Avenue in Philadelphia ("2426 Dicks Avenue"). *fn34

As he was approached by police officers, Calhoun dropped the bag he was carrying, which contained approximately one kilogram of cocaine. *fn35

Although officers had a warrant to search Calhoun's Dicks Avenue residence, Calhoun also consented to the search. *fn36 Officers found, among other items in the house, additional cocaine and $203,000 in cash. *fn37

In an effort to cooperate with the Drug Enforcement Administration ("DEA"), Calhoun provided a statement in which he identified Estevez as his cocaine supplier and admitted that Estevez had sold him the kilogram of cocaine found in his bag on January 2, 2005. *fn38 He admitted to purchasing about a kilogram of cocaine from Estevez monthly since July 2004. *fn39 He

further stated that he owed Estevez $1,300. *fn40 Using this information, the DEA arranged for Calhoun to meet with Estevez to settle this debt, giving Calhoun $1,300 and outfitting Calhoun with a concealed recording device. *fn41 After a series of phone calls between Calhoun, Estevez, Risquet, and Person #1, who was also cooperating with the DEA, the DEA executed a search warrant at Ruscomb and seized two kilograms of cocaine on February 3, 2005. *fn42

II. P ROCEDURAL H ISTORY

Calhoun was charged by Indictment on June 29, 2005. *fn43 On July 28, 2005, Nino Tinari entered his appearance on Calhoun's behalf. *fn44 Despite his initial attempts to cooperate and two scheduled change of plea hearings, Calhoun did not enter a guilty plea and trial was scheduled for February 6, 2006. *fn45 Before trial began, however, the Court granted Tinari's motion to withdraw as counsel. *fn46 On January 25, 2006, William Cannon was appointed to represent Calhoun, and the trial was rescheduled to April 17, 2006, to allow counsel time to prepare. *fn47

On April 5, 2006, Calhoun filed a pro se motion for a continuance of the trial based on his asserted illness and inability to communicate with his attorney. *fn48 The Court allowed the Government to arrange a physical examination of Calhoun, which revealed that his condition did not prevent him from communicating with counsel. *fn49 Attorney Cannon did not request that the trial be continued and informed the court that he had spoken to his client on several occasions. Based on this information, Judge Katz denied the motion for a continuance. *fn50 Attorney Cannon renewed Calhoun's request for a continuance on the day of trial; the request was again denied. *fn51
Calhoun's trial commenced on April 17, 2006, and on April 20, 2006, the jury found Calhoun guilty of all counts charged. On August 11, 2006, Calhoun was sentenced to 20 years of imprisonment, *fn52 followed by 10 years of supervised release, and was ordered to pay a special assessment of $200. *fn53 Calhoun's timely filed August 17, 2006 appeal was denied by the Third Circuit on May 1, 2008. *fn54 The Third Circuit affirmed the judgment of conviction and sentence, holding, inter alia , that there was sufficient evidence to establish Calhoun knew he was part of a larger operation and that the District Court had not abused its discretion in denying Calhoun's pro se motion to continue the trial. *fn55 The Third Circuit denied Calhoun's petitioner for rehearing en banc on October 22, 2008. *fn56 On March 9, 2009, the United States Supreme Court denied Calhoun's petition for writ of certiorari.

On April 20, 2009, Calhoun filed a pro se Motion for a New Trial pursuant to Federal Rule of Criminal Procedure 33, based on what he asserts is newly discovered evidence. *fn57 On March 8, 2010, he filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. *fn58 These Motions are now before the Court.

Of relevance to the Motions before the Court are two related proceedings filed by Calhoun, which relate to what Calhoun claims was his unlawful detention between February 23, 2005, the date on which he alleges the state sentence pursuant to which he was detained expired, and April 20, 2006, when the jury returned a guilty verdict. The first, filed by Calhoun on January 30, 2008, while his appeal was pending, was a Bivens *fn59 action assigned to the Honorable Ronald L. Buckwalter of this Court. *fn60 Judge Buckwalter ultimately dismissed the case, finding that Calhoun had failed to allege any facts supporting his conclusion that he was improperly detained. *fn61 The second related action was filed by Calhoun on May 2, 2008, in the Commonwealth Court of Pennsylvania, in which Calhoun again alleged he was improperly detained. The case was removed to this Court on September 28, 2008, and assigned to Judge Buckwalter, who dismissed the action as barred by res judicata . *fn62

III. M OTION FOR A N EW T RIAL*fn63

A. Standard of Review

Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the ...


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