Christian v. United States

BRENNAN CHRISTIAN, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:19-cv-1058 (LMB)

Crim. No. 1:16-cr-207 (LMB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

June 15, 2020

MEMORANDUM OPINION

Before the Court is movant pro se Brennan Christian's ("movant" or "Christian") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate") under 28 U.S.C. § 2255, in which he argues that his conviction and sentence should be vacated due to various purported errors by the Court, the government, and defense counsel in connection with his 2017 conviction for conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The government has filed a response and Christian has filed a reply. For the reasons stated below, Christian's Motion to Vacate will be dismissed.

I.

In May 2012, federal and state law enforcement agencies began a joint investigation into the cocaine distribution activities of Tony Bowles ("Bowles"), which were based in the Eastern District of Virginia. [Dkt. 258 ¶ 18].¹ During this investigation, Johnnie Hill ("Hill") was identified as one of Bowles' primary sources of supply, and Marciano Reza ("Reza") was identified as one of Hill's potential sources of supply. Id. ¶¶ 20-21. Reza worked closely withseveral family members and others to purchase and distribute kilogram-quantities of cocaine, primarily in North Carolina. ¶ 22-23, 28, 32. One such family member was his wife's cousin, who was known as "Twin." Id. Reza both supplied cocaine to, and in turn was occasionally supplied cocaine by, "Twin," depending on their respective needs. Id. For example, in early June 2013, Reza purchased nine kilograms of cocaine from a third party, two of which were for "Twin," and in late June 2013, "Twin" supplied Reza with three kilograms of cocaine. Id. ¶¶ 26-27.

Christian was positively identified as "Twin" following law enforcement's investigation of an August 6, 2013 post made on the Facebook page of Reza's wife. Id. ¶ 28. Upon execution of a search warrant, agents located a post which stated: "Hey cuzn have yall lef 4 beach yet?" Id. That post originated from a Facebook account associated with Christian, including through a photograph of the account user, which matched a prior booking photograph of Christian. Id. Additionally, agents determined that Christian had a twin brother, who was incarcerated in North Carolina on convictions for drug trafficking and firearms offenses. Id. Throughout this investigation, agents utilized confidential sources, controlled purchases, and multiple court-authorized wiretaps, among other investigative methods, as discussed further below. Id. ¶¶ 19, 30.

On October 15, 2013, a criminal complaint was issued against Reza, Christian, and several others affiliated with Reza, charging them with one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. [Dkt. 1]. A second complaint was issued against Bowles, Hill, and numerous others affiliated with Bowles, charging them with the same offense. See United States v. Bowles, Case No. 1:13-cr-476, Dkt. 1. Both complaints were supported by the same affidavit. [Dkt. 2]; see also Bowles, Dkt. 2. All of theseindividuals were subsequently arrested and all but Christian and one of Bowies' associates eventually pleaded guilty before the undersigned judge. [Dkt. 58 ¶¶ 9-12]; see also Bowles, Dkt. 134 ¶¶ 6-22.

As for Christian, on September 13, 2016, a federal grand jury returned an indictment charging him with one count of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. [Dkt. 61]. On April 28, 2017, after a three-day jury trial, the jury was unable to reach a unanimous verdict and a mistrial was declared. [Dkt. 178]. The government subsequently decided to re-try Christian on the same charge. [Dkt. 179]. On August 4, 2017, after a second, three-day jury trial, the jury found Christian guilty. [Dkt. 245, 246].

During the trial, the central issue was whether the government could prove that Christian was "Twin." [See Dkt. 261]. The government presented a substantial amount of evidence on this issue, including: the testimony of two co-conspirators who identified Christian as "Twin," [Dkt. 274 at 125:20-25; Dkt. 275 at 308:20-24]; text messages recovered from Christian's mobile phone, which was seized during a search of his residence, in which he identified himself and was identified by others as "Twin," [Dkt. 274 at 18:10-19:11; Dkt. 276 at 480:79:23-480:3, 493:2-495:15]; and letters seized during a search of Christian's residence which were addressed to "Twin," [Dkt. 274 at 26:16-21]. Additional evidence on this issue involved a second mobile phone which was initially known only as a phone used by "Twin" but was later determined to be Christian's second mobile phone. [Dkt. 275 at 365:6-19]. This second phone was one of many mobile phones for which law enforcement agents obtained court-authorized wiretaps, and as a result is referred to as "TT10," which stands for "Target Telephone 10." [Dkt. 275 at 365:6-19]. Numerous conversations over TT10 dealt with drug transactions. The government presentedsignificant evidence that TT10 was Christian's second mobile phone, including: phone geolocation data showing that both Christian's first mobile phone and TT10 were often in similar locations at similar times, [Dkt. 275 at 429:18-433:3, 441:9-446:15]; as well as intercepted text messages and phone calls to and from TT10 referring to "Twin's" locations and activities, which matched Facebook records of Christian's locations and activities, such as visiting an establishment called the "King of Diamonds" on July 7, 2013, contacting a co-conspirator's wife on August 6, 2013, and attending a funeral on October 13, 2013. [Dkt. 275 at 406:12-410:2, 417:9-419:1; Dkt. 276 at 507:6-509:12].

Some of this evidence was presented in the form of Cellebrite Extraction Reports, which are forensic analyses of data extracted from mobile phones. [See Dkt. 261], In short, a Cellebrite Extraction Report lists all call logs, contacts, text messages, and data files on a mobile phone at the time of the extraction, which is conducted using Cellebrite technology. Id. During the trial, the government presented Cellebrite Extraction Reports for three mobile phones: Christian's first mobile phone, TT10, and a mobile phone which belonged to Reza. [Dkt. 276 at 474:11-476:6, 479:23-480:11, 503:25-505:16]. As relevant here, the text messages in which Christian identified himself and was identified by others as "Twin" came from the Cellebrite Extraction Report of Christian's first mobile phone, and the text messages in which "Twin" indicated that he attended a funeral on October 13, 2013 came from the Cellebrite Extraction Report of Reza's phone. [Dkt. 276 at 493:2-495:15, 503:25-505:16; see also Dkt. 261].

The pertinent portions of the three Cellebrite Extraction Reports were admitted during the testimony of FBI Special Agent Kenneth Smith, the case agent who conducted the extractions. [Dkt. 275 at 358:8-10, 450:9-12; Dkt. 276 at 503:25-504:7]. FBI Special Agent Ryan Lamb, who assisted in the extractions, also testified. [Dkt. 276 at 632:14-20, 638:9-13]. As relevanthere, the parties disputed whether Agent Lamb should be qualified as an expert witness in forensic mobile phone analyses. Agent Lamb testified that he had been an agent with the FBI's Computer Analysis Response Team for three years, and in that capacity conducted and analyzed data extractions from mobile phones and computers. [Dkt. 276 at 625:11-626:10]. He also testified that before joining the FBI's Computer Analysis Response Team he had spent two years training other FBI agents in the use of Cellebrite technology, and that he had taken numerous courses over his career on forensic mobile phone and computer analyses. Id. Agent Lamb explained that he had conducted mobile phone extractions "[o]ver 100 times," "predominantly" using Cellebrite technology. [Dkt. 276 at 626:20-627:5, 630:4-10].

When the government moved to qualify Agent Lamb as an expert witness, defense counsel sought and received permission to conduct a voir dire examination. [Dkt. 276 at 627:6-13]. During the examination, defense counsel probed Agent Lamb's training. For example, she asked whether a five-day mobile phone forensics course that Agent Lamb had attended in 2016 was "really relevant" given that only one day focused on the type of phones at issue "in this case," to which Agent Lamb responded that "the principles that were discussed" throughout the five-day course "are consistent across the different [types of] mobile devices." [Dkt. 276 at 629:8-13]. Defense counsel also asked whether Agent Lamb had attended a Cellebrite Certified Local Operator Training or been certified as a Cellebrite Certified Physical Analyst, to which Agent Lamb responded that he had not. [Dkt. 276 at 629:23-630:3]. Additionally, defense counsel asked about the specific devices Agent Lamb had analyzed over his career, and Agent Lamb confirmed that he had "analyzed over 100 cell phones" and "more than 50 computers," "averaging about 30 devices a year." [Dkt. 276 at 631:3-13]. Following the voir dire examination, defense counsel objected to Agent Lamb's qualification as an expert "basedon . . . the limited training that he's had," and the Court denied the objection "because one of the bases for expertise can also just be experience," as opposed to "formalized training." [Dkt. 276 at 632:1-7].

Agents Smith and Lamb both testified that there are multiple types of extractions that can be conducted on a mobile phone. [Dkt. 276 at 476:10-11, 639:11-12]. A "logical" extraction is "a very simple type of extraction" that is "comparable to a file copy, where you're dragging and dropping files from one [location] to another location," and it "may not recover deleted items off a phone." [Dkt. 276...