United States v. Gregory Bell

795 F.3d 88, 417 App. D.C. 351, 417 U.S. App. D.C. 351, 2015 U.S. App. LEXIS 13038, 2015 WL 4528068
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 28, 2015
Docket08-3037, 11-3032
StatusPublished
Cited by47 cases

This text of 795 F.3d 88 (United States v. Gregory Bell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. Gregory Bell, 795 F.3d 88, 417 App. D.C. 351, 417 U.S. App. D.C. 351, 2015 U.S. App. LEXIS 13038, 2015 WL 4528068 (D.C. Cir. 2015).

Opinions

Opinion for the Court filed by Circuit Judge BROWN.

Opinion dissenting in part and concurring in part filed by Circuit Judge WILKINS.

BROWN, Circuit Judge:

“[Ljike a bad penny, it return[s] to [us] again.” Letter from Abigail Adams to Mary Smith (Oct. 6, 1766) (referencing unattributed aphorism). We revisit the Congress Park Crew (“Crew”), “a loose-knit gang that ran a market for crack cocaine in the Congress Park neighborhood of Southeast Washington, D.C., for nearly thirteen years.” United States v. Jones, 744 F.3d 1362, 1365 (D.C.Cir.2014). Previously, we affirmed the sentences imposed on three of six jointly-tried Crew members; two additional members now appeal: one challenging his conviction and both challenging their sentences. We affirm the district court.

I

In 2005, eighteen Congress Park Crew members were indicted on various crimes including conspiracy and crack distribution. Eleven members pleaded guilty and one member was tried separately in 2006; the remaining six Crew members were [92]*92tried together in 2007. In Jones we found the district court did not err in its sentencing of three of the jointly-tried Crew Members — Joseph Jones, Desmond Thurston, and Antwuan Ball. Id. at 1367-70. The present consolidated appeal concerns two additional Crew members tried in 2007— David Wilson and Gregory Bell (collectively “Defendants”). Wilson was convicted of two counts of aiding and abetting first-degree murder, seven counts of distributing crack cocaine, and one count of using a communications facility in relation to a narcotics offense. Bell was convicted of three counts of distributing crack cocaine. The Defendants were acquitted of a mé-lange of other charges including all narcotics and racketeering conspiracy charges and, in Wilson’s case, a third count of aiding and abetting murder.

Wilson challenges his conviction at trial. He claims ineffective assistance of counsel based on substitutions of his defense attorneys, that two uncharged murders were improperly admitted into evidence, and that the Government failed timely to produce pieces of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Both Defendants also challenge the sentences imposed on them for crack cocaine distribution. We address each issue in turn.

II

Wilson’s most facially credible argument is that substitutions of trial counsel deprived him of effective representation. But we are ultimately unpersuaded by his theory on appeal, which hinges on an extension of the doctrine of presumptive prejudice.

A

The course of Wilson’s representation was marked by a number of substitutions of his lead and secondary court-appointed counsels.1 We summarize the substitutions most pertinent to the present appeal. In January 2007 — approximately two months prior to trial — Jenifer Wicks assumed the role of lead counsel, after previously assisting as secondary counsel for several years. On February 5, 2007, Gary Proctor was appointed to assist Wicks, and trial began on February 13, 2007. Approximately four months into trial, and shortly before the close of the Government’s case, Wicks was hospitalized then subsequently released with medical instructions to refrain from stressful work. In Wicks’s prolonged absence Proctor filed a motion for mistrial or severance. Proctor asserted he was, in his view, unable to adequately represent Wilson because, inter alia, he had limited federal trial experience 2 and had missed significant portions of the Government’s case at trial, amounting to approximately one third of the Government’s case by Proctor’s unverified but uncontested estimation.

The district court initially granted severance but the Government sought reconsideration, proposing a “brief continuance[,] ... a week or two, to allow Mr. Proctor to get up to speed,” before allowing the Government “to finish its five to six days or so of its case,” then a longer continuance (“a month and a half’), to provide Proctor time to prepare Wilson’s case in defense. [93]*93J.A. 3383-84. Finding the Government’s proposal “eminently fair,” J.A. 3386, the district court reversed its earlier grant of severance. Secondary counsel3 was appointed to assist Proctor in his new role as lead counsel, and trial resumed in general accordance with the Government’s proposal.

Proctor represented Wilson as lead counsel through the remainder of trial arguments. Although the dissent assumes Wicks’s departure from the case robbed the defense of the benefits of her prior work, Proctor’s ability (or inability) to directly consult with Wicks, in preparing and conducting Wilson’s defense at trial, is sparsely developed in the record before us. But see J.A. 3417 (indicating Wicks had at least some capacity to accept telephone calls, albeit without providing insight into the extent of her availability or to what extent Proctor or Davies employed Wicks as a resource), 3486 (Proctor noting he “dragged Ms. Wicks out of retirement one more time,” to be present in the courtroom during his closing arguments).4

B

Despite being acquitted on a number of serious offenses — including counts of aiding and abetting murder, assault with intent to murder, and RICO and narcotics conspiracy — Wilson asserts Proctor’s representation fell below the minimum threshold of professional competence required by the Sixth Amendment. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rather than identifying deficiencies in Proctor’s actual representation and then arguing prejudice under Strickland’s two-part test, see id. at 687-88, 104 S.Ct. 2052, Wilson argues Proctor’s representation was presumptively unreliable.

In United States v. Cronic the Supreme Court identified three “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See also Woods v. Donald, — U.S. —, 135 S.Ct. 1372, 1378, 191 L.Ed.2d 464 (2015) (reiterating that Cronic applies only in such circumstances). “Most obvious, of course, is the complete denial of counsel.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. The Court also recognized the presumption in the constructive absence of counsel, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or where “[cjircumstances ... [are] present ... [such that] although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. 2039.

[94]*94Courts have limited Cronic to “a very narrow range of situations.” United States v. Hughes, 514 F.3d 15, 18 (D.C.Cir.2008); United States v. Thompson, 27 F.3d 671, 676 (D.C.Cir.1994). For example, Cronic is only applicable for failure to test a prosecutor’s case where “the attorney’s failure ... [is] complete,” Hughes,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Martin
District of Columbia, 2025
United States v. Michel
District of Columbia, 2024
Martin v. Burgess
E.D. Michigan, 2024
United States v. Dupree
District of Columbia, 2024
United States v. Delgado
District of Columbia, 2023
United States v. Aponte Rivera
District of Columbia, 2023
United States v. Mohammed
District of Columbia, 2022
United States v. Fitzsimons
District of Columbia, 2022
United States v. Paitsel
District of Columbia, 2021
Waliezer v. Howell
D. South Dakota, 2021
Waliezer v. Sutton
D. South Dakota, 2021
Waliezer v. Larson
D. South Dakota, 2021
United States v. Hutchings
District of Columbia, 2021
United States v. Calloway
District of Columbia, 2021
United States v. Willis
5 F.4th 250 (Second Circuit, 2021)
United States v. Taylor
District of Columbia, 2021
United States v. Edmond
District of Columbia, 2021
United States v. Harris
District of Columbia, 2020
United States v. Giles
District of Columbia, 2020

Cite This Page — Counsel Stack

Bluebook (online)
795 F.3d 88, 417 App. D.C. 351, 417 U.S. App. D.C. 351, 2015 U.S. App. LEXIS 13038, 2015 WL 4528068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-bell-cadc-2015.