Opinion
Civil No. WMN-99-1180, Criminal No. WMN-93-018 Civil No. WMN-99-1423, Criminal No. WMN-93-018
April 24, 2001
MEMORANDUM
Before the Court are Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Defendant Adewale Johnson Aladekoba, Paper No. 309, and his brother, Defendant Victor Adeniyi Aladekoba, Paper No. 321. The motions are fully briefed. Upon a review of the pleadings and the applicable case law, the Court determines that an evidentiary hearing is not required and that the motions should be denied.
I. BACKGROUND
The evidence presented at trial established that Defendants Adewale and Victor Aladekoba were among the leaders of a drug organization that distributed heroin throughout two public housing projects in Baltimore, Maryland. The physical evidence presented against them and their co-defendants derived from a number of seizures of drugs, guns, and money from the Defendants. In addition, a number of cooperating witnesses told of the inner workings of the group and the group's tactics in running the ring and controlling the area.
A significant portion of the evidence related to events occurring, and evidence recovered, on August 15, 1992. On that date, Adewale was stopped by a Baltimore City Police Officer, Vincent Moulter. The evidence at trial was that, after Adewale was stopped, he attempted to run away, and also attempted to shoot at Moulter in the course of trying to escape. Moulter fired at Adewale and Adewale was injured. A passenger in the vehicle Adewale was driving, Tony Williams, agreed to cooperate with the police and led them to a stash house where eighteen thousand dollars in cash, eighteen thousand dollars worth of heroin, and two firearms were recovered from a safe. One of the firearms, a Tec-9, was established to be the weapon used in the murder of Alexander Morrison. Evidence was presented at trial that Morrison was murdered by Orlando Duggins, one of Adewale's lieutenants, because Morrison was believed to be a police officer. There was also testimony that the Tec-9 was used to protect the organization's drug shop. Also in the safe was an ammunition box on which Adewale's fingerprints were found.
Later that same day, more drugs and a firearm were recovered from Victor Aladekoba's apartment. Witnesses also testified that they had seen Victor transporting, processing and packaging drugs for sale by the drug organization.
Based on this overwhelming evidence against him, Defendant Adewale Aladekoba was convicted on November 22, 1993, of conspiracy to possess heroin with intent to distribute (count I), possession of heroin with intent to distribute (Count II), possession of firearms during and in relation to a drug trafficking offense (Counts IV and V), and possession of a firearm by a convicted felon (Count VII). On March 15, 1994, Adewale was sentenced to: life imprisonment as to Counts I and II, with sentences to run concurrently; sixty months as to Count IV, to run consecutively to the sentence imposed on Counts I and II; twenty years as to Count V, which was merged with Count IV, but which runs consecutively to the sentence on Counts I and II; and ten years as to Count VII, which merges with the sentences imposed on Counts IV and V, but runs consecutively to his sentence on Counts I and II.
Adewale appealed his conviction and the Fourth Circuit affirmed. United States v. Adewale Johnson Aladekoba, 129 F.3d 1260 (4th Cir, October 3, 1997) (table), cert. denied, 118 S.Ct. 1568 (1998). Within one year after the Supreme Court denied his petition for certiorari, Defendant timely filed this motion.
In his motion to vacate, Defendant argues that he was denied effective assistance of counsel both at trial and on appeal, in that his counsel:
1) failed to challenge at trial or on appeal Defendant's exclusion from portions of voir dire;
2) failed to challenge at trial or on appeal various objectionable aspects of the government's rebuttal argument;
3) failed to challenge at trial or on appeal the introduction of hearsay evidence regarding the police investigation of Police Officer Vincent Moulter's shooting of Defendant in the course of Defendant's arrest;
4) failed to move at trial for exclusion of testimony of Melvin Heckstall and William Carter after these individuals invoked the Fifth Amendment under cross-examination;
5) failed at trial to challenge the adequacy of limiting instructions regarding threats against witnesses;
6) failed on appeal to raise issue of whether firearms conviction could stand under Bailey v. United States, 516 U.S. 137 (1995);
7) failed to conduct adequate investigation and preparation, prior to trial, for impeachment of Officer Moulter and Tony Williams; and
8) failed at sentencing and on appeal to challenge the sufficiency of evidence related to the quantity of narcotics.
Relying on a Tenth Circuit panel's now discredited opinion in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc, 165 F.3d 1297 (1999), Defendant also argued that the government's use of cooperating witnesses who were provided substantial benefits in exchange for their testimony violated his due process rights. Like the full Tenth Circuit, the Fourth Circuit has soundly rejected this argument, United States v. Richardson, 195 F.3d 192 (4th Cir. 1999), cert. denied, 528 U.S. 1096 (2000), and this Court need not address it further.
Defendant Victor Aladekoba was convicted in the same trial of conspiracy to distribute narcotics and of possession with intent to distribute narcotics, and of using and carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c). Victor filed an appeal and the Fourth Circuit vacated his § 924(c) conviction, in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). The Court resentenced Victor on June 19, 1998, and he again appealed. The second appeal was denied and Victor then filed this timely motion to modify or vacate sentence. Victor raises two grounds for relief. First, like Adewale, Victor challenges his counsel's failure to object to, or raise on appeal, his exclusion from portions of the voir dire. Second, Victor argues that his counsel was ineffective in failing to raise on appeal the trial court's failure to specifically inquire whether he had read and discussed with counsel the presentence report prior to the first sentencing as required under Rule 32 of the Federal Rules of Civil Procedure.
After the first round of briefing on these motions was completed, Defendants filed supplemental motions based on the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). At the Court's instruction, the government has responded to the supplemental motions and that issue is now also fully briefed.
II. LEGAL STANDARD
In order to succeed on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test seeks to root out deficient performance that renders a trial unfair to a criminal defendant. "Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ. . . ." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). The inquiry as to whether counsel rendered objectively reasonable assistance is necessarily deferential and depends upon the circumstances of the individual case. Strickland, 466 U.S. at 689. In fact, "to eliminate the distorting effects of hindsight," id. at 689, courts must evaluate the challenged performance "as of the time of counsel's conduct." Id. at 690. "[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotations omitted).
Even objectively unreasonable performance, however, does not require a court to disturb a verdict unless the unreasonable performance has adversely affected the defense. Under the prejudice prong of Strickland, "[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. Given that the ultimate concern is the fundamental fairness and reliability of the outcome of the trial, when making the prejudice determination, a court "must consider the totality of the evidence before the judge or jury." Id. at 695.
III. DISCUSSION
The majority of the examples of ineffective assistance alleged by Defendant Adewale have no merit, whatsoever, and require little comment. The Court finds that counsel's decisions to not conduct further investigations in preparation for impeachment of certain witnesses, to not challenge the adequacy of certain limiting jury instructions, or to not challenge the admissibility of certain evidence, were reasonable decisions as there is little validity to the positions that Adelwale now claims his counsel should have advanced. As importantly, however, Adewale cannot meet the prejudice prong of Strickland because, in light of the overwhelming evidence offered against him, the Court cannot conclude that, even had counsel raised and prevailed on these issues, there is not the "reasonable probability" that the proceedings would have yielded a different result.
A few of the issues raised, however, do require some additional comment.
A. Defendants Presence During Voir Dire
Jury selection in this action commenced with a venire panel of 67 individuals. The initial questioning of the panel took place in open court. These questions involved the venire members' ability to serve for a lengthy trial, whether they knew any of the defendants, attorneys, or prospective witnesses, or had close affiliations with law enforcement.
The Court then asked a series of questions related to whether any of the panel members had been a victim of, accused of, or witnessed, a crime. After questioning at the bench the first four panel members that responded positively to that series of questions, the Court and counsel retired to the jury room and interviewed the next 20 venire members regarding that series of questions. Defendants remained in the courtroom. The Court also addressed strikes for cause while still in the jury room and eventually struck 13 of the 24 venire members that responded positively to this series of questions.
The Court and counsel then returned to the courtroom where additional questions were asked and one additional panel member was struck for cause. The parties then exercised their peremptory strikes and the jury was seated.
Defendant Adewale Aladekoba's summation of the voir dire process, which the Court will accept as accurate for the purposes of this motion, is as follows:
The record establishes that, out of the total of 122 pages of transcript taken up with the questioning of the prospective jurors, forty-one pages occurred in open court, nine pages occurred at the Judge's bench in the courtroom, and seventy-two pages occurred outside of the defendants' presence in the jury room. Of the total of fourteen jurors who were stricken for cause, all but one were stricken at the conference that occurred in the jury room. One of the venire members who was questioned in the jury room . . . was seated on the jury, while another . . . became an alternate. Approximately 60% of the questioning of the venire that occurred took place out of the presence of the defendants, and almost a third of the total number of venire members were questioned in this setting from which the defendants were excluded. Moreover, the strikes for cause that were discussed and approved in the jury room had a substantial impact on the overall composition of the venire, resulting in the elimination of one-fifth of its members.
Adewale Aladekoba's Motion at 10-11.
There is no dispute that defense counsel made no objection to Defendants' exclusion from a portion of the voir dire process, nor was the issue raised on appeal. Defendant Adewale Aladekoba argues that this failure to object or raise the issue on appeal constituted ineffective assistance of counsel and argues that he can satisfy Strickland's prejudice prong because the nature of this error gives rise to a "presumption of prejudice." Adewale's Motion at 14. In support of his presumption of prejudice argument, the Fourth Circuit decision upon which he chiefly relies is United States v. Camacho, 955 F.2d 950 (4th Cir. 1992), cert. denied, 510 U.S. 1000 (1993). In Camacho, the Fourth Circuit did find prejudice in the defendant's exclusion from the entire voir dire process. That decision, however, arose out of facts very different than those presented here.
The Court will accept, without deciding, that counsel's representation in this regard was "unreasonable."
In Camacho, a snowstorm on the first day of the scheduled trial delayed Defendant's arrival at the courthouse. After waiting for just a few minutes, the court commenced jury selection without the defendant. Jury selection was completed, opening argument presented, and the government completed the testimony of its first witness before the defendant finally arrived. While the Fourth Circuit did find prejudice under these facts, it is worthy of note that the court declined to hold that even a complete absence from voir dire could never be harmless. 955 F.2d at 955 (quoting United States v. Gordon, 829 F.2d 119, 127 (D.C. Cir. 1987), "We need not, however, decide whether such error can ever be harmless; it is enough to find on the facts of this case that it was not.").
Turning to the facts of the case, the court noted the difficulty in knowing exactly what the defendant could have contributed had he been present. The court made general observations about the possibility that the defendant might "identify prospective jurors that he knows," or might have knowledge of the facts about himself or the crime that might "become important as the individual prejudices or inclinations of the jurors are revealed," or he might have knowledge of particular local prejudices. Id. at 956. The court, however, also pointed to specific irregularities in the voir dire process about which defendant could have raised concerns had he been present, including one juror whose hand raised in response to a question was not seen by the judge and another juror who initially lied about her children's involvement in a crime similar to that of which the defendant was convicted.
The Fourth Circuit also noted, "the jurors probably wondered where Camacho was during his absence and may have drawn negative inferences about him as a result." Id. at 957. United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997), presents a factual scenario much more similar to that presented here. In this multi-defendant capital trial, the district court, responding to the logistical concerns of a very large jury pool and the sensitivity of questions related to potential juror's views on the death penalty, implemented a multi-step process that resulted in the defendants being absent for a significant portion of the voir dire process. As the Fourth Circuit summarized,
The upshot, for purposes of the denial-of-presence issue, is that appellants were personally and immediately present during some but not all portions of the overall voir dire process as it involved those prospective jurors from whom the regular and alternate jurors ultimately were selected. Specifically, they were personally and immediately present while the district court was addressing to the whole group general questions respecting possible sources of bias from relationships or knowledge of the case, and during the final jury selection process involving the exercise of peremptory challenges. They were not immediately present, though in the courtroom, during any of the judge's examination of prospective jurors at the bench in the presence of their counsel. And they were not present during any of the in-chambers examination of individual prospective jurors.90 F.3d at 871.
On direct appeal, the defendants argued that their absence from those portions of voir dire constituted a violation of their due process rights. Because the right was not asserted at trial, and thus was "forfeited," the court had to first consider whether this was the type of error that, under Rule 52(b), the court had the power to correct notwithstanding the forfeiture.
Relying on United States v. Olano, 507 U.S. 725 (1993), the Fourth Circuit noted that, "under Rule 52(b) a court of appeals `has authority' to correct forfeited error only if it is `plain' and `affects substantial rights,' and even then is `not required to do so' unless the error is one that `causes the conviction or sentencing of an actually innocent defendant' or otherwise `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Tipton 90 F.3d at 873-74 (citing Olano 507 U.S. at 734-36).
Thus, the standard of review was similar to the prejudice standard under Strickland.
Continuing its analysis based upon Olano, the Fourth Circuit examined the three possible ways by which the defendants could establish that a substantive right was affected. The Court noted that, under Olano, "this may ordinarily (and perhaps only) be established by a defendant's specific showing — the burden being upon him — that the error caused him actual prejudice by affecting the trial outcome."
In order to get to this point in the analysis, the Fourth Circuit assumed that there was not an effective waiver of the right at issue at trial, and also assumed, for the sake of its discussion, that the defendants' exclusion from portions of voir dire constituted "plain error." Id. at 874.
Tipton, 90 F.3d at 874 (citing Olano, 507 U.S. at 734). Aside from a showing of actual prejudice, however, the Supreme Court in Olano noted, without concluding, "that there might be forms of forfeited error that, for Rule 52(b) purposes `affect substantial rights independent of any prejudicial impact.'" Tipton, 90 F.3d at 874 (citing Olano, 507 at 734-35). The Supreme Court also noted, without deciding, a third form of correctable forfeited errors, i.e., those errors from which prejudice should simply be presumed." Id.
The Fourth Circuit then considered whether the defendants' unobjected-to absence from much of the voir dire process, if an error, was of a form that was correctable. The court concluded it was not. Of particular significance to the claim before this Court, is the Fourth Circuit's holding that the defendants' partial absence from the voir dire process, as described above, did not give rise to a presumption of prejudice.
There may be circumstances of involuntary absence from jury voir dire where prejudice should be presumed, but we think they could only involve absences throughout the entire process. Such an absence almost assuredly deprives a defendant of any effective means of giving informed advice or suggestions to his counsel respecting the ultimate decisions to challenge prospective jurors for cause or peremptorily. But not every absence of whatever nature and duration and during whatever phase of the voir dire necessarily has that effect. Some phases obviously are more critical than others. The potential prejudice from some absences may be relieved by other circumstances. It all depends. Where absence has not been total but only intermittent during the process the courts accordingly have not presumed prejudice but have analyzed the circumstances to determine whether prejudice has been specifically established. The absences here plainly were of the intermittent sort, not approaching the total denial of any effective participation in critical phases of the voir dire that might warrant a presumption of prejudice.90 F.3d at 875 (citations omitted).
During the pendancy of these motions, the Fourth Circuit issued a new decision that further undermines Defendants' claim, United States v. Rolle, 204 F.3d 133 (4th Cir. 2000). In Rolle, the trial court utilized procedures that absented the defendant from the same stages of the voir dire process as Defendants in the instant action. After some general voir dire in open court and in the presence of the defendant, the Court interviewed in chambers those individuals identified by counsel as being potentially biased based upon those individuals' responses to a written questionnaire. The defendant was not physically present for any of this individual voir dire. The proceedings then reconvened in open court for the exercise of peremptory strikes and the completion of the jury selection process. 204 F.3d at 136. As in Tipton, no objection was raised at trial regarding the defendant's exclusion from a portion of the voir dire proceedings.
On appeal, Rolle argued that his exclusion from the individual voir dire proceedings required reversal of his convictions and argued that this exclusion was correctable forfeited error on the ground of "actual prejudice." As support for his claim of actual prejudice, Rolle asserted that:
The Fourth Circuit commented that "Rolle's reluctance to embrace either of the two latter categories [of Olano's correctable forfeited errors] is prudent and reasonable in light of Tipton," and reiterated its holding that nothing short of a complete absence from the voir dire process would affect substantive rights independent of prejudicial impact or would give rise to a presumption of prejudice.
(a) no African-Americans were on the jury; (b) he was denied the opportunity to ask questions of and provide input to his counsel in determining the qualifications of those jurors who were ultimately chosen to hear the case;
(c) he was denied the opportunity to comment or raise objections through counsel when the court, in camera, struck certain jurors for cause and sought to rehabilitate others; and
(d) his presence in the courtroom after the in camera proceedings was insufficient to address the above deficiencies, since he lacked the information necessary to participate intelligently in jury selection.
Id. at 140.
While the Fourth Circuit found valid some of Rolle's concerns, it found his proffered reasons insufficient to demonstrate actual prejudice. "Clearly, Rolle is unable to show that his absence from the individual voir dire proceedings actually resulted in a jury panel that reached a verdict different from that which would have been reached otherwise. Indeed, Rolle is unable to demonstrate anything beyond his mere speculation that the makeup of the jury panel might have been different." Id.
Based upon this clear guidance from the Fourth Circuit, this Court is unable to conclude that Defendants have shown actual prejudice, or that they should have the benefit of a presumption of prejudice under the circumstances presented. Thus, they cannot meet Strickland's prejudice prong.
B. Prosecutorial Misconduct
Adewale Aladekoba next argues that the government's rebuttal argument was "shot through with improper arguments and rhetorical appeals," and that his counsel was ineffective in failing to object to these improprieties or to raise them on appeal. Adewale's Motion at 17. The alleged improprieties fall within four basic categories. Adewale argues that government counsel: 1) made unwarranted attacks on defense counsel; 2) invited the jury to "send a message" to other drug dealers; 3) improperly bolstered or vouched for its witnesses; and 4) suggested to the jury that it must choose between either convicting Defendant Adewale or concluding that Officer Moulter committed perjury.
The Court notes that, at the conclusion of the government's rebuttal argument, counsel for three of the defendants objected to the government's argument, particularly the comment about "sending a message." The Court denied counsel's request for a supplemental instruction, concluding, "in the context in which it was said, . . . it was an appropriate comment for argument. . . . Any comments that were made were very brief ones. They were made very dispassionately and calmly. I think they were fair, given the total circumstances." Tr. at 3192.
To establish prosecutorial misconduct, a defendant must show that the government's remarks were improper and that they prejudicially affected his substantial rights so as to deprive him of a fair trial. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). The Fourth Circuit has cautioned that the court must not consider the remarks in isolation, but must review the entire proceeding to see if the alleged misconduct undermined the trial's fundamental fairness. United States v. Adam, 70 F.3d 776 (4th Cir. 1995). The Fourth Circuit has also identified four factors which are central to determining whether improper prosecutorial comment is so damaging to the defendant's trial as to require reversal:
(1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused;
(2) whether the remarks were isolated or extensive;
(3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and
(4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.
In reviewing the government's rebuttal argument in light of these factors, the Court cannot conclude that those remarks, taken as a whole, deprived Defendants of a fair trial.
First, Adewale has exaggerated the impropriety of the remarks themselves. He accuses the government of "disparag[ing] the constitutional role of defense counsel by analogizing their role at trial to that of the look-outs at the two housing projects who kept watch for police." Reply at 10. The remark that is referred to was government's counsel reminding of the jury of the role of "safe houses" and "lookouts" in the drug distribution enterprise. She then commented, "Well, I feel like I just heard five people, five defense lawyers, yell "50" and everyone ran into their safe houses. And let's see where they went." Tr. at 3167. She then proceeded to describe the defenses offered by each defendant under the rubric of a "safe house." When viewed in its context, this unremarkable comment is simply seen as a rhetorical device to introduce her summary of the various defenses as "safe houses," and not, as Defendant asserts, "to compare the role of defense counsel . . . to that of the lookouts who assisted their clients' alleged criminal activity." Motion at 19.
"50," according to the evidence produced at trial, was a code used to alert members of the drug conspiracy of the proximity of police officers.
Upon review of the rebuttal argument, the Court also disagrees with Adewale's characterization of the argument as improperly forcing a choice between convicting him or concluding that Officer Moulter committed perjury. Government counsel simply summarized Officer Moulter's account of the events that led to his shooting Defendant, and then described, accurately, the version of the events that defense counsel offered to the jury. Government counsel then asked the jury to look closely at the corroborating evidence, use their common sense, and determine which version was reasonable. Tr. at 3171-73.
The Court would agree that government's counsel comments about "sending a message to the community" and, perhaps, her reference to having signed the plea agreements of the cooperating witnesses and being "responsible and accountable for the deals that [the government] makes with its witnesses," Tr. at 3170, could be considered improper if viewed in isolation. In the context of the entire argument, however, where government counsel repeatedly asked the jurors to look carefully at the evidence before them and to base their decision upon that evidence, the Court cannot conclude that counsel's remarks were made to divert the jury from its proper task.
Another aspect of the context in which the Court must view these remarks, and one that should not be diminished, is that they were made in response to highly contentious remarks made by defense counsel in their own closing statements. Counsel for Victor Aladekoba opened his remarks by stating, uncategorically, "[t]hey [government counsel] know that Victor Aladekoba is innocent of all the charges against him." Tr. at 2993. He then proceeded to argue that, because they knew he was innocent, they "went out and bought" the testimony of two witnesses. Id. Later in his argument, he describes them as "overzealous prosecutors who cross the line," Tr. at 2997, and opined that the "quality of the evidence" offered by the government indicated a "clear and uncontroverted attempt to smear my client," and that, in light of that conduct, government counsel "should be working for the National Enquirer." Tr. at 3001. In light of these attacks, not only on the government's witnesses, but directly on the honesty and integrity of government's counsel, the government's remarks in rebuttal clearly fall within the doctrine of "invited response." See United States v. Young, 470 U.S. 1, 12-13 (1985) (holding that conviction will not be reversed if prosecutor's argument was invited by defense's argument and did no more than "right the scale").
Thus, the Court finds that counsel was not ineffective in failing to object to the government's rebuttal argument, or to raise issues concerning that argument on appeal.
D. Violation of Rule 32
The record reveals that, at Defendant Victor Aladekoba's first sentencing on May 6, 1994, the Court failed to explicitly verify that he had read the presentence report and discussed it with his counsel. Victor argues in his motion to vacate sentence that his counsel was ineffective in failing to raise this issue on appeal. Assuming that this was a viable issue that could have been raised on appeal, Defendant has failed to make any showing that he was prejudiced by his counsel's failure to so.
In an attempt to show prejudice, Victor states that "had he been given the chance to review the report and discuss it with his counsel he would have definitely challenged the drug amount attributed to him, as well as the leadership role."
Reply at 6-7. Both of these issues, however, were raised and contested at his sentencing. Victor points to nothing in the presentence report that was inaccurate or misleading nor does he explain how he would have challenged the Court's findings as to these issues.
The role enhancement was the subject of a lengthy discussion at sentencing. As to the quantity of drugs involved in the conspiracy, the Court adopted findings that it had previously made in sentencing Victor's brother, Adalewale. Victor's defense counsel noted his objection to those findings for the record.
E. Applicability of Apprendi v. New Jersey
In Apprendi v. New Jersey, the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. 120 S.Ct. at 2362-63. Relying on that decision, both Defendants argue that they are entitled to resentencing as the government did not charge the amount of drugs as an element of the offense.
Before reaching the merits of Defendants' arguments under Apprendi, the Court must determine whether the rule announced in that decision can be applied retroactively to their convictions. The Supreme Court issued its opinion in Apprendi on June 26, 2000. Obviously, Defendants' convictions became final well before that date. Ordinarily, if a conviction becomes final before the issuance of the decision adopting the new rule, there is no retroactive application. Teague v. Lane, 489 U.S. 288, 307 (1989). There are two recognized exceptions to the rule against retroactive application: when the "new rule involves the criminalization of `primary, private individual conduct' beyond the power of the legislature to proscribe, or, involves a `watershed' or `bedrock' principle implicating the fundamental fairness of the trial process." Id. at 290.
Defendants cannot contend that Apprendi satisfies the first exception. As to the second exception, on April 13, 2001, the Fourth Circuit held that "the new rule announced in Apprendi does not rise to the level of a watershed rule of criminal procedure which `alter[s] our understanding of the bedrock elements essential to the fairness of the proceeding.'" United States v. Sanders, ___ F.3d ___, 2001 WL 369719 (4th Cir. April 13, 2001) (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)). Thus, the rule does not apply to Defendants' collateral attack on their sentences.
IV. CONCLUSION
For all these reasons, Defendants' motions to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, will be denied. A separate order will issue.
ORDER
Pursuant to the foregoing memorandum, and for the reasons stated therein, IT IS this day of April, 2001, by the United States District Court for the District of Maryland, hereby ORDERED:
1. That Defendant Adewale Aladekoba's Motion to Vacate, Set Aside, or Correct Sentence to § 2255, Paper No. 309, is hereby DENIED;
2. That Defendant Victor Aladekoba's Motion to Vacate, Set Aside, or Correct Sentence to § 2255, Paper No. 321, is hereby DENIED;
3. That Civil Action Nos. WMN-99-1180 and WMN-99-1423 are hereby CLOSED; and
4. That the Clerk of the Court shall mail copies this order to Defendant Victor Aladekoba and all counsel of record.