United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Steven Miles Sullivan filed a pro se motion pursuant to 28 U.S.C. § 2255. Upon initial review, I dismissed all claims (Filing No. 116) save for Sullivan’s ineffective assistance of counsel claims regarding his trial counsel and his counsel on direct appeal, who was different than trial counsel.
I referred the matter to Judge Zwart to hold an evidentiary hearing. I appointed David Stickman, our Federal Public Defender, to represent Mr. Sullivan. Mr. Stickman personally handled this matter.
This was a jury case that took only two days to try. It was about “bath salts” and whether Sullivan knew that the “bath salts” he possessed were in fact a controlled substance analogue. After reviewing the § 2255 motion, I was particularly concerned with trial counsel’s failure to impeach a critical witness-a law officer who had stopped Sullivan’s vehicle-with a prior inconsistent statement given under oath about Sullivan’s knowledge and what Sullivan said during a traffic stop.
In essence, a deputy sheriff had testified at a suppression hearing that during a traffic stop, Sullivan had said “no” when asked whether he had anything illegal in his vehicle. However, at trial the officer left out the “no, ” giving the impression that Sullivan knew that the “bath salts” in the vehicle, which Sullivan openly acknowledged possessing when speaking with the officer, were a controlled substance analogue.
When I sent this matter to Judge Zwart, I observed that the Court of Appeals, while addressing the sufficiency of the evidence claim, repeatedly emphasized the importance of the trial testimony of this witness, not knowing that he had given an important inconsistent statement when testifying at a suppression hearing. United States v. Sullivan, 714 F.3d 1104, 1105 (8th Cir. 2013) (“According to Parsons, he had asked during the stop if there was anything illegal in the vehicle and Sullivan had responded that the vehicle contained bath powder. Trial Tr. 183.”).
The Court of Appeals stressed:
A reasonable juror could find Sullivan knew he was in possession of a controlled substance analogue. When Parsons asked Sullivan whether the vehicle contained anything illegal, Sullivan told him the vehicle contained bath powder. Trial Tr. 183. At the time of the arrest, the mephedrone in the powder was illegal only under the CSAEA as a controlled substance analogue. . . . Accordingly, Sullivan indicating the bath powder was illegal supports a reasonable inference he knew the powder contained a controlled substance analogue.
Id. at 1107 (emphasis added).
Judge Zwart conducted an evidentiary hearing. After that, she issued Findings and Recommendation (“F & R”) (Filing No. 141). She recommended that I deny and dismiss all the ineffective assistance of counsel claims. Sullivan has objected, and he has submitted a brief. The government has not responded. With one very important exception that I will discuss in detail, I adopt Judge Zwart’s F & R.
I now find and conclude that retained trial counsel, Mr. Glenn Shapiro, was ineffective when he failed to impeach a police officer, who was the critical witness, with a thoroughly inconsistent statement given under oath; that Shapiro had no, and now claims no, reason for failing to do so; and that the failure to impeach this witness substantially undermines confidence in the jury verdict. Accordingly, I will vacate the conviction and order the government to return to Sullivan the money forfeited to the government.
On October 27, 2010, late in the evening, Sullivan was driving to Lincoln, Nebraska, when he was stopped and arrested by Officer Jason Parsons. At trial, Parsons, who had arrested Sullivan, testified about the stop. According to Parsons’ trial testimony, he asked during the stop if there was anything illegal in the vehicle, and Parsons stated that Sullivan admitted that the vehicle contained “bath powders” and “K-2.”
During a subsequent search of the vehicle, Parsons seized, among other things, over $5, 000 in cash, a 3x5 plastic bag containing 397 grams of a white powder, 100 2x2 sealable plastic bags, and sheets of two different kinds of labels corresponding to the size of the small plastic bags. Pictures of the labels were submitted into evidence. The text on the first type of label read “Experience the Bliss . . . Deluxe Bath Powder.” The text on the second read “Pour 100-200 mg into Hot Bath. Kick back and Enjoy. Do not use more than ½ pack per bath. Experience the Bliss. . . . Products not for human consumption. Keep out of reach of children. Distributors not responsible for misuse of product.”
The white powder contained mephedrone, a chemical analogue of methcathinone. Methcathinone was at the time of the arrest, and remains, a Schedule I controlled substance. However, at the time of the arrest, Nebraska law did not prohibit the possession or sale of mephedrone. Mephedrone was, however, illegal at the time as a controlled substance analogue under the federal Controlled Substance Analogue Enforcement Act (CSAEA) to the extent distributors intended it for human consumption. 21 U.S.C. § 802(32).
The jury trial was short. The government’s case consisted of two chemists (one from the DEA and one from Nebraska), a DEA pharmacologist, an undercover cop from the Lincoln, Nebraska, police force, and Officer Parsons. Sullivan did not testify.
Parsons’ Testimony at Trial Was Inconsistent With His Sworn Pretrial Testimony
There is no question that Parsons gave inconsistent sworn testimony on a critical issue. At a pretrial hearing before Judge Zwart, Parsons testified this way:
A. . . . . I asked Mr. Sullivan if he had anything illegal . . . in his car.
A. And he said, “No, I just have K2 and some bath powder.”
(Filing No. 37, p. 30 (emphasis added).)
But, at trial, Parsons completely omitted the “no, ” and testified this way:
A. . . . . I asked Mr. Sullivan, I said, “Is there” -- “Do you have anything illegal in your car?” And Mr. Sullivan said, “I have K2.” . . .
Q. After he said, “I have K2”?
A. I said, “Is there anything else?”
Q. And did he respond?
A. And his response was, “Well, there’s bath powders.
. . .”
(Filing No. 104, pp. 182-83.)
Parsons clearly left the impression with the jury that Sullivan made an admission that he knew that “bath salts” were illegal. That was the government’s view too.
For example, in the brief filed with the Eighth Circuit Court of Appeals, the government argued that “the jury could reasonably infer the ‘bath powders’ which Mr. Sullivan admitted possessing when Deputy Parsons asked him if he had anything illegal in his car were intended to have the same effect on the human body as methcathinone, and were meant for human consumption . . . .” (Ex. 102, Br. of Appellee at 26, United States of America v. Sullivan, Case No. 12-1754, (8th Cir. Sept. 26, 2012) (Entry ID: 3957089) (emphasis added).)
Shapiro Had No Reason For Failing to Impeach Parsons
At the evidentiary hearing on the § 2255 motion, Shapiro gave no credible reason for not impeaching Parsons with the ...