United States District Court, D. Oregon, Medford Division
OWEN M. PANNER, District Judge.
Defendant Jason Michael Scott Nelson moves pro se to vacate his sentence, claiming he received ineffective assistance of counsel from his trial attorney. I deny Defendant's motion.
Defendant was indicted for conspiracy and manufacture of 100 pounds or more of marijuana. He retained counsel.
Two weeks later, a superseding indictment was filed, adding charges of unlawful possession of unregistered firearms, including machine guns and silencers. Defendant terminated his original attorney and retained James Leuenberger. In this motion under 28 U.S.C. § 2255, Defendant contends Leuenberger gave him incompetent advice on whether to plead guilty or go to trial.
I. Defendant Lied at the Hearing on His Motion to Suppress
Leuenberger filed a motion to suppress. Among other arguments, Leuenberger claimed law enforcement officers trespassed onto the curtilage of Defendant's house to gather information in support of a search warrant. The Government responded that Defendant had not shown a protected privacy interest. To support that argument, the Government presented testimony and exhibits showing Defendant's driveway and parking areas did not have barriers or No Trespassing signs posted.
Shortly before the hearing, Defendant submitted a photograph showing a No Trespassing sign posted on a tree near the driveway to his property. Defendant testified at the motion to suppress hearing that the sign had been nailed to the tree for many years. But Defendant's photo was fabricated and his testimony was false. At a debriefing after the trial, Defendant admitted staging the photo by taking a No Trespassing sign from another property and nailing it to the tree.
II. Plea Discussions
The Government has submitted the email correspondence between Leuenberger and Doug Fong, the assistant U.S. attorney assigned to the case. When the Government filed its response brief to the motion to suppress, Fong emailed Leuenberger. Fong wrote, "I have not made any plea offers because I assume from your letters, emails, and motions that Mr. Nelson is intent on proceeding to a hearing on your motion to suppress and then to trial. This is fine by me, but I just want to make sure this is where Mr. Nelson stands, and that there is no misunderstanding as to what he faces." Gov't Ex. 1-1, ECF 143-1.
In the email, Fong stated that Defendant faced a statutory five-year mandatory minimum sentence, and advisory sentencing guidelines ranges, depending on enhancements, of 97-121 months or 108-135 months. (Fong now states that the 108-135 range was incorrect because if the firearms were found to be unrelated to the drug offense, the range would be 87-108 months. Gov't Resp. at 4 n.1, ECF No. 142.)
Leuenberger responded to Fong's email, "Obviously, a failure to win our MTS would make a trial unappealing to us-although I do believe their [sic] is an entrapment by estoppel defense that can only be presented at trial. A failure to win our MTS would require us to rethink our case and therefore, I would not shut the door on a negotiated plea." Gov't Ex. 1-4.
After the motion to suppress was denied, Fong emailed Leuenberger, stating, "I wanted to check and see if Mr. Nelson had any interest in resolving his case, or whether we should just continue on to trial." Gov't Ex. 1-6. Fong noted that he
was disturbed by Jason's testimony at the MTS hearing about the "No Trespassing" sign being posted at the head of his drive. Our picture clearly shows that the sign was not there on the date of the search. His picture taken in the days before our hearing after we raised the issue, along with his testimony, appears to be fabricated. This raises an additional issue of whether we will pursue a two-level enhancement for attempting to obstruct the administration of justice under USSG 3C1.1, and/or whether we will pursue a separate count for perjury under 18 USC 1621 and/or 1623.
Gov't Ex. 1-6.
About a week later, Fong sent Leuenberger ...