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United States v. Woods

United States District Court, M.D. Tennessee, Nashville Division

January 8, 2018

UNITED STATES OF AMERICA
v.
PAUL WOODS

          MEMORANDUM

          ALETA A. TRAUGER U.S. DISTRICT JUDGE.

         I. Introduction

         Pending before the court is the Defendant's Motion To Compel The Government To File A Rule 35(b) Motion To Reduce Defendant's Sentence Due To Provision Of Extraordinary Assistance In the Investigation And Prosecution Of Dangerous Crime (Docket No. 788), along with supporting briefs and exhibits (Docket Nos. 789, 791, 796, 802, 803, 805, 856, 875). The Government has filed briefs and exhibits in response (Docket Nos. 799, 815, 846, 848, 884) to the Motion. The court held an evidentiary hearing in this case on December 6, 2017. For the reasons set forth herein, the Defendant's Motion To Compel (Docket No. 788) is DENIED.

         II. Procedural Background

         A. The Defendant's Conviction, Sentencing, and Collateral Proceedings

         The Defendant was one of 12 defendants named in successive indictments charging drug trafficking and money laundering offenses in this case, which was originally assigned to now-retired Judge Thomas A. Wiseman, Jr. (Docket Nos. 12, 33, 102, 407). On November 29, 2000, the Defendant pled guilty, through a Plea Agreement, to participating in a cocaine trafficking conspiracy and a money laundering conspiracy. (Docket Nos. 474, 552). Judge Wiseman subsequently sentenced the Defendant to a term of life imprisonment on the drug trafficking count, and to a concurrent sentence of 20 years on the money laundering count. (Docket Nos. 545, 553, 568). The Sixth Circuit dismissed the Defendant's direct appeal based on a Plea Agreement provision in which he waived his right to appeal. (Docket No. 636). Robert Marlow represented the Defendant throughout most of the trial court proceedings. (Docket Nos. 316, 596).

         The Defendant subsequently filed a collateral action under 28 U.S.C. Section 2255, seeking to vacate his sentence. (Case No. 3:03cv00094); Paul Allen Woods v. United States, 398 Fed.Appx. 117 (6th Cir. Sept. 23, 2010). Judge Wiseman presided over the early stages of the Section 2255 case, denying two of the Defendant's three claims. (Docket Nos. 24, 25 in Case No. 3:03cv00094). In ruling on those claims, Judge Wiseman issued a decision in which he recounted the Defendant's conduct during the criminal proceedings:

Petitioner has appeared before this Court on numerous occasions and this Court has found that Petitioner pervasively obstructs justice. Petitioner lied under oath to the grand jury and suborned perjury when he attempted to get two witnesses to lie at his sentencing hearing.

(Docket No. 24, at 2, in Case No. 3:03cv000094 (footnote omitted); Docket No. 799-4). Judge Wiseman subsequently granted the Defendant's motion to recuse himself. (Docket Nos. 40, 41 in Case No. 3:03cv00094). The case was then randomly reassigned to now-retired Judge William J. Haynes, Jr., who considered the Defendant's third claim. (Docket Nos. 41, 121 in Case No. 3:03cv00094); (Docket No. 799-5).

         Through the third claim, the Defendant alleged that Assistant United States Attorney (“AUSA”) Sunny Koshy and Drug Enforcement (“DEA”) Agent James Goodman allowed him to have sexual intercourse in the DEA conference room with one of his girlfriends, Tracy Buford. Paul Allen Woods v. U.S., 398 F. Appx, at 119-24. The Defendant claimed this occurred multiple times during the breaks of his proffer sessions and that his attorney, Mr. Marlow, was present for one of the encounters. Id. The Defendant argued that the Government engaged in this conduct to improperly influence him to enter a guilty plea. Id.

         After holding an evidentiary hearing, Judge Haynes denied the claim, concluding as follows:

As to these factual disputes, the Court first credits the testimony of Sunny Koshy, that he was unaware of and did not authorize or condone any of Woods's private visits or sexual contact with Buford. Goodman actually agreed to Woods's brief visits with Buford. Although Woods and his girlfriend had some sexual contact on these visits, the Court credits testimony of Marlow who was in the room at the time of most of these visits, that Woods and his girlfriend did not have sexual intercourse. According to Marlow, Woods and his girlfriend had only a few minutes in the small DEA conference room and sexual intercourse did not occur. There may have been some banter between Woods, his girlfriend and Goodman, but the Court finds that the banter of the sexual nature described by Woods and his girlfriend, did not occur.

(Docket No. 121, at 10, in Case No. 3:03cv94); Woods v. U.S., 398 Fed.Appx. at 122. Judge Haynes determined that there was no causal connection between the Defendant's decision to plead guilty and his visits with Buford. Id., at 127. The Sixth Circuit affirmed on appeal, and the Supreme Court denied the Defendant's petition for writ of certiorari. (Docket Nos. 121, 122, 154, 157 in Case No. 3:03cv00094); Id., at 128.

         The Defendant was represented by William Walton during a portion of the Section 2255 proceedings. (Docket No. 80 in Case No. 3:03cv00094). Mr. Walton was replaced by Michael V. Thompson, who was subsequently replaced by Richard L. Tennent. (Docket Nos. 83, 125, 126 in Case No. 3:03cv00094). Mr. Tennent represented the Defendant on appeal of the Section 2255 case. (Docket No. 154 in Case No. 3:03cv00094).

         B. The Motion To Compel

         On April 27, 2012, the Defendant, through Mr. Tennent, filed the pending Motion To Compel, in which he requested that the court compel the Government to file a Rule 35(b)[1] motion to reduce his sentence, based on the substantial assistance he provided in a criminal prosecution in the Eastern District of Kentucky, and otherwise, since his incarceration. The Defendant pointed out that AUSA Patrick Molloy, from the Eastern District of Kentucky, had recommended to the United States Attorney for this District that a Rule 35 motion be filed on his behalf. The recommendation, according to the Defendant, was based on his testimony as a crucial trial witness in the prison murder prosecution of Dwaune Gravley, who was a violent felon and the head of a violent prison gang.

         After Judge Wiseman recused himself, the case was randomly reassigned to now-retired Judge Todd J. Campbell. (Docket No. 794). Judge Campbell denied the Motion To Compel in a Memorandum and Order (Docket No. 807) issued on October 18, 2012, which provides, in pertinent part, as follows:

In support of his request that the Court compel the Government to file such a motion, the Defendant cites the Sixth Circuit's decision in United States v. Davenport, 465 Fed.Appx. 500, 2012 WL 688508 (6th Cir. Mar. 5, 2012) and the Supreme Court's decision in Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). In Davenport, the court outlined the role of the district court in considering the prosecution's failure to file a substantial assistance motion:
As the Supreme Court has clearly established, ‘federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant's race or religion.' Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). A defendant is also entitled to relief if the prosecutor's refusal to file a substantial-assistance motion is not rationally related to any legitimate Government end. Chapman v. United States, 500 U.S. 453, 464-65, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). However, the defendant has the burden of making a substantial threshold showing: ‘a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but generalized allegations of an improper motive.' Wade, 504 U.S. at 186, 112 S.Ct. 1840.
Davenport, 465 Fed.Appx. at 503-04.
The Government's Response indicates that the reason for its refusal to file a substantial assistance motion on the Defendant's behalf is the Defendant's breach of his plea agreement; failure to accept responsibility; efforts to obstruct justice; perjury and the making of false allegations; the seriousness of the Defendant's criminal conduct; public safety factors; and lack of timely, full, and truthful cooperation.
As for the Defendant's efforts to obstruct justice and perjury, the Government cites Judge Wiseman's statement at sentencing that he would have required the Government to file a substantial assistance motion at that time “. . . were it not for his perjured testimony before the grand jury and his attempted [subornation] of perjury.” (Docket No. 799-2, at p. 10 of 12). The Government also cites Judge Wiseman's statement at a hearing on the Section 2255 motion describing the Defendant:
[Woods] has appeared before this Court on numerous occasions and this Court has found that Petitioner pervasively obstructs justice. Petitioner lied under oath to the grand jury and suborned perjury when he attempted to get two witnesses to lie at his sentencing hearing.
Applying the standard set forth in Davenport and Wade to the record in this case, the Court concludes that the Government's refusal to file a substantial assistance motion is not based on an unconstitutional motive, and is rationally related to a legitimate Government end. The Government's refusal is not unwarranted given the Defendant's perjury and obstruction of justice, the finding that his Section 2255 testimony was lacking in credibility, and that he has yet to fully disclose the details of his own past criminal conduct. Accordingly, the Court declines to compel the Government to file a substantial assistance motion, or to hold an evidentiary hearing. The Motion To Compel is DENIED.

(Docket No. 807, at 2-5)(footnote omitted).

         The Defendant appealed and, on August 19, 2013, the Sixth Circuit issued a decision vacating Judge Campbell's order and remanding the case for further proceedings. (Docket No. 821). On appeal, the Defendant argued that the Government had “bargained away” its discretion to file a Rule 35 motion through the actions of AUSA Molloy. (Id., at 8). The court rejected the Government's argument that this claim was waived because the Defendant did not raise it in the district court: “Instead, we address the issue and conclude that, given the peculiarities of this case, the district court's denial of Woods's motion to compel must be vacated and the case remanded for further proceedings.” (Id., at 10). The court explained that its conclusion was based on the following:

This result is appropriate here for several reasons. First, the district court did not address this argument in its opinion beyond stating that Woods ‘points out' the existence of the letter. R. 807 (D. Ct. Op. at 2) (Page ID # 847). Thus, it appears that the district court might have improperly applied the law by failing to recognize that the government cannot refuse to file a Rule 35(b) motion if it bargained away its discretion to do so. See Benjamin, 138 F.3d at 1073-74. Second, although the colloquy between AUSA Molloy and Woods appears to be evidence that the government did not bargain away its discretion to file a Rule 35 motion prior to Woods's testimony, we agree with Woods that it is ambiguous enough that it does not control the outcome of this case. Furthermore, it seems unlikely that AUSA Molloy would have made an unconditional promise to file a Rule 35 motion prior to weighing the value of Woods's testimony (which might have included waiting for the jury's verdict). Therefore, it is possible that AUSA Molloy promised to file a Rule 35 motion after Woods testified. Finally, whether the government actually bargained away its discretion is an issue of fact that can be resolved with minimal discovery and a hearing. We leave the contours of discovery and a hearing to the district court, but we note, as Woods did in his response to the government's opposition to his motion to compel, that the letter from the U.S. Attorney's Office for the Eastern District of Kentucky to the U.S. Attorney's Office for the Middle District of Tennessee and testimony from AUSA Molloy could prove controlling. For these reasons and the unique facts presented by this case, we vacate the district court's denial of Woods's motion to compel and remand for further proceedings.

(Id., at 10-11).

         The appeals court then considered the Defendant's argument that he had made a substantial showing that the Government's refusal to file a Rule 35 motion was based on an unconstitutional motive - retaliation for filing a Section 2255 action. The court concluded that the case should be remanded because the district court abused its discretion in failing to determine whether the Defendant had made such a substantial showing:

Woods requested that the district court ‘grant an evidentiary hearing where the full basis of the government's denial can be ascertained, and where the full extent of Mr. Woods' assistance can be presented.' R. 789 (Memo in Support of Mot. to Compel at 18) (Page ID # 206). Our precedents make clear that a hearing is appropriate when ‘[a] defendant ... makes a substantial threshold showing of an unconstitutional motive.' Bagnoli, 7 F.3d at 92. Rather than analyzing whether Woods made a substantial threshold showing, the district court examined the government's proffered reasons for refusing to file such a motion. See R. 807 (D. Ct. Op. at 4-5) (Page ID # 849-850). Thus, the district court skipped an important determination: whether Woods was entitled to a hearing based on a substantial threshold showing that the government's motive was unconstitutional. Because the failure to make this determination was an abuse of the district court's discretion, we vacate the district court's denial of Woods's motion to compel and remand for further proceedings.

(Id., at 12).

         After remand, this matter was set for hearing repeatedly over the ensuing four years. During that time, the Defendant has been represented by four successive attorneys: Mr. Tennent, Kimberly S. Hodde, David L. Cooper, and Robert Lynn Parris. Mr. Parris currently represents the Defendant. Upon the retirement of Judge Campbell, the case was randomly reassigned to the undersigned Judge on December 16, 2016.

         III. Analysis

         A. Substantial Threshold Showing

         As explained in the Sixth Circuit's opinion remanding this case, federal courts have authority to review a prosecutor's refusal to file a motion for sentence reduction based on substantial assistance if the prosecutor's refusal is based on an unconstitutional motive, like the defendant's race or religion. (Docket No. 821, at 9-10) (citing Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)). The Sixth Circuit has also held that a defendant is entitled to relief if the prosecutor's refusal to file a substantial assistance motion is not rationally related to any legitimate government end. United States v. Davenport, 465 Fed.Appx. 500, 503 (6th Cir. 2012). A defendant has a right to a hearing on the issue, however, only if he makes a “substantial threshold showing” that he satisfies these standards. (Docket No. 821, at 10); United States v. Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993).

         In evaluating a prosecutor's motives for refusing to file a substantial assistance motion, the Sixth Circuit has held that the existence of an independent, constitutional ground for the government's refusal precludes a defendant from making the “substantial threshold showing.” United States v. Washington, 250 Fed.Appx. 716, 719 (6th Cir. 2007)(citing United States v. Capps, 140 F. App's 911 (11th Cir. 2005)). Similarly, the Third Circuit has held that, in order to prove prosecutorial vindictiveness in the refusal to file a substantial assistance motion, a defendant “must show that the prosecutor withheld a 5K1.1 motion solely to penalize him for exercising his [constitutional right].” United States v. Paramo, 998 F.2d 1212, 1221(3rd Cir. 1993)(emphasis added). See also United States v. Gomez, 705 F.3d 68, 79 (2nd Cir. 2013)(citing Paramo for this proposition).

         In this case, the Defendant initially argued that the Government's refusal to file a Rule 35(b) motion on his behalf was motivated by its desire for retaliation for the Defendant's having filed a Section 2255 case. On appeal, the Government did not dispute that such a motive would qualify as an unconstitutional one. (Docket No. 821, at 11 n. 3). The Defendant argues that he has made a “substantial threshold showing” that the Government harbored this unconstitutional motive based on the following: (1) the Defendant was treated in a manner radically unlike similarly-situated defendants; (2) the Defendant's false allegations, which are relied upon by the Government to support its refusal, were made in the Section 2255 case; and (3) there is no other rational reason to deny Rule 35 relief to the Defendant. (Docket No. 856).

         As to the first argument, the Defendant contends that he has provided more and received less than other defendants who were rewarded with a Rule 35 motion. The Defendant claims that those similarly-situated defendants are Juan Canela, Karen Sue Holloway, Sonji Howard and Anthony Bowers. According to the Defendant, the only factor distinguishing him from these defendants is his having filed a Section 2255 case. While there appear to be similarities between the Defendant and his descriptions of these defendants, however, the court is not persuaded that the only distinguishing factor between them and the Defendant is his having filed a Section 2255 case. For example, the Government may have determined that the Defendant is not similarly situated to Mr. Canela, Ms. Holloway, and Ms. Howard because they do not appear to have been found by a judge to have committed perjury.

         As described by the Defendant and as revealed by the court record, Mr. Bowers' situation is more complicated. Mr. Bowers was initially denied a Rule 35 sentence reduction by Judge Campbell because he had engaged in an assault on another inmate while a Rule 35 motion was pending. (Docket Nos. 802-6, 802-7). In reaching his decision, Judge Campbell found Mr. Bowers' testimony about the prison assault not to be credible. (Docket No. 802-7, at 5 of 9). Several years later, Mr. Bowers filed a motion for sentence reduction based on a retroactive sentencing guideline amendment, and the Government filed a response opposing the defense request for a sentence below the mandatory minimum imposed by statute. (Docket No. 802-8; Docket No. 157 in Case No. 3:00cr75). Judge Campbell held a resentencing hearing and imposed the mandatory minimum sentence. (Id., at 37). At that resentencing hearing, Mr. Bowers discussed his journey to rehabilitation over the previous four years. (Id., at 38-42). At the conclusion of that hearing, AUSA Koshy commented on the apparent change in Mr. Bowers, and Judge Campbell stated that Mr. Bowers “made some heartfelt statements” and “[c]ould have a bright future if he applied himself properly.” (Id., at 43-44).

         Several months later, the Government filed a motion recommending a sentence reduction for Mr. Bowers below the statutory mandatory minimum, citing Mr. Bowers' “exemplary allocution” at the resentencing hearing and his having testified in a state murder trial without expecting a benefit in return. (Docket No. 164 in Case No. 3:00cr75). Judge Campbell granted the motion and reduced Mr. Bowers' sentence as requested. (Docket No. 169 in Case No. 3:00cr75). In the court's view, as of the time the Government agreed to a sentence reduction for Mr. Bowers, his situation was no longer similar to the Defendant's situation. In comparing the two, the Government may have determined that, unlike Mr. Bowers, the Defendant's credibility and rehabilitation remain in doubt.[2]

         Next, the Defendant argues that his filing of a Section 2255 case motivated the Government to deny his Rule 35 motion because the false statements it relies on in denying relief were made by the Defendant in a Section 2255 case. The filing of a Section 2255 case, however, is not the same as lying during the course of litigating the case. The Defendant has not established that making false statements in a court proceeding is constitutionally-protected conduct.

         Finally, the Defendant argues that his filing the Section 2255 case motivated the Government to deny him relief because there is no other rational reason for it to do so. The record demonstrates, however, that the reasons articulated by the Government - the Defendant's breach of his plea agreement, failure to accept responsibility, efforts to obstruct justice, perjury and the making of false allegations, the seriousness of the Defendant's criminal conduct, public safety factors, and lack of timely, full, and truthful cooperation - are rational ones and serve the legitimate goal of deterring such conduct.

         Thus, the court concludes that the Defendant has failed to make a substantial threshold showing that the Government's refusal to file the Rule 35 motion was in retaliation for his having filed a Section 2255 case. Federal inmates routinely file Section 2255 cases, and the Defendant has not shown that the Government felt compelled to punish him simply because he did so.

         B. Bargained-Away Discretion

         1. The Evidence ...


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