Ellen L. Hollander, United States District Judge.
MEMORANDUM OPINION
Ellen L. Hollander, United States District Judge.
This Memorandum Opinion resolves a post-conviction petition filed pursuant to 28 U.S.C. § 2255, as well as a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), submitted by or on behalf of defendant Richard Anthony Wilford. In December 2013, a jury in the District of Maryland convicted Wilford of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. ECF 267. The Court sentenced Wilford to 340 months of incarceration. ECF 353; ECF 354. He is currently serving his sentence at FCI Victorville. See ECF 663 at 1.
Largely through appointed counsel, Wilford has filed a “Motion to Vacate or Correct Illegal Sentence.” ECF 546. It has twice been supplemented. ECF 615; ECF 659. I shall refer to ECF 546, ECF 615, and ECF 659 collectively as the “Petition.” The government has responded in opposition. ECF 640; ECF 673. And, Wilford has replied. ECF 650; ECF 674.
Wilford has also filed a pro se “Motion for a Reduction in Sentence Pursuant to the First Step Act and the Changes to the Compassionate Release Statute and 18 U.S.C. § 3582(c)(1)(A)(i).” ECF 595. It has been supplemented five times. ECF 602; ECF 606; ECF 622; ECF 635; ECF 663. I shall refer to ECF 595 and the five supplements collectively as the “Motion.” The government opposes the Motion. ECF 629.
The submissions are accompanied by various exhibits. In addition, Wilford has filed several other motions and submissions.
No hearing is necessary to resolve the motions. See 28 U.S.C. § 2255(b); Local Rule 105.6. For the reasons that follow, I shall deny the Petition, but I shall grant the Motion in part, reducing Wilford's sentence to 280 months of imprisonment.
I. Factual and Procedural Background
A. Indictment, Trial, Sentencing, and Appeal
On May 5, 2011, a federal grand jury in Maryland returned an Indictment against Wilford and five others: Lawrence Lee Hayes, Jr.; Bryan Eammon Williams; George Lamar Plunkett; Mark Anthony Hawkins; and Robert Nyakana. They were charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. ECF 1. According to the Indictment, the conspiracy spanned the period from August 2010 to May 2011. Id. A Superseding Indictment was filed on August 25, 2011, adding a forfeiture count. ECF 59; see also ECF 60; ECF 61.
An arrest warrant was issued for Wilford on May 5, 2011. ECF 6. Law enforcement authorities located Wilford in California in August 2011, and attempted to arrest him there, without success.
On August 8, 2011, while Wilford was still at large, the government filed a “Consent Motion to Exclude Time Pursuant to the Speedy Trial Act” (ECF 57), seeking to exclude time under the Speedy Trial Act, 18 U.S.C. § 3161, “for the period from the first initial appearance in the case (May 17, 2011) through to the final trial date to be set in this case.” ECF 57 at 7. By this point, four of Wilford's codefendants had been arrested. Id. at 1. The Court granted the motion. ECF 58.
Wilford was apprehended in Baltimore on September 16, 2011. On that date, he appeared before Magistrate Judge Beth Gesner for an initial appearance. ECF 64. At the hearing, he was represented by retained counsel, William B. Purpura, Jr. See ECF 291 at 1-3 (Tr. of Sept. 16, 2011). At that hearing, Purpura advised the court that the defendant had received a copy of the Indictment. Id. at 3. Judge Gesner then advised Wilford that he had been charged in a Superseding Indictment with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. She also informed him of the maximum penalty, if convicted; the mandatory minimum penalty, if convicted; and the forfeiture count. Id. at 3-4. The defendant indicated that he understood the charge and the possible penalty. Id. at 4. Thereafter, Judge Gesner advised the defendant of his rights. The defendant was sworn and, under oath, he stated that he understood “everything so far[.]” Id. at 5.
At the conclusion of the proceeding, Judge Gesner asked: “[D]o you want to do an arraignment while you are here?” ECF 291 at 7. Defense counsel responded: “I would ask not for this -- for a lot of reasons, but no.” Id.
Prior to trial, neither the government, Wilford, nor his lawyer ever called the Court's attention to the fact that no arraignment had been held. This certainly was not due to a general hesitancy to communicate with the Court. Indeed, during the pendency of the case, the Court held several scheduling conferences with counsel. See, e.g., ECF 69; ECF 86; docket entry of August 26, 2013; docket entry of August 27, 2013; ECF 234; ECF 244. Moreover, on several occasions, Wilford personally wrote to the Court and he filed pro se motions. See, e.g., ECF 197, ECF 198, ECF 202, ECF 203, ECF 208, ECF 235, and ECF 256. In addition, defense counsel filed numerous pretrial motions. See, e.g., defendant's “Motion to Suppress Tangible and Derivative Evidence” (ECF 92); “Defendant's Motion to Compel Disclosure of Promises of Immunity, Leniency, or Preferential Treatment and Disclosure of Exculpatory Information and Points and Authorities in Support Thereof” (ECF 93); “Motion for an Order Directing the Government to Provide Brady/Giglio/Jencks Material” (ECF 94); “Motion for Disclosure Pursuant to Fed.R.Evid. 404(b) and 609” (ECF 95); “Motion for Pretrial Procedures Regarding Recordings” (ECF 96); “Addendum to Motion to Suppress Tangible and Derivative Evidence Pursuant to Federal Rule 12(b)(3) and Request for a Franks Hearing” (ECF 97); “Supplemental and Consolidated Motion to Suppress Tangible and Derivative Evidence” (ECF 160); and “Motion for Disclosure of Relevant Evidence Withheld by the Government and Request for Immediate Hearing.” ECF 166. An additional submission is docketed at ECF 180.
In general, the suppression motion docketed at ECF 160 challenged evidence derived from surveillance conducted by law enforcement officers by means of Global Positioning System (“GPS”) tracking devices and court-authorized “pinging” of cellular phones. Relying on the Supreme Court's then-recent decision in United States v. Jones, 565 U.S. 400 (2012), which ruled that GPS tracking constitutes a search under the Fourth Amendment, Wilford maintained that the warrantless use of GPS tracking technology violated his Fourth Amendment rights. Additionally, Wilford asserted that, despite court authorization obtained under Maryland's pen register and trap and trace statute, Md. Code (2020 Repl. Vol., 2021 Supp.), §§ 10-4B-01 et seq. of the Courts and Judicial Proceedings Article, the pinging of his cellular phone was not authorized by the statute, and was conducted in violation of Maryland law and the Fourth Amendment. Thus, under the Fourth Amendment's exclusionary rule, Wilford sought to suppress evidence derived from the warrantless use of GPS and the cell phone pinging. Wilford also requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), challenging several search warrants obtained during the investigation.
In the motion docketed at ECF 166, Wilford sought evidence allegedly withheld by the government, including internal memoranda circulated by “various law enforcement agencies” pertaining to GPS tracking, in light of the decision in August 2010 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In that case, the court determined that the warrantless use of a GPS device to track a target vehicle's movements for 28 days constituted an illegal search under the Fourth Amendment. According to Wilford, these materials were relevant to ECF 160.
On January 13, 2013, the defense filed a “Motion to Withdraw Request for GPS Data,” because it had been provided by the government. ECF 171. I granted the motion. ECF 172.
The Court held a motions hearing on January 25, 2013. ECF 174. After the hearing in January 2013, counsel submitted supplemental briefing. See ECF 180 (defense); ECF 181 (government). Then, the Court held another motions hearing on March 8, 2013. ECF 182. And, on May 22, 2013, Wilford filed a pro se “Motion to Compel the Government to Disclose All Discovery That May Be Relevant and Material to Defendant's Defense.” ECF 197.
By Memorandum Opinion (ECF 205) and Order (ECF 206) of June 7, 2013, the Court denied the motion to suppress (ECF 160), but granted the motion for disclosure (ECF 166), in part. See United States v. Wilford, 961 F.Supp.2d 740 (D. Md. 2013), aff'd, 689 Fed. App'x 727 (4th Cir. 2017). I ruled that Wilford had no standing to challenge the GPS tracking and pinging of certain vehicles and cell phones. ECF 205 at 25-27. Furthermore, I concluded that because the government's warrantless use of GPS tracking devices preceded Jones, the government was entitled to rely on the good faith exception to the exclusionary rule, articulated in United States v. Leon, 468 U.S. 897 (1983). ECF 205 at 27-42. In the alternative, I found that suppression would be inappropriate under the doctrines of inevitable discovery and independent source. Id. at 43-45. As for the cell phone pinging, I concluded that, even assuming, arguendo, that pinging does not fall within Maryland's pen register statute, this did not supply a basis for exclusion; there was no Fourth Amendment violation. Id. at 45-54. And, I found that defendant had not met his burden for a Franks hearing. Id. at 54-61.
However, I found that Wilford was entitled to certain documents included within his request at ECF 166, and granted that motion in part. Id. at 21-25. And, my denial of ECF 160 was without prejudice to Wilford's right to renew his argument as to the inapplicability of the good faith defense as to the warrantless use of GPS trackers, based on documents that might be produced by the government in response to ECF 166.
In a letter docketed on June 25, 2013, Wilford wrote to the Court with complaints about his lawyer. ECF 208. He also expressed his disagreement with the Court's ruling in ECF 206. Based on Wilford's correspondence, the Court referred the matter to a magistrate judge for an attorney inquiry hearing. ECF 210; see also ECF 209. Magistrate Judge Gesner conducted that hearing on July 3, 2013. ECF 212.
Thereafter, Purpura remained as counsel and, on July 25, 2013, he filed a “Request to Reconsider Court's Order Denying Suppression and Request for Franks Hearing Based On New Discovery.” ECF 217. Defense counsel raised several issues as to cell phone pinging; sought a Franks hearing and reconsideration of the Court's good faith analysis based on an email produced by the government in response to ECF 166; and contended that the government was required to obtain a warrant before using GPS tracking devices for defendant's two vehicles, because they were located in defendant's garage, which also undermined the good faith analysis. ECF 217.
In response to ECF 217, the Court held a motions hearing on November 6, 2013. See ECF 246. This culminated in a Memorandum (ECF 252) and Order (ECF 253) of November 27, 2013, granting ECF 217 in part and denying it in part. Specifically, I suppressed all evidence as to the location of the vehicles at the garage of Wilford's Elkton residence. ECF 252 at 10. I otherwise denied the motion, and also found any remaining defense issues “to be without merit.” Id.
In August 2013, the government provided notice under 21 U.S.C. § 851 that, if convicted, Wilford would be subject to an enhanced penalty under 21 U.S.C. §§ 841(b)(1)(A) and 851. ECF 227. At the time, 21 U.S.C. § 841(b)(1)(A) provided for a mandatory minimum sentence of twenty years of imprisonment for an individual convicted of one prior felony drug offense. The government indicated that it intended to rely upon Wilford's federal drug convictions in case JFM-92-0116 or case MJG-01-0399, discussed infra.
During the pendency of the case, Wilford's five codefendants all pled guilty. Wilford proceed to trial on December 11, 2013. At the outset of trial, both the government and defense counsel confirmed, under “Lafler,” that Wilford had rejected a plea offer from the government in April 2012. ECF 308 (Tr. of Dec. 11, 2013) at 12-15; see Lafler v. Cooper, 566 U.S. 156 (2012). That plea offer contemplated a sentence below any mandatory minimum. Id. at 13, 14. Purpura also stated, id. at 14: “At Mr. Wilford's request, I just recently, before start of trial, offered a resolution, which was rejected by the government. It wasn't the government suggested. It was defense, Mr. Wilford suggested it.”
Trial by jury commenced on December 11, 2013. ECF 257. On December 18, 2013, the jury found Wilford guilty of conspiracy to distribute five kilograms or more of cocaine. ECF 267; ECF 268.
The following summary of the evidence at trial is drawn from the government's submission for the Presentence Report (ECF 273, the “PSR”). Law enforcement's investigation of Wilford's coconspirator, Lawrence Lee Hayes, Jr., commenced in late August and early September of 2010. Id. ¶ 7. In October of 2010, investigators observed Hayes and Wilford on two occasions. Id. At both meetings, Hayes and Wilford met at 30th and St. Paul Streets in Baltimore. Id. During the first meeting, Wilford took a large cardboard box from his Ford pick-up truck and gave it to Hayes. Id. During the second meeting, Wilford took a backpack from Hayes's car and Hayes took a large cardboard box from Wilford's pick-up truck. Id. The boxes exchanged between Wilford and Hayes during both meetings were identical in size. Id. After both meetings, Hayes left alone and drove to 1190 W. Northern Parkway, i.e., the Belvedere Towers Apartments (“Belvedere Towers”), and took the cardboard boxes inside. ECF 273, ¶ 7. It was later determined that the apartment was rented and occupied by coconspirator Michael Smooth. Id.
In mid October 2010, the investigating agents learned from a confidential source that Wilford was involved in drug trafficking with Hayes. Id. ¶ 8. After the October meetings, agents conducted a background check of Wilford and learned that he owned a large home on Rock Hollow Court in Cecil County, Maryland, and a residence in Baltimore City, located at 1500 Cliftview Avenue. Id. In November 2010, agents observed coconspirator George Plunkett exit and then return to a residence located at 301 W. 27th Street in Baltimore. Id. ¶ 9. Agents also observed Wilford and Hayes meet at 30th and St. Paul Streets on November 12, 2010. Id.
Surveillance continued and on December 2, 2010, agents again saw Hayes and Wilford meet at 30th and St. Paul Streets in Baltimore. Id. ¶ 10. Plunkett's vehicle was also located in the area. Id. Hayes then left the location and again went to Belvedere Towers with Plunkett. Id. Plunkett took a large cardboard box and carried it into the apartment building. Id. About two weeks later, agents observed Hayes and Wilford at 30th and St. Paul Streets. Id. Hayes exited his vehicle and entered Wilford's vehicle. Id. They later left the area in Wilford's vehicle and went to Belvedere Towers. Id. Hayes exited Wilford's vehicle carrying a large cardboard box. Id. The boxes appeared to be the same size as the boxes exchanged between Wilford and Hayes in October 2010. In addition, in January 2011, agents learned that Wilford, using a fictitious name, was shipping packages to a fictitious person in California. Id. ¶ 11.
In February 2011, agents observed Hayes enter apartment 717 at Belvedere Towers, carrying a large cardboard box. Id. ¶ 12. Plunkett entered the apartment a few minutes later. Id. The men then left the apartment. Id. Plunkett was seen carrying two large cardboard boxes and a small white plastic bag, which he tossed into a nearby dumpster. Id. The agents then went to the dumpster and recovered four computer boxes, two Compaq computer shells, and the bag that Plunkett had discarded. ECF 273, ¶ 12. The bag contained drug packaging material with cocaine residue, as well as other drug packaging paraphernalia. Id. One of the boxes had a shipping label with a recipient address of 35 Mainview Court in Reisterstown, Maryland, a residence owned by coconspirator Derrick Barbour. Id. The investigation revealed that Wilford's vehicle was at 35 Mainview Court on February 9, 2011, at the same time that the package was delivered to the residence. Id. The boxes were the same size as the boxes exchanged previously between Wilford and Hayes. Id.
On March 15, 2011, Hayes was observed standing next to his vehicle, which was parked at 301 W. 27th Street in Baltimore. Id. ¶ 13. Wilford was also present, standing next to his vehicle. Id. Hayes then placed two bags into Wilford's vehicle and each coconspirator left the area in his own vehicle. Id.
Two days later, on March 17, 2011, Wilford and coconspirator Mark Hawkins were seen at a Staples store in Towson. Id. ¶ 14. Wilford was observed exiting the Staples store with boxes and packaging material. Id. The boxes were described as looking smaller than the boxes exchanged between Wilford and Hayes in October and December 2010. Id. Wilford and Hawkins appeared to be preparing several boxes for shipment. Id. Wilford placed two boxes in Hawkins's vehicle and then took one of the boxes into the Staples store. Id. Wilford took the other two boxes to other Staples stores. Id.
Agents then obtained a shipping manifest from the Towson Staples store and learned that Wilford's package listed the sender and receiver under the same fictitious names that agents learned about earlier. Id. The package was again destined for California. Id. The agents obtained a search warrant for the package. A search of the box revealed a hollowed-out DVD/VCR player containing $100,000 in cash. ECF 273, ¶ 14.
About two weeks later, on March 30, 2011, agents observed Wilford and Hawkins meeting in Baltimore City. Id. ¶ 15. At the meeting, Wilford gave Hawkins a large cardboard box, which was the same size as the boxes exchanged previously between Wilford and Hayes. Id. Hawkins took the box to 1500 Cliftview Avenue and placed the box inside of the residence. Id. Shipping records revealed that a package was delivered to 35 Mainview Court on that same day. Id.
On April 1, 2011, Wilford met with Hayes and Plunkett at a barbershop in Baltimore. Id. ¶ 16. Later that day, Wilford was observed entering the residence located at 1500 Cliftview Avenue. Id. Agents observed a DVD/VCR player in the rear of Wilford's vehicle, identical to one seized on March 17, 2011. Id. Later that day, Hawkins, along with Anthony Uzondo and Pierre Bantan, were observed exiting 1500 Cliftview Avenue. Id. Testimony at trial revealed that Uzondo and Bantan flew from Los Angeles to Baltimore on April 1, 2011, and packaged and transported money back to California that same day. Id.
On April 3, 2011, law enforcement agents in Clark County, Illinois, stopped a Penske tractor trailer truck operated by defendant Robert Nyakana. Id. ¶ 17. He consented to a search of the trailer. Id. During the search of the trailer, law enforcement discovered approximately 136 kilograms of cocaine inside ten black bags. Id. The cocaine had a street value of $13.6 million. ECF 183 (Nyakana Presentence Report), ¶ 12. The agents learned that the cocaine was loaded on the truck in California, and that coconspirator Bryan Eammon Williams assisted in loading the cocaine onto the truck and was to receive the shipment in Jessup, Maryland. ECF 273, ¶ 17. Agents also learned that Nyakana was to receive over $200,000 as payment for the transportation of the cocaine. Id.
Nyakana and Williams were arrested on April 4, 2011. ECF 273, ¶ 17. Approximately $269,000 in U.S. currency was seized from the trunk of Williams's vehicle. Id. Telephone calls between Williams and Hayes indicated that Williams supplied cocaine to Hayes. Id.
Agents saw Plunkett enter Belvedere Towers on April 18, 2011, and then exit with a large bag. Id. ¶ 18. Plunkett entered his vehicle and drove to 301 W. 27th Street. When he exited the residence, Plunkett had a dark garbage bag and a small backpack in his hands. Id. He placed the garbage bag in the rear seat of his vehicle and drove to Belvedere Towers. Id. Plunkett entered the stash apartment, exited a few minutes later, drove his car to a dumpster at the building, and discarded the trash bag. Id. Agents retrieved the garbage bag from the dumpster. Id. They recovered paper towels, two boxes of baking soda, and several vacuum sealed bags that had been opened. Id. The bags tested positive for cocaine residue. Id.
Wilford was also observed in April and May 2011 at Seapines Circle in Baltimore County. Id. ¶ 19. On April 19, 2011, Wilford was observed leaving a residence located on Seapines Circle with a large duffel bag. Id. Wilford was followed to a bank, where he made a cash deposit. Id.
Agents observed a UPS truck in front of 1500 Cliftview Avenue on April 22, 2011. Id. ¶ 20. The UPS driver took a large cardboard box to the residence, but no one was there. Id. The box appeared to be the same size as the boxes exchanged previously between Wilford and Hayes. Id. The driver took the box back to the truck and waited. Id. Hawkins and Wilford then arrived in Hawkins's vehicle. The driver gave Hawkins the cardboard box, and Hawkins took it inside 1500 Cliftview Avenue. Id. A few minutes later, Wilford entered 1500 Cliftview Avenue. Id.
On April 27, 2011, agents observed another large box in the dumpster located at Belvedere Towers. Id. ¶ 21. The box was the same size as the boxes exchanged previously between Wilford and Hayes. ECF 273, ¶ 21. The shipping label listed 35 Mainview Court in Reisterstown, Maryland as the recipient address. As noted, the residence was owned by Derrick Barbour. Id.
The federal indictment followed on May 5, 2011, charging defendant as well as Hayes, Plunkett, Williams, Nyakana, and Hawkins. ECF 1. Coconspirators Michael Smooth, Alvin Wells, Derrick Barbour, Richard Tates, Antoine Goodson, and Keith Hill were charged in the Circuit Court for Baltimore City. ECF 273, ¶ 22 n.1. Several defendants were arrested during the week of May 16, 2011. Id. ¶ 22. At the time of their arrests, Hayes and Plunkett had 1.5 kilograms of crack cocaine in their possession. ECF 273, ¶ 22. A small amount of powder and crack cocaine was also seized from the stash apartment at Belvedere Towers. Id.
Wilford's residence at 1500 Cliftview Avenue was searched on or about May 16, 2011. ECF 205 at 18. A hollowed-out computer shell, a large cardboard box, and a mold for forming a kilogram of narcotics were seized. ECF 273, ¶ 23. The box was the same size as the boxes exchanged previously between Wilford and Hayes. Id.
A shipment of cocaine sent to the Cliftview Avenue address was intercepted and seized on or about May 20, 2011. It contained approximately eight kilograms of cocaine hydrochloride. Id. ¶¶ 23, 28. The cocaine was concealed inside of a hollow computer shell, and the shipping box was the same size as the boxes exchanged previously between Wilford and Hayes. Id.
Plunkett's residence was also searched. ECF 205 at 18. And, $200,000 in U.S. currency was recovered, along with wrappers for kilograms of cocaine and other drug items. Id. At Hayes's residence, agents recovered $300,000 in U.S. currency. Id.
Approximately $1.6 million dollars in U.S. currency was seized during a search of the residence at 3530 Seapines Circle in Reisterstown, Maryland. ECF 273, ¶ 24. Testimony at trial indicated that Wilford had a key to the residence and stored cash at that location. Id. The money was found underneath a stairwell to the basement, in a manner government counsel described at sentencing as “hidden away pretty, pretty secretly.” ECF 369 (Tr. of Aug. 7, 2014) at 64.
Wilford's residence in Elkton was also searched and agents seized a small amount of currency, receipts for six UPS shipments to California, and materials for wrapping and shipping currency. ECF 273, ¶ 25. Testimony at trial indicated that the residence was sometimes used as a location to prepare large sums of U.S. currency for shipment to California. Id.
UPS shipping records indicated that Wilford shipped at least 28 packages to California, using fake names. Id. UPS shipping records revealed that in 2010 and 2011, six shipments of cocaine were made to 35 Mainview Court in Reisterstown, Maryland, and eighteen shipments of cocaine were made to 1500 Cliftview Avenue, including the shipment intercepted on or about May 20, 2011. Id. ¶¶ 23, 28.
As noted, Wilford was not arrested with the others in May 2011. Instead, he fled to Los Angeles. Id. ¶ 26. In August 2011, a federal law enforcement agent attempted to arrest Wilford, but Wilford was able to avoid apprehension in his vehicle. Id. ¶¶ 26, 35. Investigation revealed that Wilford had rented an apartment in Los Angeles under a fake name. Id. ¶ 26. A search of that apartment and the vehicle led to the recovery of approximately $68,000 in U.S. currency and fake IDs. Id. ¶ 26.
Wilford was finally arrested on September 16, 2011, at a “secret apartment” located on Laurel Avenue in Baltimore City. Id. ¶ 27. Approximately $189,000 in U.S. currency, 14 cell phones, and a fake ID were seized either from the apartment or defendant's vehicle. Id.
Wilford maintained a dump truck business, RAW Enterprises. Id. ¶¶ 32, 82. Testimony at trial suggested that Wilford's business earned approximately $1.4 million in income over four years. Id. ¶ 32; see also ECF 356.
In sum, “the evidence at trial established that Wilford was responsible for obtaining enormous quantities of cocaine from California for sale to the Hayes drug-trafficking organization.” ECF 273, ¶ 33. The government claimed: “As evidenced by the huge amount of cash seized from Wilford during the investigation, he profited substantially from his drugtrafficking and received a larger share of the fruits of his drug-trafficking as compared to the other members of the Hayes drug-trafficking organization.” Id. As the government described at sentencing, approximately $2 million in cash was seized from Wilford, as well as “$194,000 in watches and jewelry and high-end vehicles.” ECF 369 at 139.
In February 2014, after trial, Wilford again wrote to the Court with complaints about Purpura. ECF 281. Based on this correspondence, the Court again referred the matter to a magistrate judge for an attorney inquiry hearing. ECF 283. That hearing was held on February 18, 2014. ECF 286.
On February 17, 2014, Purpura moved to withdraw as Wilford's attorney. ECF 285. In his motion, Purpura noted that throughout his representation, Wilford had “repeatedly expressed his dissatisfaction and lack of trust in counsel,” as reflected in his pro se motions and direct correspondence with the Court. Id. ¶ 2. Purpura also noted that throughout the proceedings, he visited Wilford, who was detained, on numerous occasions; retained another attorney and two law clerks to respond to Wilford's concerns and to conduct research; filed numerous motions and briefs; met with Wilford prior to filing and arguing the motions; and worked extensively with Wilford at trial. Id. ¶¶ 4, 6, 8. He also asserted that, prior to trial, he engaged in plea negotiations with the government and obtained a plea offer that “could have resulted in a favorable sentence and the return of certain specified assets.” ECF 285, ¶ 5. Wilford was aware that conviction at trial would lead to a mandatory minimum sentence of twenty years with a maximum potential sentence of life imprisonment. Id. Nevertheless, “Mr. Wilford followed his own advice, declined the government's offer and demanded full litigation of all legal issues and a trial.” Id. ¶ 5.
Purpura concluded: “Counsel is confident that Mr. Wilford received exceptionally competent and complete legal representation in every aspect of this litigation. Nevertheless . . . Counsel has done all that he can do for this defendant and, therefore, for the first time in 35 years of practice, counsel has been placed in a position where counsel has no ethical choice but to request the Court to relieve counsel from further representing Mr. Wilford.” Id. ¶ 11.
Judge Gallagher granted the motion to withdraw. ECF 287. Thereafter, Jenifer Wicks was appointed to represent Wilford for sentencing. ECF 293; ECF 297.
Prior to sentencing, Wilford filed a pro se “Motion to Vacate Verdict and for a New Trial.” ECF 329. He argued, inter alia, that the verdict should be vacated because he was denied his right to an arraignment. Id. at 3-4. Defense counsel also filed a “Notice of Preliminary Issues Related to Sentencing and Forfeiture Proceeding” (ECF 339), in which counsel indicated that defendant intended to raise, inter alia, the lack of an arraignment. Id. ¶ 1. Both sides filed various submissions in relation to forfeiture. See, e.g., ECF 316; ECF 321; ECF 328.
Then, on July 2, 2014, Wicks moved to withdraw as Wilford's counsel, at defendant's request. ECF 320; see also ECF 323 (letter from Wilford). Counsel cited miscommunications and disagreements with Wilford. ECF 320, ¶¶ 3-5. The Court referred the matter to a magistrate judge for an attorney inquiry hearing. ECF 322. That hearing was held by Judge Gallagher on July 18, 2014. ECF 325. She denied the motion to withdraw. ECF 327.
Under § 2D1.1(c)(1) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), the PSR calculated Wilford's base offense level at 38, based on the quantity of drugs involved. ECF 273, ¶ 37. Two levels were added, pursuant to U.S.S.G. § 2D1.1(b)(12), because defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance. Id. ¶ 38. Under U.S.S.G. § 2D1.1(b)(14), the PSR added another two levels because defendant used friendship to involve another individual, Mark Hawkins, in the illegal purchase, sale, transport, or storage of controlled substances. Id. ¶ 39. And, under U.S.S.G. § 3B1.1(a), the PSR added four levels because defendant was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive. ECF 273, ¶ 41. And, in regard to the August 2011 arrest attempt in Los Angeles, and pursuant to U.S.S.G. § 3C1.2, the PSR added two levels because defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from law enforcement. Id. ¶ 42.
Therefore, according to the PSR, Wilford had an adjusted offense level of 48. Id. ¶ 44. However, because the maximum offense level under the Guidelines is 43, per Chapter 5, Part A, Application Note 2, defendant had a final offense level of 43. Id. ¶ 45. The PSR also determined that Wilford qualified as a career offender under U.S.S.G. § 4B1.1, based on his two prior federal convictions. Id. ¶ 46. The offense level based on the career offender designation would be 37, but because the adjusted offense level of 43 exceeds 37, the offense level of 43 applied instead. Id.
The PSR reflected three adult criminal convictions. Id. ¶¶ 49-53. In 1992, Wilford pled guilty in federal court to conspiracy to distribute cocaine, and was sentenced to 60 months of incarceration and five years of supervised release. Id. ¶ 49; see case JFM-92-116. In 2001, defendant was charged with distribution of heroin. See case MJG-01-399. Wilford pleaded guilty. ECF 273, ¶ 50. And, he was sentenced in 2003 to 24 months of incarceration, followed by four years of supervised release. ECF 273, ¶ 50. In 2011 defendant pled guilty in the Circuit Court for Baltimore County to conspiracy to possess with intent to distribute. Id. ¶ 53. He was sentenced to unsupervised probation. Id.
These convictions resulted in a subtotal of seven points. Id. ¶ 54. However, at the time of the instant offense, Wilford was on supervised release for the distribution of heroin conviction, and so two points were added. Id. ¶ 55. This yielded a total of nine criminal history points, which equates to a criminal history category of IV. Id. ¶ 56. But, as mentioned, Wilford was found to be a career offender. As a result, he had a criminal history category of VI, under U.S.S.G. § 4B1.1. Id. ¶ 57.
Based on a total offense level of 43 and a criminal history category of VI, the Guidelines called for a sentence of life imprisonment. Id. ¶ 66. The PSR noted that Wilford's offense carried a mandatory minimum term of imprisonment of 20 years, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. ECF 273, ¶ 65.
At the time of sentencing, Wilford was 41 years old. Id. at 1. Defendant is 5'9” tall and, at sentencing, weighed approximately 190 pounds. Id. ¶ 78. He advised that he was in good health, but suffered from high blood pressure. Id. He described himself as an alcoholic who began drinking heavily in his late thirties. Id. ¶ 79. He also reported that he began using marijuana as a teenager and “tried cocaine a couple of times in his twenties.” Id. ¶ 80. The PSR noted that in the earlier PSR, prepared with regard to defendant's 2001 federal case, he had admitted to using one gram of heroin per week, beginning in 1997. ECF 273, ¶ 80.
Wilford completed his GED while previously incarcerated. Id. ¶ 81. As of sentencing, he had one child with his girlfriend, and two children from prior relationships. Id. ¶ 74. He described his childhood as “traumatic,” primarily because of substance abuse and domestic violence issues involving his parents and other family members. ECF 273, ¶ 73.
Sentencing and forfeiture proceedings were held on August 7, 2014, and August 12, 2014. ECF 352; ECF 353; ECF 368. At the hearing on August 7, 2014, the issue concerning the lack of an arraignment was discussed. See ECF 369 (Tr. of Aug. 7, 2014) at 15-17, 22-28, 32, 72-74. The government acknowledged that Wilford had not been formally arraigned. Id. at 73. For his part, Wilford acknowledged that he had not written to the Court regarding a failure to arraign, but stated that he had not confirmed that he was not arraigned until after trial, at which point he brought the issue to Purpura's attention, who said that he had been arraigned. Id. at 28. Wilford also asserted that because he was not arraigned, he had not been able to advance a Speedy Trial Act argument, and was prejudiced because of issues relating to witness availability and memory. ECF 369 at 23. I commented, id. at 26-27: “It's hard for me to see how you could have been prejudiced by, given the life of this case, if you weren't arraigned . . . I'm hard-pressed to understand, after so many years of living with this case, how you didn't know what you needed to know and how the law would say you could remain silent about it until after the trial and complain that you didn't get one.” I also ruled that, in my view, there were no grounds presented in ECF 329 for a new trial. Id. at 22.
The government sought a sentence of 360 months of incarceration. See ECF 284 at 1. Defense counsel sought the mandatory minimum term of 240 months (20 years), and lodged several objections to the PSR. ECF 275; ECF 336. Therefore, I was called on to resolve various disputes and objections. See ECF 355 (Statement of Reasons); ECF 369 (Tr. of Aug. 7, 2014) at 75-116; ECF 370 (Tr. of Aug. 12, 2014) at 28-29.
In particular, I found that a base offense level of 36, rather than 38, was appropriate, based on the drug quantity. ECF 355 at 1. I also applied a two-level reduction in the offense level based on then-forthcoming changes in the drug quantity table. ECF 369 at 76-78. Further, I rejected the proposed two-level upward adjustment for Wilford's use of his friendship with Hawkins under U.S.S.G. § 2D1.1(b)(14), finding that it was duplicative of the adjustment under U.S.S.G. § 3B1.1(a). ECF 369 at 116. And, I rejected the two-level upward adjustment under U.S.S.G. § 3C1.2, because I was not satisfied that defendant intended to endanger the law enforcement officer in question. ECF 369 at 122-24. With these determinations, I found that Wilford had a final offense level of 40, not 43, and a criminal history score of VI. This resulted in a Guidelines range of 360 months of imprisonment to life imprisonment. ECF 355 at 1.
In my remarks at sentencing, I described the government's recommendation of 360 months of imprisonment as “very reasonable,” and noted that defendant “earned” the career offender designation. ECF 369 at 177-78. I commented that Wilford was “a source of an enormous quantity of drugs worth an enormous amount of money,” and the scheme involved a “huge enterprise,” in which defendant was “towards the very top.” Id. at 173. I also remarked that the goal of deterrence would “justify a very significant sentence.” Id at 173-74.
In addition, I noted that the Guidelines range was largely unaffected by the various changes that could be made to defendant's offense level based on drug quantity or career offender designation. Id. at 174-75. And, in response to comments by Wilford (see id. at 163-67) that he was not able to plead guilty, I said: “I have very little knowledge about any of what you're saying, other than to say there was not any indication to me that you wished to plead guilty and were being, as you say, forced to go to trial.” ECF 369 at 172.
Ultimately, I sentenced Wilford to a below Guidelines sentence of 340 months of imprisonment, with credit for time served in federal custody since September 16, 2011, along with ten years of supervised release. ECF 354 (Judgment) at 2-3. In a “Revised Amended Order of Forfeiture,” I determined that approximately $3,808,000 constituted proceeds dervided directly or indirectly from the offense, and forfeited defendant's interest in various substitute assets. ECF 356.
In the Statement of Reasons (ECF 355), I wrote: “This was a large-scale drug conspiracy and the defendant played a central role.... The defendant is very intelligent and, to his credit, is not associated with any violence. All co-defendants pleaded guilty and no one received more than 180 months' incarceration.” Id. at 3.
Wilford appealed to the Fourth Circuit. ECF 357. During the pendency of the appeal, he continued to file a steady stream of pro se motions, letters, and other submissions. See Docket. In particular, he filed a “Motion to Dismiss or Vacate for Lack of Jurisdiction . . .,” in which he argued that the Court was without jurisdiction to try him because he was never arraigned, and thus never afforded an opportunity to enter a plea. ECF 416. He also filed a “Motion for New Trial Based On Newly Discovered Evidence,” asserting several grounds for a new trial under Fed. R. Crim. P. 33. ECF 418. On the unopposed motion of the government, the Fourth Circuit held Wilford's appeal in abeyance pending this Court's disposition of ECF 416 and ECF 418. ECF 424.
By Memorandum (ECF 445) and Order (ECF 446) of February 26, 2016, I denied both ECF 416 and ECF 418. As to Wilford's arraignment and plea claim, I extensively reviewed the pretrial proceedings in this case. ECF 445 at 2-12. I concluded that it was clear that, at Wilford's initial appearance, he was provided a copy of the charging instrument, and the nature of the charge was explained to him. Id. at 8. I acknowledged that defendant was not asked how he wished to plead, and a formal arraignment was never held. Id. “From a review of the record, however, I [could not] discern any prejudice to the defendant from the fact that he was not arraigned.” Id. As the record reflects, Wilford vigorously contested the charge against him, and never voiced any complaints as to a lack of opportunity to enter a plea. Furthermore, I noted that “a defendant who knowingly proceeds to trial despite the lack of a formal arraignment is deemed to have waived his right to such a proceeding.” Id. at 9 (citing Garland v. State of Washington, 232 U.S. 642 (1914), and other cases). Nor was I persuaded by any of Wilford's arguments in ECF 418. See ECF 445 at 12-22. Wilford appealed this ruling to the Fourth Circuit. ECF 459.
The Fourth Circuit affirmed this Court in a decision of May 9, 2017. ECF 509; see United States v. Wilford, 689 Fed. App'x 727 (4th Cir. 2017) (per curiam). The Court concluded that Wilford's arguments were without merit, including as to the failure to arraign; prosecutorial misconduct; the Court's suppression rulings; and its jury instruction rulings. Wilford, 689 Fed. App'x at 728-32. In particular, regarding the arraignment issue, the Fourth Circuit said, id. at 729:
Wilford first argues that this court lacks jurisdiction over him because the district court never arraigned him.
Rule 10 of the Federal Rules of Criminal Procedure requires that a defendant be advised in open court of “the substance of the charge” before being called upon to plead. However, technical noncompliance
with the procedural requirements of the rule does not warrant a reversal of a conviction if not raised before trial.
See United States v. Reynolds, 781 F.2d 135, 136 n.2 (8th Cir. 1986). “A failure to arraign only warrants a reversal if it causes prejudice or impairs a substantial right.”
United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998).
Although Wilford was never formally arraigned, he was properly advised of the charges at his initial appearance. Furthermore, Wilford's attorney received a copy of the superseding indictment and filed numerous pretrial motions. Wilford never raised the lack of an arraignment in the district court. Consequently, we conclude that Wilford has failed to establish either prejudice or the impairment of a substantial right. Moreover, Wilford waived any argument pursuant to the Speedy Trial Act,
18 U.S.C. § 3161 (2012), because he did not raise this issue prior to trial in the district court. “[T]he plain language of Section 3162(a)(2) is unequivocal in requiring that a defendant move for dismissal of an indictment before the beginning of a new trial or suffer a statutorily imposed waiver of rights under the Act.”
United States v. Mosteller, 741 F.3d 503, 509 (4th Cir. 2014).
The Fourth Circuit denied Wilford's petition to rehear the case en banc. ECF 503. His petition to the Supreme Court for a writ of certiorari was also denied. See Docket, 7/02/2018.
In August 2017, Wilford filed a “Memorandum and Motion to Dismiss for Lack of SubjectMatter Jurisdiction Pursuant to the Court's Inherent Supervisory Power and Not to Be Construed as 28 U.S.C. § 2255.” ECF 507. By Memorandum (ECF 525) and Order (ECF 526) of May 4, 2018, I noted that Wilford's arguments in ECF 507 were essentially identical to those he advanced in ECF 416. Therefore, I denied ECF 507 for the reasons expressed in my opinion at ECF 445, as well as the Fourth Circuit's opinion in Wilford. ECF 525 at 4.
Wilford is currently serving his sentence at FCI Victorville Medium I. See ECF 663 at 1; Inmate Locator, BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (last visited June 15, 2022). He has a projected release date of November 7, 2035. ECF 629-1 at 3. With credit for pretrial detention, dating to September 16, 2011, Wilford has served about 129 months of his 340-month sentence, or approximately 40%.
B. Petition and Motion
Wilford has filed numerous motions and other submissions, advancing a variety of arguments.
In April 2019, Christopher Nieto was appointed to represent Wilford in connection with the § 2255 Petition. ECF 540; ECF 543. Counsel filed the Petition in June 2019. ECF 546. It contains 59 claims of ineffective assistance of counsel and prosecutorial misconduct, none of them accompanied by more than a few sentences of argument. Id. Simultaneously with ECF 546, counsel filed a motion to hold ECF 546 in abeyance until counsel could investigate the claims and supplement the filing. ECF 547. The Court granted this motion. ECF 548.
In February 2020, Wilford submitted a pro se “Letter to the Court,” asserting various deficiencies in the proceedings against him. ECF 562. And, in March 2020, before the Petition had been supplemented, Nieto moved to withdraw as Wilford's attorney. ECF 564. Nieto cited a “breakdown in communication and trust between counsel and client,” and disagreement over the proper course of the § 2255 investigation. ECF 564, ¶¶ 3-4. The Court granted this motion. ECF 565. The following month, Mary E. Davis was appointed as Wilford's lawyer. ECF 572.
In February 2021, Wilford filed a pro se supplement to the Petition. ECF 615 (the “First Supplement”). It was accompanied by an Affidavit from Wilford. ECF 615-1. In ECF 615, Wilford lodges about 65 claims, some of which are related, but generally without citation to the record.