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United States v. Caroni

United States District Court, N.D. Florida, Pensacola Division

July 26, 2019

UNITED STATES OF AMERICA
v.
DENNIS M. CARONI

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Dennis M. Caroni's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF Doc. 710). Caroni's motion raises two grounds for relief.[1] Ground One alleges a Brady violation and Ground Two alleges the Government committed fraud on the Court. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After reviewing the record and the arguments presented, the undersigned recommends that the motion be DENIED without an evidentiary hearing.

         I. BACKGROUND AND PROCEDURAL HISTORY[2]

         Caroni was indicted in September 2010, along with other co-defendants, for conspiring to operate “pill-mills” and to launder money through a company owned by Caroni called Global Pain Management, LLC (“Global”). Global was formed in 2004 and operated several clinics in Louisiana, before opening a clinic in Pensacola in 2005. Caroni was arrested two weeks after the Pensacola clinic opened. After a multi-week trial, during which Caroni was represented by retained counsel, Edward R. Shohat, Esq., a jury found Caroni guilty of conspiracy to dispense controlled substances in violation of 21 U.S.C. § 841(a)(1) and to commit money laundering.

         On February 6, 2013, the Court entered a judgment sentencing Caroni to 36 months of imprisonment on Count One and 240 months on Count Two, to run concurrently.[3] ECF Doc. 563. Caroni appealed his judgment, represented by Nathan Dershowitz, and on September 1, 2015, the Eleventh Circuit affirmed Caroni's convictions and sentence. ECF Doc. 706. The United States Supreme Court denied certiorari on June 28, 2016. ECF Doc. 707. On June 26, 2017, Caroni, through retained attorney William Kent (“Kent”) timely filed the instant § 2255 motion. ECF Doc. 710.

         II. LEGAL STANDARD

         “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).

         III. CARONI'S § 2255 MOTION

         As stated above, Caroni's § 2255 motion contains two grounds for relief, both of which relate to the Government's corruption investigation of DEA Task Force Agent Donald Nides (“Nides”). The circumstances surrounding Agent Nides' indictment and trial read like a tragic detective novel, and while salacious, have very little to do with Caroni's conviction.

         Nides was a New Orleans Police Department Officer, who was also deputized as a DEA Tactical Diversion Task Force Member. ECF 719-2. On February 21, 2014, the Government indicted Nides for conspiring with Tiffany Miller (“Miller”) and Dr. Joseph Mogan (“Mogan”) to dispense quantities of certain controlled substances outside the scope of professional practice and not for legitimate medical purposes. ECF 719-3 at 5, United States v. Nides, United States District Court, Eastern District of Louisiana, Case No.: 2:14-cr-00040. Specifically, the superseding indictment alleges that from 2004 to March 2008, Nides knew the Omni Clinics (clinics owned by Miller and Mogan) were operating as “pill mills” for drug seekers and abusers and “failed to investigate or refer for prosecution” the clinics, its owners or operators, and “failed to disclose the true nature of the unlawful activities occurring daily” “or his own actions with Miller.” ECF Doc. 719-3 at 12. The superseding indictment further alleges that Miller paid Nides cash and performed sex acts on Nides in exchange for assistance in “attempting to evade law enforcement investigation and prosecution” ECF Doc. 719-3 at 12. After Miller and Mogan pled guilty and were set to testify against Nides, Nides took his own life. See ECF Doc. 719-1 at 14, docket entries 121-124, 135.

         Neither the indictment nor the superseding indictment contain any allegations of wrongdoing related to any work Nides did on the DEA's investigation of Caroni or Global. Indeed, the only reference to Caroni or Global is an allegation that Nides provided confidential information to Miller regarding a search warrant that was to be executed on a “pain management” clinic managed by Miller's sister that was in competition with Omni. ECF Doc. 719-3 at 14. That clinic was Caroni's clinic, Global. ECF Doc. 719-3 at 20.

         Caroni claims he personally met with Nides in 2007 to review procedures for Global and to ensure it was operating in compliance with the law, including turning over “300 plus files” and “review[ing] Global's operations with Nides.” ECF Doc. 710 at 10. He claims Nides used the information to build a case against Caroni and divert law enforcement attention from the competing clinics. According to Caroni, Nides “needed to divert attention from the clinics he was protecting and needed a fall guy, which is where Global and Caroni came in, ” to “maintain the cover that he was actively working to develop a case against illegal pain clinics” while also “eliminating his mistress' primary competition.” ECF Doc. 710 at 11. Caroni maintains that evidence of Nides' corruption would have created a reasonable doubt in the jury's mind about the wrongdoing at Global. He also contends that had the Government disclosed this evidence to the defense, Caroni would have been able to negotiate a favorable plea agreement, and he “would have been prepared and willing to enter a guilty plea to charges which would have led to a lesser sentence.” ECF Doc. 710 at 23.

         IV. LEGAL ANALYSIS

         A. Procedural Default

         It is well settled that a § 2255 petition is a collateral challenge to a judgment, which cannot take the place of a direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982). Thus, a defendant must assert all available claims on direct appeal. See Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). Indeed, relief under § 2255 “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.” Richards v. United States, 837 F.2d 965, 966 (11th Cir.1988) (quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sep.1981)).[4] The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . .” Id.

         Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). In procedural default cases, the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all. See, e.g., Smith v. Murray, 477 U.S. 527, 534 (1986); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.1992). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' or actual ‘prejudice.'” Bousley v. United States, 523 U.S. 614, 622 (1998).

         Caroni states the alleged Brady violation only became apparent when Nides was indicted in February 2014. The Government does not appear to dispute that assertion, but nonetheless contends Caroni's claim is procedurally defaulted because the indictment was released while Caroni's case was pending on direct appeal. Caroni contends that because the record on appeal did not include Nides' indictment, he could not have raised this issue on direct appeal. While Caroni is correct that Caroni's appeal is limited to the record before the appellate court, Caroni's argument fails to consider Federal Rule of Criminal Procedure 33.

         Rule 33 allows a defendant to file a motion for new trial based on newly discovered evidence, including a Brady claim, within three (3) years of the judgment, even when an appeal is pending. Fed. R. Crim. P. 33. The fact that an appeal of the judgment is pending does not divest the district court of jurisdiction over a motion for new trial. See United States v. Smith, 433 F.2d 149, 152 (5th Cir. 1970); United States v. Khoury, 901 F.2d 975, 976, n.3 (11th Cir. 1990). When such a motion is filed, the district court can deny the motion or certify its intent to grant the motion to the appellate court so the appellate court can remand the case. See Smith, 433 F.2d at 152 (“[t]hat the district court did not have authority to grant a motion for new trial while the case was on appeal does not mean, however, that the district court did not have jurisdiction to hear the motion”); United States v. Cronic, 466 U.S. 648, 666, n.42 (1984) (“The District Court denied that motion [for a new trial under Fed. R. Crim. P. 33] for lack of jurisdiction because the case was pending on direct appeal at the time, but that ruling was erroneous. The District Court had jurisdiction to entertain the motion and either deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case.”).

         In other words, even assuming that Caroni was unaware of Nides' alleged wrongful conduct until after Nides' indictment in February 2014, he learned of it within 3 years of his judgment and, thus, Caroni could have filed a motion for new trial with the district court and raised these claims, even while his direct appeal was pending. If the district court denied the motion, then Caroni could have appealed the court's denial. If the district court was inclined to grant the motion, then the court would have certified its intent to the appellate court and sought remand. See United States v. Hays, 454 F.2d 274, 275 (9th Cir. 1972) (“We point out that where there is an appeal from a judgment of conviction and a later appeal from the denial of a motion for a new trial on the ground of newly discovered evidence, there should be a second appeal, which usually can be consolidated with the original appeal.”). Although a Rule 33 motion is not part of the ‘direct appeal' from a judgment and, thus, does not toll the one-year time limitation for filing a § 2255 petition under the AEDPA, it is a part of the direct appeal process once incorporated into the direct appeal under Rule 4(b). See Barnes v. United States, 437 F.3d 1074, 1078 (11th Cir. 2006) (citing Trenkler v. United States, 268 F.3d 16, 22 (1st Cir. 2001)).

         Thus, it appears that Caroni could have raised the issues he now raises in this petition on direct appeal. Indeed, while the appeal was pending, Caroni's appellate counsel reached out to the Government, requesting Brady material relating to Nides. ECF Doc. 713-1 at 2. However, whether Caroni was obligated to divert from his pending direct appeal and file a motion for new trial after Nides' indictment, regardless of the status of his appeal, has not been specifically addressed by this circuit. According to the Seventh Circuit, a Brady violation presents a constitutional claim which is cognizable under § 2255 and Rule 33, giving a defendant the “option of filing a Rule 33 motion or a timely § 2255 motion.” United States v. O'Malley, 833 F.3d 810, 815 (7th Cir. 2016) (emphasis supplied). Conversely, the Tenth Circuit found a defendant's § 2255 petition procedurally barred because he failed to raise his Brady claim based on newly discovered evidenced in a Rule 33 motion. See United States v. McCullah, 136 Fed.Appx. 189, 193 (10th Cir. 2005). The McCullah court, however, chose to decide the issue on the merits - as will the undersigned.[5]

         B. ...


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