The opinion of the court was delivered by: Hayes, Judge
The matters pending before the Court are the following motions filed by Defendant John Edward Emerson: 1) the motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 63); 2) the motion for return of property (ECF No. 81); 3) the motion to amend and supplement pursuant to Rule 15(c)(2) of the Federal Rules of Civil Procedure (ECF No. 83); and 4) the motion to amend and supplement pursuant to Rule 15(c)(2) of the Federal Rules of Civil Procedure (ECF No. 88).
On June 8, 2006, Defendant was arrested at the San Ysidro Port of Entry driving a 1990 Ford Aerostar van equipped with a specially-built compartment underneath the carriage of the van. Defendant purchased the van approximately one week before his arrest. At some point during the week prior to his arrest, Defendant obtained a false registration for the van. The compartment ran underneath the driver's side of the vehicle, extending beneath the driver's seat toward the rear of the van, almost to the rear axle. Inside the van, the top of the compartment was open and exposed behind the driver's side of the vehicle. The carpeting on the floor of the van had been detached from its mooring to facilitate entry and exit from the compartment. The compartment could be concealed by screwing in a metal sheet over a portion of the opening, placing the detached carpeting loosely over the remaining portion of the compartment and installing a bench seat directly over the middle of the compartment.*fn1
Defendant approached the primary inspection booth driving the van and told the primary inspector that he was not bringing back anything from Mexico. Defendant was referred to secondary. The officer conducting the secondary inspection opened the passenger side cargo door and immediately noticed the carpet had been pulled up. The officer went to the area of the van directly behind the driver's seat, where the carpet appeared to be pulled up. The officer lifted the loose corner of the carpet and observed jeans belonging to a person. The officer was immediately concerned with rescuing the person in the compartment. In order to remove the person from the compartment, the officer removed the bench seat obstructing access to the compartment. The officer pulled back the carpet exposing the metal plate that partially covered the opening of the compartment, removed two screws from the sheet metal, and pried off the sheet metal allowing her to remove the person from the compartment. The person removed from the compartment in the van was a citizen of Mexico with no permission to enter the United States.
Defendant was placed under arrest and informed of his Miranda rights. In a subsequent interview, the Defendant stated that he purchased the van one week before his arrest from an unknown individual in Mexico and that he paid $15.00 to have someone register the vehicle for him. Defendant stated that he had driven the van into Mexico earlier that day and left the van in a parking lot with the keys inside, that he visited several bars, and that he retrieved the van and drove into the United States. Defendant denied knowledge of the alien inside the van.
On June 27, 2006, the grand jury returned a two count indictment charging the Defendant in Count One with bringing in an illegal alien for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and abetting, in violation of 18 U.S.C. § 2; and in Count Two with bringing in an illegal alien without presentation to an immigration officer, in violation of 8 U.S.C. §1324(a)(2)(B)(iii). The same day, attorney Dorn G. Bishop was substituted as appointed counsel of record for the Defendant.
Pretrial motions were filed.
On September 20, 2006, a jury trial was commenced. Testimony was taken and exhibits were received into evidence.
On September 22, 2006, the jury returned a verdict of guilty on both counts of the indictment.
On November 13, 2006, the Court relieved attorney Bishop and appointed Gary Burcham as counsel to represent the Defendant.
On January 9, 2007, the Court held a sentencing hearing. The Court found the total offense level 18, the Criminal History Category 4, and the sentencing guideline range 41 - 51 months. The Court considered the sentencing factors under 3553(a) and sentenced the Defendant to a term of imprisonment of 51 months and three year term of supervised release.*fn2
Defendant appealed his conviction to the Court of Appeals for the Ninth Circuit on the grounds that the district court abused its discretion in denying his motion for a mistrial after the prosecutor argued that he was using the van for smuggling, that the district court abused its discretion by declining to instruct the jury that it must draw an adverse inference against the Government for the loss of any evidence (the bench seat of the van), and that the district court abused its discretion by removing factual argument from the "theory of defense" instruction.
In an unreported memorandum decision, the Court of Appeals affirmed Emerson's conviction. The Court of Appeals found no misconduct in the prosecutor's closing argument as the comment "[Defendant] was using [the load vehicle] for smuggling" accurately reflected the evidence introduced at trial. The Court of Appeals rejected Defendant's complaint that the jury should have been instructed that it must draw an adverse inference against the Government for the loss of evidence and found that the Defendant's theory of the case instruction was adequately covered by the jury instructions. United States v. Emerson, 266 Fed.Appx. 695, 696-97, 2008 WL 410384 (9th Cir. 2008) (unpublished).
On October 7, 2009, the Defendant filed the motion to vacate judgment set aside or correct conviction and sentence ...