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United States v. Scurry

United States District Court, District of Columbia

August 22, 2018

ERIC SCURRY, Defendant.


          Royce C. Lamberth United States District Judge.


         Pending before this Court is Eric Scurry's motion pursuant, to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody. ECF No. 387. After considering Scurry's motion and reply, the opposition by the United States, the applicable law, and the entire record herein this Court DENIES petitioner's § 2255 motion to vacate, set aside, or correct his sentence.


         In July 2009, the FBI embarked on an investigation into narcotics trafficking in the 4200 block of 4th Street SE in Washington, D.C. As a result of information obtained from two cooperating witnesses, the FBI concluded that Mr. Scurry was a crack (cocaine base) dealer. On April 2, 2010, the FBI was granted authorization to wiretap Mr. Scurry's cell phone. This tap ultimately lasted from April 2, 2010 until May 31, 2010. Based on evidence obtained in the Scurry tap, the FBI was granted authorization to tap to cell phones associated with co-defendant Terrance Hudson from June 14, 2010 to July 13, 2010. The Hudson taps then pointed to co-defendant Robert Savoy, and the FBI was granted authorization to tap two cell phones associated with Savoy from July 23, 2010 to August 21, 2010. Information obtained from the Savoy taps implicated co-defendant James Brown, and the FBI obtained authorization to tap Brown's cell phone from September 13, 2010 to October 12, 2010.

         As a result of the evidence obtained in the wiretaps, the defendants were indicted in 2010 for various drug-trafficking offenses. In 2011, defendants Scurry, Hudson, Savoy, Johnson, and Brown moved to suppress the evidence obtained from the wiretaps on the grounds that the affidavits in support of the government's applications for interception of communications did not establish probable cause, did not satisfy the necessity requirements of 18 U.S.C. § 2518(3)(c), did not meet the "minimization" requirements under Title III, and that the taps were not properly authorized. This Court denied those motions on August 3, 2012. See United States v. Savoy, 883 F.Supp.2d 101 (D.D.C. 2012). The defendants thereafter entered into plea agreements. Defendant Scurry pleaded guilty to a two-count superseding information charging him with conspiracy to distribute 280 grams or more of cocaine base and conspiracy to commit money laundering. He agreed that he was responsible for more than 280 grams but less than 840 grams of cocaine base and that a sentence of 144 months was appropriate. On December 3, 2012, he was sentenced to 144 months imprisonment.

         On appeal, the Court of Appeals for the D, C. Circuit found that "each of the Hudson and Johnson [wiretap] orders is 'insufficient on its face,' because each fails to include information expressly required by Title III," namely, the identity of "the individual high-level Justice Department official who, as required by section 2516(1), authorized the underlying wiretap application." United States v. Scurry, 821 F.3d 1, 8 (D.C. Cir. 2016) (internal citation omitted). The Court of Appeals found that suppression of the evidence collected or derived from the Hudson and Johnson wiretaps was the appropriate remedy. Id. at 13-14. With respect to the Scurry wiretaps, however, the Court of Appeals found that the applications were supported by probable cause and satisfied the necessary requirements. Id. at 16-18. It therefore affirmed this Court's denial of Mr. Scurry's motion to suppress. Id. at 18.

         After the case was remanded for further proceedings, the government determined that evidence from the Savoy taps was derived from the Hudson taps, and was therefore subject to suppression. It thus moved to dismiss the cases against defendants Hudson, Johnson, Savoy, and Brown. Those motions were granted on September 28, 2016, and the defendants were released from prison. Mr. Scurry therefeafter timely filed this § 2255 motion to vacate, set aside or correct his sentence arguing that his guilty plea was not knowing or voluntary because "at the time he pled guilty, he believed he was agreeing to drug-quantity amounts attributable to his co-conspirators and, because their cases were later dismissed by the government, he is entitled to the same result." ECF No. 396 at 4.


         A. 28 U.S.C. § 2255

         Under 28 U.S.C. § 2255, a federal prisoner can move for the court that sentenced him to vacate, set aside or correct that sentence if the "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Id. § 2255(a). "Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments." United States v. Zakas, 793 F.Supp.2d 77, 80 (D.D.C. 2011). To obtain collateral review under § 2255, petitioner "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The petitioner bears the burden of proof under § 2255 and must show that he is entitled to relief by the preponderance of the evidence. United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C. 2009).

         B. Knowing and Voluntary

         "Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises." Fed. R. Crim. P. 11(b)(2). To ensure that a plea is voluntary, the defendant participates in a colloquy with the trial court to determine that he understands the nature of the charge to which the plea is offered. Fed. R. Crim. P. 11 (c)(1). For a plea to be voluntary under the United States Constitution, "a defendant must receive real notice of the true nature of the charge against him." United States v. Ahn, 231 F.3d 26, 29 (D.C. Cir. 2000). "Real notice is that which is sufficient to give the defendant an understanding of the law in relation to the facts of his case. In assessing whether the defendant has such an understanding, the record of the plea colloquy must, based on the totality of the circumstances, lead a reasonable person to believe that the defendant understood the nature of the charge." Id.

         IV. ...

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