U.S. v. Pollard

• Decision Date: 12 November 2003
• Docket Number: No. CR.86-2027 TFH.,CR.86-2027 TFH.
• Citation: 290 F.Supp.2d 153
• Parties: UNITED STATES of America v. Jonathan J. POLLARD, Defendant.
• Court: U.S. District Court — District of Columbia

Page 153

290 F.Supp.2d 153

UNITED STATES of America v. Jonathan J. POLLARD, Defendant.

No. CR.86-2027 TFH.

United States District Court, District of Columbia.

November 12, 2003.

Jonathan J. Pollard, Butner, NC, Counsel for Defendant Pollard.

Eliot Lauer, Esq., Jacques Semmelman, Esq., New York, NY, Government Counsel.

AUSA Robert D. Okun, Special Proceedings Section, AUSA Steven W. Pelak, Transnational/Major Crimes Section, Washington, Court Security Officer.

Michael P. Macisso, Washington.

MEMORANDUM OPINION

HOGAN, Chief Judge.

Pending before the Court is Defendant Pollard's Motion for "Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)" ("Mot."). Having carefully considered Judge Johnson's opinion of August 7, 2001, the numerous filings of both parties, the oral argument heard in open court on September 2, 2003, and the pertinent facts and case law, the Court will deny Mr. Pollard's motion.

I. PROCEDURAL HISTORY

The procedural history in this case is quite extensive, and is important as it is applies to the instant motion. On June 4, 1986, Mr. Pollard pleaded guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). On March 4, 1987, the Honorable Aubrey E. Robinson, Jr. sentenced Mr. Pollard to a term of life imprisonment. At those proceedings, Mr. Pollard was represented by Richard A. Hibey. An appeal was not taken.

On March 12, 1990, Mr. Pollard filed his first 28 U.S.C. § 2255 motion, alleging that the government breached its plea agreement with him by arguing for a life sentence, by not limiting its allocution to the facts and circumstances of the case, and by failing to adequately advise the Court of the extent and value of Mr. Pollard's cooperation. He also alleged that the government impermissibly argued at sentencing that Mr. Pollard breached the plea agreement when he gave an unauthorized interview to journalist Wolf Blitzer. Finally, Mr. Pollard asserted that his plea was not voluntary because he was required to plead guilty in order for his wife to do so. On September 11, 1990, Judge Robinson summarily denied Mr. Pollard's motion and held that the government did not breach the plea agreement, the government did not make improper arguments at sentencing, and that Mr. Pollard's plea was voluntary. See United States v. Pollard, 747 F.Supp. 797, 802-06 (D.D.C.1990). For purposes of this first § 2255 motion, Mr. Pollard was represented by Hamilton P. Fox, III.

On March 20, 1992, the D.C. Circuit Court of Appeals upheld the summary denial of Mr. Pollard's first § 2255 motion, holding, inter alia, that the government did not breach the plea agreement and that Mr. Pollard's plea was voluntary even though it was wired to his wife's plea. See United States v. Pollard, 959 F.2d 1011 (D.C.Cir.1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992). Specifically, the D.C. Circuit held that the government did not breach the provisions of the plea agreement requiring the government to outline the extent and value of Mr. Pollard's cooperation, and "[found] it unnecessary to decide whether the government breached" the provision of the plea agreement requiring it to limit its allocution to the "facts and circumstances" of the case, because Mr. Pollard "would [not] be entitled to relief under § 2255." Id. at 1028. Indeed, even if "[t]he government's allocution in Pollard's case ... had crossed the limits of the plea agreement, [it] falls far short of a `fundamental defect' in Pollard's sentencing that resulted in a `complete miscarriage of justice'; nor was it `an omission inconsistent with the rudimentary demands of fair procedure.'" Id. The Court of Appeals continued:

[W]e think that Pollard's claims of government breaches of the plea agreement, which appear to us to be very much the product of revisionist thinking on the part of Pollard and his new counsel, are brought far too late, in this collateral proceeding, to enable Pollard to prevail. Pollard waited three years before complaining about the government's allocution.... The sentence Pollard received was within the power of the district court to impose, both by the terms of the statute under which he pleaded guilty and by the explicit terms of the plea agreement. Pollard has never denied that he is guilty of the crimes for which he was imprisoned. Nor is there any allegation that Pollard's guilty plea was induced by the promise of a specific sentence, which he subsequently did not receive. Under such circumstances, it cannot be said that justice completely miscarried.

United States v. Pollard, 959 F.2d 1011, 1030 (D.C.Cir.1992) (footnote and citations omitted).¹

On October 13, 1992, the Supreme Court denied Mr. Pollard's petition for a writ of certiorari. During the appeal of the denial of his first § 2255 motion, Mr. Pollard was represented by Theodore Olson, John H. Sture, Theodore J. Boutrous, Jr., and Hamilton P. Fox, III.

On September 20, 2000, approximately 13 years after he was sentenced, Mr. Pollard filed a "motion for resentencing," which was his second § 2255 motion, arguing this time that his sentencing attorney (Mr. Hibey) was ineffective because he: (1) failed to notice an appeal; (2) failed to argue that the government breached its plea agreement at sentencing; (3) failed to request an adjournment of the sentencing hearing after receiving the Weinberger Supplemental Declaration ("Supplemental Declaration"); (4) failed to adequately rebut the assertions contained in the Supplemental Declaration or demand that the government prove the allegations in the Supplemental Declaration at the sentencing hearing; (5) failed to inform the sentencing judge that Mr. Pollard had been authorized to provide an interview to journalist Wolf Blitzer or demand a hearing at which the government would have to prove that the interview was unauthorized; (6) failed to demand a hearing at which the government would have to prove that Mr. Pollard disclosed classified information during the second Blitzer interview; and (7) breached the attorney-client privilege by informing the sentencing judge that Mr. Pollard had given the Blitzer interviews against counsel's advice.

On November 28, 2000, the government filed a motion to dismiss Mr. Pollard's second § 2255 motion on the grounds that it was barred by the one year statute of limitations contained in § 2255. On August 7, 2001, the Honorable Norma Holloway Johnson dismissed Mr. Pollard's second § 2255 motion because it was time-barred and because the D.C. Circuit had not authorized the filing of Mr. Pollard's successive motion. See United States v. Pollard, 161 F.Supp.2d 1, 13 (D.D.C.2001). For purposes of this second § 2255 motion, Mr. Pollard was represented by his current counsel, Eliot Lauer and Jacques Semmelman.

On August 17, 2001, Mr. Pollard noticed an appeal of Judge Johnson's decision. On October 17, 2001, the Court of Appeals granted a motion to hold any such appeal in abeyance pending disposition of the pending motions in the district court, and this Court's determination of whether a certificate of appealability is warranted.

On October 5, 2001, Mr. Pollard filed the instant motion for reconsideration or, in the alternative, request for issuance of a certificate of appealability ("COA"), arguing, based on essentially the same facts and the same case law presented in his original motion and reply before Judge Johnson, that Judge Johnson erred as a matter of law in dismissing his motion as a successive and time-barred § 2255 motion, and arguing that reasonable jurists would find Judge Johnson's opinion and judgment to be debatable. Mr. Pollard supports his instant motion with a declaration from former United States District Judge George N. Leighton, who served as a District Judge in the Northern District of Illinois from 1976 to 1987. In his declaration, retired Judge Leighton expresses his disagreement with Judge Johnson's ruling, and opines that reasonable jurists would find Judge Johnson's ruling to be debatable.

II. PRELIMINARY MATTER: AUTHORIZATION TO FILE

As an initial matter, the Court notes that Mr. Pollard has not specified any statute or court rule allowing him to file a motion for reconsideration after the denial of a § 2255 motion.² A motion to reconsider a § 2255 motion is to be treated as a "[Fed.R.Civ.P.] 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter." United States v. Clark, 984 F.2d 31, 32 (2nd Cir.1993). Since the instant motion for reconsideration was filed more than 10 days after Judge Johnson's memorandum opinion and judgment, this Court will treat it as a Rule 60(b) motion.

Because his argument rests entirely on the premise that Judge Johnson committed legal error when she denied his second § 2255 motion, subsections (b)(1) and (b)(6) are the only provisions of Rule 60 that arguably provide this Court with authority to grant Mr. Pollard's motion for reconsideration. Rule 60(b)(1) and (b)(6) state in relevant part: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment." Circuit courts of appeals "have split over whether errors in legal reasoning may be corrected by Rule 60(b)(1) motions." Ctr. for Nuclear Responsibility, Inc. v. United States, 781 F.2d 935, 939 (D.C.Cir.1986); see also id. at 939-40 nn. 6-7, 9 (citing cases and law review articles for both positions). While the D.C. Circuit Court of Appeals has indicated that a court could adopt "the more liberal interpretation of Rule 60(b)(1), allowing correction of substantive legal errors during the appeal...