Opinion
CRIMINAL ACTION No. 94-20075-01-KHV
October 10, 2003
MEMORANDUM AND ORDER
This matter is before the Court on defendant's Motion For Relief From Judgment Pursuant To Rule 60(b)(4) (Doc. #327) filed July 8, 2003. For reasons set forth below, the Court overrules defendant's motion.
Factual Background
On November 2, 1994, in a seven-count indictment, a grand jury charged defendant with various drug offenses in violation of 21 U.S.C. § 841(a)(1) and 846, and 18 U.S.C. § 2 and 924(c). On January 10, 1995, defendant pled guilty to using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count 4), and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 5). In the plea agreement, the government agreed to recommend a reduction for acceptance of responsibility, so long as defendant demonstrated a recognition and affirmative acceptance of personal responsibility, and to further recommend a sentence at the low end of the guideline range. The government also agreed to take no position on the issue of a sentence enhancement for a supervisory role under Section 3Bl.l(b) of the United States Sentencing Guidelines ("U.S.S.G."). The plea agreement also stated that the government would provide pertinent facts and other information to the Court concerning the offense and defendant's involvement in it. The government reserved the right to correct any factual inaccuracies by defendant at sentencing, and also the right before sentencing to give the United States Probation Office any facts concerning defendant.
Pursuant to U.S.S.G. § 3B1.1(b), the presentence investigation report ("PSIR") proposed a three-level enhancement for defendant's managerial or supervisory role in the offense. To justify the enhancement, paragraphs? of the PSIR referred to (1) statements by co-defendant Heather Beadles that she sold crack cocaine for defendant at his drug houses and (2) defendant's alleged approval of a drug sale on October 15, 1993. Paragraph 146 of the PSIR noted that although the PSIR gave only two examples of defendant's managerial or supervisory role, additional evidence revealed that defendant was in charge of running drug houses and exercised control over other people who were involved in distributing crack. Defendant objected to the enhancement but withdrew his objection before sentencing.
At sentencing, the Court gave defendant a three-level reduction for acceptance of responsibility and a three-level enhancement for supervisory role in the offense. Based on a total offense level of 35, the Court sentenced defendant to prison for five years on the firearm count and 135 months on the distribution count, the sentences to be served consecutively.
Nine days later, on April 19, 1995, defendant filed a handwritten letter which essentially challenged the effectiveness of counsel. The Court entered an order which noted that absent an appropriate motion under 28 U.S.C. § 2255, it could not consider defendant's claim. See Order (Doc. #133) filed April 19, 1995. On September 22, 1995, defendant filed a Section 2255 motion alleging ineffective assistance of counsel. The court appointed Scott Gyllenborg to represent defendant and held an evidentiary hearing on defendant's claim. On July 12, 1996, the Court denied defendant's motion.
Defendant appealed, and on April 7, 1997, the Tenth Circuit remanded the case with instructions to docket defendant's handwritten letter of April 19, 1995 as a notice of appeal of the Court's judgment. In the same order, the Tenth Circuit vacated this Court's order of July 12, 1996, because it had been entered before the Tenth Circuit had ruled on defendant's newly created appeal. On March 25, 1998, the Tenth Circuit affirmed defendant's sentence on direct appeal. Then, on May 18, 1998, defendant filed a new 2255 motion. On May 27, 1998, this Court transferred the motion to the Tenth Circuit as a second or successive motion under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On July 31, 1998, the Tenth Circuit determined that defendant's motion of May 18, 1998 was not a second or successive motion for purposes of the AEDPA because it was the first motion which defendant filed after his direct criminal appeal. Accordingly, the Tenth Circuit remanded the case to this Court for further proceeding.
On December 30, 1998, the Court overruled defendant's motion to vacate his sentence because of ineffective assistance of counsel. See Memorandum And Order (Doc. #275). On February 21, 2000, the Tenth Circuit held that defendant had not made a substantial showing of the denial of a constitutional right and denied his request for a certificate of appealability. See United States v. Bey, No. 99-3112, 2000 WL 217059, at *1 (10th Cir. Feb. 21, 2000). Defendant later claimed that the United States Probation Office had failed to correct inaccuracies in his PSIR. This Court construed defendant's request as a successive petition pursuant to Section2255 and forwarded defendant's motion to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). See United States v. Bey, 2000 WL 575052, at *1-2 (D. Kan. Apr. 20, 2000). On July 5, 2000, the Tenth Circuit sent defendant a letter which stated that the Tenth Circuit would dismiss his case unless he filed a motion for leave to file a second or successive motion within 30 days. See Letter Dated July 5, 2000 (Doc. #300) filed July 7, 2000. Defendant did not file such a motion and the Tenth Circuit dismissed his case on August 29, 2000.
Analysis
Defendant now claims that with regard to his Section 2255 motion alleging ineffective assistance of counsel, the Assistant United States Attorney ("AUSA") committed fraud on the Court.
When the Court sentenced co-defendant Overton Johnson, the Honorable Earl E. O'Connor ruled that under the Sentencing Guidelines, Johnson was responsible for only a single sale of cocaine — on October 15, 1993 — because the government had not presented evidence that Johnson was aware of other sales by co-conspirators, including Bey. See Transcript Of Proceedings On May 22, 1995 (Doc. #151) at 21-22. Defendant maintains that in response to his Section 2255 motion, the AUSA fraudulently told the Court (1) that defendant was involved in the sale of crack cocaine on October 15, 1993 and (2) that Heather Beadles worked for him. See Defendant's Motion For Relief From Judgment Pursuant To Rule 60(b)(4) (Doc. #327) at 2-3.
Initially, the Court must determine how to construe defendant's motion. The Tenth Circuit has not decided whether an allegation of fraud on the Court justifies an exception to the strict gatekeeping requirements which apply to second or successive motions under Section 2255. See United States v. McVeigh, 9 Fed. Appx. 980, 2001 WL 619765, at *2 (10th Cir. June 7, 2001). Where defendant basically raises the very issues that he presented in his original objections to the PSIR and his first two motions under 28 U.S.C. § 2255, to allow an independent action to vacate the judgment for fraud would undermine the gatekeeping requirements which apply to second and successive motions.
Even if the Court assumes that defendant can maintain an action in equity based on fraud on the court, however, he cannot prevail in this case. First, defendant has not shown that the AUSA knew that he was not involved in the alleged drug sale of October 15, 1993. Defendant apparently maintains that based on Judge O'Connor's rulings with regard to co-defendant Johnson, this fact was established several years earlier. At Johnson's sentencing, however, Judge O'Connor did not specifically rule that Bey had not supervised the sale on October 15, 1993. Judge O'Connor ruled only that the government had not presented sufficient evidence that Johnson was involved in sales other than the one on October 15, 1993. See. e.g., Transcript Of Proceedings On May 22, 1995 (Doc. #151) at 21.
To the extent Judge O'Connor addressed this issue at all, his comments suggest that Bey was involved in the sale of October 15, 1993. See Transcript Of Proceedings On May 22. 1995 (Doc. #151) at 21-22 (some evidence shows that Johnson ran the house on October 15 "for his brother"). ATF Agent Harold N. Wactor testified that Bey arranged the sale between Johnson and Wactor on October 15, 1993.See id. at 7-8, 11, 16.
Second, even if the Court assumes that inresponse to defendant's Section2255 motion, the AUSA failed to present the supposedly mitigating comments which Judge O'Connor made at Johnson's sentencing, defendant already had outlined such comments in his motion. Nondisclosure by itself ordinarily does not rise to the level of fraud — particularly where, as here, defendant outlined all of the disputed facts in his Section 2255 motion. See Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996) ("Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court."); Motion Under 28 U.S.C. § 2255 To Vacate. Set Aside. Or Correct Sentence By A Person in Federal Custody (Doc. #267) filed May 18, 1998 at 11, 13-15, 17-22. The fact that the AUSA did not further highlight Judge O'Connor's comments at Johnson's sentencing, or immediately adopt defendant's interpretation of Judge O'Connor's comments, does not amount to fraud.
Finally, this Court and the Tenth Circuit have already determined that the government's alleged nondisclosure was not material because the government and the defense attorney agreed that ample additional evidence supported the sentencing enhancement for defendant's role in the offense. See McVeigh, 2001 WL 619765, at *2 (materiality is fundamental element of claim of fraud on court). For these reasons, defendant cannot maintain an independent action for fraud based on the AUSA's arguments that defendant participated in the alleged sale of crack cocaine on October 15, 1993 and that Heather Beadles worked for him. See United States v. Beggerly, 524 U.S. 38, 47 (1998) (Rule 60(b) morion premised on fraud on the court available only to prevent "grave miscarriage of justice").
Defendant again challenges evidence that he participated in the alleged drug sale on October 15, 1993 and the statement of co-defendant Beadles that she sold cocaine for defendant at his drug houses. Defendant does not address other evidence which supports his sentence enhancement. The Court previously explained:
Defendant does not challenge other evidence that he ran drug houses and exerted control over others during drug deals in which he admits having participated. See PSIR; 2/22/96 Hrg. Trans. at 39, 42-43 (testimony of Agent Wactor). In addition, at the February 22, 1996 hearing, the government alluded to additional evidence which could be presented on defendant's role in the offenses, if necessary. However, because defendant did not challenge the role enhancement at sentencing, the government has not made a formal record of such evidence. Mr. Duma [defendant's former attorney] also testified at the hearing that the reason he did not oppose the enhancement was because the government had ample evidence to establishdefendant as a manager or supervisor under the guidelines. Moreover, the United States Probation Officer noted that there was evidence, other than the two examples in the PSIR, of defendant's managerial or supervisory role in the offense.United States v. Bey, 1998 WL 919127, at *3 (D. Kan. Dec. 30, 1998); see Transcript Of Hearing On Defendant's Section 2255 Motion, attached as Exhibit 3 to defendant's Motion For Relief From Judgment Pursuant To Rule 60(b)(4) (Doc. #327) (defendant's previous attorney stated "my response to him was take that one out and it doesn't make a bit of difference in relevant conduct or organizer, manager or leader [enhancement]" and "[the government] had other extensive evidence of his involvement in some crack houses").
IT IS THEREFORE ORDERED that defendant's Motion For Relief From Judgment Pursuant To Rule 60r (b)(4) (Doc. #327) filed July 8, 2003 be and hereby is OVERRULED.
The Court declines to treat defendant's motion as a successive motion under 28 U.S.C. § 2255 because (1) defendant has not requested relief under Section 2255 and (2) in July of 2000, defendant specifically declined to pursue such a motion in the Tenth Circuit Court of Appeals based on arguments which are substantially similar to those raised in the instant motion.