USA v. Lowe

United States v. Lowe 	Case No. 3:17-cr-00133-RRB
Order Denying Motion to Vacate Conviction 	Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DANNY RAY LOWE,
Defendant.
Case No. 3:17-cr-00133-RRB
ORDER DENYING MOTION TO
VACATE CONVICTION
I. 	INTRODUCTION
Before the Court at Docket 160 is Defendant, Danny Ray Lowe, with a pro
se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in 	Federal 	Custody, 	which 	was 	supplemented 	by 	counsel 	at 	Docket 	166 	with 	a
Supplemental Motion to Vacate. In both his initial motion and in the supplemental motion,
Defendant asks that his convictions in this matter be vacated based on several instances of
ineffective assistance of trial counsel. 	The Government opposes at Docket 179 and
Defendant replies at Docket 180.
The United States Court of Appeals for the Ninth Circuit upheld Defendant’s
convictions at Docket 142.
At Docket 179-1, Defendant’s trial attorney filed an affidavit addressing
many of the matters in question.
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United States v. Lowe 	Case No. 3:17-cr-00133-RRB
Order Denying Motion to Vacate Conviction 	Page 2
Defendant’s pro se motions were timely filed and will be addressed herein.
While the additional claim of ineffective assistance of counsel raised in the Supplemental
Memorandum does not appear to be timely, Defendant’s argument for equitable tolling
may have some merit. Therefore, in an abundance of caution, the Court will address this
issue on its merits as well.
II. 	LAW
In analyzing Defendant’s ineffective assistance of counsel claims, the Court
looks to the two threshold requirements necessary to advance such a claim as set forth in
Strickland 	v. 	Washington.1 	Specifically, 	Defendant 	must 	establish 	that 	counsel’s
performance was deficient, and that the deficiency prejudiced the defense. 	Moreover,
Strickland provides that, in evaluating trial counsel’s conduct, one must be highly
deferential to the trial attorney’s judgments. Here, as the Government clearly points out in
its opposition memorandum, Defendant has failed to show a deficiency on the part of trial
counsel, or any prejudice to Defendant as a result thereof.
III. 	DISCUSSION
Defendant’s 	first 	pro 	se 	claim, 	that 	trial 	counsel 	failed 	to 	object 	to
Agent Goeden’s expert opinion as to entrapment, 	is not borne out by the record.
Agent Goeden did not testify as an expert and did not opine one way or the other regarding
this issue. 	There was nothing, therefore, for trail counsel to object to. 	Moreover, the
1 466 U.S. 668 (1984).
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United States v. Lowe 	Case No. 3:17-cr-00133-RRB
Order Denying Motion to Vacate Conviction 	Page 3
decision to not highlight this portion of the Agent’s testimony was a tactical one that would
not rise to the level of ineffectiveness of counsel or prejudice the defense.
Defendant’s second pro se claim that trial counsel was ineffective by not
objecting to the testimony of married couple Special Agent Goeden and Detective Torres
also is without merit. 	There is nothing improper with married couples testifying in the
same trial, providing their testimony is competent, material, and relevant. 	Moreover, the
jury was clearly advised of the relationship between these two witnesses and instructed
regarding the factors it could consider in evaluating witness testimony. 	Defense counsel
cannot be criticized for failing object to otherwise legitimate witnesses, or to address the
matter more than he did at trial. Nor is there any reason to believe that the relationship of
these two witnesses prejudiced the defense in any way.
Defendant next argues in his pro se complaint that trial counsel was deficient
in failing to locate, or produce at trial, AT&T records revealing exculpatory evidence. Trial
counsel, however, had all the AT&T records that were in the Government’s possession and
made efforts to locate additional records from AT&T, but without success. 	There is no
evidence that additional texts or exculpatory evidence existed, or that anything more could
have been done to locate them. Moreover, trial counsel’s decision to not present the AT&T
records that he did have to the jury clearly was tactical, for there is no evidence to suggest
that the production of these records would have advanced Defendant’s case in any way.
The last argument Defendant raises in his pro se complaint is that trial
counsel was ineffective by failing to object to the four counts charged as multiplicitous.
Given the uncertainty of the law on this issue, one cannot conclude that trial counsel’s
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United States v. Lowe 	Case No. 3:17-cr-00133-RRB
Order Denying Motion to Vacate Conviction 	Page 4
failure to object was so out of line with acceptable practice that it could be considered
ineffective. 	Importantly, however, there is nothing to indicate that Defendant was
prejudiced as a result of the manner this matter was charged, especially given the weight
of the Government’s evidence.
In the Supplemental Motion, filed at Docket 166, Defendant raises an
additional claim of ineffective assistance of counsel, and contends that defense counsel was
ineffective by not challenging jury instructions regarding the necessary “mens rea” at the
time of committing the crimes in question. Instead of instructing that Defendant “intended
to attempt” to commit the underlying crimes, as Defendant would now have the Court do,
the Court instructed the jury that it must find that the Defendant must have “knowingly
attempted” to commit the crimes. 	On its face, however, this appears to be a distinction
without a difference. Here, the crimes charged against Defendant were crimes of attempt.
The jury was instructed that it must find that Defendant “knowingly attempted” to commit
several crimes as opposed to “intended to attempt” to commit the crimes. 	The phrases
“knowingly attempted” and “intended to attempt” are nearly synonymous and, in the
context used here, both indicate a deliberate and intentional act or course of conduct and
the absence of ignorance, mistake, or accident. 	The phrase “knowingly attempted” that
was used by the Court appears to be a much cleaner way of expressing the same principle
and could not reasonably be expected to have confused the jury. 	Defense counsel,
therefore, cannot be faulted for his agreement with this language. 	And, again, given the
overwhelming evidence against Defendant as to his intentions, in contrast to his trial
testimony, which the jury discounted, this language was not prejudicial. 	Moreover, and
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United States v. Lowe 	Case No. 3:17-cr-00133-RRB
Order Denying Motion to Vacate Conviction 	Page 5
importantly, a modification of the instructions that Defendant now seeks likely would not
have changed the outcome of the trial.
IV. 	CONCLUSION
Therefore, for the reasons set forth above, as well as the reasons set forth by
the Government at Docket 179, both the Pro Se Motion to Vacate, Set Aside, or Correct
Sentence, at Docket 160, as well as the Supplemental Motion to Vacate Sentence, at
Docket 166, are hereby DENIED.
Furthermore, the Court concludes that the claims presented are substantially
without merit and warrant summary dismissal. 	Therefore, a hearing is not necessary or
required.
V. 	CERTIFICATE OF APPEALABILITY
After a thorough review of the issues raised, the Court finds that Defendant
has not made a substantial showing of the denial of a constitutional right as required by
18 U.S.C. § 2253 (a)(2) as to his pro se claims. 	Therefore, a Certificate of Appealability
will not issue as to these.
The Court will issue a Certificate of Appealability as to the Supplemental
Motion regarding the propriety of the jury instructions given as to the issue of intent.
IT IS SO ORDERED this 10th day of November, 2022, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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