The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. 2255
Movant Kimberly Bailey ("Bailey) moves to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. §2255 ("Motion"). Respondent United States of America opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the Motion is denied in its entirety. The Clerk of Court is instructed to close the file.
In April 2000, a federal grand jury returned a superseding indictment charging Bailey with conspiring to kidnap, murder and maim a person in a foreign country in violation of 18 U.S.C. §956(a)(1) (Count 1), kidnaping in violation of 18 U.S.C. §1201(a)(1) (Count 2), and murder for hire in violation of 18 U.S.C. §1958(a)(Count 5). At the time of indictment, Bailey was represented by attorney James Warner. In July 2001, the United States filed under seal an ex parte motion regarding a potential conflict between Bailey and Mr. Warner. Ultimately, by September 2001, Mr. Warner withdrew as counsel of record and Bailey retained Philip DeMassa as her counsel.
On October 17, 2001 co-defendant John Krueger pleaded guilty to a second superseding information charging him with conspiracy to kidnap a person in a foreign country in violation of 18 U.S.C. §956(a)(1). The plea agreement included a cooperation provision.
The court granted several continuances in order to allow Bailey and her counsel to adequately prepare for trial and to resolve pretrial motions. Trial commenced on June 18, 2002 and, on July 15, 2002, the jury convicted Bailey of all three crimes. The jury did not reach a unanimous decision on whether or not the victim, Richard Post, had been murdered. On August 27, 2003, Bailey was sentenced to life imprisonment on Counts 1 and 2, to run concurrently, and ten years imprisonment on Count 5, to run concurrent with Counts 1 and 2.
Overview of the Government's Case
The United States called about ten witnesses, including undercover FBI Agent Nicholas McKean, Svetlana Ogorodnikova, co-defendant John Krueger, and several of victim Richard Post's children and friends. The United States also played for the jury the entire video and audio tape of the transaction whereby Bailey paid the undercover FBI agent $10,000 cash to have co-defendant Krueger and others killed. The Government also played portions of audio tapes in which Bailey told Svetlana Ogorodnikova that she paid thousands of dollars to have Richard Post kidnaped and killed in Mexico and described how it was carried out.
Overview of Bailey's Case
The defense vigorously cross-examined all of the government's witnesses, especially Svetlana Ogorodnikova and John Krueger. The defense also called approximately 18 witnesses in its case-in-chief, including Bruce Perlowin, Sandra Armendariz, Ben Harroll, Randy Binter, Dr. Bruce Shelton, and Jay Walker. Through these witnesses, Bailey significantly impeached Svetlana Ogorodnikova and co-defendant John Krueger. Bailey also sought to show that she did not cause the victim Richard Post to disappear and that Post, Ogorodnikova, Perlowin, and others were attempting to poison her.
Viewing the evidence in the best light for the Government, in late 1997 Bailey employed Intellisource, an investigative firm owned and operated by Richard Post, to investigate the loss of money she invested in Canada. TR 542. By way of background, Bailey owned a business that sold "black boxes" which reportedly cured various illnesses, including cancer. In 1998 Bailey and Post became romantically involved. TR 393.
In August of 1998, John Krueger, one of Post's employees, was in charge of managing Bailey's business. At about that time, Krueger informed Bailey that Post was embezzling money from her and had commenced a romantic relationship with another woman. TR 396. Upon hearing that Post was both embezzling money and cheating on her, Bailey became emotionally upset and asked Krueger to contact his friend, Humberto Iribe, to arrange to kidnap Post. TR 549. Krueger and Bailey developed a plan to get even with Post for the unfair way they felt he was treating them and to recover money he supposedly stole from Bailey. It was understood that Post would have to be hurt in order to persuade him to tell Bailey what she wanted to know. TR 552. On the same day, Krueger contacted Iribe who informed Krueger that the kidnaping would cost $50,000.
In mid-August 1998, Bailey and Krueger met with Iribe at Horton Plaza, a shopping center in San Diego, California, to discuss the kidnaping plans. At that meeting, Krueger excused himself and left Bailey and Iribe alone for about one hour in order to discuss the details of the kidnaping scheme. TR 555-56. Once the meeting was over, all three walked back to their parked cars and Iribe informed Krueger and Bailey that he needed $2,000 to purchase scrambled radios and stolen cars in order to carry out the kidnaping in Mexico. TR 558.
Following the meeting, Bailey told Krueger about the basic details of the plan. Bailey was responsible for the $50,000 payment as well as luring Post to Mexico, because Iribe would not kidnap Post in San Diego. In order to carry out the plan, on August 20, 1998, Bailey arrived at Post's office and traveled with him to Tijuana, Mexico. Later that day, Krueger received a phone call from Bailey stating that the kidnaping had taken place in Tijuana, in front of a pharmacy. TR 568. Krueger then spoke with Iribe who asked him to come to Tijuana because there was a problem with the money. TR 570. On the same day, Iribe told both Bailey and Krueger that he would beat up Post in order to get him to tell where the money was hidden. TR 574-75. Krueger also represented to Iribe that the $10,000 payment shortfall would be taken care of within twenty four hours. TR 576.
Bailey, Krueger, and Iribe also discussed an alibi for Bailey because she had been the last person seen with Post. TR 578. They created a plan whereby they would force Post to leave decoy voicemail messages -- one at Post's office and the other on Krueger's phone. The decoy message stated that Post had taken a trip to Mexico City. TR 578-79. Defendants Krueger and Iribe forced Post to leave the message several times before they decided he sounded credible.
On August 21, 1998, Krueger went to the Intellisource office and was informed that Post had left a message there, stating that he had traveled to Mexico City. TR 598. Krueger also spoke with Iribe that day and Iribe informed Krueger that Post had been beaten but denied taking any money from Bailey. Iribe also told Krueger that Bailey was in Mexico and wanted to speak with Post herself. TR 600. Bailey told Iribe that she would not pay the final $10,000 unless she was able to talk with Post. TR 604.
On August 23, 1998, Bailey met with Krueger in San Diego and told him that she had seen Post and didn't like the fact that he looked beaten up. TR 606. Bailey also said she told Iribe not to kill Post but to build an underground house where he could live. TR 606. On August 24, 1998, Bailey returned to Mexico and, the next day, Iribe told Krueger that Post had been killed and that Bailey agreed with the decision to kill Post. On August 25, 1998 Krueger and Bailey met with two of Post's children and told them that he had gone to Mexico City. A few days later, Bailey told Krueger that she had to pay an additional $10,000 as a disposal fee for Post's body. TR 618. Bailey said that she paid Iribe both the $10,000 disposal fee as well as the ...