Thompson v. United States of America
ORDER granting in part and denying in part 54 Motion to Quash. Signed by US Magistrate Judge Veronica L. Duffy on 3/28/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ORDER ON MOTION
UNITED STATES OF AMERICA,
This matter is before the court on movant Scott Thompson's pro se
motion to amend, set aside, or vacate his sentence pursuant to 28 U.S.C.
§ 2255. Mr. Thompson has now filed an amended motion, a 231-page
memorandum in support, and 2,606 pages of exhibits to his memorandum.
See Docket Nos. 36-53. The government moves to quash Mr. Thompson’s
memorandum on the grounds it exceeds the allowable page limit. See Docket
No. 54. Alternatively, the government requests Mr. Thompson bring his
memorandum into compliance with Local Rule of Civil Practice 7.1(B)(1). Id.
This matter was referred to this magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) & (B) and the October 16, 2014, standing order of the Honorable
Jeffrey L. Viken, Chief United States District Court.
On May 17, 2011, a grand jury indicted Mr. Thompson in the District of
South Dakota, Western Division, on multiple counts including False Claims,
False Document Submitted to a Department or Agency of the United States,
Fraud by Wire, and Receiving Stolen Government Money. See United States v.
Scott Thompson, CR 11-50054, Docket No. 1 (D.S.D.). Mr. Thompson entered
into a plea agreement and pled guilty to count 2 of the indictment on March 1,
2012 (Doc. 45). Sentencing was scheduled for June 15, 2012 (Doc. 46). On
the morning of the scheduled sentencing hearing, Mr. Thompson filed a motion
to withdraw his guilty plea. (Doc. 50). After a hearing, the court granted the
motion and permitted Mr. Thompson to withdraw his plea (Doc. 56).
The grand jury issued a superseding indictment on September 24, 2013
(Doc. 92). Prior to trial and on motion of the government, the court dismissed
count 4 of the superseding indictment.1 See Doc. 203. A jury trial was held
October 20-24 and 27-30, 2014 (Doc. 213). The jury found Mr. Thompson not
guilty on counts 1, 4, and 7 and guilty on counts 2, 3, 5, 6, 8, 9 and 10 (Doc.
218). A motion for judgment of acquittal and for new trial was filed on March
30, 2015 (Doc. 255). The motion was denied on May 28, 2015 (Doc. 279).
Sentencing occurred on May 28, 2015, and judgment of conviction was entered
on May 29, 2015 (Doc. 283). Mr. Thompson was sentenced to 5 years’
probation on all counts with the terms running concurrently. An amended
Because the court dismissed count 4 of the superseding indictment,
each count thereafter was renumbered in the sequence of charged counts.
judgment was filed on August 31, 2015, modifying the previous restitution
order (Doc. 295). Mr. Thompson did not file a direct appeal.
Mr. Thompson filed the pending motion to vacate, set aside or correct
sentence on May 27, 2016. He asserts the following four grounds for relief:
Subverting the Fact-Finding Process in violation of 18 U.S.C.
§§ 1621, 1623 and of rights afforded under the Fourth, Fifth,
Eighth, and Fourteenth Amendments to the US Constitution
Ineffective Assistance of Counsel pursuant to Strickland v.
Washington, 466 U.S. at 688 (1984) and its progeny and in
violation of rights afforded under the 5th and 6th Amendments to
the US Constitution
Prosecutorial Misconduct violation of rights under the Fourth,
Fifth, and Eighth Amendments of the United States Constitution
and in violation of Department of Justice guidelines set forth in the
United States Attorneys’ Manual §§9-11.015 & 9-11.334
Broadening the Indictment in violation of rights afforded under the
Fifth Amendment to the US Constitution for the right to indictment
by a grand jury
See Doc. 36, pp. 5-6.
The government moves to quash Mr. Thompson’s memorandum in
support of his motion on the grounds the memorandum exceeds the allowable
page limit. Alternatively, the government requests Mr. Thompson be ordered to
bring his memorandum into compliance with the local rules. The government
refers to Local Rule 7.1(B)(1).
Local Rule of Civil Practice 7.1(B)(1) provides:
Briefs and any attachments other than documentary evidence
attached in accordance with D.S.D. LR 56.1(A) must not exceed 25
pages or 12,000 words unless prior approval has been obtained
from the court. If a brief exceeds 25 pages, it shall be
accompanied by a certificate by the attorney, or an unrepresented
party, that the brief complies with the type-volume limitation. The
person preparing the certificate may rely on the word count of the
word-processing system used to prepare the brief.
Further, Local Rule 83.8 provides in relevant part:
LR 83.8 Writs of Habeas Corpus and Motions Pursuant to 28
U.S.C. § 2255
A. Filing Requirements. Petitions for writs of habeas corpus
pursuant to 28 U.S.C. § 2254 and 28 U.S.C. § 2241, motions to
vacate sentence pursuant to 28 U.S.C. § 2255, and applications to
proceed in forma pauperis must be signed and legibly written or
typewritten on forms prescribed by the court in accordance with
the instructions provided with the forms unless the court finds, in
its discretion, that the petition, motion, or application is
understandable and that it conforms with federal and local
requirements for such actions. Copies of the relevant forms and
instructions will be provided by the clerk of court upon request.
The court may strike or dismiss petitions, motions, or applications
that do not conform substantively or procedurally with federal and
local requirements for such actions.
Mr. Thompson filed his amended motion to vacate on the form provided,
as required by DSD LR 83.8. His supporting memorandum, however, far
exceeds the page limit which is imposed on every brief filed in support of a
motion pursuant to LR 7.1(B)(1). That his memorandum exceeds the allowed
page limit, however, does not necessitate the quashing of Mr. Thompson’s
motion. Good cause appearing, it is hereby
The government’s motion to quash (Doc. 54) is DENIED;
The government’s alternative motion to require compliance with
the local rules (Doc. 54) is GRANTED. Mr. Thompson’s over-length brief (Doc.
37) will not be considered by the court. Mr. Thompson shall re-submit a
memorandum which complies with L.R. 7.1(B)(1) on or before April 28, 2017.
Upon receipt of Mr. Thompson’s memorandum as described in
Paragraph (2) above, the United States Attorney for the District of South
Dakota will serve and file an answer or responsive pleading to the motion 30
DATED this 28th day of March, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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