United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
This case stems from an undercover investigation of a "small time criminal ring" operated by Donald Steele and defendant Randy J. Dyke. See United States v. Dyke, 718 F.3d 1282, 1284 (10th Cir. 2013). The government began its investigation into Mr. Steele and Mr. Dyke's activities after Kelly Findley, a cooperating individual hoping to receive some consideration in his own case, introduced Detective Brian Clemmons (acting undercover) to Mr. Steele and Mr. Dyke at Mr. Steele's residence in Lawrence, Kansas. Mr. Steele's residence was known as "the Farm" and the vast majority of undercover operations that occurred between November 2009 and February 2010 occurred at the Farm. Ultimately, undercover agents convinced Mr. Steele and Mr. Dyke to expand their operations from "forging checks, peddling pills, and selling marijuana" to counterfeiting currency and manufacturing methamphetamine. See id.
In July 2011, a jury rejected Mr. Dyke's entrapment defense and convicted Mr. Dyke of conspiracy to counterfeit Federal Reserve Notes; conspiracy to intentionally manufacture, distribute and possess with intent to distribute more than 50 grams of methamphetamine, and to distribute hydrocodone, methadone and marijuana; possession with intent to distribute methamphetamine; and distribution of hydrocodone and methadone. This court rejected Mr. Dyke's subsequent motion for judgment notwithstanding the verdict or, in the alternative, for a new trial and sentenced Mr. Dyke to 235-month term of imprisonment. The Tenth Circuit affirmed Mr. Dyke's conviction. United States v. Dyke, 718 F.3d 1282 (10th Cir. 2013).
This matter is now before the court on Mr. Dyke's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 323). In his § 2255 motion, Mr. Dyke contends that his lawyer rendered constitutionally deficient representation that prejudiced Mr. Dyke. He also requests a reduction in his sentence pursuant to Amendment 782. As will be explained, the court denies each of Mr. Dyke's § 2255 claims, denies Mr. Dyke's request for an evidentiary hearing, and denies without prejudice to refiling Mr. Dyke's request for a sentence reduction pursuant to Amendment 782 while the Federal Public Defender's office makes an initial determination of whether Mr. Dyke qualifies for relief under the Amendment.
In his motion, Mr. Dyke asserts claims of ineffective assistance of counsel based on his counsel's failure to review with Mr. Dyke prior to trial the audio and video recordings relied upon by the government at trial; his counsel's failure to call any witnesses at trial on Mr. Dyke's behalf; his counsel's failure to insist upon a voluntary intoxication instruction and to adequately argue that impairment to the jury; and his counsel's failure to present mitigation evidence at the sentencing hearing. Mr. Dyke also makes an additional claim of cumulative error. "To establish ineffective assistance of counsel, a defendant must show that counsel's representation fell below an objective standard of reasonableness' and that he was prejudiced by the deficient performance." United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Applying this standard to Mr. Dyke's claims, the court rejects each of those claims without the need for an evidentiary hearing.
Failure to Review Undercover Audio Recordings
For his first claim, Mr. Dyke contends that he received ineffective assistance of counsel because his counsel, prior to trial, failed to review with Mr. Dyke the numerous undercover audio recordings relied upon by the government at trial (and taken from a body wire worn by Detective Clemmons). On these audio recordings, the jury heard Mr. Dyke speaking clearly and coherently with the undercover team about his criminal plans and activities. According to Mr. Dyke, if his counsel had reviewed these recordings with him prior to trial, Mr. Dyke would have been able to defend against those recordings by challenging the authenticity of the recordings such that the recordings would not have been admitted into evidence. According to Mr. Dyke, the recordings were altered through the omission of Mr. Dyke's purported statement, on one occasion, to the undercover team that he "wanted nothing to do with drugs."
This claim is rejected. To begin, Detective Clemmons' testimony at trial was sufficient to authenticate the recordings and to support admission under Federal Rule of Evidence 901. See United States v. Haley, 496 Fed.Appx. 771, 773 (10th Cir. 2012). Any dispute over the reliability or accuracy of the recordings would go only to the weight of the evidence and would not have precluded admission of the evidence. United States v. Guang, 511 F.3d 110, 120 (2d Cir. 2007) (rejecting ineffective assistance claim that counsel unreasonably failed to challenge the authenticity of audio recordings; testimony of authenticating witness was sufficient to support admission and disputes over reliability or accuracy went to weight rather than admissibility). Thus, Mr. Dyke cannot show that he suffered any prejudice as a result of his counsel's purported failure to review the audio recordings with him prior to trial and any related failure to challenge the authenticity or admissibility of the recordings. Moreover, the alleged omission of the single statement identified by Mr. Dyke did not change the outcome of the trial in the face of overwhelming evidence of Mr. Dyke's guilt, including numerous audio recordings on which Mr. Dyke can be heard discussing his criminal plans and activities.
Finally, even assuming that Mr. Dyke did not have the opportunity to hear the audio recordings prior to trial, he obviously heard those recordings during the trial itself and could have, at that time, raised an objection if he believed that the recordings had omitted significant statements from Mr. Dyke to his detriment. Mr. Dyke, however, does not indicate that he attempted in any way to bring any inaccuracy in the recordings to his counsel's attention during the trial. For this reason, too, his ineffective assistance claim fails.
Failure to Call Witnesses at Trial
Mr. Dyke contends that he received ineffective assistance of counsel at trial when his counsel failed to call witnesses to testify on Mr. Dyke's behalf. Mr. Dyke avers that he provided a list of potential witnesses to his counsel and that these witnesses would have testified to the jury about Mr. Dyke's good character; that Mr. Dyke did not use illegal drugs; that Mr. Dyke did not own expensive cars, clothing or other items that a drug dealer might own; that they had no knowledge of Mr. Dyke engaging in the illegal activities outlined in the indictment; and that Mr. Dyke, a frequent and heaver consumer of alcohol, often appears sober and coherent even when he is intoxicated. Mr. Dyke avers that his counsel did not call these witnesses at trial despite the fact that Mr. Dyke provided him with a list of these potential witnesses during the pre-trial phase of the case.
Mr. Dyke cannot establish the requisite prejudice with respect to this claim because the proffered testimony would not have changed the outcome of trial. United States v. Edwards, ___ Fed.Appx. ___, 2014 WL 5438113, at *5 (10th Cir. Oct. 28, 2014) (rejecting failure-to-call-witnesses claim where proffered testimony would not have changed outcome of trial). The witnesses' purported lack of knowledge of Mr. Dyke's drug trafficking activities has no bearing on whether Mr. Dyke, in fact, sold drugs as the evidence overwhelmingly demonstrated at trial. This is particularly true when the evidence demonstrated that the vast majority of Mr. Dyke's unlawful conduct occurred at Mr. Steele's residence outside the presence of his family. Other issues on which these witnesses allegedly would have testified were simply not disputed by the government, such as the fact that Mr. Dyke did not use methamphetamine and did not live the "high-end" lifestyle of a drug dealer. Testimony as to these facts, then, would simply not have changed the verdict in this case. Finally, proffered testimony that Mr. Dyke often appears coherent and sober even when intoxicated would not be sufficient to permit the jury-despite audio and video evidence depicting Mr. Dyke as coherent and unimpaired-to conclude that Mr. Dyke was so intoxicated or impaired during the commission of the crimes charged that he could not form the requisite specific intent, thereby requiring a "not guilty" verdict. Significantly, in order for the jury to have found that Mr. Dyke's intoxication prevented him from forming the requisite intent required for a conviction, those witnesses would have needed to testify that Mr. Dyke was actually intoxicated and impaired during the commission of the crimes charged. Because none of the prospective witnesses was present during the commission of the crimes or was involved in the conspiracies charged in any way, these witnesses obviously could not testify to that fact. In other words, these witnesses could not provide any evidence that might allow the jury to conclude that Mr. Dyke was so mentally incapacitated at the pertinent times that he was unable to form the specific mental state required by the crimes charged. United States v. Rivera-Carrera, 386 F.ed Appx. 812, 816 (10th Cir. 2010). For these reasons, testimony that Mr. Dyke might appear sober when he is intoxicated is insufficient to change the outcome of trial.
Voluntary Intoxication Instruction and Defense
At trial, Mr. Dyke proffered an intoxication instruction explaining that the jury could consider evidence "of the defendant's intoxication in deciding whether the government has proved beyond a reasonable doubt that the defendant acted with the intent required to commit the crimes charged." The court declined to give this or any other intoxication instruction to the jury. Mr. Dyke challenged this decision in his motion for new trial and on appeal. The circuit held that Mr. Dyke failed to present sufficient evidence to create a triable question of voluntary intoxication and no evidence of a mental ...