United States v. Arnett

          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

         Before 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.

         I. BACKGROUND1

         In 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).

         First Trial

         On 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).

         First Sentencing

         On 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 Commitment).

         First Appeal

         On 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).

         On 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).

         Second Appeal

         On 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).

         Resolution of the First Appeal

         On 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).

         On 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).

         Second Sentencing

         On 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).

         Third Appeal

         On 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 9^TH CIRCUIT CASE.

         At a 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).

         Without 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).

         Subsequent 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. 304).

         Fourth Appeal

         On 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).

         As 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).

         Fifth Appeal

         About 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).

         On 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).

         On 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 No. 377).

         Case Transferred to Judge Wanger

         On 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 ...