UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. Criminal Action No. 19-203 (CKK) EDWARD MAGRUDER, Defendant.
MEMORANDUM OPINION (December 6, 2021) In this criminal action, Defendant Edward Magruder pled guilty to unlawful possession
with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). Pursuant to a plea agreement under Federal Rules of Criminal Procedure 11(c)(1)(C),
Defendant Magruder and the Government agreed that a sentence between 144 months and 180
months of incarceration, followed by five years of supervised release, was an appropriate sentence.
Since Defendant Magruder pled guilty on October 25, 2019, he has filed two motions to
withdraw his guilty plea, both of which have been denied by this Court. After denying Defendant
Magruder’s second motion to withdraw his guilty plea, the Court scheduled a sentencing hearing
to take place on February 23, 2021. The sentencing did not go forward; instead, Defendant
Magruder requested permission to file “supplemental briefing” on his second motion to withdraw
his guilty plea. The Court permitted Defendant to do so. To date, Defendant Magruder has now
filed nine pleadings regarding the same Second Motion to Withdraw his Guilty Plea, arguing that
various defects with a warrant authorizing law enforcement to obtain location data from Defendant
Magruder’s cell phone service provider, Verizon, and the affidavit submitted in support thereof
require the Court to invalidate the warrant, his arrest, and his guilty plea under oath. Related to
some of the alleged deficiencies with the warrant, Defendant Magruder has also filed a [57] Motion for an Order to Verizon, in which Defendant Magruder seeks to obtain the materials transmitted
to and from Verizon regarding the FBI’s court-authorized collection of location data from one of
his cell phones. In his supplemental briefing, Defendant Magruder further contends that law
enforcement lacked probable cause to arrest him and to search his backpack, which contained two
“bricks” of heroin.
Notably missing from any of Defendant Magruder’s numerous pleadings is any assertion
that his plea hearing was tainted or that he is actually innocent of the crime to which he pled guilty
under oath. Accordingly, the Court’s conclusion from its earlier Memorandum Opinions denying
Defendant Magruder’s motions to withdraw his plea remains unchanged; he has failed to present
a “fair and just reason” for permitting him to withdraw his guilty plea. Upon consideration of the
pleadings, 1 the relevant legal authorities, and the record as a whole, the Court DENIES Defendant
Magruder’s motion to withdraw his guilty plea and DENIES his motion seeking an order to
Verizon.
1 The Court’s consideration has focused on the following documents: x Def.’s 2d Mot. to Withdraw Guilty Plea, ECF No. 46 x Gov.’s Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea, ECF No. 47; x Def.’s Reply to Opp’n to 2d Mot. to Withdraw Guilty Plea, ECF No. 48; x Def.’s Suppl. Mot. to Withdraw Guilty Plea, ECF No. 51; x Def.’s Add’l Suppl., ECF No. 52; x Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea, ECF No. 53; x Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea, ECF No. 58; x Def.’s Final Suppl. Mot. to Withdraw Plea of Guilt, ECF No. 59; x Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt, ECF No. 60; x Def.’s Reply to Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt, ECF No. 61; x Def.’s Suppl. Reply to Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt, ECF No. 62; and x Def.’s [2d] Suppl. Reply to Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt, ECF No. 63. 2 I. BACKGROUND
Pursuant to the Criminal Complaint in this action, filed on June 10, 2019, Defendant
Magruder was involved in “the distribution of large quantities of narcotics.” Compl. Stmt. of
Facts at 1, ECF No. 1-1. The Complaint alleges that Defendant Magruder would travel from
Washington, D.C. to New York to acquire narcotics. Id. In May 2019, the FBI obtained a
warrant and court order authorizing it to collect from Verizon the prospective geolocation data
associated with Defendant Magruder’s cell phone. Id.; see Gov.’s Opp’n to Def.’s 2d Mot. to
Withdraw Guilty Plea Ex. 1, Warrant, ECF No. 47-1.
On June 7, 2019, Defendant Magruder traveled to New York by bus. Compl. Stmt. of
Facts at 1. FBI agents “observed him for an hour” making “calls using a flip phone (not the phone
that was being tracked).” Id. He had a blue backpack. Id. On the next day, Defendant
Magruder returned to Washington, D.C. by bus. Id. Upon his arrival at Union Station, he was
stopped by FBI agents who searched his backpack. Id. The agents found a “brick of compressed
tan powder,” weighing approximately 1,200 grams, and “wrapped in duct tape and several plastic
bags,” which “field tested positive for the presence of opiates.” Id. Defendant was arrested, and
“advised of his rights which he chose to waive and make a statement.” Id. at 2. He stated that
he had traveled to New York “several times” to acquire heroin, which he then sold in smaller
quantities in Washington, D.C. Id.
Defendant Magruder was charged by Indictment with one count of possessing with intent
to distribute a mixture and substance containing one kilogram or more of heroin, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Indictment, ECF No. 5. Although Defendant Magruder
initially expressed interest in proceeding to trial on this charge, see Minute Order (Sept. 13, 2019),
his counsel subsequently informed the Court that the Government had made a plea offer, and
3 requested that Defendant Magruder be afforded time to consider it. See Minute Order (Oct. 4,
2019). At a status hearing on October 8, 2019, Defendant Magruder indicated that he intended to
accept the Government’s plea offer. See Minute Order (Oct. 8, 2019).
The Government’s plea offer, made under Federal Rule of Criminal Procedure 11(c)(1)(C),
included a recommended sentence between 144 and 180 months, with a mandatory minimum
sentence of 10 years. See Minute Order (Oct. 8, 2019). During the status hearing, Defendant
Magruder’s then-counsel explained that “Mr. Magruder appears to have at least two prior
convictions that, if the Government had filed the [21 U.S.C. §] 851 notices, would have put him
in jeopardy of receiving a mandatory minimum term of incarceration of 25 years.” Hr’g Tr. (Oct.
8, 2019) at 4:20–23, ECF No. 19. Counsel for the Government stated that, even absent a 21
U.S.C. § 851 notice, if Defendant Magruder pled guilty to the indictment, his advisory sentencing
guidelines range would be 262 to 327 months, with a mandatory minimum of 10 years. Id. at
6:14–15. Defense counsel noted that the plea offer would reduce the incarceration time “a
considerable amount.” Id. at 4:24–5:1. Defendant Magruder affirmed that he had received and
reviewed the evidence against him. Id. at 5:6–9.
During the next status hearing on October 22, 2019, the Court explained the Probation
Office’s findings on Defendant Magruder’s criminal history calculation. See Order, ECF No. 6;
Probation Mem., ECF No. 10. The Court also explained that Defendant Magruder would likely
be eligible for a 21 U.S.C. § 851 notice by the Government, increasing the mandatory minimum
sentence to 25 years. Hr’g Tr. (Oct. 22, 2019) at 2:8–21, ECF No. 20. During the status hearing,
Defendant Magruder, through his counsel expressed some confusion as to the Rule 11(c)(1)(C)
plea. Id. at 7:13–14. The Court explained that Defendant Magruder faced a mandatory
minimum of 10 years based on the charge contained in the Indictment. Id. at 8:4–15. If the
4 Government filed a 21 U.S.C. § 851 notice, for which it appeared Defendant Magruder was
eligible, the mandatory minimum would increase to 25 years. Id. at 8:16–9:5. The Court stated
that it had no control over the mandatory minimums and could not sentence Defendant Magruder
to a lesser sentence than the mandatory minimum. Id. at 9:3–11. The Court further explained
that if the Rule 11(c)(1)(C) plea was accepted by the defendant and the Court, Defendant
Magruder’s sentence would have to be between 144 and 180 months, of which 120 months would
be a mandatory minimum. Id. at 8:11–15. The Court explained to Defendant Magruder “this is
your decision. Your counsel can go over the evidence with you, can go over what the choices are
that you have, what the consequences are, can give you advice; and you can decide to accept it or
not.” Id. at 12:12–15. After reviewing the effect of the plea offer, Defendant Magruder
confirmed that all requested discovery had been provided. Id. at 12:5–9. He also stated that he
was prepared to go forward with accepting the plea agreement. Id. at 13:14–17.
On October 25, 2019, Defendant Magruder was placed under oath and pled guilty to a
violation of 21 U.S.C. §§ 841(a) and (b)(1)(A), accepting the Rule 11(c)(1)(C) plea agreement,
setting a sentence of 144 to 180 months. See Minute Entry (Oct. 25, 2019); Plea Agreement § 4,
ECF No. 13. In so doing, Defendant Magruder agreed that he had traveled from Washington,
D.C. to New York on “at least seven separate occasions” between December 2018 and May 2019.
Plea Agreement § 2; Gov.’s Proffer of Proof at 3, ECF No. 12. Before each trip, he
“communicated with a person in Colombia.” Gov.’s Proffer of Proof at 3. Defendant Magruder
agreed that prior to his arrest, he had traveled to New York to “receive heroin,” that he usually
received “two bricks at a time” and that he then “sold heroin in smaller quantities” in Washington,
D.C. Id. at 3–4. The Court accepted the plea but held in abeyance accepting the proposed
sentence until after the Court could review the presentence report.
5 On November 20, 2019, the Court received a letter from Defendant Magruder which was
dated October 25, 2019. See Letter from Def., ECF No. 17. Therein, Defendant Magruder stated
that he was not satisfied with his counsel who represented him at the plea hearing based, in part,
on his counsel’s alleged failure to properly investigate the case. Id. Defendant Magruder also
expressed some confusion as to whether or not his plea agreement contained a mandatory
minimum of 10 years. Id. That same day, Defendant Magruder’s then-counsel filed a motion to
withdraw. See Mot. to Withdraw, ECF No. 15.
The Court appointed Defendant Magruder new counsel, scheduled a status conference in
the case, allowing adequate time for new counsel to prepare, and stayed the deadlines for the
sentencing briefing. See Minute Order (Dec. 6, 2019). On December 12, 2019, the Court held a
status conference during which Defendant Magruder was represented by his new counsel.
Defendant Magruder expressed that he was satisfied with his new counsel. The Court set a further
status conference to allow Defendant Magruder time to speak with his new counsel about how to
proceed. See Minute Order (Dec. 12, 2019). On January 27, 2020, the Court held another status
conference during which Defendant Magruder indicated his intention to file a motion to withdraw
his guilty plea. The Court set a briefing schedule. See Minute Order (Jan. 27, 2020).
Prior to the filing of his first motion to withdraw his guilty plea, Defendant Magruder’s
new counsel filed a motion to withdraw due to a fundamental disagreement on the posture of the
case. See Mot. to Appoint New Def. Counsel, ECF No. 21. On March 6, 2020, the Court granted
the motion to withdraw and appointed a third new counsel for Defendant Magruder. See Minute
Order (Mar. 6, 2020). The Court further vacated the briefing schedule for the motion to withdraw
the guilty plea and set a new status hearing date. Id.
6 Prior to the next scheduled status hearing, the Court ordered Defendant Magruder to file a
notice indicating if he intended to proceed with moving to withdraw his guilty plea so that the
Court could set further proceedings. Minute Order (Mar. 17, 2020). On May 6, 2020, Defendant
Magruder filed a Notice indicating his intent to move to withdraw his guilty plea. Def.’s Notice,
ECF No. 26. Defendant Magruder filed his first motion to withdraw his guilty plea on May 29,
2020. See Def.’s (1st) Mot. to Withdraw Plea of Guilty, ECF No. 27. In that motion, Defendant
Magruder argued that his prior counsel (who represented him at the time of his plea hearing) was
ineffective for failing to provide him with pertinent discovery and that he was coerced into
accepting a Rule 11(c)(1)(C) plea. See id. The Court denied Defendant Magruder’s First Motion
to Withdraw on July 20, 2020, concluding that he had not demonstrated that he was prejudiced by
any failure by his previous counsel to provide him with relevant discovery. See United States v.
Magruder (“Magruder I”), 19-cr-203 (CKK), 2020 U.S. Dist. LEXIS 127194, at *8–9 (D.D.C.
July 20, 2020). The Court also found that Defendant Magruder had not demonstrated that he had
been coerced into entering the plea agreement. Id. at *13–16.
After the Court denied Defendant Magruder’s First Motion to Withdraw, the parties jointly
proposed a schedule for proceeding with sentencing, which the Court adopted. See Joint Status
Rep. ECF No. 39; Order, ECF No. 40. The Court scheduled Defendant Magruder’s sentencing
hearing for January 7, 2021 at 10:00 a.m. See Order, ECF No. 40.
In the interim, Defendant Magruder made additional discovery requests to the Government,
including requests for two warrants authorizing the FBI to obtain prospective GPS location data
from Verizon as to two cell phones. See Def.’s 2d Mot. to Withdraw Guilty Plea at 1; Gov.’s
Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea at 2. In responding to these requests, the
Government learned that a return had not been filed for one of the two warrants. Def.’s 2d Mot.
7 to Withdraw Guilty Plea at 1; Gov.’s Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea at 2. The
application for the warrant at issue (the “Warrant”) and supporting affidavit (the “Affidavit”) had
been filed with the court on May 10, 2019 and granted by the magistrate judge on the same date.
See Gov.’s Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea Ex. 1, ECF No. 47-1. The magistrate
judge also issued an Order (the “Order”) authorizing FBI agents to “ascertain the physical location
of the cellular telephone . . . with service provided by Verizon” and requiring “Verizon, the current
service provider for the target telephone, [to] assist agents of the FBI by providing all information,
facilities, and technical assistance needed to ascertain the Requested Location Information[.]”
Gov.’s Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea Ex. 3, at 3, ECF No. 47-4. Both parties
agree that the Warrant allowed law enforcement agents to track Defendant Magruder on the days
leading up to his arrest on June 9, 2019. Def.’s 2d Mot. to Withdraw Guilty Plea at 1; Gov.’s
Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea at 2.
On January 5, 2021, two days before his scheduled sentencing hearing, Defendant filed his
Second Motion to Withdraw Plea of Guilty based on the “newly discovered evidence” that a return
had not been filed for the Warrant and on other purported errors with the Warrant. See Def.’s 2d
Mot. to Withdraw Guilty Plea. The Court vacated Defendant Magruder’s sentencing hearing and
set a briefing schedule on Defendant’s motion. See Minute Order (Jan. 5, 2021).
The Court denied Defendant’s Second Motion to Withdraw Guilty Plea on February 12,
2021, see United States v. Magruder (“Magruder II”), 19-cr-203 (CKK), 2021 U.S. Dist. LEXIS
27073 (D.D.C. Feb. 12, 2021) and scheduled a sentencing hearing for February 23, 2021, see
Order, ECF No. 49. The sentencing hearing did not go forward; instead, Defendant Magruder
requested supplemental briefing regarding his Second Motion to Withdraw Guilty Plea. See
Minute Order (Feb. 23, 2021). The Court set a supplemental briefing schedule. Id. Upon
8 review of the pleadings filed in accordance with that schedule, the Court observed that Defendant
Magruder raised in his Supplemental Reply “arguments which he has not previously raised in any
of his four earlier pleadings regarding the same pending motion.” Minute Order (June 1, 2021).
The Court ordered Defendant Magruder to “file a FINAL supplement” by June 22, 2021—raising
“any and all claims in support of his second motion to withdraw his guilty plea—before eliciting
a response to his new arguments from the Government. Id. The Court explicitly warned
Defendant Magruder that it would “not entertain any future claims from Defendant after this filing
on June 22, 2021.” Id. Defendant Magruder filed his “final” supplement on June 22, 2021. See
Def.’s Final Suppl. Mot. to Withdraw Plea of Guilt. The Government filed its response on June
24, 2021. See Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt.
Notwithstanding the Court’s clear order that it would not entertain any claims submitted
by Defendant Magruder after his June 22, 2021 filing, Defendant Magruder has filed three
additional pleadings since that deadline: a reply and two “supplemental” replies to the
government’s June 24, 2021 response. Def.’s Reply to Gov.’s Resp. to Def.’s Final Suppl. to 2d
Mot. to Withdraw Plea of Guilt; Def.’s Suppl. Reply to Gov.’s Resp. to Def.’s Final Suppl. to 2d
Mot. to Withdraw Plea of Guilt; Def.’s [2d] Suppl. Reply to Gov.’s Resp. to Def.’s Final Suppl. to
2d Mot. to Withdraw Plea of Guilt.
II. LEGAL STANDARD
Under Federal Rule of Criminal Procedure 11, a defendant is permitted, before a sentence
is imposed, to withdraw a guilty plea if the defendant can show “a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Although presentence withdrawal
motions should be “‘liberally granted,’ they are ‘not granted as a matter of right.’” United States
v. Thomas, 541 F. Supp. 2d 18, 23 (D.D.C. 2008) (quoting United States v. Ahn, 231 F.3d 26, 30
9 (D.C. Cir. 2000)). “The decision to grant a withdrawal is within the court’s discretion.” Id.
(citing United States v. Tolson, 372 F. Supp. 2d 1, 8 (D.D.C. 2005), aff’d, No. 05-3102, 2008 WL
441764, at *1 (D.C. Cir. Jan. 24, 2008)).
When ruling on a motion to withdraw a guilty plea, courts in this Circuit consider the
following factors: “(1) whether the defendant asserted a viable claim of innocence; (2) whether the
delay between the guilty plea and the motion to withdraw has substantially prejudiced the
government’s ability to prosecute the case; and (3) whether the guilty plea was somehow tainted.”
United States v. Taylor, 139 F.3d 924, 929 (D.C. Cir. 1998) (internal quotation marks and citation
omitted). The third factor is viewed as the “most important.” Id. (internal quotation marks and
citation omitted).
III. DISCUSSION
A. Tainted Plea
The Court first considers whether Defendant Magruder’s guilty plea “was somehow
tainted.” United States v. West, 392 F.3d 450, 458 (D.C. Cir. 2004) (internal citations omitted).
This factor is “the most important” and requires “a showing that the district court’s taking of the
guilty plea either failed to conform to the requirements of Federal Rule of Criminal Procedure 11
. . . or was in some other sense constitutionally deficient.” Tolson, 372 F. Supp. 2d at 9 (internal
citations and quotation marks omitted). A defendant’s failure to “demonstrate some
constitutional or procedural error in the taking of [his] guilty plea . . . will often justify a court’s
denial of a motion to withdraw that plea even where the movant makes out a legally cognizable
defense to the charges.” Id.; see also United States v. Cray, 47 F.3d 1203, 1208 (D.C. Cir. 1995)
(“[A] defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy
burden if he is ultimately to prevail [on withdrawing his plea].”).
10 Once again, Defendant Magruder does not argue that his plea did not conform to the
requirements of Rule 11, or that there was any constitutional defect in the plea itself. Rather,
Defendant Magruder’s arguments rest on purported defects with the Warrant, the Affidavit, and
law enforcement’s probable cause to arrest him and search his backpack, suggesting that these
errors would provide a legal basis to challenge his arrest and the search of his backpack. See, e.g.,
Def.’s 2d Mot. to Withdraw Guilty Plea at 1–2, 4; Def.’s Suppl. Mot. to Withdraw Guilty Plea at
1–2; Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea at 3–5.
Because Defendant Magruder fails to address at all how these purported errors “tainted” his guilty
plea, the Court finds that he has failed to carry his burden on this “most important” factor. The
Court shall nonetheless consider the remaining two factors.
B. Legally Cognizable Defense
A defendant seeking to withdraw a guilty plea must “affirmatively advance an objectively
reasonable argument that he is innocent, for he has waived his right simply to try his luck before a
jury.” United States v. McCoy, 215 F.3d 102, 106 (D.C. Cir. 2000) (quoting Cray, 47 F.3d at
1207) (internal quotation marks omitted). Even when a court views this factor under the lens of
“legally cognizable defense,” as opposed to “viable claim of innocence,” a defendant still needs to
“affirmatively advance an objectively reasonable argument that he is innocent[.]” United States
v. Robinson, 587 F.3d 1122, 1131 (D.C. Cir. 2009); see McCoy, 215 F.3d at 106 (a defendant
seeking to withdraw a guilty plea “must make out a legally cognizable defense to the charge against
him”). But “the assertion of a legally cognizable defense, standing alone, does not impel a district
court to permit withdrawal of a plea.” United States v. McKoy, 645 F.2d 1037, 1039 (D.C. Cir.
1981) (citing United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975)). “If withdrawal were
automatic in every case where the defendant merely asserts legal innocence . . . the guilty plea
11 would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s
whim. In fact, however, a guilty plea is no such trifle, but ‘a grave and solemn act’ which is
‘accepted only with care and discernment.’” United States v. Basu, 531 F. Supp. 2d 48, 54
(D.D.C. 2008) (quoting Barker, 514 F.2d at 221; Brady v. United States, 397 U.S. 742, 748
(1970)).
None of Defendant Magruder’s many pleadings contain any assertion that he is “actually
innocent” nor do they “disclaim[ ] his admission of guilt at the plea proceeding.” United States v.
Curry, 494 F.3d 1124, 1129 (D.C. Cir. 2007). Without so much as a general denial of guilt, the
Court finds that this factor does not support a withdrawal of Defendant Magruder’s guilty plea.
See id.
At most, Defendant Magruder asserts his “legal innocence” suggesting that he would have
filed a motion to suppress and/or a motion for a Franks hearing and speculating that the Court
would have ruled in his favor on both motions, resulting in the invalidation of the Warrant and his
arrest, and/or the suppression of the heroin found in his backpack. See, e.g., Def.’s 2d Mot. to
Withdraw Guilty Plea at 2; Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw
Guilty Plea at 2. But Defendant Magruder’s assertion of “legal innocence” on the basis of
potentially successful motions is misplaced; “a potentially successful motion to suppress evidence
is not equivalent to an assertion of legal innocence.” United States v. Yansane, 370 F. Supp. 3d
580, 591 (D. Md. 2019) (emphasis added); see United States v. Wintons, 468 F. App’x 231, 233
(4th Cir. 2012) (holding that “suppression of evidence does not amount to legal innocence”);
United States v. Sanders, 125 F. App’x 685, 687 (6th Cir. 2005) (“We find no published precedent
for the proposition that a motion to withdraw a guilty plea entered 75 days earlier can be supported,
absent an assertion of actual innocence, by the claim that a motion to suppress should have been
12 filed.”); United States v. Neal, 230 F.3d 1355 (4th Cir. 2000) (holding that a belated desire to file
a motion to suppress does not constitute a credible assertion of legal innocence warranting
withdrawal of a guilty plea); Vasquez v. United States, 279 F.2d 34, 35-37 (9th Cir. 1960)
(affirming the denial of a motion to withdraw a guilty plea when the defendant argued that he had
discovered after the plea that he might have a meritorious legal defense through a suppression
motion). And even in cases “calling only for a legally cognizable defense,” the defendant must
have “effectively denied his culpability,” which Defendant Magruder has not done. United States
v. Leyva, 916 F.3d 14, 24 (D.C. Cir. 2019). For the reasons below, none of Defendant Magruder’s
reasons for his claimed “legal innocence” supply a viable legal defense or a reason to permit him
to withdraw his guilty plea.
1. Affidavit
Defendant Magruder first attempts to revive arguments pertaining to purported errors with
the Affidavit, which the Court previously rejected as a basis for permitting Defendant Magruder
to withdraw his guilty plea. Specifically, Defendant Magruder contends that the Affidavit
incorrectly indicates that calls he made to his “Colombian contact” occurred in April 2019, but
they actually took place in March 2019. Def.’s Final Suppl. Mot. to Withdraw Plea of Guilt at 4.
He argues that the incorrect timing gave the magistrate judge “the improper impression that recent
calls had occurred between Magruder and the Colombian contact” and that, in including this
incorrect information, the affiant “intentionally mislead [sic] the magistrate.” Id. Defendant
asserts that this “deliberate action to deceive” merits a hearing under Franks v. Delaware, 438 U.S.
154 (1978) and “warrants suppression of the data recovered from the warrant and dismissal of the
charges against Magruder.” Id. at 4–5.
13 The Court has previously addressed Defendant Magruder’s argument that this factual
mistake in the Affidavit warrants any relief, much less “dismissal of the charges” or withdrawal of
his guilty plea. See Magruder I, 2020 U.S. Dist. LEXIS 127164, at *9–11. Under Franks, in
order to successfully challenge an affidavit, the defendant must show that the false statements in
the document were made by the affiant “knowingly and intentionally, or with reckless disregard
for the truth” and that the false statements were “necessary to the finding of probable cause.” 438
U.S. at 155. Notably, “[a]llegations of negligence or innocent mistake are insufficient.” Id. at
171; see also United States v. Lopez, No. 1:17-CR-269, 2018 WL 1290415, at *10 (N.D. Ohio
Mar. 13, 2018), aff’d, 769 F. App’x 288 (6th Cir. 2019) (holding a single false statement is
insufficient to support a Franks hearing); United States v. West, 503 F. Supp. 2d 192, 194 (D.D.C.
2007) (refusing a Franks hearing where the mistake in the affidavit was small and not material);
United States v. Ali, 870 F. Supp. 2d 10, 32 (D.D.C. 2012) (denying a Franks hearing where
potentially negligent omissions in an affidavit were not material).
As with his earlier pleadings, Defendant Magruder has failed to cite to any legal authority
supporting his position that the date error in the Affidavit would have been sufficient for a Franks
hearing or that including the correct date would have defeated the magistrate judge’s finding of
probable cause to collect GPS data. Magruder I, 2020 U.S. Dist. LEXIS 127164, at *10. Nor
has Defendant Magruder come close to satisfying his burden that the error he identifies was “made
knowingly and intentionally, or with reckless disregard for the truth.” United States v. Becton,
601 F.3d 588, 594 (D.C. Cir. 2010) (quoting United States v. Richardson, 861 F.2d 291, 293 (D.C.
Cir. 1988) (per curiam)). His allegation of the affiant’s “deliberate action to deceive,” Def.’s
Final Suppl. Mot. to Withdraw Plea of Guilt at 5, rests on mere speculation, unsupported by any
“offer of proof.” United States v. Gaston, 357 F.3d 77, 80 (D.C. Cir. 2004). Accordingly,
14 Defendant Magruder has failed to demonstrate that he is entitled to a Franks hearing, or that the
incorrect date included in the Affidavit provides a legally cognizable defense supporting any viable
claim of innocence.
2. Warrant & Order to Verizon
Defendant next contends that he is “legally innocent” based on alleged errors with the
Warrant, contending that it authorized the collection of content from his phone that was
unsupported by probable cause and that it allowed Verizon to collect and transmit such information
to the FBI. He also argues that the magistrate judge’s probable cause determination rested on
stale evidence. As set forth below, neither argument provides a viable legal defense justifying
withdrawal of Defendant Magruder’s guilty plea.
First, Defendant Magruder reiterates the argument made in his Second Motion to Withdraw
that the Warrant is overbroad because the scope of the materials sought by the Warrant exceeds
the scope of the supporting Affidavit, which only related to “information about the location of the
cellular telephone.” Def.’s 2d Mot. to Withdraw Guilty Plea at 2–3, ECF No. 46 (emphasis
added). He contends that the Warrant lists as “property to be seized” two categories of property
not addressed in the supporting Affidavit: (1) address books, contact and buddy lists, calendar data,
pictures, and files; and (2) text messages including content, destination, and original phone
numbers from June 2018 to May 2019. Id. at 3. Defendant Magruder argues that the Warrant,
therefore, sought material “not supported by probable cause” and “hence all data obtained pursuant
to the warrant, including the surveillance, seizure, and arrest of Magruder as well as the search and
seizure of the drugs found in the backpack was illegal.” Id. at 4.
In response, the Government indicated that it did not transmit the Warrant containing the
list of items cited by Defendant Magruder to Verizon. Gov.’s Opp’n to Def.’s 2d Mot. to
15 Withdraw Guilty Plea at 5. Rather, the FBI transmitted to Verizon only the Order issued by the
magistrate judge, which explicitly narrowed the permitted search to “ascertaining the physical
location of the target telephone” and “expressly exclude[ed] the contents of any communications
conducted by the user(s) of the target telephone.” Id.; see id, Ex. 1, Order at 2, ECF No. 47-2
(ordering that “agents of the FBI. . . may obtain the Requested Location Information concerning
the target telephone . . . All of said authority is expressly limited to ascertaining the physical
location of the target telephone and expressly excluding the contents of any communications
conducted by the user(s) of the target telephone.”); Ex. 2, Verizon Wireless Carrier Request Form,
ECF No. 47-4 (indicating “Criminal Court Order” as source of “legal authority” for obtaining
“GPS Pings”). Accordingly, even if the Warrant contained an erroneous or overly broad list of
items to be seized, Verizon did not rely on the Warrant or collect the two categories of information
listed by Defendant. Gov.’s Opp’n to Def.’s 2d Mot. to Withdraw Guilty Plea at 6–7. Rather,
Verizon relied on the Order, which authorized only disclosure of location data—and the
Government received only that information to track Defendant’s location. Id. The Court
previously concluded that even if the Warrant erroneously listed as “items to be seized” cell phone
content that was not addressed in the Affidavit, the Government had provided sufficient evidence
to demonstrate that neither Verizon nor the Government collected information beyond the cell
phone’s location data. See Magruder II, 2021 U.S. Dist. LEXIS 27073, at *20.
Since the Court’s prior ruling, the Government has provided to Defendant Magruder’s
counsel additional “email communications from the FBI, in which the FBI noted that they believe
they only sent over [to Verizon] the GPS Order[.]” Def.’s Suppl. Mot. to Withdraw Guilty Plea
at 2 n.1; Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea at 5. Notwithstanding
these communications and the Court’s previous conclusion, Defendant Magruder insists that “the
16 Warrant documents were . . . separately sent to Verizon,” that “Verizon complied and sent the
requested material directly to [FBI] Agent Weatherhead,” and that this was done to “hide that
material was obtained pursuant to the Warrant documents which law enforcement should not have
received.” Def.’s Suppl. Mot. to Withdraw Guilty Plea at 2 n.1. The basis for Defendant
Magruder’s speculation derives from a letter his counsel sent to him, summarizing her
conversation with the Government’s counsel in which she conveyed that “the phone company
accepted the Order and the Warrant documents and did not question or request further documents,
or an additions to Attachment B [to the Warrant], to provide the prospective geolocation data.”
Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea Ex. 3, ECF No.
56-4. Defendant Magruder contends that this letter shows that “the warrant documents
themselves” were provided to Verizon. See Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d
Mot. to Withdraw Guilty Plea at 1–2. The Government disputes Defense counsel’s
characterization of the conversation. See Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw
Guilty Plea at 5.
Regardless of the content of counsel’s conversation, Defendant Magruder has provided no
basis beyond mere speculation that information other than location data was ever provided by
Verizon to the FBI or that the FBI ever relied on any such “extra” information to track Defendant
Magruder’s location during the time leading to his arrest. Defendant Magruder’s “adamant
belief” that Verizon collected and provided information beyond the location data expressly
indicated in the Order is insufficient to rebut the evidence on the record that only the Order was
transmitted to the FBI, and that only the information authorized by the Order was collected by
Verizon and provided to the Government. See Magruder II, 2021 U.S. Dist. LEXIS 27073, at
*19–20; see Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea Exs. 1, 4, ECF
17 Nos. 53-1, 53-4; Def.’s Suppl. Mot. to Withdraw Guilty Plea at 2 n.2. It is also insufficient to
permit Defendant Magruder to engage in a fishing expedition in an effort to verify his “belief,”
and so the Court shall deny his Motion Seeking an Order to Verizon, ECF No. 57. Defendant
Magruder has offered no new arguments or evidence to change the Court’s previous conclusion
that even if the Warrant erroneously listed as items to be seized cell phone content not supported
by the Affidavit, the Government has provided sufficient evidence to demonstrate that neither
Verizon nor the Government collected information beyond the location data authorized by the
Order—information which he does not dispute was supported by probable cause. See Magruder
II, 2021 U.S. Dist. LEXIS 27073, at *20.
In the alternative, Defendant Magruder argues that it was error for the FBI to provide
Verizon only the Order without the Warrant because a “warrant is required to obtain the GPS data
requested.” Def.’s Add’l Suppl. at 1. But none of the cases cited by Defendant stand for the
proposition that the Warrant must be transmitted to a cell phone service provider in order for the
collection of GPS data to pass constitutional muster. See id. (citing United States v. Carpenter,
138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S. 400 (2012); United States v. Maynard,
615 F.3d 544, 562 (D.C. Cir. 2010)). And although Rule 41(f)(C) requires an officer to “make
reasonable efforts to serve a copy of the warrant” on “the person . . . who possessed the information
that was seized or copied,” the Court has previously explained that technical violations of Rule 41
do not automatically mandate suppression of evidence. See Magruder II, 2021 U.S. Dist. LEXIS,
at *15–16; see also United States v. Welch, 811 F.3d 275, 280 (8th Cir. 2016) (“[A Rule 41]
procedural violation is not per se an unreasonable search and seizure in violation of the Fourth
Amendment.”); United States v. Jacobson, 4 F. Supp. 3d 515, 523 (E.D.N.Y. 2014) (“Even where
government officials violate the requirements of Rule 41, courts must be wary in extending the
18 exclusionary rule in search and seizure cases to violations of Rule 41 alone.” (internal citations
and quotation marks omitted)).
Finally, Defendant Magruder argues that the Warrant rests on “stale” evidence that was
insufficient to support a finding of probable cause. See Def’s Reply to Gov.’s Resp. to Def.’s
Suppls. to 2d Mot. to Withdraw Guilty Plea at 3–4. For example, the Affidavit “notes that the
last time Magruder traveled to New York was December 8, 2018, yet the warrant sought GPS data
some 5 months later,” in May 2019. Id. He also notes that, as discussed above, the Affidavit
indicates that Defendant Magruder made several phone calls to his “Colombian contact” in April
2019, which actually took place in March 2019. Id. Defendant Magruder argues that given the
lapse of time between his trip or calls, and the efforts to obtain a Warrant, the information provided
to the magistrate judge was stale. Id.
This argument too is a non-starter. As relevant here, “[c]ourts have been considerably
more lenient in assessing the currency of information supporting probable cause in the context of
extended conspiracies than in the context of single-incident crimes.” United States v. Webb, 255
F.3d 890, 905 (D.C. Cir. 2001). “Staleness” is less likely to defeat the existence of probable cause
where the affidavit alleges ongoing criminal activity. See United States v. Abboud, 438 F.3d 554,
573 (6th Cir. 2006); United States v. McElroy, 587 F.3d 73, 77–78 (1st Cir. 2009); United States
v. Kennedy, 427 F.3d 1136, 1142 (8th Cir. 2005); United States v. Riddick, 156 F.3d 505, 509 (3d
Cir. 1998); United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (collecting cases). Drug
conspiracies, for example, represent “the very paradigm of continuing enterprises for which the
courts have relaxed the temporal requirements of non-staleness.” United States v. Rowell, 903
F.2d 899, 903 (2d Cir. 1990). Here, the Affidavit describes Defendant Magruder’s ongoing
efforts to acquire narcotics in New York and return to Washington, D.C. to sell them. See Aff. ¶¶
19 9–19, ECF No. 28-1; see Gov.’s Resp. to Def.’s Final Suppl. to 2d Mot. to Withdraw Plea of Guilt
at 3–4. These facts provided the magistrate judge a “substantial basis” for concluding that
probable cause existed to obtain prospective GPS information from Defendant Magruder’s phone.
See Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (“[T]he duty of a reviewing court is simply to
ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause
existed.”).
Moreover, in accepting the Government’s plea offer, Defendant Magruder agreed that
“between December 2018 and May 31, 2019, [he] had traveled to New York from Washington,
D.C. on at least seven separate occasions,” that he “stayed in New York for only a short period of
time (a few hours generally) and then returned to Washington, D.C. and that “[s]hortly before each
trip, pen register information showed that he had communicated with a person in Colombia.”
Gov.’s Proffer of Proof at 3. He further agreed that he “traveled to New York to obtain heroin”
“several times” and then “sold the heroin in smaller quantities here in Washington, D.C.” Id. at
3–4. These facts demonstrate that Defendant Magruder was involved in ongoing criminal
activity, countering his contention that any lapse in time between a particular trip to obtain drugs
and the FBI’s efforts to obtain a GPS warrant rests on stale evidence.
For these reasons, Defendant Magruder has failed to demonstrate that any of the purported
errors with the Warrant or Order give rise to a legally cognizable defense that would supply a fair
and just reason for permitting him to withdraw his guilty plea.
3. Arrest and Search
Finally, Defendant Magruder argues that the FBI lacked probable cause to arrest him and
to search his backpack. See Def’s Reply to Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw
Guilty Plea at 4. He contends that these alleged Fourth Amendment violations require that the
20 drugs discovered in his backpack be suppressed—and that suppression of this evidence supports
his assertion that he is “legally innocent” of the crime to which he pled guilty. Id. at 3–4; Def.’s
Final Suppl. Mot. to Withdraw Plea of Guilt at 1–4. But Defendant Magruder is incorrect;
“suppression of evidence does not amount to legal innocence.” Wintons, 468 F. App’x at 233;
see also United States v. Jones, 74 F. App’x 664, 665 (7th Cir. 2003) (distinguishing between
“legal innocence” and successful suppression motion, noting that “[the defendant] does not insist
that he is innocent-rather, he seeks to suppress probative evidence of his guilty by litigating his
suppression motion.”). Defendant Magruder has identified no precedent for the proposition that
a motion to withdraw a guilty plea “can be supported, absent an assertion of actual innocence, by
the claim that a motion to suppress should have been filed.” Sanders, 125 F. App’x at 687.
Rather, “numerous unpublished decisions state the contrary.” Id.; see, e.g., Winton, 468 F. App’x
at 233 (“[S]uppression of evidence does not amount to legal innocence.”); Jones, 74 F. App’x 664,
665 (7th Cir. 2003) (“[T]here is no support for [the defendant’s] assertion that courts should follow
a per se rule that defendants can withdraw guilty pleas if Fourth Amendment issues remain to be
litigated. To the contrary it is well-established that defendants waive such defenses by pleading
guilty.”); United States v. Quijada, 40 F. App’x 344, 345 (8th Cir. 2002) (per curiam) (holding
that the defense counsel’s “failure to seek suppression of [the defendant’s] custodial statements . . .
does not provide a fair and just reason to allow [the defendant] to withdraw his guilty plea.”);
United States v. Schmidt, No. 5:02CR0227, 2003 WL 22225583, at *2–3 (N.D.N.Y. Aug. 13,
2003) (“Defendant’s belated desire to move to suppress evidence seized from his residence evinces
nothing more than a revaluation of the Government's case against him.”).
Moreover, “as the D.C. Circuit has observed, ‘[a] knowing and voluntary guilty plea
ordinarily waives all constitutional claims, including those arising under the Fourth Amendment,
21 relating to the deprivation of rights occurring prior to the entry of the plea.’” United States v.
Flynn, 411 F. Supp. 3d 15, 48 (D.D.C. 2019) (quoting United States v. Fincham, No. 99-3062,
2000 WL 274210, at *1 (D.C. Cir. Feb. 15, 2000)). Rather, “[b]y entering an unconditional guilty
plea, [the defendant] waive[s] his right to object to the constitutionality of the search and seizure.”
Fincham, 2000 WL 274210, at *1 (internal citations omitted); see also United States v. Wright,
452 F. App’x 253, 254 (4th Cir. 20111) (“To the extent Wright seeks to raise a Fourth Amendment
challenge to the initial car stop which led to his arrest, his valid guilty plea waives all
nonjurisdictional antecedent defects, including constitutional challenges to the pretrial
proceedings.”); United States v. Marholz, No. 95-50366, 1996 WL 285704, at *1 (9th Cir. May
29, 1996) (“[A] defendant is not entitled to withdraw a valid plea of guilty on the basis of alleged
constitutional violations that occurred before entry of the plea.”); United States v. Hudak, No.
02CR853, 2003 WL 22170606, at *5 (S.D.N.Y. Sept. 19, 2003) (“By pleading guilty Hudak
waived the right to challenge the constitutionality of the search of his home.”).
As a final point, in contending that the FBI lacked probable cause to arrest him, Defendant
Magruder focuses only on his actions in the hours leading up to his arrest. See Def’s Reply to
Gov.’s Resp. to Def.’s Suppls. to 2d Mot. to Withdraw Guilty Plea at 4. But he ignores the
extensive investigation in the months preceding his arrest. As recounted by the Government, the
arresting officer in this case had detailed knowledge about Defendant Magruder’s relationship and
contacts with an identified drug trafficker (including based on intercepted wiretaps), his pattern of
contacting that person before he traveled to New York, and his repeated trips from Washington,
D.C. to New York, each of which lasted only a short duration. See Gov.’s Resp. to Def.’s Final
Suppl. to 2d Mot. to Withdraw Plea of Guilt at 7–8. Defendant Magruder does not dispute any of
these facts; he agreed to each of them in pleading guilty. Gov.’s Proffer of Proof at 2–4.
22 Defendant Magruder’s challenges to his arrest and the search of his backpack do not
support a finding that he is “legally innocent” of the charge to which he pled guilty, and do not
provide a basis for permitting him to withdraw his guilty plea.
C. Prejudice from Delay
As a final factor, the Court considers whether or not the delay between the guilty plea and
the motion to withdraw has substantially prejudiced the Government’s ability to prosecute the case.
This factor “has never been dispositive in our cases.” Curry, 494 F.3d at 1128 (upholding denial
of withdrawal of guilty plea even though the Government did not argue prejudice) (quoting United
States v. Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003)). Although the Government here does not
argue that it would be prejudiced by Defendant Magruder’s withdrawal of his guilty plea, his
motion to withdraw remains insufficient as he has failed to establish that his plea was tainted or
that he has a viable claim of innocence or a cognizable defense.
The Court further observes that more than two years have passed since Defendant
Magruder’s plea hearing, and the Court has allowed Defendant Magruder multiple opportunities
to raise arguments in support of his efforts to withdraw his guilty plea—and has even considered
his pleadings filed after the Court’s explicit directive that it would not entertain any additional
claims submitted by Defendant Magruder. See Minute Order (June 2, 2021). The Court shall
not permit Defendant Magruder to further delay his sentencing in this case, and shall require the
parties to submit a joint status report proposing next steps for proceeding with sentencing, as
indicated in the accompanying Order.
D. Hearing
Generally, when a defendant seeks to withdraw a guilty plea, “the district court should hold
an evidentiary hearing to determine the merits of the defendant’s claims.” Taylor, 139 F.3d at
23 932. Here, the Court finds that an evidentiary hearing is unnecessary. As detailed above, the
Court’s conclusions rely on evidence submitted by the Government, whereas Defendant
Magruder’s claims hinge largely on speculation unsupported by any evidence in the record. An
evidentiary hearing, therefore, would not alter the Court’s findings.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant Magruder’s Motion to Withdraw
Guilty Plea and DENIES Defendant’s Motion for an Order to Verizon. Defendant Magruder has
failed to show that his plea was tainted or that he has a viable claim of innocence or a cognizable
defense to the charge to which he pled guilty. An appropriate Order accompanies this
Memorandum Opinion.
Date: December 6, 2021
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge