Marvin Jay Caukin v. United States of America

Filing 17

MINUTES (IN CHAMBERS): ORDER DENYING Petitioner Marvin Jay Caukin Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody 28 USC section 2255 1 by Judge John F. Walter: Petitioner Motion is DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. (Made JS-6. Case Terminated.) (jp)

JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.

CV 16-4867-JFW
[CR 14-685-JFW]

Title:

Date: December 21, 2016

Marvin Jay Caukin -v- United States of America

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
Shannon Reilly
Courtroom Deputy

None Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None
PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:
None

ORDER DENYING PETITIONER MARVIN JAY
CAUKIN’S MOTION TO VACATE, SET ASIDE OR
CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY 28 U.S.C. § 2255 [filed 7/1/16; Docket No. 1]

On July 1, 2016, Petitioner Marvin Jay Caukin (“Petitioner”) filed a Motion to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody 28 U.S.C. § 2255 (“Motion”). On July
25, 2016, Respondent United States of America (the “Government”) filed its Opposition. On
October 18, 2016, Petitioner filed a Reply.1 Pursuant to Rule 78 of the Federal Rules of Civil
Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the
papers without oral argument. The matter was, therefore, removed from the Court’s December 19,
2016 hearing calendar and the parties were given advance notice. After considering the moving,
opposing, and reply papers, and the arguments therein, the Court rules as follows:
I.

Factual and Procedural Background
A.

Information

On December 5, 2014, the Government filed a three count Information charging Petitioner
1

On August 10, 2016, the Court granted Petitioner's Motion to Extend Time to Respond,
and gave Petitioner until October 3, 2016 to file his Reply. On August 15, 2016, the Court
continued the hearing on Petitioner's Motion from September 12, 2016, to October 17, 2016. On
September 12, 2016, the Court granted Petitioner's Motion to Extend Time to Respond, and gave
Petitioner until December 12, 2016 to file his Reply. The Court also continued the hearing on
Petitioner's Motion from October 17, 2016, to December 19, 2016.
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with embezzling over $10 million from his employer, Gulfstream Aerospace Corp. (“Gulfstream”).
Count One charged Conspiracy to Commit Mail Fraud, in violation of 18 U.S.C. § 1349. Count
Two charged Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A. Count three charged
Conspiracy to Launder Money, in violation of 18 U.S.C. § 1956(h). The Information also contained
three criminal forfeiture allegations based on 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c), 21
U.S.C. § 853, 18 U.S.C. § 982(a)(2)(b), and 18 U.S.C. § 982(a)(1).
B.

Plea Agreement

On January 14, 2015, the parties signed a plea agreement. In the plea agreement,
Petitioner agreed to plead guilty to Count One of the Information, and the Government agreed to
dismiss the remaining two counts. The plea agreement advised Petitioner that “the statutory
maximum sentence that the Court can impose for a violation of Title 18, United States Code,
Sections 1349, 1341, is: 20 years imprisonment; a three-year period of supervised release; a fine
of $250,000, or twice the gross gain or gross loss resulting from the offense, whichever is greatest;
and a mandatory special assessment of $100.” Plea Agreement [Docket No. 29], ¶ 6.
In the factual basis section of the plea agreement, Petitioner admitted the following:
Beginning in or before 2001, and continuing through at least May of 2013, there was
an agreement between more than two persons to commit mail fraud. Defendant
became a member of the conspiracy knowing of its object and intending to help
accomplish it. In furtherance of the conspiracy, defendant and his co-conspirators
created fictitious business invoices and submitted them to Gulfstream Aerospace
Corp., where defendant would approve them in his capacity as the Director of
Finance and Accounting, causing checks to be mailed to pay them. Defendant and
his co-conspirators would receive the checks, typically at a rented commercial
mailbox, deposit them, and use the proceeds to pay for the personal expenses of
both defendant and his co-conspirators. Through this conspiracy, defendant and his
co-conspirators defrauded Gulfstream Aerospace out of millions of dollars.
Defendant used at least $2.4 million of the proceeds of the fraud to pay for his
residences in Calabasas, California and Toluca Lake, California.
Plea Agreement [Docket No. 29], ¶ 11.
The plea agreement provided that Petitioner and the Government had “no agreement as to
the appropriate sentence or the applicable Sentencing Guidelines factors except that the parties
agree that the appropriate loss enhancement is either 18 levels (§ 2B1.1(b)(1)(J), loss over $2.5
million) or 20 levels (§ 2B1.1(b)(1)(K), loss over $7 million). Both parties reserve the right to seek
any sentence within the statutory maximum, and to argue for any criminal history score and
category, base offense level, adjustment, departures, variances, and any other specific offense
characteristics.” Petitioner and the Government also reserved “the right to argue for a sentence
outside the sentencing range established by the Sentencing Guidelines based on the factors set
forth in 18 U.S.C. § 3553(a)(1), (a)(2), (a)(3), (a)(6), and (a)(7).
In addition, Petitioner waived his right to appeal, with the exception of an appeal based on a
claim that his guilty plea was involuntary. Plea Agreement [Docket No. 29] at ¶ 16. Petitioner also
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waived his right to bring a post-conviction collateral attack on the conviction or sentence except a
post-conviction collateral attack based on a claim of ineffective assistance of counsel. Id., ¶ 2(h).
Petitioner signed the plea agreement in two places, including under the following
certification:
I have read this agreement in its entirety. I have had enough time to review
and consider this agreement, and I have carefully and thoroughly discussed every
part of it with my attorney. I understand the terms of this agreement, and I voluntarily
agree to those terms. I have discussed the evidence with my attorney, and my
attorney has advised me of my rights, of possible pretrial motions that might be filed,
of possible defenses that might be asserted either prior to or at trial, of the
sentencing factors set forth in 18 U.S.C. § 3553(a), of relevant Sentencing Guidelines
provisions, and of the consequences of entering into this agreement. No promises,
inducements, or representations of any kind have been made to me other than those
contained in this agreement. No one has threatened or forced me in any way to
enter into this agreement. I am satisfied with the representation of my attorney in this
matter, and I am pleading guilty because I am guilty of the charges and wish to take
advantage of the promises set forth in this agreement, and not for any other reason.
C.

Change of Plea Hearing

On January 16, 2015, Petitioner pled guilty to Count One of the Information pursuant to the
written plea agreement. Petitioner was placed under oath and advised that if he answered any of
the Court’s questions falsely, that his answers could be used against him in another prosecution for
perjury or for the making of a false statement. The Court conducted a thorough and extensive Rule
11 plea colloquy.
Petitioner confirmed that he had read the plea agreement, had discussed all of its terms
with counsel, had signed the plea agreement, had understood the plea agreement and all of its
terms, and did not need additional time to discuss any terms of the plea agreement with counsel.
During the hearing, Petitioner admitted to the factual basis for his plea consistent with his plea
agreement and stated that he was pleading guilty because he did the acts charged in Count One of
the Information and that he was pleading guilty, because he was, in fact, guilty.
During the plea colloquy, Petitioner also confirmed that he was satisfied with the advice and
representation provided by his counsel and that counsel had reviewed the facts of the case and the
discovery provided by the Government with Petitioner. Petitioner’s counsel also confirmed that he
had reviewed the facts of the case and discovery provided by the Government and that he had
reviewed the facts of the case and the discovery with Petitioner. The Court concluded that there
was a factual basis for the plea and that Petitioner was entering his guilty plea freely and
voluntarily with a full understanding of the charge against him and the consequences of his plea.
Accordingly, the Court accepted and entered Petitioner’s plea of guilty to Count One of the
Information.

D.

Sentencing Filings and Sentencing Hearing

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On February 23, 2015, the United States Probation Office (“USPO”) filed its
recommendation letter and Presentence Investigation Report (“PSR”). Docket Nos. 34 and 35.
The USPO calculated an advisory guideline range of 135 to 168 months and recommended a term
of imprisonment of 144 months followed by 3 years of supervised release. The USPO also
recommended that Petitioner pay $11,512,00 in restitution. On May 11, 2015, Petitioner filed
objections to the PSR and a sentencing memorandum. Because of a dispute as to the amount of
loss for guideline calculations and restitution, the Court filed an Order on May 14, 2015 [Docket No.
41] ordering the parties to meet and confer and resolve the issue and to file a Joint Statement
setting forth the agreed total amount of loss. On June 1, 2015 the parties filed a Joint Statement
Regarding Loss, advising the Court that the parties agreed that the appropriate guideline loss
amount and restitution amount was $10,257,414.12. In addition, on June 1, 2015, the Government
filed its sentencing memorandum and recommended a sentence of 150 months. On June 17,
2015, the USPO filed an addendum to the PSR and a revised recommendation letter and
recommended that Petitioner pay the agreed upon $10,257,414.12 in restitution.
On June 22, 2015, the Court conducted an extensive sentencing hearing, and sentenced
Petitioner to a term of imprisonment of 135 months, followed by three years of supervised release
and ordered to pay restitution of $10,257,414.12. Petitioner did not file a notice of appeal.
E.

Section 2255 Motion

On July 1, 2016, Petitioner filed his Motion, claiming ineffective assistance of counsel by his
attorneys, Mark Werksman and Mark Hathaway. Specifically, Petitioner argues that: (1) his
counsel failed to properly respond or object to an improper enhancement for Aggravating Role; (2)
Petitioner never agreed to the stipulated $10,257,414.12 loss calculation; (3) counsel failed to
dispute allegations of previous misconduct; (4) his counsel failed to challenge or object to the loss
calculation; and (5) his counsel were unaware of pending changes to the sentencing guidelines
that were to take effect in November 2015.
II.

Legal Standard

Ineffective assistance of counsel claims are evaluated under the two-prong test set forth by
the Supreme Court in Strickland v. Washington, 466 U.S. 687 (1984).2 To prevail on a claim of
ineffective assistance of counsel under Strickland, a party must demonstrate both (1) that

2

To the extent Petitioner argues that the Strickland test is inapplicable and that prejudice
should be presumed under United States v. Cronic, 466 U.S. 648 (1984), the Court disagrees. In
Cronic, the Supreme Court carved out certain narrow exceptions to the general Strickland test,
holding that in limited situations the defendant need not show prejudice as required under
Strickland. “Specifically, prejudice may be presumed when the defendant is denied counsel at a
critical stage of his trial, counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing, or the likelihood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial.” Young v. Runnels, 435 F.3d 1038, 1042-43 (9th Cir. 2006) (internal
citations and quotations omitted). The Court concludes that none of these limited exceptions are
applicable.
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counsel’s actions fell outside the range of professionally competent assistance, and (2) that
petitioner suffered prejudice as a result. Id. at 687-90; see also United States v. Leonti, 326 F.3d
1111, 1120-21 (9th Cir. 2003); Anderson v. Calderon, 232 F.3d 1053, 1084 (9th Cir. 2000); United
States v. Allen, 157 F.3d 661, 665 (9th Cir. 1998). The first prong of the test requires a “showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Demonstrating prejudice under the second prong of the test requires more than a showing
that the error in question might have had some conceivable effect on the outcome of the
proceeding. Instead, there must be “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.; see also Roe v.
Flores-Ortega, 528 U.S. 470, 482 (2000) (“We normally apply a strong presumption of reliability to
judicial proceedings and require a defendant to overcome that presumption by showing how
specific errors of counsel undermined the reliability of the finding of guilt. Thus, in cases involving
mere ‘attorney error,’ we require the defendant to demonstrate that the errors actually had an
adverse effect on the defense.”) (citations and internal quotation marks omitted, alteration
removed).
Judicial scrutiny of counsel’s performance is highly deferential, and courts will not – as a
general rule – second-guess the strategic choices made by counsel. See Strickland, 466 U.S. at
689 (“A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.”).
III.

Discussion

Upon review of the record and the briefs and evidence submitted by the parties, the Court
concludes that Petitioner has failed to demonstrate that his counsel's performance fell outside the
range of professionally competent assistance or that Petitioner suffered prejudice as a result.
Indeed, Petitioner’s counsel successfully argued for a low-end sentence despite the Government’s
objections and its request for a significantly higher sentence of 150 months.
A.

Petitioner Has Failed to Demonstrate Deficient Performance or Prejudice
During Sentencing
1.

Petitioner Has Failed to Demonstrate that Counsel Did Not Properly
Respond or Object to an Improper Enhancement for Aggravating Role in
Petitioner’s PSR.

Petitioner’s first ground for his Motion is vaguely based on his complaint that the PSR’s and
Court’s finding regarding the “size of the criminal conspiracy, the number of participants, and the
role of” Petitioner did not match his own contentions despite Petitioner “consistently and repeatedly
inform[ing] his counsel” of “inaccuracies” and that his counsel’s failure to correct these inaccuracies
led to improper sentencing enhancements. However, Petitioner offers no support for his argument
beyond arbitrarily dividing the invoices his “companies” submitted to Gulfstream into fraudulent and
non-fraudulent categories, and, thus, it is impossible to determine if there were any inaccuracies in
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the PSR’s and the Court’s findings or if those inaccuracies led to improper sentencing
enhancements. Accordingly, Petitioner has failed carry his burden of showing either deficient
performance by his counsel or prejudice.
2.

Petitioner Has Failed to Demonstrate that the Agreed-Upon Loss
Calculation Was Incorrect.

Petitioner’s second and fourth grounds for his Motion relate to his contention that the actual
loss to Gulfstream was less than the agreed upon $10,257,414.12, and that he never agreed to the
amount of loss. Although the Government and probation officer initially calculated the actual loss
to Gulfstream at $11,512,000, Petitioner repeatedly emailed his counsel that the actual loss was
less. After the Court ordered the parties to agree on restitution, the parties stipulated to a loss of
$10,257,414.12, which was based on the out-of-pocket loss calculated by Gulfstream’s insurer,
Zurich Insurance, but excluded $250,000 in accounting fees that Gulfstream actually incurred and
paid in order to correct its ledgers.
Petitioner now argues that the agreed upon amount of the loss was incorrect and that he
never agreed to that amount. However, Petitioner never raised this issue at his sentencing. In
addition, even assuming that Petitioner advised his counsel that he would not stipulate to
$10,257,414.12 in loss, he has failed to demonstrate that the agreed upon loss was not accurate.
In this case, the agreed upon amount of loss is $250,000 less than what Gulfstream’s insurer,
Zurich Insurance, paid for the loss sustained by Gulfstream and, thus, is a “reasonable estimate of
the loss.” USSG § 2B1.1, app. N. 3(C). Moreover, Petitioner’s counsel’s strategy of agreeing to a
loss amount rather than disputing the easily provable higher loss was beneficial to Petitioner
because a “defendant who falsely denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with acceptance of responsibility.” USSG
3E1.1, app. n. 1(A); see also Britt v. United States, 2010 WL 3385221, * 3 (W.D. Wash. 2010)
(denying Section 2255 claim based on defense counsel’s stipulation to loss of $466,622 when
there was evidence losses were higher, and noting that “Britt cannot show prejudice because had
counsel raised Mr. Britt’s meritless arguments, Mr. Britt may have lost the 3–level adjustment for
acceptance of responsibility”). Furthermore, the stipulation regarding the loss amount prevented
the Government from seeking an enhancement based on intended rather than actual loss.
Accordingly, Petitioner has failed carry his burden of showing either deficient performance by his
counsel or prejudice.
3.

Petitioner Has Failed to Demonstrate that Counsel Did Not Dispute
Allegations of Previous Misconduct or That He Was Prejudiced by
Counsel’s Alleged Failure.

Petitioner’s third ground for his Motion is based, in part, on various allegations of his
previous misconduct that Petitioner contends his counsel failed to dispute. For example, Petitioner
contends that his 1999 supervised release revocation was misrepresented in the PSR and that his
counsel should have obtained “copies of the 1999 Revocation Hearing Transcript” to correct the
record. Petitioner also contends that an earlier victim of his embezzlement misremembered
certain details regarding that crime, such as whether Petitioner worked for the acquiring or
acquired company. Although it appears that Petitioner’s actual complaint is that the Government
mentioned, and the Court considered, Petitioner’s previous embezzlement at all, the Court must
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consider the “history . . . of the defendant” in fashioning the appropriate sentence. 18 U.S.C. §
3553(a)(1). In addition, despite the earlier embezzlement, the Court sentenced Petitioner to the
low end of the advisory guideline range. Likewise, Petitioner’s counsel’s failure to rebut the
Government’s argument that Petitioner hid the embezzled money that was not accounted for did
not increase Petitioner’s offense level or criminal history category. Accordingly, Petitioner has
failed carry his burden of showing either deficient performance by his counsel or prejudice.3
Petitioner also argues that his counsel should have rebutted the Government’s argument
that he took advantage of those persons in whose names he committed the fraud by explaining
that he was really helping them. In fact, his counsel did advance that argument: “Much of the
money that was misappropriated was used to help other people who were in serious financial
straits.” Petitioner's Sentencing Memorandum [Docket No. 40], 18:5-6. Similarly, Petitioner
contends that his counsel did not argue that his outstanding work performance at Gulfstream
justified a sentencing break, even though Petitioner “informed his counsel many times that he had
been outstanding” at his job there. However, once again, his counsel did advance that argument in
his sentencing memorandum:
Additionally, one should not forget that Mr. Caukin, during his tenure at Gulfstream,
proved to be an invaluable member of the company. Mr. Caukin poured his heart and
soul into Gulfstream and spent months and months of his life travelling for the
company. In truth, Mr. Caukin helped save General Dynamics, Gulfstream's parent
company, millions of dollars in fraud resulting from bad management. Mr. Caukin
helped the company get control of a number of newly made acquisitions and was an
integral part of these companies' turnaround teams. Mr. Caukin was instrumental in
turning many of these subsidiaries and offices around from entities that were
bleeding money to profitable enterprises.
Id., at p. 18:7-15. Accordingly, Petitioner has failed carry his burden of showing either deficient
performance by his counsel or prejudice.
4.

Petitioner Has Failed to Demonstrate that Counsel Failed to Know About
and Consider the Changes in the Sentencing Guidelines or That He Was
Prejudiced by the Alleged Failure.

Petitioner’s fifth ground for his Motion is based on Petitioner’s argument that his counsel
failed to know about changes to the Sentencing Guidelines that were effective November of 2015,
which was five months after Petitioner was sentenced. These changes to the Sentencing
Guidelines were first made public on January 16, 2015, which is two days after Petitioner signed
his plea agreement. Petitioner argues that his counsel should have had him sign an earlier draft of
his plea agreement that stated he had embezzled Gulfstream “out of at least $8.5 million” rather
than the plea agreement he did sign, which referred vaguely to “millions” that had been embezzled.

3

Similarly, Petitioner has failed to carry his burden of showing either deficient performance
by his counsel or prejudice by arguing that counsel advised him not to explain his reasons for
committing the embezzlement, which apparently include paying for a kitchen remodel, buying a $1
million home, and buying a second $2 million home.
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However, Petitioner fails to explain how he was harmed by signing the less specific draft of the
plea agreement. In addition, Petitioner fails to explain how his counsel should have known about
changes to the Sentencing Guidelines that were not made public until after he had signed his plea
agreement, or how those changes, which did not go into effect until after Petitioner had been
sentenced adversely affected him. Accordingly, Petitioner has failed carry his burden of showing
either deficient performance by his counsel or prejudice.
B.

Petitioner is Not Entitled to an Evidentiary Hearing

Pursuant to Section 2255, “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt
hearing . . . and determine the issues and make findings of fact and conclusions of law.” Watts v.
United States, 841 F.2d 275, 277 (9th Cir. 1988) (quoting 28 U.S.C. § 2255). Section 2255 only
requires that the Court carefully consider Petitioner’s claims “including full opportunity for
presentation of the relevant facts.” Id. (citation omitted). Because the record conclusively
demonstrates that Petitioner is not entitled to relief on any of the grounds set forth in his Motion,
the Court finds that an evidentiary hearing would not be of assistance to the Court and therefore is
not required. See, e.g., United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (“The
district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and
records conclusively show that the movant is not entitled to relief.”).
IV.

Conclusion
For all of the foregoing reasons, Petitioner’s Motion is DENIED.4

Because Petitioner has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

4

On December 14, 2016, Petitioner filed a Motion to Delay Hearing, seeking to delay the
hearing on his Motion “for an indeterminate period in order to clarify the action(s) the Government
has taken against Brent Caukin,” Petitioner’s son. Because the issues raised in Petitioner’s Motion
to Delay Hearing are not related to the issues raised by Petitioner in his Motion, Petitioner’s Motion
to Delay Hearing is DENIED.
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