Opinion
Civil Action No. 00-70255. Crim. Action No. 97-81134.
July 7, 2000.
MEMORANDUM OPINION AND ORDER DENYING PETITIONER RADFORD'S MOTION TO SET ASIDE OR VACATE HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255
On April 14, 1998, Petitioner Dennis Radford was found guilty by a jury of Count Two of a Superseding Indictment for false declaration before a grand jury, and was sentenced to a term of ten months on December 21, 1999. Petitioner's conviction was based on testimony he gave before a federal grand jury while being represented by John Goldpaugh, an attorney who represented police officers from the Sixth Precinct pursuant to a contractual agreement with the police officers' union.
This matter is before the Court on Petitioner Radford's motion, brought pursuant to 28 U.S.C. § 2255, to set aside or vacate his sentence. Petitioner argues that his conviction was constitutionally defective because his pre-indictment counsel, John Goldpaugh, failed to provide him with effective assistance of counsel. Specifically, Radford complains that his counsel failed (1) to obtain an immunity agreement with the Government prior to his testimony before the grand jury and prior to his debriefings by the Government, and (2) to advise Radford to invoke his Fifth Amendment privilege against self-incrimination when testifying before the Grand Jury and when making statements during debriefings with the Government.
I. Facts
A. Pre-indictment
On July 24, 1997, Special Agents Martin Torgler and Robert Beeckman of the F.B.I. interviewed Radford at his residence regarding the February 10, 1996 police response to the Bentler address. At the conclusion of the interview, Radford was served with a subpoena that commanded his appearance before a federal grand jury on August 7, 1997. After the interview, Radford was contacted by the Detroit Police Officers' Association ("D.P.O.A.") and was referred to the union's attorneys, John Goldpaugh and Associates, for representation during the on-going federal investigation into allegations of misconduct by officers of the Sixth Precinct.
On August 18, 1997, Radford was compelled to appear in a video line-up at the Federal Building, Detroit, Michigan. He was represented by a D.P.O.A. attorney, Denise Hooks. Although Radford was assured that he was not a target in the investigation, Attorney Hooks informed him not to say anything because she was skeptical of the Government's motives. Radford appeared before the federal grand jury several days later on August 20, 1997.
Subsequently, on September 16, 1997, Radford and his counsel John Goldpaugh met with Assistant United States Attorney Robert Cares and Special Agent Robert Beeckman. Radford was once again told that he was not a target of the on-going investigation of the Sixth Precinct, but was warned that if he did not cooperate with the Government that he would be one.
On September 17, 1997, an indictment was handed down by a federal grand jury for the Eastern District of Michigan against ten police officers from the Sixth Precinct, alleging conspiracy against rights and other related offenses.
On September 19, 1997, Radford again met with A.U.S.A. Cares, Special Agent Beeckman, and Sargent Joseph O'Leary from the Detroit Police Department's Division of Internal Affairs. In Attorney Goldpaugh's presence, Radford was further debriefed about the February 10, 1996 Bentler Street incident and was once again threatened with the possibility of indictment. Before each of Radford's debriefings with the Government, Attorney Goldpaugh failed to advise Radford to invoke his Fifth Amendment privileges against self-incrimination, failed to seek immunity for his client, and failed to request a Kastigar letter from the Government.
B. Post-Indictment
Two months later, on November 17, 1997, Petitioner Radford was indicted by the grand jury in a superseding indictment on one count of conspiracy against rights, where it was alleged that Officer Radford conspired with police officers Kenneth Owens, Arnold Redd and Christopher Hatcher to create a ruse to gain entry into a dwelling at 14245 Bentler, Detroit, Michigan on February 10, 1996; i.e., they falsely reported a possible rape and the presence of weapons at that dwelling, responded to a police run at that address as a result of the false report, and thus justified a forced entry into the dwelling. The Government further alleged that Radford fabricated his report about the incident.
Before trial, Petitioner Radford was indicted on a second superseding indictment, adding two counts of false declarations before a grand jury. Count two of the second superseding indictment alleged that, on August 20, 1997, when Radford appeared and testified before the grand jury, Radford knowingly made a false, material declaration to the grand jury regarding his belief that there was a possible rape at the dwelling as well as the presence of weapons at that address. Specifically, it was alleged that Radford falsely testified that he and other officers went to 14245 Bentler with the belief that there was a genuine complaint of a rape and the presence of weapons at that address.
The criminal jury trial began on April 9, 1998, and on April 14, 1998, the jury returned a verdict of "not guilty" as to Counts One and Three of the second superseding indictment and verdict of "guilty" as to Count Two, false declarations before a grand jury.
II. Standard of Review
"To obtain collateral relief under § 2255, petitioner must prove that his sentence `was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.' 28 U.S.C. § 2255. The grounds for relief are narrower than they would have been on direct appeal." Williams v. United States, 13 F. Supp.2d 616, 617 (E.D. Mich. 1998). "A defendant seeking to vacate and set aside a sentence pursuant to § 2255 has the burden of sustaining his contentions by a preponderance of evidence." Tyler v. United States, 78 F. Supp.2d 626, 631 (E.D. Mich. 1999).
III. Analysis
Radford's § 2255 motion is based on his claim that his conviction was constitutionally defective because his pre-indictment counsel, John Goldpaugh, failed to provide him with effective assistance of counsel. Specifically, Radford complains that his counsel failed (1) to obtain an immunity agreement with the Government prior to his testimony before the grand jury and prior to his debriefings by the Government, and (2) to advise Radford to invoke his Fifth Amendment privilege against self-incrimination when testifying before the Grand Jury and when making statements during debriefings with the Government.
To successfully assert an ineffective assistance of counsel claim, Radford must first establish that he had a constitutional right to counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (where the Court rejected the defendant's argument that he had been denied the effective assistance of counsel because his retained counsel had failed to file a timely application for an appellate court's discretionary review and reasoned that, because the defendant had no constitutional right to counsel, "he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely"). See also 3 W. LaFave, J. Israel, and N. King, Criminal Procedure § 11.7 at 615-16 (2d ed. West 1999) where the commentators observe that "a necessary corollary of a constitutional right to counsel that is based on the fair-hearing grounding of the Sixth Amendment, the similar grounding of due process, or the concept of equal protection, is that the retained or appointed counsel not undermine that right by providing ineffective assistance. However, . . ., where there is no constitutional right to the assistance of counsel which is tied to such a grounding, there does not exist a constitutional right to effective representation by counsel." (Footnote omitted). "The defendant alone would bear the consequences of his unwise choice of counsel, as he did inTorna." Id. at 617.
A. Sixth Amendment Right to Counsel
Initially, Radford argued that Attorney Goldpaugh's errors and omissions during the course of his pre-indictment representation of Radford fell below that of a reasonably competent defense counsel thus depriving him of his Sixth Amendment right to effective assistance of counsel. Radford's ineffective assistance of pre-indictment counsel claim based on the Sixth Amendment fails in light of a recent Sixth Circuit decision. See United States v. Moody, 206 F.3d 609 (6th Cir. 2000), petition for cert. filed, May 31, 2000 (No. 99-9747).
In Moody, the Sixth Circuit rejected a defendant's § 2255 motion based on a claim of pre-indictment ineffective assistance of counsel, basing its decision on prevailing Supreme Court and Sixth Circuit precedent. That precedent employs a bright line test and observes that there is no Sixth Amendment right to counsel pre-indictment and therefore there can be no Sixth Amendment claim of ineffective assistance of counsel for pre-indictment representation.
B. Fifth Amendment Right to Counsel
In his supplemental memorandum of law in support of his § 2255 motion, Radford argues that his ineffective assistance of pre-indictment counsel claim is based on a Fifth Amendment right to counsel derived from the privilege against self-incrimination. Specifically, Radford argues that his testimony before the grand jury on August 20, 1997 was compelled during custodial interrogation and thus triggered the requirement for warnings about the right to remain silent and the right to counsel discussed in Miranda v. Arizona, 384 U.S. 436, 444 (1966). In light of a recent Sixth Circuit decision, United States v. Myers, 123 F.3d 350 (6th Cir. 1997), this argument likewise fails.
As observed by the Sixth Circuit, "it is well established that the Fifth Amendment privilege against self-incrimination extends to grand jury proceedings." United States v. Myers, 123 F.3d 350, 359 (6th Cir. 1997). "Nonetheless, the privilege is normally not self-executing. As the Court stated in Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984), `a witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.'" Myers, 123 F.3d at 359. "In situations involving custodial interrogation, however," Miranda applies and various warnings about the right to remain silent and the right to the presence of an attorney must be given "to ensure that the Fifth Amendment privilege against self-incrimination can be effectively exercised." Id. (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)).
In Myers, the Sixth Circuit addressed the issue whether a defendant's "time before the grand jury constituted, or was equivalent to, custodial interrogation so as to entitle him to a complete rights warning, including a warning advising him of his right to appointed counsel." Id. at 360. The defendant in Myers appealed his guilty verdict for aiding and abetting possession with intent to distribute cocaine base arguing, inter alia that the district court erred when it denied his motion seeking to suppress his grand jury testimony. He argued that, although the AUSA advised him of his Fifth Amendment privilege against self-incrimination, the warnings were inadequate because he was not informed that he had the right to appointed counsel. Id. at 358. He further argued that "he would have exercised that right, and the counsel in turn would have advised him to exercise his Fifth Amendment rights on any questions dealing with his personal involvement in the offense." Id.
The Sixth Circuit rejected the defendant's argument that he had a right to appointed counsel that is derived from his Fifth Amendment privilege against self-incrimination. It held that, "[i]n light of the Supreme Court's opinions . . ., and the opinions rendered by our sister circuits, we are satisfied that the warnings given to [the defendant] adequately informed him of his Fifth Amendment privilege against self-incrimination" Id. (citing United States v. Mandujano, 425 U.S. 564 (1976) (where a four-justice plurality concluded that full Miranda warnings are not required for grand jury witnesses who are not in custody and concluded that a witness appearing before the grand jury does not have a constitutional right to be represented by counsel), United States v. Washington, 431 U.S. 181 (1977), and Minnesota v. Murphy, 465 U.S. 420, 431 (1984) (where the Court observed that "we have never herd that [Miranda warnings] must be given to grand jury witnesses"), and referencing United States v. Gillespie, 974 F.2d 796 (7th Cir. 1992), United States v. Goodwin, 57 F.3d 815, 817 (9th Cir. 1995), and Labbe v. Berman, 621 F.2d 26, 29 (1st Cir. 1980)).
The Sixth Circuit's decision in Myers defeats Radford's argument that he had a Fifth Amendment right to counsel that derived from his Fifth Amendment privilege against self-incrimination. Accordingly, without a constitutional right to counsel, his ineffective assistance of pre-indictment counsel claims must fail. Moreover, as the record reflects, Radford, like the defendant in Myers, was adequately informed of his Fifth Amendment privilege against self-incrimination. See Government's Response to Radford's motion, Ex. A, 8/20/97 Transcript of Radford's testimony before Federal Grand Jury, at 3, 33-34.
C. Fifth Amendment Due Process Claim
Radford further argues that he suffered a violation of his Fifth Amendment right to due process of law. Radford does not complain that he was denied a due process right to consult with his retained counsel. In fact, the record reflects that he was informed that he could consult his counsel during his grand jury testimony. See Government's Response to Radford's motion, Ex. A, 8/20/97 Grand Jury Transcript at 3. Rather, he attempts to argue that he has a right to counsel that is derived from his Fifth Amendment due process rights and further argues that his ineffective assistance of counsel claim can be grounded on this due process right to counsel. The decisions Radford relies upon, however, fail to advance his position. Cuyler v. Sullivan, 446 U.S. 335 (1980) addresses the Sixth Amendment right to counsel, and the Sixth Circuit's decision in Myers refutes Radford's claim that his testimony before the grand jury was custodial interrogation thus triggering full Miranda warnings. Radford has not established that he had a constitutional right to counsel. Accordingly, his ineffective assistance of pre-indictment counsel claims fail, and his § 2255 motion is DENIED.
IV. Conclusion
For the foregoing reasons, Petitioner Radford's § 2255 motion is DENIED.