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Daniel M. Van Pelt v. United States of America

February 13, 2013


The opinion of the court was delivered by: Pisano, District Judge.


On May 29, 2010, petitioner Daniel Van Pelt ("Petitioner") was convicted of one count of attempting to extort money under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951, and one count of bribery, in violation of 18 U.S.C. § 666(a)(1)(B). On November 19, 2010, the Court sentenced Petitioner to 41 months' imprisonment on each count, to run concurrently. Presently before the Court is pro se Petitioner's motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons below, Petitioner's motion is denied.


Petitioner was formerly a New Jersey State Assemblyman, a Waretown, New Jersey Township Committeeman, and the Business Administrator for Lumberton, New Jersey. The evidence at trial showed that while holding these positions in February 2009, Petitioner accepted a $10,000 payment from Solomon Dwek, a man Petitioner believed to be a developer named David Esenbach, but who was in fact a cooperating witness acting under the direction and supervision of the government, and promised to help the fictitious developer with obtaining certain development permits. Trial Ex. ("Ex.") 103.

The first meeting between Petitioner and Dwek took place on December 4, 2008. Dwek expressed an interest at that time in developing real estate in Waretown, New Jersey. Ex. 100 and Ex. 100T. Petitioner advised Dwek that because of Waretown's coastal location, such projects generally require approval from the New Jersey Department of Environmental Protection. Id.

At a subsequent meeting between Petitioner and Dwek on January 15, 2009, Dwek intimated to Petitioner that Dwek was willing to pay Petitioner for help in obtaining approvals to develop in Waretown. Ex. 101 and Ex. 101T (".if I need to help, you know, you do the right thing by me, I'm a generous guy."). However, Petitioner advised Dwek he would be leaving his position as a Committeeman in Waretown shortly. Id.

Petitioner and Dwek met again on February 11, 2009. At that meeting, Dwek and Petitioner discussed potential development of property within Waretown's Town Center. Ex. 102 and Ex. 102T. During that meeting, Petitioner stated such development would require a Coastal Area Facilities Review Act ("CAFRA") permit from New Jersey's DEP. Id. Dwek confirmed that Petitioner was remaining an Assemblyman and asked whether Petitioner would be able to help Dwek "if [Dwek] needed some stuff." Id. Petitioner confirmed that he could. Id. Ultimately, Dwek offered Petitioner "ten thousand to start," and a week and a half later Petitioner accepted an envelope containing $10,000 from Dwek at a restaurant in Atlantic City.

Dwek and Petitioner met a number of times thereafter. During one meeting, Petitioner discussed how he would expedite Dwek's application for CAFRA approvals by making some phone calls and asking that the application be moved "to the top of the pile" and then going to "sit down and physically meet with them." Ex. 105 and 105T. At another meeting Dwek offered to bribe other Waretown officials. Petitioner responded, telling Dwek "I'm all you need" and suggesting that Dwek hold a fundraiser for Petitioner when Petitioner undertook a planned campaign for a seat with the United States House of Representative.

On July 21, 2009, the government filed a complaint against Petitioner alleging extortion under color of official right in violation of 18 U.S.C. § 1951(a) and (2). Crim. No. 09-912, D.I.

1. On December 10, 2009, a two-count indictment similarly charged Petitioner with violation of 18 U.S.C. § 1951(a) and (2), and also charged that Petitioner accepted and agreed to accept payments intending to be influenced and rewarded, in violation 18 U.S.C. 666(a)(1)(b). On May 19, 2010, Petitioner was convicted on both counts after an eight day trial. He was sentenced on November 19, 2010, to 41 months imprisonment on each count, to be served concurrently.

Petitioner brings the instant motion alleging that he failed to receive effective assistance at trial and sentencing. He alleges that his counsel: (1) failed to investigate certain witnesses; (2) failed to "call, secure or subpoena no less than seventeen witnesses; (3) failed to object to the jury instructions as to Count Two; (4) failed "to object during any portion of the trial"; and (5) failed to move for a downward departure based upon various factors.


1. Standard of Review

A prisoner in federal custody may file a motion in the trial court challenging the validity of his sentence. 28 U.S.C. § 2255; Morelli v. United States, 285 F.Supp.2d 454, 458 (D.N.J. 2003). Pursuant to § 2255, a prisoner shall be released from custody if the sentence "(1) was imposed in violation of the Constitution or laws of the United States; (2) was imposed by a court lacking jurisdiction; (3) was in excess of the maximum authorized by law; or (4) is otherwise subject to collateral attack." Morelli, 285 F.Supp.2d at 458 (citing 28 U.S.C. § 2255). To establish a right to habeas corpus relief, a prisoner must demonstrate that the sentence has a fundamental defect resulting in a complete miscarriage of justice or an ...

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