Joel v. United States of America
Filing
9
ORDER denying 1--motion to vacate; denying an evidentiary hearing; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Joel and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/27/2019. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:11-cr-89-T-23TGW
8:16-cv-2358-T-23TGW
WILLIAM O. JOEL
/
ORDER
William O. Joel timely moves (Doc. 1) under 28 U.S.C. § 2255 to vacate his
sentence, and the United States responds (Doc. 7).
Background
Joel and two co-defendants, Maurice Vernon and Elton Lassiter, operated a
profitable mortgage fraud scheme. Joel’s company, Investor’s Outlet, Inc., offered
buyers money to purchase houses. Vernon recruited buyers and located houses.
Lassiter, a mortgage loan processor, prepared fraudulent loan documents.
During a ten-week period, a buyer with an annual income of less than $30,000
purchased ten properties and borrowed $1.8 million. By inflating the properties’
purchase price, Investor’s Outlet received $297,229.65 from the loan proceeds.
Unable to pay the loans, the buyer ultimately filed for bankruptcy protection.
Lassiter pleaded guilty and testified during a two-week jury trial. The jury
found Joel and Vernon guilty of conspiracy, mail fraud, wire fraud, and making false
statements on a loan application. Joel was sentenced to 63 months’ imprisonment
and ordered to pay $953,461 in restitution. The Eleventh Circuit affirmed the
convictions and sentence.
Substantive claims (ground one)
Joel alleges violations of the Sixth Amendment’s Confrontation Clause and
the Fifth Amendment’s Due Process Clause. During trial, FBI Agent Leslie Nelson
testified that Vernon — who declined to testify — reported that Investor’s
Outlet, Inc. produced “double HUDs”:
We talked about how the HUDs, or the settlement statements,
were done in his business in Investors Outlet and [Vernon]
explained to me that the way they did them was they did
double HUDs, is what he called them. And [Vernon] explained
by way of an example that there would be one HUD prepared
with a . . . correct price. There would be a second separate and
independent HUD prepared at a higher price[.]
(Doc. 283 at 204) Also, the United States during opening argument referred to false
invoices and during closing argument referred to “double HUDs.” (E.g., Doc. 280
at 43–44; Doc. 289 at 58–59)
On direct appeal, the Eleventh Circuit rejected Joel’s Confrontation Clause
challenge:
Leslie Nelson, a government witness, did not violate Joel’s
Confrontation Clause rights by recounting Vernon’s statement
that fraudulent settlement statements were made at Investor’s
Outlet, the company that Joel owns. Although the testimony
mentioned his business, independent testimony was necessary
for the jury to connect that statement to Joel’s involvement in
the scheme. Finally, the government did not violate Joel’s
Confrontation Clause rights by referencing false invoices not
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admitted into evidence because the Confrontation Clause only
limits the introduction of testimonial hearsay evidence, and an
attorney’s arguments are not evidence.
United States v. Vernon, 593 F. App’x 883, 887 (11th Cir. 2014).
Because the Eleventh Circuit rejected Joel’s Confrontation Clause challenge
on direct appeal, Joel is procedurally barred from raising the same claim in a motion
to vacate. Stoufflet v. United States, 757 F.3d 1236, 1239, 1242 (11th Cir. 2014).
Similarly, Joel’s Due Process Clause challenge is procedurally defaulted because he
neglected to raise the claim on direct appeal and because he demonstrates neither
cause and prejudice nor actual innocence.1 McKay v. United States, 657 F.3d 1190,
1196 (11th Cir. 2011).
Ineffective assistance
To demonstrate that counsel was constitutionally ineffective, a movant
must show (1) that counsel’s representation fell below an objective standard of
reasonableness and (2) that counsel’s deficient performance prejudiced the movant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]here is no reason for a court
deciding an ineffective assistance claim . . . to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S.
at 697.
Ineffective assistance of counsel could supply “cause,” but Joel possesses no plausible
argument under the Due Process Clause. United States v. Hano, 922 F.3d 1272, 1288–89 (11th Cir.
2019).
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1.
Agent Nelson’s testimony (grounds two and three)
Joel alleges that counsel failed to “properly present the cumulative error”
of Agent Nelson’s testimony and the United States’ references to false documents.
(Doc. 1 at 14) Also, Joel maintains that counsel could have succeeded in severing
Joel and Vernon’s trial by arguing that Investor’s Outlet and Joel possess “an identity
of interest.” (Doc. 1 at 15)
Joel’s trial counsel moved to sever both before the trial and immediately after
Agent Nelson testified that Investor’s Outlet created “double HUDs.” (Doc. 79;
Doc. 283 at 204). In both instances, counsel raised the precise argument that Joel
advances. Counsel asserted in the pre-trial motion to sever that a statement
implicating entities solely owned or controlled by the defendant violates Bruton.
(Doc. 79 at 6) Likewise, counsel argued that Agent Nelson’s testimony violates
Bruton because she “put it towards the company and she knows that our client is the
president of the company.” (Doc. 283 at 206)
During closing argument, the United States briefly mentioned “an invoice”
and “double HUDs” but did not tie the documents to Joel or to Investor’s Outlet.
(Doc. 289 at 44, 58) With no strong basis for an objection, trial counsel reasonably
declined to object and instead chose to address the statements during rebuttal.
(Doc. 289 at 76–78) Zakrzewski v. McDonough, 455 F.3d 1254, 1259 (11th Cir. 2006)
(observing that an objectively reasonable trial lawyer can decline objections to
closing argument “unless the objection is a strong one”).
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Renewing trial counsel’s arguments, appellate counsel argued in the initial
and reply briefs on appeal that Agent Nelson’s statements violated the Confrontation
Clause because “Joel was Investors Outlet. Vernon’s inadmissible confession was
equally attributed to Joel[.]” (Initial Brief of Appellant at 7, 16–20, United States v.
Vernon, No. 12-15480 (11th Cir. Feb. 11, 2014); Reply Brief of Appellant at 1–7,
United States v. Vernon, No. 12-15480 (11th Cir. Aug. 25, 2014)) In addition,
appellate counsel challenged the United States’ allusions to false documents and
argued that those allusions compounded the purported Confrontation Clause
violation.
In sum, both trial and appellate counsel raised the arguments that
Joel maintains should have been raised. Although counsel’s arguments were
ultimately unsuccessful, an adverse ruling does not render counsel’s performance
constitutionally ineffective. Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010);
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).
2.
Jury instructions (ground four)
Joel alleges that the jury instructions “were imprecise” and permitted his
conviction for “deceptive conduct rather than fraudulent conduct.” (Doc. 1 at 16)
Joel maintains that trial counsel should have presented a precise jury instruction and
that appellate counsel should have asserted plain error.
Joel’s cursory claim fails to identify the elements of the jury instructions to
which he objects. An independent review confirms that the jury instructions
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(Doc. 289 at 15–34) closely track the Eleventh Circuit pattern instructions and
correctly state the law. See, e.g., United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.
2007). Absent a more focused challenge, Joel fails to demonstrate that either trial
counsel or appellate counsel was ineffective. LeCroy v. United States, 739 F.3d 1297,
1322 (11th Cir. 2014) (holding that counsel was not ineffective for failing to object to
a jury instruction “because the instruction did not misstate the law”); Winthrop-Redin
v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (noting that a district court need
not hold an evidentiary hearing when the movant’s allegations are “based upon
unsupported generalizations”).
3.
Joel’s testimony (ground five)
Joel alleges that he wanted to testify at trial but counsel “convinced him it was
unnecessary.” (Doc. 1 at 17) Also, Joel contends that counsel should have altered
the trial strategy once it became apparent that Joel’s testimony was necessary to
counter Agent Nelson’s statements about “double HUDs” and the United States’
references to false documents.
Because a criminal defendant possesses a fundamental right to testify, United
States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992), “[c]ounsel must advise the
defendant (1) of his right to testify or not testify; (2) of the strategic implications of
each choice; and (3) that it is ultimately for the defendant himself to decide whether
to testify.” McGriff v. Dep’t of Corrs., 338 F.3d 1231, 1237 (11th Cir. 2003). Counsel
renders deficient performance if, for example, counsel fails to inform the defendant
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of his right to testify or refuses to accept the defendant’s decision to testify. Teague,
953 F.2d at 1534.
During the sentencing hearing, Joel explained that he “was given the
opportunity” to testify but elected not to testify (Doc. 307 at 36–37):
I wanted to share with you my heart. And if I don’t say it now,
when do I get a chance to say it? I wanted to say this to the
jury. I was advised that it wasn’t a great idea. I was given the
opportunity, I was told I had to sign a waiver stating that I’m
going against my counsel’s — and this is not to throw [trial
counsel] under the bus, he fought his heart out, he did the
best job he could do. But even my wife, we had to a make a
decision, and I say, honey, you know, they don’t think I should
testify. She was like, honey, listen to him.
So I got all my counsel, I got my wife, I got everybody telling
me not to testify. But in my heart I knew I should have
testified. I knew I should have shared with the jury the same
thing I’m sharing with you today and I believe it would have
been a slightly different outcome. But I didn’t. I was a coward.
I was a coward. I should have been more of a man and did
what God really put in my heart to do, but I didn’t do it.
Joel’s statements are consistent with affidavits from his two trial counsel, who aver
that they had “several conversations with Mr. Joel about this right to testify” but
advised him not to testify because of his poor performance in answering crossexamination questions. (Doc. 7-1 at ¶¶ 3–9; Doc. 7-2 at ¶¶ 3–9) While Joel might
regret his decision, he fails to allege that counsel deprived him “of the ability to
choose[.]” Teague, 953 F.2d at 1533-34 (explaining that counsel may advise a
defendant “in the strongest possible terms” not to testify).
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Finally, Joel alleges no deficient performance based on counsel’s trial strategy.
See, e.g., Lisbon v. United States, 758 F. App’x 780, 782–784 (11th Cir. 2018) (rejecting
claim that counsel rendered deficient performance by incorrectly advising defendant
not to testify). If the jury disbelieved Joel’s testimony, the jury could view the
testimony “as substantive evidence proving guilt.” United States v. Vazquez, 53 F.3d
1216, 1225 (11th Cir. 1995). And contrary to Joel’s contention, his testimony was
not necessary. Agent Nelson’s statements about Investor’s Outlet were addressed by
a curative instruction (Doc. 284 at 21–22), and trial counsel meaningfully countered
the United States’ references to false documents. (E.g., Doc. 286 at 241–242; Doc.
289 at 76–78) Because Joel’s testimony “presented legitimate risks, yet uncertain
benefits,” trial counsel acted reasonably. Paul v. United States, 627 F. App’x 806, 809
(11th Cir. 2015).
Conclusion
The motion to vacate (Doc. 1) is DENIED. Because Joel’s claims are patently
frivolous, the request for an evidentiary hearing is DENIED. 28 U.S.C. § 2255(b);
Griffith v. United States, 871 F.3d 1321, 1329 (11th Cir. 2017). The clerk is directed to
enter a judgment against Joel and to CLOSE this case.
DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Because Joel fails to show that reasonable jurists would debate the merits of
the procedural issues or the merits of the claims, a certificate of appealability is
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DENIED. 28 U.S.C. § 2253(c)(2); Lambrix v. Sec’y, Fla. Dep’t of Corrs., 851 F.3d
1158, 1169 (11th Cir. 2017). Leave to appeal in forma pauperis is DENIED. Joel
must obtain permission from the circuit court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 27, 2019.
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