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United States of America v. Marcel Harper

December 20, 2010

UNITED STATES OF AMERICA
v.
MARCEL HARPER



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

December 17, 2010

Before the Court is Marcel Harper's pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is denied.

I. BACKGROUND

On March 12, 2007, Harper was convicted by a jury of conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (Count I); armed bank robbery, and aiding and abetting armed bank robbery, of the Artisans Bank in Wilmington, Delaware on April 14, 2004, in violation of 18 U.S.C. §§ 2113(d) and 2 (Count II); use and carrying, and aiding and abetting the use and carrying, of a firearm in connection with a crime of violence on April 14, 2004, in violation of 18 U.S.C. §§ 924(c) and 2 (Count III); armed bank robbery, and aiding and abetting armed bank robbery, of the Citizens Bank in Brookhaven, Pennsylvania on June 15, 2004, in violation of 18 U.S.C. §§ 2113(d) and 2 (Count IV); and use and carrying, and aiding and abetting the use and carrying, of a firearm in connection with a crime of violence on June 15, 2004, in violation of 18 U.S.C. §§ 924(c) and 2 (Count V).

On August 2, 2007, Harper filed post-verdict motions seeking judgment of acquittal or a new trial on all counts pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. He filed a memorandum of law in support of his motion on August 21, 2007. Harper argued that he was entitled to judgment of acquittal or a new trial on three grounds: 1) no reasonable jury could have convicted him of the Citizens Bank robbery; 2) the Government failed to prove that the Artisans Bank and Citizens Bank were federally insured institutions at the time of the robberies; and 3) the jury's verdict was based on perjured testimony of FBI Special Agent Vito Roselli. Harper also argued that he was entitled to a new trial because the Court erred by failing to give a special jury instruction regarding the testimony of cooperating witness Ronald Muir after the jury asked that Muir's testimony be re-read. We denied the Motion in a Memorandum and Order dated October 23, 2007.

Harper was sentenced on November 14, 2007 to a sentence of imprisonment of 40 months on each of Counts I, II and IV, to be served concurrently; 84 months of imprisonment on Count III, to be served consecutively; and 300 months on Count V, to be served consecutively. Harper was also sentenced to three years of supervised release on Count I and five years of supervised release on each of Counts II through V, to be served concurrently following his release from imprisonment; and to pay a special assessment of $500.00 and restitution in the amount of $99,089.75. Harper appealed his judgment of conviction and sentence to the United States Court of Appeals for the Third Circuit on November 21, 2007.

Harper raised six issues on appeal: 1) the trial court erred by failing to dismiss the Indictment based on the fact that Special Agent Roselli presented perjured testimony to the grand jury and erred again by failing to strike that testimony at trial; 2) the trial court erred by refusing to grant his post-verdict motion for acquittal based on the insufficiency of the evidence connecting him to conspiracy and to the Citizens Bank robbery; 3) the evidence at trial was insufficient to support his conviction for use and carrying, and aiding and abetting the use and carrying, of a firearm in connection with the Citizens Bank robbery; 4) the evidence at trial was insufficient to establish that both the Artisans Bank and the Citizens Bank were federally insured at the time of the robberies; 5) the trial court erred by failing to give a special jury instruction in connection with the re-reading of the testimony of Ronald Muir; and 6) the sentence imposed was unreasonable. The Third Circuit rejected all of Harper's arguments and affirmed his judgment of conviction and sentence on December 3, 2008. See United States v. Harper, 314 F. App'x 478 (3d Cir. 2008).

Harper's Motion to Vacate, Set Aside or Correct Sentence raises four grounds for relief: (1) Harper's 5-year sentence on Count III and 25-year sentence on Count V are not authorized by 18 U.S.C. § 924; (2) Harper's 25-year sentence on Count V violates the Fifth Amendment; (3) Counts IV and V should be dismissed because Special Agent Roselli's perjured grand jury testimony violated Harper's Fifth Amendment rights; and (4) Special Agent Roselli's conduct at trial violated Harper's Fifth and Sixth Amendment rights.

II. LEGAL STANDARD

Defendant has moved for relief pursuant to 18 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). "'Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors.'" United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).

III. DISCUSSION

A. Harper's Sentence for Counts ...


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