United States v. Whitehouse

Decision Date27 January 2021
Docket NumberCause No. CV 19-019-BLG-SPW,Cause No. CR 15-147-BLG-SPW
PartiesUNITED STATES OF AMERICA, Plaintiff/Respondent, v. DUSTY WHITEHOUSE, Defendant/Movant.
CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)

This case comes before the Court on Defendant/Movant Dusty Whitehouse's motion to vacate, set aside, or correct her sentence, pursuant to 28 U.S.C. § 2255. Whitehouse is a federal prisoner proceeding pro se.

I. Background

On August 17, 2015, Whitehouse and her co-defendant husband Gary Quigg sold 3.7 grams of methamphetamine to a friend of theirs, Crystal Lopez. Lopez was wearing a wire. An undercover agent, Agent Ivers, waited in the living room. Drugs in hand, Lopez returned to the living room and soon departed with Ivers. But the agent had paid $900. Ivers testified that he expected to receive an ounce, and Lopez testified that the price for a gram was $100. At any rate, everyone agreed that $900 should have bought more than 3.7 grams.

Two days later, on August 19, Ivers called Quigg. Quigg acknowledged that Ivers had overpaid and invited him to come to the house again. That evening, Ivers spoke with Whitehouse about getting his money back or getting more product. She offered either to refund his money or give him more methamphetamine. She asked Quigg for more methamphetamine, but he did not have any. Whitehouse refunded Ivers $300.

On August 25, Ivers again called Quigg and asked to "swing by and visit." After talking about the weather and what day it was, Quigg said he was "between paychecks" and would "find out when I get home." U.S. Trial Ex. 8. Quigg did not call Ivers back. Neither Whitehouse nor Quigg talked to Ivers again.

All of these transactions were recorded and played for the jury at trial.

Whitehouse was on state probation, and Quigg was on parole. On September 15, 2015, both were arrested on suspicion of violating their conditions of release. A probation officer retrieved a phone from their vehicle and looked at text messages on it. Agents obtained and executed a search warrant at their home. But Whitehouse and Quigg were not charged in federal court at that point.

On October 1, 2015, Charity Mendonsa met a man in Billings at about 11:00 p.m., intending to sell him about eight ounces of methamphetamine. She did sell him the meth, but he too turned out to be an undercover agent, Agent Papke. She was arrested. Agents obtained a search warrant for her pickup truck. Witness Bailey had already told them that Mendonsa brought methamphetamine from California to Montana in a hidden compartment in the tailgate. Agents found the compartment and, in it, two pounds of methamphetamine.

On December 3, 2015, a grand jury indicted Mendonsa, Quigg, and Whitehouse. After Mendonsa pled guilty, a grand jury returned a superseding indictment against Quigg and Whitehouse, charging the following offenses and drug quantities:

Count 1 conspiring to distribute and possess with intent to distribute five hundred (500) grams or more of methamphetamine between December 2014 and September 15, 2015, a violation of 21 U.S.C. § 846;
Count 2 possessing the same with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1); and
Count 3 distributing methamphetamine on August 17, 2015, a violation of 21 U.S.C. § 841(a)(1).

See Superseding Indictment (Doc. 91) at 2-3.

Jury trial commenced on January 30, 2017. Mendonsa, Lopez, Bailey, Papke, and Ivers all testified. The jury heard the August 2015 recordings and saw surveillance photographs, photographs from the home search, and text messages retrieved from the phone.

According to Bailey and Agent Martian, in July 2015, Bailey tipped off agents that Mendonsa was going to give Whitehouse whatever methamphetamine she had left on that trip. Agents went to Whitehouse's neighborhood and photographed Mendonsa meeting with her. Mendonsa testified that she and Whitehouse only "used a little" methamphetamine and "went shopping" together on that occasion. See 3 Trial Tr. at 364:10-15. But she also testified that, after her husband Kevin died in April 2015, she sold Whitehouse one ounce, and then four ounces—a total of 141.75 grams. In addition, Mendonsa said Quigg called her shortly after Kevin's death to find out whether she was going to deliver $1,800 of methamphetamine Kevin had promised to Quigg. Later, Quigg asked Mendonsa not to front drugs to Whitehouse, because he would end up having to pay for it. See id. at 356:5-362:18.

Mendonsa testified that Kevin dealt in large quantities and had about $400,000 in the house when he passed away. The text messages found on the phone taken from Whitehouse and Quigg's car included a query on September 11, 2015, asking Mendonsa when she would be in Billings "so I can get my ducks in a row." Mendonsa responded, "Not sure but ill keep u posted." Trial Ex. 10(B) at 2. This testimony was essential to the drug quantities charged in Counts 1 and 2. In closing, the United States argued that this text was Quigg's way of saying he "wanted a piece of that action" the next time Mendonsa came to Montana. The prosecution urged the jury to hold Whitehouse and Quigg responsible for the methamphetamine found in Mendonsa's tailgate. See 5 Trial Tr. (Doc. 206) at 788:11-25.

On February 2, 2017, the jury convicted Whitehouse on all three counts, but it did not find the drug quantities the United States had charged. It found:

Count 1 conspiring to distribute and possess with intent to distribute fifty (50) grams or more of methamphetamine between December 2014 and September 15, 2015, a violation of 21 U.S.C. § 846;
Count 2 possessing fifty (50) grams or more of methamphetamine with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1); and
Count 3 distributing methamphetamine on August 17, 2015, a violation of 21 U.S.C. § 841(a)(1).

See Verdict (Doc. 122) at 1-3.1

At sentencing, Whitehouse was held responsible for more than 50 but less than 150 grams of actual methamphetamine—that is, "the controlled substance, itself, contained in [any] mixture or substance." U.S.S.G. § 2D1.1(c) Drug Quantity Table Note B (Nov. 1, 2016). With a total adjusted offense level of 30 and a criminal history category of IV, Whitehouse's advisory guideline range was 135 to 168 months. See Statement of Reasons (Doc. 187) § III. She was sentenced to serve 135 months in prison, consecutive to a state sentence. She will serve five years on supervised release. See Judgment (Doc. 186) at 2-3.

Whitehouse appealed. She argued that her sentence should not have been based on actual methamphetamine and that she should have received a downward adjustment for acceptance of responsibility because she did not contest Count 3. The Court of Appeals affirmed her sentence. See Mem. (Doc. 217) at 1-3, United States v. Whitehouse, No. 17-30139 (9th Cir. Sept. 5, 2018).

Whitehouse timely filed her § 2255 motion on February 11, 2019. See Mot. § 2255 (Doc. 226) at 25 Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 276 (1988).

The Court required trial counsel to submit affidavits concerning one of Whitehouse's claims. See Order (Doc. 245). Counsel complied on November 20, 2019 (Doc. 249). The Court also ordered the United States to file the pretrial discovery concerning seizure and search of the cell phone. See Order (Doc. 252); U.S. Resps. (Docs. 258-1, 263-1). Finally, on August 10, 2020, the United States filed the audio recordings that were played for the jury at trial. See Order (Doc. 266); U.S. Notice (Doc. 267); see also U.S. Exhibit List with Admitted Exhibits (Doc. 131).

II. Claims and Analysis

A § 2255 motion "should set out substantive facts that will enable the court to see a real possibility of constitutional error. Habeas corpus is not a general form of relief for those who seek to explore their case in search of its existence." Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970), quoted in Calderon v. United States Dist. Court, 98 F.3d 1102, 1106 (9th Cir. 1996); see also Rule 4, Rules Governing § 2254 Cases, Advisory Committee Note para. 3 (1976). A court is not required to assume the truth of conclusory allegations. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). An evidentiary hearing or further development of the record is necessary only when a § 2255 movant alleges facts that would, if proved true, entitle her to relief. See, e.g., United States v. Rodriguez-Vega, 797 F.3d 781, 791-92 (9th Cir. 2015).

Generally, a claim is defaulted if it arises from a matter that is in the record at the time of direct appeal but is not raised on direct appeal. See, e.g., Bousley v. United States, 523 U.S. 614, 622-24 (1998); United States v. Frady, 456 U.S. 152, 165 (1982). Claims B through I are defaulted. Rather than extending Whitehouse an opportunity to excuse her default, see, e.g., Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998), the Court will proceed as if the default were excused and will address all the claims on their merits.

Whitehouse's claims are reorganized here, but all are addressed.

A. Jurisdiction

Claims that subject-matter jurisdiction was absent ab initio cannot be waived or defaulted. See, e.g., 28 U.S.C. § 2255(a); United States v. Cotton, 535 U.S. 625, 630 (2002); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003).

Whitehouse alleges the United States never had authority to charge or try her because the State of Montana has not authorized its agents to involve federal authorities in the investigation or prosecution of crime. See Mot. § 2255 (Doc. 226) at 2-3; Br. in Supp. (Doc. 227) at 1-3.

The Commerce Clause of the United States Constitution gives the United States jurisdiction to regulate and control commerce, including trafficking in controlled substances. As an attribute of sovereignty, the United States has authority to investigate, prosecute, and sentence persons who violate its laws. A State's laws do not alter, undermine, or qualify federal sovereignty...

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