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United States v. Westine

United States District Court, E.D. Kentucky, Central Division, Frankfort

December 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN G. WESTINE, JR., Defendant.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

John Westine is charged with mail fraud, money laundering, and securities fraud for his role in allegedly duping investors into purchasing interests in non-profitable oil wells. Westine's pro se status has not inhibited his ability to file motions.[1] This matter is presently before the Court on Westine's motions to reconsider various rulings made by the magistrate judge [R. 76; R. 77; R. 80; R. 99; R. 100] and also his many motions to dismiss [R. 30; R. 88; R. 89; R. 90]. The Court has carefully considered the record and concluded that Westine's motions will be DENIED.

I

Federal Rule of Criminal Procedure 59 provides that "[a] district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense." Fed. R. Crim. P. 59. In the Eastern District of Kentucky, a standing pretrial and trial management order refers all non-dispositive motions except motions in limine and motions to alter the trial date to the magistrate judge. [ See R. 28-1 at 9.] A party must file any objections they have to a ruling of the magistrate judge within 14 days or else waive their right to review. Fed. R. Crim. P. 59. The district judge must then consider any timely objections, modifying or setting aside any order that is "contrary to law or clearly erroneous." Id. Westine has filed a number of motions to reconsider the magistrate judge's rulings, which this Court construes as objections and now considers. [R. 76; R. 77; R. 80; R. 99; R. 100.]

II

A

1

Westine first requested a bill of particulars because "[t]he criminal indictment[] fail[ed] to put [him] on actual notice to prepare a proper trial defense." [R. 31 at 1.] According to him, "[t]he indictment[] do[es] not specify facts or acts that [he] had actual knowledge or intentionally misled clients who purchased oil leases owned by them" and that he "never left the State of California nor had any business, banking or otherwise in Kentucky[.]" [ Id. ] The Magistrate Judge denied Westine's first motion for a bill of particulars without prejudice as he was represented at the time and not permitted to make the motion himself. [R. 32.] Westine ultimately exercised his right to proceed pro se and renewed his request for a bill of particulars. [R. 38.] The Government opposed the motion, arguing that the indictment sufficiently set out the facts, evidence and theory of prosecution. [R. 42.] Further, they explained that affidavits, and voluminous discovery were forthcoming that would render a bill of particulars unnecessary. [ Id. ] Westine objected to the Government's response, restating his contention that he was not properly on notice to defend against the charges laid out in the indictment. [R. 56.]

On October 14, the Magistrate Judge thoughtfully considered and denied Westine's request for a bill of particulars. [R. 59.] Westine timely petitioned this Court for "an expedited appeal of the Magistrate's order denying Westine a Bill of Particulars, ' to properly defend and prepare for trial."[2] [R. 76.]

"The purpose of a bill of particulars is to give a defendant key factual information not contained in the indictment, so as to enable him or her to prepare a defense and avoid surprise at trial." United States v. Page, 575 F.Appx. 641, 643 (6th Cir. 2014) (citing United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993)). Westine's claim that he was not put on notice of the charges against him is meritless. The indictment and superseding indictment both thoroughly lay out the many charges levied against Westine. [ See R. 1; R. 51.] Westine's contention that the indictment fails to "specify facts or acts" that show he had "actual knowledge or intentionally misled clients" also does not require the Government to file a bill of particulars. A bill of particulars is not "a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial." Salisbury, 983 F.2d at 1375 (citations omitted). Rather, "[a] bill of particulars is meant to be used as a tool to minimize surprise and assist defendant[s] in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes." Id. Of course, Westine may fairly challenge the Government's proof, but this contest will happen at trial. The Court has reviewed the charging documents and they are thorough, explaining in sufficient detail the scheme that Westine is charged with perpetrating.

Finally, Westine appears to challenge the Court's jurisdiction by asserting that he never left California or had any business in Kentucky. [R. 31 at 1.] The superseding indictment is replete with references to Westine's contacts with Kentucky. The Magistrate Judge's ruling is affirmed and Westine's motion to reconsider [R. 59] is denied.

2

Westine has directed much of his time pre-trial to attacking previous judgments. In two separate motions now before the Court, Westine asks this Court to reconsider the Magistrate Judge's refusal to void a past judgment. [R. 77; R. 100.]

Westine's first motion, which he dubs a "Combined Notice of Appeal, '" challenges the magistrate judges' denial of his motions at docket entries 44 and 48. [R. 77.] At docket entry 44, Westine asked the Court to take judicial notice that his 1992 money laundering conviction from the Southern District of Ohio is void. [R. 44.] At docket entry 48, Westine requested a hearing on "whether or not [he] is legally on Federal Parole as alleged in Count 1" of the indictment. [R. 48 at 1.] His argument supporting this request hinges on his contention that an Amended Judgment from a 1990 California criminal case is void. [ Id. ] The Magistrate Judge has denied Westine's Motion to Attack a Void Judgment [R. 59, denying R. 39], and also declined to take judicial notice that the conviction is void [R. 78 at 2-3, denying Westine's motion at R. 44]. Most recently, Westine requested that the Government stipulate that this prior conviction is void [R. 98] although they declined to do so [R. 114; R. 118]. The Magistrate Judge also denied Westine's request for an evidentiary hearing "on the issue of whether or not [he] is legally on federal parole" and hence, was properly denied bail. [R. 78 at 4-5, denying R. 48]. Westine's second motion for reconsideration also challenges the Magistrate's refusal to have his 1991 judgment voided although it is unclear from the filing which one of the Magistrate Judge's many orders that Westine seeks to have reconsidered. [ See R. 100 (referring to R. 44 and R. 72).]

As explained by Magistrate Judge Wier on multiple occasions, and by this Court at the first pre-trial conference, this Court has no jurisdiction to upset or review a past judgment issued by another District Court. As Westine is undoubtedly aware, the Sixth Circuit has explicitly prohibited him from filing any further documents challenging his 1992 convictions.[3] This Court has rejected an identical argument regarding the 1992 conviction made by Westine in a wholly separate case, Westine v. USA, 14-cv-61-GFVT. Ultimately, it does not matter how many different ways that Westine tries to repackage his claims surrounding his 1992 conviction because this Court is without jurisdiction to upset that former judgment. The Court will deny the current motions for reconsideration [R. 77; R. 100] and all further requests from Westine seeking relief from the 1992 conviction and he should be advised that the Court is equipped with sanctions should be decide not to abide by this Order.

3

Westine appeals the Magistrate's order "denying [him] access to current case law via Westlaw." [R. 80.] As a preliminary matter, the magistrate judge has not ordered Westine be denied access to Westlaw. Rather, Westine is referring to an ongoing issue relating to his access to legal materials.

On September 30, during Westine's Faretta hearing, the Magistrate Judge warned Westine "about the disadvantages of representing himself." [R. 40.] Again, on October 20, the Magistrate Judge had a lengthy discussion with Westine about his access to legal materials. [R. 67.] Westine was advised that his standby counsel would be able to assist him in securing cases and other necessary materials but that one of the ...


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