United States District Court, N.D. Ohio, Western Division
Michael G. Wymer, Movant-Defendant,
United States of America, Respondent-Plaintiff.
G. Carr Sr. U.S. District Judge.
convicted Michael G. Wymer, a career truck thief and chop
shop operator, and three of his confederates of conspiracy
under 18 U.S.C. § 371, and him of fourteen substantive
counts of stealing trucks, cutting them up, and selling their
remains and, often, their cargoes, for scrap. I sentenced him
to 324 months' imprisonment. (Doc. 445). The Sixth
Circuit affirmed. U.S. v. Wymer, 654 F. App'x
735 (6th Cir. 2016).
that he did not receive effective assistance of counsel,
Wymer has moved to vacate his conviction and sentence under
28 U.S.C. § 2255. (Doc. 589).
the motion without any merit, I deny it. I also decline to
issue a certificate of appealability.
Wymer's first attorney withdrew due to communication
problems, I appointed first one attorney (John McMahon) and
then another as co-counsel (Merle Dech). I then appointed a
third attorney (Spiros Cocoves) to assist at sentencing.
after the grand jury returned its indictment, Wymer and his
attorney met with government counsel and federal agents for,
presumably, what is commonly called a “proffer”
session. During that session, Wymer admitted his complicity
in the charged offenses. Though the government had agreed
that it could not directly introduce Wymer's proffer
statements at trial, Wymer understood it could use any
portion of what he had said in the event he testified or
offered evidence inconsistent with his proffer. (Doc. 591 at
his trial attorneys, though not shackled entirely, were
tightly constrained in what they could develop and implement
as a trial strategy. Most simply put: as a practical matter,
Wymer could not testify nor could his attorneys offer any
evidence on his behalf. If he or they presented anything
consistent with the proffer, it would be inculpatory; if
inconsistent, the Damoclean Sword would fall.
little to work with, Wymer's counsel sought to suppress
evidence obtained via a pole camera adjacent to and
overlooking the yard of his chop shop. Though prevailing
doctrine made success unlikely,  that was their - and
Wymer's - best, indeed only, option. After losing that
preliminary round, U.S. v. Wymer, 40 F.Supp.3d 933
(N.D. Ohio 2014), there was not much left to try at trial.
They could quibble and nibble, but that was about it.
simple truth is that the government's case was
unbeatable. A GPS unit on Wymer's car showed him driving
when, and to where, a truck was stolen and returning, along
with the truck, to the chop shop. Surveillance cameras that
Wymer himself had installed inside the chop shop showed what
happened next: the gang rendering the trucks and their cargo
then there were the witnesses: law enforcement officers and
federal agents, several owner-victims and former
confederates, including Wymer's son, Shawn Wymer, who
had, in the vernacular, decided to work for Uncle Sam.
most, defense counsel could try cross-examining the
government's witnesses - always a risky undertaking when
the witness is an experienced law enforcement officer. And,
in this case, equally, if not more risky, with the
owner-victim witnesses. Most had suffered economic loss (one
had to leave off truck driving permanently; others had spent
thousands of dollars refurbishing their trucks; another
testified that his wife accused him of having a second wife -
his truck), all suffered emotionally (one had had his entire
life's possessions in his truck; another had only one of
1500 of its Peterbuilt model built; another first saw the
video of his truck being stolen while on the witness stand).
much to jiggle and wiggle or fiddle and diddle with on
much more with regard to Wymer's former companions in
crime. Some inter-personal animus, readily admitted, as was
the hope for gain at time of sentencing. Pretty standard
stuff, and part of any defense attorney's standard play
book. Sometimes it works; often it doesn't.
was it: the government and Wymer himself had left his
attorneys with nothing else to work with.
Effectiveness of Representation
trying vainly to dig himself out from underneath the crushing
weight of the government's evidence, claims: 1) there was
a breakdown of communications; 2) trial counsel were
unprepared; and 3) counsel were ...