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United States of America v. Kevin William Small

August 9, 2011

UNITED STATES OF AMERICA
v.
KEVIN WILLIAM SMALL



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is a motion (Doc. 130) filed by Kevin William Small ("Small") to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255.*fn1 Small claims that his sentence is improper because: (1) venue was improper in the Middle District of Pennsylvania; (2) the government violated Brady v. Maryland, 373 U.S. 83 (1963), in withholding certain evidence; and (3) he received ineffective assistance of counsel. (Id. at 5). Also pending before the court are two motions: one (Doc. 143) seeking leave to amend the § 2255 motion, and another (Doc. 144) requesting a hearing. In these motions, Small contends that the admission of certain evidence violated his right to confrontation. For the reasons that follow, Small's § 2255 motion (Doc. 130) will be denied, and the ancillary motions (Docs. 143, 144) will likewise be denied.

I. Statement of Facts & Procedural History

On April 12, 2006, the Grand Jury indicted Small on four counts of filing false federal income tax returns, in violation of 18 U.S.C. § 287, and one count of mail fraud, in violation of 18 U.S.C. § 1341. (Doc. 1). Specifically, Small was charged with filing four false IRS form 1040s, seeking tax refunds totaling $1,023,903, while he was incarcerated in Pennsylvania. (Id.)

On May 2, 2006, Small entered a plea of not guilty, and the court appointed Thomas A. Thornton, Esquire, ("Thornton") as counsel on his behalf. (Doc. 12, 13). A Superseding Indictment charging the same offenses was filed on January 31, 2007, to which Small plead not guilty on February 5, 2007. (Doc. 62, 67).

A jury trial took place between February 5 and February 8, 2007. (Doc. 77). Small defended himself on the basis "that he had not filed those tax returns," and to support that contention, he "called several other inmates who testified that they were responsible for filing the false tax returns." See U.S. v. Small, 307 F. App'x 703 (3d Cir. 2009). In turn, the government produced evidence from Small's mail and Small's cell directly linking him to the tax forms. Id. The jury found Small guilty on counts one through four of the Superseding Indictment and not guilty of count five. (Doc. 77). The court sentenced Small to 135 months imprisonment, a three-year term of supervised release, and payment of a $1000 fine and a $400 special assessment. (Doc. 95).

Small appealed to the Third Circuit Court of Appeals on October 9, 2007. (Doc. 96). The Third Circuit affirmed the judgment and sentence on January 23, 2009. See Small, 307 F. App'x 703. On June 1, 2010, Small timely filed the pending motion (Doc. 130) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition. On July 1, 2011, Small filed a motion (Doc. 143) seeking leave to amend his § 2255 motion, and on July 11, 2011, he filed a motion (Doc. 144) requesting a hearing. The court will address these motions in turn.

II. Legal Standard

Section 2255 permits relief for an error of law or fact only where the error constitutes a "fundamental defect which inherently results in a complete miscarriage of justice." See U.S. v. Eakman, 378 F.3d 294 (3d Cir. 2004) (quoting Hill v. United States, 368 U.S. 424 (1962)). A person "who has raised an issue, and had it resolved by a federal court, cannot start from scratch on collateral review and ask the judiciary to proceed as if the first resolution had not occurred." Peoples v. U.S., 403 F.3d 844 (7th Cir. 2005); see also Sanders v. United States, 373 U.S. 1 (1963); Davis v. United States, 417 U.S. 333 (1974).

In United States v. Frady, the Supreme court held that the proper standard of review for collateral attacks on trial errors, where no contemporaneous objection was made, is the "cause and actual prejudice" standard. See United States v. Frady, 456 U.S. 152, 167 (1982); see also U.S. v. Pelullo, 399 F.3d 19, 220 (3d Cir. 2005). Under this standard, "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." See Frady, 456 U.S. at 167-68; Pelullo, 399 F.3d at 220-21.

III. Discussion

In his § 2255 motion, Small alleges that venue was improper in the Middle District of Pennsylvania, that the government suppressed evidence favorable to him in violation of Brady, and that he was provided with ineffective assistance of counsel. The court will address Small's arguments seriatim. The court will then analyze the issue raised in Small's request for leave to amend and his request for a hearing: the alleged violation of Small's rights under the Confrontation Clause.

A. Improper Venue

Small contends that "venue was improper in the Middle District of Pennsylvania because no crime took place within the Middle District of Pennsylvania." (See Doc 131 at 2). Small has waived this argument by failing to raise it in a timely manner. A defendant "must raise the issue of improper venue before the jury returns a verdict." United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999) (citing United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984) (per curiam) ("[T]he courts have consistently ruled that a claim of venue must be raised at least prior to a verdict."); United States v. Cordero, 668 F.2d 32, 44 (1st ...


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