United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE
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.
For the reasons below, the defendant's motion is
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).
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.
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
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).
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.
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). 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.
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).
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. 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.
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 ...