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United States v. Ball

United States District Court, E.D. Michigan, Southern Division

May 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY BALL, JR., Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISCOVERY [2859]

          Nancy G. Edmunds United States District Judge.

         This matter is before the Court on Defendant Gary Ball's motion for discovery under Rule 6(a) of the Rules Governing § 2255 Proceedings. (Dkt. 2859.) On May 17, 2017, the Court held a hearing on this motion. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for discovery.

         I. Background

         On June 3, 2010, a jury convicted Defendant of the following crimes: (Count One) substantive RICO; (Count Two) RICO conspiracy; (Count Fifteen) conspiracy to transport stolen vehicles; (Count Nineteen) conspiracy to possess with intent to distribute controlled substances-cocaine, marijuana, and ecstasy; (Count Twenty) conspiracy to possess with intent to distribute controlled substances-cocaine; and (Count Thirty-Six) conspiracy to alter, remove, and obliterate vehicle identification numbers. (Dkt. 1470.) On February 10, 2011, the Court sentenced Defendant to 30 years on Counts One, Two, and Nineteen (concurrent); 10 years on Count Fifteen (concurrent); 20 years on Count Twenty (concurrent); and 5 years on Count Thirty-Six (concurrent). (See Dkt. 1781.) The Sixth Circuit affirmed Defendant's convictions and sentence on September 30, 2013, and his writ of certiorari was denied on April 7, 2014. (See Dkt. 2556.)

         The matter now before the Court is Defendant's motion for discovery related to his 28 U.S.C. § 2255 motion to vacate his sentence, which is currently pending. Defendant's § 2255 motion claims that he is entitled to relief on several grounds. First, he maintains that both of his attorneys, Lee O'Brien and Lawrence Shulman, deprived him of his right to representation that is free from conflicts of interest. Second, Defendant argues that both O'Brien and Shulman provided ineffective assistance of counsel, regardless of whether they were operating under conflicts. Finally, Defendant alleges various forms of prosecutorial misconduct, including failures to disclose exculpatory material. To provide context for Defendant's discovery demands, the Court outlines the facts and allegations relevant to each of Defendant's § 2255 claims below.

         A. Representation by Lee O'Brien

         Lee O'Brien was Defendant's attorney of record from October 3, 2006, the date Defendant made his initial appearance, to May 8, 2008, the date this Court terminated his representation. (Dkt. 166.) Defendant argues that O'Brien suffered from a conflict of interest throughout this entire period because he was “the subject of a criminal investigation by [the] same prosecuting authority, with the same case agent involved, and the investigation included allegations that O'Brien participated in some of the criminal activity with which Ball was charged in this case.” (Dkt. 2713, at 20.) Defendant maintains that his defense was adversely affected because O'Brien “risked being inculpated if he were to have [Defendant] pursue plea negotiations.” (Id. at 7.)

         Defendant alleges that the Government was investigating O'Brien's involvement with Defendant's criminal activity as early as August 2005, over a year before Defendant made his initial appearance in this case. In support, Defendant points to an FBI 302 dated August 4, 2005, [1] in which Special Agent Edward L. Brzezinski reported the following: “The source advise [sic] that GARY BALL resides in a condominium that is owned by LEE O'BRIEN, who is an attorney at Jeffrey Figor's (phonetic) law firm. The source was told that O'BRIEN drinks a lot of alcohol and is “hooked on” cocaine, which he gets from GARY BALL.” (Dkt. 2722-1, at 2.) Defendant also offers an FBI 302 from September 2005, but this report does not mention any criminal conduct. There, Brzezinski noted that O'Brien was one of the “attorneys that represent a lot of the Highwaymen Outlaw Motorcycle Gang (HOMG) members, ” as well as a “big dope addict[]” that associated with the HOMG on a regular basis, although not a patched member. (Id. at 4.)

         Around a year after those FBI 302s, on September 6, 2006, the initial indictment in this case was filed under seal. (Dkt. 2.) Therein, Defendant was indicted as one of 17 defendants for conspiracy to possess with intent to distribute controlled substances (specifically cocaine, marijuana, and ecstasy). (Dkt. 3.) On October 3, 2006, the indictment was unsealed, and Defendant made his initial appearance, where he was represented by O'Brien. (Dkt. 1.)

         Roughly a year after that, in November 2007, Special Agent Brzezinski went with the Downriver Auto Theft Taskforce to Todd Sullivan's body shop, where they found a re tagged, stolen Camaro. (Dkt. 2722-1, at 7-8.) According to Brzezinski, Sullivan claimed that the Camaro belonged to O'Brien and that he had purchased it from O'Brien. (Id. at 8.)

         Brzezinski further testified that this exchange with O'Brien occurred soon after:

[I] ran into Lee O'Brien at the courthouse. And the first thing he came up to me and said, “I don't own that car.” I said, “I never said you did.” I said, “Do you know Todd Sullivan?” “No, I don't know Todd Sullivan. I didn't know who Todd Sullivan was until two days ago.” I said, “He never paid you for a car?” He said, “Well, no, I sold the car, but I don't know Todd, I never met with him, never even talked to the guy, never even been in his shop."

(Id.)

         O'Brien has supplied an affidavit reflecting his version of this exchange. (Dkt. 2795-1, at 11-12.) O'Brien avers that, “on or about November of 2007, ” while he was representing Michael Newberry in state court, Brzezinski became frustrated with Newberry's unwillingness to cooperate with authorities and accused O'Brien of selling a stolen Camaro. (Id. at 11.) O'Brien further avers that “[s]ometime thereafter, I received a call from Brzezinski advising me that he had a warrant for my arrest on a claim that I had made a False Statement to a Federal Officer." (Id.) O'Brien then concludes: “I say without hesitation that I was not able to enter into any meaningful plea negotiations on behalf of [Defedendant] . . . based on my concerns arising from Brzezinski's threats against me personally, and finally from his call advising me he had a warrant against me.” (Id. at 11-12.) O'Brien does not claim that he was aware of the FBI 302s prepared in 2005.

         Seventeen months after Defendant made his initial appearance, on March 12, 2008, O'Brien was charged via federal complaint with false statements in connection with possession of the re-tagged, stolen Camaro. (2722-1, at 11 (Dkt. 1 in 08-mj-30123).) Nine days after that complaint was filed, this Court set a hearing to discuss getting Defendant a new attorney. (Dkt. 160.) On May 8, 2008, this Court terminated O'Brien's representation of Defendant, prior to any motion cut-off or trial date. (Dkt. 166.)

         A year after O'Brien's termination, on May 14, 2009, the first superseding indictment was unsealed charging Defendant with additional counts. (Dkt. 198.) These included substantive RICO (Count One); RICO conspiracy (Count Two); conspiracy to commit murder in aid of racketeering (Count Thirteen); conspiracy to transport stolen vehicles (Count Fifteen); and conspiracy to possess with intent to distribute, and distribution of, cocaine (Count Twenty). (Id.) The original count of controlled substance conspiracy (cocaine, marijuana, and ecstasy), with which Defendant was charged in the initial indictment, became Count Nineteen in this first superseding indictment. (Id.) O'Brien was not charged in this first superseding indictment.

         Seven months later, on December 15, 2009, a second superseding indictment was filed. (Dkt. 997.) In this indictment, Defendant was charged with an additional count of conspiracy to alter, remove, or obliterate vehicle identification numbers (Count Thirty-Six).[2](Id. at 43.) O'Brien was charged in this second superseding indictment with a single count of false statements (Count Forty-Four). (Id. at 47.) This count was based on the same misconduct for which O'Brien was originally charged on March 12, 2008 and superseded the criminal complaint in that other case.

         On April 1, 2010, twenty-three months after O'Brien's representation was terminated, Defendant went to trial.

         On October 24, 2011, the Government filed a motion to dismiss the second superseding indictment as to O'Brien because "the ends of justice would best be served by this dismissal." (Dkt. 2240.) That same day, the Court entered an order dismissing O'Brien. (Dkt. 2245.)

         Regarding the period when O'Brien represented Defendant, the Government notes: “Of the seventeen individuals charged in the original indictment, none of them resolved their cases between October 2006 and May 2008.” (Dkt. 2765, at 10.) The Government also emphasizes that Assistant United States Attorney Diane Marion was telling everyone involved that a superseding indictment with additional charges was forthcoming. (Id.) The Government further proposes that any notion that Defendant and the Government were going to reach an agreement resolving his case prior to racketeering charges being added is nothing but fiction. (Id. at 11.) Defendant responds that the Government's representations are disingenuous because there is evidence that codefendants were cooperating during that period. (See Dkt. 2795-1, at 20-28.) An FBI 302 transcribed on January 23, 2007 reports that codefendant Monika Zuk interviewed with the Detroit FBI pursuant to a proffer agreement on January 22, 2007. (Id. at 20.)

         B. Representation by Lawrence Shulman

         Lawrence Shulman became counsel of record for Defendant on June 17, 2008, and he represented Defendant through trial and sentencing. (See Dkt. 175; Dkt. 1761.) According to Defendant, the conflicts of interest attending Shulman's representation arose from his prior and concurrent representation of Randell McDaniel, who was ultimately indicted in this case. Defendant maintains: “For Shulman, there was a clear risk to his other client's (McDaniel's interests) if he were to pursue plea negotiations with [Defendant] or if he pursued certain lines of defense that would have well served [Defendant], but would have inculpated his other client (McDaniel) or undermined stories McDaniel had told the government in his cooperation.” (Dkt. 2713, at 7-8.) Defendant continues: “Shulman's conflicts risked allowing counsel to exploit client confidences and secrets garnered from his former client and caused him to choose between duties to two clients.” (Id. at 8.)

         1. The Facts Related to Shulman's Alleged Conflict of Interest

         At the time Shulman became Defendant's counsel in June 2008, McDaniel had not yet been indicted in this case. However, three months earlier, in March 2008, Shulman had made an appearance as counsel of record for McDaniel in a Michigan state criminal case. (Dkt. 2722-1, at 25.) In that case, McDaniel was indicted on a variety of counts related to stolen and re-tagged vehicles. (See Id. at 27-30.) As the Michigan Court of Appeals recounted, the charges were based on the following alleged predicate incidents:

(1) a 2001 conviction for receiving and concealing stolen property over $20, 000; (2) violating MCL 750.535a by operating a chop shop on or about October 16, 2006; (3) violating MCL 750.535(7) by buying, receiving, possessing, concealing or aiding in the concealment of a Yamaha four-wheeler, Vehicle Identification Number (VIN) JY411007H0004823, for financial gain, knowing or having reason to know it was stolen; (4) violating MCL 750.535(7) by buying, receiving, possessing, concealing or aiding in the concealment of a Harley-Davidson Screaming Eagle motorcycle, VIN ULT6891ST00002849, for financial gain, knowing or having reason to know that it was stolen.

People v. McDaniel, No. 07-036304-FH, at 3 n.1 (Mich. Ct. App. Sept. 30, 2010).

         One month after Shulman appeared as counsel for McDaniel in that state case, on April 9, 2008, case investigators, including Special Agent Brzezinski, held a coordination meeting, where they received “an update on the [state] prosecution of Highwaymen Randell McDaniel.” (Dkt. 2795-1, at 16.) Notes from this meeting reveal a discussion of McDaniel's retention of his “new defense attorney, a Lawrence Shulman.” (Id.) The notes also reflect that Brzezinski “assured the group that McDaniel will be indicted to face federal criminal charges no matter what happens in Monroe County Circuit Court.” (Id.)

         Later that year, McDaniel was convicted in his state case of conducting a criminal enterprise and operating a motor vehicle chop shop. (See Dkt. 2795-1, at 2.) He was sentenced on October 13, 2008. (See id.) According to the docket sheet for the appeal in that case, Shulman remained as counsel during appeal, joined by John Signorino. (Id.)

         On January 29, 2009, while Shulman continued to represent Defendant in this matter, McDaniel was indicted in another federal case, United States v. Shafinia. (Dkt. 1 in 09-cr-20039.) There, McDaniel was indicted for conspiracy to possess with intent to distribute and unlawful distribution of a controlled substance. (Dkt. 2765-2 at 1-3, 6-7 (Dkt. 3 in 09-cr-20039).) The indictment stemmed from a conspiracy to distribute fraudulently obtained prescription pills, including oxycodone, hydrocodone bitartrate, and benzodiazaphine. On March 23, 2009, Shulman entered his appearance on behalf of McDaniel in that case. (Dkt. 40 in 09-cr-20039.)

         Six months later, on September 17, 2009, Shulman filed a reply brief on McDaniel's behalf in the state appellate proceeding. (See Dkt. 2795-1, at 6.) This appears to be the last action taken by Shulman in the state court case.

         On December 15, 2009, McDaniel was indicted in the case before this Court in the second superseding indictment on a single count of conspiracy to transport stolen property in interstate commerce (Count Fifteen). (Dkt. 997, at 26-28.) As stated above, Defendant was also indicted on Count Fifteen (See id.) As to Defendant, Count Fifteen alleged: (1) “On or about April 10, 2006, Gary Ball Jr. told Doug Burnett the HMC planned to ‘rip' some motorcycles in Myrtle Beach”; and (2) “In or about May 2006, Louis Fitzner, Eugene Trumph, and Gary Ball Jr[.] unloaded stolen motorcycles at Southwest Transmission in Detroit, Michigan.” (Dkt. 997, at 28.) As to McDaniel, Count Fifteen alleged: “In or about May and June 2006, Randy McDaniel and David Foster supplied vehicle titles to members of the HMC.” (Id.) McDaniel's counsel in this case was Ronnie Cromer. (Dkt. 1156.)

         On March 3, 2010, McDaniel entered a guilty plea in the other federal case, and his sentencing date was set for June 14, 2010. (See Dkt. 196 in 09-cr-20039.) The AUSA who appeared at that plea hearing was Stephanie Dawkins Davis. (Id.)

         On April 1, 2010, Defendant's trial began. McDaniel was not called as a witness. Nonetheless, as elaborated in the next section, Defendant has enumerated several instances in which he believes Shulman's performance was adversely affected by his prior and concurrent representation of McDaniel.

         On June 14, 2010, the court in McDaniel's other federal case adopted a stipulation adjourning McDaniel's sentencing date. (Dkt. 103 in 09-cr-20039.) According to the stipulation, the parties agreed to an adjournment for two reasons: (1) Shulman had been in trial before this Court for the previous month, making it difficult for the parties to prepare for the hearing; and (2) “[t]he scoring of the guidelines by the probation officer in this matter [was] different from the scoring anticipated by both of the Parties, ” and “Counsel request[ed] additional time to resolve the issue.” (See id.)

         On September 30, 2010, the Michigan Court of Appeals issued an order affirming McDaniel's state court conviction. See People v. McDaniel, No. 07-036304-FH (Mich. Ct. App. Sept. 30, 2010). On January 11, 2011, the Michigan Court of Appeals closed that case. (Dkt. 2795-1, at 6.)

         On April 14, 2011, McDaniel's charge in this case was dismissed following the Government's motion to dismiss the second superseding indictment as to McDaniel. (Dkt. 1958.) The Government's motion stated the following: “The defendant pled guilty and was sentenced in case number 09-20039. The parties agreed that the instant case would be dismissed following a resolution in case 09-20039.” (Dkt. 1957.) Defendant argues that this motion supplies proof that McDaniel was cooperating with the Government's investigation of the issues before this Court. Defendant also points to United States v. $463, 497.72, 779 F.Supp.2d 696 (E.D. Mich. 2011) as proof that McDaniel was a cooperating witness against him. However, that case never identifies McDaniel as a cooperator. See id.

         Defendant next directs the Court's attention to the Michigan Attorney Grievance Commission's actions regarding Shulman's representation of Defendant. On April 2, 2013, Defendant filed a complaint with the Commission alleging improper conduct on Shulman's part. (Dkt. 2722-2, at 23.) Three weeks later, the Commissioners sent Shulman the following letter of admonishment:

The matter was submitted to the Commissioners for their review and decision. At its regular monthly session in April of 2014, the Attorney Grievance Commission determined that you failed to file a timely answer to this Request for Investigation. Your conduct violated MCR 9.104(1)-(4);[3] and MRPC 9.113, [4] and 8.4(a) and (c).[5]

(Id.) All of these grounds appear to relate to Shulman's failure to answer Defendant's complaint and do not reflect a finding that he was acting under a conflict of interest.[6] Either way, the Michigan Attorney Grievance Commission's conclusions would not control this Court's disposition of Defendant's motion. United States v. Kilpatrick 798 F.3d 365, 375 (6th Cir. 2015) (“The constitutional question we must answer is not whether [the defendant]'s attorneys violated ethical rules, but whether an actual conflict existed that adversely affected their performance.”).

         2. The Alleged Adverse Effects of Shulman's Alleged ...


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