Submitted: September 12, 2014.
Appeal from United States District Court for the Western District of Missouri - Springfield.
For United States of America, Plaintiff - Appellee: Cynthia Jean Hyde, Assistant U.S. Attorney, U.S. Attorney's Office, Springfield, MO; Phillip Eugene Porter, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.
For Russell B. Marks, Defendant - Appellant: Jeremy Gordon, Waxhachie, TX; Russell B. Marks, Cumberland, MD; Benson Weintraub, Law Office of Benson Weintraub, Fort Lauderdale, FL.
Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Russell Marks appeals the district court's denial of his motion for an evidentiary hearing on Marks's claim that the government improperly refused to move to reduce his sentence for a previous conviction. Marks also has moved (1) for sanctions against the Assistant United States Attorney (AUSA) who prosecuted him in
his criminal case, (2) for this court to take judicial notice of various documents, and (3) to recall the mandate in his direct appeal from his original conviction. We conclude that the district court did not abuse its discretion in denying the motion, and we affirm the judgment. We also deny Marks's motions for sanctions and to recall the mandate but grant his motion for judicial notice.
In 1992, Marks pleaded guilty to conspiracy to distribute cocaine, 21 U.S.C. § § 846, 841(a)(1), and to launder money, 18 U.S.C. § 371. He was sentenced to life imprisonment. We affirmed his conviction and sentence. United States v. Marks (Marks I), 38 F.3d 1009 (8th Cir. 1994). Marks later moved to vacate his sentence under 28 U.S.C. § 2255, but the district court denied that motion, and we denied Marks a certificate of appealability.
In 1999, Marks's attorney contacted the AUSA assigned to his criminal case and informed her that Marks had learned that two inmates in his prison had crafted a key that fit various locks within the prison and that they were going to use the key to escape. In exchange for the information, Marks sought a motion from the government to reduce his sentence under Federal Rule of Criminal Procedure 35(b). The AUSA did not promise to make a motion but did pass along his information to prison authorities. The two inmates eventually were transferred to a maximum-security prison, but no criminal charges were filed against them. The AUSA then told Marks's attorney that she would not be filing a motion to reduce his sentence because he had not " participated in a meaningful way in preventing" a crime. United States v. Marks (Marks II), 244 F.3d 971, 973 (8th Cir. 2001).
Marks then moved to compel the government to file the motion requesting a reduction in his sentence. Marks characterized the exchange between him and the government as a " contract" between the two parties: He would provide information regarding criminal activity, and the government would file the Rule 35(b) motion to reduce his sentence. Marks sought " specific performance" of the " contract." Marks II, 244 F.3d at 973-74.
The district court held an evidentiary hearing on the motion, at which the AUSA whom Marks had contacted testified. The AUSA said that Marks's cooperation was not substantial because officials at the prison never believed that an escape had been attempted, and thus a motion to reduce his sentence was not warranted. The court agreed with Marks that there was an " understanding" between the parties that the government would file the Rule 35(b) motion if it concluded that Marks provided substantial assistance. The court, ...