United States of America v. Edward Magruder

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2024 Decided January 21, 2025
No. 22-3025
UNITED S TATES OF A MERICA,
APPELLEE
v.
EDWARD M AGRUDER ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00203-1)
Bruce H. Searby, appointed by the court, argued the cause
and filed the briefs for appellant.
Michael E. McGovern, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, and Chrisellen R. Kolb, John P.
Mannarino, and Nihar R. Mohanty, Assistant U.S. Attorneys.
Before: H ENDERSON, M ILLETT, and C HILDS , Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LEC RAFT HENDERSON, Circuit Judge: In October
2019, Edward Magruder pleaded guilty to possession with
intent to distribute more than a kilogram of heroin. He later
sought to withdraw his plea but the district court denied the
motions. On appeal, Magruder contends that the district court
erred in two respects. First, he argues that the district court
applied an erroneous legal standard by requiring him to assert
his innocence as a prerequisite to granting a withdrawal.
Second, he asserts that his plea was tainted because he received
ineffective assistance of counsel based on his counsel’s failure
to mount several Fourth Amendment challenges to the
evidence against him. As detailed infra, we affirm the district
court.
I. BACKGROUND
In 2018, the FBI collaborated with the Colombian National
Police (CNP) to investigate a drug-trafficking organization
with ties to the New Orleans, Louisiana area. The investigation
revealed that Juan Carlos Mosquera-Amari, a New Orleans
resident, was part of a drug-trafficking conspiracy connected to
Colombia. By wiretapping Mosquera-Amari’s telephone, the
FBI identified his Colombian contact and, with the help of the
CNP, further identified Jhon Jairo Mosquera-Asprilla as the
Colombian-based source of the drugs. Through a CNP wiretap
on Mosquera-Asprilla’s telephone, the FBI intercepted
communications between Mosquera-Asprilla and an individual
with a U.S. telephone number discussing (in coded language)
various aspects of drug processing and sales. The FBI then
obtained a search warrant under the Stored Communications
Act (SCA), 18 U.S.C. § 2703, from a magistrate judge of the
U.S. District Court for the Eastern District of Louisiana to
obtain geolocation data for that telephone number; the data
ultimately associated the number with Magruder, a District of
Columbia (D.C.) resident.

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The geolocation data obtained between December 2018
and May 2019 showed that Magruder traveled at least seven
times between D.C. and New York. Each trip lasted no more
than a few hours in New York and before each trip Magruder
communicated with Mosquera-Asprilla. During that period,
the FBI learned that Magruder previously had been convicted
of drug distribution and, while imprisoned, placed in the same
facility as Mosquera-Asprilla (who was deported following his
incarceration). By March 2019, the FBI obtained a search
warrant from the D.C. federal district court authorizing
interception of communications to Magruder’s telephone. See
infra n.3. At that point, FBI agents had also determined that
Magruder had switched to a second telephone with a new
number. They obtained geolocation tracking authorization for
the new number but did not yet have authority to intercept
communications at the time of Magruder’s arrest.
On June 7, 2019, Magruder again traveled to New York
and was put under FBI observation as soon as he arrived.
While in New York, he made several calls on a telephone
(which the FBI could not intercept) and was observed carrying
a bright blue backpack. The next day, he returned to D.C.
When he got off the bus carrying a bright blue backpack, FBI
agents stopped him and searched the backpack. They
discovered two duct-taped blocks of heroin and arrested
Magruder.
On June 10, 2019, Magruder was charged with Unlawful
Possession with Intent to Distribute One Kilogram or More of
Heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i).
After Magruder’s initial appearance, court-appointed counsel
guided Magruder through the discovery process. On
September 13, Magruder informed the district court that he
wished to proceed to trial. Less than a month later, however,
Magruder changed his position and accepted the Government’s

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plea offer. Under the plea agreement, the Government agreed
not to file enhancement papers based on Magruder’s past
convictions under 21 U.S.C. § 851—such filing would have
increased Magruder’s mandatory minimum sentence from 10
to 25 years. Instead, the parties agreed to a recommended
sentencing range of 12 to 15 years of imprisonment.
Before the October 25, 2019 plea hearing, Magruder had
at least four discussions with his counsel regarding the relevant
sentencing calculations and discovery process. At the plea
hearing, Magruder expressed his satisfaction with his counsel’s
representation and acknowledged that he waived his right to
appeal any issue other than ineffective assistance of counsel.
J.A. 56, 59–61. The district court accepted Magruder’s guilty
plea.1
Nevertheless, later that same day Magruder advised the
district court by letter that he was dissatisfied with his counsel’s
services, alleging that counsel had inadequately investigated
the case. At a January 27, 2020 hearing, Magruder’s new
court-appointed counsel affirmed that Magruder wished to
withdraw his plea and would soon file a motion to that effect.
Before so moving, however, Magruder’s second court-
appointed counsel withdrew his representation and a third
court-appointed counsel assumed Magruder’s representation
soon thereafter. Magruder subsequently filed sixteen pleadings
seeking to withdraw his guilty plea, all of which were denied
by the district court. J.A. 276.
On April 22, 2022, the district court sentenced Magruder
to 180 months of imprisonment followed by 60 months of
supervised release. This appeal followed.
1 Neither party disputes that the October 25, 2019 plea hearing
complied with Rule 11 of the Federal Rules of Criminal Procedure.

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II. ANALYSIS
A. Rule 11(d)(2)(B) Plea Withdrawal
We review for abuse of discretion the district court’s
denial of a motion to withdraw a guilty plea before sentencing.
Everett v. United States, 336 F.2d 979, 983 (D.C. Cir. 1964).
Under Fed. R. Crim. P. 11(d)(2)(B), a defendant may
withdraw a previously accepted guilty plea if “the defendant
can show a fair and just reason for requesting the withdrawal.”
Withdrawal “is liberally granted, although . . . not granted as a
matter of right.” United States v. Ford, 993 F.2d 249, 251
(D.C. Cir. 1993) (citing United States v. Russell, 686 F.2d 35,
38 (D.C. Cir. 1982)). In deciding whether such reason exists,
the court considers three factors: “(1) whether the defendant
has asserted a viable claim of innocence, (2) whether the delay
between the guilty plea and the motion to withdraw has
substantially prejudiced the Government’s ability to prosecute
the case, and (3) whether the guilty plea was somehow tainted
by a violation of Rule 11.” United States v. Leyva, 916 F.3d
14, 22 (D.C. Cir. 2019) (quoting Ford, 993 F.2d at 251)
(internal quotation marks omitted). The first factor requires the
defendant to offer a viable claim of innocence, which this court
has sometimes characterized as requiring, at a minimum, a
“legally cognizable defense” that effectively denies a
defendant’s culpability. See id. at 24 (citing United States v.
Curry, 494 F.3d 1124, 1129 (D.C. Cir. 2007)). A guilty plea
found invalid under the third factor “is all but dispositive.” Id.
at 22 (citing United States v. Cray, 47 F.3d 1203, 1207 (D.C.
Cir. 1995)). The “validity of a guilty plea” turns on “whether
the plea represents a voluntary and intelligent choice” by the

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defendant. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citations
omitted).2
B. District Court’s Application of First Ford Factor
Magruder correctly asserts that we do not require every
defendant seeking to withdraw his guilty plea before
sentencing to satisfy Ford’s first factor by asserting a “viable”
innocence claim, especially if the third factor weighs heavily
in the appellant’s favor. Indeed, we are “very lenient when the
plea was entered unconstitutionally or contrary to Rule 11
procedures. Such pleas should almost always be permitted to
be withdrawn . . . regardless of whether the movant has
asserted his legal innocence.” United States v. Barker, 514
F.2d 208, 221 (D.C. Cir. 1975). But, without deciding whether
Magruder is correct in his assertion that the district court “shut
down consideration of the withdrawal of the plea because of
the lack of a claim of actual innocence,” we affirm the district
court because the error, if any, would be harmless. Appellant’s
Br. 53.
In his series of motions to withdraw his guilty plea,
Magruder made various Fourth Amendment challenges in
district court. In some, he argued that his claims rendered him
innocent under the first Ford factor; in others, he argued that
his counsel’s failure to raise his claims amounted to ineffective
assistance of counsel sufficient to taint his plea under the third
2 The Government does not claim that the seven-month delay
between Magruder’s plea and his first motion to withdraw
“substantially prejudiced” its “ability to prosecute the case.” Ford,
993 F.2d at 251 (citation omitted). Because that factor “has never
been dispositive,” the district court rightly focused its analysis on the
first and third factors, as we do here. Curry, 494 F.3d at 1128
(quoting United States v. Hanson, 339 F.3d 983, 988 (D.C. Cir.
2003)).

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Ford factor. In rejecting these claims as meritless, the district
court noted that “Defendant Magruder again fails to recognize
that ‘suppression of evidence does not amount to legal
innocence.’” J.A. 279 (quoting United States v. Wintons, 468
F. App’x 231, 233 (4th Cir. 2012)). Although this statement
may have suggested the court’s refusal to entertain an asserted
Fourth Amendment violation as the basis of an innocence
claim, it would amount to, at most, harmless error. For the
reasons discussed infra, Magruder could not have succeeded in
withdrawing his plea based on the suppression motions he
claims his counsel failed to assert. See United States v.
Washington, 969 F.2d 1073, 1079 (D.C. Cir. 1992) (affirming
a defendant’s conviction because even though the “trial court
abused its discretion . . . the error was harmless.”).
C. Magruder’s Ineffective Assistance of Counsel
Claims
Magruder asserts that his original retained counsel
rendered ineffective assistance by failing to raise at least two
suppression claims under the Fourth Amendment. Were he
correct, his guilty plea could then be considered tainted under
the third Ford factor. See Hill, 474 U.S. at 56. The general test
for ineffective assistance is set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See Curry, 494 F.3d at
1129. Specifically, a criminal defendant asserting ineffective
assistance of counsel bears the burden of showing (1) “that
counsel’s performance was deficient” (i.e., below an “objective
standard of reasonableness”) and (2) “that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687–88. If the defendant asserts that counsel improperly failed
to challenge a search warrant under the Fourth Amendment, a
showing of Strickland prejudice requires both that the
defendant’s “Fourth Amendment claim is meritorious and that
there is a reasonable probability that the verdict would have

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been different absent the excludable evidence.” Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986). Neither of the Fourth
Amendment claims Magruder asserts his counsel should have
raised would have been successful and so they fail to satisfy
Strickland’s prejudice requirement. Accordingly, there was no
taint to Magruder’s guilty plea under the third Ford factor.
1. Backpack Search
Magruder first claims that the district court erred in finding
his counsel’s failure to move for suppression of the backpack
search did not constitute ineffective assistance. Magruder
bases this claim on his assertion that the FBI agents had no
intention of arresting him until after they discovered the heroin
and thus they did not conduct a proper search incident to arrest.
Relatedly, he asserts that the agents lacked probable cause
before their search to believe Magruder was guilty of
possessing with intent to distribute over a kilogram of heroin,
the charge he ultimately faced. Both of Magruder’s arguments
are without merit.
“Where the formal arrest followed quickly on the heels of
the challenged search of [defendant’s] person, we do not
believe it particularly important that the search preceded the
arrest rather than vice versa.” Rawlings v. Kentucky, 448 U.S.
98, 111 (1980) (citing Bailey v. United States, 389 F.2d 305,
308 (D.C. Cir. 1967) (“Even if the formal arrest was not made
until after the search, the search will be upheld so long as there
is probable cause for an arrest before the search is begun.”)).
The Government asserts, Magruder does not contest and the
district court had earlier found that, when the FBI stopped
Magruder, probable cause existed to believe that Magruder was
part of an ongoing conspiracy to traffic heroin.3 Moreover,
3 The March 2019 search warrant, issued less than three months
before Magruder’s arrest, was based on “probable cause to believe

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Magruder’s unusual travel patterns between New York and
D.C., coupled with the associated telephone calls with
Mosquera-Asprilla, a known drug dealer, created a substantial
likelihood that Magruder was actively engaged in the
furtherance of that conspiracy as he stepped off the bus in D.C.
Having thus established probable cause for arrest before the
search, and with the formal arrest promptly following the
search, we conclude that the arrest was lawful. Nor does it
matter whether the agents subjectively intended to arrest
Magruder before the search or whether they announced that
Magruder was under arrest before conducting the search. See
Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.”). Cf. United States v. Thornton, 733
F.2d 121, 123, 128 n.9 (D.C. Cir. 1984) (characterizing a
search as properly incident to arrest when an officer with
probable cause to arrest stated during the initial search that the
defendant was not yet under arrest but then placed the
defendant under arrest upon discovering narcotics).
It is also of no consequence that Magruder was not charged
with conspiracy, the crime for which probable cause was most
clearly established at the time of the search. As this Court has
said, “even if probable cause does not support arrest for the
offense charged by the arresting officer, an arrest (and search
incident thereto) is nonetheless valid if the same officer had
probable cause to arrest the defendant for another offense.”
United States v. Bookhardt, 277 F.3d 558, 565 (D.C. Cir.
2002). With probable cause to believe some crime existed
before searching Magruder, as was patently the case here, the
FBI agents could stop and search Magruder and his backpack
that [Magruder] . . . [was] committing . . . violations of . . .
Possession with Intent to Distribute and Distribution of Controlled
Substances,” conspiracy to commit the same violations and money
laundering. J.A. 205.

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immediately before formally arresting him and were not
required to charge Magruder with the same offense that
supported the initial probable cause.4
2. Louisiana Search Warrant
For the first time on appeal, Magruder argues that his
counsel failed to challenge both the Louisiana magistrate
judge’s jurisdiction to issue a warrant under the SCA as well as
that district’s venue status. Magruder presupposes that,
because the FBI identified him only using the fruits of this
allegedly invalid warrant, if his counsel had made the challenge
and presumably succeeded, the proper remedy would have
been suppression of the evidence. His counsel’s failure to do
so thus constitutes prejudice under the Strickland definition
thereof and, accordingly, tips the scale in favor of a “tainted”
guilty plea withdrawal under Ford.
But the contraband evidence would not have been
suppressed. Without deciding whether the warrant satisfied the
venue and jurisdictional requirements under the SCA, or
whether a violation of those provisions requires suppression
under the Fourth Amendment, we conclude that, even if
Magruder is correct and the Louisiana magistrate acted in error,
the evidence is admissible under the good-faith exception.
“[T]he marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable
reliance on a subsequently invalidated search warrant cannot
4 Although both sides dispute which party bears the burden to
show that the FBI agents had, or lacked, probable cause to arrest
when the alleged lack of probable cause supports an ineffective
assistance of counsel claim, we need not decide this question. Under
either proof assignment, the FBI agents had probable cause to arrest
at the time of the backpack search.

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justify the substantial costs of exclusion.” United States v.
Leon, 468 U.S. 897, 922 (1984). And notwithstanding not
every reliance is objectively reasonable, “‘a warrant issued by
a magistrate normally suffices to establish’ that a law
enforcement officer has ‘acted in good faith in conducting the
search’” and therefore that the evidence should not be
suppressed. Id. (quoting United States v. Ross, 456 U.S. 798,
823 n.32 (1982)). The warrant that led agents to Magruder was
supported by an affidavit that established probable cause to
connect Magruder’s telephone number to the drug-trafficking
conspiracy operating in New Orleans. That affidavit
systematically laid out the ties between Magruder’s telephone
number and Mosquera-Asprilla, a leader in a Colombian drug-
trafficking conspiracy, along with that organization’s ties to
Mosquera-Amari, a known New Orleans drug trafficker. It is
well-established that “a conspiracy prosecution may be brought
in any district in which some overt act in furtherance of the
conspiracy was committed by any of the co-conspirators,”
United States v. Rosenberg, 888 F.2d 1406, 1415 (D.C. Cir.
1989), and thus there is nothing unreasonable about FBI agents
relying on a Louisiana magistrate judge’s probable cause
finding to believe that the telephone number targeted by the
warrant was subject to his jurisdiction.
Nor is there merit to Magruder’s argument that the
Louisiana search warrant was void ab initio. Several years ago,
the Sixth Circuit held that a search warrant issued by a
magistrate judge lacking the requisite legal authority is void ab
initio and cannot be relied upon under the good-faith exception.
See United States v. Scott, 260 F.3d 512, 515 (6th Cir. 2001).
That holding was subsequently rejected. See United States v.
Master, 614 F.3d 236, 243 (6th Cir. 2010) (“[W]e believe that
the Supreme Court’s evolving suppression rulings in Fourth
Amendment cases require clarification or modification of our
precedent in Scott.”). The Tenth Circuit also rejected the void

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ab initio argument. See United States v. Workman, 863 F.3d
1313, 1318 (10th Cir. 2017) (the argument that a warrant “is
essentially non-existent (void ab initio) when the judge lacks
authority to issue the warrant . . . is foreclosed by the Supreme
Court’s opinions” after Leon). Like our sister circuits, we have
no reason not to apply the good-faith exception even if the
Louisiana search warrant was defective.
Finally, Magruder failed to make a Sixth Amendment
claim based on the Louisiana warrant in district court but “this
court does not remand every ineffective assistance of counsel
claim that is initially raised on appeal.” United States v. Green-
Remache, 97 F.4th 30, 34 (D.C. Cir. 2024). We routinely do
not remand if “the record conclusively shows the defendant
was not prejudiced, [because] no factual development could
render the claim meritorious.” Id. (quoting United States v.
Marshall, 946 F.3d 591, 596 (D.C. Cir. 2020)). For the reasons
set forth supra, the record plainly requires no factual
development for us to determine that Magruder’s claims based
on the Louisiana search warrant are meritless.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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