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United States v. Edwards

United States District Court, District of Columbia

November 21, 2019

UNITED STATES OF AMERICA,
v.
GEZO GEONG EDWARDS, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Presently before the Court is pro se Defendant Gezo Geong Edwards' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“Motion”). Defendant, Gezo Geong Edwards (“Mr. Edwards” or “Defendant”) requests that this Court vacate, set aside, or correct his sentence based upon his claims of ineffective assistance of counsel. Mr. Edwards also includes a “Motion for Discovery” within his motion, seeking access to a code or program to open files and documents given to him by his former counsel.[1] Upon a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court finds that Mr. Edwards is not entitled to the requested relief.[2] Accordingly, the Court shall DENY Mr. Edwards' Motion to Vacate, Set Aside, or Correct Sentence.

         I. BACKGROUND

         The facts in this case may be summarized as follows: Mr. Edwards was a member of a wholesale cocaine trafficking organization operating in the District of Columbia (the “District”) metropolitan area from January 2009 through April 26, 2011, when he was arrested as a result of an investigation by the Federal Bureau of Investigation and the District of Columbia Metropolitan Police Department. The Government obtained evidence of Mr. Edwards' participation in the organization through various methods, including pen registers, arranged undercover drug buys, judicially-authorized wiretaps, physical surveillance, and surveillance videos. Mr. Edwards and his co-conspirators acquired large quantities of cocaine in California, shipped it to the District, and distributed it to mid-level and street-level dealers. Mr. Edwards was responsible for contacting suppliers in California, ensuring that the multi-kilogram quantities of cocaine were shipped from California to the District, and even cutting and processing the cocaine. Probation Pre-Sentence Investigation Report at 7-11, ECF No. 716. Mr. Edwards was initially represented by Mr. Harry Tun, [3] but was later represented by Mr. A. Eduardo Balarezo during his pretrial and trial proceedings.

         In a Superseding Indictment filed on June 16, 2011, Mr. Edwards was charged with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(ii), 846, and two counts of using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Redacted Superseding Indictment, ECF No. 440. The Superseding Indictment also included asset forfeiture provisions. Id. The two counts of using, carrying and possessing a firearm during a drug trafficking offense were consolidated into one count before the case went to the jury.

         On November 18, 2011, the Government filed the first of two bills of particulars to supplement the forfeiture allegations in the superseding indictment. First Bill of Particulars for Forfeiture, ECF No. 131. The Government described items subject to forfeiture as falling into four categories: money judgment, real property, United States currency, and personal property. Id. at 1-3. On December 13, 2011, the Government filed its second bill of particulars. Second Bill of Particulars for Forfeiture, ECF No. 136. Stemming from both bills of particulars, and with regard to Mr. Edwards, the Government requested a money judgment equal to the value of any and all property constituting, or derived from, any proceeds obtained, directly or indirectly, as a result of the offenses charged, and listed the following assets as subject to forfeiture: $360, 009.00 in U.S. currency; $6, 380.00 in U.S. currency; $16, 538.60 held at TD Bank NA, in the name of Lunar Funding Group, LLC; $6, 064.90 held at TD Bank NA, in the name of The Gueong Edwards Family Trust[4]; one platinum ladies diamond engagement ring; and one ladies Rolex President, oyster perpetual datejust watch.

         On February 22, 2012, Mr. Edwards, through counsel, filed a Motion for Release of Funds, ECF No. 192, alleging that without access to the funds the Government had seized from him, he could not retain counsel of his choice. Mr. Edwards sought a hearing to determine the validity of the Government's seizure of assets as he wanted to use those assets to pay a retainer fee that he and Mr. Balarezo agreed upon should the case proceed to trial. Id. The Government filed a Memorandum in Opposition, ECF No. 194, arguing that Mr. Edwards did not make a threshold showing that he lacked sufficient assets to pay Mr. Balarezo. The Court agreed and denied Mr. Edwards' request without prejudice. Order (Feb. 29, 2012), ECF No. 196.

         Mr. Edwards also filed pretrial suppression motions, two counseled and one pro se, contesting the authorization of the Government's use of wiretaps throughout the investigation. This Court denied each of those motions. See, e.g., United States v. Edwards, 889 F.Supp.2d 1, 18 (D.D.C. 2012); id. at 23-29; United States v. Edwards, 904 F.Supp.2d 7, 9-11 (D.D.C. 2012).

         During its case-in-chief, the Government presented an expert witness and a confidential informant to link Mr. Edwards to the cocaine sold by Mr. Edwards and his co-conspirators. The expert witness testified as to the purity of the cocaine, and the confidential informant (“CI”) testified as to the controlled drug buys. The defense did not present any expert testimony refuting the Government's claims about the origin of the cocaine nor any testimony about the common practices drug dealers use to conceal drugs from detection. Instead, Mr. Edwards' defense at trial questioned whether Mr. Edwards and his co-conspirators entered into an agreement, to prove conspiracy, and cast doubt on the character of the Government's witnesses who testified as to the controlled drug buys. See Trial Transcript (“Tr.”). 14, 16-33, Nov. 15, 2012 P.M. Session, ECF No. 713.

         On November 20, 2012, following a month-long jury trial, the jury found Mr. Edwards guilty on the charge of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, and acquitted him of the charge of using, carrying, and possessing a firearm. Verdict Forms, ECF Nos. 651/653. Following a separate forfeiture hearing, the jury found that the Government proved that the following items constituted or were derived from proceeds that Mr. Edwards had obtained, directly or indirectly, as a result of the conspiracy charged in count one of Superseding Indictment: $360, 009.00 in U.S. currency; $16, 538.60 held at TD Bank NA, in the name of Lunar Funding Group, LLC; $6, 064.90 held at TD Bank NA, in the name of The Gueong Edwards Family Trust; and one ladies Rolex President, oyster perpetual datejust watch. Partial Forfeiture Verdict Form, ECF No. 595; Final Forfeiture Verdict Form, ECF No. 597. The jury found that the Government did not prove that $6, 380.00 in U.S. Currency was subject to forfeiture. Partial Forfeiture Verdict Form; ECF No. 595. The jury was unable to reach a decision as to the platinum ladies diamond engagement ring. Final Forfeiture Verdict Form; ECF No. 597.

         On January 7, 2013, the Government filed a Notice of Forfeiture, ECF No. 670, seeking to forfeit the ring and the $6, 380.00 in U.S. currency as substitute assets pursuant to 21 U.S.C. § 853(p). It later filed a Motion for Preliminary Order of Forfeiture, ECF No. 677, requesting forfeiture of all assets. Mr. Edwards, through counsel, opposed the Government's motion, arguing that it failed to establish any nexus between the ring and the charged offense. Def.'s Opp'n to Gov't's Mot. For Preliminary Order of Forfeiture at 3, ECF No. 695. The Government filed a Second Motion for Preliminary Order of Forfeiture, ECF No. 771, seeking discovery authority to identify and locate assets subject to forfeiture, or substitute assets for such property. This Court granted the Government's Motion for Preliminary Order of Forfeiture. Preliminary Order of Forfeiture, ECF No. 779. The Court entered a Final Order of Forfeiture, ECF No. 867, on February 27, 2014, the day that Mr. Edwards had his sentencing.

         The Court sentenced Mr. Edwards to life imprisonment and a ten-year term of supervised release. Judgment, ECF No. 876. Mr. Edwards filed a timely notice of appeal to the United States Court of Appeals for the District of Columbia Circuit, which affirmed his conviction. United States v. Williams, 827 F.3d 1134, 1141 (D.C. Cir. 2016), cert denied sub nom. Edwards v. United States, 137 S.Ct. 706 (2017). The Government moved subsequently to amend the Final Order of Forfeiture, ECF No. 947. Mr. Edwards, then represented by Mr. David B. Smith, filed his Response to the Government's motion, ECF No. 952. The Court entered an Order of Forfeiture for Substitute Assets, ECF No. 957, granting the Government's motion to amend.

         Mr. Edwards filed the present Motion to Vacate Sentence under 28 U.S.C. § 2255. ECF No. 975. Prior to filing the instant Motion, Mr. Edwards did not file any previous petitions, applications, or motions with respect to the judgment after his direct appeal. Mr. Edwards' Motion is premised on allegations of ineffective assistance of counsel related to his trial counsel, Mr. Balarezo. Mr. Edwards' claims that Mr. Balarezo was constitutionally ineffective fall into six general categories: (1) Mr. Balarezo's handling of the criminal forfeiture aspect of the case both pre-trial and post-trial; (2) Mr. Balarezo's alleged actual conflict of interest; (3) Mr. Balarezo's failure to call an expert witness and to conduct independent testing to rebut the Government's claims regarding the source of the cocaine; (4) Mr. Balarezo's failure to accurately and adequately argue that the evidence obtained from the wiretaps should have been suppressed; (5) Mr. Balarezo's failure to challenge the sufficiency of the Superseding Indictment; and (6) the cumulative effect of Mr. Balarezo's ineffective representation of Mr. Edwards. The Government filed its opposition, ECF No. 1001, and Mr. Edwards filed his reply to the Government's Opposition, ECF No. 1017. With briefing concluded, Mr. Edwards' Motion is now ripe for determination.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside or correct his sentence if he believes that the otherwise final 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.” 28 U.S.C. § 2255(a). The standard for granting such a motion is high, as courts generally respect the finality of judgments and note the opportunities already afforded prisoners to raise objections during trial or on appeal. “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). The petitioner has the burden of proof to demonstrate his right to such relief by a preponderance of the evidence. United States v. Basu, 881 F.Supp.2d 1, 4 (D.D.C. 2012). A court shall grant a hearing to determine the issues and make findings of fact and conclusions of law “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         With few exceptions, a prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622-23 (1998). However, “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show ‘cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000) (citation omitted), aff'd, 22 Fed.Appx. 3 (D.C. Cir. 2001).

         A defendant claiming ineffective assistance of counsel may raise it for the first time as a collateral attack, rather than on direct appeal, but must show (1) “that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, ” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted). For the first prong, “[j]udicial scrutiny of counsel's performance must be highly deferential” and defendant must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks and citation omitted). The Court must consider “counsel's overall performance, ” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” Strickland, 466 U.S. at 689. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686. It is the petitioner's burden to show that counsel's errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011).

         Furthermore, the defendant must meet the second Strickland prong and “affirmatively prove prejudice.” Strickland, 466 U.S. at 693. That is, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 669. To find prejudice, the petitioner must show that there is “a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks and citation omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong.

         III. DISCUSSION

         A district court may deny a Section 2255 motion without a hearing when “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Whether or not to hold a hearing is a decision “committed to the district court's discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.” United States v. Orleans-Lindsay, 572 F.Supp.2d 144, 166 (D.D.C. 2008); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C. 2005), aff'd, 304 Fed. App'x 877 (D.C. Cir. 2008). “The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion.” Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner's Section 2255 motion must “raise ‘detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's ‘personal knowledge or recollection.'” Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).

         Based on a review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant Motion.[5] As explained below, Mr. Edwards has not proffered detailed and specific factual allegations requiring this Court - which handled the trial and sentencing in this case - to look outside the record and hold a hearing on the issues raised in Mr. Edwards' Motion. Accordingly, the Court shall render its findings based on the parties' pleadings and the record in this case.

         Mr. Edwards raises claims of ineffective assistance of counsel as it pertains to: (1) Mr. Balarezo's handling of the criminal forfeiture aspect of the case both pre-trial and post-trial; (2) Mr. Balarezo's alleged actual conflict of interest; (3) Mr. Balarezo's failure to call an expert witness and to conduct independent testing to rebut the Government's claims regarding the source of the cocaine; (4) Mr. Balarezo's failure to accurately and adequately argue that the evidence obtained from the wiretaps should have been suppressed; (5) Mr. Balarezo's failure to challenge the sufficiency of the Superseding Indictment; and (6) the cumulative effect of Mr. Balarezo's ineffective representation of Mr. Edwards. The Court shall address each claim in turn.

         A. Pre-Trial and Post-Trial Handling of the Criminal Forfeiture Aspect of the Case

         The Court will first address the pre-trial handling of the criminal forfeiture by Mr. Balarezo. Mr. Edwards claims that Mr. Balarezo “failed to present assets known by the government to be untainted, and assets that the government could not reasonably meet [the] probable cause [standard] to continue to freeze [them] under an assumption of possible forfeiture for future purposes.” Def.'s Mot. at 18. Mr. Edwards claims that Mr. Balarezo was ineffective in his attempts to secure the return of assets, later determined to be untainted by the jury, to pay the remaining balance of Mr. Balarezo's retainer fee. Def.'s Mot. at 18-19, ECF No. 975.

         In its Order denying Mr. Edwards' Motion for Release of Funds, the Court found that Mr. Edwards “did not provide any additional information regarding his assets, liabilities, sources of income, or other information relevant to his ability to retain legal counsel” other than merely stating that he did not have any available funds to pay Mr. Balarezo's retainer. Order (Feb. 29, 2012) at 4, ECF No. 196. Mr. Edwards' motion stated that “Mr. Edwards has demonstrated that he cannot retain counsel of his choice without the assets that have been seized or retrained [sic].” Mot. to Release Funds at 2, ECF No. 192. Mr. Edwards noted on February 22, 2012, that Mr. Balarezo was his counsel of choice, [6] Def.'s Aff. in Supp. of Mot. for Release of Funds, ECF No. 192-1, and upon questioning by this Court during a status hearing in late July 2012, Mr. Edwards affirmed again that he was satisfied with his counsel.

         The Court found that Mr. Edwards failed to provide information regarding the amount of funds he needed to retain Mr. Balarezo to proceed to trial, and that it could not determine whether the seized assets were necessary for Mr. Edwards to retain counsel of his choice. Order (Feb. 29, 2012) at 5, ECF No. 196. Furthermore, Mr. Edwards could not demonstrate that certain assets seized by the Government “would ...


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