United States v. Trammell

52 F. App'x 661
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 2, 2002
DocketNo. 01-3027
StatusPublished

This text of 52 F. App'x 661 (United States v. Trammell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Trammell, 52 F. App'x 661 (6th Cir. 2002).

Opinion

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendant Marlon Trammell appeals from a jury verdict that found him guilty of possession with the intent to distribute crack cocaine, 21 U.S.C. § 841(a). He raises three issues on appeal: 1) ineffective assistance of trial counsel; 2) improper testimony by an FBI drug-trafficking expert; and 3) sufficiency of the evidence.

I.

The drug-trafficking charge lodged against defendant stems from a search by the Mahoning Valley Drug Task Force of a Youngstown, Ohio apartment rented by William Ward. After monitoring the premises for some months, the officers obtained a search warrant. On July 18, 2000, they executed it. Detective John Kelty testified that he opened the screen door and announced the presence of police with a search warrant. According to Kelty and another officer, Jeff Allen, who carried the battering ram, they heard shuffling and running inside the house. Allen conceded that they did not wait after announcing their presence because of concern about their safety and the destruction of evidence.

Upon entry, Kelty indicated that he saw defendant trying to avoid the police. He went on, “I was concerned he may have a gun or something.... When I got into this area where I could see him, what I saw was his arm away [sic] from his waist in this motion, like he was tossing something, and then he doubled back and fell to the ground behind the dining room table that was there.” When he went to the point “where his arm extended to,” Kelty recovered “some money and a couple of plastic baggies that contained suspected crack cocaine.” Testimony during trial established that the weight of crack cocaine found in the bags was 6.829 and 6.744 grams respectively.

Ward, who had entered into a plea agreement, testified that on July 18 he sold defendant two quarter-ounce bags of crack before the police arrived. He also denied leaving crack on the dining room floor.

Twenty-one-year FBI veteran Robert Fiatal testified as an expert on drug trafficking. He described his experience in these terms:

Particularly in the area of drag investigations, I’ve probably either been the affiant or supervisor on hundreds of search warrants, over 100 wiretaps. Also I’ve been engaged in the handling of informants and sources on hundreds of occasions. Also I’ve operated informants in buy situations on hundreds of occasions. And I’ve been just about involved in every facet of drug investigation, or every technique used in drug investigations.

He also indicated that he had been qualified as an expert on three occasions in federal district court.

[663]*663After presenting these qualifications, the Assistant United States Attorney sought to have Fiatal recognized as an expert “in the field of narcotics and narcotics investigation.” The district court responded that it felt the scope “pretty broad” and indicated that he would decide on a question-by-question basis whether the witness would be permitted to testify. He also explained to the jury that expert witnesses were allowed to offer opinions but that “where a person is allowed to offer an opinion doesn’t mean you are required to accept that opinion.”

Fiatal then explained the difference between powder and crack cocaine. When he indicated that crack was more physically addictive, the judge interrupted and told the jury that “whether it’s more addictive or not ... is not relevant to the question of whether this defendant knowingly possessed with the intent to distribute.” The court then sustained an objection by defense counsel regarding the amounts in which crack is typically distributed. However, the court itself then framed the following question, “From your experience and training and observation, are those street level transactions, do they involve normal quantities in the street level transactions?” The witness responded that such transactions involved one-tenth of a gram. After further questioning about amounts, Fiatal concluded that the amounts allegedly possessed by defendant were not “in a personal use form because it has not been crunched down into the individual rock quantities for sale in dosage units for street sale.” On cross-examination, he reiterated this opinion.

After a one-day trial, the jury returned a guilty verdict on the sole count of the indictment. Defendant was sentenced to 72 months of incarceration, four years of supervised release, and ordered to participate in a substance abuse program.

II.

1. Ineffective Assistance of Counsel

Defendant alleges that his trial counsel rendered ineffective assistance in two respects: 1) by failing to file a motion to contest the search of Ward’s apartment; and 2) by failing to challenge the testimony of the government’s expert witness.

This court has expressed a longstanding preference not to entertain ineffective assistance claims on direct appeal. See generally United States v. Brown, 276 F.3d 211, 217 (6th Cir.2002) (‘We do not address on direct appeal claims of ineffective assistance unless the record has been sufficiently developed to provide meaningful factual review.”) (citing United States v. Aguwa, 123 F.3d 418, 423 (6th Cir.1997)). Ineffective assistance claims are therefore typically pursued “in a proper post-conviction proceeding under 28 U.S.C. § 2255.” United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990).

Despite this general preference, we find that the record in this case is sufficiently developed to permit review of counsel’s performance. In order to prevail, defendant must jump the following hurdle:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it can[664]*664not be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, plaintiff contends that his counsel was derelict in failing to file a motion to suppress the evidence seized in the search of the Ward apartment. As the record makes clear, however, defendant lacked standing to contest the search. In Minnesota v. Olson, 495 U.S. 91, 110 S.Ct.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Minnesota v. Olson
495 U.S. 91 (Supreme Court, 1990)
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
Minnesota v. Carter
525 U.S. 83 (Supreme Court, 1999)
Kumho Tire Co. v. Carmichael
526 U.S. 137 (Supreme Court, 1999)
United States v. Erwin R. Wunder
919 F.2d 34 (Sixth Circuit, 1990)
United States v. Kenneth White
932 F.2d 588 (Sixth Circuit, 1991)
United States v. Malcolm Earl Thomas
74 F.3d 676 (Sixth Circuit, 1996)
United States v. Maximus Aguwa
123 F.3d 418 (Sixth Circuit, 1997)
United States v. Tyransee A. Harris
192 F.3d 580 (Sixth Circuit, 1999)
Murdaugh v. Livingston
525 U.S. 1301 (Supreme Court, 1998)

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Bluebook (online)
52 F. App'x 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-trammell-ca6-2002.