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United States v. Bummer

United States District Court, D. Montana, Great Falls Division

January 2, 2020

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SCOTT MITCHELL BUMMER, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Defendant/Movant Scott Mitchell Bummer's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Bummer is a federal prisoner proceeding pro se.

         The Court ordered Bummer's three court-appointed attorneys to submit affidavits responding to Bummer's allegations about plea bargaining on September 23, 2019. See Order (Doc. 211) at 2; Counsel Resps. (Docs. 212, 213, 214). Bummer has replied to the responses filed by his former counsel (Doc. 215).

         I. Preliminary Review

         The Court first must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). The Court should “eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         A. Summary of the Investigation

         This summary describes evidence presented at the suppression hearing and at trial. It is not intended to encompass all the evidence and does not find facts to be true or false.

         In the spring of 2015, detectives and undercover officers with a drug interdiction task force were investigating Tony Amato's drug trafficking activity in Great Falls, Montana. Authorities believed that someone in Helena supplied Amato with drugs. Based on this information, Detective McDuffie obtained a federal search warrant that authorized the task force to track Amato's location up until April 3, 2015, by monitoring his cell phone “pings.” See Sealed Application and Warrant (Docs. 1, 1-1, 1-2, 1-3) & Warrant (Doc. 2), In the Matter of the Search of Information Regarding the Location of Cellular Telephone Number, No. MJ 15-08-GF-JTJ (D. Mont. Mar. 26, 2015);[1] see also 1 Suppression Hr'g Tr. (Doc. 85) at 60:12-62:10 (Det. Kruse). The detectives only monitored pings that may have indicated that Amato had traveled from Great Falls to Helena.

         The task force tracked Amato's phone on April 1, 2015, to a Helena business called Montana Fluid Power. Bummer owned Montana Power Fluid. Amato traveled to a rural residence east of Helena on April 4, 2015. One detective, McDuffie, recognized the location as Bummer's home. Another detective, Kruse, recognized Bummer's name from other investigations. See 1 Suppression Hr'g Tr. (Doc. 85) at 17:7-21:1 (Kruse), 83:16-85:12, 92:13-93:11 (Det. McDuffie).

         On April 11, 2015-more than one week after the tracking warrant had expired-Amato traveled from Great Falls to Bummer's home in Helena. Amato then drove to an unidentified location in Helena, and later returned to Bummer's house. Amato next stopped at a gas station and, near Holter Lake, picked up a boat before returning to Great Falls. Authorities surveilled Amato by helicopter and tracked him by cell phone pings, but law enforcement officers did not know his location at all times during the trip. Amato later testified at trial about where he went and when. See Id. at 25:11-26:11 (Kruse); 2 Trial Tr. (Doc. 201) at 11:1- 21:23, 24:6-24:12 (Air Interdiction Agent Dascoulias), 47:15-56:23 (Amato).

         Montana highway patrol officers stopped Amato as he traveled on Interstate 15 near Ulm. The officers searched Amato and found 110.3 grams of methamphetamine of 97.8% purity, or 107.8 grams of actual methamphetamine. See 2 Trial Tr. at 57:2-60:5 (Amato), 134:25-135:11 (forensic chemist Huntington). Amato told detectives that he had gotten the methamphetamine “in Helena from a guy named Scott.” Amato identified a photograph of Bummer as “Scott.” See 1 Suppression Hr'g Tr. at 29:23-30:8 (Kruse).

         Based on Amato's statements and other information, see Br. in Supp. of Mot. to Suppress Ex. 1 (Doc. 52-1) (Application and Warrant); 1 Suppression Hr'g Tr. (Doc. 85) at 100:2-104:21 (McDuffie), officers detained Bummer and executed search warrants at his house and business on April 12, 2015. Officers found a scale, plastic bags, and a safe in Bummer's bedroom. Inside the locked safe, officers found a loaded revolver, another handgun, more than $7, 000 in cash, a list of names and phone numbers, and 120.6 grams of methamphetamine of 98% purity, or 118.1 grams of actual methamphetamine. See 2 Trial Tr. (Doc. 201) at 100:7-101:7, 106:17-120:9 (Det. Hinchman), 136:13-137:6 (Huntington).

         B. Procedural History

         A grand jury indicted Bummer and Amato on August 21, 2015, on one count of conspiring to distribute and possess with intent to distribute 50 grams or more of actual methamphetamine in violation of 21 U.S.C. § 846 (Count 1), and one count of possessing 50 or more grams of actual methamphetamine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (Count 2). See Indictment (Doc. 1) at 2-3. Due to the amount and type of drug alleged, conviction on either count would have subjected Bummer to a ten-year mandatory minimum sentence and a maximum sentence of life in prison. See 21 U.S.C. § 841(b)(1)(A)(viii).

         Amato pled guilty to a lesser charge of possessing five or more grams of actual methamphetamine with intent to distribute it on September 29, 2015. The lesser charge subjected Amato to a mandatory minimum sentence of five years and a maximum of 40 years in prison. See Minutes (Doc. 37); Superseding Information (Doc. 35); 21 U.S.C. § 841(b)(1)(B)(viii).

         The grand jury handed down a superseding indictment on October 23, 2015. The superseding indictment added a third count that charged Bummer with possessing firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). If convicted on Count 3, Bummer would have faced at least five years in prison, to run consecutively to any other term. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii).

         Bummer moved to suppress the fruits of the search of his home on November 10, 2015. He argued that the warrant application contained false information and omitted adverse information about a confidential informant's credibility. After hearing two and a half hours of testimony, hosting a half-hour phone conference discussing how to conduct the remainder of the hearing, and taking about 80 more minutes of ex parte testimony by government witnesses, [2] the Court denied the motion. See Minutes (Docs. 63, 66, 69); 2 Suppression Hr'g Tr. (Doc. 86) at 12:20-16:4.

         A little over a year later, following a substitution of counsel, an evaluation of Bummer's competency, and another substitution of counsel, trial commenced on December 12, 2016. See Orders (Docs. 98, 104, 119); Minutes (Doc. 112, 118, 150). The jury deliberated for about two and a half hours before on December 13, 2016, finding Bummer guilty on all counts and responsible, on Counts 1 and 2, for 50 or more grams of actual methamphetamine. See Minutes (Doc. 154); Verdict (Doc. 160) at 1-3. Regarding forfeiture, the jury found by a preponderance of the evidence that Bummer had obtained the cash in the safe from drug trafficking and that Bummer had used some of the firearms found in or near the safe to facilitate drug trafficking. See Forfeiture Verdict (Doc. 163) at 1-3.

         The Court adopted the presentence report without change. With a total offense level of 32 and a criminal history category of I, Bummer's advisory guideline range was 121 to 151 months on Counts 1 and 2. With a downward variance, the Court sentenced Bummer on Counts 1 and 2 to 120 months, the statutory mandatory minimum, plus a consecutive 60-month mandatory minimum on Count 3, for a total prison term of 180 months, to be followed by a five-year term of supervised release. See Statement of Reasons (Doc. 187) §§ I(A), III; Minutes (Doc. 184); Judgment (Doc. 186) at 2-3.

         Bummer appealed. He challenged the denial of his suppression motion and his exclusion from the phone conference held between the two evidentiary hearings on the motion. The Ninth Circuit rejected his arguments and affirmed his conviction. See 9th Cir. Mem. Disp. (Doc. 204) at 2-3, United States v. Bummer, No. 17-30046 (9th Cir. July 20, 2018).

         Bummer's conviction became final when the United States Supreme Court denied his petition for writ of certiorari on November 5, 2018. See Clerk Letter (Doc. 207) at 1; Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on April 1, 2019. See 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 276 (1988); Mot. § 22255 (Doc. 208) at 5 ¶ C.

         III. Claims and Analysis

         Most of Bummer's claims allege that his counsel provided ineffective assistance in various respects. At this stage of the proceedings, Bummer must allege facts sufficient to support inferences that counsel's performance fell outside the wide range of reasonable professional assistance, see Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and that, but for counsel's unprofessional performance, he had a reasonable probability of obtaining a better outcome, Id. at 694. The Court addresses separately each claim raised by Bummer.

         A. Amato's Phone, Pings, and Helicopter Surveillance

         Bummer alleges that the officers illegally collected cell-phone “ping” information. He argues that he had standing to challenge the tracking because the pings led to him. He also refers to the time limitation contained in the warrant, and he suggests that “[a] Court Order is not a search warrant.” See Mem. at 27[3] (citing Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206 (2018)); see also Carpenter, 138 S.Ct. at 2221-23. Bummer also mentions that Amato's passenger eluded charges.

         United States Magistrate Judge John Johnston issued a search warrant, not an order, authorizing the task force to track Amato's pings on or before April 3, 2015. See Warrant (Doc. 2), In the Matter of the Search of Information Regarding the Location of Cellular Telephone Number, No. MJ 15-08-GF-JTJ (D. Mont. Mar. 26, 2015) (sealed). Bummer's counsel attached the warrant application as a sealed exhibit to the brief supporting his motion to suppress. See Br. in Supp. of Mot. to Suppress Ex. 4 (Doc. 53-2) (filed under seal). The officers needed no additional warrant to relay location information to the helicopter or to follow Amato to where the pings led.

         Bummer appears to be correct about the expiration of Judge Johnston's warrant. Bummer lacks any legally cognizable claim, however, to the protection of the warrant's time limits. See United States v. Lopez-Cruz, 730 F.3d 803, 807 (9th Cir. 2013) (explaining elements of standing to seek suppression). Bummer alleges no fact to suggest that he possessed a property interest in Amato's phone or its pings. See Id. (quoting United States v. Padilla, 508 U.S. 77, 82 (1993) (per curiam) (disavowing “co-conspirator exception” to limitations on Fourth Amendment standing)). Bummer alleges no fact to suggest that he possessed a subjective expectation that the location of Amato's phone would remain private. See Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). Bummer certainly had a reasonable expectation of privacy in the curtilage and interior of his home. No government agent breached the curtilage.

         To recognize Bummer's standing to contest the tracking of Amato's pings, the Court would have to conclude that Bummer possessed both a subjective and an objectively reasonable expectation of privacy in the geographic location and identification of his house. Assuming one can reasonably expect privacy in the existence of a place, Bummer alleges no fact to suggest that he entirely concealed his home from view or that he received no mail or services there. A task force detective testified that he had long known where Bummer lived. See 1 Suppression Hr'g Tr. (Doc. 85) at 83:16-84:15. Nothing in the record or in Bummer's current allegations supports an inference that Bummer might have established standing to challenge the tracking of Amato's pings and location.

         Bummer refers to Amato's passenger's “release from State charges.” See Mem. at 19. Bummer provides no reason to infer either that she was released for reasons pertinent to him or that someone else's release from state charges establishes that his own counsel provided ineffective assistance in a federal case.

         None of Bummer's claims support an inference either that counsel performed unreasonably or that Bummer had a reasonable probability of a better outcome. Bummer's allegations fail to meet either prong of the Strickland test. The Court denies all claims suggesting Bummer's rights were violated by tracking Amato's pings, by relaying information to ...


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