The opinion of the court was delivered by: Platt, District Judge.
Defendant Michael Vondette ("Vondette" or "Defendant") moves this Court for a complete resentencing in light of the Supreme Court's decision in United States v. Booker, 534 U.S. 110 (2005). In connection with his motion for resentence, Defendant requests a de novo Pre-Sentence Report ("PSR").
In addition, Defendant makes several motions attacking the merits of his conviction. Defendant moves (1) to overturn his conviction due to ineffective assistance of pro se counsel; (2) to overturn his conviction and dismiss the indictment for "speedy trial" violations; (3) to vacate the judgment of conviction and obtain a new trial pursuant to Fed. R. Crim. P. 33 because "the trial was tainted by constitutional structural error"; (4) to dismiss the indictment because the indictment was "constitutionally defective"; and (5) to vacate the judgment of forfeiture levied against Defendant because as applied to him, the forfeiture order violated the Double Jeopardy Clause of the Constitution.*fn1
For the reasons set forth below, this Court concludes that resentence in Defendant's case is not warranted. Accordingly, Defendant's motion for a de novo PSR is DENIED. Furthermore, Defendant's motions attacking the merits of his conviction are DENIED in their entirety because consideration of said motions is foreclosed by the "mandate rule."
This Court will not reiterate each and every detail of the prolonged history of Defendant's case as the facts are set forth in this Court's prior Memoranda and Orders totaling over fifteen and aggregating over one hundred pages.*fn2 However, the relevant facts as they pertain to Defendant's present motions (his eighty-fourth, eighty-fifth, eighty-sixth, eighty-seventh, eighty-eighth, eighty-ninth, ninetieth, and ninety-first by this Court's count) are set forth below.
I. Vondette's Trial and Conviction
On June 5, 2001, after two trials the first of which ended in a mistrial, Defendant was convicted of conspiracy to distribute and possess with intent to distribute hashish, marijuana, and methaqualone in violation of 21 U.S.C. § 846(b)(1)(A), a Class A Felony, and conspiracy to launder money in violation of 21 U.S.C. § 1956(a)(1)(A), a Class C Felony.
The overwhelming evidence produced at trial revealed one of the world's largest drug smuggling enterprises to date. At the conclusion of a seven-year operation, Vondette alone was responsible for the purchase and resale of almost nine tons of hashish having a street value of at least eighteen million dollars ($18,000,000). Throughout the trial and to this day, Vondette claims that the evidence produced at trial does not support the conclusion that he was responsible for the leadership of the drug smuggling enterprise and that, if anything, he was a low level member of the conspiracy. However, the evidence at trial and the jury's verdict sheet in particular contradict Vondette's assertions. See Gov't Opp'n Mem. Ex. 2; D.E.# 468. The verdict sheet indicates that Vondette was responsible for distributing one thousand kilograms or more of hashish and one thousand kilograms or more of marijuana. Furthermore, the verdict sheet shows that the jury found Vondette responsible in forfeiture for well over ten million dollars ($10,000,000) in connection with the drug trafficking and money laundering conspiracies.
Count One carries a statutory minimum term of imprisonment of ten years and a maximum term of life and Count Two carries a maximum term of imprisonment of twenty years. The PSR indicated a guidelines range of imprisonment of 360 months to life, supervised release terms of three to five years for Count One and two to three years for Count Two, and a fine ranging from $25,000 to $15,600,000. The probation department recommended a term of imprisonment of 360 months and suggested that no fine be imposed.
II. Post-Verdict Motions and Objections to the PSR
Between verdict and sentencing Vondette made several motions. First, on July 19, 2001, Vondette made a Rule 29 motion for judgment of acquittal and a Rule 33 motion for a new trial arguing inter alia that: (1) the government engaged in "outrageous" misconduct in denying the Defendant the opportunity to submit facts to the grand jury; (2) jurisdiction was manufactured; (3) venue in the Eastern District of New York was improper; (4) the indictment included several inconsistent charges and the statute of limitations expired on several counts charged in the indictment; (5) several due process violations occurred during trial including the empaneling of an anonymous jury, the admission of "tainted" evidence at trial, and the failure of the government to turn over exculpatory evidence; and (6) the government and the Court delayed in bringing Defendant's case to trial thereby violating the Speedy Trial Act. See Def.'s R. 29 and R. 33 Mot. dated July 29, 2001; D.E. # 385.
On June 17, 2002,Vondette filed several objections to the PSR and requested a Fatico hearing. In addition, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Vondette raised several objections to "fact-finding" in the PSR. Among other things, Vondette argued that based upon the jury's verdict alone, the base offense level under the Guidelines for Counts One and Two should be 12 and 14 respectively.*fn3 Vondette also argued that the government should be precluded from using his prior 1975 conviction and a leadership enhancement to increase the Guidelines range because both were not charged in the indictment. Furthermore, Vondette argued for several downward departures for "his minimal role in the conspiracy," for substandard conditions in the county jail where he was confined during the trial and prior to sentencing, and for a disparity between the Guidelines range for his sentence and that of his co-conspirators.
In connection with his objections to the PSR, Vondette requested a Fatico hearing with respect to the actual amount of drugs implicated in the drug trafficking conspiracy, the actual amount of forfeiture, and the actual amounts of forfeiture recovered from his co-conspirators. Furthermore, Vondette requested a Fatico hearing to resolve whether a leadership enhancement was appropriate and to determine whether his prior conviction should be included in the calculation of his Guidelines range. Vondette argued that after resolving ...