United States v. Sandford

293 F.Supp.3d 370

UNITED STATES of America, Plaintiff,

v.James Edward SANDFORD, III, Defendant.

15–CR–6101

United States District Court, W.D. New York.

Signed April 2, 2018

Brett A. Harvey, Frank H. Sherman, U.S. Attorney's Office, Rochester, NY, Scott Allen, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.

James Edward Sandford, III, Geneseo, NY, Pro Se.

James L. Riotto, II, Rochester, NY, Matthew D. Nafus, Scottsville, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

INTRODUCTION

On January 20, 2017, after a jury trial, defendant James Edward Sandford, III, was convicted on three counts of a fourteen-count indictment. The jury was unable to reach a verdict on the other eleven counts, as to which the Court declared a mistrial. Defendant was later sentenced on the counts of conviction, and a retrial of the open counts is currently scheduled for June 18, 2018.

Defendant has appealed from his conviction and sentence to the Court of Appeals. In this Court, he has also moved, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, for certain relief as to those counts.

The government has moved in the Court to defer the retrial of the open counts until after defendant's pending appeal is decided. Defendant opposes that motion.

FACTUAL BACKGROUND

Defendant was charged in an indictment with various narcotics and firearms offenses. At trial, defendant was represented by appointed counsel.

The jury returned a verdict of guilty on three of the fourteen counts in the indictment: Counts 12 and 13, which relate to firearms offenses, and Count 14, which charges witness tampering. The eleven counts on which the jury was deadlocked all relate to drug offenses. As stated, the Court declared a mistrial as to those counts.

On May 19, 2017, the United State Probation Office ("USPO") filed a presentence report ("PSR") which, inter alia , put defendant's range under the United States Sentencing Guidelines at 360 to 480 months' imprisonment. (Dkt. # 204.) That calculation was considerably higher than it might otherwise have been, because the USPO relied on the "cross-referencing" provision of U.S.S.G. § 2K2.1(c), which essentially boosts the guideline range if the defendant used or possessed a firearm in connection with the commission of another offense. The USPO found this provision applicable on the ground that defendant had used or possessed a firearm in connection with his commission of the drug offenses.

Through counsel, defendant filed objections to the PSR on June 16, 2017. (Dkt. # 208.) The primary basis for defendant's objection to the PSR was that since he had not been convicted on the drug charges, it was improper for the USPO to use the conduct underlying the pending drug charges to increase his sentencing range.

On July 27, 2017, the Court held a status conference, at which defendant read into the record a statement that he had prepared (which has since been filed as Dkt. # 219), principally concerning his dissatisfaction with his then-attorney, Matthew Nafus ("Nafus").

Defendant stated that prior to trial, the government had "offered a plea deal of 7 years," which defendant rejected, because Nafus had assured him that the Court "would not give [defendant] more than 5 or 6 years AFTER trial." (Dkt. # 219 at 1.) Nafus allegedly based that assertion on his estimate of defendant's guideline range. Defendant stated that he was shocked when he saw the PSR, and that had he known that he would be facing a term of 360 to 480 months, he would have taken the government's plea offer. Defendant asked the Court to appoint him a new lawyer.

On August 1, 2017, the Court met with counsel for both sides, concerning plaintiff's request. The Court relieved Nafus from further representation of plaintiff, and assigned plaintiff a new attorney, James Riotto II. (Dkt. # 220.) The Court also gave defendant until September 15, 2017 to file any motions for pre-sentence relief.

By letter dated September 15, 2017, Riotto informed the Court that "[t]he Defendant will not be filing a motion with the Court at this time," and that it was Riotto's "opinion and belief that any relief sought by the Defendant is not ripe and unavailable to him this stage of the proceedings." (Dkt. # 228.)

In a letter to the Court dated September 19, 2017, defendant expressed his disagreement with Riotto's opinion concerning the unavailability of relief, and requested leave to proceed pro se. Defendant stated that he intended to file a pro se motion for relief under Rule 33, which provides in part that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Defendant stated that his motion would be based on ineffective assistance of counsel during plea negotiations. (Dkt. # 230.)

At a proceeding on September 28, 2017, the Court granted defendant's motion to proceed pro se , but directed that Riotto remain on the case as stand-by counsel. The Court gave defendant additional time to file a Rule 33 motion. In addition, the Court ruled that Nafus's obligation as prior counsel to maintain the confidentiality of statements between him and defendant was waived by virtue of defendant's challenge to the effectiveness of Nafus's representation, insofar as such statements might relate to the subject matter presented by defendant's Rule 33 motion. (Dkt. # 232.)

Defendant filed his Rule 33 motion on October 24, 2017. In his motion, defendant alleges that at one point prior to trial, the government made a plea offer of 70 to 87 months imprisonment. (Dkt. # 235–1 at 3.) Defendant states that he rejected that offer based on Nafus's repeated assurances that defendant was looking at no more than five to six years, even if he were convicted at trial. Id. at 2.

Defendant states that he was "shocked, worried and upset" when he saw the PSR's 360–480 month guideline calculation. He contends that had he known that he could be facing a sentence of that magnitude, he would have accepted the government's earlier plea offer. As defendant puts it, "[t]he crux of [his] argument is that [he] received a substantially more excessive sentence than [he] should have received were it not for [his] attorneys [sic] gross miscalculations and absolute ineffectiveness." Dkt. # 269 at 2.

With respect to the relief sought, defendant states that he "is not specifically asking for a new trial, but is asking that the Court grant him relief that ‘neutralizes the taint’ of the Sixth Amendment violation." (Dkt. # 235–1 at 1–2.) He goes on to explain that he is asking "that the Court grant him relief by ordering specific performance" of the government's prior plea offer. Id. at 3.

The government responded to defendant's motion on November 14, 2017. (Dkt. # 239.) In its response, the government stated that it had indeed offered a plea deal involving a guideline range of 70 to 87 months, id. at 2, but that Sandford rejected that offer. The government also asserted that defendant's motion was premature, because he had not yet been sentenced. The government argued that even if defendant could show that his trial counsel's performance was deficient (which the government does not concede), defendant could not, at that point, show prejudice (an essential requirement to establish ineffective assistance of counsel), because it was not yet known what sentence the Court would impose on the counts of conviction. In other words, the parade of horribles raised by defendant might not come to pass.

On November 20, 2017, the Court met with the parties and announced its intention to proceed with sentencing on December 5, and to address defendant's Rule 33 motion later. (Dkt. # 245.) At defendant's request, the sentencing date was later adjourned to January 4, 2018 (Dkt. # 253), but the Court essentially agreed with the government's position that the Rule 33 motion could not properly be addressed until after sentencing.

On January 29, 2018, the Court issued a judgment sentencing defendant on the three counts of conviction, principally to a term of imprisonment of 156 months, i.e. , 13 years. (Dkt. # 265.) That was well below the advisory range set forth in the PSR, but greater than the range that had been offered by the government prior to trial. In a lengthy proceeding, the Court set forth its reasons for its Guideline calculation and the basis for its upward departure.

On January 30, 2018, defendant filed a notice of appeal (Dkt. # 267) from this Court's judgment and sentence. At that point, plaintiff was proceeding pro se , his fifth attorney (who was not his trial attorney, but who had been appointed as "stand-by" counsel), having been relieved by this Court that same day. Defendant has disagreed with and challenged each of his numerous appointed lawyers. Defendant's appeal is currently pending before the Second Circuit.

The Court had set a trial date of June 18, 2018, on the drug counts. On February 22, 2018, the parties met before Magistrate Judge Marian W. Payson, who was assigned to handle pretrial matters in this case. On that occasion, Judge Payson appointed new counsel for plaintiff (his sixth), and excluded time under the Speedy Trial Act, in the interest of justice, from that date to the scheduled trial date.

On February 28, 2018, the government filed a motion (Dkt. # 274) for an order deferring the defendant's retrial on the drug counts until after the appeal of the counts of conviction is decided. In its motion papers, the government represents that it "does not intend to retry the defendant on the drug counts if the United States Court of Appeals for the Second Circuit affirms the judgment and sentence on appeal." Dkt. # 274 at 3.

The government "further requests that the Court exclude the time from the Speedy Trial Act clock as to the drug counts in the interest of justice pursuant to 18 U.S.C. § 3161(h)(7)(A)." That section provides for an exclusion when the district judge concludes, based on specific findings, "that the ends of...