United States v. Murray

United States of America v. William Murray

No. 2:09-cr-90-2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

March 20, 2017

REPORT AND RECOMMENDATION

(Docs. 726, 762, 777)

William Murray, proceeding pro se, has moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In 2011, following an 11-day jury trial, Murray was convicted of knowingly and willfully conspiring with others to distribute heroin and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. (Doc. 591 at 1; Doc. 479 at 1-2; Doc. 477 at 1.) United States District Judge William K. Sessions III sentenced Murray to 100 months in prison, followed by a four-year term of supervised release. (Doc. 591 at 2-3.) Murray's conviction was affirmed on appeal, United States v. Aguiar, 737 F.3d 251 (2d Cir. 2013) (No. 11-2562-cr(L)), cert. denied, 135 S. Ct. 400 (2014), and he is currently serving his sentence (Doc. 726 at 1).

In the instant Motion, Murray claims that Attorney Robert Behrens provided ineffective assistance of counsel before the district and appellate courts. (Doc. 726.) Murray sets forth five main ineffective assistance arguments, which mirror those made by his codefendant, Stephen Aguiar, in his respective § 2255 motion. The identical claims made by Aguiar have been rejected by the Court in their entirety in an Opinion and Order denying Aguiar's § 2255 motion and numerous related motions. United States v. Aguiar, No. 2:09-cr-90-1 (D. Vt. 2009), ECF No. 780 (adopting Report and Recommendation, id., ECF No. 767).

The government filed a Response in Opposition to Murray's Motion. (Doc. 749.) Murray filed a Reply (Doc. 753) and also moved, with Aguiar, to join four motions filed by codefendant Aguiar (Doc. 762). All motions by Aguiar that Murray sought to join were denied by the Court's Opinion and Order on January 23, 2017, Aguiar, No. 2:09-cr-90-1, ECF No. 780, and the Motion for Joinder, as to Aguiar, was accordingly denied as moot, id., ECF No. 781.

Attorney Behrens responded to Murray's assertions of ineffective assistance in an Affidavit.¹ (Doc. 779.) Therein, Behrens describes the pretrial motions he filed on behalf of Murray and the motions filed by co-counsel Attorney David Williams that he joined. (Id.) In particular, Behrens describes his efforts to challenge the government's use of wiretap and other electronic evidence. (Id.)

As discussed below, Murray's claims, replicating Aguiar's, fail for many of the same reasons that the Court addressed in denying Aguiar's § 2255 motion. See Aguiar, No. 2:09-cr-90-1, ECF Nos. 767, 780. Accordingly, and for the reasons stated below, Murray's Motion for Joinder (Doc. 762), like Aguiar's, is DENIED as moot, in light ofthe Court's Opinion and Order dismissing all of Aguiar's motions that Murray seeks to join. See Aguiar, No. 2:09-cr-90-1, ECF Nos. 767, 780, 781. Murray's Motion to Strike Affidavit (Doc. 777) is also DENIED as both moot and meritless. Finally, I recommend that the Court DENY Murray's Motion to Vacate (Doc. 726).

Background

Much of the following background was set forth in this Court's Report and Recommendation, Aguiar, No. 2:09-cr-90-1, ECF No. 767, subsequently adopted in an Opinion and Order, id., ECF No. 780, denying Aguiar's § 2255 motion and related motions. The facts presented here are derived from filings in the extensive pretrial proceedings in this case, the trial and sentencing transcripts, and the U.S. Probation Office's Presentence Investigation Report (PSR). This summary is not intended to be exhaustive, but rather to include only those facts essential to the pending § 2255 Motion.

I. Investigation and Investigative Techniques

In 2008, the Drug Enforcement Administration (DEA), in coordination with the Burlington Police Department, began to investigate a large-scale heroin and cocaine distribution ring operating in the Burlington, Vermont area. (PSR at 4, ¶ 12; Doc. 613 at 96-97; Doc. 633 at 52-53.) It was later determined that this distribution ring was organized, led, and managed by Stephen Aguiar. (PSR at 4, ¶ 12.) Trial testimony and documentary evidence revealed that Aguiar regularly traveled to Dorchester, Massachusetts to acquire bulk quantities of heroin and cocaine for distribution in Vermont. (Id. at 5, ¶¶ 13-15.) He distributed these drugs through numerous Burlington-area distributors, including William Murray. (Id. at 4, ¶ 12.)

The interception of wire communications between members of the conspiracy, pursuant to Title III intercept orders,² and contemporaneous GPS tracking, were key components of the government's investigation. The Court granted Title III wiretap applications involving cell phones linked to Aguiar on June 3, June 18, July 2,³ and July 21, 2009. See In re Tahair, No. 2:09-mc-34 (D. Vt. 2009), ECF Nos. 8, 14, 18, 20. As discussed below, the July 2 application did not include the complete Department of Justice (DOJ) authorization memorandum required by statute. See id., ECF No. 18; (Doc. 624 at 77); see also 18 U.S.C. § 2516(1). The Court also granted multiple government applications to install and use pen register and trap and trace (pen/trap) devices⁴ (Doc. 371 at 4-5, 28), including one granted on April 3, 2009 that contained an incorrect phone number. (Id. at 26.) The pen/trap orders also authorized the collection ofcell-site-location data.⁵ (Id. at 5 n.4, 28); see, e.g., In re Tahair, No. 2:09-mc-34, ECF Nos. 1, 2; (see also Doc. 624 at 13; Doc. 284 at 9; Doc. 625 at 19-20.)

In conjunction with the monitoring of wire communications, law enforcement also used GPS devices to track the movement of Aguiar's vehicles within Vermont and Massachusetts, and between the two states. (See, e.g., Doc. 614 at 108-29, 134-64.) The GPS devices were surreptitiously installed on the vehicles and law enforcement did not obtain search warrants authorizing the installation. (See, e.g., Doc. 371 at 37-38.)

The government's proof at trial included recorded conversations between the conspirators and other electronic evidence garnered from these investigative techniques. The PSR summarized wire intercepts of conversations between Aguiar and Murray between July 4 and July 23, 2009, concerning cocaine transactions. (PSR at 7, ¶ 24.) During trial, the government presented these many digital recordings, including one in which Aguiar and Murray discussed Murray's heroin distribution and sales. (Doc. 633 at 202-03 (Tahair testimony deciphering phone call played in court).)

II. Preliminary Proceedings and Indictments

On July 29, 2009, Murray was initially charged in a Complaint that alleged he, Stephen Aguiar, Brian Tahair, Jessica Adcock, Daniel Reyes, Lisa Foy, Jeremy Mackenzie, Herbert Lawrence, Franklin Grant, and Jason Opalenik engaged in a conspiracy "among themse[lv]es and others, known and unknown, to knowingly andintentionally distribute cocaine and heroin, Schedule I and II controlled substances." (Doc. 1 at 1.) Murray was arrested (Doc. 48) following the issuance of a warrant. Murray did not oppose detention (Doc. 63), and the Court ordered him detained pending trial (Doc. 67).

On August 13, 2009, the Grand Jury returned an Indictment charging Murray, Aguiar, and others with multiple violations of the Controlled Substances Act. (Doc. 86.) Murray was charged in a series of Superseding Indictments (Docs. 97, 175, 265), and ultimately the Grand Jury returned a Fourth Superseding Indictment charging Murray in one count (Doc. 409). Aguiar was charged in nine counts, together with a forfeiture allegation. (Id.) Murray was arraigned and entered a plea of not guilty. (Doc. 416; Doc. 613 at 45.) Murray and codefendants Aguiar and Whitcomb later proceeded to trial on the Fourth Superseding Indictment. (Doc. 613.)

Trial was held on a Redacted Fourth Superseding Indictment, which alleged the following: Count 1 charged Aguiar, Murray, and Whitcomb with conspiring with Tahair, Grant, Mackenzie, Adcock, Opalenik, Foy, and Reyes to distribute heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Doc. 477 at 1); Counts 2 and 3 charged Aguiar and Tahair with distributing cocaine on two different occasions, in violation of 21 U.S.C. § 841(a)(1) (id. at 2, 3); Counts 4, 5, and 6 charged Aguiar and Mackenzie with distributing cocaine on three different occasions, in violation of 21 U.S.C. § 841(a)(1) (id. at 4, 5, 6); and Count 7 charged Aguiar with possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (id. at 7). Count 8 provided a forfeiture notice that if convicted, Aguiarwould have to forfeit proceeds derived from, and property used or intended to be used in the commission of, the charged offenses under 21 U.S.C. § 853. (Id. at 8.)

III. Pretrial Motions

The pretrial proceedings concerning the Title III intercepts and other electronic evidence were complex. A review of the record reveals that Attorney Behrens argued zealously on Murray's behalf and appropriately raised numerous issues by means of motions to suppress, in a vigorous effort to challenge and suppress the electronic evidence garnered by the government during the investigation. Behrens also joined in codefendant Aguiar's motions, which are discussed below.

Attorney David Williams, who was appointed to represent Aguiar, filed a Motion to Suppress on March 9, 2010, seeking suppression of the following: (1) any wire communications that were intercepted pursuant to the Title III warrants issued by this Court; (2) evidence discovered pursuant to the April 3, 2009 order that authorized the installation and use of pen/trap devices and required production of "telecommunication records and information"; (3) evidence seized pursuant to a search warrant for Aguiar's Quincy, Massachusetts residence, including cell phones; (4) evidence seized without a search warrant from Aguiar's iPhone following his arrest; and (5) evidence seized through the warrantless GPS tracking of Aguiar's...