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United States v. Kelley

United States District Court, D. Massachusetts

September 10, 2019

KEVIN KELLEY, Petitioner-Defendant.


          Wolf, D.J.


         On May 16, 2003, petitioner Kevin M. Kelley pled guilty to being a felon in possession of a firearm. On January 16, 2004, this court sentenced him to 188 months in prison followed by 60 months supervised release. The First Circuit affirmed. See United States v. Kelley, 402 F.3d 39, 40 (1st Cir. 2005).

         On November 8, 2010, Kelley filed a Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255 (the "§ 2255 Motion"). See Docket Nos. 177, 178. The §2255 Motion includes five claims, all related to the fact that the law license of the Assistant United States Attorney ("AUSA"), Donald L. Cabell, who prosecuted him was suspended throughout the prosecution, including at the time of Cabell signed the indictment. See id.

         For the reasons explained in this Memorandum and Order, the § 2255 Motion is being denied without a hearing.


         On September 17, 2002, Kelley, and his alleged accomplice, Patrick O'Shea, were each charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On March 26, 2003, a grand jury returned a superseding indictment against Kelley, again alleging that he was a felon in possession of a firearm. Both the original and superseding indictment were signed by AUSA Cabell alone. See Docket Nos. 8, 67.

         On May 16, 2003, the court accepted Kelley's guilty plea pursuant to a conditional plea agreement. See Docket No. 126. As indicated earlier, Kelley was sentenced to 188 months in custody, 60 months of supervised release, and a $100 special assessment. The First Circuit affirmed the conviction on March 22, 2005.

         On December 5, 2008, the United States Attorney for the District of Massachusetts sent a letter to Miriam Conrad, the Federal Public Defender for the District of Massachusetts, informing her that AUSA Cabell had been suspended by the Board of Bar Overseers for failure to pay dues during the prosecution of several of the Public Defender's clients, including Kelley. See Gov't Mot. to Dismiss § 2255 Pet. Add. (Docket No. 186-1) at 19. The letter stated that the suspension had been lifted. The United States Attorney also stated that she did not believe that the suspension "undermines the validity of the cases [Mr. Cabell] prosecuted. There simply is no constitutional right to be prosecuted by a lawyer who does not have a defect in his license." Id. (footnote omitted). The letter further indicated that "[n]o case prosecuted by the United States Attorney for the District of Massachusetts is prosecuted by a single assistant. Rather, the decision to prosecute is considered and made by a number of people and AUSAs at all times act under the direction of a supervisory AUSA." Id. at 21. On December 22, 2008, the United States Attorney sent a similar letter to counsel for Kelley's co-defendant, O'Shea. See § 2255 Mot. App'x (Docket No. 177-2) at 2.

         On November 8, 2010, Kelley filed the instant §2255 Motion. The Motion raises five grounds for relief, all of which involve the AUSA's suspension during Kelley's prosecution. On February 12, 2015, the court issued a Memorandum and Order discussing the legal issues raised in the § 2255 Motion. See Docket No. 192.[1] As the court wrote: "Kelley argues that his right to due process was violated by the suspended AUSA's signing of the indictment, the litigation of the case by the suspended AUSA, and the government's failure to disclose the 'exculpatory evidence' regarding the AUSA's suspension to Kelley. Kelley also argues that the AUSA committed fraud upon the court, and that his counsel was unconstitutionally ineffective for failing to alert Kelley to the relevant information in a timely manner." See id. at 4-5; see also § 2255 Motion (Docket No. 178) at 4-7. Noting that the § 2255 Motion raised complex factual and legal questions, the court ordered supplemental briefing and appointed counsel for the defendant. Id.

         The defendant and the government filed supplemental memoranda which focused on the timeliness of the § 2255 Motion, whether the requirement that an attorney for the government sign the indictment is jurisdictional in nature, and whether any error was harmless. See Docket Nos. 201, 204, 209.[2] The government also filed an affidavit addressing: (1) the steps it took to inform the defendant of the AUSA's suspension at the time the defendant was being prosecuted; and (2) the participation of other government attorneys in the indictment and prosecution of Kelley. See Docket No. 197.

         On December 8, 2015, the court allowed the petitioner to amend the § 2255 Motion to add a claim based on United States v. Johnson, 35 S.Ct. 2551 (2015). See Docket No. 22. The proceedings were stayed pending a First Circuit decision, following which the parties made multiple submissions concerning the merits of the Johnson §2255 claim. See Docket Nos. 220-21, 225, 228, 261-62. Ultimately, based on the Johnson issue, the government and counsel for the defendant agreed on a reduction of the defendant's sentence to 120 months incarceration and 36 months of supervised release. See Docket Nos. 270, 272, 280.

         On May 8, 2019, the defendant filed a Renewed Motion for Ruling on Johnson and Granting of a Hearing on Cabell Issue and to Set Hearing. See Docket No. 297. The defendant requested a reduction in the sentence pursuant to the parties' agreement, a further reduction in the period of supervised release to time served, and a ruling concerning the AUSA Cabell disqualification issue. See id.

         On May 14, 2019, based on the Johnson claim, the court issued an Amended Judgment, resentencing the defendant to 10 years incarceration, deemed served, and a period of supervised release of time served. See Docket Nos. 298, 299. Accordingly, the remaining portion of the § 2255 Motion consists of the claims regarding the suspension of AUSA Cabell.


         The court is denying petitioner's claims based on the fact that the law license of the AUSA who prosecuted him was suspended throughout the prosecution. The court finds that the requirement that an indictment contain a signature of a government attorney is not jurisdictional.[3] In addition, the defendant has not demonstrated that but for the purported error, there is a reasonable probability he would not have pled guilty.

         A. The Effect of Attorney Cabell's Suspension on the Validity of the Indictment and Prosecution

         Federal Rule of Criminal Procedure 7(c)(1) states that a criminal indictment "must be signed by an attorney for the government." Fed. R. Crim. P. 7(c)(1). As discussed below, the decisions of multiple courts confronted with facts similar to those of the instant case indicate that a criminal indictment is not rendered invalid, and the court is not divested of jurisdiction, due to a defect associated with attorney's signature on ...

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