United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER'S MOTION TO COMPEL A RULE 35(B) MOTION FOR
SENTENCE REDUCTION ECF Nos. 689, 690
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
the Court are Petitioner Timothy Wayne Arnett's pro
se "Motion Requesting Court to Hold Evidentiary
Hearing Compelling Third-Party Rule 35(b) Sentence
Reduction" (ECF No. 689), and "Motion to Compel
Production of United States Attorney's Office Policies
Regarding Third-Party Substantial Assistance Motions"
(ECF No. 690). The Government filed its Opposition to the
motions on Mary 4, 2016 (ECF No. 692). Upon review of the
parties' briefing, the extensive record in the case, and
the relevant law, the Court DENIES Petitioner's motions.
February of 1997, Defendant pleaded not guilty (ECF No. 8) to
a fourteen-count indictmen (ECF No. 1), seven counts of Armed
Bank Robbery (18 U.S.C. 2113(a) and (d)) (Counts 1, 3, 5, 7,
9, II, 13); and seven counts of Use of a Firearm During a
Crime of Violence (18 U.S.C. 924(c)(1)) (Counts 2, 4, 6, 8,
10, 12, 14). After a delay due to Defendant's transfer
between jurisdictions (see ECF Nos. 2-4), Judge
Robert Coyle held that a period in late 1997 was excludable
time for the purposes of the speedy trial act (ECF No. 47).
In July 1997, Defendant moved that he be appointed as
co-counsel (ECF Nos. 22, 24), which Judge Coyle initially
Denied (ECF No. 23). Subsequent to a hearing on August 11,
1997, Judge Coyle granted Defendant's request to be
appointed co-counsel in his case (ECF No. 29) and relieved
counsel John Garland (ECF No. 30). Defendant filed multiple
motions to dismiss the indictment (ECF Nos. 39), which the
court denied (ECF No. 46). Trial was set for March 1998 (ECF
No. 56). The Court denied Defendant's motions in
limine. (ECF Nos. 62, 76, 82, 83).
March 4, 1998, subsequent to a jury trial, the jury returned
a guilty verdict on all fourteen counts (ECF Nos. 113, 116).
Defendant filed various post-trial motions, which the Court
denied (ECF Nos. 121-123, 129; 126, 127, 131). Defendant
moved for reconsideration of discovery motions, which the
Court denied (ECF Nos. 135, 139). Upon Defendant's
request, the Court appointed attorney Kevin Little to appear
and later as counsel for Defendant for all purposes (ECF Nos.
136, 137, 146). In August 1998, Defendant twice moved for the
judge's recusal and for a stay in proceedings, which the
Court denied. (ECF Nos. 177 & 178; 179 & 181).
August 24, 1998, Judge Coyle sentenced Defendant Arnett to
serve 235 months imprisonment as to counts 1, 3, 5, 7, 9, 11,
and 13, and as to count 1 in the District of Oregon; 240
months each as to counts 2, 4, 6, 8, 10, 12, 14, consecutive
to each other and consecutive to count two of District of
Oregon, for a total of 1, 915 months custody); 60 months
supervised release; $700 penalty assessment; and $101, 859.78
restitution. See ECF No. 183, 186 (Judgment and
September 3, 1998, Arnett filed a notice of appeal (ECF No.
190, "the first appeal"), and the Ninth Circuit
subsequently issued the case number 98-10397 (ECF No. 201).
The district court granted Arnett's application to
proceed in forma pauperis (ECF Nos. 191, 196).
August 27, 1998, Arnett filed a first motion for a new trial
and also requested a hearing on the motion (ECF Nos. 184,
187), which the Court denied on September 9, 1998 (ECF No.
197). On September 16, 1998, Arnett again requested a new
trial (ECF No. 198), which the district court again denied
(ECF No. 203).
September 29, 1998, Defendant filed a notice of appeal (ECF
No. 204, "the second appeal") of the Court's
September 9, 1998 Order (ECF No. 197) denying his motion for
a new trial. In this second appeal, the Ninth Circuit issued
case number 98-10445 (ECF No. 215). The Ninth Circuit ordered
the defendant-appellant to retain counsel, file a motion for
appointment of counsel, or inform the court of his intention
to represent himself (ECF No. 214).
of the First Appeal
February 22, 2000, the Ninth Circuit vacated the district
court's judgment (ECF No. 237); insert CITE United
States v. Arnett, __ F.2d __ (9th Cir. 2000).On February
25, 2000, Judge Coyle rendered an Order in which he denied
Defendant's motion for a new trial and set sentencing for
March 27, 2000 (ECF No. 239).
February 28, 2000, Defendant filed the following motions: to
dismiss the indictment (ECF No. 240); for a new trial
pursuant to Rule 33 based on grounds that false evidence was
presented at trial (ECF No. 241); for a new trial based on an
invalid Miranda waiver (ECF No. 242); for a new trial
pursuant to Rule 33 on the grounds of improper jury
instructions (ECF No. 244); and, for reconsideration of the
Court's Order denying a motion for a new trial (ECF No.
245), which the district court denied (ECF Nos. 246-249).
March 27, 2000, Judge Coyle sentenced Defendant Arnett to be
imprisoned for a total term of 1, 915 months, consisting of:
235 months on Counts 1, 3, 5, 7, 9, 11, 13 (to be served
concurrently with each other and concurrently with Count 1 of
Case No. CR-95-60120-1 in the D. of Oregon); terms of 240
months on Counts 2, 4, 6, 8, 10, 12, 14 (to be served
consecutively to the terms imposed in the odd-numbered
counts); and further ordered that the terms imposed in the
even-numbered counts be served consecutively to the 120
months terms imposed in Count 2 of the Oregon case; a $700
special assessment; and, $101, 859.78 restitution.
See ECF No. 250 (Judgment and Commitment issued
March 29, 2000).
March 30, 2000, Arnett filed a notice of appeal (ECF No.
251), and, on April 28, 2000, filed a second notice of appeal
to the Ninth Circuit (ECF No. 258), which issued case number
00-10170 (ECF No. 260) ("the third appeal"). The
district court granted Arnett's request to proceed in
forma pauperis (ECF No. 256). About this third appeal,
the Ninth Circuit affirmed in part, reversed in part, and
remanded to the district court (ECF No. 279). See
INSERT CITE TO 9TH CIRCUIT CASE.
hearing held February 2, 2004, the district court
acknowledged the Ninth Circuit's decision reversing and
remanding for retrial the seven 924(c) counts, and set a new
trial for February 17, 2004 before Judge Coyle (ECF No. 276).
filing a notice, in February and again in May 2004, Arnett
moved to dismiss the indictment (ECF No. 277) or,
alternatively, transfer the case to the District of Oregon
(ECF No. 283). The district court ordered Defendant to comply
with the court's notice requirement (ECF Nos. 285, 289),
and Arnett filed an amended notice of his motion and a motion
to dismiss the indictment based on the double jeopardy clause
of the U.S. Constitution, or, in the alternative, transfer
the case to the District of Oregon (ECF No. 292), which the
government opposed (ECF No. 295). Subsequent to a hearing
held September 27, 2004, Judge Coyle granted Defendant's
motion for self-representation (ECF No. 302).
to a hearing held October 4, 2004 (ECF No. 303), on
Defendant's motion to dismiss the indictment or,
alternatively, to transfer the case to the District of Oregon
(ECF No. 292), and also on Defendant's motion requesting
that the Clerk of Court date, sign, and file his
interlocutory notice of appeal (ECF No. 291), Judge Coyle
rendered an Order denying Defendant's motions (ECF No.
October 14, 2004, Defendant filed a notice of appeal to the
Ninth Circuit of the district court's order denying his
motion to dismiss the indictment (ECF No. 306, "the
fourth appeal"), relative to which the Ninth Circuit
issued case number 04-10575 (ECF No. 313). In November 2004,
Defendant filed a notice of motion and motion to dismiss the
indictment on the grounds that it failed to state a Section
924 (c)(1) offense, as well as a notice of motion and motion
to stay the trial pending the outcome of his application for
a stay from the Ninth Circuit (ECF Nos. 309, 310). The Ninth
Circuit denied these motions (ECF No. 321).
such, on November 22, 2004, Judge Coyle denied
Defendant's motion to stay the trial pending the outcome
of the Ninth Circuit's review of that motion (ECF No.
324); to dismiss the indictment (ECF No. 325); and, his
request for the return of the collected assessments and court
costs (ECF No. 323).
the latter (ECF No. 323), Defendant filed a notice of appeal
to the Ninth Circuit (ECF No. 328, "the fifth
appeal"), about which the circuit court issued case
number 04-10650 (ECF No. 335).
November 29, 2004, Defendant Arnett again filed a notice of
motion and motion to dismiss the indictment on the grounds
that it failed to allege the requisite mens rea (ECF
No. 326), which the district court denied (ECF No. 336).
Judge Coyle ordered that the Federal Defender's Office
("FDO") appoint stand-by counsel to assist
defendant for a limited purpose (ECF No. 339), and attorney
Robert Rainwater was added as stand-by counsel (ECF No. 352).
At a status conference on February 28, 2005, a jury trial was
set for April 25, 2005 (ECF No. 356).
March 4, 2005, Defendant Arnett moved for new stand-by
counsel (ECF No. 358), and on that motion the Court held a
hearing on March 14, 2005 (ECF No. 363). Also, on March 9,
2005, Defendant moved to dismiss the indictment on the
grounds of a violation of his Fourth Amendment Rights, and
requested the court's permission to be heard on two more
pretrial motions (ECF No. 359, 360). Next, on March 15, 2005,
Arnett moved to suppress his confession (ECF No. 364). The
next day, Arnett moved to allow independent inspection of the
shotgun and to postpone trial (ECF No. 366). On March 21,
2005, Judge Coyle held a hearing on the motions to dismiss
and to inspect the firearm (ECF Nos.359, 366), and
subsequently continued the jury trial to June1, 2005 (ECF No.
372). On March 28, 2005, Judge Coyle held a hearing on the
motion to suppress Arnett's confession (ECF No. 379), and
the following day relieved the FDO as advisory counsel (ECF
Transferred to Judge Wanger
March 30, 2005, the Clerk of Court transferred the action
from Senior Judge Coyle's docket to the docket of Judge
Oliver W. Wanger, and Judge Coyle subsequently rendered an
Order transferring the action to Judge Wanger's docket
for all further proceedings (ECF Nos. 378, 384). On April 14,
2005, Defendant Arnett filed a notice of Writ and Petition
for Writ of Mandamus (ECF No. 380). On May 11, 2005, Judge
Wanger rendered an Order denying Defendant's motion to
dismiss the indictment (ECF Nos. 359, 388). At a motions
hearing before Judge Wanger held on May 16, 2005, the Court