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United States v. Robinson

August 26, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL A. ROBINSON, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM AND ORDER

This criminal case is before the Court on Defendant Michael A. Robinson's ("Defendant") pro se "Motion Pursuant to Rule 36 Federal Rule of Criminal Procedure" [Doc. 289], "Motion Pursuant to 28 USCS § 753(f)" [Doc. 290], "Request for appointment of counsel for 2255 & Rule 36"[Doc. 297], and a motion entitled "Rule 33 F.R.C.P. New Trial." [Doc. 301.] The Government has filed a consolidated response [Doc. 298] in opposition to Defendant's motions. [Docs. 289, 290, 297.] Defendant has also filed "Motion for Leave to File Reply to the Government's Response to Petitioner's Motions 289, 290 and 297." [Doc. 300.]

The Court notes that Defendant's reply [Doc. 300] complies with the filing requirements of Local Rule 7.1, which permits parties to file a reply brief in response to an answering brief. See L.R. 7.1(a). Accordingly, Defendant's "Motion for Leave to File Reply to the Government's Response to Petitioner's Motions 289, 290 and 297" [Doc. 300] is hereby DENIED as moot because leave of Court is not necessary in the present case. The

Court will consider Defendant's reply brief as properly filed in considering the relevant pending motions.

The Court further notes that Defendant has filed a "Request for Disposition" [Doc. 292] asking the Court to address the pending motions within ten (10) working days of the filing of the motion. Because the Court has addressed each of the pending motions herein and has done so in due course, Defendant's motion [Doc. 292] is hereby DENIED as moot. Defendant filed a redundant "Request for Finality" [Doc. 299] raising similar points as the"Request for Disposition." [Doc. 292.] For similar reasons as discussed above, the "Request for Finality" is hereby DENIED as moot. The pending motions [Docs. 289, 290, 297] are now ripe for the Court's consideration.

For the reasons herein, Defendant's motion [Doc. 289] will be granted in part and denied in part, and Defendant's other motions [Docs. 290, 297, 301] will be denied.

I. Motion Pursuant to Rule 36 Federal Rule of Criminal Procedure [Doc. 289]

In this motion, Defendant requests the Court correct a clerical error between the oral pronouncement of the special verdict finding on Count One and the written judgment in this case. Defendant relies on a perceived discrepancy between the Court's statement that "[a]s to Count One of the Indictment, is not answered, of course" and the written judgment finding Defendant guilty of "Conspiracy to Distribute and Possession with Intent to Distribute Less than 50 Kilograms or Marijuana." [Doc. 289-2 at 1.] Defendant also appears to point out that the written judgment states "50 Kilograms or Marijuana" rather than "50 Kilograms of Marijuana." [See Doc. 289 at 2.] The Government responds that there is no discrepancy between the pronouncement of the verdict and no error to correct in the judgment. [Doc. 298 at 2.] Defendant responds that the verdict form was confusing.

Federal Rule of Criminal Procedure 36 provides: After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.

Fed. R. Crim. P. 36. The Sixth Circuit has recognized that "a clerical error must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature." United States v. Robinson, 368 F.3d 653, 656 (6th Cir. 2004) (citations omitted). Notably, "Rule 36 has been consistently interpreted as dealing only with clerical errors, not with mistakes or omissions by the court." Id.

After reviewing the record, the Court finds that there is a clerical error in the amended judgment where it states "50 Kilograms or Marijuana," rather than "50 Kilograms of Marijuana." [Doc. 274.] The amended judgment's language differs from both the trial transcript [Doc. 289-2 at 1] and the verdict form [Doc. 147], which both use the language "50 Kilograms of Marijuana." Additionally, the use of "or" does not make sense in the context it is used in the amended judgment. The Court finds that this is the sort of mechanical error or typographical error the Sixth Circuit has determined is within the scope of Fed. R. Crim. P. 36. It appearing that a typographical error appears in the "Nature of Offense" for a violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) under "Additional Counts of Conviction" [Doc. 274 at 2], the amended judgment is hereby AMENDED from "Conspiracy to Distribute and Possession with Intent to Distribute Less than 50 Kilograms or Marijuana" to as follows, "Conspiracy to Distribute and Possession with Intent to Distribute Less than 50 Kilograms of Marijuana." Accordingly, Defendant's motion [Doc. 289] will be granted to the extent he seeks correction of this particular typographical error. In all other respects, the Court will deny Defendant's "Motion Pursuant to Rule 36 Federal Rule of Criminal Procedure." [Doc. 289.] As an initial matter, the Court questions whether the alleged discrepancy between the oral pronouncement of the verdict and the verdict form is the sort of mechanical error contemplated by Fed. R. Crim. P. 36. See United States v. Robinson, 368 F.3d at 656. Even if Fed R. Civ. P. 36 is applicable, when viewed in context, the statement, "[a]s to Count One of the Indictment, is not answered, of course," reveals no discrepancy between the oral pronouncement of the verdict [see Doc. 289-2] and the verdict form. [Doc. 274.] This statement aligns with the verdict form instruction that "If you have found Mr. Robinson 'Guilty,' please answer the following questions 1(b) and 1(c) and then proceed to answer Question 2." [Doc. 274.] Both the trial transcript and the verdict form show the jury found Defendant "guilty" of Count One of the superseding indictment and then proceeded to answer questions 1(b) and 1(c) in the affirmative. In accordance with the instructions in the verdict form, the jury then skipped questions 1(d), 1(e), 1(f), and 1(g) and proceeded to answer Question 2. In other words, the statement, "[a]s to Count One of the Indictment, is not answered, of course," is understood as the jury not answering questions 1(d), 1(e), 1(f), and 1(g) because Defendant was found "guilty" as to question 1(a). Thus, the Court will deny Defendant's motion to the extent he claims a clerical error on the basis of a discrepancy between the oral pronouncement of the verdict and the verdict form.

Accordingly, Defendant's "Motion Pursuant to Rule 36 Federal Rule of Criminal Procedure" [Doc. 289] will be granted in part to the extent the amended judgment [Doc. 274] will be amended to state "Conspiracy to Distribute and Possession with Intent to Distribute Less than 50 Kilograms of ...


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