United States v. Hemphill

86 F. App'x 985
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 5, 2004
DocketNo. 01-4367
StatusPublished
Cited by2 cases

This text of 86 F. App'x 985 (United States v. Hemphill) 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. Hemphill, 86 F. App'x 985 (7th Cir. 2004).

Opinion

ORDER

Wade Hemphill was convicted of cocaine conspiracy and distribution charges. He moved for a new trial claiming ineffective assistance of counsel because his appointed counsel allegedly failed to develop his proposed coercion defense. The district court denied the motion, citing a lack of prejudice. Hemphill appeals, challenging that ruling and the district court’s drug-quantity calculation at sentencing, and we affirm.

In November 1999 Hemphill was charged with conspiring with other Gangster Disciples from 1995 to July 1999 to distribute, and possess with intent to distribute, cocaine powder and crack, 21 U.S.C. §§ 846, 841(a)(1), and with distributing 373 grams of crack in November 1998, id. § 841(a)(1). Michael Mann was appointed to represent Hemphill, and after unsuccessful attempts at plea bargaining, the case went to trial. At trial the government’s evidence included Hemphill’s post-arrest confession to involvement in crack dealing and audio tapes of wiretapped conversations between Hemphill and another alleged co-conspirator. A surveillance officer testified that he had observed Hemp-[987]*987Ml receive a package containing 373 grams of crack, and that package was introduced into evidence. Hemphill testified in his own defense and admitted having bought and sold cocaine, but claimed that he had been coerced into doing so by co-conspirators Alex Kinsey and Quincy Jackson. He described a number of incidents in which these men allegedly attacked him and threatened to kill him and his family if he left the drug business. This testimony was Hemphill’s only support for his coercion defense. In June 2000 a jury found him gMty on both counts.

Following the verdicts, attorney Mann withdrew, and new counsel was appointed. Hemphill then moved for a new trial, arguing that Mann had been ineffective. Hemphill claimed that Mann had failed to interview witnesses who could have corroborated his coercion defense: his nieces Okema and Deisha Hemphill, Pierre Stitts, and Terrell Webster. In similar affidavits attached to the motion, Okema and Deisha stated that in September and October 1998, respectively, Hemphill told them that he was being forced to sell drugs by two of his co-defendants, Quincy Jackson and Alex “Rico” Kinsey, and could not go to the police; Okema added that Hemphill attributed his reluctance to go to the police to a belief that one of the men threatening him had contacts within the department who were being paid off. In his affidavit Stitts asserted that he witnessed Jackson and Kinsey-a witness for the government at trial-beat HempMl on one occasion in October 1998. The court held an evidentiary hearing on the motion.

At the hearing attorney Mann testified that Hemphill’s first reference to facts indicating a coercion defense had occurred “a couple of months” before trial. He stated that, at some point during the next month, Hemphill gave him some names of witnesses, including his nieces, Stitts, and Webster. However, he did not contact Okema and Deisha because he believed their evidence would be inadmissable hearsay and, in any event, a jury would view their testimony as biased because they were Hemphill’s nieces. Mann did call and leave several messages for Stitts but never received a response; eventually he received word that Stitts had left the state for the summer. When Mann contacted Webster, Webster told him that he had no information to offer and that he did not wish to be subpoenaed. Therefore, Mann decided that any coercion defense would have to be “proved out of [the defendant’s] own mouth.”

Mann also testified that Hemphill had suggested to him, on the eve of trial, that he call alleged co-conspirator Vernon Everett as a witness. Everett had stated in prior testimony that he had been paying off a Chicago police officer to tip him off to potential raids and snitches. Hemphill believed this information supported his coercion defense by explaining why he had not reported threats against him to the police. Mann, however, did not see a strong connection between Everett’s testimony and the defense, and did not want to risk the admission of testimony regarding additional narcotics trafficking by Hemphill. Therefore, he did not investigate Everett farther.

After hearing the testimony, the district court concluded that only the failure to investigate the possibility of calling Everett warranted further inquiry. The court requested further briefing on this subject, and after receiving the submissions initially granted the motion for a new trial. After the government sought reconsideration, however, the court reversed itself and concluded that Mann’s failure to investigate Everett had not prejudiced Hemphill. The court reasoned that Everett’s past testimony suggested only that police corruption existed, not that it contributed to [988]*988what Hemphill asserted was a “reasonable fear of death or bodily harm.” Therefore, the court concluded, Mann had not rendered constitutionally ineffective assistance in failing to investigate whether to call Everett as a witness.

Hemphill was sentenced in December 2001. The court rejected Hemphill’s request for a downward departure based on coercion, explaining that it did not find the defendant’s witnesses, including Okema and Deisha Hemphill, credible. Relying on testimony from Kinsey and Hemphill himself as to the amount of crack Hemphill had purchased, the court found that Hemphill had transacted in over 1.5 kilograms of crack. Hemphill was sentenced to concurrent 360-month terms, the low end of the guideline range.

On appeal, Hemphill argues that the district court erred in determining that attorney Mann was not ineffective. To prevail on an ineffective assistance claim, a defendant must show that 1) his attorney’s performance fell below an objective standard of reasonableness, and 2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the questions of deficient performance and prejudice de novo. Id. at 698, 104 S.Ct. 2052. The district court’s findings of fact are reviewed for clear error. White v. Godinez, 301 F.3d 796, 800 (7th Cir.2002).

First, Hemphill claims that Mann performed deficiently because he failed to investigate the testimony of potential witnesses Stitts, Everett, and Okema and Deisha Hemphill. He argues that these witnesses could have corroborated his testimony that Kinsey and Jackson attacked him and threatened his life, and that he could not go to the police because they had been bribed. Although he recognizes that Stitts was difficult to contact and that Okema and Deisha were biased, he argues that Mann should have made more of an effort to obtain and introduce this testimony at trial.

We judge an attorney’s performance according to the prevailing professional norms, Washington v. Smith, 219 F.3d 620, 629 (7th Cir.2000), giving great deference to counsel’s strategic choices viewed as of the time at which they were made, White, 301 F.3d at 802. Failure to properly investigate a defendant’s case may constitute ineffective assistance, but defense counsel need not “track down every lead or ...

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

Related

United States v. Christopher Jansen
884 F.3d 649 (Seventh Circuit, 2018)
Hemphill v. United States
543 U.S. 909 (Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
86 F. App'x 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hemphill-ca7-2004.