United States v. Isom
| Decision Date | 26 April 2012 |
| Docket Number | CR No. 06-106-S |
| Parties | UNITED STATES OF AMERICA v. DERRICK ISOM. |
| Court | U.S. District Court — District of Rhode Island |
Derrick Isom has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 186) in the above matter. For the reasons that follow, that motion, along with his related motion, discussed infra, must be denied.
In December 2003, a paid informant told Providence Police that he had purchased crack cocaine from Isom and Khalid Mason, a co-defendant in this matter. According to the informant, the two were conducting a substantial narcotics operation from a home located at 214 Pavilion Avenue in Providence and from another residence in Pawtucket, Rhode Island. Following aperiod of surveillance, Providence Police Sergeant Scott Partridge obtained a search warrant for both locations on January 16, 2004. On that date, Partridge and several other Providence police officers, including Detectives Joseph Colanduono and Robert Enright, who were also acting as agents of the Drug Enforcement Administration (DEA), went to execute the warrant on the Pavilion Avenue house.
As the officers approached the residence, they saw Isom exit the residence and flee in his car, placing a cell phone call to Mason as he drove off. Officers at the scene unsuccessfully attempted to chase and stop Isom; he was arrested at a motel in Massachusetts later the same day. During the search of 214 Pavilion Avenue, police found slightly more than 303 grams of crack cocaine (some in plain view), packaging materials, $2,360 in cash, and personal items suggesting that Khalid Mason lived there. The search of the Pawtucket residence uncovered $9,551 in cash in a jacket belonging to Isom.
A federal grand jury indicted Isom and Mason in October 2006. 2 The two-count indictment charged them with conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)and (b)(1)(A) and 846 (Count I), and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (Count II). 3 Isom was represented by Assistant Federal Defender Mary McElroy during all initial and plea proceedings in this Court.
Shortly before trial, Isom and his counsel signed a plea agreement. In the agreement, Isom stipulated that he "conspired with Khalid Mason to possess in excess of 303 grams of cocaine base, 'crack,' with the intent to distribute." (Plea Agreement ¶ 4.) The Government agreed, inter alia, to include only one of Isom's three prior felony drug convictions in its sentencing enhancement information under 18 U.S.C. § 851, resulting in a potential minimum mandatory sentence of twenty years rather than life imprisonment. (Id. ¶ 2.)
At the change of plea hearing on December 15, 2006, there was a lengthy colloquy between the Court and Isom and his counsel concerning Isom's complaints about his counsel and several related matters. Isom first expressed dissatisfaction with his counsel's alleged failure to provide discovery materials to him. (See Change of Plea Tr. ("12/15/06 Tr.") 3-4,Dec. 15, 2006.) The Government detailed the discovery it had provided, which included interview reports, a compact disc with a recording of Isom's post-arrest statement to police, and all other reports on the case. (Id. at 4-5.) Attorney McElroy informed the Court that she had met with Isom five times after his arrest, both before and after receiving discovery from the Government. (Id. at 5.)
Isom then complained that he had not had sufficient time to review those materials. The Court noted that Isom had been shown the discovery some five weeks prior to the change of plea hearing. (Id. at 8.)
Isom further complained about his counsel's alleged failure to provide research materials on certain legal issues and contended that she had otherwise failed to explore the weaknesses in the Government's case against him. This Court advised Isom that his counsel was not required to educate him to the degree of knowledge that a lawyer had concerning his charges. (Id. at 7-8.) As to the second issue, Attorney McElroy informed the Court, in response to its inquiry, that she had examined "all aspects" of Isom's case to ensure that Isom's constitutional rights were protected and had also consulted with another attorney in the Federal Defender's Office to be certain she hadn't overlooked anything. (Id. at 15-16.) This Court then told Isom that there was nothing to indicate that "theFederal Defender's Office hasn't done everything that they should do, and, frankly, more than you would get . . . in many other places to ensure that your rights were protected." (Id. at 16.)
The Court reminded Isom at several points during the change of plea hearing that he still had the choice to plead not guilty, or to plead guilty without the agreement. (Id. at 6, 9-10, 11, 13, 17.) Isom demurred and indicated his willingness to plead guilty. (Id. at 14, 17.) At the conclusion of this colloquy, Isom confirmed: (1) that he understood the nature of the charges against him, the terms of his plea agreement, the penalties he faced, and the constitutional rights that he was waiving (id. at 20-21, 29-31); (2) that he wished to plead guilty under the agreement rather than without an agreement (id. at 20-21); and (3) that he was satisfied with his attorney (id. at 21-22).
The Government's recitation of offense facts described how officers observed Isom fleeing from the Pavilion Avenue residence in his vehicle, while telephoning Mason, and their unsuccessful efforts to stop him. It described the items found during the search of that residence, including the 303 grams of crack cocaine and cash. (Id. at 33-34.) The Government also stated that, when officers caught Isom, they found in his possession a key to the Pavilion Avenue residence, keys to a cardriven by both Isom and Mason, and $1,672 in cash; they also found $9,551 cash in Isom's jacket at his own apartment. (Id. at 34.)
The Government further noted that after his arrest, Isom made several incriminating statements, admitting (among other things) that "he and Mason sold crack cocaine" and that "Mason supplied him with crack cocaine that he would then sell to other people." (Id. at 34-35.) Isom also admitted that "he provided Mason with a cell phone to use." (Id. at 35.)
When the Court asked Isom whether he agreed with these offense facts, he replied that he generally did, but that he did not know the precise amount of crack cocaine that was stored in Mason's apartment on the day of the search. (Id. at 37-39.) Isom then submitted his guilty plea.
Shortly after the change of plea hearing, Isom submitted a letter to the U.S. Probation Office in connection with its preparation of his Presentence Report (PSR), stating: "I fully and freely acknowledge that I conspired with Khalid Mason to possess cocaine base with the intent to distribute on January 16, 2004." (Undated Letter attached to PSR ¶ 1.)
Thereafter, Isom's co-defendant Mason moved to suppress the drugs seized from the Pavilion Avenue residence. Mason contended that the affidavit supporting the warrant applicationcontained falsehoods made pursuant to a conspiracy between Sergeant Partridge and two local criminal defense attorneys -- John M. Cicilline and his law partner -- and their paralegal. The gist of the scheme was that criminal defendants, or persons on their behalf, would pay the attorney and his cohorts either to bribe law enforcement officials to drop the charges or to plant evidence on third parties to enable the defendant to benefit through "cooperating" with authorities by providing information about the fictional crime.
After a two-day Franks hearing at which several witnesses (including Detective Partridge) testified, this Court denied Mason's motion to suppress in a detailed written decision. See generally United States v. Mason, 497 F. Supp. 2d 328 (D.R.I. 2007). In its ruling, this Court found that, although Mason's claim was plausible because the attorneys and paralegal in question had all been indicted for a similar scheme, 4 Mason was unable to implicate the warrant's affiant -- Sergeant Partridge -- in the overall scheme, or in connection with any wrongdoing in Mason's case. Id. at 330-32. The Court concluded that "Mason simply has not presented any credible evidence that ScottPartridge lied in his affidavit or the search warrant." Id. at 332.5
Isom, already having pleaded guilty, testified at the Franks hearing concerning his contacts with the scheming attorney and also reiterated his dissatisfaction with his own attorney. He further testified that he "never dealt with [Mason] in a conspiracy" and the crack cocaine seized at 214 Pavilion Avenue was not his. (See Khalid Mason's Mot. to Suppress Hr'g Tr. 1617, 22-23, July 11, 2007 ("7/11/07 Tr.").) Isom did admit that he had had a drug-dealing relationship with Mason, disputing only whether it was operative at the time of his arrest in January 2004. (Id. at 45-52.) Because this testimony conflicted with both Isom's plea agreement and the letter he had previously sent to the U.S. Probation Office, the Government withdrew its recommendation that Isom receive an offense level reduction for acceptance of responsibility and requested an upward adjustment in his offense level based on obstruction of justice.
Approximately one week before Mason's trial was scheduled to begin, Detective Partridge informed prosecutors that he had located in his home attic a box containing surveillance reports, notes and other reports related to the Mason-Isom investigation. Given this turn of events, the Government, on August 20, 2007, moved to dismiss the indictment against Mason with prejudice. This Court reluctantly granted the motion.
After Mason's case was dismissed, Isom, represented by new c...
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