Opinion
Civil Action No. 97-2721, (Criminal No. 91-321-02).
October 16, 1998
MEMORANDUM ORDER
Presently before the court is petitioner's Motion for Reconsideration of the court's order of June 16, 1998 denying his petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Petitioner was indicted with nineteen others for conspiring to distribute Colombian cocaine as part of a largescale, multi-state, multi-million dollar drug distribution enterprise directed by petitioner's co-defendant Claude Dumas, Jr. from Los Angeles. Petitioner was convicted after a jury trial on January 27, 1992 of distributing and of conspiring to distribute and possess with intent to distribute substantial quantities of cocaine. With a total offense level of 41, petitioner faced 324 to 405 months of imprisonment.
Petitioner was sentenced on August 20, 1992 to 324 months of imprisonment, to be followed by five years of supervised release. Petitioner's conviction and sentence were affirmed on July 13, 1993.
In his motion for reconsideration, petitioner essentially rehashes the same arguments considered and rejected by the court in its memorandum order denying his § 2255 petition. See Nero v. United States, 1998 WL 314643 (E.D. Pa. June 16, 1998). Petitioner also attacks the credibility of key cooperating co-conspirators Charles Porter whose testimony petitioner says was "concocted" and Michael Patin who petitioner states testified "to save his own hide." The testimony given by these witnesses was found to be credible by the jury and the court. Petitioner has provided no basis pursuant to Fed.R.Civ.P. 60(b) on which the court conscientiously could revisit its decision. See Harsco Corp. v. Zlotnicky, 779 F.2d 906, 909 (3d Cir. 1985),cert. denied, 476 U.S. 1171 (1986); Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993);Clifford v. Jacobs, 739 F. Supp. 957, 958-59 (M.D. Pa. 1990).
Petitioner asserts one new ground for relief. He contends that the government's use of witnesses to whom it promised leniency violated the federal criminal bribery statute, 18 U.S.C. § 201(c)(2). He relies on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). Even assuming that the court may consider such a new contention on a motion for reconsideration, the short answer is that the promise or prospect of a § 5K1.1 motion in return for testimony which the government deems to be truthful and of substantial assistance does not violate the bribery statute or otherwise entitle a defendant to set aside his conviction or sentence. See United States v. Hammer, 1998 WL 725211, *17 (M.D. Pa. Oct. 9, 1998) (Singleton was "an erroneous decision"); United States v. Guillaume, 1998 WL 462199, *2 (S.D. Fla. Aug. 3, 1998) (application of § 201(c)(2) to federal prosecutors would result in "an obvious absurdity");United States v. Eisenhardt, 1998 WL 436356, *1 (D. Md. July 30, 1998) (Singleton opinion was "amazingly unsound" and "nonsensical"); United States v. Arana, 1998 WL 420673, *3 (E.D. Mich. July 24, 1998) (application of § 201(c)(2) to federal prosecutors negotiating plea agreements "would create an absurdity"). The panel opinion in Singleton was vacated ten days after it was filed.
ACCORDINGLY, this day of October, 1998, IT IS HEREBY ORDERED that petitioner's Motion for Reconsideration (Doc. #50) is DENIED.