Marcusse #17128-045 v. United States of America

Filing 9

MEMORANDUM OPINION AND ORDER denying motions to compel discovery and for production of trial exhibits [2 & 5]; granting in part motions for extension of time to file a brief in support of 2255 motion [4 & 8]. Movant shall have 30 days from the date of this opinion and order to file a brief in support of the claims raised in her 2255 motion; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J A N E T MAVIS MARCUSSE, M o v a n t, F ile No. 1:09-CV-913 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / M E M O R A N D U M OPINION AND ORDER M o v a n t Janet Mavis Marcusse has filed a motion pursuant to 28 U.S.C. § 2255 to v a c ate , set aside, or correct her sentence. (Dkt. No. 1.) This matter is before the Court on M o v a n t's motion to compel production of trial exhibits (Dkt. No. 2), motions for extension o f time to file a brief in support of her § 2255 motion (Dkt. Nos. 4, 8), and motion to compel d is c o v e ry of Brady and Jencks Act materials (Dkt. No. 5). T h e Court will grant, in part, Movant's motions for extension of time to file a brief in support of her § 2255 motion. Movant's first motion for extension of time, filed in O c to b e r of 2009, requests an additional ninety days' to file a brief in support of her § 2255 m o tio n . Movant's second motion for extension of time, filed on January 4, 2010, requests a n o th e r ninety days, based on her assertion that the IRS "is in the process of providing 1

a d d itio n a l documents and things, which directly bear on the issues submitted for re v ie w . . . ." (Dkt. No. 8.) The Court will grant Movant an additional thirty days to file her b rie f in support of the claims raised in her § 2255 motion. If no memorandum is filed in that tim e , the Court may proceed to evaluate her motion pursuant to the Rules Governing Section 2 2 5 5 Proceedings. The Court does not address at this time whether any of Movant's claims a re timely and/or properly filed. The Court will deny Movant's motions for discovery and for production of d o c u m e n ts . Under Rule 6 of the Rules Governing Section 2255 Proceedings, a judge may " fo r good cause, authorize a party to conduct discovery . . . ." Movant can satisfy the goodc a u se standard by showing "specific allegations [that] show reason to believe that [Movant] m a y, if the facts are fully developed, be able to demonstrate that [she] is . . . entitled to re lie f . . . ." Bracy v. Gramley, 520 U.S. 899, 909 (1997). Movant has not shown good cause to merit discovery of the materials that she requests. Movant contends in her first motion that th e prosecution improperly "tampered" with exhibits, but she does not provide any "specific a lle g a tio n s " supporting this contention in her motion. Movant's second motion generally requests production of the detailed evidence and re c o rd s supporting the government's "summary" exhibits and the testimony of its witnesses reg ard ing the disposition and amounts of funds received by Movant and her co-conspirators in connection with their criminal scheme, including: lists of investors and bank accounts, c o p ie s of wire transfers and checks, etc. (Dkt. No. 5, Mot. to Compel Discovery 5-9.)

2

M o v a n t was convicted of multiple counts of mail fraud, money laundering and conspiracy t o commit the foregoing. (File No. 1:04-CR-165, Dkt. No. 558, J.) The government c o n te n d e d that Movant was involved in a kind of "Ponzi scheme" such that money was re c eiv e d from investors and deposited in private bank accounts rather than put to use as le g itim a te investments. Movant argues that the government's witness and summary evidence re lie d upon a "restrictive and deceptive" definition of investments, "limited to that of a `p rim e bank instrument'" only, and that evidence relying on this definition constitutes " f als if ie d evidence" and "perjury." (Id. at 2,5.) However, Movant's disagreement with the g o v e rn m e n t's definition, and the conclusions drawn by its witness on the basis of that d e f in itio n , does not tend to show that the government knowingly offered false or perjured t e stim o n y. Indeed, Movant notes that the witness disclosed his definition of investment as p a rt of his trial testimony. (Id. at 2.) Movant also argues that the government must provide "competent breakdowns . . . to s u p p o rt every dollar" of its arguments made at her criminal trial. (Id. at 8.) Movant's motion c o n ta in s numerous requests for production of evidence and for responses from the g o v e rn m e n t, such as an explanation of alleged discrepancies in the evidence, proof of s e rv i c e , disclosure of fees paid to informants, proof of oaths of office, etc., as well as a g e n e ra l request for "Jencks materials" related to a list of individuals set forth in her motion. (Id . at 11-16.) However, the Court cannot discern the basis or necessity for these requests a t this stage of the proceedings in light of Movant's claims that are properly the subject of

3

a § 2255 motion. To the extent Movant claims that the evidence presented at trial was not s u f f ic ie n t to support her conviction, such a claim is not cognizable in a § 2255 motion. J a ra m illo v. United States, Nos. 98-5404, 98-5584, 1999 WL 646026, at *3 (6th Cir. Aug. 1 3 , 1999) (unpublished) (citing United States v. Osborn, 415 F.3d 1021, 1024 (6th Cir. 1 9 6 9 )). To the extent Movant claims she was improperly denied a right to examine sta tem e n ts required to be disclosed under the Jencks Act, 18 U.S.C. § 3500, the factual basis f o r such a claim can be established without resort to discovery of the underlying statements. T o the extent Movant contends that the government improperly withheld favorable evidence u n k n o w n to the defense during trial, see United States v. Bagley, 473 U.S. 667, 678 (1985), h e r speculation that such evidence may exist is insufficient to merit discovery, much less the w id e - ra n g in g discovery that she requests. A c c o rd in g ly, IT IS HEREBY ORDERED that Movant's motions for extension of time to file a b rie f in support of her § 2255 motion (Dkt. Nos. 4, 8) are GRANTED IN PART. Movant s h a ll have thirty (30) days from the date of this opinion and order to file a brief in support of th e claims raised in her § 2255 motion.

4

I T IS FURTHER ORDERED that Movant's motions to compel discovery and for p ro d u c tio n of trial exhibits (Dkt. Nos. 2, 5) are DENIED.

Dated: January 7, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

5