United States v. Scurry

• Citation: 992 F.3d 1060
• Decision Date: 19 February 2021
• Docket Number: No. 18-3067,18-3067
• Parties: UNITED STATES of America, Appellee v. Eric SCURRY, also known as E, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

992 F.3d 1060

UNITED STATES of America, Appellee

v.Eric SCURRY, also known as E, Appellant

No. 18-3067

United States Court of Appeals, District of Columbia Circuit.

Argued November 13, 2020

Decided February 19, 2021

Reissued April 5, 2021

Mary E. Davis, appointed by the court, argued the cause and filed the briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, Arvind K. Lal, and Pamela S. Satterfield, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance.

Before: Millett, Pillard, and Katsas, Circuit Judges.

Opinion for the Court filed Per Curiam.

The central issue in this case is whether Eric Scurry knowingly and voluntarily entered a guilty plea as to certain drug and drug-related offenses. Scurry's argument that the plea was invalid solely because he misjudged the amount and type of evidence that might be introduced against him had he gone to trial fails. But because we have discovered an undeniable and unwaived conflict of interest between court-appointed counsel for this Section 2255 petition and Scurry, we reverse and remand for the appointment of conflict-free counsel to assist with Scurry's Section 2255 petition.

I

A

In 2009, the Federal Bureau of Investigation began investigating suspected narcotics distribution at an apartment complex in southeast Washington, D.C. United States v. Scurry (Scurry I ), 821 F.3d 1, 5–6 (D.C. Cir. 2016). The Bureau focused on Eric Scurry, who it believed was dealing crack cocaine. See id. at 6. After reviewing evidence obtained from cooperating witnesses, physical surveillance, recorded conversations, pen-register records, GPS data, and other public records, investigators sought and obtained a wiretap on Scurry's cell phone.

Evidence gleaned from the Scurry wiretap led to court orders authorizing several additional wiretaps: First on Terrance Hudson's phone, then Robert Savoy's, then James Brown's, and finally Jerome Johnson's. Scurry is specifically named in the orders approving the Hudson wiretap, J.A. 86–87 ("There is probable cause to believe that * * * ERIC DEWAYNE SCURRY * * * and others yet unknown, have committed, are committing, and will continue to commit violations of" the law and "that particular wire communications of * * * ERIC DEWAYNE SCURRY * * * and others yet unknown concerning the above-described offenses will be obtained through the interception for which authorization has herewith been applied."), and the Savoy wiretap, J.A. 106–107 ("There is probable cause to believe that * * * ERIC DEWAYNE SCURRY * * * and others yet unknown, have committed, are committing, and will continue to commit violations of [the law.]"). He was also named in several of the government's wiretap applications. See J.A. 81–82 (Hudson application); J.A. 95A–95B, 101 (Savoy application and accompanying affidavit); J.A. 110 (Johnson application).

Scurry, Hudson, Savoy, and Johnson were arrested and charged in late 2010; Brown was arrested and charged in 2011. The government alleged that all five men conspired, from November 2006 through November 2010, to distribute and possess with intent to distribute five kilograms or more of cocaine and 280 grams or more of crack cocaine. The government also charged Scurry with distributing crack cocaine, distributing crack cocaine within 1,000 feet of a school, and unlawfully using a communication facility (a telephone) to aid and abet drug distribution.

Each of the five defendants filed a motion to suppress wiretap evidence. Scurry's motion sought suppression of only the evidence obtained from the wiretap of his own phone. But Savoy and Johnson moved to suppress evidence from the wiretaps of their own and their co-defendants’ phones, while Brown asked to suppress only evidence from the wiretaps of Savoy's phones. The district court rejected each motion. See United States v. Savoy , 883 F. Supp. 2d 101, 104 (D.D.C. 2012).

B

Throughout most of the district court proceedings, Scurry had been represented by Christopher Davis. But just a few days before trial was scheduled to start, Mary Davis, who is Christopher Davis's spouse, told the district court that she would be "standing in for Mr. Davis some days" (in particular, for jury selection) because Mr. Davis was occupied with other court matters. Transcript at 9, United States v. Savoy , No. 10-cr-00310 (D.D.C. Sept. 7, 2012), ECF No. 347. When Mary Davis raised the possibility that Mr. Davis would not be present for opening arguments, the district court responded that Mr. Davis should advise the other court that "trial takes precedence," and "[i]f [the other judge] doesn't believe it, I'll tell him myself." Id . at 7–8. On the day that Scurry's trial was set to start, Christopher Davis was absent, and Mary Davis appeared in her husband's place.

That same day, Scurry was considering a plea offer from the government. With Mary Davis as his only counsel present, Scurry accepted the plea offer. He pleaded guilty to conspiracy to distribute and possess with intent to distribute 280 grams or more of crack cocaine and a conspiracy to launder money gained from the drug distribution scheme.

Scurry's plea agreement included a condition: He reserved the right to appeal "the Court's Order of August 3, 2012, denying defendants’ motion to suppress the wiretap evidence, specifically Documents [sic ] 59"—that is, his own motion to suppress. J.A. 147–148. The agreement was explicit that Scurry could withdraw his plea "[o]nly in the event of a reversal of that decision" denying his own motion to suppress. J.A. 148. To confirm the point, the agreement separately stated that Scurry "reserves the right to appeal only the identified pretrial ruling[.]" J.A. 148.

Scurry's co-defendants entered plea agreements as well. But unlike Scurry's, two of the other plea agreements expressly preserved a broader right to appeal an order denying motions to suppress other than the defendant's own. See Plea Agreement at 9–10, Savoy , No. 10-cr-00310 (D.D.C. Sept. 7, 2012), ECF No. 213 (Johnson plea agreement, reserving right to appeal an order denying one of Savoy's motions); Plea Agreement at 10, Savoy , No. 10-cr-00310 (D.D.C. Sept. 10, 2012), ECF No. 224 (Hudson plea agreement, reserving right to appeal an order denying Savoy's motions).

Under the plea agreement, Scurry was sentenced to twelve years of imprisonment, followed by five years of supervised release.

C

Scurry and his co-defendants appealed the district court's denial of their motions to suppress. Those appeals were consolidated in United States v. Scurry , No. 12-3104 (D.C. Cir).

Initially, Mary Davis was Scurry's attorney for the direct appeal. But Scurry soon asked for Mary Davis to be removed as counsel. Motion, Scurry I , No. 12-3104 (D.C. Cir. March 27, 2013), ECF No. 1427990. Scurry said that Mary Davis had a conflict of interest because she coerced him into pleading guilty and because she was married to trial counsel, Christopher Davis, against whom Scurry also planned to file an ineffective assistance of counsel claim. Id. at 4. A few days later, Mary Davis filed a motion to withdraw as Scurry's counsel. Motion, Scurry I , No. 12-3104 (D.C. Cir. March 29, 2013), ECF No. 1428070. This court granted both motions and directed that new counsel be appointed for Scurry. Per Curiam Order, Scurry I , No. 12-3104 (D.C. Cir. July 25, 2013), ECF No. 1448381.

This court subsequently reversed the district court's denial of motions to suppress evidence from the wiretaps of Hudson's and Johnson's phones. Scurry I , 821 F.3d at 5. We did so on the ground that the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, requires that an order approving a wiretap include, among other things, "the identity of the high-level Justice Department official who approved the application[.]" Id. at 7 (citing 18 U.S.C. § 2518(4)(d) ). Because the Hudson and Johnson orders plainly did not include the name of that official, the court held that the wiretap orders were invalid on their face. See id. at 8–12. That holding required suppression of the evidence obtained directly or derived from the Hudson and Johnson wiretaps. See id. at 13–14. This court then affirmed the remainder of the district court's rulings, including the denial of Scurry's own motion to suppress. See id. at 5, 16.

D

On remand, the government determined that evidence from the Hudson wiretap had led to the Savoy wiretap, which in turn had led to evidence relevant to Brown and to the Johnson wiretap. As a result, the government moved to dismiss the charges against Hudson, Savoy, Brown, and Johnson. That meant that, of the five original co-defendants in this case, only Scurry remained, without any benefit from the suppression decisions.

Scurry then filed a pro se motion to dismiss his indictment. While monitoring the electronic docket, Mary Davis noticed Scurry's filing. She then, on her own initiative, reached out to Scurry and offered to supplement his motion. Oral Arg. Tr. 11:3–20. Although Mary Davis had withdrawn from Scurry's direct appeal because of a conflict of interest—including Scurry's allegation that she had coerced him into pleading guilty––she did not obtain a waiver from Scurry of that conflict before offering to represent him. Oral Arg. Tr. 11:21–12:13, 13:11–16; see A.B.A. MODEL R. PROF'L CONDUCT 1.7(a)(2), (b)(4) (2016) (requiring "informed consent, confirmed in writing" from client when "there is a significant risk that the representation of one or more clients will be materially limited * * * by a personal interest of the lawyer"); see also National Treasury Emps. Union v. United States Dep't of Treasury , 656 F.2d 848, 851 (D.C. Cir. 1981) (giving deference to the American Bar Association rules of conduct). Nor did Davis advise Scurry that the common and likely only legally viable way to challenge his conviction and sentence at this...