Baranski v. United States

• Decision Date: 31 March 2016
• Docket Number: No. 4:11-CV-123 CAS,4:11-CV-123 CAS
• Citation: Baranski v. United States, No. 4:11-CV-123 CAS (E.D. Mo. Mar 31, 2016)
• Parties: KEITH BYRON BARANSKI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

KEITH BYRON BARANSKI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 4:11-CV-123 CAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 31, 2016

MEMORANDUM AND ORDER

This matter is before the Court on petitioner Keith Byron Baranski's Third Amended Verified Petition for Writ of Error Coram Nobis and respondent United States of America's motion for summary judgment. The Court held an evidentiary hearing in this matter on December 7 and 8, 2015. After the hearing transcript was prepared, the Court ordered the parties to submit proposed findings of fact and conclusions of law for its consideration, and provided them an opportunity to file responses. This matter is now ready for decision. The Court makes the following findings of fact and conclusions of law, and ultimately concludes petitioner has failed to establish that he is entitled to the extraordinary relief of a writ of coram nobis.

I. Background

Mr. Baranski was convicted of one count of conspiracy to import machine guns illegally by submitting false entries in forms submitted to the Bureau of Alcohol, Tobacco & Firearms ("ATF"), in violation of 18 U.S.C. § 371. The government sought and obtained criminal forfeiture of the weapons. Mr. Baranski was sentenced to a term of sixty months' imprisonment followed by three years supervised release. Mr. Baranski appealed his conviction and sentence and the Eighth Circuit Court of Appeals affirmed. United States v. Baranski, 75 F. App'x 566 (8th Cir. 2003) (unpublished per curiam). Mr. Baranski filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, which this Court denied. Baranski v. United States, 2006 WL 472451 (E.D. Mo. Feb. 27, 2006). Mr. Baranski appealed the denial of his § 2255 motion and the Eighth Circuit affirmed. Baranski v. United States, 515 F.3d 857 (8th Cir. 2008).

Mr. Baranski's term of supervised release terminated on August 17, 2009. Mr. Baranski filed a pro se Petition for Writ of Error Coram Nobis on January 18, 2011, and an amended petition through counsel on March 14, 2011 that asserted three counts. Mr. Baranski filed a second Amended Petition for Writ of Error Coram Nobis on May 21, 2014 that asserted ten counts (Doc. 140).¹ The government moved to dismiss the Second Amended Petition as abuse of the writ. The Court granted the government's motion to dismiss as to five counts and denied it as to five counts.² See Mem. and Order of Oct. 7, 2014 (Docs. 177, 181.) The Court also granted Mr. Baranski's motion for leave to file a third amended petition for writ of error coram nobis, directing him to omit from his amended petition those claims that the Court held constituted abuse of the writ or were second or successive. (Id.)

Petitioner filed a Third Verified Amended Petition for Writ of Error Coram Nobis ("Petition") that asserts the following counts:

I. The Government Promised Witness James Carmi a Further Reduction in His Sentence Under Rule 35(b), Federal Rules of Criminal Procedure, but Deliberately Withheld that Information at Baranski's Trial.

II. The Government Was Fully Aware of the Extent of Witness James Carmi's Memory Impairment and Deliberately Withheld Records Supporting Carmi's Amnesia and Memory Loss.

III. The Government Misled the Court and Baranski's Defense Team about the Extent and Length of Witness James Carmi's Incarceration Exposure.

IV. The Government Deliberately Withheld Information About Favors Offered to and/or Requested by Witness James Carmi.

V. Prosecutorial misconduct and vindictive prosecution, based on the foregoing.

(Doc. 187.)

The government filed a motion for summary judgment on August 17, 2015. The government's summary judgment motion asserts that (1) the facts do not support any of Mr. Baranski's counts, and (2) Mr. Baranski has failed to show a fundamental constitutional error that merits the extraordinary remedy of coram nobis. Summary judgment briefing was completed on November 20, 2015. On November 30, 2015, the Court denied petitioner's motion for leave to file a surresponse in opposition to the government's summary judgment motion (Doc. 277).

The Court held a prehearing conference on December 3, 2015. Among other things, the Court stated it would take the government's summary judgment motion with the evidentiary hearing. The Court also addressed Mr. Baranski's Motion for Relief Under Rule 32(a)(4), Fed. R. Civ. P., which sought permission to use the complete depositions of petitioner's witnesses William Brown, John Rogers and Scott Rosenblum at the evidentiary hearing in lieu of their live testimony. The Court granted the motion as to witness Brown, who was recovering from surgeries and hospital stays for a failed hip replacement. As to attorneys Rogers and Rosenblum, Mr. Baranski stated they would be out of town in trial and asserted this met the "exceptional circumstances" requirement of Rule 32(a)(4)(E). The Court expressed concern at these witnesses' potential absence from thehearing because "it might need to rule on [their] credibility," and asked Mr. Baranski's counsel several times whether he considered issuing subpoenas to Rogers and Rosenblum. (See Tr. of Prehearing Conf. at 2, 5, 6-7, 8, 36, Doc. 289).³

On the morning of the evidentiary hearing, Mr. Baranski's counsel stated he had issued subpoenas to Rogers and Rosenblum, but had also learned additional details about the serious nature of the state court criminal case Rogers was defending, which he described on the record. The Court then found that Rogers' absence was due to an exceptional circumstance under Rule 32(a)(4)(E) and granted petitioner's motion to introduce his deposition in lieu of live testimony. Mr. Baranski's attorney stated that although he issued a subpoena to Rosenblum, Rosenblum's testimony would be submitted through his deposition. (Tr. Vol. I at 153-54.) Mr. Baranski did not request that the subpoenas be enforced or seek a continuance of the evidentiary hearing so that Rogers or Rosenblum could be present to offer live testimony.

The evidentiary hearing lasted two days. After the hearing transcript was prepared, the parties filed proposed findings of fact and conclusions of law. As part of his proposed findings and conclusions, Mr. Baranski withdrew his claims in Count IV of the Third Amended Verified Petition, that the government deliberately withheld information about favors offered to and/or requested by James Carmi. See Pet.'s Proposed Findings of Fact and Conclusions of Law at 3, ¶ 6. The Court therefore does not address Count IV.

II. Legal Standard

A writ of coram nobis is an "extraordinary remedy," and courts should grant the writ "only under circumstances compelling such action to achieve justice," United States v. Morgan, 346 U.S. 502, 511 (1954), and to correct errors "of the most fundamental character." Id. at 512 (quoted case omitted). "[J]udgment finality is not to be lightly cast aside; courts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases." United States v. Denedo, 556 U.S. 904, 916 (2009).

The burden is on the petitioner to show that he is entitled to coram nobis relief on the merits of his claim. Willis v. United States, 654 F.2d 23, 24 (8th Cir. 1981). "[A] petitioner must show a compelling basis before coram nobis relief will be granted, see Kandiel v. United States, 964 F.2d 794, 797 (8th Cir. 1992), and the movant 'must articulate the fundamental errors and compelling circumstances for relief in the application for coram nobis.' Id." United States v. Camacho-Bordes, 94 F.3d 1168, 1172-73 (8th Cir. 1996). To be entitled to coram nobis relief, a petitioner must also demonstrate that he is suffering from adverse collateral consequences due to the allegedly wrongful conviction. Stewart v. United States, 446 F.2d 42, 43-44 (8th Cir. 1971).

III. Findings of Fact

A. Summary of the Witnesses Who Testified

1. Mr. Richard Gardiner ("Gardiner") represented Mr. Baranski during his criminal trial, his direct appeal to the Eighth Circuit, his petition pursuant to 28 U.S.C. § 2255, and the appeal thereof. (Evidentiary Hearing Transcript ("Tr.") Vol. I, 15-90; 16:1-21.)

2. Mr. Robert E. Sanders ("Sanders") also represented Mr. Baranski during his criminal trial at issue in this case, but his representation of Mr. Baranski ended after the jury verdict. (Tr. Vol. I, 91-118; 105:9-14.)

3. Petitioner Baranski testified at the evidentiary hearing. Mr. Baranski was charged with conspiracy to import, receive and possess machine guns by making and submitting false entries on records submitted to ATF knowing such entries to be false. (See United States v. Baranski, No. 4:02-CR-361 CAS (E.D. Mo.)). Starting on November 12, 2002 and ending on November 18, 2002, Mr. Baranski was tried before a jury and was found guilty. (See Trial Transcript. Vols. I-V, No. 4:02-CR-361 CAS ("Trial Tr.")) At the evidentiary hearing, the Court also admitted Mr. Baranski's deposition pursuant to Rule 32(a)(3). (See Baranski Dep., Gov't Ex. D.)

4. Mr. John Rogers ("Rogers") testified via deposition transcript at the evidentiary hearing. Rogers represented Carmi concerning a federal firearms investigation and a criminal conviction that was prior to Mr. Baranski's trial and related to the federal criminal case against Mr. Baranski. (See Gov't Ex. O; Tr. Vol. I, 190-198.)

5. William J. Ekiss ("Ekiss") is a criminal defense attorney and was retained by Mr. Baranski when Mr. Baranski was under investigation by the ATF and the United States Attorney's Office in the Eastern District regarding a weapons violation. (Tr. Vol. II, 5-17.)⁴

6. Mr. Scott Rosenblum ("Rosenblum") testified via deposition transcript. (See Gov't Ex. P; Tr. Vol II, 18-31.) Rosenblum represented Carmi after he was arrested for possession of a firearm. (Tr. Vol. II, 32:20-21.)

7. Carmi testified at Mr. Baranski's criminal trial in November 2002 as a co-conspirator with Mr. Baranski and also testified at the evidentiary...