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United States of America v. Kennedy M. Russel

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 25, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KENNEDY M. RUSSEL, DEFENDANT.

The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM and ORDER

Pending before the Court is Russell's motion under Fed.R.Crim P. 60(b)(2) & (6) (Docs. 89).*fn1 Specifically, Russell contends that the Court failed to notice that in Title 26 imposition of restitution is not typically authorized for Title 26 offenses unless agreed to by the parties. Further in support, Russell states: "This new evidence was in existence at the time of trial, which this party was unaware."

Federal Rule of Civil Procedure 60 provides that a court may "relieve a party ... from a final judgment, order, or proceeding [based on] newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial." Fed. R. Civ. P. 60(b)(2). A Rule 60 motion will be granted on the basis of newly discovered evidence only if the evidence is material and not merely cumulative or impeaching. Jones v. Lincoln Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999). Relief under Rule 60 is an "extraordinary remedy that is only to be granted under exceptional circumstances." Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001).

A review of Russell's arguments and the "newly discovered evidence" upon which he relies clearly reveals to this Court that this so called evidence is not "newly discovered evidence" and even Russell admits so himself. Further, Russell raises this issue in his pending § 2255 arguing that his trial counsel was ineffective in that "[t]rial counsel failed at sentencing to oppose imposition of 'restitution.'" Russell has not presented any exceptional circumstances that would justify relief under Rule 60.

Accordingly, the Court denies the motion (Doc. 89).

IT IS SO ORDERED.

Digitally signed by David R. Herndon Date: 2012.10.25 11:27:04-05'00' Chief Judge United States District Court


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