United States v. Brown, CRIMINAL NO. 1:02-CR-146

Decision Date25 November 2013
Docket NumberCRIMINAL NO. 1:02-CR-146
CourtU.S. District Court — Middle District of Pennsylvania

(Chief Judge Conner)


Presently before the court in the above-captioned matter is petitioner Franklin C. Brown's ("Brown") motion to vacate, set aside, or correct convictions and sentence (Doc. 983) pursuant to 28 U.S.C. § 2255,1 on the basis of alleged ineffective assistance of counsel, government interference with the right to counsel, and a due process violation under Brady v. Maryland, 373 U.S. 83 (1963), regarding suppression of favorable evidence. For the reasons to be discussed, the court will deny the motion.

I. Statement of Facts & Procedural History

Franklin C. Brown was the Chief Legal Counsel and Vice Chairman of the Board of Directors of the Rite Aid Corporation ("Rite Aid"). (Doc. 1003 at 1). On June 21, 2002, Brown was indicted for conspiracy, false statements, and obstruction of justice arising out of accounting irregularities at Rite Aid. (Doc. 983 at 1). Brown engaged a team of attorneys from Steptoe Johnson, LLP in Washington, D.C., whorepresented him through trial as well as a post-trial motion for acquittal and a new trial. (Id.) Steptoe Johnson, LLP was assisted by local counsel, Joseph U. Metz of Dilworth Paxton, LLP, in Harrisburg, Pennsylvania ("Local Counsel" and collectively with Steptoe Johnson, LLP, "Trial Counsel"). (Id.)

On July 24, 2002, the government provided Trial Counsel with (1) audio tapes of six recorded conversations between Brown and Timothy Noonan, Rite Aid's former President ("Noonan recordings"), (2) transcripts for each conversation, except March 30, 2001 ("March 30 recording") due to its "poor audio quality," and (3) a composite video tape of FBI surveillance of four of the conversations. (Id. at 1-2). A week later, the government sent additional FBI surveillance video and a short transcript of the March 30 recording. (Id. at 2). Brown immediately recognized differences between his memory and the contents of the tapes and transcripts. (Id.) Brown asked Trial Counsel twice to challenge the authenticity of the recordings and request the original recordings, but Trial Counsel stated that a prima facie showing of tampering was required to compel production of the original recordings. (Id. at 2-3). Trial Counsel filed a motion to suppress the Noonan recordings on other grounds on September 4, 2002, but did not challenge the authenticity of the recordings or request a hearing under United States v. Starks, 515 F.2d 112 (3d Cir. 1975). (Doc. 983 at 3). The court denied the motion to suppress on December 20, 2002. (Id.) In August 2003, Brown retained forensic expert Stuart Allen to examine the audio tapes, and Allen advised Brown that the results were inconclusive because he only examined copies of the recordings. (Id. at 4). Brown asked TrialCounsel again to obtain the original recordings and, on September 20, 2003, Local Counsel asked Assistant U.S. Attorney Kim Daniel ("Daniel") to examine the original tapes, which Daniel refused to allow three days before jury selection. (Id. at 4-5).

At trial, Trial Counsel renewed the objection to the admissibility of the Noonan recordings. (Id. at 5). Trial Counsel informed the court that Brown also had "nagging concerns about the technical aspects of the tapes." (Doc. 904 at 15). Trial Counsel requested that the tapes be "provisionally admitted" subject to Brown's right to object if an expert examination substantiated grounds for objection. (Doc. 983 at 5). In its case, the government called seventeen witnesses, including seven witnesses who admitted to conspiring with Brown or helping Brown commit criminal acts. (Doc. 1003 at 2-3). The government also presented a composite video synchronized to matching audio from the Noonan recordings with a rolling transcript to the jury. (Doc. 983 at 5). The recordings were admitted into evidence upon Trial Counsel's reservation of the right to object. (Id. at 5-6). Trial Counsel asked for a trial continuance to have Tom Owen, a forensic audio specialist, examine three of the original recordings that the government agreed to provide. (Id. at 6; Doc. 750 at 2). Before the conclusion of trial, Owen concluded that the recordings were originals and that the segments placed in evidence were authentic. (Doc. 983 at 6). Owen questioned the recording procedures andcertain "anomalies." (Id.) As a result of Owen's forensic review, Trial Counsel did not lodge a formal objection to the admissibility of the Noonan recordings. (Doc. 750 at 2).

On October 17, 2003, Brown was convicted on the following ten counts: (1) conspiracy in violation of 18 U.S.C. § 371 (Counts 1 and 33); (2) false statements in violation of 18 U.S.C. § 1001 (Counts 10 and 12-15); (3) obstruction of grand jury proceedings in violation of 18 U.S.C. § 1503 (Count 34); (4) obstruction of a SEC investigation in violation of 18 U.S.C. § 1505 (Count 35); and (5) witness tampering in violation of 18 U.S.C. § 1512(b)(1)(2) (Count 36). (Doc. 983 at 6; Doc. 1003 at 2).

Prior to trial, in January 2003, Rite Aid stopped paying Brown's legal fees. (Doc. 983 at 3). Brown alleges that the Department of Justice "persuaded Rite Aid to cease the advancement of attorneys' fees" based upon the DOJ guidance known as the Thompson Memorandum.2 (Id. at 45). Brown contends that this termination of fee payments caused counsel to curtail trial preparations, thereby depriving him of counsel free from governmental interference in violation of the Sixth Amendment and denying him substantive due process in violation of the Fifth Amendment. (Id. at 3, 44-45).

Brown filed several post-trial motions for a new trial. On February 4, 2004, Trial Counsel filed the initial motion for acquittal and a new trial citing a litany of reasons, including that the court gave an erroneous jury instruction on aiding and abetting. (Id. at 7). The court acknowledged that the jury instruction was plain error, but denied the motion for lack of prejudice because the findings on the verdict form were sufficient to conclude that the jury independently relied on a theory of liability under United States v. Pinkerton, 328 U.S. 640 (1946). (Doc. 983 at 7). Brown did not appeal the court's decision. In January 2004, Brown engaged new counsel, Peter Goldberger, Ellen Brotman, and John Carroll ("Appellate Counsel"), and Appellate Counsel filed a motion seeking discovery to support another motion for new trial on the basis that the Noonan recordings used at trial were not authentic. (Id. at 7-8). The court denied the motion, and, on October 14, 2004, Brown was sentenced to imprisonment for ten years, two years of supervised release, and fines and special assessments totaling $21,000. (Id. at 8).

On May 31, 2005, Brown filed a motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on the basis of newly discovered evidence or, in the alternative, an order to produce the original audio tapes, video tapes, and relevant recorders. (Id. at 9). The court denied the motion because the government agreed to provide three original audio and video tapes and the recorders, and the basis for the Rule 33 motion was not yet established. (Id. at 10-11; Doc. 847). Upon examination of the tapes, Brown renewed his Rule 33 motion in September 2006, alleging that the government intentionally withheld exculpatory material andmisrepresented the authenticity of tapes, particularly the March 30 recording. (Doc. 983 at 11). The court held an evidentiary hearing and denied Brown's motion because the government did not submit false evidence or perjured testimony during trial, and Trial Counsel was aware of procedures to challenge the authenticity of the tapes before trial and did not make any objections. (Id. at 11-13). On appeal, the Third Circuit affirmed Brown's convictions and remanded the case for resentencing on other grounds. (Id. at 13; Doc. 917-2). After resentencing and another vacated judgment by the Third Circuit, Brown was resentenced to time served and one year of supervised release on August 30, 2011. (Doc. 983 at 13-14).

On November 29, 2011, Brown timely filed the instant motion to vacate, set aside, or correct convictions and sentence (Doc. 983) pursuant to 28 U.S.C. § 2255 on the basis of alleged ineffective assistance of counsel, violation of the right to counsel and substantive due process as a result of unjustified government interference, and violation of due process under Brady v. Maryland for suppression of favorable evidence. Pursuant to the court's order granting Brown's motion to disqualify Judge Rambo under 28 U.S.C. §§ 455 and 144 (Doc. 997), the Clerk of Court reassigned this case to the undersigned on May 4, 2012. These issues are fully briefed and ripe for disposition.

II. Discussion

A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which a defendant in custody3 under sentence of a federal court may challenge the legality of a conviction or sentence in the district court where he or she was convicted and sentenced. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). In considering a motion to vacate, the court must accept the truth of the defendant's factual allegations unless they are clearly frivolous based on the existing record. Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Where the record affirmatively indicates that defendant's § 2255 claim is without merit, the claim may be decided on the record without a hearing. See 28 U.S.C. § 2255(b); Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985). If the record conclusively contradicts the facts asserted in support of a § 2255 motion, or if the defendant would not be entitled to relief as a matter of law even if the facts as alleged are true, the reviewing court does not commit an abuse ofdiscretion by declining to conduct an evidentiary hearing. See Nicho...

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