United States District Court, D. New Jersey
Ronald Allen U.S.P. Atwater Atwater, CA, Petitioner, pro se.
Robert Stephen Stigall, AUSA Office of the U.S. Attorney, District of New Jersey Camden, NJ, and Sarah M. Wolfe, AUSA Office of the U.S. Attorney, District of New Jersey Trenton, NJ, Attorneys for Respondent.
JEROME B. SIMANDLE, Chief District Judge.
Petitioner Ronald Allen brings this petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. [Docket Items 1 & 9.] A jury convicted Petitioner of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349, and on July 26, 2011, this Court sentenced Petitioner to 70 months imprisonment and three years of supervised release, as well as restitution and other penalties. [Cr. Docket Item 51.] Petitioner now moves for the Court to vacate, set aside or correct his sentence on three grounds: (1) he was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution; (2) the Court of Appeals improperly rejected his argument that the offenses took place outside the applicable statute of limitations period; and (3) the Court improperly instructed the jury regarding the statute of limitations and the Court's jurisdiction because it was never established that the offense took place in the United States. For the reasons discussed below, the Court will deny the Petition.
On December 3, 2009, a federal grand jury returned a onecount indictment against Petitioner charging him with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 for his role in a scheme to sell fraudulent insurance policies through which Petitioner accumulated approximately $366, 918.93 in illegal proceeds. (Indictment [Cr. Docket Item 1] ¶ 10.) On May 10, 2010, Petitioner's counsel filed an omnibus pretrial motion seeking, inter alia, dismissal of the Indictment on the grounds that Petitioner was not involved in the conspiracy during the five-year statute of limitations period. [Cr. Docket Item 13.] The Government opposed Petitioner's motion and argued that it would prove at trial that Petitioner collected fraudulent insurance premiums from his co-conspirator, Gilbert Scott Morgan, on December 7, 2004. (USA Opp. [Cr. Docket Item 14] at 22.) After oral argument, this Court denied Petitioner's motion to dismiss the Indictment for violation of the statute of limitations. [Cr. Docket Item 16.]
On December 14, 2010, a jury convicted Petitioner of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349. [Cr. Docket Item 46.] On July 26, 2011, this Court sentenced Petitioner to 70 months imprisonment and three years of supervised release, as well as restitution and other penalties. [Cr. Docket Item 51.] The only objection to the Court's Guideline calculation was Petitioner's counsel's objection to the two-point enhancement for sophisticated means pursuant to U.S.S.G. § 2B1.1(b)(9) of the Guidelines. (Sentencing Transcript ("Sentg. Tr."), USA Ex. A [Docket Item 10-1] at 4-24.) The Court rejected Petitioner's argument and applied the two-point enhancement for sophisticated means. (Id. at 44-45.) The Court determined that the base offense level was seven pursuant to U.S.S.G. § 2B1.1, that a 14 level increase was appropriate pursuant to U.S.S.G. § 2B1.1(b)(1)(H) because the amount of loss was $692, 736.28, and that a four-point enhancement was appropriate pursuant to U.S.S.G. § 2B1.1(b)(2)(B) because there were more than 50 victims. (Id.) This resulted in a total offense level of 27. (Id.) Because Petitioner had zero criminal history points, the Guideline range of imprisonment was 70 to 87 months. The Court imposed a sentence of 70 months imprisonment followed by three years of supervised release and ordered restitution of $692, 736.28. (Id. at 52-53.)
Petitioner appealed and the Third Circuit affirmed the decision of this Court on July 11, 2012. [Cr. Docket Item 63.] The Court of Appeals rejected Petitioner's arguments (1) that the charges against him were barred by the statute of limitations; (2) that there was insufficient evidence of his participation in the conspiracy during the statute of limitations period; (3) that this Court erred by not instructing the jury regarding unanimity as to a factual issue; (4) that this Court erred by when it gave a jury instruction regarding multiple conspiracies; (5) that this Court abused its discretion by instructing the jury on willful blindness; and (6) that he was entitled to a new trial due to ineffective assistance of counsel. See United States v. Allen, 492 F.Appx. 273, 276 (3d Cir. 2012). Addressing Petitioner's statute of limitations argument, the Court of Appeals concluded that there was sufficient evidence of activity in furtherance of the conspiracy within the statute of limitations period for this Court to deny Petition's omnibus pretrial motion, as well as sufficient evidence at trial that by accepting money from the proceeds of the conspiracy, Petitioner was still a participant in the conspiracy during the statute of limitations period. Id . at 276-78. Further, the Court of Appeals found that the record was insufficient to evaluate Petitioner's ineffective assistance of counsel claim and noted that Petitioner's ineffectiveness claim should be addressed on collateral review. (Id. at 280-81.)
On August 29, 2013, Petitioner timely filed the instant pro se Petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [Docket Item 1.] The Court gave Petitioner due notice of his right to amend his petition to include any additional grounds within 30 days under United States v. Miller , 197 F.3d 644 (3d Cir. 1999) on September 17, 2013, and Petitioner indicated in response that he would not be amending his petition. On October 17, 2013, the Court ordered the Government to file an answer to the Petition. [Docket Item 5.] On January 31, 2014, Petitioner filed a motion to amend the Petition. [Docket Item 9.] The Government responded to the Petition and Amended Petition that same day, January 31, 2014.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2255(a), a federal prisoner may move to vacate, set aside or correct a sentence on the ground that the sentence was imposed in violation of the Constitution or federal law, the sentencing court was without jurisdiction, or the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. The district court shall grant a hearing to determine the issues and make findings of fact and conclusions of law. 28 U.S.C. § 2255(b). However, if the motion, files and records of the case conclusively show that the prisoner is not entitled to relief, the petition will be denied. § 2255(b); see also United States v. McCoy , 410 F.3d 124, 131-32 (3d Cir. 2005) (holding a district court must grant an evidentiary hearing unless the record before it conclusively showed the petitioner was not entitled to relief). A hearing need not be held if the petition raises no legally cognizable claim, or if the factual matters raised by the petition may be resolved through the district court's review of the motions and the records in the case, or, in some circumstances, if the court, in its discretion, finds the movant's claims to be too vague, conclusory or palpably incredible. United States v. Costanzo , 625 F.2d 465, 470 (3d Cir. 1980) (quoting Machibroda v. United States , 368 U.S. 487, 495 (1962)).
A. Ineffective Assistance of Counsel
Petitioner argues that he was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. "To establish ineffective assistance of counsel a defendant must show both deficient performance by counsel and prejudice." Premo v. Moore , 131 S.Ct. 733, 739 (2011). A petitioner must show (1) that "counsel's representation fell below an objective standard of reasonableness, '" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id . (citing Knowles v. Mirzayance , 556 U.S. 111, 122 (2009)); see also Strickland v. Washington , 466 U.S. 668, 687-88 (1984). "Judicial scrutiny of counsel's performance must be highly deferential" and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id . at 689. The Third Circuit has cautioned that it is "only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." Buehl v. Vaughn , 166 F.3d 163, 169 (3d Cir. 1999) (quoting United States v. Gray , 878 F.2d 702, 711 (3d Cir. 1989)).
Petitioner advances eleven bases for his ineffective assistance of counsel claim: (1) failing to object to pretrial motion to dismiss; (2) failing to complete investigation; (3) failing to obtain grand jury transcripts; (4) failing to file all required pretrial motions; (5) failing to investigate and/or impeach government witnesses; (6) failing to move for the suppression of evidence; (7) failing to secure sworn affidavits and declarations for defense witnesses; (8) failing to object to unjust jury instructions; (9) withholding defense strategy from Petitioner until the first day of trial; (10) failing to object to the two-point sophisticated means enhancement at sentencing and for failing to make any other objections at sentencing; and (11) failing to move for acquittal under Fed. R. Crim. P. 29 based on the statute of limitations. The Court will address each in turn.
1. Failure to object to pretrial motion to dismiss
Petitioner first argues that trial counsel was deficient in failing "to object to pre-trial motion to dismiss." (Petition [Docket Item 1] at 5.) However, the Court construes Petitioner's argument as based on counsel's failure to file a pretrial motion to dismiss and "all required pre-trial motions." (Id.) Petitioner's argument is meritless because counsel filed a motion to dismiss in an omnibus motion on May 10, 2010. The pretrial motion requested the following: (1) pretrial disclosure of any evidence of prior bad acts; (2) disclosure of any exculpatory material; (3) disclosure of any expert testimony; (4) disclosure of defendant's statements under Fed. R. Crim. P. 16; (5) a bill of particulars identifying the names of the alleged co-conspirators; (6) an order requiring the Government to preserve agent rough notes; and (7) dismissal of the indictment based on the statute of limitations. [Cr. Docket Item 13.] The Court heard oral argument on Petitioner's motion on July 8, 2010 and entered an order dated July 12, 2010 granting in part and denying in part Petitioner's motion. [Cr. Docket Item 16.]
The Court finds Petitioner's assertion that counsel failed to file all required pretrial motions both factually inaccurate and insufficiently specific to establish ineffective assistance of counsel. Petitioner does not explain what pretrial motions should have been filed or what effect they would have had on the outcome of the case. Therefore, Petitioner has failed to show any deficiency by trial counsel or prejudice as a result.
Petitioner also asserts in his Amended Petition that trial counsel should have moved for dismissal based on a lack of an interstate commerce allegation in the Indictment. However, the Indictment included an interstate commerce allegation. (Indictment ¶ 2.) Therefore, the Court is unable to conclude that trial counsel erred in failing to seek dismissal for lack of an interstate commerce allegation. As such, the first basis for Petitioner's ineffective assistance of counsel claim is meritless.
2. Failure to complete investigation
Petitioner asserts that trial counsel failed to "complete investigation, including, but not limited to, pre-trial subpoena requests, and arranging private investigation(s) to dispute alleged claims in indictment." (Petition at 5.) The Government argues that Petitioner has failed to specify who counsel should have subpoenaed, what testimony these witnesses would have offered, and what effect their testimony would have had on the outcome. In his reply, Petitioner identifies "Rick Lindsey, CEO of Prime, " "the representative [to] the New Jersey Insurance Department, " "Harry Briglow, " and "the person in Rotuma who had volunteered to testify that UPIC was properly formed." (Reply [Docket Item 13] at 17-21.) Petitioner also provides hypothetical testimony from these individuals, which he contends would have been adduced at trial. However, Petitioner provides no basis upon which the Court could conclude that trial counsel was unreasonable in failing to investigate or subpoena these witnesses.
Even if the Court were to accept Petitioner's assertion that counsel failed to investigate and subpoena certain defense witnesses, Petitioner must also show prejudice. Petitioner must show more than just a "conceivable" likelihood of a different result. Harrington v. Richter , 131 S.Ct. 770, 792 (2011). "The effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Grant v. Lockett , 709 F.3d 224, 235 (3d Cir. 2013) (quoting Rolan v. Vaughn , 445 F.3d 671, 682 (3d Cir. 2006) (internal citation and quotation omitted)).
Petitioner's conviction was supported by ample evidence of a conspiracy to sell fraudulent insurance policies and the hypothetical testimony proffered by Petitioner is insufficient to show more than a conceivable likelihood of a different result. Testimony from Lindsey, CEO of Prime, that he approved the Universal Pacific Insurance Co. ("UPIC") financial statement and agreed to the sale of Prime to Petitioner only shows the extent of the fraud and deception employed by Petitioner and his co-conspirators. Testimony from a representative of the New Jersey Insurance Department to establish that an alien insurance company can legally write business does little to undermine Petitioner's participation in a conspiracy to sell fraudulent insurance policies in New Jersey. Similarly, Petitioner contends that Harry Briglow would testify that he introduced Petitioner to his co-conspirator, Morgan, but he was aware of no conversations regarding the fraudulent nature of the proposed business with Morgan. Again, such testimony would not outweigh the overwhelming evidence at trial of the fraudulent arrangement between Petitioner and Morgan, and the attempts to conceal it, including falsified documents. Finally, Petitioner asserts that "the person in Rotuma" volunteered to testify that UPIC was properly formed and had the authority to conduct insurance business. This assertion is vague and conclusory and provides insufficient grounds for an evidentiary hearing. See Mayberry v. Petsock , 821 F.2d 179, 185 ...