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United States v. Dawson

argued: June 20, 1988.

UNITED STATES OF AMERICA
v.
LONNIE DAWSON



Appeal from the United States District Court For the Eastern District of Pennsylvania, D.C. Criminal No. 82-00128-01, District Judge, Honorable Louis C. Bechtle.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge:

1. Appellant Lonnie Dawson seeks review of a district court order denying his motion to vacate or modify his sentence. He petitioned the district court under 28 U.S.C. § 2255, claiming that his trial counsel was ineffective for failing to call or interview several potential witnesses. Appellant argues that the district court erred in denying his motion without first conducting a hearing on the issue. We have jurisdiction under 28 U.S.C. § 1291. Because we agree that at least some of appellant's allegations raise a substantial challenge to his convictions, we will remand to the district court for a hearing.

I.

2. April 14, 1982, appellant Dawson was indicted on charges related to the distribution of narcotics and the attempted shooting of a federal informant. Specifically, he was convicted of engaging in a continuing criminal enterprise, distribution of heroin and methamphetamine, use of a telephone in distribution, obstruction of justice and conspiracy to violate civil rights. His codefendants were William Hoskins, with whom he allegedly ran the distribution enterprise, and Robert Hardwick and Kenneth Shank, who worked for appellant and Hoskins.

3. The government's case rested principally on recordings and wiretaps. and the testimony of Lawrence Simons. Simons testified that, after his release from prison, he worked at a convenience store operated by appellant and Hoskins, and also carried drugs and money for them. Simons testified that, as part of his illegal activities, he sometimes delivered narcotics to Michael Johnson. After Simons became an informant in 1982, he was "wired" several times for meetings with appellant, including one on February 23, 1982. Simons testified that he met appellant at the home of appellant's girlfriend, Yasmin Rollins, then went to another location to receive narcotics. Government agents confirmed that the meeting took place. A recording of the meeting supports Simons' testimony. Additionally, appellant's fingerprints were identified on narcotics delivered two weeks later.

4. Simons also testified to an incident which occurred on April 4-5, 1982. Simons and appellant met a third man at a bar, who showed them large quantities of methamphetamine stored in an upstairs room. Simons also had a photograph of himself, appellant and the third man taken at the bar. They were also joined by Robert Hardwick and James Watt, an unindicted coconspirator. Simons was wearing a transmitter and was carrying marked money, most of which he said he had given to appellant. DEA agents testified that saw Simons and appellant, heard their conversation on the transmitter, and saw Simons and appellant leave the bar around one a.m. (There is no recording available since the agents had used up the tapes before the pair arrived at the bar.) Outside the bar, the agents attempted to contact Simons. Simons, believing appellant had observed the contact, left the area.

5. A state police officer testified that, at 1:20 a.m., he saw three men in a car. The car matched the description of that driven to the bar by Hardwick and Watts. One man was wearing an overcoat. Another got out of the car and the car drove off. The officer approached the man who remained, who identified himself as Watts. Watts was carrying the bulk of the marked bills.

6. Several witnesses testified that they saw two men together, not just one, during and after the chase. Simons testified that, while driving early that morning, he was chased by two men in a large black car and shot at. The chase ended when the pursuing car struck a telephone pole. Simons testified that, based on seeing the relative sizes of the two pursuers, they were Hoskins and Watts. A resident testified that, at 4:00 a.m., he heard the crash and saw two men leave the site, one wearing a long coat, and walk in the direction of Chester, Pennsylvania. A waitress at a Chester restaurant about two miles away from the crash site testified that two men entered at about 4:45 a.m., one wearing a light-colored jacket. They ordered sandwiches and one used the phone. They left in a dark car which had pulled up in front of the restaurant. At the trial, the waitress tentatively identified appellant as one of the two men, and confirmed that she had made a prior identification of him from photographs. The government also recorded a call that morning to Hoskins, allegedly from appellant, referring to the chase. Hoskins reported the car stolen at 4:50 a.m.

7. A second call later that morning was made to Rollins, allegedly by appellant. The caller asked Rollins to meet him at a local Sheraton and "bring us a hit". At the Sheraton, federal agents arrested appellant and Hardwick hiding in the back of Shank's car. Rollins was arrested also. A gun was found in her pocketbook.

8. Appellant was convicted on November 1, 1982, by a federal jury. He was sentenced to 134 years in prison and fined $230,000. After the conviction was affirmed on appeal, he moved for a reduction of sentence. On January 23, 1985, the district court reduced appellant's sentence to 65 years in prison -- 50 on the CCE charge, 10 on the civil rights charge and 5 for obstruction -- and reduced the fine to $100,000. August 12, 1986, appellant filed a petition to modify, reduce or set aside his sentence under 28 U.S.C. § 2255.

II.

A.

9. The petition alleges that appellant's trial counsel, Mr. Preminger, failed to call or even interview several prospective witnesses. He alleges that Preminger failed to interview Michael Johnson, though appellant told him to. A federal agent testified that he had made recordings of conversations between Johnson and appellant related to narcotics transactions, which were part of the indictment. In an affidavit, Johnson states that he was prepared to testify that he had no illegal dealings with appellant, and that the conversations actually were between Johnson and Freddie Rollins. (Freddie Rollins, Yasmin's brother, died two months before the trial.) Johnson himself ...


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