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United States v. Flowers

United States District Court, District of Columbia

January 11, 2018

UNITED STATES OF AMERICA
v.
DAVID FLOWERS, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         The defendant, David Flowers, was sentenced to 120 months' incarceration on his guilty plea, pursuant to a plea agreement, to two counts of interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951; two counts of attempted interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951; one count of armed robbery, in violation of D.C. Code §§ 22-2801 and -4502; and one count of possession of a firearm during commission of a crime of violence, in violation of D.C. Code § 22-4504. See Judgment in a Criminal Case (“Judgment”) at 1-2, ECF No. 72. The defendant also pleaded guilty and was sentenced to 120 months' incarceration, to run concurrently with the aforementioned sentence, on two counts of an information filed in the District of Maryland charging interference with interstate commerce by robbery and attempted interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951. See Judgment in a Criminal Case, United States v. Flowers, No. 16-cr-63 (BAH) (D.D.C. filed Jul. 18, 2016), ECF No. 20 (“Maryland Judgment”). Ten months after his sentencing, the defendant filed the pending pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Def.'s Mot.”), ECF No. 79, claiming that he received ineffective assistance of counsel in multiple respects and requesting an evidentiary hearing. For the reasons below, the defendant's motion is denied.

         I. BACKGROUND

         Set out below are the facts underlying the defendant's conviction, as presented during an evidentiary hearing on defense counsel's motion to suppress, see Evidentiary Hr'g Tr. dated Nov. 6, 2015 (“Evid. Hr'g Tr.”), ECF No. 31, and summarized in the Statement of Offense accompanying the Plea Agreement, which facts were admitted by the defendant at the time of his guilty plea, see Stmt. of Offense, ECF No. 57; Plea Agreement, ECF No. 56; Plea Hr'g Tr. dated April 14, 2016 (“Plea Hr'g Tr.”) at 24-26, ECF No. 84, followed by a summary of the hearings held regarding the defendant's guilty plea and sentencing.

         A. The Defendant's Criminal Conduct

         From 2014 to 2015, shortly after being released from detention pending a trial in Maryland state court on a rape charge, see Gov't's Mot. Admit Other Crimes Evid. (“Gov't's Rule 404(b) Mot.”) at 25 n.12, ECF No. 12, the defendant committed a string of robberies in Maryland and the District of Columbia, on an almost monthly basis. He became known to the Federal Bureau of Investigation and the Metropolitan Police Department as the “Early Bird Bandit” given his modus operandi of walking into small, local chain stores, usually shortly before the stores were fully open and staffed, and intimidating the employees by brandishing a firearm. See Evid. Hr'g Tr. at 24-25. During these robberies, the suspect wore similar, distinctive items of clothing, including a black ski mask, hooded sweatshirts, and two-toned gloves, as evidenced on video surveillance of several robberies. Id. at 26-29, 124-25. Identical clothing items were later seized by law enforcement during lawful searches of his car and residence. Id. at 96-99, 126.

         The first armed robbery to which the defendant admitted took place on the morning of October 13, 2014, when the defendant, wearing two-toned gloves and a dark-gray hooded sweatshirt with fluorescent green drawstrings, entered a Murry's Food store in Washington, D.C., brandished a silver and black firearm, or imitation thereof, at two employees and forced them to enter an office inside the store. Stmt. of Offense ¶ 2; Evid. Hr'g Tr. at 36-41. The defendant asked one of the employees to open the safe, removed approximately $900, and exited the store through the front door. Stmt. of Offense ¶ 2. An identical sweatshirt was later seized during the execution of a search warrant at the defendant's residence. Evid. Hr'g Tr. at 126.

         On the morning of November 15, 2014, the defendant entered a different Murry's Food store in Washington, D.C., wearing a dark sweatshirt with light-colored drawstrings, a ski mask, and, again, two-toned gloves. Stmt. of Offense ¶ 3; Evid. Hr'g Tr. at 41, 127. The defendant again brandished a silver and black firearm, or imitation thereof, and ordered an employee to go inside an office near the front of the store. Stmt. of Offense ¶ 3. After the employee opened the safe, the defendant removed an undetermined amount of cash and exited the store. Id. Following this pattern, on the morning of December 10, 2014, the defendant entered a Rainbow clothing store in Washington, D.C., brandishing a black firearm or imitation thereof. Id. ¶ 4. The defendant escorted two employees to cash registers in the rear of the store, instructed them to open a safe, removed $1, 706.95, and exited the store with the money. Id.

         Then, on December 26, 2014, the defendant entered a CVS Pharmacy in Capitol Heights, Maryland, again wearing a gray hooded sweatshirt and a ski mask and brandishing a silver and black firearm, or imitation thereof. Id. ¶ 5; Evid. Hr'g Tr. at 57. He escorted an employee to an office inside the store, instructed him to open a safe, removed $9, 000, and exited the store with the money. Stmt. of Offense ¶ 5. This time, however, a GPS device hidden in one of the bundles of cash that the defendant stole led the police to a cul-de-sac near the intersection of 57th Street and Foote Street. Evid. Hr'g Tr. at 58-59, 77-78, 130. The same GPS device also showed that the driver stopped at the intersection of Southern Avenue and East Capitol Street SE, where a traffic camera captured a picture of a gold-colored four-door Buick LaCrosse. Id. at 80-85. The defendant's wife, Terri Holman, was, at the time, renting a gold Buick LaCrosse from Enterprise. Id. at 86.

         In addition to those successful armed robberies, the defendant also admitted, as part of his plea, to several attempted robberies in Maryland and the District of Columbia. Specifically, on January 18, 2015, the defendant entered a different CVS Pharmacy in Washington, D.C., wearing his two-toned gloves and a dark sweatshirt with light-colored drawstrings, and walked through the aisles before standing in aisle seven. Stmt. of Offense ¶ 6. When an employee approached him, the defendant brandished a silver and black firearm, or imitation thereof, before demanding that the employee open an office door. Id.; Evid. Hr'g Tr. at 50. When the employee refused and walked away, the defendant exited the store. Stmt. of Offense ¶ 6.

         After months of searching for the “Early Bird Bandit, ” investigators reaped the fruits of their efforts in early February 2015. On the morning of February 5, 2015, the defendant, again wearing a ski mask and two-toned gloves, entered a KFC restaurant in Clinton, Maryland, through a back door near the drive-through window and encountered an employee in an office. Id. ¶ 7; Evid. Hr'g Tr. at 63-64. The defendant brandished a silver and black firearm, or imitation thereof, and demanded money, but when the employee informed him that the employee could not access the money at that location, the defendant fled out the back door on foot. Stmt. of Offense ¶ 7. Critically, security footage of the restaurant's parking lot revealed that the suspect fled in a gold or silver Buick LaCrosse, matching the vehicle that was captured on camera after the December 26, 2014, robbery and that was rented by the defendant's wife, Terri Holman. Evid. Hr'g Tr. at 82-86, 131-32. That night, the police canvassed the area around 57th Street and Foote Street, the cul-de-sac indicated by the GPS tracking device. Id. at 85. The police found both a gold and a silver 2015 Buick LaCrosse parked in front of the defendant's residence, a mere five houses away from where the GPS device was disabled after the December 26, 2014, robbery. Id. at 85-87, 143.

         The next day, on the morning of February 6, 2015, the defendant entered a Popeye's restaurant in Washington, D.C., wearing a dark sweatshirt with white drawstrings, a black ski mask, and two-toned gloves, again brandishing a silver and black firearm, or imitation thereof, and forced three employees to enter the kitchen area. Stmt. of Offense ¶ 8; Evid. Hr'g Tr. at 52- 53. The defendant asked one employee to open the safe, but when the employee said she did not have access to the safe, the defendant exited the restaurant. Stmt. of Offense ¶ 8. FBI Agent Jeff Johannes later interviewed the Popeye's employee, who confirmed that the perpetrator of this robbery matched the description of the perpetrator of the CVS and KFC robberies. Evid. Hr'g Tr. at 90. While he was responding to this attempted robbery, MPD Detective Chad Howard observed the driver of a gold Buick LaCrosse at a nearby traffic light, looking at the police activity at Popeye's. Id. at 95, 135-36. Howard and his partner, Investigator Joseph Tridico, followed the Buick, which they discovered had the same license plate as the gold Buick the officers knew was leased by the defendant's wife. Id. at 136-37.

         While Howard and Tridico were following the Buick, the driver made a right turn without using a turn signal. Id. at 116, 136-39. During the ensuing stop of the car, the officers observed that the defendant matched the height, build, and complexion of the perpetrator of the robberies, including the attempted robbery at Popeye's that morning, id. at 132-33, and also observed, in plain view on the front passenger seat of the defendant's car, a dark hooded sweatshirt with white drawstrings similar to the sweatshirt observed on the perpetrator in the previous armed robberies, and a black ski mask. Id. at 141-42. In the storage pocket on the rear of the driver's seat, Howard observed the tip of what looked like two-toned gloves, similar to the distinctive two-toned gloves worn by the perpetrator of the armed robberies. Id. at 142-43. After obtaining search warrants for the defendant's car and residence, law enforcement recovered, inter alia, a dark blue sweatshirt with white drawstrings, gloves with a black rubber bottom and a gray top, a black ski mask, a gray hooded sweatshirt, and a dark sweatshirt with fluorescent green drawstrings, which closely matched the clothing described by witnesses of the armed robberies and depicted on surveillance videos. Id. at 96-99.

         B. Procedural History

         On February 24, 2015, a federal grand jury returned a three-count indictment and, the next day, with the aid of court-appointed counsel, the defendant pleaded not guilty to all counts. See Indictment, ECF No. 1; Minute Entry (Feb. 25, 2015). On March 17, 2015, and April 30, 2015, two superseding indictments were returned by the same grand jury, charging eighteen counts and twenty-two counts, respectively, arising from numerous robberies in 2014 and 2015. See First Superseding Indictment, ECF No. 5; Second Superseding Indictment, ECF No. 7. On June 4, 2015, the defendant entered a not guilty plea to all counts of the Second Superseding Indictment. At that hearing, defense counsel's motion to withdraw as counsel was granted based on irreconcilable differences with the defendant. In response to the Court's query, the defendant stated that “it's like we just got some differences that we just can't-we can't come to agreement on, ” and that he did not trust the advice from counsel. Hr'g Tr. dated June 4, 2015 (“Hr'g Tr. 6/4”) at 7, ECF No. 91. While granting the motion, the Court informed the defendant that the right to appointed counsel “does not mean that you have the right to appointed counsel of your preferred choice.” Id. at 5. Alternative counsel was appointed for the defendant; it is the advice of this second counsel that the defendant now challenges.[1]

         The defendant's new attorney filed two substantive motions, including a motion to suppress evidence found in the defendant's vehicle during his arrest and statements made to law enforcement, see Def.'s Mot. Suppress Evid. & Stmts., ECF No. 14, and a motion to sever the counts of the superseding indictment into separate trials, see Def.'s Mot. Sever Counts Indict., ECF No. 16. On November 6, 2015, this Court held a lengthy suppression hearing at which six witnesses testified, including the defendant and two additional defense witnesses, who were eyewitnesses to the defendant's arrest. Evid. Hr'g Tr. at 194-96, 204-07. At this hearing, the motions filed by defense counsel were resolved: the defendant's motion to sever counts of the indictment was denied, given the similarities between the various robberies underlying the indictment and the similar evidence for each incident, id. at 258-64; the defendant's motion to suppress statements made to law enforcement during his arrest was also denied, as well as his motion to suppress various physical evidence seized during the execution of the search warrants. Motions Hr'g Tr. dated Nov. 13, 2015 (“Mot. Hr'g Tr.”) at 15, 20-22, 27-32, ECF No. 34.

         The Court also granted in part and denied in part the government's motion to admit evidence of five other crimes under Federal Rule of Evidence 404(b), and, over strenuous objections from defense counsel, id. at 48-49, allowed evidence of the defendant's March 1, 2001, conviction for felony possession of a firearm; the December 26, 2014, armed robbery of a Maryland CVS; a January 14, 2015, armed robbery of a Maryland Murry's food store; and the February 5, 2015, attempted armed robbery of the Maryland KFC, id. at 52-58. Defense counsel persuasively argued to exclude evidence of the defendant's May 23, 1987, conviction for robbery with a dangerous weapon of a Maryland Lerner store. Id. at 58-61. Finally, the Court granted in part and denied in part the government's motion to admit impeachment evidence under Federal Rule of Evidence 609, and, again over defense counsel's vigorous objections, id. at 76-77, allowed evidence of the 2001 felon-in-possession conviction, id. at 80. Defense counsel succeeded in excluding three 1987 convictions for robbery, attempted robbery, and custody of a pistol without a license. Id. at 81-82.

         Then, in February 2016, the defendant sent an ex parte, pro se letter to the Court seeking to obtain new counsel and suggesting other attorneys that could be appointed to this case. See Mot. Revoking Atty's Power of Att'y, ECF No. 37. At a status conference before this letter had been received by the Court, defense counsel brought this letter to the Court's attention and, in response to the Court's questions, the defendant stated that “When I go and sit there, we don't talk about winning the case. We just talk about a cop. And from the beginning I told them I wasn't guilty; but that don't mean nothing. It's just about pleading guilty.” Hr'g Tr. dated Feb. 19, 2016 (“Hr'g Tr. 2/19”) at 7, ECF No. 95. The defendant further complained that counsel had told his family he could not “beat the Government” and that, given the circumstances, he “kind of didn't hardly talk to [counsel] no more.” Hr'g Tr. dated Feb. 25, 2016 (“Hr'g Tr. 2/25”) at 8- 9, ECF No. 94. In denying the defendant's motion for yet a third new attorney, the Court expressed concerns that “Mr. Flowers, who is well-versed in the criminal justice system, is indeed trying to manipulate this Court and the system in order to get what he is not entitled to, which is counsel of his preference, as opposed to competent counsel[, ] appointed to him.” Id. at 24. Moreover, “[t]he fact that Mr. Flowers has recommended certain attorneys in his letter . . . only corroborates part of [the] suspicion that he is trying to manipulate this Court in order to obtain a third lawyer on this case, after having two experienced[, ] excellent[, ] more than competent criminal trial lawyers already assigned to this case.” Id. at 24-25. Finally, the defendant's “voluntary decision to stop communicating” with counsel further suggested an attempt to “manipulate the system in order to show a breakdown in communications with his attorney in order to get his preferred counsel.” Id. at 25.

         At a hearing to ensure protection of the defendant's rights under Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), the government explained the penalties faced by the defendant under the Second Superseding Indictment and the two plea offers previously extended to the defendant that had lapsed without acceptance by the defendant. Specifically, given the defendant's extensive criminal history, the government stated that he faced the possibility of more than 142 years in prison due to mandatory consecutive sentences for the six violations of 18 U.S.C. § 924(c). See Hr'g Tr. 2/19 at 9-10; Hr'g Tr. dated March 3, 2016 (“Hr'g Tr. 3/3”) at 4-5, ECF No. 96. Nevertheless, the defendant rejected both plea offers that had been extended in December 2015, which were identical but for an extra one-point reduction in offense level for acceptance of responsibility in the second offer. Hr'g Tr. 2/19 at 10; Hr'g Tr. 3/3 at 5. These offers would have required the defendant to plead guilty to four counts of interference with interstate commerce by robbery in Washington, D.C., four counts of the same in Maryland, and one count of ...


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