United States v. Blackwell

3:13-cr-00005 | W.D. Va. | May 2, 2013

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E CL RK CHA RLOTTESV ILLE D IV ISION U N ITED STA TES OF A M ERICA , CA SE N O . 3:13CR00005 REPORT AND RECOM M ENDATION JERRY RICH AR D BLA CK W ELL, Defendant. By: B. W AUGH CRIGLER U .S. M A G ISTRA TE JU D GE ln accordance with the provisions of Title 28 U.S.C. j 636(b)(3), and upon the defendant's consent, this case was referred to the undersigned to conduct a plea hearing. DEFENDANT'S RESPONSES TO RULE 11 INQUIRY

On February 27, 2013, the Grand Jury charged the defendant with several counts in a multi-count Indictment. (Dkt. 1.) In Cotmt One, the defendant was charged with that on or about and betw een January 14, 2008 and August 3, 2012, in the W estem Judicial D istrict of Virginia and elsewhere, the defendant, Jerry Richard Blackwell, did knowingly and intentionally com bine, conspire, and agree with other persons, both known and unknown to the Grand Jury, to manufacttlre, to possess with intent to distribute, and to distribute over fifty (50) grams of m ethnm phetnmine, a Schedule 11 controlled substance, in violation of Title 21, United States Code, Section 841(a)(1), and a11 in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(A). (Dkt. No. 1.) ln Count Two, that on or about and between April 8, 201 1 and A ugust 3, 2012, in the W estern Judicial D istrict of V irginia, the defendant, Jerry R ichard Blackw ell, know ingly and intentionally possessed pseudoephedrine, a listed chem ical as defined in Title 21, U nited States Code, Section 802, w ith intent to m anufacture m ethamphetnmine, a Schedule 11 controlled substance, in a m nnner other than authorized by Title 21, United States Code, Sections 801 through 904, a11 in violation of Title 21, United States Code, Section 841(c)(1). Id at 1-2. Finally, in Count Three, that on or about and between April 8, 201 1 and August 3, 2012, in the W estern Judicial District of Virginia, the defendant, Jerry lkichard Blackwell, while manufacturing and attem pting to marmfacture methnmphetnmine, a Schedule 11 controlled substance, created a substantial risk of harm to hum an life, a11 in violation of Title 21, United States Code, Section 858. Id. at 2. On April 23, 2013, the defendant appeared before the tmdersigned to enter his plea to a lesser charge that relates to his conduct in the criminal enterprise. pec 1 S ifically he appeared to plead guilty to one of the objectives of the , conspiracy alleged in Count 1 of the Indictm ent; nnmely, conspiring to manufacture more than five (5) grams of methnmphetnmine, a controlled substance, in violation of Title 2 1, United States Code, Sections 846 and 841(b)(1)(B).

The defendant was placed under oath and testised that his full legal name is Jen'y Richard Blackwell, he was born on March 1 1, 1970, and he had completed two and a half (2.5) years of college and taken several extended education courses. The defendant stated that he can read, write, and tmderstand the English language. The defendant further stated that he was fully aware of the nattlre of the charges against him , the maximum ptmishment he faces, and the consequences of pleading guilty to the charges. He inform ed the court that he suffered no physical or mental condition and was not under the intluence of any substance that would im pair his ability to tm derstand what the court w as saying or the nature of the proceedings. He testified that he had received a copy of the Indictm ent, and that he had f'ully discussed with his counsel the charges set forth therein, the m axim um punishm ent for the charges, any defenses thereto, and his case in general. The defendant stated he was before the tmdersigned to enter into a plea agreement and plead guilty to one of the objectives of the conspiracy alleged in Count One of the Indictment (ttlesser charge''). The defendant testified that he understood that the offense set forth

1 The defendant further acknowledged that he had the right to proceed before a District Judge, and he expressly consented to proceed before the tmdersigned. (Dkt. No. 16.) in the lesser charge under Cotmt One is a felony, and if his plea is accepted, he will be adjudged guilty of that offense.

The defendant acknowledged that the m aximum statutory penalty under the lesser charge in Count One is a $5,000,000 fine and/or imprisonment for a tenn of forty (40) years, plus a term of supervised release. H e also acknowledged that there is a m andatory minimtlm sentence of imprisonment for a term of fsve (5) years. The defendant was infonned that pazole has been abolished, and that if he is sentenced to incarceration, he will not be released on parole, but on supervised release, a violation of which could result in additional incarceration. The governm ent was not seeking forfeiture. However, the defendant acknowledged that he may be required to pay restitution and, if so, must make a good faith effort to do so and com ply with a11 the term s set forth in the Plea Agreement discharging his financial responsibility. The defendant also acknowledged that, upon conviction, he will be required to pay a m andatory special assessment of $ 100 per felony cotmt. He agreed that the stipulated facts filed with the court accurately set forth a11 factual elem ents suftk ient to sustain his plea of guilty. Finally, he understood that the Governm ent would m ove, at sentencing, to dismiss him as a defendant in a11 remaining cotmts of the lndictm ent, provided that he com plied with a11 his obligations under the Plea Agreement. He stipulated and agreed that the Governm ent had probable cause to bring a11 the counts in the lndictment which would be dism issed under the Plea Agreem ent, and that these charges were not frivolous and that he was not a tiprevailing party'' with regard to these charges.

The defendant was inform ed that, tmder the Sentencing Reform Act of 1984, the United States Sentencing Commission has issued guidelines for judges to follow in determining a reasonable sentence in a crim inal case. He was then informed that the Sentencing Guidelines are no longer mandatory, but that the sentencing judge may apply them in an advisory fashion in determ ining a reasonable sentence. The defendant testified that he and his counsel had discussed how the Sentencing G uidelines m ight apply in his case. He also testified that he understood that the court would not be able to determ ine the applicable guideline range, for advisory pup oses, until after a presentence report has been prepared and both parties have been given an opportunity to review and, if applicable, to object to the reported facts and application of the Guidelines. The defendant stated that he understood that the eventual sentence imposed may be different from any estim ate his attorney had given him , or any recom mendation by the govem m ent, and that the court has the authority to im pose a sentence that is either higher or lower than that called for by the Gtlidelines, so long as the sentence is not greater than the statutory m axim tlm for the offense to whieh the defendant is pleading guilty. He also acknowledged that, should that occlzr, he would not be entitled to withdraw his plea of guilty. At this tim e, the parties submitted a signed copy of the Plea Agreem ent. The defendant acknowledged that his signature appeared at the end of the Plea A greement and his initials on each page.

The defendant acknowledged that the parties agreed that the 2012 version of the United States Sentencing Guidelines M anual is applicable. The defendant stipulated that j 2D1.1(c) of the Guidelines is applicable to his conduct, assigning a base offense level of thirty (30), and that both he and the United States would be free to argue whether other Guidelines sections should or should not apply; to the extent the arguments are not inconsistent with the stipulations, recom m endations, and term s set forth in the Plea A greem ent. The defendant acknow ledged that the United States agreed to recomm end a sentence at the 1ow end of the applicable guideline range. The defendant stated that he lm derstood that, contingent upon his acceptance of responsibility, continued cooperation in the sentencing process, and fulfillm ent of his duties tmder the Plea Agreement, the government will recommend a two-level (2) reduction under USSG j 3E1.1(a), and, if applicable, the government will move that he be given an additional one-level (1) reduction under USSG j 3E1.1(b). The defendant also stated that he understood that, even if he fully cooperates w ith 1aw enforcem ent, the governm ent is under no obligation to tèle a m otion to reduce his sentence for substantial assistance, and if the governm ent m akes the m otion, it is up to the court to determ ine how much of a departure, if any, should be imposed. The defendant agreed that he had knowingly and voluntarily waived his rights to request or receive any records pertaining to the investigation or prosecution of his case, including any records that m ay be sought tmder the Freedom of Information Act or the Privacy Act of 1974. The defendant acknowledged his m onetary obligations under the Plea Agreement and that the amounts determined were due immediately and subject to immediate enforcement. He tmderstood that he would make good faith efforts toward payment of all m andatory assessments, restitution, and fines, with whatever means he has at his disposal. He agreed to grant the United States a wage assignment, liquidate assets, or complete any other tasks which will result in imm ediate paym ent in 1 11, or payment in the shortest time in which full paym ent can be reasonably m ade. He tmderstood that he would provide a com plete and truthful tinancial statement if called upon to do so and agreed that he would not convey anything of value to any person without the authorization of the U .S. Attorney's Oftice from the tim e of the signing of this agreem ent or the date he signs his financial statement, whichever is earlier. Finally, the defendant abandoned his interest in any item s seized by any 1aw enforcem ent agency during the cotlrse of the investigation.

The defendant acknowledged that he was waiving (giving up) his right to have ajlzry detennine beyond a reasonable doubt the facts alleged in the Indictment, including any facts that could impact sentencing. The defendant testified that he tmderstood that he had the right to a trial by a jury, in addition to the following rights, which will be waived or given up upon pleading guilty:

The right to plead not guilty to any offense charged against him ; The right at trial to be presum ed innocent and to force the govem m ent to prove his guilt beyond a reasonable doubt; The right of assistance of counsel at trial and in any subsequent appeal; The right to see, hem., and cross-examine witnesses; The right to call witnesses to testify on his own behalf and to the issuance of subpoenas or compulsory process to compel the attendanee of witnesses;

6. The right to decline to testify unless he voluntarily elects to do so in his own defense; 7. The right to a unanim ous guilty verdict; and 8. The right to appeal a guilty verdict.

The defendant testified that he tmderstood that, under the term s of the agreement, he was waiving his rights to appeal, except that he was not waiving his right to appeal or have his attorney file a notice of appeal as to any issue which cannot by 1aw be waived. The defendant acknowledged that he had agreed to waive his right to collaterally attack his conviction or sentence in the case, except to the extent such attack is based on ineffective assistance of cotmsel or a constitutional defect in the jtzrisdiction of the court. The defendant was informed that, if he chose to appeal, the governm ent could treat such as a breach of the Plea A greem ent and exercise al1 of its rem edial rights under the Plea Agreem ent, including the right to rechr ge him . The defendant also tmderstood that his counsel was obliged to file a notice of appeal if the defendant requested it, even if it would hurt the defendant's interests.

The defendant testitied that he tmderstood that, if found guilty, he w ould be deprived of valuable civil rights, such as the right to vote, the right to hold public office, the right to serve on ajury, and the right to possess a firearm. The defendant acknowledged that the Plea Agreement only binds the U.S. Attorney's Oflice for the W estern District of Virginia. Furthennore, he stated that no one had threatened, intim idated, or forced him to enter the Plea Agreem ent or plead guilty , and he was pleading guilty of his own free will because he was, in fact, guilty. 2 The

2 The defendant originally stated that the evidence was not as valid as it appeared , several w itnesses w ere lying, and that he w as pleading guilty because he felt like he had no choice. The undersigned ordered a recess to allow the defendant to confer w ith his counsel. A fter this recess, the defendant clarified that w hile he disagreed with som e of the w itness testim ony, he agreed with the Governm ent's evidence regarding the necessary elem ents of the offense to which he was defendant also stated that he was satisfied with the advice and representation given to him in this case by his cotmsel and that he believed the representation had been effective. The defendant asked the court to accept his plea of guilty to the lesser charge in Cotmt One. (Dkt. Nos. 17, 19.)

THE GO VERNM ENT'S EVIDENCE

The defendant and the Government agreed to a Stipulation of Facts. (Dkt. No. 18.) The Stipulation of Facts having been filed in open court, the evidence presented therein regarding the offenses charged is as follows:

INTRODUCTION

COM E NOW the United States of Am erica; the defendant, Jerry Richard Blackwell

(:tBlackwe11''); and his defense counsel, J. Lloyd Snook, 111, and stipulate to the Court that the United States w ould have presented the following evidence had this case gone to trial:

H ISTORICAL TESTIM ONY

A confidential informant (;tCl-1'') stated that Blackwell lived in a house near the traftk

circle in Gordonsville, Virginia', Blackwell shared the house with a roomm ate W illinm M artin Schwind (ttschwind'). At this house, Cl-1 witnessed Blackwell cook methamphetamine from boxes of pseudoephedrine on multiple occasions between the dates listed in the indictment. CI-1 saw Schwind present at many of these cooks.

A second confidential informant (11C1-2'') witnessed Blackwell cook methamphetnmine at the house in Gordonsville. ln addition, CI-2 stated that he/she ptlrchased m ethnmphetamine more than 25 tim es in half grnm to gram quantities from Blackwell. C1-2 also stated that Schwind bought pseudoephedrine and supplies necessary for Blackwell to cook m ethnm phetnm ine. pleading guilty. Furtherm ore, both the defendant and his cotmsel affirmed that the defendant was pleading guilty voluntmily and without any coercion.

A third consdential informant CtC1-3'') stated that between the dates listed in the information/ Blackwell cooked methamphetamine inside the home in Gordonsville. C1-3 also

stated that Schwind bought supplies and pseudoephedrine necessary for Blackwell to cook

methamphetam ine.

A fourth confdential informant ($tC1-4'') also witnessed Blackwell cook methamphetnm ine inside the Gordonsville residence. Beginning in 201 1 and through the slzmm er of 2012, CI-4 witnessed Blackwell cook m ethamphetnmine approximately 15 or 20 tim es at the home. During some of the cooks, CI-4 witnessed Blackwell and Schwind cooking m ethamphetamine together.According to C1-4, Blackwell gave Schwind m ethamphetam ine yielded from cooks in exchange for Schw ind providing pseudoephedrine, other methnmphetnm ine marmfacturing ingredients, and a place to cook the methamphetam ine. C1-4 described Blackwell's m ethod in cooking methnmphetam ine including the chemicals and processes Blackwell used. According to Cl-4, Blackwell used pseudoephedrine and red phosphorous in his cooks. Blackwell rendered pseudoephedrine from cold pills purchased from pharmacies near his residence', Blackwell's red phosphorous cam e from striker plates found on boxes of m atches. Other ingredients that CI-4 stated Blackwell used in his methamphetam ine cooks included HEET antifreeze, Colem an fuel, acetone, nzbbing alcohol, and m tuiatic acid. CI- 4 also stated that Blackwell used between 1 and 2 boxes or 2.4 and 4.8 grnms of pseudoephedrine per batch in m anufacturing m ethamphetam ine. Blackwell would have to separate the pseudoephedrine from the other ingredients in the cold pills, and then, he would cook that pseudoephedrine into methamphetam ine. W hen Blackwell cooked m ethnm phetnmine, each gram of pseudoephedrine used in a cook yielded approxim ately .75 gram s of actual

3 The undersigned believes that the Governm ent actually is referring to the February 27 , 2013 lndictment. (Dkt. No. 1.) m ethamphetnmine. This yield described by C1-4 was consistent with estimates calculated by a DEA expert in the field of m ethnm phetamine manufacturing. ln addition, the process of separating pseudoephedrine from the other ingredients in the cold pills also caused some loss in pseudoephedrine. The am ount of pseudoephedrine loss at this stage varied.

A fifth conûdential informant C$Cl-5'') witnessed Blackwell cook methnmphetnmine in Schwind's kitchen. On som e occasions, Cl-5 saw Schwind help Blackwell with the cooking process. Cl-5 also stated that Schwind supplied Blackwell with pseudoephedrine to use in his cooks. Like CI-4, C1-5 described Blackwell's method in cooking metham phetnmine by identifying the sam e chem icals and processes that C1-4 identifed. According to C1-5, Blackwell used approximately three boxes of pseudoephedrine (7.2 grnms) in each cook. C1-5 estimated that Blackwell yielded anywhere from 3 to 5 grnms of actual m etham phetam ine per batch. Cl-5 also stated that Blackwell gave Schwind a portion of the m ethamphetamine cooked in exchange for Schwind providing pseudoephedrine, m etham phetamine manufactlzring m aterials, and a place to cook m ethnm phetam ine.

A sixth confdential infonnant C1CI-6'') supplied Blackwell with pseudoephedrine for use in cooking m ethnm phetam ine. According to Cl-6, C1-6 gave Blackwell a quantity of pseudoephedrine, usually two boxes (4.8 grnms of pseudoephedrine), and Blackwell used the boxes to cook methamphetnm ine. ln exchange for the pseudoephedrine, Blackwell gave C1-6 a quantity Of the m etham phetamine produced after the cook.

CONSENT SEARCH OF THE G ORDONSVILLE RESIDENCE

W ith Schwind's consent, DEA and Blue Ridge Narcotics and Gang Task Force searched

the G ordonsville residence Schw ind and Blackw ell shared, where m ultiple contidential informants stated that Blackwell cooked m ethnmphetamine. lnside Schwind's hom e, law enforcement officers found Coleman fuel, l'ubbing alcohol, boxes of matches (with striker plates containing red phosphorous), a mortar and pestle, muriatic acid, HEET antifreeze, and acetone- al1 eomm only used materials in methamphetnmine m anufaduring.

PSEUDOEPHEDRINE PURCHASE LOGS

DEA and the Blue Ridge Narcotics and Gang Task Force collected pseudoephedrine

plzrchase logs in the area around the Gordonsville residence. Because of its use in m ethamphetamine manufacttlring, pseudoephedrine purchases are logged and tracked by pharmacies. W hen a person buys a quantity of pseudoephedrine, the pharmacy will note the am oullt of pseudoephedrine ptzrchased, document the purchaser's ID or driver's license, and record the ptlrchaser's signattlre. The pseudoephedrine purchase logs from the phnrmacies around the Gordonsville residence showed that Blackwell purchased 123 grams of pseudoephedrine between the dates listed in the indictment. The calculations of 123 grnm s of pseudoephedrine equal approxim ately betw een 35 and 50 grmns of actual m etham phetam ine given Blackwell's cooking technique and results witnessed by cooperators.

INTERVIEW S W ITH LAW ENFORCEM ENT

Dlzring interview s w ith 1aw enforcem ent, Blackw ell stated that he used

m ethamphetam ine because he was addicted to it.

FIND IN G S O F FA C T

Based on the evidence presented at the plea hearing, the tmdersigned now subm its the follow ing form al ûndings of fact, conclusions and recom m endations: The defendant is fully com petent and capable of entering into a plea agreem ent and entering an informed plea;

(2) The defendant is aware of the natlzre of the charges and the consequences of his plea; (3) The defendant knowingly and voluntarily entered into the Plea Agreement as well as a
plea of guilty to the lesser charge in Count One of the lndictm ent; and (4) The evidence presents an independent basis in fact containing each of the essential eiem ents of the offenses to which the defendant is pleading guilty. Thereupon, the defendant was arraigned on the lesser charge in Count One of the

Indictm ent and pled guilty thereto.

RECOM M ENDED DISPOSITION

Based upon the above findings of fact, the undersigned FINDS that defendant has knowingly, voltmtarily and freely entered his plea of guilty to the lesser charge in Count One of the Indictm ent as well as executed the Plea Agreem ent in this case. The undersigned RECOM M ENDS that the court accept the defendant's plea of guilty to the lesser charge in Count One of the lndictment and DIRECTS that a presentence report be prepared. A sentencing hearing hereby is scheduled for July 19, 2013 at 1:30 p.m . before the presiding District Judge in Chazlottesville.

N O TICE TO PAR TIES

Notice is hereby given to the parties of the provisions of 28 U.S.C. j 636(b)(1)(C): W ithin fourteen days (14) after being served with a copy of this Report and Recommendation, any party may serve and file written objections to such proposed findings and recommendations as provided by nzles of court. The presiding District Judge shall m ake a de novo determ ination of those portions of the report or specified proposed tindings or recom m endations to w hich objection is made. The presiding District Judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the undersigned. The judge may also receive further evidence or recomm it the matler to the undersigned with instructions.

Failure to file timely written objections to these proposed findings alzd recommendations w ithin fourteen days could w aive appellate review . At the conclusion of the fourteen-day period, the Clerk is directed to transm it the record in this m atler to the presiding United States District Judge.

The Clerk is hereby directed to send a certified copy hereof to all cotmsel of record.

EN TERED :

United tates M agistrate Ju e f 2O/

ate