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U.S. v. WEAVER

June 7, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
GERALD W. WEAVER, II, DEFENDANT.



The opinion of the court was delivered by: Thomas F. Hogan, District Judge.

MEMORANDUM OPINION

Pending before the Court is defendant's Motion to Set Aside, Vacate, and Reverse Judgment of Conviction, pursuant to 28 U.S.C. § 2255. Upon careful consideration of the briefs, the testimony presented at the four hearings held in this case, and the entire record herein, the Court will deny defendant's Motion in its entirety.

I. BACKGROUND

By a fourteen count indictment filed November 22, 1992, the Grand Jury charged defendant Gerald Weaver II ("Weaver") with Obstruction of Justice, in violation of 18 U.S.C. § 1503; Tampering with a Witness, in violation of 18 U.S.C. § 1512(b)(3); Conspiracy to Possess Cocaine, in violation of 21 U.S.C. § 846; nine counts of Possession of Cocaine, in violation of 21 U.S.C. § 844; Distribution of Cocaine, in violation of 21 U.S.C. § 841; and Conspiracy to Commit Wire Fraud, in violation of 18 U.S.C. § 371.

On February 16, 1993, the Grand Jury returned a twenty-one count superseding indictment charging the original counts, as well as nine additional counts of Distribution of Cocaine, in violation of 21 U.S.C. § 841.*fn1

On March 31, 1993, Weaver entered guilty pleas before Judge Norma Holloway Johnson to three counts of the indictment: conspiracy to distribute a controlled substance, distribution of a controlled substance, and obstruction of justice.*fn2 His plea agreement provided:

Within one year of the imposition of sentence, the United States Attorney may review the timeliness, nature, extent, completeness, accuracy, truthfulness, assistance, and testimony of Gerald W. Weaver II. If the United States Attorney determines Gerald W. Weaver II has provided substantial assistance in the investigation or prosecution of other persons, the United States Attorney may, in his discretion, file motions under Title 18, United States Code, Section 3553(e), and Rule 35(b), Federal Rules of Criminal Procedure advising the District Court of the assistance to law enforcement authorities. Gerald W. Weaver II has no right to compel or require that the United States Attorney will file such a motion.

Plea Agreement at ¶ 14.

Consistent with the plea agreement, Weaver was interviewed in the United States Attorneys' Office on March 29, 1993, and April 29, 1993.*fn3 Three months later, on June 30, 1993, after a sentencing hearing in which the Court awarded a two-level reduction in the offense level for acceptance of responsibility, defendant was sentenced to a period of twenty-four months confinement on each count, to be served concurrently, followed by concurrent terms of thirty-six months supervised release.*fn4

On July 28, 1993, Mundy wrote to the United States Attorney asking whether a decision on submitting a Motion for Reduction of Sentence had been made, and in the event that a decision had not been reached, requesting a delay in Weaver's surrender date.*fn5 On August 5, 1993, Assistant United States Attorney Thomas Motley ("Motley") denied Mundy's requests and advised that,

"[a]s of this time, the information has not provided substantial assistance in the prosecution of another person who has committed an offense."*fn6

On August 16, 1993, Weaver surrendered to the Bureau of Prisons.

On May 31, 1994, Congressman Daniel Rostenkowski ("Rostenkowski") was indicted. On July 6, 1994, Mundy entered an appearance on behalf of Rostenkowski. The Government immediately brought this potential conflict of interest to the attention of the Court, but represented to the Court that the government believed it could resolve this issue directly with Mundy, without the Court's assistance. On October 16, 1994, the government, unable to resolve the issue with Mundy directly, filed in the Rostenkowski action a Motion to Disqualify Defense Counsel Based Upon Conflicts of Interest. See Gov't Opp., Exhibit 1. Mundy passed away before the Court had a chance to rule upon the government's Motion, and the Motion was subsequently dismissed as moot.

On October 18, 1994, Congressman Kolter was indicted. On November 14, 1994, the government filed a Motion to Reduce Sentence, pursuant to Fed.R.Crim.P. 35, which included information for in camera review.*fn7 In a written order filed on December 21, 1994, Judge Johnson granted the government's Motion and reduced defendant's sentence to "time served," followed by the original period of supervised release, thirty-six months.*fn8

On February 24, 1997, Weaver filed the instant Motion to Set Aside, Vacate, and Reverse Conviction, pursuant to 28 U.S.C. § 2255. On August 11, 1997, after Judge Johnson recused herself and Weaver's case was reassigned*fn9, Judge Urbina stayed the supervised release portion of the defendant's sentence. On September 11, 1997, the United States moved for a formal Court Ruling on the Waiver of the Attorney-Client Privilege with regard to Canan and O'Toole. On September 18, 1997, the government filed an Opposition to Defendant's Motion to Set Aside, Vacate, and Reverse Judgment of Conviction, addressing the Mundy representation.

On September 24, 1997 and again on September 30, 1997, Weaver filed motions for additional time to file supplemental pleadings. These motions were unopposed and were granted by Judge Urbina on October 3, 1997. On October 27, 1997, Weaver filed his reply to the government's opposition to his Motion to Set Aside, Vacate, and Reverse Judgment of Conviction. Also on that date, Weaver petitioned to proceed pro se in filing another reply to the government's opposition. On November 4, 1997, Weaver moved to dismiss his court-appointed attorney and to proceed pro se. On January 20, 1998, Judge Urbina granted the motion of John Anthony Briley, Jr., Weaver's court-appointed attorney, to withdraw as counsel.

Between March 9 and March 12, 1998, Weaver filed three supplements to his § 2255 Motion. On May 28, 1998, Weaver filed a motion for default judgment and order reversing his conviction for failure of the Court to hold a "prompt hearing." On June 8, 1998, Weaver filed for sanctions against the opposing attorney. On June 16, 1998, Judge Urbina granted the government's motion to waive Weaver's attorney-client privilege. On June 18, 1998, the Court received the government's response to the claims regarding O'Toole and Canan in defendant's § 2255 motion.

On June 22, 1998, Weaver moved for Reconsideration of the Ruling on the Waiver of the Attorney-Client Privilege and also for Default Judgment. On August 17, 1998, Weaver filed a Notice of Appeal from Judge Urbina's August 6, 1998 order denying Weaver's motion for reconsideration of the Court's ruling on the government's motion to waive Weaver's attorney-client privilege. Subsequently, Weaver petitioned for Writ of Mandamus in the United States Court of Appeals for the District of Columbia. On September 11, 1998, the Court of ...


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