The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 [Docket No. 302]
This case returns to the Court on Defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government has filed a response to the motion, and Defendant has filed a traverse. After reviewing the motion, opposition, traverse, and all supporting documents and the record on file herein, the Court denies the motion.
On June 6, 2006, Defendant James Mincoff, was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also named three other individuals: Juvenal Vega-Soto, Stephen Perry and Jessie Munoz. The indictment was part of a larger investigation of the Mexican Mafia which resulted in five other indictments against numerous other individuals.
Munoz was arrested on June 16, 2006. Mincoff turned himself in and was arrested on July 12, 2006. Between August 4, 2006, and June 29, 2007, the Government produced approximately 48,000 pages of documents and other relevant materials to defendants in each of the related cases. The Government disclosed recordings and transcripts of conversations from wiretaps on phones used by Munoz, including incriminating evidence against Mincoff from several phone calls in late July 2006, and impeachment evidence against Munoz from several phone calls in mid-August 2006.
On June 25, 2007, Munoz pled guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The following day, the Government filed a superseding indictment against Mincoff adding a count for attempted distribution of cocaine and a count for unlawful use of a communication facility in violation of 21 U.S.C. § 843(b).
Mincoff's trial started on August 20, 2007. Munoz testified as the "main government witness" at Mincoff's trial. United States v. Mincoff, 574 F.3d 1186, 1190 (9th Cir. 2009). On August 23, 2007, the jury found Mincoff guilty on all counts. The court subsequently sentenced Mincoff to 240 months in prison.
After the jury's verdict but before sentencing, the Government disclosed an additional batch of discovery to defendants pending trial in the related cases. Within that discovery was a report authored on February 21, 2006, by Federal Bureau of Investigation ("FBI") Special Agent Allan Vitkosky detailing his meeting with an unidentified individual "in a position to testify." (Mot. to Vacate, Ex. C.) The individual was most likely Munoz. (Id.) The report recorded incriminating evidence the individual provided law enforcement against Thomas Durkin, a defendant in a related case. According to the report, Durkin was charged in state court with possession of two ounces of methamphetamine, and he conspired with Munoz to suborn perjury from Ricky Contreras to undermine the state's case against Durkin. Four sentences of the report bore some relation to the conspiracy to suborn perjury:
DURKIN also wrote, "RICKY did good . . . did the right thing. I know I'll blow them out of the water in motions." According to the Individual this is a reference to RICKY CONTRERAS, who testified falsely at the Preliminary Hearing (sic) that the methamphetamine belonged to him and not DURKIN. (Intercepted conversations indicated that DURKIN and JESSIE MUNOZ elicited the false / perjured testimony of RICKY CONTRERAS on behalf of DURKIN).
(Mot. to Vacate, Ex. A.) This report and the timing of its production are at the center of the present motion.
DISCUSSION Mincoff raises three arguments in support of his Motion to Vacate Conviction and Sentence. First, he alleges the government suppressed Special Agent Vitkosky's FBI report in violation of Brady v. Maryland. Second, Mincoff claims the Government's suppression of the FBI report effectively denied him his Sixth Amendment right to confront witness Munoz. Third, Mincoff contends that if the Government did not improperly suppress the FBI report then his trial counsel was ineffective in failing ...