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GOVERNMENT'S RESPONSE TO PETITIONER'S MOTION FOR RELIEF UNDER RULE 60(b), FEDERAL RULES OF CIVIL PROCEDURE The United States of America, by and through counsel, submits that David L. Hyatt's motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure is without merit; and it is properly denied without hearing. The governments position is more fully set out in the following memorandum. DISCUSSION A. Preliminary Statement.

The clear thrust of Hyatts Civil Rule 60(b) motion is that the indictment (and superseding indictment) giving rise to his conviction and life sentence was defective. Specifically, Hyatt

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- 2 alleges the government and the Court proceeded against him on an indictment that failed to charge an offense; thereby stripping the Court of subject-matter jurisdiction and voiding the judgement. (See generally R. 380: 60(b) Motion, PageID #325-26).

Although he claims to the contrary, Hyatt is unquestionably challenging the underlying conviction/sentence, and is not asserting a defect in 2255 (habeas) proceedings. Consequently,

Hyatts motion constitutes a second and successive 2255 petition which must first be submitted to the Sixth Circuit Court of Appeals. B. Procedural History of Case.

Hyatt was tried and convicted by jury (November 19, 1993) on a superseding indictment which charged him and others with conspiracy to distribute and to possess with the intent to distribute cocaine, in violation of 21 U.S.C. 846, 841(a)(1) and 841(b)(1)(A).1

Hyatt was arrested on July 13, 1993, in New York City. He and five co-defendants were originally indicted on August 3, 1993. A superseding indictment was returned on September 29, 1993, which added additional co-defendants. The superseding indictment alleged a conspiracy, Beginning approximately in the fall of 1990 and continuing to at least on or about April 10, 1992. The superseding indictment set out overt acts which generally described the conspiracy headed by Hyatt, and outlined a pattern of multi-kilogram transactions and events, including a seizure of 20 kilograms of cocaine from three co-conspirators (couriers) on April 10, 1992, which were introduced at trial as substantive evidence against Hyatt. Trial testimony further linked Hyatt to multiple tractor-trailer shipments of hundreds of kilograms (minimally) of cocaine. The indictment and superseding indictment are attached hereto as Exhibits A & B.

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- 3 Hyatts conviction and life sentence were affirmed by the Sixth Circuit Court of Appeals (C.A. No. 94-3133) on or about September 9, 1995.2 On May 4, 1998, Hyatt filed a motion pursuant to 28 U.S.C. 2255 to vacate his conviction and sentence. The district court

dismissed the motion as time-barred under The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). district courts ruling (C.A. No. 98-4229). Hyatt appealed the On March 27, 2000,

the Sixth Circuit Court of Appeals affirmed the district court in all respects. 2000). On or about February 2, 2001, Hyatt filed a motion with the Sixth Circuit under 28 U.S.C. 2255, docketed as C.A. No. 013011, seeking authority to assert various claims based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). October 30, 2001, the Circuit Court denied Hyatts motion. On June 23, 2003, Hyatt filed another motion with the Sixth Circuit (C.A. No. 03-3680), again requesting authorization to assert his Apprendi claims in the district court pursuant to 28 U.S.C. 2255 6(3), or in the alternative, in a second and On See United States v. Hyatt, 207 F.3d 831 (6th Cir.

Hyatts life sentence was not the result of a statutorily required penalty; rather, it was based upon a U.S.S.G. computation which resulted in the maximum Total Offense Level of 43 (actually the offense level was initially computed as a Level 46).

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- 4 successive motion under 28 U.S.C. 2255 8(2). The Sixth

Circuit denied Hyatts request on or about October 23, 2003. Thereafter, Hyatt unsuccessfully filed various claims for relief with the district court, including an August 30, 2004, motion to recall, void, and/or modify the Judgment (R. 315: Motion), a December 9, 2005, motion to preserve a 2255 petition (R.326: Motion), and a second motion for sentence reduction under 18 U.S.C. 3582 based upon U.S. Guidelines Amendments 505 and 536. (R. 337: Motion).3 After the district court denied Hyatts On

last motion, he appealed (C.A. 08-4521 and 08-4597).

November 5, 2009, the Court of Appeals affirmed the district courts ruling. (R. 367/369: Order/Mandate). On or about May 10, 2012, Hyatt filed a motion For Reconsideration under Rule 60(d), Federal Rules of Civil Procedure. Additionally, on or about June 6, 2012, Hyatt filed

with the Sixth Circuit Court of Appeals a motion for leave to

In November 1996, Hyatt filed a motion pursuant to 18 U.S.C. 3582(c)(2) to modify his sentence based upon a subsequently amended guideline provision which lowered his applicable base offense level. The Court agreed that Hyatts U.S.S.G. range required a technical modification; however, the reduction of Hyatts total offense level from 46 to 44 did not result in a substantive change to his U.S.S.G. imprisonment range inasmuch as the offense level remained above level 43, the highest contained in the Sentencing Table. Consequently, the district court affirmed Hyatts life sentence.

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- 5 file a second or successive motion to vacate his conviction/sentence pursuant to 28 U.S.C. 2255 and 2244.4 On or about December 21, 2012, the Sixth Circuit denied the request. (R. 375: Order). Moreover, on or about February 08,

2013, the district court granted Hyatts motion to withdraw his Rule 60(d) motion. (R. 377: Order).

On June 03, 2013, Hyatt filed the instant motion for relief from final judgment pursuant to Rule 60(b), Federal Rules of Civil Procedure. (R. 380: Motion, PageID #321-57).5 C. 1. Argument and Authority. Procedurally, Hyatts use of Civil Rule 60(b) is defective.

Once a defendants chance to appeal has been exhausted or waived, courts are entitled to presume that [the defendant] stands fairly and finally convicted. 456 U.S. 152, 164-65 (1982). Federal Rule of Civil Procedure 60(b) provides a mechanism for seeking post-judgment relief and/or reopening of a case only United States v. Frady,

Hyatts filing with the Circuit Court used different terminology but asserted claims similar/related to those contained in the filing with the district court under Civil Rule 60(d). Hyatt specifically identifies that his motion is pursuant to Rule 60(b)(1) mistake and inadvertence; 60(b)(3) fraud and misrepresentation by the government; 60(b)(4) void judgment & lack of subject matter jurisdiction; and 60(b)(6) any other reason justifying relief.

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- 6 under a limited set of circumstances. Gonzalez v. Crosby, 545 Rule

U.S. 524, 528 (2005); see also Civil Rule 60(b)(1)-(6).

60(b) is generally a partys exclusive avenue when seeking relief from a final judgment or order in a civil matter. States v. Beggerly, 524 U.S. 38, 46 (1998). provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party...from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud..., misrepresentation, or other misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged...; or (6) any other reason that justifies relief. Rule 60, like all Federal Rules of Civil Procedure, applies in habeas proceedings, but only to the extent that they are not inconsistent with any statutory provisions or [the Rules Governing Section 2255 Proceedings] (See Rule 12, Rules Governing Section 2255 Proceedings; see also Fed.R.Civ.P. 1). Consequently, it is well settled that Fed.R.Civ.P. 60 does not provide a vehicle for relief from a judgment in a criminal case. See United States v. Gibson, 424 Fed. Appx. 461, 464 (6th Cir. 2011); United States v. Diaz, 79 Fed. Appx. 151, 152 (6th Cir. 2003); United States v. Fair, 326 F.3d 1317 (11th Cir. 2003). However, that is exactly what Hyatt is trying to do by alleging See United

Civil Rule 60(b)

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- 7 his criminal conviction and sentence arise from a defective indictment. After all appellate review opportunities have been exhausted, a criminal conviction may be properly attacked by motion under 28 U.S.C. 2255 - a procedure reserved for transgressions of constitutional rights and for a narrow range of fundamental defects, which if condoned, would result in a miscarriage of justice. See Davis v. United States, 417 U.S.

333, 346 (1974); United States v. Vaughn, 955 F.2d 367 (5th Cir. 1992). There are strict time limits and other requirements for

challenging a conviction under 2255, and it is well-established that inmates may not bypass those requirements by purporting to invoke some other procedure. United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005). This restriction is not limited to

motions under Rule 60(b), but rather includes any motion that asserts a federal basis for relief from the judgment of conviction, or attacks the federal courts previous resolution on the merits. See e.g., United States v. Noske, 235 F.3d 405, 406

(8th Cir. 2000)(writ of coram nobis); Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir.)(motion to recall mandate), cert. denied, 519 U.S. 1073 (1997); Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996)(Rule 60(b) motion). In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that Civil Rule 60(b) remains viable in the habeas

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- 8 context only to the extent it is not inconsistent with the Antiterrorism and Effective Death Penalty Act (AEDPA) and other applicable federal statutory provisions and rules. U.S. at 533-34. The proper treatment of a Rule 60(b) post-judgment motion depends on the nature of the claim presented. When an inmate has previously filed one or more 2255 motions, it must be first determined whether the filing is a proper 60(b) motion, or a successive 2255 motion masquerading as a Rule 60(b) motion. See, e.g.,United States v. Winestock, 340 F.3d 200, 2007 (4th Cir. 2003). Although a 60(b) motion constitutes a second or Gonzalez, 545

successive petition if it attacks the federal courts previous resolution of a claim on the merits, that is not the case when a Rule 60(b) motion attacks some defect in the integrity of the federal habeas proceedings. Gonzalez v. Crosby, 545 U.S. 524,

532 (2005); see also Pridgen v. Shannon, 380 F.3d 721, 727 (3rd Cir. 2004)([I]n those instances in which the factual predicate of a petitioners Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits). A 60(b) motion that challenges a district courts

failure to reach the merits of a petition based on the statute of limitations does not constitute a second or successive habeas petition. Gonzalez, 545 U.S. at 535-36; see also Pridgen, 380

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- 9 F.3d at 727-28 (allowing 60(b) motion that attack[ed] the habeas proceeding, rather than [the] underlying state conviction). However, that is not the case here, where Hyatt unquestionably is attacking the criminal conviction. He does not

even mention his earlier 2255 proceedings, let alone allege some defect in the integrity of the federal habeas proceedings which prevented the Court from reaching the merits of the claim. See Gonzalez, 545 U.S. at 532. Rather, Hyatt focuses exclusively He

on the criminal indictment giving rise to his conviction.

repeatedly asserts the indictment failed to state an offense because it did not include an independently charged aggravated offense under 21 U.S.C. 841(a)(1) and 841(b)(1)(A). In an

attempt to attack the indictment, Hyatt uses Rule 60(b) in a shot-gun - and improper - fashion. In his motion, Hyatt relies

on Rule 60(b)(1) [mistake or inadvertence]; Rule 60(b)(3) [fraud and misrepresentation]; Rule 60(b)(4) [void judgment / lack of subject matter jurisdiction]; and Rule 60(b)(6) [any other reason justifying relief]. In so doing, he raises claims

for relief on the merits rather than challenges to defects in a prior collateral review proceeding. As an example, he intimates (although does not develop) that the Court proceeded against him mistakenly or inadvertently on a defective indictment - while also claiming the Court and government did so fraudulently - which negated subject matter

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- 10 jurisdiction and voided the judgment. However, all of this

conduct (in proceeding on a purportedly defective indictment) occurred in the underlying criminal case, and well before the commencement of his first 2255 filing. Moreover, as a last He

resort, Hyatt also cites Rule 60(b)(6)s catch-all provision.

offers nothing further than imprisonment of the petitioner for life based upon a fraudulent indictment constitutes a grave miscarriage of justice - thereby requiring relief. Again, because Hyatts claims seek relief from the underlying conviction and sentence, and not a habeas filing, they are not properly asserted in a Rule 60(d) motion; rather, it is quite clear they constitute a second and successive request for relief under 2255, which must first be presented to the Appellate Court for consideration. Nailor v. United States, 487 F.3d 1018 (6th Cir.), cert. denied, 552 U.S. 937 (2007). 2. Substantively, Hyatts claim is without merit.

Again, Hyatts central complaint is that the indictment was defective because it did not contain a substantive count of distribution and/or possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A). claim has no merit. The Supreme Court has long recognized that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. Pinkerton v. United States, 328 This

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- 11 U.S. 640, 643 (1946); see also, United States v. Van Hee, 531 F.2d 352, 357 (6th Cir. 1976)(A conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy). An equally well-settled corollary is that to

convict a defendant of conspiracy does not require proof that the object of the conspiracy was achieved. See, e.g., United States

v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir. 1978)(The gist of the crime of conspiracy is the agreement to commit an illegal act, not the accomplishment of the illegal act. superseding indictment alleged in part: Beginning approximately in the fall of 1990 and continuing to at least on or about April 10, 1992, in the Northern District of Ohio Eastern Division, and elsewhere, DAVID L. HYATT [and others] did knowingly and unlawfully combine, conspire, confederate and agree together and with each other, and with diverse other persons presently known and unknown to the Grand Jury, to possess with the intent to distribute, and distribute, cocaine, a Schedule II controlled substance in violation of Title 21, Sections 841(a)(1) and (b)(1)(A), United States Code. After listing 21 overt acts the defendants and others committed in furtherance of, and to effect the goals and conceal the existence of the conspiracy, the indictment stated, All in violation of Title 21, Sections 846 and 841(b)(1)(A), United States Code. An indictment is a plain, concise and definite written statement of the essential facts constituting the offense charged. Fed.R.Crim.P. 7(c)(1). The indictment must set forth Here, the

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- 12 the elements of the offense and adequately inform the accused of the specific offense with which he is charged to shield him from future jeopardy. (1974). A controlled substance conspiracy indictment must specify, at a minimum, the duration of the conspiracy and the statute constituting the object of the conspiratorial agreement. United Hamling v, United States, 418 U.S. 87, 117-18

States v. Penagaricano-Soler, 911 F.2d 833, 840 (1st Cir. 1990). It is well settled that an indictment for conspiracy to commit an offense, it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy. Wong Tai v. United States, 273

U.S. 77, 81 (1927); United States v. Reynolds, 762 F.2d 489, 494 (6th Cir. 1985). Further, the commission of an overt act is not

an element of a drug conspiracy; therefore, the indictment need not (but may) allege specific overt acts. Shabini, 513 U.S. 10, 12-13 (1994)). Specific drug quantities now must be alleged to affect the maximum statutory penalty (Apprendi v. New Jersey, 530 U.S. 466 (2000)) or support the imposition of a mandatory minimum statutory penalty (Alleyne v. United States, 133 S.Ct. 2151 (2013)). However, neither Apprendi nor Alleyne were made United States v.

retroactive by the U.S. Supreme Court to cases on collateral review. In fact, Hyatt unsuccessfully attempted to allege an

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- 13 Apprendi claim in 2255 proceedings, and Alleyne is irrelevant because Hyatts life sentence was not imposed pursuant to statute, but rather is a product of the U.S. Sentencing guidelines. A review of the indictment and superseding indictment here reveals that Hyatt was fairly advised of the time and place(s) of his criminal conduct, the elements of the crime charged (conspiracy), the object of the alleged conspiracy - to distribute and possess with the intent to distribute cocaine, a Schedule II controlled substance in violation of Title 21 Sections 841(a)(1) and (b)(1)(A), and of the fact that his conspiratorial conduct was in violation of Title 21, Sections 846 and 841(b)(1)(A), United States Code. The superseding

indictment comfortably satisfies all statutory and constitutional requirements, and cannot be viewed as failing to state an offense giving rise to subject matter jurisdiction. D. Conclusion.

For the reasons set forth above, the government submits that Hyatts Civil Rule 60(b) motion is not properly before this Court, as it seeks to advance one or more substantive claims, and is in actuality, a second or successive petition under 28 U.S.C.

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- 14 2255 which must first be presented to the Sixth Circuit Court of Appeals. Moreover, his claim is without merit. Respectfully submitted, STEVEN M. DETTELBACH UNITED STATES ATTORNEY By: s/ ftx TA ltvv| Samuel A. Yannucci (0018078) Assistant U.S. Attorney 2 South Main Street, Room 208 Akron, OH 44308 Telephone: (330) 761-0518 FAX: (330) 375-5492

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically on this 14th day of August, 2013. filing will be sent by regular U.S. mail to: David L. Hyatt Reg. No. 34927-054 FMC Butner P.O. Box 1600 Butner, NC 27509 s/ ftx TA ltvv| Samuel A. Yannucci Assistant U.S. Attorney Notice of this