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United States v. White

United States District Court, W.D. Virginia, Roanoke Division

May 31, 2017

UNITED STATES OF AMERICA
v.
WILLIAM A. WHITE, Defendant. Civil Action No. 7:16CV80934

          MEMORANDUM OPINION

          Glen E. Conrad Chief United States District Judge

          William A. White, a federal inmate proceeding pro se, moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government filed a motion to dismiss, and White responded. Accordingly, this matter is ripe for disposition. Upon review of the record, the court concludes that White's claims lack merit, and the government's motion to dismiss must be granted.

         I.

         On February 7, 2013, a federal grand jury indicted White on four counts of making extortionate communications through interstate and foreign commerce, in violation of 18 U.S.C. § 875(b) and 2. These charges stemmed from four emails that White sent threatening injury to his ex-wife if she did not send him "alimony" payments. Indictment at 2-3, ECF No. 1. White traveled to Mexico to avoid serving a sentence in a separate pending federal case.[1] He was arrested in Mexico and extradited to the United States. Trial Trans, at 274-77, ECF No. 182.

         White proceeded to trial before Senior United States District Judge, James C. Turk.[2] The government presented testimony from White's ex-wife, who explained that she had received emails from her ex-husband's email address, dhypehn@yahoo.com, threatening her with physical harm if she did not send him $400 a month. Tr. Trans, at 45-55. ECF No. 181. The government also called experts in internet tracking to testify regarding where the emails originated, because anonymizer technology had been used to mask the Internet Protocol ("IP") addresses associated with the emails sent. Tr. Trans, at 231-50 (testimony of Debra Healy, computer forensic expert); Id. at 272-311 (testimony of David Church, FBI agent assigned to the case).

         White's theory of the case was that a friend, Sabrina Gnos, had taken over his email account and sent the emails to his ex-wife to get the money herself. White testified in his own defense and admitted that he had called Gnos and asked her to find someone to intimidate his ex-wife because his ex-wife had stopped depositing money in his bank account, and he wanted her to resume payments. Tr. Trans, at 45, ECF No. 170. However, he denied sending any threatening emails to his ex-wife. Id. at 19-20. White argued that Gnos had written the emails and was trying to frame him. Id. at 20.

         The jury found White guilty. Verdict at 1-2, ECF No. 163. For Counts One, Three, and Four, the jury concluded that White was guilty of threatening his ex-wife with the intent to extort money from her; for Count Two, the jury concluded he was guilty of the lesser included offense of sending a threatening email, without intent to extort. Id.

         The Probation Office prepared a presentence investigation report ("PSR"), recommending a total offense level of 26, which included a two-point enhancement for obstruction of justice for each of the four counts, a criminal history category of IV, and an advisory guideline range of 92 to 115 months' imprisonment. PSR ¶ 67, ECF No. 201. Both parties submitted sentencing memoranda to the court. White objected to the obstruction of justice enhancements and requested a downward departure or variance from his guideline range. Sent. Memo, at 2-4, ECF No. 188. The government argued that White should be sentenced as a career offender because he had the requisite number of prior convictions for crimes of violence. Sent. Memo at 7-8, ECF No. 189.

         The court held a sentencing hearing on May 1, 2014. The court overruled the objections of both White and the government. It held that the obstruction of justice enhancement was appropriate because White knew "what [he] had done" but tried to make the jury believe that someone else was responsible. Sent. Hr'g Tr. at 33, ECF No. 214. In addition, the court concluded that White should not be sentenced as a career offender because at the time that he committed the acts at issue in this case, he had been acquitted of wrongdoing in a federal case, so he did not have the requisite number of prior convictions.[3] The court imposed a guideline sentence of 92 months on each of Counts One, Three, and Four and a term of 60 months on Count Two, to run concurrently but consecutive to any other sentences that he had received stemming from other convictions. Judgment at 3, ECF No. 199.

         White appealed his conviction and sentence on multiple grounds, including that the evidence was insufficient to support the verdict and the obstruction of justice enhancement was unwarranted, among others. United States v. White, 810 F.3d 212, 219-32 (4th Cir. 2016). The United States Court of Appeals for the Fourth Circuit affirmed his conviction and sentence. IcL at 232.

         White filed an amended § 2255 motion, raising 13 categories of complaints, which include multiple sub-claims for relief. Each category will be addressed in turn.

         II.

         To state a viable claim for relief under § 2255, a defendant must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). White bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

          A. Ineffective Assistance of Counsel Claims

         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to establish a viable ineffective assistance claim, a defendant must satisfy a two-prong analysis: he must show both that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's alleged deficient performance. Strickland, 466 U.S. at 669. When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir. 2008). Counsel's performance is judged "on the facts of the particular case, " and assessed "from counsel's perspective at the time." Id.

         To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. White's claims of ineffective assistance of counsel do not satisfy Strickland's stringent requirements.

         1. Failing to Present Computer Forensic Evidence (White Claims 1, 2 & 5)

         White argues that he received ineffective assistance because counsel failed to investigate and present to the jury evidence that his Facebook account and email account had been used by others. Although counsel's strategy at trial was that Gnos had used White's email account to send the emails and not White, White argues that counsel should have presented more technical data to the jury regarding the use of his Facebook and email accounts and the use of anonymizer technology. § 2255 Mot. at 15-23, ECF No. 300. This claim is unavailing.

         Although White agrees that his counsel's trial strategy of arguing that Gnos sent the threatening emails was "correct, " he contends that counsel's presentation of the evidence was wholly lacking. § 2255 Mot. at 57, ECF No. 300. However, White admits that counsel hired a computer expert to review the discovery. Id. at 12, Order at 2, ECF No. 75 (granting defense motion for expert). However, counsel decided not to have the expert testify and White presented no evidence that the expert uncovered any exculpatory evidence that should have been presented at trial. Instead, counsel cross-examined the government's witnesses at trial to cast doubt on who authored and sent the emails and had White testify in his own defense. Counsel cross-examined Gnos to try to elicit testimony that she had used White's email accounts, although Gnos denied it. Tr. Trans, at 174, ECF No. 182. In addition, counsel cross-examined the government's witness who testified regarding the use of anonymizer technology, and questioned why White would use technology to hide his identity and then sign the emails with his name. Tr. Trans, at 18-19, ECF No. 235.

         Courts must review defense counsel's decisions regarding the investigation of a case "with an eye for 'reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991) (quoting Strickland, 466 U.S. at 691). The court concludes that counsel's decision to focus on rebutting the government's evidence and not to present evidence from the computer expert was a tactical one. See Sexton v. French 163 F.3d 874, 887 (4th Cir. 1998) ("The decision concerning what evidence should be introduced [in criminal trial proceedings] is best left in the hands of trial counsel, and reasonable tactical decisions by trial counsel in this regard are binding on the defendant.").

         Moreover, although White takes issue with the government's evidence, claiming that it is insufficient to convict him, the jury and the Fourth Circuit found otherwise. Accordingly, the court concludes that counsel exercised professional judgment in representing White, counsel's trial decisions were guided by a "sound strategic motive, " and counsel's representation did not fall below an objective standard of reasonableness. Yarborough v. Gentry, 540 U.S. 1, 8 (2003).

         2. Failure to Raise Authentication of Emails Concerns (White Claim 4)

         White argues that counsel provided ineffective assistance for failing to challenge the authentication of the threatening emails that constituted the basis for his conviction. The Facebook and Yahoo! email records admitted at trial were obtained pursuant to a search warrant and the government submitted a notice regarding their authenticity as records of regularly conducted business activity pursuant to Rule 902(11) of the Federal Rules of Evidence. Notices, ECF No. 99, 101. White is not arguing that the records from Facebook and Yahoo! were provided in error or came from some other email address or Facebook account.

         Instead, White's authentication argument is essentially the same argument that he made at trial, on appeal, and in his current § 2255 petition-that he did not author the emails or Facebook posts and that the government failed to prove that he did. Counsel attempted to cast doubt on whether White authored the emails by cross-examining witnesses and argued in closing that "he didn't send them." Tr. Trans, at 20, ECF No. 235. The jury heard the evidence and concluded that White was responsible, and the Fourth Circuit affirmed that the evidence was sufficient to convict. Accordingly, his counsel did not provide deficient performance by failing to do more to challenge the authenticity of the emails or to request a jury instruction regarding authentication. Strickland. 466 U.S. at 687.

         3. Failure to Challenge Government's Attempts to Frame White (White Claim 6)

         White argues that counsel provided ineffective assistance because he did not challenge the fact that White had been "the target of an FBI-JTTF counterintelligence operation" and that the government has stolen his identity in order to commit crimes and frame him. § 2255 Mot. at 65, 69, ECF No. 300. White has faced numerous federal charges and has been investigated for each one. However, his claims that the Federal Bureau of Investigation ("FBI") targeted him, framed him because of his beliefs, and prevented witnesses from testifying in his defense are "palpably incredible." Blackledge v. Allison. 431 U.S. 63, 76 (1977). He provides no proof, other than his personal observations and assessments of various internet sites, letters he claims were sent to people by the government but in his name, and ...


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