USA v. Gamboa et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
United States of America, 	)
)
Plaintiff, 	)
) 	Criminal No. 3:02-cr-47-01
vs. 	)
)
Michael Gerald Gamboa 	)
)
Defendant. 	)
O R D E R
Before the Court are the Defendant Michael Gamboa’s motions
of July 10, 2006, and October 13, 2006. 	In his July motion,
Gamboa objects to the Court’s order on remand from the Eighth
Circuit, arguing that he should have been granted a hearing and
counsel and that he is entitled to a new trial (doc. #418). 	In
his October motion, Gamboa requests the Court unseal several
Government motions related to his co-defendants, arguing his due
process rights have been violated (doc. #421). 	Both motions are
DENIED, but the Court ORDERS the Clerk of Court to forward a copy
of the order on remand and the amended judgment to the United
States Probation Office (“USPO”) and the United States Bureau of
Prisons (“BOP”).
I. 	July Motion
Gamboa argues the Court erred when it vacated his conviction
for possession of a firearm by a fugitive from justice (“Count
Seven”) (doc. #416) without a hearing or appointment of counsel.
On Gamboa’s appeal, the Eighth Circuit held that Gamboa’s
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convictions as a felon in possession of a firearm and a fugitive
from justice in possession of a firearm arose from the same
possession, violated double jeopardy, and could only be one
offense. 	United States v. Gamboa, 439 F.3d 796, 808 (8th Cir.
2006). 	The Circuit’s opinion directed the Court to “vacate the
conviction, the sentence, and the special assessment imposed on
that Count.” 	Id. 	That is precisely what the Court did (doc.
#416). 	However, vacating Count Seven did not affect Gamboa’s
sentence. 	Therefore, the Court had no reason to consult the
parties or conduct another sentencing hearing but was allowed to
enter an amended judgment reflecting the Circuit’s order (doc.
#417). 	Gamboa’s objection to not holding a new hearing is
DENIED.
Gamboa also requests an extension of time to file a new
trial motion because he argues the vacating of Count Seven
entitles him to a new trial. 	The Circuit did not order a new
trial; it ordered the vacating of Count Seven. 	Federal Rule of
Criminal Procedure 33 requires a motion for new trial be filed
seven days after the verdict of guilt if it is for reasons other
than newly discovered evidence. 	This motion was not made after
the conviction and is therefore untimely. 	Gamboa’s motion for
extension of time to file a motion for new trial is DENIED.
Gamboa correctly notes, however, that the order on remand
and amended judgment were not forwarded to the USPO or the BOP to
be attached to the presentence investigation report. 	The Court
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ORDERS the Clerk of Court to forward a copy of the order on
remand (doc. #416) and the amended judgment (doc. #417) to the
USPO and the BOP.
II. 	October Motion
Gamboa argues the Court must unseal the substantial
assistance departure motions of several co-defendants because
otherwise his due process rights would be violated. 	Gamboa
contends the motions are directly relevant to the Government’s
duty to produce discovery. 	Gamboa also questions the sentences
given to the co-defendants compared to his sentence.
However, Gamboa has not made any allegations in how the
Government has not complied with its duty to produce discovery or
how the substantial assistance motions will assist him.
Furthermore, these due process arguments related to discovery and
the justifications for the sentences of the various defendants
were issues fully developed before appeal and could have been
raised. 	They were not and are, therefore, untimely and waived.
Gamboa has not shown a need that would defeat the Government’s
interest of protecting the information contained in the motions.
Therefore, Gamboa’s motion to unseal these motions is DENIED.
IT IS SO ORDERED.
Dated this 12th day of January, 2007.
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