United States v. Burwell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 04cr355-05 (CKK)
(Civil Action No. 14-270)
BRYAN BURWELL,
Defendant.
MEMORANDUM OPINION
(January 15, 2015)
On July 15, 2005, Bryan Burwell (“Burwell”) was convicted by a jury in this Court of:
conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise,
through a pattern of racketeering activity (“Count I”), including the armed robbery of the
Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June
12, 2004 (“Racketeering Act 3”) and the armed robbery of the Chevy Chase Bank located at
5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 (“Racketeering Act 6”);
conspiracy to commit offenses against the United States, that is, armed robberies of banks the
deposits of which were then insured by the Federal Deposit Insurance Corporation (“Count II”);
armed robbery of the Industrial Bank on or about June 12, 2004 (“Count X”); and using and
carrying a firearm during and in relation to a crime of violence on or about June 12, 2004
(“Count XI”). Presently before the Court is Burwell’s pro se [822] Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence. Upon a searching review of the parties’
submissions,1 the relevant authorities, and the record as a whole, the Court finds no grounds for
1
While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents: Def.’s Mot. to Vacate Sentence (“Def.’s Mot.”), ECF
No. [822]; Def.’s Memo. in Support of Mot. (“Def.’s Memo.”), ECF No. [822-1]; Govt.’s Opp’n
setting aside Burwell’s conviction and sentence at this time. However, the Court shall require
further briefing on the sole issue of whether Burwell’s trial counsel was ineffective by failing to
investigate and interview two witnesses prior to trial, and shall hold in abeyance the motion only
with respect to this claim. Burwell’s motion is denied as to all other claims as described herein.
Accordingly, the Court shall DENY IN PART and HOLD IN ABEYANCE Burwell’s [822]
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
I. BACKGROUND
On August 3, 2004, a federal grand jury indicted Burwell and seven codefendants in
connection with a string of bank robberies that occurred in the District of Columbia and
Maryland.2 Indictment, ECF No. [10]. The United States Court of Appeals for District of
Columbia Circuit (“D.C. Circuit”) described the factual scenario:
[Burwell and his codefendants] indulged in a violent crime spree throughout the
District of Columbia metro area that lasted for nearly a year and a half.
Appellants, who began by cultivating and selling marijuana, evolved into a ring
that committed armed bank robberies, using stolen vehicles to travel to the
targeted banks and make their escapes. By the summer of 2004, the robbers had
developed a signature style. The gang wore bullet-proof vests, masks, and gloves,
and relied on superior fire power, preferring to use military weapons like AK-47s
instead of handguns because they surmised the metropolitan police “wouldn’t
respond” when Appellants “robb[ed] banks with assault weapons.” The gang
made use of several stolen vehicles, strategically placed along the get-away-route,
for each robbery. The robbers would serially abandon the vehicles, often torching
them in an attempt to destroy any forensic evidence that might be left behind.
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C. Cir. 2011). The matter proceeded to
trial in this Court, and Burwell was tried alongside five other codefendants. On July 15, 2005, a
to Def.’s Mot. to Vacate Sentence (“Govt.’s Opp’n”), ECF No. [827]; Def.’s Reply Brief
(“Def.’s Reply”), ECF No [851]; and transcripts of status hearings and trial.
2
An eighth codefendant later was added by virtue of a superseding indictment.
Superseding Indictment, ECF No. [19].
2
jury convicted Burwell on all four counts upon which he was charged in the indictment. Verdict
Form, ECF No. [474].
On April 28, 2006, this Court sentenced Burwell to 135 months of imprisonment on
Count I, 60 months of imprisonment on Count II, and 135 months of imprisonment on Count X
to run concurrently to each other. The Court also sentenced Burwell to 360 months of
imprisonment on Count XI to run consecutive to all counts. See Judgment in a Criminal Case,
ECF No. [615]. Burwell filed a timely appeal of his conviction and on April 29, 2011, the D.C.
Circuit affirmed Burwell’s conviction in a published opinion. United States v. Burwell, 642 F.3d
1062 (D.C. Cir. 2011). The D.C. Circuit then granted Burwell’s petition for rehearing en banc
on the issue of whether 18 U.S.C. § 924(c)(1)(B)(ii), the statute governing Count XI, requires the
government to prove that the defendant knew that the weapon he was carrying while committing
a crime of violence was capable of firing automatically. United States v. Burwell, 690 F.3d 500,
502 (D.C. Cir. 2012). In a split opinion, the D.C. Circuit held that the statute in question did not
require that the defendant know that the weapon he used, carried, or possessed was capable of
firing automatically, and, accordingly, the D.C. Circuit affirmed Burwell’s conviction. Id. at
516. Burwell filed a petition for writ of certiorari which was denied by the Supreme Court of the
United States. United States v. Burwell, -- U.S. --, 133 S. Ct. 1459 (2013). Burwell currently is
serving his sentence.
Pending before the Court is Burwell’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence. Burwell’s motion is premised on overarching ineffective assistance
of counsel claims at four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his
trial counsel, Anthony D. Martin, and his appellate counsel, Robert S. Becker. Specifically,
3
Burwell claims that his counsel rendered him ineffective assistance by: (1) failing to challenge
the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double
jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to
dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge
to certain evidence during trial and on appeal; (4) generally providing a “poor overall
performance” at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6)
failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective
closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to
request a theory-of-defense instruction at trial; (10) failing to request polling of the jury at trial;
(11) failing to properly challenge juror misconduct and bias at trial and on appeal; and (12)
failing to conduct pre-trial interviews of potential defense witnesses. Burwell also claims that
the jury instructions related to Count XI were erroneous in light of the Supreme Court’s holding
in Rosemond v. United States, -- U.S. --, 134 S. Ct. 1240 (2014).
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that
the sentence was imposed “in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). The circumstances under which such a motion will be granted, however, are limited
in light of the premium placed on the finality of judgments and the opportunities prisoners have
to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a
4
prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United
States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions
of law with respect thereto.” 28 U.S.C. § 2255(b).
A prisoner may not raise a claim as part of a collateral attack if that claim could have
been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so
and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of
which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However,
“[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he
need not show ‘cause and prejudice’ for not having raised such claims on direct appeal, as these
claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130
F. Supp. 2d 43, 45 (D.D.C. 2000), aff’d, 22 F. App’x 3 (D.C. Cir. 2001) (citation omitted).
A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347,
1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the
petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said
to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, --
U.S. --, --, 131 S. Ct. 770, 787 (2011). “The reasonableness of counsel’s actions may be
5
determined or substantially influenced by the defendant’s own statements or actions . . . .
[I]nquiry into counsel’s conversations with the defendant may be critical to a proper assessment
of . . . counsel’s other litigation decisions.” Strickland, 466 U.S. at 691. In evaluating
ineffective assistance of counsel claims, the Court must give consideration to “counsel’s overall
performance,” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689. Moreover, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
III. DISCUSSION
A district court may deny a Section 2255 motion without a hearing when “the motion and
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). “‘The decision whether to hold a hearing is committed to the district court’s
discretion, particularly when, as here, the judge who is considering the § 2255 motion also
presided over the proceeding in which the petitioner claims to have been prejudiced.’” United
States v. Orleans-Lindsey, 572 F. Supp. 2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-
3089, 2009 U.S. App. LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States,
No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted));
see also United States v. Agramonte, 366 F. Supp. 2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed.
App’x 877 (D.C. Cir. 2008). “The judge’s own recollection of the events at issue may enable
him summarily to deny a Section 2255 motion.” Agramonte, 366 F. Supp. 2d at 85 (citing
6
United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915
(1992)). To warrant a hearing, the petitioner’s Section 2255 motion must “raise[] ‘detailed and
specific’ factual allegations whose resolution requires information outside of the record or the
judge’s ‘personal knowledge or recollection.’” Pollard, 959 F.2d at 1031 (quoting Machibroda v.
United States, 368 U.S. 487, 495 (1962)).
Based on a thorough review of the parties’ pleadings and the entire record in the criminal
proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion
at this time. However, the Court shall reserve its ruling on the issue of whether a hearing is
necessary based on Burwell’s claim that his counsel failed to properly investigate specific
witnesses prior to trial until further briefing is complete. As explained below, Burwell has not
proffered detailed and factual allegations outside of the record such that a hearing is required on
all other issues raised in his motion. Accordingly, the Court shall render its findings on these
claims based on the parties’ pleadings and the record.
Burwell raises 12 ineffective assistance of counsel claims related to counsel allegedly: (1)
failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to
raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to
move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause
challenge to certain evidence during trial and on appeal; (4) generally providing a “poor overall
performance” at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6)
failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective
closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to
request a theory-of-defense instruction at trial; (10) failing to request polling of the jury at trial;
7
(11) failing to properly challenge juror misconduct and bias at trial and on appeal; and (12)
failing to conduct pre-trial interviews of potential defense witnesses. Further, Burwell claims
that the jury instructions related to Count XI were erroneous in light of recent Supreme Court
precedent. The Court shall address each claim in turn.
A. Speedy Trial Challenge3
Burwell alleges that his trial counsel was ineffective by failing to move to dismiss in the
instant action based on a violation of the Speedy Trial Act.4 Def.’s Memo. at 11-15; Def.’s
Reply at 2-4. Pursuant to 18 U.S.C. § 3161(c)(1), a trial for a defendant who has pled not guilty
must commence within 70 days from the filing and making public of the indictment, or from the
date that Defendant appeared before a judicial officer of the court in which the charge is pending,
whichever is later. In a case involving multiple defendants, the speedy trial clock resets upon the
initial appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70 (D.C.
Cir. 2008). In other words, all codefendants share the speedy trial computation of the latest
codefendant. Id. (quoting Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)). However,
pursuant to section 3161(h), there are several scenarios under which the Court may toll this 70-
day time period.
In the instant action, Burwell was indicted pursuant to a sealed indictment on August 3,
3
The Court notes that in this section of his motion, Burwell references an “Exhibit 1”
that is not attached to his motion. Def.’s Memo. at 14.
4
Burwell only appears to allege a violation of his statutory speedy trial rights and not his
constitutional speedy trial rights under the Sixth Amendment. See generally Barker v. Wingo,
407 U.S. 514, 531 (1972). Accordingly, the Court shall address only this issue as it relates to his
statutory rights.
8
2004, and arraigned on August 6, 2004.5 Marvin Palmer was the last of Burwell’s codefendants
to be arrested and arraigned. Palmer’s arrest and arraignment occurred on August 25, 2004.
Accordingly, August 25, 2004 is the operative date under the Speedy Trial Act for calculating
the 70-day period for all codefendants in this matter, see Van Smith, 530 F.3d at 969-70, and
Burwell’s trial commenced on April 5, 2005, 223 days from this date.
However, on September 27, 2004, 33 days from the operative date, the Court held a
status hearing with Burwell and his seven codefendants present, to discuss the Government’s
Notice to the Court of Plan, in Consultation with Defense Counsel, for Future Actions in this
Case. See Notice to the Court of Plan, ECF No. [90]. At the hearing, Burwell’s counsel,
indicated on the record in the presence of Burwell, that this was a complex case under the
Speedy Trial Act, allowing for tolling of the Act for a reasonable period of time in order to
prepare the case. Order (Oct. 4, 2004), ECF No. [92]. Indeed, Mr. Martin expressly indicated
that he had spoken with his client about the likelihood that the case would be deemed complex
and that the trial probably would be set in 2005. Tr. 22:25—23:2 (Sept. 27, 2004), ECF No.
[675]. Further, Mr. Martin stated, “I believe that at this point all counsel have had a chance to
5
In his reply, Burwell also appears to assert that his trial counsel should have argued that
the Speedy Trial Act was violated on the basis of the filing of the superseding indictments in this
matter on November 9, 2004, and February 15, 2005, see Def.’s Reply at 4, because the Act
requires the filing of an indictment within 30 days of the defendant’s arrest, see 18 U.S.C. §
3161(b) (2004). This claim fails for two reasons. First, the Court need not consider arguments
raised for the first time by Burwell in his reply because the Government has no opportunity to
respond. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). Further,
Burwell’s claim fails because a superseding indictment filed more than 30 days after an arrest
does not violate the Speedy Trial Act when, as here, the original indictment was filed within the
30-day time period. United States v. Walker, 545 F.3d 1081, 1086 (D.C. Cir. 2008), cert. denied,
557 U.S. 945 (2009). Accordingly, Burwell cannot establish that he was prejudiced by his
counsel’s failure to move to dismiss the indictment on this basis.
9
talk with their clients regarding the complexity designation and how that affects their speedy trial
issue.”6 Id. at 23:3-5.
Following the hearing on October 4, 2004, 40 days from the operative Speedy Trial Act
date, the Court entered a written order tolling the time period under the Act pursuant to 18
U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). Order (Oct. 4, 2004). Specifically, the
Court cited the nature of the case (eight codefendants and an alleged conspiracy to rob six
separate banks on six different dates), the possible testimony (expert testimony on DNA, hair,
fingerprint, and firearm analysis, and testimony of lay witnesses from the banks), as well as the
number of potential witnesses at trial (potentially sixty government witnesses). Id. at 1-2. In its
order, the Court noted that it was “the consensus of the parties and the Court that it would be
unlikely that this case would be ready to proceed to trial within the next several months due to
the extensive discovery involved, the complexity of the case, and the breadth of forensic
evidence requiring expert testimony.” Id. at 2.
The Court, specifically with the consent of Defendants, their counsel, and the
Government, ultimately held that: (1) the case was so unusual or so complex, due to the nature of
the prosecution that it was unreasonable to expect adequate preparation for pretrial proceedings
6
In the Government’s Notice to the Court of Plan, In Consultation with Defense Counsel,
for Future Actions in This Case, filed prior to the hearing, the Government noted:
Mr. Beshouri [codefendant’s counsel] informed the government that several of the
defense counsel concur that the case is complex under the Speedy Trial Act. Other
defense counsel, however, need to speak with their clients about their positions on
this issue. They can advise the Court at the status hearing this coming Monday of
their position on this matter.
Notice to the Court of Plan at 3.
10
or for the trial itself within the time limits established under the Speedy Trial Act, 18 U.S.C. §
3161(h)(8)(A),7 (B)(ii) (2004)8; (2) the failure to grant the requested additional time to prepare
the case would result in a miscarriage of justice to the Defendants, 18 U.S.C. § 3161(h)(8)(B)(i)
(2004)9; and (3) the failure to grant the requested additional time would deny the Defendants
reasonable time necessary for the effective preparation of the case, taking into account the
exercise of due diligence, 18 U.S.C. § 3161(h)(8)(B)(iv) (2004)10. Id. at 2-3. Based on these
7
Pursuant to 18 U.S.C. § 3161(h)(8)(A) (2004), the statute provides:
Any period of delay resulting from a continuance granted by any judge on his
own motion or at the request of the defendant or his counsel or at the request of
the attorney for the Government, if the judge granted such continuance on the
basis of his findings that the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy trial. No such period
of delay resulting from a continuance granted by the court in accordance with this
paragraph shall be excludable under this subsection unless the court sets forth, in
the record of the case, either orally or in writing, its reasons for finding that the
ends of justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial.
8
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(ii) (2004), a judge considering whether to grant a
continuance shall consider “[w]hether the case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that
it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself
within the time limits established by this section.”
9
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(i) (2004), a judge considering whether to grant a
continuance shall consider “[w]hether the failure to grant such a continuance in the proceeding
would be likely to make a continuation of such proceeding impossible, or result in a miscarriage
of justice.”
10
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(iv) (2004), a judge considering whether to grant
a continuance shall consider:
Whether the failure to grant such a continuance in a case which, taken as a whole,
is not so unusual or so complex . . . . would deny the defendant reasonable time to
obtain counsel, would unreasonably deny the defendant or the Government
11
findings, the Court concluded that the ends of justice required that the case proceed to trial
outside of the 70-day period prescribed by the Speedy Trial Act.11 Id. at 3.
Given the Court’s specific written findings tolling the time frame under the Speedy Trial
Act in compliance with the requirements of 18 U.S.C. § 3161(h) (2004), the Court finds that
Burwell’s related ineffective assistance of counsel claim fails. Burwell argues that the
requirements of an “ends-of-justice” continuance were not met because the grant of a
continuance allowed the Government to bolster its case against Burwell by giving the
Government time to negotiate with codefendants who testified against Burwell. Def.’s Memo. at
14. While one reason for granting the continuance was to give the prosecution time to prepare
because of the complex nature of the case, this characterization is inaccurate because the
continuance also specifically was granted to give the defense time to effectively prepare their
case and to avoid a miscarriage of justice. Accordingly, it is clear that the Court granted the
continuance only after specifically finding that it benefited both the Government and the
Defendants.
Burwell also cites Zedner v. United States, 547 U.S. 489 (2006), in support of his
argument. However, Zedner is distinguishable from the instant action. The Supreme Court in
Zender addressed the propriety of a district court’s grant of a continuance when the court did not
continuity of counsel, or would deny counsel for the defendant or the attorney for
the Government the reasonable time necessary for effective preparation, taking
into account the exercise of due diligence.
11
Burwell seems to indicate in some instances that the Court reached the opposite
holding in this Order, i.e. finding that the trial must commence within the 70-day period. See
Def.’s Memo. at 13-14. This is contrary to the plain language of the written Order. Order (Oct.
4, 2004), at 3 (“[T]he ends of justice require that this case proceed to trial later than seventy days
from the date the Defendants were indicted.”).
12
make express findings on the record either orally or in writing regarding the end-of-justice
balance. Zedner, 547 U.S. at 506. Here, it is clear that the Court made formal written findings on
this issue close in time to the hearing and, as such, Zedner is distinguishable.
Finally, Burwell asserts that “at no point did counsel ever explain to Petitioner his right to
a speedy trial, or the mandatory dismiss[al] for that violation . . . . Had counsel done so in this
case, Petitioner would have insisted that a motion to dismiss was filed.” Def.’s Memo. at 14.
Even assuming arguendo that Burwell’s counsel did commit an error by not advising of him of
his statutory Speedy Trial rights, and that his counsel misrepresented that he had explained his
rights to his client and that his client had consented to the designation of the case as complex,
Burwell was not prejudiced by this error. The Court tolled the time under the Speedy Trial Act
pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). None of those provisions
require the consent of the defendant. Rather, a party or the Court may move for tolling under
these provisions, but the Court applying the appropriate legal standard must determine whether
such a continuance is permissible. Accordingly, even if Burwell’s counsel had objected to the
tolling of the time prior to the entry of the Court’s findings, it is not reasonably likely that this
objection would have dissuaded the Court from finding that the case was complex and that all
parties needed additional time to prepare given that this was a case involving several
codefendants alleged to have been involved in a conspiracy that included the armed robbery of
six different banks. Further, if Burwell’s counsel moved to dismiss the indictment on the basis
that there was a violation of the Speedy Trial Act, it is not reasonable to conclude that the Court
would have dismissed the indictment given that it followed the required procedures under the
Act for tolling. See Order (Oct. 4, 2004). Finally, the Court notes that Burwell and his
13
codefendants filed 40 substantive pre-trial motions which added to the complexity of the case
and independently tolled the Speedy Trial clock.12 See 18 U.S.C. § 3161(h)(1)(F) (2004).
Accordingly, the Court concludes that there was no Speedy Trial Act violation in the instant
12
Perkins’ Mot. for Discovery Stmt. of Co-Defendants and Co-Conspirators, ECF No.
[128]; Perkins’ Mot. for Disclosure of Favorable Evid. Against Witnesses Not Called to the
Stand by Govt., ECF No. [129]; Perkins’ Mot. for Disclosure of Identity of Confidential
Informants, ECF No. [130]; Perkins’ Mot. to Disclose All Instances Where Witnesses were
Interviewed Jointly, ECF No. [131]; Perkins’ Mot. for Relief from Prejudicial Joinder, ECF No.
[211]; Jt. Mot. in Limine to Exclude Alleged Bad Acts and Uncharged Misconduct, ECF No.
[134]; Aguiar’s Mot. for Pretrial Identification and Production of Jencks Material, ECF No.
[135]; Aguiar’s Mot. to Sever Defendants and/or Mot. to Sever Counts, ECF No. [136]; Aguiar’s
Mot. to Disclose Identities of Each Confidential Informant Regardless of if they will be Called
for Trial, ECF No. [137]; Burwell’s Mot. for Notice of Intent to Introduce Uncharged
Misconduct and Prior Convictions, ECF No. [138]; Burwell’s Mot. to Compel Disclosure of
Info. Regarding Confidential Informants, Witnesses and Cooperating Criminals, ECF No. [139];
Burwell’s Mot. to Strike Alias, ECF No. [140]; Burwell’s Mot. to Preserve Notes, Report and
Evid., ECF No. [141]; Burwell’s Mot. to Adopt Mot. filed on behalf of Co-Defendants, ECF No.
[142]; Burwell’s Mot. to Reveal the Identity of Informant(s) and the Basis of their Reliability,
ECF No. [143]; Burwell’s Mot. to Sever Count(s) and to Try Co-Defendants Separately, ECF
No. [144]; Burwell’s Mot. in Limine regarding Video Tape Evid., ECF No. [145]; Palmer’s Mot.
to Suppress Identification Evid., ECF No. [147]; Palmer’s Mot. in Limine to Exclude Def.
Marvin Palmer’s Incarcerated Status in New York, ECF No. [149]; Palmer’s Mot. to Adopt
Codefendant’s Mots., ECF No. [151]; Stoddard’s Mot. for Bill of Particulars, ECF No. [152];
Stoddard’s Mot. for Pretrial James Hrg., ECF No. [153]; Stoddard’s Mot. to Strike, ECF No.
[154]; Stoddard’ Mot. to Bifurcate Trial, ECF No. [155]; Stoddard’s Mot. to Sever Counts, ECF
No. [156]; Stoddard’s Mot. to Dismiss Count One of the Indictment, ECF No. [157]; Stoddard’s
Mot. to Suppress, ECF No. [158]; Stoddard’s Mot. to Suppress Identification Evid., ECF No.
[159]; Stoddard’s Mot. to Suppress Evid., ECF No. [160]; Stoddard’s Mot. to Sever Defs., ECF
No. [161]; Morrow’s Mot. to Suppress Identification Evid., ECF No. [162]; Morrow’s Mot. to
Identify Witnesses with Juvenile Adjudications and pending Juvenile Proceedings and to Inspect
Juvenile Files, ECF No. [164]; Jt. Mot. for Relief from Improper Joinder, and Mot. for Severance
of Offenses and/or Defs., ECF No. [165]; Jt. Mot. for In Camera Review of Grand Jury
Testimony to Determine the Existence of a Racketeering Enterprise, ECF No. [166]; Perkins’
Mot. to Adopt Mots. Filed on Behalf of Co-Defendants, ECF No. [167]; Perkins’ Mot. to
Suppress All Evid. Seized pursuant to a Constitutionally Defective Warrant, ECF No. [168]; Sld.
Jt. Def. Motion to Dismiss Indictment, ECF No. [172]; Aguiar’s Mot. to Prevent Govt. from
Introducing Fed. R. 404(b) Evid. Against Def., ECF No. [464]; Perkins’ Mot. for Change of
Venue, ECF No. [196]; Palmer’s Mot. for Determination of Crawford Parameters, ECF No.
[226]. Additionally, the Government also filed one pre-trial motion. Govt.’s Motion in Limine
and First Notice of Intention to Introduce Evid. Pursuant to Fed. R. Evid. 404(b), ECF No. [133].
14
action regardless of the consent issue.
Given that the Court followed the required process for tolling time under the Speedy Trial
Act regardless of whether Burwell consented to the tolling, Burwell cannot establish that his
counsel acted in an objectively unreasonable manner by failing to move to dismiss the case on
the basis that the Court violated the 70-day requirement of the Act, nor can he establish that there
is a reasonable likelihood of a different result had trial counsel made such a motion.13
Accordingly, Burwell’s ineffective assistance of counsel claim premised on trial counsel’s failure
to move to dismiss the instant action on the basis of a Speedy Trial Act violation is without
merit.
B. Double Jeopardy and Multiplicity Challenges
Burwell next argues that his trial counsel was ineffective by failing to raise double
jeopardy and multiplicity challenges to the indictment prior to trial and for failing to move to
dismiss the indictment based on this challenge. Def.’s Memo. at 15-18, 21, 24-25; Def.’s Reply
at 1-2. Specifically, Burwell objects to Count I of the indictment, conspiracy to participate in a
racketeer influenced corrupt organization (“RICO”) pursuant to 18 U.S.C. § 1962(d), which
Burwell argues is multiplicitous of the other charged robbery offenses. Def.’s Memo. at 15-18,
21; Def.’s Reply at 2. Burwell also argues that his multiple charges under 18 U.S.C. § 924(c),
using and carrying a firearm during and in relation to a crime of violence, were improper. Def.’s
Memo. at 16-17; Def.’s Reply at 2. Burwell’s claims for ineffective assistance of counsel on
13
Burwell also appears to argue that the Court tolled the time under the Speedy Trial Act
due to the Government’s filing of a superseding indictment. Def.’s Memo. at 13. However, it is
clear from the record that this was not the basis for the tolling and rather, the tolling was done
pursuant to the Court’s findings under 18 U.S.C. § 3161(h)(8) (2004).
15
these issues fail because: (1) his trial counsel did challenge the RICO charge, Count I, prior to
trial on the grounds that it was multiplicitous and Burwell raises no additional valid arguments
that his counsel should have advanced;14 and (2) Burwell was only charged with one count under
18 U.S.C. § 924(c), Count XI, and accordingly, he cannot argue that he was improperly charged
with multiple offenses under section 924(c).
Turning first to the RICO charge, Burwell’s counsel filed a Joint Defense Motion to
Dismiss the Indictment due to Multiplicitous and Duplicitous Charging prior to trial. Sealed Jt.
Def.’s Mot. to Dismiss Indictment, ECF No. [172]. The Court issued a Memorandum Opinion
on March 16, 2005, finding that Burwell’s arguments were without merit. Memo. Op. (Mar. 16,
2005), at 13-22, ECF No. [437]. While Burwell at one point concedes that his trial counsel
actually did argue that the RICO charge constituted double jeopardy and a multiplicitous charge,
Burwell then asserts that his trial counsel’s “arguments were deficient,” and “[h]ad counsel made
the proper arguments there is reasonable probability that the substantive count would have been
dismissed.” Def.’s Memo. at 25. Burwell appears to raise two arguments as to the deficiency of
the arguments raised in the motion: (1) trial counsel should have relied on different case law to
establish that the RICO charge was multiplicitous of other charged offenses; and (2) trial counsel
should have argued that the RICO charge and the charge of armed robbery of the Industrial Bank
were multiplicitious. The Court shall address each argument in turn.
Burwell asserts that the RICO charge required proof that Burwell: committed the
14
On appeal, Burwell challenged the sufficiency of the evidence presented at trial with
relation to the RICO charge. Jt. Brief of the Appellants at 74-83, Burwell et al v. United States,
No. 06-3071 (D.C. Cir. Oct. 2, 2009). The D.C. Circuit found the challenge to be without merit
and, accordingly, did not discuss it in its opinion. See United States v. Burwell, 642 F.3d 1062,
1065 (D.C. Cir. 2011).
16
robberies at issue; protected members of the enterprise; maintained weapons, body armor, and
money of the enterprise in safe places; and retaliated against persons who interfered with the
operation of the enterprise. Burwell argues that this conduct also forms the bases of other
charged offenses for which Burwell was convicted and, accordingly, the RICO charge violates
the Double Jeopardy clause. Def.’s Memo. at 15. Burwell provides a lengthy quote from the
Second Circuit’s holding in United States v. Basciano, 599 F.3d 184 (2d Cir. 2010), in support of
his argument.15 However, Basciano is distinguishable from the instant action because in that
case, the Second Circuit addressed the issue of bringing multiple RICO charges against the same
defendant based on the same enterprise. See id. at 188-89 (indicating that the defendant was
indicted for one count of substantive racketeering, and three counts of conspiracy to murder in
the aid of racketeering, and that the government conceded that the racketeering charges stemmed
from the same enterprise but argued that they involved different patterns of racketeering). In
contrast, the instant action does not raise the same concerns as those in Basciano because
Burwell was charged with one RICO charge related to one enterprise. Accordingly, the Court is
not persuaded that Burwell’s counsel was ineffective by failing to make this additional argument
on Burwell’s behalf.
Further, to the extent that Burwell may be arguing that the RICO charge (Count I), and
the armed robbery of the Industrial Bank on or about June 12, 2004 (Count X) are multiplicitous
charges, an argument that does not appear to have been advanced in his pre-trial motion, the
15
The Court notes that the trial in the instant action took place in 2005, and Basciano was
decided in 2010.
17
Court finds that this argument also is without merit.16 Multiplicitous charges “improperly
prejudice a jury by suggesting that a defendant has committed not one but several crimes.”
United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981). “An indictment is multiplicitous, and
thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a
defendant’s exposure to criminal sanctions.” United States v. Anderson, 39 F.3d 331, 353-54
(D.C. Cir. 1994), rev’d en banc, 59 F.3d 1323 (D.C. Cir. 1995) (en banc). Under Blockburger v.
United States, 284 U.S. 299 (1932), the relevant test for determining whether two counts of an
indictment are multiplicitous is as follows: “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each [count] requires proof of an additional fact which the
other does not.” Id. at 304. However, “the Blockburger rule is not controlling when the
legislative intent is clear from the face of the statute or the legislative history.” Garrett v.
United States, 471 U.S. 773, 779 (1985). Indeed, “the Blockburger presumption must of course
yield to a plainly expressed contrary view on the part of Congress.” Id. Accordingly, it is
particularly relevant to the instant action that “Congress intended that a RICO violation be a
discrete offense that can be prosecuted separately from its underlying predicate offenses.”
United States v. Crosby, 20 F.3d 480, 484 (D.C. Cir. 1994).
Here, Count I charges racketeering acts that require the Government to establish an
“enterprise” and the “continuing” commission of stated offenses such as armed robbery and acts
16
In the instant motion, Burwell asserts: “In this case, the armed bank robbery (Counts
III, VII, X, XV) are certainly substantive counts of the Rico allegations and conduct charged in
Count 1. Moreover, Count XIX was subsumed in Count One.” Def.’s Memo. at 15. The Court
shall only address this claim as it relates to Counts I and X, because Burwell was not charged
with or convicted of the other specified counts.
18
involving murder. In contrast, Count X is a charge for the substantive crime of armed robbery.
Given the clear congressional intent to allow RICO violations to be prosecuted separately from
underlying offenses, the Court finds that Counts I and X are not multiplicitous in violation of the
Double Jeopardy clause. Accordingly, the Court cannot conclude that trial counsel acted in an
objectively unreasonable manner by not raising this specific challenge to Burwell’s indictment.
Turning to Burwell’s argument regarding Count XI, using and carrying a firearm during a
crime of violence under 18 U.S.C. § 924(c), Burwell points to case law to support his argument
that the charge under this section was improper. Burwell cites the D.C. Circuit’s ruling in United
States v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (en banc), in which the Circuit held that a
defendant could not be convicted of multiple counts of using or carrying a firearm during and in
relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), if each of the charges was tied to
the same predicate offense, in that case a narcotics conspiracy. Anderson, 59 F.3d at 1324-25,
1334. Burwell also cites to the D.C. Circuit’s holding in United States v. Wilson, 160 F.3d 732
(D.C. Cir. 1998), that a defendant cannot be convicted of more than one offense under 18 U.S.C.
§ 924(c), based on one use of one firearm but with two underlying offenses. Id. at 748-50.
Anderson and Wilson are not instructive because those cases deal with the propriety of
convicting a defendant of more than one violation of 18 U.S.C. § 924(c), and in the instant
action, Burwell was charged with only one count (Count XI), of using and carrying a firearm
during a crime of violence under section 924(c).17
17
While this does not appear to be the crux of Burwell’s argument in the instant motion,
the Court notes that in its Memorandum Opinion, it addressed the issue of “whether the different
alternatives under 18 U.S.C. § 924(c) -- e.g., use or carry, possess in furtherance of, brandish, or
discharge a firearm -- are separate offenses, as the different alternatives carry different
19
Given that Burwell has pointed to no additional, valid arguments that his counsel should
have raised, the Court finds that trial counsel, who moved the Court to dismiss the indictment
based on several double jeopardy and multiplicity challenges prior to trial, did not act in an
objectively unreasonable manner. Accordingly, the Court finds that Burwell’s ineffective
assistance of counsel claims related to the multiplicity and double jeopardy challenges to the
indictment are without merit.
C. Confrontation Clause Challenge
Burwell next alleges that his trial and appellate counsel rendered ineffective assistance of
counsel by failing to raise a Confrontation Clause challenge to records and affidavits admitted
into evidence at trial to establish that the banks that were robbed were Federal Deposit Insurance
Corporation (“FDIC”) insured, one of the elements of Count II. Specifically, Burwell objects to
the admission of documents establishing the insured status of four banks – Bank of America,
Riggs Bank, Chevy Chase Bank, and SunTrust – along with affidavits attesting to the fact that
the documents were official records of the FDIC; the records and accompanying affidavits were
admitted into evidence at trial without objection. See Ex. CCB-001 (Proof of Insured Status for
Chevy Chase Bank), ECF No. [837-1]; RB-001 (Proof of Insured Status for Riggs Bank), ECF
punishments.” Memo. Op. at 19. This issue was raised by Burwell’s counsel in his motion and,
thus, any claim for ineffective assistance of counsel on this issue does not have merit.
Ultimately, the Court noted that there may be a duplicity issue with Count XI because the
relevant provisions of the charged offense criminalize two separate offenses: (1) using or
carrying a firearm during and in relation to an applicable crime of violence, and (2) possessing a
firearm in furtherance of an applicable crime of violence. Id. at 20. However, the Court found
that the Government could proceed with this charge by employing use of a special verdict form
to ensure that the jury considered the different alternatives separately. Id.; see also Verdict
Form, at 2-3 (“Count Eleven: Using and carrying a firearm during and in relation to a crime of
violence on or about June 12, 2004.”).
20
No. [837-2]; BOA-001 (Proof of Insured Status for Bank of America), ECF No. [837-3]; SUN-
001 (Proof of Insured Status for SunTrust Bank), ECF No. [837-4]. The Court finds that this
claim is without merit for the several reasons described below.
First, Burwell’s claim fails because the official records and accompanying affidavits were
not testimonial and, thus, do not invoke Confrontation Clause challenges. As the Government
properly points out, the records themselves were admitted into evidence under the public records
exception to the hearsay rule. See Fed. R. Evid. 803(8) (Hearsay Exception for Public Records).
Further, the affidavits were admitted pursuant to Federal Rule of Evidence 902(4), to establish
that the evidence was self-authenticating as certified copies of public records.
Burwell relies on the Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009), in support of his Confrontation Clause argument. In Melendez-Diaz, the
Supreme Court held that affidavits showing the results of forensic analyses performed on seized
substances are testimonial statements and, accordingly, analysts are witnesses under the
Confrontation Clause of the Sixth Amendment. Id. at 309-11. The Court clarified that affidavits
“‘made under circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial,’” id. at 311 (quoting Crawford v.
Washington, 541 U.S. 36, 52 (2004)), are testimonial statements and, accordingly, the authors of
such affidavits are witnesses for the purposes of the Confrontation Clause of the Sixth
Amendment. Id. at 311. The Court found that “[a]bsent a showing that the [authors of the
affidavits] were unavailable to testify at trial and that petitioner had a prior opportunity to cross-
examine them, petitioner was entitled to ‘be confronted with’ the [authors of the affidavits] at
trial.’” Id. In drawing a connection between the affidavits at issue in Melendez-Diaz, and the
21
affidavits certifying the FDIC records in this instant action, Burwell argues that his trial counsel
erred by failing to raise a Confrontation Clause challenge to the admissibility of the affidavits
reflecting that the banks were insured by the FDIC because the authors of the affidavits did not
testify at trial. The Court finds that this argument fails based on the relevant case law on this
issue.
Indeed, the Supreme Court in Melendez-Diaz, appeared to distinguish between situations
in which an affidavit is used to authenticate an otherwise admissible record from an affidavit
created for the sole purpose of providing evidence against a defendant. See Melendez-Diaz, 557
U.S. at 322-23. This Court itself has held that an affidavit certifying the authenticity of a record
is not testimonial and, accordingly, not subject to the Confrontation Clause. As this Court held,
“[i]t is the records, not the certification, that are introduced into substantive evidence against the
defendant during trial. The certifications at issue are simply ‘too far removed from the ‘the
principal evil at which the Confrontation Clause was directed’ to be considered testimonial.’”
United States v. Edwards, Crim. Case No. 11-129-1, 1, 11 (CKK), 2012 WL 5522157, at *2
(D.D.C. Nov. 15, 2012) (quoting United States v. Ellis, 460 F.3d 920, 920 (7th Cir. 2006)). The
Court finds the affidavits were not testimonial within the meaning of the Confrontation Clause
because the affidavits in question were created only to certify the authenticity of the public
records, and not to provide substantive evidence against Burwell at trial.
Second, Burwell’s claim fails because there was independent testimony at trial that each
of the four banks were FDIC-insured and Burwell’s counsel was presented with the opportunity
to cross-examine these witnesses on the issue. Tr. 1216:6-21 (Apr. 18, 2005) (Testimony of
Viola J. Scott, banking center manager at Bank of America branch); Tr. 1463:23—1464:10 (Apr.
22
19, 2005) (testimony of Ricardo Young, assistant manager at Riggs Bank branch); Tr. 1543:5-19
(Apr. 20, 2005) (Testimony of Jacqueline Caldwell, bank manager at Chevy Chase Bank branch
in Hyattsville, MD); Tr. 1634:15-23 (April 20, 2005) (Testimony of Curtis Oliver, branch
manager at Chevy Chase Bank branch in Silver Hill, MD); Tr. 2168:11—2169:2 (Apr. 25, 2005)
(Testimony of Charlene Hollings, branch manager of SunTrust Bank branch). Finally, Burwell’s
claim fails because he has not pointed to any evidence that his counsel failed to present that
refuted the assertion that the banks were in fact FDIC-insured, nor does Burwell himself at this
juncture appear to be claiming that the banks were not FDIC-insured.18
Given that the evidence in question does not raise Confrontation Clause concerns and that
defense counsel was presented with the opportunity to cross-examine witnesses who testified that
each bank was FDIC-insured, the Court finds that both trial counsel and appellate counsel did not
act in an objectively unreasonable manner by failing to raise this challenge either at trial or on
appeal. Nor does the Court find that Burwell was prejudiced by counsels’ failure to raise this
claim because Burwell has not pointed to any evidence to rebut the claim that the banks were
FDIC-insured. Accordingly, the Court concludes that Burwell’s claim that his counsel rendered
him ineffective assistance of counsel by failing to raise a Confrontation Clause challenge is
without merit.
D. General Performance During Trial
18
Burwell in his reply also indicates that the Court admitted the certificates “without any
reliability finding or any attemp [sic] to engage in the balancing test required by Rule 32.1.”
Def.’s Reply at 7. Both Federal Rule of Criminal Procedure 32.1 and this Court’s LCrR 32.1
address the procedure for revoking or modifying probation or supervised release and,
accordingly, are not relevant to the instant matter under which Burwell currently is serving his
term of imprisonment.
23
Burwell next alleges that his counsel rendered ineffective assistance by failing to cross-
examine witnesses, by failing to employ a “theory of defense,” and by generally providing a
“poor overall performance” at trial. The Court finds that Burwell has failed to establish that his
trial counsel was deficient in any of these respects and, accordingly, his claims for ineffective
assistance of counsel on these bases are without merit.
Burwell does not point to any specific witnesses whom his counsel failed to cross-
examine. He simply explains that his counsel “during trial was ineffective with poor overall
performance.” Def.’s Memo. at 22. Specifically, Burwell argues that his counsel’s strategy was
to remain silent as much as possible due to Burwell’s lesser role and lesser charges as compared
to his codefendants. Id. Burwell further asserts that “[d]uring the trial[,] testimony from
government witnesses was inconsistent and counsel still waited for other defense lawyers to
object and [did] not applying any theory of defense what so ever.” Id. at 23.
Under Strickland, in order to establish ineffective assistance of counsel, a defendant must
show that his counsel’s performance was deficient, and that the deficient performance prejudiced
the defense. United States v. Brown, 398 Fed. App’x 599, 600 (D.C. Cir. 2010). However, the
Court is not required to consider both prongs of the test if it can dispose of the claim on one or
the other. Id. Here, Burwell has failed to meet the first prong because he has not shown that his
counsel’s performance was deficient. Burwell’s vague claim that his counsel should have cross-
examined unnamed government witnesses is insufficient to overcome the strong presumption
that his counsel’s representation at trial was adequate and reasonable. See United States v. Rush,
910 F. Supp. 2d 286, 293-94 (D.D.C. 2012) (holding that defendant’s broad claim that counsel
failed to secure and adequately explain the terms of her plea agreement was insufficient to
24
overcome the presumption that her counsel’s representation was reasonable); Simms v. United
States, 730 F. Supp. 2d 58, 61 (D.D.C. 2010) (holding that “vague and conclusory” allegations
that counsel’s representation was ineffective are not enough to overcome the strong presumption
of effective representation). Indeed, Burwell has pointed to no specific witnesses that he argues
his attorney should have cross-examined, other than generally referring to the testimony of
“government witnesses,” that spanned over roughly eight weeks.
Burwell’s allegation that his counsel employed “no theory of defense” and, thus, was
ineffective similarly fails. While Burwell asserts that his counsel employed no “theory of
defense,” in the same passage he does indicate that his counsel employed the strategy of
minimally speaking at trial to deflect focus away from Burwell and on to his codefendants who
allegedly had played a larger role in the conspiracy. Def.’s Memo. at 22-23. Indeed, the
assertion that Burwell’s counsel made a strategic decision to allow codefendants’ counsel to
speak more frequently in order to draw attention away from Burwell’s alleged role does not
establish that Burwell’s counsel had no theory of the defense. As the Government points out,
Burwell’s counsel pursued an alibi defense which is well within the range of professionally
reasonable judgments. Govt.’s Opp’n at 17. Given the nature of the charges against Burwell as
compared to those of his codefendants and the nature of the evidence, Burwell has not
demonstrated that his trial counsel’s performance was in any way deficient based on his alleged
failure to employ a theory of the defense. See Strickland, 466 U.S. at 681 (“[S]trategic choices
about which lines of defense to pursue are owed deference commensurate with the
reasonableness of the professional judgments on which they are based.”). Similarly, Burwell’s
general allegation that his defense counsel waited for codefendants’ counsel to object does not
25
establish either that Burwell’s counsel’s performance was deficient or that such a deficiency
prejudiced Burwell, given that objections were made by other counsel and Burwell has pointed
to no specific objection that should have been raised but was not.19 Finally, Burwell’s bare
allegation that his counsel was ineffective by giving a “poor overall performance” is simply not
enough to overcome the presumption that his counsel’s representation was reasonable. See
Def.’s Memo. at 22.
Burwell has made no specific arguments to support the contention that his trial counsel’s
performance was deficient by failing to cross-examine unspecified witnesses, employing “no
theory of defense,” or generally providing what Burwell deemed a “poor overall performance” at
trial with no specific information. Accordingly, Burwell’s ineffective assistance of counsel
claims on these bases fail.
E. Burwell’s Right to Testify at Trial
Burwell raises the claim that his counsel was ineffective by failing to allow him to testify
on his own behalf despite Burwell “plead[ing] with counsel” to be able to do so. Def.’s Memo.
19
Indeed, the Court in its Order Setting Forth Trial Procedures in Criminal Cases
specifically explained:
From and after the moment the case is called for trial, any objection, motion or
other application for relief made by any defense counsel orally or in writing shall
be deemed to be adopted and joined in by every other defendant, respectively,
without announcement by counsel to that effect, and the rulings of the Court shall
be deemed applicable to each defendant unless otherwise stated at the time the
ruling is made. Accordingly, it shall be regarded as unnecessary and improper for
counsel to rise to “join in” an objection or motion. Rather, counsel should rise to
be heard only for the purpose of expressly opting out of an objection or motion if
that is their position.
Order Setting Forth Trial Proc. in Crim. Cases (Feb. 23, 2005) at 7, ECF No. [202].
26
at 22. The D.C. Circuit explained that ineffective assistance of counsel claims premised on the
argument that a defendant was denied his right to testify on his own behalf should be analyzed in
a manner consistent with the two-part Strickland test. United States v. Tavares, 100 F.3d 995,
998 (D.C. Cir. 1996), cert. denied, 520 U.S. 1160 (1997). The Court must “continue to assign
special significance to the defendant’s precluded right to testify and at the same time to inquire
whether it is reasonably probable that the defendant’s testimony would have changed the
outcome of the trial in his favor.” Id. Indeed, a defendant’s testimony would have no impact or
a negative impact at trial in some cases. Id.
The Court first notes that in the instant action, Burwell was placed under oath on June 13,
2005, and Burwell, after being fully advised of his right to testify by the Court, indicated that he
was undecided on the issue of whether or not to testify. Tr. 6909:12—6911:24 (Jun. 13, 2005).
On June 16, 2005, the Court again asked Burwell if he had made a decision regarding his right to
testify, Tr. 7472:1-4 (Jun. 16, 2005), and Burwell indicated on the record, “I have made my
decision and I don’t want to testify,” id. at 7472:5-6. Further, Burwell has offered absolutely no
evidence as to what testimony he would have presented at trial that would have changed the
outcome. See Tavares, 100 F.3d at 998 (considering an affidavit submitted by the defendant
describing what testimony he would have provided at trial). The Court finds that Burwell’s
claim for ineffective assistance of counsel must fail because Burwell has failed to establish that
he was prejudiced in any way by his failure to testify. See Wilson v. United States, Crim. No. 96-
319-01 (CKK), 2005 WL 6293747, *9-*10 (D.D.C. Sept. 12, 2005) (finding that a defendant
must establish that his testimony would have sufficiently supported his alibi defense so as to
create a reasonable probability that the result of the trial would have been different); Townsend v.
27
United States, Crim. No. 88-254-03 (TFH), 2000 WL 35761242, at *5 (D.D.C. Aug. 28, 2000)
(denying defendant’s ineffective assistance of counsel claim premised on the allegation that he
was told by his defense attorney that he could not testify due to his criminal record when
defendant did not allege that his testimony would have altered the outcome of the trial or that he
had information that was substantially useful to his defense). The Court cannot conclude that
Burwell was prejudiced in any way by his failure to testify at trial and, accordingly, the Court
finds that his ineffective assistance of counsel claim related to this issue fails. Moreover,
Burwell made the decision during trial not to testify.
F. Government Misconduct
Burwell next argues that his trial counsel was ineffective by failing to challenge
government misconduct at trial or on appeal. Def.’s Memo. at 24, 28. Generally, Burwell asserts
that from a review of the trial transcripts, “it is clear that the government vouched for its
witnesses and made several prejudicial remarks to the jury during closing.” Id. at 24. Burwell
also alleges that two coconspirators turned government witnesses both testified that they were
not expecting and had not been promised any benefit for testifying at trial. Id. The Court shall
address each claim in turn.
First, the vague assertion regarding the government’s closing argument is insufficient to
establish that Burwell’s counsel’s performance fell below an objective standard of
reasonableness. Indeed, Burwell cannot overcome the strong presumption that his counsel acted
reasonably by simply lodging a vague objection that the government vouched for unidentified
witnesses and made prejudicial remarks during closing without citing a single example of
objectionable conduct. See United States v. Moore, 651 F.3d 30, 85 (D.C. Cir. 2011) (Defendant
28
must raise a “‘colorable claim’ by making ‘factual allegations that, if true, would establish a
violation of his sixth amendment right to counsel.’”); United States v. Rush, 910 F. Supp. 2d 286,
293-94 (D.D.C. 2012) (requiring more than a broad claim that counsel failed to secure and
adequately explain the terms of a plea agreement to overcome the presumption that defense
counsel’s representation was reasonable). Accordingly, the Court finds that Burwell’s claim that
his trial and appellate counsel were ineffective by failing to challenge unspecified incidents of
prosecutorial misconduct is without merit.
Second, Burwell asserts that government witnesses Noureddine Chtaini and Antwon
Perry both testified that they were not expecting nor had been promised any benefit for
testifying. Def.’s Memo. at 24. Burwell’s assertion that both Chtaini and Perry testified that
they had not been promised anything in exchange for their testimony is incorrect. Specifically,
Chtaini indicated that he had pled guilty to multiple charges, Tr. 3102:16—3104:4 (May 3,
2005), and, if he complied with the terms of his agreement including testifying truthfully and
cooperating with the Government, that the Government would submit a 5K letter requesting a
sentence that departed from the Guideline range, id. at 3104:25—3105:15. Chtaini also indicated
that he had not yet been sentenced, but that he would sentenced by this Court and that no one had
indicated to him what sentence this Court would impose. Id. at 3105:16-24. Similarly, Perry
indicated that he had entered a guilty plea, that he discussed the sentencing guidelines with his
attorney, that he was cooperating in hopes of getting a lesser sentence, and that although he
would be sentenced by this Court, he had not yet been sentenced. Tr. 5486:1—5488:6 (Jun. 1,
2005).
Accordingly, Burwell cannot establish that either his trial or appellate counsel was
29
ineffective for failing to object to, or raise on appeal, this issue, because it is clear from the
record that neither witnesses testified that he was not expecting any benefit in exchange for
testifying.
G. Defendant’s Closing Argument
Burwell next argues that his counsel was ineffective by failing to use the allotted time for
closing argument in an efficient manner. Def.’s Memo. at 23. Specifically, Burwell asserts that
his counsel used an ineffective strategy by choosing to use half of the 30-40 minutes to deliver
an anecdote. Id. “[C]ounsel has wide latitude in deciding how best to represent a client, and
deference to counsel’s tactical decisions in his closing presentation is particularly important
because of the broad range of legitimate defense strategy at that stage.” Yarborough v. Gentry,
540 U.S. 1, 5-6 (2003). Accordingly, “[j]udicial review of a defense attorney’s summation is . . .
highly deferential.” Id. at 6. In order to show that his counsel’s closing argument was
ineffective as to violate the Sixth Amendment, Burwell must meet the Strickland test by showing
that (1) his counsel’s representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Smith v. Spisak, 558 U.S. 139, 149 (2010) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Here, Burwell’s claim fails because
neither prong of the test is met based on the record.
First, Burwell’s counsel’s use of an anecdote during closing was not objectively
unreasonable. See Tr. 7881:7—7883:23 (Jun. 20, 2005). In his closing argument, Burwell’s
counsel first reminded the jury that the burden of proof rested at all times with the Government,
and reminded the jury of the charges that specifically were pending against Burwell. Id. at
30
7872:1—7873:4. Burwell’s counsel then spent a large amount of time attacking the
government’s evidence against Burwell, and emphasizing evidence that demonstrated Burwell’s
innocence. Id. at 7873:5—7881:6. Finally, Burwell’s counsel chose to employ an anecdote
about defense counsel and his brother eating a pie and then blaming it on a cat to avoid being
punished by their mother to close the argument.20 Id. at 7881:7—7883:23. Given the strong
presumption that his counsel’s conduct was within the wide range of reasonable professional
assistance, the Court finds that the use of this anecdote during his closing was not objectively
unreasonable such that Burwell’s counsel’s closing argument was deficient. See Strickland, 466
U.S. at 689. Indeed, Burwell’s counsel spent the majority of his allotted time pointing to
discrepancies between the testimony of government witnesses and Burwell’s witnesses, and
discussing the alternative reason why Burwell’s DNA was found on one of the vests. Tr.
7873:5—7881:6 (Jun. 20, 2005). The fact that at the end of closing, Burwell’s counsel chose to
use an anecdote illustrating Burwell’s defense theory in support of his argument is simply not
enough to demonstrate that he provided objectively unreasonable representation. Further, even
assuming arguendo, that defense counsel’s closing was deficient, Burwell does not point to any
evidence that his counsel should have, but failed to point to during his closing argument, nor
does Burwell even point to any general argument that he claims would have been more effective.
Accordingly, the Court concludes that Burwell’s ineffective assistance of counsel claim as it
relates to the closing argument fails.
20
While Burwell alleges that his counsel spent half of the allotted time for closing
delivering the anecdote, the Court notes that the Burwell’s closing spanned 12 pages in the
transcript, Tr. 7872:1—7883:20 (Jun. 20, 2005), and the anecdote was delivered over the last two
and a half pages, id. at 7881:7—7883:20.
31
H. Informant Jury Instruction
Burwell next argues that his trial counsel rendered him ineffective assistance of counsel
by failing to request an “informant jury instruction.” Specifically, Burwell asserts “the jury
need[ed] to be instructed to scrutinize the informant testimony more carefully than other
witnesses, even biased witnesses, because of the potential for perjury born out of self-interest.”
Def.’s Memo. at 20. Burwell points to the testimony of two codefendants turned government
witnesses in relation to this claim. Id.
Burwell’s claim fails because the record reflects that the Court did, in fact, give
instructions regarding witnesses with plea agreements and witnesses who are accomplices. The
instructions as read during trial follow:
Now, you’ve heard evidence that Noureddine Chtaini, Omar Holmes and Antwon
Perry each entered into separate plea agreements with the government, pursuant to
which each of these witnesses agreed to testify truthfully in this case, and the
government agreed to dismiss charges against him and/or decline prosecution of
charges against him, and bring the witness’s cooperation to the attention of the
sentencing court on the remaining charges.
The government is permitted to enter into this kind of plea agreement. You in turn
may accept the testimony of such a witness and convict the defendant on the basis
of this testimony alone, if it convinces you of the defendant’s guilt beyond
reasonable doubt.
A witness who has entered into a plea agreement is under the same obligation to
tell the truth as is any other witness, because the plea agreement does not protect
him against prosecution for perjury or false statement, should he lie under oath.
However, you may consider whether a witness who has entered into such an
agreement has an interest different from any other witness. A witness who
realizes that he may be able to obtain his own freedom or receive a lighter
sentence by giving testimony may have a motive to lie.
The testimony of a witness who has entered into a plea agreement should be
received with caution and scrutinized with care. You should give the testimony
32
such weight as in your judgment it’s fairly entitled to receive.
Now, you’ve also heard that Omar Holmes and Noureddine Chtaini were
accomplices. Accomplices in the commission of a crime are competent witnesses,
and the government has the right to use them as witnesses. An accomplice is
anyone who knowingly and voluntarily cooperates with, aids, assists, advises or
encourages another person in the commission of a crime, regardless of his degree
of participation.
The testimony of an alleged accomplice should be received with caution and
scrutinized with care. You should give it such weight as in your judgment it’s
fairly entitled to receive. If the testimony of an alleged accomplice is not
supported by other evidence, you may convict the defendant upon that testimony
only if you believe that it proves the guilt of the defendant beyond a reasonable
doubt.
Tr. 7996:1–7997:16 (Jun. 21, 2005).
Accordingly, Burwell’s ineffective assistance of counsel claims fail on this issue because
the Court did give the relevant instruction.
I. Theory of Defense Instruction
Next, Burwell argues that his trial counsel rendered him ineffective assistance of counsel
by failing to request a theory-of-defense jury instruction. Def.’s Memo. at 23-24. “A theory-of-
defense instruction is in order if there is ‘sufficient evidence from which a reasonable jury could
find’ for the defendant on his theory.” United States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir.
2008). In assessing Burwell’s claim, the Court again employs the Strickland test for ineffective
assistance of counsel. See id. at 1356.
As an initial matter, Burwell’s claim fails because he does not point to any specific
theory-of-defense instruction to which he believes that he was entitled. Rather, he simply states
that his counsel should have requested such an instruction without any specificity. Furthermore,
the Court gleans from the record and the instant motion that Burwell’s defense consistently has
33
been that he was not present at the specific bank robbery to which he was charged as
corroborated by an alibi, and that his DNA was present on one of the vests because he had
previously owned it. Indeed, the Court is unable to identify any other defense advanced by
Burwell. Here, while Burwell’s counsel did not request a specific theory-of-defense instruction,
see Tr. 8050:1—8051:1 (Jun. 21, 2005), the Court did give a particularized alibi instruction in
which Burwell was identified:
Now this is the instruction on alibi. Evidence has been introduced that defendant
Bryan Burwell was not present on June 12, 2004, and defendant Marvin Palmer
was not present at the time when and the place where the offense was allegedly
committed.
The defendant may not be convicted of the offense with which he is charged
unless the government proves beyond a reasonable doubt that the defendant was
present at the time when and the place where the offense allegedly was
committed. If, after a full and fair consideration of all the facts and circumstances
in evidence, you find that the government has failed to prove beyond a reasonable
doubt that the defendant was present at the time when and the place where the
offense charged was allegedly committed, you must find the defendant not guilty.
Id. at 8049:12-25.
Given that the jury instruction regarding alibis related to Burwell, the Court cannot find
that defense counsel’s failure to also request another theory-of-defense instruction fell below an
objectively unreasonable standard in light of professional norms. Nor can the Court conclude
that the outcome would have been different if trial counsel had requested a theory-of-defense
instruction given that the instructions as a whole convey the substance of Burwell’s defense in
light of the alibi instruction. Cf. Hurt, 527 F.3d at 1351 (holding that a trial court’s mistaken
refusal of a requested jury instruction is not a reversible error if the instructions as a whole
adequately convey the substance of the requested instruction). Accordingly, the Court finds that
34
Burwell’s claim that his trial counsel rendered him ineffective assistance of counsel by failing to
request a theory-of-defense instruction is without merit.
J. Request for Polling of the Jury
Burwell asserts that he was rendered ineffective assistance of counsel because his trial
counsel failed to request a polling of the jury after the verdict. Burwell argues that his counsel
should have made this request due to “ambiguous markings on the verdict form,” the potentially
confusing wording of the jury form, and the emotion of the foreperson when reading the
verdict.21 Def.’s Memo. at 26-27. Burwell’s claim fails because the trial transcript reflects that
Mr. Martin did request that the jury be polled, Tr. 8303:10-11 (July 15, 2005), and it is equally
clear that the jury was in fact polled as a result of that request, id. at 8303:12—8306:18.
Accordingly, Burwell’s claim for ineffective assistance of counsel on the basis that his counsel
failed to request polling of the jury fails.
K. Juror Misconduct and Bias
Next, Burwell argues that his trial counsel failed to effectively represent him when
21
With regard to Burwell’s argument about the potential confusion with the Verdict
Form, it is unclear what Verdict Form he is discussing. See Verdict Form, ECF No. [474].
Burwell alleges that each juror marked “BOTH” as an option for whether it was proven or not
proven that he used a fully-automatic weapon during the act of committing the robbery. Def.’s
Memo. at 27. However, it is clear from the verdict form that the jury checked that it was proven
that “[t]he firearm was a semiautomatic assault weapon” and that “[t]he firearm was a
machinegun,” but there is no option for “BOTH” as Burwell indicates. Verdict Form, at 3.
While it is unclear to the Court if Burwell is arguing that the jury could not have found that it
was proven that the firearm in question was a semiautomatic assault weapon and a machinegun
as the verdict form reflects, the Court notes that Burwell was charged under Count XI for using
and carrying a firearm or aiding and abetting the use and carrying of a firearm. See Superseding
Indictment (Feb. 15, 2005), at 24, ECF No. [175]. Accordingly, Burwell could be found culpable
for the firearm that he personally carried during a crime of violence, or that his coconspirators
carried. See 18 U.S.C. § 2.
35
allegations of juror misconduct and bias arose, and that his appellate counsel failed to raise the
issue on appeal. Def.’s Memo. at 25-26, 28. Allegations of juror misconduct were raised in two
post-trial motions by trial counsel. On August 15, 2005, codefendant Miguel Morrow filed a
Motion for a New Trial which the Court considered on behalf of Burwell as well as the other
codefendants.22 Morrow’s Mot. for New Trial, ECF No. [488]; United States v. Morrow, 412 F.
Supp. 2d 146, 152 n.4 (D.D.C. 2006). Defendants alleged that: jurors went to both the scenes of
the bank robberies and another relevant location, and described the areas during deliberations;
jurors read and were influenced by a Washington Post article that had been admitted into
evidence after it was found at a codefendant’s apartment; and at least one juror remained in
contact with a juror who had been dismissed from the jury after making improper comments
about the defendants’ guilt during the trial. Morrow’s Mot. for New Trial at 6-7; Def.’s Supp.
Memo. in Supp. of Mot. For New Trial at 2-3, ECF No. [509]. After becoming concerned about
the “relative unspecific and generalized assertions of juror misconduct by Defendants,” the Court
set the matter for an evidentiary hearing on the issue of the alleged jury misconduct. Morrow,
412 F. Supp. 2d at 152. Prior to the hearing, the Court directed that the Defendants provide the
Government and the Court with any statement made by a juror-witness expected to appear at the
evidentiary hearing, and information identifying the individual or individuals to whom the juror
made such statements. Id. Defendants produced post-trial emails between counsel and one
juror, Juror #1. Id.
22
Burwell in his reply indicated that his trial counsel was deficient by failing to file a
motion for a new trial on the basis of juror misconduct and bias. Def.’s Reply at 8. This
argument is without merit as the Court considered codefendant Morrow’s motion on Burwell’s
behalf and, accordingly, Burwell cannot establish that he was prejudiced by his trial counsel’s
failure to file a separate motion for a new trial.
36
The Court held an evidentiary hearing on the issue of juror misconduct on October 31,
2005 and Juror #1, who was the only juror who provided information relied upon by Defendants,
testified under oath. Min. Entry (Oct. 31, 2005); Morrow, 412 F. Supp. 2d at 152. However, in
keeping within the confines of Federal Rule of Evidence 606(b),23 which governs inquiries into
the validity of a verdict in which a juror is called as a witness, the Court conducted the initial
inquiry and then allowed each defendant the opportunity to ask further questions. Morrow, 412
F. Supp. 2d at 152-53. After hearing the evidence and reviewing additional briefing filed after
the hearing, the Court entered a 44-page Memorandum Opinion specifically considering and
rejecting each of the claims of juror misconduct as a basis for granting a new trial. See generally
id. at 167-74. Further, the Court found that the likelihood of prejudice was too insignificant to
warrant a more invasive hearing involving more members of the jury. Id. at 167. Accordingly,
the Court denied the Defendants’ requests for further hearings and for a new trial. Id. at 174.
On April 7, 2006, Morrow filed a second motion for a new trial, alleging juror
misconduct on the basis that Juror #2, the foreperson of the jury, lied or omitted facts during voir
23
At the relevant time, Federal Rule of Evidence 606(b) proscribed:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other juror’s mind or
emotions as influencing the juror to assent to or dissent from the verdict or
indictment concerning the juror’s mental processes in connection therewith,
except that a juror may testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror. Nor may a juror’s
affidavit or evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received for these
purposes.
Fed. R. Evid. 606(b) (2005) (amended 2011).
37
dire regarding her relationship with Jerrold E. Vincent, a person unrelated to this case who
allegedly had been charged with and convicted of assault. See Morrow’s Mot. to Reopen Def.
Morrow’s Mot. for New Trial, Or, In the Alt., Mot. for New Trial on Newly Discovered Evid.,
ECF No. [596]. Burwell joined in Morrow’s second motion for a new trial. United States v.
Morrow, Crim. No. 04-355 (CKK), 2006 WL 1147615, at *1 n.1 (D.D.C. Apr. 26, 2006). The
Court did not hold a hearing on the issue, and instead based its ruling on a searching examination
of the Defendants’ second motion, the Government’s opposition, the replies filed by numerous
Defendants, the attached exhibits, the relevant case law, and the entire record.24 Id. at *1. On
April 26, 2006, the Court issued a 35-page Memorandum Opinion detailing its reasons for
denying the Defendants’ second motion for a new trial. See generally id. The Court first found
that the Defendants’ second motion for a new trial was untimely. Additionally, the Court held
that “Defendants [] simply made no showing of bias resulting from Mr. Vincent’s situation that
could have transferred to them which would be sufficient to support a strike for cause of Juror #
2 had that information been disclosed.” Id. at *19.
Burwell’s arguments in the instant motion appear to center around the first motion for a
new trial, involving the claims made by Juror #1. See Def.’s Memo. at 25-26 (only mentioning
the juror misconduct claims raised by Juror #1 and not those surrounding Juror #2). Burwell
raises two specific objections to his counsel’s performance at the October 31, 2005 hearing: (1)
Defense counsel should have subpoenaed the other jurors who were identified by Juror #1 as the
possible sources of misconduct; and (2) Defense counsel should have taken the stand to “present
24
The Court notes that at the time of the filing of the Defendants’ second motion for a
new trial, Juror #2 was deceased. Morrow, 2006 WL 1147615, at *3.
38
evidence regarding his personal knowledge of the alleged misconduct garnered while talking to
Juror NO.1, and/or any other jurors involved.” Def.’s Memo. at 26. The Court shall address
each challenge in turn.
Turning first to Burwell’s charge that his counsel should have subpoenaed the other
jurors to testify at the October 31, 2005 hearing, the Court notes that it limited the presentation of
evidence at that hearing. The Court held a hearing on the issue of the alleged juror misconduct
in light of the vague allegations of juror misconduct made in the Defendants’ motion. As the
Court set forth in a written Order prior to the hearing:
The purpose of the evidentiary hearing was to put on the record in detail the
allegations of juror misconduct made by an unidentified ‘juror’ set forth in
Defendant Morrow’s Motion for a New Trial, allow for cross-examination by the
Government to investigate the claims made, and provide the opportunity to take
further action vis-á-vis other jurors if necessary.
Order (Oct. 27, 2005), at 1, ECF No. [528]. The Court, citing its great discretion in the
investigation of alleged juror misconduct, set the parameters of the hearing:
Given that the basic goal of a post-trial evidentiary hearing relating to allegations
of juror misconduct is to uncover potential prejudice to Defendants, the
parameters of Federal Rule of Criminal Procedure 26.2 are largely inapplicable.
The October 31, 2005 hearing will not be a typical trial matter where the parties’
strategies in the presentation of witnesses may be relevant or important, and the
parties’ presentations and questioning are not designed to influence the fact-finder
regarding the relative guilt or innocence of the Defendants. Rather, the Court is
conducting its own post-trial proceeding and is calling this juror in order to
determine (1) if any juror misconduct occurred, (2) the scope of the misconduct,
and (3) whether any substantive rights were infringed.
Id. at 2-3. Accordingly, it was the Court, and not defense counsel, that made the decision to hear
from only Juror #1, the sole juror raising allegations of juror misconduct, during this hearing.
Indeed, the purpose of the hearing was to place the allegations on the record so that the Court
39
could make a decision as to whether a further hearing involving other jurors was necessary.
After hearing the testimony of Juror #1, the Court determined that a further hearing was not
necessary and expressly denied the Defendants’ request to conduct a further hearing to take
testimony from other jurors. See Morrow, 412 F. Supp. 2d at 167 (“Upon a review of the record
adduced at the October 31, 2005 hearing, the Court—in employing its discretion—finds that a
more invasive hearing involving other members of the jury is unnecessary and not in the interests
of justice.”). Given that it was the Court’s and not defense counsel’s decision to only take
testimony from Juror #1 at the evidentiary hearing, this is an improper basis for an ineffective
assistance of counsel claim. Further, it is clear from the record that the defense counsel
unsuccessfully attempted to persuade the Court to take testimony from the other jurors, a request
that the Court denied as part of its lengthy written opinion. See Morrow, 412 F. Supp. 2d at 174.
Accordingly, Burwell’s claim that his counsel was ineffective for failing to subpoena other jurors
is without merit because such subpoenas would have been fruitless given that the Court indicated
that it would only hear testimony from Juror #1 at that hearing.
Burwell’s second claim that his counsel should have testified fails for similar reasons.25
First, as previously discussed, it is apparent from the record that the Court only permitted
testimony directly from Juror #1 at the hearing in question. Second, it is unclear whether
Burwell’s counsel ever even had direct contact with any of the jurors about the alleged
misconduct as it appears Juror #1 reached out to and met with counsel for two of the
codefendants, one of whom filed the original motion for a new trial as a result. See id. at 153
25
The Court notes that Burwell at times uses feminine pronouns to refer to his counsel in
this section, however, Burwell’s trial counsel was male. See Def.’s Memo. at 26.
40
n.5. Third, any testimony by Burwell’s counsel regarding conversations he had with jurors about
potential misconduct raises a host of evidentiary issues. See, e.g., Fed. R. Evid. 802 & 805 (rules
against hearsay and hearsay within hearsay); Id. 602 (requirement that a witness may only testify
as to matters to which he or she has personal knowledge). Fourth, allowing Burwell’s counsel to
testify on Burwell’s behalf also raises ethical concerns. See Model Rules of Prof’l Conduct R.
3.7 & cmt. n.1 (“Combining the roles of advocate and witness can prejudice the tribunal and the
opposing party and can also involve a conflict of interest between the lawyer and client.”); D.C.
Rules of Prof’l Conduct R. 3.7. For all these reasons, the Court concludes that trial counsel’s
performance related to the juror misconduct issues that arose after trial was objectively
reasonable in light of professional norms.
Burwell also asserts that his appellate counsel rendered ineffective assistance of counsel
by failing to argue during the appeal that he was entitled to a new trial based on the alleged juror
misconduct. Def.’s Memo. at 28. Burwell’s claim as to his appellate counsel also fails for the
reasons described herein. The Strickland standard applies to claims of ineffective assistance of
both trial and appellate counsel. Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014).
Accordingly, in order to prevail, Burwell must demonstrate: “(1) his counsel’s performance ‘fell
below an objective standard of reasonableness,’ and (2) ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Id. (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). As the Supreme
Court has noted, “appellate counsel who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the likelihood
of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). However, the Court noted
41
that “it is still possible to bring a Strickland claim based on counsel’s failure to raise a particular
claim [on appeal], but it is difficult to demonstrate that counsel was incompetent.” Id.
In the instant action, Burwell’s appellate counsel chose not to raise the issue of the
alleged jury misconduct in favor of raising other claims on Burwell’s behalf. Notably, Burwell’s
appellate counsel raised the issue of whether Burwell could be convicted of Count XI, under
which he was sentenced to 360 months imprisonment, if the Government did not prove that
Burwell knew that the weapon he was carrying while committing a crime of violence was
capable of firing automatically. United States v. Burwell, 690 F.3d 500, 502 (D.C. Cir. 2012);
Judgment in a Criminal Case, ECF No. [615]. Ultimately, the D.C. Circuit reheard the issue en
banc. See generally Burwell, 690 F.3d 500.
Here, the Court cannot conclude that appellate counsel’s decision not to raise the issue of
the alleged juror misconduct was objectively unreasonable given professional norms, nor can the
Court conclude that if appellate counsel had raised this issue, that there is a reasonable
probability of a different result on appeal. First, the D.C. Circuit has recognized for claims of
juror misconduct, “[t]he trial court obviously is the tribunal best qualified to weigh the relevant
factors and draw the conclusion appropriate.” United States v. Williams, 822 F.2d 1174, 1189
(D.C. Cir. 1987). Second, as the Government points out, the D.C. Circuit utilizes a “highly
deferential” standard of review for a district court’s denial of a motion for a new trial. Govt.’s
Opp’n at 22 (citing United States v. Rouse, 168 F.3d 1371, 1376 (D.C. Cir. 1999); see also
United States v. Gloster, 185 F.3d 910, 914 (D.C. Cir. 1999) (“We will reverse a district court’s
decision whether to grant such a motion [for a new trial] ‘only if the court abused its discretion
or misapplied the law.’”). Finally, the Court finds that there is not a reasonable probability of a
42
different result on appeal had the issue of juror misconduct been raised. As this Court noted,
“Quite simply, the circumstances adduced by Defendants do not approach those other, far more
egregious cases where the D.C. Circuit has previously found that no ‘prejudice’ occurred and no
new trial was warranted despite third-party contacts with the jury.” Morrow, 412 F. Supp. 2d at
174. Given the standard of review, the Court concludes that appellate counsel’s failure to raise
the alleged juror misconduct on appeal in favor of stronger claims such as the issue of statutory
interpretation that the D.C. Circuit reheard en banc and that may have resulted in a reduction of
Burwell’s sentence by as much as 30 years, was objectively reasonable. See Jones v. Barnes,
463 U.S. 745, 751-52 (1983) (“Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.”). Accordingly, the Court finds that
Burwell is not entitled to relief on his ineffective assistance of counsel claims related to the
alleged juror misconduct.
L. Failure to Interview Witnesses
Next, Burwell argues that his trial counsel rendered ineffective assistance of counsel by
failing to interview a key witness and failing to properly interview an alibi witness prior to trial.
Def.’s Memo. at 18. Specifically, Burwell asserts:
Counsel was supposed to have sent out investigator to alibi witness’s house on
“one” occasion despite Petitioner’s plea that this witness was key to connection of
DNA on one of the flash jackets found at one of the alleged stash houses.
Counsel actually apologized for his negligence in the matter saying he “thought”
the investigator was on top of the situation and that he interviewed each alibi
witness properly. Counsel also stated that he has “messed up” and the issue
would become an appeal issue due to the outcome of the case. The second alibi
witness was not interviewed properly either her testimony was not credible at all
and was hurtful to defense having called a non-interviewed witnesses and almost
43
being impeached in front of the jury.
Id. The Government’s opposition is of little assistance on this issue as the Government simply
conflates this claim along with other claims under the catchall “Strategy and Performance,” and
does not address it directly. Govt.’s Opp’n at 15-17. Instead, the Government proceeds to
examine the defense’s closing argument and the evidence that was presented, while Burwell
complains about evidence that was not presented. Govt.’s Opp’n at 15.
The Strickland test applies to the issue of counsel’s alleged failure to interview witnesses
prior to trial. First, Burwell must establish that his counsel’s alleged errors did not meet the
objective standard of reasonableness under professional norms. Strickland v. Washington, 466
U.S. 668, 688 (1984). “Where the case involves a failure to investigate, the ‘particular decision
not to investigate must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.’” United States v. McDade, 699 F.3d 499,
506 (D.C. Cir. 2012) (quoting Strickland, 466 at 691). If Burwell establishes deficiency in his
counsel’s performance, he also must establish that it is reasonably likely that the decision
reached would have been different absent the errors. Id.
Here, the Court does not have enough information to determine whether either prong of
the Strickland test is met. The Court notes that in compliance with the Rules Governing Section
2255 Proceedings 2(b)(5), Burwell declared and stated under penalty of perjury that his motion
was true and correct. Def.’s Mot. at 13. Accordingly, the Court shall consider the motion and
accompanying memorandum in support thereof to be affidavits. 18 U.S.C. § 1746; see also
Weddington v. Zatecky, 721 F.3d 456, 464-65 (7th Cir. 2013) (treating a federal habeas petition
as an affidavit because it was declared and stated under penalty of perjury); Cf. Wehausen v.
44
United States, 820 F. Supp. 2d 128, 130 (D.D.C. 2011) (considering a declaration submitted by
defense counsel uncontroverted by a defendant who did not sign his § 2255 motion under penalty
of perjury and did not file a reply).
Burwell raised concerns about trial counsel’s assistance with relation to two witnesses.
First, Burwell asserts that his counsel failed to investigate a witness who had information about
the DNA evidence belonging to Burwell found on one of the flash jackets, however, Burwell
does not identify this witness by name. The Court notes that one of Burwell’s witnesses at trial,
Reon Holloway, testified that Burwell gave him a camouflage vest (identified as Exhibit
“Brinkley 26”) in fall 2002 or spring 2003 and that Holloway sold the vest to Noureddine Chtaini
around Christmas of 2003. Tr. 7462:21—7468:6 (Jun. 16, 2005). Burwell appears to assert that
there is another witness who did not testify at trial but had information about one of the flash
jackets admitted into evidence at trial. Second, Burwell argues that his trial counsel failed to
properly interview another one of his witnesses who testified at trial. After a review of the
record, it appears to the Court that Burwell is referring to Brenda Ramirez, a coworker of
Burwell’s wife who testified that she had spoken with Burwell on the phone on June 12, 2004,
around the time of the robbery of the Industrial Bank. See Tr. 6805:21—6809:1 (Jun. 13, 2004).
Given that Burwell has not identified either witness by name and in an exercise of its
discretion and pursuant to Rules Governing Section 2255 Proceedings 7(b), the Court shall
require additional evidence to be submitted on the issue of counsel’s failure to interview these
two witnesses. Specifically, the Court shall require that Burwell file a sworn statement with the
Court: (1) identifying the witness by name who was “key to connection of DNA on one of the
flash jackets found at one of the alleged stash houses,” and provide a proffer of what testimony
45
that witness would have provided at trial; and (2) identifying the alibi witness by name (i.e.
Brenda Ramirez or a different witness) who testified at trial but whom Burwell asserts was not
properly interviewed. Once the Court has received this information from Burwell, the Court shall
determine whether the Government will be required to produce a sworn statement from
Burwell’s trial counsel regarding his alleged failure to interview the witnesses identified by
Burwell in his affidavit. Accordingly, the Court shall reserve its ruling on Burwell’s request for
an evidentiary hearing and on his motion only as to this issue. As previously mentioned, all
other claims are denied.
M. Jury Instructions for Count XI
Burwell raises for the first time in his reply that the Court erred in its jury instructions
related to Count XI. Def.’s Reply at 7. Pursuant to Count XI, Burwell was charged with using
and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) or aiding and
abetting that offense in violation of 18 U.S.C. § 2. Superseding Indictment (Feb. 15, 2005), at
24. Burwell asserts that the jury instructions related to aiding and abetting of the offense were
erroneous in light of the Supreme Court’s holding in Rosemond v. United States, -- U.S. --, 134
S. Ct. 1240 (2014).26 Burwell’s claim fails because the Supreme Court’s 2014 holding in
Rosemond does not apply retroactively to the jury instructions given during Burwell’s 2005 trial.
Tyler v. Cain, 533 U.S. 656, 663 (2001) (“[A] new rule is not ‘made retroactive to cases on
collateral review’ unless the Supreme Court holds it to be retroactive.”). Indeed, there is no
indication that the Supreme Court intended for Rosemond to apply retroactively, nor has the D.C.
26
While this claim was first raised in the reply, the Court shall address it because
Rosemond was decided after Burwell filed the instant motion.
46
Circuit applied Rosemond retroactively. Further, the D.C. Circuit in its opinion indicated:
“[B]urwell carried an AK-47 in both of the robberies in which he participated, though there is no
evidence that he fired any of the weapons.” United States v. Burwell, 690 F.3d 500, 502 (D.C.
Cir. 2012). Rosemond clarified that a defendant who did not carry a weapon during the
commission of an offense can be convicted of aiding and abetting a violation of 18 U.S.C. §
924(c), only if he had advance knowledge that a confederate would use or carry a gun during an
in relation to a crime of violence or a drug trafficking crime. Rosemond, 134 S. Ct. at 1243.
Here, it is clear that Burwell himself carried a weapon during the commission of two of the bank
robberies and, thus, his reliance on Rosemond is misplaced. Accordingly, Burwell’s claim
related to the jury instruction given for Count XI fails.
N. Arguments of Codefendants
Finally, Burwell seeks to incorporate into his motion the issues raised by his
codefendants in their pending § 2255 motions. Def.’s Memo. at 28. Four of the codefendants
with whom Burwell stood trial have § 2255 motions pending before the Court at this time.27
Burwell urges that he also should receive the benefit of any favorable decision from issues raised
by his codefendants. The Court has reviewed the issues raised by Burwell’s codefendants in their
respective motions and has determined that Burwell’s request should be denied because
Burwell’s claims and his codefendants’ claims are premised on alleged ineffective assistance of
counsel. Each codefendant was represented by different counsel and each codefendant was
charged with a different combination of offenses. Accordingly, each claim for ineffective
27
The Court denied the § 2255 motion of Lionel Stoddard, Burwell’s other codefendant
with whom he stood trial, on November 24, 2014. U.S. v. Lionel Stoddard, No. 04cr355-02
(CKK), Order (Nov. 24, 2014), ECF No. [838].
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assistance of counsel is unique to each codefendant and his own counsel. To the extent that
issues raised by Burwell’s codefendants apply to all codefendants, the Court has discussed them.
Burwell in his reply asserts that he adopts codefendant Miguel Morrow’s claim that his
trial counsel rendered him ineffective assistance of counsel by failing to properly advise him
regarding a plea offer that was extended to Burwell prior to trial that he ultimately rejected.
Def.’s Reply at 8. Burwell’s claim related to the rejected plea offer fails for several reasons.
First, the rejected plea offer claim is raised for the first time in Burwell’s reply and, accordingly,
the Court need not consider the argument because the Government has not been afforded an
opportunity to respond.28 See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.
2008). Second, Morrow’s claim related to his counsel’s assistance during his plea discussions
cannot be adopted by Burwell because Morrow asserts that Morrow’s trial counsel inaccurately
explained to him that he faced a life sentence regardless of whether he accepted the
Government’s plea offer or he proceeded to trial, and failed to properly explain the sentencing
implications of the second section 924(c) violation charged against him if convicted. U.S. v.
Miguel Morrow, No. 04cr355-01 (CKK), Pet.’s Memo. of Law In Support of Mot. to Vacate, Set
Aside, or Correct Sentence Pursuant to 18 USC § 2255 at 19-23, ECF No. [774-1]. At a bare
minimum, here, Burwell cannot adopt Morrow’s second claim because Burwell was not charged
with two violations of 924(c), nor can the Court conclude that Burwell was rendered ineffective
assistance based on an alleged conversation between Morrow and Morrow’s trial counsel.
28
The Court notes that Burwell appears to assert that he raised this argument in his
original motion by virtue of his attempt to incorporate the arguments raised by all of his
codefendants in their respective § 2255 motions. As the Court discussed supra, Burwell is
precluded from adopting ineffective assistance of counsel claims raised by his codefendants.
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Further, Burwell does not identify either in his original motion or reply any specific discussion
that he had or should have had with his trial counsel that establishes that his counsel rendered
him ineffective assistance with regard to his plea offer. Finally, the Court notes that it reviewed
the transcript from the hearing held on January 31, 2005, during which the Court discussed the
pleas offered to Burwell and each of his codefendants on the record.29 The terms of the plea
offer extended to Burwell were discussed on the record as well as the sentencing exposure for the
charges pending against Burwell and Burwell indicated on the record after this discussion that he
discussed the plea offer with his attorney, that he did not have questions, and that he did not
accept the plea offer. Tr. 28:22—32:21 (Jan. 31, 2005), ECF No. [728]. Accordingly, Morrow’s
arguments relating to the discussion that Morrow had with his attorney regarding the plea offer
extended to him cannot be adopted by Burwell. Further, Burwell has not demonstrated that his
trial counsel rendered him ineffective assistance of counsel related to the rejected plea offer.
29
As the Court explained:
[T]he whole purpose of this [hearing] is to make sure on the record that there’s
been a discussion with each of the clients as to what the plea offer would mean in
terms of sentencing guidelines, what the plea offer would mean if they got
convicted of all of it, what the difference would be in terms of potential sentences.
If you disagree with the way the government has calculated [the potential
sentence], you would put that on the record.
This is so that there – if it doesn’t occur, that we go to trial, somebody gets
convicted and then afterwards it is raised in a 2255 that they did not get a full
discussion of the plea.
So this is my best way of making sure that everybody is on the same page, that
whatever the government has said everybody hears, whatever defense counsel has
said and your client, so that there’s no issues at a later point.
Tr. 15:3-21 (Jan. 31, 2005), ECF No. [728].
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IV. CONCLUSION
For the foregoing reasons, the Court finds no reason to set aside Burwell’s conviction or
sentence at this time. Accordingly, Burwell’s [822] Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence is DENIED IN PART and HELD IN ABEYANCE IN PART.
Specifically, the Court shall hold in abeyance its ruling on the ineffective assistance of counsel
claim related to counsel’s alleged failure to interview witnesses in order to allow for additional
briefing on the issue. Burwell’s Motion is denied as to all other claims.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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