The opinion of the court was delivered by: DuBois, J.
On June 1, 2007, after a jury trial, defendant Leon Henry was convicted of conspiracy to make false statements to a federal firearms licensee, making false statements to a federal firearms licensee, and possession of a firearm by a convicted felon. On November 25, 2008, this Court sentenced defendant to 96 months' imprisonment, three years of supervised release, an $800 fine and a $300 special assessment. Defendant promptly appealed his sentence, but not his conviction, to the United States Court of Appeals for the Third Circuit. The Third Circuit affirmed defendant's sentence on April 26, 2011.
Defendant filed a pro se motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on January 30, 2012 ("§2255 Motion"), and a Memorandum of Law In Support of Motion to Vacate or Correct Sentence Pursuant to 18 U.S.C. §2255 ("Defendant's Memorandum of Law"). The government filed a response on May 7, 2012, and defendant filed a reply on July 12, 2012. The claims asserted by defendant in his §2255 Motion are as follows: (1) the jury was made aware of defendant's prior conviction for possession of a stolen firearm, violating his due process rights; (2) the jury was made aware of defendant's incarcerated status, violating his due process rights; (3) a demonstrative firearm received in evidence was unfairly prejudicial to defendant; (4) defendant should have been formally charged with the crime of Witness Tampering, rather than receiving a sentence enhancement under §3C1.1 for obstruction of justice; (5) defendant received an unconstitutional penalty for a future crime when his sentence was enhanced under §5K2.0, for possession of a firearm in connection with another felony; (6) the Court erroneously imposed an $800 fine as a component of defendant's sentence; (7) the Court violated defendant's ex post facto rights by using Sentencing Guidelines that were harsher than those in place at the time of his offenses; and (8) the Court should vacate its separation order barring defendant from his brother.
On July 12, 2012 defendant also filed a pro se motion for Summary Judgment with respect to his §2255 Motion. The government filed a Response and Cross Complaint for Summary Judgment on August 15, 2012, and defendant filed a reply on August 31, 2012.
Further, on August 23, 2012, defendant filed a pro se Motion to Proceed In Forma Pauperis and a Motion for a More Definite Statement with Respect to the Government's Cross-Complaint for Summary Judgment.
For the reasons that follow, the Court denies defendant's §2255 Motion, Summary Judgment Motion, Motion to Proceed In Forma Pauperis and Motion for a More Definite Statement. The government's Cross Complaint for Summary Judgment is denied as moot.
The background of this case is set forth in detail in previous opinions. See United States v. Henry, 425 F. App'x 116 (3d Cir. 2011) (affirming District Court's judgment of sentence); United States v. Henry, Cr. No. 06-33-02, 2007 WL 879007 (E.D. Pa. Mar. 21, 2007) (denying miscellaneous pro se motions of defendant); United States v. Henry, Cr. No. 06-33-02, 2007 WL 1892678 (E.D. Pa. June 28, 2007) (denying defendant's motions for judgment of acquittal and for new trial). Accordingly, the Court recites in this Memorandum only those facts necessary to explain the Court's rulings on the pending motions.
At trial and sentencing, the government presented evidence showing the following: The case involved multiple attempts, both successful and unsuccessful, by defendant and his brother Andre Henry to acquire firearms through straw purchasers. Defendant had previously been convicted of two felonies: (1) conspiracy to commit credit card fraud, and (2) possession of a stolen firearm, and thus was prohibited from purchasing firearms. (TS8 at 101.) Andre Henry was also a convicted felon and could not purchase firearms. United States v. Henry, Cr. No. 06-33-01, 2011 WL 3417117 at *1 (E.D. Pa. Aug. 3, 2011).
In the summer of 2003, defendant asked Starlene Herbert if she would buy weapons for him and his brother, specifically inquiring whether she had a clean conviction record so that she would be able to purchase firearms. (TS5 at 137-38.)*fn1 He also asked Herbert to recruit other "females" to obtain identification and purchase weapons for him. (Id. at 137.) In response, Herbert recruited Tameka Niblack to straw purchase firearms for defendant and his brother. (Id. at 138.)
Defendant thereafter gave both Herbert and Niblack money to obtain identification from the Pennsylvania Department of Transportation. (Id. at 139.) On October 2, 2003, defendant and his brother drove Herbert and Niblack to the Shooter Shop, a gun store. (T2 at 109, 112.) Defendant and his brother entered the store and identified a specific AR-15 assault rifle. (Id. at 109-10.) Upon exiting, they gave Herbert and Niblack cash and directed the two women to purchase the firearm they had identified. (Id. at 110.) However, the store clerk refused to sell the gun to Herbert and Niblack as they were unable to show the clerk they could operate the weapon. (Id. 110-11.) Immediately afterwards, defendant and his brother drove the two women to another gun store, Philadelphia Archery and Gun Club. (Id. at 113, 196.) Defendant and his brother again entered the store, identified a specific AR-15 assault rifle, and told Niblack to buy the gun which they had picked out. (Id. at 113.) However, when Niblack attempted to purchase the firearm the store clerk refused to sell her the gun as she once again was unable to demonstrate to the clerk that she could operate the weapon. (Id. at 113, 196.)
As a consequence of these failed purchase attempts, both defendant and his brother became, in Niblack's words, "more determined . . . [and] more desperate" to have the women purchase weapons for them. (Id. at 114.) That same day, both defendant and his brother gave Niblack and Herbert training in the use of an AR-15 assault rifle and a nine millimeter pistol. (Id.) Defendant specifically told Herbert that the reason for the training was, in Herbert's words, "to purchase another weapon from another gun shop." (TS5 at 143.)
On the next day, October 3, 2003, defendant and his brother again asked Niblack to purchase a firearm, and this time Andre Henry drove her and defendant to Lock's Philadelphia Gun Exchange. (T2 117.) Defendant provided Niblack with the location in the store of the specific firearm that he wanted her to purchase, an AR-15 Olympic Arms model, as well as over $1,000 in cash to buy the weapon. (Id. at 117-18.) The store did not have an Olympic Arms model AR-15, but they had a comparable Bushmaster AR-15, which she purchased. (Id. at 117-19.) When she finished buying the gun, Niblack exited the store and "gave [the gun] to Leon--he looked at it briefly and put it in the trunk of Andre's car." (Id. at 120.)
Then, on October 4, 2003, Andre Henry drove Herbert and Niblack back to the Philadelphia Archery and Gun club and directed each of them to purchase a nine millimeter Glock handgun. (Id. at 57-58, 121, 197, 200.) Niblack successfully bought a Glock handgun but when Herbert attempted to purchase a similar weapon, she was arrested on an outstanding bench warrant. (TS5 at 143.) Subsequently, on October 8, 2003, Niblack met defendant at his house, where defendant stated that "he wanted to get a Glock 19, because the first Glock 19 [Niblack purchased] was for [his brother]." (T2 at 131.) Andre Henry then drove Niblack to The Firing Line, a gun shop, so she could purchase a Glock handgun for defendant. (Id. at 129-33.) Niblack was given cash and she successfully purchased the firearm. (Id. at 133-35)
Approximately one to two weeks after Niblack purchased the Glock handgun, defendant contacted her again. (Id. at 135.) He stated that he wanted Niblack to stage a break-in of her own residence, by "actually kick[ing] in [her own] back door," and falsely report as stolen the guns that she had purchased. (Id. at 136.) Niblack, however, refused to participate in defendant's scheme, and the break-in was never staged. (Id.)
Defendant was arrested on January 27, 2006 and indicted several times, culminating in the Second Superseding Indictment, which charged defendant with: (1) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (2) conspiracy to make false statements to a federal firearm licensee in violation of 18 U.S.C. § 371; (3) making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A); and (4) conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371. The jury found defendant guilty of the firearms offenses but acquitted him of conspiracy to commit bank robbery.*fn2
After defendant was convicted in June 2007, he made multiple threats to kill the prosecutor who handled his case. In October 2007, when defendant discovered that his cellmate ("Inmate-1") had the same prosecutor, defendant exclaimed that he would "kill that b---ch, her and her daughter." (TS5 at 176.) Inmate-1 inquired as to how defendant knew the prosecutor had a daughter, and defendant stated that he had seen in his trial transcripts that the prosecutor had requested a continuance to take her daughter to the hospital. (Id.) Defendant further told Inmate-1 that he "worked in the medical field, he had access to medical records," and those records could be used to locate the prosecutor and her daughter. (Id. at 178.) When Inmate-1 asked why defendant would take such action, defendant said he felt the prosecutor had unfairly convicted him and added that he would use an AR-15 sniper rifle to kill her. (Id.)
Defendant voiced similar threats to another prison inmate ("Inmate-2"). Inmate-2 testified that in September 2007 he mentioned to defendant that he had the same prosecutor as defendant, whereupon defendant "looked disturbingly angry. . . ." (TS6 at 28.) Defendant then told Inmate-2 that he would not be in prison for very long and when he got out he would "snatch" his prosecutor and her family. (Id. at 29.) He claimed that he would kill the prosecutor's family in front of her, "let her soak it in for about 15, 20 seconds, then he was going to unload the rest of the clip into her." (Id.) Defendant also told Inmate-2 that he would use an AR-15 firearm to kill the prosecutor. (Id. at 42.)
Defendant also threatened Starlene Herbert while they were both incarcerated at the Federal Detention Center prior to defendant's trial. On May 8, 2007, Herbert recognized defendant's voice coming from her cell toilet, through the plumbing of the Detention Center. (TS5 at 147.) Defendant asked to speak with Herbert, and although she refused, defendant told her she should not testify at his trial. (Id.) When Herbert still declined to speak with defendant, he became agitated and declared ...