United States v. Nelson

• Decision Date: 25 October 2013
• Docket Number: Criminal Action No. 11–59 (RWR)
• Citation: 979 F.Supp.2d 123
• Parties: United States of America, v. Gregory Scott Nelson, Defendant.
• Court: U.S. District Court — District of Columbia

979 F.Supp.2d 123

United States of America,

v.Gregory Scott Nelson, Defendant.

Criminal Action No. 11–59 (RWR)

United States District Court, District of Columbia.

October 25, 2013

Barry Wiegand, III, Julieanne Himelstein, U.S. Attorney Office, Washington, DC, for Plaintiff.

Jonathan Jeffress, Rosanna Margaret Taormina, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief Judge

Petitioner Gregory Nelson moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, arguing that the prosecution violated his due process rights by suppressing evidence favorable to him, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The parties have briefed and argued the issues. Because the government violated its duty to disclose all exculpatory evidence and prejudiced Nelson, Nelson's motion will be granted.¹

BACKGROUND

On April 11, 2011, Nelson pled guilty to traveling from Virginia to Washington, D.C. to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). However, Nelson now argues that his guilty plea was not knowing or voluntary because it was entered without knowledge of exculpatory evidence that the government withheld. Nelson alleges that he is a recovering methamphetamine addict and that he traveled to Washington, D.C. only to obtain methamphetamine. Pet'r Gregory Nelson's Mot. to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (“Pet'r Mot.”), Decl. of Gregory Nelson (“Nelson Decl.”) ¶ 11.

On February 3, 2011, Nelson initiated a conversation with “DCPed” on a social networking site. Presentence Investigation Report (“PSR”) ¶ 5; Pet'r Mot. at 13. Unbeknownst to Nelson, “DCPed” was Detective Timothy Palchak who was working undercover. PSR ¶ 5, Pet'r Mot. at 13. DCPed's online profile contained descriptions such as “twisted minded” and “taboo,” both of which can describe a methamphetamine user. See Pet'r Mot. at 13. During their conversation, Nelson asked Detective Palchak: “U looking for today? u party?” Id., Ex. 11 (E-mail from Julieanne Himelstein, Assistant U.S. Attorney, to Barry Boss (Feb. 8, 2011, 2:33 p.m.) at 4). Detective Palchak understood “party” to mean that Nelson was asking whether Detective Palchak used methamphetamine. Prelim. Hr'g, 2/9/11 Tr. 41:23–42:3. Detective Palchak responded: “yes, at work at moment have a perv boi ... meeting me at my place areound [sic] 6 or 7.... He is 12 so if that is to [sic] young i totally understand.” Pet'r Mot., Ex. 11 at 4. Nelson responded: “ALL VERY HOT.” Id. at 4(a).

Nelson and Detective Palchak continued to chat throughout the day about the two of them and the boy engaging in sexual conduct and made plans to meet later that day at a restaurant that was allegedly near Detective Palchak's apartment. Pet'r Mot., Ex. 13 at 8. While making plans, Nelson asked Detective Palchak if he was “partying tonight.” Id. at 9. At 1:44 p.m., Detective Palchak responded: “looking to but cant [sic] get my T till tomorrow dont [sic] have much at all left.” Id. at 4. “T” is an abbreviation for “Tina,” Nelson Decl. ¶ 11, which is slang for methamphetamine, Avi Brisman, Meth Chic and the Tyranny of the Immediate: Reflections on the Culture–Drug/Drug–Crime Relationships, 82 N.D. L.Rev. 1273, 1275 (2006). Nelson concedes that he opened and read that 1:44 p.m. message.

That evening, Nelson traveled from Virginia to Washington, D.C. to meet Detective Palchak. Nelson was arrested shortly after he arrived at the restaurant. PSR ¶ 8.

On February 4, 2011, Nelson was charged with using facilities of interstate commerce to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and appeared before a magistrate judge for an initial hearing. At the hearing, the government produced a discovery packet to defense counsel that purported to include all of the electronic communications that Detective Palchak had with Nelson. Pet'r Mot. at 21; id., Ex. 12 (2/4 Discovery Packet). On February 8, 2011, the prosecution sent defense counsel a revised discovery packet. The government concedes that its discovery productions were intended to convey that copies of all e-mails between Detective Palchak and Nelson were disclosed. At a preliminary hearing, Detective Palchak testified that the February 8, 2011 discovery packet was a “fair and accurate depiction of the recorded e-mail chat that [he] had with the Defendant.” Prelim. Hr'g, 2/9/11 Tr. 11:20–24; Pet'r Mot. at 23. Detective Palchak also asserted that he and Nelson had not directly had “any discussion about meeting to actually ingest meth.” Prelim. Hr'g, 2/9/11 Tr. 42:5–7. Despite the government's representations that the discovery packets contained all recorded electronic communications between Detective Palchak and Nelson, the government concedes that neither the February 4, 2011 nor the February 8, 2011 discovery packets included a copy of the 1:44 p.m. e-mail from Detective Palchak to Nelson.

Later, the government filed a one-count information against Nelson charging him with traveling in interstate commerce to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Nelson pled guilty to the information and was sentenced to a 25–month term of imprisonment followed by 84 months of supervised release.

Nelson now moves under 28 U.S.C. § 2255 to have his conviction vacated and to withdraw his guilty plea, arguing that the government's failure to disclose the 1:44 p.m. e-mail violated its duty to disclose all exculpatory evidence under Brady. He contends that his guilty plea was not knowing and voluntary because it was entered without knowledge that the government failed to disclose in discovery exculpatory evidence. Nelson further contends that had his “counsel been provided with the exculpatory evidence, [he] would not have pleaded guilty and would have exercised his constitutional right to trial.” Pet'r Mot. at 2.

DISCUSSION

Under 28 U.S.C. § 2255, a federal defendant may “move the court which imposed [his] sentence to vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. “The petitioner bears the burden of proving the violation by a preponderance of the evidence.” United States v. Basu, 881 F.Supp.2d 1, 4 (D.D.C.2012) (citing United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C.2009)).

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255(b).²

Generally, a defendant who has pled guilty cannot later raise “independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); see alsoUnited States v. Koumbairia, 501 Fed.Appx. 1, 3 (D.C.Cir.2013). Instead, defendants who have pled guilty can “only attack the voluntary and intelligent character of the guilty plea.” Tollett, 411 U.S. at 267, 93 S.Ct. 1602.

I. USING BRADY CLAIM TO COLLATERALLY ATTACK GUILTY PLEA

Nelson contends that his guilty plea was not knowing and voluntary because he entered it not knowing that the government had failed to disclose exculpatory evidence. Citing United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), the government contends that it is unclear whether a defendant who makes out a Brady violation may withdraw his guilty plea.

The government argues that Ruiz militates against a finding that the prosecution is required to disclose exculpatory evidence at the plea stage. However, Ruiz does not compel this conclusion. In Ruiz, the government's proposed plea offer specified that it would turn over to the defendant any known information establishing the factual innocence of the defendant and acknowledged its continuing duty to provide such information, but required the defendant to waive her right to receive impeachment information about witnesses. Ruiz, 536 U.S. at 631, 633, 122 S.Ct. 2450. The Supreme Court held that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” Id. at 633, 122 S.Ct. 2450 (emphasis added). But the Court found that providing information establishing the defendant's factual innocence helped allay concerns about the absence of merely impeachment information.³Id. at 631, 122 S.Ct. 2450.

The Ruiz Court found that “due process considerations,” including “the value of the additional safeguard,” “argue against the existence of the ‘right’ ” to receive undisclosed Brady impeachment evidence at the plea stage. See id. Specifically, the Court found that the added value of requiring the government to disclose impeachment evidence at the guilty plea stage was limited, in part, because the plea agreement in that case contained as a “guilty-plea safeguard[ ]” that the “Government [would] provide ‘any information establishing the factual innocence of the defendant.’ ” Id. The Court noted that “[t]hat fact ... diminishes the force of [the petitioner's] concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty.” Id. Thus, Ruiz drew a significant distinction between impeachment and exculpatory evidence and did not decide whether a defendant is entitled to exculpatory evidence at the guilty plea stage.⁴

While neither the D.C. Circuit nor the Supreme Court has spoken on whether a...