United States v. Rodgers

• Decision Date: 30 April 2015
• Docket Number: No. 2:03-cr-0371-MCE-EFB P,2:03-cr-0371-MCE-EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES OF AMERICA, Respondent, v. KENNETH D. RODGERS, Movant.

UNITED STATES OF AMERICA, Respondent,
v.
KENNETH D. RODGERS, Movant.

No. 2:03-cr-0371-MCE-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 30, 2015

FINDINGS AND RECOMMENDATIONS

Movant, Rodgers, is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.¹ He was convicted of one count of robbery of a credit union, in violation of 18 U.S.C. § 2113; and one count of using a firearm in connection with that robbery, in violation of 18 U.S.C. § 924(c)(1). He seeks post-conviction relief on the grounds alleging that: (1) the government failed to produce sufficient evidence that the credit union was federally insured at the time of the robbery; (2) the trial court lacked subject matter jurisdiction because of the government's failure to prove that the credit union was federally insured at the time of the robbery; (3) his Sixth Amendment right to confrontation was violated when out of court, unsworn statements were admitted to show that the credit union was an insured depository; (4) his trial and appellate counsel rendered ineffective assistance in failing

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to object to the lack of evidence that the credit union was federally insured; (5) the cumulative effect of errors at his trial violated his right to due process; (6) his trial was held in violation of his right to a speedy trial; and (7) the prosecutor failed to turn over exculpatory evidence to the defense, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Rodgers also requests an evidentiary hearing on his claims of ineffective assistance of counsel and Brady error.

Upon careful consideration of the record and the applicable law, the court finds that Rodger's § 2255 motion must be denied.

I. Procedural Background

On September 1, 2005, the grand jury returned a Fifth Superseding Indictment charging Rodgers with two counts (counts 11 and 17) of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); and two counts (counts 12 and 18) of using a firearm, within the meaning of 18 U.S.C. § 924(c)(1). ECF No. 260. Rodgers' jury trial commenced on January 18, 2006. ECF No. 312. On February 14, 2006, the jury found Rodgers guilty on counts 11 and 12 but acquitted him on counts 17 and 18. ECF No. 366. On April 25, 2006, Rodgers was sentenced to 300 months (25 years) on count 11 and 84 months (7 years) on count 12, to run consecutively, for a total aggregate sentence of 384 months (32 years) in prison. ECF No. 419.

Rodgers filed an appeal of his judgment of conviction in the United States Court of Appeals for the Ninth Circuit. ECF No. 416. Therein, Rodgers claimed that: (1) the prosecutor improperly vouched for the government's cooperating witnesses and made other inflammatory statements during closing argument; (2) the district court erred in permitting the government to present the direct testimony of three cooperating witnesses without allowing immediate cross-examination of each witness; (3) the government's delay in providing Jencks Act material prevented the defendants from effectively cross-examining the cooperating witnesses; (4) the district court erroneously denied the defense request for a hearing to determine whether the government made promises to prosecution witness Dakina Sudduth in exchange for her testimony; (5) the trial court erred in denying a defense request for a perjury instruction as it applied to one of the cooperating witnesses; and (6) the cumulative effect of errors at his trial violated his right to due process. United States v. Williams, et al., 375 F. App'x 682 (9th Cir.

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2010). The Ninth Circuit upheld Rodgers' conviction and sentence in a memorandum decision filed April 8, 2010. Id.

Rodgers filed the instant motion pursuant to 28 U.S.C. § 2255 on October 31, 2011. ECF No. 855. Respondent filed an opposition on October 18, 2012. ECF No. 903. Rodgers filed a reply on December 7, 2012. ECF No. 914.

II. Applicable Law

A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Relief is warranted only where a petitioner has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). To warrant a hearing, therefore Rodgers must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

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III. Rodgers's Claims

A. Insufficient Evidence

Rodgers was charged with and convicted of the robbery of Financial Center Credit Union in Manteca, California (FCCU), in violation of 18 U.S.C. 2113(a). One of the elements of the robbery of FCCU as alleged in the indictment requires proof beyond a reasonable doubt that FCCU was a federally-insured financial institution at the time of the robbery. See 18 U.S.C. § 2113(f) ("the term 'credit union' means any Federal credit union and any State-chartered credit union the accounts of which are insured by the National Credit Union Administration Board.") The indictment against Rodgers alleged that the "accounts" of FCCU were insured at the time of the robbery by the National Credit Union Administration Board. ECF No. 260 at 7.

Rodgers' first claim is that there was insufficient evidence to support his conviction for the robbery of FCUU because the government failed to demonstrate that the "deposits" of the credit union were federally insured. ECF No. 855 at 14-18. The background to this claim is the following.

At trial the government presented unchallenged evidence showing that the FCCU was federally insured, as alleged in the indictment. This evidence included testimony by Nora Stroh, Executive Vice-President of FCCU, who testified that FCCU was "federally insured" on the day of the robbery. Reporter's Transcript of Proceedings (RT) at 273-75. The government also introduced as evidence a National Credit Union Administration certificate of insurance and accompanying letter, which were identified by Ms. Stroh as such, and which provided support for her testimony that the credit union was a federally insured institution on the date of the robbery. Id. The certificate of insurance, which is dated July 2, 1971, states that "each member's shares" in FCCU are insured. It does not mention "deposits." ECF No. 855 at 30. Finally, the government introduced a certification dated July 6, 2005, and signed by Kelly J. Frerichs, the Director of Division of Insurance Region V of the National Credit Union Administration. Therein, Mr. Frerichs certified that the certificate of insurance correctly set forth the insured status of FCCU as of July 2, 1971, and that a search of relevant records found no evidence that FCCU's insured status had been terminated after that time. ECF No. 855 at 32.

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Rodgers concedes that the government demonstrated the "member shares" of FCCU were federally insured and that FCCU as an entity was federally insured on the date of the robbery. But he insists that it does not follow from this that "deposits" with FCCU were federally insured. Thus, he argues that the evidence introduced by the government is insufficient to prove the required element that the FCCU's deposits were federally insured. ECF No. 855 at 14-18; ECF No. 914 at 10. In support of his argument that the government was required to prove FCCU's "deposits" were insured, as opposed to its "accounts" being insured, Rodgers notes that his jury was given the following instruction:

The defendants are charged in the Fifth Superseding Indictment with armed credit union robbery in violation of Section 2113 of Title 18 of the United States code. In order for a defendant to be found guilty of that charge, the Government must prove each of the following elements beyond a reasonable doubt: First, a defendant took money belonging to a financial institution. Second, a defendant used force and violence or intimidation in doing so. Third, the deposits of the financial institution were then insured by the National Credit Union Administration . . .

RT, Monday, January 29, 2007, at 1176-77 (emphasis added). Rodgers argues, "no rational trier of fact could have found beyond a reasonable doubt that the 'deposits' rather than the 'member's shares' of the FCCU in Manteca, California were federally insured." ECF No. 855 at 18.

Respondent addresses this semantic exercise by pointing out that "member shares means the same as 'deposits' for federally insured purposes," and that the element of...