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Blair v. USA - 2255

United States District Court, D. Maryland

November 4, 2016

WALTER LLOYD BLAIR Petitioner
v.
USA - 2255 Respondent Civil No. PJM 14-766

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Walter Lloyd Blair has filed a Motion to Vacate, Set Aside, or Correct his Sentence under 28 U.S.C. § 2255, claiming that both his trial and appellate counsel were constitutionally ineffective, resulting in the denial of his Sixth Amendment rights. Pet'r's Mot. Vacate, ECF No. 255. The Government counters that, in every respect, Blair has failed to make out a claim under Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court agrees with the Government. For the reasons that follow, the Court will DENY Blair's Motion.[1]

         I.

         Factual and Procedural Background

         In August 2003 in Richmond, Virginia, Elizabeth Nicely purchased a Cadillac Escalade automobile in her own name. She did so, however, for Anthony Rankine, a known drug dealer, who supplied the down payment and promised to pay off the purchase money loan for the car.[2]Rankine conducted a large marijuana distribution operation in the Richmond area, where he regularly received 500-pound crates of marijuana, which he paid for in cash rubber-banded in $1, 000 stacks. Soon after the Escalade was purchased, Nicely agreed to store a safe belonging to Rankine in her house in Richmond, without having any access to the contents of the safe herself, even though she knew Rankine was a drug dealer. A short time later, Rankine's girlfriend-not Nicely-was murdered, and Rankine went missing. Rankine, too, was eventually found murdered. At that point, Nicely realized she was in possession of a safe that almost certainly contained drug money and that she could be in danger. She therefore undertook to move the safe to a storage facility. In fact, Nicely soon did begin to receive threatening phone calls about the money in the safe, which led her to contact a coworker, Michael Henry, for advice on how to handle the situation. Henry told Nicely she needed to speak with a criminal defense attorney and shortly thereafter the two of them were referred to Walter Blair, Esquire, a criminal defense attorney, whose principal office was in Silver Spring, Montgomery County, Maryland. Rankine, Nicely, Henry, and Blair as it happened, were all originally from Jamaica.

         On November 4, 2003, Blair received a phone call from Nicely explaining that she was in possession of a safe she believed contained drug money belonging to a known drug trafficker, Anthony Rankine. Later that day, Nicely and Henry met with Blair at his office in Silver Spring, at which Nicely repeated that she had a safe containing Rankine's drug proceeds, and showed Blair online media coverage indicating that Rankine's disappearance and his girlfriend's murder were connected to a Jamaican drug ring. Blair requested that they open the safe, which was still in Richmond, and bring back the contents to his office in Silver Spring. Nicely also told Blair that she had purchased an Escalade automobile for Rankine under her name.

         Nicely and Henry emptied the safe without counting the money and, on November 6, brought it in a duffle bag back to Blair's office in Silver Spring. Blair and Henry proceeded to count approximately $170, 000 in cash taken from the duffle bag, but did so without Nicely in the room so as to “protect her.” However, Blair thereafter told Nicely there was only about $70, 000 in the bag. Blair also created a cover story for both Nicely and Henry involving the Jamaican custom known as “partner money” with which both Nicely and Henry were familiar.[3] Blair then proceeded to set up a real estate corporation for Nicely, which he called “Jay Paul Property Management, ” and enlisted Vassel Clarke, a mortgage broker, to purchase real estate on behalf of Nicely.

         On November 7, 2003, Nicely opened two bank accounts into which she deposited some, but not all, of the money from the duffle bag. When Blair found himself unable to open a business account for Nicely's corporation, he instead opened an account in the name of his law firm, Blair and Lee, P.C., depositing $6, 000 in the account, and retaining an additional $1, 000 for himself as a fee for setting up the corporation. A few days later, Blair gave Clarke an additional $31, 000 from the duffle bag to purchase real estate for Nicely. Clarke, on Nicely's behalf, eventually purchased a house in Washington, D.C., and other real property in Maryland.

         After learning of Rankine's death-but before she contacted Blair-Nicely had received a phone call from one of Rankine's associates, Dashawn Saunders, asking for permission to retrieve the Escalade from an automotive shop in Richmond. Nicely gave him permission to do this, but when Saunders arrived at the shop, he was arrested on drug trafficking charges. The Escalade was found to contain $42, 000 in drug proceeds that Saunders had previously received. Richard Bernard, an associate of Saunders, was also arrested on drug charges in Virginia.

         During Nicely's initial meeting with Blair on November 4, 2003, she expressed concern that she had been getting troubling phone calls; in one, she stated, someone told her that Saunders needed the drug money for his legal defense. On November 6, 2003, Blair retained Virginia attorneys David Boone, Esquire, and James Yoffy, Esquire, to represent Saunders and Bernard, both of whom were under arrest on federal drug conspiracy charges. To compensate the two Virginia attorneys, Blair used cash from the duffle bag Nicely and Henry had brought him to purchase three separate $10, 000 cashier's checks-one for each lawyer and one for Blair himself as co-counsel for Saunders. Blair also set aside money to retrieve the Escalade Nicely had purchased for Rankine.

         On November 12, 2003, the FBI contacted Nicely in regard to the Escalade, which by then had been linked to the drug traffickers. Nicely answered none of their questions, but referred the agents to Blair. Nicely then went to Blair's office to discuss how she should handle questions from the FBI. Blair instructed her to only discuss the Escalade, and that she should never mention the money from the safe. Blair tape recorded Nicely rehearsing what she would say to the FBI. The following day, Blair provided Nicely with a letter she was supposed to memorize, which detailed the “partner money” story and indicated that Nicely was only involved in paying legal fees for Saunders and Bernard because they were her relatives. Nicely was not, in fact, related to either individual.

         On November 17, 2003, Blair sought admission pro hac vice to represent Saunders in the United States District Court for the Eastern District of Virginia in the matter of United States v. Philip Jazir Thompson, Crim. No. JRS-03-420.[4] Blair represented to the court that he had never been reprimanded by any court. This was not true. Not only had Blair been previously reprimanded; the West Virginia Supreme Court of Appeals had suspended his license to practice for witness tampering. Blair's application for admission to the Virginia federal court was granted, but he did not thereafter make an appearance in that court.

         On November 5, 2008, Blair was charged in an indictment in this Court with fourteen counts of criminal activity, including money laundering, witness tampering, obstruction of justice, making false statements, and failing to file income tax returns. Indictment, ECF No. 1. At his trial, he was represented by David Williams, Esquire. Entry of Appearance at 1, ECF No. 142. At the conclusion of the trial, the jury convicted Blair of eight counts of money laundering under 18 U.S.C. § 1956 (Counts One through Eight); one count of money laundering under 18 U.S.C. § 1957 (Count Nine); one count of witness tampering under 18 U.S.C. § 1512 (Count Ten); one count of obstructing justice under 18 U.S.C. §1503(a) (Count Eleven); one count of making a false statement under 18 U.S.C. § 1001(a)(2) (Count Twelve); and two counts of failing to file an income tax return under 26 U.S.C. § 7203 (Counts Thirteen and Fourteen). Verdict Form at 1-4, ECF No. 165.

         At his sentencing on April 23, 2010, Blair was represented by Eric Hans Kirchman, Esquire, and Kenneth Robinson, Esquire. Judgment and Commitment Order at 1, ECF No. 204. After hearing from the Government, defense counsel, and Blair, the Court sentenced Blair to ninety-seven months imprisonment on Counts One through Eleven, sixty months on Count Twelve, and twelve months on Counts Thirteen and Fourteen, all sentences to run concurrently. Judgment and Commitment Order at 4, ECF No. 204.

         On April 29, 2010, Blair, represented by Kirchman and Robinson, appealed his conviction and sentence to the U.S. Court of Appeals for the Fourth Circuit. Notice of Appeal at 1, ECF No. 203. Ultimately, the Fourth Circuit affirmed Blair's convictions on all counts but Count Eleven (Obstruction of Justice), which was reversed for insufficient evidence. United States v. Blair, 661 F.3d 755, 766-70 (4th Cir. 2011). The case was remanded to this Court for resentencing. Id. at 775. The Supreme Court thereafter denied Blair's petition for writ of certiorari. Blair v. United States, 132 S.Ct. 2740 (mem.), 183 L.Ed.2d. 615 (2012).

         At Blair's resentencing before this Court on March 19, 2012, he again received a sentence of ninety-seven months imprisonment on the remaining viable counts, all the sentences to run concurrently. Am. J. at 4, ECF No. 242. On March 28, 2012, Blair filed a second appeal, this time representing himself. Notice of Appeal at 1, ECF No. 244. On this second appeal, the Fourth Circuit affirmed this Court in full. United States v. Blair, 508 F.App'x 225, 1 (4th Cir. 2013). The Fourth Circuit reviewed Blair's arguments and concluded that all the challenges to his convictions and most of his sentencing claims were foreclosed by the mandate rule.[5] Id. To the extent Blair's sentencing challenges were not barred by the mandate rule, the Fourth Circuit found no clear error in this Court's re-sentence. Id.

         On March 13, 2014, Blair, still pro se, filed the present Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, citing ineffective assistance of his trial counsel, Attorney Williams, and his appellate counsel, Attorneys Kirchman and Robinson, who also represented Blair at his original sentencing. Pet'r's Mot. Vacate, ECF No. 255. Blair has asserted thirty-two grounds which he claims denied him effective assistance of counsel at both the trial and appellate levels. His claims relate primarily to the testimony of Nicely and Henry regarding their lack of personal knowledge as to the provenance of the money in the safe Nicely received from Rankine and the testimony of Agent Judith Razetti who searched Blair's law office. He raises a number of other miscellaneous claims against both trial and appellate counsel.

         The Government maintains that all of Blair's claims are meritless. Gov't Resp. Opp'n at 6, ECF No. 277. It asserts that the ten claims related to witnesses Nicely and Henry “amount to ‘no more than second-guess[ing] counsel's assistance after conviction.'” Gov't Resp. Opp'n at 7, ECF No. 277 (quoting Harrington v. Richter, 131 S.Ct. 770, 780 (2011)). As for the claims related to Agent Razetti, the Government argues that trial counsel attempted to do exactly what Blair now claims counsel failed to do, i.e. to impeach her credibility. Gov't Resp. Opp'n at 11, ECF No. 277. Similarly, the Government maintains that all of Blair's claims against appellate counsel lack merit, arguing that counsel acted well within the wide range of reasonable professional conduct. Id. at 16.

         II.

         Legal Standard

         Ineffective assistance of counsel claims are governed by the two-part test first elucidated by the Supreme Court in Strickland v. Washington:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984).

         These two elements are typically referred to as the “performance” and “prejudice” prongs. See Fields v. Attorney Gen. of State of Md., 956 F.2d 1290, 1297 (4th Cir. 1992). Since a petitioner bears the burden of proving both Strickland elements, he fails to satisfy his overall burden if he fails to prove either. Id. Accordingly, the Court may properly begin its analysis with either the performance or the prejudice prong.

         In the first prong, the defendant must show that the counsel's performance was deficient and fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. The objective standard of reasonableness is evaluated under “prevailing professional norms.” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Strickland, 466 U.S. at 688). Reasonableness must be evaluated “within the context of the circumstances at the time of the alleged errors.” Sexton, 163 F.3d at 882 (citing Strickland, 466 U.S. at 690). To meet this burden, the defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687). For example, counsel is not considered deficient for failing to anticipate changes in the law or for failing to pursue constitutional claims they reasonably believe to be of questionable merit. Strategic decisions and tactical judgments are “virtually unchallengeable.” Powell v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009) (quoting Strickland, 466 U.S. at 690). In assessing the first prong, the reviewing court operates with a presumption that counsel's performance was not deficient but instead falls within the broad scope of reasonable assistance. See id. (citing Strickland, 466 U.S. at 688).

         In order to satisfy the prejudice prong, the defendant must show that there was 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. When challenging a conviction, the defendant must show that there is “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994) (quoting Strickland, 466 U.S. at 695). That said, a defendant need not go so far as to establish that “counsel's deficient conduct more likely than not altered the outcome of the case.” United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015) (quoting Strickland, 466 U.S. at 693). The Strickland standard also applies when evaluating claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland v. Washington, 466 U.S. 668 (1984); Smith v. Murray, 477 U.S. 527, 535-536 (1986)). In applying Strickland to an appellate counsel's performance, the court must indulge the “presumption that [appellate counsel] decided which issues were most likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993). Appellate counsel has no duty to “raise every nonfrivolous issue on appeal.” Griffin v. Aiken, 775 F.2d 1226, 1235 (4th Cir. 1985) (citing Jones v. Barnes, 463 U.S. 745, 751-54 (1983)).

         III.

         Claims as to Trial Counsel[6]

         Claims Related to Elizabeth Nicely and Michael Henry

         Blair makes several claims of ineffective assistance of counsel in relation to the trial testimony of Elizabeth Nicely and Michael Henry, many of which relate to their lack of personal direct knowledge that the money in Rankine's safe was drug proceeds. By way of background, Nicely testified at trial that she told Blair there was drug money in the safe. Trial Tr. at 156:4-6, Dec. 3, 2009, ECF No. 195 (“We started to explain the situation to him, everything that was going on, including that we had a safe. There was drug money in the safe . . . .”). When asked specifically what she told Blair was in the safe, Nicely responded “I told him it was drug money, sir.” Trial Tr. at 5:23, Dec. 4, 2009, ECF No. 196. Nicely further explained that while she did not have access to the safe, she recalled that Blair “told me that I need to go get the money out of the safe, and I told him I didn't have any key nor combination for this safe. He told me to go get a crow bar and open the safe.” Trial Tr. at 160:20-22, Dec. 3, 2009, ECF No. 195. Henry similarly testified that “we knew it was drug money.” Trial Tr. at 82:20, Dec. 3, 2009, ECF No. 195. On redirect examination, Henry once again asserted that he told Blair “[t]hat this was money from drug activity.” Trial Tr. at 128:21, Dec. 3, 2009, ECF No. 195.

         The Court considers four of Blair's claims-Claims 3, 4, 5, and 7-all relating to Nicely's and Henry's testimony regarding their knowledge that the money in the safe was “drug money.”

         In Claim #4, Blair alleges that his trial attorney was ineffective by failing to ask competent questions of both Nicely and Henry to expose their lack of personal knowledge that the money in the safe was drug money, as well as counsel's failure to request a mistrial when Nicely testified she paid Blair with drug money, despite her lack of personal knowledge that it was drug money. Pet'r's Mot. Vacate at 13-14, ECF No. 255; Pet'r's Reply at 9, ECF No. 278. The Government notes that the trial transcript reveals that Blair's trial counsel in fact did question Nicely and Henry about their lack of personal knowledge that the money was “drug money.” See Gov't Resp. Opp'n at 8, ECF No. 277; Trial Tr. at 44-45, Dec. 4, 2009, ECF No. 196; Trial Tr. at 117-119, 123, 126, Dec. 3, 2009, ECF No. 195. Blair apparently takes issue with the “competency” of the questioning. Pet'r's Mot. Vacate at 13, ECF No. 255.

         In Claim #3, Blair alleges that trial counsel was ineffective by failing to request a mistrial when Henry testified he knew the money from the safe was drug money. See Pet'r's Mot. Vacate at 12, ECF No. 255. The Government challenges Blair's narrative as inaccurate because the Court specifically instructed the jury to disregard the answer to the question unless the witness had personal knowledge. See Gov't Resp. Opp'n at 9-10, ECF No. 277. On redirect examination, the Government specifically asked Henry what he and Nicely told Blair. See Gov't Resp. Opp'n at 10, ECF No. 277; Trial Tr. at 81-82, 128, Dec. 3, 2009, ECF No. 195.

         The record demonstrates that Blair's trial counsel conducted a more than adequate cross-examination of Nicely and Henry regarding their lack of personal knowledge that the money in the safe was “drug money.” See Trial Tr. at 45:2-3, Dec. 4, 2009, ECF No. 196 (when questioned whether she saw anyone put money in the safe, Nicely responded “I never seen put money in the safe.”); Trial Tr. at 117:20-22, Dec. 3, 2009, ECF No. 195 (in response to the question “[d]id you ever see anyone put any drug money in the safe?” Henry answered “[n]o, I didn't, sir.”); Trial Tr. at 126:18-20, Dec. 3, 2009, ECF No. 195 (when asked “[d]o you have any personal knowledge of Mr. Rankine putting any money into the safe?” Henry responded “[n]o I don't sir.”). When evaluating trial counsel's performance, “the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Strickland v. Washington, 466 U.S. 668, 690 (1984). By cross-examining the witnesses, Blair's trial counsel surely “[made] the adversarial testing process work.” Id. Simply because counsel's questions did not lead the jury to discount witness testimony does not render counsel's performance unreasonable.

         Similarly, Blair's trial counsel was reasonable in not requesting a mistrial related to Nicely's or Henry's statements about their personal knowledge that the safe contained drug money. Requesting a mistrial is within the trial attorney's discretion: “[t]he Supreme Court has never suggested that decisions about mistrials . . . can be made only by the defendant himself, and every circuit to consider the question has concluded that decisions regarding mistrials belong to the attorney, not the client.” United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (“We likewise conclude that decisions regarding a mistrial are tactical decisions entrusted to the sound judgment of counsel, not the client.”). In light of counsel's vigorous cross-examination of Nicely and Henry, the Court considers trial counsel's decision not to request a mistrial to have been sound trial strategy. Further, the Court explicitly instructed the jury that “whoever is going to identify it as drug money has to have personal knowledge. This witness doesn't have personal knowledge at this point.” Trial Tr. at 82:23-25, Dec. 3, 2009, ECF No. 195. Blair cannot demonstrate that in this “counsel's performance fell below an objective standard of reasonableness under ‘prevailing professional norms.'” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Strickland, 466 U.S. at 688).

         In Claim #5, Blair asserts that trial counsel was incompetent for not asking for a jury instruction based on Nicely's lack of personal knowledge about drug money. Pet'r's Mot. Vacate at 14-15, ECF No. 255; Pet'r's Reply at 9, ECF No. 278. According to Blair, since all the counts in the case depended on the existence of “drug money, ” a jury instruction on that point would have resulted in an acquittal on all counts. Pet'r's Mot. Vacate at 14-15, ECF No. 255. Once again, the Government argues this claim lacks a factual basis because Blair's trial counsel consistently did attempt to challenge the basis of the witnesses' knowledge. See Gov't Resp. Opp'n at 7-8, ECF No. 277. The Government argues that Blair's claims amount to nothing more than second-guessing counsel's trial tactics. Id.

         The Court agrees.

         Apart from that, Blair has not shown that counsel's failure to request a jury instruction regarding Nicely's lack of personal knowledge that the money was drug money resulted in prejudice. Simply put, no jury instruction was warranted. Nicely did not testify that she had personal knowledge it was drug money, only what she understood the money to be and only what she told Blair she thought it was. Trial Tr. at 5:23, Dec. 4, 2009, ECF No. 196 (“I told him it was drug money, sir.”); See Roach v. Sizer, No. CIV.A. RWT-07-1136, 2009 WL 2151716, at *7 (D. Md. Jul. 14, 2009) (“Since the evidence presented against Roach did not warrant a jury instruction on the ‘heat of passion' defense, counsel cannot be ineffective for failing to request the instruction.”).

         It was also perfectly reasonable trial strategy for Blair's trial counsel to forego requesting a jury instruction and instead highlight Nicely's lack of personal knowledge during vigorous cross examination. A jury instruction as to Nicely's lack of personal knowledge might have reminded the jury of all the other evidence indicating that the money in fact was drug money. Unquestionably, there was ample other evidence to support that reasonable inference, wholly apart from Nicely's and Henry's testimony, including print-outs of Internet stories about the drug-related murders that were found in Blair's office, the criminal drug charges faced by the Virginia defendants for whom Blair personally retained counsel, and evidence showing that the money in the safe was packaged in the same way as the money found in Rankine's home and vehicle.[7] See e.g., Trial Tr. at 158:22-159:7, Dec. 3, 2009, ECF No. 195 (The Court found that there was separate proof beyond Nicely's testimony that the money was drug money, i.e., Nicely's “statement alone doesn't prove it was drug money but the other evidence would.”).

         In Claim #7, Blair states that trial counsel was ineffective for failing to argue, during both of counsel's two Motions for Judgment of Acquittal, that neither Nicely nor Henry had personal knowledge that Blair was paid with “drug money, ” because if counsel had done so, Blair would have been acquitted of all counts. See Pet'r's Mot. Vacate at 17-18, ECF No. 255. The Government again submits this claim is groundless because Blair's trial counsel in fact did try to impeach the witnesses' knowledge. See Gov't Resp. Opp'n at 8, ECF No. 277.

         Blair's assertions in Claim #7 do not sustain a claim for relief under Strickland. Trial counsel did make a Motion for Judgment of Acquittal when the Government rested, specifically arguing that the Government's witnesses, especially Nicely, lacked personal knowledge to call the money Blair received “drug money.” But the Court denied the motion. See Trial Tr. at 37:24-40:23, 43:21-44:4, Dec. 9, 2009, ECF No. 198. In fact, Blair's trial counsel made the same argument when he renewed his Motion for Judgment of Acquittal at the end of the defense case, and again the Court denied it. See Trial Tr. 13:16-15:2, Dec. 11, 2009, ECF No. 201. Claim #7 holds no water under Strickland. See also Marshall v. United States, 461 F.Supp.2d 388, 396 (D. Md. 2006), subsequent mandamus proceeding sub nom. In re Marshall, 283 F.App'x 148 (4th Cir. 2008) (noting “[defense counsel] made the very argument that [the defendant] claims he did not make. [The defendant], therefore, cannot sustain this claim of ineffective assistance.”).

         In Claim #19, Blair shifts to Nicely's and Henry's testimony as to the amount of money they brought to him after opening the safe, arguing that trial counsel also failed to competently and effectively cross examine on this topic. See Pet'r's Mot. Vacate at 33-34, ECF No. 255. Blair submits that one of the witnesses was “in fact lying” and that the testimony of both witnesses was “speculative.” Id. The Government, however, points out that the jury was clearly made aware that the amount of money was “speculative” because both Nicely and Henry admitted on direct and cross examination that they never counted the money before bringing it to Blair; they left the duffle bag containing the money with Blair. See Gov't Resp. Opp'n at 10, ECF No. 277.[8]

         Blair's counsel cross-examined Nicely and Henry so effectively that they in fact admitted precisely what Blair now asserts: they were unsure of the exact amount of money in the safe. See Trial Tr. at 116:20-21, Dec. 3, 2009, ECF No. 195 (When asked on cross if Henry had counted the money prior to giving it to Blair, he responds, “[n]o, I never counted it.”). Witness examinations are a matter of trial tactics and strategy, which fall within the exclusive purview of the defense attorney. See Mosley v. United States, No. CIV. DKC 07-1520, 2011 WL 1230888, at *2 (D. Md. Mar. 29, 2011) (“As an initial matter, tactical decisions such as what questions to ask witnesses are ‘virtually unchallengeable..'”) (citing Powell v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009). Further, the “failure of the strategy to produce an acquittal does not mean that it was incompetent.” Jackson v. United States, 473 F.Supp.2d 640, 646 (D. Md. 2006). Blair is unable to satisfy the deficiency prong of Strickland in light of the deferential presumption that the “challenged acts are likely the result of a sound trial strategy.” Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994) (citing Strickland, 466 U.S. at 689).

         In Claim #9, Blair argues that trial counsel was ineffective by failing to move to strike Counts One through Eight (18 U.S.C. § 1956(a)(1)(B)(i))[9] and Count Nine (18 U.S.C. § 1957(a)) because both Nicely and Henry failed to demonstrate that they had personal knowledge that the money given to Blair was “drug money.” See Pet'r's Mot. Vacate at 20, ECF No. 255; Pet'r's Reply at 14-15, ECF No. 278. The Government objects to Claim #9 altogether because these arguments were presented to and specifically rejected by the Fourth Circuit, which effectively found that the outcome of the proceedings would not have been different. See Gov't Resp. Opp'n at 10 n.5, 13 n.10, ECF No. 277 (citing United States v Blair, 661 F.3d 755, 764 (4th Cir. 2011)).

         In any event, Nicely's or Henry's personal knowledge that the money Blair received was drug money was not necessary to prove Count One through Count Eight, (18 U.S.C. § 1956(a)(1)(B)(i)). See Pet'r's Reply at 15-16, ECF No. 278. “The statute requires only a showing that the defendant had knowledge that ‘the property involved in a financial transaction represents the proceeds of some form of illegal activity.'” United States v. Campbell, 977 F.2d 854, 857 n.3 (4th Cir. 1992)(emphasis in original). In other words, the Government is only required to “show that the defendant possessed the knowledge that the transaction was designed to conceal illegal proceeds.” Campbell, 977 F.2d at 857)(emphasis in original).

         The Government presented extensive evidence to sustain its burden that Blair knew that the money he received from Nicely derived from “some form of illegal activity.” See Campbell, 977 F.2d at 857. In addition to Nicely's and Henry's testimony at trial that they told Blair the money was drug proceeds, as the Court has already noted, the Government presented evidence of print outs of several Internet news stories about the drug-related murders in Virginia found in the library of Blair's law office. The print-outs showed that they were made on November 13, 2003, the same day Blair's own records indicated that a telephone interview between Nicely and the FBI was scheduled.[10] See Trial Tr. at 101:20-107:1, Dec. 4, 2009, ECF No. 196. Additionally, Henry testified that when he and Nicely visited Blair's office, they looked up these Internet articles on Blair's computer. See Trial Tr. at 80:17-81:14, Dec. 3, 2009, ECF No. 195.

         Blair also argues in connection with Claim #9 that trial counsel was ineffective for failing to move to strike Count 9 under 18 U.S.C. § 1957, which prohibits knowingly engaging in a monetary transaction with criminally derived property of a value greater than $10, 000.[11] See Pet'r's Mot. Vacate at 20, ECF No. 255. Blair was convicted of using drug proceeds to purchase two cashier's check for $10, 000-a prohibited monetary transaction-which were used to secure counsel for Saunders and Bernard. For the reasons previously stated, the Government without question sustained its burden to prove Blair's knowledge that the money came from an illegal drug enterprise. Further, on appeal the Fourth Circuit found sufficient evidence in the record to affirm Blair's convictions under 18 U.S.C. § 1956(a) and § 1957. Blair has given no reason to believe that a motion by counsel to strike Counts One through Nine for lack of knowledge that the money in the safe was illegal drug proceeds would have succeeded. As a result, the Court concludes that Blair's counsel acted well within the range of professional reasonableness by declining to make such a motion.

         To the extent that Blair argues that trial counsel was deficient in not moving to strike Count 9 pursuant to the safe harbor provision in § 1957(f), this argument is addressed in connection with Claims #2 and #8 infra.

         In Claim #21, Blair alleges that trial counsel was ineffective because he failed to establish a “critical fact” that would have undercut “the paramount element” required to convict Blair of Count Ten (Witness Tampering), in violation of 18 U.S.C. § 1512(b)(3). See Pet'r's Mot. Vacate at 36-37, ECF No. 255; Pet'r's Reply at 11-12, ECF No. 278. According to the facts accepted by the Fourth Circuit, Blair provided Nicely with a letter on November 13, 2003 that detailed the “partner money” story and supposedly explained why Nicely was involved in providing legal fees for Saunders and Bernard. United States v. Blair, 661 F.3d 755, 762 (4th Cir. 2011). Nicely was directed to memorize the letter for her interview with the FBI. Id. Based on the date Nicely was scheduled to speak with the FBI agent, and the date he wrote the letter, says Blair, Nicely could not have used this letter to “‘rehearse' a lie to tell the FBI” because the letter did not exist when Nicely was scheduled to give a statement. See Pet'r's Mot. Vacate at 36-37, ECF No. 255. Thus, Blair alleges that Nicely “had a serious credibility problem” when she testified about the November 13, 2003 opinion letter penned by Blair and introduced by the Government as B&L 26. Pet'r's Mot. Vacate at 36, ECF No. 255. See also Trial Tr. at 12:14-20:14, Dec. 4, 2009, ECF No. 196. As a result, Blair claims that effective cross examination would have made Nicely's credibility problem sharply apparent. See Pet'r's Mot. Vacate at 36-37, ECF No. 255. The Government responds that there is no record to support that cross-examination on the topic would have successfully impeached Nicely. See Gov't Resp. Opp'n at 9, ECF No. 277.

         Claim #21 evidences Blair's misunderstanding of the charges against him. For the purposes of Count Ten, the exact day and time his opinion letter to Nicely was created are immaterial. The core criminal conduct underlying Count Ten was that Blair attempted to get a witness to manufacture testimony. The conduct was not limited Nicely's November 13, 2003 interview with the FBI and the date of the creation of the opinion letter.[12] See Superseding Indictment at 8, ECF No. 54 (“[o]n or about November 12, 2003”); Verdict Form at 3, ECF No. 165 (the jury was asked “as to COUNT TEN of the Indictment (witness tampering November, 2003 [no date specified]) how do you find the defendant WALTER LLOYD BLAIR?”)

         Even if the jury accepted Blair's contention that the physical letter did not exist at the time Nicely's call with the FBI was scheduled, that would in no way have detracted from the Government's theory that Blair fabricated a story and coached Nicely to repeat it in preparation for the phone call, or for use during her subpoenaed interview. Whether the fabricated story was memorialized in writing at some point, even whether the conversation with the FBI ever took place, is unimportant; the statute punishes even the attempt to knowingly “corruptly persuad[e]” a witness “to hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” 18 U.S.C. § 1512(b)(3) (emphasis added).

         This is not even a “long shot contention” on Blair's part and his trial counsel can in no way be faulted for failing to pursue it. See United States v. Mason, 74 F.3d 824, 830 (4th Cir. 2014) (“Courts have consistently made clear that we do not penalize attorneys for failing to bring novel or long-shot contentions”).

         In Claim #6, Blair argues that his trial attorney was ineffective by failing to establish that Blair received attorney's fees on November 5, 2003. Because, he suggests, Nicely did not receive a key to open the safe until the next day, i.e. on November 6, 2003, the money could not possibly have come from the safe. See Pet'r's Mot. Vacate at 16-17, ECF No. 255. Blair concludes that, if counsel had raised this point, it would have further undermined Nicely's credibility on the matter of whether she paid him with drug money. Id. The Government argues that Blair's trial counsel might very well have concluded that the jury would have disbelieved Blair's alleged handwritten notation that his ...


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