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Citations to CIV DE:No.

refer to this 2255 civil docket and citations to CR


1
DE:No. refer to the underlying criminal case docket in case number 01-8084-CR-JAL.
The Law Offices of Marc David Seitles, P.A.
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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-81283-CIV-LENARD
ELROY PHILLIPS
Plaintiff,
VS.
UNITED STATES OF AMERICA,
Defendant.
____________________________________/
DEFENDANTS MEMORANDUM IN SUPPORT OF THE PARTIES JOINT MOTION
TO VACATE THE DEFENDANTS CONVICTIONS ON COUNTS 1, 9, 14 AND 17 AND
TO DISMISS WITH PREJUDICE COUNTS 1, 9, 14, AND 17 OR, IN THE
ALTERNATIVE, A RENEWED MOTION FOR RELEASE OF MOVANT ON BOND
PENDING RESOLUTION OF THE JOINT MOTION TO VACATE
Elroy Phillips, through counsel, hereby files this Memorandum in Support of the Parties Joint
Motion to Vacate the Defendants Convictions on Counts 1, 9, 14 and 17, or, in the Alternative, a
Renewed Motion for Release of Movant on Bond Pending Resolution of the Joint Motion to Vacate.
The Government and Mr. Phillips filed a Joint Motion to Vacate Defendant's Convictions
on Counts 1, 9, 14, and 17 and to Dismiss with Prejudice Counts 1, 9, 14, and 17 (Joint Motion to
Vacate) (CIV DE:268) on May 4, 2012. This Joint Motion was largely based upon the parties
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newfound knowledge that West Palm Beach Police Department (WPBPD) Officer Ghent
(Ghent) had engaged in dishonest and unlawful conduct while the Government was relying on his
testimony to support its conviction of Elroy Phillips. Ghents change in crucial elements of his
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testimony as well as other general lies such as Ghents lying to the Government about his marital
situation, children, employment, drug use, sexual relationship with a confidential informant,
extortion, solicitation to commit prostitution, falsifying information on government forms, and his
submission of a false sworn affidavit in a state criminal prosecution led the Government to its
conclusion that Ghent was not truthful on the stand when testifying before this Court. The parties
therefore asked the Court to vacate his conviction on all counts, except for Count 11, as these
convictions were all based on information provided by or testimony of Ghent.
The Court should grant the Parties Joint Motion to Vacate and order Mr. Phillips immediate
release because: (A) the Government committed a Brady/Giglio/Agurs violation by not revealing
Ghents contemporaneous criminal conduct to Mr. Phillips even though his case was still pending
until the denial of his Petition for a Writ of Certiorari on May 21, 2008; (B) Ghents lies, fabrication
of a police report, and false testimony establish that Mr. Phillips is actually innocent of the April 6th
offense, undermines confidence in this Courts and the Eleventh Circuits denial of the Motion for
New Trial, and affects the other counts in this case as they are either directly or indirectly based on
Ghent; and (C) former counsel was ineffective in failing to bring evidence of Mr. Phillips actual
innocence and Ghents lies before the jury.
The arguments set forth in this detailed memorandum of law responds with concrete answers
to the Courts concerns in denial of the Joint Motion for Bond, and provides specific portions of a
very voluminous record to support why the Joint Motion to Vacate can and should be granted
without an evidentiary hearing. Mr. Phillips has spent 12 years in jail for convictions based premised
on the investigation, reports and testimony on an officer who engaged in dishonest, immoral, illegal,
and illicit conduct. Now, Mr. Phillips prays that justice can finally be served and that he can be
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immediately released from federal custody.
PROCEDURAL HISTORY
This case has a long and complicated procedural history. On June 7, 2001, a complaint and
arrest warrant were issued by Magistrate Judge Linnea R. Johnson for the arrest of Mr. Phillips.
(Joint Factual Proffer, CIV DE:281-1 at 7.) The affidavit in support of the criminal complaint was
signed by DEA Special Agent John Enockson, a member of the Drug Enforcement Administrations
(DEA) Mobile Enforcement Team (MET Team), deployed in West Palm Beach to target the
growing number of crack dealers in certain neighborhoods: operation crackdown. (Id.) All parties
agree that the affidavit in support of the criminal complaint was based entirely upon information
provided to Agent Enockson by Ghent in a written report. (Id.)
The next day Agent Enockson prepared an application for a search warrant for Elroy Phillips
residence located at 1103 35th Street, West Palm Beach, Florida. (Id. at 10.) Among other things,
the affidavit repeated, verbatim, Ghents allegations that had been contained in the affidavit in
support of the criminal complaint. (Id.) It was pursuant to that search warrant, that Agent Enockson
found the ammunition that is the conduct charged in counts 14 and 17. (See id. at 11.) A federal
grand jury sitting in West Balm Beach, Florida then returned an eighteen-count superseding
Indictment against Mr. Philips. (Id. at 13.) During Agent Enocksons grand jury testimony, he
referred to Ghents report regarding the events of April 6, 2001. (Id.)
On December 2, 2002, the jury was impaneled in the trial of United States v. Elroy A.
Phillips, Court File No. 01-CR-08084-JAL. (Id. at 17.) And on the tenth day of trial, December
16, 2002, Ghent testified that, on April 6, 2001, he engaged in a controlled buy with his confidential
informant and Elroy Phillips, as it was getting dark, at approximately 9:30 p.m. (Id. at 19.) Ghent
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made clear that he went to 625 8th St. due to citizen complaints: he was not there at the request of
the MET team and he was not targeting Mr. Phillips. (Joint Memorandum of Law, CIV DE:281:6
(On cross-examination, Ghent also was questioned about whether his investigation was truly
independent from the MET Teams investigation. Ghent insisted that it was: Q. When your
informant went up on April 6th, 2001, did you specifically send your informant up to see Mr. Phillips
on that day? A. No, I did not. Q. Did you, in fact, know who Mr. Phillips was before that day? A.
Yes, I did. Q. Yet you did not specifically target Mr. Phillips? A. No.).) During this testimony, for
the first time, Ghent presented a police report for the April 6, 2001 controlled buy. This report was
not anywhere in the West Palm Beach Police Departments files nor was it provided in discovery.
On December 20, 2002, Mr. Phillips was found guilty of five of the nineteen charged counts.
Specifically, he was found guilty of Count 1 conspiracy to distribute five grams or less of crack
cocaine; Count 9 distribution of crack cocaine on April 6, 2001 to a confidential informant and
Ghent; Count 11 simple possession of powder cocaine on June 8, 2001, when patrol officers found
a small amount of cocaine on Phillips person after stopping his vehicle; and Counts 14 and 17
possession of ammunition by a convicted felon found, pursuant to a search warrant, during the search
of Mr. Phillips residence (these counts are joined for purposes of these proceedings). (CR DE:239.)
On September 5, 2003, Mr. Phillips filed a Motion for New Trial Based on Newly
Discovered Evidence and Request for Evidentiary Hearing (Motion for New Trial) pursuant to
Fed. R. Crim. P. 33 (CR DE:296), asking for a New Trial based on newly discovered evidence that
Ghent was lying and the April 6, 2001 police report was fabricated, the Governments failure to turn
over this April 6th report until the day of trial, and the Governments failure to turn over tape
recordings and information about confidential informants. On April 15, 2004, in Response to Mr.
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This fact, however, is now known to be false. Ghent has since admitted that he did not
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go to 625 8th St. based on citizen complaints about Mr. Phillips and that he did not go to 625 8th
St. in January of 2001. As explained in the parties Joint Memorandum of Law in Support of the
Motion to Vacate (CIV DE:281), a deposition of Ghent was taken pursuant to an order entered by
Magistrate Judge White. (CIV DE 249.) In that deposition, Ghent disclosed that he went to 625
SW 8th St. at the behest of Officer Kapper. This statement directly contradicts his pre-trial
statements, reports, and testimony at trial. Furthermore, although Ghent testified at trial about
the existence of citizen complaints, the investigation undertaken as part of the 2255
proceedings has uncovered no documentary evidence of such complaints.
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Phillips Reply in Support of the Motion for New Trial (CR DE:372), the United States relied on an
affidavit from Ghent and on Ghents testimony at trial that the April 6, 2001 drug deal did in fact
occur. (See Ex. A, Ghent Affidavit, CIV DE:68-15.) In that affidavit, for the first time, Mr. Phillips
stated that he engaged in a controlled buy with Elroy Phillips on April 6th, not, as he had testified
at trial, based on citizen complaints, but at the request of Officer Brian Kapper (the WPBPD Officer
assigned to the MET Team). (See id.) Additionally, in that affidavit, Ghent also stated for the first
time, that he had attempted a controlled buy with Elroy Phillips on May 28, 2001 as well. (See id.)
This Court then denied the Motion for New Trial (CR DE:375) on May 11, 2004, finding that
the April 6th police report was not material, as the jury could have relied upon the testimony of
Ghent at trial finding that, having heard all of the testimony, Ghents testimony was credible and
unlikely to have been undermined by the documentary inconsistencies that Mr. Phillips had found.
(Id.) Specifically, the Court found the new evidence that the report was opened on May 28th, and
not April 6th, did not raise an inference that the April 6th report was fabricated because it was
undisputed that Agent Ghent received a citizen complaint in January of 2001, prior to requesting a
case number. (Id. at 22.) The Court found that this fact explained why the report would have been
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opened in May 2001. (Id.) Moreover, the Court found that Ghent did not commit perjury at the trial
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It has also now been established that there were material inconsistencies in Ghents
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statements regarding the April 6th incident. For example, as outlined in the parties Joint Motion
in Support of the Motion to Vacate and the parties Joint Factual Proffer, at trial Ghent said that
he went to 625 8th St. because of citizen complaints, but in an affidavit after trial, Ghent said he
went at the request of Officer Kapper. (CIV DE: 281:11-12.) And Ghent first testified at trial
that he had observed Mr. Phillips at 625 8th Street on several occasions prior to the purchase on
April 6, 2001, but he later stated in an affidavit that the first time he ever saw Mr. Phillips was on
April 6, 2001, during the drug transaction with Gnita Chappelle. (Id.)
As outlined in footnote 2, this is now known to be false.
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because there were not any material inconsistencies. (Id. at 24.)
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Mr. Phillips direct appeal then resumed. As part of this appeal, Mr. Phillips contended that
the district court erred in denying Mr. Phillips Motion for New Trial based upon the newly
discovered evidence that Ghent was lying and the April 6th police report was fabricated. (DE:281-1
at 28.) On April 26, 2006, the Appellate Court reversed and ordered Mr. Phillips be re-sentenced,
but affirmed on all other counts including the denial of the Motion for New Trial. The Eleventh
Circuit also based its denial of Mr. Phillips claim regarding his Motion for New Trial, in large part,
upon the testimony at trial and affidavit of Ghent. Specifically, the Eleventh Circuit held that even
though, according to Kapper, the investigation into Mr. Phillips did not begin until at least April 11th
which would make the April 6th incident impossible Ghents testimony that the controlled buy
on April 6th was not done at Agent Kappers behest, but based on citizen complaints, supports Mr.
Phillips conviction. (See Ex. B, 11th Circuit Opinion in Case No. 03-14413, CIV DE:68-21:37-
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39.)
On May 31, 2006, the Eleventh Circuit issued its mandate on Mr. Phillips direct appeal.
(CR DE:387.) Mr. Phillips was then re-sentenced before this Court on July 5 and 31, 2006. (CR
DE:391, 402, 403). On August 28, 2006, the United States filed a Notice of Appeal from the
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Amended Judgment (CR DE:412) and on September 1, 2006, Mr. Phillips cross-appealed (CR
DE:413). In his cross-appeal, Mr. Phillips re-raised the issue of whether Ghent committed perjury
requiring Mr. Phillips to receive a new trial. On January 11, 2008, the Eleventh Circuit denied Mr.
Phillips appeal. (CR DE:439.) Mr. Phillips thereafter filed a Petition for Writ of Certiorari, again
asserting that the district court erred in denying the Motion for New Trial based upon Ghents
perjury. (CIV DE:281-1 at 45.) The United States Supreme Court denied the Writ for Certiorari
on May 21, 2008. (CR DE:442.)
On November 3, 2008, Mr. Phillips filed a Motion to Vacate, Set Aside or Correct Sentence
alleging prosecutorial misconduct and Brady violations, asserting actual innocence based on the
newly discovered evidence that the drug deal on April 6, 2001 never happened, and finally alleging
ineffective assistance of counsel. (CIV DE:1.) After United States Magistrate Judge White
recommended denying the Motion (CIV DE:166), on September 8, 2011, this Court entered an Order
(CIV DE:219) reversing that decision and referring the Motion to Vacate back to Judge White for
an evidentiary hearing on: (1) Ghents criminal conduct during the time period of the offenses; (2)
former counsels failure to request and discover the identity of the confidential informant; (3)
whether Mr. Phillips is actually innocent of Count 9; (4) if Mr. Phillips innocence of Count 9 would
affect the other counts; and (5) former counsels failure to obtain impeachment evidence against
Ghent regarding the April 6th event.
Based on this Courts September 11, 2011 Order, the Government began an independent
investigation into the matter. The Government re-interviewed Ghent and looked into the criminal
conduct that led to Ghents 2007 arrest. This investigation led the Government to determine that
Ghent had been under investigation by his own police department for engaging in a sexual
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Neither party has asked to vacate or dismiss Count 11, as all parties agree that it is not
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related.
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relationship with his informants, using illegal substances, extorting a massage parlor, and lying on
rental property applications, had been investigated by the FBI and then the U.S. Attorneys Office
for these illegal activities, and then lied about the investigation and the allegations when interviewed
by the Government. (See CIV DE:281:9-11.) The Government also determined, through interviews
with Ghent, that he had made numerous false statements regarding the April 6th controlled buy
during his trial testimony. (See CIV DE:281:11-14.) The Government therefore joined in Mr.
Phillips Motion and filed a Joint Motion to Vacate the Defendants Convictions on Counts 1, 9, 14,
and 17 and to Dismiss with Prejudice. (CIV DE:268, CIV DE:274.) The Government explained
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that:
Agent Ghents repeated lack of candor in a variety of instances and
Brady/Giglio concerns arising from falsehoods and related conduct
. . . cumulatively give rise to a colorable possibility that false
testimony may have formed the basis of Phillips conviction and that
the waters of justice may have been polluted in this case.
(CIV DE:274.) The U.S. Attorneys Office therefore asked the Court to vacate these convictions
under 2255 and then, once they were vacated, the Government explained it would not re-prosecute
Mr. Phillips, but dismiss those counts with prejudice.
On May 16, 2012, the Court held a Status Conference and asked the parties to submit a Joint
Memorandum of Law and Fact. (CIV DE:279.) The Court specifically asked the parties to brief
how Ghents untruthful testimony affected the counts other than Count 9. In other words, how
would the lack of a drug deal on April 6, 2001 affect his convictions of Counts 1, 14 and 17. Mr.
Phillips and the Government then filed a Joint Memorandum of Law in Support of the Motion to
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These issues have mostly been addressed in subsequent pleadings and are all addressed
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below in detail: there are no more outstanding issues before this Court. The Government has
since stipulated that Ghent was part of the prosecution team and his knowledge of his improper
and illegal activities is enough under the law; Ghents improper, untrustworthy and illegal
actions would have been admissible even if he was never found guilty of committing a crime
because they go to his character, truthfulness, and bias as a witness; these actions were
committed during the pendency of these proceedings Ghent engaged in this activity while this
Court relied on Ghents testimony and affidavit in denying the Motion for New Trial (May 11,
2004), the Eleventh Circuit relied on Ghents testimony and affidavit in upholding that denial
(April 26, 2006) and Mr. Phillips claim that Ghents testimony was fabricated was still pending
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Vacate (CIV DE:281) and a Joint Factual Proffer (CIV DE:281-1), explaining that Ghents lies about
April 6th and his criminal conduct affected Counts 14 and 17 because the search warrant, which led
the Government to find the ammunition charged in Counts 14 and 17, was based on Ghents
statement that Mr. Phillips engaged in a drug deal on April 6th. Similarly, the parties explained that
Count 1 should be dismissed because the probable cause affidavit for the complaint and his arrest
was based on Ghents false information and the jurys decision to only hold Mr. Phillips
accountable for the drug amount allegedly involved on April 6th, shows that the jury depended on
this April 6th drug transaction to find Mr. Phillips guilty of Count 1.
The parties then filed an Agreed Motion for Bond pending the ruling on the Joint Motion
to Vacate. (CIV DE:292.) The Court subsequently denied this Motion, finding that Mr. Phillips had
not demonstrated a likelihood of success on the merits and that extraordinary and exceptional
circumstances did not exist. (CIV DE:309.) The Court found a lack of likelihood of success on the
merits because: (1) the Government did not know about Ghents actions at the time of the trial; (2)
Ghent was not part of the prosecution team; (3) Ghent never admitted guilt for his charged crimes;
(4) Ghent did not commit these actions prior to trial; and (5) others corroborate Ghents claims and
Mr. Phillips convictions.
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until the Supreme Court denied his Petition for Certiorari (May 21, 2008); and there is no
evidence, nor individual who corroborates Ghents testimony that there was an April 6th drug
deal.
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The Court then held a hearing, on October 5, 2012, where all parties discussed the issues to
be addressed at a future evidentiary hearing. (CIV DE:312.) Counsel for Mr. Phillips told the Court
it intended to present evidence that: (1) Ghent was part of the prosecution team; (2) the April 6, 2001
drug buy did not happen; and (3) former counsel was ineffective in not calling the confidential
informant and in not establishing that Ghents testimony was false. Mr. Phillips counsel also
pointed the Court to United States v. Calle, 822 F.2d 1018 (11th Cir. 1987) to explain why Ghents
misconduct would have been admissible at trial even if he was not found guilty of committing a
crime. Counsel explained that in Calle, the Eleventh Circuit found that evidence a Government
witness was not who he pretended to be was admissible. As Ghent held himself out as a law abiding
police officer, evidence that Ghent was actually engaging in illegal and immoral behavior, and not
a trustworthy undercover police officer, would similarly have been admissible at trial in this case.
The Government further told the Court that it believed some of these issues had been stipulated to
and did not need to be presented at an evidentiary hearing: specifically that Ghent was a member of
the prosecution team.
Mr. Phillips then filed a Memorandum of Law (CIV DE:314), outlining how Ghents bad acts
would have been admissible at trial under Calle, 822 F.2d 1018, to establish that Ghent was not who
he pretended to be. Counsel also explained that evidence Ghent was doing drugs was material it
went to his memory and his state of mind at the time of the crime. Further, these actions were
imputed to the Government because Ghent was a member of the prosecution team: Ghent was an
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The Governments Brady obligations actually continued up until the Supreme Court
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denied Mr. Phillips Petition for Writ of Certiorari on May 21, 2008, as the denial of Mr.
Phillips Motion for New Trial was raised in that document as well.
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undercover member of the MET investigation team for months and he stated in an affidavit that he
went to 625 8th St. upon the direction of Agent Kapper a member of the MET investigation team.
The United States further filed a Memorandum of Law (CIV DE:317) stating that the
Confidential Informants testimony would have been admissible at trial as evidence of Ghents bias
(he was having sexual relations and engaging in illegal drugs with his confidential informant),
Ghents drug use would have been admissible to shed light on his ability to recollect the events of
April 6th, and Ghent was unequivocally a member of the prosecution team. Moreover, the
Government explained that it (as well as the Court) relied on Ghent in its Response to Mr. Phillips
Motion for New Trial and the Eleventh Circuit also relied on that testimony in denying Mr. Phillips
Appeal, extending the relevant time period for when a Brady violation could have occurred. In other
words, the Governments obligations under Brady continued up until the Eleventh Circuit denied
Mr. Phillips Appeal on April 26, 2006, which was based on his Motion for New Trial and therefore
Ghents testimony.
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On May 23, 2012, the undersigned replaced Mr. Zelman as Mr. Phillips CJA appointed
counsel. (CIV DE:334.) After defense counsel spent countless hours reviewing the discovery,
voluminous pleadings, and stipulations and discussed the status of the case with the Government,
it became clear that all underlying issues have already been resolved in the pleadings and there is
therefore no need for an evidentiary hearing. Mr. Phillips has already spent twelve years in jail for
these convictions, over a year and a half of which was after both parties agreed that his convictions
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should be vacated. Mr. Phillips therefore asks that the Court grant the Joint Motion to Vacate
without any further proceedings. Alternatively, if the Court believes it needs to hold an evidentiary
hearing, or cannot rule on this Motion immediately, then Mr. Phillips asks that he be released on
bond pending the outcome of this Joint Motion to Vacate.
DISCUSSION
This Court should grant the Parties Joint Motion to Vacate because: (A) the Government
committed a Brady/Giglio/Agurs violation by not revealing Ghents contemporaneous criminal
conduct to Mr. Phillips even though his case was still pending until the denial of his Petition for a
Writ of Certiorari on May 21, 2008; (B) Ghents lies, fabrication of a police report, and false
testimony establish that Mr. Phillips is actually innocent of the April 6th offense, undermines
confidence in this Courts and the Eleventh Circuits denial of the Motion for New Trial, and affects
the other counts in this case as they are either directly or indirectly based on Ghent; and/or (C)
former counsel was ineffective in failing to bring evidence of Mr. Phillips actual innocence and
Ghents lies before the jury.
A. GHENTS CONTEMPORANEOUS CRIMINAL CONDUCT
Ghent engaged in contemporaneous criminal activity while he was being relied upon by the
Government and this Court to convict Mr. Phillips and then by the Eleventh Circuit to uphold those
convictions. Not only would this information have changed the outcome of the proceeding because
the jury would not have believed Ghents testimony, but had the Government known about these
misdeeds neither the agents, nor the prosecutors, would have relied on Ghent to arrest Mr. Phillips,
to search Mr. Phillips home, to convict Mr. Phillips, to support his convictions in the face of a
Motion for New Trial, or to support his convictions in the face of an appeal based on the Motion for
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New Trial. As Mr. Phillips request for a new trial, based on Ghents lies and misconduct, was
pending until the Supreme Court denied his Petition for Writ of Certiorari on May 21, 2008, the
failure to turn over the exculpatory information about Ghent up to that date is a Brady/Giglio/Agurs
violation requiring that all counts be vacated.
i. Legal Standard
A failure to provide exculpatory information, including information that undermines the
credibility of a key government witness, is a due process violation, irrespective of the good faith or
bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405
U.S. 150 (1972); United States v. Agurs, 427 U.S. 97 (1976). Where there was a failure to disclose
impeachment material, a criminal defendant is entitled to relief under 28 U.S.C. 2255 where the
suppressed evidence is material, there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different, and its later
discovery undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667,
678, 682 (1985).
Furthermore, if multiple items of impeachment information are suppressed such that, taken
cumulatively, the suppression undermines confidence in the outcome of the trial, the defendant is
entitled to collateral relief, even if each piece taken individually would not have resulted in an
acquittal. Kyles v. Whitley, 514 U.S. 419, 435 (1995).
ii. Ghents contemporaneous criminal activity
As outlined in the parties Joint Factual Proffer (CIV DE:281-1), prior to and while Ghent
supplied his statement to the DEA for use in preparing the search warrant application for Mr.
Phillips residence, Ghent was using and distributing controlled substances. And prior to and while
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Ghent provided a statement to the DEA for use in preparing the arrest warrant for Mr. Phillips, Ghent
was using and distributing controlled substances. Prior to Ghent=s testimony at trial, and prior to his
writing and signing an affidavit that was relied upon by the Government, the Court, and the Eleventh
Circuit in upholding Mr. Phillips convictions, Ghent was using and distributing controlled
substances. (See e.g., CIV DE:281-1 at 50-51 (Gnita Chappelle, the CI in this case, stated that she
personally witnessed Ghent use cocaine on many occasions, that she had observed Ghent
package cocaine for sale; and that she had seen Ghent engage in cocaine sales not related to his
police work); CIV DE:281-1 at 51, 54(c) (There are numerous reports of Ghents drug use,
beginning while he worked as a police officer in Boynton Beach, Jacksonville (where he worked
before the WPBPD), and continuing while he worked at West Palm Beach.); CIV DE:281-1 at 32
(Ghent snorted cocaine in the presence of the workers at Relax with Us).)
And, as explained in the Joint Factual Proffer (DE:281-1), between the time of the trial and
the time that Ghent signed the Affidavit filed in Opposition to Phillips Motion for New Trial, he
began engaging in another form of criminal conduct: accepting bribes from the owners of a massage
parlor where he was also receiving prostitution services, in violation of Florida Statute section
838.015. In mid-2003, Ghent began coercing weekly payments from the owner of Relax with Us,
complaining that he was not paid enough by the WPBPD. (CIV DE:281-1 at 26; see also Ex. C,
Police Report on Ghents Conduct, CIV DE:183:46). This information and the underlying details
were disclosed in sworn statements made by the owners and some employees of Relax with Us.
(Id.) On February 22, 2005, while Mr. Phillips appeal was still pending, Ghent received a personal
check for $12,500 from the owners of Relax with us. (CIV DE:281-1 at 29; see also Ex. D,
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Ghent Deposition, CIV DE:280-3:257-59.) The $12,500 check was provided to investigators in
2007, and Ghents fingerprint was recovered on the check. (CIV DE:281-1 at 29; see also Ex. E,
Ghent Probable Cause Affidavit, CIV DE:112-3:17; Ex. F, Checks from Relax with Us, CIV
DE:280-4:10-11.) At around the same time, the owners of Relax with Us gave Ghent $9,000 in
cash during a transaction that was videotaped without Ghents knowledge. (CIV DE:281-1 at 29;
see also Ex. G, Statement of Jean M. Lesueur, CIV DE:183-1:24-28.)
While Mr. Phillips appeal was still pending, Ghent also falsified government housing
documents, a felony in violation of Florida Statute section 92.525(3). On October 3, 2005, Ghent
had the owner of Relax with Us sign a Florida Housing Finance Corporation Employment Form,
which falsely stated that Ghent was employed at Relax with Us as a manager earning less than
$30,000 per year, and Ghent used that form to apply to live at the Malibu Bay Apartment Complex,
a government subsidized housing complex. (CIV DE:281-1 at 30; see also Ex. E, CIV DE:112-
3:6-7; Ex. H, Ghent Rental Application, CIV DE:280-4:20-22.) And then on November 4, 2005,
Ghent signed a Florida Housing Finance Corporation Tenant Income Certification Form, which
falsely stated that he had worked for Relax with Us since September 2000 as a manager earning
$29,978. (See CIV DE:281-1 at 31; see also Ex. E, CIV DE:112-3:6-7; Ex. D, CIV DE:280-3:23.)
Ghent later filled out a Re-certification Questionnaire and falsely reaffirmed that he was employed
for Relax with Us since September 2000 earning $28,978. (Id.)
Further, from 2005 through 2006, Ghent paid R.B., one of the workers at Relax with Us,
to masturbate him on eleven separate occasions a violation of Florida Statute 797.07, Prohibiting
Prostitution and Related Acts. (CIV DE:281-1 at 32; see also Ex. I, Statement from R.B., CIV
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DE:183-1:49-52, 58.) And Ghent asked R.B. to engage in oral and vaginal sex for money, but R.B.
refused. Id. Ghent also threatened to deport the owners of Relax with Us if one victim did not
engage in sexual intercourse with him. (Id.)
Finally, in a recorded sworn statement, Ms. Chappelle, the CI in this case, stated that during
the time she was supposedly acting as Ghents CI, they went to night clubs together and had sexual
relations. (CIV DE:281-1 at 50-51; see also Ex. J, Affidavit of Gnita Chappelle-Simmons, CIV
DE:186:9.) Ms. Chappelle specifically declared that she had personally witnessed Ghent use
cocaine on many occasions; that she had observed Ghent package cocaine for sale; and that she
had seen Ghent engage in cocaine sales not related to his police work. (Id.) Ms. Chappelle also later
told FBI agents and AUSA Rolando Garcia that Ghent was a dirty cop, that she sold drugs on the
street with Ghent, and that Ghent sometimes took drugs out of evidence from the WPBPD evidence
room and asked her to sell the drugs for him. (CIV DE:281-1 at 54(c).)
Ghent did not disclose this or any of his other criminal activity during trial, in his Affidavit,
nor was any of this information made known to Mr. Phillips counsel, the Court, or the Eleventh
Circuit until the Government filed its Motion to Vacate.
iii. Investigation into Ghents misdeeds
On January 2007, while Mr. Phillips second appeal was still pending before the Eleventh
Circuit, both the WPBPD and the FBI began investigation Ghent. (CIV DE:281-1 at 37.) On
January 11, 2007, investigators interviewed L.S., the son-in-law of the owners of Relax with Us,
who reported that he made four or five purchases of illegal drugs for Ghent to use and that he had
seen his mother-in-law pay Ghent on five occasions. (Id.; see also Ex. E, CIV DE:112-3:4.)
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In January and February of 2007, a numbers of workers from Relax with Us were
interviewed, including M.H., who provided a sworn statement that she performed 40 sessions with
Ghent, that he tried to persuade her to engage in oral and vaginal intercourse in exchange for money,
and that on one occasion Ghent asked her if she wanted to use cocaine. (CIV DE:281-1 at 38, see
also Ex. C, CIV DE:183:56.)
On February 22, 2007, while Mr. Phillips second appeal was pending before the Eleventh
Circuit, Ghent was arrested on charges of bribery, perjury by false written declaration, and
solicitation to commit prostitution (CIV DE:281-1 at 39; see also Ex. K, Ghent Internal Affairs
Report, CIV DE:112-5), on March 15, 2007, Ghent resigned from the WPBPD (CIV DE:281-1 at
40; see also Ex. L, Ghent resignation letter, CIV DE:183:8), and on April 9, 2007, the WPBPDs
Internal Affairs Investigation of Ghent was completed (CIV DE:281-1 at 41; see also Ex. K, CIV
DE:112-5:2). The allegations against Ghent of conduct unbecoming an officer, criminal conduct,
and failure to follow orders were all substantiated and Ghent was no longer permitted to be an officer
at WPBPD. (Id.) Instead of termination, Ghent was permitted to resign. (Id.)
On April 10, 2007, while Mr. Phillips second appeal was still pending before the Eleventh
Circuit, Ghent signed a deferred prosecution agreement with the Palm Beach County State
Attorneys Office that read, in relevant part, Scott Richardson, Esquire, as attorney for MICHAEL
GHENT, has fully explained to his [client] the criminal allegations of Bribery of or by a Public
Servent [sic] as contained in Florida Statute section 838.015, Perjury by False Written Declaration
(two [2] counts) as contained in Florida Statute section 92.525(3), and Procuring for
Prostitution/Soliciting Another to commit Prostitution (four [4] counts), as contained in Florida
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Statute section 796.07 (2), and his options with regard to entering this agreement. (CIV DE:281-1
at 42; see also Ex. M, Ghent Deferred Prosecution Agreement, CIV DE:112-2.)
On September 17, 2007, also while Mr. Phillips second appeal was still pending before the
Eleventh Circuit, FBI Special Agent Joseph Sconzo prepared a report on his preliminary
investigation of Ghent and requested that a formal FBI matter be opened and assigned to Special
Agent Sconzo. (CIV DE:281-1:18.) Agent Sconzo wrote:
Included in the allegations [investigated] were illegal acts by GHENT
involving Bribery, Prostitution, Fraud in order to obtain Subsidized
Housing, and Rape. GHENT used his position as a WPBPD Officer
to obtain sexual favors from the staff at a local massage parlor,
RELAX WITH US. He made threats to obtain, and actually received,
cash from its owner, . . . the payment of which was caught on
videotape by a camera used at RELAX WITH US on a daily basis for
security purposes. Using those same threats of deportation for the
entire family, and the potential of imminent arrest of various family
members, GHENT forced himself upon [a victim] on two separate
occasions. He also utilized his position as an officer and the threats
of deportation, while fainting [sic] a close personal relationship with
[the owners] to claim he was an employee of RELAX WITH US,
making less that [sic] $30,000 in order to qualify for subsidized
housing at the MALIBU BAY APARTMENTS, 750 Malibu Drive
West, West Palm Beach, Florida, . . . He also requested WPB
CAPTAIN WILLIAM AMASON fill out an application for an
apartment. AMASON accurately filled out the application and
provided it to GHENT. GHENT then forwarded the application to the
PORTOFINO APARTMENTS, 2767 10th Avenue North, in Lake
Worth . . . This application was altered by GHENT prior to being
submitted in order to lower his [Ghents] income to below $30,000
which qualified him [Ghent] for the subsidized apartment. During the
time that GHENT was perpetrating most of [these] criminal acts, he
continued to ask his friends for favors and help. The [owners of
Relax with Us] even allowed GHENT to live at the family home
during one of his times of need . . .
(CIV DE:281-1 at 43.)
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At no time during the pendency of Mr. Phillips appeals or Petition for Writ of Certiorari did
Ghent or any member of the prosecution team disclose Ghents criminal conduct or the investigation
into his criminal conduct to Mr. Phillips or his attorney. (Id. at 46.)
On September 9, 2008, the Palm Beach County State Attorneys Office No-Filed the
charges against Ghent, after his completion of the terms of his Deferred Prosecution Agreement. (Id.
at 47.)
iv. Admissibility of the contemporaneous criminal conduct
Ghent=s use and distribution of controlled substances, extortion, solicitation to commit
prostitution, and perjury by false written statement is evidence that was both admissible for
impeachment purposes and material as it goes directly to the character and veracity of Ghent.
First, the right to fully cross-examine a witness is a criminal defendant's primary interest
secured by the Sixth Amendment's guarantee that the accused shall enjoy the right . . . to be
confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105,
1110, 39 L.Ed.2d 347 (1974)). The importance of full cross-examination is necessarily increased
[w]hen the witness the accused seeks to cross-examine is the star government witness, providing
an essential link in the prosecution's case. Calle, 822 F.2d at 1020 (citing United States v.
Summers, 598 F.2d 450, 460 (5th Cir.1979)). The Eleventh Circuit has repeatedly held that limiting
cross examination does not violate a defendants Sixth Amendment rights as long as: (1) the jury,
through the cross-examination permitted, was exposed to facts sufficient for it to draw inferences
relating to the reliability of the witness; and, (2) the cross-examination conducted by defense counsel
enabled him to make a record from which he could argue why the witness might have been biased.
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Id. (citing Summers, 589 F.2d at 461); see also United States v. Burke, 738 F.2d 1225, 1227-28
(11th Cir.1984) (Sixth Amendment satisfied where sufficient information is elicited from witness
from which jury can adequately gauge credibility and assess possible motive or bias); United States
v. Haimowitz, 706 F.2d 1549, 1559 (11th Cir.1983) (no abuse of discretion where defense counsel
had opportunity to expose facts from which jury could draw fair inferences regarding credibility of
witness), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984). Moreover, specific
instances of conduct are admissible under Federal Rule of Evidence 608 on cross-examination if
they are probative of the character for truthfulness or untruthfulness of . . . the witness. Fed. R.
Evid. 608 (b)(1).
Evidence that the Governments star witness was using drugs, engaging in extortion/bribery,
perjuring himself on government forms, and soliciting the commission of prostitution would have
been admissible, as it was necessary to cross-examine Ghent. This evidence would have been
essential to expose the jury to facts regarding Ghents reliability without it, the jury had no reason
to believe that he was not a law abiding undercover police officer, who was more trustworthy than
the average person. Evidence that Ghent falsified documents is certainly probative of his
truthfulness and it shows the jury Ghents disregard for the importance of sworn statements: which
was exactly what his testimony was, a sworn statement. Evidence that Ghent broke the law that he
had sworn to uphold also shows the jury whether he is a reliable witness.
This evidence was also necessary to make a record from which to argue that Ghent was
biased. That Ghent was engaging in drug use, and buying and selling drugs, at the time when he was
investigating others drug operations is clearly illegal and a conflict of interest. This was therefore
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vital information that would have been admissible evidence for cross-examination at trial; without
it Mr. Phillips Sixth Amendment rights would have been violated. And Mr. Phillips would not have
been convicted of Count 1 or Count 9 had the jury learned of this information.
Second, in Calle, the Eleventh Circuit found that evidence a Government witness was not
who he pretended to be was admissible because it directly contradicted a mis-impression given by
the Government witnesss testimony. 822 F.2d at 1021. There, the witness created the impression
that he was merely a small-time drug user. Id. The Eleventh Circuit found that evidence that he was
in fact a major drug trafficker would therefore have been admissible. Id. In this case, Ghent held
himself out as a law abiding police officer, therefore evidence that Ghent was actually engaging in
illegal and immoral behavior, using the drugs that he was supposedly dedicated to stopping, and not
a trustworthy undercover police officer, would have been admissible at trial.
Third, evidence Ghent was doing drugs was material and admissible because drug use was
a major issue at trial. Ghent was testifying as a prosecution witness about the same type of criminal
conduct in which he was personally engaging at that time. Obviously evidence that he was not a
police officer stopping others from using drugs, but a drug user himself, would have been relevant
to establish his bias and his trustworthiness.
Fourth, the defense asked for, and received, an instruction regarding the reliability of
testimony by drug users:
The testimony of some witnesses must be considered with more
caution than the testimony of other witnesses. For example, a witness
who was using addictive drugs during the time he or she testified
about may have an impaired memory concerning the events that
occurred during that time. . . . So, while a witness of that kind may be
entirely truthful when testifying, you should consider that testimony
with more caution than the testimony of other witnesses.
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8
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(CRIM DE:244:9; see also Ex. N, 12/19/02 Trial Tr. (CIV DE: 68-45:10).) Notably, the jury
acquitted Mr. Phillips of all charges wherein the Government witnesses were drug users. And, on
cross-examination, Ghent was interrogated regarding whether he possibly could have done the April
6th transaction with Ben Black rather than Elroy Phillips i.e., whether there had been a
misidentification or whether Ghents memory was impaired. Yet, the jury never heard the evidence
that Ghent was using drugs and therefore could have easily mistaken the two individuals.
8
Fifth, quite simply, as previously stated by the Government, the DEA and the U.S. Attorneys
Office would never have included the information from Ghents report in the criminal complaint,
search warrant application, or the indictment, would not have called him as a trial witness, and would
not have included an Affidavit from him in support of the Motion for New Trial, if they had known
of Ghents prior criminal conduct.
v. Courts Concerns
This Court noted its concerns, in its Order Denying Motion for Release of Movant on his
Own Recognizance for Bond (DE:309), that (1) the Government did not know about Ghents actions
at the time of the trial; (2) Ghent was not part of the prosecution team; (3) Ghent never admitted guilt
for his charged crimes; and (4) Ghent did not commit these actions prior to trial. These concerns will
be addressed in turn below.
First, this Court has made clear its concerns that this is not a Brady/Giglio/Agurs violation
because Ghents involvement in contemporaneous criminal activity was unknown to the federal
agents and prosecuting AUSAs during the pendency of these proceedings. But, the Government has
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since stipulated that Ghent was unequivocally a member of the prosecution team. (See e.g., CIV
DE:317.) As Arnold v. Secretary, Department of Corrections, 595 F.3d 1324 (11th Cir. 2010),
explains, a testifying officers own knowledge of his misdeeds is sufficient for Government
knowledge under Brady. In Arnold, 595 F.3d 1324, the Eleventh Circuit held that, where a police
officer who was a lead investigator and a key trial witness was contemporaneously involved in
criminal activity, but did not disclose his involvement in those crimes, the prosecution team had
committed a Brady violation, even if none of the prosecutors knew about the Brady material. Id.
The police officers knowledge of his own infractions was sufficient. Id. Here, Ghents own
knowledge of his contemporaneous criminal behavior was therefore sufficient for this Court to find
knowledge.
Second, as the Government has stated in previous filings (see CIV DE:317), Ghent was
unequivocally a member of the prosecution team: Ghent testified that he was an undercover member
of the MET investigation team for months and he stated in an affidavit that he went to 625 8th St.
upon the direction of Agent Kapper the WPBPD officer assigned to the MET investigation team.
Moreover, Ghent helped to write the probable cause affidavit for Mr. Phillips arrest, for the
execution of a search warrant against Mr. Phillips, and his statement was repeated by Agent
Enockson in front of the Grand Jury. Finally, Ghent was the Governments main witness against Mr.
Phillips.
Third, Ghent did not have to formally plead guilty of these charges for them to be admissible.
As explained above, Ghent=s use and distribution of controlled substances, extortion, solicitation to
commit prostitution, and perjury on a government document is evidence that was both admissible
for impeachment purposes and material as it goes directly to his bias, his ability to perceive and
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remember, and his general character for truthfulness. See United States v. Phelps, 733 F.2d 1464,
1472 (11th Cir.1984) ([c]ross-examination of a government star witness is important, and a
presumption favors free cross-examination on possible bias, motive, ability to perceive and
remember, and general character for truthfulness.)
Specific instances of conduct are admissible under Federal Rule of Evidence 608 on
cross-examination if they are probative of the character for truthfulness or untruthfulness of . . . the
witness. Fed. R. Evid. 608(b)(1); United States. v. Novation, 271 F.3d 968, 1007 (11th Cir. 2001).
Perjury on a government document goes directly to a persons truthfulness. See Ad-Vantage
Telephone Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir.
1994) (Acts probative of untruthfulness under Rule 608(b) include such acts as forgery, perjury, and
fraud.). Similarly, because Ghent is a police officer, his use of drugs, the illegal substance he was
supposed to be combating, bribery/extortion, and solicitation to commit prostitution, all of which
he lied about when interviewed, is certainly probative of his truthfulness.
A sustained internal affairs complaint regarding an officers character for truthfulness is
exactly the type of probative conduct admitted under Rule 608(b)(1). United States v. Echevarria,
2005 WL 6390933 (S.D. Fla. 2005) (Government agreed that internal investigation into officer
taking a police car home and lying to his supervisor about the incident was admissible at cross-
examination under Rule 608); see also S.D. Fla. Case No. 06-CR-20207-PAS, DE:59 (allowing
cross-examination of the Governments star witness on prior conflicting statements regarding his
10-day suspension related to his sale of a stolen firearm because they involve dishonesty and
character for truthfulness.). Moreover, these were not mere accusations, Ghent was charged by
internal affairs, ultimately forced to resign from the police force, and the U.S. Attorneys Office
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opened an investigation into Ghent: this conduct was therefore Brady/Agurs/Giglio, probative as to
his truthfulness, bias, and perception, and material.
Fourth, not only did Ghent know about his contemporaneous criminal behavior during the
trial, but the Government explained that it (as well as the Court) relied on Ghents testimony well
after trial ended in its Motion to Vacate. The Government relied on Ghents affidavit and testimony
at trial, in its Response to Mr. Phillips Reply in Support of his Motion for New Trial, this Court
relied on that affidavit and his testimony in denying the Motion for New Trial, and the Eleventh
Circuit also relied on that testimony in denying Mr. Phillips Appeal, extending the relevant time
period for when a Brady violation could have occurred. In fact, Mr. Phillips was still challenging
the truthfulness of Ghents testimony until the Supreme Court denied his Petition for Writ of
Certiorari. In other words, the Governments obligations under Brady continued up until the
Supreme Court denied Mr. Phillips Petition for Writ of Certiorari on May 21, 2008, which was
based on his Motion for New Trial and therefore Ghents affidavit. See High v. Head, 209 F.3d
1257, 1265 n.8 (11th Cir. 2000) (The State's duty to disclose exculpatory material is ongoing.);
see also Thompson v. Calderon, 151 F.3d 918, 935 n. 12 (9th Cir.) (Reinhardt, J., concurring and
dissenting), cert. denied, 524 U.S. 965, 119 S.Ct. 3, 141 L.Ed.2d 765 (1998) (The Brady duty is an
ongoing one, and continued to bind the prosecution throughout Thompsons habeas proceedings.).
And, as is clear from the parties Joint Factual Proffer in Support of Memorandum of Law
(CIV DE:281-1), Ghent engaged in all of the above-referenced criminal behavior, was investigated
by both his police department and the U.S. Attorneys Office for that behavior, while Mr. Phillips
was still challenging the truthfulness of Ghents testimony with the district court, the Eleventh
Circuit, and then the Supreme Court:
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Ghent began his drug use while he worked as a police officer in Boynton Beach, before he
even began working at the WPBPD, and continuing while he worked at West Palm Beach.
(CIV DE:281-1 at 51, 54(c). 58(b), 59(b).)
In late 2000, Ghent began frequenting a massage parlor named Relax with Us, paying for
and engaging in sexual acts with the female staff members, using controlled substances in
their presence, and offering to share the drugs with them. (Id. at 4.)
On June 7, 2001, Agent Enockson wrote an affidavit in support of the criminal complaint
which all parties agree was based entirely upon information provided to Special Agent
Enockson by Ghent in a written report. (Id. at 7.)
The next day Agent Enockson prepared an application for a search warrant for Elroy Phillips
residence located at 1103 35th Street, West Palm Beach, Florida. (Id. at 10.) Among other
things, the affidavit repeated, verbatim, Ghents allegations that had been contained in the
affidavit in support of the Criminal Complaint. (Id.)
On July 26, 2001, a federal grand jury returned an eighteen-count superseding Indictment
charging Mr. Philips. (Id. at 13.) During Agent Enocksons grand jury testimony, he
referred to Ghents report regarding the events of April 6, 2001. (Id.)
On January 24, 2002, counsel for Mr. Phillips filed a Motion to Suppress the evidence and
statements obtained during the search of the defendants residence. (Id. at 14)
On December 2, 2002 the jury was impaneled in the trial of United States v. Elroy A.
Phillips, Court File No. 01-CR-08084-JAL. (Id. at 17) And on the tenth day of trial,
December 16, 2002, Ghent testified that, on April 6, 2001, based on citizen complaints, and
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having nothing to do with the MET teams investigation into Mr. Phillips, he engaged in a
controlled buy with his CI and Elroy Phillips. (Id. at 19.)
On December 20, 2002 the jury returned a verdict of guilty on Count 1, Count 9, Count 11,
Count 14 and Count 17 and not guilty of the other 16 counts. (Id. at 23.)
On September 5 2003, Mr. Phillips filed a Motion for New Trial based, in part, upon his
allegations that the facts contained in Ghents report of the April 6, 2001 drug sale were
fictitious and Ghents testimony at trial was false. (Id. at 25.) While this Motion was
pending, his direct appeal was stayed. (Id.)
Ghent began coercing his weekly payments from the owner of Relax with Us in mid-2003.
(Id. at 26.)
On April 15, 2004, Ghent signed his Affidavit in Support of the Governments Response to
Phillips Reply to Governments Response to Phillips Motion for New Trial. (Id. at 27.)
On May 11, 2004, the Court denied Mr. Phillips Motion for New Trial (CRIM DE:375),
relying in part on Ghents affidavit. (Id.)
Mr. Phillips appeal, which had been stayed, was reinstated, with a claim asking the Eleventh
Circuit to reverse the district courts denial of his Motion for New Trial. (Id. at 28.)
On February 22, 2005, while Mr. Phillips appeal was still pending, Ghent received a
personal check for $12,500 from the owners of Relax with us. (Id. at 29.) At around the
same time, the owners of Relax with Us gave Ghent $9,000 in cash during a transaction
that was videotaped without Ghents knowledge. (Id.)
On October 3, 2005, while Mr. Phillips appeal was still pending, Ghent had the owner of
Relax with Us sign a Florida Housing Finance Corporation Employment Form, which
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falsely stated that Ghent was employed at Relax with Us as a manager earning less than
$30,000 per year, and Ghent used that form to apply to live at the Malibu Bay Apartment
Complex, a government subsidized housing complex. (Id. at 30.)
On November 4, 2005, while Mr. Phillips appeal was still pending, Ghent signed a Florida
Housing Finance Corporation Tenant Income Certification Form, which falsely stated that
he had worked for Relax with Us since September 2000 as a manager earning $29,978.
(Id. at 31.) Ghent later filled out a Re-certification Questionnaire and falsely reaffirmed
that he was employed for Relax with Us since September 2000 earning $28,978. (Id.)
From 2005 through 2006, Ghent paid R.B., one of the workers at Relax with Us, to
masturbate him on eleven separate occasions and he asked R.B. to engage in oral and vaginal
sex for money, but R.B. refused. (Id. at 32.)
On May 31, 2006, the Eleventh Circuit issued its mandate on Mr. Phillips direct appeal,
affirming Mr. Phillips convictions and the District Courts denial of the Motion for New
Trial. (CRIM DE:387.) Neither Ghents drug use, his bribery/extortion of Relax with Us,
his false statements on government documents, nor his solicitation to commit prostitution
were disclosed to the Eleventh Circuit prior to their ruling. (CIV DE:281-1 at 33.)
On July 5 and 31, 2006, Mr. Phillips was re-sentenced following remand from the Eleventh
Circuit. (Id. at 34.) Ghents drug use, his bribery/extortion of Relax with Us, his false
statements on government documents, nor his solicitation to commit prostitution were
disclosed to Mr. Phillips counsel or the district court prior to or during the resentencing.
(Id.)
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On August 28, 2006, the United States filed a Notice of Appeal from the Amended
Judgment. (CRIM DE:412.) On September 1, 2006, Mr. Phillips filed a Cross-Appeal.
(CRIM DE:413.) In his cross-appeal, Mr. Phillips re-raised the issue of whether Ghent
committed perjury requiring Mr. Phillips to receive a new trial. (CIV DE:281-1 at 35.)
On January 11, 2007, while Mr. Phillips second appeal was still pending, investigators
interviewed L.S., the son-in-law of the owners of Relax with Us, who reported that he
made four or five purchases of illegal drugs for Ghent to use and that he had seen his mother-
in-law pay Ghent on five occasions. (Id. at 37.) Throughout January and February,
investigators interviewed numerous workers at Relax with Us, including M.H. who
testified regarding Ghents solicitation to commit prostitution and drug use. (Id. at 38.)
On February 22, 2007, while Mr. Phillips second appeal was pending before the Eleventh
Circuit, Ghent was arrested on charges of bribery, perjury by false written declaration, and
solicitation to commit prostitution. (Id. at 39.)
On March 15, 2007, Ghent resigned from the WPBPD. (Id. at 40.)
On April 9, 2007, the WPBPDs Internal Affairs Investigation of Ghent was completed and
the allegations against Ghent of conduct unbecoming an officer, criminal conduct, and failure
to follow orders were all substantiated. (Id. at 41.) Ghent was no longer permitted to be
an officer at WPBPD, but instead of termination, Ghent was permitted to resign. (Id.)
On April 10, 2007, Ghent signed a deferred prosecution agreement. (Id. at 42.)
On August 13, 2007, the U.S. Attorneys Office opened a file on Michael Ghent. (Id. at p.
21, n.13.)
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On September 17, 2007, FBI Special Agent Sconzo prepared a report on his preliminary
investigation of Ghent and requested that a formal FBI matter be opened. (Id. at 43.)
On January 11, 2008, the Eleventh Circuit issued its decision on Phillips second appeal.
(Id. at 44.) The mandate on this second decision issued on March 4, 2008. (Id.)
Mr. Phillips then filed a Petition for Writ of Certiorari, again asserting that the district court
erred in denying the Motion for New Trial. (Id. at 45.)
On May 21, 2008, the Supreme Court denied the Petition for Writ of Certiorari. (Id.)
On September 9, 2008, the Palm Beach County State Attorneys Officer No-Filed the
charges against Ghent, after Ghents completion of the terms of his Deferred Prosecution
Agreement. (Id. at 47.)
On October 29, 2008, Mr. Phillips timely filed his Motion to Vacate. (Id. at 48.)
On September 11, 2009, the U.S. Attorneys Office filed its Supplement to its Surreply
wherein it disclosed for the first time the arrest of Ghent. (Id. at 49)
On October 6, 2011, federal prosecution of Michael Ghent was declined by the U.S.
Attorneys Office and the file was closed. (Id. at p. 21, n.3.)
Thus, before Mr. Phillips claim was ultimately denied on May 21, 2008 wherein Mr.
Phillips asserted that Ghents testimony was false and that he was actually innocent of April 6th and
the other convictions should likewise be overturned because they were based on Ghents
misstatements the Government still had an obligation under Brady/Giglio/Agurs to turn over
information of Ghents contemporaneous criminal conduct. As all parties agree, the Governments
failure to do so was a Brady/Giglio/Agurs violation, and therefore Mr. Phillips convictions should
be vacated.
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B. APRIL 6, 2001 DRUG DEAL
Since the trial, it has become clear that there was no drug deal on April 6, 2001: Ghents
testimony regarding the circumstances of April 6th has been contradicted and the records establish
that there could not have been an April 6th drug buy. As explained in detail above, it came to the
Defendant and the Governments attention after trial that Ghent was not the law abiding officer he
claimed to be. Once Ghents veracity was called into question, both parties began to investigate his
testimony at trial and uncovered numerous inconsistencies which demonstrate that Ghent was lying
on the stand. Based upon this investigation and Ghents lies, Mr. Phillips asks the Court to vacate
Mr. Phillips convictions on all counts, except Count 11, because they are either directly (the April
6th incident) or indirectly (the search and arrest warrants were based on information from Ghent)
based on Ghents misinformation.
i. Legal Standard
Mr. Phillips is actually innocent of Count 9. To establish actual innocence of the crime of
conviction, a movant must show that it is more likely than not that no reasonable juror would have
found [him] guilty beyond a reasonable doubt in light of new evidence of innocence. Schlup v.
Delo, 513 U.S. 298 (1995); McKay v. United States, 657 F.3d 1190, 1197 (2011). The
inconsistencies in Ghents testimony, in addition to the other newly discovered testimony, are
enough that no reasonable jury could have found Mr. Phillips guilty of being involved in an April
6th controlled buy
ii. Ghents inconsistent testimony
The inconsistencies in Ghents testimony and the evidence discovered establish that there was
no controlled buy on April 6th the charged conduct in Count 9. Ghents own statements establish
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(i) that he could not have engaged in a controlled buy with Elroy Phillips on April 6th because Ghent
did not know who Mr. Phillips was until April 11th, (ii) Elroy Phillips was not a target of the drug
investigation until April 11th, and (iii) Ghent did not attempt to do a controlled buy with Elroy
Phillips until Agent Kapper asked Ghent to after April 11th. Any attempted controlled buy would
have to be after April 11th, so the April 6th controlled buy could not have happened. This is
corroborated by (i) West Palm Beach police records; (ii) West Palm Beach employment records, (iii)
Mr. Phillips and his mothers affidavits explaining that Mr. Phillips was in Miami on the evening
of April 6th; (iv) Agent Kappers testimony establishing that the investigation into Mr. Phillips did
not begin until April 11th and that Agent Kapper was only involved in one controlled buy with
Ghent, on April 24th with Ben Black; (v) the continued DEA investigation into Mr. Phillips after
April 11th; (vi) the affidavit of the CI stating she never engaged in a drug deal with Elroy Phillips;
(vii) the fabricated April 6th police report; and (viii) the single IFE about a controlled buy
corresponding to April 24th and not April 6th.
At trial Ghent testified that he had done surveillance of 625 8th Street from January to April
in 2001 independent from the MET teams investigation and, from that surveillance, he knew
who Elroy Phillips was. (Ex. O, 12/16/02 Trial Tr., CIV DE:68-39:6.) He further testified that he
decided to engage in a controlled buy with Mr. Phillips on April 6, 2001, based on citizen complaints
that a large amount of drugs were coming out of that apartment again not based on any information
from the MET teams investigation. (Id. at 5.) Emphasizing on cross-examination, that his
controlled buy with Mr. Phillips was not targeted and independent from the MET Teams
investigation. (Id. at 37, 38, 39.) Ghent stated that he got to the residence, as it was just getting
dark, approximately 9:30 pm. (Id. at 10.) Mr. Phillips was leaning on his car and he walked over
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with the confidential informant, who then engaged in a drug transaction with Mr. Phillips while
Ghent was in ear shot. (Id. 11-13.) These statements were memorialized in a police report, the
validity of which will be discussed later, which stated: Ghent received several complainants from
concerned citizens and fellow officer; in reference to numerous narcotics complaints about 625 8th
Street . . . After receiving the complaints, Your Affiant conducted surveillance on said property
[sic]. (Ex. P, April 6th Offense Report, CIV DE:280-4:4.)
It should be noted that Ghent also testified regarding two other alleged attempted buys from
625 8th Street. (Ex. O, CIV DE:68-39:19-20.) Ghent testified that, on April 20, 2001, he
supposedly returned to 625 8th St., by himself, went to the back of the apartment building, and was
greeted by an individual named Unc. (Id.) Unc told Ghent that he did not have any lays and that
Elroy Phillips was located at a club two blocks away. (Id.) Ghent testified that he left without
buying anything. (Id.) Ghent further testified that, on April 24, 2001, he again returned to 625 8th
Street by himself. (Id. at 21.) On April 24, 2001, he went to the rear of the building and encountered
Ben Black, from whom he purchased crack worth $50. (Id. at 23.) This transaction was confirmed
by Ben Black and the basis of Count 10 of the Second Superseding Indictment against Phillips: Ben
Black testified that Phillips was his source of supply for the crack cocaine that he sold at 625 8th
street to Ghent on April 24, 2001. (Ex. Q, Trial Tr. 12/09/2002, CIV DE:68-33:59-62, 68-75, 110,
139, 141.) After hearing Ben Blacks testimony, the jury found that Phillips was not guilty in regards
to the April 24th event.
In later interviews, with the U.S. Attorneys Office and the FBI, Ghent contradicted his
previous testimony. As laid out in the Joint Factual Proffer (CIV DE:281), Ghent stated that (1) the
intelligence that led to the drug purchase from Phillips on April 6, 2001 came from Kapper, the Task
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Force Officer assigned to the MET team (Factual Proffer, CIV DE:281-1 at 55(b)) so it was not
an independent investigation based on citizen complaints as Ghent testified at trial; and (2) Ghent
had never seen or heard of Elroy Phillips before Agent Kapper approached him and asked if his CI
could buy drugs from Phillips, it was Kapper who told Ghent that 625 8th Street was Phillips drug
hole (CIV DE:281-1 at 61(c); see also Ex. D, CIV DE:280-3:91, 92, 120-21), and Ghent had no
investigation into 625 8th Street or Phillips prior to Kapper bringing it to his attention (It was never
my investigation really. It was brought to my attention [by Kapper] to do this. I didnt have an
ongoing investigation prior) (CIV DE:281-1 at 61(d)) so Ghent did not know Mr. Phillips based
on his own surveillance of 625 8th Street from January to April, independent of the MET teams
investigation, but instead learned of Mr. Phillips directly from the MET teams investigation. In
other words, Ghent told the Government that he did not engage in surveillance of Elroy Phillips, did
not learn anything about Elroy Phillips, did not know who Elroy Phillips was, and did not attempt
to do a controlled buy with Elory Phillips until he was told about Elroy Phillips from Agent Kapper
which documents will show was on April 11th and therefore he could not have initiated a
controlled buy on April 6th. These statements establish that Ghent lied in his testimony to this
Court, in a sworn statement attached to his police report, in his statement used to support of probable
cause for Mr. Phillips arrest, and in his affidavit attached to the Governments Response to the
Motion for New Trial. There was no April 6th controlled buy.
Both this Court and the Eleventh Circuit relied heavily on this incorrect testimony. This
Court denied Phillips Motion for New Trial without an evidentiary hearing, because it found that,
having heard all of the testimony, Ghents testimony was credible and unlikely to have been
undermined by the documentary inconsistencies that Mr. Phillips had found. On appeal, the
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Eleventh Circuit concurred, but in doing so, it relied upon evidence that has now been shown to be
false:
More important, Phillips cannot meet his ultimate burden of
establishing that the evidence here is of such a nature that it would
probably produce a new result. . . . Phillips wants to use the newly
discovered evidence to show that because several witnesses testified
that the investigation into Phillips did not begin until at least April 11,
2001, the CI could not have purchased crack cocaine from Phillips on
April 6. In Phillipss estimation, this means that Ghent must have
confused Black for Phillips or, worse yet, entirely fabricated the April
6 report and other evidence to frame Phillips. Although Kappers
testimony shows that the investigation into Phillips did not begin until
at least April 11, Ghent testified that he was not investigating Phillips
directly when he went to 625 8th Street on April 6. On cross
examination, Phillips tried to force Ghent to concede that he was
targeting Phillips when Ghent went to 625 8th Street on April 6,
Ghent refused to concede the point, instead reiterating that he was
investigating 625 8th Street based on several complaints regarding
the distribution of illegal narcotics from that location. After
investigating the location and seeing Phillips in the area for several
months, Ghent wanted to make a series of controlled buys to
determine who was in charge at 625 8th Street. Although Ghent had
received information that Phillips ran 625 8th Street, Phillips was not
the target of Ghents investigation as of April 6. Consequently,
Ghents testimony that he and a CI purchased crack cocaine from
Phillips at 625 8th Street on April 6 is entirely consistent with other
testimony that the investigation of Phillips did not begin until at least
April 11.
(Ex. B, CIV DE:68-21:37-39 (emphasis added).)
If this Court, and the Eleventh Circuit, had known that Ghent had suppressed the fact of his
own criminal conduct, and if the courts had known that Ghent was falsely refusing to concede the
point regarding the targeting of Phillips, both this Court and the Court of Appeals would likely have
found that the jury would probably have reached a different result if Phillips had an opportunity to
present this new evidence at trial. (Id. at 40.) Equally important, if the U.S. Attorneys Office had
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known of the evidence suppressed by Ghent, including the fact that Ghent, at best, misled the jury
because, as he states now, Ghent had, in fact, been specifically directed to find an informant who
could buy from Phillips, the U.S. Attorneys Office would not have submitted the affidavit that the
District Court and the Eleventh Circuit relied upon in denying the Motion for New Trial, and would
have agreed that Ghents testimony had to be stricken.
But the Court need not rely on Ghents testimony alone to vacate these convictions for actual
innocence, the documentary evidence also establishes that there could not have been a controlled buy
on April 6th. Instead, Ghent only engaged in one controlled buy on April 24th with Ben Black.
First, police records show that Ghent could not have put together a controlled buy on April
6th at approximately 9:30 pm, as it was just getting dark. (Ex. O, CIV DE:68-39:10.) As an
initial matter, 9:30 pm is not when it was just getting dark: the Old Farmers Almanac reflects that
sunset in West Palm Beach on April 6, 2001 was 7:40 p.m.. Thus, at the latest, it was just getting
dark at 8:00 pm. And on April 6th at 8:00 p.m., Ghent could not have been engaged in a controlled
buy because he was at a hostage negotiation training class at Palm Beach Community College that
began at 5:30 p.m.. (Ex. R, Affidavit of Jack F. Maxwell, CIV DE:191-4.) An instructor from the
Hostage Negotiation class, Jack F. Maxwell, stated in a Declaration that April 6, 2001 was the last
night of the course. (Id. at 4.) On that night an exam was given at 8:00 pm, and Instructor
Maxwell stated that [b]ased on past and present experience during my years of teaching this course,
I can attest that on average a course participant finished the test in approximately 30 minutes and that
the course finished between 30 to 45 minutes before schedule. (Id.) Instructor Maxwell concluded,
I believe that on Friday April 6, 2001, the course would have ended between 8:45 and 9:00. (Id.)
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Thus, at the earliest, Ghent left the class at approximately 8:45 p.m., more than an hour after the sun
had already set.
By Ghents own testimony and statements, Ghent then took over an hour to prepare for the
controlled buy. He testified that before the buy, he went to the police station to withdraw money for
the controlled buy (a 16 minute drive from class); walked in, filled out an IFE and took out the buy
money (5 minutes); recorded the serial number of the money (2 minutes); gathered and briefed with
other officers (15 minutes); checked out an undercover vehicle (5 minutes); located the CI (2
minutes); drove to a secure location and met the CI (2 minutes); briefed the CI (5 minutes); searched
the CI to make sure she had no contraband on her (2 minutes); searched the CI's car (5 minutes); and
attached a surveillance/monitoring device to CI (10 to 15 minutes). At least 72 minutes had to have
elapsed after Ghent left his training class before he could have engaged in the controlled buy: so
Ghent would not have been able to engage in any type of controlled buy until approximately 9:57
p.m. at the earliest. Therefore, Ghent could not have engaged in a controlled buy when it was
getting dark.
Second, the time cards from the WPBPD establish that a drug deal could not have happened
on April 6th. Ghents employment records show that he was at a Hostage Negotiation Class on April
6th and he did not otherwise work. (Ex. S, Declaration of Linda McDermott, CIV DE:191-5:3; Ex.
T, WPBPD Timecard for Ghent) Similarly, the time cards establish that Officer Emmons, Castelli
and Coppins also did not work on April 6, 2001. See Ex. U, WPBPD Timecards for Emmons,
Castelli and Coppins. Agent Kapper did work on April 6th, but he only worked for 2.5 hours. See
Ex. V, WPBPD Timecard for Kapper. As Agent Kapper wrote in a declaration that his shift began
at 4:00 p.m., 2.5 hours of work would have been from 4:00 to 6:30 pm. Ex. W, Declaration of Brian
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Kapper, 2, see also Ex. X, Trial Tr. 12/18/2002, DE:68-42:58. Thus, by the time that Ghent
finished his hostage negotiation training class at approximately 8:45 p.m., Agent Kapper would have
been long gone. On April 24th, however, the date Ghent actually did do a controlled buy in this case,
Ghent, Kapper, and Emmons were all working. See Ex. U and Ex. V.
Third, as laid out in Mr. Phillips Affidavit, Mr. Phillips was not in West Palm Beach on
April 6, 2001. (Ex. Y, Elroy Phillips Affidavit, CIV DE:4-1:16-17.) Instead, he was at his mothers
house in North Miami, doing her lawn maintenance as he always did on the first Friday of every
month. (Id.) Mr. Phillips mother explained in an Affidavit, that the first Friday of every month Mr.
Phillips would come to her house, located at 1540 N.W. 131st Street, N. Miami, Florida and do her
lawn maintenance. (Ex. Z, Cynthia Phillips Affidavit, at 33, CIV DE:4-1:.) He would then attend
First Fridays a monthly networking event in Miami which happens on the first Friday of every
month, and return to his mothers house to sleep. (Id.) Cynthia Phillips swore that Elroys
maintenance of my yard every first Friday of every month coincides with what he did on the date
of April 6, 2001. (Id.) She concluded Elroy was not in Palm Beach County as the police said he
was. He was in Miami with me. He did my yard and went out that night. He was at my home from
that evening and I saw him again the next morning when he left for Palm Beach to go put his trailer
and equipment up. (Id.)
Fourth, as Mr. Phillips originally outlined in his Motion for New Trial and in his appeal,
Agent Kappers testimony, the WPBPD liason between the WPBPD and the MET team, shows that
the investigation into Mr. Phillips did not begin until at least April 11th. Kapper testified that during
the MET teams nearly six month deployment from August 2000 through January 2001, which
included several months of working at 625 8th Street in West Palm Beach, no one from the MET
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Team operations saw or spoke with Elroy Phillips. Kapper testified that Mr. Phillips did not come
to the attention of the MET team until April 11, 2001 when the MET team arrested Stephanie
White and James Yearby. (See Ex. X, CIV DE:68-42:55-56.) Agent Kapper explained that after
Officer Emmons went to Mr. Phillips house to arrest Stephanie White on April 11th, he began an
investigation into Elroy Phillips. (Id. at 56.) Specifically, after April 11th, Agent Kapper made five
trash pulls at Elroy Phillips house in an attempt to find evidence of drugs: on April 22nd, April 25th,
April 29th, May 2nd and May 9th, 2001. (Id. at 58.)
The Eleventh Circuit agreed that, Kappers testimony shows that the investigation into
Phillips did not begin until at least April 11 . . . (Ex. B, CIV DE:68-21:37-39.) However, the Court
did not find this material because Ghent had testified that he engaged in the controlled buy on April
6, 2001 based on several complaints regarding the distribution of illegal narcotics from that
location. Id. We now know, from Ghents own affidavit, that there were no complaints, and
instead he only went to 625 8th Street upon Kappers request. Since Kapper did not request that
Ghent engage in a controlled buy with Mr. Phillips until after April 11th, there could not have been
any controlled buy on April 6th.
This Court stated, in its Order Denying Motion for Bond, its concerns that Officers Emmons
and Kapper corroborate Ghents claims and Mr. Phillips convictions for the April 6 drug deal. As
explained above, however, no officer was working on April 6th at 9:30 p.m. Therefore neither
Officer Emmons nor Agent Kapper could have been present during this supposed controlled buy.
Notably, Officer Emmons did not testify at trial that he was with Ghent on April 6, 2001. Instead,
he only testified about the arrest of Stephanie White on April 11, 2001. (Ex. AA, Trial Tr.
12/13/2002, CIV DE:68-38:59-82.) The Government did not ask Officer Emmons, and he in no way
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suggested or mentioned, that he was in any way involved in any type of controlled buy with Ghent,
the CI, or Mr. Phillips on April 6, 2001. (See id.)
Nor did Agent Kapper testify about Ghent engaging in a controlled buy on April 6th. (Ex.
X, CIV DE:68-42:71-72.) Agent Kapper discussed being on the outskirts when Ghent engaged in
a controlled buy at 625 8th St., but his testimony makes clear that this did not occur on April 6th and
it did not occur with Elroy Phillips. (See id.) Agent Kapper testified that a few days prior to May
2nd, he was on the outskirts when Ghent went over to the location at 625 8th St. to do a controlled
buy. (Id. at 72.) And Agent Kapper repeated the time frame again, stating that on May 2nd, a few
days after he and Ghent went to 625 8th St., Agent Kapper went to 625 8th St. (Id.) April 6th is
clearly not a few days before May 2nd. April 24th, on the other hand, when Ghent engaged in a
controlled buy with Ben Black, is a few days before May 2nd. And it is clear that Agent Kapper is
referring to the April 24th controlled buy with Ben Black because he states that the description of
the individual who sold cocaine to Ghent was a very detailed description of a heavyset black male,
dark complected, approximately 5'8" in height who Agent Kapper did not know. (Id.) Agent
Kapper then testified that when he went to 625 8th St. he not only immediately knew . . . Mr.
Phillips but that he was more concerned with the dark complected individual and that he turned
his attention away from Mr. Phillips back to the heavyset male: Ben Black. (Id.) Agent Kapper
further testified that he pulled a photograph of Ben Black to show to Ghent and without even
looking at the name or anything, he said that is the guy from the other night. (Id.)
It cannot be more clear that the only time Agent Kapper was on the outskirts with Ghent was
when Ghent did a controlled buy with Ben Black on April 24th. Notably, unlike on April 6th, when
neither Agent Kapper nor Emmons were working at 8:30 pm, both Agent Kapper and Emmons were
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James Yearby and Stephanie White, along with numerous others in Operation
9
Crackdown were arrested on April 11th.
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working on April 24th and therefore could have been present for a controlled buy with Ben Black
on that day. See Ex. U and Ex. V. Moreover, had Agent Kapper had information that Ghent had
gone, on more than one occasion, to do a controlled buy at 625 8th St., he would have stated so in
his testimony. Or had Agent Kapper been with Ghent when he engaged in two different controlled
buys at 625 8th St., he also would have said so. Yet, Agent Kapper only names one controlled buy
at 625 8th St. As Ghent engaged in a controlled buy with Ben Black on April 24, 2001, which is
actually a few days before May 2nd and Ben Black fits the very detailed description of the person
who sold drugs to Ghent on the date in question, the only controlled buy that Agent Kapper can attest
to is the April 24th controlled buy with Ben Black, and not any alleged April 6th drug transaction.
Fifth, had the police officers already had Elroy Phillips engaging in a controlled buy on April
6, 2001, not only would he have been arrested with everyone else on April 11th , but they also would
9
not have needed to begin trash pulls to try to find contraband they would have already had evidence
of contraband. (See Ex. X, CIV DE:68-42:58.) The officers lack of evidence against Elroy Phillips,
after April 11, is buttressed by a DEA letter, written on May 14, 2001, declaring
[A]ccording to the U.S. Attorneys Office, there is insufficient
probable cause to properly indict PHILLIPS at this time . . . [AUSA]
LeClainche advised that the United States Attorneys Office is
actively pursuing a historical drug trafficking case against PHILLIPS
. . . . Additionally, the West Palm Beach Police Department is
actively attempting to make street level buys of crack cocaine from
PHILLIPS. AUSA LeClainche advised that the United States
Attorneys Office will accept any such purchases from a police
undercover for Federal prosecution of PHILLIPS.
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(emphasis added). Had a controlled buy already occurred on April 6th, then the Government and
the Officers would have had the evidence necessary to arrest Mr. Phillips on April 11th and they
certainly would not have drafted the foregoing memo desperately looking for evidence of a
controlled buy, more than a month after April 6th, if there had already been one. Thus, Agent
Kappers testimony and DEA records establish that the April 6th controlled buy could not have
happened.
Sixth, the CI in this case, Gnita Chappelle-Simmons (Ms. Chappelle), was interviewed by
AUSA Janice LeClainche and members of the WPBPD. (CIV DE:281-1 at 50.) Ms. Chappelle
stated that she never engaged in a controlled buy with Elroy Phillips. (Ex. J, CIV DE:186:9; see also
CIV DE:281-1 at 50.) The CI explained that she was very close with Elroy Phillips sister Yvelle
Phillips, who Ms. Chappelle knows as Shug. (Id.) Ms. Chappelle told the officers that she would
never have done a controlled buy with Mr. Phillips because Shug was her best friend. (Id.)
Moreover, Ms. Chappelle stated that she engaged in sexual relations with Ghent and that she saw
him buy, sell, and use narcotics. (Id.) Notably, Ms. Chappelle stated that she had no idea she was
ever involved in a controlled buy and was therefore an unwitting CI which is consistent with
statements made by Ghent that he used unwitting CIs, persons who did not know that he was an
undercover police officer, to purchase drugs while he worked for WPBPD. (CIV DE:281-1, 54(c),
56(i).) Thus, Ms. Chappelles statements prove not only that she did not engage in a controlled buy
with Elroy Phillips on April 6th, but that she never engaged in a controlled buy with Ghent in the
manner he described in his testimony: she was never searched before and after a transaction, she
never wore a transmitter, and she was never given money or a specific target.
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Seventh, the police report for the April 6th incident, which this Court also mentioned in its
Order, is fraught with issues. A search of the police database did not come up with a report for April
6, 2001. See Ex. BB, Affidavit of Mark J. Murnan. After this report magically appeared the day of
trial, even using the case number, the police department still could not find any report for April 6,
2001 in its system. Id. A few months later, the West Palm Beach records department came back
with a report with that case number, but the report was originally generated on March 28, 2001. Id.
Notably, that report, originally generated on May 28, 2001 and used at trial as a report for an incident
that occurred on April 6, 2001, was only put into the system after it was used at trial. At trial, former
counsel for Mr. Phillips, Randee Golder Esq., circled the signature block of the report to remind
herself to inquire about the lack of a supervisors signature on cross examination. See Ex. CC,
Randee J. Golder Letter to Elroy Phillips, 9/8/08. There was no confidential stamp on the report
at that time. Id. Investigator Mark Murnan then took a copy of that circled document to the West
Palm Beach Police Department to try to locate the report in the records department. Id. Mr. Murnan
left a copy of that circled report with the records department. Id. A few months later, when the May
28, 2001 report was found, the report in the system was the same circled document that the
investigator had brought to the police department. See id. This document was also newly stamped
confidential. See id.
Moreover, after Ghent learned that the report was actually opened on May 28, 2001, he
suddenly remembered a May 28, 2001 attempt to do a controlled buy at 625 8th Street. This May
28, 2001 attempt was never mentioned in briefings with the Government, during Ghents trial
testimony, or during cross examination. Instead, Ghent first mentioned a May 28, 2001 attempt in
his sworn affidavit, filed in April 2004, a year and a half after he testified at trial. This belated
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revelation was made in response to the Mr. Phillips Motion for New Trial, where the May 28, 2001
date of the police report first came to light. Notably, the parties explained in their Joint
Memorandum in Support of the Motion to Vacate (CIV DE:281:11 n.16), the documentary
evidence supporting the March 28, 2001, attempted transaction shows that the transaction occurred
at 5:00 p.m. and lasted fifteen minutes, followed by Ghent returning to the WPBPD Headquarters
to complete paperwork regarding the payment of the CI. But Ghent was supposed to be in the
Hostage Negotiation Class on that date, and the class started at 5:30 p.m. It would have been
physically impossible for Ghent to have been in those locations at those times. Id.
Finally, instead of the two investigative fund receipts (IFE) for controlled buys that would
be needed to corroborate Ghents testimony (one for the April 6th controlled buy with Mr. Phillips
and one for the April 24th controlled buy with Ben Black), there is only one IFE (IFE #2789). (See
Ex. DD, IFE Report, CIV DE:137:4-7.) In Captain Daniel Sargents letter to Mr. Phillips, he
explained that there were only five cash advance receipts in conjunction with this case (01-24592):
#2783, 2789, 2791, 2792, and 2794. (Ex. EE, Captain Sargent Letter, 09/23/09, CIV DE:84:28.)
None of those five cash advance receipts was made prior to April 13, 2001 which is consistent with
Agent Kappers testimony. (See Ex. DD.) And only one of those transactions, # 2789 made on April
13, 2001, had an expense of $50.00 for a controlled buy. (Id.) Thus, there could not have been two
controlled buys, as alleged by Ghent. And, as the controlled buy with Ben Black on April 24th was
(1) after the April 13th date of the IFE sheet; (2) confirmed to have happened by Ben Black; (3) after
the April 11th date that the investigation into Mr. Phillips began; and (4) consistent with Kappers
testimony that Ghent had done a controlled buy at 625 8th St. a few days before May 2nd, IFE #
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2789 must have referred to the April 24th controlled buy with Ben Black and not the fabricated April
6th date.
The evidence in this case is unequivocal: there was no April 6th controlled buy. Count 9
should therefore be vacated based on the pleadings alone.
iii. Affect on Other Charges
The Court specifically asked the parties to explain the affect of the fabricated April 6, 2001
drug buy on the other charges. But this Court has already found that a fabricated April 6, 2001 report
would impact the other charges in this case. In this Courts Order Denying Motion for New Trial,
the Court found that
On June 7, 2001, Agent Ghents April 6, 2001 police report was used
by the Government to obtain a criminal complaint for the arrest of the
Defendant Elroy Phillips which was signed by Magistrate Judge
Johnson. The April 6, 2001 report was again used on June 8, 2001 in
support of a search warrant for the Defendant Elroy Phillips
residence. If the police report on April 6, 2001 was fabricated, the
Court would need to determine whether the jurys verdict at
Defendants trial relied on evidence improperly obtained from a
fabricated police report.
(CR DE:375:3, n.1 (emphasis added).) Now that it has been established that the police report on
April 6, 2001 was fabricated, the Courts next inquiry is whether it should vacate the other counts
because they were all either directly or indirectly related to that fabricated report. And it is clear that,
as these counts are all interrelated and dependent upon Ghent, the Court should also vacate Counts
1, 14, and 17: (i) the fabricated April 6th incident was used to obtain a criminal complaint for all of
the charges in this case; (ii) the fabricated April 6th incident was used to obtain a search warrant
leading to the charges in Counts 14 and 17; and (iii) the jury relied on Ghents testimony and the
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fabricated report (and not on the cooperating witnesses who testified against Mr. Phillips) as
evidence to find Mr. Phillips guilty of Count 1.
The parties have stipulated that the affidavit in support of the Federal Criminal Complaint
against Mr. Phillips was based entirely upon information provided to Special Agent Enockson by
Ghent in a written report. (CIV DE:281-1 at 7.) That information was about Ghents alleged
controlled buy with Mr. Phillips on April 6th. Id. After Mr. Phillips was arrested on June 8, 2011,
Agent Enockson then prepared an application for a search warrant for Elroy Phillips residence,
where the ammunition that is the subject of Counts 14 and 17 was ultimately found. (See id. at 10.)
That affidavit described the issuance of the Federal Criminal Complaint (which had been based on
Ghents written statement), the circumstances of Mr. Phillips arrest on June 8, 2011, and then
repeated, verbatim, the allegations that had been contained in the affidavit in support of the Criminal
Complaint (which, again, was based entirely on Ghents written statements). (See id.) The search
warrant also included information about the arrests of Mr. Phillips girlfriend, Stephanie White, and
statements made by Ms. White and James Yearby, an alleged co-conspirator. (Id.) All parties agree
that there would not have been sufficient evidence for a Criminal Complaint or search warrant
without Ghents statements. Even this Court found, in the Order denying Mr. Phillips Motion for
a New Trial, that neither Ms. White nor Mr. Yearbys testimony were found credible by this jury.
As the DEA and U.S. Attorneys Office has stipulated that it would never have included the
information from Ghent in the criminal complaint, search warrant application, or the indictment had
they known of Ghents prior criminal conduct, all charges based upon that information must be
vacated. (See CIV DE:375.) Further, the parties have now established that this information, relied
upon for Mr. Phillips arrest, search of his home, and the indictment is false.
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Specifically, in Counts 14 and 17, Mr. Phillips was charged with being a felon in possession
of ammunition, based upon bullets that were found during the execution of a search warrant at his
residence. As conceded by the Government, those counts relied entirely on evidence that was
obtained during a search of Mr. Phillips residence, and the information provided by Ghent was
critical to establishing probable cause in that search warrant application. A finding of Mr. Phillips
actual innocence of April 6th would therefore affect the search warrant, which was based almost
entirely upon the affiants belief in an April 6th drug deal. Additionally, prior to trial, Mr. Phillips
filed a Motion to Suppress this evidence, challenging the validity of the warrant and the ensuring
search. Had Mr. Phillips had this Brady information in advance of or during the hearing on the
Motion to Suppress, the evidence that led to the charges in Counts 14 and 17 would likely have been
suppressed (or, more likely, never charged by the U.S. Attorneys Office).
Additionally, Mr. Phillips was found guilty of Count 1, conspiracy to distribute crack, but
only of an amount under 5 grams the .77g that he was charged with selling to the CI on April 6th
rather than the charged amount of 50 grams or more. (See CR DE: 239.) Not only should this
charge also be vacated because the probable cause affidavit was based on Ghents misinformation,
but also because the jurys finding of under 5 grams establishes that the jury based Mr. Phillips
conviction for conspiracy on the April 6, 2001 controlled buy which we now know did not happen.
Moreover, this Court itself found, in its Omnibus Order Denying the Motion for New Trial, that the
jury did not rely on Mr. Phillips co-conspirators in finding Mr. Phillips guilty. (See CR DE: 375
(finding that the jury did not rely on the testimony of cooperating witnesses James Yearby or
Stephanie White, and therefore denied all claims related to their testimony).) And the jury found Mr.
Phillips not guilty of the charge related to Ben Blacks controlled buy with Ghent. Thus, the jury
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must have relied on Ghents testimony in finding Mr. Phillips guilty of Count 1 and therefore Count
1 should also be vacated.
Additionally, during the May 15th hearing, this Court mentioned the Eleventh Circuits
discussion of the evidence to sustain Mr. Phillips convictions on Counts 1, 14, and 17, stating that
the Eleventh Circuit had found that there was overwhelming evidence to support those
convictions. (CIV DE:279.) But the Eleventh Circuit actually only used the term overwhelming
evidence to describe the evidence in support of the April 6th drug transaction (Count 9). (Ex. B,
CIV DE 68-21:38 ([t]he overwhelming evidence establishes that Ghent and the CI went to 625 8th
Street on April 6, 2001 and purchased crack cocaine from Phillips.).) When discussing the proof
of the conspiracy (Count 1), on the other hand, the Eleventh Circuit stated that the government
presented extensive evidence. (Id. at 24.) The Eleventh Circuits different use of language implicitly
recognizes a difference in the quality of the proof between the two counts.
Moreover, the question presented here is substantially different than the question previously
posed to the Eleventh Circuit. Regarding the Brady violation, the question is whether there is a
reasonable probability that the disclosure of the evidence, considered cumulatively, would have
changed the outcome of the case. Bagley, 473 U.S. at 682; Kyles, 514 U.S. at 434. A reasonable
probability is defined as one sufficient to undermine confidence in the trial or sentence. Bagley, 473
U.S. at 682. In asking this question, unlike the evidentiary sufficiency question addressed by the
Eleventh Circuit previously, it is proper for this Court to be mindful that the jury had acquitted
Phillips of all of the substantive distribution counts, except for Count 9; had acquitted Mr. Phillips
of the conspiracy to distribute powder cocaine, which also alleged that it began in 1999 and included
Ben Black and persons known and unknown to the Grand Jury (Count 2); had acquitted Mr. Phillips
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of the charges of opening and maintaining both the apartment at 625 8th St. and Mr. Phillips
residence at 1103 35th Street for the purpose of distributing crack and powder cocaine (Counts 3
and 4); and had only convicted Mr. Phillips of the lesser-included offense of conspiracy to distribute
less than five grams of crack B not 50 grams or more as charged. If Ghents testimony, as the only
law enforcement officer, who reportedly had face-to-face contact with Mr. Phillips selling crack, had
been severely undermined, there is more than a reasonable probability that the outcome of the case
on Count 1 would have been different, and the confidence in the verdict on Count 1 has thus been
undermined by these post-conviction discoveries.
The Government relied heavily on Ghents information, not only at trial to convict Mr.
Phillips of these counts, but also in supporting its probable cause affidavit to arrest Mr. Phillips, to
obtain a search warrant to search his residence, and during the Grand Jury proceedings to obtain an
Indictment. Moreover, as the jury acquitted Mr. Phillips on all substantive counts where other
cooperators testified, Ghents testimony, in addition to what was found based on the search warrant,
was the only basis for the jurys conviction of Mr. Phillips in general. All counts were therefore
based on Ghents misinformation and testimony and therefore all counts, except Count 11, should
be dismissed.
C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Trial counsel was constitutionally ineffective for her failure to investigate Ghent, to establish
that there was no April 6th controlled buy, and to subpoena and call defense witnesses to establish
Mr. Phillips innocence.
i. Legal Standard
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The Sixth Amendment to the U.S. Constitution guarantees that criminal defendants are
entitled to the assistance of counsel in presenting their defense. Hall v. Head, 310 F.3d 683, 691
(11th Cir. 2002) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2055, 2063 (1984)).
Furthermore, the Court has recognized that the right to counsel is the right to effective assistance
of counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970).
To succeed on a claim of ineffective assistance of counsel, a defendant must show that his
counsel's conduct so undermined the proper function of the adversarial process that the trial cannot
be relied on as having produced a just result. Strickland, 466 U.S. at 686. To obtain reversal of a
conviction or to vacate a sentence based on ineffective assistance of counsel the defendant must
show: (i) that counsel's performance fell below an objective standard of reasonableness; and (ii) that
there is a reasonable probability that, but for counsel's objectively unreasonable performance, the
result of the proceeding would have been different. Id. at 688-89; Williams v. Taylor, 120 S.Ct.
1495, 1512-16 (2000). In regards to the second prong, the Court added that . . . strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make a reasonable decision that makes particular
investigations unnecessary. Id.
Two years after its Strickland decision, the Court reaffirmed how to determine whether the
performance of counsel was within the range of reasonable professional assistance, or fell below
an objective standard of reasonableness. Kimmelman v. Morrison, 477 U.S. 365, 385-387, 106 S.Ct.
2574 (1986); see also Williams v. Taylor, 120 S.Ct. 1495, 1512-16 (2000). The Supreme Court
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noted that . . . a single, serious error may support a claim of ineffective assistance of counsel.
Kimmelman, 477 U.S. at 384. The Court added that this single serious error could cause counsel
performance to fall below the level of reasonable professional assistance, even where, counsel's
performance at trial [was] generally credible enough, and even where counsel had made vigorous
cross-examination, attempts to discredit witnesses, and [an] effort to establish a different version of
the facts. Id. at 386; see also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639 (1986) (The
right to effective assistance of counsel . . . may in a particular case be violated by even an isolated
error of counsel if that error is sufficiently egregious and prejudicial.); Smith v. United States, 871
F.Supp. 251, 255, n.8 (E.D. Va. 1994) (finding performance below constitutional standards for
failure to raise an objection to a clear and indisputable error in the PSR, but pointing out that [t]he
error was an innocent inadvertence, and not indicative of the entirety of counsel's representation of
petitioner, which was competent and effective in all other respects.).
Notably, even if counsels decisions are made based on counsels mistaken beliefs, those
decisions can still be deemed professionally unreasonable and to fall below the objective standard
of Strickland. See Kimmelman, 477 U.S. at 385-387; Williams v. Taylor, 120 S.Ct. 1495, 1512-16
(2000). In short, no deference is due to counsel's actions, and the performance of counsel falls below
the Strickland objective standard of reasonableness if counsel's specific acts or omissions are not
demonstrably the result of actual strategic choices made between or among all plausible options
after thorough investigation of law and facts relevant to [the] options. Strickland, 466 U.S. at 691;
Kimmelman, 477 U.S. at 385-87; Williams, 120 S.Ct. at 1512-16.
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ii. Former counsels lack of investigation and trial strategy was deficient
In this case, former counsel stated in a letter to AUSA LeClainche that she was ineffective
in not investigating whether Ghent was lying and not establishing that there was no April 6th
controlled buy. Ex. FF, Randee Golder Letter to AUSA LeClainche, 4/10/09. As former counsel
explained, because she assumed that a police officer would not make up an entire incident, she did
not believe Mr. Phillips claims that he was framed by Ghent. Id. Nor did she believe a police
officer would fabricate a report out of thin air. Id. And former counsel was assured by the
Government that the April 6th report was in the public record. Id. We now know that the report was
not in the public record. It was these mis-understandings which kept former counsel from adequately
investigating, crossing and combating Ghents lies in court. See Kimmelman, 477 U.S. at 385-387
(even if decisions are based on counsels mistaken beliefs, those decisions can still be deficient and
fall below an objective standard of reasonableness).
As outlined in Mr. Phillips Motion to Vacate, had former counsel properly investigated the
April 6th Report she would have called Sandy La Rue, a WPBPD Records Supervisor. Ms. La Rue
would have explained to the jury that, according to the records at the WPBPD, there was no police
report on file that indicated Ghent engaged in a controlled buy on April 6th. And Ms. La Rue would
not have even been able to point to the March 28, 2001 report, because, as explained above, there
was absolutely no report in the system about April 6th until after Mr. Phillips investigator gave the
WPBPD former counsels circled copy of Ghents report after the trial. Ms. La Rue also would have
testified that, had other officers accompanied Ghent on April 6th as he testified, those officers also
would have had to fill out reports regarding the controlled buy and those reports were also not in the
system.
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Had former counsel investigated the April 6th report, she also would have called Ms. Sharon
Enders as a defense witness. Ms. Enders, a WPBPD Records Clerk, ran a search in the Police
Contact Report for former counsels investigator. She would have testified not only that there were
no logged police reports for April 6th or police reports written by Ghent about Phillips, but also that,
even if a police report was confidential, it still would have to be logged in with the police
department system.
And former counsel had ample reason to call Ms. La Rue and Ms. Enders as witnesses and
to further investigate this April 6th report because her investigator had conducted a public records
search of the WPBPD and found nothing. The Police Contact Report showed that there were no
reports about an April 6th incident in the system. And in fact, there were absolutely no reports
authored by Ghent involving Phillips. Former counsel therefore knew that something was not right
when a April 6th report magically appeared during trial. Based on Mr. Phillips protestations of his
innocence and the Police Contact Report, former counsel was on notice that she needed to further
investigate this April 6th report and Ghents testimony. And the Court has made clear, it in its
Omnibus Order denying Phillips Motion for New Trial (CR DE:375), that it would have allowed
for a brief continuance of trial for counsel to investigate this newfound report, so that she could
adequately cross examine Ghent on it. (Id. at 21.) Former counsels failure to do so was a deficient
performance which had a drastic impact on this case. This testimony would have called into
question the April 6th incident and the veracity of Ghents testimony, changing the outcome of the
case. As former counsel stated, I really believe if I had had the information at trial that was
uncovered after trial, the result of conviction on the Ghent sale (I think April 6th) would not have
occurred, and it would have been an acquittal. Ex. FF.
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Former counsels failure to ask Ghent about the missing April 6th police report was just one
of the myriad of things that she failed to cross examine Ghent on. As discussed above, Ghent was
in a hostage negotiations class after sundown on April 6th and would have been unable to engage
in a controlled buy as it was just getting dark or even at 9:30 p.m.. Former counsel never asked
Ghent about this class, or told the jury how this contradicted his previous testimony. Former counsel
failed to investigate where Ghent was that night: she never asked him how long it would have taken
him to do all the activities he claimed he did before the April 6th controlled buy. Counsel never
established that at least 72 minutes had to elapse after Ghent left his training class before he could
have engaged in the controlled buy: so Ghent would not have been able to engage in any type of
controlled buy until approximately 9:57 p.m. at the earliest.
And former counsel did not investigate whether any other officer could be working that day.
She did not cross Ghent on the West Palm Beachs employment records showing that, contrary to
his testimony, neither Emmons nor Kapper were working on April 6th at the time of the alleged
controlled buy. And, importantly, former counsel did not investigate or question Ghent on how
Captain Coppins, Ghents supervisor, could have signed an April 6th report on April 6th when
Coppins employment records and affidavit show that he was on vacation for the week of the 6th.
Ex. GG, Coppins affidavit.
Similarly, former counsel did not investigate or file a Motion regarding the identity of the
confidential informant. As is clear from the CIs statements which vindicate Mr. Phillips (see CIV
DE:281-1 at 50), finding Ms. Chappelle would have been crucial to Mr. Phillips case: she denies
having ever engaged in a drug deal with Mr. Phillips. Moreover, Ms. Chappelle would have testified
that she used drugs with and was sexually active with Ghent, a fact that would have affected the
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jurys perception of the veracity of Ghents testimony and the impression he gave as a law abiding
police officer. (See id. at 51.) Former counsels failure to properly investigate the CI and to call
Ms. Chappelle to testify fell below an objective standard of reasonableness and, since she establishes
Mr. Phillips innocence, there is more than a reasonable probability that, but for counsel's objectively
unreasonable performance, the result of the proceeding would have been different.
Nor did former counsel call the necessary defense witnesses to establish that Mr. Phillips
could not have engaged in a drug deal with Ghent in West Palm Beach on April 6th because he was
in Miami that night. Tanya Grimes, the girlfriend of Mr. Phillips at the time of the investigation, had
been interviewed by prior counsel and was an intended defense witness. Among other things, former
counsels hand-written notes regarding Ms. Grimes testimony, indicate that she was planning on
asking Ms. Grimes about First Fridays. (Ex. HH, Randee Golder Trial Notes, CIV DE:1-23.) As
discussed previously, First Fridays are a monthly networking event held at different clubs in
Miami that Mr. Phillips attends religiously. As April 6th was the first Friday of the month of April,
Ms. Grimes testimony would have established Mr. Phillips alibi: he could not have been engaged
in a controlled buy with Ghent in West Palm Beach on April 6th because he was in Miami at a First
Fridays event. Unfortunately, contrary to the advice of Mr. Phillips, former counsel refused to
subpoena Ms. Grimes or call her to testify in Mr. Phillips defense case.
Mr. Phillips mother, Cynthia Phillips, was also not called by former counsel. Like Ms.
Grimes, Ms. Phillips was hoping to testify that Mr. Phillips could not have been in West Palm Beach
on April 6th because Mr. Phillips always timed his bi-monthly maintenance of her lawn in Miami
with his attendance at the monthly First Friday networking event. (Ex. Z, CIV DE:4-1:33.) Mr.
Phillips told former counsel that Ms. Phillips would testify that he was at her house, in North Miami,
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on April 6th. Ms. Phillips, however, was never called by former counsel to testify. Former counsels
failure to establish that Mr. Phillips had an alibi for the April 6th controlled buy was a deficient
performance that affected the outcome of the proceeding.
Former counsels failure to properly investigate (i) the legitimacy of the April 6th police
report a report that did not exist according to the WPBPDs clerks office (ii) Ghents lies and
misstatements regarding April 6th; (iii) the identity of the CI, who establishes Mr. Phillips
innocence; and (iv) Mr. Phillips alibi for April 6th fell below an objective standard of
reasonableness and, since there is more than a reasonable probability that, but for counsel's
objectively unreasonable performance, the result of the proceeding would have been different, these
convictions should be vacated.
CONCLUSION
This has been a long and arduous process for all parties involved in this case. Mr. Phillips
has spent over 12 years in prison already for crimes that he should not have been arrested for, yet
alone convicted of. Mr. Phillips respectfully requests that the Court grant the Parties Joint Motion
to Vacate, and then dismiss his convictions on Counts 1, 9, 14, and 17 and set him free.
WHEREFORE, Mr. Phillips requests that the Court grant the Parties Joint Motion to Vacate.
Respectfully submitted
The Law Offices of Marc David Seitles, P.A.
Courthouse Center
40 N.W. 3 Street
rd
Penthouse One
Miami, FL 33128
Tel: (305) 403-8070
Fax: (305) 403-8210
Email: mseitles@seitleslaw.com
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/s/ Marc David Seitles
________________________________
Marc David Seitles
Fla. Bar No. 0178284
/s/ Ashley M. Litwin
________________________________
Ashley M. Litwin
Fla. Bar No. 0096818
CERTIFICATE OF SERVICE
I hereby certify that on October 25, 2013 undersigned electronically filed the foregoing
document with the Clerk of the Court using CM/ECF which will send notification of such filing
to: Assistant United States Anne Marie Villafana.
/s/ Marc David Seitles
_________________________
Marc David Seitles, Esq.
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