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United States v. Barrie

United States District Court, D. Maryland, Southern Division

June 7, 2017

UNITED STATES OF AMERICA, Respondent,
v.
ALIMAMY BARRIE, Defendant-Petitioner.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         On June 5, 2015, Petitioner Alimamy Barrie was convicted of two counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of identity theft in violation of 18 U.S.C. § 1028A. Verdict Form, ECF No. 99. At trial, the Government adduced evidence that Barrie, along with associates, obtained personal identifying information belonging to an individual named Frank Gray and used it to impersonate Gray and access his 401(k) managed by Fidelity Investments and attempt to transfer his funds to an account that they opened in his name. Am. Presentence Investigation Report ¶¶ 6-13, ECF No. 113. Prior to Barrie's conviction in this Court, he pled guilty in the Eastern District of Virginia to similar charges involving another victim, see United States v. Barrie, Plea Agreement, No. ll-cr-476-GBL (E.D.V.A. Oct. 3, 2011), ECF No. 24, and he engaged in the conduct that led to the subsequent conviction while on pretrial release in Eastern District of Virginia case, Presentence Investigation Report ¶ 16. I sentenced Barrie to 112 months and 1 day for the offenses and for committing them while on pretrial release. Judgment 2, ECF No. 114. Barrie filed a Fed. R. Crim. P. 33 Motion for New Trial, Pet.'r's Mot. New Trial, ECF No. 103, which I denied, Mem. Op. & Order, ECF No. 109; appealed his conviction to the Court of Appeals for the Fourth Circuit, Notice of Appeal, ECF No. 116, which affirmed the conviction, ECF No. 137; and filed a Petition for Certiorari, which the Supreme Court of the United States denied, Barrie v. United States, 136 S.Ct. 1691 (2016) (mem.). He then filed a Motion to Vacate Conviction and Sentence pursuant to 28 U.S.C. § 2255 in this Court, in which he argues that he received ineffective assistance of counsel at trial, during sentencing, and on direct appeal.[1] Pet., ECF No. 139. The Motion is fully briefed, Pet'r's Mem., ECF No. 139-1; Resp't's Opp'n, ECF No. 142; Pet'r's Reply, ECF No. 143, and no hearing is necessary, see Loc. R. 105.6 (D. Md.); Rules Governing § 2255 Cases, R. 8(a). Because I do not find that Barrie received objectively unreasonable representation or that a reasonable probability exists that the outcome of his trial, sentencing, or appeal would have been different had counsel represented Barrie in the manner he now prefers, I will deny the Motion.

         Background

         While Barrie was in custody as a result of the Eastern District of Virginia case, Special Agent Cristopher Guest of the United States Secret Service and Special Agent James Conner of the Federal Bureau of Investigation interviewed him in connection with their investigation of the wire fraud committed against Frank Gray. Trial Tr. Vol. II, at 170:9-16, ECF No. 131. Before beginning the interview, Agents Guest and Conner provided Barrie with a form that advised him of his Miranda rights, and Barrie signed the form. Pretrial Hr'g Tr. 165:13-166:3, Resp't's Opp'n Ex. C., ECF No. 142-3. I previously held that this constituted a voluntary and knowing waiver of his Miranda rights. Id. at 174:5-10. During the interview that followed, Barrie admitted that he called Fidelity Investments while pretending to be Gray. Trial Tr. II, at 176:5- 20. Barrie said that he made the calls from a phone belonging to Patricia Williams, the mother of his friend Ishmael Bakarr. Id. at 176:21-177:1. Barrie also told the investigators that he obtained Gray's personal information from an individual in New York who he called “Kante” and created an ACH link[2] to transfer funds from the Fidelity Investments account to an account that he and his associates opened in Gray's name. Id. at 177:8-15, 183:3-7.

         At trial, Agent Guest testified that he visited the home of an individual named Laron Greenfield because an IP address from a device used to engage in the fraudulent activity at issue in the case was associated with his house. Trial Tr. Vol. IV, at 16:10-24, ECF No. 133. There, Guest showed Greenfield four photographs of Barrie and one of another subject, and Greenfield indicated that he recognized Barrie, who he explained lived at or frequented the house next door to his. Id. at 17:15-18:5, 19:24-23:17. During Guest's testimony, the Government also introduced a chart that summarized the relationship between various IP addresses in the case and residences associated with each address, Trial Tr. Vol. III, at 127:13-18, ECF No. 133, and Guest, who helped create the chart, testified as to his role in distilling information from several trial exhibits into the chart and was available for cross-examination, Trial Tr. Vol. IV, at 59:23-61:17.

         Based in part on the facts gleaned from Agents Guest and Conner's interview with Barrie and Greenfield's testimony concerning Barrie's presence at the house where online aspects of the fraud were perpetrated, the jury convicted Barrie on all counts. Verdict Form. I sentenced Barrie to 112 months and 1 day for the offenses. Judgment 2. This sentence was comprised of two concurrent 64-month sentences for the two wire-fraud counts and a consecutive 24-month sentence for the identity-theft count. Id. For each count, I also assessed an additional consecutive sentence because Barrie committed the offenses while on pretrial release. Id. These additional sentences were for twelve months for each of the wire-fraud counts and one day for the identity theft count. Id.

         Following sentencing, Barrie filed a Fed. R. Crim. P. 33 Motion for New Trial in which he argued, among other things, that (1) his statements during his interview with Agents Guest and Conner should have been excluded as involuntary; and (2) that the summary chart should not have been admitted based on Agent Guest's testimony because he only reviewed but did not personally create the chart. Pet'r's Mot. New Trial ¶¶ 3, 6. With respect to both arguments, I rejected the Motion as rehashing arguments raised, heard, and resolved in the Government's favor in pretrial motions and at trial respectively. Mem. Op. & Order 6, 8.

         On appeal, Barrie argued that the Court erred by (1) admitting evidence of Greenfield's out-of-court identification; (2) admitting evidence of Barrie's prior fraud conviction in the Eastern District of Virginia; and (3) applying a sentence enhancement that was not justified by the evidence. United States v. Barrie, 629 F. App'x 541, 542 (4th Cir. 2015) (per curiam). The court rejected all three arguments and affirmed the conviction. Id. at 544.

         Standard of Review

         28 U.S.C. § 2255(a) permits a prisoner to file a motion to vacate, set aside or correct his sentence on the ground that it “was imposed in violation of the Constitution or laws of the United States.” The prisoner must prove his case by a preponderance of the evidence. Brown v. United States, Civil No. DKC-10-2569 & Criminal No. DKC 08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). If the court finds for the prisoner, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         Discussion

         Barrie challenges his conviction on Sixth Amendment grounds, arguing that he received ineffective assistance of counsel during trial, sentencing, and on appeal. Pet'r's Mem. 3. Ineffective-assistance-of-counsel claims are governed by Strickland v. Washington, 466 U.S. at 668 (1984), and its progeny. To satisfy the Strickland standard, a petitioner must prove: (1) “that counsel's performance fell below an objective standard of reasonableness”; and (2) that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 669, 688. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Id. at 689 (citation omitted). This presumption is so strong that a petitioner alleging ineffective assistance of counsel must show that the proceeding was rendered “fundamentally unfair” by counsel's affirmative omissions or errors. Id. at 696.

         Importantly, counsel has a duty to “conduct a ‘reasonably substantial investigation' ” into possible lines of defense, but a reviewing court must accord “deference to counsel's informed decisions, [and] strategic choices must be respected . . . if they are based on professional judgment.” Id. at 680 (quoting Washington v. Strickland, 693 F.2d 1243, 1252 (5th Cir. 1982)). A petitioner may raise a Sixth Amendment claim based on trial counsel's “fail[ure] to contact and interview important prospective witnesses, especially when they were readily available or had been identified by the defendant prior to trial.” Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998). But “failure to investigate everyone whose name happens to be mentioned by the defendant does not suggest ineffective assistance.” Id.

         On appeal, it is presumed “that appellate counsel ‘decided which issues were most likely to afford relief on appeal.' ” United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014) (quoting Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)). Accordingly, constitutionally defective appellate representation only occurs where appellate counsel ...


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