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Wilhelm v. United States

United States District Court, E.D. Missouri, Eastern Division

December 23, 2019

DONALD WILHELM, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Movant Donald Wilhelm's motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. No. 1). For the following reasons, Wilhelm's motion will be denied.[1] Also pending is Wilhelm's motion to expedite ruling (Doc. No. 14), which is denied as moot.

         I. Background

         On August 31, 2016, a federal grand jury charged Wilhelm in two counts of a nine-count indictment with conspiracy to possess pseudoephedrine with intent to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c)(1) and 846; and possession of pseudoephedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). United States v. Donald Wilhelm, 4:16-CR-00393-JAR ("criminal case"), Crim. Doc. No. L[2]

         On November 1, 2016, defense counsel filed a motion to suppress evidence on behalf of Wilhelm, arguing that the search warrant executed on his residence violated Wilhelm's Constitutional rights because the application supporting the warrant lacked probable cause and contained false statements and omissions. Crim. Doc. No. 123. The affidavit in support of the search warrant described the property and vehicles anticipated to be on the property to be searched. The affidavit specified that the location "includes the entre premises and curtilage.. .and any and all persons present, arriving or leaving said premises." Affidavit, Crim. Doc. No. 164-1. The search warrant issued described the property to be seized as follows:

. . . instruments, articles, items, and things which have been used in the commission of, or which constitute evidence of, the offense delivering, manufacturing a controlled substance RSMO 195.211, possession of controlled substance RSMO 195.202, and/or maintain a public nuisance RSMO 195.130. Specifically, but not limited to methamphetamine, controlled substances, packaging material, measuring devices, scales, drug paraphernalia, currencies, cell phones, electronic digital recording devices, cameras, computers, and phones records.

Warrant, Crim. Doc. No. 168-1. The affidavit in support of the Warrant set forth the following facts. On July 12, 2015, a confidential source, who had known Wilhelm since childhood, smelled a strong odor of ether and anhydrous ammonia coming from the direction of Wilhelm's home. The confidential source's car had gotten stuck in the mud approximately 100 feet west of Wilhelm's home, and he was confronted by two male subjects, who told the confidential source to "get the hell out of here." The confidential source knew Wilhelm to be a methamphetamine "cooker," and the confidential source was familiar with the smells coming from Wilhelm's home because he had experience in agriculture.

         In the motion to suppress evidence, Wilhelm's counsel argued that the application failed to provide information concerning the reliability and any corroboration or criminal history of the confidential source referenced therein. Counsel then moved for a hearing under Franks v. Delaware, 438 U.S. 154 (1978) ("Franks hearing") regarding the statements made by the confidential source and intentionally false and misleading statements supporting the search warrant.

         On March 14, 2017, the presiding Magistrate Judge held an evidentiary hearing on Wilhelm's motion, at which Drug Enforcement Administration ("DEA") Task Force Officer ("TFO") David Riffer testified. Thereafter, the Magistrate Judge recommended denial of the motion to suppress, holding that the confidential source's information was reliable because it was based on first-hand observations, and there was no evidence that TFO Riffer knowingly or intentionally entertained serious doubts as to the truth of the confidential source's statements. Crim. Doc. No. 230. She further held that the affidavit described the residence "accurately" and "with particularity." The Magistrate Judge concluded that there was sufficient probable cause for the issuing judge to sign the warrant to search Wilhelm's residence.

         On July 4, 2017, Wilhelm's counsel filed objections to the Magistrate Judge's decision, reiterating that the search warrant lacked probable cause. Crim. Doc. No. 240. This Court then conducted a "de novo review of the matter" and held that the Magistrate Judge's conclusions were supported by the evidence, and Wilhelm's objections were "not persuasive." Crim. Doc. No. 257.

         On November 7, 2017, Wilhelm appeared before the Court for a change of plea hearing and pled guilty to Count Two of the indictment. Crim. Doc. No. 309. At his plea hearing, Wilhelm acknowledged, under oath, that the following facts were true and correct:

In February of 2013, the Macon County Sheriffs Office received information that individuals including co-defendant Timothey McKinzie and defendant Donald Wilhelm were manufacturing methamphetamine in a trailer home in Atlanta, MO. Investigators checked NPLEX records and saw that the individuals had recently purchased pseudoephedrine.
On August 4, 2015, North Missouri Drug Task Force and Macon County Sheriffs Office served a search warrant at the residence of defendant Donald Wilhelm located at 34000 block of Mesquite St. While serving the warrant, officers located Wilhelm behind his home carrying a bucket with components of a methamphetamine lab, including:
a grinder, coffee filters, a blue plastic funnel, plastic tubing, a coffee can with a false bottom containing methamphetamine and a pipe, a clear plastic container with waste, a bottle of liquid fire, a glass jar, two glass pipes with residue, glass jar with Coleman camp fuel and lithium, a large plastic bag with separate plastic bags with foil and a set of digital scales made to look like a cd case. Items in the bottom of the coffee can field tested and came back positive for methamphetamine.

         A search of the residence revealed:

In living room: a container of denatured alcohol, a Ruger .22 cal. Rifle serial #245-55195, a Ruger Mod .45 .22 caliber pistol serial number 223-37-388, set of old scales, five packages lithium batteries, black pouch with methamphetamine (field tested positive) in multiple containers and baggies. The gun safe contained: a .22 magnum Marlin 09531792, a Ruger M77 Mk 2 .270 caliber file serial number 78154055, a New England Arms .20 gauge NF385732, Winchester Model 67 .22 caliber rifle (no serial #), a Marlin Model 25 .22 caliber serial #16705123, a Stevens Model 770 .20 gauge 780755, a Llama .45 caliber 07-04-06872-99 pistol, ammunition, and $975 cash.
In bedroom closet: a Colt .38 caliber serial number 895183, a Ruger Mk2 .22 caliber ...

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