Baranski v. United States of America

Filing 122

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner Baranskis Motion for Leave of Court to Filein Pro Se Capacity the Amended Verified Petition for Writ of Error Coram Nobis is DENIED.[Doc. 120]IT IS FURTHER ORDERED that petitioner Baranskis M otion for Leave of Court to Filean Amended Verified Petition for Writ of Error Coram Nobis is DENIED. [Doc. 121]IT IS FURTHER ORDERED that the Clerk of the Court shall retain the proposed amended petition and all exhibits thereto until Monday, Janua ry 6, 2014. If Mr. Baranski wishes to have these documents returned to him, he must contact the Clerk and provide return postage costs, or pick up the pleading, prior to that date. After January 6, 2014, the Clerk shall discard the proposed amended petition and exhibits by shredding them, without further order of the Court. Signed by District Judge Charles A. Shaw on 12/5/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH BYRON BARANSKI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11-CV-123 CAS

MEMORANDUM AND ORDER
This is an action for a writ of error coram nobis to vacate petitioner Keith Baranski’s
judgment of conviction and sentence, and judgment of forfeiture, in United States v. Baranski, No.
4:02-CR-361 CAS (E.D. Mo.). The matter is before the Court on two motions filed by petitioner
Baranski in a pro se capacity, although petitioner is represented by retained counsel. The first
motion seeks leave of Court to file pro se, on the basis that Mr. Baranski’s lead attorney withdrew
from the case after becoming a judge, and his other attorney is “preoccupied with his caseload and
unable to be serve [sic] as lead counsel for Baranski, however, he is serving as standby counsel until
Baranski locates a capable replacement[.]” Mot. for Leave to File Pro Se at 1.
The second motion seeks leave of Court for Mr. Baranski, acting pro se, to file an amended
petition for writ of error coram nobis. Accompanying the motion is a proposed amended petition
with exhibits and an addendum. In the motion, petitioner states that he has learned through
discovery that the government’s key witness at trial, James Carmi, was not truthful in his testimony;
that the government withheld records and information it was obligated to disclose to Baranski’s
criminal defense team, including over 100 documents that show concerted efforts by the government
to deliberately withhold material exculpatory evidence and impeachment evidence; and that former
Assistant United States Attorneys Richard Poehling and James G. Martin were untruthful in their

deposition testimony taken in December 2012, as verified by Carmi’s sentencing transcript in a
separate criminal case before the Honorable E. Richard Webber. Baranski states that he “should be
permitted to raise unpleaded issues by amending his Petition so it would confirm to the evidence
discovered.” Mot. for Leave to Amend at 2. Mr. Baranski cites Rule 15(a), Federal Rules of Civil
Procedure, as providing that a court should grant leave to amend freely when justice requires.
The Court will deny both motions. As a threshold matter, “There is no constitutional or
statutory right to simultaneously proceed pro se and with benefit of counsel.” United States v.
Agofsky, 20 F.3d 866, 872 (8th Cir. 1994). The Eighth Circuit Court of Appeals has stated, “A
district court has no obligation to entertain pro se motions filed by a represented party.” Abdullah
v. United States, 240 F.3d 683, 686 (8th Cir. 2001); Agofsky, 20 F.3d at 872 (holding that a court
commits “no error” in refusing to rule on pro se motions raised by a represented party).
Petitioner is represented by retained counsel in this matter, and his attorney has neither
requested nor been granted leave to withdraw from the representation. Petitioner does not allege the
existence of a conflict with his attorney. The Court finds that to permit petitioner to simultaneously
represent himself and be represented by counsel would be untenable in this case, as it would
necessarily raise a great risk of confusion, duplication, and other logistical difficulties. Neither the
Court nor opposing counsel, and even perhaps petitioner’s own attorney, would know with whom
to deal with respect to any given issue that might arise. Petitioner’s motion for leave to file in a pro
se capacity will therefore be denied, and his motion for leave to file an amended petition for writ of
error coram nobis will also be denied.
Overlooking for the moment the threshold procedural hurdle identified above, the Court
notes there are other hurdles to the filing of the proposed amended petition. The Federal Rules of
Civil Procedure require that a pleading contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief[.]” Rule 8(a)(2), Fed. R. Civ. P. A complaint need only contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plaintiff need not provide specific facts in support of his allegations. Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam).
The proposed amended petition violates Rule 8(a), as it is 133 pages long, consists of 466
numbered paragraphs and seventeen counts, and is accompanied by what appears to be well over
1,000 pages of exhibits and attachments.1 The proposed amended petition includes an exhaustively
detailed recitation of factual evidence discovered during the pendency of this matter, and contains
many quotations from letters, documents, records, trial testimony and deposition testimony.
Because the proposed amended petition violates Rule 8(a), the Court would not permit its filing even
if it had been submitted by Mr. Baranski’s counsel.
Further, although Rule 15(a)(2) provides that leave to amend a complaint should be freely
given “when justice so requires,” several factors are relevant to a determination of whether leave
should be granted, including (1) whether the motion was filed in bad faith or with dilatory motive;
(2) whether the motion was filed with undue delay; (3) whether leave to amend would be unduly
prejudicial to the opposing parties; and (4) whether the proposed amendment would be futile. See
Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). There is no absolute right to amend a pleading. Hammer v. City of Osage Beach,
Mo., 318 F.3d 832, 844 (8th Cir. 2003).

1

The box in which the proposed amended petition was delivered includes a United Parcel
Service postage label stating that its contents weigh eighteen pounds. The petition and its exhibits
and addendum form a stack of paper almost six inches tall.
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The Case Management Order that controls this case was issued on April 26, 2011, after the
Amended Petition was filed, and does not contain any provision for the amendment of the pleadings.
The Court has granted at least six motions by petitioner to continue the evidentiary hearing in this
matter, which is set for February 12, 2014. Petitioner’s request to amend his petition thus comes late
in the day. Where a party seeks leave to amend his complaint after the deadline in the case
management order has passed, Fed. R. Civ. P. 16(b)’s good-cause standard applies, not the standard
of Rule 15(a). Under Rule 16(b), the party must show good cause in order to be granted leave to
amend. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). The Court does not
believe this standard is met.2
For these reasons, Mr. Baranski’s pro se motions will be denied. Mr. Baranski must appear
in this case only through his counsel, unless counsel is given permission by the Court to withdraw
from representation. The Clerk of the Court will be directed to retain but not file the proposed
amended petition and all exhibits thereto for a period of thirty (30) days from the date of this Order.
If Mr. Baranski wishes to have the proposed amended petition and exhibits returned to him, he must

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Although the proposed amended petition contains a great deal more factual detail than the
Amended Petition and adds numerous counts, each count seeks the same relief as the Amended
Petition: the vacation of Mr. Baranski’s criminal judgment and judgment of forfeiture. The
proposed amended petition is primarily based on the same grounds as the Amended Petition: alleged
perjury by key witness James Carmi, primarily Carmi’s denial of government promises made to him
for a Rule 35 reduction in his sentence in return for his testimony against Mr. Baranski, and Carmi’s
testimony denying and minimizing his brain damage and resulting amnesia and memory loss, which
would have been exculpatory evidence; the government’s knowledge of and suborning of Carmi’s
perjury; the government’s failure to disclose Carmi’s perjury and the exculpatory evidence to the
Court and to Mr. Baranski’s trial counsel; and misconduct by ATF Agent Johnson in relying on
evidence from Carmi to obtain the original search warrant, when the agent knew or should have
known that Carmi’s brain damage and resulting amnesia and memory loss made him an unreliable
witness.
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contact the Clerk and provide return postage costs, or pick up the documents, prior to the expiration
of thirty days. Otherwise, they will be discarded.
Accordingly,
IT IS HEREBY ORDERED that petitioner Baranski’s Motion for Leave of Court to File
in Pro Se Capacity the Amended Verified Petition for Writ of Error Coram Nobis is DENIED.
[Doc. 120]
IT IS FURTHER ORDERED that petitioner Baranski’s Motion for Leave of Court to File
an Amended Verified Petition for Writ of Error Coram Nobis is DENIED. [Doc. 121]
IT IS FURTHER ORDERED that the Clerk of the Court shall retain the proposed amended
petition and all exhibits thereto until Monday, January 6, 2014. If Mr. Baranski wishes to have
these documents returned to him, he must contact the Clerk and provide return postage costs, or pick
up the pleading, prior to that date. After January 6, 2014, the Clerk shall discard the proposed
amended petition and exhibits by shredding them, without further order of the Court.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 5th day of December, 2013.

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