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United States v. Gambino

United States District Court, Eighth Circuit

January 14, 2014

United States of America, Plaintiff,
v.
Niko Vinnie Gambino, a/k/a Terry Lee Branchaud, Defendant.

Thomas M. Hollenhorst, United States Attorney's Office, for Plaintiff.

Niko Vinnie Gambino, Pekin, Illinois 61555, Pro Se Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Doc. No. 197]. The Government opposes Defendant's motion [Doc. No. 205]. For the reasons set forth below, the Court denies Defendant's Motion.

II. BACKGROUND

Defendant Niko Vinnie Gambino, also known as Terry Lee Branchaud, and four co-defendants, were charged in Count 1 of an 11-count indictment with conspiracy to distribute 50 grams or more of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Indictment [Doc. No. 1].) Defendant was also charged with co-defendant Clayton Clarence Reiger ("Reiger") with three counts of aiding and abetting the distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2 (Counts 2, 3, and 4). On January 30, 2012, Defendant pled guilty to Count 3 of the indictment. (Court Mins. [Doc. No. 143].) On December 10, 2012, Defendant was sentenced to 156 months. (J. in a Criminal Case [Doc. No. 193].)

Defendant did not file a direct appeal to the Eighth Circuit Court of Appeals. On June 27, 2013, Defendant filed a motion under 28 U.S.C. § 2255 to set aside, vacate, or correct his sentence. ( Pro Se Mot. to Vacate Under 28 U.S.C. § 2255 [Doc. No. 197].) The Government opposes Defendant's motion. (Government's Resp. in Opp'n to Def.'s Mot. to Vacate under 28 U.S.C. § 2255 [Doc. No. 205].)

III. DISCUSSION

Under 28 U.S.C. § 2255(a),

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

In addition, the Eighth Circuit has held that

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. A movant may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error.

United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996). The petitioner bears the burden of proof with regard to each ground for relief. Kress v. United States , 411 F.2d 16, 20 (8th Cir. 1969).

A. Claims

1. Deficient Indictment

Defendant first argues that Count 3 of the indictment was deficient because it did not allege all of the essential elements of an offense, and Defendant "was not on notice that he was also being charged with aiding and abetting." ( Pro Se Mem. to Vacate under 28 U.S.C. § 2255 at 9 [Doc. No. 198].)

Under the Federal Rules of Criminal Procedure, the indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged... For each count, the indictment... must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." FED. R. CRIM. P. 7(c)(1). An indictment adequately states an offense if

it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Sewell , 513 F.3d 820, 821 (8th Cir. 2008).

The Court finds that Count 3 gave adequate notice of the offense of aiding and abetting the distribution of methamphetamine. The offense of distribution of methamphetamine has two elements: (1) the defendant intentionally transferred methamphetamine, and (2) at the time of the transfer, the defendant knew that it was a controlled substance. Manual of Model Criminal Jury Instructions for the Eighth Circuit § 6.21.841B (2013). A person may also be found guilty of this offense even if he personally did not do every act constituting the offense charged, if he aided and abetted the commission of this offense. Id . § 5.01. In order to have aided and abetted the commission of a crime, a person must (1) have known the offense was being committed or going to be committed, and (2) have knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the offense. Id.

Count 3 alleges that on or about March 3, 2010, Defendant and Reiger

each aiding and abetting the other, did unlawfully, knowingly and intentionally distribute five grams or more of actual methamphetamine, a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B), and Title 18, United States Code, Section 2.

(Indictment [Doc. No. 1].) Although Count 3 does not track the language of 18 U.S.C. §

2 verbatim, it alleges that Defendant and Reiger "aid[ed] and abet[ted] the other" and cites 18 U.S.C. § 2. Moreover, the Government represents that Defendant did not counsel, command, induce, or procure the commission of the crime, thus rendering the portion of 18 U.S.C. § 2 that Defendant seeks to include inapplicable. (Government's Resp. in Opp'n to Def.'s Mot. to Vacate under 28 U.S.C. § 2255 at 10 [Doc. No. 205].) Finally, the charging language includes all elements of the offense of distribution of methamphetamine. For these reasons, Count 3 of the indictment is not deficient, and Defendant had adequate notice that he was being charged of aiding and abetting the distribution of methamphetamine.

2. Defendant's Guilty Plea

Next, Defendant argues that his guilty plea "was not properly taken or accepted." ( Pro Se Mem. to Vacate under 28 U.S.C. § 2255 at 10 [Doc. No. 198].) Defendant claims that he was not provided with the full panoply of rights, and the Court "did not assure itself that [Defendant] was competent and his plea was voluntary." ( Id. at 11.)

The Court respectfully disagrees. First, the Court thoroughly reviewed the rights that Defendant waived by entering a guilty plea:

THE COURT: You have the right to persist in your plea of not guilty of the charges against you. If you do persist in your plea of not guilty, you will have a right to trial on those charges, and you have the right to be tried by a jury of up to 12 citizens of this district. You have the right to a speedy trial; that is, a trial that would take place in a few weeks, as opposed to months or years. Do you understand that?
DEFENDANT: Yes, I do.
THE COURT: You have the right to be represented by an attorney at every stage of the proceedings, before the proceedings, during the trial ...

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