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IN T H E UNITED S T A T E S D I S T R I C T C O U R T
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA
CRIMINAL ACTION FILE
V.

NO. l : 1 5 - C R - 3 9 0 - M H C - J F K
W I L L I A M BRYANT W H E E L E R ,
Defendant.

ORDER
I.

BACKGROUND
On October 27, 2015, a two-count indictment was retumed against

Defendant for knowingly receiving child pornography, in violation o f 18 U.S.C.
§§ 2252(a)(2) and (b)(1) (Count One), and loiowingly possessing child
pomography, in violation o f O.C.G.A. §§ 2252(a)(4)(B) and (b)(2) (Count Two).
Indictment [Doc. 8]. On March 11, 2016, Defendant entered a plea of guilty to
Count Two of the Indictment based upon a plea agreement with the Govemment.
Guilty Plea and Plea Agreement [Doc. 31]; Mar. 11, 2016, Tr. of Change o f Plea
H r ' g [Doc. 39] ("Tr."). Sentencing was scheduled for June 14, 2016. Notice of
Sentencing [Doc. 32.^

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On April 27, 2016, Defendant filed a Motion to Withdraw Plea [Doc. 35;
( " D e f s Mot."). Defendant's written motion is based on the claim that his counsel
erred by failing to advise him prior to his plea that the legality o f a search warrant
issued in this case could have been challenged through a motion to suppress
evidence based upon the decision in United States v. Levin, No. 15-10271-WGY,
2016 W L 1589824 (D. Mass Apr. 20, 2016), opinion amended and superseded by
2016 W L 2596010 (D. Mass. May 5, 2016). D e f ' s Mot. at 3-6. In addition.
Defendant contends that his plea "was not knowing and voluntary, because he did
not receive effective assistance o f counsel in discussing a possible motion to
suppress." Id. at 7. Finally, Defendant contends that allowing him to withdraw the
plea w i l l conserve judicial resources by preventing a later collateral attack on the
conviction pursuant to 28 U.S.C. § 2255, and that withdrawal o f the plea w i l l not
prejudice the Govemment. Id. at 7-9. The Govemment opposes the motion to
withdraw. Gov't's Resp. to D e f s Mot. [Doc. 40]. The Court continued the
sentencing hearing and scheduled responsive briefing on the motion. May 12,
2016, Order [Doc. 37]. The Court conducted a hearing on Defendant's Motion to
Withdraw Plea on June 22, 2016.

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II.

L E G A L STANDARD
A defendant has no absolute right to withdraw a guilty plea before

sentencing. United States v. Medlock, 12 F.Sd 185, 187 ( l l t h Cir. 1994).
Withdrawal may be permitted after a guilty plea has been accepted but prior to
sentencing i f "the defendant can show a fair and just reason for requesting the
withdrawal." United States v. Brehm, 442 F.Sd at 1291, 1298 (11th Cir. 2006)
(quoting FED. R. CRIM. P. 11(d)(2)(B)). Whether a fair and just reason exists
requires consideration ofthe totality o f the circumstances surrounding the plea,
including: "'(1) whether close assistance o f counsel was available; (2) whether the
plea was knowing and voluntary; (S) whether judicial resources would be
conserved; and (4) whether the govemment would be prejudiced i f the defendant
were allowed to withdraw his plea.'" Id. (quoting United States v. Buckles, 84S
F.2d 469, 471-72 (11th Cir. 1988). When a defendant has received close assistance
of counsel and pleaded guilty laiowingly and voluntarily, the court need "not give
considerable weight or attention to the third and fourth factors." United States v.
Harrison, 505 F. App'x 876, 880 (11th Cir. 2013) (citing United States v.
Gonzales-Mercado, 808 F.2d 796, 801 ( l l t h Cir. 1987)).
A plea may be involuntary when the defendant "has such an incomplete
understanding of the charge that his plea cannot stand as an intelligent admission
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of guilt." Marshall v. Lonberger, 459 U.S. 422, 431 (1983) (quotation marks and
citation omitted). A guilty plea also is not loiowing and voluntary i f the defendant
was denied the effective assistance of counsel under the standards of Strickland v.
Washington, 466 U.S. 688 (1984). See McCoy v. Wainwright, 804 F.2d 1196,
1198 (11th Cir. 1986) (per curiam). I n the context o f a guilty plea, the defendant
must establish that his counsel's performance was deficient, and that a reasonable
probability exists that he would not have pleaded guilty but for his counsel's
errors. See id. A court must "judge the reasonableness o f counsel's conduct on the
facts o f t h e particular case, viewed as of the time o f counsel's conduct." Roe v.
Flores-Qrtega, 428 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
Counsel must be familiar with the facts and the law in order to advise
the defendant of the options available. The guilty plea does not
relieve counsel o f the responsibility to investigate potential defenses
so that the defendant can make an informed decision. Counsel's
advice need not be errorless, and need not involve every conceivable
defense, no matter how peripheral to the normal focus of counsel's
inquiry, but it must be within the realm of competence demanded of
attorneys representing criminal defendants.
Scott V. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) (citations omitted).
It is within the trial court's purview to ascertain the "good faith, credibility,
and weight o f a defendant's assertions in support o f a" withdrawal request. Brehm,
442 F.3d at 1298 (quotation marks and citation omitted). A defendant's statements
made under oath at his plea colloquy are presumptively true. See Medlock,
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12 F.Sd at 187. Consequently, a defendant "bears a heavy burden to show his
statements were false." United States v. Rogers, 848 F.2d 166, 168 ( l l t h Cir.
1988) {per curiam).
Finally, a further consideration of the Court concerns the timing ofthe
motion to withdraw. United States v. Durham, 172 F. A p p ' x 261, 265 ( l l t h Cir.
2006) (citing United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988)). Long
delays between a plea and withdrawal motion are disfavored, and "the longer the
delay between the entry o f t h e plea and the motion to withdraw it, the more
substantial the reasons must be as to why the defendant seeks withdrawal."
Buckles, 843 F.2dat473.
IIL

DISCUSSION
Much of the evidence against Defendant in this case is a result ofthe

execution o f a search warrant on Defendant's home that was signed by Magistrate
Judge Baverman on October 21, 2015. Appl. and A f f . for Search Warrant [Doc.
35-1] ("Georgia Warrant"). The affidavit in support of the search warrant states
that an internet account at Defendant's residence was linked to an online
community o f individuals who sent and received child pomography through an
anonymous website identified as "Website A . " Id. at \ 6.

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On or about February 20, 2015, the computer server hosting "Website A "
was seized by the United States. For approximately fourteen days, from February
20, 2015, through March 4, 2015, law enforcement agents administered "Website
A " from a government-controlled computer server based upon a search warrant
issued by a United States Magistrate Judge for the Eastern District of Virginia,
which authorized the deployment o f a "Network Investigative Technique" ("the
N I T " ) in order to identify actual IP addresses used to access "Website A . " I d ,
f 24; see also Search & Seizure Warrant, In the Matter o f the Search o f Computers
That Access upf45iv3bziuctml.onion. No. l:15-SW-89, (E.D. Va., Feb. 20, 2015)
[Doc. 35-2] ("the N I T Wan^ant"). Based upon the deployment ofthe N I T Warrant,
a user with the user name o f "Hellraiser" was observed engaging in certain activity
involving child pornography on "Website A . " Georgia Warrant

25-31.

Additional investigation revealed that the user "Hellraiser" was linked to an IP
address assigned by an internet service provider to a person receiving internet
services at Defendant's home address. Id.

32-34.

A number o f defendants facing federal charges o f possession and
distribution of child pornography that resulted from identification through the use
o f t h e N I T Warrant have filed motions to suppress evidence challenging the
authority o f t h e N I T Warrant. The earliest decision appears to be from the United
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States District Court for tiie Western District of Wasliington on January 28, 2016
(six weeks prior to Defendant's guilty plea in this case), which concluded that
although the N I T Warrant "technically violates the letter, but not the spirit, o f Rule
41(b)" o f t h e Federal Rules of Criminal Procedure, suppression of evidence against
the individual defendant was not justified, because the defendant was not
prejudiced, there was no deliberate disregard of Rule 41(b), and the warrant was
executed in good faith. United States v. Michaud, No. 3:15-cr-5351-RJB, 2016
W L 337263, at *6-7 (W.D. Wash. Jan. 28, 2016). Other decisions, issued both
prior and subsequent to Defendant's guilty plea, also denied motions to suppress
evidence based upon challenges to the NIT Warrant notwithstanding the technical
violation of Rule 41(b). See United States v. Darby, No. 2:16cr36, 2016 W L
3189703, at * 14 (E.D. Va. June 3, 2016) (finding that "the N I T WaiTant did not
violate Rule 41(b) and even i f it did suppression is not warranted"); United States
v. Werdene, No. 1:15-434, 2016 W L 3002376 (E.D. Pa. May 18, 2016) (finding
that "the Government's nonconstitutional violation of Rule 41 does not offend
concepts of fundamental fairness or due process and [the defendant's] motion to
suppress cannot be granted on prejudice grounds."); United States v. Epich, No.
15-cr-163-PP, 2016 W L 953269, at *2 (E.D. Wis. Mar 14, 2016) (finding that
suppression o f evidence is not required based upon a Rule 41 violation because
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there was probable cause for the warrant to issue); United States v. Stamper, No,
1:15crl09, 2016 W L 695660, at *3 (S.D. Ohio Feb. 19, 2016) (finding a sufficient
nexus between the user who registered for an account on "Website A " and the
defendant's residence). Other courts have rejected accused child pornographers'
challenges to the government accessing their IP addresses, holding that users o f t h e
Tor anonymity network^ have no reasonable expectation o f privacy in those IP
addresses. See, e.g.. United States v. Frater, No. CR-14-1517-PllX-DGC. 2016
W L 795839, at *3-4 (D. Ariz. Mar. 1, 2016); United States v. Farrell, No. CR15029RAJ, 2016 W L 705197, at *2 (W.D. Wash. Feb. 23, 2016).
Flowever, in decisions issued subsequent to Defendant's guilty plea, two
district courts have granted motions to suppress based upon the illegality o f t h e
N I T Warrant. See United States v. Arterbury, No. 15-CR-182-JFIP, 2016 U.S.
Dist. LEXIS 67091, at* 19-35 (N.D. Okla. Apr. 25, 2016), R & R adopted by 2016
U.S. LEXIS 67092 (N.D. Okla. May 17, 2016) (finding that the NIT Warrant was
issued in violation o f Rule 41(b), was not just a technical violation, and the good
faith exception did not apply); Levin. 2016 W L 1589824 (D. Mass. April 20,
2016), opinion amended and superseded by 2016 W L 2596010 (D. Mass. May 5,
' The Tor anonymity network is a system that enables users to browse the Internet
anonymously without revealing their true IP addresses. United States v. Cottom,
No. 8:13CR108, 2015 W L 9308226, at *2 (D. Neb. Dec. 22, 2015).
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2016) (finding that neither the Federal Magistrates Act nor Rule 41(b) authorized
the issuance o f t h e N I T Warrant and that the good faith exception did not apply
because the wairant was void ab initio).

See also United States v. Matish, No.

4:16crl6, 2016 W L 3143829, at *3 (E.D. Va. June 2, 2016) ("Even though the N I T
Warrant has faced numerous challenges around the country, courts have resolved
the challenges differently.").
Defendant contends that he can show a fair and just reason to withdraw his
plea because he did not receive the close assistance of counsel due to said
counsel's "fail[ure] to spot the issue that the Eastem District of Washington search
warrant [in Levin] exceeded the magistrate [judge's] authority" and counsel
instead advised Defendant "that he did not see any issues with the warrant." D e f s
Mot. at 6. I n addition, because Defendant relied upon his counsel's advice that
there was no evidence illegally obtained by the Govemment in deciding to plead
guilty, his plea was not Icnowing and voluntary. Id, at 6-7. The Government
contends that Defendant waited seven days after leaming of the Levin decision to
file his motion to withdraw, that Defendant is simply "making a calculated
decision trying to improve his position" by now relying on Levin, and the plea
colloquy confirms that Defendant's plea was knowing and voluntary. Gov't's
Resp. at 2-7.
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A.

Whether Close Assistance of Counsel Was Available

Defendant has been represented by counsel throughout this case. Defendant
testified at the change-of-plea colloquy that he was satisfied with his attorney's
representation.
Q.

M r . Wheeler, do you feel you've had sufficient time to think
about and discuss this matter fully with your attomey before
entering your plea of guilty?

A.

Yes, sir.

Q.

Are you satisfied with the representation of your lawyer in this
case?

A.

Yes, sir.

Tr. at 14-15. "There is a strong presumption that the statements made during the
plea] colloquy are true." Medlock, 12 F.3d at 187. Defendant "bears a heavy
burden to show his statements [under oath] were false." Rogers, 848 F.2d at 168.
Based upon Defendant's demeanor and testimony during the guilty-plea colloquy,
the Court found, and still finds, that Defendant was satisfied with his attomey's
representation.
There is a "strong presumption" that an attorney makes "all significant
decisions in the exercise of reasonable professional judgment." Chandler v. United
States, 218 F.Sd 1S05, IS 14 ( l l t h Cir. 2000) (enbanc) (quoting Strickland, 466
U.S. at 669). Strategic choices, even those "made after less than compiete
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mvestigation," are evaluated for their reasonableness and "counsel's reliance on
particular lines o f defense to the exclusion o f others—whether or not he
investigated those other defenses—is a matter of strategy and is not ineffective
unless the petitioner can prove the chosen course, in itself, was unreasonable." I d ,
at 1318 (citing Strickland, 466 U.S. at 690-91).
A t the hearing conducted by this Court on June 22, 2016, the Court made
further inquiries of Defendant's counsel to ascertain the actual scope of said
counsel's knowledge conceming the potential grounds for challenging the N I T
Warrant. According to Defendant's counsel's representations to this Court, he was
unaware of any of the challenges that were made to the N I T Warrant in other
jurisdictions prior to the entry o f Defendant's guilty plea, and it was only after
learning of the decision in Levin that he became aware o f the existence of that
potential challenge. Thus, this is not a case of Defendant's counsel making a
tactical decision not to file a motion to suppress based upon prior court rulings that
went against his client's position and then "changing his tune" based upon a
favorable ruling in a subsequent case. Indeed, during the plea colloquy on March
11, 2016, Defendant's counsel affirmatively indicated that he advised Defendant
conceming the legality of any evidence the Govemment may have against him and,
to his loiowledge. Defendant was not pleading guilty because of any illegally
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obtained evidence. Tr. 13-14. Defendant's counsel indicates that, had he been
aware o f the challenges made to the N I T Warrant prior to the guilty plea hearing,
he would not have answered the Court's questions the same way. Def.'s Mot. at 6.
The Court finds that Defendant's counsel failed to file a motion to suppress
evidence arising from the N I T Warrant not as a matter of trial strategy, but because
he was deficient in failing to properly research and investigate the potential
challenge to the warrant's validity. This Court does not find that Defendant's
counsel has rendered ineffective representation; indeed, the fact that he brought
this matter to the Court's attention shortly after leaming of his failure to advise his
client appropriately belies any current or future claim of ineffective assistance o f
counsel. Nevertheless, the failure of Defendant's counsel to investigate the
feasibility o f challenging the N I T Warrant was not the exercise of reasonable
professional judgment, as is evident by the number of recent challenges filed
throughout the country.
The Govemment argues that this Court should not entertain Defendant's
Motion because the motion to suppress w i l l fail. However, the Court cannot
definitively conclude at this time that the motion to suppress will be unsuccessful.
It is certainly not a frivolous motion; although a majority o f courts that have
considered similar challenges have denied such motions, the Court is aware o f two
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district courts whicli liave granted such motions, and none o f t h e cases on either
side o f the ledger constitute binding precedent in this Circuit.
Therefore, the Court finds that, as to the availability o f a challenge to the
legality of the N I T Warrant, close assistance o f counsel was not available to
Defendant prior to the entry of his guilty plea.
B.

Whether the Plea Was Knowing and Voluntary

A knowing and voluntary plea has tlii-ee requirements: "(1) the guilty plea
must be free from coercion; (2) the defendant must understand the nature o f t h e
charges; and (3) the defendant must Imow and understand the consequences o f his
guilty plea." United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999).
During the plea colloquy, Defendant testified that no one had made any promises
other than the plea agreement that induced him to plead guilty and that no one had
threatened or coerced him into pleading guilty. Tr. 13. Defendant also testified
that he understood the elements of the charge that the Goyernment would have to
prove beyond a reasonable doubt in order to convict him at a trial and the factual
basis for his plea. Id, 15-17. Finally, Defendant testified that he understood the
consequences of his guilty plea. I d , 18-21.
Defendant does not dispute the foregoing, but instead argues that "the
analysis [as to whether the plea was knowing and voluntary] collapses into that o f
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assistance of counsel," thereby rendering the plea "not knowing and voluntary."
D e f s Mot. at 7. Based upon the plea colloquy, Defendant's plea meets the three
requirements prescribed in Mosley for a knowing and voluntary plea. That said,
based upon the Court's prior finding concerning the lack of close assistance o f
counsel, this Court also finds that had Defendant's counsel properly advised him of
the possible challenge to the N I T Warrant, Defendant may have chosen not to enter
his plea o f guilty until after the motion to suppress was filed and denied.
C.

Whether Judicial Resources Will Be Conserved and the
Government Would Be Prejudiced

Defendant's Motion to Change Plea was filed six weeks after entry o f t h e
plea, within seven days after the issuance o f the Levin decision, and almost two
months prior to the scheduled sentencing. Although this might not be considered a
"swift change o f heart," it also was not made on the eve of sentencing or after a
prolonged delay. Compare United States v. Pitts, 463 F. App'x 831, 833 (11th Cir.
2012) (denying motion to withdraw plea filed four months after guilty plea and "on
the heels o f receiving the presentence investigation report, the day before the
scheduled sentencing hearing"); United States v. Luczak, 370 F. A p p ' x 3,5(11th
Cir. 2010) (denying motion to withdraw plea filed seven months after plea, which
"showed that [defendant's] true motive was dissatisfaction with the guidelines
sentence range recommended in the fmal presentence report"). Given the seven
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days that elapsed between the issuance o f Levin, which triggered Defendant's
counsel's awareness o f the potential challenge to the N I T Warrant, the Court does
not believe the filing o f t h e motion was unreasonably delayed.
The motion to suppress can be filed and resolved expeditiously. Moreover,
the Government admitted at the motion hearing that it will not suffer any prejudice
should the motion be granted beyond the relatively minor delay. Should this case
go to trial, all witnesses for the Government will be law enforcement officers who
w i l l be available to testify. Defendant w i l l continue to be incarcerated during the
pendency o f the motion to suppress until the resolution ofthis case. In addition,
deciding the motion to suppress now w i l l avoid a collateral attack on the
conviction based upon counsel's failure to file the motion to suppress at the outset
of the case.
As a final matter, this Court must address Defendant's argument in his
motion that ' ' [ i ] f a motion to suppress is denied, the case is unlikely to go to trial."
D e f s Mot. at 8-9. As the Government stated at the motion hearing, the plea
agreement that was previously negotiated by the parties will no longer be in effect
once the plea is withdrawn. Consequently, i f Defendant's motion to suppress is
denied, it is unknown whether this case w i l l ultimately be resolved by a plea or
whether the case w i l l go to trial. A t the motion hearing, Defendant's counsel
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represented to this Court that the possible implications o f t h e withdrawal ofthe
plea upon the disposition o f Defendant's case, both positive and negative, have
been discussed by counsel with Defendant, and Defendant still wishes to maintain
his position that the plea should be withdrawn and the motion to suppress pursued
regardless o f the ultimate disposition ofthis case.
Based upon the four criteria for withdrawal of a plea, the Court finds that
Defendant did not receive close assistance o f counsel with respect to the decision
as to the sufficiency of a challenge to the NIT WaiTant; that i f Defendant was
advised o f the potential challenge, he may have chosen not to enter the plea at that
time; and that permitting Defendant to withdraw his plea and file a motion to
suppress evidence would conserve judicial resources and not prejudice the
Government.
IV.

CONCLUSION
Based on the foregoing, it is hereby O R D E R E D that Defendant's Motion to

Withdraw Plea [Doc. 35] is G R A N T E D . Defendant's plea o f guilty entered on
March 11, 2016, is hereby W I T H D R A W N .
It is further O R D E R E D that Defendant shall file his motion to suppress
evidence based upon the N I T Warrant within fourteen (14) days of the date o f t h i s
Order.
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It is furtiier O R D E R E D that Defendant's motion to suppress shall be
referred to Magistrate Judge King for the issuance of a Report and
Recommendation, and that Judge King shall enter any other necessary pre-trial
orders relating to the disposition of that motion.
It is further O R D E R E D that the time between the date this case was
declared ready for trial on February 18, 2016, and the Order of this Court that
decides whether to adopt the Magistrate Judge's Report and Recommendation on
Defendant's motion to suppress evidence, shall be excluded in calculating the date
on which the trial of this case must commence under the Speedy Trial Act because
the Court finds that the delay is for good cause, and the interests of justice in
granting the continuance outweigh the right of the public and the right ofthe
defendant to a speedy trial, pursuantto 18 U.S.C. § 3161, et seq.
I T I S SO O R D E R E D this 23rd day of June, 2016.

/

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A

W

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MARIC H. COHEN
United States District Judge

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