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United States v. Bernett

United States District Court, District of Columbia

August 1, 2018




          Chief Judge Beryl A. Howell The defendant, Gerry Duane Burnett, filed this pro se motion, pursuant to 28 U.S.C. § 2255, seeking a new trial and to set aside his conviction for unlawful possession with intent to distribute heroin and marijuana, and conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B)(i). Def.'s Mot. to Vacate, Set Aside or Correct Sentence (“Def.'s 2255 Mot.”) at 1, ECF No. 295. As grounds for this relief, the defendant claims ineffective assistance of counsel and an alleged violation by the government of its obligations under Brady v. Maryland, 373 U.S. 83 (1963), for failing to disclose the purported use of a particular surveillance tool, called a “Stingray” device. Def.'s 2255 Mot. at 1; Def.'s Motion for New Trial Pursuant to Rule 33 (“Def.'s 1st Mot.”), ECF No. 288.[1] For the reasons below, the defendant's motion is denied.[2]

         I. BACKGROUND

         The relevant factual history of this case is summarized only to the extent necessary to evaluate the pending motion, as the facts of this case have been detailed extensively in previous decisions by this Court, see Mem. and Order Denying Second Mot. to Suppress Evidence Obtained by Warrantless GPS Monitoring (Mar. 21, 2013) (“Mem. and Order GPS Monitoring”), ECF No. 133; Mem. and Order Denying Mot. for J. of Acquittal (July 22, 2013), ECF No. 199, and by the D.C. Circuit, United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016).


         The defendant was charged in April 2012, along with two co-defendants, for “conspiring to distribute and possess with intent to distribute a kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841, ” as well as possession with intent to distribute heroin and marijuana. Burnett, 827 F.3d at 1113-14; see Second Superseding Indictment, ECF No. 23. A third co-defendant, Eugene McDuffie, separately pleaded guilty, pursuant to a cooperation agreement with the government, and testified at trial. Burnett, 827 F.3d at 1112, 1113 n.1. The drug trafficking conspiracy began in “the spring of 2011, ” id. at 1113, and the instant defendant joined in “August or September of 2011, ” id. at 1121-around the same time that “the Government began investigating . . . after a confidential source notified the Government that McDuffie was trafficking in drugs, ” id. at 1113. “Shortly after opening its investigation, the Government obtained warrants to track McDuffie's car and cell phone, ” id., and “also obtained rental car records, telephone toll records, and text messages to establish links between the co-conspirators, conducted visual surveillance, and analyzed recorded meetings and calls between McDuffie and the [confidential informant] . . . .” Gov't's Opp'n Def.'s 2255 Mot. (“Gov't's Opp'n”) at 1-2, ECF No. 303.[3]

         During the government's investigation, the confidential informant (“CI”) engaged in three controlled buys with McDuffie, including one on September 16, 2011. Gov't's Opp'n, Ex. A, Aff. of Samuel Bonner, Special Agent, Drug Enforcement Agency (“DEA”) (Feb. 27, 2012) (“Bonner Aff.”) ¶ 6, ECF No. 303-1. Prior to the controlled buy on September 16, the CI met with McDuffie on September 15 to buy heroin, but McDuffie “stated he would have to speak to his [source of supply].” Gov't's Opp'n, Ex. C, DEA-6 (Sept. 28, 2011) ¶ 3, ECF No. 303-3. From recordings of conversations between the CI and McDuffie, the government learned that McDuffie “stored [heroin] with . . . his ‘other man' who lived by the ‘jail, '” and “needed approx[imately] 30 minutes to meet that same subject to obtain the heroin” for sale to the CI. Id. ¶ 5. Later that day, GPS tracking data showed that McDuffie's car “was stationary near 1707 D St[reet] SE, Washington, DC from approx[imately] 8:47-9:23 p.m., ” and the DEA agent noted that “address is located approximately 2 blocks from the Washington, DC Correctional Facility.” Id. ¶ 6. The government found that, “according to public records, Gerry BURNETT has resided at that address since 2005.” Id. (capitalization in original). Further, “toll records for MCDUFFIE's telephone” showed that “his telephone was in contact with” a telephone number “subscribed to BURNETT” at 1707 D Street SE, several times on September 15. Id. (capitalization in original).

         The CI met McDuffie again the morning of September 16, and McDuffie left that meeting at “approx[imately] 11:00 a.m. According to toll records, MCDUFFIE made telephone calls to BURNETT at approx[imately] 10:59 a.m., 11:29 a.m. and 11:48 a.m. MCDUFFIE returned to meet and sell the heroin to the [CI] at approx[imately] 12:25 p.m.” Id. ¶ 7 (capitalization in original).

         Further investigation revealed that the defendant and McDuffie were “in frequent contact” and that McDuffie went to the defendant's residence at 1707 D Street SE “approximately once per week” during the investigation. Bonner Aff. ¶ 26. During a search of the defendant's home, pursuant to a search warrant, “agents recovered over one-quarter of a kilogram of marijuana, three digital scales, 34 grams of heroin, and cash.” Gov't's Opp'n at 2.


         Before trial, the parties attempted unsuccessfully to negotiate a plea agreement. See Status Hr'g Tr. (June 5, 2012), ECF No. 253 at 4 (defense counsel noting that “plea negotiations are ongoing”); id. at 10 (the Court noting that “[t]he purpose of the continuance and the exclusion of time as discussed during the status hearing is for defense counsel to continue to evaluate the discovery produced in the case, consult with their clients about a possible disposition in the case and collect other information that may be pertinent to negotiating a plea agreement with the Government.”). The Court confirmed before trial that the defendant was aware of the plea offer and rejected it. Pretrial Conf. Rough Hr'g. Tr. (Mar. 22, 2013).[4] The jury trial of this case began with jury selection on April 15, 2013. Mem. and Order Denying Mot. for J. of Acquittal at 2.

         Twice before trial the defendant moved to suppress evidence from the search of his home. He first argued, unsuccessfully, that the warrant application lacked probable cause, see Def.'s First Mot. to Suppress, ECF No. 41; Def.'s Amended Mot. to Suppress, ECF No. 54; Minute Order (Nov. 30, 2012) (denying the motion), and then argued, unsuccessfully, that the use of GPS tracking information from McDuffie's phone while McDuffie was in the defendant's home violated defendant's Fourth Amendment rights, see Def.'s Second Mot. to Suppress, ECF No. 128; Mem. and Order GPS Monitoring (denying the motion).

         During the trial, the defendant testified on his own behalf. Mem. and Order Denying Mot. for J. of Acquittal at 4. Prior to direct examination, the Court engaged in a colloquy with the defendant, asking whether he had “sufficient time to talk to [his attorney] about whether or not you want to exercise your right to testify at this trial” and whether he had “evaluated with [his attorney] the potential risks of testifying.” Rough Trial Tr. (May 1, 2013) at 40.[5] The defendant answered these questions affirmatively. Id. During direct examination, the defendant's attorney asked whether he understood “that you are under oath, ” that if “anything that you say is false, it can lead to additional charges, perjury, ” and that the “criminal penalties associated with perjury . . . are severe.” Id. at 46-47. The defendant, again, answered affirmatively. Id.

         After the jury convicted the defendant, see Verdict Form, ECF No. 172, the defendant's Motion for Judgment of Acquittal, ECF No. 178, was denied, see Mem. and Order Denying Mot. for J. of Acquittal. On August 2, 2013, the defendant was sentenced to concurrent terms of 151 months' incarceration on each of the three counts on which he had been convicted. Judgment at 1-3, ECF No. 225. The defendant then appealed, arguing: (1) “the search of his home by federal agents violated the Fourth Amendment, ” Burnett, 827 F.3d at 1117; (2) the Court erred in its calculation “of the total quantity of heroin attributable to the conspiracy, ” id. at 1119; and (3) that the Court “erred in basing his sentence on conduct that occurred before he joined the conspiracy, ” id. at 1120. The D.C. Circuit rejected the first two arguments, but ruled in ...

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