Dobek v. United States, Case No. 16-cv-1255-pp

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Citation340 F.Supp.3d 756
Docket NumberCase No. 16-cv-1255-pp
Parties Ronald A. DOBEK a.k.a. Alexander M. Rovegno, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date18 September 2018

Ronald A. Dobek, Duluth, MN, pro se.

Michael J. Chmelar, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Respondent.

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (DKT. NO. 1); DENYING MOTION TO AMEND PETITION (DKT. NO. 24); DENYING MOTION FOR DISCOVERY AND MOTION FOR DISCLOSURE OF GRAND JURY MATERIALS (DKT. NO. 29); DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

HON. PAMELA PEPPER, United States District Judge

On September 20, 2016, petitioner Ronald Dobek filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Dkt. No. 1. This court screened the petition, and allowed the petitioner to proceed on his claims that his appellate counsel's performance violated the Sixth Amendment. Dkt. No. 8 at 2. Post-briefing, the petitioner made several requests for the court to expedite the disposition of this case. See Dkt. Nos. 16, 17, 19. He also notified the court that he had filed a petition for writ of mandamus with the Seventh Circuit Court of Appeals. Dkt. No. 20. On April 5, 2018—approximately eighteen months after filing his initial petition—the petitioner filed a motion to amend it, dkt. no. 24, a request for discovery, dkt. no. 25, and two requests to expand the record, dkt. nos. 26, 27. On June 20, 2018, the petitioner filed a motion for discovery and for disclosure of grand jury materials. Dkt. No. 29. Because the petitioner has not demonstrated that he is entitled to relief under 28 U.S.C. § 2255, the court will deny the petition to vacate, set aside or correct his sentence and will deny the other pending motions.

I. Background

Several years ago, the government charged the petitioner in two federal cases in this district—United States v. Dobek, 2012-cr-253-JPS, and United States v. Dobek, 2013-cr-231-JPS. This petition asks the court to vacate or set aside the conviction in the second case, 2013-cr-231, but in order to explain the basis for that request, the court must recount facts relating to both convictions.

A. United States of America v. Ronald Dobek, Case No. 12-cr-253-JPS

On December 11, 2012, the grand jury charged the petitioner with two counts of exporting defense articles—namely, F-16 canopy seals—to Venezuela without a license. Case No. 12-cr-253-JPS at Dkt. No. 1. Count One of the indictment charged an offense date of December 29, 2007; Count Two charged an offense date of December 6, 2008. Id. at 1-2. The arraignment didn't take place until August 16, 2013; the minutes of that hearing indicate that the petitioner was "serving a sentence on a case out of New York." Id., Dkt. No. 9 at p. 2. At that hearing, Magistrate Judge Joseph scheduled a final pretrial conference for October 15, 2013, and set the trial for October 21, 2013 in front of District Judge J. P. Stadtmueller. Id. at Dkt. Nos. 8, 9.

Though the petitioner asked for, id. at dkt. no. 13, and received an extension of time to file pretrial motions, id. at September 3, 2013 order, he filed no motions, and the case proceeded in a trial posture. On October 10, 2013, the parties submitted a final pretrial report in anticipation of the October 21, 2013 trial. Id. at Dkt. No. 21. Four days later, however, the government filed a motion to adjourn the trial. Id. at Dkt. No. 22. The motion stated that a government shut-down had begun on October 1, 2013, and was on-going. Id., Dkt. No. 22 at p. 2. It explained counsel had learned that day that because of the fiscal impact of the shut-down, no one from "the agency which makes I[nternational] T[raffic in] A[rms] R[egulations] licensing determinations" would be able to make the final licensing determination by the scheduled trial date. Id. Counsel represented that even if the government reopened that week, the agency would need at least two weeks to make the final determination. Id. She also explained that she had been trying to convince individuals from the Departments of State, Justice and Defense to have the licensing work declared excepted from the furlough requirements of the agencies, but that she hadn't been successful. Id. For all intents, there was no witness available to provide critical testimony as to the licensing determination. Id. at pp. 2-3. The government also noted that after October 17, 2013, the clerk's office likely would run out of funds to pay jurors for their jury service. Id. at 3.

At the October 15, 2013 final pretrial conference, Judge Stadtmueller denied the motion to adjourn the trial and dismissed the indictment under Federal Rule of Criminal Procedure 48(b), saying that dismissal was necessary "as a result of the mismanagement of the case," and that the dismissal underscored the "reality that the Government shutdown has an extremely negative effect on the administration of justice." Id., Dkt. No. 25 at p. 2. Judge Stadtmueller told the government that he would give them several hours—until noon of that day—to provide him with an explanation of why the dismissal should be without prejudice; he gave defense counsel until the close of business to respond. Id., Dkt. No. 27, p. 7 at lines 6-10. Each side filed its position papers. Id. at Dkt. Nos. 29 (defense) and 30 (government).

In a twenty-page order dated October 21, 2013, Judge Stadtmueller dismissed the case without prejudice. Id. at Dkt. No. 31. The order recounted the history of the case, and Judge Stadtmueller's opinions about how the U.S. Attorney's Office had handled the case. Id. at 1-9. The order explicitly stated that Judge Stadtmueller was not dismissing the case under the Speedy Trial Act or the Sixth Amendment, id. at pp. 9-10; 15 n.3, but instead emphasized that "the U.S. Attorney's office's multiple miscues in bringing this case to trial," id. at p. 9, led him to use his "substantial discretion," id. at p. 11, to dismiss the case under Rule 48(b).

As to Rule 48(b), Judge Stadtmueller observed:

[T]here is no specific test for determining whether a Rule 48(b) dismissal should be with prejudice or without. Nonetheless, the case law appears to make clear that a Rule 48(b) dismissal is presumed to be without prejudice and should be with prejudice only if the Court has previously made clear that the Government faces dismissal with prejudice if they do not comply with a Court order or if the defendant makes a very strong showing of prejudice.

Id. at p. 16. Without other guidance, Judge Stadtmueller found that the Speedy Trial Act's factors provided "a good framework" for his analysis. Id. at pp. 16-17. He analyzed "the seriousness of the offense, the facts and circumstances leading to dismissal, and the impact of re-prosecution on the administration of justice[.]" Id.

As for seriousness of the offense, Judge Stadtmueller concluded that "there can be little doubt that allegations of selling defense articles to a foreign country are serious" and that "[i]n all, this factor weighs heavily in favor of dismissal without prejudice." Id. at p. 17. Judge Stadtmueller found that the second factor, the "facts and circumstances leading to dismissal," weighed in favor of dismissing the case with prejudice. Id. He recounted that "[t]he Court has amply voiced its dissatisfaction with the U.S. Attorney's handling of this case. To call it inept would, in the Court' view, vastly understate the seriousness of the problems that occurred." Id. Finally, Judge Stadtmueller concluded that the third factor, the "impact of re-prosecution on the administration of justice," was "more neutral." Id. at 18. In making this observation, Judge Stadtmueller commented that

... the Court also acknowledges that dismissal without prejudice "is not a toothless sanction." United States v. Taylor , 487 U.S. 326, 342 [108 S.Ct. 2413, 101 L.Ed.2d 297] (1988). That is particularly true, here, where one of the charges against Mr. Dobek has essentially been dismissed with prejudice, because the U.S. Attorney will not have the ability to re-file it against him, as it now stands barred by the applicable statute of limitations.

Id. at 18-19. (In its motion arguing for dismissal without prejudice, the government had argued that "[b]y virtue of dismissing the indictment, the government will no longer be able to prosecute the defendant for the conduct alleged in Count One, as the statute of limitations has now expired." Id., Dkt. No. 26 at p. 5.)

Judge Stadtmueller concluded that, while it was a close call, he was going to dismiss the case without prejudice, "given the serious nature of the offense and the general favor of dismissal without prejudice." Id., Dkt. No. 31 at p. 19. He explained that

[a]s the Court has continuously noted throughout this order, it finds many shortcomings in the U.S. Attorney's handling of this case. The serious issues in that office should not be weighted so heavily that it would deprive the American people of justice in a case involving an accused international arms trafficker.

Id.

B. United States of America v. Ronald Dobek, Case No. 13-cr-231

Thirty-seven days later, on November 26, 2013, the grand jury returned a new indictment against the petitioner. Case No. 13-cr-231-RTR at Dkt. No. 1. Count One charged that between July 2007 and January 2009, the defendant conspired to commit an offense against the United States by willfully exporting F-16 canopy seals from the United States to Venezuela. Id. at pp. 1-4. Count Two charged that on or about December 29, 2007, the defendant attempted to export F-16 canopy seals from the United States to Venezuela. Id. at p. 5. Count Three alleged that on or about December 6, 2008, the defendant attempted to export F-16 canopy seals from the United States to Venezuela. Id. at p. 6. The clerk's office assigned this second case to Judge Rudolph T. Randa. Id. at Dkt. No. 5.

The defendant...

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