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United States of America v. Foster Price

July 24, 2012

UNITED STATES OF AMERICA
v.
FOSTER PRICE, JR.



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is defendant's pro se motion (Doc. 684) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant Foster Price, Jr. ("Price") contends that he is entitled to relief on grounds that: (1) the government failed to disclose a non-prosecution agreement between the United States and witness Jayme Hoagland ("Hoagland"); (2) the government elicited testimony of the sale of drugs other than heroin, unfairly surprising Price and improperly broadening the basis for conviction; (3) the government introduced evidence of alleged co-conspirators' guilty pleas which, in the absence of a curative jury instruction, prejudiced the jury against Price; and (4) his attorney provided ineffective assistance of counsel resulting in a violation of his constitutional rights.*fn2

For the reasons that follow, Price's motion (Doc. 684) will be denied.

I. Statement of Facts & Procedural History

On February 9, 2006, a federal grand jury returned a four-count criminal indictment charging Price with offenses related to the possession and distribution of heroin and conspiracy to possess and distribute more than a kilogram of heroin, each in violation of 21 U.S.C. § 841(a)(1). (Doc. 1). On May 10, 2006, Price refused to enter a plea, and thus a plea of not guilty was entered on his behalf. (Doc. 94); see FED. R. CRIM. P. 11(a)(4).

On July 17, 2007, a jury found Price guilty of Counts One, Three, and Four of the indictment. (Doc. 377). On October 16, 2008, the district court sentenced Price to a prison term of 27 years, fines and fees of $300, and thirteen years of supervised release. (Doc. 620). Price appealed his sentence to the Third Circuit Court of Appeals on Oct. 22, 2008. (Doc 628). The Third Circuit affirmed the judgment of conviction and sentence on September 30, 2009. (Doc 655). Price filed a writ of certiorari to the United States Supreme Court, which was denied on February 22, 2010. Price v. United States 130 S. Ct. 1550 (2010). On February 28, 2011, Price timely filed*fn3 the instant motion (Doc. 684) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition.

II. Discussion

A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which federal prisoners challenge the legality of a conviction or sentence. See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997) (stating that a § 2255 motion is "the usual avenue for federal prisoners seeking to challenge the legality of their confinement"). When a federal prisoner seeks §2255 habeas relief, he must file the motion in the district court where he was convicted and sentenced. See 28 U.S.C. § 2255. Where the record affirmatively indicates that a petitioner's § 2255 claim for relief is without merit, the claim may be decided on the record without a hearing. See Virgin Islands v. Nicolas, 759 F.2d 1073, 1075 (3d Cir. 1985).*fn4

In his § 2255 motion, Price asserts four main grounds on which he believes the court should vacate his sentence. These claims relate to: (1) an alleged non- prosecution agreement between the United States and witness Jayme Hoagland, (2) allegedly fatal variance arising from testimony involving the sale and purchase of drugs other than heroin, (3) evidence of co-conspirator guilty pleas, and the absence of a curative jury instruction, and (4) effectiveness of counsel. The court will address these arguments in seriatim.

A. Alleged Non-Prosecution Agreement

In his petition, Price first claims that the United States made a verbal non-prosecution agreement with government witness Jayme Hoagland, and that government counsel's denial of the existence of said agreement during trial was false, thereby misleading the jury. (Doc. 685, at 15).

To demonstrate the existence of a federal non-prosecution agreement, Price cites testimony that occurred during the cross-examination of Hoagland:

[Counsel for Price]: You didn't go to jail. Right? [Hoagland]: No. [Counsel for Price]: And that was the agreement that this government worked out for you as a result of your information. Correct? [Counsel for government]: Objection, Your Honor. [Hoagland]: Yes. [Counsel for government]: There is no showing I had any agreement with her or anybody from the U.S. attorney's office had an agreement with her. That was a state sentence she received. (Doc. 471, at 21; see also Doc. 684, at 16). Price suggests that Hoagland's on-the-record affirmative answer established the existence of a non-prosecution agreement with the federal government.

There is, however, no further evidence suggesting that any such agreement existed, whereas copious evidence suggests that there was no such agreement. Specifically, the government has never denied that Hoagland was granted "use immunity"*fn5 during her testimony. Indeed, the grant of use immunity was incorporated into the record during Hoagland's grand jury testimony on January 26, 2006. (Doc. 720--1, Ex. A ¶ 4; see Doc. 720--1, Ex. A.1). Pursuant to 18 U.S.C. § 3500, a transcript of this testimony, including the grant of the use immunity agreement, was given to Price's counsel, Christopher A. Ferro, Esquire ("Attorney Ferro") on June 29, 2007. (Id.) The government denies that the federal government entered into any other immunity agreement with Hoagland, and Attorney Ferro recalls no evidence to suggest otherwise . (Doc. 720--1, Ex. A ¶ 5; Doc. 720--1, Ex. B ¶ 4). Moreover, counsel for the government has averred that he "always reduced to writing, or placed on the record when the witness testified, any agreement with the witness," and the government maintains that, even if Hoagland believed she had non-prosecution immunity, "it is more likely the result of Hoagland's confusion than any malfeasance on the part of the government." (Doc. 720, at 17--18; Doc. 720--1, Ex. A ¶ 7). The record contains no evidence of any such agreement, verbal or written, and therefore Price's claim of the existence of such an agreement is without merit.

B. Testimony Pertaining to Drugs Other Than Heroin

Price's second claim is that evidence of his purchase and sale of drugs other than heroin, including marijuana, cocaine, and ecstasy, was used to prove his guilt as to the charges in the indictment, each of which mentioned only heroin. (Doc. 684, at 24). Price asserts that the government's failure to include references to those drugs in the charges constitutes a fatal variance in the evidence in violation of his right to due process. (Id. at 26).

A variance occurs when "the evidence at the trial proves facts materially different from those alleged in the indictment." United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006). Only variances that are "likely to have surprised or otherwise [] prejudiced the defense" constitute reversible error. Id. at 262. A variance must be considered harmless unless it renders the indictment "[in]sufficient[ to] inform[] the defendant of the charges against him so that he may prepare his defense," or if it "present[s] a danger that the defendant may be prosecuted a second time for the same offense." United States v. Schoenhut, 576 F.2d 1010 (3d Cir. 1978).

During her testimony, Hoagland described many instances of Price buying or selling drugs. (Doc. 471, at 145--84). A number of these instances involved the purchase or sale of ecstasy, marijuana, or cocaine, in addition to or separate from heroin. (Id. at 155, 161). Price suggests that the introduction of this evidence "unfairly surprised" him, and prejudicially "broadened the possible basis for conviction." (Doc. 684, at 24).

Price, contrary to his contention, had ample notice that evidence of the purchase or sale of drugs other than heroin would or could be elicited at trial. As part of its Jencks Act disclosure on June 29, 2007, the government provided Price and his counsel with police reports in which Hoagland details many drug transactions made by her and Price, including several which involved drugs other than, or in addition to, heroin. (Doc. 720--1, Ex. C). Such disclosure, well in advance of trial, renders unconvincing the claim that evidence pertaining to drugs other than heroin "unfairly surprised" Price.

Assuming arguendo that Price was surprised by the introduction of this evidence, the variance was not prejudicial. Hoagland made only passing references to Price's purchase or sale of drugs other than heroin, and any references to other drugs were secondary to testimony concerning heroin. (Doc. 470, at 155, 161). At no point did the government attempt to introduce evidence concerning drugs other than heroin in order to demonstrate Price's guilt as to the heroin related charges. Rather, Hoagland simply testified that she and Price had purchased heroin many times, and that they occasionally purchased and sold other drugs as well. (Id.) Furthermore, at the end of the trial, the court instructed the jury that "[t]he defendant is not on trial for any act or any conduct not specifically charged in ...


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