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United States v. Best

United States District Court, W.D. Pennsylvania

August 3, 2018

UNITED STATES OF AMERICA, Respondent,
v.
DAVID BEST Petitioner.

          MEMORANDUM OPINION ON MOTION TO VACATE SENTENCE

          ARTHUR J. SCHWAB UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before this Court is the counseled Motion to Vacate, Set Aside or Correct Sentence under Title 28 United States Code Section 2255, by Petitioner, David Best (hereinafter “Petitioner” or “Best”). Doc. 480. Best was the leader of a large-scale prescription pain pill ring centered in Beaver and Allegheny Counties. Following a lengthy jury trial, Best was convicted on all but one count of the 11 count superseding indictment.[1] Doc. 96. After careful consideration of Petitioner's Motion and Brief in Support (doc. 480), the Government's Response, (doc. 489), the Petitioner's Reply (doc. 490), and the entire extensive record in the case, including the trial transcript of this matter and the sentencing proceedings over which this Court presided, the Court will DENY Petitioner's Motion to Vacate, Set Aside or Correct Sentence without a hearing and without discovery.

         II. Factual Background/Procedural History

         Petitioner was charged, along with several others, with a 16-count superseding indictment charging a drug conspiracy involving possession with intent to distribute oxycodone and Opana, burglary of a pharmacy, and brandishment of a firearm in furtherance of a drug trafficking crime, among other serious crimes. The trial testimony established that Best was the leader of this drug conspiracy network, and all of the other co-defendants eventually pled guilty and many testified against him in the trial of this matter.

         Best graduated from Ambridge High School in 2004, with high academic rankings as well as leadership positions, and he received a Bachelor of Science degree from Waynesburg University in 2009. From 2010 to 2011, Best was a graduate student at Palmer School of Chiropractic in Iowa and left the school for “health reasons, ” after being placed on “warning probation.” Doc. 430 at 23. During his time in Iowa, he had a history of theft and possession of controlled substances.

         Best moved back to the Sewickley area in 2011 at approximately 24 years of age and lived with his parents (his father is an airline pilot and mother also has a professional career). Shortly thereafter, he became the leader of a conspiracy to sell Oxycodone, Opana and other drugs. As part of that conspiracy, he sought out Jade Gagianas, a woman he had known in high school. Once he determined that she worked at a pharmacy, he promised to marry her and have children with her. The trial testimony established that Best used her as a pawn in his scheme to steal prescriptions, which he both consumed and sold, and in all she provided Best more than 40 prescriptions all written for large quantities of Opana and Oxycodone. Best also brazenly burglarized the MedFast pharmacy where Gagianas worked on three occasions, and stole large quantities of drugs during these burglaries. He had others who worked as “runners, ” passing forged prescriptions, and he bought pills for sale and use from Tony Villani.

         In addition to all of this conduct, the testimony at trial established that Best further set up a “sting” operation after he determined that Ricky Dlubak, a friend/acquaintance, had broken into the Best residence and stolen between $9, 000.00 and $10, 000.00 in drug proceeds, as well as Opana pills. Best obtained a revolver and lured Dlubak back to his home, while he and a neighbor, who was also a drug customer of Best's, laid in wait. Chris Cerny, who knew nothing of Dlubak's plan to again steal from Best, drove Dlubak to Best's home and waited in the car, while Dlubak went inside the Best home. Best came out to Cerny's car, and pointed the gun in his face and ordered him into the house. Best found Dlubak hiding in a closet and threatened to shoot him. Cerny escaped and called 9-1-1, and when the police arrived at Best's home, they found Dlubak duct-taped inside.

         The trial testimony further established that the DEA made controlled purchases of three 40-milligram Opana pills from Best on April 18, 2013, and seven 30-milligram oxycodone pills from Best on April 30, 2013.

         Best was then charged with a federal indictment and later a 11-count superseding indictment, including causing the overdose death of Christopher Radford, a charge for which he was acquitted at trial.

         To further recount the procedural history of this case, on September 6, 2013, Best plead not guilty to each count of the superseding indictment. Best was represented by retained counsel - - the well respected and prominent criminal defense attorney, Stanton D. Levenson. The jury trial of this matter lasted from March 31, 2014 to April 10, 2014, total of 8 trial days and 2 days of deliberation). Doc 299, and Doc. 320. Upon conclusion of the trial, Best was convicted by a jury of the following crimes:

         One count (1s) of conspiracy to distribute and possession with intent to distribute oxycodone and Opana in violation of Title 21 U.S.C. Section 846.

         Six counts (Counts 2s, 3s, 9s, 10s, 11s and 16s) for possession with intent to distribute and/or distribution of Opana and oxycodone, in violation of Title 21 U.S.C. Section 841(a)(1) and (b)(1)(C).

         One count (Count 5s) for possession and brandishment of a firearm in furtherance of a drug trafficking crime, in violation of Title 18 U.S.C. Section 924(c)(1)(A)(i) and (ii).

         Three counts (Counts 6s, 7s and 8s) for burglary of a pharmacy, in violation of Title 18 U.S.C. Section 2118(b) and 2.

         Best, however, was acquitted of one count (Count 4s) of possession with intent to distribute and distribution of Opana and oxycodone, schedule II controlled substances under Title 21 U.S.C. Section 841(a)(1) and (b)(1)(C).

         Best testified at the trial of this matter, as well as numerous other co-defendants. During Best's testimony, he admitted to selling drugs and conspiring with others to do so, starting in 2011; further, he admitted that he had Gagianas steal blank prescriptions.

         Following the sentencing proceedings, Best was sentenced to 288 months imprisonment, which represented a downward variance of the Sentencing Guideline Range of 346 to 411 months imprisonment, and he filed a timely notice of appeal from the judgment of conviction on December 18, 2014. Doc. 441.

         On December 23, 2014, the United States Court of Appeals docketed Best's appeal, and on February 12, 2016, Best's judgment of conviction was affirmed by the United States Court of Appeals for the Third Circuit, in an unpublished opinion. United States v. Best, 639 Fed.Appx. 848 (3d Cir. 2016).

         On February 26, 2016, Best filed a Petition for Rehearing and Rehearing En Banc, which was denied. Then, on June 21, 2016, Best filed a Petition for Writ of Certiorari with the Supreme Court of the United States, which was denied on October 3, 2016. Therefore, the judgment of conviction became final less than one year before the instant Motion was filed (on August 22, 2017).

         Other than the instant motion, no other petition or appeal is now pending in any court. Regardless, the claims, which are primarily in the nature of ineffective assistance of counsel, may be brought in a collateral proceeding pursuant to Title 28 U.S.C. Section 2255, whether or not the petitioner could have raised the claims on direct appeal. Massaro v. United States, 123 S.Ct. 1690, 1694 (2003).

         III. Grounds for Relief

         Petitioner, who is now represented by Laurel Brandstetter, Esquire, [2] and is in custody under a federal sentence of 288 months imprisonment on the judgment of conviction, presents the following seven (7) grounds for relief.[3] His claims may be best grouped into two categories: (1) allegations that his constitutional right under the Sixth Amendment to effective assistance of counsel (Grounds One, Two, Three, Five, Six and Seven) was violated; and, (2) allegations that his Fourteenth Amendment right to due process was violated (Ground Four).

         Best seeks numerous avenues of relief. He argues for discovery, for a hearing, for this Court to vacate his sentence, and for a new trial. The Court finds that the record conclusively shows that he is entitled to none of the relief requested, and addresses the following arguments by Best.

         Ground One: Best was deprived of trial counsel and trial counsel rendered ineffective assistance by engaging in an actual conflict of interest by contemporaneously representing co- defendant, Ryan Raithel.

         Ground Two: Trial counsel was ineffective by failing to investigate, cross examine and by agreeing to stipulate to the value and amount of controlled substances associated with the diversion of controlled substances and burglaries of MedFast pharmacy.

         Ground Three: Trial counsel was ineffective by failing to cross-examine and impeach government witnesses called to testify in connection with the charge of brandishment of a firearm in furtherance of a drug trafficking crime.

         Ground Four (stated as Ground Five in brief): Best was denied due process because the prosecution failed to fully and accurately disclose the nature of the cooperation and benefit received by Dean Ciccone and Matthew Moody.

         Ground Five (stated as Ground Six in brief): Trial counsel was ineffective by sleeping during “significant portions” of Best's trial.

         Ground Six (stated as Ground Seven in brief): Trial counsel was ineffective by failing to respond or object to the introduction of other-acts evidence under Federal Rule of Evidence 404(b).

         Ground Seven (stated as Ground Eight in brief): Appellate counsel was ineffective by failing to raise several claims during the direct appeal and trial counsel rendered ineffective assistance by not securing acceptance of responsibility credit for Best.

         IV. Standard of Review

         28 U.S.C. Section 2255 provides, in relevant part:

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. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

         Whether to conduct a hearing is within the sound discretion of the District Court. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008); United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992)(quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989), cert. denied 500 U.S. 954 (1991)). In exercising that discretion, “the [C]ourt must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.” Day, 969 F.2d at 41-42 (citation omitted). See also Rules Governing Section 2255 Proceedings, Rules 4 and 8. The Court must view the factual allegations in the light most favorable to the Petitioner. Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994) (district court erred in failing to conduct evidentiary hearing on petitioner's non- frivolous allegations of ineffective assistance of counsel) (subsequent history omitted). However, a Section 2255 Motion may be dismissed without a hearing if: (1) its allegations, accepted as true, would not entitle Petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005)(citations omitted).

         In order for Petitioner to establish counsel was ineffective, he has the burden to show counsel's performance (i) was in fact deficient and (ii) that the deficient performance so prejudiced the defense as to raise doubt to the accuracy of the outcome of the trial [or the sentence]; i.e., Petitioner must demonstrate a reasonable probability that, but for counsel's deficiency, the outcome of the trial [or sentence] would have been different. Strickland v. Washington, 466 U.S. 668, 687, 692 (1984). Counsel's conduct presumptively “falls within the wide range of reasonable professional assistance, ” and the Petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Id. at 689-90 (citation omitted). On the other hand, the mere fact that counsel's challenged performance or tactic can be called “strategic” in the sense it was deliberate, does not answer the dispositive question of whether that decision or tactic fell within the wide range of “reasonable professional assistance.” ...


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