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George Campbell v. United States of America

May 18, 2012

GEORGE CAMPBELL, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

George Campbell ("Mr. Campbell") moves to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255. Mr. Campbell claims that his trial counsel provided ineffective assistance. For the reasons stated herein, the court denies Mr. Campbell's motion for a writ of habeas corpus.

I.BACKGROUND

The factual background surrounding the underlying convictions that Mr. Campbell attacks is set forth in United States v. Campbell, 534 F.3d 599 (7th Cir. 2008).

In 2004, the government obtained court authorization to intercept telephone conversations between Raul Montenegro and Mr. Campbell and between Montenegro and Miguel Diaz. On July 7, 2004, Montenegro called Mr. Campbell to arrange for the sale of one kilogram of cocaine, using coded language to refer to the drugs and the terms and conditions of the sale. On July 8, 2004, after speaking with Diaz, who was to supply the cocaine, Montenegro confirmed the details of the transaction with Mr. Campbell and arranged to meet him at Mr. Campbell's residence.

Later that day, Montenegro called Mr. Campbell to inform him that he would soon be at his residence. Mr. Campbell told Montenegro that he would be home soon, and that he would arrange for someone to let Montenegro into his home. The deal, however, unraveled at that point. When Mr. Campbell arrived at his residence, he noticed an unfamiliar vehicle in a nearby parking lot and became suspicious that Montenegro had been followed. Mr. Campbell went inside his residence where Montenegro was playing cards with Mr. Campbell's son. Rather than discuss the transaction, Mr. Campbell immediately pointed out the unfamiliar vehicle to Montenegro, who could not identify it.

Montenegro's response did not alleviate Mr. Campbell's concern, and Mr. Campbell left his residence with Montenegro to get a closer look at the vehicle. Montenegro continued to deny having knowledge of the unfamiliar vehicle. Despite Montenegro's denials, Mr. Campbell was not satisfied that Montenegro had not been followed. Consequently, Mr. Campbell left the area rather than return to his residence to complete the transaction.

After Mr. Campbell left, a Drug Enforcement Agency ("DEA") Agent followed him. Upon realizing he was being followed, Mr. Campbell called Montenegro and instructed him to leave. Mr. Campbell and Montenegro did not discuss the cocaine that Mr. Campbell had intended to purchase.

The next day, Montenegro called Diaz several times to discuss the aborted drug transaction. When Diaz inquired about the cocaine, Montenegro could not confirm the sale because he had not spoken to Mr. Campbell since parting from him. Eventually, Montenegro called Mr. Campbell and asked for a definitive answer concerning his intent to purchase the cocaine. Mr. Campbell called off the transaction.

The next day a DEA agent who had been conducting surveillance at Mr. Campbell's residence discovered a cereal box wrapped in clear plastic in a dumpster near Mr. Campbell's residence. Inside the cereal box was approximately one kilogram of cocaine. Several days later, government agents searched Mr. Campbell's mother's residence and recovered a firearm.

Mr. Campbell was arrested and charged with one count of possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), four counts of using a telephone in the commission of a felony drug offense, in violation of 21 U.S.C. § 843(b), and one count of being a felon in possession of a firearm, in violation of 21 U.S.C. § 922(g)(1).

Prior to trial, Mr. Campbell's trial counsel made several motions in limine. Trial counsel successfully moved to exclude wiretap evidence of the conversations between Mr. Campbell and Montenegro made after Mr. Campbell declined to continue with the transaction. In addition, trial counsel successfully moved to exclude evidence of the firearm recovered from Mr. Campbell's mother's residence.

During Mr. Campbell's trial, the government relied on the recordings of conversations between Montenegro and Mr. Campbell. In addition, government agents testified about their surveillance of Mr. Campbell's residence. Other government agents provided explanations of the coded language used by Montenegro and Mr. Campbell to arrange the sale. Finally, Montenegro, who had accepted a plea agreement, testified about the events leading to Mr. Campbell's arrest. Montenegro testified that when he first arrived at Mr. Campbell's residence he left the cocaine on a couch or table. He further testified that he never gave Mr. Campbell the cocaine, but that he left it at the residence.*fn1 Montenegro made clear that he and Mr. Campbell never discussed the cocaine purchase while at Mr. Campbell's residence because of their suspicion that Montenegro might have been followed. Finally, a government agent testified about the practice of "fronting" quantities drugs to distributors and receiving payment after the drugs have been resold.

Trial counsel cross-examined only two of the six government witnesses, Montenegro and an agent who participated in the surveillance of Mr. Campbell's residence. Trial counsel emphasized Montenegro's admission that he had never directly given the cocaine to Mr. Campbell and his admission that he and Mr. Campbell were together only briefly at Mr. Campbell's residence.

At the conclusion of the government's evidence, Mr. Campbell's trial counsel moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29. The court reserved ruling on that motion. Mr. Campbell's trial counsel then rested. During closing, Mr. Campbell's trial counsel argued that Mr. Campbell never intended to possess or distribute the cocaine. First, Mr. Campbell's trial counsel drew the jury's attention to Montenegro's testimony that he had never given the cocaine directly to Mr. Campbell and that he had left the cocaine on a table or couch at Mr. Campbell's residence. He further drew the jury's attention to the government agent's testimony that Mr. Campbell's fingerprints were not found on the package containing the cocaine. Trial counsel argued that these facts demonstrated that Mr. Campbell never possessed the cocaine. Next, trial counsel pointed out that during the entirety of Mr. Campbell's interaction with Montenegro within his residence, Mr. Campbell distanced himself from the transaction. Trial counsel also pointed out that when Montenegro called Mr. Campbell the next ...


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