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United States v. Ware

United States District Court, Third Circuit

December 2, 2013

UNITED STATES OF AMERICA
v.
ANDRE WARE JERRY STEVENS

MEMORANDUM

Hon. Jan E. DuBois, Judge

I. INTRODUCTION

On August 9, 2009, petitioners Andre Ware and Jerry Stevens were convicted of conspiracy to possess with intent to distribute cocaine base (“crack”), possession with intent to distribute cocaine base (“crack”), and possession with intent to distribute cocaine base (“crack”) within 1, 000 feet of a school. Petitioners Ware and Stevens both appealed their convictions to the U.S. Court of Appeals for the Third Circuit, which affirmed both petitioners’ convictions. United States v. Ware, 450 F. App’x 94 (3d Cir. 2011); United States v. Stevens, 450 F. App’x 97 (3d Cir. 2011).

Petitioner Stevens filed the pending Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255 on February 8, 2013, and petitioner Ware filed the pending Amended Motion Under 28 U.S.C. § 2255 on April 16, 2013. In their Motions, petitioners argue that their counsel was ineffective for several reasons, many of which overlap. The Court held an evidentiary hearing on petitioners’ ineffectiveness claims on September 24, 2013, during which petitioners withdrew several of their arguments.[1] At the conclusion of the hearing, five claims of ineffective assistance of counsel remained:

1. Failure of counsel for both petitioners to request a lesser-included offense instruction for possession of cocaine base or conspiracy to possess cocaine base (Stevens Ground 3, Ware Ground C);
2. Failure of counsel for both petitioners to call an expert witness on drug packaging, trafficking and usage (Stevens Ground 2, Part of Ware Ground E);
3. Failure of counsel for both petitioners to obtain nighttime pictures of the crime scene or object to the government’s daylight pictures (Ware Ground A, Stevens Ground 5(A));
4. Failure of Ware’s trial counsel argue, at the suppression hearing, that the drugs were inadmissible due to “Forced Abandonment” (Ware Ground D);
5. Failure of counsel for Stevens to request a downward departure at sentencing (Stevens Ground 1).

Petitioner Ware also argues that even if the above errors are not prejudicial in themselves, the cumulative effect was prejudicial. For the reasons set forth below, petitioners’ Motions are denied.

II. BACKGROUND

On October 14, 2008, petitioners were charged in a five-count Indictment. Count One charges both petitioners with conspiracy to possess with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2006) (amended Oct. 15, 2008).

Count Two charges both petitioners with possession with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Count Three charges both petitioners with possession with intent to distribute cocaine base (“crack”) within 1, 000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a). Count Four charges petitioner Ware with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Count Five charges petitioner Ware with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Petitioners’ jury trial began on August 3, 2009. Petitioner Stevens was represented at trial by Jerome Gamburg, and Petitioner Ware was represented at trial by Joseph Santaguida.[2]Following a three day trial, the jury returned verdicts of guilty on Counts One, Two, and Three, and a verdict of not guilty on Count Four. Petitioner Ware waived a jury trial on Count Five, as to which the Court entered a verdict of not guilty. On November 17, 2009, the Court sentenced Ware to concurrent terms of 128 months’ imprisonment.[3] On December 16, 2009, the Court sentenced Stevens to concurrent terms of 96 months’ imprisonment.

The relevant facts, as adduced at trial, are as follows.

On April 18, 2006, at about 9:00 p.m., officers of the Philadelphia Police Department set up surveillance in the 1200 block of South 17th Street in Philadelphia, Pennsylvania.[4] Trial Tr. 45, 142, Aug. 4, 2009. Officer Charles Myers and Officer Christopher Hulmes were on the roof of a one-story bar, with Officer Myers observing the street and Officer Hulmes relaying information by radio and providing security. Id. at 36-37. Several additional uniformed police officers were stationed several blocks away in order to apprehend drug buyers and the target sellers upon Officer Myers’s signal. Id. at 37.

While watching the street, Officer Myers observed Ware and Stevens speak with an unknown male, who handed Stevens currency. Id. at 40. Ware then retrieved a clear baggie from a compartment on the driver’s side door of a silver Monte Carlo automobile parked nearby and walked over to the unknown male. Id. at 40, 53-54. When he reached the unknown male, Ware removed a small object from the baggie and handed it to him, the unknown male then left the area. Id. Thereafter, Ware returned the baggie to the Monte Carlo. Id.

A short time later, Myers observed a second unknown male approach Stevens, engage in conversation, and hand Stevens currency. Id. at 53. Stevens shouted something to Ware, who retrieved the baggie from the driver’s side-door compartment of the Monte Carlo. Id. Ware removed a small object from the baggie and handed it to the unknown male, who ...


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