United States v. Cross, 249 F. Supp. 3d 339

Background

In 2011 a jury convicted Elohim Bey Cross of conspiring to distribute ≥1 kg of heroin; he was sentenced to 20 years due to a §851 enhancement based on a 2007 Maryland drug conviction.
Government’s primary evidence of quantity was co-conspirator Mouloukou Toure’s testimony that he sold Cross approximately 1.2–1.3 kg of heroin; no other witness corroborated that specific quantity.
The defense had received an FBI “Operation Prizefighter: Drug Analysis Summary Chart” in discovery showing recovered quantities (e.g., 623.4 g from controlled buys, 944.3 g from Toure’s stash, ~22 g from Cross) that, when reconciled with Toure’s testimony, made Toure’s 1.2–1.3 kg claim difficult to reconcile.
Trial counsel possessed and annotated the chart but did not introduce it or use it to impeach Toure; counsel pursued a strategy emphasizing Cross’s limited role or a buyer-seller relationship with Toure.
In a §2255 proceeding, the district court held an evidentiary hearing, found counsel deficient for failing to use the chart to challenge the drug-quantity element, and found that deficiency prejudiced the jury’s ≥1 kg finding; the court vacated Cross’s sentence and ordered further briefing on the conviction’s status.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not using the drug-quantity chart to impeach Toure	Cross: counsel had the chart, it undermined Toure’s 1.2–1.3 kg claim, failure was objectively unreasonable and prejudicial	Gov’t: amounts in chart would still be attributed to Cross as part of the conspiracy; using chart risked emphasizing conspiracy scope	Held: Counsel was deficient; omission not supported by sound strategy; prejudice shown as reasonable probability jury’s ≥1 kg finding would differ if chart used
Whether counsel was ineffective for not challenging the §851 enhancement via Carachuri-Rosendo principles	Cross: counsel should have invoked Carachuri-Rosendo to contest prior-conviction-based enhancement	Gov’t: Carachuri-Rosendo concerns INA/"aggravated felony" analysis and does not apply to §841(b)(1)(A) definition of "felony drug offense"	Held: Not deficient—Carachuri-Rosendo does not alter §841(b)(1)(A) analysis; raising the argument would be a losing one
Whether prosecution committed Napue misconduct by allowing false testimony about quantity	Cross: government possessed chart showing different quantities and knowingly allowed false testimony	Gov’t: chart does not prove Toure’s 1.2–1.3 kg statement false; multiple reasonable reconciliations exist	Held: Rejected—Cross failed to show Toure’s testimony was actually false or that government knew it was false
Remedy: effect of prejudice on conviction and sentence	Cross: sentence should be vacated and conviction reconsidered because quantity prejudice undermines mandatory-minimum enhancement	Gov’t: (not yet briefed as to effect)	Held: Sentence vacated because it rested on the prejudiced ≥1 kg finding; court ordered supplemental briefing on whether and how conviction should stand or be retried/reduced

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Massaro v. United States, 538 U.S. 500 (ineffective-assistance claims may be raised on collateral review)
Abney v. United States, 812 F.3d 1079 (counsel deficient when failing to pursue reasonable, potentially beneficial sentencing argument)
Saro v. United States, 24 F.3d 283 (conspiracy liability limited to reasonably foreseeable conduct in furtherance of the conspiracy)
Childress v. United States, 58 F.3d 693 (proper attribution of drug amounts depends on scope of defendant’s agreement)
Hart v. Gomez, 174 F.3d 1067 (failure to introduce records demonstrating innocence can be deficient performance)
Napue v. Illinois, 360 U.S. 264 (prosecutor may not knowingly use false testimony)
Burgess v. United States, 553 U.S. 124 (definition of "felony drug offense" for §841 enhancements)
Carachuri-Rosendo v. Holder, 560 U.S. 563 (interpretation of "aggravated felony" in INA context)