The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On June 5, 2006, Petitioner, Edward M. Douglas, filed a pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. Petitioner claims that he is entitled to an order vacating or setting aside his conviction based upon newly discovered evidence. He also claims that he is entitled to relief because he was denied the right to present a complete defense at trial. On July 5, 2006, the Government filed its Response to Petitioner's Motion under 28 U.S.C. § 2255 (#8). On July 21, 2006, Petitioner filed his Reply (#10). This court has carefully considered the arguments raised by the parties and the record in this case. Following this careful and thorough review, Petitioner's Motion to Vacate, Set Aside or Correct Sentence (#1) is DENIED.
On May 3, 2002, in Case No. 02-20040, Petitioner was charged in a two-count indictment with distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1). After several continuances, a jury trial was scheduled to commence on February 24, 2003. Prior to trial, the Government informed the court and defense counsel that it would not be calling Carl Williams, the Government informant who participated in the controlled buys, as a witness at trial. In response, Petitioner's counsel informed the court and the Government that he intended to call Williams as a witness. The Government then filed a Motion in Limine (#31) and requested an order from this court prohibiting Petitioner from calling Williams solely for impeachment purposes. This court held a hearing on this Motion, at which Williams testified. At the hearing, Petitioner established that Williams had used a number of aliases in his life, for some of which he had obtained false driver's licenses and identification cards by paying off a Secretary of State employee. Petitioner also established that Williams had fled to avoid prosecution, and was a fugitive for six years, following his arrest for the drug charge on which he eventually cooperated with agents of the Kankakee Area Metropolitan Enforcement Group (KAMEG). As a result of his cooperation and participation in the controlled buys involving Petitioner, Williams' charge was reduced and he was sentenced to conditional discharge, serving only a few days in jail. At the time of the hearing, Williams was in pretrial custody, having been indicted in the Northern District of Illinois and charged with bank fraud. Although it was established that Williams had not spoken to any prosecutor or agents since the time of the transactions in 2001, Williams testified that he clearly recalled making arrangements to purchase crack from Petitioner and also recalled purchasing first one ounce and then four and one-half ounces of crack from Petitioner.
At the conclusion of the testimony at the hearing, Petitioner's counsel argued that Williams' criminal activity was relevant at trial, arguing:
Williams is the only critical witness, other than the defendant, who can testify to what occurred on those two occasions and how it came about . . . [O]ur theory of defense is that Carl Williams is such a sophisticated, accomplished con man that he was able to arrange to have that dope with him, either in his car or in his person -- I don't know how he did it -- but he provided the dope to the cops that he says he got from [Petitioner].
This court disagreed with Petitioner's argument and granted the Government's Motion in Limine.
This court ruled that Williams' credibility was not at issue and that, therefore, the impeachment evidence Petitioner sought to introduce was irrelevant. In explaining its ruling, this court stated, "[this is] an attempt under 404(b) to show that Carl Williams is a bad person, and that his acts are in conformity with that bad people do bad things; and maybe a bad person can somehow evade strip searches and find a way to miraculously come up with drugs and frame [Petitioner]." This court stated that the impeachment evidence Petitioner sought to introduce was irrelevant because it was "sheer speculation" and "conjecture" and "jurors don't base their verdicts on conjecture, speculation, and neither will this Court in determining relevance." This court ruled, however, that Petitioner could call Williams as a transactional witness and could impeach his testimony with prior inconsistent statements concerning the circumstances of the sales.
At trial, the Government presented the testimony of Scott Monferdini and Bill Backus, who were law enforcement agents working for the KAMEG. The Government also presented audio and video tape recordings, the purchased drugs, and seized money. This evidence showed that Williams began working with KAMEG in the spring of 2001, following his arrest in July 2000 on a state drug charge. At the direction of KAMEG, Williams called Petitioner to arrange the purchase of an ounce of crack. During the recorded conversation, the two discussed prices for various amounts of crack. Petitioner told Williams it would cost him "28" (meaning $2,800) for 41/2 ounces and "54, 55" for the "whole 9" (meaning $5400-$5500 for nine ounces). Williams told Petitioner that he only wanted an ounce initially and then he would purchase the "4 and a half." Williams asked Petitioner to get the "figures on the onion" (meaning for an ounce) and to get back to him. During a follow-up recorded telephone conversation, Petitioner told Williams that the price for an ounce was "7-5" (meaning $750).
Williams and Petitioner met on April 30, 2001 to conduct the transaction. Monferdini and Backus testified that, prior to the meeting, they met with Williams and thoroughly searched both him and his automobile for any drugs and money, and found none. The agents then provided him with $750 to use to purchase the ounce of crack from Petitioner.
While under the constant surveillance of the agents, Williams drove his car to the agreed-upon meeting place, a restaurant in Bradley, Illinois. A few minutes later, Petitioner arrived in a Ford Thunderbird automobile. Williams and Petitioner had a brief conversation in Petitioner's car and then got out of the car and opened the trunk. Williams took an article of clothing and what appeared to be a Tylenol bottle from the trunk. Following some further conversation, Williams and Petitioner drove away in their respective cars, with the agents again following Williams and keeping him under surveillance. The entire meeting in the parking lot was recorded on video tape and played for the jury at trial. After the meeting, Williams met with the agents and handed them a Tylenol bottle containing 27.8 grams of crack. The agents searched Williams and his car and found no drugs or money.
On May 9, 2001, Williams called Petitioner to arrange the purchase of an additional 41/2 ounces of crack. During a recorded telephone conversation that day, Petitioner told Williams that the price for that quantity of crack was "27-5" (meaning $2750). Following some additional telephone calls over the next week, another meeting occurred on May 18, 2001, at the same location as before. In preparation for the May 18th meeting, the agents thoroughly searched Williams and his car for drugs or money and found none. They provided him with $2750 in cash, with the serial numbers of the bills having been previously recorded, to use to purchase the crack from Petitioner. Williams then drove his car to the same restaurant as before, again under the constant surveillance of the agents. Williams entered Petitioner's car and they had a brief conversation. Williams then removed an article of clothing from the trunk which had been popped open. He and Petitioner then walked to Williams' car and Williams placed the article of clothing in his car. Williams drove away and Petitioner entered the restaurant. Again, the entire meeting between Williams and Petitioner was recorded on video tape and was played for the jury at trial.
The Government also presented evidence that, after this encounter, some of the agents remained at the restaurant to observe Petitioner while one of the agents followed Williams and met with him at another location. There, Williams handed the agent a can of foot spray and a can of soda pop, both of which were "covert can safes." Each contained a quantity of crack cocaine, totaling 113.8 grams. The agent then searched Williams and his car and found no drugs or money.
Petitioner was arrested shortly after he left the restaurant. At that time, the agents search Petitioner and found $2750 in his front pants pocket. The serial numbers on this money matched with the money that had earlier been provided to Williams for the purchase of the crack. During questioning by the agents following his arrest, Petitioner initially denied that he had been involved in drug deals. However, after the agents told him that they had audio and video recordings of the transactions, Petitioner admitted to delivering crack to Williams on both occasions. Additionally, Petitioner named two people from whom ...