United States District Court, D. Maryland, Southern Division
MEMORANDUM AND ORDER
W. GRIMM, UNITED STATES DISTRICT JUDGE
22, 2015, Petitioner Leonaldo Harris pleaded guilty to
conspiracy to distribute and possess with intent to
distribute 1, 000 kilograms or more of a mixture and
substance containing a detectable amount of marijuana under
21 U.S.C. § 846, for which he currently is serving a
10-year sentence. See Plea Agreement 1, 8, ECF No.
163; J. 2, ECF No. 229. He has filed this habeas action to
vacate, set aside, or correct his sentence. 28 U.S.C. §
2255(a). For the reasons explained below, it is denied.
statement of facts accompanying his plea agreement, Mr.
Harris acknowledged that between September 2012 and April
2013 he made arrangements to ship marijuana from California
to Maryland, where it was to be repackaged and distributed.
See ECF No. 163-1. Authorities apprehended him on
April 19, 2013, as he fled the scene of a controlled delivery
of previously seized marijuana. See id.
Harris's drug shipments had been discovered two days
earlier, when employees of YRC Freight ("YRC"), a
freight shipping company, identified two suspicious parcels
at a YRC facility in Pennsylvania. See Pa. Incident
Report, ECF No. 64-8. A YRC weights and inspection
coordinator opened and searched Mr. Harris's pallet at an
offload site in Pennsylvania and discovered hundreds of
kilograms of marijuana. See Sentencing Hr'g Tr.
8, ECF No. 238. Soon after, a YRC security manager called the
Pennsylvania State Police, which obtained a
search-and-seizure warrant. See Mot. to Suppress 4,
ECF No. 64; Pa. Incident Report. The Pennsylvania State
Police contacted the Maryland State Police, which likewise
obtained a search-and-seizure warrant and took control of the
two pallets. See Pa. Incident Report; ECF No. 64-9.
pleading guilty, Mr. Harris moved to withdraw his guilty
plea. See ECF No. 171. He went back and forth on
this decision over the next several months, first moving to
withdraw the withdrawal before finally attempting to resubmit
it in a new motion. See ECF Nos. 187, 222.1 denied
Mr. Harris's motion to resubmit the withdrawal of his
guilty plea. See ECF No. 224. The Fourth Circuit
denied Mr. Harris's appeal on April 5, 2017. See
ECF No. 243. Mr. Harris did not seek certiorari.
Harris filed a number of pretrial motions, but the two most
relevant at present are his November 4, 2013, motion to
suppress, ECF No. 64, and his June 20, 2014 motion to reopen
the record, ECF No. 122.
Motion to Suppress
motion to suppress challenged the evidence seized by the YRC
weights and inspection coordinator, arguing it was the fruit
of an unconstitutional warrantless search. See Mot.
to Suppress 9. Mr. Harris argued that YRC employees were
acting as instruments of the Government when they inspected
the pallets. See Mot. to Suppress Reply 2-3, ECF No.
68. Mr. Harris pointed to YRC's agreement to cooperate
with a federal cargo security program known as the
Customs-Trade Partnership Against Terrorism (C-TPAT) as
evidence that the Government had "knowledge and
acquiesce" with regard to YRC's actions.
Id. at 4.
denied the motion to suppress on May 16, 2014, after a
six-day hearing that featured 11 witnesses and 38 exhibits.
In my ruling, I explained that Mr. Harris had not met his
burden of showing that YRC acted as an agent or
instrumentality of the Government, and that YRC's
voluntary participation in the C-TPAT did not constitute
mandated searching. See Jan. 13, 2014 Hr'g Tr.
229-270, ECF No. 80; May 15, 2014 Hr'g Tr. 47, ECF No.
Motion to Reopen the Record
Harris later filed his motion to reopen the record, urging me
to reconsider my ruling on the motion to suppress in light of
"new" evidence that, he said, showed the YRC
employees had, indeed, acted as an "instrument of the
Government." Mot. to Reopen R. 8-10 & n.4. In
particular, the motion said the defense's expert, Barry
Brandman, had reviewed his old files and discovered a C-TPAT
PowerPoint presentation entitled "Supply Chain Security
in a Post 9/11 Environment." See Id. at 10;
PowerPoint, ECF No. 122-3. The PowerPoint, made available to
C-TPAT participants by the Government, contained suggestions
for C-TPAT members (such as YRC) to be alert for during
inspection of suspected contraband. See PowerPoint
motion explained that the PowerPoint was not previously
introduced because it was not publicly available on the U.S.
Customs and Border Protection ("CBP") website and
defense counsel did not have access to C-TPAT's web
portal. See Mot. to Reopen R. 10. The
Government, in response, argued that since an expert witness
had access to the PowerPoint from his "old files"
after the Motion to Suppress hearing, it must have been
available to defense counsel prior the hearing. See
ECF No. 132. The defense disputed the point, saying
[I]t was not a lack of diligence on the part of the defense
that resulted in the belated discovery and introduction of
this document. After several subpoenas and painstaking
research, the defense produced what the Government deems
"thousands of pages of exhibits" in support of the
argument that YRC's actions were fairly attributable to
Mot. to Reopen R. Reply 5, ECF No. 133. In addition, Mr.
Harris's then counsel argued that the specific issue
addressed by the PowerPoint became clear only after the
Court's opinion on the motion to suppress:
The Court's opinion ... made clear that the Court
specifically required evidence establishing not only that
members be explicitly directed to open and/or search but also
required explicit evidence showing that "search",
"inspect", "detect", and "open"
were synonymous and included the act of opening. Without the
Court's opinion, there was no reason to seek this
document that the defense did not know existed as the defense
believed the record was already clear that by repeatedly
instructing YRC to "detect" or "inspect"