                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

                        v.
                                                    Case No. 09-cr-00281-11 (CRC)
 ELOHIM BEY CROSS,

                        Defendant.

                                  MEMORANDUM OPINION

       In 2011, a jury convicted Defendant Elohim Bey Cross of conspiracy to distribute and

possess with the intent to distribute over one kilogram of heroin, and he was sentenced to twenty

years in prison. To obtain the conviction, the prosecution had to prove, among other things, that

Cross reasonably foresaw that the conspiracy he joined distributed, or intended to distribute,

more than one kilogram of heroin. The government met that burden mainly with the testimony

of Cross’s supplier, who told the jury that he sold Cross 1.2 to 1.3 kilograms for further

distribution. In this petition for post-conviction relief under 28 U.S.C. § 2255, Cross contends

that his trial counsel was ineffective for failing to use evidence in her possession that would have

contradicted the supplier’s testimony on this crucial point. For the reasons that follow, the Court

agrees that Cross’s counsel was deficient in this one respect, and that the error was prejudicial to

the jury’s drug-quantity finding. It will therefore grant Cross’s petition and vacate his sentence.

However, as discussed further below, the Court will direct the parties to submit supplemental

briefing on the effect of the Court’s ruling on Cross’s conviction.
   I.         Background

              In 2009, federal investigators tapped the telephones of Mouloukou Toure, a suspected

heroin distributor in Washington, D.C. United States v. Cross, 766 F.3d 1, 2 (D.C. Cir. 2013).1

Through those wiretaps, they learned that Toure was importing heroin from a Toronto-based

supplier operating under the alias “Big Brother,” and that Toure was selling that heroin to other,

lower-level distributors, including Cross. Id. In numerous wiretapped conversations with Toure,

Cross placed narcotics orders in coded language, discussed purchasing prepaid cell phones for

the purpose of evading police, and learned about a police raid on Toure’s stash house. Id.; see

also Gov’t’s Opp’n Def.’s Mot. Vacate (“Gov’t’s Opp’n”), Ex. B (wiretap transcripts). The

conversations also led the FBI to a Comfort Inn in Maryland, where an agent observed Toure

enter and then exit a particular hotel room. Cross, 766 F.3d at 2. Later, an agent obtained

records from the hotel’s manager, showing that Cross had stayed there for weeks at a time

through 2009 and had paid in cash. Id. at 2–3. When Cross learned from a hotel clerk that law

enforcement agents had gotten the records, he called Toure in alarm, worried that there were still

“things” in his hotel room but hopeful that they would be “hard to find”; Toure told him that he

should have been moving locations more frequently, and that he had to “be careful.” Gov’t’s

Opp’n, Ex. B, at EC_000033. The FBI searched the hotel room, though, and found bags of

heroin and cocaine base in the drawer of a nightstand, plus drug paraphernalia such as surgical

face masks, a digital scale, and disposable gloves. Cross, 766 F.3d at 3. After the search, Cross



                                                            
              1
         Much of the factual and procedural background relevant to this petition was recounted
by the D.C. Circuit on direct appeal. See Cross, 766 F.3d at 2–4. A condensed version appears
here, supplemented as necessary with facts relevant to Cross’s present arguments.




                                                               2
again called Toure in a panic, looking for guidance. See Gov’t’s Opp’n, Ex. B, at EC_000037–

38.

              In November 2009, a grand jury charged Cross with a single count of conspiring to

distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(i) & 846, which carries a mandatory minimum of ten years’

incarceration.2 In March 2010, the government gave notice pursuant to 21 U.S.C. § 851 that, if

convicted, Cross was subject to an enhanced mandatory minimum sentence of twenty years due

to a 2007 Maryland conviction for cocaine possession, which carried a maximum punishment of

four years’ incarceration and therefore qualified as a “felony drug offense” under 21 U.S.C.

§ 841(b)(1)(i). See Notice of Prior Felony Convictions, ECF No. 81.3 In June 2010, the attorney

who would go on to represent Cross during the remaining pretrial, trial, and sentencing phases of

the case, first entered her appearance. See Notice of Attorney Appearance, ECF No. 138.




                                                            
              2
       The same indictment also charged Cross with two counts of unlawfully using a
communication facility, in violation of 21 U.S.C. § 843(b), but those were later dismissed on the
government’s motion. See ECF No. 130.
              3
          In August 2013, former Attorney General Eric Holder issued a memorandum instructing
federal prosecutors to file such recidivist enhancements under 21 U.S.C. § 851 only where a
“defendant is involved in conduct that makes the case appropriate for severe sanctions.”
Memorandum Regarding “Department Policy on Charging Mandatory Minimum Sentences and
Recidivist Enhancements in Certain Drug Cases” (Aug. 12, 2013), available at
https://www.justice.gov/sites/default/files/ag/legacy/2014/04/11/ag-memo-drug-guidance.pdf.
The memo further directed prosecutors, in determining whether “severe sanctions” are
warranted, to consider factors such as whether “the defendant was an organizer, leader, manager
or supervisor of others within a criminal organization,” whether the defendant’s offense or prior
history involved violent conduct, and whether “the filing would create a gross sentencing
disparity with equally or more culpable co-defendants.” Id. at 3. Given Cross’s role in the
charged conspiracy, it is extremely unlikely that the government would have sought a ten-year
enhancement under this policy.


                                                               3
              Cross went to trial in July 2011.4 In addition to introducing the wiretap and physical

evidence detailed above, the government elicited testimony from Toure, who had pled guilty.

His testimony included the statements that he had imported a total of 4.8 kilograms of heroin

from Big Brother, and that he had distributed a total of 1.2 to 1.3 kilograms of that amount to

Cross. See Trial Tr. 18–19, 33, 65 (July 19, 2011 p.m.); Trial Tr. 36, 48, 50 (July 21, 2011 a.m.).

Toure’s testimony was the only evidence at trial regarding these total drug amounts. In defense,

Cross’s counsel pressed the theory that he had merely purchased drugs from Toure as part of a

simple buyer/seller relationship, and that even if that relationship constituted a conspiracy, it was

a much more limited conspiracy than the broader, international one with which Cross was

charged. Accordingly, counsel asked the trial court to instruct the jury not to convict Cross if it

found that he had engaged in a separate conspiracy with Toure alone. See Trial Tr. 27 (July 20,

2011 p.m.).

              The court rejected that request, finding that there was not sufficient evidence for a

“multiple conspiracies” instruction. See id. at 24–25. The court did, however, instruct the jury

that “a simple buyer/seller relationship alone does not make out a conspiracy.” Id. at 51. During

closing arguments, the prosecution nevertheless argued that a two-man conspiracy—between

Cross and Toure—was sufficient for conviction. See Trial Tr. 47, 52 (July 21, 2011 a.m.). It

stressed that Toure’s testimony regarding the 1.2 or 1.3 kilograms of heroin he distributed to

Cross was, standing alone, sufficient to establish the drug quantity element of the charge. See

Trial Tr. 23:7–25 (July 21, 2011 a.m.). Defense counsel, too, in an effort to discredit the



                                                            
              4
        Retired Chief Judge Roberts presided over the trial. One other alleged co-conspirator,
Antonio Valdez, was tried in June 2011. The others either accepted guilty pleas or were
dismissed from the case.


                                                               4
testimony, nevertheless highlighted it: She called the 1.2/1.3-kilogram figure a “magic number”

that Toure “needed to tell” the jury. Id. at 36:4–10.

       Although the jury was instructed on two lesser-included offenses with lower drug-

quantity elements, see Trial Tr. 54–56 (July 20, 2011 p.m.), it voted to convict on the one-

kilogram heroin conspiracy charge. See Verdict Form, ECF No. 327. At sentencing, defense

counsel argued that permitting Cross’s 2007 Maryland conviction for simple cocaine possession

to trigger a ten-year enhancement (for a mandatory minimum of twenty years) under 21 U.S.C.

§ 841 would violate the Eighth Amendment’s cruel-and-unusual punishment bar—in part

because, under Maryland law, the offense is considered a misdemeanor. See Def.’s Mem. in Aid

of Sentencing 5–7, ECF No. 345; Md. Code Ann., Crim. Law, § 5-601(c)(1). The court rejected

that argument, noting that “it’s undisputed that [the Maryland conviction] carries a maximum

penalty of four years,” and that “a qualifying felony drug offense is one that’s punishable in

excess of one year, regardless of how it’s classified by name.” Sentencing Tr. 17 (Oct. 21,

2011). At the sentencing hearing, defense counsel also argued that the Presentence Investigation

Report should not have attributed more than one kilogram of heroin to Cross. Id. at 5–6. The

Court rejected that argument as well, reasoning that the jury had found that drug amount as “an

essential element of the charged offense.” Id. at 15–16. The Court then sentenced Cross to 240

months’ imprisonment.

       Represented by new counsel, Cross brought a direct appeal of his conviction on two

grounds: that it was error for the trial court not to give the multiple-conspiracies instruction he

requested, and that the prosecutor’s closing argument that a two-man conspiracy was sufficient

to convict was improper. See Cross, 766 F.3d at 2. The D.C. Circuit affirmed Cross’s

conviction on the ground that any errors on the part of the court or the prosecutor were




                                                  5
harmless—primarily because there was sufficient evidence for the jury to convict Cross of the

larger, charged conspiracy. Id. at 4–8.

              In January 2015, Cross filed this pro se motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, identifying fourteen grounds for relief. Def.’s Mot.

Vacate, ECF No. 397 (asserting thirteen grounds for relief); Def.’s Mot. Expand Record, ECF

No. 412 (asserting a fourteenth ground for relief). After the Court appointed him counsel, Cross

withdrew nine of those claims. See Notice Regarding Withdrawal of Claims, ECF No. 440;

Second Notice Regarding Withdrawal of Claims, ECF No. 444.5 His remaining five claims

encompass three main grounds for relief. Cross argues: (1) that his trial counsel was ineffective

for failing to use specific evidence to challenge the drug quantity attributable to him (Grounds III

& V); (2) that his trial and appellate counsel were ineffective for failing to challenge, under

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the ten-year enhancement of his sentence

(Grounds I & IX); and (3) that the prosecution engaged in misconduct by failing to correct

Toure’s testimony about drug amounts (Ground IV).6

              After the parties submitted written briefing on the motion, the Court held an evidentiary

hearing and oral argument, focused on the claim that trial counsel was ineffective for failing to

utilize material evidence suggesting that the quantity of heroin attributable to Cross was under

one kilogram. During the evidentiary portion of the hearing, Cross’s trial counsel testified at

                                                            
              5
         In separately bringing his fourteenth claim, Cross moved to expand the record to
include additional attachments and exhibits. See Def.’s Mot. Expand Record, ECF No. 412.
With the assistance of counsel, he later withdrew that claim, see Second Notice Regarding
Withdrawal of Claims, ECF No. 444, so the Court will deny as moot Cross’s motion to expand
the record.
              6
        Grounds III and V assert the same erroneous failure on the part of defense counsel to
make use of exculpatory evidence at trial. Ground III alleges prejudice to Cross’s conviction;
Ground V alleges prejudice to Cross’s sentence.


                                                               6
length regarding her recollection of the relevant trial proceedings and the defense strategy she

pursued. She answered questions posed by the Government, Cross’s appointed post-conviction

counsel, and the Court.

 II.   Legal Standard

       A defendant may move the sentencing court to vacate his sentence if he believes that it

“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). It is the

defendant’s burden to show by a preponderance of the evidence that he is entitled to relief. See

United States v. Soomai, 23 F. Supp. 3d 9, 11 (D.D.C. 2014) (citing United States v. Pollard, 602

F. Supp. 2d 165, 168 (D.D.C. 2009)); see also United States v. Simpson, 475 F.2d 934, 935

(D.C. Cir. 1973). In making that showing, the defendant is procedurally barred from raising any

available claim that he failed to raise on direct appeal, unless he can “demonstrate either ‘cause’

and actual ‘prejudice,’ or that he is ‘actually innocent.’” United States v. Pettigrew, 346 F.3d

1139, 1144 (D.C. Cir. 2003) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). In an

exception to this rule, however, a defendant may raise an ineffective assistance of counsel claim

“whether or not [he] could have raised the claim on direct appeal.” United States v. Rivera-

Niebla, 37 F. Supp. 3d 374, 376 (D.D.C. 2014) (citing Massaro v. United States, 538 U.S. 500,

504 (2003)).

 III. Analysis

       A. Ineffective Assistance Claim Based on Drug-Quantity Evidence

       To succeed on a claim of ineffective assistance of counsel, a defendant must show both

that (1) “counsel’s performance was deficient,” such that it “fell below an objective standard of




                                                 7
reasonableness,” and that (2) “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687–88 (1984). Establishing prejudice requires a defendant to

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694.

              Cross argues that his trial counsel was ineffective for failing to use evidence in her

possession to undermine Toure’s testimony regarding the amount of drugs he sold to Cross.

Here is the argument: Toure testified that he imported 4,800 grams of heroin from Big Brother;

that about 1,500 grams of that amount was distributed to one co-conspirator, Anthony Merritt;

and that roughly another 1,300 grams was collectively distributed to Antonio Valdez and another

co-conspirator (not Cross). Trial Tr. 65–67 (July 19, 2011 p.m.). Toure also testified that he

distributed “[a]pproximately 1200 to 1300 gram[s]” of heroin to Cross. Id. at 33:25. But Cross

argues that a chart created by law enforcement detailing the quantities of heroin that the FBI

recovered from the alleged co-conspirators, which was produced to the defense in discovery,

makes Toure’s numbers impossible to reconcile. The document, hereinafter referred to as the

“drug-quantity chart,” is a four-page spreadsheet titled “Operation Prizefighter: Drug Analysis

Summary Chart.” Def.’s Reply Supp. Mot. Vacate (“Def.’s Reply”), Attach. at 28–32. It

provides the date, location, description, type of controlled substance, and weight in grams for

various drug seizures associated with the charged conspiracy. As relevant here, the chart

indicates that 623.4 grams of heroin were obtained in “[c]ontrolled buy[s]” from Toure,7 and that

944.3 grams were seized from Toure’s stash house. It also indicates that 1,984.4 grams were



                                                            
              7
        Cross’s figure (633.3 grams) is slightly higher, presumably because it includes 9.9
grams of heroin recovered in a controlled buy from another co-conspirator, Jesus Nunez.
Because it is not clear whether that amount necessarily came from the 4.8 kilograms Toure
imported, the Court uses the more conservative 623.4-gram number.


                                                               8
found in Merritt’s stash house, significantly more than the 1,500 grams Toure estimated he

distributed to Merritt. Id.

              Hypothetically, the amounts recovered from Merritt’s stash house could have been from a

source other than Toure. However, assuming the truth of Toure’s testimony, the amounts seized

directly from Toure—i.e., the amounts purchased through controlled buys (623.4 grams) and

found in Toure’s stash house (944.3 grams)—must have come from the 4.8 kilograms imported

from Big Brother. This follows because, according to Toure, Big Brother was his first and only

heroin source. See Trial Tr. 63:17–25, 65:1–3 (July 19, 2011 p.m.). And when those amounts

recovered from Toure are added to the 1,300 grams supposedly distributed to Valdez and the

1,500 grams supposedly distributed to Merritt, the total comes to just under 4,400 grams. That

would leave just over 400 grams of heroin for Cross—not the “[a]pproximately 1200 to 1300

gram[s]” that Toure claims to have distributed to him. Trial Tr. 33 (July 19, 2011 p.m.).

              The following table summarizes the drug amounts discussed above. It makes clear

why—when the amounts distributed or recovered by law enforcement are deducted from the 4.8-

kilograms Toure claims to have imported—it is not possible that Toure distributed more than one

kilogram of heroin to Cross, as he claimed to have done.8




                                                            
              8
         Because it is at least possible that the amounts recorded in the chart as being recovered
from Merritt (1,984.456 grams) did not come from Toure, that amount has—conservatively—not
been included in the chart. If that amount did come from Toure, then there would be no
remaining heroin for distribution to Cross.


                                                               9
  Table Summarizing Key Drug Amounts from Drug-Quantity Chart and Toure’s Testimony

 Description                                     Evidentiary Source         Heroin Amount

 Total Amount Imported                           Toure’s Testimony          4,800 grams

 Distributed to Valdez                           Toure’s Testimony          1,300 grams
 Distributed to Merritt                          Toure’s Testimony          1,500 grams
 Recovered through Controlled Buys from          Drug-Quantity Chart        623.4 grams
 Toure
 Recovered from Toure’s Stash House              Drug-Quantity Chart        944.3 grams
 Recovered from Cross                            Drug-Quantity Chart        22.029 grams

 Possible Amount Remaining for                   Toure’s Testimony and      432.3 grams
 Distribution to Cross                           Drug-Quantity Chart


 Amount Toure Claimed to Have Distributed Toure’s Testimony                 1,200 to 1,300 grams
 to Cross


       Understandably, Cross contends that the drug-quantity chart was highly material, and

exculpatory as to the drug quantity attributed to him. Moreover, he has submitted documentation

showing that his trial counsel was aware of the information reflected in the chart prior to and

during trial. In particular, Cross has submitted a document in his own handwriting, which he

supposedly presented to his counsel before trial, calculating imported and recovered drug

amounts based on Toure’s testimony during his co-conspirator Valdez’s trial, and showing that

the two columns do not add up. Def.’s Reply, Attach. at 33–34; see also id. at 17–20 (relevant

excerpts from Valdez trial). Cross has also attached several documents in his trial counsel’s

handwriting, reflecting her attempts to reconcile the drug-amount figures. Id. at 21–26. Because

his counsel’s failure “to introduce [this] highly exculpatory evidence impeaching the testimony

of the government’s star witness, on an issue going directly to guilt and punishment, was




                                                10
objectively unreasonable and highly prejudicial,” Cross argues, he was unconstitutionally

deprived of effective assistance of counsel. Def.’s Reply 3.

           1. Whether Trial Counsel’s Performance Was Deficient

       The Court begins by evaluating Strickland’s deficiency prong, which turns on whether

counsel’s performance “fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. A lawyer’s performance was not objectively reasonable if it was “not supported by

a reasonable strategy.” Massaro v. United States, 538 U.S. 500, 505 (2003). Of course, there is

a strong presumption that counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S. Ct. 10, 12

(2013) (quoting Strickland, 466 U.S. at 690). But a defendant may overcome that presumption

by demonstrating either that the relevant decision was not justified by counsel’s actual trial

strategy, or that “no sound strategy posited by the [opposing party, here the government] could

have supported the conduct.” United States v. Abney, 812 F.3d 1079, 1087 (D.C. Cir. 2016)

(quoting Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005)) (alterations in original).

       When evaluating counsel’s performance, a balance must be struck between surveying the

forest and examining the trees. On the one hand, a reviewing court must “judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct” and “in light of all the circumstances.” Strickland, 466 U.S. at

690. On the other hand, performance that is by-and-large competent cannot cure a singular,

constitutionally defective error. See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[T]he right to

effective assistance of counsel . . . may in a particular case be violated by even an isolated error

of counsel if that error is sufficiently egregious and prejudicial.”); Henry v. Poole, 409 F.3d 48,

72 (2d Cir. 2005) (court may not rely on “counsel’s competency in all other respects” in




                                                 11
evaluating effectiveness). In particular, when a lawyer “fails . . . to introduce into evidence[]

records that demonstrate [her] client’s factual innocence, or that raise sufficient doubt as to that

question to undermine confidence in the verdict, [she] renders deficient performance.” Hart v.

Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999).

       This is such a case. Cross has shown that his trial counsel, though competent in all other

respects, fundamentally erred—in a manner that neither her own actual strategy nor any “sound

strategy” can adequately explain. Abney, 812 F.3d at 1087. It is now clear that counsel

possessed the drug-quantity chart and understood the information it contained—and yet,

inexplicably, opted not to introduce it as evidence; use it to impeach Toure, the government’s

star witness; or to employ it in any way to contradict the government’s case.

       Although counsel did not specifically recall the document at the evidentiary hearing, she

confirmed that her handwriting was on it. Ev. Hr’g Tr. 22:12–21. When questioned about

whether she was aware of the discrepancy between the drug amounts Toure testified to and the

amounts reflected in the document, counsel replied that she “assume[d]” she did know “because

[she] had written down all the numbers [and had determined they did not add up].” Id. at 25:12–

17; see also id. at 30:5–11 (“[Q:] You do not recall whether you, during trial, realized that the

amounts that Mr. Toure was testifying to may be contradicted by the amounts recovered by law

enforcement? [A:] I don’t recall—I assume that I did because it’s annotated in my trial notes, but

at this time I don’t know what I knew.”). Later, trial counsel rejected the notion that not using

the document was part of her trial strategy, see id. at 31:18–20, or that employing it might have

somehow been harmful to the defense, see id. at 37:15–18. On the contrary, she repeatedly

affirmed that the information contained in the document would have advanced her objectives at

trial. She conceded that the document would have been “more powerful” and “more useful” for




                                                 12
impeaching Toure than the evidence she employed. Id. at 32:13–19. And she confirmed that

one of her main “trial themes” was that “Cross had a very minor role, if any, in the conspiracy.”

Id. at 36:13–16; see also Trial Tr. 25, 26, 29, 49 (July 19, 2011 a.m.); Trial Tr. 42, 43 (July 19,

2011 p.m.) (emphasizing the international nature of the conspiracy in order to distance it from

Cross). That theme would have been underscored by the drug-quantity chart, showing

disproportionately low amounts recovered directly from Cross. (The chart indicates that only

about 22 grams were seized directly from Cross.) Finally, she testified that she had pursued a

line of questioning during her cross-examination of Toure aimed at revealing the very

discrepancies that the document—if produced—would have made plain. Ev. Hr’g Tr. 35:23–

36:6 (“[Q:] What were you trying to do in that cross-examination when you—when you had

[Toure] state that he had imported 4800 grams, and then you asked him a series of questions

about whom he had distributed those grams to? [A:] I don’t remember. I assume to show

through those numbers that there was a difference in what he said and what was possible. And if

I didn’t argue it effectively, I’m sorry[.]”).9

              In an apparent attempt to explain her choice not to introduce the chart, Cross’s counsel

remarked at the hearing:

              My experience has been—and it’s unfortunate—that if your defense is, yes, my
              client’s a drug dealer but he’s not the drug dealer they’re talking about, that all the
              jury hears is “my client’s a drug dealer,” and then they hear the defendant talking
              on the phone, and they don’t much care after that whether the conspiracy is a
              separate conspiracy or it’s buyer/seller. So those are very limited defenses. And
              they don’t much care whether it was 999 grams or a thousand grams. And I think
              it’s unfortunate, but that’s been what happens in most conspiracy trials.

Ev. Hr’g Tr. 26:24–27:9. This rationale—that jurors do not care about the size or type of a drug



                                                            
              9
        The Court appreciates trial counsel’s candor at the hearing under difficult
circumstances.


                                                               13
conspiracy once they are convinced the defendant is a drug dealer—cannot reasonably explain

trial counsel’s decision not to utilize the drug-quantity chart, for at least two reasons. First, the

rationale conflicts with the strategy that Cross’s counsel actually employed: Her main trial

strategy was devoted to establishing either a separate conspiracy or a buyer/seller relationship

between Cross and Toure, on the assumption that Cross was a drug dealer. Id. at 36:13–16. And

she pursued both questioning, see Trial Tr. 65–67 (July 19, 2011 p.m.); Ev. Hr’g Tr. 35:23–36:6,

and argument, see Trial Tr. 36:4–10 (July 21, 2011 a.m.), relevant to the drug-quantity element.

Second, the one-kilogram quantity was one of three essential elements of Toure’s conviction,

and arguably the most contested of the three. No “sound strategy,” Abney, 812 F.3d at 1087,

could support an attorney’s decision to ignore evidence raising material doubt as to an essential

element of the crime of which her client is accused. See Hart, 174 F.3d at 1070.

       Cross, then, has shown that his trial counsel’s decision to forego using the drug-quantity

chart was not motivated by any actual, sound strategy, at least not any that she is able to recall.

What is more, Cross has shown that no “sound strategy posited by the [opposing party, here the

government] could have supported the conduct.” Abney, 812 F.3d at 1087. In its opposition, the

Government contends that Cross’s claim “is based on the mistaken legal premise that the amount

of heroin that Toure distributed to other members of the conspiracy was not attributable to

defendant.” Gov’t’s Opp’n 20. Accordingly, says the Government, “even if [trial counsel] had

elicited from Toure that he sold [and] stored [the various drug amounts reflected in the

document], these amounts . . . nonetheless would have been attributed to the defendant[.]” Id. at

21. Trial counsel’s decision not to make use of the document, then, can be justified as an attempt

to avoid “emphasiz[ing] the scope of the conspiracy” with “mathematical certainty.” Id. at 22.

       The Government’s argument rests on two main flaws. The first is specific to this case.




                                                  14
At trial, the total amount of heroin that Toure imported from Big Brother (4,800 grams) was not

disputed. So, even presuming that trial counsel expected the jury to hold Cross accountable for

that full amount, there would have been no strategic downside to employing the drug-quantity

chart. Presenting that evidence or using it to cross-examine Toure would not have altered the

jury’s view of the total heroin amount Toure imported, but rather would have illustrated how that

amount had been distributed. In particular, it would have shown how a disproportionately tiny

amount had been recovered directly from Cross, and would thus have reinforced trial counsel’s

strategy of distancing Cross from the larger conspiracy. See Ev. Hr’g Tr. 36:13–16 (“[Q:] One

of your trial themes was that Mr. Cross was just an apostrophe in the conspiracy with Big

Brother? [A:] That’s right; that he had a very minor role, if any, in the conspiracy.”).

       The second error in the Government’s argument is legal: It is simply not the case that the

jury, finding that Cross joined a conspiracy, was bound to attribute to Cross all drug amounts

associated with Toure. It is a “well-settled principle of conspiracy law that someone who jointly

undertakes a criminal activity with others is accountable for their reasonably foreseeable

conduct”—but only that conduct which is “in furtherance of the joint undertaking.” United

States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (citing Pinkerton v. United States, 328 U.S. 640

(1946)). For that reason, the “extent of a defendant’s vicarious liability under conspiracy law is

always determined by the scope of his agreement with his co-conspirators,” and when they are

“conducting drug transactions of their own on the side . . . [the defendant] is not automatically

accountable for all of those side deals.” Saro, 24 F.3d at 288 (emphasis added); see also United

States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995) (“[P]roper attribution [of drug amounts]

requires analysis of the scope of the conspiracy that the defendant has joined—the scope of his

conspiratorial agreement.”).




                                                 15
       And, unlike the total amount of heroin imported by Toure, the scope of the conspiracy

Cross joined was in dispute throughout trial. As previously discussed, defense counsel placed

the issue at the heart of her trial strategy. See Ev. Hr’g Tr. 36:13–16. Indeed, her ultimate goal

was to convince the jury that Cross had a mere buyer/seller relationship with Toure—or, at most,

had joined a limited, two-man conspiracy with him. See id. at 20:23–21:6 (“I was making the

argument that Mr. Cross was not in the conspiracy that was charged, and that all of the other

people in the conspiracy were West African, and that the drugs came from Nigeria up to Canada,

and all of the distributors down to D.C. and including Toure were West Africans in order to

distinguish Mr. Cross from the other members of the conspiracy and show that he had either a

separate conspiracy or a buyer/seller relationship and was not a member of the [larger]

conspiracy.”). And in closing, the prosecution stressed to the jury that it could convict if it found

that Cross joined a two-man conspiracy with Toure. See Trial Tr. 47 (July 21, 2011 a.m.) (“[F]or

the purpose of finding [Mr. Cross] guilty of the crime charged, all you need is two, Mr. Cross

plus one other person, Mr. Toure.”); id. (“[I]n this case we can prove simply Mr. Cross got into

an agreement with one other person—that’s two—in this case . . . Toure.”). In other words,

because the scope of the conspiracy was a central dispute at trial, the amount of drugs

attributable to Cross was also up in the air. Defense counsel’s decision to forego using the drug-

quantity chart, therefore, cannot be excused on the rationale that all amounts reflected in the

document would have been attributed to Cross anyway.

       Simply put, neither Cross’s trial counsel nor the Government has posited any “sound

strategy [that] could have supported” the decision not to utilize the drug-quantity chart. Abney,

812 F.3d at 1087. Cross has thus shown that his trial counsel’s performance was deficient in this

one material respect.




                                                 16
           2. Whether Trial Counsel’s Performance Caused Prejudice as to Drug Quantity

       The Court now evaluates prejudice under Strickland. Here, Cross’s burden is to “show

that there is a reasonable probability that, but for counsel’s unprofessional error[], the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. Cross need not

demonstrate that “counsel’s deficient conduct more likely than not altered the outcome in the

case,” but he must do more than establish that “the errors had some conceivable effect.” Id. at

693. Simply stated, “[a] reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. “In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at

695.

       There is little doubt that Cross was prejudiced by his trial counsel’s failure to make use of

the drug-quantity chart in order to discredit Toure, the prosecution’s key witness. The one-

kilogram drug amount was an essential element of Cross’s conviction. Closing arguments from

counsel on both sides emphasized to the jury that the 1.2 to 1.3 kilograms of heroin Toure

claimed to have distributed to Cross—a claim supported only by Toure’s own testimony—was

sufficient by itself to satisfy that element. See Trial Tr. 23:7–25 (July 21, 2011 a.m.)

(Prosecution’s Closing Argument) (“[L]et’s just talk about the amounts. Now, Mr. Toure

testified directly. He told you, Look, I’m not sure I remember exactly, but I—I personally sold

to Mr. Cross between 1.2 and 1.3 [kilo]grams of heroin, somewhere around that number . . . .

[E]ven if you put the 4.8 kilos [imported by Toure] aside and just look at the 1.2, you have more

than enough evidence to find him guilty as charged.”); id. at 36:4–10 (Defense’s Closing

Argument) (“[Mr. Toure] didn’t come up with an elaborate scheme of what he did or not, but he

told you a magic number. He told you a magic number, that he sold 1.2 kilos to Mr. Cross, or




                                                  17
1.3. And why that is important is that the single charge is possession with intent to distribute or

distribution of 1 kilo or more, so he needed to tell you that the amount that he personally gave to

Mr. Cross was 1 kilo or more.”). If deployed effectively, the drug-quantity chart would have at

least cast considerable doubt on this key testimony. There is thus a “reasonable probability” that

the jury’s verdict as to the essential drug amount element “would have been different” if the

chart had been put into play. Strickland, 466 U.S. at 694.

       At the hearing, the Government posited “three separate ways that the jury could have”

attributed one kilogram or more of heroin to Cross, even had the document been introduced. Ev.

Hr’g Tr. 57:10–11. In particular, the Government posited that the jury may have: (1) relied on a

reference Toure made to a potential “side deal” with Cross to purchase one kilogram of heroin

from Big Brother; (2) tied Cross to the broader conspiracy and attributed to him all 4.8 imported

kilograms; or (3) attributed to Cross the drug amounts recorded in the document that were seized

directly from Toure—i.e., the amount obtained through controlled buys from Toure (623.4

grams) plus the amount recovered from Toure’s stash house (944.3 grams). Id. at 57:11–16,

60:3–14. The Government did not specifically address the issue of prejudice with respect to drug

quantity in its written submissions, nor did it explain how any of the above alternatives were

more than “possible,” which is not the relevant standard. After all, the mere possibility of one

outcome does not foreclose the “reasonable probability” of another. For these reasons, it is

debatable whether the Government has properly presented to the Court any arguments regarding

prejudice as to the drug quantity element. Regardless, for the sake of thoroughness, the Court

will evaluate each proposed alternative, considering whether individually or taken together they

foreclose the “reasonable probability” that the jury, in light of the drug-quantity chart, would




                                                 18
have attributed less than one kilogram to Cross.10

                             a. Supposed One-Kilogram Side Deal Between Cross and Toure

              First, the Court finds it highly unlikely that the jurors would have relied upon the

supposed one-kilogram side deal between Toure and Cross to reach the drug amount threshold,

particularly assuming the use of the drug-quantity chart. The only evidence of that alleged deal

came from Toure’s testimony that he and Cross “had talked about putting up some money

together and buy[ing] [a] kilo of heroin for the two of us.” Trial Tr. 25:2–3 (July 19, 2011 p.m.).

But Toure went on to clarify that the transaction had “never happened.” Id. at 25:22. Toure

claimed that Cross was alluding to this proposed deal in one of their wiretapped conversations,

see id. at 24:18–25:3, but the relevant wiretap reveals no details about the specific nature of that

previous discussion, let alone any details regarding drug amounts, see Gov’t Opp’n, Ex. B, at

EC_000016–18. In other words, the evidence regarding the inchoate deal was vague and

inconclusive. Plus, because that evidence was almost exclusively in the form of testimony from

Toure, its value would have been severely undermined had Toure been impeached with the drug-

quantity chart. The Court therefore finds it implausible that the jury would have reached the

one-kilogram quantity threshold by such a route.




                                                            
              10
           The Government might have proposed a fourth alternative but, for good reason, did
not. During its closing argument, the prosecution suggested to the jury that it could find the one-
kilogram element based on some of the wiretapped phone conversations between Cross and
Toure. Trial Tr. 23:25–26:1 (July 21, 2011 a.m.). Some of the conversations the prosecution
cited obliquely reference drug purchases, but only one can be understood to reference an
identifiable drug quantity (of 150 grams). See Gov’t’s Opp’n, Ex. B, at EC_000031 (“dollar
fifty cent ticket” presumably referring to 150 grams of heroin). If anything, this line of argument
reinforced the notion in the jury’s mind that the quantity of drugs properly attributable to the
conspiracy Cross joined was the quantity Cross agreed to purchase from Toure. However, it is
clear that the calls alone did not provide sufficient evidence to ground the one-kilogram element.


                                                               19
                             b. Finding of a Broader Conspiracy, Including All 4.8 Kilograms

              As a second alternative, the Government suggests that the jury—even with awareness of

the information in the drug-quantity chart—may have attributed to Cross the full amount of

heroin Toure imported from Big Brother (4.8 kilograms). That is possible, and was a permissible

finding as a matter of law, but in light of the evidence and counsel’s arguments to the jury, the

Court considers it more likely—and at least, reasonably probable—that the jury instead found a

limited, two-person conspiracy between Cross and Toure. As the Court has already discussed,

the prosecution argued to the jury that a two-man conspiracy was sufficient for conviction, see

Trial Tr. 47 (July 21, 2011 a.m.), and defense counsel employed a strategy aimed at convincing

the jury that Cross had joined, at most, a two-man conspiracy with Toure, see Ev. Hr’g Tr.

20:23–21:6; see also Trial Tr. 25, 26, 29, 49 (July 19, 2011 a.m.); Trial Tr. 42, 43 (July 19, 2011

p.m.) (emphasizing the international nature of the conspiracy in order to distance it from Cross).

Those arguments were consistent with the evidence: All wiretapped conversations introduced at

trial were between Toure and Cross, and there was no evidence of contact between Cross and

any other alleged co-conspirators. To be sure, there was limited evidence introduced that Cross

was aware of Toure’s other alleged co-conspirators, see Gov’t’s Opp’n, Ex. B, at EC_000001

(wiretap conversation with Cross in which Toure references his “connect,” supposedly Big

Brother), but the lion’s share of the evidence connected Cross to Toure, and no one else.11 For


                                                            
              11
           The D.C. Circuit concluded that there was sufficient evidence to convict Cross under a
broader “chain conspiracy” theory, which does not require evidence directly linking the
defendant to all members of the charged conspiracy. See Cross, 766 F.3d at 6. But the Circuit
never concluded that there was insufficient evidence for finding a two-person conspiracy.
Indeed, it assumed without deciding that the jury found exactly that. See id. at 5 (“[W]e are
assuming for purposes of argument that the district court erred in declining to give a multiple
conspiracies charge, [and] we will likewise assume that a variance involving multiple
conspiracies occurred.”). And the Circuit never made any findings about the likelihood of a two-


                                                               20
these reasons, the Court finds it reasonably probable that the jury found a two-man conspiracy

between Cross and Toure, and therefore reasonably probable that it would not have attributed the

full 4.8 kilograms to Cross.

                             c. Attributing Drug Amounts Seized Directly from Toure

              The Government’s final suggested alternative—that the jury may have attributed to Cross

drug amounts recorded in the drug-quantity chart that were reportedly seized directly from

Toure—is problematic for a host of reasons. For one, the chart is the only evidentiary source for

the amounts the Government references (623.4 grams in controlled buys from Toure and 944.3

grams from Toure’s stash house). Accordingly, the Government’s proposal requires considering

counterfactuals upon counterfactuals: It requires concluding that the jury was likely to have

found the required one-kilogram drug quantity on the basis of evidence that was not actually

introduced. This begs the question whether a court could ever be “confiden[t] in [an] outcome”

derived from hypothetically introduced evidence. Strickland, 466 U.S. at 694.

              However, even assuming that the chart had been used as evidence, and assuming that

hypothetical evidence can ever foreclose a finding of prejudice, the evidence does not do so here.

In short, the Court finds it likely that, had the jury considered the information contained in the

drug-quantity chart as evidence, it would not have ascribed the amounts in that document to

Cross—even those amounts that were recovered directly from Toure. As discussed previously,

the “proper attribution [of drug amounts] requires analysis of the scope of the conspiracy that the

defendant has joined—the scope of his conspiratorial agreement.” Childress, 58 F.3d at 722.

Due to the nature of the evidence introduced at trial, it is reasonably likely that the jury not only


                                                            
person conspiracy finding. Its holding therefore sheds little light on the issue at hand—i.e.,
whether a two-person conspiracy finding was reasonably probable.


                                                               21
found a two-man conspiracy between Cross and Toure, but that it defined the scope of their

agreement narrowly—i.e., to include the heroin Toure distributed to Cross, but to exclude

Toure’s other sales and distributions as “side deals,” Saro, 24 F.3d at 288. That follows because

the wiretapped conversations introduced at trial were not only exclusively between Toure and

Cross—they were about Toure distributing heroin to Cross. (For instance, never was there a

discussion about Cross assisting Toure with any of his own direct sales, or even being aware of

those direct sales.) Similarly, the testimony at trial indicated that the Comfort Inn room, where

the FBI recovered small amounts of heroin and drug paraphernalia, was used for only two main

purposes: Toure’s sale of heroin to Cross, and Cross’s repackaging of heroin for sale. Trial Tr.

26–28 (July 19, 2011 p.m.).12 For these reasons, there is at least a reasonable probability that,

viewing the drug-quantity chart, the jury would have located the drugs sold directly by Toure

beyond the scope of Cross’s agreement. There is a better argument that the jury would have

considered drugs merely possessed by Toure to be within the conspiracy’s scope; presumably,

there was a chance those drugs would be later distributed to Cross. But that contention, too, is

on shaky ground, considering the relative drug amounts that the document actually reveals: In

short, it directly ties large quantities to Toure (over 1,500 grams) and Merritt (nearly 2,000

grams), but less than 25 grams to Cross. Seeing those amounts, there is at least a reasonable

probability that the jury would have considered the amounts recovered from Toure’s stash house



                                                            
              12
           Toure’s testimony on this point was as follows: “[Q:] Other than Mr. Cross, did you
know anyone at that Comfort Inn? [A:] No, sir. [Q:] And when you go to the Comfort Inn, what
are you there to do? [A:] To deliver the heroin. [Q:] Was there ever a time that you went to the
Comfort Inn where you didn’t deliver heroin to Mr. Cross? [A:] No, not that I can think of. [Q:]
When you were inside Mr. Cross’s hotel room, what would you do with the heroin? [A:] Just
give it to him. Hand it to him.” Trial Tr. 26:16–27:2 (July 19, 2011 p.m.). Toure went on to
describe some of Cross’s drug paraphernalia, and testified that he once observed Cross bagging
heroin in the hotel room. Id. at 27–28.


                                                               22
as unintended for distribution to Cross.13 For all of the above reasons, the Government’s

contention that the jury would have attributed to Cross the chart’s drug amounts tied directly to

Toure does not foreclose a finding of prejudice as to drug quantity.

              To summarize, none of the Government’s proposed alternative jury findings, even when

considered together, are so likely that they make the contrary result less than reasonably

probable. The prosecution and the defense highlighted Toure’s drug quantity testimony to the

jury in closing, instructing it that its verdict could depend on its view of that evidence. It is

possible that the jurors disregarded the prosecution’s closing invitation to “put the 4.8 kilos aside

and just look at the 1.2,” Trial Tr. 23:23–24 (July 21, 2011 a.m.), but it is (at least) reasonably

probable that they did not, thereby resting their verdict on evidence that could and should have

been impeached. That probability is “sufficient to undermine confidence in the outcome,”

Strickland, 466 U.S. at 694, and to establish prejudice with respect to the drug-quantity element

of Cross’s conviction.

                      3. Whether Trial Counsel’s Performance Otherwise Caused Prejudice

              Aside from the drug-quantity element, there were two other essential elements of Cross’s

conviction: (1) that the charged conspiracy existed between two or more persons and (2) that

Cross “knowingly joined and participated in the conspiracy, and did so with the specific intent

that heroin be distributed or possessed with the intent to distribute it.” Trial Tr. 49:21–50:9 (July

20, 2011 p.m.). Cross contends that failing to use the drug-quantity chart prejudiced not only the

jury’s one-kilogram finding, but also “the jury’s determination of whether Mr. Cross was guilty



                                                            
              13
           Even if the jury attributed to Cross the amount possessed by Toure but not sold directly
by him, on the theory that it might be intended for distribution to Cross, that would still fail to
clear the one-kilogram quantity threshold.


                                                               23
of conspiracy at all.” Def.’s Reply 10. Cross points to a particular jury instruction, which was

given to aid the jury in distinguishing between a “conspiracy” and “a simple buyer/seller

relationship.” Trial Tr. 51 (July 20, 2011 p.m.). The court directed the jury, in making that

determination, to “consider all of the evidence, including the following [six] factors,” one of

which was “whether the transaction involved large quantities of heroin.” Id. In Cross’s view,

then, the jury surely considered Toure’s testimony regarding large drug amounts as evidence of

whether Cross entered into a conspiracy with Toure in the first place. See Def.’s Reply 10.

       That may be so. As recounted above, however, there was abundant evidence introduced

at trial that Cross entered into a conspiracy with Toure. The jury heard numerous wiretapped

telephone calls between the two men. In one, Toure confided to Cross that the police had raided

his stash house and arrested his friend, whom Toure now openly feared would “open his mouth.”

See Gov’t Opp’n, Ex. B, at EC_000002–06. In another wiretapped call, Toure and Cross

discussed purchasing prepaid cell phones to avoid police detection. Id. at EC_000017–18. After

the hotel clerk alerted Cross to an inquiry from law enforcement regarding his hotel room, Cross

phoned Toure to express his alarm and ask for advice: Among other things, Toure told him that

he should have been “switch[ing] spaces” and that he “got to be careful.” Id. at EC_000032_36.

Similarly, after Cross’s hotel room was raided, he called Toure; Cross wanted to meet up, so that

the two could “talk . . . face to face.” Id. at EC_000037–38. And of course, these wiretapped

conversations are all corroborated and contextualized by the physical evidence seized from

Cross’s hotel room, for which he had “paid exclusively in cash” for stays lasting “weeks at a

time.” Cross, 766 F.3d at 2–3. As detailed above, that physical evidence included numerous




                                                24
ziplock bags of heroin and various drug paraphernalia. Id. at 3.14

              In short, there was abundant evidence, independent of Toure’s testimony, confirming

Cross’s participation in a heroin distribution conspiracy. As a result, there is no “reasonable

probability,” Strickland, 466 U.S. at 694, that the jury would have reached a different conclusion

regarding Cross’s involvement in the conspiracy had the drug-quantity chart been effectively

used to discredit Toure’s testimony.

              B. Cross’s Other Claims

                      1. Challenge Based on Carachuri-Rosendo

              Cross also contends that his trial counsel erred in failing to challenge his sentence

enhancement by citing the Supreme Court’s then-recent decision in Carachuri-Rosendo v.

Holder, 560 U.S. 563 (2010). As discussed above, Cross’s offense of conviction, 21 U.S.C. §§

841(a)(1), (b)(1)(A)(i) & 846, carries a mandatory minimum of ten years’ imprisonment. That

jumps to twenty years, however, where the government chooses to give notice that a defendant

has been convicted of a prior “felony drug offense.” 21 U.S.C. § 841(b)(1)(A). A “felony drug

offense” is defined as one “that is punishable by imprisonment for more than one year under any

law of the United States or of a State or foreign country that prohibits or restricts conduct

relating to narcotic drugs[.]” 21 U.S.C. § 802(44); see also Burgess v. United States, 553 U.S.

124, 126 (2008) (holding that the term “felony drug offense” in § 841(b) is defined by

§ 802(44)). Therefore, where a defendant has been previously convicted of a state drug offense

with a maximum prison term greater than one year, even where that prior offense is characterized

                                                            
              14
         Cross argues that, without credible testimony from Toure to explain the wiretaps, “the
government’s case would have been little more than a collection of shreds showing . . . that
[Cross] was a small-time dealer involved in buying and selling drugs from Toure.” Def.’s Reply
18. However, the Court finds that, on the question of whether Cross entered into a heroin
conspiracy with Toure, the wiretap conversations recounted above largely speak for themselves.


                                                               25
as a misdemeanor under state law, § 841(b)(1)(A)’s ten-year enhancement applies. See Burgess,

553 U.S. at 126–27. Because Cross had been convicted in 2007 under Maryland law for cocaine

possession, an offense carrying a four-year maximum term of imprisonment, see Md. Code Ann.,

Crim. Law, § 5-601(c)(1), the trial court applied the enhancement. Trial Tr. 17 (Oct. 21, 2011).

       Cross argues that his counsel was ineffective in failing to challenge this enhancement

under Carachuri-Rosendo, 560 U.S. 563. That case held that a second state-drug-possession

conviction does not qualify as an “aggravated felony” under the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1229b(a)(3), unless that subsequent conviction is actually prosecuted as a

recidivist offense, meaning that the conviction was in fact based on a prior-offense enhancement.

Id. at 566. That followed because an “aggravated felony” includes “any felony punishable under

. . . the Controlled Substances Act” (“CSA”), 18 U.S.C. § 924(c)(2), which for a state offense

means that it must “proscribe[] conduct punishable as a felony under [the CSA].” Id. at 569

(quoting Lopez v. Gonzales, 549 U.S. 47, 56 (2006)). And under the CSA, a subsequent

possession conviction is punishable as a felony only where the prosecutor has actually charged

the existence of the prior possession conviction. Carachuri-Rosendo, 560 U.S. at 568–69.

       Cross’s sentencing enhancement, of course, was in no way based on the application of the

INA’s “aggravated felony” provision. But he suggests that Carachuri-Rosendo’s discussion of

what makes a “felony punishable . . . under the [CSA],” see 18 U.S.C. § 924(c)(2), somehow

bears on the proper interpretation of “felony drug offense” in the 21 U.S.C. § 841(b)(1)(A)

enhancement provision. It does not. In fact, although there is verbal overlap between the two

provisions, they are defined and analyzed in distinct ways. As explained above, a state offense is

“punishable” as a felony under the CSA—and therefore an “aggravated felony” under the INA—

when the conduct it prohibits could be punished as a CSA felony. Lopez, 549 U.S. at 56. By




                                               26
contrast, a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A) is defined, in express statutory

terms, by reference to the maximum term of imprisonment authorized by state law. See 21

U.S.C. § 802(44) (defining “felony drug offense” as one “punishable by imprisonment for more

than one year under any law . . . of a State . . . that prohibits or restricts conduct relating to

narcotic drugs[.]”); Burgess, 553 U.S. 124. Due to these distinctions, numerous courts have

rejected attempts to conflate the two provisions—and their two corresponding lines of cases.

See, e.g., Stewart v. Warden, FCC Coleman-Low, 589 F. App’x 934, 937 (11th Cir. 2014)

(“[Carachuri-Rosendo’s] ultimate holding that non-recidivist simple drug possession could not

be an ‘aggravated felony’ has no bearing on whether such an offense could be a ‘felony drug

offense’ under 21 U.S.C. § 841.”); Gargano v. United States, 2014 WL 1725736, at *5 (S.D.N.Y.

Apr. 30, 2014) (“[U]nlike Carachuri–Rosendo [the defendant here] was actually convicted of a

[state] crime [for which he] actually faced a maximum penalty of five years imprisonment.”).

        Cross recognizes that courts have not accepted the arguments he advances. But he

nonetheless maintains that his counsel was ineffective for failing to press the arguments before

the trial court. See Def.’s Reply 26. He points to United States v. Abney, 812 F.3d 1079 (D.C.

Cir. 2016), where the D.C. Circuit deemed counsel ineffective for failing to seek a continuance

so that the defendant could be sentenced after the signing of the Fair Sentencing Act (“FSA”),

which if applied retroactively to defendant’s pre-Act conduct would have cut in half the

mandatory minimum penalty for his offense. Id. at 1082–83. Although at the time of

sentencing, it was unclear whether the Act would be found retroactive (as it later was found to

be, see Dorsey v. United States, 132 S. Ct. 2321 (2012)), counsel was nevertheless deemed

ineffective for failing “to consider the FSA carefully enough to recognize there was more than

one available interpretation [of retroactivity] courts were reasonably likely to adopt—one of




                                                   27
which would benefit his client[.]” Id. at 1091.

              This is clearly not a case like Abney, however. Cross has not put forth any beneficial

interpretation of Carachuri–Rosendo that “courts were reasonably likely to adopt.” Rather, the

parallels he seeks to draw between Carachuri-Rosendo and 21 U.S.C. § 841(b)(1)(A)’s

sentencing enhancement provision are strained, and no court has adopted them.15 Accordingly,

his trial counsel’s failure to raise those arguments was not deficient. See United States v.

Watson, 717 F.3d 196, 198 (D.C. Cir. 2013) (“[C]ounsel does not perform deficiently by

declining to pursue a losing argument.”); United States v. Marshall, 669 F.3d 288, 293 (D.C. Cir.

2011) (“[C]ounsel need not raise every conceivable non-frivolous argument in order to provide

objectively reasonable representation.”). And nor could trial counsel’s performance be

prejudicial, since it is not reasonably probable that a court would have accepted such arguments.

See Strickland, 466 U.S. at 687. For the same reasons, Cross’s appellate counsel was not

deficient for failing to argue trial counsel’s ineffectiveness on these grounds. Robbins, 528 U.S.

at 288 (“[A]ppellate counsel . . . need not (and should not) raise every non[-]frivolous claim, but

rather may select from among them in order to maximize the likelihood of success on appeal.”).

The Court therefore rejects Cross’s ineffectiveness arguments grounded in Carachuri-Rosendo.

                      2. Prosecutorial Misconduct Claim

              Finally, Cross alleges that the prosecution knowingly elicited false testimony from Toure

regarding the quantity of heroin he sold to Cross. According to Cross, because the prosecution

possessed the above-referenced drug-quantity chart showing where much of the heroin from the

                                                            
              15
            While Carachuri-Rosendo has been applied in non-immigration cases, see, e.g., United
States v. Simmons, 649 F.3d 237, 243 (4th Cir. 2011) (holding that defendant’s prior conviction
for first-time marijuana possession did not qualify as a predicate felony conviction under North
Carolina sentencing regime), Cross has pointed to no court that has read Carachuri-Rosendo to
inform the meaning of “felony drug offense” under 21 U.S.C. § 841’s enhancement provision.


                                                               28
conspiracy was recovered, it must have known that Toure’s testimony was false.

       Cross did not raise this claim on direct appeal. Generally, a defendant seeking post-

conviction relief is barred from raising any claim that he has procedurally defaulted by failing to

raise it on direct appeal. See Bousley, 523 U.S. at 622. A defendant may, however, raise a claim

for the first time in a § 2255 proceeding if he can show “cause” for his failure to raise it

previously and “prejudice” as a result of his failure, or if he can show “actual innocence.” See

id. In his motion to vacate his sentence, Cross states that the reason he failed to raise it is

“because appellate counsel chose not to.” Def.’s Att. A at 9, ECF No. 397-1. He urges the Court

to liberally construe his pro se petition “as asserting ineffective assistance by his appellate

counsel as the cause for this procedural default.” Def.’s Reply 22.

       Even if the Court were to do so, however, the claim fails on the merits. Under Napue v.

Illinois, 360 U.S. 264, the government “may not knowingly use false evidence, including false

testimony,” or “allow[] it to go uncorrected when it appears.” Id. at 269. “A Napue violation

occurs when the government introduces false or misleading testimony or allows it to go

uncorrected . . . even though the government knew or should have known that the testimony was

false[.]” United States v. Straker, 800 F.3d 570, 603 (D.C. Cir. 2015) (citations omitted).

Although the drug-quantity chart certainly casts doubt on Toure’s testimony, Cross has not

shown that Toure’s statement that he distributed 1.2 to 1.3 kilograms of heroin to Cross was

actually false, much less that the prosecution knew it to be so. There are ways to square that

statement with the drug-quantity chart. Most obviously, Toure’s estimate of the total quantity

imported (4.8 kilograms) may have been too low. Or his statements about the quantity he sold

co-conspirators—which were elicited on cross over the prosecution’s objection, and which Toure

acknowledged to be estimates—might have been too high. See Trial Tr. 66–67 (July 19, 2011




                                                  29
p.m.); see also Hayes v. Ayers, 632 F.3d 500, 520 (9th Cir. 2011) (finding no obligation to

correct allegedly false testimony where testimony “was mostly equivocal”). For all of the

foregoing reasons, the Court will reject Cross’s claim of prosecutorial misconduct.

 IV. Remedy and Conclusion

       In accordance with the above discussion, the Court will grant Cross’s motion for post-

conviction relief pursuant to 28 U.S.C. § 2255. Cross’s sentence rested on the jury’s one-

kilogram heroin amount finding, see Sentencing Tr. 15–16 (Oct. 21, 2011), which Cross has

shown was prejudiced by his trial counsel’s ineffectiveness. Cross’s sentence was therefore

“imposed in violation of the Constitution or laws of the United States,” 28 U.S.C. § 2255(a), and

will be vacated.

       However, the Court has also determined that the prejudice stemming from trial counsel’s

ineffectiveness was limited to the drug-quantity element of Cross’s conviction, and that Cross’s

other grounds for post-conviction relief are unavailing. Furthermore, the jury was instructed, and

impliedly made a guilt determination, on two lesser-included offenses with lower drug-quantity

thresholds. See Trial Tr. 54–56 (July 20, 2011 p.m.); Verdict Form, ECF No. 327. The Court

will therefore request further briefing on the effect of the Court’s prejudice finding on Cross’s

conviction.

       An appropriate Order accompanies this Memorandum Opinion.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: April 18, 2017



                                                 30
