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Anderson v. United States

United States District Court, N.D. Texas, Fort Worth Division

April 24, 2018

HERBERT PHILIP ANDERSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE JUDGE

         By order signed January 30, 2018, the court ordered movant, Herbert Philip Anderson, and the government each to file a memorandum containing all arguments and authorities, with appropriate references to all pertinent parts of the record, [1] in support of that party's position on the subject of whether an evidentiary hearing of the kind contemplated by the Fifth Circuit in its November 1, 2017 opinion and judgment is required. See United States v. Anderson, 712 Fed.Appx. 383 (5th Cir. 2017). The court also gave each party an opportunity to respond to the memorandum filed by the other. Doc.[2] 29. Having received and reviewed the memoranda[3] and responses, the court undertakes its analysis as instructed by the Fifth Circuit.

         By its memorandum opinion and order of October 6, 2014, the court concluded that an evidentiary hearing was not required because the motion and the files and the records of the case conclusively showed movant was entitled to no relief. See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). With regard to the ground now at issue, the court found that movant presented no basis to conclude that the government knowingly presented any false testimony that had a reasonable likelihood of affecting the judgment of the jury. See United States v. Aqurs, 427 U.S. 97, 103 (1976).

         The court first notes that the district court's denial of an evidentiary hearing is reviewed on appeal for abuse of discretion. United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2 006). The court of appeals will only grant a hearing if the movant produced independent indicia of the likely merits of his allegations. Id. Here, the appellate court did not find an abuse of discretion. Rather, it simply determined that the district court should consider whether "Steven Adams' January 10, 2016 letter, [4] which was not before the district court, warrants [an evidentiary hearing]." 712 Fed.Appx. at 3 87. Had the court of appeals determined that the letter warranted a hearing, presumably it would have ordered one.[5] It did not. Thus, the court considers whether the letter would have changed the court's conclusion that movant was not entitled to an evidentiary hearing as he was entitled to no relief as a matter of law.

         For all of the reasons discussed herein, the court concludes that the addition of the letter to the record does not change the court's determination that movant is not entitled to an evidentiary hearing. In particular, the letter itself is too questionable to amount to probative evidence of anything. The genesis of the letter is extremely suspicious to say the least.[6]It appeared, seemingly out of the blue, long after this court had ruled on movant's motion to vacate, set aside or correct sentence under 28 TJ.S.C. § 2255, Doc. 21, and the Fifth Circuit had granted a certificate of appealability on the issue of whether the government knowingly used material, perjured testimony. There is no reason such a letter could not have been submitted to this court along with movant's § 2255 motion. Doc. 1. Of course, had movant acted diligently, he would have obtained an affidavit or declaration.[7]

         The document identified as "the letter" reflects that it is "page 3 of 3" of some item purportedly sent to movant's attorney, Stan Schwieger. Doc. 32 at 008, 016. No explanation has been offered for this notation or where the other pages are or whether the page submitted constitutes the entirety of the letter or only the last page. The letter bears no salutation. Its language is most curious. Given the grammatical errors and misspellings, it is incredible that the purported author articulately says that the Assistant United States Attorney "coached me on how to implicate Andy on being present and involved in a drug deal." Id. And, the letter appears to contain the handwriting of at least two or more people. Notably, the attorney's name and address and the date appear to have been written by a different hand and a different writing implement than the body of the letter.

         Movant has simply offered no rational explanation for any of the questions surrounding the letter. But, even taking the letter at face value, its substance does not entitle movant to a hearing. The letter simply says, "I made up this story" about movant "being present and involved in a drug deal at Hammers [sic] with Medina." Doc. 32 at 016. The letter does not say that any of the rest of Adams' trial testimony was false.[8]

         The letter fails to provide probative evidence[9] that the government knowingly used material, perjured testimony from Adams at trial. Not only does the record on which this court relied in its initial ruling support the court's conclusions, the current record would support the conclusion that Adams did not give false trial testimony. For example, a report of investigation regarding surveillance conducted June 5, 2009, submitted by movant in his reply to the government's response to the § 2255 motion[10] as Exhibit Riproves that: On June 5, 2009, officers observed movant and Gerry[11] arrive together at Gerry's residence in Bedford, Texas. Doc. 14 at ECF 382, 385-86.[12] They saw Medina, a known methamphetamine source, arrive at the house. Id. at ECF 382, 386. They also saw Adams arrive at the house, where he was greeted at the door by Ms. Nance, Id.

         This was just as Adams testified at trial. CR Doc.[13] 895 at 102. The investigative report is confirmed by the information Adams provided in his proffer interview on September 22, 2009, attended by Adams, his attorney, government agents, and the assistant United States Attorney handling the case, Fred Schattman. Doc. 14 at ECF 371, 373-74. And it also is confirmed by the facts to which Adams stipulated in his factual resume, which he swore were true in open court at his rearraignment on December 11, 2009. CR Doc. 92 8 at 58; CR Doc. 3 83. Adams' attorney confirmed that the stipulated facts were consistent with his understanding of the true facts. CR Doc. 92 8 at 58.

         Other trial evidence, including transcripts of conversations between movant and Gerry, established that the June 5, 2009 transaction took place and that movant was at Gerry's house as events transpired. See, e.g., CR Doc. 895 at 72, 76-77, 80, 82, 84-87.

         At trial, Adams was asked about a letter he wrote on August 30, 2009 (the "2009 letter"), which stated:

I, Steve Ray Adams, have known Mr. Anderson, otherwise known as Andy, since March 2002. I have had the pleasure of meeting Andy in his home and at his business, and at no time have I ever witnessed Andy, or anyone around him, doing any drugs or being involved in any illegal activity. To the best of my knowledge, Andy is an upstanding citizen and a legitimate businessman.

CR Doc. 895 at 109-10. Adams explained that he wrote the 2009 letter because movant asked him to do it and "it was like I didn't have much of a choice."[14] Id. at 105. Further, Adams thought the 2009 letter was going to help movant make his bond. Id. at 106. In exchange for the 2009 letter, movant promised to look out for Adams. Id., The newly-produced letter does not recant any of this testimony. It simply says that the 2009 letter was the truth.

         The 2009 letter was admitted into evidence as defense Exhibit 9 at the trial. CR Doc. 8 95 at 107-08. The government and movant each filed a copy of the 2009 letter in response to the court's order signed April 19, 2018. Docs. 37 & 40. The handwriting on the 2009 letter, Doc. 39, bears no resemblance in any manner to the ...


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