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United States v. Phommaseng

United States District Court, D. Kansas

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
PETSAMAI PHOMMASENG, Defendant-Petitioner.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Petsamai Phommaseng's Motion for Leave to Conduct Discovery (Doc. 584) under Rule 6 of the Rules Governing Section 2255 Proceedings. The government responded and moves to enforce the collateral attack waiver and to dismiss Petitioner's Sixth Amendment claim in Ground 1 of his 28 U.S.C. § 2255 motion as procedurally defaulted, arguing his motion for leave to conduct discovery should be denied because he cannot show “good cause” for the requests (Doc. 593). Alternatively, the government seeks bifurcation of the discovery issues before the Court determines specific objections to individual requests. For the reasons explained in detail below, the Court denies the government's motion to dismiss Ground 1 as waived or procedurally defaulted, grants in part Petitioner's motion for leave to conduct discovery for good cause, and refers the specific requests and objections thereto to Chief Magistrate Judge James P. O'Hara.

         I. Background and Procedural History

         Petitioner was charged in the District of Kansas in three separate cases, alleging numerous drug trafficking, conspiracy, and firearm charges.[1] On April 26, 2016, Petitioner pled guilty in each case pursuant to Fed. R. Crim. P. 11(c)(1)(C) and entered into three separate plea agreements.[2] In No. 15-20006-JAR, Petitioner entered a conditional plea, reserving the right to appeal the Court's order denying his motion to suppress evidence obtained as a result of a January 21, 2015 traffic stop and subsequent search. In all three cases, Petitioner expressly waived his right to appeal or collaterally attack his convictions or sentences, except for claims of ineffective assistance of counsel or prosecutorial misconduct, as long as the Court sentenced him within the range recommended by the parties under Rule 11(c)(1)(C).[3]

         Meanwhile, the government initiated a separate drug conspiracy investigation during the spring of 2016, targeting detainees and employees of Corrections Corporation of America (“CCA”), a large, private detention facility located in Leavenworth, Kansas.[4] Although various drug charges were initially filed against six defendants in United States v. Black, the Court was placed on notice early on that the government suspected the conspiracy involved at least 95 inmates and 60 more individuals outside the facility.[5] Facts uncovered after an early discovery conference in the Black case during the summer of 2016 revealed discovery practices that implicated the Sixth Amendment's right to counsel: the United States Attorney's Office for the District of Kansas (“USAO”) possessed soundless video recordings of attorney-client visitation rooms at CCA and possessed and redistributed recordings of telephone calls between several detainees and their counsel.

         Once notified of the video and audio recordings, this Court immediately clawed back and impounded the recordings and ordered all local federal detention facilities to cease recording attorney-client meetings and phone calls. On October 11, 2016, the Court appointed a Special Master to investigate matters related to the government's conduct. Since the Special Master's appointment, an extensive record has been developed regarding the government's procurement and possession of the recordings. After a protracted evidentiary hearing, this Court made extensive findings of fact and conclusions of law, which are incorporated by reference herein (“the Black Order”).[6]

         On August 8, 2016, in each of his three cases, Petitioner filed a Motion for Fed. R. Crim. P. 16(E) Discovery, Confidential Legal Visitation, and Return of Property pursuant to Rule 41(g).[7] The motion alleged that counsel for Petitioner learned on August 2, 2016 that attorney-client meetings had been video recorded at CCA and provided to the USAO upon request, and that the government had used the confidential communications in pending litigation and had disclosed the recordings as discovery to other defendants and counsel. As set out in the Black Order, the Special Master's investigation in that case began because of allegations related, in part, to Petitioner and his criminal case. As that Order details, the USAO attempted to gain a tactical advantage in another criminal matter by using video recordings to target Petitioner's attorney, Jacquelyn Rokusek, because of the overlap between Petitioner, Richard Dertinger, and the CCA investigation.[8] Petitioner raised Due Process and Sixth Amendment issues in the Rule 41(g) motion. The government did not respond, and the Court terminated the motion as moot after Petitioner was sentenced.

         On January 18, 2017, Petitioner moved to withdraw his guilty pleas, alleging prosecutorial misconduct related to the government's representations about the sentence the parties' agreed upon in the Rule 11(c)(1)(C) plea agreements, which Petitioner claimed was legally impossible for the Court to impose.[9] Although the government did not oppose Petitioner's request to withdraw his guilty pleas, the Court denied Petitioner's motion after finding the parties had agreed to impose separate sentences in each of the three cases.[10] The Court proceeded to sentence Petitioner, in three separate sentencing hearings, to 180 months' imprisonment in each case, to run concurrently to the other two cases.

         Petitioner filed a pro se appeal challenging the Court's denial of his motion to suppress evidence obtained as a result of a January 21, 2015 traffic stop and subsequent search. After the government moved to dismiss the appeal as untimely, Petitioner voluntarily dismissed the appeal.

         Under the Court's Standing Order 18-3, the Federal Public Defender (“FPD”) is appointed to represent all petitioners alleging Sixth Amendment violations based on evidence uncovered during this investigation under 28 U.S.C. § 2255.[11] On September 6, 2018, Petitioner filed a Motion to Vacate and Discharge with Prejudice Under 28 U.S.C. § 2255 and Memorandum in Support in his three criminal cases.[12] Petitioner asserted three grounds for relief: (1) the government violated his Sixth Amendment rights when it obtained video recordings of his meetings with counsel while he was incarcerated at CCA; (2) Rokusek provided ineffective assistance of counsel when she failed to timely file a notice of appeal; and (3) Rokusek provided ineffective assistance of counsel when she failed to adequately challenge the drug quantity attributed to him.

         After the government divested possession of recordings of Petitioner's attorney-client calls and derivative evidence therefrom to the Court in January 2019, the Court granted Petitioner leave to supplement his first Sixth Amendment claim.[13] Petitioner supplemented his motion with evidence specific to the government's procurement and possession of at least 76 recorded attorney-client calls between Petitioner and his counsel during the course of his prosecution, in support of his claim that the government violated his Sixth Amendment right to effective counsel. Petitioner argues that the proper remedy for the government's “extensive and systematic” misconduct is to vacate his judgments with immediate dismissal and prejudice to any further prosecution.

         Petitioner also seeks leave of court to conduct the following discovery/production requests related to his Sixth Amendment claim within 30 days:

1. Any information that the USAO (including attorneys, law enforcement agents (from any agency), support staff, interpreters, and other employees and contractors) requested, obtained, possessed, reviewed, re-disseminated, or relied on recorded CCA phone calls in Petitioner's case, whether or not those calls included attorney-client calls or were requested, obtained, possessed, reviewed, re-disseminated or relied in other cases or investigations.
2. Any information that the USAO (including attorneys, law enforcement agents (from any agency), support staff, interpreters, and other employees and contractors) knew or should have known that the Petitioner's attorney-client calls were recorded, requested, obtained, possessed, reviewed, re-disseminated, or relied upon at any time.
3. Any and all documents and materials created by USAO-DKan personnel and provided to USAO-DKan employees, contractors, and/or any federal, state, or local agent, to the extent such documents or materials concern or relate to retention, preservation, and production of materials that relate to or concern the Black investigation.
4. Any and all documents and materials sent, given to, or received by AUSA Emily Metzger in response to her instructions concerning retention, preservation, and production of materials that relate to or concern the Black investigation.
5. A list or log of all repositories in the USAO-DKan information systems that could have been, were, or are now being searched using the June 7, 2017, list of search terms negotiated by USAO-DKan and the Special Master (the list of search terms is contained in Black docket 298-4, exh. D). Repositories may be identified by employee initials for USAO-DKan personnel, if applicable. A repository may be identified artificially if its description would reveal contents claimed to be privileged from disclosure under 28 C.F.R. § 26.26.
6. Any and all documents or materials that reference, discuss, describe or pertain to:
a. USAO-DKan management instructions to USAO-DKan personnel, and its agents and contractors, as to what level of cooperation would be provided to the Special Master by USAO-DKan;
b. Directions or instructions of any kind or nature, directed to a specific employee, agent, or contractor, or concerning a specific employee, agent, or contractor, as to whether that employee, agent, or contractor was or is now permitted to meet with the Special Master, whether at the Special Master's request or at the recipient's request;
c. Directions or instructions of any kind or nature, to any USAO-DKan personnel, its agents, or its contractors that authorize, limit, or forbid preparing for or providing documents and materials to the Special Master.
7. Any and all documents that discuss or describe “taint teams” used in Black or in this case.
8. Any documents or materials not already filed as exhibits in the Black case, relating to allegations that personnel, contractors, and agents of USAO-DKan personnel and their contractors acted in violation of the U.S. Constitution, statute, or other law by obtaining, possessing, listening to, or watching confidential communications of inmates and attorneys.
9. Any documents or materials that discuss a meeting to include AUSA Kim Flannigan, SAUSA Erin Tomasic, or both, and Attorney Jacquelyn Rokusek, limited to a case where Rokusek represented Richard Dertinger.
10. Any documents or materials regarding then-SAUSA Erin Tomasic's issuance of any Grand Jury subpoena in Black. This demand is limited to documents or materials that: (a) were created prior to the issuance of any such subpoena, and (b) are not prohibited from disclosure under Fed. R. Crim. Pro. 6(e).
11. A list of every individual working at, working with, or detailed to, the USAO-DKan (including attorneys, law enforcement agents (from any agency), support staff, interpreters, and other contractors) who is known to have accessed (whether deliberately or inadvertently): any video recording of attorneys meeting at CCA with detainees; and/or, any telephone conversations between CCA detainees and attorneys.
12. For every person identified in item 11 who directed or permitted someone else to listen to or view the audio or video recording, identify the persons who: (a) so directed or permitted, and (b) were so directed or permitted.
13. Any and all documents and materials, not already in evidence, relating to the preservation or non-preservation of any computer, computer software, disk, or other electronic paraphernalia used by USAO-DKan to allow viewing of video recordings produced by CCA related to Black. This demand goes to the time before and after the Court ordered preservation of such materials by the USAO-DKan, and it includes production of documents or materials that prescribe the time frame for the regular district-wide implementation of computer phaseouts identified in the Court's order.[14]

         II. Standard for Section 2255 Discovery

         Rule 6 of the Rules Governing Section 2255 Proceedings governs discovery matters, and provides in relevant part:

(a) Leave of Court Required. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law. . . .
(b) Requesting Discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents.

         In order to show “good cause” under Rule 6(a), a petitioner must provide the court with “specific allegations [that] show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.”[15] The purpose of Rule 6(b) is to enable the court “to make certain that the inquiry is relevant and appropriately narrow.”[16]

         III. Discussion

         Petitioner seeks leave to conduct discovery related to his Sixth Amendment claim. The government argues that Petitioner cannot show good cause for his discovery requests because (1) his Sixth Amendment claim is either waived or procedurally defaulted; and (2) his requests are irrelevant to his Sixth Amendment claim. The government alternatively asserts that the Court should (3) deny the majority of his requests as premature because they pertain only to the adequate remedy; or (4) find the discovery requests overbroad, unduly burdensome, irrelevant, seek privileged information, and/or seek duplicative information provided in Black.

         A. Waiver and Procedural Default

         1. Collateral Attack Waiver

         A knowing and voluntary waiver of the statutory right to appeal or to collaterally attack a sentence is generally enforceable.[17] The Court applies a three-pronged analysis to evaluate the enforceability of such a waiver: (1) whether the disputed issue falls within the scope of the waiver; (2) whether defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.[18]

         To determine whether the disputed issue falls within the scope of the waiver, the court begins with the plain language of the plea agreement.[19] The court construes the plea agreement according to contract principles and based on what defendant reasonably understood when he entered the plea.[20] The court strictly construes the waiver and resolves any ambiguities against the government and in favor of defendant.[21]

         The government takes the position that a defendant's unconditional and voluntary Rule 11(c)(1)(C) guilty plea constitutes a waiver of all non-jurisdictional defenses to the charge(s) to which he has pleaded guilty except: (1) due process claims alleging vindictive prosecution, (2) double jeopardy claims that are evident from the face of the indictment, or (3) claims that the statute of conviction is unconstitutional.[22] The government argues that Petitioner's claim that the government violated his Sixth Amendment right to confidential attorney-client communications is not jurisdictional, nor does it implicate any one of the three types of claims identified in DeVaughn and Class as falling outside the general waiver rule. The government contends that because Petitioner is now raising an independent claim relating to the alleged deprivation of constitutional rights that purportedly occurred before the entry of his guilty pleas-and petitioner does not challenge his plea as either uncounseled or involuntary-his claim is foreclosed. But Petitioner's Sixth Amendment claim is not an “independent confidential communications claim” that he waived raising on direct appeal. Instead, Petitioner claims that by intentionally intruding into his protected attorney-client relationship absent a legitimate justification, the government violated his Sixth Amendment right to effective counsel. As detailed below, this claim alleges prosecutorial misconduct and is raised as a collateral attack of his conviction and sentence.

         The government also seeks to enforce the waiver of collateral attack in the plea agreements. The waiver provision in Petitioner's plea agreements expressly reserved his right to collaterally attack his convictions and sentence based on a claim of ineffective assistance of counsel or prosecutorial misconduct. Each plea agreement contains this specific language: “[T]he defendant in no way waives any ...


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