United States v. Stoddard

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 04cr355-02 (CKK)
(Civil Action No. 12-1322)
LIONEL STODDARD,

Defendant.

MEMORANDUM OPINION
(November 24, 2014)

On July 15, 2005, Lionel Stoddard (“Stoddard”) was convicted by a jury in this Court of:

conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise,

through a pattern of racketeering activity (“Count I”), including the armed robbery of the

Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June

12, 2004 (“Racketeering Act 3”), the armed robbery of the Chevy Chase Bank located at 3601

St. Barnabas Road, Silver Hill, Maryland, on or about May 10, 2004 (“Racketeering Act 5”),

assault with intent to kill while armed of Edwin Arrington on or about April 23, 2004

(“Racketeering Act 7”), and assault with intent to kill while armed of Police Officer Katie

Collins on or about May 10, 2004 (“Racketeering Act 8”); conspiracy to commit offenses against

the United States, that is, armed robberies of banks the deposits of which were then insured by

the Federal Deposit Insurance Corporation (“Count II”); armed robbery of the Industrial Bank on

or about June 12, 2004 (“Count X”); using and carrying a firearm during and in relation to a

crime of violence on or about June 12, 2004 (“Count XI”); and unlawful possession of a firearm

on or about June 12, 2004, by a person convicted of a crime punishable by imprisonment for a

term exceeding one year (“Count XIV”). The jury also found Stoddard not guilty of assault with
intent to kill while armed of Edwin Arrington on or about April 23, 2004 (“Count XVIII”).

Presently before the Court is Stoddard’s pro se [773] Motion to Vacate, Set Aside, or Correct

Sentence pursuant to 28 U.S.C. § 2255. Upon a searching review of the parties’ submissions, 1

the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside

Stoddard’s conviction and sentence. Accordingly, the Court shall DENY Stoddard’s [773]

Motion to Vacate, Set Aside, or Correct Sentence.

I. BACKGROUND

On August 3, 2004, a federal grand jury indicted Stoddard and six codefendants in

connection with a string of bank robberies that occurred in the District of Columbia and

Maryland. 2 Indictment, ECF No. [10]. The United States Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) described the factual scenario:

[Stoddard and his codefendants] indulged in a violent crime spree throughout the
District of Columbia metro area that lasted for nearly a year and a half.
Appellants, who began by cultivating and selling marijuana, evolved into a ring
that committed armed bank robberies, using stolen vehicles to travel to the
targeted banks and make their escapes. By the summer of 2004, the robbers had
developed a signature style. The gang wore bullet-proof vests, masks, and gloves,
and relied on superior fire power, preferring to use military weapons like AK-47s
instead of handguns because they surmised the metropolitan police “wouldn’t
respond” when Appellants “robb[ed] banks with assault weapons.” The gang
made use of several stolen vehicles, strategically placed along the get-away-route,
for each robbery. The robbers would serially abandon the vehicles, often torching
them in an attempt to destroy any forensic evidence that might be left behind.

United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C. Cir. 2011) (internal citations omitted).

1
While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents: Def.’s Mot. to Vacate Sentence (“Def.’s Mot.”), ECF
No. [773]; Govt.’s Opp’n to Def.’s Mot. to Vacate Sentence (“Govt.’s Opp’n”), ECF No. [794];
Def.’s Response to Govt.’s Opp’n to Mot. (“Def.’s Response”), ECF No. [819].
2
A seventh codefendant later was added by virtue of a superseding indictment.
Superseding Indictment, ECF No. [19].
2
The matter proceeded to trial in this Court, and Stoddard was tried alongside five other

codefendants. On July 15, 2005, a jury convicted Stoddard on five counts upon which he was

charged in the indictment; the jury found Stoddard not guilty of a sixth count, Count XVIII.

Verdict Form, ECF No. [472].

On May 19, 2006, this Court sentenced Stoddard to 365 months on Count I, 60 months

on Count II, 300 months on Count X, and 120 months on Count XIV to run concurrently to each

other. The Court also sentenced to Stoddard to 360 months of imprisonment on Count XI to run

consecutive to all counts. Judgment in a Criminal Case, ECF No. [639]. Stoddard filed a timely

appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Stoddard’s conviction

in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C. Cir. 2011), aff’d in part

en banc, 690 F.3d 500 (D.C. Cir. 2012). Stoddard did not file a petition for writ of certiorari

with the Supreme Court of the United States. Stoddard currently is serving his sentence.

Pending before the Court is Stoddard’s Motion to Vacate, Set Aside, or Correct Sentence

pursuant to 28 U.S.C. § 2255. Stoddard’s motion is premised on ineffective assistance of

counsel claims related to his trial and appellate counsel, W. Gregory Spencer. Specifically,

Stoddard claims that his counsel rendered him ineffective assistance of counsel by: (1) failing to

challenge the violation of his statutory and constitutional right to speedy trial; (2) failing to raise

double jeopardy challenges to the indictment prior to trial and failing to move to dismiss based

on this challenge, and for failing to raise this issue on appeal; (3) failing to raise a Confrontation

Clause challenge to certain evidence; and (4) failing to request an informant jury instruction at

trial.

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 II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may

move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that

the sentence was imposed “in violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such 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(a). The circumstances under which such a motion will be granted, however, are limited

in light of the premium placed on the finality of judgments and the opportunities prisoners have

to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a

prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United

States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “[u]nless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .

grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions

of law with respect thereto.” 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have

been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so

and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of

which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However,

“[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he

need not show ‘cause and prejudice’ for not having raised such claims on direct appeal, as these

claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130

F. Supp. 2d 43, 45 (D.D.C. 2000), aff’d, 22 F. App’x 3 (D.C. Cir. 2001) (citation omitted).

4
 A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s

performance fell below an objective standard of reasonableness under prevailing professional

norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347,

1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the

petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said

to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter,

562 U.S. 86, --, 131 S. Ct. 770, 787 (2011). “The reasonableness of counsel’s actions may be

determined or substantially influenced by the defendant’s own statements or actions . . . .

[I]nquiry into counsel’s conversations with the defendant may be critical to a proper assessment

of . . . counsel’s other litigation decisions.” Strickland, 466 U.S. at 691. In evaluating

ineffective assistance of counsel claims, the Court must give consideration to “counsel’s overall

performance,” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance,” Strickland, 466 U.S. at 689. Moreover, “[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.” Strickland, 466 U.S. at 694. A “reasonable probability” is “a

probability sufficient to undermine confidence in the outcome.” Id.

III. DISCUSSION

A district court may deny a Section 2255 motion without a hearing when “the motion and

files and records of the case conclusively show that the prisoner is entitled to no relief.” 28

5
U.S.C. § 2255(b). “‘The decision whether to hold a hearing is committed to the district court’s

discretion, particularly when, as here, the judge who is considering the § 2255 motion also

presided over the proceeding in which the petitioner claims to have been prejudiced.’” United

States v. Orleans-Lindsey, 572 F. Supp. 2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-

3089, 2009 U.S. App. LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States,

No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted));

see also United States v. Agramonte, 366 F. Supp. 2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed.

App’x 877 (D.C. Cir. 2008). “The judge’s own recollection of the events at issue may enable

him summarily to deny a Section 2255 motion.” Agramonte, 366 F. Supp. 2d at 85 (citing

United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915

(1992)). To warrant a hearing, the petitioner’s Section 2255 motion must “raise[] ‘detailed and

specific’ factual allegations whose resolution requires information outside of the record or the

judge’s ‘personal knowledge or recollection.’” Pollard, 959 F.2d at 1031 (quoting Machibroda v.

United States, 368 U.S. 487, 495 (1962)).

Based on a thorough review of the parties’ pleadings and the entire record in the criminal

proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion.

As explained below, Stoddard has not proffered detailed and factual allegations outside of the

record such that a hearing is required on the issues raised in his motion. Accordingly, the Court

shall render its findings based on the parties’ pleadings and the record.

Stoddard raises four ineffective assistance of counsel claims related to counsel allegedly:

(1) failing to challenge the violation of his statutory and constitutional right to speedy trial; (2)

failing to raise double jeopardy challenges to the indictment prior to trial and failing to move to

6
dismiss based on this challenge, and for failing to raise this issue on appeal; (3) failing to raise a

Confrontation Clause challenge to certain evidence; and (4) failing to request an informant jury

instruction at trial. The Court shall address each claim in turn.

A. Speedy Trial Challenge

A defendant’s speedy trial rights are protected statutorily under the Speedy Trial Act as

well as constitutionally under the Sixth Amendment. Stoddard alleges that his trial counsel was

ineffective by failing to move to dismiss the indictment in the instant action based on a violation

of the Speedy Trial Act and for consenting to a continuance of his statutory right to a speedy

trial. Stoddard also alleges that his counsel was deficient in failing to challenge the indictment

based on a violation of constitutional speedy trial rights. Def.’s Response at 1-7. The Court

shall address Stoddard’s ineffective assistance of counsel claim as it relates to both the statutory

and constitutional protection.

Pursuant to 18 U.S.C. § 3161(c)(1), a trial for a defendant who has pled not guilty must

commence within 70 days from the filing and making public of the indictment, or from the date

that the defendant appeared before a judicial officer in which the charge is pending, whichever is

later. In a case involving multiple defendants, the speedy trial clock resets upon the initial

appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70 (D.C. Cir.

2008). In other words, all codefendants share the speedy trial computation of the latest

codefendant. Id. (quoting Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)). However,

pursuant to section 3161(h), there are several scenarios under which the Court may toll this 70-

day time period.

In the instant action, Stoddard was indicted pursuant to a sealed indictment on August 3,

7
2004, and arraigned on August 9, 2004. Marvin Palmer was the last of Stoddard’s codefendants

to be arrested and arraigned. Palmer’s arrest and arraignment occurred on August 25, 2004.

Accordingly, August 25, 2004 is the operative date under the Speedy Trial Act for calculating

the 70-day period for all codefendants in this matter, see Van Smith, 530 F.3d at 969-70, and

Stoddard’s trial commenced on April 5, 2005, 223 days from this date.

However, on September 27, 2004, 33 days from August 25, 2004, the Court held a status

hearing with Stoddard and seven of his codefendants present, to discuss the Government’s

Notice to the Court of Plan, in Consultation with Defense Counsel, for Future Actions in this

Case. See Notice to the Court of Plan, ECF No. [90]. At the hearing, Stoddard’s counsel, along

with counsel for the codefendants and in the presence of Stoddard, was asked whether defense

counsel objected to complex case designation under the Speedy Trial Act and whether defense

counsel had an opportunity to talk to his client about this designation. Tr. 6:13—7:13; 7:20—8:2

(Sept. 27, 2004), ECF No. [675]. Stoddard’s counsel did not indicate that he had been unable to

speak with his client about the designation of the case as complex, nor did he raise an objection

to designating the case as complex within the meaning of the Act. Id.

Following the hearing on October 4, 2004, 40 days from the operative Speedy Trial Act

date, the Court entered a written order tolling the time period under the Act pursuant to 18

U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). Order (Oct. 4, 2004), ECF No. [92].

Specifically, the Court cited the nature of the case (eight codefendants and an alleged conspiracy

to rob six separate banks on six different dates), the possible testimony (expert testimony on

DNA, hair, fingerprint, and firearm analysis, and testimony of lay witnesses from the banks), as

well as the number of potential witnesses at trial (potentially sixty government witnesses). Id. at

8
1-2. In its order, the Court noted that it was “the consensus of the parties and the Court that it

would be unlikely that this case would be ready to proceed to trial within the next several months

due to the extensive discovery involved, the complexity of the case, and the breadth of forensic

evidence requiring expert testimony.” Id. at 2.

The Court, specifically with the consent of Defendants, their counsel, and the

Government, ultimately held that: (1) the case was so unusual or so complex, due to the nature of

the prosecution that it was unreasonable to expect adequate preparation for pretrial proceedings

or for the trial itself within the time limits established under the Speedy Trial Act, 18 U.S.C. §

3161(h)(8)(A), 3 (B)(ii) (2004) 4; (2) the failure to grant the requested additional time to prepare

the case would result in a miscarriage of justice to the Defendants, 18 U.S.C. § 3161(h)(8)(B)(i)

(2004) 5; and (3) the failure to grant the requested additional time would deny the Defendants

3
Pursuant to 18 U.S.C. § 3161(h)(8)(A) (2004), the statute provides:

Any period of delay resulting from a continuance granted by any judge on his
own motion or at the request of the defendant or his counsel or at the request of
the attorney for the Government, if the judge granted such continuance on the
basis of his findings that the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy trial. No such period
of delay resulting from a continuance granted by the court in accordance with this
paragraph shall be excludable under this subsection unless the court sets forth, in
the record of the case, either orally or in writing, its reasons for finding that the
ends of justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial.
4
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(ii) (2004), the statute provides that a judge
considering whether to grant a continuance shall consider “[w]hether the case is so unusual or so
complex, due to the number of defendants, the nature of the prosecution, or the existence of
novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits established by this section.”
5
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(i) (2004), the statute provides that a judge
9
reasonable time necessary for the effective preparation of the case, taking into account the

exercise of due diligence, 18 U.S.C. § 3161(h)(8)(B)(iv) (2004) 6. Id. at 2-3. Based on these

findings, the Court concluded that the ends of justice required that the case proceed to trial

outside of the 70-day period prescribed by the Speedy Trial Act. Id. at 3.

Stoddard argues that his trial counsel was deficient in consenting to the tolling of Speedy

Trial Act time period, and for failing to move to dismiss the indictment based on a violation of

the Act. Def.’s Response at 2. However, given the Court’s specific written findings tolling the

time frame under the Speedy Trial Act in compliance with the requirements of 18 U.S.C. §

3161(h) (2004), the Court finds that Stoddard’s related ineffective assistance of counsel claim

fails because Stoddard cannot establish that he was prejudiced from his counsel’s failure to

object to the tolling of the time or his failure to move to dismiss the indictment.

Even assuming arguendo that Stoddard was not advised of his statutory Speedy Trial

rights by his counsel and that his counsel consented to the tolling of the time without Stoddard’s

consent, Stoddard was not prejudiced by this error. The Court tolled the time under the Speedy

Trial Act pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). None of those

considering whether to grant a continuance shall consider “[w]hether the failure to grant such a
continuance in the proceeding would be likely to make a continuation of such proceeding
impossible, or result in a miscarriage of justice.”
6
Pursuant to 18 U.S.C. § 3161(h)(8)(B)(iv) (2004), the statute provides that a judge
considering whether to grant a continuance shall consider:

Whether the failure to grant such a continuance in a case which, taken as a whole,
is not so unusual or so complex . . . . would deny the defendant reasonable time to
obtain counsel, would unreasonably deny the defendant or the Government
continuity of counsel, or would deny counsel for the defendant or the attorney for
the Government the reasonable time necessary for effective preparation, taking
into account the exercise of due diligence.

10
provisions require the consent of the defendant. Rather, a party or the Court may move for

tolling under these provisions, but the Court applying the appropriate legal standard must

determine whether such a continuance is permissible. Accordingly, even if Stoddard’s counsel

had objected to the tolling of the time prior to the entry of the Court’s findings, it is not

reasonable to conclude that this objection would have dissuaded this Court from finding that the

case was complex and that all parties needed additional time to prepare given that this was a case

involving several codefendants alleged to have been involved in a conspiracy that included the

armed robbery of six different banks. Further, if Stoddard’s counsel moved to dismiss the

indictment on the basis that there was a violation of the Speedy Trial Act, it is not reasonable to

conclude that this Court as the trial judge would have dismissed the indictment given that it

followed the required procedures under the Act for tolling. See Order (Oct. 4, 2004). Finally,

the Court notes that Stoddard and his codefendants filed 40 substantive pre-trial motions which

added to the complexity of the case and independently tolled the Speedy Trial clock. 7 See 18

7
Perkins’ Mot. for Discovery Stmt. of Co-Defendants and Co-Conspirators, ECF No.
[128]; Perkins’ Mot. for Disclosure of Favorable Evid. Against Witnesses Not Called to the
Stand by Govt., ECF No. [129]; Perkins’ Mot. for Disclosure of Identity of Confidential
Informants, ECF No. [130]; Perkins’ Mot. to Disclose All Instances Where Witnesses were
Interviewed Jointly, ECF No. [131]; Perkins’ Mot. for Relief from Prejudicial Joinder, ECF No.
[211]; Jt. Mot. in Limine to Exclude Alleged Bad Acts and Uncharged Misconduct, ECF No.
[134]; Aguiar’s Mot. for Pretrial Identification and Production of Jencks Material, ECF No.
[135]; Aguiar’s Mot. to Sever Defendants and/or Mot. to Sever Counts, ECF No. [136]; Aguiar’s
Mot. to Disclose Identities of Each Confidential Informant Regardless of if they will be Called
for Trial, ECF No. [137]; Burwell’s Mot. for Notice of Intent to Introduce Uncharged
Misconduct and Prior Convictions, ECF No. [138]; Burwell’s Mot. to Compel Disclosure of
Info. Regarding Confidential Informants, Witnesses and Cooperating Criminals, ECF No. [139];
Burwell’s Mot. to Strike Alias, ECF No. [140]; Burwell’s Mot. to Preserve Notes, Report and
Evid., ECF No. [141]; Burwell’s Mot. to Adopt Mot. filed on behalf of Co-Defendants, ECF No.
[142]; Burwell’s Mot. to Reveal the Identity of Informant(s) and the Basis of their Reliability,
ECF No. [143]; Burwell’s Mot. to Sever Count(s) and to Try Co-Defendants Separately, ECF
11
U.S.C. § 3161(h)(1)(F) (2004). Accordingly, the Court concludes that there was no Speedy Trial

Act violation in the instant action regardless of the consent issue.

Turning next to Stoddard’s claim under the Sixth Amendment, the D.C. Circuit

recognized that “[t]he absence of a Speedy Trial Act violation does not ipso facto defeat a Sixth

Amendment speedy trial claim.” United States v. Rice, 746 F.3d 1074, 1081 (D.C. Cir. 2014),

cert. denied, No. 14-6554, 2014 WL 5025855 (U.S. Nov. 10, 2014). Nonetheless, it is an

unusual case in which the Act is followed but the Constitution is violated. Id. In order to

determine whether a defendant’s Sixth Amendment right to a speedy trial has been violated, the

Court must consider four factors: “[l]ength of delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530

(1972). Under the first factor, the defendant must make a threshold showing that the delay

No. [144]; Burwell’s Mot. in Limine regarding Video Tape Evid., ECF No. [145]; Palmer’s Mot.
to Suppress Identification Evid., ECF No. [147]; Palmer’s Mot. in Limine to Exclude Def.
Marvin Palmer’s Incarcerated Status in New York, ECF No. [149]; Palmer’s Mot. to Adopt
Codefendant’s Mots., ECF No. [151]; Stoddard’s Mot. for Bill of Particulars, ECF No. [152];
Stoddard’s Mot. for Pretrial James Hrg., ECF No. [153]; Stoddard’s Mot. to Strike, ECF No.
[154]; Stoddard’ Mot. to Bifurcate Trial, ECF No. [155]; Stoddard’s Mot. to Sever Counts, ECF
No. [156]; Stoddard’s Mot. to Dismiss Count One of the Indictment, ECF No. [157]; Stoddard’s
Mot. to Suppress, ECF No. [158]; Stoddard’s Mot. to Suppress Identification Evid., ECF No.
[159]; Stoddard’s Mot. to Suppress Evid., ECF No. [160]; Stoddard’s Mot. to Sever Defs., ECF
No. [161]; Morrow’s Mot. to Suppress Identification Evid., ECF No. [162]; Morrow’s Mot. to
Identify Witnesses with Juvenile Adjudications and pending Juvenile Proceedings and to Inspect
Juvenile Files, ECF No. [164]; Jt. Mot. for Relief from Improper Joinder, and Mot. for Severance
of Offenses and/or Defs., ECF No. [165]; Jt. Mot. for In Camera Review of Grand Jury
Testimony to Determine the Existence of a Racketeering Enterprise, ECF No. [166]; Perkins’
Mot. to Adopt Mots. Filed on Behalf of Co-Defendants, ECF No. [167]; Perkins’ Mot. to
Suppress All Evid. Seized pursuant to a Constitutionally Defective Warrant, ECF No. [168]; Sld.
Jt. Def. Motion to Dismiss Indictment, ECF No. [172]; Aguiar’s Mot. to Prevent Govt. from
Introducing Fed. R. 404(b) Evid. Against Def., ECF No. [464]; Perkins’ Mot. for Change of
Venue, ECF No. [196]; Palmer’s Mot. for Determination of Crawford Parameters, ECF No.
[226]. Additionally, the Government also filed one pre-trial motion. Govt.’s Motion in Limine
and First Notice of Intention to Introduce Evid. Pursuant to Fed. R. Evid. 404(b), ECF No. [133].
12
between the accusation and the trial was presumptively prejudicial in order for the claim to

proceed. Id. If that threshold requirement is met, then the Court must consider the length of the

delay “as one factor among several, the extent to which the delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim.” Doggett v. United States, 505

U.S. 647, 652 (1992).

The Court turns to the issue of whether the defendant has met the threshold requirement

of demonstrating that the delay was presumptively prejudicial. “Presumptive prejudice . . .

simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker

enquiry.” Doggett, 505 U.S. at 652 n.1. The determination as to whether a delay is

presumptively prejudicial is dependent upon the peculiar circumstances of the case. Barker, 407

U.S. at 530-31. The Supreme Court has suggested and this Circuit has not questioned that a

delay exceeding one year is presumptively prejudicial. Doggett, 505 U.S. at 652 n.1; United

States v. Marshall, 669 F.3d 288, 295-96 (D.C. Cir. 2011) (requiring the district court to make

factual findings regarding defendant’s allegation that the government did not overcome the

presumption of prejudice for delays over one year); United States v. Taylor, 497 F.3d 673, 677

(D.C. Cir. 2007), cert. denied, 552 U.S. 1222 (2008) (assuming without deciding that a delay

barely over one year between the indictment and trial was presumptively prejudicial); United

States v. Homaune, 898 F. Supp. 2d 153, 168-69 (D.D.C. 2012) (“Other circuits have generally

found a delay exceeding one year to be ‘presumptively prejudicial,’ and the D.C. Circuit has not

questioned that rule of thumb.”). The Court finds that the interval between Stoddard’s

indictment and his trial, slightly over eight months, is not presumptively prejudicial in light of

the nature of the case. Indeed, the instant action involved eight codefendants, a 20-count

13
indictment including two conspiracies charges, 40 pre-trial motions, and evidence from multiple

expert and lay witnesses. See Barker, 407 U.S. at 531 (“[T]he delay that can be tolerated for an

ordinary street crime is considerably less than for a serious, complex conspiracy charge.”).

Accordingly, the Court holds that Stoddard’s claim related to the alleged constitutional violation

of his speedy trial rights under the Sixth Amendment fails. Doggett, 505 U.S. at 651-52 (noting

that a defendant who fails to make a threshold showing that the delay was presumptively

prejudicial cannot complain that the government denied him a speedy trial if his case was

prosecuted with customary promptness). The Court finds that Stoddard’s counsel’s failure to

raise this issue either in trial or on appeal does not fall below the standards of professional norms

given that Stoddard did not reach the threshold requirement of bringing a constitutional claim.

Further, the Court finds that Stoddard’s trial and appellate counsel did not render ineffective

assistance of counsel by failing to raise this challenge because it is not reasonable to conclude

that there would have been a different result had this issue been argued either prior to trial or on

appeal.

Given that the Court followed the required process for tolling time under the Speedy Trial

Act regardless of whether Stoddard consented to the tolling, Stoddard cannot establish that his

counsel acted in an objectively unreasonable manner by failing to move to dismiss the case on

the basis that the Court violated the 70-day requirement of the Act, nor can he establish that there

is a reasonable likelihood of a different result had trial counsel made such a motion. Further,

Stoddard cannot establish that his counsel rendered ineffective assistance by failing to raise a

constitutional challenge under the Sixth Amendment because Stoddard cannot meet the threshold

requirement of bringing such a claim. Accordingly, Stoddard’s ineffective assistance of counsel

14
claim premised on counsel’s failure to protect his statutory and constitutional speedy trial rights

either prior to trial or on appeal is without merit.

B. Double Jeopardy and Multiplicity Challenges

Stoddard next argues that his counsel was ineffective by failing to raise multiplicity and

duplicity challenges to the indictment prior to trial, for failing to move to dismiss the indictment

based on this challenge prior to trial, and for failing to raise this issue on appeal. Def.’s

Response at 7-11. Specifically, Stoddard argues that his trial and appellate counsel failed to raise

the following double jeopardy arguments: Counts I, II, III, V and VII are multiplicitous; Counts

III, IV, VIII, IX, XII, XIII, and XVII are duplicitous; and that the language in these counts as to

18 U.S.C. § 2 (aiding and abetting) was surplusage and should be stricken. Id. at 8. Stoddard’s

claim both as applied to counsel at the trial and appellate levels fails for the reasons described

herein.

Turning first to Stoddard’s claim on the trial court level, counsel for Stoddard’s

codefendant filed a Joint Defense Motion to Dismiss the Indictment due to Multiplicitous and

Duplicitous Charging, which was considered on behalf of all the codefendants, on February 1,

2005. Sealed Jt. Def. Mot. to Dismiss Indictment, ECF No. [172]. The motion contained all the

arguments related to multiplicity and duplicity raised by Stoddard in his ineffective assistance of

counsel claim. 8 The Court issued a Memorandum Opinion on March 16, 2005, finding that each

8
The Court used almost exactly the same language that Stoddard used in his § 2255
motion to characterize the arguments made in the joint pre-trial motion:

Essentially, the Joint Defense Motion first claims that three sets of counts are
“multiplicitous” and therefore in violation of the test for Double Jeopardy Clause
violations identified in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
15
of the arguments was without merit. 9 Memo. Op. (Mar. 16, 2005), at 13-22, ECF No. [437].

Accordingly, Stoddard cannot establish that his trial counsel was ineffective by failing to raise

these claims because it is clear from the record that he did timely raise these concerns on

Stoddard’s behalf and the Court rejected them.

Turning next to Stoddard’s claim on the appellate court level, Stoddard asserts that his

appellate counsel (who also served as his trial counsel) rendered ineffective assistance for failing

to raise these issues on appeal. The Strickland standard applies to claims of ineffective

assistance of both trial and appellate counsel. Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir.

2014). Accordingly, in order to prevail, Stoddard must demonstrate: “(1) his counsel’s

performance ‘fell below an objective standard of reasonableness,’ and (2) ‘there is a reasonable

180, 76 L.Ed. 306 (1932). Defendants identify Counts I and II, Counts V and VII,
and Count III as multiplicitous. See Def.’s Mot. at 2-5. Second, Defendants
contend that Counts III, IV, VIII, IX, XII, XIII, XVII, and XVIII are duplicitous
because they allegedly charge more than one statutory violation in each count. Id.
at 6. Third, Defendants claim, without any discussion, that the language in these
counts as to 18 U.S.C. § 2 (aiding and abetting) is surplusage that should be
stricken. Id. at 7.

Memo. Op. (Mar. 16, 2005), at 13-14.
9
The Court notes that in its Memorandum Opinion, it adopted the numbering scheme for
the Counts from an earlier Indictment filed on November 9, 2004. Memo. Op. (Mar. 16, 2005),
at 2 n.1. Stoddard only raises specific arguments in the instant motion related to Counts I, II, III,
and V. The Court notes that Stoddard was not charged under either Count III or V of the
indictment, however, he was charged with Racketeering Acts 3 and 5 under Count I. See Def.’s
Response at 9-11. Regardless, the Court notes that the numbering of Counts I, II, and III and the
Racketeering Acts related to Count I remain consistent between the earlier indictment relied on
by the Court in its Memorandum Opinion and the controlling indictment, filed on February 15,
2005, under which Stoddard was convicted. Compare Superseding Indictment (Nov. 9, 2004),
ECF No. [115] with Superseding Indictment (Feb. 15, 2005), ECF No. [175]. Count V relates to
different codefendants in the different indictments, however, Stoddard was not charged under
Count V pursuant to either indictment. Accordingly, it is clear that the Court previously ruled on
the challenges raised in Stoddard’s motion that relate to Counts under which Stoddard actually
was charged.
16
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). As

the Supreme Court has noted, “appellate counsel who files a merits brief need not (and should

not) raise every nonfrivolous claim, but rather may select from among them in order to maximize

the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). However, the

Court noted that “it is still possible to bring a Strickland claim based on counsel’s failure to raise

a particular claim [on appeal], but it is difficult to demonstrate that counsel was incompetent.” Id.

In the instant action, Stoddard’s counsel raised several claims on his behalf on appeal.

Specifically, counsel argued several points that extended to all the codefendants, including

challenging the Court’s admission of evidence of uncharged crimes against the codefendants,

exclusion of other crimes evidence related to a key government witness in order to demonstrate

bias and motive to falsely implicate codefendants, and exclusion of extrinsic evidence that one

government witnesses said that he was going to lie. Jt. Brief of the Appellants at 15-63, Burwell

et al v. United States, No. 06-3071 (D.C. Cir. Oct. 2, 2009). Appellate counsel also raised

several arguments specifically related to Stoddard. Specifically, counsel argued that this Court

should have severed Stoddard’s case because the other crimes evidence admitted against the

codefendants prejudiced Stoddard, id. at 66-68, and that evidence presented against Stoddard

was insufficient to sustain his conviction, id. at 87-88.

Stoddard’s counsel chose not to raise the double jeopardy challenges on appeal in favor

of raising other claims on Stoddard’s behalf. Here, the Court cannot conclude that appellate

counsel’s decision not to raise the duplicity and multiplicity arguments was objectively

unreasonable given professional norms, nor can the Court conclude that if appellate counsel had

17
raised this issue, that there is a reasonable probability of a different result on appeal. Indeed, it is

clear from the record that Stoddard’s appellate counsel chose to raise certain arguments that he

deemed stronger than the double jeopardy arguments on appeal. See Jones v. Barnes, 463 U.S.

745, 751-52 (1983) (“Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.”). This tactical decision does not fall outside the

bounds of professional norms. Further, for the reasons laid out in the Court’s comprehensive

Memorandum Opinion on these issues which the Court incorporates herein, Memo. Op. (Mar.

16, 2005), at 13-22, the Court concludes that had appellate counsel raised this issue on appeal,

there is not a reasonable probability that the result would have been different. 10 Accordingly, the

Court finds that Stoddard is not entitled to relief on his ineffective assistance of counsel claims

related to the multiplicity and duplicity challenges to the indictment.

C. Confrontation Clause Challenge

Stoddard next alleges that his trial and appellate counsel rendered ineffective assistance

of counsel by failing to raise a “Crawford/Melendez argument.” Def.’s Mot. at 6. Stoddard

10
Stoddard argues that Counts I and III constitute the same offense. The Court notes that
Stoddard was not charged under Count III of the indictment. However, based on the statutory
provisions that he cites, he actually appears to be discussing Count I, brought under 18 U.S.C. §
1962(d), and Count II, brought under 18 U.S.C. § 371. See Def.’s Response at 9-11; Indictment
(Feb. 15, 2005), at 1-16. The Court analyzed and rejected this argument in its Memorandum
Opinion. Memo. Op. (Mar. 16, 2005), at 14-16. Stoddard also appears to argue that Counts II
and V are multiplicitous. If Stoddard is in fact discussing Count V, the Court notes that he was
not charged under this Count and, thus, this discussion is not relevant as to the charges
specifically related to him. To the extent that Stoddard may be arguing that Racketeering Act 5
of Count I and Count II of the indictment are multiplicitous, see Def.’s Response at 10, the Court
notes that its earlier ruling on Counts I and II is applicable, see Memo. Op. (Mar. 16, 2005), at
14-16.
18
provides no additional information related to this argument nor does he point to any specific

evidence to which he believes this argument should have been made. See id. The Government

in its opposition indicates that Stoddard seems to contend that this objection applies to records

and affidavits admitted into evidence at trial to establish that the banks that were robbed were

Federal Deposit Insurance Corporation (“FDIC”) insured, one of the elements of Count II.

Govt.’s Opp’n 14-16. The Court shall accept the Government’s proposal as Stoddard’s argument

since Stoddard did not counter the argument or provide any additional information in his

subsequently filed response to the Government’s opposition. See generally Def.’s Response.

The Court finds that this claim is without merit for the several reasons described below.

Four pieces of evidence were admitted at trial establishing the insured status of four

banks – Bank of America, Riggs Bank, Chevy Chase Bank, and SunTrust – along with affidavits

attesting to the fact that the documents were official records of the FDIC; the records and

accompanying affidavits were admitted into evidence at trial without objection. See Ex. CCB-

001 (Proof of Insured Status for Chevy Chase Bank), ECF No. [837-1]; RB-001 (Proof of

Insured Status for Riggs Bank), ECF No. [837-2]; BOA-001 (Proof of Insured Status for Bank of

America), ECF No. [837-3]; SUN-001 (Proof of Insured Status for SunTrust Bank), ECF No.

[837-4].

Stoddard points to the Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 557

U.S. 305 (2009), in which the Court held that affidavits showing the results of forensic analyses

performed on seized substances are testimonial statements and, accordingly, analysts are

witnesses under the Confrontation Clause of the Sixth Amendment. Id. at 309-11. The Court

clarified that affidavits “‘made under circumstances which would lead an objective witness

19
reasonably to believe that the statement would be available for use at a later trial,’” id. at 311

(quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)), are testimonial statements and,

accordingly, the authors of such affidavits are witnesses for the purposes of the Confrontation

Clause of the Sixth Amendment. Id. at 311. The Court found that “[a]bsent a showing that the

[authors of the affidavits] were unavailable to testify at trial and that petitioner had a prior

opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the [authors of

the affidavits] at trial.’” Id. It appears that Stoddard is asserting that his trial and appellate

counsel rendered ineffective assistance of counsel by failing to raise a Confrontation Clause

challenge to the admissibility of the affidavits filed alongside records reflecting that the banks

were insured by the FDIC because the authors of the affidavits did not testify at trial. The Court

finds that this argument fails based on the relevant case law on this issue.

First, Stoddard’s claim fails because the official records and accompanying affidavits

were not testimonial and, thus, do not invoke Confrontation Clause challenges. As the

Government properly points out, the records themselves were admitted into evidence under the

public records exception to the hearsay rule. See Fed. R. Evid. 803(8) (Hearsay Exception for

Public Records). Further, the affidavits were admitted pursuant to Federal Rule of Evidence

902(4), to establish that the evidence was self-authenticating as certified copies of public records.

Indeed, the Supreme Court in Melendez-Diaz, appeared to distinguish between situations

in which an affidavit is used to authenticate an otherwise admissible record from an affidavit

created for the sole purpose of providing evidence against a defendant. See Melendez-Diaz, 557

U.S. at 322-23 (“A clerk could by affidavit authenticate or provide a copy of an otherwise

admissible record, but could not do what the analysts did here: create a record for the sole

20
purpose of providing evidence against a defendant”). This Court itself has held that an affidavit

certifying the authenticity of a record is not testimonial and, accordingly, not subject to the

Confrontation Clause. As this Court held, “[i]t is the records, not the certification, that are

introduced into substantive evidence against the defendant during trial. The certifications at issue

are simply ‘too far removed from the ‘the principal evil at which the Confrontation Clause was

directed’ to be considered testimonial.’” United States v. Edwards, Crim. Case No. 11-129-1, 1,

11 (CKK), 2012 WL 5522157, at *2 (D.D.C. Nov. 15, 2012) (quoting United States v. Ellis, 460

F.3d 920, 920 (7th Cir. 2006)). The Court finds the affidavits were not testimonial within the

meaning of the Confrontation Clause because the affidavits in question were created only to

certify the authenticity of the public records, and not to provide substantive evidence against

Stoddard at trial.

Second, Stoddard’s claim fails because there was independent testimony at trial that each

of the four banks was FDIC-insured and Stoddard’s counsel was presented with the opportunity

to cross-examine these witnesses on the issue. Tr. 1216:6-21 (Apr. 18, 2005) (Testimony of

Viola J. Scott, banking center manager at Bank of America branch); Tr. 1463:23—1464:10 (Apr.

19, 2005) (Testimony of Ricardo Young, assistant manager at Riggs Bank branch); Tr. 1543:5-

19 (Apr. 20, 2005) (Testimony of Jacqueline Caldwell, bank manager at Chevy Chase Bank

branch in Hyattsville, MD); Tr. 1634:15-23 (April 20, 2005) (Testimony of Curtis Oliver,

branch manager at Chevy Chase Bank branch in Silver Hill, MD); Tr. 2168:11—2169:2 (Apr.

25, 2005) (Testimony of Charlene Hollings, branch manager of SunTrust Bank branch). Finally,

Stoddard’s claim fails because he has not pointed to any evidence that his counsel failed to

present that refuted the assertion that the banks were in fact FDIC-insured, nor does Stoddard

21
himself at this juncture appear to be claiming that the banks were not FDIC-insured.

Given that the evidence in question does not raise Confrontation Clause concerns and that

defense counsel was presented with the opportunity to cross-examine witnesses who testified that

each bank was FDIC-insured, the Court finds that both trial counsel and appellate counsel did not

act in an objectively unreasonable manner by failing to raise this challenge either at trial or on

appeal. Nor does the Court find that Stoddard was prejudiced by counsel’s failure to raise this

claim because Stoddard has not pointed to any evidence to rebut the claim that the banks were

FDIC-insured. Accordingly, the Court concludes that Stoddard’s claim that his counsel rendered

him ineffective assistance of counsel by failing to raise a Confrontation Clause challenge either

at trial or on appeal is without merit.

D. Informant Jury Instruction

Finally, Stoddard argues that his trial counsel rendered him ineffective assistance of

counsel by failing to request an informant jury instruction. Def.’s Mot. at 5. However, Stoddard

only raises this issue in his original motion and does not provide any additional briefing on this

issue in his reply. See generally Def.’s Response. Stoddard’s claim fails because the record

reflects that the Court did, in fact, give instructions regarding witnesses with plea agreements and

witnesses who are accomplices. The instructions as read during trial follow:

Now, you’ve heard evidence that Noureddine Chtaini, Omar Holmes and Antwon
Perry each entered into separate plea agreements with the government, pursuant to
which each of these witnesses agreed to testify truthfully in this case, and the
government agreed to dismiss charges against him and/or decline prosecution of
charges against him, and bring the witness’s cooperation to the attention of the
sentencing court on the remaining charges.

The government is permitted to enter into this kind of plea agreement. You in turn
may accept the testimony of such a witness and convict the defendant on the basis

22
 of this testimony alone, if it convinces you of the defendant’s guilt beyond
reasonable doubt.

A witness who has entered into a plea agreement is under the same obligation to
tell the truth as is any other witness, because the plea agreement does not protect
him against prosecution for perjury or false statement, should he lie under oath.

However, you may consider whether a witness who has entered into such an
agreement has an interest different from any other witness. A witness who
realizes that he may be able to obtain his own freedom or receive a lighter
sentence by giving testimony may have a motive to lie.

The testimony of a witness who has entered into a plea agreement should be
received with caution and scrutinized with care. You should give the testimony
such weight as in your judgment it’s fairly entitled to receive.

Now, you’ve also heard that Omar Holmes and Noureddine Chtaini were
accomplices. Accomplices in the commission of a crime are competent witnesses,
and the government has the right to use them as witnesses. An accomplice is
anyone who knowingly and voluntarily cooperates with, aids, assists, advises or
encourages another person in the commission of a crime, regardless of his degree
of participation.

The testimony of an alleged accomplice should be received with caution and
scrutinized with care. You should give it such weight as in your judgment it’s
fairly entitled to receive. If the testimony of an alleged accomplice is not
supported by other evidence, you may convict the defendant upon that testimony
only if you believe that it proves the guilt of the defendant beyond a reasonable
doubt.

Tr. 7996:1–7997:16 (Jun. 21, 2005). Accordingly, Stoddard’s ineffective assistance of counsel

fails on this issue both as applied his counsel at trial and on appeal because the Court did give the

relevant instruction.

E. Letter from Mr. Stoddard

The Court notes that it received a letter from Stoddard that it granted leave to file on

March 27, 2014. Letter (Mar. 27, 2014), ECF No. [824]. In the letter, Mr. Stoddard requested

that the Court help him find legal assistance because the person who was assisting him at the

23
Federal Public Defender is no longer employed there. The Court shall construe this letter as a

request to appoint counsel. Given that the Court has determined that a hearing is not necessary

in this matter, the Court finds that the interests of justice do not require that the Court appoint

Stoddard counsel in this matter and, accordingly, his request is denied. See 18 U.S.C. §

3006A(a)(2)(B).

E. Certificate of Appealability

When the district court enters a final order resolving a petition under 28 U.S.C. § 2255

that is adverse to the petitioner, it must either issue or deny a certificate of appealability. Rules

Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a). By

statute, “[a] certificate of appealability may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing

demands that Stoddard demonstrate that “reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For the reasons set forth above,

the Court concludes that Stoddard has failed to make that showing in this case, and, accordingly,

no certificate of appealability shall issue from this Court. To the extent Stoddard intends to file

an appeal, he must seek a Certificate of Appealability from the United States Court of Appeals

for the District of Columbia Circuit in accordance with Federal Rule of Appellate Procedure

22(b).

IV. CONCLUSION

For the foregoing reasons, the Court finds no reason to set aside Stoddard’s conviction or

24
sentence. Accordingly, Stoddard’s [773] Motion to Vacate, Set Aside, or Correct Sentence is

DENIED. Furthermore, no Certificate of Appealability shall issue from this Court. To the

extent Stoddard intends to file an appeal, he must seek a Certificate of Appealability from the

United States Court of Appeals for the District of Columbia Circuit in accordance with Federal

Rule of Appellate Procedure 22. An appropriate Order accompanies this Memorandum Opinion.

An appropriate Order accompanies this Memorandum Opinion.

This is a final appealable order.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

25