United States v. Percy Travillion , 759 F.3d 281 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-4184
______
UNITED STATES OF AMERICA
v.
PERCY WILLIAM TRAVILLION
Appellant
______
On Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 2:04-cr-00144-007)
District Judge: Honorable Joy Flowers Conti
______
Argued: June 12, 2014
Before: FISHER, VAN ANTWERPEN, and TASHIMA,
Circuit Judges
(Filed: July 7, 2014)

Hon. A. Wallace Tashima, Senior Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
Richard Coughlin, Esq.
Federal Public Defender’s Office, District of New Jersey
800-840 Cooper Street
Suite 350
Camden, NJ 08102
Louise Arkel, Esq. [ARGUED]
Federal Public Defender’s Office, District of New Jersey
1002 Broad Street
Newark, NJ 07102
Attorneys for Appellant
David J. Hickton, Esq.
Rebecca R. Haywood, Esq.
Jane M. Dattilo, Esq. [ARGUED]
United States Attorney’s Office, Western District of
Pennsylvania
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
______
OPINION OF THE COURT
______
VAN ANTWERPEN, Circuit Judge.
Appellant Percy William Travillion (“Travillion”), is
appealing a decision of the United States District Court for
the Western District of Pennsylvania denying relief sought
pursuant to 28 U.S.C. § 2255. We must address two issues
2
certified for appeal: whether trial counsel was ineffective for
(1) failing properly to cross-examine a witness and (2) failing
to file a pre-trial motion challenging whether the conspiracies
charged in Counts Nine and Thirteen of the Indictment
violated the Fifth Amendment’s prohibition against double
jeopardy. For the reasons that follow, we will affirm the
decision of the District Court.
I. Facts
Travillion was indicted by a grand jury in 2004 on
three counts related to a large drug trade in the greater
Pittsburgh area, in violation of 21 U.S.C. § 846 and §
841(a)(1), (b)(1)(A)(iii).1 At trial, Travillion raised the
1
In total the Indictment contained 19 counts. Travillion was
indicted on Counts Nine, Ten, and Thirteen.
Count Nine: From on or about November 20,
2002, and continuing thereafter to on or about
February 8, 2003, in the Western District of
Pennsylvania, the defendants . . . did
knowingly, intentionally, and unlawfully
conspire with one another and with persons
both known and unknown . . . to distribute and
possess with the intent to distribute fifty (50)
grams or more of . . . cocaine base, in the form
commonly known as crack.
Count Ten: On or about December 16, 2002 . . .
Percy William Travillion, did knowingly,
intentionally, and unlawfully possess with the
intent to distribute fifty (50) grams or more . . .
3
defenses that he was not a member of either conspiracy in
Counts Nine and Thirteen, and also that the drug at issue in
the Count Ten possession charge was heroin, not crack.2 The
United States called five witnesses, including Michael Good,
the main supplier of drugs to Travillion.3 Key to the
presentation of evidence was a series of phone call wiretaps,
including a call between Good and Travillion on December
16, 2002. Respecting this call, Good testified he was checking
whether or not Travillion needed drugs before Good left town
for a couple of days, and that what was being discussed was
five ounces of crack, totaling $4,500.4 Travillion’s attorney
of cocaine base, in the form commonly known
as crack.
Count Thirteen: From on or about November
20, 2002, and continuing thereafter to on or
about February 8, 2003, in the Western District
of Pennsylvania, the defendants . . . did
knowingly, intentionally, and unlawfully
conspire with one another and with persons
unknown to the grand jury, to distribute and
possess with the intent to distribute five
hundred (500) grams or more of . . . cocaine.
(Appellee Br. at 20-21; see also App. vol. II at 68, 71-72.)
2
We will refer to cocaine base in the form sold by Travillion
as “crack” throughout the Opinion.
3
Good testified the quantities of crack sold to Travillion
increased during the period between 2002 and 2003, and
eventually he began fronting the drugs to Travillion, in the
expectation he would be paid after Travillion made sales.
4
Good testified he sold crack to Travillion at $900 per ounce.
4
cross-examined Good on his and Travillion’s addiction
histories, the inability of Good to obtain crack around
December 2002, Good’s cooperation with the Government
for a reduced sentence, and Travillion’s role in the larger
drug-dealing organization.
Travillion took the stand in his own defense,
countering Good’s testimony and claiming what was being
discussed in the December 16 phone call was not crack but
rather was nine bundles of heroin, with a value of only $450.5
5
The relevant transcript portions of the December 16 phone
call are reproduced below.
[Good]: I was trying to get in touch with you to
see if you’re all right [sic] before I go out of
town.
[Travillion]: Was you cutting out today?
....
[Travillion]: Cause I still had a couple of them
things left.
[Good]: I’m calling to make sure you’re cool,
because I’m not going to be back till Thursday.
....
[Travillion]: That should hold me till then.
[Good]: You’ll be alright?
[Travillion]: Yeah, yeah yep . . . . I’m going to
try to grab one more then off you, can I do that?
That way I’ll have more then . . .
[Good]: What are you turning in? Yeah, what
you turning in?
[Travillion]: Just grab one more . . . . I’m going
to turn in probably like two.
5
On cross-examination, the Government challenged Travillion
on the weight and type of drugs he testified to, because heroin
was not what he typically sold nor was the amount the
quantity of any drug he typically purchased. Travillion was
convicted by a jury on all three counts, and sentenced to 188
months’ imprisonment.6 On appeal, this Circuit affirmed the
decision of the District Court.7 See United States v.
Travillion, 321 F. App’x 156, 159 (3d Cir. 2009).
[Good]: Cause you uh, we have forty-five cause
you had five.
[Travillion]: Right.
....
[Good]: You turn in then, you gonna turn in two
then make it back at five.
[Travillion]: Right.
(App. vol. VI at 1104-05.)
6
Travillion received concurrent sentences of 188 months’
imprisonment and concurrent five-year terms of supervised
release on Counts Nine, Ten, and Thirteen. This was at the
bottom end of the United States Sentencing Guidelines range
of 188 to 235 months, calculated from a total offense level of
34, including a two-level enhancement for obstructing justice
under U.S.S.G. § 3C1.1, and a criminal history category of
III. He also had to pay a $100 special assessment on each
count.
7
On direct appeal, Travillion alleged (1) the evidence was
insufficient, (2) the jury instruction was improper, (3) there
were procedural errors in enhancing his total offense level for
obstruction of justice and for considering a state offense in
the calculations, and (4) that Congress did not have the power
6
Travillion then filed a 28 U.S.C. § 2255 motion in the
United States District Court for the Western District of
Pennsylvania, seeking to vacate, set aside, or correct his
sentence by adjusting the advisory Guidelines down two
levels.8 This motion alleged four reasons for collateral relief
under an ineffective assistance of counsel claim:
(1) Trial Counsel failed to effectively
investigate and cross-examine Government
witnesses, (2) Trial Counsel failed to effectively
investigate facts made known to him by
Petitioner constituting Petitioner’s only realistic
defense, (3) Trial Counsel failed to adequately
advise Petitioner on the risk in his testifying on
his own behalf, and (4) Trial Counsel failed to
adequately object to Petitioner’s conviction on
two separate counts that comprised the same
conspiracy, thus exposing Petitioner to double
jeopardy.
United States v. Travillion, 2012 WL 5354530, at *2 (W.D.
Pa. Oct. 29, 2012) (internal citation and quotation marks
omitted). The District Court denied the motion, noting that
while counsel’s performance may have been deficient on
certain issues, Travillion was not prejudiced, as the evidence
presented against him was “overwhelming.” Id. at *6. This
appeal followed.
to enact the DNA Analysis Backlog Elimination Act under
the Commerce Clause. Travillion, 321 F. App’x at 158-59.
8
This claim also sought reduction of the obstruction of justice
enhancement mentioned above. See supra note 6.
7
Travillion now argues counsel’s performance was
ineffective because he failed to impeach Good with his own
prior testimony in a contemporaneous and factually similar
case, titled by the parties as the “Ferguson Retrial.”9 See
United States v. Ferguson, 394 F. App’x 873, 888 (3d Cir.
2010) (affirming retrial decision by the United States District
Court for the Western District of Pennsylvania). Travillion
also contends that counsel failed to object on double jeopardy
grounds to the indictment charging two separate conspiracies
in Counts Nine and Thirteen, which caused him to be twice
punished with a $100 special assessment and an extra
concurrent term of supervised release for a single conspiracy.
Travillion now seeks an order vacating and remanding for a
new trial, or in the alternative, remanding for an evidentiary
hearing.
II. Standard of Review10
A. Section 2255 Motion
As a collateral challenge, a motion pursuant to 28
U.S.C. § 2255 is reviewed much less favorably than a direct
appeal of the sentence. See, e.g., United States v. Frady, 456
9
During the Ferguson Retrial, Good testified to his prior
mental health issues and showed confusion when detailing
which drugs he sold to which dealers. (Appellant Br. at 23
(citing App. vol. VII at 1569-72, 1665).)
10
The District Court had jurisdiction over Travillion’s claims
pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 2255. We now
have jurisdiction under 28 U.S.C. § 1291 and § 2253, as a
final order by the District Court.
8
U.S. 152, 167-68 (1982). Indeed, relief under § 2255 is
available only when “the claimed error of law was ‘a
fundamental defect which inherently results in a complete
miscarriage of justice,’ and . . . ‘present[s] exceptional
circumstances where the need for the remedy afforded by the
writ . . . is apparent.’” Davis v. United States, 417 U.S. 333,
346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428
(1962)). While issues resolved in a prior direct appeal will not
be reviewed again by way of a § 2255 motion,11 United States
v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993), they may,
however, be used to support a claim for ineffectiveness. See
Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996)
(per curiam) (noting claims of error under the Sentencing
Guidelines are generally not cognizable on collateral review
unless to support an ineffectiveness claim).
In a § 2255 review, we usually have the advantage of a
§ 2255 opinion from the District Judge who presided over the
original trial. Accordingly, the District Judge is not limited to
a cold written record, but is uniquely familiar with the overall
circumstances of the original case. “[A] motion under 28
U.S.C. § 2255 is entered on the docket of the original
criminal case and is typically referred to the judge who
originally presided over the challenged proceedings . . . .”
Wall v. Kholi, —U.S.—, 131 S. Ct. 1278, 1289 (2011).
Although a § 2255 motion is sometimes loosely referred to as
a habeas corpus motion, unlike a § 2254 habeas petition,
which usually concerns cases that arose in state court, a §
2255 challenge is a post-trial motion to vacate, set aside or
11
In addition, issues which should have been raised on direct
appeal may not be raised with a § 2255 motion. See DeRewal,
10 F.3d at 105 n.4.
9
correct a sentence imposed in federal court. Section 2255 is a
corrective action, United States v. Hock, 275 F.2d 726, 727
(3d Cir. 1960) (per curiam), and unlike “a § 2254 petition[,
which] is a separate civil action, . . . a § 2255 motion is a
further step in the criminal process,” United States v. Nahodil,
36 F.3d 323, 328 (3d Cir. 1994); see also United States v.
Thomas, 713 F.3d 165, 172 (3d Cir. 2013) (noting that
Section 2255 “creates a statutory remedy consisting of a
motion before the court where a movant was convicted”
(internal citation and quotation marks omitted) (emphasis in
original)).
B. Reviewing Standard
“In a [§ 2255] proceeding, we exercise plenary review
of the district court’s legal conclusions and apply a clearly
erroneous standard to the court’s factual findings.” Lambert v.
Blackwell, 134 F.3d 506, 512 (3d Cir. 1997). The standard of
review for a claim of ineffective assistance of counsel was set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To
prove ineffective assistance of counsel, the movant must
show
[first,] that counsel’s performance was
deficient. This requires showing that counsel
made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second,
the defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
10
466 U.S. at 687. Thus, to prove a valid claim, Travillion must
show both deficiency and prejudice. Id.
As the Supreme Court has stated, “the Constitution
guarantees criminal defendants only a fair trial and a
competent attorney. It does not insure that defense counsel
will recognize and raise every conceivable constitutional
claim.” Engle v. Isaac, 456 U.S. 107, 134 (1982). On review,
we “must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional
assistance.” Berryman v. Morton, 100 F.3d 1089, 1094 (3d
Cir. 1996) (quoting Strickland, 466 U.S. at 689). “In essence,
‘the defendant must show that counsel’s representation fell
below an objective standard of reasonableness’ meaning
‘reasonableness under prevailing professional norms.’” Id.
(quoting Strickland, 466 U.S. at 688). Regarding the interplay
between Strickland and § 2255, if Travillion shows both
elements of Strickland, he satisfies the requirements of §
2255. See United States v. Rad-O-Lite of Phila., Inc., 612
F.2d 740, 744 (3d Cir. 1979) (“[P]ersons . . . can attack a
conviction for fundamental defects, such as ineffective
assistance of counsel.”).
III. Discussion
We now turn to the two certified ineffective assistance
of counsel claims before us. First, Travillion claims that
counsel was ineffective because he “failed to cross-examine .
. . Michael Good, on matters that would have undermined
Good’s credibility and supported Travillion’s defense,
particularly on the crack possession charge, . . . [from] readily
available transcripts of Good’s testimony in [the Ferguson
Retrial].” (Appellant Br. at 19.) Second, Travillion avers that
11
“counsel’s failure to challenge the [conspiracy] indictment[s]
on double jeopardy grounds also constituted deficient
performance . . . [where] [t]he circumstances of the case
amply satisfied the nominal burden required to . . . challenge
at the pretrial stage.” (Id.) Travillion contends both failures of
counsel prejudiced the outcome of his trial because they
resulted in multiple convictions and increased sentences.
We begin, as above, with the steps outlined in
Strickland. 466 U.S. at 687. We may address the prejudice
prong first “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice.” Id. at
697. We will address both claims in turn, undertaking plenary
review, and reminding ourselves that both deficiency and
prejudice must be proven to have a valid claim for relief. Id.
at 687.
A. Failure to Adequately Cross-Examine
Travillion avers that trial counsel’s performance was
deficient for failing to obtain the prior testimony and cross-
examine Michael Good with contradictory and impeachment
evidence from the Ferguson Retrial, and these errors
significantly prejudiced the outcome of the trial.
1. Prejudice
In determining prejudice, “a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Strickland, 466 U.S. at
695. Travillion claims counsel prejudiced his defense, and
that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
12
been different.” Id. at 694. This alleged prejudice concerns
the failure of trial counsel to utilize statements made by Good
at the Ferguson Retrial to impeach his statement that he sold
Travillion crack and failing to bring up Good’s prior
testimony on his mental health issues.12 For example, during
the Ferguson Retrial, Good testified he could not remember
the terminology he used for drugs with buyers and which
drug he sold to another dealer in a prior deal. (See Appellant
Br. at 29 (citing App. vol. VII at 1752).)
[Good:] I served them their drugs that day, I
know that. I remember that.
12
These issues included schizophrenia, for which Good
collected Social Security disability benefits. Good testified at
the Ferguson Retrial, stating:
[Attorney:] During the interview, did the
probation officer ask you questions about
mental health problems that you’ve had?
[Good:] Yes.
[Attorney:] Did you tell the probation officer
you had had mental health problems?
[Good:] Yes . . . .
[Attorney:] Mr. Dietz showed you your
presentence report and questions were asked
about . . . what you were diagnosed with, and at
one point you were asked whether you were a
life-long schizophrenic, and that was corrected
to paranoid schizophrenic related to drug use.
(App. vol. VII at 1860-61.)
13
[Attorney:] When you say you served them
their drugs, what are you referring to?
[Good:] Heroin, cocaine.
[Attorney:] Do you recall which one as you sit
there?
[Good:] No. I don’t recall which that he got that
day.
(App. vol. VII at 1572.) Travillion argues Good’s inability to
remember the type of drug sold undermines his testimony that
Travillion purchased crack on December 16, rather than
heroin, as Travillion alleges. This forms the basis of
Travillion’s assertion that Good’s confusion, along with his
testimony in the Ferguson Retrial to occasionally selling
small quantities (or “bundles”) of heroin,13 would have
created reasonable doubt that the December 16 phone
conversation referenced crack. Travillion argues that there is
a reasonable probability that, had counsel more aggressively
13
A “bundle” is “ten stamped bags wrapped together” and
five bundles is the equivalent of one brick. (App. vol. III at
315-16.) Good typically sold bricks, but testified to selling
these small quantities on occasion. Travillion’s argument was
that at times Good sold small quantities and that he did so on
this occasion.
[Attorney:] Would you sell [heroin] in less than
[brick size]? Would you ever sell bundles to
anybody you know?
[Good:] Yeah. I didn’t like that neither, but I
did it sometimes.
(App. vol. VII at 1813.)
14
cross-examined Good, the jury would have acquitted or
deadlocked on the crack possession charge. This, in turn,
would have altered Travillion’s sentence in two ways: first,
by exposing him to one less concurrent term of supervised
release and one less $100 special assessment; and second, by
precluding the District Court’s assessment of a two-level
upward adjustment for obstruction of justice, based on its
conclusion that Travillion perjured himself when he testified
that the drug at issue was heroin, not crack.14 (See Appellant
Br. at 36-37.)
14
At trial, Travillion offered as a defense, elicited through his
own testimony, that the December 16 phone call was
referring to heroin.
[Attorney:] Mr. Travillion, . . . you say, cause I
still had a couple of things left.
....
What are you referring to?
[Travillion:] I am referring to bundles of
heroin.
....
[Attorney:] Is it fair to say that at some point
prior to December 16, 2002, you and Michael
Good hooked up and did a heroin transaction?
[Travillion:] Yes.
....
[Attorney:] The price was $90.00 a bundle?
[Travillion:] Right.
....
[Attorney:] And you had five bundles?
[Travillion:] Yes.
15
The District Court, in denying relief, held the
“Petitioner’s narrow focus on the minutiae of counsel’s cross-
examination is misguided.” 15 Travillion, 2012 WL 5354530,
at *7. As the District Court determined, “[e]ven if counsel’s
actions were deficient, there can be no prejudice because the
evidence was otherwise overwhelming.”16 Id. at *6. This
conclusion was based on “the totality of the circumstances” of
trial evidence. The District Court cited “Good[‘s] open[]
admi[ssion] that he was serving a fifteen-year sentence for
drug trafficking crimes” as well as “incriminating wiretap
evidence and [the] testimony of other witnesses against the
[Attorney:] So, and how much did Michael
Good charge you for those five bundles?
[Travillion:] He charged me $450.00 . . . .
(App. vol. V at 813-17.)
15
As noted, the same District Judge presided over the
Ferguson Retrial as well, and heard the testimony now raised
by Travillion as necessary for impeachment. While not
dispositive, this same District Judge, after observing the
conduct of trial counsel and the evidence presented, found no
evidence of deficiency.
16
The District Court disposed of this claim under the
prejudice prong, but also found no merit to the claim counsel
was deficient. Id. (“Even if the court were to conclude that
petitioner was prejudiced by his counsel’s actions, there is
nothing in the record to indicate that his counsel’s actions
were professionally deficient in the way the petitioner
alleges.”).
16
petitioner, including Sherri Hunter, Keeley Sowell, and
Special Agent Jimenez.”17 Id. at *7.
Like the District Court, we also do not find trial
counsel’s actions to have prejudiced Travillion. The right to a
fair trial does not translate into the right to a perfect trial. See
Gov’t of the V.I. v. Bradshaw, 726 F.2d 115, 119 (3d Cir.
1984); see also United States v. Wilensky, 757 F.2d 594, 599
(3d Cir. 1985). The Supreme Court has stated “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993).
It is true that Circuit courts, including ours, have found
counsel deficient for failing to cross-examine a witness with
prior inconsistent statements, see, e.g., Berryman v. Morton,
100 F.3d 1089, 1098 (3d Cir. 1996) (noting the failure to
cross-examine using inconsistent statements from a prior trial
to be deficient); Nixon v. Newsome, 888 F.2d 112, 115 (11th
17
At trial, Special Agent Jimenez of the Drug Enforcement
Agency testified his understanding of the December 16 phone
call to be “Good . . . was telling Mr. Travillion that he owed
him $4,500.00 because he had given him five ounces of
crack.” (App. vol. III at 373 (emphasis added).) Keeley
Sowell, a user and dealer with Good, also testified she saw
Good sell crack to Travillion. Finally, another dealer in
Good’s network, Sherri Hunter, testified that in a call on the
same day, she and Good discussed whether or not she had
enough crack before he went away, similar to Good and
Travillion’s conversation.
17
Cir. 1989) (determining deficiency by trial counsel for failing
to confront the witness with evidence available in the
transcript), however, this is not ultimately decisive under the
prejudice prong.
Nevertheless, the collective evidence presented by the
Government and the evidence elicited by trial counsel in his
cross-examination of Good shows Travillion was not
prejudiced, as the outcome of the trial would not have been
different. Counsel’s strategies, as expressed in his closing
argument, were to attack the credibility of Good as a witness,
call into question his recollection of what drug he sold to
Travillion, and establish a two-fold defense that: (1)
Travillion was not a co-conspirator with Good, and (2)
Travillion possessed heroin, not crack. Counsel stated:
[I]f you listen to the conversations, the
words, there is no question that Mr. Travillion
possessed heroin on that day with the intent to
distribute it to someone else . . . . What we are
arguing is the drug.
....
Police say anything about the 12-16-02
of substance? No . . . . Keeley say anything
about that? No. Sherri Hunter? No. Lamont
Washington? No. No physical evidence. Wasn’t
arrested with any stuff. No drugs seized. No
drugs found. No statement. No surveillance,
whether it just be eyeball from police officers or
videotape. Nothing.
It boils down to, folks, to Michael Good.
....
18
I am going to argue to you that the facts
and circumstances are going to demonstrate to
you that it was heroin, not coke.
....
Before we get to that, central to our
theme, the government’s theme to get a
conviction on that, you guys need to believe
Michael Good . . . . No doubt about it, did
Michael Good present himself to you as
someone who has a firm grasp of the facts[?]
Long drug history.
And then we are being asked questions
about an event four years ago. Imagine yourself
without drug history, and fried brain cells, being
asked what happened four years ago. It would
be very, very difficult.
(App. vol. V at 1034-35.) Counsel was able to employ this
strategy effectively through his cross-examination of Good,
during which he elicited testimony of Good’s addictions,18 his
18
[Attorney:] Sir, you told this jury about your
addiction history. One addiction was to heroin,
right?
[Good:] Yes.
[Attorney:] Another addition was to cocaine?
[Good:] Yes.
....
[Attorney:] And you were addicted to crack
cocaine?
[Good:] Yes.
(App. vol. IV at 585.)
19
lack of memory of specific events,19 and his exchange of
testimony for a reduced sentence.20
Travillion testified and claimed instead the drug
discussed on December 16th was heroin. On cross, however,
Travillion undermined his own testimony by admitting the
conversation was the first ever dealing of heroin between the
two.21 Further, Travillion also admitted that Good typically
19
Counsel also addressed Good’s inability to recall his
dealings without the aid of telephone calls as evidence.
[Attorney:] Not referencing the tape-
recordings[,] [a]s you sit here today, are you
able to give us specific date[s], specific amounts
of drug deals that you had with Percy
Travillion?
[Good:] No.
(Id. at 637.)
20
An example of this line of questioning is as follows:
[Attorney:] Sir, your sentence was fifteen years,
ten months, do I have that right?
[Good:] Yes.
[Attorney:] And your testimony here is
designed so you may very well get a reduction
in that sentence?
[Good:] Yes.
(Id. at 638.)
21
This evidence is relevant to the outcome of the trial because
it helps determine that it would be unlikely the coded
language and quoted prices during the December 16 call
20
sold in large quantities, much larger than what Travillion
claims was being discussed in the call.
Finally, it must further be noted that the District
Court’s jury charge informed the jury regarding Good that
[t]he testimony of an alleged accomplice,
someone who said he or she participated in the
commission of a crime, must be examined and
weighed by the jury with greater care . . . .
Michael Good . . . may be considered to
be [an] alleged accomplice[] in this case or
related cases.
....
The jury must determine whether the
testimony of the accomplices has been affected
by their self-interest or by their own agreements
with the government . . . . You should never
convict a defendant solely upon the
unsupported testimony of an accomplice unless
you believe the testimony beyond a reasonable
doubt.
(App. vol. V at 975-75 (emphasis added).) This charge further
protected Travillion by instructing the jury to heavily
scrutinize Good’s testimony as a key witness for the
Government.22
would have occurred for heroin, if the two never dealt it in the
past.
22
Trial Counsel did not object to this charge in the pretrial
proceedings.
21
Nothing in the evidence presented shows that
counsel’s errors in his cross-examination of Good were so
serious, in light of all the evidence and jury instruction, to
deprive the defendant of a trial whose result is reliable. See
Strickland, 466 U.S. at 687. The totality of the evidence
presented, and jury instruction concerning the reliability of
Good’s testimony, created a fair trial in which Travillion was
found guilty. Thus, we believe trial counsel was not
ineffective for failing to cross-examine Good with evidence
available from the Ferguson Retrial because the outcome of
the trial was not prejudiced by counsel’s actions.
2. Deficiency of Counsel’s Performance23
23
We note that we must assume from Travillion’s pro se
assertion made in his § 2255 motion and the collective record
that counsel failed to obtain and investigate the transcripts
from the Ferguson Retrial. (Appellant Br. at 22 (“Travillion
asserted in his § 2255 motion that his trial counsel failed even
to obtain the transcripts and other relevant records from the
prior trial.”).) In a pro se § 2255 petition, as here, we must
accept “as true the allegations of the petitioner, unless they
are clearly frivolous.” Moore v. United States, 571 F.2d 179,
184 (3d Cir. 1978). More importantly, the “failure to
investigate a critical source of potentially exculpatory
evidence may present a case of constitutionally defective
representation.” United States v. Baynes, 622 F.2d 66, 69 (3d
Cir. 1980).
Assuming Travillion’s allegation to be true, the
“failure to conduct any pretrial investigation generally
constitutes a clear instance of ineffectiveness.” United States
22
Having found trial counsel’s representation not to be
prejudicial to Travillion, we need not address the deficiency
prong, as both deficiency and prejudice must be proven to
support a valid claim for relief for ineffective assistance of
counsel. See Strickland, 466 U.S. at 687. “[T]here is no
reason for a court deciding an ineffective assistance claim . . .
even to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Marshall v.
Hendricks, 307 F.3d 36, 86-87 (3d Cir. 2002) (internal
citation and quotation marks omitted).
B. Double Jeopardy24
v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). “While counsel is
entitled to substantial deference with respect to strategic
judgment, an attorney must investigate a case, when he has
cause to do so, in order to provide minimally competent
professional representation.” United States v. Kauffman, 109
F.3d 186, 190 (3d Cir. 1997). This per se deficiency,
however, is not dispositive, as we have found Travillion was
not prejudiced by the actions of trial counsel.
24
A double jeopardy claim was never raised by Travillion
during the course of his trial or original appeal, and thus
would be waived. However, now the claim that is being put
forth by Travillion is “not . . . an actual double jeopardy claim
. . . but rather . . . to vacate or correct his sentence because of
ineffective assistance of counsel in failing to raise a double
jeopardy claim.” Travillion, 2012 WL 5354530, at *13 n.15
(emphasis in original). The District Court describes correctly
why this claim has not been waived for failing to raise the
issue of double jeopardy during the original trial: “[i]t is
manifest that a claim of double jeopardy is an affirmative
23
Travillion alternatively argues that trial counsel was
ineffective for failing to file a pre-trial motion challenging the
indictments charging Travillion with two conspiracies as
violative of double jeopardy.25 Even though he received
concurrent jail sentences on each count, Travillion maintains
he had to face an additional concurrent term of supervised
release and pay an extra $100 special assessment on the
second conspiracy conviction.26 Again, we undertake plenary
review under the two-prong Strickland test for deficiency and
defense which must be raised properly [i.e., before trial] or
may be deemed waived.” Id. (quoting United States v. Young¸
503 F.2d 1072, 1074 (3d Cir. 1974) (alteration in original)).
The District Court further states, “[we] need [not] reach an
ultimate conclusion about whether a claim of double jeopardy
would have been sustained. The court must follow the
Strickland analysis in determining whether counsel’s
assistance was deficient and whether petitioner was
prejudiced by this deficiency.” Id.
25
Count Nine charged Travillion with conspiracy to distribute
crack cocaine, and Count Thirteen with conspiracy to
distribute powder cocaine.
26
We have determined that Travillion was not prejudiced
with regard to his claim of inadequate cross-examination and
this ends his contention that he improperly received a
sentencing adjustment for obstructing justice. With regard to
the double jeopardy claim, there remains an issue as to
whether or not a $100 special assessment and additional
concurrent term of supervised release, standing alone, are
sufficiently prejudicial to support a motion under 28 U.S.C. §
2255. Since we resolve the double jeopardy claim on the
merits, we need not reach this issue. See Fields v. United
States, 201 F.3d 1025, 1029 (8th Cir. 2000).
24
prejudice. For this analysis we will begin by determining
whether Travillion was prejudiced by trial counsel’s failure to
challenge the indictment prior to trial.
The Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution guarantees that no person
shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The Double
Jeopardy Clause “prohibits [the government] from splitting
one conspiracy into several prosecutions.” United States v.
Becker, 892 F.2d 265, 268 (3d Cir. 1989). The key is whether
the multiple crimes charged were the same “in law and in
fact.” United States v. Garcia, 919 F.2d 881, 887 (3d Cir.
1990) (internal citation and quotation marks omitted). This
Circuit employs a “totality of the circumstances” test when
determining whether a pretrial evidentiary hearing is
necessary to determine if an indictment is invalid under the
Double Jeopardy Clause. See United States v. Liotard, 817
F.2d 1074, 1078 (3d Cir. 1987).
“If the defendant makes the requisite showing, he is
entitled to a pretrial evidentiary hearing to adjudicate his
double jeopardy claim.” United States v. Smith, 82 F.3d 1261,
1267, 1273 (3d Cir. 1996) (“The defendant need only be able
to identify alleged facts and other evidence which, if credited,
gives reason to believe that any alleged conspiratorial activity
was in furtherance of a single conspiracy.”). “The ultimate
purpose of the totality of the circumstances inquiry is to
determine whether two groups of conspirators alleged by the
government to have entered separate agreements are actually
all committed to the same set of objectives in a single
conspiracy.” Id. at 1271 (emphasis added). Moreover, “[a]
non-frivolous showing of a single conspiracy will be made
25
when the record reveals a degree of participant overlap,
which together with other factors, permits an inference that
members of each alleged conspiracy were aware of the
activities and objectives of the other conspiracy and had some
interest in the accomplishment of those objectives.” Id.
Under Liotard’s “totality of the circumstances” test,
the threshold is not high, and requires four factors to be
considered.
[A] conspiracy defendant will make out a non-
frivolous showing of double jeopardy if he can
show that (a) the “locus criminis” of the two
alleged conspiracies is the same, (b) there is a
significant degree of temporal overlap between
the two conspiracies charged, (c) there is an
overlap of personnel between the two
conspiracies (including unindicted as well as
indicted coconspirators), and (d) the overt acts
charged and the role played by the defendant
according to the two indictments are similar.
817 F.2d at 1078 (citations omitted) (citing United States v.
Felton, 753 F.2d 276, 279-81 (3d Cir. 1985); United States v.
Inmon, 568 F.2d 326, 328 (3d Cir. 1977)). These factors need
not be applied in a rigid manner, as “different conspiracies
may warrant emphasizing different factors.” Smith, 82 F.3d at
1267.
1. Prejudice
The District Court denied Travillion’s claim, finding
Travillion was not prejudiced by counsel failing to move to
quash the multi-conspiracy indictment. The District Court
26
reasoned instead, “[t]he ultimate question is whether there are
multiple agreements or only one.” Travillion, 2012 WL
5354530, at *13 (citing Smith, 82 F.3d at 1267). The District
Court found without merit Travillion’s argument that the
conspiracy charges were duplicative and unnecessary because
both the crack and cocaine conspiracies were charged under
the same conspiracy statute, 21 U.S.C. § 846, which does not
include type of drug as an element of the offense. Id. at *14.
We will now undertake the totality of the
circumstances test to determine if a nonfrivolous showing
was made which would have supported a pretrial evidentiary
hearing. If a showing was made, counsel’s performance may
be determined to have prejudiced Travillion.
a. “Locus Criminis”
“‘Locus criminis’ is defined very simply as the
‘locality of a crime; the place where a crime was
committed.’” Smith, 82 F.3d at 1268 (quoting Black’s Law
Dictionary 941 (6th ed. 1990)). The Government conceded,
and we agree, that the locus criminis of the Western District
of Pennsylvania or the greater Pittsburgh area was the same
for both Counts Nine and Thirteen. (Appellee Br. at 52.)
b. Temporal Overlap
It is clear there was a “significant degree of temporal
overlap” between the two conspiracies because Counts Nine
and Thirteen both state the same timeframe of the
conspiracies as “[f]rom on or about November 20, 2002, and
continuing thereafter to on or about February 8, 2003.” (App.
vol. II at 68, 72.)
27
c. Overlap of Personnel
We have outlined the importance of reviewing the
personnel involved in the two conspiracies in determining
whether a double jeopardy claim exists:
An overlap in membership is useful to a double
jeopardy analysis to the extent that it helps
determine whether the alleged conspirators in
both indictments were committed to the same
objectives and consequently were members of a
single conspiracy. . . . [I]n evaluating the degree
of overlap-in-participants factor in a particular
case, one must look to the circumstances of
both the common participants and the
participants apparently connected with only one
of the alleged conspiracies.
Smith, 82 F.3d at 1269. Determination of an overlap of
personnel can help decide the relevant objectives of each
conspiracy. Id. at 1270; see also Becker, 892 F.2d at 268
(noting a conspiracy to grow and distribute marijuana and one
to smuggle and distribute foreign-grown marijuana with
overlaps in personnel had “two different objectives” and
“hence [were] two conspiracies”).
Travillion avers that while only he and Keeley Sowell
were named in both Counts, the language in the Indictment
referring to “persons unknown” encompasses other
participants, most notably Michael Good. He correctly set
forth the standard to support a pretrial evidentiary hearing as
merely a “nonfrivolous” showing of commonality, and argues
28
that enough evidence was available for trial counsel to seek a
hearing to challenge the indictments. On the commonality of
participants alone, the District Court agreed with Travillion,
finding that, although on the face of the Counts evidence of
the same parties is limited, it was “at least nonfrivolous to
claim commonality of participants.” 2012 WL 5354530, at
*15.
While we agree with the District Court that some
participants overlapped, we disagree that their knowledge of,
and objectives for, the selling of crack and cocaine were
common enough to create a single conspiracy. See Becker,
892 F.2d at 269. The overlap of participants in the two
conspiracies, at least as far as Travillion and Seeley, together
with evidence from witness testimony centering the sale of
both powdered and crack cocaine around Michael Good, is
not enough to “permit[] an inference that members of each
alleged conspiracy were aware of the activities and objectives
of the other conspiracy and had some interest in the
accomplishment of those objectives.” Smith, 82 F.3d at 1271.
To decide whether multiple conspiracies existed, and
thus if Travillion was prejudiced, we must ask not only
whether the conspirators involved in Counts Nine and
Thirteen were the same, but more broadly, under Becker,
whether they had the same objectives. In Becker, this Circuit,
under the “totality of the circumstances” test of Liotard,
determined that a “party can be involved in more than one
conspiracy at one time.” 892 F.2d at 268. Further, we must
look at whether “the two conspiracies did not depend on each
other for success and [if] they had different ultimate
objectives.” Id. at 269 (citing United States v. West, 670 F.2d
675, 681 (7th Cir. 1982)). Finally, “[w]hen the evidence
29
indicates that the activities of the alleged conspiracies are not
interdependent or mutually supportive and that there are
major participants in each conspiracy who lack knowledge of,
or any interest in, the activities of the other, this factor weighs
heavily in favor of the conclusion that two conspiracies
exist.” Smith, 82 F.3d at 1269.
Travillion failed to show many of the overlapping
participants had knowledge of other dealers involved, or sold
both drugs alleged here as part of two conspiracies. Had a
pretrial evidentiary hearing been undertaken upon trial
counsel’s petition, evidence would have been brought forth
concerning a stipulation between the parties that some
participants were solely dealers of cocaine, and others only
dealt crack, and thus had different objectives.27 (See
27
The stipulation states:
The United States and defendant Percy
William Travillion stipulate that Isaiah Sherrell
. . . would testify that . . . he was involved in
Michael Good’s crack cocaine distribution
conspiracy, . . . that Jerome Thompson . . .
would testify that . . . he was involved in
Michael Good’s powder cocaine distribution
conspiracy, . . . that Mark Craighead . . . would
testify that . . . he was involved in Michael
Good’s powder cocaine distribution conspiracy,
. . . that Sam Frazier . . . would testify that . . .
he was involved in Michael Good’s powder
cocaine distribution conspiracy, . . . [and] that
Coty Youngblood . . . would testify that . . . he
30
Stipulation, App. vol. V at 801-02.) The relevant part states
other dealers, such as Isaiah Sherrell, “had no dealings or
personal interaction in drug trafficking with defendant Percy
Travillion.” (Id. at 801.) As in Smith, “[e]xcept for [Good],
the common figure, no conspirator was interested in whether
any [deal] except his own went through. . . . The conspiracies
therefore were distinct and disconnected, not part of a larger
scheme . . . . There was no drawing of all together in a single,
overall, comprehensive plan.” 82 F.3d at 1270 (quoting
Blumenthal v. United States, 332 U.S. 539, 558 (1947)).
d. Similar Overt Acts
The District Court described this prong of the totality
of the circumstances test as “problematic,” because 21 U.S.C.
§ 846 does not require overt acts. Since there is no
requirement of an overt act, we hold that this strict approach
to this prong is too narrow and rigid under the modern
“totality of the circumstances” test. Smith, 82 F.3d at 1268
(“Undue emphasis on the alleged overt acts is precisely the
problem we sought to avoid when we adopted the totality of
the circumstances approach. That approach requires us to
look into the full scope of activities described and implied in
the indictments.”). Thus, we now broaden our analysis and
decide whether to infer only one conspiracy from the relevant
activities of those involved. See Felton, 753 F.2d at 280.
was involved in Michael Good’s powder
cocaine distribution conspiracy . . . .
(App. vol. V at 801-02.)
31
Applying this broad standard, Travillion argues we can
infer a single conspiracy to distribute cocaine-based drugs in
the Pittsburgh area. Other Circuits have found that multiple
transactions can constitute a single conspiracy. “The unity
essential to a conspiracy is derived from the assent of its
members to contribute to a common enterprise. Seemingly
independent transactions may be revealed as parts of a single
conspiracy by their place in a pattern of regularized activity
involving a significant continuity of membership.” United
States v. Kelley, 849 F.2d 999, 1003 (6th Cir. 1988) (quoting
United States v. Grassi, 616 F.2d 1295, 1303 (5th Cir. 1980)).
Conversely, the Eighth Circuit held, even if “the statutory
offenses charged are the same, . . . in context with the other
factors, this is a minor point, since one can certainly enter two
conspiracies to commit the same type of crime.” United
States v. Ledon, 49 F.3d 457, 460 (8th Cir. 1995) (referring to
21 U.S.C. §§ 841 and 846); see also United States v. Kienzle,
896 F.2d 326, 329 (8th Cir. 1990) (stating “[w]hile both
indictments charge[d] . . . a drug conspiracy violative of the
same statute, 21 U.S.C. § 846, entirely different controlled
substances are named”). Further, the Sixth Circuit has found
two conspiracies existed when charged under the same statute
as those in question here. See United States v. Wheeler, 535
F.3d 446, 457 (6th Cir. 2008) (noting an indictment charging
conspiracy to distribute cocaine and methamphetamine and a
second charging a conspiracy to distribute the same and
additional drugs were, when considering all the factors,
different enough to constitute two separate conspiracies).
Importantly, the Supreme Court has held that “a
defendant may be subject to multiple prosecutions of the
same conduct if Congress intended to impose multiple
punishments for that conduct.” United States v. Rigas, 605
32
F.3d 194, 204 (3d Cir. 2010) (citing Albernaz v. United
States, 450 U.S. 333, 344 (1981)). While Travillion was
charged in each under the same conspiracy statute, 21 U.S.C.
§ 846, the underlying offenses for each count are two separate
statutory provisions. Crack is punished under §
841(b)(1)(A)(iii), while powder cocaine falls under §
841(b)(1)(B)(ii). Congress intentionally created separate
statutory provisions and, more importantly, separate
punishments. See, e.g., United States v. Gunter, 462 F.3d 237,
242 (3d Cir. 2006) (noting the weight ratio differences for
punishment purposes for crack and cocaine). “It is well
settled that a single transaction can give rise to distinct
offenses under separate statutes without violating the Double
Jeopardy Clause.” Albernaz, 450 U.S. at 344, n.3 (citing
Harris v. United States, 359 U.S. 19 (1959)). Most
importantly, “[t]his is true even though the ‘single
transaction’ is an agreement or conspiracy.” Id. (citing
American Tobacco Co. v. United States, 328 U.S. 781
(1946)). The potential punishments for crack and powder
cocaine differ and it is important to know whether the jury
convicted the defendant of conspiracy to distribute crack or
conspiracy to distribute cocaine, or both. The use of separate
conspiracies provides a convenient way of determining this.
In sum, judging the “totality of the circumstances” by
the standards set forth in Liotard, Travillion would not have
met the “nonfrivolous” threshold necessary to support an
evidentiary hearing on his double jeopardy claim, and thus he
was not prejudiced by counsel’s failure to challenge the
indictment. While a number of the Liotard factors are met,
nothing in the evidence presented overcomes the
discontinuity between the cocaine and crack conspiracies.
The parties involved, other than Michael Good, did not have a
33
singular agreement or objective, nor did they overlap in all
respects. Simply put, Travillion “has failed to provide a basis
for inferring that all conspirators were tied together into one
conspiracy.” Smith, 82 F.3d at 1268.
In light of our determination Travillion was not
prejudiced, we need not address the deficiency prong. See
Strickland, 466 U.S. at 697. In addition, we need not reach
the issue of whether or not a concurrent additional term of
supervised release and an extra $100 special assessment were
sufficiently prejudicial to support a motion under 28 U.S.C. §
2255.
IV. Conclusion
For the foregoing reasons, because Travillion failed to
prove he was prejudiced on either ground due to counsel’s
alleged ineffectiveness, he has not met his burden. No
“fundamental defect which inherently results in a complete
miscarriage of justice” has been shown to exist and the result
of the trial is reliable. Accordingly, we will affirm the
decision of the District Court denying Travillion’s § 2255
motion.
34