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United States v. Read-Forbes

United States District Court, D. Kansas

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MENDY READ-FORBES, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On April 23, 2015, the Court sentenced defendant to 240 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #354), defendant's Motion For [Rule] 41g Return Of Evidence And Property (Doc. #355), defendant's Motion For Appointment Of Attorney (Doc. #356) and defendant's Motion To Reassign Case Number 12-20099 To Judge Robinson (Doc. #357), all filed September 3, 2019. For reasons stated below, the Court dismisses defendant's Section 2255 and Rule 41(g) motions for lack of jurisdiction, denies a certificate of appealability and overrules defendant's remaining motions.

         Factual Background

         On January 23, 2013, a grand jury returned an indictment which charged defendant with conspiracy to commit money laundering, 16 counts of laundering the proceeds of drug transactions, conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. See Superseding Indictment (Doc. #78). On April 21, 2014, pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P., defendant pled guilty to one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). Plea Agreement (Doc. #132). The agreement proposed a sentencing range of 84 to 180 months in prison. See id., ¶ 3. Under the agreement, the government stipulated that at sentencing, it would dismiss the remaining 18 counts of the superseding indictment and also dismiss Case Number 13-20041-01.[1]See id., ¶ 1.

         Defendant had a total offense level of 37 with a criminal history category I, for a guideline range of 210 to 240 months.[2] See Transcript (Doc. #236) at 5; Presentence Investigation Report (Doc. #161) filed December 2, 2014, ¶¶ 187, 225-38. After hearing testimony and defendant's allocution, the Court rejected the plea agreement.

         On March 18, 2015, defendant again pled guilty to one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). Plea Agreement (Doc. #204). The revised agreement was not under Rule 11(c)(1)(C), but it included a joint recommendation to sentence defendant to 210 months, the low end of the agreed guideline range of 210 to 240 months. See id., ¶ 3. On April 23, 2015, the Court sentenced defendant to 240 months.

         Defendant appealed. On August 31, 2015, the Tenth Circuit granted the government's motion to enforce the appeal waiver in the plea agreement and dismissed the appeal. See Order And Judgment (Doc. #254).

         On September 24, 2015, defendant filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 (Doc. #255). The Court subsequently granted defendant leave to file an amended Section 2255 motion which asserted a single claim that counsel provided ineffective assistance. See Amended Motion To Vacate, Set Aside Or Correct A Sentence Under 28 U.S.C. § 2255 (Doc. #312). On August 30, 2017, the Court overruled defendant's motion to vacate. See Memorandum And Order (Doc. #339). Defendant did not appeal.

         In 2018, in the Tenth Circuit Court of Appeals, defendant sought leave to file a successive Section 2255 motion. Defendant asserted that her conviction should be vacated based on “newly discovered evidence that, while she was detained at the [Corrections Corporation of America (“CCA”) detention facility in Leavenworth, ] Kansas, her telephone conversations with her attorney and other privileged attorney-client communications appear to have been recorded and/or provided to the prosecution.” Order (Doc. #345) filed July 27, 2018 at 2. The Tenth Circuit denied defendant's request for leave to file a successive Section 2255 motion, stating as follows:

[Defendant] argues that the alleged illicit recordings “likely affected her case” and “potentially [involved] a structural error that has fatally flawed her prosecution.” Mot. for Authorization (Proposed Filing) at 25, 26. But she fails to make a prima facie showing that this evidence, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [her] guilty of the offense.” 28 U.S.C. § 2255(h)(2) (emphasis added). Absent such a showing, we cannot authorize a second-or-successive motion under § 2255 based on new evidence.

Id.

         Earlier this year, the Honorable Julie A. Robinson made extensive findings in United States v. Black et al., D. Kan., No. 16-20032-JAR, which involved a broad challenge to the government's possession of soundless video recordings of attorney visitation rooms at the CCA detention facility in Leavenworth, and its possession and distribution of audio recordings of telephone calls between several detainees and their counsel. In relevant part, Chief Judge Robinson stated as follows:

Oakley, one of the prosecutors in the Black case, Wamble [another prosecutor], and IRS Special Agent Henry Herron encountered a call between defendant Mendy Forbes and criminal defense attorney Kurt Kerns, who was not then Forbes' counsel of record. Oakley acknowledged in an email exchange with Wamble and agents that Forbes and Kerns could have been engaged in a protected attorney-client communication, even though he was not yet counsel of record. Although Oakley did not listen to the substance of the call, neither he nor Wamble notified counsel; nor did they divest the USAO's possession of those calls until January 7, 2019.
Nevertheless, the AUSAs proceeded to request Forbes' calls by email request on five subsequent occasions during 2015 and 2016 and did not notify Kerns or exclude his phone number or the phone numbers of Forbes' two counsel of record, Deb Vermillion and Shazzie Naseem. In ...

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