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Wymer v. United States

United States District Court, N.D. Ohio, Western Division

October 18, 2017

Michael G. Wymer, Movant-Defendant,
v.
United States of America, Respondent-Plaintiff.

          ORDER

          James G. Carr Sr. U.S. District Judge.

         A jury 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).

         Complaining 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).

         Finding the motion without any merit, I deny it. I also decline to issue a certificate of appealability.

         Background

         After 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.

         Shortly 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 11).

         Consequently, 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.

         With 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, [1] 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.

         The 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.[2] Surveillance cameras that Wymer himself had installed inside the chop shop showed what happened next: the gang rendering the trucks and their cargo into scrap.[3]

         And 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.

         At 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).

         Not much to jiggle and wiggle or fiddle and diddle with on cross-examination there.

         Not 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.[4]

         That was it: the government and Wymer himself had left his attorneys with nothing else to work with.

         Discussion

         A. Effectiveness of Representation

         Wymer, 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 ...


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