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Wallace v. United States

United States District Court, C.D. Illinois, Springfield Division

August 20, 2019



          Richard Mills Richard Mills United States District Judge

         We have, before the Court, Petitioner Patrick B. Wallace's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255.


         The Petitioner[1] filed a motion under 28 U.S.C. § 2255 that raised twelve separate grounds for relief. His memorandum in support of the motion is 103 pages, in addition to a number of attachments including affidavits. The Government filed an initial response and suggested that the Court appoint counsel and conduct an evidentiary hearing to allow the Petitioner to present any evidence in support of the motion.

         The Petitioner retained private counsel. At the evidentiary hearing, he declined to present any testimony from any of the persons who allegedly completed affidavits that were attached to his motion and presented only the testimony of his trial counsel, R. John Alvarez, and his own testimony.

         Following the evidentiary hearing, the Petitioner fired his retained counsel and was granted leave by the Court to proceed pro se. He then filed a 30-page supplemental memorandum.

         The twelve grounds asserted by the Petitioner in his initial motion include: (1) the denial of his motion for new trial mandates reversal and entitlement to a new trial; (2) counsel was ineffective for failing to hold the Government to its burden to make a reasonable effort to locate the confidential informant, thereby violating the Petitioner's right to present a complete defense; (3) counsel was ineffective for failing to request a material witness warrant to compel the confidential informant's attendance and testimony at trial; (4) counsel was ineffective for failing to present the testimony of three more witnesses in support of the Petitioner's theory of defense; (5) counsel was ineffective for failing to investigate and effectively cross examine and question witnesses presented by both the Government and the Petitioner in support of Petitioner's theory of defense; (6) counsel was ineffective for failing to raise Petitioner's claim under Brady v. Maryland on direct appeal; (7) counsel was ineffective for failing to file a motion under the Jencks Act at the conclusion of the Government witness testimony; (8) counsel was ineffective for presenting inculpatory evidence against Petitioner without simultaneously presenting the exculpatory evidence in support of his theory of defense; (9) counsel was ineffective for failing to object to Government counsel's reference to facts not supported by the evidence in the record during closing arguments; (10) counsel on direct appeal was ineffective for failing to challenge the sufficiency of the evidence; (11) counsel was ineffective for failing to challenge the Government's constructive amendment of the Petitioner's indictment; and (12) counsel was ineffective for failing to submit evidence favorable to the Petitioner's theory of defense.


         A. Motion to suppress

         On January 10, 2012, the Petitioner was charged with possession with intent to distribute 280 grams of crack cocaine after police officers conducted two controlled buys from him (using a confidential source) and executed a search warrant at his house.

         In a motion to suppress filed prior to trial, the Petitioner claimed that the Government's confidential source, Andrew Wallace, had sworn out an affidavit and recorded a video saying he had lied about receiving drugs from the Petitioner during the controlled buys prior to his arrest.

         United States Magistrate Judge Byron G. Cudmore conducted a Franks hearing. The lead DEA agent, Springfield Detective Tom Bonnett, testified the DEA had been paying Andrew Wallace for his services as a confidential informant. Bonnett testified that, after the Petitioner was indicted, Andrew Wallace became concerned for his safety because he had been receiving threats. Judge Cudmore overruled the Petitioner's hearsay objection and allowed counsel for the Government to continue questioning Detective Bonnett about Andrew Wallace's concerns for his safety.

         Detective Bonnett further testified that, because of Andrew Wallace's safety concerns, the DEA provided him with $5, 000 to leave Springfield. Upon learning he was in St. Louis, Bonnett advised Wallace by phone that he intended to serve him with a subpoena to appear at the suppression hearing. Andrew Wallace hung up the phone when Bonnet mentioned the subpoena. Bonnett attempted to call back several times but Wallace did not answer.

         On June 18, 2012, the magistrate judge issued a Report and Recommendation. In discussing Andrew Wallace's absence from the hearing, the Court noted:

The CS did not appear at the hearing, although both parties attempted to secure the CS's voluntary attendance. The Court held a status conference on June 11, 2012, during which the Court discussed the possibility of either party requesting a material witness warrant, but neither party requested such a warrant.

Case No. 12-cr-30003, Doc. No. 30, at 2. In the Report and Recommendation, Judge Cudmore determined that the “evidence introduced at the hearing actually negated [Andrew Wallace's] retraction” and found that Wallace's affidavit lacked credibility.

         The magistrate judge recommended that the motion to suppress be denied. On August 28, 2012, this Court adopted the Report and Recommendation and denied the motion to suppress.

         B. Motions in limine

         Prior to trial, both parties filed several motions in limine regarding the use of evidence generated by Andrew Wallace. On September 17, 2012, the Petitioner filed a motion in limine regarding the admissibility of the videotape of Andrew Wallace, wherein he recanted statements he made to the Government during its initial investigation and claimed the Petitioner did not sell drugs to him on December 15, 2011.

         At a pretrial hearing three days later, Mr. Alvarez-in the context of providing this Court background about a disagreement he was having with the Petitioner-told the Court that Andrew Wallace was under the control of the defense and not being truthful:

I never indicated that . . . we wouldn't address the issues in the videotape during trial, only that to ask to have the videotape introduced without offering the witness, who is under our control, despite being the confidential source in this matter, doesn't make sense.
The confidential source, if he indicated what Mr. Wallace has indicated to him, is misrepresenting the facts to Mr. Wallace. I've had one conversation with Andrew Wallace, who is the individual we're talking about. He was suppose to come to my office. He never did.
He had delivered a handwritten statement. He then asked me to meet him at some location in either East St. Louis or St. Louis and discuss the case with him. I said I wasn't going to do that. I asked him to come to my office. And I said at that point in time I would take a taped statement that I did have to disclose to the prosecution.
That's not what he represented to Mr. Wallace. He represented to Mr. Wallace that . . . I was refusing to take a video statement from him or a taped statement and refusing to see him. [T]hat's not true.
As to hiring an investigator to go down there and talk to him; neither does that make sense since we have a witness that Mr. Patrick Wallace has been in contact with, and other members of his family. And obviously by providing to the defense, and his sworn statement, written statement in the past, is cooperating with us. . . .
I've asked that he contact me. He never has. One time I did attempt to contact him, he was in a restaurant, he was eating. When I identified myself, he started to mumble, then he hung up. And that's the last direct contact I've attempted to have with that gentleman.

Doc. 130, 13-15.[2]

         On September 26, 2012, this Court ruled that the videotape was inadmissible as hearsay and did not fall under any of the hearsay exceptions listed in Federal Rule of Evidence 803.

         The parties filed motions in limine which pertained to calling Andrew Wallace as a witness and whether the Government would be permitted to play and reference the video and audio recording made by Wallace during the controlled buys. The Court (1) ruled that Petitioner was prohibited from referring during opening statements to any anticipated testimony from Andrew Wallace; (2) reserved ruling (until the close of the Government's case) on the Government's motion to preclude the Petitioner from calling Andrew Wallace as a witness; (3) denied as moot the Petitioner's motion to exclude the audio and video recordings of the drug buys made by Andrew Wallace as well as Petitioner's motion to preclude the Government's witnesses from testifying about out-of-court statements made by Andrew Wallace, after the Government stated it would not admit any of Andrew Wallace's out-of-court statements, but would merely play a portion of the video recording without the accompanying audio.

         In an Order entered on October 10, 2012, the Court specifically found that Andrew Wallace was not under the control of either party.

         C. Trial

         On October 16, 2012, after a four-day trial, the jury found the Petitioner guilty. The Government's evidence at trial consisted of law enforcement witnesses who testified about the controlled dug purchases and the execution of the search warrant, in addition to various exhibits which included a portion of the silent video.

         The evidence showed that on December 15, 2011, police investigators used Andrew Wallace to make a controlled purchase of crack cocaine from his uncle, Petitioner Patrick Wallace, out of a residence located at 700 North 14th Street in Springfield, Illinois.

         Officers met with Andrew Wallace that morning and provided him with $1, 250 of pre-recorded Official Advance Funds. The officers searched Andrew Wallace and placed an audio/video recorder on his body.

         Officers searched Andrew Wallace's car and maintained surveillance of it as he drove directly to the Petitioner's residence, where officers had set up perimeter surveillance around the house. Officers including Detective Bonnett also positioned themselves outside of the house in order to monitor the audio portion of the recording.

         Officers observed Andrew Wallace enter the house and exit about 20 minutes later. They followed him back to their office where they searched him again. Andrew Wallace turned over the 22 grams of crack cocaine he had just purchased. He no longer possessed the pre-recorded funds. Officers sought and obtained a search warrant for the residence at 700 North 14th Street.

         Prior to executing the search warrant, the officers arranged for Andrew Wallace to conduct another controlled purchase of crack cocaine to ensure that there were still drugs in the house.

         At around 8:30 p.m. on December 15, officers met with Andrew Wallace at the DEA Office. They searched his car, placed the same audio/video recording device on his body and provided him with $1, 250 of pre-recorded Official Advance Funds.

         Officers used the same protocol they used earlier in setting up surveillance of the residence.

         Detective Bonnett monitored the audio recording from outside of the house. He recognized Andrew Wallace's voice and the Petitioner's voice as they were speaking. Bonnett had spoken with the Petitioner in the past.

         Andrew Wallace again exited the residence about 20 minutes after arriving. Officers followed him back to the DEA office, searched him, found crack cocaine and found none of the pre-recorded funds.

         Upon reviewing the recording, Detective Bonnett was able to identify by sight Andrew Wallace and the Petitioner, in addition to Jerome Wallace, whom he believed to be the Petitioner's nephew.

         At trial, over the Defendant's objection, the Government played part of the video recording of the second controlled buy. Mr. Alvarez stated the Defense had no objection as long as only the video portion played.

         Detective Bonnett identified the three men shown in the video and stated the video does not show anyone else entering the home. Jerome Wallace and the Petitioner were standing close to the microwave in the kitchen. He also testified the video showed the Petitioner just prior to what appears to be Andrew Wallace receiving crack cocaine.

         The Government introduced several still photos taken from the video. Bonnett testified the photos depict the Petitioner standing in the kitchen next to a microwave containing a measuring cup with an off-white substance in it, a food sealer, and what appears to be cocaine in bags. Bonnett testified one of the photographs depicts Wallace looking at the microwave while it is lit up with a green light.

         The officers executed the search warrant approximately an hour after the second controlled buy was completed. When the Springfield SWAT team entered the house, they found the Petitioner in the only bathroom shaving his head. Upon seeing the officers, the Petitioner ran in to an adjacent room. The officers apprehended the Petitioner and secured him in the front room, along with two other individuals: Jerome Wallace and Sandy Johnson. Officers searched every room in the house.

         The officers discovered an active security surveillance system in and outside of the house. In the southwest bedroom, officers found a 20-inch surveillance monitor displaying the outside of the house, a surveillance clock with a mini camera inside and an activated DVR recorder in a closet, which was recording the security camera footage. In the kitchen, officers found cabling, a monitor and a remote control. In the living room, a 73-inch television was showing the surveillance of the outside of the house.

         On the front door of the southwest bedroom, officers observed a sign that said “No matter what, always knock before you enter this room. Wait on a come in. Thanks, P.J.” Doc. No. 133, at 268.

         On the bed in the southwest bedroom, officers found a pair of jeans containing a wallet. The wallet contained identification for the Petitioner and his mother. In one of the jeans' pockets, the officers found marijuana and crack cocaine.

         The jeans also contained $160 of the pre-recorded funds-one bill from the first controlled buy and six bills from the second buy.

         In the same bedroom, officers found a second wallet in a plastic filing cabinet. That wallet also contained identification documents for the Petitioner: one with the North 14th Street address and one with an address of 150 South Durkin Drive in Springfield. The officers also located mail addressed to the Petitioner.

         In the filing cabinet, officers found $980 of their pre-recorded funds from the second buy. The filing cabinet also contained more than a pound of crack and powder cocaine as well as marijuana. Throughout the house, the officers found a total of 697 grams of cocaine and crack cocaine, worth approximately $70, 000. Officers also located watches and DVDs in the cabinet.

         Inside the closet of the bedroom, officers found more than 20 pairs of shoes and several items of men's clothing sized to fit a large man. In the same bedroom, officers also located two cell phones, four laptop computers, an empty Smith and Wesson gun case, handgun ...

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