Pentz v. United States of America
Filing
15
OPINION AND ORDER denying 1 Motion to vacate, set aside, or correct sentence (2255) as to all claims. The Clerk shall enter judgment accordingly, file a copy of the judgment in the corresponding criminal case (Case No. 2:02-cr-78-FTM-29DNF), and close the file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 7/29/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JACK PENTZ,
Petitioner,
vs.
Case No.
Case No.
2:09-cv-687-FtM-29DNF
2:02-cr-78-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on petitioner Jack Pentz’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#236)1 filed on October 16, 2009.
The United States filed its
Response in Opposition to Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence, Pursuant to 28 U.S.C. § 2255 on January 19,
2010.
(Cv. Doc. #10.)
April 9, 2010.
Petitioner thereafter filed a Reply on
(Cv. Doc. #13.)
For the reasons set forth below,
the motion is denied.
I.
Jack Pentz (petitioner or Pentz) and his partner Laurie Smith
(Smith) formed Waterford Mortgage Corporation (WMC) in 1991 to
broker residential mortgage loans for several lenders. WMC entered
1
The Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of civil habeas case as “Cv.
Doc.”, and will refer to the underlying criminal case as “Cr. Doc.”
into a series of lending agreements with investor Ronald L. Brown
(Brown) in which Brown agreed to provide WMC with a line of credit,
which eventually reached $15 million.
Smith died in 1998, and
Pentz exercised an option to purchase WMC from her estate and
formed
a
new
corporation,
First
Mortgage
of
Naples,
d/b/a/
Waterford Mortgage Bank (First Mortgage).
Civil litigation in state court filed by Brown preceded the
federal indictment in this case.
A state court-appointed Receiver
took control of WMC and First Mortgage. In due course the Receiver
cooperated with law enforcement authorities in the investigation of
petitioner.
A Superceding Indictment alleged that beginning on or about
January 1996, Pentz and others devised a scheme to defraud Brown by
obtaining, under false pretenses, monies that were intended by
Brown to fund and to be secured by residential mortgages. The
evidence at trial established that WMC defrauded Brown by assuring
him that the line of credit he provided was soundly secured by
specific real estate mortgages held by WMC, when in fact such
mortgages had already been resold to other unrelated financial
institutions, and by providing Brown with fictitious mortgages.
The government also alleged that, unknown to Brown, Pentz lost
approximately $2.3 million in overseas investments in a foreign
bond trading investment, and that between 1998 and 2000 Pentz used
WMC
funds
for
vacations,
plastic
-2-
surgery,
jewelry,
clothing,
appliances, animal care, dentistry and other personal expenditures.
The Court adopts the more complete summary of the facts as set
forth in the government’s Memorandum.
(Cv. Doc. #10, pp. 3-12.)
Following a jury trial, Pentz was found guilty of two counts
of wire fraud in violation of 18 U.S.C. § 1343 (Counts One and
Three);
two
counts
of
engaging
in
monetary
transactions
in
criminally derived property in violation of 18 U.S.C. § 1957
(Counts Four and Six); and two counts of money laundering in
violation of 18 U.S.C. § 1956 (Counts Seven and Eight).
found not guilty of Counts Two and Five.
Pentz was
Pentz was sentenced to 60
months imprisonment on counts one and three; 120 months on counts
four and six; and 151 months on counts seven and eight, all to run
concurrently, and received three years of supervised release and
was ordered to pay $5,285,779.00 in restitution.
Pentz filed a direct appeal.
The Court of Appeals affirmed
his convictions, but vacated and remanded for re-sentencing in
light of an error involving an enhancement under the Sentencing
Guidelines.
2006).
United States v. Pentz, 202 F. App’x 411 (11th Cir.
Petitioner’s petition for a writ of certiorari to the
United States Supreme Court was denied.
Pentz v. United States,
549 U.S. 1357 (2007).
At re-sentencing, petitioner was sentenced to a total of 120
months, which was affirmed on appeal.
United States v. Pentz, 315
F. App’x 101 (11th Cir. 2008). Petitioner’s petition for a writ of
-3-
certiorari to the United States Supreme Court was denied. Pentz v.
United States, 129 S. Ct. 426 (2008).
Pentz then filed this timely
§ 2255 motion.
II.
While
petitioner
identifies
nine
specific
issues,
his
pleadings must be read liberally because of his pro se status.
Additional issue are embedded in his motion.
The Court construes
the motion, memorandum, and reply to set forth the claims discussed
below.
(1) Unlawful Search and Seizure by State Court-Appointed Receiver:
Petitioner asserts that in April, 2000, Brown initiated civil
litigation against First Mortgage and Pentz in state court and
caused a Receiver (Jerry McHale) to be appointed to take control of
WMC. Petitioner states that on April 21, 2000, the Receiver seized
the offices of First Mortgage as well as books and records on the
premises, and began to investigate and search the records. A state
court order on June 5, 2000, appointed McHale as receiver over
First Mortgage.
Evidence seized or observed by the Receiver was
eventually provided to federal agents and ultimately introduced as
evidence in petitioner’s trial.
Petitioner asserts that the
Receiver intentionally and in bad faith overstepped his authority
by seizing and examining documents beyond the scope of the order(s)
of
appointment,
thereby
unlawfully
seizing
the
documents.
Petitioner alleges that his Fourth Amendment rights were violated
-4-
by the search and seizure of the Receiver, and were further
violated by the introduction of the unlawfully obtained evidence at
trial.
(Cv. Doc. #1, pp. 16-18, 21-23; Doc. #13, pp. 3-6.)2
The Fourth Amendment protects the “right of people to be
secure
in
their
persons,
houses,
papers
and
effects
against
unreasonable searches and seizures...” Fourth Amendment rights are
implicated only if conduct of the government infringed upon an
expectation
of
privacy
that
society
is
prepared
reasonable.
O'Connor v. Ortega, 480 U.S. 709, 715 (1987); United
States v. Jacobsen, 466 U.S. 109, 113 (1984).
Amendment
is
only
applicable
to
actions
to
consider
Since the Fourth
undertaken
by
the
government, it does not apply to searches or seizures conducted by
private individuals.
United States v. Jacobsen, 466 U.S. at 113-
14; United States v. Ford, 765 F.2d 1088, 1089-90 (11th Cir. 1985).
If a private individual acts as an instrument or agent of the
government, however, the Fourth Amendment is fully applicable.
Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 614 (1989); Ford,
765 F. 2d at 1090.
Thus, the rule is that “[a] search by a private
person does not implicate the Fourth Amendment unless he acts as an
instrument or agent of the government.”
United States v. Steiger,
318 F.3d 1039, 1045 (11th Cir. 2003). To determine whether a
private person should be considered an agent of the government, a
2
The page numbers cited are the page numbers as recorded on
the upper right hand corner of the docketed documents, which are
not necessarily the page numbers on the bottom of the pages.
-5-
court looks primarily to two factors: “(1) whether the government
knew of and acquiesced in the intrusive conduct, and (2) whether
the private actor’s purpose was to assist law enforcement efforts
rather than to further his own ends.”
Steiger, 318 F.3d at 1045.
Additionally, “a police search following an unsolicited private
search does not constitute a search under the Fourth Amendment as
long as the search is confined to the same scope as the initial
private search.” United States v. Garcia-Bercovich, 582 F.3d 1234,
1238 (11th Cir. 2009)(citing United States v. Bomengo, 580 F.2d
173, 175 (5th Cir. 1978)).
In this case, the Receiver was appointed by the state court
for a private party and was not acting as a government agent when
he searched and seized the items at issue.
The Receiver was
pursuing his own goals and objectives in connection with the
private civil litigation in making the seizure of documents and the
searches of the records on the business premises.
Subsequently
cooperating with the government subpoenas and providing documents
to government agents does not render the Receiver’s conduct to have
been that of an agent of the federal government.
The Receiver was
acting as a private person appointed by a state court in a private
civil
proceeding,
not
a
government
agent
in
a
criminal
investigation, when he engaged in the seizures and searches at
issue in this case.
A law enforcement officer can lawfully
request, without obtaining a search warrant, a receiver to turn
-6-
over property the receiver has obtained during the course of his
receivership.
United States v. Gray, 751 F.2d 733, 737 (5th Cir.
1985); United States v. Setser, 568 F.3d 482, 490-91 (5th Cir.
2009). Accordingly, neither the seizure and search by the Receiver
nor the delivery of the items to the government agents, nor the
introduction of the items as evidence at trial, violated the Fourth
Amendment.
(2) Ineffective Assistance of Counsel Regarding Receiver Conduct:
Petitioner argues that both the evidence and testimony based
upon these Fourth Amendment violations should have been the subject
of objections by his attorney at trial, implying a claim of
ineffective assistance of trial counsel for failing to do so. (Cv.
Doc. #1, pp. 21-22.)
In his Reply, petitioner specifically argues
that he received ineffective assistance of counsel because his
attorney failed to file a motion to suppress.
(Cv. Doc. #13, p.
3.)
The Supreme Court established a two-part test for determining
whether a convicted person is entitled to habeas relief on the
ground that his or her counsel rendered ineffective assistance: (1)
whether counsel’s representation was deficient, i.e., “fell below
an
objective
standard
of
reasonableness”
“under
prevailing
professional norms”; and (2) whether the deficient performance
prejudiced the defendant, i.e., there was a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
-7-
proceeding would have been different.
466 U.S. 668, 688, 694 (1984).
Strickland v. Washington,
“To obtain relief where an
ineffective assistance claim is based on trial counsel’s failure to
file a timely motion to suppress, a petitioner must prove (1) that
counsel’s
representation
fell
below
an
objective
standard
of
reasonableness, (2) that the Fourth Amendment claim is meritorious,
and (3) that there is a reasonable probability that the verdict
would
have
Zakrzewski
been
v.
different
McDonough,
absent
455
the
F.3d
excludable
1254,
1260
evidence.”
(11th
Cir.
2006)(citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
Petitioner’s argument concerning the unlawful seizure and
search by the Receiver is without merit, as discussed above.
An
attorney does not provide ineffective assistance of counsel by
failing to pursue or preserve a meritless issue.
Ladd v. Jones,
864 F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield,
960 F.2d 970, 974 (11th Cir. 1992).
Accordingly, petitioner fails
to establish either of the Strickland prongs in this case.
(3) Brady, Giglio, Rule 16 Violations:
Petitioner asserts that the United States failed to comply
with its obligations under Fed. R. Crim. P. 16, Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972).
Petitioner asserts that the defense was not provided with
a copy of all the information provided by the Receiver and obtained
from petitioner’s computers, despite the computer files being
-8-
entered into evidence (Cv. Doc. #1, p. 18); that the government
violated Giglio by not disclosing interviews with Nicole Young (Cv.
Doc. #1, pp. 30-31); and that Exhibit 72 was never provided to his
attorney and was admitted over objection at trial.
pp. 32-37; Doc. #13, p. 13.)
(Cv. Doc. #1,
Petitioner also argues that the
government had the duty to preserve the evidence seized by the
Receiver,
which
was
not
done.
(Cv.
Doc.
#1,
pp.
34-35.)
Petitioner also asserts a Brady violation in connection with a
series of e-mail communications, business records, and computer
records (Cv. Doc. #1, pp. 36-37; Doc. #13, pp. 11-15) and that
there were specific instances of misconduct by McDowell that should
have been disclosed because they constituted specific acts of
collateral impeachment.
(Cv. Doc. #1, pp. 44.)
“[T]he suppression by the prosecution of evidence favorable to
an accused . . . violates due process where the evidence is
material either to guilt or to punishment.”
Hammond v. Hall, 586
F.3d 1289, 1305 (11th Cir. 2009)(quoting Brady v. Maryland, 373
U.S. 83, 87 (1963)). “A Brady violation has three components: ‘[1]
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] that
evidence must have been suppressed by the State, either willfully
or inadvertently; and [3] prejudice must have ensued.’”
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
Id.
“A
Giglio claim involves an aggravated type of Brady violation in
-9-
which the suppression of evidence enabled the prosecutor to put
before the jury what he knew was false or misleading testimony, [
] or allowed the prosecutor himself to make a false statement to
the jury [ ].
The testimony or statement elicited or made must
have been a false one.”
omitted.)
Hammond, 586 F.3d at 1306-07 (citations
A Rule 16 violation “is reversible error only when it
violates a defendant’s substantial rights.”
United States v.
Camargo-Vergara, 57 F.3d 993, 998 (11th Cir. 1995).
“Substantial
prejudice exists when a defendant is unduly surprised and lacks an
adequate opportunity to prepare a defense, or if the mistake
substantially influences the jury.”
Id. at 998-99.
Having reviewed the record, the Court finds that petitioner
has not established violations of Brady, Giglio, or Rule 16, and
that he has not shown prejudice to his substantial rights.
After
consideration of each of these items of evidence in the context of
the case as presented to the jury, the Court finds no reasonable
probability that the result would have been different with their
disclosure.
(4) Admission of Exhibit 72, Failure to Grant Continuance:
Petitioner argues that the district court erred in admitting
Government’s
continuance.
Exhibit
72
over
objection
and
(Cv. Doc. #1, pp. 33, 35-36.)
not
granting
a
The admission of
evidence is committed to the sound discretion of the trial court.
-10-
United States v. DuBose, 598 F.3d 726, 731-32 (11th Cir. 2010).
Similarly, whether to grant a continuance is also within the
discretion of the trial court.
United States v. Valladares, 544
F.3d 1257, 1261 (11th Cir. 2008).
that
either
decision
was
an
Petitioner has not established
abuse
of
discretion
under
the
circumstances set forth in the record.
(5) Ineffective Assistance of Counsel:
Petitioner argues that he received ineffective assistance of
counsel when his trial attorney failed to retain a computer expert
(Cv. Doc. #1, p. 37), and his appellate attorney failed to raise
the issue of the admission of Exhibit 72 and the issue of failure
to preserve evidence on direct appeal.
(Cv. Doc. #1, pp. 33, 35.)
Petitioner has failed to demonstrate that failure to obtain a
computer
expert
resulted
in
constituted
prejudice.
either
Therefore,
deficient
performance
or
petitioner
has
to
failed
establish either prong of Strickland.
The same deficient performance and prejudice standards apply
to appellate counsel.
Smith v. Robbins, 528 U.S. 259, 285-86
(2000); Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000).
If the
Court finds there has been deficient performance, it must examine
the merits of the claim omitted on appeal.
If the omitted claim
would have had a reasonable probability of success on appeal, then
the deficient performance resulted in prejudice.
Joiner v. United
States, 103 F.3d 961, 963 (11th Cir. 1997). Non-meritorious claims
-11-
which are not raised on direct appeal do not constitute ineffective
assistance of counsel.
Diaz v. Sec’y for the Dep’t of Corr., 402
F.3d 1136, 1144-45 (11th Cir. 2005).
As discussed above, the
decision to admit evidence is a matter within the discretion of the
trial court, and there was no reasonable probability of success on
the merits for this issue or the issue of the government’s duty to
preserve evidence obtained by the Receiver.
Thus, petitioner has
not established ineffective assistance of either his trial counsel
or his appellate attorney.
(6) Failure to Obtain Search Warrant:
Petitioner argues that the government agents failed to obtain
a search warrant to search his personal property, computer files,
and
computers
which
were
improperly
seized
by
the
Receiver.
Petitioner argues that even if the Receiver had the authority to
seize the corporate property, the Receiver had no authority to
search
and
seizure
of
petitioner’s
personal
property.
Additionally, petitioner asserts the government could not search
for and obtain deleted computer files given by the Receiver without
a search warrant.
(Cv. Doc. #1, pp. 25-28; Doc. #13, pp. 6-9.)
These issues are without merit.
As discussed above, the
Receiver was not a government agent when he seized and searched the
various computers and documents, and therefore his conduct did not
itself violate the Fourth Amendment and is not attributed to the
federal agents.
Having properly received the items, the agents
-12-
could inspect them without a search warrant.
Additionally, as the
government points out (Cv. Doc. #10, pp. 14-16), the agent did
obtain a search warrant for the laptop computer.
(7)
Intrusion Into Attorney-Client Privilege:
Petitioner asserts that the government intruded into his
attorney-client relationship when it viewed materials contained on
a laptop computer seized in 2002 by the Receiver. Petitioner filed
a motion to dismiss based upon this alleged intrusion into the
attorney-client relationship, which was denied by the district
court.
(Cv. Doc. #1, pp. 18-19.)
Petitioner also alleges that a second intrusion into his
attorney-client
privilege
retained
a
hired
occurred
certified
public
when
a
civil
accountant
petitioner’s concern over his tax situation.
attorney
(CPA)
he
regarding
Petitioner asserts
that the CPA was retained primarily for the purpose of filing
personal tax returns and sorting out corporate tax issues as they
related to his personal tax returns. Petitioner provided documents
and information to the civil attorney, who in turn provided them to
the CPA. Petitioner asserts a continuing attorney-client privilege
in the information.
Petitioner states that the CPA provided
various documents to government agents without a search warrant and
the government introduced them at trial as Exhibits 40A and B.
Conversations between the civil attorney and the CPA were also
admitted at trial. Petitioner argues that this violated his Fourth
-13-
Amendment rights, his attorney-client privilege, his due process
rights, and his right to effective assistance of counsel.
(Id. at
19-20, 28-29; Cv. Doc. #13, pp. 9-11.)
The alleged interferences with counsel were the subject of an
evidentiary hearing before the magistrate judge, a Report and
Recommendation (Cr. Doc. #66), and an Order (Cr. Doc. #72).
The
Court finds that none of petitioner’s rights were violated by the
events relating to this issue.
Additionally, under federal law, there exists no confidential
accountant-client privilege, Couch v. United States, 409 U.S. 322,
335 (1973) or accountant work-product privilege, United States v.
Arthur Young & Co., 465 U.S. 805, 817 (1984)3.
In In re Grand Jury
Investigation (Schroeder), 842 F.2d 1223 (11th Cir. 1987), the
Court discussed whether statements made to an accountant/attorney
who prepared a client’s tax return were protected by the attorneyclient privilege.
The Court stated in pertinent part:
The
attorney-client
privilege
attaches
only
to
communications made in confidence to an attorney by that
attorney’s client for the purposes of securing legal
advice or assistance. Courts generally have held that
the preparation of tax returns does not constitute legal
advice within the scope of that privilege. We agree with
the majority rule. Admittedly, the preparation of a tax
return requires some knowledge of the law, and the manner
in which a tax return is prepared can be viewed as an
implicit interpretation of that law. Nevertheless, the
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
-14-
preparation of a tax return should not be viewed as legal
advice.
If a professional accountant prepares a tax
return, his client cannot invoke any privilege, for there
is no accountant-client privilege under federal law.
Couch v. United States, 409 U.S. 322, 335, 93 S. Ct. 611,
619, 34 L. Ed. 2d 548 (1973). A taxpayer should not be
able to invoke a privilege simply because he hires an
attorney to prepare his tax returns. Thus, any
information
[the
client]
transmitted
to
[the
attorney/accountant] for the purpose of preparing his tax
returns, including the sources of his income, is not
privileged information.
In re Grand Jury, 842 F.2d at 1224-25 (citations and quotations
omitted.). Additionally, disclosure of information in a tax return
waives the privilege not only to the disclosed data but also as to
the details underlying that information.
United States v. Davis,
636 F.2d 1028, 1043 n.18 (5th Cir. 1981); see also In re Grand
Jury, 842 F.2d at 1225-26.
This is not to say that no legal advice
on tax matters can be privileged. “Obviously a lawyer who prepares
a tax return can provide legal advice on tax matters unrelated to
the preparation of that return. Such advice falls within the scope
of the attorney-client privilege.
Also the lawyer might provide
legal advice on non-tax matters.
Such advice falls within the
scope of the attorney-client privilege as well.” In re Grand Jury,
842 F.2d at 1225.
The testimony in this case was that Exhibits 40A and 40B were
documents used to prepare petitioner’s individual tax returns.
There was no violation of the attorney-client privilege, or any of
the rights asserted by petitioner.
-15-
(8) Ineffective Assistance of Counsel:
Petitioner also asserts, in a single sentence, that the
failure of his attorney to raise the issues regarding the Fourth
Amendment and interference with his attorney-client privilege on
direct appeal constituted ineffective assistance of counsel.
Doc.
#1,
p.
29.)
As
discussed
above,
the
same
(Cv.
deficient
performance and prejudice standards apply to appellate counsel.
Petitioner has failed to satisfy either prong of Strickland as to
these issues.
(9) Compulsory Process:
Petitioner alleges that his right to compulsory process was
violated when government agents intimidated a witness to prevent
her from testifying at trial.
Petitioner asserts “on information
and belief” that Nicole Young was threatened with felony tax
charges if she testified at trial, and that she would have provided
exculpatory
testimony
and
impeachment
testimony
government witnesses Cathy Fraser and Tonya Martin.
against
the
(Cv. Doc. #1,
pp. 29-31; Cv. Doc. #13, p. 11.)
The records of this court establish that Nicole Young pled
guilty to a one count Indictment charging the felony offense of
filing
of
a
false
individual
income
tax
return.
Young
was
represented by retained counsel, and a Plea Agreement attested to
the voluntariness of the guilty plea, her agreement to testify, and
the lack of any exculpatory or impeachment testimony.
-16-
Case No.
2:03-cr-48-FTM-29.
Petitioner has failed to establish any basis
for his claim.
(10) Government’s Failure to Correct False Testimony:
Petitioner
asserts
that
government
witnesses
gave
false
testimony which the prosecutor knew but failed to correct, and
improperly attempted to bolster the witness’s credibility, in
violation of his due process rights.
Specifically, petitioner
asserts that government witness Eugene McDowell (McDowell) twice
testified
falsely
on
cross
examination
concerning
threats
by
petitioner and a search warrant executed on McDowell’s residence,
in
conflict
with
earlier
statements
to
the
prosecutor.
Additionally, petitioner argues that the prosecutor improperly
bolstered McDowell’s testimony by asking a series of questions
concerning McDowell’s anti-terrorism activities on re-direct. (Cv.
Doc. #1, pp. 38-42; Cv. Doc. #13, pp. 15-17.)
asserts
that
prosecutorial
misconduct
Petitioner further
permeated
atmosphere of the trial, denying him a fair trial.
the
entire
(Cv. Doc. #1,
p. 42; Cv. Doc. #13, p. 13). Additionally, petitioner asserts that
his attorney should have objected to the questions concerning
McDowell’s anti-terrorism activities on re-direct.
p. 40.)
(Cv. Doc. #1,
The Court finds no merit to any of these claims.
“To establish prosecutorial misconduct for the use of false
testimony,” petitioner “must show the prosecutor knowingly used
perjured testimony, or failed to correct what he subsequently
-17-
learned was false testimony, and that the falsehood was material.”
United
States
v.
McNair,
2010)(citations omitted).
605
F.3d
1152,
1208
(11th
Cir.
The Court does not reach the element of
materiality in this case, as the record does not support a finding
of false testimony.
Petitioner asserts that McDowell testified falsely when he
stated
that
petitioner’s
alleged
threats
towards
him
were
“‘documented’ with the FBI”.
(Cv. Doc. #1, p. 37; Cv. Doc. #13, p.
15)(quoting
p.
Cr.
Doc.
#175,
649).
In
support,
petitioner
contends that McDowell’s testimony was in direct conflict with the
prosecutor’s earlier statement that the “FBI had no record of
McDowell ‘as either defendant, witness or victim.’”
(Cv. Doc. #1,
p. 37; Cv. Doc. #13, p. 15)(quoting Cr. Doc. #175, p. 563).
By setting these statements in apparent opposition petitioner
misstates the record not once, but twice.
First, McDowell did not
affirm that his report of petitioner’s threats was documented with
the FBI, but only expressed his opinion that “[i]t should be
documented.”
(Cr.
Doc.
#175,
p.
649.)
Because
McDowell’s
testimony did not purport to affirm the truth, neither is it
susceptible to petitioner’s allegation of falsehood.
Second, the
prosecutor’s statement that there was no record of McDowell as “a
defendant,
witness
or
a
victim”
(id.,
p.
563),
was
made
in
reference to the records of the U.S. Attorney’s Office, and not to
those of the FBI.
With respect to the FBI, on the contrary, the
-18-
prosecutor thought that the FBI indicated that they could “neither
affirm nor deny” Mr. McDowell’s explanation of events.
(Id.)
Consequently, even if McDowell had affirmed that his report was
documented with the FBI, nothing in the record suggests that
government counsel had reason to believe that such testimony was
false.
Additionally,
petitioner
asserts
that
McDowell
testified
falsely that “the search warrant executed by the FBI on his
[McDowell’s] home was initiated by a complaint he (McDowell) filed
with the FBI.” (Cr. Doc. #1, p. 37)(citation omitted). Petitioner
asserts
that
McDowell’s
testimony
is
in
conflict
with
the
government’s representation that the “search warrant was based on
a claim made by another victim of McDowell, not on a complaint
filed by McDowell.”
(Id.)(citation omitted).
Petitioner has once again colored the record to construct an
apparent incongruity.
The record establishes that McDowell never
denied that a complaint filed by one of his victims formed part of
the basis for the FBI’s search warrant.
On the contrary, McDowell
acknowledged the investor’s complaint.
(Cr. Doc. #175, p. 625)(“I
suppose there was a complaint that was filed.”;(“I didn’t know
whether it was just totally that [the investor’s complaint].”).
Likewise,
the
government
never
denied
that
McDowell
filed
a
complaint with the FBI, or that a complaint by McDowell was a basis
for the execution of the search warrant.
-19-
On the contrary, when
discussing the grounds for the search warrant, the prosecutor
implied the existence of an additional basis for its execution.
(Id., p. 561)(“The F.B.I. executed the search warrant . . . as a
result of basically the loss of . . . money based on a claim made
by another victim.”)(emphasis added).
In sum, McDowell merely stated that he had filed a complaint
with the FBI, while the government stated that an investor had done
the same. The two propositions are not mutually exclusive, and the
execution of the search warrant need not have been based entirely
on one complaint or the other. Accordingly, as the record does not
support a finding that McDowell provided false testimony, the Court
finds that there was no prosecutorial misconduct in this regard.
Petitioner
also
asserts
that
the
prosecutor
improperly
bolstered McDowell’s testimony by confirming the existence of
evidence not known to the jury.
Specifically, petitioner asserts
that the prosecutor improperly vouched for McDowell’s credibility
when he acknowledged his awareness of circumstances that prevented
McDowell from
testifying
activities with the FBI.
“‘Attempts
to
further
regarding
his anti-terrorist
(Cv. Doc. #1, p. 38-40.)
bolster
a
witness
by
credibility are normally improper and error.’”
vouching
for
his
United States v.
Sims, 719 F.2d 375, 377 (11th Cir. 1983)(quoting United States v.
Ellis, 547 F.2d 863, 869 (5th Cir. 1977)).
“The test for improper
vouching is whether the jury could reasonably believe that the
-20-
prosecutor
was
credibility.”
indicating
a
personal
belief
in
Id. at 377 (citation omitted).
the
witness’
A jury might
reasonably believe the prosecutor’s indications “if the prosecutor
. . . implicitly vouches for the witness’ veracity by indicating
that information not presented to the jury supports the testimony.”
United
States
v.
Eyster,
948
F.2d
1196,
1206
(11th
Cir.
1991)(citation omitted).
At no point in the anti-terrorist dialogue did the prosecutor
indicate his personal belief in McDowell’s credibility.
The
prosecutor merely confirmed that he was aware of circumstances
which rendered McDowell “not at liberty” to elaborate further on
his role in the tracing of terrorist funding.
655.)
These
circumstances,
which
involved
(Cr. Doc. #175, p.
McDowell’s
prior
association with federal intelligence agencies, were made known to
the Court before McDowell testified.
(Cr. Doc. #175, pp. 561-71.)
The Court finds that the prosecutor’s acknowledgment of such
circumstances did not support the veracity of McDowell’s testimony,
nor has petitioner made the requisite showing that, but for the
prosecutor’s
remarks,
“the
different.”
Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir.
1991)(quotation omitted).
outcome
.
.
.
would
have
been
Furthermore, contrary to petitioner’s
argument (Cv. Doc. #1, p. 39), the Court finds that the prosecutor
did
not
imply
that
petitioner
-21-
was
a
terrorist
simply
by
questioning McDowell about his anti-terrorist activity with the
FBI.
Additionally,
petitioner
asserts
that
the
prosecutor’s
improper remarks made during the opening and closing statements
(Cv. Doc. #1, p. 41), in conjunction with the failure to correct
false testimony
and
improper
vouching,
rendered
prosecutorial
misconduct so pervasive as to deprive petitioner of a fair trial.
“This
court
will
only
reverse
a
conviction
on
the
basis
of
prosecutorial misconduct if that misconduct is so pronounced and
persistent as to permeate the entire atmosphere of the trial.”
United
States
v.
Chirinos,
112
F.3d
1089,
1098
1997)(internal quotations and citations omitted).
Circuit
Court
of
Appeals
found
that
the
(11th
Cir.
The Eleventh
impropriety
of
the
prosecutor’s remarks during the opening and closing statements did
not so permeate the trial as to warrant any relief.
App’x at 415.
Pentz, 202 F.
Because the Court finds petitioner’s additional
allegations of prosecutorial misconduct are without merit, the
grounds for relief remain inadequate, and no relief is warranted.
As
for
petitioner’s
claim
of
ineffective
assistance
of
counsel, petitioner “cannot show prejudice in his defense counsel’s
failure to object to prosecutorial misconduct that, itself, does
not warrant reversal.” Land v. Allen, 573 F.3d 1211, 1220-21 (11th
Cir. 2009).
Accordingly, because the Court finds that petitioner
“is not entitled to relief based on prosecutorial misconduct, we
-22-
likewise find that he is not entitled to relief on his claim that
defense counsel’s failure to object to the prosecutor’s statements
amounted to constitutionally ineffective assistance of counsel.”
Id. at 1221.
(11) Restriction on Cross Examination of Government Witness:
Petitioner
argues
that
while
the
district
court
ordered
disclosure of information about McDowell, his attorney was led to
understand by the government that the defense could not raise any
issue concerning a felony conviction that McDowell stated was a
ruse in his role as a National Security Agency (NSA) operative.
Defense counsel therefore made no mention of the felony conviction
or
other
disclosures
that
would
have
affected
credibility.
Additionally, petitioner argues that on re-direct examination, the
prosecutor sought to mislead the jury regarding McDowell’s true
relationship with the FBI. Petitioner argues that the directive of
the prosecutor not to use information relating to the felony
conviction is tantamount to non-disclosure by the government, and
that there were other specific instances of misconduct by McDowell
that should have been presented as specific collateral impeachment.
(Cv. Doc. #1, pp. 42-44; Cv. Doc. #13, pp. 18-19.)
The
record
does
not
support
that
there
was
unwarranted
restriction of cross examination by the Court or misconduct by the
government.
Petitioner has provided no evidence to substantiate
his allegation that the government directed defense counsel not to
-23-
mention McDowell’s felony conviction.
On the contrary, the record
establishes that the Court approved of the disclosure of evidence
regarding McDowell’s arrest, prosecution, and felony conviction.
(Cr. Doc. #175, p. 569.)
Additionally, petitioner has not shown
prejudice resulting from his attorney’s failure to raise the issue
of McDowell’s prior conviction.
The jury was already presented
with reason to doubt McDowell’s credibility, as it was made aware
that McDowell was currently under investigation by the FBI, and
that he was testifying pursuant to an immunity agreement. (Id., p.
625-26.)
Similarly,
at
redirect
examination,
the
prosecutor
said
nothing to mislead the jury when questioning McDowell about the
kind of work he did with the FBI.
(Cf. Cv. Doc. #1, p. 43.)
Petitioner further claims that the government violated Giglio by
not disclosing evidence of a civil suit previously filed against
McDowell for fraud.
(Id., p. 44.)
Petitioner has not established
that the government was aware of this civil suit, much less that it
suppressed
evidence,
directly
or
otherwise.
Additionally,
petitioner asserts that the government possessed and failed to
disclose
other
“documents,”
possibly
contradicted McDowell’s testimony.
from
the
FBI,
that
Petitioner’s speculation as to
these conjectured “documents,” based on unsupported “information
and belief,” is frivolous and merits no discussion.
-24-
Finally, petitioner asserts that the government failed to
disclose a newspaper article regarding McDowell’s felony conviction
by allegedly informing defense that the article could not be copied
without causing damage to the original.
(Cv. Doc. #13, p. 19.)
The record reflects that the government disclosed the newspaper
article to defense counsel.
p. 24.)
(Cr. Doc. #175, p. 570; Cv. Doc. #10,
Defense counsel was satisfied with the disclosure and
indicated that he was ready to proceed with the trial.
#175, p. 570.)
(Cr. Doc.
Accordingly, the Court finds that petitioner’s
claims are without merit.
(12) Unconstitutional Hearsay Admitted:
Petitioner asserts that there was “unconstitutional admission
of hearsay statements” at his trial under the guise of the coconspirator
exception
confrontation clause.
to
hearsay,
thereby
(Cv. Doc. #1, p. 44.)
violating
the
Petitioner argues
that testimony of Catherine Frasier that Lauri Smith told her
[Frasier] that the business had to be in her [Smith’s] name because
of petitioner’s credit rating was not within the co-conspirator
exception because it pre-dated the beginning of the alleged scheme.
(Cv. Doc. #1, pp. 45-47; Cv. Doc. #13, p. 20.)
Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.”
Fed. R. Evid. 801(c).
Hearsay statements are “inadmissable unless they fall within one of
-25-
the exceptions enumerated in the Federal Rules of Evidence.”
United States v. Berkman, 2011 U.S. App. LEXIS 14242 (11th Cir.
July 12, 2011)(citing United States v. Gari, 572 F.3d 1352, 1361
n.7 (11th Cir. 2009).
Under the coconspirator exception, “[a] statement is not
hearsay if it is made by a coconspirator of a party during the
course and in furtherance of the conspiracy.”
United States v.
Smith, 350 F. App’x 320, 322-323 (11th Cir. 2009)(citing Fed. R.
Evid. 801(d)(2)(E)).
The “improper admission of co-conspirator
hearsay, like other Confrontation Clause errors, is subject to the
harmless error rule,” United States v. Cross, 928 F.2d 1030, 1052
(11th Cir. 1991), which “precludes conviction reversal based on
‘[a]ny error . . . that does not affect substantial rights.’”
United
States
v.
LaMonda,
384
F.
App’x
944,
945
(11th
Cir.
2010)(quoting Fed. R. Crim. P. 52(a)).
Petitioner claims that Frasier’s testimony was used to prove
the government’s assertion that petitioner “made claims that he had
bad credit in order to convince Smith to allow him to transfer WMBC
to her; while [petitioner] still ran things behind the scenes.”
(Cv. Doc. #1, p. 45.)
Frasier only testified that the “business
had to be in her [Smith’s] name, something about [petitioner’s]
credit but she didn’t go into any detail.”
(Cr. Doc. #173, p. 9.)
Frasier made no mention of whether petitioner had a credit problem,
or whether his credit was good or bad.
-26-
Frasier’s testimony lacks
an
essential
element
of
hearsay,
as
the
mere
mention
of
petitioner’s credit in association with the ownership of the
business, without more, does not support the truth of the matter
asserted by the government.
Nevertheless, assuming, arguendo, that Frasier’s testimony was
inadmissable hearsay, the Court concludes that any error was
harmless
beyond
a
reasonable
doubt,
as
the
alleged
hearsay
testimony did not have a “substantial and injurious effect or
influence in determining the jury's verdict.”
Cargill v. Turpin,
120 F.3d 1366, 1376 (11th Cir. 1997)(quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). The prosecution’s case was strong apart
from the peripheral theory of petitioner’s credit scheme, and the
“minds of an average jury would [not] have found the prosecution’s
case less persuasive if the erroneously admitted evidence had been
excluded.”
United States v. Gari, 572 F.3d 1352, 1363 (11th Cir.
2009)(internal quotations and citations omitted).
After a thorough review of the record, and in light of the
overwhelming evidence against petitioner in this case, the Court
concludes with “fair assurance . . . that the judgment was not
substantially swayed by the [alleged] error.”
States, 328 U.S. 750, 765 (1946).
Kotteakos v. United
Accordingly, the Court need not
decide whether the alleged hearsay was admitted in violation of
petitioner’s confrontation rights or whether it includes evidence
-27-
admissible under a hearsay exception.
See Gari, 572 F.3d at
1362-1363.
(13) Failure to Prove Elements of Money Laundering:
Petitioner asserts that his conviction was unconstitutional
because the government failed to prove all the elements of the
money laundering counts, specifically that he laundered “profits”
as defined in United States v. Santos, 553 U.S. 507 (2008).
(Cv.
Doc. #1, p. 47; Cv. Doc. #13, pp. 21.)
The Eleventh Circuit has been unpersuaded by this argument.
In Santos, a four-justice plurality concluded that, in the context
of a defendant operating an illegal lottery, “proceeds” meant
“profits.”
Id. at 2022–25.
The Eleventh Circuit has stated that
the narrow ruling in Santos, at most, meant “that the gross
receipts of an unlicensed gambling operation were not ‘proceeds'
under section 1956.”
United States v. Jennings, 599 F.3d 1241,
1252 (11th Cir. 2010).
In contexts other than an unlicensed
gambling operation, the Eleventh Circuit has continued to apply the
previous definition of “proceeds” to include “receipts as well as
profits.”
Id.
(14) Ineffective Assistance of Counsel:
Petitioner argues that the failure to preserve and raise the
Santos issue on direct appeal constituted ineffective assistance of
counsel and violated his due process rights. (Cv. Doc. #1, p. 48.)
Since
the
issue
is
without
merit,
-28-
there
was
no
ineffective
assistance of counsel in failing to preserve or raise the issue on
direct appeal.
(15) Cumulative and Spill Over:
Petitioner asserts that the cumulative affect of all the
violations mandates reversal of his convictions.
49.)
(Cv. Doc. #1, p.
The Court finds petitioner has not established any errors,
and certainly no errors which either singly or in combination bring
into question the validity of his convictions.
(16) Ineffective Assistance of Counsel:
Petitioner argues that he received ineffective assistance of
counsel to the extent that trial counsel failed to preserve any and
all of the issues he raises in his § 2255 motion and appellate
counsel failed to raise any and all of these issues on direct
appeal.
(Cv. Doc. #13, p. 1.)
Having discussed the merits of the
issues above, the Court finds no ineffective assistance of counsel
for failing to preserve or raise any of the issues.
None have
merit.
Accordingly, it is now
ORDERED:
1.
Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, and to Correct, Sentence By a Person in Federal Custody (Cv.
Doc. #1) is DENIED as to all claims for the reasons set forth
above.
-29-
2.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas corpus
has no absolute entitlement to appeal a district court’s denial of
his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court
must first issue a certificate of appealability (COA).
Id.
“A
[COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
Id. at §
To make such a showing, petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004)(quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate
to deserve encouragement to proceed further.’”
Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)(quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite
showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2011.
-30-
29th
day of
Copies:
Counsel of record
Jack Pentz
-31-
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