United States v. Ball

• Decision Date: 25 May 2017
• Docket Number: Case No. 06-20465
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. GARY BALL, JR., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. GARY BALL, JR., Defendant.

Case No. 06-20465

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 25, 2017

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISCOVERY [2859]

This matter is before the Court on Defendant Gary Ball's motion for discovery under Rule 6(a) of the Rules Governing § 2255 Proceedings. (Dkt. 2859.) On May 17, 2017, the Court held a hearing on this motion. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for discovery.

I. Background

On June 3, 2010, a jury convicted Defendant of the following crimes: (Count One) substantive RICO; (Count Two) RICO conspiracy; (Count Fifteen) conspiracy to transport stolen vehicles; (Count Nineteen) conspiracy to possess with intent to distribute controlled substances-cocaine, marijuana, and ecstasy; (Count Twenty) conspiracy to possess with intent to distribute controlled substances-cocaine; and (Count Thirty-Six) conspiracy to alter, remove, and obliterate vehicle identification numbers. (Dkt. 1470.) On February 10, 2011, the Court sentenced Defendant to 30 years on Counts One, Two, and Nineteen (concurrent); 10 years on Count Fifteen (concurrent); 20 years on Count Twenty (concurrent); and 5 years on Count Thirty-Six (concurrent). (See Dkt. 1781.) The Sixth Circuit affirmed Defendant's convictions and sentence on September 30, 2013, and his writ of certiorari was denied on April 7, 2014. (See Dkt. 2556.)

The matter now before the Court is Defendant's motion for discovery related to his 28 U.S.C. § 2255 motion to vacate his sentence, which is currently pending. Defendant's § 2255 motion claims that he is entitled to relief on several grounds. First, he maintains that both of his attorneys, Lee O'Brien and Lawrence Shulman, deprived him of his right to representation that is free from conflicts of interest. Second, Defendant argues that both O'Brien and Shulman provided ineffective assistance of counsel, regardless of whether they were operating under conflicts. Finally, Defendant alleges various forms of prosecutorial misconduct, including failures to disclose exculpatory material. To provide context for Defendant's discovery demands, the Court outlines the facts and allegations relevant to each of Defendant's § 2255 claims below.

A. Representation by Lee O'Brien

Lee O'Brien was Defendant's attorney of record from October 3, 2006, the date Defendant made his initial appearance, to May 8, 2008, the date this Court terminated his representation. (Dkt. 166.) Defendant argues that O'Brien suffered from a conflict of interest throughout this entire period because he was "the subject of a criminal investigation by [the] same prosecuting authority, with the same case agent involved, and the investigation included allegations that O'Brien participated in some of the criminal activity with which Ball was charged in this case." (Dkt. 2713, at 20.) Defendant maintains that his defense was adversely affected because O'Brien "risked being inculpated if he were to have [Defendant] pursue plea negotiations." (Id. at 7.)

Defendant alleges that the Government was investigating O'Brien's involvement with Defendant's criminal activity as early as August 2005, over a year before Defendant made his initial appearance in this case. In support, Defendant points to an FBI 302 dated August 4, 2005,¹ in which Special Agent Edward L. Brzezinski reported the following: "The source advise [sic] that GARY BALL resides in a condominium that is owned by LEE O'BRIEN, who is an attorney at Jeffrey Figor's (phonetic) law firm. The source was told that O'BRIEN drinks a lot of alcohol and is "hooked on" cocaine, which he gets from GARY BALL." (Dkt. 2722-1, at 2.) Defendant also offers an FBI 302 from September 2005, but this report does not mention any criminal conduct. There, Brzezinski noted that O'Brien was one of the "attorneys that represent a lot of the Highwaymen Outlaw Motorcycle Gang (HOMG) members," as well as a "big dope addict[]" that associated with the HOMG on a regular basis, although not a patched member. (Id. at 4.)

Around a year after those FBI 302s, on September 6, 2006, the initial indictment in this case was filed under seal. (Dkt. 2.) Therein, Defendant was indicted as one of 17 defendants for conspiracy to possess with intent to distribute controlled substances (specifically cocaine, marijuana, and ecstasy). (Dkt. 3.) On October 3, 2006, the indictment was unsealed, and Defendant made his initial appearance, where he was represented by O'Brien. (Dkt. 1.)

Roughly a year after that, in November 2007, Special Agent Brzezinski went with the Downriver Auto Theft Taskforce to Todd Sullivan's body shop, where they found a re-tagged, stolen Camaro. (Dkt. 2722-1, at 7-8.) According to Brzezinski, Sullivan claimed that the Camaro belonged to O'Brien and that he had purchased it from O'Brien. (Id. at 8.) Brzezinski further testified that this exchange with O'Brien occurred soon after:

[I] ran into Lee O'Brien at the courthouse. And the first thing he came up to me and said, "I don't own that car." I said, "I never said you did." I said, "Do you know Todd Sullivan?" "No, I don't know Todd Sullivan. I didn't know who Todd Sullivan was until two days ago." I said, "He never paid you for a car?" He said, "Well, no, I sold the car, but I don't know Todd, I never met with him, never even talked to the guy, never even been in his shop."

(Id.)

O'Brien has supplied an affidavit reflecting his version of this exchange. (Dkt. 2795-1, at 11-12.) O'Brien avers that, "on or about November of 2007," while he was representing Michael Newberry in state court, Brzezinski became frustrated with Newberry's unwillingness to cooperate with authorities and accused O'Brien of selling a stolen Camaro. (Id. at 11.) O'Brien further avers that "[s]ometime thereafter, I received a call from Brzezinski advising me that he had a warrant for my arrest on a claim that I had made a False Statement to a Federal Officer." (Id.) O'Brien then concludes: "I say without hesitation that I was not able to enter into any meaningful plea negotiations on behalf of [Defedendant] . . . based on my concerns arising from Brzezinski's threats against me personally, and finally from his call advising me he had a warrant against me." (Id. at 11-12.) O'Brien does not claim that he was aware of the FBI 302s prepared in 2005.

Seventeen months after Defendant made his initial appearance, on March 12, 2008, O'Brien was charged via federal complaint with false statements in connection with possession of the re-tagged, stolen Camaro. (2722-1, at 11 (Dkt. 1 in 08-mj-30123).) Nine days after that complaint was filed, this Court set a hearing to discuss getting Defendanta new attorney. (Dkt. 160.) On May 8, 2008, this Court terminated O'Brien's representation of Defendant, prior to any motion cut-off or trial date. (Dkt. 166.)

A year after O'Brien's termination, on May 14, 2009, the first superseding indictment was unsealed charging Defendant with additional counts. (Dkt. 198.) These included substantive RICO (Count One); RICO conspiracy (Count Two); conspiracy to commit murder in aid of racketeering (Count Thirteen); conspiracy to transport stolen vehicles (Count Fifteen); and conspiracy to possess with intent to distribute, and distribution of, cocaine (Count Twenty). (Id.) The original count of controlled substance conspiracy (cocaine, marijuana, and ecstasy), with which Defendant was charged in the initial indictment, became Count Nineteen in this first superseding indictment. (Id.) O'Brien was not charged in this first superseding indictment.

Seven months later, on December 15, 2009, a second superseding indictment was filed. (Dkt. 997.) In this indictment, Defendant was charged with an additional count of conspiracy to alter, remove, or obliterate vehicle identification numbers (Count Thirty-Six).² (Id. at 43.) O'Brien was charged in this second superseding indictment with a single count of false statements (Count Forty-Four). (Id. at 47.) This count was based on the same misconduct for which O'Brien was originally charged on March 12, 2008 and superseded the criminal complaint in that other case.

On April 1, 2010, twenty-three months after O'Brien's representation was terminated, Defendant went to trial.

On October 24, 2011, the Government filed a motion to dismiss the second superseding indictment as to O'Brien because "the ends of justice would best be served by this dismissal." (Dkt. 2240.) That same day, the Court entered an order dismissing O'Brien. (Dkt. 2245.)

Regarding the period when O'Brien represented Defendant, the Government notes: "Of the seventeen individuals charged in the original indictment, none of them resolved their cases between October 2006 and May 2008." (Dkt. 2765, at 10.) The Government also emphasizes that Assistant United States Attorney Diane Marion was telling everyone involved that a superseding indictment with additional charges was forthcoming. (Id.) The Government further proposes that any notion that Defendant and the Government were going to reach an agreement resolving his case prior to racketeering charges being added is nothing but fiction. (Id. at 11.) Defendant responds that the Government's representations are disingenuous because there is evidence that codefendants were cooperating during that period. (See Dkt. 2795-1, at 20-28.) An FBI 302 transcribed on January 23, 2007 reports that codefendant Monika Zuk interviewed with the Detroit FBI pursuant to a proffer agreement on January 22, 2007. (Id. at 20.)

B. Representation by Lawrence Shulman

Lawrence Shulman became counsel of record for Defendant on June 17, 2008, and he represented Defendant through trial and sentencing. (See Dkt. 175; Dkt. 1761.) According to Defendant, the conflicts of interest attending Shulman's representation arose from his prior and concurrent...