MEMORANDUM AND ORDER
HERBERT N. MALETZ, Senior District Judge, sitting by designation.
On February 2, 1988, defendant, Steven A. Silvers, was found guilty by a jury of (1) conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, (2) operating a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848, (3) three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841, (4) two counts of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952, and (5) conspiracy to defraud the United States in violation of 18 U.S.C. § 371. On April 11, 1988, defendant was sentenced by the court to a prison term of 35 years on the CCE count, concurrent 15-year sentences on each of the possession with intent to distribute convictions, and concurrent five-year sentences on the remaining substantive charges and on the § 371 conspiracy. Defendant's conspiracy conviction, under 21 U.S.C. § 846, was vacated by the court as a lesser included offense of CCE.
Presently pending before the court is defendant's motion, pursuant to 28 U.S.C. § 2255, to have the verdicts against him set aside and for a new trial. Defendant's motion initially presented thirteen grounds for relief. By Memorandum and Order dated October 31, 1994, the court dismissed claims # 5, # 7, # 8, # 9, # 10 and # 12 of defendant's motion, finding them to be without merit as a matter of law.
Defendant's remaining claims each relate to the undisputed fact that a government witness, John Gerant, perjured himself at defendant's trial. That Gerant committed perjury has already been determined by this court. See United States v. Gerant, 775 F.Supp. 182 (D.Md.1991) (Harvey, J.). Defendant contends that in light of Gerant's perjury, his CCE conviction must be vacated and a new trial ordered.
On November 28, 1994, the court commenced a nine-day evidentiary hearing on defendant's motion. Having considered the testimony and exhibits from that hearing, as well as the parties' voluminous written submissions
A. Defendant's Trial
The evidence produced by the government at trial primarily concerned (1) defendant's involvement in the early 1980's with what the government has termed the "Marshall Jones drug organization," and (2) defendant's participation in two massive importations of cocaine and marijuana from Colombia in the summer of 1985. As to these latter two transactions, which the parties have consistently referred to as "loads 1 and 2," the government's only witness was John Gerant.
1. Defendant's Involvement with Marshall Jones
Defendant became acquainted with Marshall Jones in the fall of 1980, through Alan Greenwald. Greenwald, in addition to being Jones' partner at that time in narcotics trafficking, was renting a house from defendant in Sunrise, Florida. Jones, who had recently moved to Florida so as to obtain narcotics at a cheaper price, had developed a thriving drug-dealing business in and around his home state of Maryland. Jones regularly supplied large quantities of cocaine to several dealers in Maryland, Virginia and Washington, D.C. These included Raymond Carnahan, Donald Watkins, Charles Hamilton and Tuck Koontz. Jones' source for the cocaine was Jorge Torres, who was employed as a clerk at the Nautilus Hotel in Miami Beach. Either Jones or a courier would drive the cocaine up to his customers, who would then dilute and resell it as each saw fit. After selling the cocaine, Jones' customers would then pay him their agreed upon price.
Jones testified that at their initial meeting, defendant offered to supply him and Greenwald with cocaine. Defendant advised that he was friendly with two pilots who were transporting large loads of cocaine into the Ft. Lauderdale Airport. (One of these pilots was John Gerant.) Jones, however, was unhappy with a sample of defendant's cocaine and decided not to buy any.
In late 1980, defendant, a fledgling entrepreneur in the Florida entertainment industry, approached Jones with a plan to launder his drug money. Defendant advised that for a ten percent commission, he would be willing to launder a salary of $25,000 a year through his talent agency, Silver Touch Talent. Jones readily agreed to this plan and Jones was thereafter paid a weekly "salary" of $500 as a phony employee of the talent agency. Jones also purchased a 25 percent share of the business for $58,000. In this manner, defendant also laundered drug money for Jones' regular customer, Donald Watkins and George Chaconas, another narcotics trafficker.
In the summer of 1981, defendant talked Jones into investing more of his drug money into another of defendant's ventures, a recording studio in which Jones' musically inclined brothers could record an album. Jones initially invested $90,000 toward the purchase of a building, and an additional $100,000 for musical equipment. In connection with this investment, additional businesses were created, one called J & W Productions, which stood for Jones and Watkins. This entity was ostensibly a production company producing musical acts at the recording studio. In point of fact, it became another vehicle through which bogus salaries could be paid out to both Jones and Watkins.
In April of 1981, defendant and Jones engaged in their first substantial narcotics transaction together, the importation of 400 pounds of marijuana from Jamaica. Defendant's role in this importation was to arrange for the transportation of the marijuana by Gerant. Jones and Greenwald picked out the marijuana that they wanted, purchased it for $150,000 and then took possession of it once it arrived in Florida. Defendant was paid $50,000 plus expenses which he shared in some manner with Gerant. Jones' testimony in this regard was corroborated by both Gerant
Defendant's involvement with Jones and his customers escalated significantly in April of 1982 when Jones was incarcerated on a marijuana trafficking conviction. In an effort to continue his profitable business while he was in prison, Jones introduced defendant to several of his other customers, Tuck Koontz, Ray Carnahan and Charles Hamilton. Jones advised each of them that from now on they could pick the cocaine up directly from Jorge Torres, and subsequently make payment to defendant. In return for collecting Jones' drug money, defendant was to receive a 50 percent cut of Jones' profits.
Soon after Jones' incarceration in April 1982, defendant advised Jones' customers that, for a fee of $750 a kilo, he would be happy to deliver the cocaine directly to them, so that they would not have to travel to Florida to pick it up. Jones' customers accepted this offer and during the 11 months Jones was in prison, defendant and/or his brother Gary delivered kilo quantities of cocaine to them approximately seven to ten times.
The evidence against defendant with respect to his participation in a narcotics conspiracy involving Jones and his customers was overwhelming. The government presented the mutually corroborative testimony of Jones, Watkins, Hamilton, Carnahan, and Todd Lovett, an associate of Hamilton's. In addition, the government introduced into evidence a July 1982 letter which the defendant sent to Marshall Jones in prison detailing, in a thinly veiled manner, the number of deliveries and the amount of cocaine that had been provided to each of Jones' customers and the amounts that they had paid and still owed. Finally, the government offered into evidence signed receipts for the cocaine that defendant obtained from Jones' customers.
2. John Gerant and "Loads # 1 and # 2"
John Gerant, a licensed pilot and former Miami police officer, testified pursuant to an oral plea agreement that he entered into with the government.
As to the infamous loads # 1 and # 2, Gerant testified that in the spring of 1985, he transported load # 1, totalling 117 kilograms of cocaine and 250 kilograms of marijuana from the Bahamas into the United States.
Gerant testified that soon after the importation of load # 1, defendant began speaking with him about transporting a second load of more than 600 kilograms. According to Gerant, it was again defendant who arranged the meetings amongst the many co-conspirators and provided the plan of operations. Gerant testified that ultimately only 300 kilograms were imported and that defendant again paid him his transportation fee and provided him with a list of the people to whom the cocaine should be distributed.
3. Gerant's "Cooperator" Testimony And the Government's Response
In connection with his testimony concerning the unsuccessful David Butler venture discussed above, Gerant testified, on direct examination, that he believed Butler to be an FBI operative and that Butler had requested his assistance. Gerant further stated that when he dropped off the $176,000 at Butler's home, he observed surveillance agents pretending to be joggers.
The government also attempted to elicit similar such testimony concerning Gerant's relationship with one Claude Green, a pilot with whom Gerant imported his initial cocoa paste loads mentioned above. In connection with the government's attempt in this regard, the following colloquy with the court occurred:
(ST. 1066, 1067).
Government counsel did not, in fact, go on to elicit this testimony concerning Claude Green as he did in regard to David Butler. He did, however, bring out Gerant's belief that two law enforcement officials were aware of his importation of the cocoa paste; Elena Cox of the DEA and an Agent Funes of the Florida Department of Law Enforcement.
Having heard this testimony on direct examination, defense counsel sought to have Gerant elaborate upon his relationship with law enforcement during his narcotics trafficking career. In response to defense counsel's questioning, Gerant testified that he had been an informant to the DEA, the Florida Department of Law Enforcement, United States Customs and the FBI. Gerant further testified that, while he had received compensation of less than $3,000 from these agencies, he had been told that he could keep his earnings from narcotics trafficking as long as he declared them on his taxes.
The day after hearing Gerant's testimony on cross-examination, government counsel advised the defense, and the court, that the prosecution had been unable to confirm Gerant's claims. Several days later, the government's case agent, acknowledged, on cross-examination, that he had been unable to verify Gerant's claims with either the DEA or the FBI.
4. The Government's Closing Argument
Despite his belief that Gerant had perjured himself on cross-examination (EH 303), government counsel strongly suggested to the jury during closing argument that Gerant, like the government's other witnesses, had testified truthfully:
In so arguing, government counsel failed to mention Gerant's claim that he had been a government informant. Government counsel instead focused upon a mistake which Gerant made regarding his initial marijuana importations with defendant and Marshall Jones. In this regard, government counsel argued to the jury that Gerant had simply made an innocent error, as opposed to an intentional falsehood:
Government counsel also made reference to testimony that Gerant had provided in a
Finally, government counsel also continued to make use of Gerant's purported belief that some of his drug dealings had been undertaken with the tacit consent of the government:
B. The Post-Trial Developments
Following defendant's conviction and sentencing, the government continued its investigation of the international drug trafficking network of which defendant was a part. In August of 1988, Special Agent Smith interviewed Allan Rudd who had been arrested the previous year. Rudd provided a significantly different account of loads # 1 and # 2 than Gerant had, especially with respect to the roles that defendant and Gerant played. According to Rudd, Gerant was not merely a pilot as he depicted himself at defendant's trial, but the true boss of the American end of the operation. In connection with the government's prosecution of Gerant, Rudd testified that it was Gerant who had the planes, the connections in the Bahamas, and the warehouse in the United States to store the cocaine. Accordingly, it was not defendant but Gerant who dictated the plan of operations. In this regard, Gerant also demanded and was paid, not the $1,000 per kilo that he testified to, but $6,000 a kilo, for a total of more than a million dollars.
According to Rudd, while defendant always attempted to act like a boss, he actually did little more than to provide Rudd with his introduction to Gerant. Rudd stated that defendant had no ownership interest in the cocaine once it was imported and that he was simply to be paid a commission for his part in connecting Gerant with Rudd.
In June 1989, the case agent interviewed an associate of Rudd's, Victor Pesantes, who was also involved in loads # 1 and # 2. His version of those events coincided with Rudd's. In August of 1989, the AUSA and the case agent met with Gerant and his attorneys to apprise them of the government's concern that he had testified untruthfully. Gerant stated that he stood by his testimony.
In May of 1990, Anthony DeAntoni, his son
Trial commenced in the DeAntoni case on January 10, 1991. Shortly before the start of trial, Richard DeAntoni and Steven Sharp decided to cooperate and plead guilty. Mid-trial, Anthony DeAntoni did likewise. Each of these individuals corroborated Rudd's version of loads # 1 and # 2. On April 10, 1991, the remaining defendants, John Kay and David Seeright, both associates of Gerant, were convicted.
On April 25, 1991, Gerant was arrested and charged with conspiracy to distribute cocaine and marijuana. Gerant moved to dismiss the charges against him on the basis of his agreement with the government. The government, in response, argued that Gerant had breached the agreement by perjuring himself at defendant's trial. On October 3, 1991, following a two-week hearing, Judge Alexander Harvey, II, of this court denied Gerant's motion to dismiss, finding that Gerant had lied in three material respects: first, that Gerant was not a mere pilot or transporter of narcotics as he claimed, but rather, a "principal participant;" second, that Gerant falsely testified that his total earnings from narcotics trafficking was $550,000 when his actual earnings, in 1985 alone, were at least "three times that figure," and third, that Gerant falsely claimed that he had been acting since 1982 as a government informant. United States v. Gerant, 775 F.Supp. at 187.
In regard to Judge Harvey's last finding of perjury, Gerant's counsel strenuously contended that Gerant honestly believed that he was acting as a government informant because he was assisting people who had represented to him that they were informants. Judge Harvey rejected this "agency theory" of cooperation. Id. at 188. Judge Harvey recognized that, "as knowledgeable as [Gerant] ... was about law enforcement activities, he could not have, and did not in fact believe that he was cooperating with government agents with their knowledge and approval." Id.
On May 26, 1992, defendant filed a motion for a new trial. The motion was subsequently dismissed because it was untimely filed.
C. The Evidentiary Hearing
During the nine-day evidentiary hearing on the instant motion, the court heard testimony from the AUSA, the case agent, defendant's trial counsel David B. Irwin, and defendant himself.
A proffer session with Gerant was held on February 5, 1987. At that meeting, an FBI agent questioned Gerant as to whether he, in fact, had been involved in a drug transaction just two weeks earlier. Gerant indicated that he had. This revelation led to a brief interruption of the meeting during which time Gerant met privately with his attorneys. The meeting then resumed and over the next half hour Gerant briefly described various drug transactions that he had participated in as a pilot. Despite Gerant's misrepresentation to his attorneys, and through them the government, concerning his last involvement with narcotics trafficking, the government elected to enter into the above-discussed plea agreement with Gerant at the conclusion of this brief proffer session.
Following the proffer session, the case agent debriefed Gerant on February 6, 1987. A significant portion of the information Gerant provided, such as his and defendant's involvement with Marshall Jones in the early 1980's, was corroborated by other information that the case agent had obtained in his more than two years of investigation. Gerant's accounts of loads # 1 and # 2, however, could not be confirmed.
In March of 1987, the case agent submitted an application for a search warrant of defendant's home and recording studio to Magistrate Judge Peter Palermo. In his affidavit, the case agent included information provided by Gerant concerning loads # 1 and # 2. The warrant ultimately was issued and a multitude of documentary evidence seized. Among these were documents demonstrating that defendant had, in fact, been in the Bahamas during the relevant time periods provided by Gerant for loads # 1 and # 2.
In November of 1987, Gerant met with the AUSA and the case agent in preparation for defendant's trial. During these preparation sessions, Gerant claimed, for the first time, that with respect to some of his drug transactions he was assisting federal informants, who were being surveilled by actual federal agents.
The AUSA and the case agent both testified that they were completely surprised by Gerant's testimony, on cross-examination, that he had acted as an informant. As they both emphasized, informants, upon getting in trouble with the law, will immediately make their informant status known in order to avoid prosecution. It is uncontroverted that, prior to his cross-examination, Gerant never professed to being an actual informant. Upon hearing Gerant's testimony in this regard, the AUSA asked the case agent to check Gerant's claims with the various agencies. As discussed above, the case agent was unable to verify any of Gerant's assertions.
Finally, the AUSA testified that at the time that he delivered his closing argument to the jury, he believed that Gerant had testified falsely with regard to his informant status. The AUSA stated that, in his view, the government, by the conclusion of defendant's trial, had probable cause to indict Gerant for perjury. However, the AUSA testified that he also felt that the case agent's testimony had made clear to the jury that Gerant had lied in regard to his cooperator testimony. He thus believed that his closing remarks were an appropriate effort to salvage the remainder of Gerant's testimony.
A. The Search Warrant Claim
Defendant contends that the search of his home was illegal because the affidavit submitted by the case agent contained false information supplied by Gerant. While defendant fails in his motion papers to specify what in the application is erroneous, the government concedes that the affidavit contains false information concerning loads # 1 and #2; specifically, the second and third sentences of paragraph 78 which state as follows:
In response to this claim by defendant, the government correctly points out that because defendant did not challenge the search of his home either at trial or on direct appeal, he must demonstrate both cause excusing his double procedural default and actual prejudice resulting from the error of which he complains. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In this regard, the government asserts that any attempt by defendant to demonstrate cause is "patently ludicrous" because defendant "must have realized the falsity of parts of the search warrant affidavit in 1987 before his trial." Government Answer at 19. It is the government, however, that is mistaken.
While defendant may have known that the information provided in the case agent's affidavit was false, he had no proof of this until well after his trial and appeal had been completed. See United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir.1992). In Biberfeld, the Third Circuit recognized that as to the "cause" prong of Frady, the real issue is one of proof, as opposed to knowledge:
957 F.2d at 104.
As was the case in Biberfeld, any claim by defendant at the time of trial, or prior to trial, that the case agent's affidavit was false, would simply have amounted to his word against that of the case agent's informant (Gerant). It is only now that evidence of Gerant's perjury has developed, that defendant has a factual basis, and an ability, to present his claim. Accordingly, the cause prong of the Frady test has been satisfied.
Prejudice, however, is another matter. In this regard, defendant must demonstrate not simply that the case agent included Gerant's false information in the application for the search warrant but that the case agent either knew that the information was false, or acted with a deliberate disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 184, 98 S.Ct. 2674, 2690, 57 L.Ed.2d 667 (1978); United States v. Barnes, 604 F.2d 121, 153 (2d Cir.1979) ("... [A]bsent a showing that ... [the agent] himself had knowingly included false statements in his affidavit, there is a basis neither for a hearing nor for suppression itself."); United States v. Navarro, 767 F.Supp. 544, 547 (S.D.N.Y.1991) ("Probable cause is not defeated because an informant may have erred or lied so long as the affiant accurately represented what was told to him."). It is uncontroverted that prior to his interviews of Rudd and Pesantes in 1990, the case agent did not know, or have reason to know, that Gerant's information as to loads # 1 and # 2 was false.
In his post hearing memorandum, defendant contends, not that the case agent knew or should have known that Gerant was lying, but simply that the information should not have been included in the absence of specific corroboration. Defendant's Supplemental Memorandum at 4. Defendant fails to cite any authority to support this contention, and it is plainly at odds with the cases discussed above. Accordingly, while defendant has presented cause to challenge the search of his home, that challenge must ultimately be denied.
B. The Due Process Claim
The question of whether perjured testimony requires a new trial depends upon the materiality of the perjury and the extent to which the prosecution was aware of it. A conviction obtained through the knowing use of perjured testimony by the government violates due process and must be reversed when "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). This standard applies regardless of "whether the government solicited testimony it knew or should have known to be false or simply allowed such testimony to pass uncorrected." Id.
In cases where the government is unaware of a witness' perjury, there is some division amongst the circuits as to the proper standard to be employed. The Second and Ninth Circuits, for example, have held that, in such circumstances, defendants must demonstrate that the jury "probably would have acquitted in the absence of the false testimony." See United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992); United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980).
The Fourth Circuit has applied the Larrison test on only one occasion, and in so doing, explicitly limited its application to the particular facts of that case. United States v. Wallace, 528 F.2d 863, 866 (4th Cir.1976). The Wallace court noted that the witness who had perjured himself had supplied the only "proof of an essential element of the crime charged and reserve[d] for an appropriate case any decision as to what degree of certainty should be applied when the [perjured] testimony [is] only collateral, cumulative or corroborative." Id. at 866, n. 3. The appropriate case apparently has yet to arise and it is therefore unclear in this Circuit what test should be applied to perjured testimony of which the government did not have cause to be aware.
Against this legal background, the court finds that the government should have known that Gerant was going to testify falsely, at least with respect to his cooperator testimony.
Further, even after recognizing that Gerant had in all likelihood committed perjury during his cross-examination, the government still failed to take effective remedial action. The prosecution advised the court, defense counsel, and the jury, not that Gerant had testified falsely, but only that the case agent had been unable to confirm Gerant's testimony with respect to two of the four agencies that Gerant had mentioned.
Whatever curative effect the case agent's testimony might have had, was then undercut by the government's closing argument. Despite his belief that Gerant had perjured himself, government counsel argued to the jury that, although Gerant may have made certain innocent mistakes, he was a credible witness with a track record of testifying truthfully. Moreover, government counsel argued that Gerant's agreement with the government provided him with powerful motivation to testify truthfully in the instant case. While these kinds of arguments as to a witness' credibility and motivation are ordinarily proper, they plainly are not, in a case such as this, where government counsel has strong reason to believe, and in fact did believe, that Gerant had perjured himself. See United States v. Wallach, 935 F.2d 445, 459 (2d Cir.1991).
Government counsel also continued during closing argument to make use of Gerant's cooperator testimony. The AUSA reiterated Gerant's purported belief that 30 percent of his drug transactions were undertaken with the tacit consent of the United States Government. Accordingly, the government did not, as it now suggests, make clear to the jury that Gerant had testified untruthfully with respect to his cooperator testimony. To the contrary, the government strenuously sought to convince the jury that Gerant was an honest, credible witness in all respects.
In order to establish defendant's guilt on the CCE charge, the government was obligated to prove, among other things, that defendant "organized, supervised or managed" five or more people. See 21 U.S.C. § 848; United States v. Butler, 885 F.2d 195, 200 (4th Cir.1989). The Fourth Circuit has made clear that these three terms are used disjunctively and that they should be "applied in their ordinary sense as understood by the public or the business community." Butler, 885 F.2d at 200.
Gerant's perjurious testimony as to loads # 1 and # 2 constituted powerful evidence of defendant's supervision, organization and management. According to Gerant, it was defendant who provided all of the logistical planning for these massive importations, organized the various meetings and controlled all of the money and cocaine. On the basis of Gerant's testimony, the government asserted to the jury during closing argument that defendant had his own "cocaine organization" (ST 5672), and that defendant controlled at least nine individuals who were involved in loads # 1 and # 2. (ST 5724).
The government contends that even without Gerant's testimony on loads # 1 and # 2, there is sufficient independent evidence upon which defendant's CCE conviction can stand. In this regard, the government focuses upon the testimony of Marshall Jones and his customers, Watkins, Carnahan and Hamilton, concerning defendant's activities during Jones' year of incarceration.
The government contends that defendant did exercise control over Jones' customers by "unilaterally changing the arrangements Jones had made for the delivery of cocaine." Government's Answer at 33. Carnahan, however, upon whom the government relies for this assertion, testified that defendant "politely" indicated that he "would be glad to get the cocaine to our house" for a fee of $750 a kilo. (ST 891). A polite offer by a supplier to deliver his product to the purchaser's home hardly evidences the type of supervision, organization or control required by the CCE statute.
The government also points to the fact that Silvers "lowered the quality of the cocaine." Government's Answer at 34. The mere fact that a supplier exercises control over the quality of the product that he is supplying clearly does not indicate that he is exercising any type of supervisory control over the purchasers of that product. The evidence on this issue, in fact, cuts against the government's position. Because of his dissatisfaction with the quality of defendant's cocaine, Carnahan, on one occasion, purchased cocaine from an alternative source. If anything, this indicates a lack of control on defendant's part. See United States v. Delgado, 4 F.3d at 787 ("His customers were also free to shop, bargain and switch suppliers, and they did so.").
Finally, the government points to the fact that defendant insisted upon written receipts, and on some occasions that payment be made by check to one of his businesses. The fact
While the government has not raised the issue, the court also does not view defendant's various acts of money laundering as being significant evidence of supervision, management or control. Jones, Gerant, Watkins and Chaconas freely invested their drug earnings into defendant's businesses, after arm's length negotiations with him. There was no indication from any witness at trial that defendant applied any coercive pressures so as to obtain these investments. Plainly, the crime of money laundering is not co-extensive with CCE.
In sum, absent Gerant's perjured testimony, the court finds that the jury probably would have acquitted defendant of the CCE charge. Accordingly, that conviction will be vacated and a new trial on that charge ordered.
C. Defendant's Conspiracy Conviction
Although defendant has not suggested that Gerant's perjury affected his narcotics conspiracy conviction, the court has nevertheless considered the issue sua sponte. In the court's view, there is not a reasonable likelihood that Gerant's perjury had such an effect. While Gerant supplied important, indeed vital, evidence concerning defendant's supervision, management and control, the government presented an abundance of other evidence demonstrating defendant's participation in a narcotics conspiracy. The jury heard testimony from five other co-conspirators who were intimately involved with defendant in the conspiracy.
Because conspiracy is a lesser included offense of CCE, the court, pursuant to the law of this Circuit, vacated defendant's narcotics conspiracy conviction at the time of his sentencing. See United States v. Butler, 885 F.2d 195, 202 (4th Cir.1989) ("A defendant convicted under [the CCE statute] Section 848 may not also be convicted for any predicate conspiracy charges proved as elements of the second 848 offense."); United States v. Raimondo, 721 F.2d 476, 477 (4th Cir.1983) ("As the government properly concedes, the distribution and conspiracy charges in this case are lesser included offenses of the continuing criminal enterprise charge (citation omitted). We therefore vacate [defendant's] conviction for distributing and conspiring to distribute cocaine under 21 U.S.C. §§ 841(a)(1) and 846."), cert. denied, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984).
The issue which the court now faces is whether defendant's lesser included conspiracy conviction may be reinstated now that the greater offense, CCE, no longer exists. This question appears to be a matter of first impression in this Circuit.
As far as the court is aware, the only Circuit that has been squarely confronted with this issue is the Sixth. In United States v. Ward, 37 F.3d 243, 250 (6th Cir.1994), the defendant was convicted of both conspiracy and CCE. Following the jury's verdict, the district court vacated the conspiracy conviction as a lesser included offense of CCE. The Sixth Circuit found that the evidence was insufficient for the jury to conclude that Ward had managed, supervised or organized five or more people. Id. at 250. The Sixth Circuit, however, did not find any error with respect to his conspiracy conviction. Accordingly, upon vacating Ward's conviction for CCE, the Sixth Circuit, without any discussion, "reinstated" his conspiracy conviction. Id. at 250.
In addition to the Sixth Circuit's decision in Ward, it has been recognized by the Supreme Court, in another context, that a vacated conviction may lawfully be reinstated. In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court held that a conviction may be reimposed where the trial court erroneously grants a judgment of acquittal notwithstanding the jury's verdict of guilty. In so holding, the Supreme Court recognized that reinstatement of a conviction does not implicate the Double Jeopardy Clause of the Fifth Amendment since it does not result in either a second prosecution or multiple punishments. Id. at 345, 95 S.Ct. at 1022.
While Wilson and the cases following it plainly involve a factual scenario distinct from the case at bar, the court nevertheless believes that the Supreme Court's holding, and the reasoning underlying it, are fully applicable here. If an appellate court may properly reinstate a conviction on direct appeal, there is no reason why a district court should not be able to do likewise on collateral review.
That a vacated conviction may legitimately be reinstated has also been recognized by several Circuits in another context as well. In United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), the appellant challenged two bank robbery convictions for which he had been given concurrent sentences. Finding no error warranting reversals of one of the convictions, the D.C. Circuit elected, in the interest of judicial economy, to simply vacate the other conviction, rather than engaging in a lengthy and needless analysis of the legal challenge raised by appellant with respect to that conviction. In so holding, the court noted:
432 F.2d at 606 n. 8.
The D.C. Circuit has continued to follow the approach set forth in Hooper. See United States v. Wood, 879 F.2d 927, 938 (D.C.Cir.1989). The Fifth and Eleventh Circuits have adopted this doctrine as well, and in so doing, have explicitly recognized that a vacated conviction may be reimposed in the interests of justice. See United States v. Cardona, 650 F.2d 54, 58 (5th Cir.1981) ("We deem the Hooper approach to be appropriate in this case. Accordingly, we vacate the convictions of [the appellants] on count III. If the government subsequently determines that the interests of justice require reimposition of the sentences, then it may interpose its objections and these vacated convictions would then be open to appellate review."); United States v. Butera, 677 F.2d 1376, 1386 (11th Cir.1982) ("The [Hooper] procedure is appropriate here.... [I]f the government subsequently determines that the interests of justice require reimposition of the sentence, it may renew its response to Denoma's challenge and the conviction in count one would be open to full appellate review."), cert. denied,
The court is unaware of any case in which the reinstatement of a previously vacated conviction has been found improper. The Second, Third and Ninth Circuits, however, apparently concerned that reinstatement is not permissible, have instructed district courts not to vacate lesser included conspiracy convictions. See United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985); United States v. Grayson, 795 F.2d 278, 287 (3d Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987); United States v. Medina, 940 F.2d 1247, 1251 (9th Cir.1991). In so directing, the Second and Ninth Circuits, without providing any rationale, have expressed the view that a vacated conviction cannot be reimposed. Osorio Estrada, 751 F.2d at 134; Medina, 940 F.2d at 1253.
The majority of the Circuits, including the Fourth, have not resorted to such legal legerdemain as "combined" convictions or conditional "alternative" sentences. In cases where district courts have failed to vacate lesser included conspiracy convictions at the time of sentencing, the majority's practice has simply been to remand with instructions to vacate. See United States v. Rivera-Martinez, 931 F.2d 148, 153 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991); United States v. Johnson, 54 F.3d 1150 (4th Cir.1995);
Having considered the above authorities, the court is of the view that defendant's conviction may be reimposed. As the Fourth Circuit has recognized, vacating a lesser included offense is "nothing more than a technicality" that is done purely for the defendant's benefit so as to insure that he is not punished, either directly or collaterally, for both the lesser and greater offense. United States v. Reavis, 48 F.3d 763, 773 (4th Cir. 1995). The vacation of the defendant's conviction was not a rejection of the jury's verdict, but rather was equivalent in practical effect to a "suspension of the imposition of sentence." United States v. Hooper, 432 F.2d at 606 n. 4. Now that defendant's CCE conviction has been reversed, there is no justification for defendant to escape punishment for his major role in a far-reaching conspiracy for which he was properly convicted. To hold otherwise, would indeed be to exalt form over substance. Accordingly, defendant's conspiracy conviction will be reinstated and a hearing held for sentencing on that conviction.
The Discovery Issue
Defendant asserts that the government violated its discovery obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to immediately notify him when information, contrary to Gerant's testimony, was obtained from Rudd and Pesantes. As discussed above, Rudd and Pesantes were initially interviewed by the case agent in May of 1988 and June of 1989 respectively. Defendant was first provided with reports of these interviews in June of 1990. In response to this claim, the government asserts that earlier disclosure of this information to the defendant would have jeopardized the government's ongoing investigations.
Generally, the government must disclose Brady material in sufficient time that it may be effectively used at trial. See United States v. Presser, 844 F.2d 1275, 1283 (6th Cir.1988). According to the parties, there have been no cases which have addressed the timeliness of the government's disclosure where the evidence in question was discovered post-trial. To the extent, however, that earlier disclosure in this case was warranted, the defendant plainly has not been prejudiced. As the government points out, even after receiving the interview reports, defendant waited nearly two years to file a new trial motion, preferring to wait and see the outcome of the government's investigation and prosecution of Gerant. In fact, defendant did not file his new trial motion until nearly eight months after Judge Harvey's finding that Gerant had committed perjury.
Defendant also asserts that the government failed to reveal various materials to him prior to trial. See Defendant's Motion at 26-30. Defendant has failed, however, to demonstrate that any of this material was either discoverable or that it would have had any impact upon the trial. Accordingly, defendant's claim under Brady will be denied.
For all of the foregoing reasons, defendant's CCE conviction is hereby vacated and his conspiracy conviction reinstated. A sentencing hearing on the conspiracy conviction will be held on Friday, June 30, 1995, at 2 p.m.
935 F.2d at 459.
The court also finds without merit defendant's claim that government counsel improperly vouched for Gerant's credibility. Vouching occurs where an attorney expresses his personal opinion as to a witness' credibility. See United States v. Moore, 710 F.2d 157, 159 (4th Cir.), cert. denied, 464 U.S. 862, 104 S.Ct. 192, 78 L.Ed.2d 169 (1983). While government counsel offered several arguments as to Gerant's credibility, he did not state his personal belief.
The Seventh Circuit, also standing alone, has held that it is permissible to "impose concurrent sentences for a conspiracy and the CCE offense." United States v. Bond, 847 F.2d 1233, 1238-39 (7th Cir.1988).