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United States v. Fell

United States District Court, D. Vermont

July 17, 2015




In a pair of Motions (Docs. 550 and 551), the defense seeks to return to the claims of prosecutorial misconduct raised in the § 2255 case and left unresolved when an order granting a new trial was issued (Doc. 514). The defense seeks to use those unresolved claims to bar a retrial and to obtain dismissal of the charges against Fell, or to obtain a dismissal of the death notice. Specifically, the defense has filed a Motion to Complete § 2255 Litigation (Doc. 550) and a Motion to Compel § 2255 Discovery "so that there can be a final resolution of all of the allegations contained in the § 2255 petition." (Doc. 551 at 1.) The Government opposes both Motions. (Doc. 562.) Fell filed a Reply on June 19, 2015. (Doc. 574.) The court has also considered the Government's Surreply. (Doc. 588.) For the reasons discussed below, the court concludes that the claims raised by the defense are legally insufficient to bar a retrial or the death notice, and accordingly DENIES both Motions.


In his Amended § 2255 Motion, Fell argued-among other things-that he was entitled to relief because of prosecutorial misconduct and juror misconduct. ( See Doc. 512 at 21 (asserting that Fell's trial was "marred by prosecutorial misconduct"); id. at 343 (alleging "[s]everal instances of juror misconduct").) For relief, Fell sought to have his convictions and sentences vacated and to be retried. (Id. at 403.) He also sought "such further and additional relief as may be just." (Id. at 404.)

The court granted Fell a new trial based solely on the basis of juror misconduct, without reaching Fell's prosecutorial-misconduct or other claims. (Doc. 514 at 93.) In its July 24, 2014 Opinion and Order granting a new trial, the court noted that "there are remaining claims in Fell's amended motion, " and ordered the parties to confer and supply briefing "on or before September 30, 2014" regarding "their respective positions as to how this matter should proceed." (Id. ) The Government appealed to the Second Circuit on September 22, 2014-before the parties filed additional briefing on the topic of the remaining § 2255 claims. ( See Doc. 515.) Nor was there additional briefing on that issue after the Second Circuit granted the Government's motion to withdraw its appeal. ( See Doc. 517.)

In its Motion to Complete the § 2255 Litigation and its Motion to Compel, the defense now seeks to return to the issue of alleged prosecutorial misconduct in Fell's 2005 trial. Fell contends that the alleged prosecutorial misconduct could entitle him to relief beyond the retrial he has already obtained. ( See Doc. 550 at 1, asserting that relief could "potentially include dismissal of the charges and/or dismissal of the death notice".) The specific claims of prosecutorial misconduct include the following:

1. In its closing argument in the penalty phase, the prosecutor greatly exaggerated the nature and result of the alleged assault by Fell on a young man named Eike. The prosecution argued that Fell assaulted Eike intentionally, violently, and with utter depravity and kicked him until Eike fell into a coma. Judge Sessions, who presided over the first trial, has already determined that these statements were untrue. (Doc. 367 at 87.) The prosecution exaggerated the seriousness of the assault and failed to acknowledge that it may have been provoked. At most Eike was unconscious for less than an hour. ( See id. )

2. Certain records relating to Fell's codefendant Robert Lee were not disclosed in violation of Brady v. Maryland, 373 U.S. 83 (1963).

3. Similarly, the Government failed to disclose some records related to Dr. Welner's review of the case, some social service agency records related to Fell, and some FBI materials- all of which should have been produced to the defense.

4. The Wetzel/Welner controversy previously described in this court's Opinion and Order dated June 23, 2015. ( See Doc. 576 at 3-4.)

The defense seeks to conduct discovery on these claims in an effort to prove the type of intentional prosecutorial misconduct which would bar a retrial. In seeking legal authority for what amounts to a dismissal of the case or the death penalty notice, the defense relies upon decisions which recognize the flexible and equitable nature of the § 2255 remedy.


In the event of "such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). In this case, the court has already granted the defendant a new trial. The two primary questions before the court are whether there is legal authority for granting the defendant additional relief such as an order barring a retrial and, if so, whether ...

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