JEAN C. HAMILTON, District Judge.
This matter is before the Court on pro se Movant David R. Wulf's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed November 10, 2014. (ECF No. 1).
On November 18, 2010, Movant was charged in a second superseding indictment with one count of conspiracy to commit mail fraud affecting a financial institution, mail fraud, wire fraud affecting a financial institution, wire fraud, and bank fraud in violation of 18 U.S.C. § 1349
Movant's criminal trial began on August 5, 2013. On August 21, 2013, the parties agreed to redact the second superseding indictment to remove certain counts which the United States did not pursue at trial, to remove the forfeiture allegation against Movant, and to renumber the remaining counts. On August 22, 2013, the jury returned a verdict of guilty on all eighteen counts of the redacted indictment, including one count of conspiracy to commit mail fraud affecting a financial institution, mail fraud, wire fraud affecting a financial institution, wire fraud, and bank fraud, eight counts of bank fraud, six counts of wire fraud affecting a financial institution, and three counts of wire fraud. On November 14, 2013, the Court sentenced Movant to 120 months imprisonment, to be followed by a five-year term of supervised release. Movant's motion to dismiss his direct appeal was granted before a ruling was issued.
As stated above, Movant filed the instant § 2255 Motion on November 10, 2014
(§ 2255 Motion, P. 5; Memorandum in Support of § 2255 Motion, PP. 3-61).
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, . . ." 28 U.S.C. § 2255(a). Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, "can be raised on collateral review only if the alleged error constituted a `fundamental defect which inherently results in a complete miscarriage of justice.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (citations omitted).
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "`[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8
As stated above, in Ground 1 of his § 2255 Motion Movant asserts the Government's attorneys engaged in prosecutorial misconduct, by failing to disclose evidence material to Movant's defense. In order to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963), Movant must show that "(1) the evidence was favorable to the defendant, (2) the evidence was material to guilt, and (3) the government suppressed evidence." United States v. Sigillito, 759 F.3d 913, 929 (8
Movant specifies several individuals with allegedly exculpatory information, and the Court will address each in turn.
As support for his claim that co-conspirator Sharon Nekol Province gave exculpatory evidence to the Government, Movant provides an affidavit from his daughter, Susan E. Woods, in which she attests in relevant part as follows:
(Movant's Exh. 12).
By way of response, the Government asserts it has no record of Ms. Province ever making such statements to government attorneys. (Government's Response, P. 14). Instead, the Government notes that Ms. Province met with government attorneys on May 27, 2011, and June 22, 2011, and the memoranda of those interviews do not reflect the statements contained in Ms. Woods' affidavit. (Id.; see also Government's Exh. 1).
Upon consideration the Court finds that with this claim, Movant fails to establish the third element of his Brady claim. In other words the hearsay testimony
Movant next claims the Government withheld exculpatory materials relating to Mr. Tony Lumpkin, former Chief Operating Officer of Lincoln Memorial Life Insurance Company. As support for this assertion Movant provides a declaration from Mr. Lumpkin, in which he attests in relevant part as follows:
(Movant's Exh. 10B).
In response, the Government again notes that it turned over all memoranda of interview involving Mr. Lumpkin to Movant's attorney prior to trial. (See Government's Response, P. 8; Government's Exh. A, ¶ 7). The Government continues to assert that Mr. Lumpkin's memoranda of interview do not reflect his current position that Movant did not knowingly participate in the fraud. Further, and perhaps more importantly, the Government notes that the statements in Mr. Lumpkin's declaration directly contradict the testimony he provided at Movant's trial. For example, Mr. Lumpkin testified that Movant was the designated investment advisor for the Missouri trusts at issue, and that Movant was responsible for directing the money held in trusts. (See Cause No. 4:09CR509 JCH, ECF No. 745, PP. 101-103). Mr. Lumpkin continued to detail Movant's role in requesting fraudulent policy loans, and in communicating to regulators about his decisions, as investment advisor, to take those loans. (Id., PP. 106-117). He further testified that he became concerned over time about the amount or volume of policy loans, and about what the trusts actually held, and that he discussed those concerns with Movant.
Upon consideration of the foregoing, the Court finds that with his claim regarding Tony Lumpkin, Movant fails to establish two elements of his Brady violation claim. First, as with the alleged information regarding Ms. Province, Movant fails to establish that the Government suppressed evidence relating to Mr. Lumpkin. In other words, the Court's review of the memoranda of interview regarding Mr. Lumpkin reveals he did not express doubt or concern regarding Movant's role in the conspiracy and fraud. Furthermore, Movant fails to establish that the evidence at issue was "material"; in other words, the Court does not find a reasonable probability that, had the evidence contained in Mr. Lumpkin's affidavit been disclosed, the result at trial would have been different. To the contrary, the jury found Movant guilty, despite the fact that his attorney elicited at trial that Mr. Lumpkin never once accused Movant of fraud during his ten or eleven interviews with federal agents, and further that he personally trusted Movant enough to invest with him and to recommend his financial services to a friend. (Id., PP. 147-48, 157-58). This portion of Movant's § 2255 Motion will therefore be denied.
Movant next claims the Government withheld exculpatory materials relating to Ms. Darci Greco, Mr. Lumpkin's former assistant at National Prearranged Services ("NPS") and later Memorial Service Life Insurance Company. As support for this assertion Movant provides a declaration from Ms. Greco
(Movant's Exh. 11).
Upon consideration the Court finds that with his claim regarding Darci Greco, Movant again fails to establish two elements of his Brady violation claim. First, as with the alleged information regarding Ms. Province and Mr. Lumpkin, Movant fails to establish that the Government suppressed evidence relating to Ms. Greco. In other words, the Court's review of the memoranda of interview regarding Ms. Greco reveals she did not express doubt or concern regarding Movant's role in the conspiracy and fraud; rather, she barely mentioned Movant at all in her interviews. Furthermore, Movant fails to establish that the evidence at issue was "material"; in other words, the Court does not find a reasonable probability that, had the evidence contained in Ms. Greco's declaration been disclosed, the result at trial would have been different. To the contrary, the jury found Movant guilty, despite the fact that Ms. Greco testified on direct examination that Movant was a friend of hers, and on cross-examination that she never dealt directly with Movant, that Movant had nothing to do with the changing of policies or whiting out of terms therein, and that Ms. Greco believed her own actions at the time were lawful. (Id., PP. 23, 78-79, 81-83). This portion of Movant's § 2255 Motion will therefore be denied.
Movant finally claims the Government withheld exculpatory materials relating to Ms. Katherine Scannell, former general counsel to National Heritage Enterprises.
(Movant's Exh. 5).
Upon consideration the Court finds that with his claim regarding Katherine Scannell, Movant again fails to establish two elements of his Brady violation claim. First, Movant fails to establish that the Government suppressed evidence relating to Ms. Scannell; rather, the memoranda of interview regarding Ms. Scannell, which were provided to Movant's counsel, are consistent with her affidavit in that they contain only sparse mentions of Movant, and they confirm Ms. Scannell did not usually deal with Movant directly. Furthermore, Movant fails to establish that the evidence at issue was "material"; in other words, the Court does not find a reasonable probability that, had the evidence contained in Ms. Scannell's affidavit regarding the fact that she did not personally interact with Movant been disclosed, the result at trial would have been different.
As stated above, in Ground 2 of his § 2255 Motion Movant asserts he received ineffective assistance of counsel at trial. In order to prevail on a claim of ineffective assistance of counsel, Movant must show that his attorney's performance was "deficient," and that the deficient performance was "prejudicial." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. To overcome this presumption, Movant must prove that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
Even if Movant satisfies the performance component of the analysis, he is not entitled to relief unless he can prove sufficient prejudice. Id. at 691. Movant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Movant specifies numerous instances of allegedly ineffective assistance of trial counsel, and the Court will address the claims in turn.
For his first claim of ineffective assistance of counsel, Movant alleges his attorney failed to prepare for trial by reviewing the discovery provided by the Government, including memoranda of interview for various witnesses. Movant continues to assert that because of this lack of preparation, his attorney was unable adequately to cross examine the witnesses when the Government presented them at trial.
Upon consideration the Court finds that with this claim, Movant fails to demonstrate deficient performance on the part of his attorney. Specifically, the Court notes that with its response the Government provides an affidavit from attorney Hogan, in which he attests that he met with Movant more than thirty times during the course of his representation, spending a total of hundreds of hours on the case. (Hogan Affidavit, ¶ 5). With respect to discovery, Mr. Hogan asserts that he considered the discovery in Movant's case to have been the "most forthcoming" of any federal case he had defended. (Id., ¶ 6). He continues to assert that he reviewed the voluminous discovery provided by the Government, and attended several meetings during which the Government explained the significance of those documents it considered "hot", or most relevant to the claims and defenses in the case. (Id., ¶¶ 4, 6). Mr. Hogan maintains he personally reviewed all reports of interview that he received
For his second claim of ineffective assistance of counsel Movant alleges his attorney failed to call any defense witnesses, other than Movant. As support for this alleged deficiency, Movant provides an affidavit from his former business partner, Charles F. Bates, III, in which Mr. Bates claims to have witnessed an incident in late 2001 or early 2002, when an employee of NPS entered the offices of Wulf, Bates & Murphy, Inc. ("WBM"), and attempted to remove a large amount of WBM stationery from under the printer. (Movant's Exh. 7, ¶ 4). Mr. Bates continues to assert that Movant stopped the woman from taking the stationery, and further called Sharon Nekol Province to inform her that WBM would not continue writing funeral home letters for NPS, and to request that she return Movant's signature stamp. (Id., ¶¶ 6-10). Mr. Bates maintains that although Ms. Province did in fact return a signature stamp, it was later learned that NPS retained and continued to utilize another David R. Wulf signature stamp. (Id., ¶¶ 11-14).
Mr. Hogan addresses Movant's claim regarding the failure to call Charles and Kelly Bates as trial witnesses in his affidavit, as follows:
(Hogan Aff., ¶¶ 20-21).
Upon consideration the Court finds that with this claim, Movant fails to establish either prong of the Strickland test. With respect to performance, the Court finds that Mr. Hogan's decision not to call Mr. or Mrs. Bates as witnesses at trial was the product of sound trial strategy on his part. See Emery v. United States, 2011 WL 5553776, at 5 (E.D. Mo. Nov. 15, 2011) (internal quotation marks and citations omitted) ("We have consistently held that a reasoned decision not to call a witness is a virtually unchallengeable decision of trial strategy, in part because there is considerable risk inherent in calling any witness because if the witness does not hold up well on cross-examination, the jurors might draw unfavorable inferences."); see also Strickland, 466 U.S. at 691 ("Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. . . . In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's . . . . litigation decisions."). With respect to prejudice, the Court does not find a reasonable probability that, but for counsel's failure to call the two witnesses, the result of the proceeding would have been different. Instead, the Court finds the limited value of the statements in Mr. and Mrs. Bates' affidavits would not have canceled out the testimony they presumably would have provided in conformance with their earlier interviews, much less any other evidence the Government brought forth at trial. This portion of Movant's § 2255 Motion will therefore be denied.
Movant next alleges his attorney was ineffective for failing to elicit certain testimony from Movant during his direct testimony at trial. Specifically, Movant complains that his attorney (1) did not ask him to testify regarding the fact that the letters used to convict him of mail and bank fraud contained forged signatures; (2) did not utilize Movant's testimony to establish that the letter used to demonstrate that Movant directed the bank trustees to allow NPS to hold life insurance policies was authored not by him, but by Herb Morisse and Rich Markow, then President and Vice-President of Allegiant Trust Company; and (3) did not ask whether Movant had knowledge of allegedly unlawful activities going on in states other than Missouri.
The Government addresses Movant's claims in turn. First, the Government points out that Movant's attorney did question him with respect to the forged signatures, and Movant's request that NPS stop sending letters to funeral homes with his signature in 2001. (See Government's Response, P. 23; Cause No. 4:09CR509 JCH, ECF No. 747, PP. 44-47). Under these circumstances, the Court finds Movant's attorney's performance in this regard was not constitutionally deficient. With respect to the authorship of the November 5, 1999, letter, in which as investment advisor for the trust accounts Movant delegated certain investment direction powers to NPS (despite the fact that he was supposed to be independent from NPS), the Government points out that although Movant claims not to have authored the letter, he never claims not to have signed it. (Government's Response, PP. 22-23). Under these circumstances the Court need not consider whether Movant's attorney's performance was deficient, because it finds no reasonable probability that the result of his trial would have been different had counsel raised the point.
Finally, with respect to whether Movant had knowledge of allegedly unlawful activities going on in states other than Missouri, the Government notes as follows: First, because of the conspiracy charged in Count 1 of the second superseding indictment, Movant would be held accountable for the acts of his co-conspirators, regardless of what direct knowledge he might have had. (Government's Response, P. 24).
Movant next asserts his trial counsel was ineffective for failing to present an expert willing to testify it was neither Movant's responsibility nor within his authority as investment advisor to absolve the trustees from their duty to keep the life insurance policies used to fund the Missouri trusts within their custody and under their control.
(Hogan Aff., ¶¶ 22-24).
Upon consideration the Court finds that with this claim, Movant fails to satisfy either prong of the Strickland test. With respect to performance, the Court again finds that Mr. Hogan's decision not to call an expert witness to testify on Movant's behalf at trial was the product of sound trial strategy on his part. See Emery, 2011 WL 5553776, at *5 (internal quotation marks and citations omitted) ("We have consistently held that a reasoned decision not to call a witness is a virtually unchallengeable decision of trial strategy, in part because there is considerable risk inherent in calling any witness because if the witness does not hold up well on cross-examination, the jurors might draw unfavorable inferences."); see also Strickland, 466 U.S. at 691 ("Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. . . . In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's . . . . litigation decisions."). Furthermore, with respect to prejudice, the Court finds that regardless of whether Movant had the authority as investment advisor to absolve the trustees from their duties, and/or whether said trustees also violated Missouri statutes, the jury still would have seen ample evidence that Movant signed the letter at issue, and thus participated in the alleged fraud. Under these circumstances Movant fails to establish a reasonable probability that, had counsel designated an expert witness, the result of his proceeding would have been different. This portion of Movant's § 2255 Motion will therefore be denied.
Movant next claims his trial attorney failed adequately to cross examine Mr. Richard Markow, one-time Vice-President of Allegiant Trust Company and President of Bremen Bank. Specifically, Movant complains that when Mr. Markow testified he did not remember talking to Movant about the November 5, 1999, letter, Mr. Hogan did not follow up with questions regarding the letter's originators and/or authors.
Once again the Court finds that with this claim, Movant fails to establish either prong of the Strickland test. With respect to deficient performance, Mr. Hogan stated in his affidavit as follows:
(Hogan Aff., ¶¶ 25-26). The Court finds this decision did not fall outside the wide range of performance sanctioned by Strickland. Further, with respect to prejudice, as noted above although Movant claims not to have authored the November 5, 1999, letter, he never claims not to have signed it. Under these circumstances the Court finds no reasonable probability that the result of his trial would have been different had counsel raised the point with Mr. Markow during cross examination. This portion of Movant's § 2255 Motion will therefore be denied.
Movant finally asserts his trial counsel was ineffective for failing adequately to cross examine Ms. Angela Hall. Specifically, Movant claims he was never copied on wire instruction faxes sent by NPS (despite the fact that the computer generated cover sheets show he was "cc'd" on the missives), and so his attorney was ineffective for failing to question Ms. Hall about her motives for testifying otherwise.
Upon consideration the Court finds that with this claim, Movant fails to demonstrate the requisite prejudice. In other words, even if Mr. Hogan had questioned Ms. Hall further regarding Movant's alleged receipt of faxes concerning wire transfer requests, there is no reasonable probability the result of Movant's proceeding would have been different because at least two other witnesses, Ms. Shari Gray and Ms. Sandi Wallis, testified as to similar procedures. (See Cause No. 4:09CR509 JCH, ECF No. 741, PP. 227-28; ECF No. 742, PP. 6-7). This portion of Movant's § 2255 Motion will therefore be denied.
Accordingly,
