Hohn v. USA ***DO NOT FILE IN THIS CASE - All Filings to be Made in Criminal Case 2:12-cr-20003-CM-3 ONLY***
Filing
64
MEMORANDUM AND ORDER denying 58 Motion to Supplement Motion 2255. Signed by Chief District Judge Julie A. Robinson on 9/20/2021. (hw)
Case 2:19-cv-02082-JAR-JPO Document 64 Filed 09/20/21 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
In re: CCA Recordings 2255 Litigation,
Petitioners,
v.
Case No. 19-cv-2491-JAR-JPO
(This Document Relates to United States v.
Steven M. Hohn, Case No. 12-cr-20003JAR-3, Steven M. Hohn v. United States,
Case No. 19-cv-2082-JAR-JPO)
United States of America,
Respondent.
______________________________________________________________________________
MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Steven Hohn’s Motion for Leave to
Supplement (Doc. 1010 in 19-2491-JAR-JPO and Doc. 58 in 19-2082-JAR-JPO) his 28 U.S.C.
§ 2255 motion pursuant to Fed. R. Civ. P. 15. Hohn seeks to add a claim alleging that the
Assistant United States Attorney (“AUSA”) who prosecuted him violated his due process rights
under Brady v. Maryland1 and Giglio v. United States.2 The government objects to Hohn’s
motion as untimely, unauthorized, and futile. For the reasons discussed in detail below, the
Court finds that Hohn’s motion is both timely and authorized, but denies his request as futile.
1
373 U.S. 83 (1963).
2
405 U.S. 150 (1972). Because Giglio error is a species of Brady error, Hohn refers to his proposed claim
as a Brady claim. Id. at 154.
Case 2:19-cv-02082-JAR-JPO Document 64 Filed 09/20/21 Page 2 of 27
I.
Background
Hohn was indicted on January 25, 2012, on drug and gun charges.3 He was detained at
Corrections Corporation of America (“CCA,” now CoreCivic) from January 27, 2012, to March
28, 2014.4 The investigation that led to Hohn’s arrest was led by Deputy Perry Williams in the
Johnson County, Kansas Sheriff’s Office. AUSA Terra Morehead prosecuted Hohn. The case
was assigned to Judge Carlos Murguia, who presided over pretrial, trial, sentencing, and posttrial matters until February 21, 2020, when the criminal case was reassigned to the undersigned
after Judge Murguia resigned from the bench.5
On May 22, 2012, Hohn was charged in a multi-defendant Second Superseding
Indictment with conspiracy to distribute and possess with intent to distribute 50 grams or more of
methamphetamine (Count 1); possession of a firearm by a user of controlled substances (Counts
13–15); and possession of an unregistered short-barreled shotgun (Count 16).6 Many of the
conspirators reached plea agreements with the government and testified against Hohn and his codefendant, Michael Redifer, at their trial.
Pretrial Threats and Requests for CCA Calls
The government, via AUSA Morehead or one of her agents, obtained three sets of Hohn’s
phone calls from CCA during the course of his prosecution.
3
Doc. 18. Unless otherwise specified, citations prefaced with “Doc.” refer to filings and docket entries in
the underlying criminal case, No. 12-cr-20003-JAR-3. Citations prefaced with “CCA Rec. Lit. Doc.” refer to filings
and entries in this consolidated case, No. 19-cv-2491-JAR-JPO.
4
Hohn v. United States, No. 19-2082-JAR-JPO, Doc. 3.
5
Doc. 740.
6
Doc. 84.
2
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a)
February 2012
In February 2012, Deputy Williams obtained Hohn’s CCA calls as part of an
investigation into a possible threat to a government witness.7 Williams talked to an individual
who received a threat from Jeremy Stiers that the individual suspected was made or directed by
Hohn. Williams listened to the calls and was not able to ascertain that there was any such phone
call made by Hohn.8
One of the calls Deputy Williams listened to was a February 3, 2012 call between Hohn
and his sister Tammy, who was taking care of Hohn’s two daughters.9 On the call, Hohn asserts
that his wife, Amanda Hohn, “is part of why I’m sitting in prison.”10 He then says that he
intends to find out what part she played in him being arrested, telling his sister, “It’s okay,
because I’m going to take this shit to trial, and when I get there and I get my discovery and I find
out all the people that are participants in why I’m sitting in prison, I guess I’ll know then, won’t
I?”11
On March 8, 2012, Deputy Williams sent an email to AUSA Morehead after he obtained
and processed Hohn’s February 2012 CCA calls.12 The subject of the email is “Death Threat,”
and states in part: “After listening to 8 hours of telephone calls involving Steven HOHN and
Jessica NEWCOME from CCA and interviewing the CI and the supposed suspect Jeremy
7
Hohn, 19-2082-JAR-JPO, Doc. 60 at 374. The transcripts of the August 9 and 10, 2021 evidentiary
hearing consist of 2 volumes found at Docs. 59 and 60 in Hohn, 19-2082-JAR-JPO, and collectively consist of 397
sequentially paginated pages. For convenience, the Court cites to these documents by ECF docket entry number,
followed by a reference to the page number in the transcript that appears in the upper right corner of each page.
8
Id.
9
Gov. Ex. 1034. All citations to exhibits refer to exhibits that were provisionally admitted at Hohn’s
August 9 and 10, 2021 evidentiary hearing.
10
Id. at 7.
11
Id.
12
Gov. Ex. 835.
3
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STIERS, we believe we have dispelled any threats coming from HOHN or NEWCOME.”13 The
email clarifies that the death threat referenced was made by Stiers: that “STIERS had made
contact with the CI on his own”; that Williams “came to [the] conclusion and STIERS also stated
he was not directed by anyone to contact the CI”; that “STIERS was told repeatedly to let this
go”; and that “STIERS stated he understood and stated we would not hear about him anymore
involving this investigation.”14
The following day, March 9, 2012, one of Hohn’s co-defendants, Robert Baitey, told
Deputy Williams that Hohn was concerned that another co-defendant, Michael Quick, was
cooperating with the government because Quick had knowledge of a “possible murder” Hohn
had been involved in.15 Baitey told Williams that Hohn said “anyone who snitches on [him] he
will kill them when he gets out of prison.”16 Two weeks later, Baitey told Williams that Hohn
told him about putting a body into an appliance to get rid of it, and that Hohn said a woman who
had worn a wire “was going to end up in a trunk when he (Hohn) gets out.”17
b)
April 2012
On April 19, 2012, Quick told Deputy Williams about the disappearance and death of
Gregory Price, including details about Hohn’s role in Price’s disappearance.18 Quick told
Williams that he and Hohn were standing outside a residence when another co-defendant, Tracy
Rockers, told them that Price had died inside the residence; that Hohn was involved in deciding
not to call the police and instead wrap Price’s body in a tarp and put the body into a refrigerator;
13
Hohn Ex. 8.
14
Id.
15
Gov. Ex. 836 at 4, ¶ 16 (Mar. 9, 2012 Baitey proffer).
16
Id.
17
Gov. Ex. 839 at 5, ¶¶ 23, 25.
18
Gov. Ex. 1055 at 2–4, ¶¶ 18–31.
4
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that Hohn provided the tarp, helped wrap Price’s body in the tarp, and helped stuff the body into
the refrigerator; and that Hohn and Quick loaded the refrigerator in the back of Hohn’s truck and
dumped it on property located in De Soto, Kansas.19 Price’s body was recovered on that
property later that day.
On April 23, 2012, Williams had Agent Christopher Farkes, a deputy sheriff with the
Johnson County Sheriff’s Office, issue a subpoena to CCA for Hohn’s calls from April 19, 2012
to May 4, 2012.20 The subpoena also requested CCA calls for co-defendants Rockers and Quick.
One of the calls obtained by Farkes was the April 23, 2012 call between Hohn and defense
counsel Campbell that is the subject of Hohn’s Sixth Amendment claim.
c)
May 2013
On May 24, 2013, during a break in Hohn’s trial, AUSA Morehead issued a subpoena for
his CCA calls, as well as co-defendant Michael Redifer’s, from May 13 to May 28, 2013.21
Morehead was concerned that Hohn had threatened or intimidated Casey Cross, a cooperating
government witness whose testimony changed at trial.22 The calls did not reveal any threats by
Hohn or Redifer.23
Sentencing Hearing
On June 5, 2013, after a ten-day trial, a jury found Hohn guilty on all charges.24 Based
on a total offense level of 42 and a criminal history category of I, the Presentence Investigation
Report (“PSR”) calculated Hohn’s advisory Guideline sentencing range at 360 months to life
19
Id.
20
Gov. Ex. 846.
21
Gov. Ex. 835
22
Hohn, 19-2082-JAR-JPO, Doc. 59 at 205–06.
23
Id. at 219.
24
Doc. 316.
5
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imprisonment.25 The PSR sets out in great detail findings related to the offense conduct, the
victim impact with respect to Kevin Weber, and threats to cooperators Hohn relayed to codefendants Baitey and Cook. Specifically, the PSR states that Hohn tied Weber up in Hohn’s
basement, burned him, and then split his head open for an outstanding drug debt owed to Hohn.26
The PSR also reports that Hohn, while detained at CCA, told co-defendant Baitey that when
Hohn got out of prison, he would kill anyone who snitched on him.27 It further reports that Hohn
made similar comments to co-defendant Cook about wanting kill co-defendant Quick and his
family for telling investigators about Hohn’s role in disposing of Price’s body.28
The PSR calculated the base offense level at 34, based on the quantity of drugs involved,
at least 1.5 kg. but less than 5 kg. of methamphetamine; a two-level increase for possession of a
dangerous firearm; and a two-level increase because the drugs were imported.29 Hohn also
received a two-level increase for use of violence and threats of violence during the course of his
offense of conviction;30 and a two-level increase because Weber was physically restrained in the
course of the offense.31
Hohn raised eighteen objections to the PSR, including the two-level increases related to
violence, arguing that the threat of violence towards and restraint of Weber was in retaliation for
Weber’s injury to a woman and not to further the offense for which Hohn was convicted.32 The
25
Doc. 442 ¶ 138.
26
Id. ¶¶ 31, 37.
27
Id. ¶ 87.
28
Id. ¶ 86. See Gov. Ex. 862 (Sept. 13, 2012 Cook proffer).
29
Doc. 442 ¶¶ 89, 90, 92.
30
Id. ¶ 91; U.S.S.G. § 2D1.1(b)(2).
31
Doc. 442 ¶ 93.
32
Id. ¶¶ 213, 225.
6
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government and the United States Probation Office took the position that both increases were
supported by the preponderance of the evidence as numerous people testified that the injuries
inflicted upon Weber were related to an unpaid drug debt, that there was testimony that Hohn
was involved in a similar incident involving another individual, and that the physical restraint
enhancement may be applied regardless of whether the person restrained was the victim of the
offense of conviction.
The government presented evidence and witnesses at Hohn’s sentencing hearing on
January 28, 2014.33 Co-defendant Cook testified about the information he provided Deputy
Williams during his September 13, 2012 proffer, specifically, that Hohn told him while they
were detained at CCA that he was upset at Quick for telling people about how they disposed of
Price’s body by placing it in a refrigerator and dumping it in a field.34 Cook testified that Hohn
said that he wanted to kill Quick’s family in front of him, then kill Quick himself for telling how
they disposed of Price’s body.35 Cook further testified that Hohn told him that he was going to
trial because he wanted to see who was testifying against him so he could seek revenge once he
got out of prison, no matter how long it took.36
Deputy Williams also testified at the sentencing hearing. He confirmed what Cook told
him during his September 2012 proffer about Cook’s conversations with Hohn while detained at
CCA.37 Williams further testified that prior to Cook’s proffer, he was previously aware of this
information because he obtained recordings of Hohn’s CCA calls in February 2012, including
33
Sent. Hrg. Tr., Doc. 526.
34
Id. at 14–15.
35
Id. at 16–17.
36
Id. at 17.
37
Id. at 21–22.
7
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the call between Hohn and his sister in which he said the same thing—“that he was going to go
to trial to find out who was testifying against him, and that he would wait 20 years . . . to be able
to do whatever he needed to do.”38 That February 3, 2012 call from Hohn to his sister was then
admitted as evidence and played in open court.39
Deputy Williams further testified about his interview with Weber about the beating he
received in Hohn’s basement in part over unpaid drug debts.40 Williams also testified in detail
about Hohn’s role in disposing of Price’s body and information received from co-defendant
Quick. 41
After hearing this evidence, as well as taking judicial notice of testimony and evidence at
trial, Judge Carlos Murguia overruled Hohn’s objections to the PSR, finding the testimony about
the Weber incident credible and noting the evidence that Hohn physically restrained Weber, at
least in part because of unpaid drug debts.42 The court then adopted the findings in the PSR and
determined Hohn’s advisory Guidelines range to be 360 months to life imprisonment.43 After
stressing that the cooperating witnesses received substantially lighter sentences, defense counsel
requested the court impose the low end sentence of 360 months, which was severe considering
Hohn’s lack of any prior criminal history.44 AUSA Morehead requested the court impose a life
sentence, in order to deny Hohn any opportunity to make good on his threats of revenge.45
38
Id. 22–23.
39
Id. 23–24.
40
Id. at 25–28.
41
Id. at 35–40.
42
Id. at 60–62.
43
Id. at 62.
44
Id. at 63.
45
Id. at 64–68.
8
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Morehead based her request on Cook’s testimony and emphasized that the February 3, 2012
phone call between Hohn and his sister showed “a pattern and course of thought process” that
Hohn was “planning and plotting his revenge against those who . . . testify against him.”46
Morehead also emphasized Hohn’s role in disposing of Price’s body.47 She did not mention any
threats against a confidential informant in February or May 2012.
The court denied the government’s request and sentenced Hohn to 360 months’
imprisonment.48 Specifically, the court found that Hohn had a history of violence, including
“thoughts of revenge, going after individuals who had testified against [him]” or who were
“involved with the disposal and the moving of [Price’s] body.”49 The court concluded that,
“although there is some merit to the government’s position,” it instead sentenced Hohn “to a
controlling term of 360 months, which is a substantial sentence.”50
AUSA Morehead then raised the issue of a potential Guideline amendment that would
reduce Hohn’s total offense level to 40, with an advisory Guideline sentencing range of 292 to
365 months’ imprisonment.51 Morehead asked the court to conclude that the 360-month
sentence would be an appropriate sentence even if Hohn were to receive the benefit of the
Guideline amendment.52 After Campbell objected to the request as speculative and
inappropriate, the court clarified that the 360-month sentence was not based solely on the low
end of the Guideline range, but on the court’s consideration of all of the factors set out in 18
46
Id. at 65, 66.
47
Id. at 66.
48
Id. at 69–72.
49
Id. at 71.
50
Id.
51
Id. at 74.
52
Id. at 75.
9
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U.S.C. § 3553(a), including Hohn’s involvement and actions in the conspiracy, the phone call
played at the hearing, and his involvement in Price’s disappearance.53
Direct Appeal
Hohn appealed his conviction and sentence to the Tenth Circuit Court of Appeals.54 On
appeal, Hohn raised six issues regarding trial errors and one regarding his sentence: the court
erred in finding his Guideline offense level should be increased two levels for imported drugs.
The court affirmed on all grounds, including that the government met its burden to establish the
two-level importation enhancement.55
Motion to Reduce Sentence
As predicted, Hohn was subsequently eligible for the two-level reduction of his offense
under Amendment 782 to the United States Sentencing Guidelines, which amended the Drug
Quantity Table applicable to Hohn’s case. On June 15, 2016, Judge Murguia denied Hohn’s
motion to reduce his sentence to the new low-end of the advisory Guideline range, 292 months,
pursuant to 18 U.S.C. § 3582(c)(2).56 The court referenced its findings at Hohn’s sentencing
hearing, stressing that it imposed the 360-month sentence based on all the circumstances of the
case, not because a thirty-year sentence was at the bottom of the Guideline range at that time.57
At sentencing, the court specifically noted that Hohn’s involvement with the conspiracy, his
threats of violence, and the violent actions he took in furtherance of the conspiracy, warranted
the 360-month sentence and found that thirty years was sufficient but not greater than necessary
53
Id. at 75–79.
54
United States v. Hohn, 606 F. App’x 902 (10th Cir. 2015).
55
Id. at 911.
56
Doc. 607.
57
Id. at 2.
10
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to comply with the purposes of sentencing.58 The court noted that, before sentencing, it
considered and overruled numerous objections Hohn made to the PSR; that Hohn used threats of
violence and actual violence to compel payment of drug debts; illegally used controlled
substances; illegally possessed firearms, some of which were stolen; showed a propensity to be
vengeful toward family members, those who testified against him, and others; and at a minimum,
helped dispose of a body.59 The court took “special consideration” of the recorded phone call
between Hohn and his sister, in which Hohn stated “that he was going to trial in order to find out
who would testify against him, and that he would wait twenty years to be able to do whatever he
needed to do.”60 These factual findings remained relevant to Hohn’s sentence, despite the
reduced Guideline range, and the court found that a sentence reduction was not warranted based
on the factors set out in § 3553(a) for the reasons set out at Hohn’s sentencing.61
Section 2255 Motion
In addition to the February 3, 2012 call between Hohn and his sister, the government
obtained an April 23, 2012 call between Hohn and defense counsel, James Campbell. The
government produced the recording of the attorney call to the Court on January 7, 2019, and
copies were provided to the FPD on January 9, 2019.62 On February 12, 2019, Hohn filed a
motion to vacate his conviction and sentence under § 2255,63 alleging a per se Sixth Amendment
violation under Shillinger v. Haworth.64 In support of his motion, Hohn attached an affidavit by
58
Id.
59
Id. at 3.
60
Id.
61
Id. at 3–4.
62
Id Doc. 806-3 at 3.
63
Doc. 718.
64
70 F.3d 1132, 1142 (10th Cir. 1995).
11
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Campbell that stated, in part, that, “At the lengthy sentencing hearing, the AUSA played many
recorded calls made by my client from CCA. I received copies of those calls from the
prosecutor, but I do not recall receiving any recorded attorney-client calls.”65
The government responded to Hohn’s § 2255 motion and attached an affidavit from
AUSA Morehead, dated May 29, 2020.66 This affidavit stated in part:
During my involvement in this case there were several requests
made for audio recordings of telephone calls the defendant made
from CCA due to concerns of threats to Government witnesses. I
know calls were reviewed by agents in February 2012
regarding possible threats, which was confirmed during the
review of telephone calls. There was one recorded call introduced
and played at the defendant’s sentencing hearing, where he spoke
to several individuals on February 3, 2012. On or about April 19,
2012, it was discovered that the defendant and others may have
been involved in a homicide in December 2010, in Johnson
County, Kansas, in connection with the charged drug trafficking
activities. On or about April 24, 2012, Johnson County Sheriff’s
Office personnel obtained CCA calls of the defendant and two
other codefendants in connection with their homicide investigation.
Reports regarding the obtaining and review of these calls were
made by the agents and provided during discovery. There was
some inquiry by defense counsel about these calls, and calls of the
defendant from CCA were produced to Mr. Campbell. On
May 24, 2013, the Government issued a subpoena to CCA staff
and requested calls by the defendant made between May 13, 2013
to May 28, 2013, which would have coincided with the jury trial,
because there were concerns that the defendant was
communicating with Government witnesses. I was never made
aware by agents who reviewed the CCA calls that there were any
recordings of communications between the defendant and defense
counsel or any individual working for defense counsel.67
65
Id. at 48–49.
66
Hohn, 19-2082-JAR-JPO, Doc. 3-1.
67
Id. ¶ 8 (emphasis added).
12
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Discovery in the Consolidated § 2255 Litigation
Petitioner’s Brady claim is based in part on the March 8, 2012 email that was produced as
part of the Electronically Stored Information (“ESI”) discovery in the consolidated matter on
July 1, 2020.68 This production applied to over 100 pending § 2255 motions, and included but
was not limited to more than 20,000 emails and attachments produced in the form of a .DAT
load file.69 The government also produced more than 2,700 pages from the petitioners’ case files
in PDF form.70 Of these attachments, 291 referenced “Hohn”; Document 69 of 291 was the
March 8, 2012 email.71
On September 17, 2020, the FPD informed the government that it had “problems loading
the emails into [its] discovery platform,” and needed to “verify that the requested tags are
working correctly.”72 The response tags are electronic tags the government contractor used to
indicate the particular discovery request to which a particular document within the ESI
production was responsive and were partly incompatible with the FPD’s discovery database.
The government provided the requested information on September 23, 2020, which
confirmed the FPD’s suspicion that the tags were not functioning correctly.73 The next day, the
FPD asked the government to produce electronic folders for all the Requests for Production
(“RFPs”) or, in the alternative, to produce a comprehensive Bates chart.74 The FPD then filed a
68
The FPD represents that, to date, the reports referenced in the email have yet to be produced by the
government.
69
Hohn, 19-2082-JAR-JPO, Doc. 62 at 12.
70
Id.
71
Id.
72
CCA Rec. Lit., Doc. 572-11 at 3.
73
Id. at 1–2.
74
Id. at 1.
13
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motion to compel on September 25, 2020.75 On October 20, 2020, the government produced a
spreadsheet that comprehensively identified the documents it had tagged as responsive to each
RFP.76 The FPD then withdrew its motion to compel.77
Section 2255 Evidentiary Hearing
An evidentiary hearing on Hohn’s Sixth Amendment Shillinger claim was held August 9
and 10, 2021.78 AUSA Morehead, Deputy Williams, and Campbell testified in relevant part
about Williams’s March 8, 2012 email to Morehead.
AUSA Morehead testified that based on the “context” of Deputy Williams’s email, she
understood it referred to dispelling any suspicion that the threat to the confidential informant
(“CI”) came from Hohn and that she also understood “there was some significant information in
[Hohn’s] phone call to his sister that confirmed there were concerns” that was not mentioned in
the email.79 Morehead explained that “the e-mail from Mr. Williams had to do with the threat
against the CI,” and that was not what she was referring to in her affidavit when she stated that
review of Hohn’s CCA calls “confirmed” the possible threats.80 Instead, she explained that the
threats she was referring to in the affidavit were the threats that Hohn made in the February 3,
2012 call to his sister that he was going to trial in order to find out who testified against him and
his plans to take revenge on those individuals after he was released from prison.81 Morehead
further testified that she produced both the February 3 call and Williams’s reports on the eight
75
Id. Doc. 572.
76
Id. Doc. 593.
77
Id.
78
Hohn, 19-2082-JAR-JPO, Doc. 7.
79
Id. Doc. 59 at 201–03.
80
Id. at 203.
81
Id.
14
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hours of calls to defense counsel as part of discovery, but admitted that she had no
documentation, such as a transmittal letter or discovery logs, to prove that she did so.82
Morehead conceded, however, that she relayed to Campbell in an April 12, 2013 email exchange
that he could “get all of his client’s calls directly from CCA if he chooses,” when asked to
provide Hohn’s calls to counsel.83
Deputy Williams testified that his March 8, 2012 email related to a specific threat
reported by a person investigators were talking to who thought that the threat made by Jeremy
Stiers was coming from Hohn.84 He testified that the person “felt that Steve Hohn had got ahold
of this individual, Jeremy Stiers, and had him threaten them. So we listened to all the phone
calls during that time and we weren’t able to ascertain that there was any such phone call made,
at least under Steve Hohn’s PIN number.”85 Williams explained that Morehead’s statement in
her affidavit that possible threats were confirmed during a review of the calls by agents in
February 2012 was not confirmed with respect to the threat investigation he was asked to
perform, that is, the Stiers investigation.86
Campbell testified that he never received either the March 8 email, the reports it
references, or the February 3, 2021 CCA call.87 He explained that he was sure he never received
this material in discovery because the subject of Deputy Williams’s email “concern[ed] a
completely unrelated potentially violent matter that my client is at least tangentially accused of
82
Id. at 197.
83
Id. at 212; Hohn Ex. 8.
84
Hohn, 19-2082-JAR-JPO, Doc. 60 at 374.
85
Id.
86
Id. at 380–81.
87
Id. at 282–84.
15
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being involved with.”88 Campbell further explained that while his affidavit stated that “many
recorded calls” were played at Hohn’s sentencing, it was actually one long call to several
recipients who were passed the phone.89 He also testified that he had not seen the email prior to
that morning, and that he had a complete catalog of all the discovery received in the case and that
there were no calls produced.90
II.
Discussion
Hohn seeks leave to supplement or amend his § 2255 motion to add a Brady claim based
on AUSA Morehead’s failure to disclose the March 8, 2012 email from Deputy Williams to
AUSA Morehead or the associated reports. Hohn argues that this email is both exculpatory and
material. The government argues that Hohn’s motion for leave is neither timely nor material
under Brady, and requests the Court deny his motion as untimely, as unauthorized under Rule 15,
or as futile. While the Court finds that Hohn’s Brady claim is both timely and authorized by
Rule 15, it ultimately determines that Hohn’s proposed claim is futile.
A.
Timeliness Under § 2255(f)(4)
Although Hohn refers to his proposed claim as a supplement, he posits that it could
constitute either an amendment or a supplement to his § 2255 motion. Both parties agree that
Rule 15 of the Federal Rules of Civil Procedure and 28 U.S.C. § 2255(f) govern motions for
leave to amend or supplement a § 2255 motion. Hohn contends that the proposed Brady claim is
timely, while the government argues that the evidence on which he bases his new claim could
have been discovered through the exercise of due diligence more than one year before he filed
his motion, leaving his claim time-barred.
88
Id. at 283.
89
Id. at 288.
90
Id. at 282, 289–90.
16
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Section 2255(f) provides that a “1-year period of limitations shall apply” to all § 2255
motions. Hohn does not argue that his Brady claim relates back to the time of filing his original
motion, and relies on § 2255(f)(4), which provides that the “limitation period shall run from the
date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.” This subsection “is an example of what are called
‘discovery rules’ for delaying the accrual of a cause of action.”91 The Tenth Circuit has
explained that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) rule
differs from most discovery rules in one respect: “[t]he typical provision starts the limitations
period either (1) when the plaintiff has actually discovered the pertinent facts or (2) when a
person exercising reasonable diligence would have discovered those facts. The AEDPA
provision contains only the second test, an objective standard.”92 “The exercise of reasonable
diligence is an ongoing process. What is required at any particular time depends on what one has
notice of at that time.”93 “It is irrelevant whether that information has come to the defendant’s
attention by serendipity or diligence.”94 “The question is whether the defendant acted with
reasonable diligence after the information was acquired. And once the defendant could have
discovered the pertinent facts, the § 2255 motion must be filed within one year.”95
Under this standard, Hohn’s Brady claim is timely unless “a person exercising reasonable
diligence would have discovered” the facts supporting that claim on or before August 19, 2020.96
91
United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012).
92
Id.
93
Id. at 1190.
94
Id.
95
Id.
96
See United States v. Hurst, 322 F.3d 1256, 1260–62 (10th Cir. 2003) (explaining § 2255(f)(4)’s one-year
clock starts to run the day after the triggering event).
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The evidence that forms the basis of Hohn’s claim is Deputy Williams’s March 8, 2012 email to
AUSA Morehead, which Hohn admits was produced on July 1, 2020. The government takes the
position that a mere 291 documents contained Hohn’s name and that a reasonably diligent person
would have discovered the March 8 email on July 1, 2020, the same day the government
produced the email to the FPD. The Court disagrees.
The Court declines to engage in a calculus of how many seconds per page it would take a
reasonable person to review the documents. There is no dispute that the July 1, 2020 ESI
production contained more than 20,000 documents that the FPD claimed were difficult to
identify until the government provided the requested spreadsheet regarding the tagging system in
October 2020, going so far as to file a motion to compel after the government’s initial refusal to
comply with its request. While the spreadsheet did not provide a description of any document
produced, it gave the FPD a way to accurately determine which documents were responsive to
each RFP.
Moreover, it is not clear to the Court precisely when the FPD discovered that Campbell
did not in fact receive the March 8 email, reports, or February 3, 2022 call. This issue is clouded
by AUSA Morehead’s affidavit stating that review of the February 2012 CCA calls confirmed
possible threats. It is also clouded by Morehead’s apparently false representation to her
colleagues, including AUSA Carrie Capwell, that Morehead had produced the materials to
Campbell during discovery. During the August 2021 evidentiary hearing, Morehead testified
that she had produced the materials to defense counsel Campbell. But Morehead’s testimony
was dispelled by Campbell after he exhaustively reviewed his files following an inquiry from
AUSA Capwell when Morehead could not document the discovery production in the case.97 It
97
See Hohn, 19-2082-JAR-JPO, Doc. 60 at 298–99.
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appears to the Court that this information came to light just prior to or during the evidentiary
hearing, but in any event, after the spreadsheet was provided in October 2020. Therefore, the
Court finds that no reasonably diligent petitioner would have discovered this potential Brady
evidence until at least October 20, 2020, and Hohn’s motion for leave is thus timely under §
2255(f)(4).
B.
Authorization Under Rule 15
Next, the government argues that even if Hohn’s motion for leave to add a Brady claim
was timely filed, the Court should nevertheless deny his motion under Fed. Rule Civ. P. 15.
Hohn first argues that supplementation is appropriate under Rule 15(d), which provides that “the
court may, on just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” The Tenth Circuit has explained that “[s]upplemental pleadings are thus
appropriate to ‘set forth new facts in order to update [an] earlier pleading,” and are “distinct from
amendments to pleadings under Rule 15, which ‘relate to matters that occurred prior to the filing
of the original pleading.’”98 Because Hohn’s new claim is based on events that occurred prior to
the filing of the original motion in 2019, Rule 15(d) does not appear to be a cognizable basis
upon which to supplement the original motion.99
98
Carter v. Bigelow, 787 F.3d 1269, 1278 (10th Cir. 2015) (quoting 6A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1504 (3d ed. 2014)).
99
Hohn initially argued that his supplemental Brady claim was appropriate under the factors cited by the
Tenth Circuit in Carter, 787 F.3d at 1278–82, and Douglas v. Workman, 560 F.3d 1156, 1190–95 (10th Cir. 2009).
There, in the context of state habeas proceedings brought under 28 U.S.C. § 2254, the court applied a set of seven
factors, which “serve to narrow significantly the circumstances that would justify permitting a habeas petitioner to
supplement his first habeas petition” and “will be present” only in “a rare case.” Douglas, 560 F.3d at 1190. The
government argues that these factors weigh against supplementation; Hohn does not reply, other than to state that
the comity and federalism concerns at issue in those two cases do not apply to § 2255 motions. In light of the
findings above, the Court does not reach this issue.
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Alternatively, Hohn suggests that he should be permitted to amend or supplement his
motion to conform to the evidence at the August 2021 hearing. Rule 15(b) addresses
amendments during and after trial and is intended to promote deciding cases on their merits.100
The Tenth Circuit has explained that the rule contains two mechanisms for amending a complaint
to conform to the evidence.101 A complaint may be impliedly amended “if an issue has been
tried with the express or implied consent of the parties and not over objection.”102 “A party
impliedly consents to the trial of an issue not contained within the pleadings either by
introducing evidence on the new issue or by failing to object when the opposing party introduces
such evidence.”103 “However, implied consent cannot be based on the introduction of evidence
that is relevant to an issue already in the case where there is no indication that the party
presenting the evidence intended to raise a new issue.”104 If the opposing party objects to
evidence pertaining to a new claim, however, the party wishing to amend the pleadings must
utilize the second mechanism of Rule 15(b)(2), which provides that pleadings may be amended if
the party files a motion to amend the complaint and the objecting party fails to satisfy the court
that it will be prejudiced by the amendment.105
Here, Hohn references the second mechanism in Rule 15(b)(2), arguing that the existing
record, including the evidence adduced at the recent evidentiary hearing, is sufficient to allow the
Court to resolve the proposed Brady claim, and that the government had notice of Hohn’s Brady
100
Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1280 (10th Cir. 2004).
101
Id. at 1280–81.
102
Id.; Fed. R. Civ. P. 15(b)(2).
103
Koch v. Koch Indus., Inc., 203 F.3d 1202, 1217 (10th Cir. 2000) (citing Hardin v. Manitowoc-Forsythe
Corp., 691 F.2d 449, 457 (10th Cir. 1982)).
104
Green Country Food Mkt., 371 F.3d at 1280 (citation omitted); Fed. R. Civ. P. 15(b)(2).
105
Green Country Food Mkt., 371 F.3d at 1280–81.
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claim and an opportunity to defend against it.106 The government argues that it did not consent
to the trial of Hohn’s Brady claim and that it will suffer prejudice from the continued attempts to
undermine its credibility via the CCA-related litigation.
As noted, defense counsel Campbell testified at the evidentiary hearing that he had not
seen the March 8 email until the morning of the hearing and that neither the email nor the reports
it references was included in the criminal discovery produced by the government.107 On crossexamination, AUSA James Brown continued to question Campbell about the email and what
AUSA Morehead had produced to him in discovery in the criminal case.108 Brown specifically
asked Campbell about the affidavit he prepared as part of the § 2255 proceedings, where
Campbell stated that he received copies of Hohn’s CCA calls from the prosecutor that were
played at the sentencing hearing.109 Campbell explained that he thought he received the calls,
but when he went back through his entire case file after being contacted by AUSA Capwell to
inquire about what evidence had been produced by AUSA Morehead, he found that he never
received the February 13, 2012 call.110 He did, however, receive calls made by co-defendant
Redifer.111 This prompted FPD Melody Brannon to contemporaneously email Acting United
States Attorney Duston Slinkard during Campbell’s testimony to inform Slinkard that the FPD
believed that Campbell’s testimony was sufficient to prove a Brady violation and ask whether
this violation might provide a basis for settling Hohn’s case.112 The government subsequently
106
Doc. 58 at 13 & n.65.
107
Hohn, 19-2082-JAR-JPO, Doc. 60 at 282–83.
108
Id. at 294–95.
109
Id. at 298–99.
110
Id. at 299.
111
Id.
112
Doc. 58-4.
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called Deputy Williams to testify, and presented evidence relevant to whether the email was
material under Brady.113 Under these circumstances, the Court is satisfied that amendment of
Hohn’s § 2255 motion will not prejudice the government and is therefore authorized under Rule
15(b)(2).
C.
Futility
Finally, the government argues that Hohn’s motion for leave should be denied as futile.
It is well-settled that in ruling on a motion for leave to amend or supplement, courts are
instructed to “freely give leave when justice so requires,” and to deny leave to amend only when
an apparent reason, “such as . . . futility of amendment,” exists.114 Thus, “a court properly may
deny a motion for leave to amend as futile when the proposed amended complaint would be
subject to dismissal for any reason.”115 “If it plainly appears from [a § 2255] motion that the
moving party is not entitled to relief, the judge must dismiss the motion.”116 Here, the Court is in
the unusual position of determining whether an amended claim is futile based on the record
established at an evidentiary hearing.117
The government has an obligation to disclose both exculpatory evidence and evidence
that possibly could be used to impeach a government witness.118 In applying Brady, the Tenth
Circuit requires “the prosecution to disclose all evidence that favors the defendant and is material
113
Hohn, 19-2082-JAR-JPO, Doc. 60 at 351–382.
114
Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178 (1962); Cohen v. Longshore, 621 F.3d 1311,
1313 (10th Cir. 2010).
115
Bradshaw v. Lappin, 484 F. App’x 217, 225 (10th Cir. 2012) (citation omitted).
116
Rule 4(b), Rules Governing Section 2255 Proceedings.
117
The FPD has advised the Court and the government that it does not intend to seek to reopen the
evidentiary hearing or record on this issue.
118
See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S.83, 87 (1963).
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either to guilt or to punishment.”119 To prevail on his Brady claim, Petitioner has the burden of
demonstrating that: “(1) the prosecution suppressed evidence, (2) the evidence was favorable to
the defendant, and (3) the evidence was material.”120
“Evidence is material if there is a reasonable probability that the result of the proceeding
would have been different had the evidence been disclosed.”121 “A reasonable probability
means the ‘likelihood of a different result is great enough to undermine confidence in the
outcome.’”122 In other words, courts ask whether the absence of the withheld evidence “shakes
our confidence” in the outcome.123 Courts “determine materiality after reviewing the record as a
whole.”124
Here, Petitioner’s proposed supplemental claim does not ask the Court to vacate his
conviction, but to vacate his sentence and resentence him to time served. The government’s
discovery obligations under Brady extend to sentencing.125 At the sentencing stage, the relevant
question becomes whether there is a “reasonable probability that, had the evidence been
disclosed to the defense, the result of the [sentencing] proceeding would have been different.”126
Under this standard, the first and second elements of Hohn’s proposed Brady claim are
not seriously at issue. First, the government does not dispute that AUSA Morehead did not
119
United States v. Diaz, 679 F.3d 1183, 1192 (10th Cir. 2012) (quoting United States v. Ford, 550 F.3d
975, 981 (10th Cir. 2008)).
120
Id.
121
United States v. Reece, 745 F.3d 1075, 1083–94 (10th Cir. 2014) (citing Smith v. Cain, 132 S. Ct. 627,
630 (2012)).
122
Id. (quoting Cain, 132 S. Ct. at 630).
123
Id. (quoting United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011)); accord Kyles v. Whitley,
514 U.S. 419, 434 (1995).
124
Id. (citing Cooper, 654 F.3d at 1120).
125
Cone v. Bell, 556 U.S. 449, 473–76 (2009) (remanding case to district court to consider whether the
government’s failure to disclose evidence violated the defendant’s rights under Brady at the penalty phase).
126
Id. at 491 (Thomas, J., dissenting) (citations and quotations omitted).
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disclose the March 8, 2021 email before trial or sentencing and, to date, there is no indication
that the referenced reports have been produced. To the extent AUSA Morehead has stated
otherwise, evidence adduced at the hearing demonstrates her statements are not credible. Any
suggestion that Campbell’s memory is not up to par is belied by AUSA Morehead’s practice not
to produce discovery for anything she did not plan to use, her suggestion that Campbell could get
Hohn’s calls directly from CCA, and her total lack of discovery documentation.
Second, the Court assumes, without deciding, that the March 8 email was favorable to
Hohn. It is exculpatory, as it states that the agents had dispelled “any threats coming from
Hohn” after reviewing the February 2012 CCA calls. And it is impeaching because Campbell
could have used the materials to cross-examine Deputy Williams. Although the reports
referenced in the email have to date not been produced, and the Court is unable to be certain of
the content, it also assumes that they were favorable to Hohn.
Instead, the Court focuses its analysis on materiality. Under the applicable standard,
Hohn must show that there is a reasonable probability that the result of his sentencing would
have been different if the evidence had been disclosed. Put another way, Hohn must show that
the absence of Deputy Williams’s March 8, 2012 email and the reports referenced therein shakes
the Court’s confidence in the sentence he received. The Court concludes Hohn has not made this
showing because there is not a reasonable probability that the outcome of his sentencing would
have been different had the government disclosed the materials.
Hohn contends that the February 3, 2012 call figured prominently in AUSA Morehead’s
sentencing argument, as she knew it would leave a lasting impression on Judge Murguia and
provide a counterweight for any favorable conclusions the court might have drawn based on
Hohn’s calm demeanor in court. He argues that the March 8, 2012 email is material because if
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Campbell had the email before sentencing, he could have tried to convince the court to assign
less weight to the February 3, 2012 phone call that AUSA Morehead played at sentencing. Hohn
argues that the likely explanation that Deputy Williams did not mention the February 3, 2012 call
to AUSA Morehead in the email was because Williams reached the same conclusion the court
would have reached but for Morehead’s decision to suppress the email—that Hohn’s February 3
call was not proof of an actual threat of revenge at all, but mere frustration expressed to his
sister. Hohn concludes that if a 360-month sentence was appropriate with the call, it stands to
reason that something less than a 360-month sentence would have been appropriate without the
call.
This argument is unavailing for several reasons. First, Hohn attempts to extrapolate
Deputy Williams’s comment about a specific death threat made by Stiers against a CI who
suspected that Hohn was behind Stiers’s threat to mean that Williams determined that the
threatening statements Hohn made in the call to his sister were also dispelled. However,
Williams’s testimony, coupled with the text of the entire email, provides context that makes
clear that he is referring to the specific Stiers’s threat to the CI and neither mentions nor sheds
any light on his perception of the threatening statements made in Hohn’s call to his sister.
Second, the call played at sentencing speaks for itself and was just one example of
evidence of Hohn’s anger towards those who cooperated or testified against him. The March 8
email casts no doubt on Deputy Williams’s testimony about the more detailed information he
subsequently received about Hohn’s threats in interviews with Hohn’s co-defendants. Baitey
and Cook testified or proffered about comments Hohn subsequently made to them about taking
revenge on those who cooperated or testified against him, and Cook testified at the sentencing
hearing prior to the February 3 call being played.
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Third—and critical to the required showing of materiality—Hohn has not shown a
reasonable probability that he would have received a below-Guidelines sentence if he had
received the March 8 materials before sentencing. Hohn does not suggest that Campbell would
have used the March 8 materials to convince the court to exclude the February 3, 2012 phone call
altogether. Instead, he contends that, armed with those materials, Campbell would have
convinced the court to assign the call significantly less weight, resulting in a reasonable
probability that the court would have imposed a lesser sentence. The Court disagrees.
After hearing evidence, the court overruled Hohn’s objections and adopted the PSR’s
findings and advisory Guidelines range of 360 months to life imprisonment without changes.
AUSA Morehead used the February 3 call to argue for a sentence at the high end of the
Guideline range, life imprisonment. While the call provided a specific example of Hohn’s
temperament and stated intent to take revenge on anyone who testified or cooperated against
him, both factors were already well established by the time the call was played. Hohn’s
argument that the court stated that the phone call was one of the primary factors that justified the
360-month sentence is not a fair characterization of the record, as Judge Murguia based the
sentence on all of the circumstances of the case, including Hohn’s involvement in the conspiracy,
his threats of violence, and the violent actions he took in furtherance of the conspiracy. Indeed,
in denying Morehead’s request for a life sentence, Judge Murguia acknowledged that Hohn said
terrible things in the phone call played at the hearing, and that the court tried to put into context
Hohn’s situation at the time and how he could react in that manner, while also declining to
discount the extreme anger by Hohn towards family members and others involving thoughts of
revenge.127 While the court found some merit to Morehead’s position, it ultimately denied her
127
Sent. Hrg. Tr., Doc. 526 at 79–80.
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request for a life sentence, and instead sentenced Hohn to 360 months—the sentence that
Campbell requested and that the court stressed was based on consideration of the entire record
and all of the § 3553(a) factors.
Reviewing the record as a whole, the Court concludes that the absence of the evidence
withheld by AUSA Morehead does not shake the Court’s confidence in the sentence that Judge
Murguia imposed. In light of the factual findings set out at Hohn’s sentencing hearing, there is
simply no reasonable probability that, but for Morehead’s misconduct in suppressing these
materials, the court would have imposed a lesser, below-Guidelines sentence. The March 8,
2012 materials were thus not material under Brady, and Hohn’s proposed claim is futile.
Accordingly, the Court denies Hohn leave to supplement or amend his § 2255 motion. The
Court stresses, however, that nothing in the Court’s ruling precludes Hohn from arguing—as he
has throughout these proceedings—that either or both the government’s and AUSA Morehead’s
discovery misconduct is relevant to his pending Sixth Amendment claim. Needless to say, the
Court has not yet decided Hohn’s Sixth Amendment claim.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner Steven Hohn’s
Motion for Leave to Supplement his 28 U.S.C. § 2255 Motion to add a Brady claim (Doc. 1010
in 19-2491-JAR-JPO; Doc. 58 in 19-2082-JAR-JPO) is denied.
IT IS SO ORDERED.
Dated: September 20, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
27
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