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United States v. Fries

United States District Court, D. Arizona

November 7, 2017

United States of America, Plaintiff/Respondent,
v.
Todd Russel Fries, Defendant/Movant.

          ORDER

          HON. CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant/Movant Todd Russel Fries' Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1, CV-16-00763-TUC-CKJ; Doc, 403, CR-11-01751-CKJ (CRP).) The motion asks the Court to set aside Defendant's sentence because of the ineffective assistance of both trial and appellate counsel. (Id.) The Court dismissed the motion on Grounds One through Three, ordered the Government to file a supplemental response to Ground Four, and permitted Defendant an opportunity to file a reply. (Doc. 8, CV-16-00763-TUC-CKJ.) The Government filed a supplemental response. (Doc. 9, CV-16-00763-TUC-CKJ.) The Defendant did not file a reply. The Court denies Movant's motion as to Count Four.

         . Background

         On May 11, 2011 Defendant was indicted for two counts of Unlawful Possession, Development, or Production of a Chemical Weapon in Violation of 18 U.S.C. § 229(a) and 18 U.S.C. § 229A(a)(1) and (2). (Doc. 20, CR-11-01751-CKJ (CRP).)[1] The charges stem from two chemical devices, comprised of chlorcyanuric acid and another unknown reactive chemical substance, which the Defendant produced and placed at the victims' residence on August 2, 2009. (Doc. 20.) Defendant was arrested on May 13, 2011. (Doc. 13.) Defendant's home was searched soon after the arrest. (Doc. 24, at 2.) In a dresser drawer, Defendant had cylindrical and spherical explosives, wrapped in latex gloves, and stuffed with BB pellets. (Doc. 383 at 97-102.) Also located in a box were additional cylindrical and spherical devices, latex gloves, and metal BB pellets. (Id. at 110-14, 117-18.)

         A Second Superseding Indictment was returned on July 25, 2012. (Doc. 131.) The two counts of Unlawful Possession of a Chemical Weapon were consolidated into Count One and three counts were added. (Doc. 88, at 5.) Count Two alleged False Statements in Violation of 18 U.S.C. § 1001(a)(2). This count was related to a phone call made on August 4, 2009 to the Federal Bureau of Investigations in which another person was falsely implicated for the chemical weapons left at the victims' residence. (Id.) Counts Three and Four charged Unlawful Possession of Unregistered Destructive Devices in violation of 26 U.S.C. §§ 5845(a)(8) and 5845(f)(1)(A). Counts Three and Four were related to items found at the Defendant's residence after he was arrested and his property was searched.

         On June 26, 2012, Magistrate Judge Pyle severed Counts Four and Five of the Indictment because the offenses were not sufficiently of similar character, were separated by time, and the targeted victims of the offenses were unrelated. (Doc. 159.)

         Trial # 1: Possession of a Chemical Weapon and False Statements

         Defendant's first trial was held between September 18, 2012 and October 5, 2012. A jury convicted Defendant of Counts One and Two of the Second Superseding Indictment. (Doc. 231.) On March 4, 2013, the Court sentenced Defendant to one hundred fifty-one (151) months' incarceration for Count One and sixty (60) months' incarceration for Count Two to run concurrently, with thirty-six (36) months supervised release on each count to also run concurrently. (Doc. 317).

         Trial # 2: Two Counts of Possession of an Unregistered Device

         A second jury trial was held on the two counts of Possession of an Unregistered Destructive Device on August 6, 2013. At trial, Defendant testified that he altered three fireworks purchased in New Mexico, by adding BB pellets and wrapping them in Latex gloves claiming that he was trying to make the explosives more effective to kill packrats on his property; Defendant also admitted he had additional fireworks, BB pellets and latex gloves stored in a box where the other explosive devices were located. (Doc. 383 at 97-102.)

         The jury found the Defendant guilty on both Counts. The Court sentenced the Defendant to sixty (60) month's incarceration for each count, with twenty (20) months to run consecutive to the previous sentence for chemical weapons and false statements, and thirty-six (36) months supervised release on each count to also run concurrent to his other sentence.

         Appeal

         Defendant appealed his convictions on all counts to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed Defendant's convictions in both cases. (Doc. 396; Doc. 398.)

         Defendant was denied certiorari by the United States Supreme Court on both cases on December 8, 2015 (Doc. 399) ...


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