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United States v. Daniells

United States District Court, D. Massachusetts

April 5, 2018

UNITED STATES OF AMERICA,
v.
MITCHELL DANIELLS, Defendant.

          MEMORANDUM OF DECISION

          GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

         The defendant, Mitchell Daniells, is charged with felony firearms offenses under 18 U.S.C. §§ 922(a)(1)(A) and 922(n). He has moved to exclude evidence the government derived from information he provided at a proffer session, as well as evidence obtained from a search of his cellular phone. His argument as to the proffer session is that he agreed voluntarily to provide certain information on his previous lawyer's advice, which advice he now contends amounted to ineffective assistance of counsel in violation of his Sixth Amendment right. As to the cell phone, his claim is that his former lawyer provided the passcode to unlock the phone to the government over his objection, and that also constituted constitutionally ineffective assistance of counsel. The government has opposed the motions. For purposes of the motions, Daniells waived his attorney-client privilege with respect to pertinent communications with his prior counsel. The Court held a three-day evidentiary hearing on the motions, and the parties subsequently submitted supplemental memoranda in support of their respective positions. On March 12, 2018, I denied the motions from the bench, indicating that written findings and rulings of law would follow. This Memorandum sets forth those findings and rulings.

         I. Factual Findings

         Based on the credible testimony and evidence offered at the hearing and in the record, I make the following findings of fact:

         A. Proffer Session

         On June 16, 2015, a grand jury indicted Daniells for possession of a firearm by a person under indictment for a felony offense. 18 U.S.C. § 922(n). When he was arrested two days later, agents seized an Apple iPhone 5S from him in a search incident to the arrest. The phone was passcode-protected with a four-digit numeric code. The phone's mobile operating system was Apple's iOS version 7.1.2. Agents asked the defendant for the passcode, but he declined to provide it.

         A detention hearing was held before a magistrate judge on June 25 and July 1, 2015. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Special Agent Brian Oppedisano testified generally about the investigation into Daniells' activities, telling the court that investigators believed Daniells had, personally or through straw buyers, purchased approximately fourteen handguns in Pennsylvania. Two of those firearms had been recovered in other States (Massachusetts and New York) with their serial No. obliterated. Special Agent Oppedisano testified that a cooperating witness had told investigators that he had purchased eight firearms in Pennsylvania for Daniells, and the statement was apparently corroborated to some degree by firearms transaction records. Additionally, prior to Daniells' indictment, investigators had obtained cell site location data for Daniells' cell phone pursuant to an order issued under 18 U.S.C. § 2703(d), which appeared to corroborate that Daniells had been in Pennsylvania on at least one date when the cooperating witness said that he had acted as a straw buyer there for Daniells. The cooperating witness also told agents that another person had accompanied Daniells to Pennsylvania on at least one occasion, but agents thought the witness had identified the wrong person. They were still unsure who that person had been.

         Accompanied by his lawyer, Michael Schneider, and acting consistently with Schneider's advice, Daniells participated in a proffer session with prosecutors and agents on July 15, 2015. At the time, he was charged only with a violation of 18 U.S.C. § 922(n). Although the case was still at an early stage, counsel was aware both from the detention hearing, see supra, and from discovery that the government had information that might warrant additional charges.

         Before the proffer session, Schneider had several meetings with the defendant. He discussed with Daniells various strategies, including both pleading guilty to minimize sentencing damage and proceeding to a jury trial. He explained that it was his opinion that the case against Daniells was strong and that the prosecutor was considering obtaining a superseding indictment against him for violating either § 922(a)(1)(A) or § 922(a)(6), or both. Schneider advised Daniells that if he made a satisfactory proffer to the government, he might avoid exposure to additional charges. The government expressed its interest in getting illegal guns “off the street, ” and Schneider had the impression that if the defendant provided information helpful to that goal, the prosecutor might not only decline to supersede, but also might be more lenient in his sentencing calculations and recommendation. The defendant agreed to proffer, but told Schneider that he was not willing to provide any names of persons to the government.

         Schneider also explained the proffer process. He told the defendant that during the proffer session, Daniells would be “queen for a day, ” which meant that he would decide what to say or not say and that his statements during the proffer could not be introduced against him at trial other than to rebut contrary testimony.[1]

         Prior to the session, the government provided a standard proffer letter agreement. It was dated July 6, 2015, and was signed by both Schneider and Daniells the day of the proffer session, July 15, 2015. The agreement included standard language regarding derivative use:

The government may make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information provided by Mitchell Daniells in the course of the proffer. Any evidence directly or indirectly derived from the proffer may be used against him and others in any criminal case or other proceeding. This provision is necessary in order to eliminate the possibility of a hearing at which the government would have to prove that the evidence it would introduce is not tainted by any statements made or other information provided during the proffer. See Kastigar v. United States, 406 U.S. 441 (1972).

(Evidentiary Hr'g Ex. 23 ¶ 2.) Consistent with his usual practice, Schneider explained the agreement to Daniells, including the derivative use paragraph, before Daniells signed the letter. The prosecutor also explained the agreement to Daniells at the proffer session.

         During the proffer, agents asked Daniells the identity of the person who, according to the cooperating witness, had driven with him to Pennsylvania. The defendant requested a break to consult with Schneider. During the break, the defendant expressed concern about providing the person's name. When Schneider asked whether the person had any involvement in or knowledge of potentially criminal gun purchases, Daniells responded that the person had just been along for the ride and did not do or know anything. It is not clear from the evidence exactly what Schneider's advice was, but from the fact that when the session resumed Daniells provided the name, it is a fair inference that he advised the defendant essentially that it would be okay to provide the name if the person was not a likely source of evidence for the government. Schneider understood that the more helpful the defendant could be, the better result the defense might be able to achieve with respect to avoiding a superseding indictment and sentencing enhancement. He did not view providing the name of an uninvolved and uniformed person as particularly significant or likely to be adverse to Daniells based on what Daniells had told him, namely, that the individual was “an idiot, he was a pothead, and he was just along for the ride.” (Tr. Evidentiary ...


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