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United States of America v. Dwayne Thompson

May 1, 2012

UNITED STATES OF AMERICA,
v.
DWAYNE THOMPSON, A/K/A WHITE CHOCOLATE, A/K/A "D" DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

On February 9, 2011 defendant Dwayne Thompson ("defendant") withdrew a previously entered plea of not guilty and pled guilty to two counts in the second superseding indictment filed against him: (1) conspiracy to possess and distribute cocaine (count one); and (2) conspiracy to commit money laundering (count three). (ECF No. 829.) On August 26, 2011, defendant filed a motion to withdraw his guilty plea (ECF No. 919), and on October 31, 2011, he filed a supplemental motion to withdraw his plea (ECF No. 927). In this memorandum opinion and order the court considers defendant's request to withdraw his guilty plea.

In defendant's first motion to withdraw his guilty plea, he argued he should be permitted to withdraw his guilty plea because: (a) he claims innocence; (b) he believes he received ineffective assistance of counsel when his attorney at the time of his change of plea hearing allegedly encouraged him to plead guilty despite defendant's misgivings; and (c) defendant could not knowingly, intelligently and voluntarily plead guilty to money laundering when he did not understand the nature of the charge and when counsel for the government insufficiently stated the elements of the money laundering offense during the guilty plea colloquy. (Mot. Withdraw Guilty Plea (ECF No. 919) at 2-5.) In his supplemental motion, defendant argues he should be permitted to withdraw his guilty plea because he did not understand the condition of his plea agreement whereby he waived his right to file a petition for post-conviction relief pursuant to 28 U.S.C. § 2255.

The court held evidentiary hearings on this matter on October 26, 2011; November 21, 2011; December 14, 2011; and February 3, 2012. Defendant testified on October 26, 2011 and November 21, 2011. Herbert Strobel, Jr. ("Strobel"), a DEA task force member, and Ed Reiser ("Reiser"), who was formerly employed by the Internal Revenue Service, both testified on December 14, 2011. Michael DeRiso ("DeRiso"), defendant's attorney at the time defendant pled guilty, testified on February 3, 2012.

During the final hearing in February 2012, the court ordered the parties to file proposed findings of facts and conclusions of law. The government filed its proposed findings and conclusions (ECF No. 952) on February 23, 2012, and defendant filed his proposed findings and conclusions (ECF No. 954) on February 27, 2012.

Upon consideration of the parties' submissions and the evidence and testimony presented at the evidentiary hearings, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact

1. Defendant is approximately forty-seven years old. (Hr'g Tr. Feb. 9, 2011 ("Change of Plea Transcript") (ECF No. 851) at 6.) He is a high school graduate. (Id.)

2. Defendant was the leader of a nationwide cocaine distribution organization based in California. (Hr'g Tr. Dec. 14, 2011 ("December Transcript") (ECF No. 943) at 6.) The organization distributed cocaine to various cities throughout the United States including Pittsburgh, Pennsylvania. (Id.)

3. In late-June 2007, during an ongoing DEA investigation of defendant's organization, defendant was stopped in his vehicle; state police discovered of 1931/2 pounds of marijuana in the vehicle and also found at least six kilograms of cocaine hidden in the vehicle. (Id. at 7, 15.) Defendant was not informed that the cocaine had been discovered. (Id. at 9-10.) Defendant's fingerprints were discovered on the cellophane wrapping the cocaine. (Id. at 7-8.) At the request of DEA agents, local police in Texas did not charge defendant with respect to his possession of cocaine. (Id. at 10.)

4. In July 2007, DEA agents arrested defendant at his California home and after searching his home discovered two kilograms of cocaine. (Id.)

5. Subsequent to his arrest, defendant admitted that the cocaine discovered in his car in June 2007 in Texas had been destined for Indianapolis, Indiana, and Pittsburgh, Pennsylvania. (Id. at 15-16.) Defendant admitted that between 2002 and 2007, he had obtained at least five hundred kilograms of cocaine from two sources in Southern California.*fn1 (Id. at 15-16.) William Gregory ("Gregory") was defendant's primary customer in Indianapolis for a portion of the period charged in the second superseding indictment. (Id. at 15, 17.) Gregory admitted to investigators that he received at least six hundred kilograms of cocaine from defendant over the course of the conspiracy. (Id. at 20.)

6. Defendant admitted to investing drug proceeds as a means of laundering the money. (Id. at 18-19.) Defendant never filed a tax return during the years 2002 through 2006. (Id. at 26.) Reiser's investigation of defendant's finances resulted in evidence that defendant laundered at least $636,011 between 2002 and 2006. (Id. at 28-29.) The promotional component of the money laundering included defendant's maintenance of a residence and storage lockers in Indianapolis, Indiana, and travel (including air, rental cars, and hotels). The concealment portion of the money laundering included multiple all-cash loans to a construction company, the attempted purchase of a nightclub in Atlanta using fictitious corporate names, the cash purchase of a $225,000 speedboat (following which, defendant filed an invoice indicating he had only spent $72,000 to buy the boat), and the lease of two Cadillac Escalades under a fictitious corporate name. (Id. at 30-32.)

7. During part of the relevant timeframe, defendant's wife was an insurance adjuster. (Hr'g Tr. Nov. 21, 2011 ("November Transcript") (ECF No. 962) at 8.) Defendant testified that his income during the relevant time period came from his auto detailing business. (Id. at 7-9.) He testified that he detailed approximately one to one-and-one-half cars per day, worked sporadically, and travelled "once or twice" to Pittsburgh, Pennsylvania for his auto detailing business. (Id. at 7, 30.) He testified that he earned $125 for each car that he detailed. (Id. at 30.) He testified that his auto detailing business was "mobile," meaning that he had no business address and operated the business out of his car. (Id. at 16-17.)

8. The court finds defendant's testimony regarding his lifestyle and sources of income not to be credible. Just to finance his Indianapolis residence, travel, boat and two cars, and those of his cash investments which the IRS was able to uncover, defendant would have had to detail at least eighteen cars per week, every single week, for five and a half years. (December Transcript (ECF No. 943) at 32-33.)

9. On March 26, 2010, a federal grand jury in the Western District of Pennsylvania returned a three-count second superseding indictment against defendant and other co-conspirators. (ECF No. 371) Defendant was charged at count one with conspiracy to distribute and possess with intent to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 846. (Id.) He was charged at count three with conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). (Id.)

10. Following the court's denial of defendant's three motions to suppress evidence, See United States v. Thompson, Criminal No. 07-303-1, 2010 WL 4641663, at *1, *16 (W.D. Pa. Nov. 8, 2010), the court granted defendant's motion for appointment of new counsel (ECF No. 708) at a hearing on November 10, 2010.

11. On October 29, 2010, DeRiso was appointed to replace defendant's prior counsel. (ECF No. 740.)

12. DeRiso represented defendant throughout his plea negotiations and change of plea hearing. (Hr'g Tr. Feb. 3, 2012 ("February Transcript") (ECF No. 945) at 8-12.)

13. DeRiso is an experienced criminal attorney. (Id. at 3.) He has represented thousands of defendants in federal and state courts. (Id. at 3-4.) He previously served as a prosecutor with the Allegheny County District Attorney's Office. (Id. at 4-5.) He has litigated several death penalty cases. (Id. at 4.)

14. After DeRiso's appointment, he obtained case material from Michael Ivory ("Ivory"), the Assistant United States Attorney assigned to defendant's case. (Id. at 6-7.) He visited defendant, who was incarcerated, on multiple occasions, spending hours on each trip to the jail working on the case with defendant. (Id. at 6.) He also spoke to defendant on the phone multiple times. (Id. at 6-7.)

15. Upon his review of defendant's case in November and December 2010, DeRiso became convinced that defendant was likely to receive a mandatory life sentence if the government filed an information with the court at sentencing, under the authority of 21 U.S.C. § 851, establishing his prior drug convictions.*fn2 (Id. at 8.)

16. DeRiso recounted that defendant was upset that he had been caught by authorities. (Id.) Defendant took particular umbrage at the circumstances surrounding the June 2007 Texas vehicle stop, as well as some of the tactics used by federal investigators, such as the use of wiretaps. (February Transcript (ECF No. 945) at 7.) Defendant never told DeRiso that he was innocent of either drug trafficking or money laundering. (Id.) DeRiso and defendant discussed defendant's money laundering on several occasions. (Id. at 11-12.) They "talked about promotion, facilitation, concealment, [defendant's] shell companies he had, the storage locker in Indianapolis, how [defendant] would pay for things." (Id. at 11.) Defendant and DeRiso discussed defendant's involvement in the drug conspiracy-"[a]ll of the players, the confidential sources laid out in the application, Title III application warrants, trying to figure out who . . . the players were." (Id. at12-13.) They discussed defendant's waiver of his right to file a collateral attack upon his sentence "at great length" and discussed the specific appeals they wanted to exempt from the prohibition against filing an appeal in the plea agreement. (Id. at 13.)

17. Defendant participated in plea negotiations using DeRiso as a proxy. (February Transcript (ECF No. 945) at 8-9.) DeRiso testified:

We quickly got in the routine where I would ask Mr. Thompson in essence: What do we have to do here to facilitate a plea? And he would lay out anywhere from three to six items. I would then contact [Ivory]. [Ivory] would forward me a plea with most of those items, whether it was items regarding the-items he wanted to appeal that he didn't want to give up under the general plea where you would give up all appellate rights; the Government allowed him to appeal certain rights, which is what we negotiated . . . . [T]here were various things which I kept coming back to [Ivory] for an additional item that [defendant] wanted in return for his plea. (Id. at 8-9.)

18. On January 3, 2011, Ivory faxed a plea offer to DeRiso. (Id. at 9.) DeRiso communicated with defendant about the terms of the January 3, 2011 offer. (Id. at 10.) The proposed plea agreement contemplated that defendant and the government would stipulate to the amount of cocaine at issue (for sentencing purposes) being lower than the actual amount to which defendant had previously admitted. (Id. at 8, 10.) The government would agree not to file an information pursuant to § 851 (which reduced defendant's statutory minimum from life in prison to ten years of imprisonment). (Id. at 10.) The government also would agree to release from forfeiture the residence where defendant's mother lived. (Id. at 10-11.)

19. At some point before the change of plea hearing, defendant informed DeRiso by telephone that he was going to accept the government's plea offer. (Id. at

20. At the February 9, 2011 change of plea hearing, defendant initially denied that he wanted to change his plea to a plea of guilty:

THE COURT: Mr. Thompson, the Court is informed that you wish to change the plea you previously entered at Counts One and Three of a second superseding indictment to a plea of guilty to Counts One and Three; is that correct?

THE DEFENDANT: No.

THE COURT: So, you don't want to change your plea?

THE DEFENDANT: No.

(Change of Plea Transcript (ECF No. 851) at 2.)

21. DeRiso was surprised by defendant's initial decision not to change his plea. (Id.) Because DeRiso believed the plea agreement offered to Thompson was so advantageous, DeRiso wanted to recite the terms of the plea agreement on the record so that it was clear that defendant had had the opportunity to consider the offer. (Id. at 3.) DeRiso was concerned he would be accused of ineffective assistance of counsel for failing to communicate the terms of such a favorable plea bargain to defendant. (Id.)*fn3 Instead of reciting the terms on the record, the court recessed so that the parties could go into the jury room and discuss the terms of the agreement. (Id. at 5; February Transcript (ECF No. 945) at 14.) At first, Ivory and defendant discussed the charges in the second superseding indictment, and the appellate rights defendant would be giving up by accepting the plea agreement. (February Transcript (ECF No. 945) at 15.) Ivory left the room and Assistant United States Attorney Mary McKeen Houghton ("Houghton") took over the negotiations. (Id.) The conversation between Houghton and defendant shifted to defendant's desire to release one of his cars from forfeiture (under the terms of the plea bargain) because he believed he had purchased the car before he had been involved with cocaine trafficking. (Id. at 15.) Ultimately, defendant was able to negotiate an additional term into his plea agreement-one thousand dollars would be deposited in his prison commissary account. (Id. at 15-16.) Defendant was satisfied with the thousand-dollar commissary provision, and upon obtaining that concession, the conversation ended because defendant was ready to change his plea. (Id. at 16.) The conversation in the jury room primarily involved negotiations between defendant and Ivory and Houghton. (Id. at 15.) DeRiso "sort of stayed back." (Id.)

22. The parties reconvened the change of plea hearing, and Thompson advised the court that he wished to change his plea at counts one and three to a plea of guilty. (Change of Plea Transcript (ECF No. 851) at 5.)

23. Defendant was sworn in. (Id. at 6.) Among other things, defendant informed the court that he was not under the influence of any drugs or alcohol. (Id. at 7-8.) The court found defendant competent to plead. (Id. at 8.)

24. Defendant indicated to the court that he was satisfied with DeRiso's representation:

THE COURT: Have you had ample, meaning enough, time and opportunity to discuss your case with your attorney, Mr. DeRiso? THE DEFENDANT: Yes.

THE COURT: Are you fully satisfied with the counsel, representation, and advice, given to you in this case by your attorney, Mr. DeRiso?

THE DEFENDANT: Yes. (Id. at 9.)

25. Defendant told the court that he was aware of his various trial rights which he would be waiving by pleading guilty, and that he knew he did not have to change his plea, but could persist in his defense and take his case to trial. (Id. at 9-13.) He understood that he would have to waive his right against self-incrimination and acknowledge his guilt in order to plead guilty. (Id. at 13.)

26. Defendant told the court he had received a copy of the second superseding indictment in this case and had discussed the charges with DeRiso. (Id. at 13-14.)

27. Defendant told the court that he understood that he was charged at count one with conspiracy to possess with intent to distribute and distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine from. (Id. at 14.) He stated that he understood the charges at count three:

THE COURT: Now, do you understand that you are charged in Count Three of the second superseding indictment with conspiracy to launder monetary instruments from in and around 2002 and continuing thereafter to in and around July, 2007, in violation of Title 18, United States Code, Section 1956(h)?

THE DEFENDANT: Yes. (Id. at 14.)

28. Defendant acknowledged he was aware of the sentencing process, and was aware of the potential maximum and minimum penalties he was facing. (Id. at 14-19.)

29. The court reviewed the terms of the plea agreement with Ivory and defendant: THE COURT: Mr. Thompson, you should understand that this Court may or may not approve any plea agreement that you might enter into with the government. You have a duty disclose the existence of a plea agreement now. If you do not do so, you may not later assert there were plea negotiations or a plea agreement.

Have you entered into a plea agreement with the government?

THE DEFENDANT: Yes.

THE COURT: Did you have an opportunity to read and discuss each of the provisions of the plea agreement with your lawyer before you signed it?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about the plea agreement at this time?

THE DEFENDANT: No.

THE COURT: Mr. Ivory, could you please review the terms of the plea agreement for the Court and for the defendant. [sic] Please listen carefully.

MR. IVORY: Certainly, Your Honor. Under the plea agreement in this case, Mr. Thompson has agreed to the following. He will enter a plea of guilty to Counts One and Three of the second superseding indictment . . . .

. . . . . . Mr. Thompson will voluntarily forfeit to the United States all of his right, title, and interest, in properties that are subject of the civil forfeiture action in the United States District Court for the Western District of Pennsylvania at Civil Action No. 07-303, 07-1000, 07-1353, 07-1361, 07-1680, 08-135, and 08-1420. Those are hereinafter collectively referred to as the subject of civil properties.

Mr. Thompson acknowledges that the subject civil properties are traceable to proceeds generated from cocaine distribution and in violation of Title 21, United States Code, Section 846. . . .

Mr. Thompson further acknowledges that the Exhibit A to the second superseding indictment lists properties subject to criminal forfeiture. And those are hereinafter collectively referred to as the subject criminal properties.

He acknowledges that the subject criminal properties are traceable to proceeds generated from cocaine distribution. . . .

At the time Mr. Thompson enters his guilty plea, he will -- THE COURT: This [section regarding the payment of a special assessment], I think, is another mistake. I think this has to be two hundred dollars.

MR. DeRISO: It said, seven.

MR. IVORY: So, I'm going to correct that, Your Honor. Again, I'm going to initial it and I'm going to ask Mr. DeRiso to initial it. THE COURT: This is because, as a matter of law, when there's a guilty plea to a count, there's a hundred dollars that has to be paid as a special assessment. That's for each count. So, it has to be a hundred dollars for each, meaning two hundred dollars.

MR. IVORY: That's not waive-able [sic] by law.

MR. DeRISO: So many aspects of this plea agreement and those minor ones.

MR. IVORY: Mr. Thompson will pay a special assessment -- THE COURT: Has that been initialed by everyone?

MR. IVORY: Yes, it has, Your Honor. In the amount of two hundred dollars. . . .

Mr. Thompson has also waived his right to take a direct appeal from his conviction or sentence under 28 United States Code, Section 1291, or Title 18, United States Code, Section 3742, subject to the following exceptions. If the United States appeals from the sentence, then Mr. Thompson may take a direct appeal from the sentence.

Mr. Thompson may also take an appeal if the sentence exceeds the applicable statutory limits set forth in the United States Code or if the sentence unreasonably exceeds the Guideline range determined by the Court under the Sentencing Guidelines.

Also, as a condition of Mr. Thompson's guilty plea, Mr. Thompson may take a direct appeal from his conviction limited to the following issues raised in the following motions, motion to dismiss indictment with prejudice for violation of the Speedy Trial Act, motion to suppress electronic surveillance, motion to suppress documentary evidence, motion to suppress statement, motion to suppress search warrants, and motions to suppress evidence from a Texas traffic stop.

If Mr. Thompson takes a direct appeal raising these issues and prevails in the appeal, he may withdraw his guilty plea. If he does not take a direct appeal or does not prevail in the appeal, the plea of guilty shall stand.

Under these reservations the right to appeal on the basis of these specified issues does not include the right to raise issues other than those specified.

Mr. Thompson also waives his right to file a motion to vacate sentence under Title 28, United States Code, Section 2255, attacking his conviction or sentence and the right to file any other collateral proceedings attacking his conviction or sentence.

THE COURT: I just want to go over this last paragraph with you, Mr. Thompson. Do you understand that by entering into the plea agreement, you are giving up very significant rights with respect to your ability to file an appeal?

THE DEFENDANT: Yes.

THE COURT: Do you understand that there's only going to be four situations in which you can take an appeal?

THE DEFENDANT: Yes.

THE COURT: The first situation is if the United States appeals, and there's no restriction on the United States ability to appeal, then you could take a direct appeal. You understand that?

THE DEFENDANT: Yes.

THE COURT: And the second situation in which you could take an appeal is if the Court were to impose a sentence that exceeds the applicable statutory limits. Remember, just a few minutes ago I went over what those statutory limits were?

THE DEFENDANT: Yes.

THE COURT: Then, if the Court has a sentence that exceeds those, then you can take an appeal.

THE DEFENDANT: Yes.

THE COURT: And the third situation is if after the Court determines what your Guideline range would be, the Court would impose a sentence that unreasonably exceeds that Guideline range, then you could appeal?

THE DEFENDANT: Yes.

THE COURT: And the fourth and final situation in which you can take an appeal has to do with motions that you filed in this case. Under this agreement you are going to be entitled to appeal any or all of the decisions that were rendered by this Court with respect to the identified motions.

THE DEFENDANT: Yes.

THE COURT: You understand that?

THE DEFENDANT: Yes.

THE COURT: Okay. So, if your situation that you want to appeal doesn't fall within one of those four situations, you understand that you are not going to be able to appeal that matter?

THE DEFENDANT: Yes.

THE COURT: And do you understand that you are totally, completely giving up your right to come back at a later time and try to, what we call collaterally attack your conviction or sentence? THE DEFENDANT: Yes.

THE COURT: So, that means that if you don't have a right to appeal within the limitations that you've set forth here, you're not going to be able to challenge that matter?

THE DEFENDANT: Yes.

THE COURT: Also, you understand that if you do take an appeal within these four situations that were set forth, if you take an appeal and you lose the appeal, you're not going to be able to come back and try to later attack the Court's decision.

THE DEFENDANT: Yes.

THE COURT: I mean, naturally, you would be able to appeal up to the Supreme Court if you chose to, but your appeal would be filed. And if you lost on the appeal, you can't come back later and try to collaterally attack your conviction or sentence.

THE DEFENDANT: Okay. Yes.

THE COURT: Do you have any questions about that?

THE DEFENDANT: I'm kind of cloudy on it still.

THE COURT: What?

THE DEFENDANT: I'm a little bit cloudy.

THE COURT: On what? What collateral means?

THE DEFENDANT: I understand what the collateral portion of it means, but as far as --

THE COURT: What you can appeal?

THE DEFENDANT: I understand there's four issues that --

THE COURT: Well, there's all these motions that are identified. You can file an appeal with respect to any of the issues raised in these motions.

THE DEFENDANT: Right . . . So, let me ask you this. If I can file an appeal, I could go to all four issues. What rights am I actually giving up or am I waiving as far as appeal portions? THE COURT: Well, if the Court makes a decision in sentencing, it doesn't have anything to do with these four motions and you wouldn't fall within A or B, which would be the government's appeals, or the sentence exceeding the statutory limits, or unreasonably exceeds the Guideline range.

If there's something else that the Court does at the time of sentencing that you feel should be appealable, you're not going to be able to appeal that. You have given that up.

MR. DeRISO: If it's not listed, it's waived.

THE COURT: I don't know what it could be you're talking about or if there's something else out there where you have raised a motion as to do X, Y, or Z, and you want to challenge that, you know, that's not something you're going to be able to raise.

THE DEFENDANT: Okay.

THE COURT: Later, it has to fall within what's identified here. But, clearly, you know, anything that was in one of these motions, any of the issues raised in those ...


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