PATRICIA A. SEHZ, District Judge.
THIS MATTER is before the Court upon the Preliminary Report and Recommendation
Movant's 45 claims, not including subparts, are many, varied, and in some respects overlapping and repetitive. Structurally, the Court will first address Movant's requests to file an Amended Reply and to amend his Motion to Vacate. Then, the Court will turn to a discussion of the overarching legal argument set forth in the Government's papers and in the R&R that the 25 claims specified above are facially insufficient to warrant an evidentiary hearing under Rule 8 of the Federal Rules Governing Section 2255 Proceedings for the United States District Courts. Thereafter, the Court will rule on Movant's 25 individual claims as addressed in the Preliminary R&R.
On May 25, 2011, over one (1) year after Movant filed his Motion to Vacate, and over six (6) months after the Government filed its two hundred and forty (240) page response, Movant requested, for the first time, in his Reply brief,
In the Preliminary R&R, Judge Brown recommends that the Court grant the Movant's request to amend the motion to vacate to include Appendix A and deny all of Movant's other requests to amend. [DE 39 at 8-10]. Movant objects and contends that there is no undue delay and there will be no prejudice to the Government if Movant is permitted to amend the Motion to Vacate. Movant states that he seeks to file both an Amended Motion to Vacate and an Amended Reply in order "to enhance the Court's and the [Government's ability to address the claims already raised." Movant also maintains that he will not add new claims, but rather will add detail to existing claims to "enhanc[e] adversarial and judicial disposition of his current claims." Further, Movant avers that the fact that the Government will have to expend additional time and resources to address the Amended Motion to Vacate is not a valid reason to deny Movant leave to amend given the length of the sentence that Movant is serving. [DE 40].
First, as to Movant's Motion for Leave to File an Amended Reply Memorandum, Judge Brown denied this motion. [DE 38]. The Court reviews an Order from a Magistrate Judge concerning a non-dispositive matter for clear error. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72 (a). Movant states that the Court should permit him to file the Amended Reply Memorandum because one of his attorneys was not available, for an unidentified reason, to participate in the drafting of the Reply. Movant further contends that the Court should allow him to "clari[fy] and focus[]" the arguments in the initial Reply. [DE 35]. The Court rejects these contentions. Movant has not provided any explanation for why he was not able to make the arguments contained in the Amended Reply in the initial Reply. Judge Brown granted Movant extensions of time to file the Reply and, ultimately, Movant was given over six months from the filing of the Government's response to do so. As such, the Court must find that Judge Brown's Order denying Movant leave to file an Amended Reply Memorandum was not clear error.
Second, Judge Brown recommends that the Court deny Movant's request for leave to amend the Motion to Vacate. Movant objects to Judge Brown's recommendation on fairness grounds. [DE 40]. This Court must review, de novo, those portions of the R&R to which a party objects. 28 U.S.C. § 636 (b)(1)(C); Jeffrey S. V. State Bd. of Educ. of State of Georgia, 896 F.2d 507, 512-13 (11th Cir. 1990).
Rule 15 of the Federal Rules of Civil Procedure governs amendments in the context of civil proceedings, including motions filed pursuant to 28 U.S.C. § 2255. Mayle v. Felix, 545 U.S. 644, 655 (2005); Farris v. United States, 333 F.3d 1211, 1215 (11th Cir. 2003). Pursuant to Fed. R. Civ. P. 15(a)(1), Movant may not amend his Motion to Vacate as a matter of course because he requested leave to amend in his Reply, after the Government had already responded to the Motion. Thus, Movant may only amend with written consent of the Government or leave of the Court. Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to amend is within the sound discretion of the trial court. Best Canvas Products & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618 (11th Cir. 1983). While the Court should freely give leave when justice so requires, Fed. R. Civ. P. 15(a)(2), the Eleventh Circuit has recognized that it is within the Court's discretion to deny leave to amend due to prejudice, bad faith, or undue delay on the part of the Movant. Warner v. Alexander Grant & Co., 828 F.2d 1528, 1531 (11th Cir. 1987).
Here, the Court affirms and adopts Judge Brown's recommendation to grant Movant's request for leave to amend the Motion to Vacate to include Appendix A — the omitted signature page. The Court also affirms and adopts Judge Brown's recommendation to deny Movant's request to amend the Motion to Vacate to include the other appendices to the Reply brief and to add unspecified amendments purportedly contained in Movant's Reply brief,
The Court also denies leave to amend for an additional reason that is procedural in nature. As referenced above, Movant failed to file a separate motion for leave to amend, and, instead weaved the request into his Reply memorandum, which is improper. Movant also failed to provide the Court with a proposed Amended Motion to Vacate pursuant to Local Rule 15.1. Without a proposed amended Motion to Vacate, the Court cannot ascertain what all of the amendments are and whether they are futile either because they fail to cure the facial insufficiency of the claims or because they are untimely and do not relate back to the original claims.
However, the Court declines to adopt Judge Brown's recommendation to ignore the record citations provided by Movant for the first time in his Reply brief. These citations refer to the trial transcript. Given the voluminous nature of the trial transcript and the fact that Movant is represented by counsel, Movant should have provided these citations in his Motion to Vacate or, at the very least, drafted his claims with more specificity. Nonetheless, the record citations do not constitute new claims or new evidence and the citations were provided before Judge Brown issued his Preliminary R&R. As such, the Court will consider them in evaluating Movant's claims.
"In a habeas corpus proceeding, the burden is on the [Movant] . . . to establish the need for an evidentiary hearing . . . [I]f a habeas petition does not allege enough specific facts that, if they were true, would warrant relief, the [Movant] is not entitled to an evidentiary hearing." Chavez v. United States, 647 F.3d 1057, 1060 (11th Cir. 2011) (internal citations and quotations omitted). The Eleventh Circuit recognized in Chavez that the district court need not "mine the record . . . hunting for truffles buried in briefs," in order to find facts that support Movant's claims. Id. at 1061. Indeed, Rule 2(b)(1) and (2) of the Federal Rules Governing Section 2255 Proceedings provides that a motion filed under 28 U.S.C. §2255 must specify all grounds for relief available to the moving party and state the facts that support each ground, (emphasis added). The Court is not required to hold an evidentiary hearing based on general, conclusory allegations that lack specific factual support. Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991).
It is well-settled that in order to demonstrate ineffective assistance of counsel, Movant must show (1) that Movant's attorney's performance was deficient in that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) that the defective performance prejudiced the defense to such a degree that the results of the trial cannot be trusted. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that Strickland test applies to claims for ineffective assistance of appellate counsel). This standard is not easy to meet as "reviewing courts must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the [Movant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689. Moreover, as to the second part of the test, Movant must establish that there was a reasonable probability that the results would have been different but for counsel's deficient performance. Id. at 696. Finally, the Eleventh Circuit has recognized that in the context of ineffective assistance of counsel claims, "[e]ven if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances would have done so." Rogers v. Zant, 13 F.3d 384, 386 (11
First, this claim is written in such a convoluted manner as to render it nearly unintelligible. However, upon a review of the other claims asserted by Movant as well as the Government's response to the Motion to Vacate, and Movant's reply, the Court has ascertained that Claim 16 concerns the money laundering charges against Movant, specifically Counts 2 and 34-41. By way of background, Count 2 of the indictment charged Movant with conspiring to violate 18 U.S.C. § 1956 (a)(1)(B)(i)
In Claim 16, Movant contends that trial counsel was ineffective in failing to present a defense that Movant lacked the requisite intent to conceal the statutory attributes of the drug proceeds (the nature, location, source, ownership, or control of the funds) from the attorneys he paid with the checks drawn on Israel General Bank. Movant also avers that trial counsel was ineffective in failing to respond to the Government's "false and improper contentions" that Movant concealed "financial information" from his attorneys. Movant maintains that trial counsel was aware that the attorneys who received the checks advised Movant "regarding setting up the check payments and establishing pattern arrangements with other counsel" and, as such, there was no actual or intended concealment of the attributes of the drug proceeds between Movant and the attorneys.
Judge Brown recommends that the Court deny Claim 16 because Movant has failed to provide record citations or affidavits that trial counsel was aware of what the attorneys who received the checks advised Movant to do as discussed in Claim 16. In addition, Movant has failed to identify or explain the "pattern arrangements with other counsel," and to identify who "other counsel" is. Movant objects and claims that he is not required to provide affidavits at this stage of the proceedings and even if required, he provided his own affidavit explaining the allegations in Claim 16. [DE 40 at 15-16]. Movant's citation to his own affidavit submitted on Reply, [DE 28 at 25], is insufficient to cure the defects in this claim because the Court has denied Movant's request to amend the Motion to Vacate to include the affidavit and, regardless, the affidavit does not address whether trial counsel were aware of the advice Movant purportedly received from the attorneys who received the checks. Further, Movant has failed to identify or provide record citations with respect to the "false and improper contentions" made by the Government that Movant concealed "financial information" from his attorneys as referenced in Claim 16.
In addition, this claim rests on the assumption that the section of the money laundering statute under which Movant was charged, § 1956 (a)(1)(B)(i), requires the Government to prove that Movant intended to conceal or disguise the attributes of the drug proceeds from the attorneys who received the checks and that the attorneys were unaware of these attributes. However, the Government need only prove that Movant intended to conceal/disguise the attributes from authorities, not from the attorneys who were parties to these transactions. United States v. Hasson, 33 F.3d 1264, 1274-75 (11th Cir. 2003) (finding evidence to convict the defendant of conspiracy to launder money sufficient where it demonstrated the defendant's attempts to conceal the source, ownership, location or control of the funds from the FBI and the IRS); United States v. Williams, 605 F.3d 556, 564-67 (8th Cir. 2010) (finding evidence sufficient to sustain conviction under §1956 (a)(1)(B)(i) where "the government presented evidence that the defendant structured transactions with fictitious names to avoid law enforcement attention concerning the nature and source of [the] funds") (emphasis added). Thus, the Court affirms Judge Brown's recommendation and dismisses Claim 16.
Claim 17, like Claim 16, concerns Counts 2 and 34-41 of the indictment. Judge Brown recommends that the Court deny this claim summarily because Movant fails to identify any witnesses that should have been called and does not provide affidavits from the unidentified witnesses who he alleges would have testified in the manner described in Claim 17. Movant raises essentially the same objection in response to this claim as he does to Claim 16, namely that he is not required to provide affidavits, and, anyway, he provided his own affidavit. Again, the Court will not consider Movant's affidavit (Appendix D) as it constitutes new evidence not previously part of the record and Movant has not provided any reason for his undue delay in failing to include the information in the affidavit in his Motion to Vacate. Absent consideration of the information in the affidavit, Movant has failed to identify the witnesses that should have been called who would have supported his claim. Movant also fails to identify the witnesses that should have been cross-examined. Without this information, the claim is too conclusory to assess, under the Strickland test, whether counsel acted reasonably in declining to call or cross-examine witnesses on the issue of whether the attorneys were aware of the nature of the transactions referenced in Claim 17. Further, Movant has failed to provide any affidavits to establish that the attorneys who received the checks were aware of the nature of the transactions as alleged in the claim.
In addition, even if the Movant had elicited testimony at trial that the attorneys who received the checks from Movant were aware that they were accepting laundered proceeds,
This claim, like Claims 16 and 17, appears to relate to Counts 2 and 34-41 of the indictment, although the claim itself is very vague. Movant maintains that trial counsel was ineffective in failing to request a jury instruction that was required due to the "unique factual and legal context of this case" because the check payments made to the attorneys were for the purpose of Movant's legal representation under the Sixth Amendment, that the attorneys were aware that Movant was the source of the payments and knew that Movant had been acquitted of "drug conduct," and that the attorneys had instructed Movant to make the payments to them in the manner that he did. [DE 28 at 26-27]. Judge Brown recommends that the Court deny this claim because Movant fails to identify the jury instruction that should have been given and identifies only one of the "impermissible theories" he refers to in the claim. Movant objects on the ground that various formulations of a jury instruction would have been sufficient and that the claim is that counsel was ineffective for failing to request any "theory of defense instruction." [DE 40 at 16].
The Court affirms and adopts Judge Brown's recommendation to deny the claim because Movant fails to identify the jury instruction that counsel should have requested and, thus, the Court cannot assess, under the Strickland test, whether counsel acted reasonably in failing to request the instruction. Further, Movant provides no legal authority for his position that a jury instruction was required because the attorneys received the drug proceeds to pay for legal representation.
Movant objects to Judge Brown's recommendation to summarily deny this claim and asserts that he provided "substantiating details concerning the substance and import of testimony by Richard Martinez" in his Reply brief and in his own affidavit. Movant further contends that trial counsel was aware of Martinez's availability and that an affidavit from Martinez is not required. [DE 40 at 16, DE 46 at 11-12]. The Court affirms and adopts Judge Brown's recommendation to deny this claim. Movant fails to provide an affidavit from Richard Martinez stating that Martinez would have testified in the manner identified in Claim 24 or at all, and as set forth above, the Court will not consider Movant's affidavit, submitted for the first time as part of his Reply brief. Further, during trial, Movant's counsel represented to the Court that Martinez was not available as a witness and had invoked the Fifth Amendment, and, indeed, even after the Government agreed to immunize Martinez, he continued to resist. (DE 2532 at 16303:17-25; 16304:1-17; 16341:14-22; 16342:1-25; 16343:1-25; 16344:1-24; 16363:6-22). In addition, Movant has not provided an affidavit from trial counsel, or any other evidence, indicating that counsel was aware that Martinez would have testified in the manner set forth in Claim 24 or any other evidence.
Further, as noted by the Government, there were a host of problems with Martinez as a witness that could have led trial counsel to reasonably conclude that he should not be called as a witness including: (1) Martinez was a co-defendant with Movant who pled guilty to obstruction of justice; (Case No. 91-6060-CR-MORENO at DE 1179, 1190, 1252); (2) Martinez, who was married to Movant's sisterin-law, vacationed with Movant while Movant was a fugitive and Martinez was an Assistant State Attorney; and (3) Martinez was one of Movant's attorneys and recruited inmate Arturo Avila to commit perjury for Movant and another defendant, Willie Falcon. (DE 2473 at 356-357; 360-361; DE 2490 at 5116:23-25; 5117:1-24; DE 2493 at 6123:24-25; 6124:1-24; DE 2498 at 7354:1-25). Thus, Claim 24 for ineffective assistance of counsel must be denied.
This claim relates to Claim 23. In Claim 23, Movant alleges that Count 6 was constructively amended because witness Oscar Mas did not claim he was offered money to give "false exculpatory testimony" as stated in the indictment, but rather Mas claimed that he was asked to give "mere collateral impeachment evidence that might or might not have been admissible."
In his reply brief, Movant provides some record citations to Mas's testimony from the underlying criminal trial, 99-583-CR-SEITZ. [DE 28 at 32-33]. However, the citations do not establish that Mas was asked to give "mere collateral impeachment evidence that might or might not have been admissible." Indeed, Mas testified (in 99-583-CR-SEITZ) that he was offered $200,000 to give testimony on behalf of Movant during Movant's trial before Judge Moreno (91-6060-CR-MORENO) that Government witness Pedro Rosello told Mas that he was lying to get a sentence reduction. Notably, Movant does not contest that he bribed Mas to testify that Rosello was lying. (DE 2496 at 6815). Although Mas did not ultimately give any false testimony during 91-6060-CR-MORENO, this is of no consequence as Count 6 charged Movant with bribing inmates to give false exculpatory testimony, not that the inmates actually gave such testimony.
Further, Movant does not specify the nature of the "multiple issues undermining the credibility of Mas's claims." Indeed even if Mas had credibility issues, Movant does not explain how those issues relate to the alleged constructive amendment or the ineffective assistance of counsel claim. Thus, the claim is denied.
In this claim, Movant asserts that appellate counsel was ineffective in failing to seek reversal of Movant's conviction as to all obstruction of justice counts. With respect to the counts charging obstruction of justice, Movant was convicted of Count 6 (obstruction of justice through witness bribery of Oscar Mas in violation of 18 U.S.C. §§ 1503 and 2) and Count 8 (obstruction of justice through jury bribery in violation of 18 U.S.C. §§ 1503 and 2). Movant was acquitted of Count 7 (obstruction of justice through witness bribery of Gilberto Santiesteban), Count 9 (obstruction of justice through subordination of perjury), and Count 10 (obstruction of justice through subordination of the flight of a witness). The Eleventh Circuit reversed Movant's conviction as to Count 8 because the bribed juror's out-of-court statements constitute inadmissible hearsay and the statements were the only evidence presented that tied Movant to the bribes. United States v. Magluta, 418 F.3d 1166, 1180 (11th Cir. 2005).
In Claim 27, Movant contends that appellate counsel was ineffective in failing to seek reversal of Movant's conviction as to Count 6 because the admission of the hearsay statements as evidence of the acts charged in Count 8 somehow "tainted" the evidence supporting Count 6. As recommended by Judge Brown, this claim must be summarily denied as conclusory. Movant fails to support, factually, his contention that the hearsay statements were "grossly important to the jury" with respect to Count 6. In fact, Movant fails to identify or establish any link between the hearsay statements deemed inadmissible as to Count 8 and Count 6. The hearsay statements were out-of-court statements by a bribed juror to an FBI Agent that the juror had accepted a bribe from Movant and Movant's co-defendant in 91-6060-CR-MORENO. By contrast, the evidence supporting Movant's conviction as to Count 6 is comprised of testimony by the bribed inmate witness, Oscar Mas, testimony from Mas's wife who received cash payments, testimony from other inmates aside from Mas who said they were bribed by Movant's organization to give false testimony, testimony from the wives and girlfriends of inmates who received cash payments, testimony from Movant's paramour explaining that payments were made, at Movant's direction, to inmates and their family members or lawyers, and testimony by a special agent and Deputy U.S. Marshal concerning Court and Marshal's Service documents identifying inmate witnesses writted by Movant to testify in 91-6060-CR-MORENO. Accordingly, as Movant has not identified any link between the inadmissible hearsay statements that resulted in the reversal of Movant's conviction as to Count 8 and the evidence supporting Count 6, appellate counsel's failure to seek reversal of Count 6 on this ground cannot be deemed ineffective. Thus, Claim 27 is denied.
Judge Brown recommends that the Court deny this claim because Movant has not provided any record citations or affidavits to support this claim. Movant objects on the ground that the Government has formulated a response to this claim and "the very brief record regarding deliberations." Movant again requests an opportunity to clarify. The Court affirms and adopts Judge Brown's recommendation. In addition, Movant has not shown that the alleged improprieties by the jurors constitute a constitutional violation. See United States v. Conover, 772 F.2d 765, 769-70 (11th Cir. 1985). Accordingly, this claim is denied.
This claim concerns Counts 34-41 of the indictment. As previously discussed, Counts 34-41 of the indictment charged Movant with a discrete portion of the overall money laundering scheme in violation of 18 U.S.C. § 1956 (a)(1)(B)(i). Specifically, the charging language from Counts 34-41 of the indictment provides, in part, that Movant "did knowingly conduct, and attempt to conduct, and cause to be conducted, financial transactions affecting interstate and foreign commerce, that is, the writing of the checks . . . on an account at Israel General Bank Ltd., in the name of `Leonard Friedman,' payable to the attorneys . . . [DE 1854 at 36-37]. Put another way, these counts charged Movant with laundering drug proceeds in the form of cash into checks drawn on an Israeli bank used to pay certain attorneys who represented Movant. In Claim 29, Movant contends that trial counsel was ineffective in failing to advise Movant of his right to testify concerning his state of mind in conducting the transactions to pay the attorneys because Movant did not possess the requisite intent to conceal drug proceeds as required by the statutory language.
Judge Brown recommends denial of this claim because Movant fails to identify which of his lawyers requested to be paid in the manner specified in the claim, fails to identify or provide an affidavit from the lawyer who advised Movant of his non-liability, and fails to provide record citations for where the Government "falsely" argued that the "lawyers just didn't understand." Movant objects and contends that Movant's attorneys are known to the Court and that leave to amend should be granted. [DE 40 at 17]. The Court will deny the claim for the reasons set forth in the R&R and for the additional reasons discussed below.
First, for the reasons set forth above, the Court will not consider Movant's affidavit and, as such, there is no evidence in the record that Movant would have testified if he had been "effectively" advised by counsel. In addition, in reading the colloquy between the Court and Movant concerning whether Movant understood his right to testify, it is clear that Movant understood that the right to testify exists, that he had discussed it with counsel, and that he had decided not to testify. (DE 2532 at 16280-84). Moreover, the record before the Court does not satisfy the standard that no reasonable attorney would have advised Movant not to testify. Indeed, it could be argued that if counsel had advised Movant to testify and he had acted on that advice, Movant would have a much stronger argument for ineffective assistance of counsel than he does now. For example, had Movant testified, he would have been subject to cross-examination concerning a number of potential credibility-damaging issues including, but not limited to, his four prior felony convictions, lying to courts and law enforcement officers about his identity, repeatedly jumping bond, and trying to disguise his handwriting during court-ordered handwriting exemplars. (DE 2472 at 148-49; 2473 at 286-318, 420-29; 2474 at 801-06, 812-13, 815-17; 2475 at 918-19; 2506 at 9308-09, 9341-45; 2516 at 11936-45; 2518 at 12363-70). Thus, Claim 29 is denied.
Here, Movant claims that sentencing counsel was ineffective in failing to adequately confer with Movant prior to his resentencing
The Court will adopt and affirm Judge Brown's recommendation and deny this claim summarily. Movant has not identified what "new" and "pertinent information" sentencing counsel should have told the Court that would have provided grounds for a lower sentence.
In this claim, Movant maintains that appellate counsel was ineffective in failing to raise on appeal three issues: 1) denial of a de novo sentencing; 2) denial of the motion to recuse; and 3) denial of Movant's motion to continue the resentencing hearing. Judge Brown recommends that the Court deny this claim because Movant fails to identify the "factual matters" that constitute the "unresolved issue at resentencing." The Court affirms and adopts Judge Brown's recommendation and also denies the claim for the additional reasons set forth below.
As for appellate counsel's failure to raise, on appeal, the denial of a de novo resentencing, Movant acknowledges that the Court was not required to hold a de novo resentencing. The Eleventh Circuit instructed the Court to either reimpose Movant's sentence with a reduction of 120 months if the Government dismissed Count 8 or, at its discretion, resentence Movant on all counts for which he remained convicted. [DE 28 at 46]. Magluta, 418 F.3d at 1186. Accordingly, under Strickland, a reasonable appellate lawyer could have concluded that this issue should not be raised on appeal.
Movant also maintains that appellate counsel was ineffective for failing to appeal the Court's denial of the motion for recusal. Movant claims that the Court should have recused itself because it improperly intruded into the plea process and because it planned to impose a 195-year sentence without first considering new facts or applicable law from defense counsel and allocution by Movant. [DE 28 at 48-49]. As for the Court's alleged participation in the plea process, Movant insists, without explanation, that there were counts remaining to which Movant could have pled guilty. [DE 28 at 46-50]. However, at the time that Movant requested recusal, he was awaiting resentencing and the Government had already notified the Court that it intended to dismiss Count 8. (DE 2980). Accordingly, there were no counts remaining to be tried to which Movant could have pled guilty. (DE 3017 at 2). In addition, the citations Movant provides to the trial transcript concern the Court's response to assertions by Movant's counsel about Movant's post-conviction rehabilitation efforts and were not part of any plea discussion. Further, Movant's contention that the Court should have recused itself because of the statement that it planned to impose a 195-year sentence without first considering new facts or applicable law from defense counsel and allocution by the defendant is also unavailing. The Eleventh Circuit instructed the Court that if the government elected to dismiss count 8, the Court may, at its discretion, either reimpose Movant's sentence but with a reduction of 120 months, or resentence Movant for all other counts for which he remains convicted. Magluta, 418 F.3d at 1186. The Court chose to reduce Movant's sentence by 120 months from 205 years to 195 years. Thus, Claim 35 must be denied because Movant cannot meet the standard that no reasonable appellate counsel would have declined to appeal the denial of the motion for recusal.
With respect to the denial of the motion to continue resentencing, the Movant has failed to identify what "factual matters" he knew that formed the primary unresolved issue at resentencing. Movant has failed to submit a timely affidavit explaining these "factual matters" and has not provided this information in his Reply brief, except to say that they concern "his acceptance of responsibility, acknowledgment of culpability, and post-conviction rehabilitation. [DE 28 at 49]. Finally, Movant fails to properly object to Judge Brown's recommendation concerning this Claim 35 and, instead, renews his request to amend the Motion to Vacate, which, as set forth above, the Court has denied. Movant's objection is improper and inadequate because it simply fails to address Judge Brown's conclusions. Marsden, 847 F.2d at 1548 (habeas petitioner did not sufficiently object to a magistrate judge's recommendation because his objection was insufficiently clear and precise).
Here, Movant contends that appellate counsel was ineffective in failing to raise on appeal the trial court's error in precluding parts of the defense's closing argument and introduction of certain evidence. Judge Brown recommends denial of this claim because Movant did not provide record citations identifying the excluded evidence and did not provide any affidavits supporting such evidence. [DE 39 at 21-22]. The Court declines to adopt this recommendation. Movant provided the record citations to the trial transcript in his Reply brief. [DE 28 at 58]. As discussed above, these citations should be considered in assessing the claim because they do not constitute new claims or new evidence and the citations were provided before the R&R was issued. In addition, the Motion to Vacate provided enough detail that the Government was on notice of the substance of these claims. Thus, the Court will refer the part of Claim 36 dealing with exclusion of evidence, specifically parts a-e, back to Judge Brown for an additional R&R after consideration of the record citations.
However, the Court will deny the rest of Claim 36. Movant claims that counsel was ineffective in failing to raise, on appeal, the trial court's preclusion of parts of the defense's closing argument. While Movant provided, in his Reply brief, record citations to the portions of the trial transcript he was referring to in the Motion to Vacate, he initially provided so little detail in the Motion that the Government was left to guess at what Movant was referring to. [DE 36 1-2 at 12 stating only that "Appellate counsel provided ineffective assistance in failing to raise on appeal the preserved error by the trial court in precluding parts of the defense closing argument. . ."]. Although in responding to the Motion to Vacate, the Government correctly guessed two of the three rulings Movant believes counsel should have challenged on appeal [DE 14 at 212-214], responding to a Motion to Vacate should not require the Government to engage in mindreading, particularly where, as here, Movant is represented by counsel and the Government's closing argument and rebuttal stretches over 218 pages of the trial transcript. Thus, because Movant has not provided any reason for why the citations were not included in the Motion to Vacate and permitting this part of the claim to go forward would prejudice the Government who was unable to respond to part of it due to vagueness, the Court will deny the part of Claim 36 that concerns the closing argument.
In addition, the Court will deny Subpart f of Claim 36 for the same reasons stated above in response to Claim 27. Lastly, Movant fails to object to Judge Brown's recommendation concerning Claim 36 and, instead, renews his request to amend the Motion to Vacate, [DE 40 at 17], which, as set forth above, the Court has denied. Movant's objection is improper and inadequate objection because it simply fails to address Judge Brown's conclusions. Marsden, 847 F.2d at 1548 (habeas petitioner did not sufficiently object to a magistrate judge's recommendation because his objection was insufficiently clear and precise.).
In this claim, Movant asserts that appellate counsel was ineffective in failing to raise, on appeal, the "improper actions" of Gilberto Barrios, which include a Massiah violation and failing to appeal the denial of Movant's motion for a mistrial with respect to the seating of an anonymous, sequestered jury. The Court adopts Judge Brown's recommendations and denies this claim summarily. Movant has not provided any record citations to support his contention that the Court relied on Barrios' statements in granting sequestration. Indeed, Movant has not specified what constitutes the alleged "wholly incredible" statements by Barrios. In fact, the Court stated that "its decision [to seat an anonymous, sequestered jury] rests on the credible evidence of the threatening phone call to the unlisted home phone of a prospective juror known only to the parties, five days before jury selection started."
Judge Brown recommends that the Court deny the claim because Movant fails to identify what instruction should have been given to the jury, why the failure to give the instruction was significant, and does not identify what "time limitations" he is referring to. The Court affirms and adopts Judge Brown's recommendation and also denies the claim for the additional reasons given below.
As for the alleged failure to instruct the jury concerning the "time limitations" applicable to 18 U.S.C. § 1956(h), as charged in Count 2 of the indictment, the background concerning this claim is explained more fully in response to Claim 40 below. However, for purposes here, Movant ignores the fact that the Court gave the following instruction:
Thus, this claim lacks merit and must be denied.
Movant further asserts that appellate counsel should have raised on appeal the trial court's failure to instruct the jury that the protective order expired in 1996 and that the expiration was a pertinent factor in the jury's evaluation of the money laundering charges. However, the parties entered into a stipulation that the protective order was dissolved on March 6, 1996 and the stipulation was read to the jury in 99-583-CR-SEITZ. (DE 2525 at 14373-74). In addition, other testimony was given at trial concerning the dissolution of the protective order. (DE 2495 at 6643; 2532 at 16444-45). Finally, defense counsel referenced the dissolution of the protective order and read the dissolution order to the jury during closing argument. (DE 2534 at 16916:23-25; 16917:1-7). Thus, there was no need to instruct the jury concerning this undisputed fact. Finally, Movant has not properly objected to Judge Brown's recommendation concerning this claim. Thus, Claim 38 is denied.
Judge Brown recommends that the Court summarily deny this claim because Movant has not specified the "theories" that defense counsel was precluded from arguing. However, Movant states in his Reply brief that the Court precluded trial counsel from arguing that the Government had impermissibly relied on overt acts that predated the effective date of the money laundering statute, 18 U.S.C. § 1956(h). Movant provides citations to the trial transcript that he claims support this contention. [DE 28 at 60]. Movant maintains that appellate counsel was ineffective in failing to raise this issue on appeal.
This claim relates to Count 2 of the indictment, which charged Movant with a conspiracy from January 1979 through the return of the indictment in violation of U.S.C. § 1956 (h). (DE 1854 at 25). Certain substantive provisions of § 1956 did not come into effect until October 28, 1992. Thus, the basis of this ineffective assistance of counsel claim is that the Government improperly relied on overt acts that pre-dated October 28, 1992 to prove the conspiracy.
However, Movant has not provided any record citations to show that the Government, in fact, relied on overt acts that predated the money laundering statute in proving Count 2 or that Movant's conviction on this count was based exclusively on pre-enactment acts.
Relatedly, the Government may introduce evidence from prior to the statute's enactment "to demonstrate the conspiracy's genesis, its purpose, and its operation over time." Monaco, 194 F.3d at 386. Thus, Movant has not sufficiently alleged that no appellate counsel acted unreasonably in concluding that this issue should not be raised on appeal. Indeed, because the Court gave the proper jury instruction, Movant could not have been prejudiced by the Court's alleged preclusion of trial counsel's arguments and, as such, appellate counsel could have reasonably concluded that this issue should not be raised on appeal. Finally, Movant has failed to properly object to the recommendation concerning this claim. Therefore, this claim is denied.
Judge Brown recommends that the Court deny this claim because it does not identify the "grounds" upon which appellate counsel should have challenged the enhancement. However, Claim 42 relates closely to Claim 30,
By way of background, Section 2JI.7 states that: "If an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the offense committed while on release as if this section were a specific offense committed while on release." On Movant's first appeal, he challenged the application of the enhancement but not pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). 2006 WL 4402521, at 25. The Eleventh Circuit found that any error in calculating Movant's sentence was harmless because the Court stated that it would reach the same sentence even if the guidelines calculations were erroneous. Magluta, 418 F.3d at 1184. On Movant's second appeal, the Eleventh Circuit declined to consider the arguments Movant asserted as to the Section 2JI.7 enhancement because Movant had not raised those arguments on his first appeal. Magluta, 313 Fed. Appx. at 205.
In this claim, Movant maintains that appellate counsel was ineffective in failing to raise the Apprendi challenge to the § 2JI.7 enhancement on Movant's first appeal. [DE 1-2 at 14-15; 28 at 38-40]. However, as set forth above, in its opinion concerning Movant's first appeal, the Eleventh Circuit found that any error in the sentence calculation was harmless because the Court stated that it would reach the same sentence even if the guidelines calculations were erroneous. Magluta, 418 F.3d at 1184. Thus, Claim 42 is denied.
Movant asserts that appellate counsel was ineffective in failing to raise, on appeal, that Movant's rights were violated because he was not present at the October 6, 2006 status conference. Judge Brown recommends that the Court summarily deny this claim because Movant states that he "could have done something," but fails to specifically identify what he is referring to. As such, Movant fails to identify any prejudice which may have been caused by counsel's alleged error. The Court affirms and adopts Judge Brown's recommendation. In addition, Movant was not sentenced at this conference and no evidence was taken. (DE 3007). Instead, counsel argued whether Movant's presence was required at the resentencing and whether the Court should conduct a de novo resentencing. (Id.). Thus, because Rule 43 of the Fed. R. Crim. P. provides that the defendant's presence is not required when "[t]he proceeding involves only a conference or hearing on a question of law," Claim 43 must be denied for this additional reason. Lastly, Movant fails to object to Judge Brown's recommendation concerning this claim and, instead, renews his request to amend the Motion to Vacate, which, as set forth above, the Court has denied. Movant's objection is improper and inadequate objection because it simply fails to address Judge Brown's conclusions. Marsden, 847 F.2d at 1548 (finding that objections to a magistrate's report and recommendation must specifically identify the findings objected to and that the district court need not consider conclusive or general objections).
"[T]he bar for granting habeas based on prosecutorial misconduct is a high one." Land v. Allen, 573 F.3d 1211 (11th Cir. 2009). Prosecutorial misconduct can only be a basis for relief if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L. Ed. 2d 144 (1986); Brooks v. Francis, 716 F.2d 780, 788 (11th Cir. 1983). The Eleventh Circuit has recognized that "[a] conviction will be set aside for prosecutorial misconduct where the prosecution knowingly introduces false information and there is a reasonable likelihood that the false testimony prejudiced the defendant's rights." United States v. Caporale, 806 F.2d 1487, 1514 (11th Cir. 1986), cert, denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L. Ed. 2d 763 (1987). An evidentiary hearing is required only when the Movant comes forward with allegations of prosecutorial misconduct that are not merely conclusory and are support by a factual basis. Lynn, 365 F.3d at 1238-39; Iacovetti v. United States, 534 F.2d 1189, 1190 (5th Cir. 1976); Rodriguez v. United States, 473 F.2d 1042, 1043 (5th Cir. 1973) (finding no evidentiary hearing required where movant alleged that the Government knowingly used perjured testimony, made false statements about evidence and suppressed evidence, and failed to correct inaccurate testimony of Government witnesses and the movant included portions of the trial transcript and a sworn statement by a government agent).
In this claim, Movant avers that the Government's theory concerning the "designed to . . . conceal or disguise element of the money laundering statute," is not consistent with Cuellar. In Cuellar, the Supreme Court interpreted the "designed to . . . conceal or disguise element" of the "transportation" section of the money laundering statute, 18 U.S.C. § 1956 (a)(2)(B)(i), and held that "merely hiding funds during transportation was not a violation of the statute and that the government must prove that the transportation had the purpose of concealing the source or ownership of the funds." Ortiz-Alvear v. U.S. Att'y General, 429 Fed. Appx. 955, 957 (11
This claim is multi-faceted. First, Movant contends that the Government relied on two false factual premises with respect to the money laundering counts, namely that the attorneys who received the checks were unaware of the source of the funds ("the dumb lawyer argument") and that the payments were made to the attorneys to avoid the protective order, which was no longer valid when the payments were made. Movant further avers that the Government failed to disclose evidence to Movant that undermined the Government's theory that the attorneys who received the checks were unaware of where the money came from. Lastly, Movant maintains that the evidence presented at trial did not establish that the purpose of Movant making payments to his attorneys with checks under a false name was concealment. Rather, the Government's evidence showed only that the transportation of the funds in this manner was for concealment, which is insufficient for conviction under the money laundering statute pursuant to Cuellar.
Judge Brown recommends that the Court summarily deny Claim 9 because (1) Movant failed to cite the record or to an affidavit to support his position that the lawyers receiving the checks knew of the source or falsity of the checks; and (2) Movant failed to provide record cites to establish that the Government relied on the "dumb lawyer argument." Movant objects and provides record citations, which he alleges demonstrate that the Government relied on the "dumb lawyer argument." Movant also contends that he provided citations to the record in his Reply brief. In addition, Movant contends that his own affidavit, which was submitted as part of his Reply in support of his Motion to Vacate ("Appendix D") also support his position concerning the "dumb lawyer argument." [DE 40 at 12-13].
As set forth above, the Court affirms Judge Brown's recommendation to deny Movant leave to amend his Motion to Vacate to include Movant's affidavit. Moreover, portions of the Government's closing argument dispel Movant's contention that the Government relied on the "dumb lawyer argument." (DE 2533 at 16587-90). In addition, the only witness the Government called, who is identified in the indictment as receiving the checks specified in Counts 34-41, is attorney Scott Srebnick. Mr. Srebnick testified that he knew that the checks he received, which were drawn on overseas banks and were from individuals Mr. Srebnick did not know, were provided in exchange for representing Movant and codefendant Willie Falcon. (DE 2495 at 6649-6661). In addition, this claim rests on the assumption that the section of the money laundering statute under which Movant was charged, § 1956 (a)(1)(B)(i), requires the Government to prove that Movant intended to conceal or disguise the attributes of the drug proceeds from the attorneys who received the checks and that the attorneys were unaware of these attributes. However, the Government need only prove that Movant intended to conceal/disguise the attributes from authorities, not from the attorneys who were parties to these transactions. Hasson, 33 F.3d at 1274-; Williams, 605 F.3d at 564-67. Moreover, Movant has failed to provide any record citations or affidavits to demonstrate that the Government failed to disclose certain evidence and has failed to identify the alleged undisclosed evidence with any specificity.
Movant also contends that the Government relied on a false theory that the payments were made to the attorneys to avoid the protective order, which was no longer valid when the payments were made. However, as set forth above, the parties entered into a stipulation that the protective order was dissolved on March 6, 1996 and the stipulation was read to the jury in 99-583-CR-SEITZ. (DE 2525 at 14373-74). In addition, other testimony was given at trial concerning the dissolution of the protective order. (DE 2495 at 6643; 2532 at 16444-45). Finally, defense counsel referenced the dissolution of the protective order and read the dissolution order to the jury during closing argument. (DE 2534 at 16916:23-25; 16917:1-7). Thus, this information was before the jury and the Government did not rely on a false theory in this regard.
Finally, with respect to the entirety of this claim, Movant fails to present any evidence that the Government knowingly proceeded on false theories. Caporale, 806 F.2d at 1514. Thus, Claim 9 must be denied.
The basis for this claim is that although Movant was charged with "concealment" money laundering, he claims that the Government relied on the theory of "proceeds" money laundering to obtain a conviction.
Judge Brown recommends that the Court summarily deny this claim because Movant has failed to provide record citations to support his contention that the Government improperly relied on an "actual proceeds theory" and that Movant failed to identify any particular jury instruction that was erroneously given or omitted. Movant objects and asserts that he provided citations to the record to support this claim in his Reply brief. Movant did provide citations to four pages of the trial transcript in his Reply brief. [DE 28 at 23]. However, these pages of the transcript, which comprise an excerpt of the Government's opening statement, do not establish that the Government relied on a theory of promotional money laundering as opposed to concealment money laundering. Indeed, the Government frequently references the concealment of the funds during opening statement. (DE 2472 at 16-17, 56-58). Moreover, Movant has not provided any record citations to the evidence at trial suggesting that the Government proceeded on a "proceeds" money laundering theory as opposed to a "concealment" theory. While Movant repeatedly insists that he provided citations to the evidence at trial in support of this claim, (DE 40 at 15, DE 46 at 9), the only citations provided are to the Government's opening statement, which is not evidence.
Moreover, the portion of this claim in which Movant avers that the jury was not properly instructed pursuant to Clark and Santos, is without merit. Santos is inapplicable to this case as the Eleventh Circuit has repeatedly found that it applies only to money laundering charges involving receipts for unlicensed gambling operations. See United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009); United States v. Jennings, 599 F.3d 1241, 1252 (11th Cir. 2010). The instant case clearly involves drug proceeds. Further, Clark appears to be wholly irrelevant as it involves detention of aliens. Thus, Claim 12 must be denied.
The basis of this claim is explained above in response to Claim 25. The record citations provided by Movant do not establish that the government constructively amended Count 6. Thus, Claim 23 is denied.
This claim is based on Movant's contention that prior to resentencing, he admitted to his crime, expressed remorse, and accepted responsibility, that the Government knew about Movant's efforts, threatened Movant that if he informed the Court, the Government would take retaliatory and punitive action against him, and that the Government did not inform the Court prior to resentencing of Movant's efforts thereby committing prosecutorial misconduct. Judge Brown recommends that the Court summarily deny this claim because Movant fails to identify what actions he took to accept responsibility and fails to state who advised him that the Government would take punitive or retaliatory actions against him if he told the Court about the efforts he had undertaken to accept responsibility for his actions. In his Reply brief, Movant states that his counsel, Jeffrey S. Weiner, told him that the Government had warned that it would engage in punitive or retaliatory measures toward the Movant if the Movant advised the Court of his efforts to accept responsibility. [DE 28 at 63-64]. However, the Movant fails to identify what the efforts were that he allegedly undertook to accept responsibility for his actions. Movant asserts in the Reply brief that he submitted an affidavit (Appendix D) concerning the actions he took to take responsibility, but, as set forth above, the Court will not consider this affidavit and even if it did, the affidavit does not address this issue. Further, Movant maintains that he will submit affidavits from Yadira Reyeros and Neil Schuster, but Movant did not file these affidavits and, even if he had, the Court would not consider them due to undue delay and prejudice to the Government. In addition, in the Reply brief, Movant refers to the affidavit of Alan Ross. The Court previously declined to permit Movant to file this affidavit. [DE 49, DE 54]. Thus, Movant has failed to identify the efforts he engaged in to take responsibility for his actions.
Finally, Movant fails to object to Judge Brown's recommendation concerning this claim and, instead, renews his request to amend the Motion to Vacate, which, as set forth above, the Court has denied. Movant's objection is an improper and inadequate one because it simply fails to address Judge Brown's conclusions. Marsden, 847 F.2d at 1548 (habeas petitioner did not sufficiently object to a magistrate judge's recommendation because his objection was insufficiently clear and precise.). Thus, this claim must be summarily denied.
This claim is very similar to Claim 44. In Claim 45, Movant contends that the Government knew about his efforts to accept responsibility for his actions prior to resentencing and provided false, incomplete, and misleading information to the Court concerning Movant's failure to accept responsibility. Judge Brown recommends summary denial of this claim because Movant fails to identify what steps he took toward accepting responsibility and how the prosecution was aware of these efforts. For the reasons set forth above in response to Claim 44, Claim 45 is also denied.
In order for a prisoner to obtain habeas relief in challenging a jury instruction, the prisoner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process not merely that the instruction is undesirable, erroneous, or even universally condemned." Frady, 456 U.S. at 169. In Claim 10, Movant alleges that the instruction given with respect to Counts 2 and 34-41 was improper because it failed to sufficiently direct the jurors "to focus on whether the defendant's purpose in conducting the transaction was to conceal statutorily pertinent aspects of the proceeds, rather than on the effective or intended concealment in the use of a mode of transacting, [and thus] the jury was misled as to the crucial elements regarding money laundering charges." The Court gave the following instruction as to the money laundering counts, which Movant fails to identify in his Motion papers:
(DE 2298 at 25).
The fourth portion of the instruction clearly instructs the jury that the Defendant must have engaged in the transaction knowing that it was designed to conceal the proceeds of narcotics trafficking. Indeed, the instruction tracks the language of the statute — 18 U.S.C. § 1956(a)(1)(B)(i). Movant fails to adequately allege how the instruction given by the Court is contrary to the Supreme Court's decision in Cuellar. Movant also fails to offer an alternative jury instruction. Accordingly, this claim is summarily denied.
Judge Brown recommends that the Court summarily deny this claim because Movant fails to identify the portion of the record that he refers to in this claim. Judge Brown further recommends denial because Movant does not affirmatively state that he would have testified at trial. However, in his Reply brief, Movant provides record citations to the colloquy referred to in the claim, which the Court has considered. [DE 28 at 45-46]. The Court will deny this claim for two reasons. First, Movant does not state in his Motion to Vacate that he would have testified at trial. The only affirmative statement by Movant is in his affidavit ("Appendix D"), which, as set forth above, the Court has rejected as untimely and prejudicial. Second, in reading the colloquy as a whole, it is clear that Movant understood his right to testify, that he had discussed it with counsel throughout the trial, and the considerations he weighed in reaching the ultimate decision not to testify. (DE 2532 at 16280-84). His statement reflects a knowing, voluntary, and intelligent waiver. At that point, any further Court inquiry would have inappropriately disturbed the attorney-client relationship. United States v. Van de Walker, 141 F.3d 1451, 1452 (11
Movant contends that the Court committed error in that impermissible hearsay was introduced as to the "principal and overarching charge of the indictment — obstruction of justice through jury bribery." Movant further contends that there were "multiple trial and indictment errors," which created a "fundamentally unfair framework for jury evaluation of the obstruction and other charges." In his Reply brief, Movant maintains that the admission of the hearsay statements with respect to Count 8 "effected a spillover of prejudice that precluded the jury's fair evaluation of the entirety of the obstruction charges, as well as additional charges . . ." Movant further avers that "[t]he highly charged nature of the improper Moya hearsay evidence attributing to [Movant] an involvement in bribing jurors to obtain a favorable verdict in his previous criminal case, and the similarity of the evidence with respect to the remaining obstruction and other charges resting on bribery as well as related attempts to manipulate and evade court processes, gave rise to a substantial likelihood of juror taint as a consequence of the improper Moya evidence." [DE 28 at 31]. Judge Brown recommends that the Court deny Claim 22 because Movant fails to provide record citations for his characterization of the obstruction of justice through jury bribery charge as the "principal and overarching charge of the indictment" and fails to identify the "multiple trial and indictment errors" or to specify how they relate to each particular charge. The Court affirms and adopts Judge Brown's recommendation to deny this claim because it is vague, conclusory, and lacks citations to the record to support the contentions made by Movant. Further, the Court also denies the claim for the same reasons discussed above in response to Claim 27.
Finally, the Court will deny issuance of a certificate of appealability as to the claims addressed in this Order. In order to obtain a certificate of appealability, Movant must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is satisfied if Movant demonstrates "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Jones v. Secretary, 607 F.3d 1346, 1349 (11th Cir. 2010) (quotation omitted); see Lott v. Attorney Gen., 594 F.3d 1296, 1301 (11th Cir. 2010). Here, the Court must deny the certificate of appealability as Movant has not met this standard.
The Court will affirm and adopt the R&R, in part, and deny the claims for the reasons set forth above. Accordingly, upon review, it is
ORDERED that
(1) The Court AFFIRMS and ADOPTS, in part, Judge Brown's finding of facts and recommendation to deny the claims set forth above. [DE 39].
(2) For the reasons set forth above, Claims 9, 10, 12, 16, 17, 19, 22, 23, 24, 25, 27, 28, 29, 32, 34, 35, 37, 38, 40, 42, 43, 44, and 45 of the Habeas Petition [DE 1] are DENIED and Claims 8 and 36 of the Petition are DENIED IN PART. [DE 1].
(3) Claim 36 dealing with exclusion of evidence, specifically parts a-e, is REFERRED BACK to Judge Brown for an additional Report and Recommendation after consideration of the record citations provided in Movant's Reply Brief, [DE 28 at 58].
(4) Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of appealability is DENIED as to Claims 9, 10, 12, 16, 17, 19, 22, 23, 24, 25, 27, 28, 29, 32, 34, 35, 37, 38, 40, 42, 43, 44, and 45 and as to the portion of Claims 8 and 36 ruled on herein
DONE and ORDERED.
