Brass v. USA

Filing 34

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Please see attached Ruling & Order for details. The Court declines to issue a certificate of appealability. Signed by Judge Robert N. Chatigny on 9/29/2017. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBIN BRUHJELL BRASS,

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Petitioner,
V.
UNITED STATES,
Respondent.

CASE No. 3:14-cv-1312(RNC)

RULING AND ORDER
Petitioner Robin Bruhjell Brass, a federal inmate, brings
this action under 28 U.S.C. § 2255 seeking to vacate her
conviction and sentence.

She claims that she has been deprived

of her rights to due process, effective assistance of counsel and
freedom from cruel and unusual punishment under the Fifth, Sixth
and Eighth Amendments.

The Government contends that the claims

should be dismissed without a hearing because they are without
merit, were rejected on appeal, or have been waived.

I agree and

therefore deny the petition.
I. Background
In 2012, petitioner pleaded guilty to mail fraud in
violation of 18 U.S.C. § 1341.
3:11-cr-224(RNC).

See United States v. Brass, No.

She admitted to taking money from victims,

promising to invest it, and instead using it to pay her personal
expenses and make “lulling payments” to other victims.

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The

Government’s case against her included evidence that she induced
vulnerable victims to entrust her with their savings by
befriending them and convincing them she had a record of
producing better results than other investment firms.

She

claimed to use sophisticated, proprietary strategies and employ
traders around the world.

She told her victims her investment

fund was insured against loss.

None of this was true.

To keep

the scheme going, she provided victims with fabricated account
statements showing their investments had grown.

When state

regulators began an investigation, she tried to stop victims from
complaining by threatening to declare bankruptcy if anyone spoke
up.

After she was indicted, her appointed counsel negotiated a

plea agreement with the Government.

The agreement stipulated to

a loss amount of more than $1 million and stated that petitioner
understood the Government intended to seek enhancements at
sentencing.
Prior to and during the sentencing hearing, petitioner
maintained that she did not intend to operate a Ponzi scheme.
She claimed that she had simply made bad personnel decisions; at
one point she even suggested that her victims would be wise to
invest with her again in the future.

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Several victims testified

to the devastating impact of petitioner’s fraudulent conduct: she
took one couple’s entire life savings and an elderly parent’s
trust account, and she left another couple in a dire financial
position after taking the entirety of an insurance settlement
they needed to pay medical bills.

After enhancements for abuse

of trust, vulnerable victims and obstruction, and a reduction for
acceptance of responsibility, the advisory guideline range
suggested a sentence of imprisonment of 63 to 78 months.
Assessing the factors relevant to a sentencing determination
under 18 U.S.C. § 3553(a), I thought a sentence within that range
would be insufficient to reflect the aggravated nature of
petitioner’s criminal conduct, the nature and extent of the
clearly foreseeable harm she had caused the numerous victims, or
the need to protect the public against the risk she would commit
similar financial crimes in the future.

Ultimately, I sentenced

her to 96 months’ imprisonment.
On appeal, petitioner argued that her sentence was
procedurally defective because she did not receive advance notice
that an upward departure was contemplated.

She also argued that

the sentence was unreasonable because it punished her twice for
the same conduct.

The Court of Appeals rejected these arguments

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and affirmed the sentence.

See United States v. Brass, 527 Fed.

Appx. 70, 71-73 (2d Cir. 2013).
II. Legal Standard
To obtain relief under § 2255, a petitioner must show that
her “sentence was imposed in violation of the Constitution or
laws of the United States.”

28 U.S.C. § 2255.

A claim is

cognizable under § 2255 if it involves a “fundamental defect
which inherently results in a complete miscarriage of justice.”
Davis v. Hill, 417 U.S. 333, 346 (1974) (quoting Hill v. United
States, 368 U.S. 424, 428 (1962)).
A hearing is not required when allegations are “insufficient
in law, undisputed, immaterial, vague, conclusory, palpably false
or patently frivolous.”

United States v. Seiser, 112 F.3d 507

(2d Cir. 1996) (citing United States v. Malcolm, 432 F.2d 809,
812 (2d Cir. 1970)).

To avoid summary dismissal, a motion under

§ 2255 “must contain assertions of fact that a petitioner is in a
position to establish by competent evidence.”
Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987).
III. Discussion
A. Ineffective Assistance of Counsel

4

United States v.

As her principal ground for relief, petitioner claims that,
for various reasons, she received ineffective assistance of
counsel in violation of the Sixth Amendment.
To obtain relief on an ineffective assistance of counsel
claim, petitioner must demonstrate that (1) her counsel's
performance fell below an objective standard of reasonableness
and (2) she suffered prejudice as a result of her counsel's
deficient performance.
694 (1984).

Strickland v. Washington, 466 U.S. 668,

To show prejudice, she “must show that there is a

reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id.
Petitioner first claims that her counsel failed to properly
investigate and introduce evidence of her legitimate trading
activity.

Had evidence of this type been provided, she argues,

the Court would not have formed the impression that she was a
predator who stole money from people close to her.

Instead, the

Court would have seen her as a legitimate investor who made a
series of mistakes under unfortunate circumstances.
is unavailing.

This claim

Even assuming petitioner’s counsel was

constitutionally ineffective because he did not investigate or
introduce evidence of legitimate trading activity (I make no such

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finding), petitioner cannot show prejudice as required by the
second prong of Strickland.
Petitioner’s counsel argued prior to and during the
sentencing hearing that she was a legitimate trader who merely
made some mistakes, but he chose not to highlight evidence of
legitimate trading activity at the sentencing hearing.1

The

Government’s submissions prior to the hearing disclosed and
discussed the same trading account statements petitioner now asks
the Court to consider.

The account statements show trading

activity involving a few thousand dollars.2

Had petitioner’s

counsel proffered and highlighted these account statements, the
sentence would have been no different.
An above-Guidelines sentence was necessary in this case
because of the scale of the fraud, the brazen, conscienceshocking nature of the criminal conduct, and its devastating
1

Petitioner points to a portion of the sentencing colloquy where the Court
asked defense counsel whether there was any evidence of “[a]n actual
investment made on behalf of an investor for the purpose of earning a return.”
Sent. Tr., 37:22-38:1. Defense counsel responded, “Nothing in the record, Your
Honor, no.” Id. With the support of defense counsel’s affidavit, the
Government persuasively argues that counsel’s decision to refrain from
discussing evidence of petitioner’s trading activity was strategic because he
did not want to draw attention to additional money petitioner had solicited
from other investors. As discussed in the text, the Court was apprised of
this evidence, and this portion of the sentencing colloquy was not material to
the sentence imposed. Because petitioner cannot show prejudice, it is
unnecessary to consider whether her counsel’s performance was constitutionally
deficient.
2
Petitioner presents evidence that she had one trading account with
approximately $200,000 in 2010. The Government has provided credible evidence,
and petitioner has not disputed, that the funds in this account were not
provided by the victims in this case.

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impact on the victims.

The account statements do not detract

from the unusually serious nature of the offense conduct and the
need for an above-Guidelines sentence in order to impose just
punishment and provide adequate specific deterrence.

Though

petitioner denies that she has a propensity to prey on vulnerable
victims, and she received credit for acceptance of
responsibility, she has not shown true remorse for her crimes and
the harm done to the victims.

At the sentencing hearing, her

claim that she simply made bad personnel decisions and her
suggestion that her victims would be well-advised to invest with
her again showed that she was likely to re-offend, underscoring
the need for an above-Guidelines sentence in order to adequately
deter and incapacitate her.

Given these factors, petitioner

cannot show that, but for her counsel’s failure to provide and
argue evidence of legitimate trading activity, the sentence would
have been different.
Petitioner claims her counsel was ineffective because he
failed to challenge the Government’s seizure of evidence from her
basement.

To the extent this claim is predicated on the theory

that a motion to suppress should have been filed and litigated
prior to negotiating the guilty plea, petitioner waived the claim

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when she pleaded guilty.3

To the extent the claim is not

barred, it fails on the prejudice prong of Strickland.
Petitioner does not identify the evidence seized from her
basement and thus fails to show that, had a suppression motion
been filed, there is a reasonable probability the outcome would
have been different.

In fact, the Government presented a host of

evidence that could not have been collected from her basement:
records collected by Connecticut banking regulators; victim
depositions and testimony; documents obtained from victims,
including documents petitioner fabricated; emails petitioner sent
to victims; and excerpts of petitioner’s depositions.
Petitioner claims that her counsel was ineffective in
failing to challenge the loss amount used to calculate the
guideline range.
million.

Petitioner stipulated to a loss exceeding $1

Despite petitioner’s lengthy argument about why the

calculation was incorrect, it is not clear on what basis her
counsel could have made a challenge when she agreed to that loss
amount at the time.

In fact, her counsel did challenge the loss

amount in an objection to the presentence investigation report
but later withdrew the objection in light of the stipulation.

In

any event, the loss amount did not dictate the sentence and there
3

As discussed in the text, petitioner challenges the validity of the plea in
a separate claim, but that claim lacks an adequate basis.

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is no reasonable probability the outcome would have been
different if a lesser amount had been used to calculate the
range.
Petitioner also claims her defense counsel rendered
ineffective assistance in connection with the guilty plea, such
that she did not knowingly and intelligently waive her right to a
jury trial, because she was unaware of the risk her sentence
could be enhanced.

This claim is belied by the plain language of

the plea agreement, which notified petitioner that the
agreement’s stipulations were not binding on the Court and the
Government intended to seek sentencing enhancements.

Petitioner

attested to understanding the plea agreement at the time of the
plea proceeding.

“[S]worn testimony given during a plea colloquy

‘carries such a strong presumption of accuracy that a district
court does not, absent a substantial reason to find otherwise,
abuse its discretion in discrediting later self-serving and
contradictory testimony as to whether a plea was knowingly and
intelligently made.’”

United States v. Rivernider, 828 F.3d 91,

105 (2d Cir. 2016) (quoting United States v. Juncal, 245 F.3d
166, 171 (2001)).

Petitioner has not provided a substantial

reason to support a finding that she did not understand the risk
of a higher sentence.
B. Other Claims
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Petitioner also brings due process and Eighth Amendment
claims.

A § 2255 motion does not provide an opportunity to

relitigate issues that were raised and considered on direct
appeal.
1997).

United States v. Perez, 129 F.3d 255, 260 (2d Cir.
If a defendant fails to raise a claim on direct appeal,

she is barred from a collateral challenge on that basis unless
she “establishes (1) cause for the procedural default and ensuing
prejudice or (2) actual innocence.”

United States v. Thorn, 659

F.3d 227, 231 (2d Cir. 2011).
Petitioner claims that “improper procedures” during the
sentencing violated due process and her “harsh sentence”
constitutes cruel and unusual punishment under the Eighth
Amendment.

These claims are barred because they were either

raised and rejected on direct appeal or could have been raised
but were not.

See Brass, 527 Fed. App’x at 71-73.

Finally, petitioner claims that the Government failed to turn
over exculpatory evidence in violation of due process under Brady
v. Maryland, 373 U.S. 83 (1963).

She did not bring this claim on

direct appeal and offers no explanation for her failure to do so.
She has not shown that she failed to bring the claim on appeal
because, for example, she only recently became aware of the
Government’s alleged failure to comply with Brady in this case.
See Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2648,
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91 L. Ed. 2d 397 (1986) (cause for procedural default on appeal
ordinarily requires showing of some external impediment
preventing counsel from constructing or raising claim).

She has

not identified any exculpatory evidence or shown that any such
evidence was withheld by the Government.

See Morgan v. Salamack,

735 F.2d 354, 358 (2d Cir. 1984) (Government is not required to
disclose evidence of which it is not aware).

Thus, this claim is

also barred.
C. Certificate of Appealability
In a proceeding under § 2255, a certificate of appealability
may issue “only if the applicant has made a substantial showing
of a denial of a constitutional right.”
2253(c)(2).

See 28 U.S.C. §

Under this standard, a certificate of appealability

will not issue unless jurists of reason could debate whether the
petition should have been resolved in a different manner or the
issues are adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Petitioner has not

made this showing, so a certificate of appealability will not
issue.
IV.

Conclusion
Accordingly, petitioner's § 2255 motion is hereby denied.

The Court declines to issue a certificate of appealability.
Clerk will enter judgment dismissing the action.
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The

So ordered this 29th day of September 2017.
/s/RNC
Robert N. Chatigny
United States District Judge

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