United States v. Hammons
| Decision Date | 24 September 2013 |
| Docket Number | Case No. 1:10-cv-00299-BLW,Case No. 1:06-cr-00126-BLW |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DENNIS BRUCE HAMMONS, Defendant/Movant. |
| Court | U.S. District Court — District of Idaho |
Pending before the Court is Dennis Bruce Hammons' ("Hammons") Motion to Vacate Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion as well as the Response (Dkt. 5), Reply (Dkt. 6), and the underlying criminal record, the Court enters the following Order denying the Motion.
Hammons was one of fifteen individuals charged in an Indictment filed September 13, 2006 in a case involving an approximately thirty-year drug and money laundering conspiracy. Relevant to the pending Motion, he was charged in the Second SupersedingIndictment with continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 1), conspiracy to manufacture/distribute/possess controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 2), conspiracy to launder money in violation of 18 U.S.C. 1956(h) (Count 3), conspiracy to structure transactions and launder money in violation of 18 U.S.C. § 371 (Count 4), conspiracy to travel and transport in aid of racketeering enterprises in violation of 18 U.S.C. §§ 371, 1952 () (Count 5), and several related forfeiture counts (Counts 6-10). See Second Superseding Indictment, Dkt. 425 (in criminal case).1 Hammons was arrested and appeared on February 4, 2008, in the District of Oregon. Arrest Warrant, Dkt. 446. He was arraigned on the Second Superseding Indictment in the District of Idaho on February 19, 2008, before Magistrate Judge Mikel H. Williams, waived a detention hearing, and remained in custody throughout these proceedings. Min. Entry, Dkt. 452; Waiver, Dkt. 456.
Appointed counsel, C. Tom Arkoosh, aggressively defended Hammons by filing a number of pre-trial motions and joining in the pre-trial motions of co-Defendants Gregory Frank Sperow and Lawrence Weitzman. See Mot. in Limine, Dkt. 538; Mot. to Change Venue, Dkt. 539; Mot. to Dismiss on Speedy Trial Grounds, Dkt. 540; Mot. to Sever on Basis of Duplicity, Dkt. 541; Mot. to Sever on Basis of Multiplicity, Dkt. 542; Mot. to Dismiss for Vindictive Prosecution, Dkt. 544; and Mot. for Joinder in Motions of Sperowand Weitzman, Dkt. 545 (). Hearing on the motions was set for May 27, 2008. Order, Dkt. 570.
Throughout the briefing on the motions, Hammons, though counsel, engaged in plea negotiations with the Government. See, e.g., Government's Fourth Request for Additional Time to Respond to Pretrial Motions, Dkt. 583 ().
On May 23, 2008, prior to the hearing on the motions, the Government filed a signed Plea Agreement pursuant to which Hammons agreed to plead guilty to Count Five of the Second Superseding Indictment, the ITAR charge, and to the Information in Case No. 1:08-cr-00038-BLW charging him with Making False Statements to Obtain a Fraudulent Passport, in return for dismissal of the remaining counts of the Second Superseding Indictment. Plea Agreement, Dkt. 596. See also Corrected Plea Agreement, Dkt. 695 ().2
In the Factual Basis portion of the Plea Agreement, Hammons agreed that between October 2000 and June 20, 2005, he "conspired with [co-Defendant] Kent Jones andothers to distribute the proceeds of the drug trafficking enterprise, which conspiracy resulted in drugs (sic) proceeds being distributed in interstate commerce to Hammons, or on behalf of Hammons." Plea Agreement, ¶ III.C. He also agreed that he executed a passport application in the name of his deceased brother. Id. As relevant here, he agreed that the maximum term of imprisonment on Count Five was imprisonment for a term of not more than five years and that the maximum term of imprisonment on the fraudulent passport charge was likewise not more than five years. Id., IV.A. On June 10, 2008, Hammons entered his plea of guilty before Magistrate Judge Candy W. Dale. Min. Entry, Dkt. 622. See also Plea Hearing Tr., Dkt. 708.
The road from plea to sentencing was not an easy one. Defense counsel's vigorous objections to the Presentence Report led to protracted litig ation including evidentiary hearings in the sentencing phase which ultimately concluded over one year after Hammons entered his plea. The Presentence Report grouped the ITAR and passport offenses and applied the drug guideline, § 2D1.1. The resulting offense level was 27 which, with a criminal history category of IV (including two prior federal drug convictions), yielded a guideline range of 100 to 120 months. Hammons objected to the offense calculation contending that the appropriate applicable guideline was the money laundering guideline, § 2S1.1. The Probation Officer disagreed and submitted the final Presentence Report to the Court with an offense level calculation based on § 2D1.1.
At the initial sentencing hearing date of October 17, 2008, Hammons continued his guideline argument, the Court listened to the tape of the plea hearing, decided that there was not a meeting of the minds, and allowed the parties to confer about how to proceed. The Court gave the Government the option of proceeding under § 2S1.1 or agreeing to allow Hammons to withdraw his plea. The Government indicated its agreement to proceed under § 2S1.1, but requested additional time to reassess the evidence to be presented. Min. Entry, Dkt. 694. The Government also indicated that it questioned whether Hammons would still be entitled to an adjustment for acceptance of responsibility. Id. The Court continued the hearing and directed counsel to file simultaneous briefs on the various sentencing issues. Id. Further briefing was allowed after the preparation of the plea hearing transcript. See Briefs, Dkts. 700, 701, 702, 711, 712.
On December 15, 2008, after reviewing the Plea Hearing transcript and the briefing, the Court found that there was no ambiguity in the Plea Agreement, that Hammons clearly pleaded guilty to distributing the proceeds of the drug trafficking enterprise, and that he did not, therefore, have an unqualified right to sentencing under § 2S1.1. Order, Dkt. 756. The Court continued:
However, out of an abundance of caution, recognizing that Defendant's liberty is at stake, the Court finds that there was no meeting of the minds at the time the parties entered the Plea Agreement. Therefore, Defendant shall have two options. First, he may withdraw from the Plea Agreement. Second, he may waive his right to contest the validity of hisplea and proceed with sentencing pursuant to § 2S1.1 with the understanding that the Government may present evidence on both the amount and the acceptance of responsibility issues.
Regarding the amount issue, the Government advised that it would seek to prove that Hammons had received $420,000 in drug proceeds whereas Hammons advised that he would admit to having received only $2,000. This difference was significant given that it resulted in a 14-level difference in the total offense level under the sentencing guidelines.
Defendant opted to proceed with sentencing under § 2S1.1. Notice to Proceed to Sentencing, Dkt. 757. Sentencing was set for April 17, 2009. Order, Dkt. 762. Prior to sentencing, each party filed additional argument. Dkts. 787; 791; 792. At the hearing, the Court heard testimony from Government witnesses Ron Nelson, Gregory Gleason, and Forest Gerald McDonald. Min., Dkt. 795. The hearing was to continue on May 15, 2009. However, the Government filed an unopposed motion for a 30-day continuance to interview a new witness or witnesses which the Court granted. Dkt. 821; 823. The matter was reset for June 23, 2009. Dkt. 831.
On June 23, 2009, the Court once again convened the sentencing hearing and received further testimony from Forest Gerald McDonald. Minutes, Dkt. 866. However, the matter was continued yet again to allow for video conference appearance of a defense witness and a Government witness. Minutes, Dkt. 866. The parties filed additionalbriefing/sentencing memoranda in advance of the newly set date of July 7, 2009, maintaining their respective positions regarding the amount. Dkts. 882, 885. The Court heard testimony by video conference of the two witnesses on July 7. Minutes, Dkt. 887. Sentencing concluded on July 10, 2009. Minutes, Dkt. 891.
Following the vigorously contested evidentiary hearing that occurred over a period of months, the Court sentenced Hammons to a term of 60 months in Case No. 1:06-cr-00126-BLW for the ITAR offense, in Case No. 1:08-CR-138-BLW to a term of 36 months for making false statements to obtain a fraudulent passport, and in Case No. 1:08-CR-319-BLW to a term of nine months for revocation of his term of supervised release in an unrelated federal case, all terms to run consecutively for a total sentence of 96 months. Respectively, Judgment, Dkt. 892; Judgment, Dkt. 27; and Judgment, Dkt. 19.
On June 14, 2010, nearly a year after sentencing, Hammons timely filed identical § 2255 Motions in each of the criminal cases alleging ineffective assistance of counsel for failure to file a notice of appeal of the sentence in the drug case. The Court dismissed the § 2255 Motions filed in the false statements case and the revocation case since the issue Hammons indicated he wanted to appeal related only to the portion of the sentence attributable to the ITAR charge. Mem. Dec. and Order, Dkt. 4 in each of Case Nos. 1:10-cv-00302-BLW, and 1:10-cv-303-BLW.
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