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United States v. Vann

United States District Court, D. New Mexico

September 1, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RAYVELL VANN, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.

         Rayvell Vann, an inmate presently incarcerated at Leavenworth, seeks review of his sentence pursuant to 28 U.S.C. § 2255. In his pro se motion, Vann asserts his attorneys rendered constitutionally ineffective assistance because they (1) failed to call certain witnesses at trial who would have “cast doubt” on his possession of drugs; (2) did not challenge the validity of incriminating statements he made post arrest; and (3) prevented him from testifying on his own behalf at trial. Acting under an order of reference from United States Circuit Judge Paul J. Kelly, Jr. to conduct proceedings, see 28 U.S.C. § 636, the Court has considered the parties' submissions together with the record and RECOMMENDS Vann's motion be DENIED and this matter be DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         A. Facts

         In early April 2012, Vann flew from Omaha, Nebraska, where he lived, to Los Angeles, California to negotiate the purchase of marijuana and PCP. [Doc. 266, pp. 153-54].[1" name="FN1" id="FN1">1] After staying in Los Angeles for about five days, Vann bought a one-way ticket to Kansas City, Missouri aboard Amtrak's Southwest Chief about two hours before its scheduled departure time. [Id., pp. 103; 153-54]. This short window and the fact Vann paid cash, both of which suggest to law enforcement agents a possible drug transport, caught the attention of a confidential informant within the Drug Enforcement Agency. [Id., pp. 103-104]. The informant alerted DEA Special Agent Kevin Small, an Albuquerque-based interdiction specialist, that Vann, among other suspects, would be aboard the Southwest Chief on April 9, 2012. [Id, pp. 102-103].

         Because trains in the United States do not screen luggage, trains are prime targets for smugglers to use in transportation, and interdiction agents utilize “consensual encounters” as a tool for combatting the West-East movement of drugs across the nation. [Id, pp. 95-96]. A “consensual encounter” in the drug-interdiction world is a voluntary or consensual conversation with a suspect to gather information as to whether the person is transporting narcotics. [Id., pp. 95-96]. As the name implies, the suspect is under no obligation to answer questions, and participates in the conversation with the agent voluntarily. [Id.].

         Knowing the train would make a scheduled stop in Albuquerque between 10:30 and 11:00 a.m., Agent Small prepared to board the train and conduct a consensual encounter with Vann. [Id., pp. 114-121]. Agent Small was accompanied by two partners from local law enforcement agencies, Task Force Officers Danny Joseph and Jeannette Tate. [Id., pp. 115]. After boarding the Southwest Chief, Agent Small found Vann in car 412 sitting in a window seat. [Id., p. 118]. Vann agreed to talk to Agent Small and allowed Agent Small to search Vann's luggage, a laptop case and small duffle bag. [Id., pp. 128-29]. Inside the duffle bag was a large, pink gift box that spanned the entire length of the bag, along with what appeared to be clothing for a small baby or child's doll. [Id. pp. 128-30]. On the exterior of the box was a crude, handwritten inscription to “Aunt Bertha from the Washington Family.” [Doc. 238-2]. Agent Small immediately suspected the box contained controlled substances and asked Vann to accompany him to the lower level of the train car. [Doc. 266, pp. 129-30].

         Once there, Vann initially denied that there were narcotics in the box. [Doc. 281-1, p. 15]. However, when Agent Small pressed Vann on the details of Bertha Carter, the box's addressee, Vann immediately asked to make a deal with the agent. [Id., p. 16]. Vann confessed that the gift box contained “a bottle and a half” of codeine cough syrup and “some [OxyContin] pills.” [Id. p. 17]. Nonetheless, Vann refused Agent Small's request to open and search the gift box. [Id., p. 20]. Agent Small informed Vann that he would be cuffed, escorted off the train, and taken to the DEA office where Agent Small would prepare a search warrant. [Id., p. 21].

         Agent Small obtained a warrant. Upon cutting into the gift box, Agent Small smelt ether, which he knew to be indicative of PCP. [Doc. 266, pp. 133-35]. Ultimately, Agent Small extracted two bottles of cough syrup containing codeine, two juice jars containing over 100 grams of PCP, and 25 OxyContin pills. [Id., pp. 138; 147]. Because PCP is dangerous, Agent Small enlisted the help of Agent Jeff Mauldin, who is specially trained in handling hazardous drugs, to take samples of the PCP for analysis at the DEA lab in Dallas, Texas. [Id., pp. 142; 144]. A private company later disposed of the remainder of the PCP not used for samples because of the substance's volatility.

         After Agent Small retrieved the items from the box, he and Officer Tate interviewed Vann. [Id., p. 152-53]. Agent Small first informed Vann he was under arrest for the PCP and codeine cough syrup. [Id.]. Vann waived his Miranda rights and admitted he had gone to Los Angeles to purchase a gallon of PCP and twenty pounds of marijuana, which he did and which he said he shipped to Omaha via UPS. [Id., p. 153-54]. Vann claimed to be unaware that PCP was in the gift box. [Id., p. 153]. Vann further explained he planned to sell the drugs: he bought the full bottle of the cough syrup for $120, the less full bottle for $80, and planned to sell the full bottle for $250. [Id., pp. 153-55]. Vann expected to receive $1, 400 per pound for the marijuana on the street and said an eight-ounce bottle of PCP would fetch $1200. [Id.]. Because the marijuana had been fronted to him, Vann clarified, he had to pay $600 per pound, substantially more than the $400 cash price had negotiated in February of 2012 in Los Angeles. [Id.]. As for the OxyContin, Vann related he purchased the pills for $10 each and would sell them in Omaha for $50 apiece. [Id.].

         B. Procedural Posture

         On October 10, 2012, a grand jury returned a two-count second superseding indictment charging Vann with possession with intent to distribute 100 grams and more of a controlled substance containing phencyclidine (PCP) contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2 (Count 1); and possession with the intent to distribute a controlled substance containing codeine, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(E)(3) and 18 U.S.C. § 2 (Count 2). [Doc. 64]. Vann pleaded not guilty [Doc. 72].

         After a two-day jury trial on March 12 and 13, 2013, a jury convicted Vann on both counts. [Docs. 179; 182; 183]. Judge Kelly sentenced Vann, who represented himself at the October 1 and 18, 2013 sentencing hearings with his trial attorneys as standby counsel, to 180 months incarceration followed by a term of eight years supervised release on Count I and twelve months incarceration along with a year of supervised release on Count II, to run concurrently. [Doc. 227].

         Vann appealed his conviction and sentence on November 1, 2013. [Doc. 231]. The Tenth Circuit affirmed in a published opinion. See United States v. Vann, 776 F.3d 746 (10th Cir. 2015). The Court of Appeals rejected Vann's claim that he was denied a fair trial when, notwithstanding Batson v. Kentucky, 476 U.S. 79 (1986), the District Court allowed the Government to use a preemptory strike to excuse the only African-American in the venire panel. See Vann, 776 F.3d. at 757. The court also determined that the Agent Small's experience in interdiction qualified him to testify reliably as an expert. See Id. at 758. Further, under a plain error review, the Court of Appeals found that the prosecution's statements during closing were sufficiently grounded in the record such that any discrepancy between the evidence actually adduced and argument did not amount to misconduct. See Id. at 762. Finally, the Court of Appeals concluded that Vann validly waived his right to counsel during sentencing. See Id. at 763.

         The Tenth Circuit issued its mandate on April 2, 2015. [Doc. 274]. Vann's conviction and sentence became final on November 2, 2015, when the Supreme Court denied Vann's petition for certiorari. [See Docs. 274-75]. Vann timely filed the instant motion on October 31, 2016 collaterally attacking his 180-month sentence pursuant to section 2255. [Doc. 277]. The Government responded on April 19, 2017. [Doc. 281]. Vann did not submit a reply.

         II. STANDARD OF REVIEW

         Section 2255 authorizes a federal prisoner to move the court that sentenced him to “vacate, set aside or correct the sentence” on the grounds 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). In reviewing a motion under Section 2255, the Court presumes that the proceedings leading to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, ...


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