Jones v. Behe
Filing
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MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Mandamus filed by Raymond Jones. Signed by Honorable William W. Caldwell on 2/15/2017. (ve) (Originally filed as document # 189 on 2/15/2017 in case 1:10-cr-181-02)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
RAYMOND JONES,
Defendant
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: CASE NO. 1:10-CR-181-2
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:
:
MEMORANDUM
I.
Introduction
Presently before the court are Defendant Raymond Jones’ petition for a writ
of mandamus, (Doc. 185), and “Expedited Motion for Order to Show Cause,” (Doc. 187). 1
For the following reasons, the court will deny Defendant’s petition and motion.
II.
Background
On April 20, 2011, a jury convicted Defendant of drug-related crimes, (Doc.
107), and, on September 20, 2011, he was sentenced to 262 months’ imprisonment, (Doc.
129 at 3). On September 29, 2011, Defendant filed a notice of appeal. (Doc. 131). On
November 1, 2012, the Third Circuit affirmed his convictions and sentence. (Doc. 147).
Defendant then filed a motion to vacate sentence under 28 U.S.C. § 2255,
(Doc. 152), which this court dismissed as untimely on October 22, 2014, (see Doc. 159).
The Third Circuit agreed that Defendant’s 2255 motion was untimely and affirmed its
dismissal. (Doc. 173).
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Defendant also filed a motion for leave to proceed in forma pauperis (“IFP”). (Doc. 186).
Because the court finds that Defendant has failed to show that a writ of mandamus should issue,
the motion to proceed IFP will be dismissed as moot.
Defendant then attempted to challenge the dismissal of his 2255 motion by
filing a motion under Federal Rule of Civil Procedure 60(b)(6), (Doc. 174), and
subsequently a motion under Rule 59(e), (Doc. 176), both of which this court denied, (see
Docs. 175, 177). Defendant appealed, and once again, on October 24, 2016, the Third
Circuit affirmed this court’s denial of Defendant’s motions. (Doc. 184).
Defendant has now filed a petition for a writ of mandamus. (Doc. 185). He
also has filed an “Expedited Motion for Order to Show Cause,” (Doc. 187), which is related
to the underlying mandamus petition and demands a response from the government.
Defendant’s mandamus petition asserts that a government witness—Drug
Enforcement Administration agent Keith Kierzkowski (“Agent Kierzkowski”)—testified
inconsistently during pretrial proceedings and at trial regarding the weight of drugs at
issue in Defendant’s case. (Doc. 185 at 1-3). Defendant claims that during the grand jury
and suppression proceedings, Agent Kierzkowski testified that a co-defendant was found
with “14 grams of crack cocaine.” (Id. at 2; Doc. 185-1 at 3). Defendant asserts that
Agent Kierzkowski then purposefully changed his story by testifying at trial that the
cocaine weighed 19 grams, “intentionally l[ying] to the trial jurors so that his testimony
would be consistent with the laboratory report” showing that the drugs found weighed 19.1
grams. (Doc. 185 at 3).
Defendant further maintains that Assistant United States Attorney William
Behe (“AUSA Behe”) knew that Agent Kierzkowski’s trial testimony was false, but failed to
correct it, in violation of the well-established prosecutorial duty to correct false testimony.
(Id. at 3-4). As relief, Defendant requests that AUSA Behe be compelled “to correct the
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false testimony of the government witness” and that Defendant be awarded “the cost of
this suit.” (Id. at 6).
III.
Discussion
This court has jurisdiction “of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.” 28 U.S.C. § 1361. The writ of mandamus “is a drastic remedy
that ‘is seldom issued and its use is discouraged.’” United States v. Higdon, 638 F.3d
233, 245 (3d Cir. 2011) (quoting Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988)).
Before the court issues this extraordinary writ, three conditions must be satisfied: (1) the
petitioner “[must] have no other adequate means to attain the relief he desires”; (2) the
petitioner must meet his “burden of showing that [his] right to the issuance of the writ is
clear and indisputable”; and (3) if the petitioner meets the first two requirements, “the
issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate
under the circumstances.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81
(2004) (alterations in original) (citations and internal quotation marks omitted).
Here, assuming, without deciding, that Defendant has satisfied the first
prerequisite for mandamus relief due to his numerous prior filings, it is clear that he has
not carried his burden on the second condition. That is, Defendant has failed to show that
his right to the issuance of a writ of mandamus is clear and indisputable.
While Agent Kierzkowski’s testimony regarding the drug weight at the grand
jury proceedings and suppression hearing may have differed slightly from his testimony at
trial, Defendant has not shown why this discrepancy necessitates the extraordinary relief
of the issuance of a writ of mandamus. A jury found Defendant guilty of various drug
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crimes with a corresponding drug-weight range of 5 grams or more but less than 28
grams. (Doc. 107). According to portions of the transcripts Defendant attached to his
petition, Agent Kierzkowski testified in the pretrial proceedings to a weight of 14 grams of
cocaine base, and then at trial to a weight of 19 grams of cocaine base. Both of these
weights fall squarely into the middle of the drug-quantity range for which Defendant was
convicted at trial.
Moreover, Defendant has not shown that Agent Kierzkowski’s testimony at
trial was intentionally false, or that AUSA Behe knowingly permitted false testimony. While
there is little doubt that Agent Kierzkowski testified to different drug weights before trial
and at trial, as reflected in the transcripts of the respective proceedings, inconsistent
testimony does not necessarily mean intentionally false testimony. See United States v.
Tavares, 93 F.3d 10, 14 (1st Cir. 1996) (“Inconsistent testimony by itself does not amount
to perjury[.]”); United States v. Gary, 73 F.3d 304, 314 (1st Cir. 1996) (“[I]t is axiomatic that
inconsistent testimony is not per se perjurious.”) (citation omitted); United States v. Miller,
59 F.3d 417, 423 (3d Cir. 1995) (explaining that existence of prior inconsistent statement
does not necessarily mean trial testimony was untruthful, and that such an issue is
properly addressed on cross-examination). Furthermore, because Defendant has not
shown that Agent Kierzkowski’s trial testimony was intentionally false, it follows that
Defendant has failed to show that AUSA Behe knowingly permitted false testimony at trial.
Accordingly, Defendant has not carried his burden to show that he has a
clear and indisputable right to a writ of mandamus compelling AUSA Behe “to correct false
testimony of the government witness.” Therefore, his petition and related motion for an
order to show cause will be denied.
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IV.
Conclusion
For the foregoing reasons, the court will deny Defendant’s petition for a writ
of mandamus (Doc. 185), and will also deny the related motion (Doc. 187) for an order to
show cause. The court will dismiss as moot Defendant’s motion for leave to proceed IFP
(Doc. 186). An appropriate order will follow.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
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