phillips motion to vacate

8/2/2019 Phillips Motion to Vacate

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT O F FLORIDACA SE NO . 01-CR-8084-LENARDCASE NO. 08-81283-CIV-LENARD/WHITE* -

UNITED STATES OF AM ERICAV.

ELROY ANTONIO PHILLIPS,D efendant.

/ELROY A . PHILLIPS,

FILED by .C.MAt 2 b 2212STEVEN .LARIMOREEc L E R K U .D ls .c'r .s o. of #I-A - M.pMl

M ovant,V.

UNITED STATES OF AM ERICA ,Respondent.

/PARTIES' JO INT M O TION TO VA CATE DEFENDANT'SCON VICTIO NS ON COUNTS 1. 9. 14. AND 17 AND TODISM ISS W ITH PREJUDICE COUNTS 1. 9. 14. A ND 17AND PARTIES' STIPULATED M O TIO N TO DISM ISSW ITH PREJUDICE 28 U.S.C. q 2255 PROCEEDING

COM ENOW tIAe United States ofAmerica, by andthroughthe undersignedAssistantUnited States Attorneys (tiAUSAs''), and Defendant/M ovant Elroy Antonio Phillips, alongwithhis counsel, Michaelzelman,andmake the followingjoinvstipulatedmotionsto dismisswith prejudice.

The parties respectfully request that this Honorable Court vacate the convictions of

Case 9:08-cv-81283-JAL Document 268 Entered on FLSD Docket 05/04/2012 Page 1 of 7


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defendant Elroy Antonio Phillips as to Counts 1, 9, 14, and 17, and dismiss with prejudiceCounts 1, 9, 14, and 17 of the Second Superseding Indictment in the above-styled criminalcase as to defendant Elroy Antonio Phillips,pursuantto Fed. R. Crim. P. 48(a) andMesaroshv. United States, 352 U.S. 1 (1956).

The M ovant, Elroy A . Phillips, along with his counsel, M ichael Zelm an, and theUnited States of Am erica further stipulate and respectfully request, pursuant to Fed. R. Civ.P. 41(a) and Rule 12 of the Rules Governing 2255 Proceedings, that this Court dismiss withprejudice Phillips' action filed pursuant to 28 U.S.C. j 2255 in the above-styled civil case.

1. Procedural History of the C rim inal CaseDefendantElroy Antonio Phillips ($Thi1lips'') was arrested on June 8, 2001 on charges

related to distribution of cocaine base (see CRIM DE1 3-6).In atwenty-one count Second Superseding lndictment returned on January 31, 2002,

a federal grand jury charged defendant Phillips in Counts 1- 1 1, 13-18, and 20-21, withviolations of Title 21, United States Code, Sections 846, 856(a)(1), 841(a)(1), and 844(a),and violations of Title 18, United States Code, Sections 922(g)(1), 922(d)(1), 922(a)(6), and9244c) (CRIM DE 98).

On Decemberz, 2002, defendant Phillips proceeded to trial. On Decemberzo, 2002,the jury retumed its verdict and convicted defendant Phillips of Counts 1, 9, 1 1, 14, and 17

lDocuments filed in the criminal case, Unitedstates v. ElroyAntonio Phillips, Crim inal CaseNo. 01-8084-CR-Lenard, willbe denoted by SSCRIM DE''; documents filed in the 2255matter, ElroyA. Philllps v. Unitedstates, Civil Case No. 08-81283-ClV-Lenard/White, will be denoted by EECIV111 1.S'-2-



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of the Second Superseding lndictment (CRIM DE 239).On July 31, 2006, following an appeal, anAmended Judgm ent w as entered sentencing

Phillips to 288 m onths' imprisonment on Counts 1 and 9, to be followed by 6 years'supervised release; 24 months' im prisonm ent on Count 1 1, to be followed by 1 year ofsupervised release; and 180 months' imprisonment on Count 14, to be followed by 5 years'supelwised release. It was determined that Count 17 was to be m erged for sentencing w ithCount 14, and no separate sentence was imposed for Count 17. A $400 special assessment

was imposed. A1l sentences were ordered to run concurrently (see CRIM DE 403).Il. Procedural History of the Civil CaseOn November 3, 2008, Movant Elroy Antonio Phillips ($$Phil1ips'') filed a Motion to

Vacate pursuant to 28 U.S.C. j 2255 (CIV DE 1). Pursuant to Order of the Court, anAmended Motion to Vacate was filed on November 25, 2008 (CIV DE 19).

After significant adversarial briesng, United States M agistrate Judge PatrickA . W hiteissued a Report and Reconam endation on June 14, 2010, which recommended the denial ofPhillips's j 2255 Motion in its entirety (CIV DE 166).

Phillips filed Objections to the Report and Recommendation, and the United Statesresponded. On September 8, 20 1 1, United States District Judge Joan A . Lenard issued anOrder refening the matter to M agistrate Judge W hite for an evidentiary hearing on certainissues (CIV DE 219). Later, the Court appointed attorney Michael Zelman to representPhillips (CIV DE 232).

The United States thereafter voluntarily provided certain docum ents and other-3-



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information (see C1V DE 241), in advance ofthe deposition of witness Michael Ghent, whichoccurred on M arch 19, 2012 in Phoenix, A rizona. During a portion of the deposition,M ovant Phillips was able to hear the Ghent deposition via telephone and confer with hiscounsel during the breaks.

111. Events Justifying Entry of an Order Dism issing Counts 1, 9, 14, and 17 ofthe Indictm ent and Vacating Phillips's ConvictionsA s a result of the govelmm ent's investigation into the actions of a certain form er W est

Palm Beach Police Departm ent agent, the United States now seeks to vacate defendantPhillip's convictions for Counts 1, 9, 14, and 17 in the crim inal case. Although thegovenlment maintains that there is ample evidence in this case establishing that defendantPhillips was factually and legally guilty of Counts 1, 14, and 17, the United States believes,pursuant to the Supreme Court's guidance in Mesarosh v. Unitedstates, 352 U.S. 1 (1956),that because of the agent's lack of candor in other instances - which were unknown to theAU SA S handling the Phillips case - the Court should vacate Phillips's convictions on thosecounts that relied on the agent's testim ony, that is, Counts 1, 9, 14, and 17. DefendantPhillips joins in this request.

Given the developments in the years since the defendant's trial in 2002, the partiesfurther request that the Court dismiss with prejudice counts 1, 9, 14, and 17 of the SecondSuperseding Indictment as to defendant Phillips.

The parties agree that defendant Phillips' conviction and sentence as to Count 1 1 ofthe Second Superseding lndictm ent should remain undisturbed.

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IV. The Parties' Stipulated Motion to Dismiss with Prejudice Phillipsg ActionFiled Pursuant to 28 U.S.C. j 2255 and W ithdrawal of Claims ofProsecutorial M isconduct.Following the Ghent deposition discussed above, the parties, through counsel,

engaged in discussions aboutthe resolution of Phillips' j 2255 proceeding. After conductingits independent review of the evidence in this case, the United States agreed to dismiss withprejudice those counts of the Second Superseding Indictment that depended in whole or inpart upon Ghent's testimony, that is, Counts 1, 9, 14, and 17.

In light of the parties' joint motion to dismiss with prejudice Counts 1, 9, 14, and 17and to vacate the convictions as to those counts, and in consideration therefor, the M ovant,Elroy Phillips, along with counsel, hereby stipulates with the government andjointly movesto voluntarily dismiss with prejudice his 28 U.S.C. j 2255 action. Movant Phillips agreesthat the M otion to Vacate his convictions and dism iss Counts 1, 9, 14, and 17, in accordancewith Mesarosh v. United States, 352 U.S.1 (1956), is well-taken; Phillips abandons anychallenge to his conviction on Count 1 1; and he agrees and stipulates that no further purposewould be served by these 28 U.S.C. j 2255 proceedings.Accordingly, the parties jointlystipulate and move, pursuant to Fed. R. Civ. P. 41(a) and Rule 12 of the Rules Governing2255 Proceedings, to voluntarily dismiss with prejudice Phillips' 28 U.S.C. j 2255 Motion.

M ovant Phillips further stipulates and agrees, based upon the review of the additionaldocuments and information that were disclosed by the United States and upon furtherinvestigation undertaken by counsel and M ovant's private investigator, that the current andformer AUSAS involved in the criminal case and the collateral proceedings, including

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Rolando Garcia and Janice Leclainche, acted in good faith based on infonnation providedto them by officers who they believed were credible. Accordingly, the M ovant, ElroyPhillips, formally withdraws al1 previous allegations of prosecutorial m isconduct that havebeen raised against those current and fonner AUSA S involved in the criminal case and thecollateral proceedings, including Rolando Garcia and Janice Leclainche, in both the 28U.S.C. j 2255 action and the underlying criminal case./ / /

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V. ConclusionW HEREFORE, the parties respectfully request that this Honorable Court vacate

defendant Phillips's convictions on Counts 1, 9, 14, and 17 of the Second SupersedingIndictment in the above-styled criminal case and dismiss with prejudice Count 1, 9, 14, and17 of the Second Superseding Indictm ent as to defendant Elroy Antonio Phillips; and

W HEREFORE, the parties respectfully request that this Honorable Court accept andadopt the parties' stipulations and dismiss with prejudice Movant Phillips' 28 U.S.C. j 2255action.Respectfully submitted,

W IFREDO A . FERRERUN ITED STATES A TTORNEY

By:EDW ARD C. M JCCIM anaging A ssistant United States AttorneyFlorida Bar N o. [email protected]

/ A.B :A . E VILLAF A

Assistant United States AttorneyFlorida Bar N o. [email protected]

o 'j

. tNELROY A. PHILLIP , M OVA T

Respectfully subm itted,

( i 'cuwM ICHAEL ZELM AN , .COUN SEL FOR M OVANTFlorida Bar N o. 24173319 W Flagler St, Ste 407M iam i, FL 33130-4404Telephone: 305 [email protected] TED STATES ATTORN EY 'S OFFICE500 South Australian Avenue, Suite 400W est Palm Beach, FL 33401

Telephone: 561 820-8711Facsimile: 561 820-8777
