United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
JOAN H. LEFKOW, District Judge.
In exchange for the government's agreement to move for a reduced sentence, Nickolas Lee pleaded guilty to bank robbery and brandishing a firearm in furtherance thereof and agreed to cooperate with the government. In accordance with the agreement, the court sentenced Lee to 121 months in custody. Two years after he was sentenced, Lee provided information to the government about a different bank robbery with the hope that the government would move to reduce his sentence further. The government did not, and Lee has filed a petition for relief under 28 U.S.C. § 2255. For the following reasons, Lee's petition is denied.
On October 24, 2008 Lee pleaded guilty to two counts of bank robbery and one count of using a firearm during the robbery. Lee cooperated with the government and provided substantial information about other bank robberies in exchange for the government's moving to reduce Lee's sentence substantially. To comply with the terms of his plea agreement, Lee participated in a proffer interview on August 11, 2008, during which he provided information about the bank robberies that were the subject of his indictment. Federal Bureau of Investigation ("FBI") Special Agent Brian Wentz also asked Lee if he had knowledge of any other bank robberies. At that time, Lee provided information about two additional bank robberies that occurred in 2006 in Oak Forest, Illinois. Based on Lee's cooperation, the government moved for a reduced sentence and the court granted the government's motion and sentenced Lee to 121 months imprisonment on January 30, 2009.
In late 2010 or early 2011, after he was sentenced and incarcerated, Lee, through his attorney Raymond Pijon, contacted the Assistant United States Attorney ("AUSA") who had prosecuted him and Agent Wentz. Lee indicated that he had information about another bank robbery. On April 11, 2011, Agent Wentz met with Lee without his lawyer. According to the FBI report from that day,  Lee said he wanted to provide information about an unsolved bank robbery in the hopes that the government would move to reduce his sentence. Lee started to give Agent Wentz details about an unsolved 2006 bank robbery in Homewood, Illinois ("the Wicks robbery"). Lee recounted that in 2006, he was approached by an acquaintance named Kevin Wicks. Wicks took Lee to a female's home in Matteson, Illinois, where they met two young women, one of whom was a bank employee. Lee learned that the group was "looking for someone to pull off [a bank] robbery." (Dkt. 12, ex. 1 at 17.) Later, Lee went to the bank employee's house with a man he identified as "Vino" to discuss the logistics of the robbery.
Before the Wicks robbery occurred, however, Lee robbed a different bank. When he was approached after that to participate in the Wicks robbery, he declined. Lee gave Wicks $2, 000 of the money Lee had stolen during his bank robbery.
On December 11, 2006, the day of the Wicks robbery,  Wicks asked Lee to come over to his home. Wicks showed Lee the money he, Vino, and another man, Spencer Taylor, had robbed from the bank that morning. Wicks told Lee about details of the robbery and gave Lee $2, 000. Lee and Wicks then went shopping together.
While Lee was recounting these details to Agent Wentz, Agent Wentz showed Lee surveillance photographs from the Wicks robbery. Lee identified Wicks and said that a second man resembled Vino. Agent Wentz's notes also reflect that he explained to Lee that any information in the case would be provided to the government but "no promises could be made as to any benefit [Lee] would receive from talking." ( Id. )
The government arranged a proffer meeting with Lee, his attorney, Agent Wentz, and AUSA Philip Fluhr on August 8, 2011. At the outset of the meeting, Lee and his attorney, Pijon, executed a proffer letter. ( See dkt. 12, ex. 3.) The proffer letter is silent as to the government's agreement to move to further reduce Lee's sentence and states that the proffer "embodies the entirety of the agreement" and that "[n]o other promise or agreement exists" regarding information Lee supplied. ( Id. at 2-3.) According to Fluhr, Lee explained at the proffer session why he waited until four years after the Wicks robbery, and two years after the negotiation of Lee's guilty plea, to come forward with information about the Wicks robbery. Lee "expressed that he had expected that Wicks, Taylor, and [Vino] would help support his family while he was incarcerated" but that they "had abandoned him while he was in prison and that he felt that they had been disloyal to him." (Dkt. 12, ex. 2 at 5.)
Based in large part on the information that Lee provided, the government indicted Wicks and a coconspirator, Melanie Meeks. To help secure the indictment, Lee testified before the grand jury by reading a written statement that included the information Lee had about the Wicks robbery. ( See dkt. 12, ex. 4.) The beginning of the statement said:
I have not been promised anything by the United States Attorney's Office, the Federal Bureau of Investigation, or any other person in exchange for my testimony. I am cooperating with the government and testifying today voluntarily, in hopes that the government will make a motion to reduce the sentence I am currently serving and that the government will recommend a reduced sentence with respect to any crime or crimes with which I may be charged in the future.
( Id. at 2.)
About two years after Lee first approached the government with the information about the Wicks robbery, the AUSA's office called Lee's attorney on April 20, 2013, to notify him that the government would not be filing a Rule 35(b) motion to reduce Lee's sentence. Lee's § 2255 petition followed. Lee asserts ...