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United States v. George

United States District Court, D. Oregon

August 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAM JAMES GEORGE, Defendant.

          BILLY J. WILLIAMS United States Attorney

          GEOFFREY A. BARROW Assistant United States Attorney Attorneys for Plaintiff

          BEAR WILNER-NUGENT Attorney for Defendant

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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) .

         On 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.

         On 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.

         On 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).

         On 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.

         AFPD 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.

         On 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 2015." Id.

         AFPD 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.

         On 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 exchange."

         On 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.

         On November 21, 2016, the Court held a hearing on Defendant's Motion to Suppress and denied Defendant's Motion.

         On 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.

         On 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.

         On 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.

         On June 26, 2017, the Court held a sentencing hearing and sentenced Defendant to a 21-month term of imprisonment ...


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