Sperow v. USA

Filing 44

ORDER. The Clerk of the Court shall file this Order in both Case No. 1:06-cr-126-BLW and Case No. 1:12-cv-00158-BLW. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Case No.
Plaintiff,
v.

1:06-cr-00126-BLW
1:12-cv-00158-BLW

ORDER

GREGORY FRANK SPEROW,
Defendant.

Pending before the Court in Case No. 1:06-cr-00126-BLW is Gregory Frank
Sperow’s (“Sperow”) Motion to Unseal and Make Documents Available (Dkt. 1197).
Having reviewed the Motion, and considered the Government’s Response (Dkt. 1198)
and Sperow’s Reply (Dkt. 1199), the Court enters the following Order granting the
Motion in part. Because Sperow requests the documents in connection with his pending
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Dkt. 1 in
Case No. 1:12-cv-00158-BLW), the Court will direct that this Order be filed in that case
as well.
ORDER - 1

1.

Background
Sperow moves for an order in his criminal case to unseal numerous documents

referenced in the caption to his Motion1 and make them available to him because he
deems them “necessary to establish whether the due process right to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner, a constitutional
protection under the Fifth and Fourteenth Amendments, has been violated in the instant
case.” He further states that they are “necessary and proper” to the preparation of his
§ 2255 brief and that “the lack thereof will negatively impact is ability to properly reply
to the Government’s response.” One of the requested documents is a hearing transcript.
The Court presumes he is requesting the documents at government expense given his in
forma pauperis status. Only a handful of the requested documents are actually sealed.
The Government opposes the request for what it approximates are “150 docket
entries, of which 19 are sealed documents and may contain ex parte communications
with the Court” and because “[t]he remaining 130-plus documents pertain to codefendants in this case.” Response at 1. The Government also objects because the “key
issue” raised by the Government in response to the pending § 2255 Motion is waiver and
the requested documents do not appear to relate to that issue. Finally, it objects on the
grounds that the Motion further delays resolution of the § 2255 Motion.

1

Sperow seeks Dkt. Nos. 1-20; 33-38; 41-47; 49-97; 99-104; 106; 108-109; 111-122; 124-125;
128-131; 133-134; 136-139; 141; 143-145; 157-158; 160-166; 168-171; 173; 176-179; 187-188; 190-192;
194; 196-200; 202-205; and 213-214.
ORDER - 2

In his Reply, Sperow appears to limit his request to Dkts. 1-20. He states that he
has found gaps in the Docket Report and that he feels the sealed documents are “pertinent
to his defense.” He cites as an example “a missing Temporary Restraining Order
(“TRO”) whereby the mandatory fourteen (14) day period pursuant to Rule 65(b)(2) of
the Federal Rules of Civil Procedure was violated.” He feels “[t]his would show further
evidence of ineffective assistance of counsel . . . .”
Despite Sperow’s now limited request, and because he requests “the right to
reserve the unsealing of the other noted document entry numbers as may be pertinent to
his defense,” the Court will address the entire initial request.
2.

Legal Standards
After a § 2255 motion is filed, transcripts may be furnished to a prisoner at

Government expense (1) if the prisoner is entitled to proceed in forma pauperis, and (2)
the Court certifies that the claim raised in the § 2255 proceeding is not frivolous and the
transcript is needed to decide the motion. See 28 U.S.C. § 753(f).

A court is required to furnish an indigent prisoner without cost “certified copies of
such documents or parts of the record on file . . . as may be required by order of the
judge” before whom a habeas petition is pending. 28 U.S.C. § 2250.
3.

Discussion
Taken together, the gist of the above-cited authority is that the prisoner must

provide the Court with sufficient information on which it can make a determination that
the requested transcripts or documents are necessary to decide the § 2255 Motion or are
ORDER - 3

relevant to the issues raised therein. If the Court makes that determination, it is required
to provide them to the prisoner without cost.
Sperow has asserted seventeen ineffective assistance of counsel claims in his
pending § 2255 Motion.2 The Government has responded to each of those claims on the
merits and also asserted waiver as a defense in its Response and Motion to Dismiss (Dkts.
26 and 27 in Case No. 1:12-cv-00158-BLW). Yet Sperow’s stated reasons in the
pending motion for requesting the documents are to establish an alleged due process
violation that was not raised in his § 2255 Motion and to assist in responding to the
Government’s Response to his § 2255 Motion. Although he refers in his Reply to
“further evidence of ineffective assistance of counsel,” Sperow does not specify the
claims or claims in his § 2255 Motion that the requested documents would support.
Even before receiving the Government’s Response, the Court conducted an
independent review of the documents sought by Sperow and concurs that they have no

2

The claims of ineffective assistance of counsel are as follows: failure to conduct any pretrial
investigation (Ground One), failure to move the Court to suppress specific evidence seized (Ground
Two), failure to move the Court to appoint a forensic accountant or to use his forensic accountant to
document the origin of his assets (Ground Three), failure to prepare for trial (Ground Four), failure to
challenge the money laundering counts pursuant to the Santos decision (Ground Five), failure to
investigate and prepare for sentencing (Ground Six), failure to challenge the Court’s reliance on factors
that increased the offense level under the Sentencing Guidelines (Ground Seven), failure to challenge the
marijuana amounts attributed to him (Ground Eight), failure to challenge the venue specific to the
methamphetamine charged in the predicate acts and attributed to him in the Indictment and the
Presentence Report (“PSR”) (Ground Nine), failure to timely object to the PSR (Ground Ten), failure to
notify the Court that the PSR was factually inaccurate and fundamentally defective (Ground Eleven),
failure to challenge the unwarranted sentence disparity between him and his co-Defendants (Ground
Thirteen), deficient performance at all stages of the proceeding (Ground Fourteen), failure to file a Notice
of Appeal of the Preliminary Order of Forfeiture (Ground Fifteen), failure to assert his speedy trial rights
(Ground Sixteen), and failure to notify the Court at sentencing that it did not properly credit him with
time served on a prior expired sentence and pre-trial credit (Ground Seventeen).
ORDER - 4

demonstrated relevance to his claims or defense of the Motion to Dismiss. The Court
will not identify and address each document. Rather, it will only address categories of
documents.
A.

Transcript

Sperow requests the transcript of a co-Defendant’s detention hearing (Dkt. 129).
The Court simply cannot find that the transcript “is needed to decide the motion” as
required by 28 U.S.C. § 753(f). The detention hearing only addressed the co-Defendant’s
suitability for release. The Court has conducted a word search of the transcript and found
no mention of Sperow during the hearing.
B.

Documents
(1)

Sealed

The large majority of the requested sealed documents are the Indictment,
Superseding Indictment, related arrest warrants, and motions and orders pertaining to
detention status of various co-Defendants. Others relate to cost requests from counsel for
certain co-Defendants. Two, Dkt. Nos. 178 and 179, are Sperow’s ex parte pro se
requests for expert witness funds. The remaining sealed documents are motions and
orders (one of which is the TRO to which Sperow refers) pertaining to assets of several
of the Defendants which were to be forfeited.
Specifically regarding Dkts. 1-20, the Court notes that Dkt. 1 is the Indictment
which is not relevant to any raised issues because Sperow pleaded guilty to the Second
Superseding Indictment (Dkt. 425). Dkts. 2-15 are arrest warrants for Sperow and
ORDER - 5

several co-Defendants and a Motion and Order to seal them and the Indictment. These
documents are not relevant to any pending issues. Dkts. 16-20 are the motion, supporting
affidavit, motion and order to seal, and the TRO (the “TRO documents”). The TRO was
issued in connection with the criminal forfeiture allegations in the Indictment. Any
challenge to a forfeiture order is not cognizable in a § 2255 proceeding. See United
States v. Kramer, 195 F.3d 1129 (9th Cir. 1999) (rejecting claim that restitution order
violated his due process rights and right to effective assistance of counsel because § 2255
is only available to prisoners seeking release from custody and not for challenging fines
or restitution orders). See also United States v. Finze, 428 Fed. Appx. 672 at *4 (9th Cir.
2011) (claim limited to constitutionality of a forfeiture order is not a cognizable § 2255
claim) (citing United States v. Thiele, 314 F.3d 399, 400 (9th Cir. 2002)); Thiele, id.
(whether or not the motion contained other claims seeking release from custody, claim of
ineffective assistance of counsel for failure to argue that defendant would be unable to
pay the restitution ordered was not cognizable); Mamone v. United States, 559 F.3d 1209,
1211 (11th Cir. 2009) (same). Because forfeiture challenges and related ineffective
assistance of counsel claims are not cognizable in a § 2255 proceeding, the TRO
documents are likewise not relevant.
(2)

Unsealed

The large majority of unsealed documents requested by Sperow have no apparent
relevance to his claims of ineffective assistance of counsel given that they relate to
various co-Defendants and not to Sperow. They are notices of hearings, notices of
ORDER - 6

appearance of counsel, notices of appointment of counsel, substitutions of counsel,
minutes of arraignments, procedural orders, motions for detention, minutes of detention
hearings, orders setting conditions of release, motions for discovery, the Government’s
responses to discovery requests, arrest warrant returns, Rule 5(c)(3) returns for coDefendants arrested out of state, orders for interim payment to counsel, motions of a coDefendant challenging a subpoena and requesting discovery and orders regarding same,
various co-Defendant’s motions to vacate hearings and orders granting same, and pretrial
motions of various co-Defendants. Again, none of these documents pertain to Sperow or
the handling of his case. While this list is not exhaustive, the Court is confident that the
unsealed documents Sperow requests are not required for resolution of his ineffective
assistance of counsel claims.
CONCLUSION
In reaching its decision, the Court is cognizant of the fact that Sperow must
respond not only to the Government’s waiver argument but also to its merits arguments.
Nevertheless, with the exception of sealed documents at Dkt. Nos. 178 and 179, the
Court finds that neither the transcript nor the other requested sealed or unsealed
documents are relevant to or are needed to advance Sperow’s claims of ineffective
assistance of counsel or to respond to the Government’s Motion to Dismiss. The Court
will grant the motion to unseal as to those two documents for the limited purpose of
providing them to Sperow, together with the Ex Parte Order (Dkt. 186) addressing those
motions, given their potential relevance to the claim of ineffective assistance of counsel
ORDER - 7

for failure to request a forensic accountant (Ground Three). If Sperow ultimately relies
on those documents in his response, they will be made available to the Government as
well.
As to the remaining documents, Sperow has not made the requisite showing that
they should be provided at government cost. “In forma pauperis status does not entitle a
prisoner to free copies of documents from the existing Court record.” Armstead v. United
States, 2012 WL 380280 (W.D.Wash. Feb. 6, 2012). Sperow is free, however, to obtain
copies of the requested documents by submitting a request to the Clerk’s Office together
with the fee for copying the documents.3 Id. However, because of the apparent
irrelevance of the documents, the Court will not further delay the proceedings in order for
Sperow to obtain them should he decide to do so at his expense.
It may be that Sperow is seeking the documents to support additional claims he
would like to advance. However, the statute of limitations set forth in 28 U.S.C.
§ 2255(f) has run on any new claims as noted in the Memorandum Decision and Order
denying Sperow’s prior Motion to Amend. See Mem. Dec. and Order, Dkt. 11 in Case
No. 1:12-cv-00158-BLW and the Memorandum Decision and Order denying his Motion
to Supplement to be filed concurrently herewith in Case No. 1:12-cv-00158-BLW.
ORDER
IT IS ORDERED:

3

Any request for a sealed document must be made by a properly supported motion.

ORDER - 8

1.

That Sperow’s Motion to Unseal andn Make Documents Available (Dkt.
1197) is GRANTED IN PART to the extent that Dkt. Nos. 178, 179, and
186 shall be unsealed for the limited purpose of mailing to Sperow. IT IS
DENIED IN ALL OTHER RESPECTS.

2.

The Clerk of Court shall file this Order in both Case No. 1:06-cr-126-BLW
and Case No. 1:12-cv-00158-BLW.

DATED: June 20, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

ORDER - 9