Opinion
Case No. 15-CR-0120 (PJS/LIB) Civil No. 18-CV-0266 (PJS)
2020-02-04
UNITED STATES of America, Plaintiff, v. Sean Gerald PENONCELLO, Defendant.
Katharine T. Buzicky, Laura M. Provinzino, and Benjamin F. Langner, UNITED STATES ATTORNEY'S OFFICE, for plaintiff. Robert D. Richman, for defendant.
Katharine T. Buzicky, Laura M. Provinzino, and Benjamin F. Langner, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
Robert D. Richman, for defendant.
ORDER
Patrick J. Schiltz, United States District Judge
Defendant Sean Penoncello was convicted after a jury trial of two counts of producing child pornography and one count of possessing child pornography. He was sentenced to 400 months’ imprisonment. The United States Court of Appeals for the Eighth Circuit affirmed Penoncello's sentence on direct appeal. United States v. Penoncello , 671 F. App'x. 399 (8th Cir. 2016).
Penoncello then filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Penoncello argued that he had received ineffective assistance of counsel prior to trial—and that, had he received effective assistance, he would have accepted the government's original plea offer, pleaded guilty to one count of producing child pornography, and received a shorter sentence. The Court appointed attorney Robert Richman to represent Penoncello, and the Court conducted an evidentiary hearing at which Penoncello and Craig Hunter (his original trial counsel) testified. Following that hearing, the Court held that Penoncello had indeed received ineffective assistance of counsel, granted his § 2255 motion, and ordered the government to re-offer its original plea agreement. The government did so, Penoncello accepted the government's offer, and the Court held a change-of-plea hearing at which Penoncello pleaded guilty to one count of production of child pornography.
Shortly before Penoncello was to be re-sentenced, the government notified the Court that it had reviewed recordings of telephone calls made by Penoncello while he was in jail awaiting trial. According to the government, Penoncello's telephone conversations clearly contradicted the testimony that he had given under oath at the evidentiary hearing on his § 2255 motion—testimony that was the basis for the Court's conclusion that Penoncello received ineffective assistance of counsel. The government provided the Court with summaries of a few of Penoncello's conversations. Based on those summaries, the Court concluded that there was reason to believe that Penoncello had committed perjury at his § 2255 hearing.
At that point, however, the Court merely had the government's summaries of some of Penoncello's telephone conversations. In order to be fair to Penoncello, the Court ordered the government to produce the original recordings of the telephone conversations, so the Court could listen to the recordings and determine if the government had fairly summarized them. The Court postponed Penoncello's re-sentencing so that it could listen to the recordings. After Penoncello then complained that the government was relying on only some of his many conversations, the Court decided to listen to all of Penoncello's conversations that occurred during a nearly five-month period, so that the Court could determine whether the government had unfairly "cherry picked" conversations to bring to the Court's attention.
The Court devoted dozens of hours to listening to each and every recording that it had of Penoncello's telephone conversations from jail. After listening to the recordings, the Court concluded that it was "likely that Penoncello committed perjury at the evidentiary hearing and that the testimony on which the Court relied in granting Penoncello's § 2255 motion was false." ECF No. 190 at 2-3. The Court explained in detail how statements that Penoncello made on the recordings appeared to contradict the sworn testimony that he had given at his § 2255 hearing.
The Court did not take any action against Penoncello, but instead ordered Penoncello to show cause why the Court should not vacate its prior order granting his § 2255 motion. This gave Penoncello the opportunity to request an evidentiary hearing at which he could dispute the authenticity or completeness of the recordings provided by the government, argue that the Court had misunderstood the comments made on the recordings, or introduce testimony or other evidence that he had not perjured himself.
Penoncello has filed his response to the Court's show-cause order, making various arguments as to why the Court should not vacate its prior order granting his § 2255 motion. See ECF No. 192. In addition, Penoncello filed a motion asking the Court to recuse from this case because, by ordering the government to produce the recordings, and then listening to all of them, the Court somehow abandoned its role as a neutral factfinder. See ECF No. 191. The government filed a reply, leaving it up to the Court to decide if "justice requires reconsideration" of its prior order granting Penoncello's § 2255 motion, and noting that the government "will assist in any way to protect the integrity of the judicial process." ECF No. 193 at 8-9. The government also asserted that there was "no basis for [the Court's] recusal in this case." Id. at 6.
For the following reasons, the Court denies Penoncello's motion to recuse and orders that an evidentiary hearing be held on the issue of whether the Court should vacate its prior order granting his § 2255 motion.
I. RECUSAL
Penoncello filed a motion asking the Court to recuse from this case under 28 U.S.C. § 455(a), which requires disqualification "in any proceeding in which [a judge's] impartiality might reasonably be questioned." Disqualification is required when " ‘a reasonable person who knew the circumstances would question the judge's impartiality ....’ " Am. Prairie Constr. Co. v. Hoich , 594 F.3d 1015, 1021 (8th Cir. 2010) (citation omitted). Ordinarily, "judicial remarks" made during the course of proceedings "that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases" are not a basis for recusal. Liteky v. United States , 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). If a party seeks a judge's recusal because of an "opinion[ ] formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings," the party must show that the judge has "a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. A judge is presumed to be impartial and the party seeking recusal " ‘bears the substantial burden of proving otherwise.’ " United States v. Dehghani , 550 F.3d 716, 721 (8th Cir. 2008) (citation omitted).
According to Penoncello, there are two reasons why the Court should recuse: First, Penoncello argues that the Court "improperly undertook an independent investigation in this matter" and thereby acted "at odds with its role as neutral factfinder and sentencer." ECF No. 191 at 1. Second, Penoncello argues that the Court's "independent investigation" led it to "f[ind] as a fact that Mr. Penoncello lied to the Court." Id. at 8. As a result, Penoncello argues, the Court cannot preside over future proceedings, as it "already resolved the issue" of whether he perjured himself at his § 2255 hearing. Id. Both of Penoncello's arguments are meritless, and thus the Court denies his motion.
A. Alleged Lack of Neutrality
Penoncello's allegation that the Court betrayed a lack of "neutrality" by undertaking its own investigation is based entirely on the fact that the Court ordered the government to produce recordings of Penoncello's telephone conversations and then listened to them. That is the full extent of the allegedly biased conduct cited by Penoncello. As any reasonable person would recognize, however, the Court's action betrayed no lack of "neutrality"; to the contrary, the Court acted in an effort to be fair to Penoncello .
The Court was scheduled to re-sentence Penoncello on Tuesday, July 30, 2019, at 9:00 am. At 4:43 pm on the preceding Friday, the government provided the Court with summaries of recordings of certain telephone conversations in which Penoncello had engaged while he was in jail awaiting trial. The government acknowledged that it was merely characterizing—and not quoting—statements made by Penoncello in those conversations, but the government offered to provide the Court with recordings of the conversations. Thus, the Court did not decide to launch some kind of independent investigation into whether Penoncello had testified truthfully at his § 2255 hearing. The issue was raised by the government without any involvement by the Court.
Penoncello seems to suggest that, because the government did not explicitly ask the Court to vacate its § 2255 order or postpone sentencing, the Court could not do so consistent with its "neutral" role. If this is indeed Penoncello's position, he is mistaken. As the Court explains below, when the government accused Penoncello of perjury, the Court's § 2255 order remained interlocutory. The Court had every right to reconsider that order, to determine if the order had been procured through perjury, and, if so, to vacate the order. See Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co. , 48 F.3d 1066, 1070 (8th Cir. 1995) (citation omitted). And that is true even though the government did not ask the Court to reconsider its § 2255 order. The Court does not need the permission of the parties to protect the integrity of its own proceedings.
The summaries of Penoncello's telephone conversations provided substantial reason to believe that Penoncello had committed perjury at his § 2255 hearing. And although the government did not ask the Court to reconsider its § 2255 order, the government did ask the Court to take Penoncello's perjury into account in deciding on his sentence. Obviously, then, before the Court could go forward with the re-sentencing, the Court had to determine whether Penoncello had, in fact, committed perjury. In order to be fair to Penoncello , the Court asked the government to provide it with recordings of the telephone conversations—so that, as a first step, the Court could determine whether the government's summaries were accurate.
The Court (and Penoncello) received the recordings of the telephone calls from the government on Monday morning. Later that morning, Penoncello filed a motion to strike (1) the government's letter to the Court informing it about the jail calls, (2) the government's summaries of the calls, (3) the accompanying FD-302, and (4) the recordings of the calls. ECF No. 189. For the most part, Penoncello's motion complained about the timing of the government's disclosure to the Court. See id. at 2-5; see also id. at 10-11. Penoncello protested that the conversations on which the government relied were several years old, and yet the government had not brought them to the Court's attention until the eve of re-sentencing. The Court shared Penoncello's frustration at the government's lack of diligence, but given the Court's independent obligation to protect the integrity of its proceedings, and given the possibility that Penoncello had induced the Court to grant § 2255 relief to which he was not entitled, the Court declined Penoncello's invitation that it overlook his possible perjury because the government had not been diligent in bringing it to the Court's attention.
In his motion papers, Penoncello also complained about the selective nature of the government's evidence. Penoncello did not in any way question the authenticity of the recordings that the government had provided to the Court (and to Penoncello). Instead, Penoncello took issue with the fact that the government had merely summarized "excerpts of selected telephone calls," id. at 5 (emphasis added), and he referred repeatedly (and disparagingly) to the "snippets" of conversations that the government had submitted, id. at 9-10.
In response, the Court decided to listen not just to the recordings that the government had summarized, but to all of the recordings that the government had provided. Penoncello now complains that the Court's decision "was at odds with its role as neutral factfinder and sentencer." ECF No. 191 at 1. That is simply not true, for at least two reasons: First, the Court was acting in response to Penoncello's own complaint about the "select[ive]" nature of the "snippets" provided by the government. It was precisely because the Court was neutral—precisely because the Court wanted to be fair to Penoncello —that the Court undertook the arduous task of listening to all of Penoncello's jail conversations. Second, the Court had no idea what was on the recordings. The Court could hardly have betrayed a lack of "neutrality" when it decided to listen to all of Penoncello's conversations because the Court had no way of knowing whether those conversations would hurt Penoncello or help Penoncello. If anything, given that the government had already brought to the Court's attention what the government presumably regarded as the most damning "snippets" of those conversations, listening to the rest of the conversations was more likely to help Penoncello than to hurt him.
Penoncello also contends that the Court must recuse because it acted in an extrajudicial manner. ECF No. 191 at 9. Here, too, Penoncello is incorrect. The Court did not learn of Penoncello's potential perjury while watching television or chatting with a friend. Rather, that information was brought to the Court's attention by the government, and the Court's request for more complete information was made at the invitation of the government and out of a desire to be fair to Penoncello. At all times, the government and Penoncello were acting as parties to ongoing litigation, and at all times the undersigned was acting as the judge presiding over that litigation. There was nothing "extrajudicial" about anything that the Court did. See, e.g. , United States v. Wecht , 484 F.3d 194, 218-19 (3d Cir. 2007) (judge's sua sponte review of the contents of a box—despite the defendant's contention that only the exterior label of the box was relevant to the suppression question before the court—did not constitute extrajudicial knowledge because the contents of the box "were available to all parties at the time the Judge reviewed them").
For these same reasons, Penoncello's argument that recusal is also warranted under 28 U.S.C. § 455(b)(1) fails. Section 455(b)(1) requires a judge to recuse when he has "personal knowledge of disputed evidentiary facts concerning the proceeding." But "personal knowledge" means knowledge stemming from an "extrajudicial" source. United States v. Carlton , 534 F.3d 97, 101 & n.4 (2d Cir. 2008). Again, the Court has not learned anything about the case from an extrajudicial source. All of the information known to the Court was provided by a party to these proceedings, in the course of these proceedings, and with the knowledge of the other party to these proceedings.
It is true that the recordings of Penoncello's telephone conversations have not yet been formally received into evidence, but that does not mean that the Court acted "extrajudicially" when it listened to those conversations. On a daily basis, the Court receives—and acts upon—information provided by parties outside of formal evidentiary hearings. For example, the Court commonly receives and reviews exhibits prior to an evidentiary hearing, and, based on that review, commonly asks the parties to be prepared to address particular matters at the hearing. No one would think to suggest that, in so acting, the Court is somehow behaving "extrajudicially." If an exhibit is formally received into evidence at the hearing, the Court will consider the evidence in deciding how to act; if the exhibit is not formally received into evidence, the Court will ignore the evidence in deciding how to act.
That is precisely how the Court is proceeding in this matter. The government has provided recordings of Penoncello's telephone conversations. The Court has reviewed those recordings. The Court will conduct an evidentiary hearing—and at that hearing, the government will presumably move the recordings into evidence (after establishing a foundation for them), and Penoncello will have every opportunity to oppose that motion. If the recordings are formally received into evidence, the Court will consider them in deciding how to act; if the recordings are not formally received into evidence, the Court will ignore them.
B. Alleged Lack of Open Mind
Penoncello also argues that the Court should recuse itself because it has already determined that Penoncello perjured himself at the § 2255 hearing. Penoncello's premise is incorrect—the Court has not made a final determination that Penoncello committed perjury—but, even if Penoncello's premise was true, it would not provide grounds for recusal.
As to the first issue: The Court acknowledges that it should have been more careful in drafting its show-cause order. The evidence that Penoncello had perjured himself at his § 2255 hearing was troubling; after all, Penoncello had perjured himself repeatedly at his trial (as Penoncello himself has admitted), and the contradictions between some of what Penoncello said at his § 2255 hearing and some of what Penoncello said in his calls from jail were rather blatant. The Court should nonetheless have been more careful to emphasize that the conclusions that it was expressing were tentative. At times in the order, the Court did emphasize the tentative nature of its conclusions. See, e.g. , ECF No. 190 at 2-3 ("After reviewing all recorded calls (and not just the calls cited by the government), the Court finds it likely that Penoncello committed perjury at the evidentiary hearing and that the testimony on which the Court relied in granting Penoncello's § 2255 motion was false." (emphasis added)); id. at 12 ("It now appears that both of the Court's findings are belied by Penoncello's recorded jail calls." (emphasis added)). At other times, however, the Court failed to do so. See, e.g. , id. at 13 ("The recordings of Penoncello's jail calls reveal that he was lying—or at least badly mistaken—during his testimony at the evidentiary hearing."); id. at 20 ("In short, the recordings of Penoncello's jail calls make clear that he perjured himself at the evidentiary hearing—or at least that he has an atrocious memory.").
But it is important not to lose sight of the forest for the trees. After all, the order in which these statements appear is a show-cause order. The Court took no action whatsoever against Penoncello; instead, the Court ordered Penoncello to show cause why the Court should not vacate its § 2255 order. Obviously, if the Court had made up its mind—and if it was not open to changing its mind—then there would have been no reason to enter a show-cause order. Instead, the Court would simply have vacated its order granting § 2255 relief.
In its show-cause order, the Court identified those parts of Penoncello's conversations that appeared to contradict the testimony that he gave at the § 2255 hearing. The Court did so to prevent Penoncello from being blindsided at the evidentiary hearing and to enable him to focus his response to the show-cause order. In essence, the Court said to Penoncello: "I have listened to the recordings, and this is how they appear to contradict your testimony. Tell me why I am mistaken." Obviously, a judge who asks a litigant to tell him how he is mistaken is not a judge who has made up his mind.
And that leads to the second issue: Trial judges can—and indeed, must —form opinions based on what they learn in the course of presiding over a lawsuit. "[T]o argue that judges must desist from forming strong views about a case is to blink the reality that judicial decisions inescapably require judgment." Belue v. Leventhal , 640 F.3d 567, 575 (4th Cir. 2011). That is why "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky , 510 U.S. at 555, 114 S.Ct. 1147 ; see also Am. Prairie Constr. Co. , 594 F.3d at 1021-22 (holding that a district judge did not need to recuse from a bench trial where the issue being decided was whether a settlement agreement had been reached despite the fact that the court had previously issued two orders stating that a binding settlement had been reached).
Even if the Court had made up its mind about Penoncello's alleged perjury—and even if the Court had vacated its § 2255 order—the Court would simply have made a mistake. But judges make mistakes every day. A litigant who believes that a judge has made a mistake should ask the judge to reconsider his decision or appeal the judge's decision—and, if the appellate court agrees with the litigant, it will reverse the judge and send the case back to the judge for further proceedings.
But mistakes "rarely—if ever—present[ ] a basis for recusal." Belue , 640 F.3d at 575 (citation omitted). This is not a "rare" case in which a mistake by the Court betrayed "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky , 510 U.S. at 555, 114 S.Ct. 1147. Despite the fact that Penoncello committed horrific crimes against children, refused to accept any responsibility for his crimes, pursued a preposterous defense, and committed blatant perjury at his trial, this Court reviewed his § 2255 motion carefully, appointed an attorney to represent him, presided over an evidentiary hearing, and issued a lengthy order granting him § 2255 relief. And when the government brought to the Court's attention evidence that Penoncello had committed perjury at the § 2255 hearing, the Court did not simply rely on the telephone conversations selected by the government or the government's summaries of those conversations. Instead, the Court went out of its way to be fair to Penoncello by listening to all of the telephone conversations. And when the Court's review of those conversations uncovered substantial reason to believe that Penoncello had committed perjury at the § 2255 hearing, the Court gave Penoncello detailed notice of its concerns and invited him to demonstrate why the Court's concerns were unfounded. The Court may have made mistakes in handling Penoncello's criminal trial or his post-conviction proceedings, but nothing the Court has done or said would cause any reasonable observer to conclude that "fair judgment [is] impossible." Liteky , 510 U.S. at 555, 114 S.Ct. 1147.
It should also be noted that, following Penoncello's criminal trial, this Court imposed a sentence that was 440 months less than the sentence recommended by the United States Sentencing Guidelines and 80 months less than the sentence sought by the government.
The Court will not recuse. Instead, the Court will hold an evidentiary hearing at which it will consider all of the evidence that the parties present—including any testimony Penoncello himself wishes to give—and the Court will then render a "fair judgment" based on that evidence.
II. FINALITY OF THE ORDER GRANTING § 2255 MOTION
Penoncello argues that the Court should not vacate its prior order granting his § 2255 motion for four reasons: (1) he points out that neither party has moved for reconsideration of the order and asks the Court to defer to the parties’ position; (2) he notes that the jail calls are not in the record and thus cannot be relied on as a basis for vacating the order; (3) he argues that the order is "final" and cannot be disturbed; and (4) he argues that the Court has misinterpreted the statements he made in the jail calls. See ECF No. 192.
The second issue will be resolved at the evidentiary hearing, when the government will presumably move to admit the recordings of the jail calls into evidence, and the Court will rule on its motion. The fourth issue is best addressed at the evidentiary hearing, when both the government and Penoncello can advocate their respective interpretations of the calls. The Court will address the remaining two issues in this order.
A. The Court Will Not "Defer" to the Parties
The government has alleged that Penoncello "testified falsely at the evidentiary hearing for his § 2255 motion" and "damage[d] the integrity of the judicial process," ECF No. 193 at 1, and the government has offered to "assist in any way to protect the integrity of the judicial process," id. at 8-9. But the government has not formally moved the Court to vacate its order granting § 2255 relief. Instead, the government has said that it will leave it to the Court to determine whether "justice requires reconsideration" of its prior order. Penoncello argues that, because neither party has moved the Court to vacate its § 2255 order, the Court should defer to the position of the parties. As the Court has already made clear, however, it does not need the parties’ permission to protect the integrity of its own proceedings. The Court will reconsider its order granting Penoncello's § 2255 motion and determine if that (interlocutory) order was based on perjured testimony.
B. The Court's Prior Order Is Interlocutory
Penoncello argues that the Court's order granting his § 2255 motion is a final order and therefore cannot be vacated unless one of the requirements of Fed. R. Civ. P. 60(b) is met. See ECF No. 192 at 6-14. Putting aside the question of whether Rule 60(b) is satisfied, Penoncello's premise is mistaken. The Court's prior order is interlocutory and thus the "court has the inherent power to reconsider and modify" that order at "any time prior to the entry of judgment." Murr Plumbing , 48 F.3d at 1070 (citation omitted).
Penoncello concedes (as he must) that a district-court order granting a defendant's § 2255 motion and ordering that the defendant be re-sentenced is an interlocutory order. Andrews v. United States , 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). But Penoncello argues that the rule is different when a court orders not just that the defendant be re-sentenced, but also that the government re-offer a prior plea deal to the defendant. See ECF No. 192 at 6-10. Penoncello says that ordering the government to re-offer a plea deal is more like a § 2255 order that grants a new trial (which some courts have found to be a final order ) than like a § 2255 order that merely grants re-sentencing (which Andrews holds is not a final order). Id. Unfortunately for Penoncello, however, his argument runs into two insurmountable problems: First, his argument is foreclosed by recent and binding Eighth Circuit precedent. And second, his argument is wrong on the merits.
See, e.g. , United States v. Gordon , 156 F.3d 376, 379 (2d Cir. 1998) (holding that a district-court order granting a defendant's § 2255 motion and ordering a new trial is a final order); United States v. Allen , 613 F.2d 1248, 1250-52 (3d Cir. 1980) (same); United States v. Dunham Concrete Prods., Inc. , 501 F.2d 80, 81-82 (5th Cir. 1974) (same).
Interestingly, it appears that earlier in this litigation Penoncello's attorney took the opposite position, advising the government that Andrews was "exactly on point" and, accordingly, that the government could not appeal until after the resentencing. ECF No. 193 at 5. Penoncello's attorney was correct the first time.
The first problem with Penoncello's argument is that it conflicts with Wiggins v. United States , in which the Eighth Circuit held that a district-court order granting a defendant's § 2255 motion and ordering the government to re-offer a plea agreement "did not become final and appealable until the district court resentenced Wiggins." 900 F.3d 618, 621 (8th Cir. 2018). Recognizing that Wiggins is fatal to his position, Penoncello tries to explain it away by positing that the Eighth Circuit was motivated by a fact that the Eighth Circuit itself failed to even mention.
The defendant in Wiggins had originally been sentenced to life in prison. The district court ordered the government to re-offer a plea agreement under which the district court could impose a sentence ranging from 10 years to life. According to Penoncello, the Eighth Circuit found that the district-court order in Wiggins was not final because the government could not know until after re-sentencing whether it had been prejudiced by that order. ECF No. 192 at 10 n.3. If the district court reimposed a life sentence, then the government would not have been prejudiced; if the district court imposed a lesser sentence, then the government would have been prejudiced. According to Penoncello, the inability of the government to know for certain whether it had been prejudiced by the district court's decision is the reason why the Eighth Circuit held that the decision was not final until after re-sentencing.
Put differently, Penoncello cannot argue that an order that the government re-offer a plea agreement is always final when entered, as that argument would plainly be inconsistent with Wiggins . So Penoncello is forced to argue that some such orders are final and other such orders are not final—and that finality depends on whether the government can determine with certainty whether it has been prejudiced by the order at the time that the order is entered. If the government can determine with certainty that it has been prejudiced, then the order is final. But if the government cannot determine whether it has been prejudiced, then the order is not final until after re-sentencing. Not surprisingly, Penoncello has not cited a single case that adopts—or even lends support to—such a convoluted rule. Certainly, nothing in Wiggins suggests that this rule even crossed the Eighth Circuit's mind. To the contrary: In a prior case, the Eighth Circuit had treated a district-court order requiring the government to re-offer a prior plea agreement as final and appealable. See Davis v. United States , 858 F.3d 529 (8th Cir. 2017). In Wiggins , the Eighth Circuit could easily have distinguished Davis by citing the precise distinction posited by Penoncello. Specifically, the Eighth Circuit could have explained that, in Davis , it properly treated the district court's order as final because the government was able to determine that it had been prejudiced by the order (because the defendant would necessarily have received a lesser sentence under the re-offered plea agreement). The Eighth Circuit could then have explained that, in Wiggins , it was not treating the district court's order as final because the government was not able to determine that it had been prejudiced by the order until after re-sentencing.
Penoncello seems to argue that if either party is able to ascertain that it has been prejudiced by an order requiring the government to re-offer a prior plea agreement, then the order is final when entered. See ECF No. 192 at 10 and n.3. It is not clear whether Penoncello means to argue that the order would become final as to a particular party when that party is able to determine that it has been prejudiced by the order. That would make no sense, as an order is either final or not final as to all parties. Perhaps Penoncello instead means to argue that, if one party is able to determine that it has been prejudiced by the order, then the order is final as to all parties. That would force a party that did not know whether it had been prejudiced by the order to appeal the order, even though the party would not know whether it wants to appeal the order. Penoncello does not really elaborate upon his argument, for the obvious reason that the argument falls apart under even slight scrutiny, and clearly was just made up in an attempt to get around Wiggins .
In any event, it is hard to imagine how a defendant could be prejudiced by an order granting his own § 2255 motion. Penoncello characterizes a defendant as being "prejudiced" when the court orders the government to re-offer a plea deal that was not the most favorable of multiple plea deals that had been offered to the defendant. But such an order would not prejudice the defendant—i.e., it would not put him in a worse position than he was before the order was entered. Such an order would benefit the defendant; it simply would not benefit him as much as he had hoped.
As a practical matter, then, the government is the only party who may not know whether it has been prejudiced by an order granting the defendant's § 2255 motion and requiring the government to re-offer a prior plea agreement. To reflect that fact, and for ease of discussion, the Court will focus on potential prejudice to the government in discussing Penoncello's argument.
But the Eighth Circuit said no such thing. Quite the opposite, in fact: The Eighth Circuit indicated that it had made a mistake in Davis, noting that in Davis "the timeliness of the appeal was not an issue" and that, "[r]egardless," the Eighth Circuit was " ‘bound to follow controlling United States Supreme Court precedents’ " (an allusion to Andrews ). Wiggins , 900 F.3d at 621 & n.1 (citation omitted). Clearly, then, the Eighth Circuit has not adopted the "rule" conjured by Penoncello. Penoncello's position—that, when this Court ordered the government to re-offer the plea deal to Penoncello, it was entering a final, appealable order—is plainly foreclosed by Wiggins .
Even if Wiggins did not foreclose Penoncello's position, the Court would reject it on the merits. Penoncello argues that a district-court order that grants a defendant's § 2255 motion and orders the government to re-offer a plea agreement is more like a § 2255 order that grants a new trial than like a § 2255 order that grants a re-sentencing hearing. Id. Penoncello explains that when a defendant files a § 2255 motion asking the court to grant him a new trial, and the court does so, the defendant has received all of the relief that he sought, and therefore the court's order should be deemed final. Sure, the case will have to be retried—but, in his § 2255 motion, the defendant asked only for a new trial (not a judgment of acquittal), and thus he got everything he sought. Conversely, says Penoncello, when a defendant files a § 2255 motion asking the court to re-sentence him, and the court agrees to do so, the defendant has not received all of the relief that he sought. After all, the defendant sought a new sentence , not just a new sentencing hearing. Therefore, the court's order should not be deemed final.
According to Penoncello's own logic, however, the Court's order that the government re-offer the plea deal did not give Penoncello all of the relief that he sought in this § 2255 proceeding and therefore was not final. In his § 2255 motion, Penoncello did not merely ask the Court to order the government to re-offer a plea agreement. Penoncello also asked the Court to vacate two of his convictions and to re-sentence him. See, e.g. , ECF No. 167 at 1 (Penoncello's memoradum in support of his § 2255 motion asking the Court to "vacate Mr. Penoncello's convictions on Counts 2 and 3 and resentence him on Count 1."). The Court has not vacated Penoncello's prior convictions, and the Court has not resentenced him. Thus, under Penoncello's own logic, no final and appealable order has been entered in this case.
Penoncello also contends that, if the Court's order that the government re-offer the plea deal is not treated as final and appealable, then the Court will be depriving him of his right to appeal his new sentence unless he first obtains a certificate of appealability. ECF No. 192 at 9. Putting aside the fact that this is an argument that Wiggins was wrongly decided, Penoncello is again incorrect. As cases on which he relies explain, Penoncello's re-sentencing hearing would be a hybrid proceeding—both criminal and civil—and Penoncello could appeal his criminal sentence without first obtaining a certificate of appealability. See, e.g. , United States v. Hadden , 475 F.3d 652, 664 (4th Cir. 2007) ("[A]n order entering the result of [a § 2255 ] resentencing ... is both part of the petitioner's § 2255 proceeding and part of his criminal case. To the extent the order formally completes the prisoner's § 2255 proceeding, it is part of that [civil habeas] proceeding .... To the extent the order vacates the original sentence and enters a new criminal sentence ... the order is part of the prisoner's criminal case, and, accordingly, a prisoner's appeal of that aspect of the order is part of the petitioner's criminal case" for which he "need not obtain a [certificate of appealability].").
Treating the Court's order that the government re-offer the plea deal as interlocutory also helps avoid piecemeal appeals. While Penoncello acknowledges that Andrews expressed concern about piecemeal appeals, see ECF No. 192 at 7, he claims that piecemeal appeals would not be a problem here, see id. at 10. That makes no sense. If the Court's order granting Penoncello's § 2255 motion was final, then the government would have been required to appeal that order prior to Penoncello being re-sentenced. If the Eighth Circuit then affirmed, the case would be remanded, the Court would re-sentence Penoncello, and either the government or Penoncello would appeal Penoncello's new sentence. Those are precisely the piecemeal appeals that Andrews sought to avoid.
Moreover, it makes little sense to allow an appeal before a re-sentencing. Neither the Court nor the parties have to invest a lot of time in the re-sentencing of a defendant who has already been sentenced. By contrast, it makes a lot of sense to allow an appeal before a retrial. Unlike a re-sentencing, a retrial might take several weeks and, no matter how long it takes, a re-trial will inconvenience not only the Court and the parties, but jurors, witnesses, and court personnel. See United States v. Futch , 518 F.3d 887, 893-94 (11th Cir. 2008) (explaining how " ‘[i]t would waste litigants’ and the district courts’ resources to conduct the new trial ... only for the appellate court to determine, after the trial was completed, that it was not necessary in the first place,’ " but " ‘these efficiency considerations are not present when the district court conducts a run-of-the-mill resentencing’ " (citations omitted)).
In short, the Court's prior order granting Penoncello's § 2255 motion is interlocutory, and thus it "may be revised at any time before the entry of a judgment ...." Fed. R. Civ. P. 54(b) ; see also Murr Plumbing, Inc. , 48 F.3d at 1070 ("The district court has the inherent power to reconsider and modify an interlocutory order any time prior to the entry of judgment." (citation omitted)). The Court will therefore schedule an evidentiary hearing at which it will take evidence and hear argument about whether it should vacate its order granting Penoncello's § 2255 motion. The parties should be prepared to address not only Penoncello's claim that he received ineffective assistance during the plea-bargaining process, but also Penoncello's claim that he received ineffective assistance at sentencing because his trial counsel did not present any mitigating evidence.
Penoncello also argues that even if the Court's prior order granting his § 2255 motion was interlocutory when issued, the order became final when he pleaded guilty. ECF No. 192 at 10-11. Penoncello argues that such a conclusion is necessary to avoid a double-jeopardy problem. Id. But this argument, like Penoncello's other arguments, is plainly incorrect.
As an initial matter, Penoncello is once again arguing that Wiggins was wrongly decided. Wiggins explicitly held that the district court's order became final after re-sentencing, not after the change-of-plea hearing. Wiggins , 900 F.3d at 621. This Court cannot overrule or ignore Wiggins .
Penoncello's argument is also wrong on the merits. As the Supreme Court has explained, "[t]he Double Jeopardy Clause ... affords a defendant three basic protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Ohio v. Johnson , 467 U.S. 493, 497-98, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (cleaned up). Penoncello does not explain his double-jeopardy theory in any detail, but he appears to be arguing that if the Court vacates its prior order it will be violating the second protection—i.e., protection from a prosecution for the same offense after a conviction.
This is a curious argument, though, as the "second prosecution" in this case occurred when Penoncello pleaded guilty pursuant to the original plea agreement—an agreement that was re-offered "for [his] benefit and at his behest." Currier v. Virginia , ––– U.S. ––––, 138 S. Ct. 2144, 2149, 201 L.Ed.2d 650 (2018) (citation omitted). The law is clear that the Double Jeopardy Clause " ‘guards against Government oppression,’ " but it " ‘does not relieve a defendant from the consequences of [a] voluntary choice.’ " Id. at 2151 (citation omitted). Because Penoncello asked for the opportunity to plead guilty under the original plea agreement, there is no double-jeopardy problem with his guilty plea.
Moreover, if Penoncello is trying to argue that, at this point, "reinstating" his trial convictions would violate double jeopardy, that argument also fails. See, e.g. , United States v. Boesen , 491 F.3d 852, 855 (8th Cir. 2007) (explaining that where reversal "would ‘merely reinstate the jury's verdict’ " there is no double-jeopardy problem). (The Court also notes that it never vacated Penoncello's convictions on Counts 2 and 3, so it does not actually need to "reinstate" those convictions.)
See also Stoffels v. SBC Commc'ns, Inc. , 677 F.3d 720, 727-28 (5th Cir. 2012) (" ‘A trial court is free to reconsider and reverse interlocutory orders for any reason it deems sufficient, even in the absence of new evidence or an intervening change or in clarification of the new law.’ " (cleaned up; citation omitted)); City of L.A. v. Santa Monica BayKeeper , 254 F.3d 882, 885 (9th Cir. 2001) (" ‘As long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind , or modify an interlocutory order for cause seen by it to be sufficient.’ " (citations omitted)); United States v. Jerry , 487 F.2d 600, 605 (3d Cir. 1973) ("[S]o long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so." (citations omitted)).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Penoncello's motion for recusal [ECF No. 191] is DENIED.
2. An evidentiary hearing will be held on the question of whether the Court should vacate its prior order granting Penoncello's § 2255 motion. That hearing will take place on Wednesday, February 26, 2020, at 9:00 am, in Courtroom 14E at the United States Courthouse, 300 South Fourth Street, Minneapolis, Minnesota.