United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
September 30, 2015, the Court sentenced defendant to 189
months in prison and imposed a fine of $16, 985, 250. See
Judgment In A Criminal Case (Doc. #2076). On April 4,
2017, the Tenth Circuit affirmed defendant's convictions
and the sentence of imprisonment, but reversed and remanded
so that this Court could reconsider the amount of the fine.
United States v. Los Dahda, 853 F.3d 1101, 1118
(10th Cir. 2017), aff'd, 138 S.Ct. 1491 (2018).
This Court later expanded the scope of resentencing to
include the drug quantity attributable to defendant. See
Memorandum And Order (Doc. #2620) filed May 22, 2019.
This matter is before the Court on defendant's Motion
For Jencks Act Material Pursuant To Fed. R. Crim. P.
26.2(f)(1) And (2) (Doc. #2657) filed August 16, 2019.
For reasons stated below, the Court overrules defendant's
previously sought access to grand jury transcripts.
Motion For Disclosure Of Grand Jury Transcripts
(Doc. #2567) filed January 28, 2019. At a hearing on May 15,
2019, the Court overruled defendant's request because (1)
he had not shown a particularized need for the transcripts
and (2) any motion to dismiss under Rule 12(b)(3), Fed. R.
Crim. P., would be untimely, without merit and immaterial to
his sentence. See Transcript Of Motions Hearing
(Doc. #2617) at 29-30 (overruling motion for reasons stated
by government in response); Government's Response To
Defendant's Motion For Disclosure Of Grand Jury
Transcripts (Doc. #2570) filed February 11, 2019, at 1,
18, 2019, the Court overruled defendant's Motion To
Reconsider Disclosure Of Grand Jury Transcripts (Doc.
#2641) filed July 2, 2019. The Court overruled
defendant's motion to reconsider because he did not
present “new evidence” to support his motion to
reconsider and his arguments simply rehashed the same
arguments that the Court had rejected.
now seeks grand jury transcripts, recordings of proffers and
any other material required to be disclosed under the Jencks
Act, 18 U.S.C. § 3500(b). He has not shown that Jencks
Act materials relate to the limited sentencing issues on drug
quantity and the amount of a fine. The law of the case
doctrine posits that when a court decides a rule of law, that
decision “should continue to govern the same issues in
subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983); see United
States v. West, 646 F.3d 745, 748 (10th Cir. 2011) (law
of case doctrine precludes relitigation of legal ruling in
case once it has been decided). The doctrine seeks to
preserve the finality of judgments, prevent continued
re-argument of issues already decided, and preserve scarce
judicial resources. Procter & Gamble Co. v.
Haugen, 317 F.3d 1121, 1132-33 (10th Cir. 2003). The
doctrine has particular relevance following remand from a
court of appeals. Huffman v. Saul Holdings Ltd.
P'ship, 262 F.3d 1128, 1132 (10th Cir. 2001).
“[W]hen a case is appealed and remanded, the decision
of the appellate court establishes the law of the case and
ordinarily will be followed by both the trial court on remand
and the appellate court in any subsequent appeal.”
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th
important corollary to the law of the case doctrine, known as
the “mandate rule, ” requires a district court to
comply strictly with the mandate rendered by the reviewing
court. See Ute Indian Tribe of the Uintah & Ouray
Reservation v. Utah, 114 F.3d 1513, 1520-21 (10th Cir.
1997). Where the appellate court does not specifically limit
the scope of the remand, a district court generally has
discretion to expand resentencing beyond the specific
sentencing error underlying the reversal. United States
v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996) (following
remand from appellate court for resentencing, district court
“possesses the inherent discretionary power to expand
the scope of the resentencing beyond the issue that resulted
in the reversal and vacation of sentence”). The mandate
rule is a discretion-guiding rule of policy and practice that
is subject to exception and some flexibility in exceptional
circumstances. Id. at 1234-35 (citing United
States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).
Examples of “exceptional circumstances” which
warrant an exception to the mandate rule include (1) a
dramatic change in controlling legal authority; (2)
significant new evidence that was not obtainable earlier
through due diligence but has since come to light; or (3) a
blatant error from the prior sentencing decision that would
result in serious injustice if uncorrected. Id.
(citing United States v. Bell, 5 F.3d 64, 67 (4th
has not shown how any Jencks Act materials relate to the
remaining sentencing issues or that any exception to the
mandate rule applies. Therefore, the Court overrules
defendant's motion for materials under the Jencks Act. In
addition, as explained below, defendant's motion is
the Jencks Act, “[a]fter a witness called by the United
States has testified on direct examination, the court shall,
on motion of the defendant, order the United States to
produce any statement (as hereinafter defined) of the witness
in the possession of the United States which relates to the
subject matter as to which the witness has testified.”
18 U.S.C. § 3500(b). Rule 26.2(a) of the Federal Rules
of Criminal Procedure also provides that “[a]fter a
witness other than the defendant has testified on direct
examination, the court, on motion of a party who did not call
the witness, must order an attorney for the government or the
defendant and the defendant's attorney to produce, for
the examination and use of the moving party, any statement of
the witness that is in their possession and that relates to
the subject matter of the witness's testimony.”
Fed. R. Crim. P. 26.2(a).
request for material under the Jencks Act is untimely because
he did not renew it before the conclusion of trial. See
United States v. Carter, 613 F.2d 256, 261 (10th Cir.
1979) (Jencks Act protects rights to confront accusers by
compelling production of statements useful for impeachment of
government witness; post-trial motion for such material
untimely); United States v. Clay, 495 F.2d 700,
709-10 (7th Cir. 1974) (because Jencks statement could only
be properly used to impeach witness testimony, motion must be
made before conclusion of trial). To the extent that
defendant argues that he requested the materials but the
government did not fully comply with its disclosure
obligation, he should have made a contemporaneous objection
and raised the issue on direct appeal. Defendant apparently
seeks the materials now to support a motion for a new trial.
See Motion For Jencks Act Material Pursuant To Fed. R.
Crim. P. 26.2(f)(1) And (2) (Doc. #2657) at 5
(“Should the trial court determine that the government
was required to deliver the statements to the
defendant-appellant, it should, in that event, vacate the
judgment of conviction and give the petitioner a new
trial.”); id. at 6 (“A new trial may be
the appropriate sanction for statutory
non-compliance.”); Los Dahda's Reply To The
Government's Response To Motion For Jencks Act
Material (Doc. #2678) at 6 (“Timely production of
the Dahda grand jury testimony most likely would have
affected the outcome of his trial.”). A motion for a
new trial grounded on newly discovered evidence must be filed
within three years after the verdict or finding of guilty.
Fed. R. Crim. P. 33(b)(1). A motion for a new trial grounded
on any reason other than newly discovered evidence must be
filed within 14 days after the verdict or finding of guilty.
Fed. R. Crim. P. 33(b)(2). Here, a motion for a new trial
would be untimely under either subsection because the verdict
was entered more than five years ago. See Verdict
(Doc. #1433) filed July 23, 2014. Accordingly, at this stage,
defendant has no need for Jencks Act materials to support a
motion for a new trial.
IS THEREFORE ORDERED that defendant's Motion
For Jencks Act Material Pursuant To Fed. R. Crim. P.
26.2(f)(1) And (2) (Doc. ...