The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendant's Notice and Motion for Production of Brady, Proof of Actual Innocence Materials in Support of Motion for Reconsideration of Sentence (Dkt. 131); Notice and Motion for In Person Evidentiary Hearing in Reconsideration of Sentence (Dkt. 132); and Motion for Reconsideration, or in the Alternative, Writ of Error Coram Nobis to Vacate Imposed Sentence Enhancement (Dkt. 133). For the reasons set forth below, the Court will deny the Motions.
Defendant was charged with conspiracy to distribute/possess with the intent to distribute cocaine (Count 1); conspiracy to manufacture/distribute/possess with intent to distribute marijuana (Count 2); conspiracy to manufacture/distribute/possess with intent to distribute marijuana with co-Defendant Lance Kevin Smith ("Smith") (Count 3); conspiracy to launder money (Count 4); conspiracy to structure transactions, launder money, and use interstate facilities (Count 5); drug forfeiture (Count 6); and money laundering forfeiture (Count 7). The conspiracy was alleged to have occurred over a period of twenty years.
Smith had been named in only one of the seven counts, and his involvement was alleged to have occurred over only a nine-month period. For that reason, he moved to sever his case from that of Defendant's and to change venue to the Southern District of California. See Mot. to Change Venue (Dkt. 62), Mot. to Sever Trial (Dkt. 63), and Smith Supporting Mem. (Dkt. 64). Shortly prior to hearing on the matter, the Government moved to dismiss the Indictment against Smith without prejudice. Mot. to Dismiss (Dkt. 66). The Court thereafter granted the Motion. Order (Dkt. 68). Approximately one month after dismissal of the Indictment against Smith, Defendant pleaded guilty pursuant to a Plea Agreement to Counts 2, 4, 6, and 7 in return for the Government's agreement to dismiss Counts 1, 3, and 5. Am. Plea Agreement (Dkt. 75). A Presentence Report was prepared that determined the total offense level to be 37, including a 2-level enhancement for use of a private aircraft and a 4-level enhancement for a leadership role in the offense, and the criminal history category to be II yielding a guideline range of 235-293 months. Defendant strenuously objected to those two enhancements.
On April 17, 2009, at the close of a two-day evidentiary hearing, the Court granted the Government's motion for a 5-level § 5K1.1 departure for substantial assistance and overruled Defendant's objections to the enhancements. Mins. (Dkt. 113). After deducting the 5-level § 5K1.1 departure, the Court determined the guideline range to be 135-168 months. After then considering the § 3553(a) factors, the Court imposed a below-guideline sentence of 108 months on each of Counts 2 and 4, to run concurrently with each other. Judgment (Dkt. 115). Defendant did not appeal his conviction or sentence. On July 26, 2010, Defendant filed the first of his three pending motions.
REVIEW OF PENDING MOTIONS
Defendant's pending motions all essentially challenge the leadership enhancement on the grounds that he is actually innocent of the enhancement. He does not challenge his conviction or any other portion of his sentence.
In his first Motion (Dkt. 131), Defendant requests an order that the Government provide what he characterizes as Brady information including documents, recordings, interviews, statements, correspondence, and "other writings" relating to transactions between Defendant and Smith and another individual, Jason Krikorian,*fn1 as well as with other unnamed "defendants" or coconspirators. He alleges that this Brady material will show that he was not a leader in the conspiracy.
In his second Motion (Dkt. 132), Defendant requests a hearing on his Brady and actual innocence claims. He alleges that he will call Smith and Krikorian as witnesses to demonstrate that he did not have a leadership role in the conspiracy. He also alleges prosecutorial misconduct by the AUSA in making statements along with Smith and Krikorian that were "materially incorrect" in support of the enhancement. Relying on Cone v. Bell, 129 S.Ct. 1769 (2009) and House v. Bell, 547 U.S. 518 (2006), Defendant contends that either the evidence possessed by the Government does not support the enhancement or that the Government has withheld evidence that would support his view that he was not a leader or an organizer. He requests that he be resentenced without regard to the leadership enhancement.
In his third Motion (Dkt. 133), Defendant continues the same arguments based on the same legal authority. More specifically, he contends that the Government has a continuing duty to provide him with post-trial proof of actual innocence under Brady, Cone, and House, and that its failure to do so violates his right to due process.
Although there are other arguments contained in the Motions, they are all variations on the theme that the Court should reconsider his sentence because statements made (or to me made) by Smith and Krikorian do not support the leadership enhancement. Defendant fails to consider, however, the fact that the enhancement was based on the statements of several other individuals as well. ...