Opinion
7:19-CR-176-FL 7:19-CR-102-FL
05-16-2023
UNITED STATES OF AMERICA v. DAVID MILAM, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR., UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Defendant's motions to withdraw his guilty pleas entered in Case Nos. 7:19-CR-102, [DE-55], and 7T9-CR-176, [DE-40]. The Government filed a response in opposition to the motions, [DE-60], and Defendant filed a reply, [DE-62], An evidentiary hearing was held on February 8, 2023. For the reasons that follow, it is recommended that Defendant's motions to withdraw his guilty plea be denied.
The motion to withdraw guilty pleas and responsive briefing filed in the two cases are identical, and for ease of reference going forward the court will reference only the docket numbers in Case No. 7.19-CR-102-FL unless otherwise noted.
I. Background
Defendant was first charged in Case No. 7:19-CR-102-FL by criminal complaint, [DE-1], and was later indicted for possession of a firearm by a convicted felon on June 12, 2019, [DE-15], He was represented by Attorney Rosemary Godwin (“Godwin”) and pleaded guilty without a plea agreement on August 13, 2019. [DE-20]. A draft Presentence Investigation Report (“PSR”) was issued, objections were filed, a second draft was issued, and additional objections were filed. [DE-24, -27, -28, -31, -32]. Defendant's sentencing was delayed due to COVID-19, and then continued to October 5, 2021 on Defendant's motion. July 15, 2020 & Dec. 16, 2020 Text Orders; [DE-38]. On August 5, 2021, Godwin was allowed to withdraw from the case due to a conflict of interest that prohibited further representation. [DE-40]. Attorney Marshall Ellis (“Ellis”) entered an appearance, sentencing was continued, and the instant motion to withdraw guilty plea was filed on October 20, 2022. [DE-45, -48, -50, -52, -54, -55], Defendant was charged in a second case by criminal information on November 18, 2019, with conspiracy and possession with intent to distribute methamphetamine and heroin, and at the same time a plea agreement was filed. No. 7:19-CR-176-FL [DE-1, -5], Godwin also represented Defendant in this case, and he pleaded guilty pursuant to a plea agreement on January 15, 2020. [DE-6, -9]. The case then followed the same pattern as the first case, culminating in the filing of a motion to withdraw guilty plea on October 20, 2022. [DE-10 to -40], The court held an evidentiary hearing on February 8, 2023, at which Godwin testified regarding her representation of Defendant. [DE-67, -68], Godwin's testimony is not necessary to the disposition of the motions and, therefore, is not discussed.
On April 26, 2022, Defendant was indicted in a third case, No. 4:22-CR-25-FL, for assault on a federal officer. Defendant's arraignment is scheduled for the June 13, 2023 term of court. Mar. 6, 2023 Text Order.
II. Discussion
Defendant contends that (1) the Government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and his Fifth Amendment rights by failing to disclose a complete and accurate copy of a search warrant and accompanying affidavit that led to his arrest and seizure of the evidence that would have been used to prove his guilt in these cases; and (2) his prior counsel's failure to identify and correct the Brady violation deprived him of his Sixth Amendment right to effective assistance of counsel. Def.'s Mot. [DE-55] at 1-2. Defendant argues that at the very least he and prior counsel should have discussed and considered filing a motion to suppress the evidence obtained from the warrant under the theory that the affidavit in question failed to establish a nexus between the criminal activity being investigated and the place law enforcement wanted to search. Id. The Government contends Defendant knowingly and voluntarily entered guilty pleas with the competent advice of counsel and has failed to demonstrate any reason the court should permit the withdrawal of his guilty pleas. Gov't Resp. [DE-60] at 1-2.
Fed. R. Civ. P. 11(d)(2)(B) provides the general rule regarding withdrawing a guilty plea: “[a] defendant may withdraw a plea of guilty or nolo contendere after the court accepts the plea, but before it imposes sentence, if the defendant can show a fair and just reason for requesting withdrawal.” The defendant holds no absolute right to withdraw a guilty plea, United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003), and thus, bears the burden of demonstrating the fair and just reason for withdrawal, United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
A fair and just reason for withdrawal is “one that essentially challenges the fairness of the Rule 11 proceeding.” United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995) (internal quotation marks omitted). “The most important consideration in resolving a motion to withdraw a guilty plea is the evaluation of the Rule 11 colloquy at which the guilty plea was accepted,” as a Rule 11 proceeding “raises a strong presumption that the plea is final and binding” and “leaves a defendant with a very limited basis upon which to have his plea withdrawn.” Bowman, 348 F.3d at 414 (internal quotation marks omitted). The judgment of whether a fair and just reason exists is entrusted to the discretion of the district court. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Courts weigh a number of nonexclusive factors to determine whether the defendant has met his burden in order to grant withdrawal:
(1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.Id. Defendant contends that his plea was not knowing and voluntary and that he did not have the close assistance of competent counsel. Def's Mot. [DE-55] at 8-9.
1. Whether Defendant's Plea was Knowing and Voluntary
The first factor, whether the defendant has offered credible evidence that his plea was not knowing or otherwise not voluntary, weighs against Defendant. Defendant contends his plea was not knowing and voluntary based on a Brady violation, i.e., he lacked full discovery at the time he pleaded guilty. Id. at 9-11. The Government concedes that, due to a scanning error, the discovery produced to Defendant omitted certain pages from the search warrant and affidavit that authorized the search of Defendant's home and the seizure of evidence but disputes that a Brady violation occurred because it contends the missing pages were not material. Gov't's Resp. [DE-60] at 37.
Defendant does not challenge the sufficiency of the Rule 11 colloquy at either plea hearing.
The court need not decide this issue because even if Brady applies here, as explained below, there was no violation.
Brady only bars the suppression of material evidence. Walker v. Kelly, 589 F.3d 127, 137 (4th Cir. 2009). And evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” and a “‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).United States v. Runyon, 994 F.3d 192, 209-10 (4th Cir. 2021). Neither the Supreme Court nor the Fourth Circuit has determined whether Brady requires disclosure of exculpatory information in the guilty plea context, and there is a circuit split on the issue. See United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010), as amended (Feb. 9, 2010) (“To date, the Supreme Court has not addressed the question of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the guilty plea context.”); United States v. Bailey, No. CR CCB-16-267, 2022 WL 1451653, at *10 n.6 (D. Md. May 9, 2022) (recognizing a circuit split on the issue and noting that “the First, Second, and Fifth Circuits have also expressed doubts about whether the Brady right is active pretrial, specifically in the guilty plea context.”) (citations omitted). Where Brady has been applied in the context of withdrawal of a guilty plea due to newly disclosed evidence by the Government, “evidence is considered material where ‘there is a reasonable probability that but for the failure to produce such information the defendant would not have entered the plea but instead would have insisted on going to trial.'” United States v. Persico, 164 F.3d 796, 804-05 (2d Cir. 1999) (quoting United States v. Avellino, 136 F.3d 249, 255 (2d Cir.), reh 'g denied, 136 F.3d 262 (2d Cir. 1998). “This test is objective, involving an inquiry into the likely persuasiveness of the undisclosed information.” Id. at 805. Assuming, without deciding, that Brady is applicable here, Defendant has failed to demonstrate a Brady violation because the undisclosed evidence was not material.
Law enforcement obtained a search warrant from a state magistrate on May 22, 2019 for Defendant's residence at 1417 Old Folkstone Road, Sneads Ferry, North Carolina. The application for the search warrant stated that on May 22, 2019, law enforcement was conducting surveillance operations on known locations of members of the Arian Kings, a white supremacy gang, and one of the locations was the residence of Defendant, the leader of the Arian Kings. The Arian Kings are known for their involvement in drug distribution and the use of violence and intimidation, and law enforcement had received anonymous complaints from citizens of Sneads Ferry. On May 22, a detective was positioned to observe vehicles coming and going from 1417 Old Folkstone Road and observed a maroon Chevy Colorado arrive at Defendant's residence carrying furniture in the tuck bed. Two white males identified as Brian Pearce and Joshua Pratt exited the vehicle, entered the residence, returned to the vehicle with a third unidentified white male, and carried furniture from the truck to behind the house, and Pearce and Pratt then left in the truck, all in a span of approximately ten minutes. Law enforcement ran the truck's license plate and determined it expired in 2018, and officers initiated a traffic stop. Pratt, the driver, did not have a license, and Pratt and Pearce were directed to exit the vehicle. An officer saw a pack of cigarettes on the ground between Pearce's feet and when the officer picked it up Pearce said they were his and asked if he could get one. The officer opened the pack and located a bag of suspected crystal methamphetamine. Ex. 4 [DE-55-4] at 10.
During the traffic stop of the Chevy Colorado, other surveillance units observed a silver Lincoln Navigator leaving 1417 Old Folkstone Road. Officers determined that the license plate was registered to the vehicle but the vehicle was not insured. A deputy pulled behind the Navigator, which then ran a stop sign, and the deputy activated blue lights and sirens after which the Navigator stopped. Defendant was driving the Navigator and Robert Harmer was a passenger in the front seat. Harmer was asked if he had anything that could stick the detective, and Harmer indicated he had a speaker in his pocket, which the detective located during a Terry frisk. The detective removed the item, heard objects rattling inside it, opened the speaker, and discovered a syringe containing suspected heroin and a spoon. Defendant was removed from the vehicle, and the detectives conducted a search for other narcotics. A black bag containing a large amount of cash, marijuana, and packaging materials was found inside the vehicle, and Defendant claimed the bag. The application also stated, based on training and experience, that it was common for persons involved in the illegal drug trade to secret caches of drugs and large amounts of currency within their residences. The affiant stated that based on the information provided he believed illegal controlled substances were kept at 1417 Old Folkstone Road and requested a search warrant. Id. at 8, 11.
When the Government produced discovery to Defendant, every other page was missing from the search warrant and application. Compare Ex. 2 [DE-55-2], with Ex. 4 [DE-55-4]. With respect to the investigative information, the page that contained information regarding the surveillance of Defendant's residence, the Arian Kings, and the stop of the Chevy Silverado was omitted. Defendant suggests that a review of the entire search warrant and application reveals there was an insufficient nexus between the illegal activity involving the two vehicles and Defendant's residence, and “there is a reasonable probability that his case would have proceeded differently had the evidence from the warrant been excluded.” Def.'s Mot. [DE-55] at 14-15. Defendant gets the test wrong. The question is not whether a successful motion to suppress evidence from the search would have changed the result; instead, the court must determine whether “but for the failure to produce [the suppressed] information the defendant would not have entered the plea but instead would have insisted on going to trial.” Persico, 164 F.3d at 804-05. The undisclosed evidence here only strengthens the ample probable cause supporting a search of Defendant's residence and is decidedly not material because there is no reasonable probability that Defendant would have proceeded differently by not pleading guilty and pursuing a suppression motion had the evidence been disclosed.
“[A]n affidavit should establish a connection between the defendant and the property to be searched and a link between the property and any criminal activity.” United States v. Harper, No. 7:20-CR-131-FL-l, 2022 WL 1138032, at *5 (E.D. N.C. Apr. 18, 2022) (citing United States v. Gibson, 708 F.3d 1256, 1278 (11th Cir. 2013); United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993)). However, “a sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant ‘contains no factual assertions directly linking the items sought to the defendant's residence.'” United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (quoting United States v. Servance, 394 F.3d 222, 230 (4th Cir. 2005)). As such, “probable cause can be inferred from the circumstances, and a warrant is not invalid for failure to produce direct evidence that the items to be seized will be found at a particular location.” Harper, 2022 WL 1138032 at *6 (quoting Lalor, 996 F.2d at 1582 & citing United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (“[T]he nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.”)).
Here, according to the information contained in the search warrant and application, law enforcement observed the Chevy Colorado leaving Defendant's residence and during a traffic stop located what was believed to be crystal methamphetamine in possession of one of the passengers who had just prior to the stop been in Defendant's residence. Law enforcement then stopped Defendant's vehicle just after it left his residence and discovered a bag, of which Defendant claimed ownership, containing marijuana, packaging materials, and a large amount of cash. The affidavit indicated that Defendant was the leader of the Arian Kings, a gang known for drug distribution, and Defendant's vehicle was stopped after leaving his residence and contained a bag with drugs, drug packaging materials, and cash. The Fourth Circuit has held that “it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key.” Grossman, 400 F.3d at 218. The indirect evidence presented in the search warrant application provides a sufficient nexus between the criminal activity associated with the vehicle stop that was indicative of drug dealing and the items to be seized from Defendant's residence, namely illegal drugs, large sums of money, and weapons. See UnitedStates v. Morgan, No. 5:21-CR-00341-M, 2021 WL 5570115, 8 at *3 (E.D. N.C. Nov. 24, 2021) (recognizing that “[i]n numerous cases the Fourth Circuit has confirmed that it is reasonable to search the residence of an individual suspected of drug activity for evidence of drug activity,” and finding probable cause supported a search warrant for defendant's residence where officers watched defendant leave his residence until they conducted a traffic stop, smelled marijuana, and discovered marijuana, a large amount of small bills, and drug packaging material).
The case of United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993), relied on by Defendant, is distinguishable. In Lalor the search warrant for the residence was based on information from two confidential informants who claimed to have purchased drugs from the defendant in the area of the residence to be searched. Id. at 1579-80. The Lalor court found that the affidavit failed to describe circumstances that would indicate drug evidence would be found at the defendant's residence and did not explain the geographical relationship between the area where the drug sales occurred and the residence to be searched. Id. at 1582-83. Here, the evidence recounted above is more than sufficient to establish a nexus between the criminal activity and the residence where law enforcement observed Defendant's vehicle leaving his residence, conducted a traffic stop, and discovered a bag containing marijuana, packaging material, and a large amount of cash.
The search warrant for Defendant's residence was issued on a strong showing of probable cause that drugs and other evidence of drug dealing would be found at the residence. The omitted pages of the search warrant and application were not “material” for purposes of Brady because there is no reasonable probability that had the missing pages been disclosed to the defense, the result of the proceeding would have been different, i.e., the Defendant would have filed a suppression motion and gone to trial rather than pleading guilty. There was no Brady violation and no grounds to find that Defendant's guilty pleas were anything but knowing and voluntary. See United States v. Rayford, 552 Fed.Appx. 856, 860 (10th Cir. 2014) (affirming district court's denial of motion to withdraw guilty plea based on alleged Brady violation where the defendant's Brady claim was fatally flawed). Accordingly, this factor does not support withdrawal of Defendant's guilty pleas.
2. Whether Defendant has had the Close Assistance of Competent Counsel
Defendant contends that his guilty pleas were entered without the close assistance of competent counsel based on counsel's failure to identify the Government's omission of pages from the search warrant and application and failure to analyze the search warrant and application for Fourth Amendment issues and to discuss this with Defendant. Def's Mot. [DE-55] at 11-15. The Government argues that former counsel negotiated favorable plea agreement terms for Defendant, and the allegations do not support an inference that counsel's work fell below the required standard or prejudiced Defendant. Gov't's Resp. [DE-60] at 8-12.
The familiar two-part test from Strickland v. Washington 466 U.S. 668 (1984) applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). First, the defendant must show that his counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 58-59; Strickland, 466 U.S. at 687-88. Second, “in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Strickland, 466 U.S. at 697 (explaining “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” or “to address both components of the inquiry if the defendant makes an insufficient showing on one”).
Defendant's claim that he lacked the close assistance of competent counsel fails because he has failed to demonstrate prejudice from counsel's alleged deficient performance. Defendant argues that counsel's performance was deficient for failing to request the full search warrant and application and failing to assess and discuss with Defendant whether there was a viable Fourth Amendment suppression argument that could be asserted. As explained above, a review of the full search warrant and affidavit demonstrates that the search warrant issued on a strong showing of probable cause. Thus, Defendant has failed to demonstrate there is a reasonable probability that had counsel obtained the full search warrant and affidavit, Defendant would have pursued a baseless suppression motion and gone to trial rather than pleading guilty. See United States v. Odom, No. 5:20-CR-149-D, 2021 WL 3729956, at *10 (E.D. N.C. Aug. 23, 2021) (rejecting argument that defendant lacked the close assistance of competent counsel based on counsel's failure to review traffic stop footage and file a motion to suppress where the court reviewed the footage and found a motion to suppress would have been baseless), aff'd, No. 21-4685, 2023 WL 34188 (4th Cir. Jan. 4, 2023).
This conclusion is bolstered by the favorable plea agreements negotiated by defense counsel. The Government points out that as a result of Defendant's agreement to plead guilty he was not charged under 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a drug trafficking offense, which would have carried a mandatory consecutive sentence to any other sentence, and he was given a favorable drug weight stipulation that reduced his exposure for relevant conduct from a level 38 to 32. Gov't's Resp. [DE-60] at 10. In United States v. Lovo-Serrano, the court rejected the argument that a defendant did not have the close assistance of competent counsel where during the Rule 11 colloquy the defendant indicated he was satisfied with his counsel, the record demonstrated that counsel negotiated favorable terms in the plea agreement, the legal argument the defendant asserted that counsel should have raised was flawed such that it was not plausible to infer that counsel provided deficient performance by failing to advise the defendant about it, and the defendant failed to demonstrate it was reasonably probable that he would have insisted on going to trial based on the flawed legal argument. No. 5:21-CR-398-FL-l, 2023 WL 1863164, at *6 (E.D. N.C. Feb. 9, 2023). Similarly here, Defendant stated during the Rule 11 colloquy that he was satisfied with Godwin's advice and counsel, Defendant's counsel negotiated favorable terms in the plea agreement that significantly reduced his sentencing exposure, the legal argument Defendant suggests counsel should have pursued was weak, and Defendant has not demonstrated a reasonable probability that had counsel obtained the missing pages he would had insisted on filing a suppression motion and going to trial rather than pleading guilty. Accordingly, Defendant's argument fails for lack of prejudice, and this factor does not support withdrawal of Defendant's guilty pleas.
3. Remaining Withdrawal Factors
Defendant does not make specific arguments regarding the remaining factors identified in Moore, and the court finds they are neutral or weigh against allowing Defendant to withdraw his guilty pleas.
First, Defendant has not asserted his legal innocence, and this factor weighs against withdrawal.
Second, while the delay in filing the motions to withdraw was substantial (more than three years in one case and nearly three years in the other), the basis for Defendant's motions was not discovered until new counsel appeared in the case and from that point the motions were filed reasonably promptly. Thus, the delay factor is neutral.
Third, the Government asserts persuasive reasons that it would be prejudiced by Defendant's withdrawal of his guilty pleas. During the more than two years the Government relied on Defendant's guilty pleas it has allowed to proceed the sentencings of other defendants who might be needed to testify at Defendant's trial, and those other defendants may now be unwilling to testify. Additionally, if this case goes to trial it will be several years after the events at issue occurred, which could further impact the reliability of witness testimony. Accordingly, this factor weighs against withdrawal.
Finally, as to inconvenience to the court and waste of time and judicial resources, this factor is at best neutral.
Having considered the relevant factors, Defendant has failed to carry his burden to demonstrate a fair and just reason for withdrawing his guilty pleas. Accordingly, it is recommended that the motions be denied.
III. Conclusion
For the reasons stated herein, it is recommended that Defendant's motions to withdraw his guilty pleas, 7:19-CR-102, [DE-55], and 7:19-CR-176, [DE-40], be denied.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 30,2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).