Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Winkelman

March 10, 2008

UNITED STATES OF AMERICA,
v.
GEORGE A. WINKELMAN, AND JOHN F. WINKELMAN, JR. DEFENDANTS.



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

BACKGROUND

On June 18, 2003, a jury in the Middle District of Pennsylvania found defendant George A. Winkelman guilty of five counts related to narcotics trafficking. The same jury also found defendant John Winkelman, Jr. guilty of seven counts related to narcotics trafficking. On November 12, 2003, we sentenced defendant George Winkelman to a term of imprisonment of 720 months. On December 12, 2003, we sentenced John Winkelman, Jr. to imprisonment for the remainder of his natural life.

Both defendants appealed their conviction. On May 18, 2006, the United States Court of Appeals for the Third Circuit affirmed both defendants' convictions and John Winkelman, Jr.'s sentence, but vacated George Winkelman's sentence and remanded the case for resentencing under United States v. Booker, 543 U.S. 220 (2005). On October 17, 2006, we resentenced George Winkelman to a term of imprisonment of 480 months. George Winkelman appealed the sentence but later moved to withdraw the appeal and the Third Circuit granted his motion to withdraw on January 19, 2007.

On February 23, 2007, George Winkelman filed a motion and supporting brief under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Rec. Doc. Nos. 1020-21.) The same day, John Winkelman, Jr. also filed a motion and supporting brief under 28 U.S.C. § 2255. (Rec. Doc. Nos. 1022-23.) On March 1, 2007, we ordered both defendants to file a notice of election. (Rec. Doc. Nos. 1024-25.) On March 19, 2007, both defendants filed their election to have the court rule on their motions as filed. (Rec. Doc. No. 1027, 1029.) The same day, both defendants filed a motion requesting appointment of counsel. (Rec. Doc. Nos. 1028, 1030.)

On March 22, 2007, defendants jointly filed a motion for disclosure of grand jury materials. (Rec. Doc. No. 1031.) On April 6, 2007, defendants jointly filed a motion to join their § 2255 motions and all future motions. (Rec. Doc. No. 1035.) On April 9, 2007, we granted the request to join their § 2255 motions and all future motions. (Rec. Doc. No. 1036.)

On May 4, 2007, defendants jointly filed a motion to amend their § 2255 motion. (Rec. Doc. No. 1040. On May 24, 2007, although we had yet to rule on defendants' motion to amend, defendants jointly filed an amended § 2255 motion and a supporting brief. (Rec. Doc. Nos. 1041-42.)

On August 20, 2007, defendant Gorge A. Winkelman filed a "Motion for Production of the Magistrate Judges' Docket Sheets." (Rec. Doc. No. 1055.)

On October 31, 2007, the government finally filed a brief in opposition to defendants' motion under § 2255. (Rec. Doc. No. 1062.) On November 2, 2007, the government filed a brief in opposition to defendants' motion for the disclosure of grant jury materials. (Rec. Doc. No. 1065.) On November 26, 2007, defendants jointly filed a reply brief to the government's brief in opposition to their § 2255 motion. (Rec. Doc. No. 1068.)

On December 7, 2007, defendants jointly filed a motion to compel the government to produce grand jury materials. (Rec. Doc. No. 1069.) The same day, defendants jointly filed a "Motion to Determine Status, of the Motion Filed by George A. Winkelman for the Production of Magistrate Judge's Docket Sheets. . ." (Rec. Doc. No. 1070.) On December 31, 2007, defendants jointly filed a "Motion to Expand the Record to Include Additional Specific Example of the Insufficiency of the Indictment" (Rec. Doc. No. 1072.) On January 28, 2008, defendants jointly filed a "Motion to Expand the Record to Include Additional Specific Example of Ineffective Assistance of Counsel." (Rec. Doc. No. 1073.)

Now, for the following reasons, the court will deny all of the defendants' motions.

DISCUSSION

A motion under 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A prisoner who is in custody pursuant to a sentence imposed by a federal court who believes "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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255, ¶1; United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

Defendants raise numerous grounds in their motions. Because each defendant's grounds are not necessarily the same, we will first consider each ground raised by John Winkelman, Jr. and will then turn our attention to the grounds raised by George Winkelman.

I. John Winkelman, Jr.'s Grounds for Relief

Defendant John Winkelman, Jr. raises multiple claims in his § 2255 motion. First, he raises thirteen ineffective assistance of counsel claims. (Rec. Doc. No. 1023, at 19-30.) His fourteenth claim is that his Fourth Amendment rights were violated because the affidavit in support of the search warrant contained false statements. (Id. at 30-31.) His fifteenth and sixteenth claims are Brady and Jencks claims. (Id. at 31-34.) His seventeenth claim is a denial of his right to confront witnesses against him. (Id. at 34-35.) His eighteenth claim appears to be another Brady claim. (Id. at 35-36.) His nineteenth claim is that the court erred when it "ordered the jury once it found defendant guilty on the drugs and firearms charges, to redeliberate and find the defendant guilty or not guilty on the Criminal Forfeiture charge. (Id. at 37.) His twentieth claim is that the court erred in its "decision to restrain the defendant from being present in the Courtroom during the agreement of the stipulations." (Id. at 38.) His twenty-first claim is a conflict of interest claim. (Id. at 39-40.) His twenty-second claim is that the thirteenth count of the indictment was insufficient as failing to charge the defendant with a criminal offense. (Id. at 40-41.) His twenty-third claim is that the court erred when it granted the government's motion "to redact two letters that it received from Peter Schuller, down to one paragraph. And for not ordering the Government to turn over to the defnse [sic], the two interview statements from Peter Schullers' interviews with law enforcement." (Id. at 41-43.) His twenty-fourth claim is that the court erred by "instructing the jury on a count that was not presented and charged by the grand jury in the indictment and by reminding the jury of testimony that was given." (Id. at 43-44.) His twenty-fifth claim is that the court erred "when it sentenced the defendant to life imprisonment without the possibility of parole, under notice of information of two prior convictions, without first addressing the issue with the defendant before sentencing him on the prior convictions." (Id. at 44-45.) His twenty-sixth and twenty-seventh claims are two additional ineffective assistance of counsel claims based on his appeal. (Id. at 45-47.)

A. Ineffective Assistance of Counsel Claims

John Winkelman, Jr. begins his petition by raising multiple ineffective assistance of counsel claims: 1) defense counsel's failure to follow simple courtroom procedures (Rec. Doc. No. 1023, at 11); 2) defense counsel's failure to present a defense to the charges against the defendants (Id.); 3) defense counsel's failure to file a motion and brief for severance of the defendants (Id.); 4) defense counsel's failure to assure defendant's ability to contribute assistance to the defense and assess settlement options by failing to provide defendant with discovery material (Id.); 5) defense counsel's failure to request an expert witness from the court (Id.); 6) defense counsel's failure to investigate discovery material properly during the suppression hearing (Id. at 12); 7) defense counsel's failure to investigate the discovery material in general (Id.); 8) defense counsel's failure to object to various Brady and Jencks Act violations (Id.); 9) defense counsel's decision to request a stipulation as to the guilt of an alleged coconspirator (Id.); 10) defense counsel's decision to enter into certain stipulations with the government without consulting with defendant (Id. at 13); 11) the cumulative effective of counsel's failures (Id.); and 12) defense counsel's failure to investigate and interview all individuals about which the confidential informants gave statements (Id.).

In order to establish a claim of ineffective assistance of counsel, defendant must establish two different components. First, petitioner must establish that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This component is satisfied by showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. Second, defendant must show that this deficient performance prejudiced the outcome. Id. at 687. This component is satisfied upon a showing that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would been different. Id. at 694.

As for defendant's first ineffective assistance of counsel claim, he argues that defense counsel filed five pretrial motions with the court and failed to file a brief in support of each of these motions, allowing the government to suppress evidence that was favorable to defendant. (Rec. Doc. No. 1023, at 19.) In his brief, defendant does not even discuss which pretrial motions he is referring to and we have reviewed the docket (which has over one-thousand entries) and we have been unable to determine to which motions he refers. Furthermore, even if we were able to locate these motions, defendant presents no argument on how defense counsel's failure to file supporting briefs with respect to various motions may have permitted the government to suppress various exculpatory evidence and prejudiced the outcome of the case. In order to satisfy the prejudice prong of an ineffective assistance of counsel claim, defendant would have to show that had defense counsel filed supporting briefs, there was a reasonable probability that the result of the proceeding would been different. Strickland, 466 U.S. at 694. In other words, he would have to prove not only that these motions would have been successful, but that their success would have led to a different outcome at trial. Because defendant has not done so, we find that defendant's first ineffective assistance of counsel claim fails.

As for defendant's second ineffectiveness claim, he argues that defense counsel failed to investigate and present any evidence in defense to the charges against defendant. (Id. at 19-20.) Yet, defendant fails to present any argument that defense counsel's actions were below an objective standard of reasonableness. The simple fact that defense counsel did not present any evidence standing alone is certainly not enough to show incompetence, as this is not an extremely uncommon event. Such a defense occurs in the form of effective cross-examination of government witnesses, as well as arguing that the government did not meet its burden of proof. Furthermore, defendant has not discussed what evidence defense counsel should have presented or why that evidence would have led to a different outcome at trial. Therefore, we find that defendant's second ineffective assistance of counsel claim fails.

Defendant's third ineffective assistance of counsel claim is that defense counsel failed to file a motion and brief for severance under Rule 14 of the Federal Rules of Criminal Procedure. (Id. at 21.) We are confused by this argument because defense counsel did file a motion and brief for severance on March 5, 2002. (Rec. Doc. No. 243.) On December 6, 2002, we denied the motion after a through discussion on the merits. (Rec. Doc. No. 495.) Therefore, we find that this claim fails.

Defendant's fourth ineffective assistance of counsel claim is that defense counsel failed to provide defendant with a copy of discovery material which would have permitted him to assist at trial and make an informed decision as to whether to plead guilty. (Rec. Doc. No. 1023, at 22.) Once again, defendant fails to provide sufficient information on this claim. He does not discuss what discovery material was obtained by defense counsel and not shared with defendant. Similarly, even if there was such material, he does not discuss why counsel would be ineffective for failing to share it. Therefore, we will deny this claim.

Defendant's fifth ineffective assistance of counsel claim is that defense counsel failed to request an expert witness from the court. (Rec. Doc. No. 1023, at 22.) Specifically, defendant argues that defense counsel should have requested an expert witness "to determine the debth [sic] of a Government witnesses [sic] head injury [and] whether it effected [sic] the witnesses [sic] ability to remember correctly or to remember at all." (Id.) Although defendant declines to mention the name of the witness, it appears that defendant refers to Lucretia Schenck, who testified that she had been in an automobile accident and was having problems with her memory. (Tr. of June 5, 2003, Rec. Doc. No. 901, at 120.) While Schenck was able to provide some limited testimony regarding defendants' drug dealing operation, we do not understand how an expert would have served any more of a purpose than an effective cross examination regarding Schenck's ability to remember things after her accident. In other words, we do not find that defense counsel's performance fell below an objective standard of reasonableness by failing to request an expert witness. Furthermore, defendant has not presented us with any argument as to why such a request would have led to a different outcome at trial. Although Schenck was able to provide some testimony regarding defendants' drug dealing operation, she proved unable to remember a good deal of information. For example, she was unable to recall the number of drug transactions that she witnessed or the name of defendants' supplier of drugs (Id. at 129, 131, 136-36, 140.) Furthermore, she was clearly not the only government witness who testified regarding defendant's drug dealing operations. Therefore, we find that defendant is unable to satisfy either prong of the Strickland standard with respect to this claim and will therefore deny it.

Defendant's sixth ineffective assistance of counsel claim is that defense counsel failed to properly investigate discovery material that was favorable to the defense during a suppression hearing. (Rec. Doc. No. 1023, at 23.) Specifically, defendant argues that had defense counsel investigated this material, illegally obtained evidence would have been suppressed. (Id.) Once again, we will reject defendant's argument. In an ineffective assistance of counsel claim based on the failure to have evidence suppressed under the Fourth Amendment, "the defendant must [] prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Defendant has not made such a showing. He presents no arguments as to why his Fourth Amendment claim was meritorious. As with his other claims, he simply makes the bald assertion that it was meritorious. Therefore, we will reject this claim.

Defendant's seventh ineffective assistance of counsel claim is that defense counsel failed to investigate discovery material that was provided to him on or about March 31, 2003. (Rec. Doc. No. 1023, at 24.) This claim is rather confusing. Defendant first states that had defense counsel investigated this material, "he would not have filed the meritless motion to dismiss the indictment on the grounds of false or perjured testimony before the grand jury." (Id. at 24-25.) Then, defendant states that this material "prove[s] that a witness for the Government committed perjury up to 35 times before the grand jury to obtain the indictment" and that "[t]his witness was the only witness to testify before this grand jury to obtain the original indictment." (Id. at 25.) Defendant further argues that had defense counsel investigated this material, "he would have filed a motion and brief, which addressed all of the perjury and the improprieties by law enforcement." (Id.) Thus, it is not clear to us whether defendant is alleging that defense counsel's failure was due to the filing of a motion or not filing of a motion. In reviewing the docket, it appears that defense counsel did file a motion and supporting brief to dismiss the indictment based on false or perjured testimony on March 29, 2003. (Rec. Doc. Nos. 682-83.) On June 3, 2003, we denied the motion. (Rec. Doc. No. 698.) Even if we were to conclude that this motion was so meritless and that it was incompetent to file it, we do not understand how defendant would be able to satisfy the prejudice prong under Strickland based on defense counsel's filing of the motion. To the extent he challenges that defense counsel failed to file a motion that may have resulted in a dismissal of the indictment, we note that defendant fails to provide any evidence which supports his allegation that a witness committed perjury before the grand jury. Thus, with respect to the latter scenario, we find that defendant is unable to satisfy either prong of the Strickland test. Therefore, we will once again reject defendant's claim.

Defendant's eighth ineffective assistance of counsel claim is that defense counsel was ineffective for not objecting to "the obvious Brady and Jencks Act violations" that occurred throughout this case. (Rec. Doc. No. 1023, at 25.) Specifically, defendant states that several witnesses testified that "someone was taking notes of what they were stating, during their interviews" and that a "law enforcement witness clearly stated that he was ordered by his superior officer to destroy the rough notes of interviews with witnesses." (Id. at 25-26.) Firstly, defendant once again does not point towards any evidence in the record to support these allegations. He clearly is referring to portions of the trial transcript without actually providing any citations. We are not pigs searching for truffles and are unwilling to search through the massive record that has been developed in this case to find evidence of these alleged violations. Furthermore, even if we assume that notes were destroyed and that it was incompetent not to object to this, defendant once again has not presented any arguments as to why the outcome at trial would have been different had defense counsel objected. Therefore, we will once again reject defendant's claim.

Defendant's ninth ineffective assistance of counsel claim is that defense counsel failed to discuss or consult with defendant on any aspect of the case or provide defendant with discovery material in order to allow defendant to assist in his own defense. (Rec. Doc. No. 1023, at 27.) Thus, this ineffectiveness claim closely mirrors defendant's fourth ineffectiveness claim, in which he argued that defense counsel failed to provide defendant with a copy of discovery material which would have permitted him to assist at trial and make an informed decision as to whether to plead guilty. (Id. at 22.) We will deny this claim for the same reasons that we denied his fourth ineffectiveness claim. Defendant does not discuss which discovery material defense counsel obtained but did not share with defendant. Therefore, we are unable to determine whether the first prong of the Strickland standard was violated. Thus, we will reject defendant's ninth ineffective assistance of counsel claim.

Defendant's tenth ineffective assistance of counsel claim is that defense counsel was ineffective for "requesting the Court for a stipulation as to the guilt of an alleged co-conspirator." (Rec. Doc. No. 1023, at 27.) Specifically, defendant argues that "this stipulation clearly suggested the defendants' guilt to the jury and was very prejudicial to the defendant." (Id. at 28.) First, although defendant declines to mention to which coconspirator he refers, he alludes to the fact that this coconspirator plead guilty. (Id. at 27.) Thus, it is hard to imagine how stipulating to the guilt of a coconspirator who has pled guilty could be ineffective or prejudice the outcome. If defense counsel declined to enter into such a stipulation, it would not be difficult for the government to prove the coconspirator's guilt. Therefore, we will deny this ineffectiveness claim.

Defendant's eleventh ineffective assistance of counsel claim is that defense counsel was ineffective by "entering into an agreement with the Government, by signing stipulations that would be entered into evidence before the trial jury, without first consulting or discussing these stipulations with the defendant." (Rec. Doc. No. 1023, at 28.) Once again, we find these allegations too vague to allow us to carefully consider them. Defendant does not specifically discuss any stipulations. To the extent this argument is based on the stipulation of a coconspirators guilt that was discussed in the previous paragraph, we do not believe it would be incompetent for an attorney to make such a decision without discussing it with his or her client. A defense counsel is certainly not required to discuss every single aspect of the case with his or her client. Furthermore, even if it could be considered incompetent, doing so would not affect the outcome of the trial. Therefore, we will reject defendant's eleventh ineffective assistance of counsel claim.

Defendant's twelfth ineffective assistance of counsel claim is that the cumulative effect of all of these failures resulted in prejudice to the defendant. (Rec. Doc. No. 1023, at 28-29.) The Third Circuit stated in dicta that a district court may considered the cumulative effect of multiple ineffective assistance of counsel claims if none on its own is sufficient to rise to a constitutional violation.

See United States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17 (3d Cir. 1980) (stating that "unified consideration of the claims in the petition well satisfies the interests of justice because the cumulative effect of the alleged errors may violate due process"). Yet, in the instant case, we have yet to find a single instance of incompetence, so the cumulative effect is the equivalent of adding multiple zeros. Therefore, we will reject defendant's twelfth ineffectiveness claim.

Defendant's final ineffective assistance of counsel claim is that defense counsel was ineffective for "not investigating or interviewing all of the other individuals that the confidential informants and Daniel Werts gave statements about or testified about." (Rec. Doc. No. 1023, at 29.) We once again find this conclusory allegation to be too vague to meaningfully respond. Defendant does not provide any arguments discussing why these confidential informants should have been investigated or interviewed aside from stating that they "were clearly potential witnesses for the defense." Such a bald assertion without more is not sufficient to require discovery or an evidentiary hearing and we will deny this claim. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) (citations omitted) (stating that "bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing").

B. Fourth Amendment Claim

Defendant claims that his Fourth Amendment rights were violated because the affidavit for the search warrant contained false statements. (Rec. Doc. No. 1023, at 30-31.) As the government correctly argues, this argument was not raised on appeal and is therefore procedurally defaulted. (Rec. Doc. No. 1062, at 46.) An issue that could have been raised on direct appeal but was not is subject to procedural default unless the defendant shows cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003) (citing United States v. Frady, 456 U.S. 152,167-68 (1982)). There is nothing that indicates that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.