United States v. Browner, 110508 OKWDC, CR-03-242-D

Docket NºCR-03-242-D, CIV-07-782-D, CIV-07-782-D
Opinion JudgeTIMOTHY D. DEGIUSTI, District Judge.
Case DateNovember 05, 2008
CourtUnited States District Courts, 10th Circuit, Western District of Oklahoma




Nos. CR-03-242-D, CIV-07-782-D, CIV-07-782-D

United States District Court, W.D. Oklahoma.

November 5, 2008.


TIMOTHY D. DEGIUSTI, District Judge.

The matter before the Court is Defendant Oliver Keith Browner's pro se Motion Under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence [Doc. No. 316]. Defendant raises a claim that his guilty plea was rendered involuntary due to ineffective assistance of counsel. Following a response by the government and Defendant's reply, the Court determined that an evidentiary hearing was necessary and appointed counsel for Defendant. See Order Granting Evidentiary Hearing [Doc. No. 322]. Defendant subsequently sought and was granted permission to represent himself. See Order 10/8/08 [Doc. No. 343]. However, standby counsel was appointed, and Defendant appeared at the hearing with attorney Bill Zuhdi as standby counsel, who had previously represented Defendant on direct appeal and for resentencing. The evidentiary hearing was held on October 10, 2008.

At the hearing, the Court heard testimony of Defendant and Joseph Wells, the attorney who represented Defendant at trial and in connection with the guilty plea. The Court admitted two exhibits provided by Mr. Wells from his files. Exhibit 1 consists of a cover page and various papers signed by United States Magistrate Judge Robert E. Bacharach; it was admitted without objection. Exhibit 2 consists of a typewritten list of requests and responses (discussed below), a letter regarding Defendant's proposed cooperation, an FBI report of Defendant's interview by agents, and a record of Defendant's prior criminal case; it was admitted over Defendant's objection. The Court also took judicial notice of certain documents in the case record, namely, Defendant's Plea Agreement, Petition to Enter Guilty Plea, and Waiver of Jury Trial [Doc. Nos. 148, 149, 150], and certain hearing transcripts: March 11, 2004, Hearing Regarding Dismissal of Defense Counsel; March 15, 2004, Change of Plea; and December 1, 2004, Sentencing, which also addressed Defendant's pro se request to withdraw his guilty plea. The Court also agreed to consider the record related to Defendant's first direct appeal (No. 05-6005), the court of appeals' Order and Judgment issued January 9, 2007 (United States v. Browner, 211 F. App'x 781 (10th Cir. Jan. 9, 2007)), and pertinent portions of the record referred to during the hearing, including pretrial motions filed by Mr. Wells on Defendant's behalf. Of particular interest was the Motion to Suppress Title III Wiretap Material [Doc. No. 70] and the Order of February 6, 2004, denying that motion [Doc. No. 101].

After careful consideration of the parties' submissions, the existing record, and the additional evidence presented, the Court denies relief for the reasons that follow.

A. Factual Background

On October 23, 2003, a criminal complaint was filed against Defendant and three others by FBI Special Agent Andrew Farabow, alleging their involvement since April, 2002, in a conspiracy to possess with intent to distribute and to distribute cocaine base (crack) in violation 21 U.S.C. § 846.1 Defendant was arrested the same day and, at his initial appearance, requested appointment of counsel. On October 28, 2003, Defendant appeared with his appointed attorney, Paul Antonio Lacy of the Federal Public Defender's Office, and waived preliminary and detention hearings.

According to evidence received at the § 2255 hearing, Defendant immediately expressed an interest in cooperating with the government in the investigation. By letter dated October 28, 2003, the assigned prosecutor, Assistant United States Attorney Jay Farber, stated the terms under which Defendant could proffer information. See Ex. 2. On October 29, 2003, Defendant and his counsel, Mr. Lacy, signed the letter agreement and appeared for an interview of Defendant by Agent Farabow and another FBI agent, Charles DeLaughter. According to the report of that interview, Defendant gave a detailed account of his drug trafficking activities with Tommy Gene Perry ("Perry") beginning in California in 2001 and continuing in Oklahoma in 2002 and 2003. Defendant named numerous individuals in both California and Oklahoma who were involved in buying or selling cocaine powder in California, transporting it to Oklahoma, "cooking" it into cocaine base, and selling cocaine base in Altus, Frederick, and Lawton, Oklahoma. Defendant subsequently ceased his cooperation.2

On November 19, 2003, the grand jury returned a 34-count indictment. Defendant was charged in Count 1 with the conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base (crack) and 500 grams or more of cocaine; in Counts 2-4, 6, 9, 11, 22, 26 and 29 with distribution of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1); in Counts 5, 8, 10, 14-18, 20, 21, 23, 25, 27 and 28 with use of a telephone to facilitate the distribution of cocaine base (crack) or cocaine in violation of 21 U.S.C. § 843(b); in Counts 7 and 24 with maintaining a place for the purpose of distributing and using controlled substances in violation of 21 U.S.C. § 856(a)(1); in Count 12 with interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952(a)(3); in Count 19 with possession of cocaine in violation of 21 U.S.C. § 841(a)(1); in Counts 30 and 31 with possession with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1); in Count 32 with possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1); in Count 33 with possession of a firearm with the serial number obliterated or removed in violation of 18 U.S.C. § 922(k); and in Count 34 with being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).

Defendant was arraigned on November 24, 2003, and the case was set for jury trial in January, 2004. In December, 2003, Defendant through counsel sought additional time to file pretrial motions and a notice of defenses due, in part, to the volume of discovery produced by the government, including numerous audio recordings, photographs, and documents. See Unopposed Appl. Enlargement Time [Doc. No. 57]. Although the extension was granted, no motions were filed, and Mr. Lacy instead moved to withdraw as counsel due to a conflict of interest that had developed because another client of the Federal Public Defender's Office wished to cooperate with the government in the prosecution of Defendant. The motion to withdraw was granted on January 5, 2004, and a motion by the government to continue the trial was granted the same day. Mr. Wells entered his appearance as substitute counsel for Defendant on January 14, 2004.

Mr. Wells promptly moved to file pretrial motions out of time. He then filed the Motion to Suppress Title III Wiretap Material, a motion for disclosure of Rule 404(b) evidence, a motion to reveal information regarding informants, and two motions to dismiss, one of which questioned the constitutionality of 21 U.S.C. § 841(b) under Apprendi v. New Jersey, 530 U.S. 466 (2000). The motion to suppress challenged the court-ordered wiretap of two telephone numbers subscribed and billed to co-defendant Gwendolyn Holmes and allegedly used by Defendant, based on the alleged insufficiency of the application and supporting affidavit. In response, the government submitted a copy of Agent Farabow's affidavit and argued why a wiretap was necessary to the investigation under the circumstances. See Govt's Resp. Def.'s Mot. Suppress, Ex. A [Doc. No. 90-1]. The motion to suppress and all other pretrial motions were denied on February 6, 2004. Mr. Wells filed a motion in limine, or Motion to Prohibit Paid Witnesses to Testify for the Prosecution as Being in Violation of the Fifth and Sixth Amendments, on March 1, 2004; this motion was denied on March 5, 2004. By that date, all other defendants in the case had entered pleas of guilty under plea agreements, and upon motion of the government, Counts 32, 33 and 34 against Defendant had been dismissed. See Order of Dismissal 3/3/04 [Doc. No. 136].

On March 5, 2004, Defendant appeared in court for a James 3 hearing, and Agent Farabow testified concerning the factual basis for admitting co-conspirators' out-of-court statements as evidence against Defendant. The jury was selected and empaneled on March 8, 2004, and the presentation of evidence was scheduled to begin on March 15, 2004. On March 10, 2004, the Court received a letter from Defendant dated March 8, 2004, requesting dismissal of Mr. Wells and appointment of substitute counsel due to Mr. Wells' alleged refusal to subpoena evidence and witnesses that would be helpful to the defense and Defendant's lack of confidence in Mr. Wells' representation. The letter was filed as a pro se motion [Doc. No. 144] and was set for hearing on March 11, 2004.

Defendant appeared at the hearing and was examined by the assigned trial judge, Judge Ralph Thompson, concerning the nature of his dissatisfaction with Mr. Wells. In addition to a speedy trial concern, which is no longer an issue, Defendant stated his desire to subpoena telephone records, Mr. Perry, evidence that Perry was forewarned by Agent DeLaughter about a search warrant for his house, evidence regarding whether the government lawfully obtained and executed court orders for pen registers and wiretaps, and evidence to show that the FBI, particularly Agent DeLaughter, was shielding Perry and his nephew, Cotis Perry, from prosecution for numerous offenses (including Cotis Perry's alleged murder of an individual). Concerning the wiretap, Defendant expressed concern that the application, order, and first recorded telephone call occurred the same day, and he demanded proof that SBC and Sprint received the order before wiretapping began. Defendant also...

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