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U.S. v. HILL

NATHAN L. HILL, Defendant.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the motion of Nathan Hill to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, his motion for a new trial pursuant to Fed.R.Crim. Proc. 33, and his two motions for recusal. For the reasons set forth below, the motions are denied.


  In 1995, Hill was indicted along with more than 20 codefendants on charges of conspiracy to distribute cocaine, continuing criminal enterprise, drug trafficking, money laundering, and related offenses. Shortly after the indictment issued, Hill fled the United States, seeking refuge in places as diverse as Mexico, Côte d'Ivoire, and the Bahamas before ultimately settling in Conakry, Guinea. After two trials had been completed for others charged in the indictment, Hill was arrested in Guinea and was returned to this country in early 1998 to face the pending charges along with codefendant Cordell James.

  Hill initially retained Thomas Durkin to represent him. As events progressed, particularly with respect to restriction of assets that were suspected to derive from the conduct described in the indictment, Hill's financial wherewithal deteriorated and the court appointed Durkin and his associate, Patrick Blegen, as counsel. Because the trial and preparation therefor promised to be time-consuming and extended, Durkin asked to be relieved from the appointment. Although he was offered other appointed counsel, Hill opted to represent himself with Blegen remaining in the case as standby counsel. Hill apparently envisioned a more expansive role and greater authority for Blegen than would typically be played by standby counsel. At a court proceeding in November 1998, Blegen informed this court of Hill's wishes and it was decided that Blegen would assume a hybrid role with respect to Hill's representation. See Tr. 11/24/1998 at 3-4. Hill expressed his satisfaction with the resulting arrangement at that time. See id. at 4.

  At first, Hill sought to accelerate the commencement of the trial but later shifted gears and began requesting multiple extensions of filing dates and the trial date. After a three-week extension from the originally scheduled date, the trial commenced in late March 1999, and the avalanche of evidence occupied nearly two months. Hill testified at trial; his codefendant James did not. When all was said and done, the jury found Hill guilty on seven counts. No verdict was reached on Count Three, which revolved around a particular drug transaction alleged to have occurred around January 21, 1993. Hill was acquitted of Count Eight, which involved charges of various money laundering activities. In November 1999, Hill was sentenced to life in prison and fined in excess of $8 million. He and James appealed their convictions, which were upheld in United States v. Hill, 252 F.3d 919 (7th Cir. 2001).

  In June 2003, Hill filed a motion for relief from his sentence pursuant to 28 U.S.C. § 2255 petition. He has also filed two motions to recuse and a motion for a new trial pursuant to Fed.R. Crim. Proc. 33. Each of these motions is addressed below.


  Because the motions to recuse and for a new trial are founded on the same relatively straightforward contentions, we consider them first.

  A. Motions to Recuse

  The motions to recuse, as well as the motion for a new trial, are at bottom regurgitations of motions that have already been raised, considered, and decided.*fn1 The doctrine of the law of the case provides that a court's decision upon a rule of law governs the same issues if they arise at subsequent stages of a case absent a strong reason to depart from the prior decision. United States v. Story, 137 F.3d 518, 520 (7th Cir. 1998). Hill has not advanced any reason to replow the ground covered by this court and the court of appeals, let alone the requisite strong rationale.*fn2

  Hill's two motions to recuse derive their primary foundation from a case called In re Hatcher. 150 F.3d 631 (7th Cir. 1998). Hill argues that the rationale that led the Seventh Circuit to order recusal in Hatcher applies with equal force to his situation. Thus, says Hill, this court's presiding over his trial created an appearance of impropriety that is prohibited by 28 U.S.C. § 455(b).

  Hill's faith in Hatcher is misplaced. The recusal in Hatcher was ordered because of that case's intimate connection to an earlier case, United States v. Hoover, 95 CR 508. A careful reading of Hatcher reveals that the Court of Appeals framed the issue in the following manner: "The question here is whether the Hoover case . . . is so closely related to Hatcher's case that our hypothetical reasonable person would question the judge's impartiality." Id. at 638. The indictment charging Hatcher was one of three virtually identical indictments that came out of one investigation. See id. at 632. The appellate court concluded that the separation of the Hoover and Hatcher proceedings was formal, not substantive, such that the indictments in the two cases were functionally one. Id. at 638.

  Even the most cursory comparison of the indictment in this case with those in Hoover and Hatcher reveals none of the similarities upon which the Seventh Circuit relied in concluding that the latter two were in essence one proceeding. See id. at 633-34, 638. The tangential connection between this case and that prosecution is tenuous at best, and certainly nowhere near strong enough to qualify as "the rare case where the earlier proceedings were so close to the case now before the judge" that recusal was required under § 455(b). See id. at 638. Hill's assumption that Hatcher controls is simply wrong, and the motions to recuse are denied.

  B. Motion for a New Trial

  Relying on the same circumstances that underpin his motions to recuse, Hill requests a new trial based upon his discovery of "new" evidence in the form of transcripts from the Hoover trial recently given to him by a fellow inmate.

  First and foremost, we note that Fed.R. Crim. Proc. 33 provides that "[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." The jury rendered its verdict of guilt on May 24, 1999. The instant motion for a new trial, filed in June 2003, was more than a year late for the three-year deadline. See, e.g., United States v. Ross, 372 F.3d 1097, 1105 n. 6 (9th Cir. 2004). As such, the motion is untimely presented and is denied for that reason.

  Second, this motion, like the motions to recuse, implicates the law of the case. This is at least the second time Hill has moved for a new trial on these same grounds, so even if he had made the instant motion within the three years allowed by Rule 33, he has not provided any compelling rationale to reconsider what has come before.

  Furthermore, even if the motion had been timely filed and presented issues that had not been previously ruled upon, Hill's chances of obtaining a new trial would be slim to none. Motions for a new trial based on newly discovered evidence are not favored and are viewed with the utmost caution. See United States v. Goodwin, 770 F.2d 631, 639 (7th Cir. 1985). A grant of a new trial is appropriate only in extreme cases. See United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998).

  To justify the need for a new trial to present newly discovered evidence, a defendant must show that he or she did not become aware of the evidence before the trial ended and could not, through due diligence, have discovered the evidence during the pendency of the trial. See United States v. Gillaum, 372 F.3d 848, 858 (7th Cir. 2004). The reasons for these requirements are obvious; a trial is meant to provide the factfinder with the fullest amount of admissible evidence upon which to base a verdict. Neither party can be permitted to play just a few of the cards in its hand the first time around, while keeping an ace in the hole to be thrown down only in the event of defeat. In addition to showing that evidence is truly "newly discovered," a defendant must show that the new evidence is material to an issue that was decided during the trial. Id. Finally, and perhaps most importantly, a defendant must show that, in the event of a new trial, the new evidence is so powerful that it will probably lead to an acquittal.

  The transcripts Hill claims he only recently discovered were a matter of public record during his trial and even before. In addition, as the second motion for a new trial makes clear, Hill was aware of the substance of his claims for a minimum of three years and eight months before he filed the instant motion, even if he did not have this particular record of their existence.*fn3 Tr. 10/19/99, at 8-9; Docket, Docs. 1102, 1111. Thus, Hill's claim that he has only recently unearthed a potential basis for relief is at best counterfactual and at worst disingenuous. Moreover, the evidence to which Hill draws attention was not material to any of the issues at his trial; the specific argument he makes is wholly irrelevant to the issues the jury was asked to decide. Even if we were to assume that the ownership of the money discussed within the transcripts was in dispute, no reasonable jury could see that issue as the difference between conviction and acquittal for Hill, given the mountain of other proof against him provided by the government's case and his own testimony.

  It is incumbent upon Hill for purposes of this motion to show each and every one of the four factors described above before a new trial could be possible. See id. He has shown none, so the motion would have no merit even if he had filed it on time, for the first time.

  C. Motion to Vacate, Set Aside, or Correct Sentence

  Finally, we turn our attention to the most substantial of Hill's pending motions: his § 2255 motion.*fn4 Relief under § 2255 is limited to situations where a conviction or sentence is founded in "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). A grant of a § 2255 motion is the rare exception, not the general rule. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); United States v. Kovic, 830 F.2d 680, 683 (7th Cir. 1987). When reviewing a § 2255 motion, the district court must review the record and draw all reasonable inferences in favor of the government. See Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992). Because Hill is not represented by counsel, his motion must be read liberally. Blake v. United States, 841 F.2d 203, 205-06 (7th Cir. 1998).

  The motion*fn5 puts forth ten grounds for relief: involuntary waiver of Hill's Sixth Amendment right to counsel; violation of his Fifth Amendment right to testify in his own defense; violation of his Fifth Amendment right against self-incrimination; failure of the indictment to properly charge an offense; denial of Fifth Amendment due process in a variety of ways; deficient jury instructions; denial of a motion to continue the trial date; inability to pay for counsel of his choice because of threats made to his family members who tried to offer funds; interference with his ability to compel witnesses to testify in his defense; and failure of his counsel to submit a particular jury instruction.

  1. Procedural Default

  First, we must address the government's argument that Hill has procedurally defaulted on his claims, obviating consideration of their merits. When a defendant fails to raise an available claim during direct review, the doctrine of procedural default normally will bar its consideration in a § 2255 motion. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). A district court need not reach the merits of an issue in a § 2255 proceeding unless it has been raised in a procedurally appropriate manner. See Williams v. United States, 805 F.2d 1301 (7th Cir. 1986). A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). This general rule is subject to two exceptions: where a defendant can satisfy the "cause and prejudice" test ...

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