United States District Court, D. Oregon
J. WILLIAMS United States Attorney
GEOFFREY A. BARROW Assistant United States Attorney Attorneys
WILNER-NUGENT Attorney for Defendant
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
matter comes before the Court on Defendant Adam James
George's Motion (#67) to Vacate, Set Aside or Correct
Sentence Pursuant to 28 U.S.C. § 2255. For the reasons
that follow, the Court DENIES
Defendant's Motion and DECLINES to issue
a certificate of appealability.
September 1, 2016, Magistrate Judge Stacie Beckerman issued a
Criminal Complaint against Defendant Adam James George for
Possession with Intent to Distribute MDMA/Ecstasy and
psylocibin mushrooms in violation 21 U.S.C. §§
841(a) (1), (b) (1) (C) .
September 1, 2016, Defendant made an initial appearance
before Magistrate Judge Beckerman, who appointed Assistant
Federal Public Defender (AFPD) Fidel Cassino-DuCloux to
represent Defendant. On September 2, 2016, Defendant waived
his right to a preliminary hearing, and Magistrate Judge
Beckerman released Defendant on conditions.
September 2, 2016, Assistant United States Attorney (AUSA)
Pat Ehlers "made a Pre-Indictment offer for a joint
recommendation of 33 months. [Defendant] rejected that
offer," Decl. of Fiedl Cassino-DuCloux at ¶ 3A.
September 20, 2016, Defendant was charged in an Indictment
with one count of Possession with Intent to Distribute MDMA
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
October 25, 2016, AUSA Ehlers and AFPD Cassino-DuCloux had a
telephone conversation. AFPD Cassino-DuCloux's
contemporaneous notes reflect the following: "[T]he
Govt. will offer [Defendant] a misdemeanor drug conviction .
. . if he accepts the offer by Monday [October 31,
2016]." Def.'s Mem., Ex. 112 at 3. Specifically,
Ehlers "offered [Defendant] the opportunity to plead
guilty to a misdemeanor in exchange for a probationary
sentence recommendation of 12 months." Cassino-DuCloux
Decl. at ¶ 3B.
Cassino-DuCloux's contemporaneous notes indicate on
October 28, 2016, counsel reviewed the government's offer
with Defendant. After reviewing the discovery Defendant had
received at that point, Defendant "decided . . . there
was nothing in the discovery that could tie his Bitcoin
accounts to any alleged illicit activity."
Cassino-DuCloux Decl. at ¶ 3B. Accordingly, "[o]n
[Defendant's] request" AFPD Cassino-DuCloux
contacted AUSA Ehlers and "counter offered w/3 [months]
of probation." Def.'s Mem., Ex. 112 at 3. AUSA
Ehlers declined Defendant's counter offer. Defendant
advised AFPD Cassino-DuCloux that he wanted to go to trial.
November 1, 2016, investigators met with Defendant's
former roommate, Edward Dula. Presentence Report (PSR) ¶
22, Dula advised investigators that he had lived with
Defendant at 4912 N. Montana Ave, Portland, Oregon
97217-3641, for approximately eight months from spring 2013
through early 2014. Dula stated he became aware at some point
that Defendant was involved with MDMA and Dula decided to
move out. Dula told the investigators that he had observed a
"large vacuum-sealed bag in the house containing what
defendant stated was MDMA" and "at a later date, he
observed that defendant had encapsulated a quantity of the
MDMA powder inside multiple gel caps." Id. In
addition, "[a]ccording to case agents, analysis from a
search of defendant's emails revealed defendant had
engaged in MDMA distribution as early as November of
Cassino-DuCloux's contemporaneous notes indicate on
November 2, 2016, AUSA Ehlers informed AFPD Cassino-DuCloux
that he had talked to Dula and that Dula was going to testify
"he saw [Defendant] rev [received] packages in the past
full of [a] crushed ice type of substance." Def.'s
Mem., Ex. 112 at 3.
November 11, 2016, Defendant filed a Motion (#22) to Suppress
Evidence related to the warrant application permitting the
search of Defendant's residence and electronic devices.
Specifically, Defendant asserted the government made material
misrepresentations concerning Defendant's use of the
internet to order illicit substances from the Netherlands and
omitted "critical punctuation in [a] text
November 17, 2016, AUSA Ehlers made a verbal offer of a plea
that "would cap the Government at 33 months and leave
the Defense free to ask for a probationary sentence."
Cassino-DuCloux Decl. at ¶ 3C. AFPD Cassino-DuCloux met
with Defendant to discuss the offer, at which time Defendant
explained "he could not testify because he admitted to
us that he sent the box of MDMA." Def.'s Mem., Ex.
112 at 4. AFPD Cassino-DuCloux's contemporaneous notes
reflect Defendant "started telling us he did not know
what he could tell us now and began taking the
5thwhen we asked him questions." Id.
Defendant, however, rejected the 33-month offer.
November 21, 2016, the Court held a hearing on
Defendant's Motion to Suppress and denied Defendant's
November 22, 2016, AFPD Cassino-DuCloux received discovery
from the government of the computer forensic imaging of
Defendant's computers. AFPD Cassino-DuCloux testifies in
his Declaration that the computer forensic imaging contained
information that "suggested [Defendant's] Bitcoin
account had previously been terminated for suspected dark web
participation." Cassino-DuCloux Decl, at ¶ 2B.
Defendant also "discovered that his ex-roommate, Michael
Matheas, had been interviewed by the FBI and appointed
counsel as a material witness." Id. AFPD
Cassino-DuCloux states the defense "knew . . . Matheas
could testify that [Defendant] sold him MDMA in the
past," Dula had already advised Defendant's
investigator and AFPD Cassino-DuCloux that he had seen
Defendant "receive a pink substance in the mail which he
thought was MDMA, and Dula "had seen [Defendant] sell
MDMA when they were roommates." Id. AFPD
Cassino-DuCloux states Defendant believed Dula "seemed
credible and had helped the police in the sting operation
against [Defendant]," and, therefore, Defendant
"felt [Dula's] testimony would hurt the
defense." AFPD Cassino-DuCloux notes as a result of this
evidence and information and "[g]iven the strength of
the government's evidence and [Defendant's]
sentencing exposure it was [Defendant] who suggested entering
a guilty plea," and AFPD Cassino-DuCloux concurred.
Cassino-DuCloux Decl. at ¶ 2D.
November 23, 2016, Defendant agreed to a proffer with the
government. During the proffer Defendant explained how he got
involved in the business of distributing MDMA and how he made
his profits. Defendant admitted he had violated the
computer-use prohibition in his pretrial-release conditions
when he accessed a dark web site in October 2016 via a
computer that was not monitored by Pretrial Services.
Def.'s Mem., Ex. 3 at 5. Defendant stated he accessed the
dark web site to secure and to strengthen his passwords.
Defendant admitted he also alerted the vendor of the last
shipment of MDMA that Defendant received about "lav;
enforcement involvement." Id. Finally,
Defendant admitted he had accessed approximately $2, 000
worth of Bitcoin after Magistrate Judge Beckerman had ordered
him not to use computers. Id. at 6.
November 23, 2016, Defendant pled guilty to the one count of
Possession with Intent to Distribute MDMA. At the change-of-
plea hearing Defendant advised the Court that he had enough
time with counsel "to consider all of [his]
options," he had asked counsel all of the questions he
had, and he had considered whether to go forward with trial.
Nov. 23, 2016, Tr, at 9. Defendant asserted he had discussed
with counsel the benefit of pleading guilty versus the
potential risks in going to trial, and he believed pleading
guilty was in his "own best interest." Tr. 10. The
Court reviewed with Defendant the consequences of pleading
guilty, and Defendant indicated he understood. The Court also
reviewed the constitutional rights that Defendant was giving
up by pleading guilty, and Defendant indicated he understood.
The Court asked Defendant whether the following statement in
his Plea Agreement was true and accurate:
I have carefully reviewed every part of this agreement with
my attorney. I understand and voluntarily agree to its terms.
I expressly waive my rights as outlined in this agreement. I
wish to plead guilty because in fact I am guilty.
Tr. at 17-18. Defendant indicated it was true and accurate.
Defendant stated he had not been pressured by anyone to plead
guilty, and it was his "personal and voluntary
choice" to do so. Tr. 24.
26, 2017, the Court held a sentencing hearing and sentenced
Defendant to a 21-month term of imprisonment ...