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Ward v. United States

United States Court of Appeals, Seventh Circuit

June 5, 2017

Nathan Ward, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued January 12, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 9025 - Harry D. Leinenweber, Judge.

          Before BAUER, SYKES, and HAMILTON, Circuit Judges.

          BAUER, Circuit Judge.

         Petitioner Nathan Ward and his codefendants were convicted on several counts arising out of a stash-house robbery sting. They challenged their convictions on direct appeal; Ward's conviction was affirmed.[1] Ward filed a petition under 28 U.S.C. § 2255, seeking relief on several grounds, including ineffective assistance of counsel. The district court denied the petition without holding a hearing. On appeal, Ward focuses on one issue: whether he received ineffective assistance of counsel when his trial counsel failed to raise an entrapment defense and object to the government's motion in limine seeking to preclude that defense. We affirm.

         I. BACKGROUND

         This story begins with codefendant Leslie Mayfield and Jeffrey Potts, a confidential informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Potts recruited Mayfield to carry out an armed robbery of a cocaine stash house; Mayfield was unaware that Potts was a confidential informant and that the stash house did not exist.

         On July 23, 2009, Potts and Mayfield met with a disgruntled drug courier. Unbeknownst to Mayfield, this drug courier was actually undercover ATF Agent David Gomez. Gomez gave Mayfield an overview of the plan to rob his cocaine supplier's stash house, and he instructed Mayfield to recruit others to join. After maintaining contact for the next couple weeks, Mayfield and Gomez planned to meet on August 9, 2009.

         On August 9, 2009, as planned, they held a meeting at a strip mall parking lot in Naperville, Illinois, which lasted approximately 20 minutes. At that meeting, Mayfield brought along Montreece Kindle, and Kindle brought Ward and a person known only as "New York." Gomez provided the group details about the plan to rob the stash house, including the number of armed guards, the amount of cocaine, and how he would be informed of the location of the cocaine supply. The group then discussed logistics of their robbery plan.

         Ward actively participated in this discussion. For example, when Gomez proposed that they split the cocaine fifty-fifty, Ward disagreed, insisting that the cocaine be split evenly five ways. After fielding several questions, Gomez told them to let him know if the armed robbery plan was too much for any of them to handle; no one did so, and Ward responded that he was only gathering as much information as possible. Further, Ward mentioned that his only concern was the number of guards stationed in the stash house. However, he was not concerned with whether the guards were armed because, as he asserted, they would enter the stash house with their guns already drawn.

         On August 10, 2009, Ward and Kindle met at Mayfield's apartment with a newcomer named Dwayne White; "New York" was a no-show. In a van, Ward drove Mayfield, White, and Kindle to a designated parking lot to meet Gomez. Once they arrived, Mayfield exited Ward's van and entered Gomez's vehicle. Gomez then drove to a nearby storage facility; Ward, with the others in the van, followed. Soon after arriving at the storage facility, Gomez asked them if they had any hesitations with proceeding with the robbery plan. No one voiced any concerns. Instead, Ward announced that he did not "come all the way from Milwaukee for nothin'." Shortly after Gomez received assurances from the group, he gave an arrest signal; ATF agents arrested Ward, Kindle, White, and May-field. ATF agents searched the van that Ward was driving and recovered three masks, several guns each with multiple rounds of ammunition, two bulletproof vests, latex gloves, and a large duffle bag.

         Ward and the others were charged with four counts: conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846; attempted possession with intent to distribute cocaine, id.; possession of firearms during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A); and, unlawful possession of a firearm by a felon, id. § 922(g). Ward, Mayfield, and White were tried together in July 2010, while Kindle's trial was severed. Prior to trial, the government filed a motion in limine to preclude the defendants from presenting entrapment defenses. Mayfield objected to the government's motion, but Ward and the others did not. The district court granted the government's motion.

         At trial, Ward elected not to testify, but Mayfield did. Mayfield testified that he did not know anyone in the Naper-ville area that would do the armed robbery with him. According to Mayfield, he did not contact anyone about participating in the armed robbery until August 7, 2009, which is the date he claimed that he called Kindle. Mayfield testified that based on his call to Kindle, Ward and "New York" showed up at his apartment, and that Kindle brought both of them. Mayfield testified that he was not an acquaintance of Ward and that he did not contact him. Mayfield testified that, on August 9, 2009, he briefly talked to Ward, Kindle, and "New York" on the drive to meet Gomez, but he did not "lay everything out to them."

         On July 14, 2010, a jury convicted Ward on all counts. The district court later sentenced him to 270 months' imprisonment. We affirmed Ward's conviction on direct appeal. See Kindle, 698 F.3d at 405-08. The panel's decision was vacated, but it was reinstated to the extent that it affirmed all ...

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