United States v. Broadwater

65 F. App'x 571
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 30, 2003
DocketNo. 02-2426
StatusPublished
Cited by2 cases

This text of 65 F. App'x 571 (United States v. Broadwater) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Broadwater, 65 F. App'x 571 (7th Cir. 2003).

Opinion

ORDER

On February 7, 2001, a federal grand jury in the Northern District of Indiana returned a three-count indictment against Tremmel Broadwater (“Broadwater”), alleging that he had on two occasions within the previous month knowingly and intentionally distributed crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The grand jury also charged Broad-water with contemporaneously possessing with intent to distribute crack cocaine. Broadwater, represented by counsel, entered a plea of not guilty to the indictment.

On November 1, 2001, on the fourth day of trial, a jury found Broadwater guilty on all three counts. In this appeal, Broadwater challenges his conviction on the grounds that he was denied the effective assistance of counsel. We affirm.

I. FACTUAL BACKGROUND

In December 2000, an anonymous female informant provided information to the Drug Enforcement Agency (DEA) that Broadwater was involved with drug activity. DEA Agent Eric Lee opened an investigation, and began an attempt to make an undercover drug buy from Broadwater. Lee instructed the informant to introduce Lee to Broadwater as the informant’s “Uncle Toon” and to ask him if he could get her “uncle” two ounces of cocaine.

On January 2, 2001, Agent Lee spoke with Broadwater and set the price for two ounces of cocaine. On January 8, Lee met Broadwater and purchased 49.3 grams of crack cocaine from him. Lee called Broadwater again on January 12, 2001 to conduct a second transaction. Broadwater sold Agent Lee 121.3 grams of crack cocaine that day. The third and final transaction was initiated by Lee on January 19, 2001, and conducted three days later at a local restaurant. Immediately after this transaction, the authorities from the East Chicago (Indiana) police department who had been observing the buy stopped Broadwater’s car and recovered 150.6 grams of crack cocaine from the trunk of the car. Broadwater was then arrested.

At trial, Broadwater asserted the defense of entrapment. It is well established that defendants raising an entrapment defense must produce evidence of their own lack of predisposition as well as inducement by the government. See, e.g., United States v. Blassingame, 197 F.3d 271, 279 (7th Cir.1999). Broadwater testified that he would not have sold Agent Lee the cocaine but for a promise — made by the female confidential informant — that if [573]*573Broadwater sold cocaine to her “Uncle Toon,” she would arrange for a three-way sexual encounter between herself, her cousin, and Broadwater.

To counter Broadwater’s entrapment defense, the government sought to attack Broadwater’s credibility. Thus, on cross-examination, the government asked Broadwater about his two prior felony convictions: one for possession of an unauthorized weapon in 1993, and another conviction for the same offense in 1995. To establish further evidence that Broad-water was not entrapped, the government called a rebuttal witness, Shawn Sartin, who testified that he had purchased crack cocaine from Broadwater on several occasions, beginning in 1998 and continuing until Sartin’s arrest in July 2000. Sartin also testified that these occasions usually took place in front of a liquor store on the south side of Chicago, and generally involved two to three ounces of crack cocaine at a time. The jury found Broadwater guilty on all three drug counts.

At sentencing, the court enhanced Broadwater’s offense by two levels for obstruction of justice as a result of his perjured trial testimony. The trial judge specifically stated that he found the defendant’s testimony “that he had not sold drugs before” was “not credible” and that “this testimony was relevant and material to the issues of fact in this case.” The judge concluded: “The Court finds that the defendant’s testimony was not only not credible, that it was perjurious and that he had, in fact, perjured himself during this time.” Broadwater was then sentenced to a 300 month term of imprisonment.

II. ANALYSIS

In this appeal, Broadwater argues that he was denied the effective assistance of counsel on two separate occasions during trial: first, when his trial attorney failed to object to the elicitation of the existence of two prior felony convictions during cross examination, and second, when his trial attorney failed to object to the admission of evidence regarding Broadwater’s involvement in prior drug transactions.

This Court may review the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal “if the record is sufficiently developed or if the issue is sufficiently clear-cut and can be conclusively determined from the trial record.” United States v. Wiman, 77 F.3d 981, 988 (7th Cir.1996). This Court may also consider the claim if “both parties ask us to resolve the matter, the question has been briefed and argued, and the entire record is before us.” Id.

To prevail on a Sixth Amendment Claim for ineffective assistance of counsel, Broad-water must demonstrate that (1) his attorney’s performance fell below an objective standard of reasonableness; and (2) the attorney’s deficient performance actually prejudiced the petitioner. Brown v. Sternes, 304 F.3d 677, 691 (7th Cir.2002) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Review of the first prong under the Strickland test “contemplates deference to strategic decision____” Brown, 304 F.3d at 691 (quoting Williams v. Washington, 59 F.3d 673, 679 (7th Cir.1995)). When an attorney articulates some strategic reason for a decision, we will ordinarily defer to that choice. See, e.g., Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir.1996). At the same time, this Court has acknowledged that it is not the role of a reviewing court to engage in “a post hoc rationalization for an attorney’s actions by constructing strategic defenses that counsel does not offer or engage in Monday morning quarter[574]*574backing.” Brown, 304 F.3d at 691 (internal quotations omitted). Given the strong presumption that counsel’s conduct falls ■within a wide range of reasonable professional assistance, see Strickland, 466 U.S. at 689, Broadwater must overcome the presumption that “under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689.

The second prong of the Strickland test requires Broadwater to “demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Brown, 304 F.3d at 696 (quoting Strickland, 466 U.S.

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Related

United States v. Broadwater
471 F. App'x 534 (Seventh Circuit, 2012)

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Bluebook (online)
65 F. App'x 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-broadwater-ca7-2003.