We cannot focus on the continuing misconduct evident in the Eastern District of North Carolina without reviewing the case of James Sanderson. Sanderson was indicted on December 9, 2010 in a five-count indictment alleging several drug and firearms offenses, but reached a plea agreement with the AUSA in charge. Among other standard terms of a plea agreement, Sanderson agreed to cooperate with law enforcement in exchange for which the government may request a “5K1.1” downward departure at sentencing. Sanderson entered his plea on September 20, 2011.

In preparation for sentencing the probation department prepared the customary pre-sentence investigation report (“PSR”), which revealed entirely different drug trafficking activity by Sanderson revealed to probation by an as yet undisclosed confidential informant. Based on this undisclosed information, the PSR estimated that Sanderson was responsible for 10,675 grams of cocaine and 9,791 grams of cocaine base along with upwards of 30 firearms.

Needless to say, Sanderson’s prospect at sentencing did not look promising.Government disclosures under Brady apply at the sentencing stage as well. The guidelines range was life imprisonment. Before sentencing, Sanderson received a fortuitous benefit when the Supreme Court decided that the Fair Sentencing Act applied to all cases sentenced after August 3, 2010. This reduced the top guideline range to 480 months rather than life. (we’re not sure if 40 years is better or worse than life).

As Sanderson’s sentencing dates approached, his counsel disclosed that she had a conflict of interest due to her previous representation of another defendant who had given information to the government the AUSA intended to use at Sanderson’s sentencing. Sanderson’s counsel sought to withdraw based on this conflict, but at a hearing scheduled the very next day, Judge James Dever (same judge as in the Bartko case) was not happy about the turn of events and uncharacteristically scolded both Sanderson and his withdrawing counsel. Sanderson was appointed substitute counsel and his case was re-assigned to Judge James Fox for sentencing.

Sentencing finally occurred on June 11, 2013, almost two years after Sanderson’s guilty plea. During sentencing, federal agents testified describing the various drug transactions Sanderson had engaged in with the first confidential informant and the second (but undisclosed) confidential informant. Here’s where the proceedings turn bad for the prosecution. Judge Fox overruled all objections to Sanderson’s PSR and sentenced him to 480 months in prison. The undisclosed sentencing information generated by the second confidential informant was used to drastically increase Sanderson’s sentencing exposure.

Due to objections raised by Sanderson’s lawyer, the AUSA at sentencing represented that “all of the information…. all of the videotapes and all of this evidence that’s provided in the PSR was previously provided to the attorneys representing Mr. Sanderson.” As it turned out, those statements were untrue. It is unclear whether these false statements were intentional or merely careless, but it does not matter under the Brady Doctrine. The AUSA’s had not provided the audio, video and other discovery materials relating to drug transactions involving the second informant. Even though objections to the use of this undisclosed evidence were made, they were overruled by Judge Fox. When Sanderson appealed to the Fourth Circuit, he claimed that the AUSA’s suppression of the undisclosed informant information was part of a continuing course of conduct by the prosecution in the Eastern District of North Carolina, representing”egregiously impermissible conduct” that influenced Sanderson’s decision to plead guilty. Sanderson’s brief on appeal was filed on December 20, 2013, several months after the Fourth Circuit so heavily admonished prosecutors from that district in the Bartko decision for like misconduct. It was also several months after the U.S. Attorney’s Office claimed that it would take action to fix its discovery practices. Sanderson’s brief relied heavily on the decision in Bartko.

Within 30 days of these arguments being raised by Sanderson’s lawyers in the Fourth Circuit, the AUSA’s handling the appeal requested the court to vacate his convictions and remand the case to the district court. It appears the prosecution did not want to face the Fourth Circuit with another case raising significant Brady violations shortly following the Bartko decision. It likely would not have turned out well for the government.

Not to allow our readers to be left hanging, Sanderson was not turned loose following the setting aside of his conviction. On February 17, 2015, he again entered a plea based on a plea agreement and Judge Fox sentenced Sanderson to 240 months in prison on June 30, 2015. Although this was half his original sentence, Sanderson was still not satisfied so he challenged his sentence by habeas petition (filed without counsel) on October 16, 2017. The petition was reassigned back to Judge Dever for disposition. Sanderson’s claims included ineffective assistance of counsel for failing to file a notice of appeal, and failure to object to the drug weight at sentencing.Judge Dever ruled that Sanderson had properly stated a 6th Amendment claim after his counsel failed to file a timely notice of appeal and remanded that claim to a Magistrate for an evidentiary hearing. Sanderson’s second claim was dismissed. In Judge Dever’s opinion dated January 11, 2019, he commented that at the evidentiary hearing there should be a determination made on whether Sanderson committed perjury in making the factual statements he did in his habeas petition, and if so, Judge Dever would be inclined not to reduce his sentence under the First Step Act. All of this bluster without any factual information in the record that we can see that Sanderson made materially false statements in his petition.