Opinion
Criminal No. 99-284 ADM/AJB.
June 21, 2004
Henry J. Shea, Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.
John C. Hetherington, pro se.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant John C. Hetherington's ("Defendant") pro se Motion for a New Trial [Docket No. 76], and Motion to Reduce Term of Imprisonment [Docket No. 80]. On February 11, 2000, Defendant was convicted of two counts of wire fraud, one count of securities fraud, and one count of engaging in monetary transactions in criminally derived property. On June 14, 2000, Defendant was sentenced to sixty months for count one. Defendant was sentenced to forty months for count two to run concurrently with count one, and twenty months for count two to run consecutively to count one. Defendant was sentenced to eighty months each for counts three and four to run concurrently with each other and with counts one and two. Defendant was ordered to pay $4,799,268.20 in restitution. Judgment and Commitment at 2 and 5. Defendant directly appealed his convictions to the Eighth Circuit, raising a number of evidentiary and sentencing issues. The convictions and sentences were affirmed. United States v. Hetherington, 256 F.3d 788, 798 (8th Cir. 2001). Defendant now moves for a new trial and for a reduction in his sentence.
II. DISCUSSION
Defendant argues that he is entitled to a new trial, as a result of discovery of new evidence and governmental and judicial misconduct. He also claims that Amendments to the United States Sentencing Guidelines require reducing his sentence.
A. Motion For A New Trial
Defendant contends that he possesses newly discovered evidence which warrants a new trial. "A district court may use its discretion to grant a new trial only if a defendant demonstrates,inter alia, that the new evidence is more than impeaching, that it is not cumulative, and that it would probably produce an acquittal." United States v. Ireland, 62 F.3d 227, 230 (8th Cir. 1995) (citing United States v. Jones, 34 F.3d 596, 600 (8th Cir. 1994)). Assuming Defendant could demonstrate his "newly discovered" evidence was valid, the evidence would have little or no effect on a retrial and cannot be said to probably produce an acquittal.
The primary claim of new evidence consists of Defendant's discovery that his appointed counsel in his Minnesota federal trial is not admitted to the California bar. Because his counsel flew to California and met with Defendant at his California home to discuss whether the case might be resolved by entry of a guilty plea, Defendant suggests that his attorney engaged in the unauthorized practice of law, and that this entitles him to a new trial under the Sixth Amendment of the Constitution.
Defendant's attorney is licensed to practice law in Minnesota, and merely conferring with his client out of state does not require a license to practice law in the state where the meeting is held. "A lawyer who is properly admitted to practice in a state with respect to litigation pending there . . . may need to conduct . . . activities ancillary to the litigation in other states, such as counseling clients. . . . Such activities incidental to permissible practice are appropriate and permissible."Restatement (Third) of L. Governing Law. § 3 (2000). Additionally, Defendant does not adequately explain how this is "new" evidence which was not discoverable before his trial or how it is likely to produce an acquittal. Defendant does not allege any sort of ineffective representation that would have changed the outcome of his trial.
The cases Defendant cites in support of his position are all cases where counsel represented the client before a court of law without a valid license to practice law from any state, unlike this case where defense counsel was licensed in the state of Minnesota, the forum of his trial. See United States v. Cocivera, 104 F.3d 566 (3rd Cir. 1990); United States v. Novak, 903 F.2d 883 (2nd Cir. 1990); United States v. Solina, 709 F.2d 160 (2nd Cir. 1983). The cases are inapposite and do not support his argument.
Also, Defendant maintains that during this alleged illegal meeting with defense counsel at Defendant's home in California, counsel attempted to "coerce" him to plead guilty to the charges against him. Defendant argues that this demonstrates that "defense counsel was actually conspiring with the Government to frame defendant for the crimes charged." Def.'s Mot. for a New Trial at 3. Defendant provides no evidence supporting this claim.
Discussing a potential guilty plea with a client is not a form of coercion. In fact, "[p]lea bargaining on behalf of clients in criminal cases is one of the principal duties of defense counsel." 46 Am.Jur. Trials § 74 (2003). "[T]he goal is to reach agreement for a plea to the least onerous charges pending against the client, or to secure sanctions less onerous than those that might be imposed following a trial and conviction." Id. Additionally, informing a client about the potential consequences of not pleading guilty does not constitute coercion. Rather, discussing the potential sentence that would likely be imposed following a trial and conviction is also part of "counsel's duty." Jones v. Swenson, 339 F. Supp. 789, 792 (E.D. Mo. 1972). Counsel's well-intentioned decision to visit his client in California rather than have him travel to Minnesota is not conduct to be discouraged. Defendant's Motion for a New Trial on this ground is without any merit.
Defendant further alleges that the trial court lacked jurisdiction over his case and that venue in Minnesota was inappropriate. He bases his jurisdictional argument on his post-trial discovery that Omni International Trading Corporation was falsely registered and non-existent, a discovery he made from reviewing the transcripts from his trial. The nature of the discovery itself belies its character as newly discovered evidence. Defendant asserts that the government thus charged him with aiding and abetting a non-existent company that could have no impact on interstate commerce. Therefore, in Defendant's view, federal jurisdiction was improper.
Defendant reaches this conclusion based on United States v. Barone, 39 F.3d 981 (9th Cir. 1994). In Barone, defendants were passing forged checks only in the Las Vegas area. Id. at 982. Under 18 U.S.C. § 513, the statute that the defendant was charged with violating, federal jurisdiction is based on the interstate effect of an organization's operations, not on the interstate effect of the offense conduct. Id. at 984. As a result, the court held that the government failed to satisfy its federal jurisdictional requirement because defendant's non-existent shell company did not effect interstate commerce by only passing forged checks to a victim that operates in interstate commerce. Id. at 985. While the defendant in Barone furthered his scheme through a non-existent company, like Defendant did here, the critical point in Barone was that forged checks were passed in Las Vegas only, thus rather than a federal crime, a local or state crime was committed.
Barone is inapposite given the facts of this case. Here, Defendant's transactions crossed state lines, and his victims' activities were irrelevant to his interstate transactions. Defendant cites no authority indicating that a company falsely registered can have no effect on interstate commerce. Federal jurisdiction was appropriate in this case.
Defendant also claims the proper venue for his trial was California. Defendant supports his claim by arguing that he is a resident of California and that the wire transfers at issue were received in California. He claims he did nothing in Minnesota and was only in Minnesota for a stockholder's meeting on March 31, 1993. Additionally, because he alleges that the transactions had no effect on interstate commerce, he concludes that venue in Minnesota was improper.
The allegations supporting venue are not newly discovered. All of the information relied upon was available and discussed at trial. Therefore, Defendant's Motion for a New Trial based on new evidence illustrating improper jurisdiction and improper venue is denied.
Defendant also argues that he is entitled to a new trial based on governmental and judicial misconduct. Defendant asserts that all witnesses for the government testified falsely because they made statements about the non-existent company of Omni International. He claims that this "suppression" of evidence is a "deliberate deception on the part of the prosecution" and does not comport with the "rudimentary demands of justice." Mem. in Support of New Trial at 8. Additionally, Defendant alleges a laundry list of "blatant misconduct" by the government. Defendant lists twenty examples of such misconduct, including inter alia, claims that the government violated the Speedy Trial Act, conspired with defense counsel to spy on Defendant, misrepresented the facts and law, and bribed witnesses to commit perjury. Defendant alleges further that the Court gave the jury improper instructions, and thus acted improperly.
These matters are not newly discovered and were waived by failure to raise them on direct appeal. See Krimmel v. Hopkins, 56 F.3d 873, 875 (8th Cir. 1995). ("[M]otion for postconviction relief cannot be used to secure review of issues which were . . . known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant's direct appeal.") (internal citation omitted). Though Krimmel involves a state prisoner seeking a writ of habeus corpus from a federal court, Defendant's Motion is similar. Defendant's Motion for a New Trial based on governmental and judicial misconduct is therefore denied.
B. Motion To Reduce Term Of Imprisonment
Defendant also moves for a reduced sentence based on amendments to the Sentencing Guidelines which became effective on November 1, 2001. Defendant bases his argument on 18 U.S.C. § 3582(c)(2), which authorizes courts to reduce prison terms for defendants whose sentences were based on guideline ranges that were subsequently lowered. Defendant claims that this provision entitles him to a reduced sentence of twenty-four months.
Defendant emphasizes that his case was still under direct appeal when the guidelines were reduced by amendment on November 1, 2001 because his case was before the United States Supreme Court under a Writ of Certiorari, and the Supreme Court had not yet denied his petition. He claims that, as a result, his case was not final and that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . not yet final." Mem. in Support of Reduced Term of Imprisonment at 1 ("Imprisonment").
However, based on the policy statement contained in guideline § 1B1.10, the Guidelines do not authorize a reduction in sentence based on whether or not a case is final. Rather, assuming that an amendment applies retroactively, the Guidelines allow a reduction if the applicable range has been lowered while a defendant is serving his term of imprisonment. U.S. Sentencing Guidelines Manual § 1B1.10(a). Thus, Defendant's authority regarding retroactive application of new rules to cases not yet final is inapposite.
Under 18 U.S.C. § 3582, a reduction in a defendant's term of imprisonment is only authorized if the amendment is listed in subsection (c) of § 1B1.10, which indicates that the amendment applies retroactively. Id. § 1B1.10(c). Consequently, if the applicable amendment is not listed in subsection (c), a reduction in a defendant's term of imprisonment is not warranted. Id. § 1B1.10(a).
Defendant was sentenced under §§ 2B1.1 and 2S1.1. See Imprisonment at 2. Defendant is correct that these sections were subsequently amended on November 1, 2001. Amendment 617 altered § 2B1.1. U.S. Sentencing Guidelines Manual § 2B1.1. Amendment 634 impacted § 2S1.1. Id. § 2S1.1. Neither Amendment 617 or 634 are listed in § 1B1.10(c) as amendments that apply retroactively, however. Id. § 1B1.10(c). Therefore, the November 1, 2001 Amendments do not apply to Defendant's case. As a result, the Court may not use them as a basis to reduce Defendant's sentence under § 3582(c)(2), and Defendant's Motion for a Reduced Term of Imprisonment is denied.
Finally, Defendant also claims that the restitution requirement was erroneous. However, because he provides no valid reasons supporting this argument, his request for the elimination of the restitution requirement is also denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Motion for a New Trial [Docket No. 76] is DENIED;
2. Defendant's Motion to Reduce Term of Imprisonment [Docket No. 80] is DENIED.