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O'Brien v. United States

January 4, 2010

SUSAN O'BRIEN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Docket No. 623; 633]

On April 22, 2009, Petitioner, Susan O'Brien ("Petitioner") proceeding pro se, timely filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §2255. On June 9, 2009, the Government filed a Response to Petitioner's motion, and on June 24, 2009, Petitioner filed her Reply.

On September 3, 2009, Petitioner filed a Motion for Leave of Court to Amend her § 2255 motion, but she failed to attach a proposed amended § 2255 motion. Therefore, the Court allowed Petitioner 30 days to re-submit the motion with her proposed amendments. On September 23, 2009, Petitioner filed an ex parte application to withdraw her Motion for Leave of Court to Amend her § 2255 petition, which the Court granted on September 29, 2009.

On October 8, 2009, Petitioner filed a Motion for Leave of Court to File an Amended Legal Brief in Support of her § 2255 Petition under Federal Rule of Civil Procedure 15(a) and attached a proposed amended memorandum.*fn1 The Government filed a Response to the Amended Petition on November 18, 2009. Petitioner filed her Reply on December 18, 2009.

The Court has reviewed the record, the submissions of the parties, and the supporting exhibits and, for the reasons set forth below will deny Petitioner's motion.

BACKGROUND

On April 15, 2003, Petitioner was indicted on tax evasion and failure to file income tax return charges. On July 29, 2003, the grand jury returned a seventy-eight count superceding indictment charging Petitioner and seven co-defendants with conspiracy to defraud the Internal Revenue Service, tax evasion, filing false and fraudulent federal income tax returns, and aiding and assisting the preparation of false tax returns. Petitioner was personally charged with one count of conspiracy to defraud, twelve counts of tax evasion, and thirty-four counts of aiding and assisting the preparation of false tax returns. Petitioner was arraigned on August 12, 2003.

On August 21, 2003, the Court entered an Order and Finding of Fact stating "the ends of justice require that the case be declared complex, pursuant to Title 18, United States Code Section 3161(h)(8)(B)(ii) and (iv)." See Docket No. 37. Therefore, the Court extended the time limits of the Speedy Trial Act. The Court made specific factual findings in support of its order, including: the case involved eight defendants charged in a seventy-eight count indictment alleging tax fraud; Petitioner was charged with forty-seven counts; discovery was "voluminous, consisting of more than one hundred boxes of documents seized during the execution of search warrants, additional boxes of subpoenaed bank records, and more than two hundred undercover tape recordings;" and the parties had stipulated that it was "unreasonable to expect adequate preparation for pretrial proceedings and trial to be conducted by Defendants within the time limits of the Speedy Trial Act." Id.

On September 4, 2003, the Court entered the parties' stipulation regarding the complexity of the case and Speedy Trial Act as to all eight defendants, including Petitioner.*fn2 In the stipulation, Petitioner agreed that:

[T]he motions and trial schedule in the above-captioned case should be continued in order to permit the parties to adequately prepare for trial and to prevent a miscarriage of justice.... The parties agree that it is unreasonable to expect adequate preparation for pretrial proceedings and trial to be conducted by the defense within the limits of the Speedy Trial Act found at Title 18, United States Code Section 3161. The parties therefore stipulate that the complexity of the case requires a finding under Title 18, United States Code Section 3161(h)(8)(B)(ii) and (iv) that the ends of justice require a continuance outside the otherwise applicable bounds of the Speedy Trial Act.

Docket No. 40.

Petitioner's jury trial began on January 31, 2006. On May 2, 2006, Petitioner was convicted of forty-one of the forty-seven counts she was charged with.*fn3 On October 17, 2006, the Court sentenced Petitioner to 125 months imprisonment.

On December 21, 2007, the Ninth Circuit affirmed Petitioner's conviction. On April 14, 2008, the United States Supreme Court denied ...


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