United States v. Magruder

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.

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 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.

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 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

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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

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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

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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

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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. ¶¶

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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

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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,

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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.

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 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

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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

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