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United States v. Ball

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

September 19, 2017

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

          OPINION AND ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION [2655]

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

         Defendant Gary Ball moves under 28 U.S.C. § 2255 to vacate his sentence, asserting several grounds for relief. First, he maintains that two of his attorneys, Lee O'Brien and Lawrence Shulman, deprived him of his right to representation free from conflicts of interest. Defendant argues that O'Brien was conflicted because he was the subject of a criminal investigation that was conducted by the same prosecuting authority, involved the same case agent, and included allegations that O'Brien participated in some of the conduct charged to Defendant in this case. Defendant argues that Shulman's conflict arose from his representation of Randell (“Randy”) McDaniel, who was ultimately indicted in this case on one of the same counts as Defendant. Next, Defendant claims that he received ineffective assistance during pretrial, trial, and appeal, regardless of conflicts. Finally, he alleges various forms of prosecutorial misconduct, as well as a failure by this Court to fulfill its duty to inquire into potential conflicts.

         The Court has permitted discovery, held an evidentiary hearing, and received extensive briefing in this matter. For the reasons below, Defendant's motion is DENIED.

         I. Background

         Below are most of the facts and allegations related to Defendant's § 2255 claims. When this Court reaches the merits of Defendant's motion, it will introduce additional facts as necessary to resolve the claims.

         A. Defendant's Representation by Lee O'Brien and the Investigation of O'Brien

         Defendant was a member of the Highwaymen Outlaw Motorcycle Gang, and this case arises out of the investigation and prosecution of members of that gang. The initial Indictment in this case was filed under seal on September 6, 2006. (Dkt. 2.) Therein, Defendant was indicted as one of 17 defendants for conspiracy to possess with intent to distribute cocaine, marijuana, and ecstasy. (Dkt. 3.) On October 3, 2006, the indictment was unsealed, and Defendant made his initial appearance, represented by Lee O'Brien. (Dkt. 1.) O'Brien remained Defendant's attorney of record from that date until May 8, 2008, when this Court terminated his representation. (Dkt. 166.)

         On August 4, 2005, fourteen months before O'Brien appeared on Defendant's behalf, Special Agent Edward Brzezinski reported the following in an FBI 302: "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.) One month later, Brzezinski reported in another FBI 302 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[]" who associated with the Highwaymen on a regular basis, although not a patched member. (Id. at 4.)

         In November 2007, which was two years after the 302s and thirteen months after O'Brien appeared on Defendant's behalf, Brzezinski and the Downriver Auto Theft Taskforce went to Todd Sullivan's body shop. (Dkt. 2722-1, at 7-8.) There, Brzezinski found a re-tagged, stolen Camaro. (Id.) According to Brzezinski's grand jury testimony, 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 the following 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, through an affidavit, has offered his account of this exchange. (Dkt. 2795-1, at 11-12.) He 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.[1] (Dkt. 2795, 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 [Defendant] . . . 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 aver that he learned of the aforementioned 302s during his representation of Defendant. (See id.)

         Four months after that exchange, on March 12, 2008, O'Brien was charged via federal complaint with false statements in connection with possession of the re-tagged, stolen Camaro. (Dkt. 2722-1, at 11 (Dkt. 1 in 08-mj-30123).) Nine days later, 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.)

         One year after O'Brien's termination, on May 14, 2009, the First Superseding Indictment was unsealed. (Dkt. 198.) It charged Defendant with additional counts of substantive RICO (Count One); RICO conspiracy (Count Two); conspiracy to commit murder in aid of racketeering (Count Thirteen); conspiracy to transport stolen property in interstate commerce (Count Fifteen); and conspiracy to possess with intent to distribute, and distribution of, cocaine (Count Twenty). The original controlled substance conspiracy charged to Defendant in the original Indictment became Count Nineteen in this First Superseding Indictment. O'Brien was not charged in the First Superseding Indictment.

         Seven months later, on December 15, 2009, the Second Superseding Indictment was filed. (Dkt. 997.) Therein, Defendant was charged with an additional count of conspiracy to alter, remove, or obliterate vehicle identification numbers (Count Thirty-Six). O'Brien was also charged in the Second Superseding Indictment with a single count of false statements (Count Forty-Four). This count was based on the same misconduct for which O'Brien was originally charged on March 12, 2008 and superseded the charge in 08-mj-30123.

         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 and brief to dismiss the Second Superseding Indictment as to O'Brien. (Dkt. 2240.) That same day, the Court entered an order of dismissal as to O'Brien. (Dkt. 2245.)

         B. Lawrence Shulman's Representation of Defendant and Randy McDaniel

         Lawrence Shulman became counsel of record for Defendant on June 17, 2008, and he represented Defendant through trial, sentencing, and the start of appeal. On the date Shulman began representing Defendant, Randy McDaniel had not been indicted in this case.

         Three months earlier, in March 2008, Shulman made an appearance as counsel for McDaniel in a Michigan state criminal case, People v. McDaniel, 07-03606-FY ("the state court case"). (Dkt. 2722-1, at 25.) There, McDaniel was indicted on a variety of counts related to stealing and re-tagging vehicles. (See Id. at 27-30.) As the Michigan Court of Appeals recounted, McDaniel was charged with conducting a criminal enterprise 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. 290689, LC No. 07-036304-FH, at 3 n.1 (Mich. Ct. App. Sept. 30, 2010). In his submissions to the Court, Defendant emphasizes that Counts 3 and 4 of the state court indictment specifically alleged the concealment of two 2005 Great Lakes Choppers. (Dkt. 2722-1, at 28; Dkt. 2883, at 3.)

         One month after Shulman appeared as counsel for McDaniel in the state court case, on April 9, 2008, case investigators, including Brzezinski, held a coordination meeting, where they received "an update on the [state] prosecution of Highwaymen Randell McDaniel." (Dkt. 2795-1, at 16.) NICB Neal Wisner's notes from this meeting document a discussion of McDaniel's retaining a "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.) Finally, Wisner notes the growing body of evidence that "Randy McDaniel was the king of VIN alterations for [the Highwaymen] in Michigan." (Id. at 17.)

         As stated above, Shulman appeared for Defendant in this case on June 17, 2008. Immediately after, Shulman filed a motion for revocation of Defendant's detention order, which was granted on June 26, 2008. (Dkt. 174; Dkt. 176.)

         Later that year, McDaniel was convicted in the state court case of conducting a criminal enterprise and operating a motor vehicle chop shop. (See Dkt. 2765, at 12.) He was sentenced on October 13, 2008. (See id.) Shulman remained McDaniel's counsel of record during the appeal, joined by John Signorino. (Dkt. 2795, at 2.)

         On January 29, 2009, McDaniel was indicted in a federal case before another judge in this district, United States v. Shafinia, 09-cr-20039 (E.D. Mich.). The Shafinia indictment charged McDaniel with conspiracy to possess with intent to distribute and unlawful distribution of fraudulently obtained prescription pills, including oxycodone, hydrocodone bitartrate, and benzodiazaphine. (Dkt. 3 in 09-cr-20039.) It alleged specifically that McDaniel and others met Dr. Sohrab Shafinia in parking lots and restaurants to exchange cash for prescriptions. (See id.) It did not allege conduct related to the Highwaymen matter before this Court. On March 23, 2009, Shulman entered his appearance on behalf of McDaniel in Shafinia. (Dkt. 2722-1, at 19.)

         Six months later, on September 17, 2009, Shulman filed a reply brief for McDaniel in the appeal of the state court case. (See Dkt. 2795, at 2.) This appears to be the last action taken by Shulman in the state court case, but Shulman remained McDaniel's counsel of record throughout the remainder of the appeal, which was not officially terminated until January 2011.

         On December 15, 2009, McDaniel was indicted in this case 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.) His attorney of record in this case was Ronnie Cromer, but Defendant alleges that Shulman was surreptitiously representing McDaniel. The Court addresses that allegation below. (See infra Part VI.B.4.)

         As stated above, Defendant was also indicted on Count Fifteen. (See Dkt. 997, at 26-28.) As to Defendant, Count Fifteen alleged the following: (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." (Id. at 28.) As to McDaniel, Count Fifteen alleged the following: "In or about May and June 2006, Randy McDaniel and David Foster supplied vehicle titles to members of the HMC." (Id.)

         Defendant has directed the Court to Brzezinski's testimony from the grand jury proceedings in this matter, which elaborates on McDaniel's alleged role:

Randy McDaniel is a Highwaymen down in the Monroe area. . . . Randy McDaniel sold a couple of [] titles directly to Aref Nagi to be able to register one of the bikes that we have seized. Actually, [] the one we seized at Eugene Trumph's shop was already titled in Great Lakes Chopper, but we were still able to identify it as stolen. . . . Randy was giving those titles or selling them to the Highwaymen.
It makes it completely legit. If you get rid of the old title, you put a stamp on it . . . And now if you got clean titles, if you are on the street, unless it gets to an investigation like this where you actually take it off the street, examine it and go through every component of the bike, you are not going to be able to tell it's stolen.

(Dkt. 2722-2, at 3-5.) Crucially absent from both this testimony and the Second Superseding Indictment is any suggestion that McDaniel directed or participated in planning the theft of motorcycles from Myrtle Beach.

         On March 3, 2010, McDaniel entered a guilty plea in Shafinia, and his sentencing date was set for June 14, 2010. (Dkt. 196 in 09-cr-20039.)

         As Defendant's case neared its trial date in early 2010, Shulman filed motions to sever, for a jury questionnaire, and to dismiss the superseding indictment or to stay the proceedings challenging the master jury wheel. (Dkt. 1304; Dkt. 1305; Dkt. 1363.) Shulman also worked with counsel for the other defendants and joined in their motions, including a motion to prohibit co-conspirator statements. (See Dkt. 1077; Dkt. 1171.)

         On April 5, 2010, Defendant's trial began. Over a period of almost two months, he was tried before a jury alongside five other Highwaymen: Aref Nagi, Michael Cicchetti, Leonard Moore, Joseph Whiting, and Anthony Clark. The Government called a number of cooperating co-defendants, including Doug Burnett, Robert Burton, Louis Fitzner, Gerald Peters, and Christopher Miller. It did not call McDaniel.

         During trial, the Government offered overwhelming evidence of Defendant's guilt. As to the controlled substance charges, Burnett conducted three controlled purchases of 4.5 ounces of cocaine from Defendant. (Dkt. 1548, at 86.) Peters testified that "everybody knows that [Defendant] sells cocaine" and that he bought 4.5 and 8.5 ounces of cocaine from Defendant. (Dkt. 1928, at 132.) Miller testified that he saw Defendant sell cocaine and that he personally bought cocaine from Defendant. (Dkt. 1926, at 130-34.) Fitzner testified that Defendant engaged in cocaine transactions with Nagi. (Dkt. 1932, at 48-49.)

         Regarding the stolen vehicle charges, Burton testified that he and Ball rented a U-Haul truck to transport stolen motorcycles from Myrtle Beach. (Dkt. 1918, at 21-22.) Fitzner testified that he was present when Defendant pulled up in a U-Haul with three motorcycles stolen from Myrtle Beach. (Dkt. 1932, at 57-58.) Moreover, the Government presented evidence that agents found numerous stolen motorcycles and cars with altered vehicle identification numbers while searching Defendant's family business, "Pal's Auto." (Dkt. 1570, at 144-49.) Trial testimony further revealed that Defendant possessed vehicles with altered VINs. (Id. at 163.)

         On June 3, 2010, the jury convicted Defendant of the following: (Count One) substantive RICO; (Count Two) RICO conspiracy; (Count Fifteen) conspiracy to transport stolen vehicles; (Count Nineteen) conspiracy to possess with intent to distribute cocaine, marijuana, and ecstasy; (Count Twenty) conspiracy to possess with intent to distribute cocaine; and (Count Thirty-Six) conspiracy to alter, remove, and obliterate vehicle identification numbers. (Dkt. 1470.)

         Two weeks later, on June 14, 2010, the Court in Shafinia adopted a stipulation adjourning McDaniel's sentencing date. (Dkt. 2722-1, at 20-21 (Dkt. 103 in 09-cr-20039).) According to the stipulation, the parties agreed to adjourn 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." (Id.)

         On September 30, 2010, the Michigan Court of Appeals issued an order affirming McDaniel's conviction in the state court case. People v. McDaniel, No. 290689, LC No. 07-036304-FH (Mich. Ct. App. Sept. 30, 2010). One of the central issues on appeal was whether McDaniel's conviction for conducting a criminal enterprise was proper where "there was no evidence of an ‘enterprise' involving anyone but himself." Id. at 1. The court decided that "defendant was involved in a criminal enterprise of altering identification numbers and selling stolen motor vehicles and parts" and that he could "be liable for conducting [that] criminal enterprise alone." Id. at 3. On January 11, 2011, the Michigan Court of Appeals closed the state court case.

         On February 10, 2011, this 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). (Dkt. 1781.)

         On April 14, 2011, this Court dismissed McDaniel's charge in this case 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 09-20039." (Dkt. 1957.) Pursuant to Defendant's discovery request, the Government produced a copy of McDaniel's Rule 11 agreement from Shafinia. It states: "If the Court accepts this agreement, the government will dismiss all remaining charges in this case as well as charges in Criminal Case no. 06-20465." (Dkt. 2891-1, at 9.)[2] It also provides that McDaniel will generally provide "information pertaining to any other criminal activity about which defendant is aware." (Id. at 6.) It does not provide for any active cooperation. (Id.)

         C. Defendant's Post-Conviction Proceedings

         Following his conviction, Defendant filed a Rule 29 motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial under Rule 33. (Dkt. 1525.) These motions were denied. (Dkt. 1584.) Defendant then appealed to the Sixth Circuit, which affirmed his convictions and sentence on September 30, 2013. United States v. Nagi, 541 F.App'x 556 (6th Cir. 2013). During his appeal, Defendant asserted that his trial was substantially affected by prosecutorial misconduct, that there was insufficient evidence to support his conviction, that this Court erred by enhancing his sentence based on a "leadership role, " and that he was improperly sentenced "based on drug amounts attributed to his co-conspirators." Id. at 568-69, 572-73, 575-76.

         Defendant argued that the prosecution committed misconduct by, inter alia, (1) promising cooperating witness Doug Burnett a "bonus that was contingent upon conviction or the nature of the testimony given"; and (2) "proceeding to trial against him on Count 13 conspiracy to commit the murder of Burnett and then dropping the charge prior to jury deliberations." Id. at 568-69. The Sixth Circuit rejected the former argument on the ground that the "opportunity to cross-examine Burnett was a sufficient safeguard against impropriety." Id. at 568. And it rejected the latter argument on two grounds: First, "[t]here [wa]s no indication [] that the government had an improper motive for proceeding in the way that it did"; and, second, "the jury did not receive an indictment until the conclusion of the case, so it never knew that Ball faced the charge and, thus, could not have been prejudiced against Ball on that basis." Id. at 569.

         The Sixth Circuit also rejected the argument that there was insufficient evidence to support his drug conspiracy convictions. It pointed to evidence that "Burnett executed at least three controlled buys of cocaine from Ball. . . . for about four and half ounces of cocaine, " that Robert Burton, a major cocaine dealer, "testified that Ball was his competitor when it came to selling cocaine, " and that "after executing a search warrant at Ball's home, agents seized 175.3 grams of cocaine." Nagi, 541 F.App'x at 572-73. The Sixth Circuit further rejected Defendant's contention that the Government did not establish that he participated in the "operation or management" of the criminal enterprise for purposes of Count One. Id. at 573. It explained: "Ball was an important member of the HMC. He was an ‘honorary, ' having achieved senior status, and also was the president of the Detroit East Side Chapter and opened his own chapter at Eight Mile. His principal role in stealing motorcycles also demonstrates his key position in the organization's illegal acts." Id.

         As to this Court's application of a "leadership role" sentencing enhancement, the Sixth Circuit held that this Court's conclusions were "supported by the record." Id. at 576. Finally, the Sixth Circuit rejected Defendant's argument that he was improperly sentenced based on drug amounts attributed to his co-conspirators." The court explained that "a defendant is liable for quantities of drugs distributed by co-conspirators provided such amounts are reasonably foreseeable to the defendant." Id. (citing United States v. Lloyd, 10 F.3d 1197, 1219 (6th Cir. 1993)).

         Following the Sixth Circuit's decision, Defendant petitioned for a writ of certiorari, which was denied on April 7, 2014. Ball v. United States, 134 S.Ct. 1804 (2014).

         Defendant timely filed his 28 U.S.C. § 2255 motion pro se on April 6, 2015, accompanied by a brief in support. (Dkt. 2655.) Defendant then retained counsel, and the parties supplied additional briefing. (Dkt. 2713; Dkt. 2765; Dkt. 2795.) Defendant also submitted several exhibits in support.

         Next, on March 13, 2017, Defendant moved for discovery under Rule 6(a) of the Rules Governing § 2255 Proceedings. (Dkt. 2859.) Following a hearing on that motion, this Court issued an order granting in part and denying in part Defendant's motion for discovery. (Dkt. 2881.) Defendant then sought reconsideration of his discovery motion, which this Court denied in a second order. (Dkt. 2888.) This second order amended the first, elaborating on its findings and correcting an erroneous footnote.

         Defendant subsequently filed a motion to compel discovery, alleging that the Government was not complying with this Court's order. (Dkt. 2889.) After reviewing the Government's two responses to Defendant's discovery requests and holding two telephonic conferences with counsel (the later one on the record), this Court concluded that the Government had complied with this Court's orders to the best of its ability and denied Defendant's motion to compel. (Dkt. 2906.)

         On August 22, 2017, the Court held an evidentiary hearing, during which Shulman and Detective Sergeant Jeff Hart testified. The Court found both witnesses to be confident, composed, and credible. Six days later, the parties provided oral argument summarizing the case. Defendant's § 2255 motion is now ripe for disposition.

         II. Applicable Standard

         Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." To prevail on the motion, Defendant must show "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." McPhearson v. United ...


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