UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4517
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHANITA MCKNIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00787-TLW-1)
Submitted: June 22, 2010 Decided: July 6, 2010
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas M. Dawson, Leavenworth, Kansas, Lyle J. Yurko, YURKO &
ASSOCIATES, Charlotte, North Carolina, for Appellant. Kevin F.
McDonald, Acting United States Attorney, Jeffrey Mikell Johnson,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shanita McKnight, a former Lake City, South Carolina
police officer, was charged in a two-count indictment with
conspiracy to possess with intent to distribute and conspiracy
to distribute fifty grams or more of cocaine base and five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2006), and extortion by a public employee, in violation of
18 U.S.C. § 1951 (2006). Following a jury trial, McKnight was
found guilty of both charges and sentenced to 240 months of
imprisonment on both counts, to run concurrently. McKnight now
appeals, arguing that her trial counsel was ineffective. For
the reasons that follow, we affirm.
On appeal, McKnight first argues that her counsel was
ineffective because he represented her despite a conflict of
interest, “which adversely affected his performance.” When
McKnight was arrested, she was questioned by investigating
officers and agents while her attorney was present. The
Government intended to offer the testimony of those officers,
including that of Johnnie Bartel, a detective with the South
Carolina Law Enforcement Division (“SLED”). However, McKnight’s
trial counsel believed that the testimony Bartel planned to give
would be “substantially different” from what was actually said
during McKnight’s interview. As a result, McKnight now claims
that her trial counsel was a material witness who should have
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withdrawn from representation, and his failure to do so
constituted “an actual conflict of interest” that impacted his
performance as McKnight’s trial counsel. McKnight asserts that
because Bartel’s testimony was among the “most critical evidence
the jury heard,” trial counsel should have withdrawn so that “he
could have testified to exactly what he heard in the interview,
perhaps critically wounding the Government’s case.” His failure
to do so, according to McKnight, meant that counsel could not be
a “key witness” for her, and “[t]here is no doubt that his
conflict affected his performance.”
“A claim of ineffective assistance of counsel should
be raised by a habeas corpus motion under 28 U.S.C. § 2255 in
the district court and not on direct appeal, unless it
conclusively appears from the record that defense counsel did
not provide effective representation.” United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal
quotation marks and alterations omitted). To demonstrate
ineffective assistance, a defendant must show that his
“counsel's representation fell below an objective standard of
reasonableness,” and that the error was “prejudicial to the
defense” such that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 692, 694 (1984).
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When a defendant raises a claim of ineffective
assistance based on a conflict of interest, she must
“demonstrate that an actual conflict of interest adversely
affected [her] lawyer's performance.” Cuyler v. Sullivan,
446 U.S. 335, 348 (1980). If this showing is made, “[p]rejudice
is presumed.” Strickland, 466 U.S. at 692 (citing Cuyler, 466
U.S. at 350, 348). In other words, “a defendant who shows that
a conflict of interest actually affected the adequacy of [her]
representation need not demonstrate prejudice in order to obtain
relief.” Cuyler, 446 U.S. at 349-50.
The record before us does not conclusively establish
that there was an actual conflict of interest that affected the
adequacy of trial counsel’s representation of McKnight. As
McKnight alleged, counsel initially asserted that Bartel would
testify contradictorily to what counsel recalled McKnight
stating during her interview, and that should Bartel do so,
counsel would have to ask the court to convene a perjury case
and would have to make a record of the testimony. However, at
the conclusion of Bartel’s testimony, counsel expressly stated
that “Agent Bartel’s testimony did not include the objectionable
information that I raised with the court.”
Moreover, in her brief, McKnight fails to allege
either that Bartel’s testimony was inconsistent with what she
said in the interview or that any of Bartel’s testimony
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describing her statements was incorrect or inaccurate. McKnight
does note that trial counsel asked Bartel if he recalled a
statement made by FBI agent Vincent Flamini during that
interview that he had warned bar owners of police activity,
which Bartel denied, as well as asking Bartel about McKnight’s
statement that she was not permitted to make drug arrests alone
as a female officer, which was not recorded in his interview
summary. However, although McKnight suggests that her trial
counsel’s recollection conflicted with Bartel’s regarding
Flamini’s alleged statement, this does not appear conclusively
in the record. Similarly, to the extent that McKnight
challenges Bartel’s recollection that she stated she had not
made any drug arrests, the record again does not demonstrate
that counsel’s memory differed on this point, but only that
counsel sought to challenge Bartel’s credibility by questioning
the absence of that alleged statement from his written report.
Accordingly, because the record does not conclusively
demonstrate that counsel was ineffective, we conclude that
McKnight’s claim is not properly before this court on direct
appeal.
In her second claim, McKnight argues that counsel was
ineffective at sentencing for failing to: (1) contest the
quantity of drugs for which McKnight was held accountable; (2)
assert that “the scope of [McKnight’s] agreement and reasonable
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forseeability prohibited [McKnight] from being accountable for
the quantity assessed against [her] in paragraph 66 of the
presentence report (119 kilograms of cocaine)”; and (3) argue
for a one to one ratio for crack and powder cocaine. McKnight
argues that counsel should have made the “scope and
foreseeability argument” in § 1B1.3 of the U.S. Sentencing
Guidelines Manual (“USSG”) (2008), claiming that “it is a
reasonable probability that the scope and foreseeability
argument would have prevailed reducing [McKnight’s] base offense
level.” She states that she never distributed drugs herself,
and that under the application notes to USSG § 1B1.3, simply
knowing that those she was giving information to sold large
amounts of drugs does not make those drug quantities
attributable to her. McKnight also argues that the drug
activities of Lorenzo Jones and Keith Rose, two co-conspirators
who testified against her and whose testimony provided the basis
for the quantity of drugs attributable to her, “would have moved
forward with or without the minimal information provided by
McKnight and the arrest of the two would have and did occur
anyway.” McKnight asserts that if she should be held
accountable for a quantity of drugs “it should be a far lesser
amount,” though she does not specify what amount.
Under USSG § 1B1.3(a)(1)(B), in a “jointly undertaken
criminal activity,” McKnight is responsible for “all reasonably
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foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” Here, the testimony of
both Jones and Rose, known by McKnight to be drug dealers,
established that McKnight provided information to them that
allowed them both to distribute large quantities of crack
cocaine in Lake City. Specifically, Jones testified that during
the relevant time period, for two years between 2003 and 2005,
he paid McKnight anywhere from two to four hundred dollars in
exchange for information that enabled him to sell approximately
thirty-six ounces, equal to one kilogram, of crack cocaine every
week. Similarly, Rose testified that he paid McKnight two to
three hundred dollars a week in exchange for information about
police activity and impending drug busts in Lake City at
locations where he sold drugs, and that he was purchasing
approximately four and a half to five ounces of crack cocaine
every week during the period he was paying for information from
McKnight, between March 2003 and August 2005.
There is nothing in the record before us to suggest
that the drug sales and distribution by Jones and Rose could
have been unforeseeable to McKnight. Moreover, both Jones and
Rose testified to the specific amounts they were able to
purchase and re-sell each week during the period of time in
which McKnight was providing this information to them. This
amount, 119 kilograms of crack cocaine, was reflected correctly
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in the PSR and her base offense level was calculated pursuant to
that amount. Thus, there is nothing on the face of the record
that suggests that counsel was ineffective for failing to
challenge the drug quantity established in the PSR or that the
quantity was not foreseeable to McKnight.
Additionally, although McKnight argues that counsel
did not make a “foreseeability” argument, counsel challenged
McKnight’s role in the offense, to the extent that it was
limited; that she did not initiate the conspiracy, sell drugs,
or receive money for drug sales; and that she should be entitled
to a downward departure. The court took careful consideration
of the issue and, noting that McKnight was nonetheless
responsible as a co-conspirator for the full amount of drugs
distributed by those in the conspiracy, sentenced McKnight to a
below-Guidelines sentence because of her otherwise minimal role
in the conspiracy. Again, nothing in the record conclusively
demonstrates that counsel’s actions amounted to ineffective
assistance; counsel argued for a reduction based on the facts of
McKnight’s participation in the conspiracy, and the court
accepted counsel’s argument in part and departed downward from
the established Guidelines.
Finally, although McKnight asserts on appeal that
counsel should have argued for a one-to-one ratio for crack and
powder cocaine, she provides no argument in support of this
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contention, and states only that “had [trial counsel] objected,
it is probably [sic] that the trial court would have reduced the
100 to 1 ratio and further lowered [McKnight’s] 20-year
sentence.” Nothing in the record, however, suggests that the
court would have further reduced McKnight’s sentence, and
McKnight provides no facts in support of this claim. Thus, any
conclusion by this court regarding counsel’s failure to raise
this argument would be premised on surmise or speculation.
Accordingly, we conclude that McKnight’s claims of ineffective
assistance of counsel at sentencing also are not properly before
this court on direct appeal.
For the foregoing reasons, we affirm McKnight’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid in the
decisional process.
AFFIRMED
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