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United States v. Castano

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR CASTANO, Defendant.

          OPINION AND ORDER

          Sean F. Cox United States District Judge.

         Defendant filed a Petition for Writ of Error Coram Nobis [#95] to vacate his 2006 conviction for felon in possession of a firearm. The parties briefed the issue in the traditional sense, and the Government was granted the right to file a sur-reply in order to address arguments raised by Defendant in his reply brief. The Court held a hearing on Defendant's Petition on September 21, 2016. On January 24, 2017, the Court granted Defendant's post-hearing motion to supplement the record. The parties then fully briefed Defendant's “Supplemental Brief, ” which was filed on February 8, 2017. For the reasons that follow, the Court denies Defendant's Petition for Writ of Error Coram Nobis.

         I. BACKGROUND

         A. Underlying Case

         In 2005, Defendant was charged with Felon in Possession of a Firearm (Count I), Possession with Intent to Distribute Marijuana (Count II), and Carrying a Firearm in Relation to a Drug Transaction (Count III). The charges stemmed from an arrest by the St. Clair County Task Force (“SCCTF”) on June 17, 2004, after members of the SCCTF stopped a black Dodge truck driven by Defendant. The SCCTF found approximately 50 pounds of marijuana boxed in the bed of the truck and a loaded firearm in the truck console. On June 5, 2005, Defendant told FBI Special Agent William Fleming (“SA Fleming”) that it was Defendant's marijuana and he intended to distribute it, but Defendant denied knowledge of the existence of the firearm. See Dkt. No. 106, Appendix A at ¶8 and Ex. 4 (June 6, 2005 FD-302). Defendant also stated that he had borrowed the truck from William Scott Lonsby (“Lonsby”), but he picked up the truck at Vernon Rich's (“Rich”) house. Defendant pled guilty to Count II. A jury convicted him in February 2006 on Counts I and III (the “2006 trial”), and he was sentenced by Judge Zatkoff. On Defendant's appeal, the Sixth Circuit vacated his conviction on Count III. As Defendant had served 42 months at the time of his re-sentencing on Counts I and II, he was released from custody on March 17, 2009.

         B. 2011 Cases

         In two separate criminal cases filed in 2011 and later consolidated (collectively, the “2011 cases”), Defendant, Rich, Lonsby, Cary “Gun Control” VanDiver (“Gun Control”), and other members of the Devils Diciples Motorcycle Club (“DDMC”) were charged with a variety of offenses tied to methamphetamine and firearms. Two trials were held. The first trial took place from September 2014-February 2015 (the “2014 trial”). The second trial, held between September 2015-December 2015 (the “2015 trial”), resulted in Defendant's conviction on four charges, including one count of suborning perjury and one count of obstruction of justice with respect to the 2006 trial. Those two counts stemmed from the solicitation, encouragement, and procurement of false testimony by Keith McFadden (“McFadden”) and his girlfriend, Stella Herron (“Herron”) at the 2006 trial related to the ownership of the firearm in the console of the truck in which Defendant was arrested on June 17, 2004.[1] As discussed below, a number of inconsistencies between testimony offered at Defendant's 2006 trial and testimony offered during the proceedings in the 2011 cases have become apparent to the parties. SA Fleming is and has been the responsible agent with respect to the investigation of DDMC activities over the past decade (or more), and he was the Government agent at the 2006 trial, the 2014 trial, and the 2015 trial.

         C. Defendant's Petition

         On June 30, 2014, Defendant filed the instant Petition, wherein he seeks to vacate his conviction on Count I (Felon in Possession of a Firearm) due to what he has labeled “five levels” of fundamental errors he believes occurred at the 2006 trial: (1) the Government relied on the perjured testimony of Rich and Lonsby; (2) the Government failed to disclose impeachable evidence against Rich, one of its primary witnesses; (3) the Government withheld significant evidence that would have suggested Gun Control and/or Rich actually possessed the firearm Defendant was charged with possessing; (4) the Government used three fact witnesses as expert witnesses to establish as fact that, in essence, “weapons are very prevalent in the drug trade;” and (5) the Government shifted the burden of proof to defendant to prove his innocence insofar as suggesting what the testimony of “Gun Control” would have been. In 2015, this case was reassigned from Judge Zatkoff to the undersigned.

         II. LEGAL STANDARD

         A. Coram Nobis

The writ of error coram nobis was used as a device for correcting fundamental errors in both civil and criminal cases at common law. United States v. Johnson, 237 F.3d 751, 753 (6th Cir. 2001). The writ was suspended in civil cases pursuant to Fed.R .Civ.P. 60(b). Id.; United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 98 L.Ed. 248 (1954). In criminal cases, the Supreme Court held that federal courts retained the power to issue the writ under certain circumstances based on the All Writs Act, 28 U.S.C. § 1651. Morgan, 342 U.S. at 506. A writ of error coram nobis may be used to vacate a federal conviction after a defendant has already served his sentence and relief under 28 U.S.C. § 2255 is unavailable. Johnson, 237 F.3d at 753. A writ of error coram nobis is an extraordinary writ. Id. at 755. It is used only to review errors of the most fundamental in character which render the proceedings themselves invalid. Id. A defendant must demonstrate: 1) an error of fact; 2) unknown at the time of trial; 3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known. Id.
Coram nobis relief is insufficient if the defendant is merely raising legal challenges concerning the validity of the convictions where the defendant had knowledge of the underlying facts at the time of trial. Blanton v. United States, 94 F.3d 227, 230 (6th Cir. 1996). Arguments that were raised or could have been raised on direct appeal are not properly brought on a coram nobis petition which must be based on matters not appearing in the record. United States v. Richard, 221 F.3d 1337, 2000 WL 875369 (6th Cir. Jun.19, 2000) (unpublished) (citing United States v. Keane, 852 F.2d 199, 202-03 (7th Cir. 1988)). A defendant cannot use a coram nobis proceeding to renew claims previously rejected in a 28 U.S.C. § 2255 proceeding. Willis v. United States, 654 F.2d 23 (8th Cir. 1981). Prejudicial errors and newly discovered evidence do not fall into the category of fundamental errors required to issue a writ of error coram nobis. See, Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989).

United States v. Barrow, No. 08-CV-10111, 2009 WL 3059154, at *4 (E.D. Mich. Sept. 24, 2009), aff'd, 455 F. App'x 631 (6th Cir. 2012).

         B. Brady Materials

. . . “Brady recognizes no distinction between evidence which serves to impeach a government witness' credibility and evidence which is directly exculpatory of the defendant. Both are ‘evidence favorable to the accused' and must be disclosed.” Mullins, 22 F.3d at 1372. See also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence, ' nondisclosure of evidence affecting credibility falls within [Brady]”). The Sixth Circuit has said that “[n]o Brady violation exists where a defendant ‘knew or should have known the essential facts permitting him to take advantage of any exculpatory information.'” United States v. Clark, 928 F.2d 733, 738 (6th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991) (quoting United States v. Grossman, 843 F.2d 78, 85 (2nd Cir.1988), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988 (1989)). See also, Mullins, 22 F.3d at 1371-72 (“Brady is concerned only with cases in which the government possesses information which the defendant does not, and the government's failure to disclose the information deprives the defendant of a fair trial”); United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990). Moreover, the Sixth Circuit has indicated that there is no violation of Brady, unless the undisclosed materials would have led directly to the discovery of admissible evidence. Phillip, 948 F.2d at 249-50.

Lawson v. Warden, Mansfield Corr. Inst., 197 F.Supp.2d 1072, 1091 (S.D. Ohio 2002).

         III. DISCUSSION

         The fourth and fifth errors Defendant raised (fact witnesses as expert witnesses and the Government attorney's comments regarding what Gun Control's testimony would have been) are clearly outside the parameters of coram nobis relief.[2] The Court finds that both of those alleged errors could have been raised on direct appeal because they relate to matters that appear in the 2006 trial record. The Court holds that Defendant is not, as a matter of law, entitled to coram nobis relief on either of those alleged errors. The Court now turns to the first three alleged errors.

         A. Testimony of Lonsby and Rich at the 2006 Trial

         Defendant first contends that he is entitled to coram nobis relief based on the perjured testimony of Lonsby and Rich. Defendant argues that the Government cannot use false evidence to convict, nor allow false evidence to go uncorrected. Defendant also argues that Lonsby was the primary Government witness who created the inference that Defendant must have put the gun in the console because Lonsby testified that the gun was not in the truck when Lonsby loaned the truck to Defendant. The Court is not persuaded that such testimony, to the extent that it was perjury, warrants coram nobis relief.

         At the 2006 trial, Lonsby was the first witness. As he had during all pre-trial interviews since 2004, Lonsby testified that he owned the truck that Defendant was driving when Defendant was pulled over and arrested on June 17, 2004. Lonsby testified that he loaned the truck to Defendant to move a motorcycle. Lonsby also testified, consistent with what he had told investigators since June 8, 2005, that he had the truck washed and cleaned prior to giving it to Defendant on June 17, 2004. Lonsby further testified that: (a) he did not own the gun found in the truck, and (b) there was no gun in the truck when he loaned it to Defendant. Lonsby then testified that he had loaned the same truck to Gun Control on June 14, 2004 (and it was returned on the same day), a representation he first made to investigators on January 18, 2006 (i.e., a month before the 2006 trial). On cross-examination, Lonsby stated-for the first time to anyone-that he loaned the black Dodge truck to McFadden and Herron on June 15 and/or 16, 2004.

         Rich was the second witness at the 2006 trial. Rich testified that the black Dodge truck Defendant had borrowed on June 17, 2004 to move a motorcycle belonged to Lonsby. That testimony contradicted what Rich told officers of the St. Clair County Sheriff's Department and SA Fleming on March 11, 2005, when Rich stated that the black Dodge truck driven by Defendant on June 17, 2004 belonged to Rich. Each of Rich and Lonsby testified at the 2006 trial that ...


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