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Shaun Rosiere v. United States of America

September 25, 2012

SHAUN ROSIERE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on a pro se application by Petitioner Shaun Rosiere for habeas corpus relief vacating his sentence under 28 U.S.C. § 2255. Petitioner has also filed a motion for summary judgment [Docket Item 9] and a motion for return of property [Docket Item 10.]

Petitioner pled guilty to one-count Indictment charging conspiracy to commit mail and wire fraud and to a one-count Information charging him with conspiracy to commit mail and wire fraud. Petitioner was sentenced to 73 months imprisonment as to Count I of the Indictment and Count I of the Information, to be served concurrently. Petitioner did not file a direct appeal of his sentence.

Petitioner's present habeas petition asserts that his defense counsel was ineffective for failing to investigate his case and failure to challenge the issuance and execution of multiple search warrants. Petitioner also maintains that false statements were made against him during the course of the government's investigation and during the grand jury proceeding. Finally, Petitioner alleges that the government failed to disclose required Brady materials after the indictment and prior to his plea which invalidates his plea. [Docket Items 1 and 4.]

Petitioner moves for summary judgment and argues this court lacked subject matter jurisdiction over the underlying criminal action because the indictment was obtained by presenting allegedly false and perjurious statements to the grand jury. [Docket Item 9.] In addition, Petitioner also moves pursuant to Fed. R. Crim. P. 41(g) for the return of his property which was seized during the criminal investigation. [Docket Item 10.]

For the reasons discussed herein, the court will deny Petitioner's motion for summary judgment as the court finds it properly exercised subject matter jurisdiction over the criminal indictment. The court will also deny Petitioner's application for habeas corpus relief because Petitioner knowingly and voluntarily waived his rights to bring a petition pursuant 28 U.S.C. § 2255 when he entered into the plea agreement. Finally, the court will grant Petitioner's motion to return property to the extent the government has consented to return the inventoried items in its possession.

II. BACKGROUND

On September 10, 2008, a grand jury returned a 24-count Indictment against eleven individuals, including Petitioner Shaun Rosiere. Petitioner was charged in Count 1 (conspiracy to commit mail and wire fraud), Count 9 (wire fraud), Count 15 (aggravated identity theft) and Count 23 (aggravated identity theft). [Docket No. 08-629, Docket Item 1.] On June 26, 2009, Rosiere appeared before Chief Judge Garret E. Brown, Jr. and entered a plea of not guilty to the Indictment. [Docket No. 08-629, Docket Item 2.]

On April 9, 2009, the court entered an order for discovery and inspection which required the government to release all material evidence favorable to the defendant related to issues of guilt, lack of guilt or punishment which was known or that by the exercise of due diligence may have become known to the government, within the purview of Brady v. Maryland and its progeny. [Docket No. 08-629, Docket Item 59.] Subsequently, Petitioner's attorney moved for the release of Brady materials and specifically sought the production of all evidence seized from 1969 Sinton Road, Evergreen, Colorado 80439, as this evidence was not provided by the government in its initial discovery disclosures. [Docket No. 08-629, Docket Item 70.] The government opposed the motion and argued it had fully complied with its disclosure requirements under Brady and Giglio. [Docket No. 08-629, Docket Item 99.]*fn1

Before this motion was resolved, Petitioner entered an application for permission to enter a plea of guilty and entered into a plea agreement on September 17, 2009. [Docket No. 08-629, Docket Items 112 and 113.] The plea agreement provided that Petitioner would plead guilty to Count 1 of the Indictment and one count of the Information. The plea agreement also stated that Petitioner waived his right to appeal or collaterally attack the sentence through a Section 2255 petition if Petitioner was sentenced within the Guideline range for Guideline offense level 26. (Resp't's Ex. A.) Petitioner also waived any challenge to venue in the District of New Jersey and proceeded with the matter before Chief Judge Brown. [Docket No. 08-629, Docket Item 111.]

A plea hearing was held this same day before Judge Brown. During this plea hearing, Judge Brown extensively questioned the Petitioner regarding the plea agreement, whether he understood the terms set forth therein, whether he was pleading guilty because he was in fact guilty and for no other reason, whether he understood that he was waiving his rights to appeal and to file a writ or motion after sentencing, and whether he was satisfied with the services of his attorney and whether his attorney fully explained the consequences of entering a guilty plea. Judge Brown also asked Petitioner's counsel whether the decision to plead guilty was knowing and voluntary and conducted an inquiry of Petitioner to determine independently whether his plea was knowing and voluntary.

Petitioner also admitted specific facts supporting his plea. In particular, Petitioner admitted to conspiring to defraud financial institutions and their account holders by fraudulently depositing into various corporate bank accounts checks purportedly received from customers of telemarketer businesses and withdrawing those funds from the victim banks knowing the checks were not obtained from consenting telemarketing customers. Petitioner also admitted to opening corporate bank accounts and incorporating numerous corporations in order to deposit funds derived from the scheme.

At no time during this hearing did the Petitioner indicate he was dissatisfied with counsel, negate the factual basis of his plea or claim that he was not making a knowing and voluntary decision to plead guilty.

On August 3, 2010, Petitioner was sentenced by Chief Judge Brown. [Docket No. 09-720, Docket Item 7.] Prior to issuing the sentence, Petitioner filed a motion to recuse Judge Brown. This motion was not filed by his attorney but rather was filed of Petitioner's own accord. Petitioner's counsel withdrew it at the sentencing hearing and Judge Brown independently determined that it was patently frivolous. [Docket No. 09-720, Docket Item 9.]

Petitioner also filed objections to the presentence report which were addressed by the court. Petitioner's counsel stated that he did not know what Petitioner's particular objections were and Judge Brown permitted Petitioner to address the court directly with his arguments. Petitioner explained that he talked to counsel on the phone about his objections and counsel indicated that he did not file the objections because he determined they were immaterial. [Id. at 9:16-25.] Judge Brown gave the Petitioner the opportunity to adjourn the sentencing to speak with his lawyer about his objections so they could be dealt with in open court. Petitioner elected to orally discuss his objections with the court. [Id. at 10:6-12:16.] After hearing all of Petitioner's objections, Judge Brown determined that Petitioner's objections were not relevant to sentencing and dismissed them. [Id. at 12:9-16.]

Prior to imposition of his sentence, Petitioner reiterated to the court that he took full responsibility for his actions. [Id. at 15:9-13.] The court was satisfied at the plea hearing that Petitioner accepted responsibility and the court reiterated its satisfaction at sentencing despite not having a written acceptance of responsibility from Petitioner. [Id. at 7:14-21; 17:4-5.]

There was an issue with regard to restitution at the sentencing because the government claimed Petitioner owed $1.768 million in restitution but had failed to disclose its report and findings to Petitioner's counsel. Petitioner's counsel objected to this restitution amount and a short recess commenced so counsel could review the basis for government's figure. [Id. at 22:4-23:20.] After the recess, Petitioner's counsel conceded the figure for restitution because he had reviewed the government's calculations which supported the $1.768 million amount. [Id. at 24:9-13.] This restitution was related to Petitioner's fraudulent activity with regard to Forex, a corporation consisting of two different groups, Active Trader News and MAAAC, which is detailed in Count One of the Information to which Petitioner entered a guilty plea. [Docket No. 09-720, Docket Items 1 and 6.]

Judge Brown then issued his sentenced and committed Petitioner to 73 months of imprisonment on each count, to be served concurrently. [Id., Docket Item 9 at 25 5:-9.] In addition, Judge Brown imposed a term of three years of supervised release on both counts to run concurrently. [Id. at 25:10-13.]

This sentence was within the Guideline range for a Guideline offense level of 26. Judge Brown also imposed restitution in the amount of $1,768,690 in accordance with the government's figures and Petitioner's concession. [Id. at 26:21-22.] However, Judge Brown declined to impose a fine because he recognized Petitioner did not have the ability to pay a fine and restitution was mandatory. [Id. at 27:1-3.]

On July 29, 2010, Petitioner filed the instant timely motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. [Docket Item 1.] The Petitioner relies on several grounds to support his application for habeas corpus relief. First, Petitioner argues the criminal investigation against him began when United States Postal Office and Inspector Lewis unlawfully withheld his mail. The Petitioner further argues that several search warrants were unlawfully issued and executed in violation of his Fourth Amendment rights during the criminal investigation. Petitioner maintains that Inspector Lewis and other government officials made false statements against him prior to and during the grand jury proceeding in violation of 18 U.S.C. §§ 1001, 1623. Petitioner also argues that the Assistant U.S. Attorney violated his discovery obligations by concealing evidence, withholding evidence and making false statements against him. Petitioner also maintains that the United States Postal Office did not have subject matter jurisdiction to investigate this case because the postal inspectors committed non-sovereign acts and failed to adhere to their oath of office. In addition, Petitioner states that he had ineffective assistance of counsel because Petitioner did not receive copies of the documents related to the case and he only had minimal discussion with his attorney regarding the matter. In terms of his sentencing, the Petitioner argues the government introduced and referred to new information which was not disclosed during the discovery phase and introduced a new witness that was not material to this case. [Docket Items 1 and 4.] Therefore, Petitioner seeks to vacate his sentence.

In addition to his application for habeas relief, Petitioner filed a motion for summary judgment seeking to dismiss the underlying criminal action for lack of subject matter jurisdiction. [Docket Item 9.] Petitioner argues the indictment was obtained against him because false statements were made during the grand jury proceeding. Consequently, Petitioner argues the indictment is invalid and there is no subject matter jurisdiction to prosecute him. Petitioner also filed a motion for return of property pursuant to Fed. R. Crim. P. 41(g) and seeks return of the items which were seized from his home during the execution of multiple search warrants. [Docket Item 10.] It is undisputed Petitioner's home is in Colorado and the items were seized in the District of Colorado.

The government filed opposition to this petition as well as the pending motions for summary judgment and return of property. [Docket Item 14.] First, the government argues that Petitioner made a knowing, voluntary and binding decision to enter into a plea agreement that included a waiver of his right to appeal and to attack his sentence collaterally. The government maintains that Petitioner's waiver precludes the filing of this Section 2255 action. Alternatively, the government argues that Petitioner's claims, with the exception of his ineffective assistance of counsel claim, are barred because Petitioner entered into an unconditional guilty plea and did not reserve these issues for collateral attack. To the extent Petitioner argues ineffective assistance of counsel, the government maintains that this argument is without merit because it does not meet either prong of the Strickland standard. The government maintains that there is no evidence Petitioner's counsel was so deficient to render him ineffective and there is no evidence that Petitioner would not have pled guilty or that the proceedings would have been different but for his counsel's alleged errors.

In regards to the pending summary judgment motion, the government argues this motion should be denied because Petitioner failed to meet the standard required to obtain summary judgment. Finally, the government maintains that Petitioner's motion for return of property should be denied for lack of venue since it should have been filed in the District of Colorado where the property was seized in accordance with Fed. R. Crim. P. 41(g). However, the government admits that it has certain property in its possession here in New Jersey and has agreed to release this property to the Petitioner.

III. DISCUSSION

The court will first address Petitioner's motion for summary judgment since the Petitioner challenges the court's subject matter jurisdiction. The court will then analyze the merits of Petitioner's application for habeas corpus relief and determine whether Petitioner knowingly and voluntarily waived his right to bring this collateral attack. Finally, the court will discuss Petitioner's motion for return of property.

A. Petitioner's Motion for Summary Judgment

The Petitioner argues summary judgment should be granted because this court lacked subject matter jurisdiction over the underlying criminal indictment since false statements were allegedly made during the grand jury proceeding. The court finds this argument without merit and will deny Petitioner's motion.

It is well established that federal district courts have exclusive original jurisdiction over an indictment charging violations of the laws of the United States. Specifically, 18 U.S.C. § 3231 provides, "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." See also United States v. Abdullah, 289 F. App'x 541, 543 n.1 (3d Cir. 2008).

It is undisputed in this case that Petitioner was charged in the indictment with conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349, wire fraud in violation of 18 U.S.C. § 1343 and § 1342, and aggravated identity theft in violation of 18 U.S.C. § 1028A. These are all violations of the laws of the United States. Therefore, pursuant to 18 U.S.C. § 3231, the district court properly exercised subject matter jurisdiction over the underlying criminal action.

Petitioner bases his motion on the argument that the indictment was procured through the false testimony of government witnesses and should consequently be considered void. This argument does not affect the subject matter jurisdiction of this court over the underlying criminal matter. Instead, this argument challenges the sufficiency of the indictment.

When reviewing the sufficiency of an indictment, a court looks at the entire indictment to determine "(1) whether the indictment contains the elements of the offense intended to be charged and sufficiently appraises the defendant of [the crime] she should be prepared to meet; (2) whether the indictment is specific enough to make a plea of double jeopardy possible." United States v. Werme, 939 F.2d 108, 112 (3d Cir. 1991).

Here, a detailed 79-page indictment was issued which specifically apprises the charged individuals of the offenses against them. Petitioner was charged with conspiracy to commit wire fraud, wire fraud and aggravated identity theft. The elements of each of these crimes are set forth clearly in the indictment. In addition, this indictment was specific enough to prevent a claim for double jeopardy. Therefore, the court is satisfied that the indictment was sufficient on its face as a basis for the underlying criminal action. [Docket No. 08-629, Docket Item 1.]

Furthermore, it is well established that "a plea of guilty waives all non-jurisdictional defenses, whether these defenses be later raised in a § 2255 petition or a Rule 32(d) motion." Woodward v. United States, 426 F.2d 959, 964 (3d Cir. 1970). By entering into a knowing and voluntary guilty plea, which will be discussed in Subsection B.1 below, Petitioner waived his right to challenge the sufficiency of the indictment and cannot raise it now in the instant § 2255 petition. Petitioner admitted to the acts charged in the indictment when he entered his guilty plea and cannot now be heard to challenge the accuracy of the facts which he averred when entering his plea. "By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime." Taccetta v. United States, 975 F. Supp. 672, 679 (D.N.J. 1997)(quoting United States v. Broce, 488 U.S. 563, 569 (1989)).

In this case, there is no dispute that the charges in the indictment are crimes under federal law and that the indictment is specific, apprised Petitioner of the offense charged and contains all the required elements of each offense. Therefore, the indictment was sufficient and was properly within the subject matter jurisdiction of the federal court. To the extent Petitioner brings non-jurisdictional challenges to the indictment, he waived his ability to bring these arguments when he entered into a knowing and voluntary plea agreement.

Accordingly, Petitioner's motion for summary judgment will be denied.

B. Petitioner's Section 2255 Application

When considering a § 2255 petition the Court must hold an evidentiary hearing, unless the record and motion of a case conclusively indicate that the movant is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The Court is required to accept the Petitioner's factual allegations as true so long as they are not "clearly frivolous," which the Court can establish by examining the existing record. Id. Nevertheless, should the movant's petition contain "vague and conclusory" allegations it is at the Court's discretion to dispose of it without further inquiry. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).*fn2

A waiver in a plea agreement of the right to appeal and collaterally attack a sentence is valid as long as it was entered into knowingly and voluntarily and does not work a miscarriage of justice. United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005). "Whereas a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record evidence before it." United States v. Mabry, 536 F.3d 231, 237-38 (3d Cir. 2008.)

In this case, Petitioner does not argue that he did not understand the terms of the plea agreement or that he was coerced into entering it. Petitioner essentially brings two main arguments. First, Petitioner maintains that the government did not disclose certain required discovery and ...


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