Petition for Writ of Certiorari — Joey Lamont Brunson, Petitioner v. United States
Supreme Court briefDec 31, 2024
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APPENDIX A
JUDGEMENT OF THE UNITED STATES FOURTH CIRCUIT COURT OF APPEALS
FILED: August 1, 2024
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7215
(3:14-cr-00604-JFA-18)
(3:22-cv-00182-JFA)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOEY LAMONT BRUNSON, a/k/a Flex
Defendant - Appellant
JUDGMENT
In accordance with the decision of this court, a certificate of appealability is
denied and the appeal is dismissed.
This judgment shall take effect upon issuance of this court's mandate in
accordance with Fed. R. App. P. 41.
/s/ NWAMAKA ANOWL CLERK
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEY LAMONT BRUNSON, a/k/a Flex,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00604-JFA-18: 3:22cv-00182-JFA)
Submitted: July 30,2024
Decided: August 1,2024
Before NIEMEYER, AGEE, and HEYTENS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Joey Lamont Brunson, Appellant Pro Se. Kathleen Michelle Stoughton, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joey Lamont Brunson seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253tc¥lRBT A certificate of
appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(D. When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists could find the
district court’s assessment of the constitutional claims debatable or wrong. See Buck v.
Davis, 580 U.S. 100. 115-17 (2017). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is
debatable and that the motion states a debatable claim of the denial of a constitutional right.
Gonzalez v. Thaler, 565 U.S. 134. 140-41 (2012) (citing Slack v. McDaniel, 52WUR-473
484 (2000)).
We have independently reviewed the record and conclude that Brunson has not
made the requisite showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal. We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
2
APPENDIX B
JUDGEMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DENIAL OF EN BANC REHEARING
FILED: November 4, 2024
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7215
(3:14-cr-00604-JFA-18)
(3:22-cv-00182-JF A)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOEY LAMONT BRUNSON, a/k/a Flex
Defendant - Appellant
ORDER
Upon consideration of the motion to supplement the petition for rehearing en
banc, the court grants the motion. The petitions for rehearing en banc were
circulated to the full court. No judge requested a poll under Fed. R. App. P._3_5.
The court denies the petitions for rehearing en banc.
For the Court
/s/ Nwamaka Anowi, Clerk
APPENDIX C
JUDGEMENT OF THE DISTRICT COURT OF SOUTH CAROLINA DENYING
28 U.S.C.§2255(a)
AND DENIAL OF CERIFICATE OF APPEALABILITY
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CRNo. 3:14-604-JFA
C/A No. 3:22-cv-182-JFA
United States of America,
Plaintiff-Respondent
ORDER
v.
Joey Lamont Brunson,
Defendant-Petitioner.
I.
INTRODUCTION
This matter comes before the Court for consideration of Joey Lamont Brunson’s
(“Petitioner” or “Brunson”) pro se petition to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255.1 (ECF No. 2697). For the reasons stated below, the Court
dismisses the petition.
II.
FACTUAL AND PROCEDURAL HISTORY
Brunson’s § 2255 motion asserts a slew of claims for relief based on a wide array
of arguments. Accordingly, a brief overview of the facts shown at trial and the procedural
history is necessary to place Brunson’s arguments in the proper context.
A. Conspiratorial Activity
From the early 2000s until his arrest in 2017, Brunson participated in a cocaine
trafficking organization headed by his cousin, Lamario Wright. Brunson’s co-conspirators
i Because the Defendant/Petitioner is acting pro se, the documents he has filed in this case are held
to a less stringent standard than if they were prepared by a lawyer and are thus construed liberally.
See Haines v. Kemer, 404 U.S. 519, 520-21 (1972).
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included Moses Gates, Samuel Richards, Stephen Graham, Sherrod White, and Antonio
Ravenel.
On two occasions in the early 2000s, Brunson and Wright purchased kilograms of
cocaine for resale in South Carolina. Brunson was incarcerated from 2004—2012 following
a federal drug trafficking conviction. After his release, Brunson resumed drug dealing with
Wright and others.
On occasion, Wright sold kilogram quantities of cocaine to Graham for resale. In
2013, Graham saw Brunson and Wright together in Atlanta. In addition, Sherrod White
transported kilogram quantities of cocaine for Wright in his truck from Atlanta to South
Carolina. Once, in Atlanta, Brunson delivered a bag of cocaine to White for shipment.
In the spring of 2013, Wright gave Ravenel several kilograms of cocaine to sell
while Wright was away. Ravenel stole one kilogram to sell for personal profit. After Wright
and Brunson discovered the theft, Brunson confronted Ravenel and repeatedly hit him.
In 2012, the FBI began investigating large-scale drug trafficking organizations in
South Carolina. In June 2013, the FBI obtained judicial authorization to intercept wire and
electronic communications over multiple phones used by Wright to discuss drug dealing.
The FBI intercepted numerous calls and text messages between Brunson and Wright,
including the following:
• On August 6, 2013, in a call, Brunson referred to his beating of Ravenel.
• On October 11, in a call, Brunson asked Wright for two ounces of cocaine.
• On October 12, in a text message, Brunson asked Wright for 4.5 ounces of cocaine.
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• On October 16, in a call, Brunson asked Wright for between 4.5 ounces and 9
ounces of cocaine.
• On October 18, in a text message, Brunson asked Wright whether he was going to
deliver 4.5 ounces of cocaine to him.
• On October 18, in a call, Brunson said that Richardson owed a $5,000 drug debt
and that Richardson was making crack cocaine.
In November 2013, Wright was arrested and incarcerated on drug charges.
Afterwards, Wright told Brunson to retrieve cocaine that Wright had stored in some woods
and to give the drugs to Mark James for resale. Brunson complied and later told Wright that
James had sold that cocaine.
Sometime in 2013, Wright purchased a Cadillac Escalade for approximately
$37,000. Wright made an initial $10,000 down payment and then directed Brunson to obtain
$27,000 from Graham, who owed Wright money for a cocaine deal. Wright directed
Brunson to title the vehicle in Brunson's name and then gave Brunson cash from Wright's
drug proceeds to pay the insurance on the vehicle. Wright carried drug proceeds in the
Escalade.
During Wright’s arrest, the FBI seized his Escalade. In early December 2013,
Brunson contacted the FBI and asked that it return the vehicle to him. On December 9, at a
meeting with FBI Special Agent Jason Greenan and other agents, Brunson admitted that the
Escalade belonged to Wright after initially stating that it belonged to him. Brunson also
admitted that he had previously been convicted of a crime punishable by imprisonment
exceeding one year. The FBI agents then played three intercepted calls between Brunson
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and Wright to Brunson. Brunson said that he was not in the drug business and that he was
trying to discourage Wright from dealing drugs.
B. Indictment and Arrest
In August 2014, a federal grand jury indicted Brunson and others for conspiracy to
distribute cocaine and crack cocaine in violation of 21 U.S.C. § 846. (ECF No. 3). Despite
investigative efforts, the FBI was unable to locate Brunson for some time.2
In April 2016, SA Greenan, attempting to locate Brunson, staked out an address in
Eutawville associated with Brunson. Greenan observed a black male matching Brunson’s
description exit a silver Suzuki. Greenan observed the man reenter the vehicle and depart
the residence. Greenan followed the silver Suzuki, which DMV records showed was
registered to Jamall Lamar Brunson, Joey Lamont Brunson’s brother. Greenan initiated
blue lights, and the vehicle began to pick up speed and a chase ensued. Ultimately, the
vehicle stopped at a residence, and the driver fled on foot into a wood line and escaped.
Before the silver Suzuki was towed, an inventory search was performed, and in plain view
behind the driver’s seat, officers found a marijuana plant. They also found documentation
referencing federal wiretap statistics for 2013, and a CD with “Joey Brunson” written on
it. The car was later released to Jamall.
In 2017, the FBI learned that Brunson was depositing unusually large sums of
money into accounts at credit unions in Charleston and Summerville. On March 3, 2017,
Brunson drove the same Suzuki that Greenan had encountered to the Summerville credit
2 Although a fugitive at the time, Brunson filed several pro se motions, including a motion to
dismiss the indictment, prior to his arrest.
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union to make a deposit. Local law enforcement agents stationed at the credit union arrested
Brunson. He was arrested with the keys to the Suzuki clipped to his belt. And in his wallet,
police found a business card Greenan had left at Brunson’s mother’s home.
On March 10,2017, FBI agents executed a search warrant on the Suzuki and seized
two pistols, ammunition, crack cocaine, cocaine, marijuana, drug paraphernalia, and a drug
ledger.
C. Pre-trial Proceedings
Shortly after arrest, Brunson sought release on bond. He was represented at that time
by Timothy Ward Murphy, Esq., who the Court had appointed. Against counsel’s advice,
Brunson testified at the bond hearing. Under oath, Brunson falsely told the Court that his
references to “a nine” and a “four way” on intercepted calls referred to a car’s lug nut
socket and a tire iron. He also testified that he did not drive the Suzuki to the bank on the
day of his arrest. According to Brunson, someone else dropped him off there in a different
car, and then his brother Jamall drove up in the Suzuki and handed him the keys. That
resulted in the Government obtaining an additional charge against Brunson for peijury.
Approximately two weeks later, Brunson moved for Murphy to be relieved. The
Court granted that request, and then new, retained counsel appeared. Counsel moved to
suppress evidence obtained from the wiretaps and from the search of the Suzuki. After a
hearing, the Court denied those motions in October 2013. Brunson dismissed his new
counsel that day and requested time to get a new lawyer. Thereafter, Brunson, by his own
choice, represented himself for several months.
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In November 2017, the FBI conducted a search of Brunson’s jail cell. This search
was based on information from several cooperators that Brunson was communicating with
codefendants by mail to influence their testimony and that Brunson had sensitive personal
information of government attorneys and the court. Brunson was removed from his cell
and all materials in his cell were searched by agents who were not involved in the
underlying investigation. All seized materials were then reviewed by an Assistant United
States Attorney who was not on the prosecution team (i.e., a “filter team”) to ensure that
no privileged or attorney-client material was transferred to the prosecution team.
Around that time, Brunson also moved to be released on bond. The Court denied his
request. However, after confirming Brunson wanted to represent himself, the Court
appointed former counsel Murphy as standby counsel.3
D. Trial
The four-day trial took place in March 2018. All twelve charges against Brunson
went forward:
•
Count 1: conspiracy to traffic five kilograms or more of cocaine and an
additional quantity of crack cocaine, in violation of 21 U.S.C. § 846;
•
Counts 2-7: using a telecommunications facility for drug trafficking, in
violation of 21 U.S.C. § 843(b);
•
Count 8: conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h);
•
Count 9: possession of cocaine and marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1);
3 As noted in several transcripts of record, both the Magistrate Judge and the undersigned followed
their well-established practice of repeatedly advising Brunson of the potential dangers of selfrepresentation and the benefits of accepting appointed counsel.
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• Count 10: transporting a firearm by a felon, in violation of 18 U.S.C. §
922(g)(1);
• Count 11: possession of a firearm in furtherance of drug trafficking offense,
in violation of 18 U.S.C. § 924(c)(1); and
• Count 12: perjury, in violation of 18 U.S.C. § 1621.
The Government called several witnesses, including: SA Greenan; FBI Special
Agent Brian M. Jones; ATF Special Agent Richard Brown; FBI Special Agent Luke Davis;
Defendant Lamario Vincent Wright; Defendant Samuel Richards; Defendant Stephen
Michael Graham; Defendant Moses Lofton Gates; Defendant Antonio Deshawn Ravenell;
Defendant Sherrod Kovach Jerrell White; Jackie Wade, Branch Manager, Navy Federal
Credit Union; and Rachel Sumner, Member Service Representative, Navy Federal Credit
Union. In addition, the Government presented several items of evidence, including wiretap
recordings involving Brunson’s drug activities with Wright and others. Brunson was the
only witness to testify in his defense.
Brunson also represented himself for the first part of the trial, giving his own
opening statement and cross-examining the first two witnesses—Greenan and Wright.
After that, Brunson asked Murphy to take over as lead counsel and Murphy handled the
rest of the trial.
The jury found Brunson guilty on all counts.
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E. Post-Trial
After the verdict, Murphy filed a motion for a new trial, arguing that a recent
Supreme Court decision showed the wiretap evidence was defective and should have been
suppressed. The Court denied that motion.
Brunson was sentenced in September 2018. After addressing numerous arguments
Murphy made on Brunson’s behalf, the Court imposed the statutorily required sentence of
life in prison, plus a mandatory 60 consecutive months for the firearms charge. Brunson
appealed.
Brunson was initially represented on appeal by Jessica Salvini, Esq. He moved for
her to be relieved before she filed a brief. Then the Court appointed David Betts, Esq., who
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether
this Court properly denied Brunson’s wiretap challenges. Brunson also filed three pro se
supplemental briefs, raising a variety of issues. The Fourth Circuit directed supplemental
briefing on the wiretap issue as well as on a question about the First Step Act’s retroactivity.
The Fourth Circuit held oral argument and then affirmed in a split opinion. United States
v. Brunson, 968 F.3d 325 (4th Cir. 2020).
Brunson then filed the instant pro se § 2255 motion asserting 14 claims ranging
from lack of jurisdiction to ineffective assistance of counsel. (ECF No. 2697). The
Government then filed a response to Brunson’s petition along with a motion for summary
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judgment. (ECF No. 2818). Both parties then submitted additional briefing on the motion
for summary judgment. (ECF No. 2849 & 2864).4 Thus, this matter is ripe for review.
Brunson also filed several other related motions including: a motion for discovery
(ECF No. 2850); a motion for an evidentiary hearing (ECF No. 2851); a petition for writ
of habeas corpus ad testificant and ad prosequendum (ECF No. 2900); and a motion for a
status conference. While the Court was finalizing this order, Brunson filed a petition for
writ of mandamus with the Fourth Circuit.
III.
LEGAL STANDARD
A.
28U.S.C. § 2255
Prisoners in federal custody may attack the validity of their sentences pursuant to
28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence
under § 2255, a defendant/petitioner must prove that one of the following occurred: (1) a
sentence was imposed in violation of the Constitution or laws of the United States; (2) the
court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of
the maximum authorized by law; or (4) the sentence is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a).
“The scope of review of non-constitutional error is more limited than that of
constitutional error; a non-constitutional error does not provide a basis for collateral attack
unless it involves ‘a fundamental defect which inherently results in a complete miscarriage
4 After Brunson filed his initial §2255 motion, this matter was stayed pending the appeal of this
Court’s order denying Brunson’s motion for recusal. The stay was lifted after receipt of the
mandate from the Fourth Circuit dismissing that appeal.
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of justice,’ or is ‘inconsistent with the rudimentary demands of fair procedure.’” Leano v.
United States, 334 F. Supp. 2d 885, 890 (D.S.C. 2004) (quoting United States v.
Mikalajunas, 186 F.3d490, 495-96 (4th Cir. 1999)).
In deciding a § 2255 petition, a court need not hold an evidentiary hearing if “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). The Court has thoroughly reviewed the motions, files,
and records in this case, liberally construing Petitioner’s filings, and finds that no hearing
is necessary.
“When the district court denies § 2255 relief without an evidentiary hearing, the
nature of the court's ruling is akin to a ruling on a motion for summary judgment.” United
States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).
B.
Summary Judgment
Summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c)(2). The movant has the burden of proving that summary judgment is appropriate.
Once the movant makes the showing, however, the opposing party must respond to the
motion with “specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2).
When no genuine issue of any material fact exists, summary judgment is
appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). In deciding a
motion for summary judgment, the facts and inferences to be drawn from the evidence
must be viewed in the light most favorable to the non-moving party. Id. However, “the
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mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 24748 (1986).
“[OJnce the moving party has met [its] burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to
show that there is a genuine issue for trial.” Baber v. Hospital Corp. ofAm., 911 F.2d 872,
874_75 (4th Cir. 1992). The nonmoving party may not rely on beliefs, conjecture,
speculation, or conclusory allegations to defeat a motion for summary judgment. See id.
Rather, the nonmoving party is required to submit evidence of specific facts by way of
affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a
genuine and material factual issue for trial. Celotex Corp. v. Catrett, All U.S. 317, 322
(1986).
IV.
DISCUSSION
Brunson’s § 2255 motion asserts 14 separate grounds for relief which often overlap.
As a general matter, many of his claims are barred by procedural default or the prohibition
on relitigating issues presented on direct appeal. Moreover, each of his claims lack merit.
Each claim for relief is addressed in turn below.
A. Ground 1: Sixth Amendment Violation (Faretta Claim)
First, Brunson argues that his “Sixth Amendment due process right to self
representation to prepare [his] own defense was violated . ...” (ECF No. 2697-1, p. 1). In
his response, Brunson makes clear that his claim is not one for ineffective assistance of
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counsel, but rather a violation of his Sixth Amendment rights. Essentially, Brunson takes
issue with his alleged inability to present a defense to all counts while representing himself
at trial.
More specifically, Brunson avers that by appointing Murphy, first as standby
counsel and later as lead counsel, the Court violated Brunson’s right to represent himself.
He argues this affected his case because Murphy did not call favorable witnesses who
Brunson had planned to use at trial, among other things.
Initially, this claim fails as it is procedurally defaulted. A § 2255 motion is not a
substitute for a direct appeal. See United States v. Frady, 456 U.S. 152,165 (1982). Claims
of error that could have been raised on direct appeal, but were not, are procedurally barred
unless the petitioner shows both cause for the default and actual prejudice or that he is
actually innocent of the offense. See Bousley v. United States, 523 U.S. 614, 621-22
(1998); United States v. Bowman, 267 F. App’x 296,299 (4th Cir. 2008) (per curiam).
“[Cjause for a procedural default must turn on something external to the defense,
such as the novelty of the claim or a denial of effective assistance of counsel.” United States
v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). To show actual prejudice, a petitioner
must demonstrate that errors in the proceedings “worked to his actual and substantial
disadvantage” and were of constitutional dimension. See Frady, 456 U.S. at 170. To show
actual innocence, a petitioner must demonstrate that he “has been incarcerated for a crime
he did not commit.” United States v. Jones, 758 F.3d 579, 584 (4th Cir. 2014).
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“Ineffective assistance of counsel can constitute ‘cause’ excusing a procedural
default.” United States v. Norman, No. CR 7:17-527-HMH, 2020 WL 4043648, at *3
(D.S.C. My 17, 2020) (quoting Murray v. Carrier, All U.S. 478,488-89 (1986)).
To show ineffective assistance of counsel, the petitioner must demonstrate: (1) that
his counsel’s performance fell below an objective standard of reasonableness; and (2) that
he was prejudiced by his counsel’s deficient performance. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Failure of proof on either prong ends the matter. United States
v. Roane, 378 F.3d 382, 404 (4th Cir. 2004). With respect to the first prong, there is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, at 689. A reviewing court must be highly deferential
in scrutinizing counsel’s performance and must filter from its analysis the distorting effects
of hindsight. Id. at 688-89. Only in “relatively rare situations” will a petitioner establish
that, “‘in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.’” Tice v. Johnson, 647 F.3d 87, 102
(4th Cir. 2011) (quoting Strickland, 466 U.S. at 690).
The presumption of effectiveness is even more deferential for appellate advocacy.
“Effective assistance of appellate counsel does not require the presentation of all issues on
appeal that may have merit.” United States v. Mason, 11A F.3d 824, 828-29 (4th Cir. 2014)
(internal citation omitted). Indeed, “winnowing out weaker arguments on appeal and
focusing on those more likely to prevail ... is the hallmark of effective appellate
advocacy.” Smith v. Murray, All U.S. 527, 536 (1986) (internal citation omitted). But
appellate counsel may render deficient performance by failing to raise “issues [that] are
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clearly stronger than those presented.” Mason, 11A F.3d at 829 (internal citation omitted).
The ineffective assistance inquiry therefore requires a court to compare the strength of an
issue not raised on direct appeal with the strength of arguments that were raised. See Id.
In addition to showing ineffective representation, the defendant must also 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.” Strickland, at 694. “The
likelihood of a different result must be substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693).
The rule for procedural default includes claims under Faretta v. California, 422 U.S.
806 (1975), first raised on collateral review. See, e.g., Brisbane v. United States, No. 9:04cr-00524-DCN, 2017 WL 2311586, at *4 (D.S.C. May 26,2017).
Here, Brunson did not assert this Faretta claim within his direct appeal and his claim
is therefore barred by the doctrine of procedural default unless he can demonstrate cause
and prejudice or actual innocence. Although ineffective assistance of counsel can constitute
the “cause” necessary to excuse procedural default, Brunson has made no such showing
here.
In this instance, appellate counsel, Betts, carefully reviewed the record and the law
and then found there were no arguable grounds for appeal, filing an Anders brief. He
nevertheless questioned whether this Court properly denied Brunson’s motion to suppress
the wiretap evidence. Accordingly, appellate counsel performed the precise “winnowing”
analysis that affords appellate counsel the presumption of effective assistance.
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Brunson has offered no support to show his defaulted Faretta claim would have
been clearly stronger on direct appeal than the wiretap issue Betts raised.5
Even if Betts’ omission of this issue could somehow satisfy the first prong of
ineffectiveness, Brunson would not be able to show prejudice. By filing an Anders brief,
the Fourth Circuit was caused to review the entire record to see if there were any potentially
meritorious issues for review. In addition to the wiretap issue Betts raised, the Fourth
Circuit also found an issue involving the First Step Act’s retroactivity—an issue no one
had previously raised on appeal. Had the Fourth Circuit found there was a potentially
meritorious Faretta issue, it would have ordered briefing on that. The Court’s failure to
identify this as a potential meritorious issue undercuts any remaining possibility that Betts
performed deficiently or that he prejudiced Brunson. See Murray v. Carrier, All U.S. 478,
494 (1986) (to show actual prejudice, a defendant must show the defect he cites as cause
worked to his “actual and substantial disadvantage,” not merely that it created a “possibility
of prejudice”).
Accordingly, Brunson has not offered any legitimate basis for excusing the
procedural default of the claim he now wants this Court to adjudicate. Consequently, the
claim is subject to denial without reaching the merits. See Garrett v. United States, No.
2:03-cr-59,2006 WL 1647314, at *4 (E.D. Va. June 13, 2006) (finding defendant’s failure
5 Apparently, Brunson did not find it to be a winning argument, either. He filed three pro se briefs
on direct appeal. Although the 150 pages of additional briefing raised a variety of issues, Brunson
failed to raise a Faretta violation.
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to show counsel was ineffective by not appealing “necessarily prevent[ed] him from
pursuing [the defaulted] grounds in his § 2255 motion”).
Additionally, Brunson makes unsubstantiated claims throughout his briefings of
actual innocence in an effort to avoid procedural default. Establishing actual innocence
requires the defendant to prove ‘“that no reasonable juror would have convicted him.’”
Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298,
327-28 (1995)). He must prove this “by clear and convincing evidence.” United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999).
Specifically, Brunson maintains that he was never in the Suzuki on the day he was
arrested at the bank. He tries to support that claim with what he represents to be an affidavit
from his brother, Jamall. (ECF No. 2735-1). The affidavit avers that the gun and drugs in
the Suzuki were Jamah’s and that Brunson did not know about them because he did not go
inside the car. Id. The affidavit falls far short of demonstrating actual innocence on any
charge, let alone all charges, by clear and convincing evidence.
Brunson omits the fact that his cell phone was found in the Suzuki that day, he had
the keys to it when he was arrested, and he had been observed driving it before. Thus, it is
far from clear that any reasonable juror would not have convicted him. And in any event,
Jamah’s affidavit would, at best, relate to Counts 9 through 12. It offers nothing as to
Counts 1 through 8. Brunson’s actual innocence assertion misses the mark. Consequently,
Brunson’s claim is barred by procedural default.
Even if this Court were to hold this claim is not barred by procedural default, it
would still fail on the merits. The Sixth Amendment guarantees criminal defendants the
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right to trial counsel and also the right to self-representation. Faretta, 422 U.S. at 835. The
right of self-representation generally must be honored even if the district court believes
that the defendant would benefit from the advice of counsel. Id. at 834.
Brunson contends this Court violated the self-representation rights recognized in
Faretta by appointing Murphy as standby counsel. But Faretta itself undercuts his
argument. There, the Supreme Court recognized that courts “may—even over objection by
the accused—appoint a standby counsel to aid the accused.” 422 U.S. at 834 n.46; see also
McKaskle v. Wiggins, 465 U.S. 168, 178-79 (1984) (appointment of standby counsel over
self-represented defendant's objection is permissible). Thus, simply appointing Brunson a
standby attorney was not improper.
Brunson next argues that his Sixth Amendment rights were violated when he was
unable to procure a private investigator, he was unable to secure transcripts from a separate
criminal action, and by the Government’s use of a filter team to search his jail cell prior to
trial.
Prior to trial, Brunson, while representing himself, asked the Court for permission
to retain an investigator. In a hearing several weeks before trial, the Court granted that
request, saying it would agree to authorize funding for an investigator’s services. However,
Brunson never retained one. Murphy contests that Brunson ever specifically asked him to
help procure a private investigator. Brunson however avers he specifically requested such
help from Murphy. When construing the facts in Brunson’s favor, the Court must assume
Brunson requested Murphy’s aid in finding an investigator. However, Murphy was stand
by counsel at the time. Because there is no right to standby counsel, a defendant cannot
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base an ineffective-assistance claim on standby counsel’s acts or omissions. See
Alkebulanyahh v. Byars, No. 6:13-cv-00918-TLW, 2014 WL 8849503, at *22 (D.S.C. Nov.
5,2014) (collecting cases), supplemented, 2015 WL 2381351 (D.S.C. Mar. 3,2015), report
and recommendation adopted, No. 6:13-cv-00918-TLW, 2015 WL 2381353 (D.S.C. May
18,2015). Thus, Brunson cannot point to Murphy’s actions or inactions as standby counsel
as violation of his Sixth Amendment rights.
Even if he could point to Murphy’s inaction on this point, Brunson has failed to
show how the outcome of his proceedings would have been any different. Brunson has
offered nothing but pure speculation to show what information or aid a private investigator
would have procured for use in trial. (ECF No. 2849-1, p. 8) (“[I]t is not inconceivable that
if given the private investigator, Brunson requested at February hearing rather than after
March 6, 2017 hearing, that I would’ve done better at trial.”).
Brunson also avers that the Court violated his right to self-representation when it
denied his access to certain materials such as copy of the transcript of Agent
Greenan’s testimony in the obstruction trial of Pagan Bames, Brunson’s wife. Brunson’s
request was denied after this Court found that the transcript was irrelevant to Brunson’s
case.
Again, Brunson’s complaint about impeachment materials could have been raised
on direct appeal, but it was not, and so it was defaulted. Moreover, Brunson fails to show
how such a decision was a violation of his Sixth Amendment rights. Indigent defendants
do not have an absolute right to free copies of transcripts. Rather, the decision whether to
provide a defendant free copies is committed to a court’s discretion. See United States v.
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Kalita, 59 F. App’x 522, 523 (4th Cir. 2003). Brunson offers no authority suggesting that
the Court, by exercising its discretion, violated his constitutional right to prepare a defense.
Brunson next takes issue with the use of a filter team to search his jail cell after
allegations of witness tampering. Brunson alleges that the filter team protocol was not
honored here, and that the prosecution team did in fact read and use his files. However,
Brunson offers no evidence to support such an assertion. Brunson appears to base this claim
on AUSA Rowell stating at hearing that “we” were copying the files and returning them to
him. There is no indication that Rowell was referring to the prosecution team here but
rather “we” referred to the Government broadly, including the filter team that did its work
independently of the prosecution team to ensure that the latter received no privileged or
otherwise protected materials. Rowell was not suggesting he or anyone on his prosecution
team had such materials. Other than speculating on this issue, Brunson offers no evidence
that proper filter team protocol was not used.
Finally, Brunson argues he “succumbed” mid-trial to the Court’s “pressure” to have
Murphy represent him. Thereafter, Murphy decided not to call some of Brunson’s family
as witnesses, leaving Brunson alone to testify in his defense. Murphy’s strategic decisions
regarding witness selection are discussed in detail below in relation to Brunson’s other
claims. Here, though, the dispositive point is that Brunson knowingly and voluntarily
surrendered his right to proceed pro se. This Court made sure of that during trial, and it
reaffirmed that when it considered Brunson’s recusal motion. Having freely made that
choice, Brunson cannot now use his voluntary and informed decision to attack his
conviction.
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B. Ground 2: Counsel’s Conflict of Interest
Brunson next avers that his Sixth Amendment rights were violated because Murphy
represented him despite “an obvious ongoing conflict of interest.” (ECF No. 2697-1, p. 6).
“When a petitioner premises his ineffective assistance claim on the existence of a
conflict of interest, the claim is subjected to the specific standard spelled out in Cuyler v.
Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), instead of that articulated
in Strickland..'’'’ United States v. Nicholson, 475 F.3d 241, 249 (4th Cir. 2007).
“To establish that a conflict of interest resulted in ineffective assistance, more than
a mere possibility of a conflict must be shown.” Id. (cleaned up). The defendant “must
show (1) that his lawyer was under ‘an actual conflict of interest’ and (2) that this conflict
‘adversely affected his lawyer’s performance.’” Id. (quoting Cuyler, 446 U.S. at 348).
The mere possibility of conflict is not enough to satisfy the first requirement. United
States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991). Rather, the defendant “must show that
his interests diverged with respect to a material factual or legal issue or to a course of
action.” Nicholson, 475 F.3d at 249 (cleaned up). In other words, an actual conflict exists
when “the attorney is actively engaged in legal representation which requires him to
account to two masters . . . [and] it can be shown that he took action on behalf of one.”
Tatum, 943 F.2d at 376.
But even when an “actual conflict” is shown, “an adverse effect is not presumed.”
Nicholson, 475 F.3d at 249. Instead, the defendant must separately prove that the conflict
adversely affected his counsel’s performance by satisfying the three-prong test set forth in
Mickensv. Taylor:
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First, the [defendant] must identify a plausible alternative defense
strategy or tactic that his defense counsel might have pursued. Second, the
[defendant] must show that the alternative strategy or tactic was objectively
reasonable under the facts of the case known to the attorney at the time of the
attorney’s tactical decision. . . . Finally, the [defendant] must establish that
the defense counsel’s failure to pursue that strategy or tactic was linked to
the actual conflict.
240 F.3d 348, 361 (4th Cir. 2001) (en banc) (citation omitted).
Here, Brunson has failed to satisfy any of these requirements. Initially, Brunson
appears to argue that Murphy made litigation choices based on a personal desire to maintain
a favorable reputation with the Government. Brunson offers no direct evidence supporting
such an assertion. Instead, he asks the Court to infer the existence of conflict based on
Murphy’s performance at trial. Specifically, Brunson takes issue with Murphy’s decision
to not call Brunson’s family members as witnesses; his declining to object to testimony
about crack cocaine found in Brunson’s vehicle; and certain comments made in closing
arguments. Brunson also alleges that before trial, Murphy declined to move to suppress the
wiretaps because he thought such a motion would lack merit.6
Although Brunson obviously disagrees with these trial decisions, they in no way
show Murphy acted under a conflict of interest. Instead, these actions were strategic
decisions that an attorney is permitted to make without a defendant’s consent. See Sexton
v. French, 163 F.3d 874, 885 (4th Cir. 1998)(“Decisions that may be made without the
defendant's consent primarily involve trial strategy and tactics, such as what evidence
6 Brunson makes various other arguments relating to Murphy’s performance at trial such as
alleging the jury saw him in leg irons. In addition to touching on those arguments here, many of
these same allegations are discussed in greater detail below as they are more akin to an ineffective
assistance of counsel claim.
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should be introduced, what stipulations should be made, what objections should be raised,
and what pre-trial motions should be filed.”) (cleaned up). Such strategic decisions must
be evaluated under the great deference counsel are afforded under Strickland. Brunson
cannot obtain heightened judicial scrutiny of them simply by asserting they make out a
circumstantial case Murphy acted in hidden self-interest. See, e.g., United States v. ReyesBosque, 596 F.3d 1017, 1034 (9th Cir. 2010) (finding no conflict of interests where the
alleged attorney-client conflict “centered on the fact that [the client] was unhappy with
counsel’s performance”); United States v. Fields, 483 F.3d 313,353 (5th Cir. 2007) (“Mere
disagreement about strategic litigation decisions is not a conflict of interest.”); Simon v.
United States, No. 4:12-cr-742-RBH-1,2017 WL 4156357, at *10 (D.S.C. Sept. 19,2017)
(finding defendant’s disagreements about strategic decisions, and his “personality clashes”
with counsel, did not create a conflict).
Brunson also recounts a heated exchange he had with Murphy in an affidavit
attached to his motion. However, even assuming his recitation is accurate, such a heated
conversation does not rise to the level of a conflict of interest. See Brown v. United States,
No. CIV.A. DKC 07-0170, 2011 WL 886214, at *4 (D. Md. Mar. 11, 2011) (“Where the
disagreements do not entirely destroy the attorney-client relationship, such disagreements
do not constitute legal conflicts of interests that establish ineffective assistance of
counsel.”). Thus, although Brunson may have had disagreements with Murphy through his
representation, none of Brunson’s allegations rise to the level of a conflict of interest.
Moreover, Brunson has failed to show how Murphy’s alleged conflict of interest
affected his performance. Brunson offers no explanation of how he can satisfy the three
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Mickens requirements for adverse effect. First, he has not shown any plausible defense
strategy that would have been objectively reasonable for Murphy to pursue. For example,
Brunson faults Murphy for not objecting to a DEA chemical analysist’s testimony about
drugs found in Brunson’s car. However, Brunson himself had already consented to those
drugs being admitted into evidence while he was proceeding pro se. Similarly, Brunson
complains that Murphy did not call Special Agent Greenan back to the stand for further
questioning. Brunson ignores the fact that Greenan testified while Brunson was
representing himself. It was thus Brunson’s responsibility to cross-examine Greenan at that
time.
As for Brunson’s complaints that Murphy chose not to call Brunson’s family as
witnesses, he has not demonstrated how calling them would have been objectively
reasonable to Murphy. Murphy noted in his affidavit that he had serious reason to doubt
the family’s credibility. At a bond hearing, Brunson’s mother and father each came so close
to incriminating themselves on the stand that this Court had to advise them of their Fifth
Amendment privilege against self-incrimination. Moreover, Murphy had serious doubts as
to the veracity of Jamall’s proposed testimony wherein he allegedly would have taken
responsibility for the drugs and gun found in the Suzuki. Choosing which witnesses to call
for trial is classic trial strategy to which counsel’s choices are afforded great deference.
Brunson has failed to show why Murphy’s decisions were not reasonable.
This conclusion applies equally to any decision made regarding the filing of a
motion to suppress. Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998)(“The decision
whether to file a pre-trial motion to suppress a confession is a classic tactical decision.”).
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Moreover, Murphy raised the wiretap issue after trial which shows he was willing to raise
that argument once he thought it was warranted. Thus, Brunson’s argument that Murphy’s
alleged refusal to seek suppression in March 2017 was borne out of self-interest is without
merit.
As a separate part of this claim, Brunson asserts Murphy was ineffective for
allowing the jury to see Brunson in leg irons or not otherwise asking for a mistrial after
they saw him in leg irons. Brunson has offered no support for his contention that the jury
actually saw him in leg irons. Indeed, the undersigned is noted in the trial transcript as
thanking the AUSA for preventing the jury from seeing Brunson in leg irons. Thus,
Brunson has offered no evidence to support his contention the jury saw him in irons, that
he was prejudiced in any way, or that his counsel was somehow deficient in not objecting.
Brunson also complained that Murphy failed to recall Agent Greenan or Lamario
Wright to the stand after he took over the defense. However, as the Government points out,
these witnesses were called while Brunson was representing himself. Brunson extensively
cross-examined both men; he re-crossed Wright but not Agent Greenan. He thus had a full
and fair opportunity to impeach them. Any shortcoming in those cross-examinations falls
on Brunson, not Murphy.
C. Ground 3: Ineffective Assistance of Trial Counsel (Failure to Call Witnesses)
Brunson’s next series of arguments assert claims for ineffective assistance of
counsel as to various actions or decisions Murphy undertook during trial. Initially, Brunson
asserts Murphy should have called several additional witnesses at trial including his father
Joe Clemons, his brother Jamall Brunson, and Valerie Austin.
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“The decision not to call particular defense witnesses is normally a strategic
decision demanding the assessment and balancing of perceived benefits against perceived
risks, and one to which ‘[Courts] must afford... enormous deference.’” Basham v. United
States, 109 F. Supp. 3d 753, 838 (D.S.C. 2013) (quoting United States v. Terry, 366 F.3d
312, 317 (4th Cir. 2004)). That deference creates “a presumption that ‘counsel’s conduct
falls within the wide range of reasonable professional assistance.’” Byram v. Ozmint, 339
F.3d 203, 209 (4th Cir. 2003) (quoting Strickland, 466 U.S. at 669). This is a decision for
counsel alone to make, “even when the client disagrees.” United States v. Chapman, 593
F.3d 365, 369 (4th Cir. 2010). “The reasonableness of the tactical decision actually made
by counsel is of course subject to challenge, but the decision is not unreasonable simply
because the client expressed a contrary view.” United States v. Chapman, 593 F.3d 365,
369 (4th Cir. 2010).
Here, Brunson has not shown that the decision not to call these witnesses was
unreasonable or otherwise outside of the deference afforded to defense counsel. First,
Murphy explained in his affidavit that in Murphy’s lengthy career of criminal litigation, he
found that family members are “generally poorly received as witnesses.” Moreover,
Murphy was particularly concerned that these family members, Jamall Brunson and Joe
Clemons, were not credible witnesses.
Clemons testified for Brunson at the December 2017 bond hearing. During his
testimony, the Government asked him if, while in pretrial detention in this case, Brunson
had asked him to get something out of a drawer in Brunson’s house. When Clemons denied
doing that, the Government indicated it had a recording of Brunson and Clemons
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discussing this. After the Court warned Clemons about the danger of a peijury charge, he
invoked his right to remain silent. Murphy was at that hearing and cited this testimony as
a reason to believe that Clemons would not be credible and that calling him might be
ethically problematic. Moreover, as Brunson acknowledges, ethical rules allow attorneys
not to elicit testimony they reasonably believe may be false. United States v. McCoy, No.
CR 98-207, 2005 WL 8159961, at *2 (E.D. La. Apr. 15, 2005) (“[T]he Court finds that it
is reasonable for defense counsel to believe that any such alibi witnesses were willing to
commit peijury in testifying at trial. Any attempt by the defendant's counsel to elicit false
testimony through alibi witnesses would be in violation of the Rules of Professional
Conduct governing the proceeding.”).7
Murphy also spoke with Brunson’s brother, Jamall, during a break in the trial.
Jamall told Murphy he would testify that he drove the Suzuki to the bank without Brunson,
and that Brunson had no idea the car contained drugs and a gun. Murphy found that story
had “at best [] questionable value” and was “likely false”; it was contrary to what the bank’s
surveillance videos clearly showed. Murphy Aff. at 6. Based on that assessment, Murphy
determined it would not be helpful for Jamall to testify and that calling Jamall would be
unethical.
7 Also, Brunson offers no proffer of what his father, Clemons, specifically would have said about
Wright’s truthfulness. That omission precludes Brunson from showing his father’s testimony
would have been not only admissible but impactful. See, e.g., Jones v. United States, No. 1:16-cr94-MOC-DLH-1, 2020 WL 7318140, at *3 (W.D.N.C. Dec. 11, 2020) (“[A] defendant claiming
ineffective assistance of counsel based on an uncalled witness should make a proffer of testimony
from the uncalled witness.”).
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Brunson has also failed to show why it was unreasonable to decline calling Valerie
Austin who Brunson identified as “compromised” and romantically committed to one of
the Government’s key witnesses. Brunson avers that she could testify under Rule 608 that
Wright was not truthful at trial. He claims she would have testified Wright told her that he
and Brunson did not deal drugs together in 2012 and 2013, and that the Government was
pressuring him to lie in exchange for a sentence reduction. However, Brunson has not
offered any statement from Austin specifying what testimony she would have offered if
she had been called to the trial. Thus, his assertions are pure speculation and cannot be used
to support his claims.
Accordingly, Brunson has failed to show how Murphy’s strategic decision to not
call these witnesses fell outside of an objective standard of reasonableness.
Moreover, Brunson has failed to establish any prejudice by showing a reasonable
likelihood the outcome of his trial would have been any different. Brunson contends Jamall
would have testified he was the one driving around with a gun, illegal drugs, and other
evidence of a drug-dealing operation. Even if the Court were to assume that Jamall was
willing to incriminate himself, this account is contradicted by video footage offered at trial.
Therefore, it is unlikely a jury would have believed Jamall’s version of events.
Meanwhile, Brunson does not identify what Clemons or Austin would have said at
trial or offer any support for how their testimony would have changed the outcome. As to
Austin, Brunson specifically cross-examined Wright about his conversations with Austin.
Wright admitted he told her that he and Brunson did not deal drugs together, but then he
clarified to the jury that they did, in fact, do so a few times. In other words, the jury had
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already learned about Wright’s and Austin’s conversations, and it convicted Brunson
anyway. Hearing about it again from Austin was unlikely to have changed that result.
In a somewhat related ground, Brunson faults Murphy for saying in closing that
Brunson’s explanation of how he got the keys to the Suzuki was “not a total fabrication.”
Brunson cannot show this comment was improper. Brunson would have the Court place
the emphasis on “total,” such that Murphy was saying Brunson’s story was only somewhat
of a lie. However, Brunson cherry-picks a single line while ignoring the surrounding
context. Murphy was responding to the Government’s argument that Brunson had made up
a story about how he got to the bank, when video evidence told a different story. In that
response, Murphy argued some evidence corroborated parts of Brunson’s account, thus
showing it was not, as the Government contended, “a total fabrication.” There was nothing
unreasonable about Murphy’s comments as they show an attempt to rehabilitate Brunson’s
credibility. This conclusion is bolstered by other comments Murphy made in closings such
as Brunson “got up there and told the truth” on the witness stand. Brunson has failed to
show how these comments were unreasonable or how they prejudiced Brunson in any way.
Accordingly, Brunson’s claims for ineffective assistance of counsel fail.
D. Ground 4: Actual Innocence
Within issue four, Brunson reiterates his argument that he is innocent of several
charges and Jamall should have been presented as a witness to support his claims in trial.
These arguments have been exhaustively detailed above and, therefore, further discussion
is unnecessary.
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E. Ground 5: Ineffective Assistance of Counsel (Failure to Object)
Brunson next argues that Murphy provided ineffective assistance of counsel by
failing to object to the introduction of evidence of cocaine base, commonly referred to as
crack. More specifically, evidence obtained from the search of Brunson’s vehicle after his
March 2017 arrest was later confirmed by a lab to be marijuana, powder cocaine, and crack
cocaine. The crack itself was admitted as an exhibit in trial, and Special Agent Greenan
confirmed it came from the vehicle.
Brunson argues Murphy should not have allowed either the crack itself or any
testimony about it into evidence. He also contends Murphy should have objected to the
jury having the crack cocaine exhibit for its deliberations.
Brunson first argues that crack was not appropriate evidence because his conspiracy
to traffic charge in Count 1 considered conduct occurring from 2004 through June 2014.
However, Brunson fails to mention that evidence of this crack was first introduced through
Special Agent Greenan, who testified that it was found in Brunson’s vehicle and then
determined by a lab to be crick. When the Government moved to admit this crack into
evidence, Brunson—who was representing himself at that point—said he had no objection.
Brunson also never objected to Greenan testifying he found crack.
Brunson cannot now attempt to shift blame to Murphy for Brunson’s own decision
to not challenge the admission of the crack cocaine. See Faretta, 422 U.S. at 834 n.46
(defendant proceeding pro se cannot later complain his performance amounted to a denial
of effective assistance of counsel). Nor can Brunson show that Murphy performed
unreasonably once he took over as trial counsel. Murphy did not take over until the day
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after the crack cocaine was admitted and Greenan testified about it. Murphy could not undo
Brunson’s prior, binding choice to not oppose admission of that evidence. Because
Brunson allowed the crack to be admitted with no objection, Murphy had no basis for
opposing a DEA forensic chemist testifying she determined that one substance from
Brunson’s vehicle was crack. Likewise, Murphy would have no grounds for opposing the
jury considering admitted evidence in its deliberations. Therefore, Brunson has failed to
show any ineffective assistance in this regard.
F. Ground 6: Ineffective Assistance of Counsel (Failure to Advocate!
Brunson next asserts that Murphy was ineffective for “refusing to expose
Government’s case to crucible of adversarial testing.” (ECF No. 2697-1, p. 15).
“Counsel’s function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case.” Strickland, 466 U.S. at 690.
Defense attorneys are “strongly presumed” to have performed that function. Id. Typically,
the defendant must not only rebut that presumption but also prove prejudice. See id. at 692.
Although rare, prejudice may be presumed when a lawyer “entirely fails to subject
the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S.
648, 659 (1984). By asserting Murphy “refus[ed] to expose Government’s case to crucible
of adversarial testing,” ECF No. 2697-1 at 15, Brunson is claiming this is one of those rare
scenarios.
The Chronic standard “is an extremely high showing for a criminal defendant
make.” Brown v. French, 147 F.3d 307, 313 (4th Cir. 1998). A lawyer must truly have
“entirely fail[ed]” to advocate for his client; merely making one or even several mistakes
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that constitute deficient performance under Strickland does not show a complete failure.
See, e.g., Glover v. Miro, 262 F.3d 268, 276 (4th Cir. 2001) (attorney made several
substantial errors, including misreading a statute and failing to contact a known witness,
but did not entirely fail to advocate for client; he cross-examined witnesses, he advised his
client on potential deals; he gave a vigorous closing; and he sought directed verdicts).
Here, Brunson cannot meet such a rigorous standard. In essence, Brunson avers
Murphy could have and should have conducted a more thorough cross-examination of
several Government witnesses. Brunson is not however, arguing that Murphy failed to
perform, simply that Brunson believes Murphy’s performance could have been better. The
record belies Brunson’s contention that Murphy wholly failed in his duties.
Murphy took lead as counsel just before the Government called its third witness,
FBI Agent Brian Jones. From that point forward, he carried out his strategy, making
objections when warranted and challenging witnesses’ credibility through crossexamination. Murphy further argued for a directed verdict and guided Brunson through his
direct examination. He then issued a closing argument which highlighted a strategy of
challenging Government witness credibility. After the verdict was returned, Murphy
continued advocating by renewing his directed-verdict motion and moving for a new trial.
Brunson offers no argument for how Murphy “entirely failed” him. Instead, Brunson
nit-picks, identifying individual lines of transcript and then suggesting Murphy should have
handled that moment differently. Brunson may not scour the record and select individual
instances where additional lines of questioning could have been posed to support his
contention that trial counsel was essentially non-existent. In apparently recognizing this,
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Brunson’s response continued to press specific instances wherein he claims Murphy’s
actions constitute ineffective assistance of counsel under Strickland. However, these claims
likewise fail.
For instance, Brunson also argues that Murphy failed to request a jury charge on
multiple conspiracies. A multiple conspiracy instruction “is not required unless the
evidence shows that a particular defendant was involved only in an entirely separate
conspiracy, unrelated to the conspiracy charged.” United States v. Wilkins, 354 F. App’x
748, 757 (4th Cir. 2009) (emphasis added). Moreover, “a single conspiracy can be
comprised of a loosely-knit association of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the ultimate demands of a particular drug
consumption market.” Id. (citation omitted). Brunson has offered no evidence presented at
trial which would justify such a contention. The evidence presented at trial did not show
that Brunson was involved only in a conspiracy unrelated to his charged offense of
conspiring with Wright and others. Accordingly, Murphy had no grounds to request such
an instruction. Brunson has thus failed to show how Murphy’s actions were deficient or
prejudicial.
Next, Brunson claims Murphy failed to object to the Government’s improper
vouching. Brunson’s allegations of improper vouching involve three instances: (1) the
Government saying, in its closing, that Wright’s testimony was credible; (2) the
Government calling Richards an expert; and (3) the Government asking Graham about the
sentence reduction he received in exchange for testifying in another trial. Each argument
fails.
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First, in closing, the Government reminded the jury of the Court’s instructions on
assessing witness credibility. It then discussed the letters Wright and Brunson exchanged
while Wright was in jail, noting that Wright wrote his while feeling pressure from his
family. It pointed out that, unlike Wright’s emotional testimony at trial, Wright wasn’t
under oath when he wrote those letters. The Government ended its point by “submit[ting]”
to the jury that it could use its common sense to believe Wright’s testimony. None of that
was improper. See United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997) (vouching
occurs when “a prosecutor indicates a personal belief in the credibility or honesty of a
witness”); Johnson v. United States, No. 2:07-cf-924-DCN-3, 2014 WL 295157, at *6
(D.S.C. Jan. 27,2014) (“A prosecutor’s reference to facts relevant to the jury’s assessment
of the witness’s credibility does not constitute impermissible vouching.”).
Second, as to Richards, Brunson appears to be referring to the point in the
Government’s closing where AUSA Rowell remarked that he and Richards were roughly
the same age and that Richards had spent “his entire career” in drug trafficking. This does
not appear to be any form of vouching. It was not inappropriate to suggest that the jury
could consider Richards’ testimony about his extensive experience with drug trafficking
when assessing his credibility.
Finally, Graham testified on direct that he had previously received a sentence
reduction in exchange for testifying truthfully in another trial, and he was hoping to get
another reduction for testifying truthfully against Brunson. That simply was not vouching.
It was direct examination that appropriately elicited facts about Graham’s prior history and
his motivation for testifying in Brunson’s trial. And to the extent Brunson might be
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challenging something the Government said about Graham’s credibility in closing, the
Government properly noted that Graham had to tell the truth to have any hope of a sentence
reduction and that Graham’s testimony corroborated other evidence. Cf. Johnson v. United
States, 2014 WL 295157, at *9 (prosecutor’s reference to the cooperating witnesses’ plea
agreements did not constitute vouching).
Even assuming such comments were improper, Brunson has failed to show any
prejudice. To determine whether comments prejudiced the defendant, courts consider “(1)
the degree to which the comments could have misled the jury; (2) whether the comments
were isolated or extensive; (3) the strength of proof of guilt absent the inappropriate
comments; and (4) whether the comments were deliberately made to divert the jury’s
attention.” United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997) (citation omitted).
Improper remarks during closing argument mandate retrial only when the prosecutor’s
comments “so infectfed] the trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Collins, 401 F.3d 212,217 (4th Cir. 2005).
These factors weigh against Brunson. There is no indication these comments were
made to deliberately divert the jury’s attention or that the jury was misled. Moreover, these
isolated comments do not outweigh the other evidence underlying the Government’s case.
Accordingly, Brunson’s claim that Murphy failed to object to improper vouching fails.
Brunson also avers Murphy was derelict in allowing body cam footage into evidence
at trial. At trial, the Government introduced police bodycam video of Brunson’s arrest to
which Murphy offered no initial objection. The jury saw footage depicting Brunson holding
a blue bank deposit bag and wearing keys on his belt. Then, after the video showed Brunson
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resisting arrest and saying he was an Indian or a sovereign, Murphy objected on grounds
of relevance. The Government then agreed to stop playing the video. The Court made no
ruling on Murphy’s objection. Brunson now suggests the video was prejudicial and Murphy
was ineffective for not opposing the video’s introduction in its entirety and then not seeking
a curative instruction after it was played.
However, Brunson offers no support for his argument that the video was not
admissible. The video depicted him with evidence of the bank deposits he made while he
was a fugitive avoiding arrest for years, and with the keys to the Suzuki. That was relevant
to not only his guilt, but his consciousness of guilt. Accordingly, Brunson had failed to
show how Murphy was ineffective for not lodging an objection sooner.
Lastly, Brunson takes issue with the depth of Murphy’s cross-examination across
several witnesses. But a lawyer “has no obligation to ask every question suggested. ” Pipkin
v. United States, No. 4:05-cr-01129-TLW, 2015 WL 1810911, at *3 (D.S.C. Apr. 20,
2015). Moreover, Brunson offers only vague, speculative assertions about what further
cross-examination might have uncovered. That is insufficient to demonstrate prejudice.
Thus, Brunson’s assertion that Murphy failed “to expose Government’s case to crucible of
adversarial testing” is without merit.
G. Ground 7: Ineffective Assistance of Appellate Counsel
In this claim for relief, Brunson argues that his appellate counsel, Betts, rendered
ineffective assistance of counsel by failing to investigate and make meritorious claims for
appeal.
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As stated earlier in this order, Betts reviewed the record and filed an Anders brief
certifying he believed there were no meritorious issues for appeal, but questioning whether
the district court properly denied Brunson’s wiretap motions. The filing of that Anders brief
enabled Brunson to file a supplemental pro se brief raising whatever other issues he wanted
the Fourth Circuit to consider. Brunson availed himself of that opportunity by raising a
host of issues over three separate submissions. His arguments included: (1) his sentences
for several charges were multiplicitous; (2) this Court tried him as an Article I court; (3)
this Court constructively amended Count One and the Government constructively amended
Count Eleven; (4) the Court lacked “legislative jurisdiction” over him; (5) that wiretap
evidence was not properly admitted; (6) that his Speedy Trial Act rights were violated; and
(7) all of his charges were constructively amended.
Now, Brunson contends Betts was ineffective because he failed to raise several
arguments including: (1) the Court sentenced him over the statutory maximum; (2) the
Court did not consult the Sentencing Guidelines; (3) the statute of limitations barred his
prosecution on Count 1; (4) there was a “double jeopardy issue on Count One”; (5) the
Court should have granted a Rule 29 motion to dismiss based on insufficient evidence; (6)
the Court lacked jurisdiction under 28 U.S.C. § 2515; (7) the Court should have dismissed
the indictment because the Government improperly searched his prison cell; (8) the Court’s
jury charges were confusing as to Count 8; (9) Count 1 was constructively amended; (10)
his Speedy Trial Act rights were violated; and (11) he was subject to an “illegal search.”
Brunson cannot show that Betts’ failure to raise any of these claims was deficient
or prejudicial. First, as discussed above, Brunson has the burden of showing these issues
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are “clearly” stronger than the wiretap issue Betts raised. Brunson has completely failed to
meet his burden of showing how any of these omitted claims were stronger than one that
led to a published opinion with a dissent. He instead simply asserts, without explanation,
that Betts should have raised these claims. In his response, Brunson claims each of his
proposed issues for appeal were clearly stronger, “as a matter of law.” He offers no support
for such a contention. Such baseless assertions do not satisfy Brunson’s difficult burden of
rebutting the presumption of reasonable appellate performance.
Moreover, several of the claims he avers were not raised on appeal are raised in the
current § 2255 motion—namely constructive amendment, prosecutorial misconduct, and
sentencing errors. As shown throughout this order, such claims lack merit. Brunson thus
cannot show those claims were “clearly” stronger than what Betts argued.
Brunson has also failed to show any prejudice. To demonstrate prejudice, Brunson
has to present a “reasonable probability... he would have prevailed on his appeal” but for
his counsel’s unreasonable failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 28586 (2000). The circumstances of the appeal here prevent Brunson from establishing that
but-for connection. First, in his pro se appellate briefs, Brunson raised the Speedy Trial
Act and constructive amendment claims he contends Betts should have argued. The Fourth
Circuit declined to entertain those claims which shows it did not find them even potentially
meritorious. That, in turn, precludes a finding that the Fourth Circuit would have been
reasonably likely to reverse on those issues. See Waters v. United States, No. 4:15-cr-158BHH, 2019 WL 3495998, at *4 (D.S.C. Aug. 1, 2019) (finding defendant could not show
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ineffective assistance on appeal, where defendant used pro se appellate briefs to put before
the Fourth Circuit the issued he claimed appellate counsel should have raised).
Second, utilizing the opportunity to argue whatever he wanted on appeal, Brunson
did not raise any of the other issues he now faults Betts for not raising. Brunson’s failure
to raise those issues in his appellate supplements prevents him from showing that Betts’
performance prejudiced him. See Drew v. United States, No. 3:05-cr-70, 2011 WL
2173628, at *6 (N.D. W. Va. June 2,2011) (finding defendant’s failure to raise issue during
Anders review in his direct appeal prevented him from showing appellate counsel’s failure
to raise issue prejudiced him).
Third, as discussed above, the Fourth Circuit’s independent Anders review of
Brunson’s case was particularly searching. In Anders review, an appellate court studies the
entire record below in a search for any potentially meritorious issues. The Fourth Circuit
obviously satisfied that duty here as it identified a First Step Act issue no one in the case
had previously raised on appeal. Had the court also believed the omitted issues here
warranted review, presumably it would have ordered briefing on at least one of them. It did
not and thus Brunson cannot show that, but for Betts’ performance, Brunson would have
prevailed on appeal.
H. Ground 8: Sentencing Errors
Brunson next contends that he received an unreasonable sentence after being found
guilty on all counts. Brunson specifically asserts that the Court failed to consider the
Guidelines at sentencing and imposed sentences that exceeded the statutory maximums.
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As the Government points out, this claim is barred by procedural default as Brunson
did not assert it on direct appeal. Cf. Bennett v. United States, No. 3:16-cv-520-RJC, 2018
WL 1187783, at *5 (W.D.N.C. Mar. 7, 2018) (finding defendant’s excessive-sentence
claim defaulted because defendant did not assert it on direct appeal).
Brunson attempts to circumvent the default by asserting Betts’ failure to raise this
issue on appeal is sufficient cause and prejudice. As discussed above, Brunson has failed
to show how appellate counsel was in any way deficient in the filing of an Anders brief or
why Brunson could not make this argument within his supplemental pro se filings. Thus,
his arguments fail. Consequently, Brunson’s claims are subject to dismissal without further
discussion. However, Brunson’s arguments also fail on the merits.
This claim rests on three basic assertions: the Court disregarded the Guidelines,
believing it had to give the statutory maximum for all counts; the Court failed to discuss
the § 3553 factors; and the Court imposed sentences exceeding the statutory maximum.
Each are incorrect.
Initially, as it always does, the Court thoroughly considered the Guidelines in
issuing Brunson’s sentence. After lengthy discussion, the Court correctly found that the
career-offender provisions applied, and that the statutory mandatory minimum of life on
Count 1 ultimately drove the Guidelines range on imprisonment. The Court made sure to
note that Brunson’s range would have been 420 months to life (plus 60 consecutive months
on Count 11) absent the mandatory life sentence.
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Next, the sentencing transcript plainly shows the Court thoroughly discussed the §
3553(a) factors when explaining its sentence. The Court also conducted a proportionality
analysis on the life sentence, finding it appropriate under the facts.
Finally, the Court did not exceed the statutory maximum sentence on any count. The
Court imposed the statutory maximum prison terms on Counts 2 through 10 and 12. It
imposed the minimum term for Count 1, which, admittedly, was also the maximum, and
the minimum for Count 11. The Court also ordered the maximum supervised-release terms
for Counts 2 through 8 and Counts 10 through 12. It ordered the minimum terms for Counts
1 and 9.
Although unclear, Brunson appears to argue that his sentences exceeded the
statutory maximum because the Court added supervised-release terms after imprisonment
terms. Brunson’s argument is without merit as any term of supervised release is separate
and apart from a term of incarceration. See, e.g., United States v. Work, 409 F.3d 484, 489
(1st Cir. 2005) (stating “courts routinely have held that the combined sentence of years of
imprisonment plus years of supervised release may exceed the statutory maximum number
of years of imprisonment authorized by the substantive statute applicable to the crime of
conviction” and collecting cases); United States v. Pierce, 75 F.3d 173,178 (4th Cir. 1996)
(“[Supervised release is not considered to be a part of the incarceration portion of a
sentence and therefore is not limited by the statutory maximum term of incarceration.”).
Thus, Brunson can show no error in sentencing and thus no prejudice from failing to assert
such a claim on appeal.
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In his response, Brunson also avers Murphy was ineffective as to sentencing for (1)
not objecting to “unreasonable” and “unconstitutional” sentences; (2) not asking the Court
to explain its sentence; (3) not arguing for a below-Guidelines sentence; and (4) not “going
through the complete Rule 32 procedure.” The transcript of the sentencing hearing
contradicts Brunson’s assertions. At sentencing, Murphy challenged the mandatory life
sentence Brunson faced on Count 1 and many of the PSR’s Guidelines calculations. When
the Court resolved those arguments, the mandatory life sentence, plus five consecutive
years, remained. Accordingly, Brunson has not shown how Murphy’s action fell below an
objective standard of reasonableness. Moreover, for the reasons discussed above, Brunson
has failed to show any prejudice. Thus, this claim likewise fails.
I. Ground 9: Constructive Amendment of Count 1
Brunson next series of arguments involve allegations of constructive amendment to
various counts of conviction. Initially, he avers that the Government constructively
amended the indictment as to Count 1 by expanding the time frame beyond what the
indictment alleged.
Initially, this claim is barred by the prohibition on relitigating issues raised on
appeal. In his pro se submissions on appeal, Brunson argued that the Government and the
Court constructively amended all counts of the indictment through opening and closing
statements, jury instructions, and evidence. After fully reviewing his briefs and the record,
the Fourth Circuit limited further consideration of the appeal to other grounds. In doing so,
the Fourth Circuit declined to grant Brunson the relief requested.
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A criminal defendant cannot “circumvent a proper ruling ... on direct appeal by re
raising the same challenge in a-§ 2255 motion.” United States v. Dyess, 730 F.3d 354, 360
(4th Cir. 2013) (quoting United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009)); see
also United States v. Roane, 378 F.3d 382, 396 n. 7 (4th Cir. 2004) (noting that, absent
“any change in the law,” defendants “cannot relitigate” previously decided issues in a §
2255 motion); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)
(holding criminal defendant cannot “recast, under the guise of collateral attack, questions
fully considered” on direct appeal). This longstanding rule bars even claims implicitly
decided on direct appeal through full Anders review. See Randall v. United States, No.
4:10-cv 70272-TLW, 2012 WL 3614626, at *3 (D.S.C. Aug. 20, 2012) (Fourth Circuit’s
plenary Anders review of defendant’s case on direct appeal meant claim had been implicitly
rejected); United States v. Shelton, No. 3:07-cr-329-CMC, 2010 WL 2569281, at *2 n.2
(D.S.C. June 24, 2010) (same).
Brunson presented his claims of constructive amendment to the Fourth Circuit and
failed to find success. He may not litigate those claims again here. Thus, each of his claims
for constructive amendment, which includes Issues 10,11, and 13, are subject to summary
dismissal. However, as explained below, each of these claims also fails on the merits.
The Fifth Amendment guarantees that “[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury.” U.S. Const, amend. V. It is therefore “‘the exclusive province of the grand jury’ to
alter or broaden the charges set out in an indictment.” United States v. Moore, 810 F.3d
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932, 936 (4th Cir. 2016) (quoting United States v. Whitfield, 695 F.3d 288, 309 (4th Cir.
2012)).
The Grand Jury Clause is violated “when the indictment is effectively altered to
change the elements of the offense charged, such that a defendant is actually convicted of
a crime other than that charged in the indictment.” United States v. Burfoot, 899 F.3d 326,
338 (4th Cir. 2018) (internal quotation omitted). However, not every difference between
the government’s proof and the indictment constitutes a fatal variance. See United States
v. Redd, 161 F.3d 793,795 (4th Cir. 1998). When the government’s proof diverges to some
degree from the indictment but does not change the crime charged in the indictment, a mere
variance occurs. United States v. Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013). Such a
variance violates the defendant’s Fifth Amendment rights only if it “prejudices [him] either
by surprising him at trial and hindering the preparation of his defense, or by exposing him
to the danger of a second prosecution for the same offense.” United States v. Ashley, 606
F.3d 135,141 (4th Cir. 2010) (internal quotation marks omitted). Importantly, and contrary
to what Brunson asserts constructive amendments “do not require per se reversal.” United
States v. Banks, 29 F.4th 168 (4th Cir. 2022).
Count 1 alleged Brunson and others conspired to possess with intent to distribute
and distribute powder and crack cocaine between 2004 and 2014. Brunson contends the
Government’s presentation at trial constructively amended this charge to include his
marijuana distribution up through his March 2017 arrest. Brunson also alleges the
Government improperly told the jury that Count 1 included money laundering, gun
possession, and marijuana possession.
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However, Brunson’s arguments miss the mark. In its opening statement, the
Government told jurors it would give them “three windows” of evidence to see how a drug
conspiracy worked: wiretap recordings of Brunson; co-conspirators’ testimony; and
Brunson’s activities while he evaded arrest. It is this third type of evidence that Brunson
attacks. He argues that the evidence of him evading arrest for his prior criminal activity
was improperly cast as conspiratorial conduct for Count 1.
The problem is that Brunson attempts to view Count 1 in a vacuum. It is true that
the Government’s trial presentation included Brunson dealing marijuana and cocaine, and
illegally having guns, up through March 2017. That is because Count 9 charged him with
possession with intent to distribute cocaine and marijuana on March 3, 2017; Count 10
charged him with felon in possession on that date; and Count 11 charged him with
possessing firearms in furtherance of a drug trafficking crime on that date. Brunson could
not have been surprised that the Government would present evidence on those separately
charged offenses.
Brunson’s argument also overlooks both the jury instructions and the verdict form.
The Court made clear that the Government’s arguments were not evidence and that the jury
was to follow its instructions. It also told jurors their duty was to determine whether
the Government had met its burden of proving “the specific facts necessary to find
[Brunson] guilty of the crimes charged in the indictment.” Then, instructing the jury on
Count 1, the Court said the charge alleged a conspiracy involving powder and crack
cocaine spanning from 2004 to 2014. The Court never told the jury that marijuana, money
laundering, or gun possession was part of that count. Those correct instructions were
reflected in the verdict
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form, which directed the jury to make specific findings about the quantities of cocaine
attributable to Brunson and to the larger conspiracy. These facts, taken together, eliminate
any potential concern that Brunson was “actually convicted of a crime other than that
charged in the indictment.” United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999)
(internal quotation marks omitted); see United States v. Foster, 507 F.3d 233,243 (4th Cir.
2007) (finding no danger of constructive amendment where, among other things, jury
instructions tracked amendment, jury was told counsel’s arguments were not evidence, and
jury was told to decide whether Government had proved the charges alleged in the
indictment).
J. Ground 10: Constructive Amendment of Count 9
Brunson next argues that the Government constructively amended Count 9 of the
Indictment by introducing evidence of cocaine base when Count 9 only alleged he
possessed with intent to distribute cocaine and marijuana in March 2017. As stated above,
this claim is barred by the prohibition on relitigating issues raised on appeal. However, the
Court will also address this claim to show it likewise fails on the merits.
Count 9 alleged Brunson possessed marijuana and cocaine and did not specifically
allege the cocaine was crack. Brunson argues the Government constructively amended the
indictment by introducing evidence that crack was recovered from his vehicle after his
March 2017 arrest. The Government also introduced evidence of powder cocaine and
marijuana in relation to this arrest.
Brunson bases this argument primarily on a discussion with the Court during a break
in the trial. During that break, the Court and the parties discussed how to draft the verdict
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form for Count 9. The Government erroneously said the charge included three different
drugs: powder cocaine, crack cocaine, and marijuana. Brunson then corrected counsel,
noting the indictment did not mention crack. The Government agreed with him.
The verdict form reflected this mutual understanding. It gave the jury the place to
write whether he was guilty or not guilty, and then it provided boxes for the jury to specify
the drug(s) it found Brunson unlawfully possessed: “Cocaine,” “Marijuana,” or both. The
jury checked both boxes. And there was no danger that the jury checked the box for cocaine
based on a finding that Brunson possessed only crack cocaine, rather than powder cocaine
given the Court’s clear instructions to the jury.
In explaining Count 1, the Court made clear that cocaine and cocaine base are
different things. Then, in explaining Count 9, the Court said only that “cocaine” was one
of the two charged substances; the Court never mentioned “cocaine base” or “crack.” The
Court continued with that distinction when it instructed the jury on how to fill out the
verdict form. And as mentioned above, the Court instructed the jury to determine only
whether Brunson was guilty of the specific crimes charged in the indictment. These
instructions belie any assertion that the jury found Brunson guilty of Count 9 solely due to
crack possession.
Brunson nevertheless maintains his conviction on Count 9 must have been based on
crack alone because the Government introduced evidence that crack was found in his car
in March 2017. What Brunson fails to mention is the Government also introduced evidence,
without any objection by Brunson, who was then representing himself, that marijuana and
powder cocaine were found in his car at that time. In failing to acknowledge this fact, he
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offers no rebuttal to the far more plausible explanation for the jury’s verdict: the jury
convicted him of possessing powder cocaine and marijuana because the Government
supplied compelling evidence he did just that.
To the extent Brunson argues that introduction of the crack cocaine evidence
somehow influenced the jury’s decision on other counts of the indictment, Brunson has
offered no evidence or support of such a conclusory assertion. Thus, such an argument is
likewise subject to dismissal.
K. Ground 11: Constructive Amendment of Count 11
Brunson next argues that the Government constructively amended Count 11 of the
indictment because the jury was instructed on “use” of a firearm when Brunson was
charged with “possession” of a firearm in furtherance of a drug trafficking crime. As stated
above, this claim is barred by the prohibition on relitigating issues raised on appeal.
However, the Court will also address this claim to show it likewise fails on the merits.
Section 924(c) makes it unlawful to “use[] or carr[y] a firearm” “during and in
relation to any crime of violence or drug trafficking crime” or to “possessf] a firearm” “in
furtherance of any such crime.” The operative indictment here used the latter language,
alleging Brunson “did possess a firearm” in furtherance of a drug trafficking offense.
Brunson argues the Government constructively amended that language by saying during
the trial that he “used” a firearm. Brunson’s theory is that the jurors rendered a nonunanimous verdict on Count 11, some finding he used a gun while others finding he
possessed it.
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Brunson’s argument overlooks the jury instructions issued at trial. Those
instructions focused on “possession” by stating:
For you to find the defendant guilty, the Government must prove
each of the following beyond a reasonable doubt: Number one, the
defendant possessed a firearm; and Number two, the defendant did so in
furtherance of a drug trafficking crime which may be prosecuted in federal
court. In order to find the defendant guilty of Count 11, you must find that
he possessed the firearm in furtherance of the crime charged in Count 9. “In
furtherance of’ means the act of furthering, advancing, or helping forward.
Thus, therefore, the Government must prove that the possession of the
firearm furthered, advanced, or helped forward the crime - the drug
trafficking crime charged in this case.
The mere accidental to coincidental presence of a firearm at the scene
of a drug trafficking offense is not enough to establish that it was possessed
in furtherance of the drug offense.
Trial Tr. at 692-93.
The Court further told the jury that counsel’s statements were not evidence and that
the jury was to evaluate the evidence only in view of what the indictment alleged. Thus,
there was no danger that the jury rendered a non-unanimous verdict or that the jury
convicted Brunson of something other than what the indictment alleged.
Moreover, Brunson can show no prejudice. If a jury convicted him of using a
weapon in furtherance of a crime, it is inconceivable as to how those same jurors would
not have also believed he possessed that weapon in furtherance of the same crime.
As part of this claim, Brunson argues Murphy was ineffective for failing to object
to this particular jury charge. As mentioned, the jury charge focused on the “possesses”
language, just as Brunson contends it should have, and the Court admonished the jury to
reach a decision based on what the indictment alleged and to not credit the attorneys’
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statements as evidence. There was nothing more for Murphy to ask the Court to say. Cf
Molina-Sanchez v. United States, No. 3:12-cr-316- FDW-DSC-2, 2018 WL 490551, at *5
(W.D.N.C. Jan. 19, 2018) (finding trial counsel was not ineffective for failing to challenge
indictment’s purported duplicity, where district court’s jury charges eliminated any danger
of a non-unanimous guilty verdict). Additionally, as stated above, Brunson is unable to
show any prejudice even if he could have shown Murphy’s actions were unreasonable.
L. Ground 12: Prosecutorial Misconduct
In Brunson’s next claim, he raises a host of issues that he avers amount to
prosecutorial misconduct which violated his right to a fair trial.
Here again, Brunson is attempting to present claims which are barred by procedural
default. Brunson never raised these claims on direct appeal, and he is thus barred from
asserting them for the first time here. See, e.g., Gore v. United States, No. 4:01-cr-0627CWH-9, 2015 WL 10710282, at *18 (D.S.C. Sept. 28, 2015) (collecting cases). Although
Brunson avers his default should be excused because appellate counsel failed to raise these
claims, Brunson has offered no support to show this issue was stronger than those actually
raised by appellate counsel or why he failed to make these claims in his pro se supplements.
Thus, these claims are subject to dismissal for procedural default. However, even if the
Court were to consider such claims, they likewise fail on the merits.
A claim of prosecutorial misconduct must be evaluated to determine whether the
alleged misconduct “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)
(citations omitted). To satisfy this standard, a defendant must prove two things: (1) the
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Government’s conduct was improper; and (2) that impropriety “prejudicially affected his
substantial rights so as to deprive him of a fair trial.” Id. Although he makes several
prosecutorial misconduct allegations, Brunson fails to satisfy the above burden as to any
of them.
First, Brunson argues the temporary seizure of his files from the jail frustrated his
defense and violated Federal Rule of Evidence 502(b)(2). He alleges that the prosecutors
in this case reviewed those files and gained insight as to his trial strategies. However, as
discussed above, Brunson has offered no evidence to support such a theory. As noted by
the Government, no one involved in prosecuting him took part in the search of his cell, the
taking of files from that cell, and the review of those documents. Instead, unrelated FBI
agents searched the cell and took the files, and an AUSA with no connection to the case
reviewed them. These protocols were put in place precisely to protect the strategic interests
Brunson raises in his motion. Brunson has not shown that anything privileged from that
review was shared with the prosecuting team. Moreover, Brunson’s cell was searched after
cooperators indicated Brunson was trying to influence co-defendants’ testimony and had
personal information about government attorneys and the Court. Because the cause of the
search was legitimate and the review protocols prevented disclosure to the prosecution
team, Brunson can show no improper conduct or prejudice.
Brunson next asserts, in a conclusory fashion, that the Government improperly
introduced evidence of crack cocaine when he was not charged in Count 1 or Count 9 with
any offense involving that crack. Brunson makes no effort to show why this was improper
or how he was prejudiced. Thus, this argument fails.
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Next, Brunson contends the Government knowingly allowed Wright and Greenan
to offer peijured testimony. On collateral attack, a defendant alleging this sort of
misconduct must demonstrate three elements: (1) that the testimony at issue was false; (2)
that the prosecution knew or should have known of the falsity; and (3) that a reasonable
probability exists that the false testimony may have affected the verdict. See United States
v. Roane, 378 F.3d 382,400 (4th Cir. 2004); United States v. Kelly, 35 F.3d 929, 933 (4th
Cir. 1994).
Here, Brunson has failed to establish the first element by offering only vague
allegations that the testimony was contradictory or conflicting. “Mere inconsistencies in
testimony by government witnesses does not establish the government’s knowing use of
false testimony.” United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). Because
Brunson fails to support his claims with any evidence showing the Government knowingly
solicited false testimony, his claim fails.
Next, Brunson argues the Government improperly advocated for Murphy to be
appointed as standby counsel. However, the transcript of the November 14, 2017, hearing
shows the Government neither opposed nor advocated for any particular standby attorney.
Thus, Brunson’s allegations on this point are wholly without merit.
Brunson next contends the Government introduced evidence of his prior drug
convictions for improper purposes. This assertion also lacks merit. Before Brunson
decided on whether to testify, the Court and the Government advised him that he could be
cross-examined on those prior convictions for the purpose of impeachment. He had no
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questions about that possibility and impeachment of a witness is a fundamentally proper
purpose. See Fed. R. Evid. 609. Thus, Brunson can show no misconduct.
In his response, Brunson cites to Federal Rule of Evidence 404(b) to argue that the
Government improperly used evidence of his 2006 conviction for maintaining a stash
house. Rule 404(b) is “only applicable when the challenged evidence is extrinsic, that is,
‘separate’ from or ‘unrelated’ to the charged offense.” United States v. Bush, 944 F.3d 189,
195 (4th Cir. 2019) (quoting United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)).
On the other hand, criminal acts are admissible as intrinsic evidence “when they are
inextricably intertwined or both acts are part of a single criminal episode or the other acts
were necessary preliminaries to the crime charged.” Id. (quoting United States v. Chin, 83
F.3d 83, 88 (4th Cir. 1996)). In other words, evidence is intrinsic if it “forms an integral
and natural part... of the circumstances surrounding the offenses for which the defendant
was indicted” and “serve[s] to complete the story of the crime on trial.” Id. (alteration in
original and citations omitted). Here, the Government argued Brunson’s maintenance of a
stash house was evidence of his participation in the conspiracy charged in Count 1. In other
words, that conviction was intrinsic evidence, not improper propensity evidence. It was
also relevant to Count 10, as it showed Brunson’s possession of a firearm followed a felony
conviction. The Government did not engage in misconduct by using this evidence for
proper purposes. 8
8 For this first time in his response brief, Brunson contends the Government improperly introduced
evidence of a 1996 conviction involving cocaine. Because Brunson failed to raise this argument in
his initial motion, the Court declines to review it here. Also, this claim is procedurally defaulted.
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Brunson’s next argument reasserts the claims for constructive amendment discussed
above in relation to Issue 9. Brunson essentially argues the Government made comments
that constructively amended the indictment on Count 1. For the reasons stated above, this
claim lacks merit.
Lastly, Brunson contends it was improper for the Government to assert in its closing
argument that he was a liar. The Government did state in its closing arguments that Brunson
had lied. However, Brunson fails to mention that he admitted to lying and also, that he was
charged with perjury. Specifically, when Brunson tried to get Wright’s Escalade in 2013,
he lied to the FBI about who owned it. The Government argued this falsity was evidence
of Brunson trying to conceal the true ownership of the car and his involvement in the drug
trafficking conspiracy. And in discussing the perjury charge in Count 12, the Government
contended Brunson lied to Magistrate Judge Gossett at the bond hearing and then repeated
his lies at trial. Brunson admitted the first statement was a lie when he testified. The second
comment was directly related to the perjury charge. Accordingly, the Government was
discussing evidence introduced at trial: Brunson admitted at trial that he lied about the
Escalade, and the jury had evidence that Brunson’s bond hearing testimony was false.
Thus, there is no support for Brunson’s contention that these statements were improper.
Moreover, before closing arguments, the Court instructed the jury that anything
lawyers said was not evidence and was not binding, and it told jurors they were the ones to
decide credibility. Those clear instructions, which the jury is presumed to have followed,
prevented any potential for the jury to give the Government’s comments undue weight.
Thus, Brunson can show no prejudice.
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Accordingly, Brunson’s various assertions of prosecutorial misconduct all fail.
M. Ground 13: Constructive Amendment of Count 8
In this claim, Brunson avers the Government yet again constructively amended
Count 8 and, therefore, he was wrongfully convicted of a conspiracy to commit money
laundering of drug proceeds.
As an initial matter, this claim was presented to the Fourth Circuit on appeal and
therefore Brunson is barred from relitigating it here. However, it also fails on the merits as
discussed below.
Although somewhat unclear, Brunson appears to allege that the evidence presented
at trial was insufficient to convict him. Brunson supports this assertion by averring that a
“financial transaction” has to involve a bank or the purchasing of drugs. Thus, Brunson
concludes that getting drug money from Richards to get Wright a lawyer, and participating
in buying an Escalade with drug money does not amount to a financial transaction under
18U.S.C. § 1956.
Brunson’s argument misses the mark. As the Court explained in its charge, the
definition of “financial transaction” is broad: it means—
(A) a transaction which in any way or degree affects interstate or foreign
commerce (i) involving the movement of funds by wire or other means or (ii)
involving one or more monetary instruments, or (iii) involving the transfer
of title to any real property, vehicle, vessel, or aircraft, or (B) a transaction
involving the use of a financial institution which is engaged in, or the
activities of which affect, interstate or foreign commerce in any way or
degree.
18 U.S.C. § 1956(c)(4); Trial Tr. at 688. The conduct at issue fits squarely within that
definition and Brunson offers no authority indicating otherwise.
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Next, Brunson points out that Count 8 had two paragraphs: the first alleged a
“promotion” object, while the second alleged a “concealment” object. He argues that
because the verdict form on Count 8 was general, the jury could have rendered a nonunanimous verdict. But as the Fourth Circuit recently noted, “[i]t is well established that
‘the allegation in a single count of conspiracy to commit several crimes is not duplicitous,
for [t]he conspiracy is the crime, and that is one, however diverse its objects.’” United
States v. Miller, 41 F.4th 302, 313 (4th Cir. 2022) (quoting United States v. Marshall, 332
F.3d 254, 262 (4th Cir. 2003)); see United States v. Bolden, 325 F.3d 471, 492 (4th Cir.
2003) (holding that a § 1956(h) count alleging five statutory objects was valid, observing
that “[cjourts have uniformly upheld multiple-object conspiracies, and they have
consistently concluded that a guilty verdict must be sustained if the evidence shows that
the conspiracy furthered any one of the objects alleged”).
Finally, Brunson argues the Court amended Count 8 because its charge on that count
incorporated some of the definitions it used to explain Count 1. Brunson therefore argues
the jury charge confused the jurors and led them to think they could find him guilty on
Count 8 based on his 2017 bank deposits. Not so. The Court incorporated only its prior
basic explanation of what a conspiracy is and how one joins it. In no way did that suggest
that the Count 1 drug conspiracy, which predated those 2017 deposits, somehow spilled
into the jury’s deliberations on Count 8. Accordingly, this claim also lacks merit.
N. Ground 14: Failure to Suppress Wiretap Evidence
In his final ground for relief, Brunson argues that this court lacked jurisdiction to
sentence him based upon the Government’s use of wiretap evidence. Brunson is here again
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Page 56 of 57
arguing that evidence obtained from wiretaps should have been suppressed and this Court
incorrectly denied his suppression motion. However, this issue was squarely rejected by
the Fourth Circuit. United States v. Brunson, 968 F.3d 325, 327 (4th Cir. 2020) (“We
conclude that the wiretap orders were sufficient under the Wiretap Act.... Therefore, we
conclude that the district court did not err in denying Brunson's motion to suppress.”). This
Court is not at liberty to overrule the Fourth Circuit’s clear decision on this point. While
challenges to subject matter jurisdiction can generally be raised at any time, they cannot be
raised over and over. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)
(declining to entertain challenge to arresting officers’ jurisdiction that appellate court had
previously rejected).
Accordingly, Brunson’s claim here fails to show he is entitled to any relief.
To the extent that any other argument Petitioner has asserted is not specifically
addressed above, the Court finds that Petitioner has failed to set forth evidence creating a
genuine issue of material fact showing that he is entitled to relief and therefore summary
judgment is appropriate. In summation, Brunson has offered no meritorious grounds to
support his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255.
V.
CONCLUSION
For the reasons stated above, the Government’s Motion for Summary Judgment
(ECF No. 2818) is granted, and Petitioner’s motion for relief pursuant to § 2255 (ECF No.
2697) is denied. This action is hereby dismissed with prejudice. Consequently, Petitioner’s
motion for discovery (ECF No. 2850); motion for copies (ECF No. 2719); motion for an
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evidentiary hearing (ECF No. 2851); petition for writ of habeas corpus ad testificant and
ad prosequendum (ECF No. 2900); and motion for a status conference (ECF No. 2927) are
denied as moot.
The Court has reviewed this petition in accordance with Rule 11 of the Rules
governing Section 2255 Proceedings. In order for the Court to issue a certificate of
appealability, Rule 11 requires that Petitioner satisfy the requirements of 28 U.S.C. §
2253(c)(2), which in turn requires that he “has made a substantial showing of the denial of
a constitutional right.” The Court concludes that he has not made such a showing, and it
is therefore not appropriate to issue a certificate of appealability as to the issues raised in
this petition.
IT IS SO ORDERED.
Joseph F. Anderson, Jr.
United States District Judge
September 25, 2023
Columbia, South Carolina
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AO 450 (Rev. 01/09) Judgment in a Civil Action
United States District Court
for the
District of South Carolina
)
)
)
)
)
United States of America
Government/Respondent
v.
Joey Lamont Brunson
Defendant/Petitioner
3:14-604-JFA
3:22-182-JFA
Crim. Action No.
JUDGMENT IN A CIVIL ACTION
The court has ordered that (check one):
□ the plaintiff (name)
defendant (name)
_
recover from the
the amount of
), which includes prejudgment
%, along with costs.
dollars ($
%, plus postjudgment interest at the rate of
interest at the rate of
□ the plaintiff recover nothing, the action-be dismissed on the merits, and the defendant (name)
recover costs from the plaintiff (name)__________________
■ other: Summary judgment is hereby entered for the respondent, United States of America. The pet hi oner, Joey
Lamont Brunson, shall take nothing of the respondent from his petition filed pursuant to 28 U.S.C. 2255 and
this action is dismissed with prejudice.
This action was (check one):
presiding, and the jury has
□ tried by a jury with Judge
rendered a verdict.
□ tried by Judge ________
was reached.
without a jury and the above decision
■ Decision by the Honorable Joseph F. Anderson, Jr., United States District Judge, presiding.
Date:
September 26, 2023
Robin L. Blume
CLERK OF COURT
s/Jennifer Peterson
Signature of Clerk or Deputy Clerk
APPENDIX D
DECISION OF APPELLATE COURTS IN CONFLICT ON LEON and TECHNICAL DEFECTS
NITED STATES OF AMERICA, APPELLEE v. ERIC SCURRY, ALSO KNOWN AS E, APPELLANT
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
821 F.3d 1; 422 U.S. App. D.C. 184; 2016 U.S. App. LEXIS 6401
No. 12-3104 Consolidated with 12-3105, 12-3109, 13-3055, 13-3068
April 8, 2016, Decided
December 3, 2015, Argued
Editorial Information: Subsequent History
Rehearing denied by, Rehearing, en banc, denied by United States v. Scurry, 2016 U.S. App. LEXIS
13286 (D.C. Cir., July 20, 2016)Motion denied by United States v. Scurry, 2018 U.S. Dist. LEXIS 143714
(D.D.C., Aug. 22, 2018)
Editorial Information: Prior History
{2016 U.S. App. LEXIS 1}Appeals from the United States District Court for the District of Columbia. (No.
1:10-cr-00310-RCL-4), (No. 1:10-cr-00310-RCL-7), (No. 1:10-cr-00310-RCL-1), (No.
1:10-cr-00310-RCL-2), (No. 1:10-cr-00310-RCL-3).United States v. Savoy, 883 F. Supp. 2d 101, 2012
U.S. Dist. LEXIS 113743 (D.D.C., Aug. 3, 2012)
Counsel
Jonathan S. Zucker, appointed by the court, argued the cause for
appellants Robert Savoy, et al. Dennis M. Hart, appointed by the court, argued the cause for
appellant Eric Scurry. With them on the joint brief were Pleasant S. Brodnax III, Howard B.
Katzoff, and Mark Diamond, all appointed by the court.
Daniel J. Lenerz, Attorney, U.S. Attorney's Office, argued the
cause for appellee. On the brief were Vincent H. Cohen Jr., Acting U.S. Attorney, and
Elizabeth Trosman, David B. Goodhand, and Arvind K. Lai, Assistant U.S. Attorneys.
Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.
Judges: Before: ROGERS and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion
for the Court filed by Circuit Judge ROGERS.
CASE SUMMARYMotions to suppress certain wiretap evidence were improperly denied because the
relevant wiretap orders were facially insufficient under 18 U.S.C.S. § 2518(10); each failed to identify the
officials who pre-approved the underlying applications.
DICASES
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91646071
United States of America, Appellant, v. Carlos Lomeli; Manuel Hernandez, Appellees.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
676 F.3d 734; 2012 U.S. App. LEXIS 7791
No. 11-1549
November 16, 2011, Submitted
April 18, 2012, Filed
Editorial Information: Prior History
{2012 U.S. App. LEXIS 1}
Appeal from the United States District Court for the District of Nebraska.United States v. Lomeli, 2011
U.S. Dist. LEXIS 4656 (D. Neb., Jan. 17, 2011)
Counsel
For United States of America, Plaintiff - Appellant: Thomas J. Kangior,
Special Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha,
NE.
For Carlos Lomeli, Defendant - Appellee: John William Gallup,
Sr., Anthony N. Ike, Omaha, NE.
Carlos Lomeli, Defendant - Appellee, Pro se, Omaha, NE.
For Manuel Hernandez, Defendant - Appellee: Alan Staler,
Omaha, NE.
Judges: Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
CASE SUMMARY
PROCEDURAL POSTURE: The United States District Court for the District of Nebraska granted
defendants' motions to suppress evidence obtained as a result of a wiretap under 18 U.S.C.S. § 2518
and the Fourth Amendment. The Government appealed.Where wiretap application stated that an
appropriate official had authorized the application, but it did not include the actual authorizing
documents, suppression was warranted because the application was insufficient on its face, as it did not
comport with 18 U.S.C.S. § 2518(1)(a), and the omission was not "technical."
OVERVIEW: In furtherance of an ongoing narcotics investigation, an Assistant United States Attorney
submitted an application for interception of wire communications to a federal judge who approved the
requested wiretap. The application stated that "an appropriate official of the Criminal Division" had
authorized the application, but the actual authorizing documents were not attached. During a hearing on
defendants’ motions to suppress, the Government entered into evidence the missing documents. The
appellate court determined that suppression was warranted because the application was insufficient on
its face, as it did not comport with the 18 U.S.C.S. § 2518(1 )(a) requirement, and the omission was not
"technical." One could not tell from the face of the application exactly who the authorizing individual was,
just generically that authorization was received, which did not allow the authorizing judge to issue an
interception order with the knowledge contemplated by Congress. The Government offered no evidence
that the judge indeed knew the identity of the appropriate authorizing official. Also, the good faith
exception under the Fourth Amendment did not apply.
OUTCOME: The appellate court affirmed the grant of the motions to suppress.
A08CASES
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91646071
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. REGINALD SHANTEZ RICE,
JOSE-ALBERTO JIMENEZ-HUERTA, GERMAN JOSE JIMENEZ-HUERTA, MARSHALL THOMAS
EVANS, JR., DERRICK ALLEN SMITH, DEMETRIUS CRENSHAW, JAMES CRENSHAW, TERRY
MIDDLETON, YOLANDA RAYMEL WALKER, DAMON L. SHEPPARD, MONTEZ MARCELLUS
MOORE, TERRELL GRAY, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
478 F.3d 704; 2007 U.S. App. LEXIS 4778; 2007 FED App. 0088P (6th Cir.)
07a0088p.06No. 06-5245
March 2, 2007, Decided
December 6, 2006, Argued
March 2, 2007, Filed
Editorial Information: Subsequent History
Rehearing, en banc, denied by United States v. Rice, 2007 U.S. App. LEXIS 18746 (6th Cir., July 31,
2007)Later proceeding at United States v. Rice, 2007 U.S. Dist. LEXIS 87879 (W.D. Ky., Nov. 29, 2007)
Editorial Information: Prior History
(2007 U.S. App. LEXIS 1} Appeal from the United States District Court for the Western District of
Kentucky at Louisville. No. 04-00083. Thomas B. Russell, District Judge. United States v. Rice, 2006
U.S. Dist. LEXIS 1572 (W.D. Ky., Jan. 17, 2006)
ARGUED: Terry M. Cushing, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellant.
Michael R. Mazzoli, COX & MAZZOLI, Louisville, Kentucky, for
Appellees.
ON BRIEF: Terry M. Cushing, Monica Wheatley, Amy M.
Sullivan, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellant.
Scott C. Cox, Mark D. Chandler, COX & MAZZOLI, Louisville,
Kentucky, R. Kenyon Meyer, DINSMORE & SHOHL, Louisville, Kentucky, Jamie L. Haworth,
WESTERN KENTUCKY FEDERAL COMMUNITY DEFENDER, INC., Louisville, Kentucky,
Frank A. Mascagni III, Louisville, Kentucky, Keith E. Kamenish, Louisville, Kentucky, Kevin
C. Burke, BURKE LAW OFFICE, Louisville, Kentucky, Alex Dathorne, Scott James Barton,
Louisville, Kentucky, L. Stanley Chauvin III, Louisville, Kentucky, Steven R. Romines,
ROMINES, WEIS & YOUNG, Louisville, Kentucky, Richard L. Receveur, Louisville,
Kentucky, Rob Eggert, Louisville, Kentucky, for Appellees.
Judges: Before: MOORE and CLAY, Circuit Judges; BELL, Chief District Judge. * MOORE, J., delivered
the opinion of the{2007 U.S. App. LEXIS 2} court, in which CLAY, J., joined. BELL, Chief D. J.,
delivered a separate dissenting opinion.
Counsel
CASE SUMMARY
PROCEDURAL POSTURE: In an interlocutory appeal, the Government sought review of a decision of
the U.S. District Court for the Western District of Kentucky at Louisville, which suppressed the fruits of a
wiretap used in its case against defendants pursuant to a warrant that was issued under Title III of the
Omnibus Crime Control and Safe Streets Act, 18 U.S.C.S. § 2510 et seq., and denied its motion for
A06CASES
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91646071
reconsideration.Suppression of the fruits of a wiretap issued per a warrant under Title III of the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C.S. § 2510 et seq., was proper as a district court did not err
in finding that misleading affidavit statements were made recklessly and that the warrant was
unsupported; also, the good faith exception did not apply.
OVERVIEW: The federal district court found that, based on the affidavit, an issuing judge would
mistakenly think that agents had conducted physical surveillance on a particular defendant and his
associates, and that there was reason to believe that they had used violence or threats of violence, had
violent histories, carried firearms, and wore bullet-proof vests. In fact, no surveillance had been
conducted on defendant, and there was no information confirming that he carried a firearm. The district
court further found that the misleading statements were made recklessly. Moreover, it found that the
affidavit did not indicate either serious consideration of other investigative techniques or the reasons for
the affiant's belief in the inadequacy of the other measures being used against defendant. Upon
reconsideration, the district court also found that the good faith exception did not apply. The federal court
of appeals affirmed, finding no clear error in the district court's factual determinations. In addition, the
court of appeals held that the good faith exception did not apply to warrants improperly issued under Title
III, citing both its plain language and its legislative history.
OUTCOME: The court of appeals affirmed the district court's order suppressing the fruits of the wiretap
and denying the reconsideration motion.
A06CASES
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91646071
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN LEWIS, Defendant Appellant.UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OTIS PONDS, Defendant Appellant.
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
116 F.4th 1144; 2024 U.S. App. LEXIS 22929
No. 22-3125, No. 22-3126
September 10, 2024, Filed
Editorial Information: Prior History
{2024 U.S. App. LEXIS 1}Appeals from the United States District Court for the District of Kansas. (D.C.
Nos. 6:20-CR-10028-EFM-11 & 6:20-CR-10028-EFM-15).United States v. Lewis, 586 F. Supp. 3d 1094,
2022 U.S. Dist. LEXIS 28238, 2022 WL 482846 (D. Kan., Feb. 16, 2022)United States v. Lewis, 2022
U.S. Dist. LEXIS 29115, 2022 WL 486913 (D. Kan., Feb. 17, 2022)
Megan L. Hayes, Attorney at Law, Laramie, Wyoming, for Defendant
Appellant Kevin Lewis.
Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver,
Colorado, for Defendant - Appellant Otis Ponds.
James A. Brown, Assistant United States Attorney (Kate E.
Brubacher, United States Attorney, with him on the brief), Topeka, Kansas, for
Plaintiff-Appellee.
Judges: Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
Counsel
Opinion by:
PHILLIPS
Opinion
PHILLIPS, Circuit Judge.
These consolidated appeals share two legal issues raised by two defendants convicted of crimes
arising from a vast conspiracy to distribute methamphetamine, marijuana, heroin, powder cocaine,
and crack cocaine in Wichita, Kansas. One defendant, Kevin Lewis, went to trial and was convicted
of ail charges. The other, Otis Ponds, pleaded guilty days before trial but reserved his ability to
appeal two issues: (1) whether the government violated his Sixth Amendment rights to a speedy trial
and (2) whether he is entitled to an order suppressing all evidence derived from one of the FBI's
wiretaps, on grounds that the wiretap application was not{2024 U.S. App. LEXIS 2} signed by the
statutorily approved Department of Justice official designated on the authorization filing, but rather was signed by some other, unknown person. Lewis raises these same two issues in his appeal. In
addition, Lewis alone raises a third issue: (3) whether the length of his sentence is substantively
.unreasonable. We affirm the district court’s judgment as to all three issues.
CIRHOT
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;
i:
:
■1
AUSA Treaster's wiretap application names "Bruce C. Swartz" as the statutorily authorized official
who preapproved the application. The district court's authorization order also names "Bruce C.
Swartz" as the "duly designated official of the Criminal Division" who authorized the wiretap. Suppl.
R. vol. 1, at 74. Two separate memos were sent on April 5, 2019, one to the Kansas U.S. Attorney
and the other to AUSA Treaster, and both documents bear a signature above the name "Bruce C.
Swartz." Those signatures match each other. Both memos also bear the personal{2024 U.S. App.
LEXIS 58} stamp of "Bruce C. Swartz," identifying him as a Deputy Assistant Attorney General of the
Criminal Division-a position with authority to approve wiretap applications under § 2516(1). All of this
is more than enough to identify Swartz as the statutorily approved "person” and "official" who
authorized the first wiretap. § 2518(1)(a), (4)(d).
These facts are a far cry from cases where courts have deemed wiretap authorizations facially
deficient under subparagraph (ii). In those cases, the authorization orders typically fail to identify any
authorizing individual by name, which is not the situation here. See United States v. Scurry, 821 F.3d
1, 8, 12, 422 U.S. App. D.C. 184 (D.C. Cir. 2016) (affirming the district court's ruling that two wiretap
orders were "facially insufficient under 18 U.S.C. § 2518(10)(a)(ii)" because "where th[e] official's
name should appear, there are only asterisks"); United States v. Lomeli, 676 F.3d 734, 740-42 (8th
Cir. 2012) (concluding the wiretap application was "insufficient on its face" because "the application
in this case just states generically that 'an appropriate official of the Criminal Division' had authorized
the application," giving the "authorizing judge ... no way of knowing the name of the actual,
statutorily designated official that had indeed authorized the application”); United States v. Radclift,
331 F.3d 1153, 1162 (10th Cir. 2003) (determining the wiretap orders were facially deficient
because{2024 U.S. App. LEXIS 59} the orders "did not specify the identity of any person" but rather
"listed by title every Department of Justice official with legal authority to authorize an application").
- The purpose of § 2518(1)(a) and (4)(d) is to ”fix[] responsibility" for the wiretap to a specific DOJ
official to deter potential misuse or abuse of electronic surveillance. See S. Rep. No. 90-1097, at 101
(1968); see id. at 97 (discussing the importance of "centralizing] in a publicly responsible official" the
proper execution of "electronic surveillance techniques" to "avoid the possibility that divergent
practices might develop" because, "[sjhould abuses occur, the lines of responsibility lead to an
identifiable person"). The identification of Bruce C. Swartz by name as the authorizing official on the
wiretap application, see § 2518(1)(a), and the court's authorization order, see § 2518(4)(d),
sufficiently affixes the responsibility that Congress intended. Moreover, Congress easily could have
written Title III to require that statutorily approved DOJ officials authorize wiretap applications with
authenticated signatures, whether through a notary, witness, or some other way. But Congress chose
not to. See United States v. de la Fuente, 548 F.2d 528, 534 (5th Cir. 1977) (stating that "[n]othing in
the statute governing the{2024 U.S. App. LEXIS 60} authorization of wiretaps . . . requires that the
government must authenticate the attorney general's signature on an authorization order as a
predicate to use of wiretap evidence" and that Congress elected not to install "safeguardjsj" such as
"requiring that an authorization signature be notarized, witnessed, or authenticated by personal
testimony at trial"). Accordingly, we see no facial defect with an order that identifies Bruce C. Swartz
by his name, his personal stamp, and an accompanying signature.19 See Dahda, 584 U.S. at 449
("The statute means what it says. That is to say, subparagraph (ii) applies where an order is
'insufficient on its face.'” (quoting § 2518(10)(a)(ii))).
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18
Because Dahda didn't define with precision the class of defects that require suppression under
subparagraph (ii), other circuits since Dahda have grappled with that question. See United States v.
Brunson, 968 F.3d 325, 331 (4th Cir. 2020) (concluding "that the absence of the official's name from
the face of the [authorization] orders, even if technically a defect, is not the type of defect that would
render these orders facially insufficient"); United States v. Friend, 992 F.3d 728, 730-31 (8th Cir.
2021) (reviewing authorization orders that failed to identify the specific DOJ officials by name, even
though the underlying wiretap applications did designate specific DOJ officials as the authorizing
personnel). This case does not send us into those uncharted waters because, as we discuss below,
Defendants have identified no defect with the authorization order in this case.
CIRHOT
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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIEL EUGENE CRABTREE, a/k/a Buck
Crabtree, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
565 F.3d 887; 2009 U.S. App. LEXIS 10720
No. 08-4411
May 19, 2009, Decided
March 27, 2009, Argued
Editorial Information: Prior History
{2009 U.S. App. LEXIS 1}
Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap.
(2:05-cr-00004-jpj-1). James P. Jones, Chief District Judge.
Disposition:
VACATED AND REMANDED.
ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant.
_ _
Steven Randall Ramseyer, OFFICE OF THE UNITED STATES
ATTORNEY, Abingdon, Virginia, for Appellee.
ON BRIEF: Larry W. Shelton, Federal Public Defender,
Abingdon, Virginia, for Appellant.
Julia C. Dudley, Acting United States Attorney, Roanoke,
Virginia, for Appellee.
.
Judges: Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D. SCHROEDER, United States
District Judge for the Middle District of North Carolina, sitting by designation. Judge Traxler wrote the
opinion, in which Judge Michael and Judge Schroeder joined.
Counsel
CASE SUMMARY
PROCEDURAL POSTURE: Defendant was sentenced in the U.S. District Court for the Western District
of Virginia, at Big Stone Gap, to 24 months imprisonment for violating the terms of his supervised
release The government established some of the violations by introducing audio tapes made by
defendant’s girlfriend in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C.S. §§ 2510-2522. Defendant appealed.Defendant's sentence for violating the terms of his
supervised release was vacated and remanded because some of the violations were established through
audio tapes made by defendant's girlfriend in violation of the Omnibus Crime Control and Safe Streets
Act and the district court erred by applying a "clean hands” exception to 18 U.S.C.S. § 2515.
OVERVIEW: The court agreed with defendant that although the government was not involved in the
interception of defendant's conversations, Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C.S. §§ 2510-2522, nonetheless prohibited the government from introducing evidence of
the intercepted conversations. Because the plain language of 18 U.S.C.S. § 2515 prohibited the
introduction of improperly intercepted communications without regard to whether the government was
involved in the interception. The district court erred by applying a "clean hands" exception to 18 U.S.C.S.
§ 2515. Although the district court determined that defendant had committed numerous violations of the
terms of his supervised release, the violations stemming from the girlfriend's recordings were far and
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91646071
away the most serious of the violations. Because there was nothing in the record suggesting that the
district court would have imposed the same sentence had it not considered the recordings, the error
could not be considered harmless.
OUTCOME: The judgment of the district court was vacated and remanded. On remand, the district court
had to exclude the recordings of defendant's conversations made by his girlfriend and any evidence
derived from those recordings, as required by 18 U.S.C.S. § 2515.
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91646071
A.
Title III prohibits, among other things, the interception of a telephone conversation by someone not a
party to the conversation, see 18 U.S.C.A. § 2511(1)(a); id. § 2511(2)(d), and the intentional use or
disclosure of the contents of a conversation intercepted in violation of the act, see id. §§ 2511 (1 )(c) &
(d). Starnes was not a party to the recorded conversations and Crabtree did not consent to the
recording. Thus, there is {2009 U.S. App. LEXIS 4}no dispute that Starnes violated Title III by
recording Crabtree's telephone conversations or that disclosure of the contents of Crabtree's
conversations is prohibited by Title III.
Because the recording of his conversations violated Title III, Crabtree moved in accordance with 18
U.S.C.A. § 2515 to exclude from the revocation hearing the recordings and any evidence derived
from the recordings. Section 2515 is a statutory exclusionary rule that generally prohibits the
introduction into evidence of illegally intercepted communications or evidence derived from illegally
intercepted communications. The district court denied the motion. The court noted that the
government had "no involvement in the illegal taping of these conversations," which the court
believed warranted application of an "implied exception" to the exclusionary (565 F.3d 889} rule set
forth in § 2515. J.A. 27. Crabtree appeals, arguing that the district court erred by applying a "clean
hands" exception to § 2515.
B.
Whether § 2515 should be understood as containing a "clean hands" exception to its exclusionary
rule is an issue that has divided the circuits. The Sixth Circuit has concluded that § 2515 does not
preclude the government in (2009 U.S. App. LEXIS 5}a criminal prosecution from introducing
evidence of a recording made in violation of Title III if the government had no involvement in the
illegal interception, see United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995), while the First,
Third and Ninth Circuits have refused to read such a clean-hands exception into § 2515, see
Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d
1066, 1079 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). We agree with
the majority and conclude that § 2515 does not permit an exception to its exclusionary rule in cases
where the government was not involved in illegal interception.
In our view, the issue is resolved by the language of § 2515 itself. Section 2515 states, in its entirety,
that
Whenever any wire or oral communication has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority of the United States, a State, or a
political subdivision {2009 U.S. App. LEXIS 6}thereof if the disclosure of that information would
be in violation of this chapter. 18 U.S.C.A. § 2515. The statute seems to clearly and
unambiguously prohibit the use in court of improperly intercepted communications, we simply
see no gaps or shadows in the language that might leave lurking a clean-hands exception.
Because the statute is clear and unambiguous, our inquiry typically would start and stop with its
plain language. See, e.g., Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct.
1146, 117 L. Ed. 2d 391 (1992) ("We have stated time and again that courts must presume that
a legislature says in a statute what it means and means in a statute what it says there. When the
words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is
complete." (citations and internal quotation marks omitted)).
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91646071
LOS ROVELL DAHDA, Petitioner v. UNITED STATES
SUPREME COURT OF THE UNITED STATES
584 U.S. 440; 138 S. Ct. 1491; 200 L. Ed. 2d 842; 2018 U.S. LEXIS 2806; 86 U.S.L.W. 4278; 27 Fla. L.
Weekly Fed. S 227
No. 17-43.
May 14, 2018, Decided*
* Together with Dahda v. United States (see this Court's Rule 12.4), also on certiorari to the same
court.
February 21, 2018, Argued
Notice:
The LEXIS pagination of this document is subject to change pending release of the final
published version.
Editorial Information: Prior History
{2018 U.S. LEXIS 1}ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUITUnited States v. Dahda, 852 F.3d 1282, 2017 U.S. App. LEXIS 5792 (10th
Cir. Kan., Apr. 4, 2017)United States v. Dahda, 853 F.3d 1101, 2017 U.S. App. LEXIS 5791 (10th Cir.
Kan.^Apr. 4, 2017)
Disposition:
853 F.3d 1101 (first judgment) and 852 F.3d 1282 (second judgment), affirmed.
DECISION
(200 L. Ed. 2d 842} Wiretap orders issued by Federal District Court judge were not facially insufficient
under 18 U.S.C.S. § 2518, because orders (1) lacked no information that statute required; and (2) would
have been sufficient absent orders' language authorizing interception outside court's territorial
jurisdiction.
CASE SUMMARY18 U.S.C.S. § 2518(10)(a)(ii) did not contain a Giordano-like core concerns
requirement, but rather applied where an order was insufficient on its face. The defect in the instant
orders, i.e., authorizing interception outside the territorial jurisdiction of the issuing court, did not result in
an insufficiency under § 2518(a)(10)(ii).
OVERVIEW: HOLDINGS: [1]-Contrary to the lower court's conclusion, 18 U.S.C.S. § 2518(10)(a)(ii) did
not contain a Giordano-like core concerns requirement, but rather the statute meant what it said, i.e., §
2518(10)(a)(ii) applied where an order was insufficient on its face; [2]-18 U.S.C.S. § 2518(10)(a)(ii) did
not cover each and every error that appeared in an otherwise sufficient order, but it covered.at least an
order's failure to include information that 18 U.S.C.S. § 2518(4) specifically required the order to contain;
[3]-The defect in the instant orders, i.e., authorizing interception outside the territorial jurisdiction of the
issuing court, did not result in an insufficiency under § 2518(a)(10)(ii) as the sentence was surplus and
without legal effect, and the orders clearly set forth the authorizing judge's territorial jurisdiction.
OUTCOME: Judgment affirmed. 8-0 decision
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91646071
WIRETAP ORDER - FACIAL INSUFFICIENCY - SUPPRESSION
Fleadnote:5.
18 U.S.C.S. § 2518(10)(a)(ii) requires suppression when an order is facially insufficient. And in respect to
this subparagraph, there is no good reason for applying the Giordano test. The underlying point of the
Giordano limitation was to help give independent meaning to each of 18 U.S.C.S. § 2518(10)(a)'s
subparagraphs. It thus makes little sense to extend the core concerns test to § 2518(10)(a)(ii) as well.
Doing so would actually treat that subparagraph as surplusage, precisely what the United States
Supreme Court tried to avoid. Consequently, § 2518(10)(a)(ii) does not contain a Giordano-like core
concerns requirement. The statute means what it says. That is to say, § 2518(10)(a)(ii) applies where an
order is insufficient on its face.
WIRETAP ORDER - FACIAL INSUFFICIENCY - SUPPRESSION
Fleadnote:6.
18 U.S.C.S. § 2518(10)(a)(ii) does not cover each and every error that appears in an otherwise sufficient
order. It is clear that § 2518(10)(a)(ii) covers at least an order's failure to include information that 18
U.S.C.S. § 2518(4) specifically requires the order to contain. 18 U.S.C.S. § 2518(4)(a)-(e). An order
lacking that information would deviate from the uniform authorizing requirements that Congress explicitly
set forth, while also falling literally within the phrase insufficient on its face.
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91646071
NITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEY LAMOND BRUNSON, a/k/a Flex,
Defendant - Appellant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
968 F.3d 325; 2020 U.S. App. LEXIS 24230
No. 18-4696
July 31, 2020, Decided
January 29, 2020, Argued
Editorial Information: Subsequent History
Rehearing denied by, Rehearing denied by, En banc United States v. Brunson, 2020 U.S. App. LEXIS
27423 (4th Cir Aug 27, 2020)US Supreme Court certiorari denied by Brunson v. United States, 141 S.
Ct. 1398, 209 L. Ed. 2d 134, 2021 U.S. LEXIS 857, 2021 WL 666526 (U.S., Feb. 22, 2021 petition
denied by, As moot In re Brunson, 2023 U.S. App. LEXIS 28254 (4th Cir. S.C., Oct. 23, 2023)
Editorial Information: Prior History
(2020 U.S. App. LEXIS 1}Appeal from the United States District Court for the District of South Carolina,
at Columbia Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00604-JFA-18).United States v.
Alexander, 693 Fed. Appx. 192, 2017 U.S. App. LEXIS 12630, 2017 WL 2992092 (4th Cir. S.C., July 14,
2017)
Disposition:
AFFIRMED.
ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant.
Thomas Ernest Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Brian A. Benczkowski, Assistant Attorney General,
Matthew S. Miner, Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, Columbia, South
Carolina, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Denver, Colorado, for Appellee.
Judges: Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson joined. Judge Motz wrote a dissenting opinion.
Counsel
CASE SUMMARYWiretap orders were sufficient under Title III of Omnibus Crime Control and Safe
Streets Act of 1968 ( Wiretap Act), and thus, district court did not err in denying defendant’s motion to
suppress, because in context, orders contained sufficient information to identify authorizing officials as
required by 18 U.S.C.S. § 2518(4)(a)-(e).
OVERVIEW: HOLDINGS: [1]-The wiretap orders were sufficient under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (the Wiretap Act), and thus, the district court did not err in denying
defendant's motion to suppress, because in context, the orders contained sufficient information to
identify the authorizing officials as required by 18 U.S.C.S. § 2518(4)(a)-(e), but even if the absence
name of the authorizing official in the orders was a defect, it would not be the type of defect that
rendered the orders "insufficient" under § 2518(10)(a)(ii), and even if the wiretap orders were thought to
be facially insufficient, defendant's motion to suppress would have appropriately been denied under
Leon's good faith doctrine; [2]-Because defendant was sentenced prior to the First Step Act's (FSA)
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enactment, the benefits of § 401 of the FSA were not available to him.
OUTCOME: Judgment affirmed.
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916450
Opinion by:
NIEMEYER
Opinion
{968 F.3d 327} NIEMEYER, Circuit Judge:
Joey Brunson, the defendant in this criminal prosecution, challenges the legality of three orders
authorizing wiretaps on the ground that the orders did not, on their face, sufficiently identify the
persons authorizing the applications for the orders, as required by law. The district court denied his
motion to suppress evidence{2020 U.S. App. LEXIS 2} obtained from the wiretaps, and the evidence
was used to convict Brunson of numerous drug-trafficking and related crimes.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("the Wiretap Act"), 18 U.S.C. §
2510 ot seq., authorizes federal judges to issue orders approving wiretaps when detailed statutory
requirements are met. And it provides that when certain specified requirements are not met, the
contents of any intercepted communications and evidence derived from them must be suppressed.
Id. §§ 2518(4)(a)-(e); § 2518(10)(a).
The Wiretap Act authorizes the Attorney General and various other designated officials in the
Department of Justice, including any Deputy Assistant Attorney General in the Criminal Division or
National Security Division, to apply for a wiretap order, and it requires that the application for the
order include the "identity of . . . the officer authorizing the application," 18 U.S.C. § 2518(1)(a), and
also that the order authorizing the wiretap "specify . . . the identity of the agency authorized^
intercept communications, and of the person authorizing the application," id. § 2518(4)(d). Failing the
inclusion ^f th^ infnrmatinn, the order becomes "insufficient," and evidence obtained from the
wiretap must be suppressed. See id. § 2518(10)(a)(ii){2020 U.S. App. LEXIS 3}.
In this case, the government identified in each application for a wiretap order the senior Justice
Department official by title and name who authorized the application, but in each proposed order that
it submitted to the district court, it included only the title, not the name of the official. Each order
stated that the application for the order was authorized by "an appropriate official of the Criminal
Division, United States Department of Justice, Deputy Assistant Attorney General, pursuant to the
power delegated to that official by special designation of the Attorney General." The district court
signed the order as submitted.
Brunson contends that because the orders did not include the name of each authorizing official, the
orders were statutorily insufficient and therefore all evidence derived from them should have been
suppressed. Accordingly, he argues that the district court erred in denying his motion to suppress.
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Since the defect at issue did not implicate the requirements stated{2020 U.S. App. LEXIS 14} in §§
2518(4)(a)-(e), the Court did not address the consequence of a technical defect that might arise by a
failure to comply precisely with § 2518(4). Dahda, 138 S. Ct. at 1498. Indeed, it stated specifically
that it was not resolving questions such as the consequence of a defect under § 2518(10)(a)(ii) based
on "identifying the wrong Government official as authorizing the application." Id. In short, even
though the government relied on courts of appeals cases holding that defects arising from a failure to
comply to the letter with the requirements of §§ 2518(4)(a)-(e) did not warrant suppression, the Court
refused to address the consequence of such technical defects.
Because Dahda does not address how we, in this case, are to determine whether the orders' failure
to include the names of authorizing officials renders them "insufficient," we must look elsewhere.
B
Brunson's argument that the orders in this case failed adequately to include the "identity ... of the
person authorizing the application" for each order, as required by § 2518(4)(d), arises from the
undisputed fact that, even though each order described the authorizing person by title, it did not
include the person's name, and reference to the name in the application for the order was not an
identification on the face{2020 U.S. App. LEXIS 15} of the order. He thus contends that the orders
were "insufficient on [their face]," requiring suppression under § 2518(10)(a)(ii) of any evidence
derived from the wiretaps.
Each order in this case states that it was issued "pursuant to an application authorized by an
appropriate official of the Criminal {968 F.3d 332} Division, United States Department of Justice,
Deputy Assistant Attorney General, pursuant to the power delegated to that official by special
designation of the Attorney General." Thus, while the orders identified the authorizing official by title,
they did not include the official's name, instead referring to the application where the name was
provided.
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91646071
Finally, even if the wiretap orders were thought to be facially insufficient, Brunson s motion to
suppress would have appropriately been denied under the good faith doctrine articulated in United
States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
{968 F.3d 334} In Leon, the Supreme Court held that evidence "seized in reasonable, good-faith
reliance on a search warrant that is subsequently held to be defective" is not subject to suppression,
despite the existence{2020 U.S. App. LEXIS 21} of a constitutional violation. 468 U.S. at 905. The
Court noted that the social costs of excluding evidence to vindicate Fourth Amendment rights are
high, as the exclusion impedes the truth-finding functions of the judge and jury and possibly results in
guilty defendants going free or receiving reduced sentences. See id. at 907. And suppressing
evidence "obtained in objectively reasonable reliance on a subsequently invalidated search warrant"
has only "marginal or nonexistent" benefits in terms of deterring Fourth Amendment violations. Id. at
922. Thus, the Court observed, where an officer acts in good faith, the benefits of suppressing the
fruits of an invalid warrant are outweighed by the harms of doing so. See id.
While Leon carved out an exception to the judicially created exclusionary rule and this case involves
a statutory exclusionary rule, we note that when Congress enacted the Wiretap Act, it did so against
the backdrop of analogous Fourth Amendment jurisprudence. Indeed, the accompanying Senate
Report specifically states that the statutory suppression remedy was designed to "largely reflects
existing law." S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2185. Moreover,
Leon's rationale is equally applicable in the statutory suppression{2020 U.S. App. LEXIS 22} context
- "when law enforcement officers have acted in objective good faith or their transgressions have
been minor," requiring suppression of evidence confers an unearned benefit on a guilty defendant
that "offends basic concepts of the criminal justice system." Leon, 468 U.S. at 908. Moreover, in the
same vein, the Supreme Court has specifically recognized that not every defect in a wiretap order
justifies exclusion under the Wiretap Act's suppression provision. See Dahda, 138 S. Ct. at 1498.
Thus, we conclude that where law enforcement officials have acted reasonably and in good faith to
comply with the central substantive requirements of the Wiretap Act, as is the case here,
suppression is not justified. See Moore, 41 F.3d at 376-77 (holding that the good faith exception
applied to the government's interception of communications pursuant to a wiretap order that was
missing the judge's signature); United States v. Brewer, 204 F. App'x 205, 208 (4th Cir. 2006) (per
curiam) (unpublished) (holding in the alternative that law enforcement officers "were entitled to rely
on facially valid wiretap orders pursuant to the good faith exception"). Even though the wiretap
orders submitted by the government did not contain the names of the authorizing officials, the
accompanying applications did. More importantly, there was{2020 U.S. App. LEXIS 23} plainly no
attempt to obfuscate the identity of the relevant officials, nor did the government fail to secure proper
authorization for the applications submitted. And at the time the orders in question were issued in
2013, no court of appeals had held that a failure to include the name of the authorizing officer in the
wiretap order rendered such an order substantively deficient. Indeed, numerous courts had
considered challenges to similar orders and held that communications intercepted under those orders
were not subject to suppression. See, e.g., United States v. Gray, 521 F.3d 514, 526-28 (6th Cir.
2008) (holding that the omission of the name of the authorizing officer from a wiretap order was a
technical defect that did not require suppression); United States v. Callum, 410 F.3d 571, 576 (9th
Cir 2005) (same); United States v. Fudge, {968 F.3d 335} 325 F.3d 910, 918 (7th Cir. 2003)
(same)' United States v. Radcliff, 331 F.3d 1153, 1162 (10th Cir. 2003) (same) (noting that "[e]very
circuit to consider the question has held that § 2518(10)(a)(ii) does not require suppression if the
facial insufficiency of the wiretap order is no more than a technical defect" (quoting Moore, 41 F.3d
at 374)) Finally, when the D.C. Circuit declined to follow this line of cases, holding in 2016 that the
omission of the authorizing officer's name rendered a wiretap order facially insufficient for purposes
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of § 2518(10)(a)(ii), see Scurry, 821 F.3d at 8-12, the Department of Justice changed its practice to
ensure that future{2020 U.S. App. LEXIS 24} orders did contain the name of the authorizing official.
In short, any defects in orders issued prior to 2016 resulted from good faith efforts to comply with the
requirements of the Wiretap Act and not from intentional wrongdoing and therefore would not require
suppression of the evidence obtained.
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Dissent
DIANA GRIBBON MOTZ
Dissent by:
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
The plain language of 18 U.S.C. § 2518(4), as the Supreme Court recognized in Dahda v. United
States, 138 S. Ct. 1491, 200 L. Ed. 2d 842 (2018), forecloses any holding that the wiretap orders
relied on here were facially sufficient. Accordingly, I must dissent. I .A.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. § 2510 et
seq. ("Title III"), has the "dual purpose" of protecting{2020 U.S. App. LEXIS 28} individual privacy
and setting forth uniform conditions for law enforcement interception of wire and oral
communications. S. Rep. No. 90-1097, at 66 (1968). The statute balances the need to combat
serious crime and the equally pressing imperative of safeguarding individual privacy from
government overreach. See id. at 66-67. It does so by prohibiting all interstate interceptions of wire,
oral, and electronic communications with limited exceptions, such as for law enforcement to
investigate specified types of serious crime. Cf. United States v. Hoffman, 832 F.2d 1299, 1306 (1st
Cir. 1987) ("[l]n a society which values privacy and the rights of the individual, wiretapping is to be
distinctly the exception - not the rule.").
.
Title III specifies the obligations of both law enforcement and the authorizing court. It requires law
enforcement to submit a {968 F.3d 337} detailed wiretap application to a court of competent
jurisdiction and delineates the specific information that must be contained in that application. 18
U.S.C. § 2518(1). Only after a court independently makes the findings required by the statute can it
issue an order authorizing the interception. Id. § 2518(3). Title III also separately lists the information
that must appear in the court's order. Id. § 2518(4). It is the court's order, not the application,(2020
U.S. App. LEXIS 29} that authorizes the interception and provides a defense to civil penalties for
unauthorized snooping. Id. § 2520(d)(1). An application without a subsequent court order is, legally
speaking, no more than a piece of a paper. 1
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916460?1
United States of America, Plaintiff - Appellee, v. Kenneth R. Friend, Defendant - Appellant.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
992 F.3d 728; 2021 U.S. App. LEXIS 9368
No. 19-3225
November 18, 2020, Submitted
March 31, 2021, Filed
Editorial Information: Subsequent History
Rehearing denied by, En banc, Rehearing denied by United States v. Friend. 2021 U.S. App. LEXIS
15858 (8th Cir. Mo., May 26, 2021)Motion granted by Friend v. United States, 142 S. Ct. 561, 211 L. Ed.
2d 350, 2021 U.S. LEXIS 5838, 2021 WL 5434171 (U.S., Nov. 22, 2021 )US Supreme Court certiorari
denied by Friend v. United States, 142 S. Ct. 819, 211 L. Ed. 2d 508, 2022 U.S. LEXIS 464, 2022 WL
89592 (U.S., Jan. 10, 2022)Petition denied by Friend v. United States, 2023 U.S. App. LEXIS 21656 (8th
Cir. Mo., Aug. 17, 2023)
Editorial Information: Prior History
(2021 U.S. App. LEXIS 1}Appeal from United States District Court for the Western District of Missouri Springfield.United States v. Friend, 2018 U.S. Dist. LEXIS 6556, 2018 WL 445121 (W.D. Mo., Jan. 16,
2018)
For United States of America, Plaintiff - Appellee: Randall D. Eggert,
Assistant U.S. Attorney, Cynthia Jean Hyde, Nhan Due Nguyen, Assistant U.S. Attorney,
Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Springfield, MO.
For Kenneth R. Friend (Federal Prisoner: 27251-045),
Defendant - Appellant: Elizabeth Unger Carlyle, Kansas City, MO.
Kenneth R. Friend (Federal Prisoner: 27251-045), Defendant Appellant, Pro se, Pekin, IL.
Judges: Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
Counsel
CASE SUMMARYA district court's denial of defendant’s motion to suppress evidence obtained through
the government's interception of his wire and electronic communications was affirmed since, even if the
orders were insufficient, suppression of evidence was not warranted, because investigators reasonably
relied in good faith on the court orders.
OVERVIEW: HOLDINGS: [1]-Evidence obtained through the government's interception of defendant's
wire and electronic communications did not have to be suppressed because, while he argued that the
court orders authorizing the interceptions were insufficient on their face, because they allegedly failed to
specify the identity of the person who authorized the applications for the orders, 18 U.S.C.S. §
2518(10)(a)(ii) incorporated the good-faith exception to the exclusionary rule adopted in the Leon
decision, and, given the state of the law in 2014, and even today in light of the Brunson decision, it was
objectively reasonable for investigators to rely on the court orders at issue to intercept defendant's
communications.
OUTCOME: Denial affirmed.
A08CASES
1
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91646071
Criminal Law & Procedure > Search & Seizure > Electronic Eavesdropping > Warrants
Even accepting that a wiretap order is insufficient on its face if it fails to specify the identity of the person
authorizing the application, it does not necessarily follow that an order must include the name of an
authorizing official.
Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > Exceptions > Good Faith
Constitutional Law > Bill of Rights > Fundamental Rights > Search &-Seizure > Exclusionary Rule
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of
Protection
Because the suppression provision, 18 U.S.C.S. § 2518(10)(a)(ii), is worded to make the suppression
decision discretionary, and the legislative history expresses a clear intent to adopt suppression principles
developed in Fourth Amendment cases, the United States Court of Appeals for the Eighth Circuit has
ruled that the statute incorporates the good-faith exception to the exclusionary rule adopted in the Leon
decision.
Opinion
Opinion by:
COLLOTON
Opinion
{992 F.3d 729} COLLOTON, Circuit Judge.
Kenneth Friend appeals an order of the district courtl denying his motion to suppress evidence
obtained through the government's interception of his wire and electronic communications. He
argues that the court orders authorizing the interceptions were insufficient on their face, because
they allegedly failed to specify the identity of the person who authorized the applications for the
orders. We conclude that even if the orders were insufficient, suppression of evidence is not
warranted, because investigators reasonably relied in good faith on the court orders. We therefore
affirm the judgment.{2021 U.S. App. LEXIS 2}
The appeal arises from a prosecution of Friend for money laundering and conspiracy to distribute
methamphetamine. See 18 U.S.C. § 1956(a)(1)(A)(i); 21 U.S.C. § 846. During an investigation,
federal investigators secured five court orders authorizing the interception of Friend's wire and
electronic communications. After a grand jury charged Friend, and the district court denied his
motion to suppress all intercepted communications and evidence derived therefrom, Friend entered
a conditional guilty plea. He reserved the right to appeal the order denying his motion to suppress.
The district court then imposed a sentence of 324 months' imprisonment.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 establishes the procedure for law
enforcement to intercept wire, oral, or electronic communications. See 18 U.S.C. §§ 2510-2523. The
statute provides that an order authorizing the interception of communications "shall specify" several
things, including "the {992 F.3d 730} identity ... of the person authorizing the application" for the
order. Id. § 2518(4)(d). The stat
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