Wulf v. United States of America

Filing 21

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. An Order of Dismissal will accompany this M emorandum and Order. IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. Signed by District Judge Jean C. Hamilton on 4/25/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID R. WULF,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14CV1903 JCH

MEMORANDUM AND ORDER
This matter is before the Court on pro se Movant David R. Wulf’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed November 10,
2014. (ECF No. 1).
BACKGROUND
On November 18, 2010, Movant was charged in a second superseding indictment with one
count of conspiracy to commit mail fraud affecting a financial institution, mail fraud, wire fraud
affecting a financial institution, wire fraud, and bank fraud in violation of 18 U.S.C. § 13491; ten
counts of bank fraud in violation of 18 U.S.C. § 1344; seven counts of wire fraud affecting a
financial institution in violation of 18 U.S.C. § 1343; four counts of wire fraud in violation of 18
U.S.C. § 1343; six counts of mail fraud affecting a financial institution in violation of 18 U.S.C. §
1341; six counts of mail fraud in violation of 18 U.S.C. § 1341; one count of money laundering in
violation of 18 U.S.C. § 1957; one count of conspiracy to commit insurance fraud in violation of 18
U.S.C. § 371; two counts of making a false statement to an insurance regulatory agency that

1

Charged as co-conspirators were Randall K. Sutton, Sharon Nekol Province, James Douglas
Cassity, a/k/a Doug Cassity, Brent Douglas Cassity, and Howard A. Wittner. All defendants
1

jeopardized the safety and soundness of an insurer in violation of 18 U.S.C. § 1033(a)(1) and (a)(2);
and two counts of embezzling or misappropriating funds from an insurer which jeopardized the
safety and soundness of an insurer in violation of 18 U.S.C. § 1033(b)(1) and (b)(2).2
Movant’s criminal trial began on August 5, 2013. On August 21, 2013, the parties agreed to
redact the second superseding indictment to remove certain counts which the United States did not
pursue at trial, to remove the forfeiture allegation against Movant, and to renumber the remaining
counts. On August 22, 2013, the jury returned a verdict of guilty on all eighteen counts of the
redacted indictment, including one count of conspiracy to commit mail fraud affecting a financial
institution, mail fraud, wire fraud affecting a financial institution, wire fraud, and bank fraud, eight
counts of bank fraud, six counts of wire fraud affecting a financial institution, and three counts of
wire fraud. On November 14, 2013, the Court sentenced Movant to 120 months imprisonment, to be
followed by a five-year term of supervised release. Movant’s motion to dismiss his direct appeal was
granted before a ruling was issued.

As stated above, Movant filed the instant § 2255 Motion on November 10, 20143, alleging
the following two grounds for relief:

other than Movant pled guilty in June and July, 2013.
2
In its response, the Government describes the criminal conduct at issue as follows: “The
fundamental misrepresentation which was the basis of the fraud charges against Wulf and his
codefendants was that money paid for a funeral in the future would be kept secure in a financial
institution trust or with an insurance company until the time of need. Yet as the evidence at trial
overwhelmingly established, customers’ money was repeatedly and systematically misdirected to
the codefendants’ benefit through various mechanisms, including misappropriation of insurance
premiums paid by customers, unauthorized loans taken against insurance policies purchased by
or on behalf of the customers, and the surrender of whole life insurance policies without the
knowledge of individuals whose lives the policies insured.” (Government’s Response, P. 2).
3
“A 1-year period of limitation shall apply to a motion under [§ 2255].” 28 U.S.C. § 2255(f). “The
limitation period shall run from...(1) the date on which the judgment of conviction becomes final.”
28 U.S.C. § 2255(f)(1). As stated above, the Court entered its Judgment on November 14, 2013.
The present motion, filed November 10, 2014, thus is within the 1-year limitation period provided
for in § 2255.
2

(1)

That the Government’s attorneys engaged in prosecutorial misconduct by
failing to disclose evidence material to Movant’s defense; and

(2)

That Movant received ineffective assistance of counsel at trial.

(§ 2255 Motion, P. 5; Memorandum in Support of § 2255 Motion, PP. 3-61).4
STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. § 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that “the
sentence was imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack,...” 28 U.S.C. § 2255(a). Claims based
on a federal statute or rule, rather than on a specific constitutional guarantee, “can be raised on
collateral review only if the alleged error constituted a ‘fundamental defect which inherently results
in a complete miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129
L.Ed.2d 277 (1994) (citations omitted).5
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion “‘[u]nless
the motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief.’” Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994), quoting 28 U.S.C. § 2255. Thus,
a movant is entitled to an evidentiary hearing “‘when the facts alleged, if true, would entitle him to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996), quoting Wade v. Armontrout, 798
F.2d 304, 306 (8th Cir. 1986). The Court may dismiss a claim “without an evidentiary hearing if the

4

The manner in which Movant elected to format his motion, by mainly quoting from two expert
reports and inserting commentary at various points, made it difficult to decipher his individual
claims.
5
“[A]t least where mere statutory violations are at issue, ‘§ 2255 was intended to mirror § 2254 in
operative effect.’” Reed, 512 U.S. at 353, quoting Davis v. United States, 417 U.S. 333, 344, 94
S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1974).
3

claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which
it is based.” Shaw, 24 F.3d at 1043 (citation omitted).
DISCUSSION
I.

Ground 1
As stated above, in Ground 1 of his § 2255 Motion Movant asserts the Government’s attorneys

engaged in prosecutorial misconduct, by failing to disclose evidence material to Movant’s defense.
In order to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963), Movant must show that “(1)
the evidence was favorable to the defendant, (2) the evidence was material to guilt, and (3) the
government suppressed evidence.” United States v. Sigillito, 759 F.3d 913, 929 (8th Cir. 2014) (quotation
marks and citation omitted), cert. denied, 135 S.Ct. 1019 (2015). “[E]vidence is ‘material’ under Brady,
and the failure to disclose it justifies setting aside a conviction, only where there exists a ‘reasonable
probability’ that had the evidence been disclosed the result at trial would have been different.” Wood v.
Bartholomew, 516 U.S. 1, 5 (1995) (citations omitted); see also Masten v. United States, 752 F.3d 1142,
1147 (8th Cir. 2014) (same). Further, a “reasonable probability” means that “the likelihood of a different
result is great enough to ‘undermine[] confidence in the outcome of the trial.’” Smith v. Cain, 132 S.Ct.
627, 630 (2012), quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)
(internal quotation marks omitted).
Movant specifies several individuals with allegedly exculpatory information, and the Court will
address each in turn.
A.

Sharon Nekol Province

As support for his claim that co-conspirator Sharon Nekol Province gave exculpatory evidence to
the Government, Movant provides an affidavit from his daughter, Susan E. Woods, in which she attests in
relevant part as follows:
2. After the criminal trial of David R. Wulf in August 2013, but before sentencing in
November 2013, I talked to Sharon Nekol Province on the telephone a few times….

4

3. During our conversations, Ms. Province told me that….the fraud and conspiracy that had
happened during the NPS (National Prearranged Services) scandal was kept from my
Dad….
4. When asked if she ever told the prosecutors or investigators that my Dad was innocent,
Ms. Province told me about a meeting she had with the Federal Prosecutors and an IRS
agent prior to my Dad’s trial. This meeting was not disclosed to my Dad or his defense
counsel.
5. In this meeting, Ms. Province told the prosecutors that David R. Wulf did not participate
in or know of any conspiracy to commit fraud.
6. In this meeting, Ms. Province disclosed that she told the prosecutors that she created
fraudulent funeral home letters and used a David R. Wulf signature stamp on Wulf, Bates
& Murphy stationery without my father’s knowledge or permission.
(Movant’s Exh. 12).
By way of response, the Government asserts it has no record of Ms. Province ever making such
statements to government attorneys. (Government’s Response, P. 14). Instead, the Government notes
that Ms. Province met with government attorneys on May 27, 2011, and June 22, 2011, and the
memoranda of those interviews do not reflect the statements contained in Ms. Woods’ affidavit. (Id.; see
also Government’s Exh. 1).6 See United States v. Heppner, 519 F.3d 744, 750 (8th Cir.) (citations
omitted) (“Brady does not require the government to discover information not in its possession or of
which it was not aware.”), cert. denied, 555 U.S. 909 (2008). The Government further notes that Ms.
Province’s alleged assertion that Movant did not participate in or know of the alleged conspiracy is
contradicted by her Plea Agreement, in which she admitted as follows: “The banks were further
defrauded with each trust transfer made pursuant to the direction of co-defendant David R. Wulf, or under
the color of the authority of Wulf, Bates & Murphy, Inc. as an independent investment advisor.” (See
Cause No. 4:09CR509 JCH, ECF No. 440, P. 23).

6

In an affidavit provided with the Government’s response Movant’s trial attorney, Mr. Joseph M.
Hogan, attests that he received reports of interview for numerous witnesses, including Ms.
Province. (Government’s Exh. A, § 7).
5

Upon consideration the Court finds that with this claim, Movant fails to establish the third element
of his Brady claim. In other words the hearsay testimony7 presented in the affidavit prepared by his
daughter, when contrasted with the statements provided by the Government, does not establish that the
Government possessed but suppressed evidence relating to Ms. Province. This portion of Movant’s §
2255 Motion will therefore be denied.
B.

Tony Lumpkin

Movant next claims the Government withheld exculpatory materials relating to Mr. Tony
Lumpkin, former Chief Operating Officer of Lincoln Memorial Life Insurance Company. As support for
this assertion Movant provides a declaration from Mr. Lumpkin, in which he attests in relevant part as
follows:
4.
During several interviews, I told the [federal] investigators and prosecutors that
David Wulf had no knowledge of any criminal activity. I told them that, to the extent
there was a fraudulent scheme, Doug Cassity had hidden it from David.
5.
I gave the investigators and prosecutors several examples to show David had no
knowledge of the criminal activity. For example, in or about 2010, I told the
investigators and prosecutors that I had seen Sharon Province using David’s signature
stamp to stamp documents without David’s permission or knowledge.
(Movant’s Exh. 10B).
In response, the Government again notes that it turned over all memoranda of interview involving
Mr. Lumpkin to Movant’s attorney prior to trial. (See Government’s Response, P. 8; Government’s Exh.
A, ¶ 7). The Government continues to assert that Mr. Lumpkin’s memoranda of interview do not reflect
his current position that Movant did not knowingly participate in the fraud. Further, and perhaps more
importantly, the Government notes that the statements in Mr. Lumpkin’s declaration directly contradict
the testimony he provided at Movant’s trial. For example, Mr. Lumpkin testified that Movant was the
designated investment advisor for the Missouri trusts at issue, and that Movant was responsible for

7

In her affidavit, Ms. Woods claims that although Ms. Province initially indicated a willingness
to provide an affidavit affirming her statements, she allegedly declined to do so after speaking
6

directing the money held in trusts. (See Cause No. 4:09CR509 JCH, ECF No. 745, PP. 101-103). Mr.
Lumpkin continued to detail Movant’s role in requesting fraudulent policy loans, and in communicating
to regulators about his decisions, as investment advisor, to take those loans. (Id., PP. 106-117). He
further testified that he became concerned over time about the amount or volume of policy loans, and
about what the trusts actually held, and that he discussed those concerns with Movant.8 (Id., PP. 120-21).
Mr. Lumpkin finally testified that Movant acknowledged the fraudulent decision to surrender whole life
insurance policies and replace them with term life insurance was made under his authority as investment
advisor. (Id., PP. 122-25).
Upon consideration of the foregoing, the Court finds that with his claim regarding Tony Lumpkin,
Movant fails to establish two elements of his Brady violation claim. First, as with the alleged information
regarding Ms. Province, Movant fails to establish that the Government suppressed evidence relating to
Mr. Lumpkin. In other words, the Court’s review of the memoranda of interview regarding Mr. Lumpkin
reveals he did not express doubt or concern regarding Movant’s role in the conspiracy and fraud.
Furthermore, Movant fails to establish that the evidence at issue was “material”; in other words, the Court
does not find a reasonable probability that, had the evidence contained in Mr. Lumpkin’s affidavit been
disclosed, the result at trial would have been different. To the contrary, the jury found Movant guilty,
despite the fact that his attorney elicited at trial that Mr. Lumpkin never once accused Movant of fraud
during his ten or eleven interviews with federal agents, and further that he personally trusted Movant
enough to invest with him and to recommend his financial services to a friend. (Id., PP. 147-48, 157-58).
This portion of Movant’s § 2255 Motion will therefore be denied.
C.

Darci Greco

with her attorney. (See Woods Aff., ¶¶ 8-12).
8
With respect to his questions regarding the contents of the trusts, Mr. Lumpkin testified that
Movant responded “that it was just better not to talk to [Lumpkin] about that.” (See Cause No.
4:09CR509 JCH, ECF No. 745, PP. 120-21).
7

Movant next claims the Government withheld exculpatory materials relating to Ms. Darci Greco,
Mr. Lumpkin’s former assistant at National Prearranged Services (“NPS”) and later Memorial Service
Life Insurance Company. As support for this assertion Movant provides a declaration from Ms. Greco9,
in which she attests in relevant part as follows:
4.
During interviews, I told the [federal] investigators and prosecutors that David
Wulf had no knowledge of any changes being made to policy applications. I told them
that I did not understand why they were charging David. I said that any alleged
fraudulent scheme was the work of Randy Sutton and Doug Cassity, not David Wulf.
5.
I expected that I would no longer need to testify after David’s co-defendants pled
guilty. I told the prosecutor I was surprised when he informed me I would still need to
testify against David Wulf because, as I had stated on numerous occasions, I did not
believe he was involved in any criminal activity.
(Movant’s Exh. 11).
Upon consideration the Court finds that with his claim regarding Darci Greco, Movant again fails
to establish two elements of his Brady violation claim. First, as with the alleged information regarding
Ms. Province and Mr. Lumpkin, Movant fails to establish that the Government suppressed evidence
relating to Ms. Greco. In other words, the Court’s review of the memoranda of interview regarding Ms.
Greco reveals she did not express doubt or concern regarding Movant’s role in the conspiracy and fraud;
rather, she barely mentioned Movant at all in her interviews. Furthermore, Movant fails to establish that
the evidence at issue was “material”; in other words, the Court does not find a reasonable probability that,
had the evidence contained in Ms. Greco’s declaration been disclosed, the result at trial would have been
different. To the contrary, the jury found Movant guilty, despite the fact that Ms. Greco testified on direct
examination that Movant was a friend of hers, and on cross-examination that she never dealt directly with
Movant, that Movant had nothing to do with the changing of policies or whiting out of terms therein, and
that Ms. Greco believed her own actions at the time were lawful. (Id., PP. 23, 78-79, 81-83). This
portion of Movant’s § 2255 Motion will therefore be denied.

9

Ms. Greco’s undated declaration apparently was prepared in conjunction with Movant’s
8

D.

Katherine Scannell

Movant finally claims the Government withheld exculpatory materials relating to Ms. Katherine
Scannell, former general counsel to National Heritage Enterprises.10 As support for this assertion Movant
provides an affidavit from Ms. Scannell11, in which she attests in relevant part as follows:
18.
I do not recall David Wulf directly interacting with me concerning any loans from
the trusts. I was not involved in the decision to provide funds. I never was asked to clear
any terms or amounts with David Wulf, and on no occasion did I receive a request for
information directly from David Wulf concerning any of the loans from the trusts or from
the subsidiaries….
23.
In the years that I served as General Counsel for [National Heritage Enterprises],
I do not recall any phone calls, e-mails, or other correspondence with any of the bank
trustees regarding any matter, including the trusts, the promissory notes, David Wulf, and
Chapter 436 of the Missouri statutes.
(Movant’s Exh. 5).
Upon consideration the Court finds that with his claim regarding Katherine Scannell, Movant
again fails to establish two elements of his Brady violation claim. First, Movant fails to establish that the
Government suppressed evidence relating to Ms. Scannell; rather, the memoranda of interview regarding
Ms. Scannell, which were provided to Movant’s counsel, are consistent with her affidavit in that they
contain only sparse mentions of Movant, and they confirm Ms. Scannell did not usually deal with Movant
directly. Furthermore, Movant fails to establish that the evidence at issue was “material”; in other words,
the Court does not find a reasonable probability that, had the evidence contained in Ms. Scannell’s
affidavit regarding the fact that she did not personally interact with Movant been disclosed, the result at
trial would have been different.12 This portion of Movant’s § 2255 Motion will therefore be denied.

criminal case, Cause No. 4:09CR509 JCH.
10
In her position as general counsel for National Heritage Enterprises, Ms. Scannell also
provided legal advice and services to, among other entities, NPS, Lincoln Memorial Life
Insurance Company, Memorial Services Life Insurance Company, and Forever Enterprises.
(Scannell Aff., ¶ 2).
11
Ms. Scannell’s affidavit apparently was prepared in conjunction with a civil suit against
Movant and others, Cause No. 4:09CV1252 ERW.
12
The Court’s review of the memoranda of interview involving Ms. Scannell reveals that if
9

II.

Ground 2

As stated above, in Ground 2 of his § 2255 Motion Movant asserts he received ineffective
assistance of counsel at trial. In order to prevail on a claim of ineffective assistance of counsel,
Movant must show that his attorney’s performance was “deficient,” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To
overcome this presumption, Movant must prove that, “in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent assistance.” Id.
Even if Movant satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 691. Movant must prove that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
Movant specifies numerous instances of allegedly ineffective assistance of trial counsel, and the
Court will address the claims in turn.

A.

Failure To Review Discovery

anything, her testimony would have been detrimental to Movant’s case.
10

For his first claim of ineffective assistance of counsel, Movant alleges his attorney failed to
prepare for trial by reviewing the discovery provided by the Government, including memoranda of
interview for various witnesses. Movant continues to assert that because of this lack of preparation,
his attorney was unable adequately to cross examine the witnesses when the Government presented
them at trial.13
Upon consideration the Court finds that with this claim, Movant fails to demonstrate
deficient performance on the part of his attorney. Specifically, the Court notes that with its response
the Government provides an affidavit from attorney Hogan, in which he attests that he met with
Movant more than thirty times during the course of his representation, spending a total of hundreds
of hours on the case. (Hogan Affidavit, ¶ 5). With respect to discovery, Mr. Hogan asserts that he
considered the discovery in Movant’s case to have been the “most forthcoming” of any federal case
he had defended. (Id., ¶ 6). He continues to assert that he reviewed the voluminous discovery
provided by the Government, and attended several meetings during which the Government explained
the significance of those documents it considered “hot”, or most relevant to the claims and defenses
in the case. (Id., ¶¶ 4, 6). Mr. Hogan maintains he personally reviewed all reports of interview that
he received14, provided copies of both those and the “hot documents” to Movant, and met with
Movant to discuss the various records. (Id., ¶¶ 6, 7). Finally, Mr. Hogan asserts he prepared his
cross examination of those witnesses testifying at trial based in part upon his meetings with Movant.
(Id., ¶ 7). Under these circumstances, the Court does not find Mr. Hogan’s performance was
constitutionally deficient, and so this portion of Movant’s § 2255 Motion will be denied.

13

According to Movant, this failure then hindered the efforts of the attorney he hired to pursue
his direct appeal, as trial counsel’s failure to object at appropriate times meant the points were
not preserved.
14
Mr. Hogan attests that his purpose in reviewing the reports of interview during the trial itself
was to allow him to determine if any of the witnesses’ statements during direct examination
11

B.

Failure To Call Defense Witnesses

For his second claim of ineffective assistance of counsel Movant alleges his attorney failed to
call any defense witnesses, other than Movant. As support for this alleged deficiency, Movant
provides an affidavit from his former business partner, Charles F. Bates, III, in which Mr. Bates
claims to have witnessed an incident in late 2001 or early 2002, when an employee of NPS entered
the offices of Wulf, Bates & Murphy, Inc. (“WBM”), and attempted to remove a large amount of
WBM stationery from under the printer. (Movant’s Exh. 7, ¶ 4). Mr. Bates continues to assert that
Movant stopped the woman from taking the stationery, and further called Sharon Nekol Province to
inform her that WBM would not continue writing funeral home letters for NPS, and to request that
she return Movant’s signature stamp. (Id., ¶¶ 6-10). Mr. Bates maintains that although Ms. Province
did in fact return a signature stamp, it was later learned that NPS retained and continued to utilize
another David R. Wulf signature stamp. (Id., ¶¶ 11-14).15 Movant further provides an affidavit from
Kelly L. Bates, WBM’s former administrative assistant, in which she confirms Mr. Bates’ testimony.
(Movant’s Exh. 2).
Mr. Hogan addresses Movant’s claim regarding the failure to call Charles and Kelly Bates as
trial witnesses in his affidavit, as follows:
20.
I am aware that Mr. Wulf has challenged my decision not to call his one-time
partner [Charles] Bates as a witness at trial. At Mr. Wulf’s suggestion, I had
considered calling Mr. Bates in advance of trial. According to Mr. Wulf, Mr. Bates
would have testified that his signature stamp had been stolen from the office by codefendant Sharon Nekol Province. The ultimate decision not to call Mr. Bates was
made in consultation with Mr. Wulf after I received and shared with Mr. Wulf a
Memorandum of Interview reflecting an interview of Mr. Bates and his wife Kelly
Bates on July 23, 2013….My colleague Ethan Corlija was present for the meeting

contradicted their earlier statements to law enforcement. (Hogan Aff., ¶ 19).
15
Movant provides a second affidavit from Mr. Bates, in which through hearsay he claims that
Jim Crawford stated “emphatically and frequently” that he told the federal prosecutors, on the
record, that Movant had nothing to do with the fraud at NPS. (Movant’s Exh. 6).
12

where Mr. Wulf and I discussed this memorandum. The memorandum reflected that
Mr. Bates had stated to the interviewing agents, among other things, the following:
*
that Mr. Bates’s wife, Kelly Bates, had put together “Monday morning”
reports showing balances and identifying the money in and out of NPS and other
client accounts;
*
“I don’t mean to throw my partner under the bus, but those were his
accounts,” in reference to NPS’s accounts;
*
that the bulk of Wulf, Bates & Murphy’s business was comprised of NPSrelated accounts and those which Mr. Bates managed for his family members, that
Mr. Bates and Mr. Wulf “knew where our bread was buttered,” and that NPS was a
client that they “wouldn’t want to lose”;
*
that Mr. Wulf monitored the trades in a Caymus Fund, which he said was
“basically a hedge fund” and “not a conservative investment vehicle” (and which I
knew to be a fund into which Trust IV funds had been invested);
*
that it was Mr. Wulf who had solicited NPS to participate in the Caymus
Fund;
*
that on one occasion, Mr. Wulf had contacted Mr. Bates stating that he had a
“bunch of wires” related to NPS accounts that Mr. Wulf could not decipher; and
*

that he knew of no evidence that could exonerate Mr. Wulf.

Once he learned of these statements, Mr. Wulf forcefully indicated that he no longer
wished to have Mr. Bates called as a witness. I regarded the decision not to call Mr.
Bates as the proper tactical decision, given the prior statements he had made to law
enforcement, and I therefore did not call him.
21.
I also understand that Mr. Wulf has challenged my decision not to call Kelly
Bates, Mr. Bates’s wife, to the stand. Like the decision not to call Mr. Bates, the
decision not to call Ms. Bates was reached by me in consultation with Mr. Wulf after
receiving the interview report described above. In that interview, Ms. Bates
admitted, among other things, that she recalled receiving either monthly or quarterly
NPS bank and trust account statements and that she gave the statements to Wulf, who
would in turn have her file them in a cabinet designated for NPS-related business.
She indicated that the statements were readily available to Mr. Wulf. Again, based
upon these statements, Mr. Wulf and I both regarded calling Ms. Bates as a poor
tactical decision, and I therefore did not call her.
(Hogan Aff., ¶¶ 20-21).

13

Upon consideration the Court finds that with this claim, Movant fails to establish either prong
of the Strickland test. With respect to performance, the Court finds that Mr. Hogan’s decision not to
call Mr. or Mrs. Bates as witnesses at trial was the product of sound trial strategy on his part. See
Emery v. United States, 2011 WL 5553776, at 5 (E.D. Mo. Nov. 15, 2011) (internal quotation marks
and citations omitted) (“We have consistently held that a reasoned decision not to call a witness is a
virtually unchallengeable decision of trial strategy, in part because there is considerable risk inherent
in calling any witness because if the witness does not hold up well on cross-examination, the jurors
might draw unfavorable inferences.”); see also Strickland, 466 U.S. at 691 (“Counsel’s actions are
usually based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant….In short, inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s….litigation decisions.”). With respect
to prejudice, the Court does not find a reasonable probability that, but for counsel’s failure to call the
two witnesses, the result of the proceeding would have been different. Instead, the Court finds the
limited value of the statements in Mr. and Mrs. Bates’ affidavits would not have canceled out the
testimony they presumably would have provided in conformance with their earlier interviews, much
less any other evidence the Government brought forth at trial. This portion of Movant’s § 2255
Motion will therefore be denied.
C.

Failure To Elicit Additional Testimony From Movant

Movant next alleges his attorney was ineffective for failing to elicit certain testimony from
Movant during his direct testimony at trial. Specifically, Movant complains that his attorney (1) did
not ask him to testify regarding the fact that the letters used to convict him of mail and bank fraud
contained forged signatures; (2) did not utilize Movant’s testimony to establish that the letter used to
demonstrate that Movant directed the bank trustees to allow NPS to hold life insurance policies was

14

authored not by him, but by Herb Morisse and Rich Markow, then President and Vice-President of
Allegiant Trust Company; and (3) did not ask whether Movant had knowledge of allegedly unlawful
activities going on in states other than Missouri.
The Government addresses Movant’s claims in turn. First, the Government points out that
Movant’s attorney did question him with respect to the forged signatures, and Movant’s request that
NPS stop sending letters to funeral homes with his signature in 2001. (See Government’s Response,
P. 23; Cause No. 4:09CR509 JCH, ECF No. 747, PP. 44-47). Under these circumstances, the Court
finds Movant’s attorney’s performance in this regard was not constitutionally deficient. With respect
to the authorship of the November 5, 1999, letter, in which as investment advisor for the trust
accounts Movant delegated certain investment direction powers to NPS (despite the fact that he was
supposed to be independent from NPS), the Government points out that although Movant claims not
to have authored the letter, he never claims not to have signed it. (Government’s Response, PP. 2223).

Under these circumstances the Court need not consider whether Movant’s attorney’s

performance was deficient, because it finds no reasonable probability that the result of his trial would
have been different had counsel raised the point.
Finally, with respect to whether Movant had knowledge of allegedly unlawful activities going
on in states other than Missouri, the Government notes as follows: First, because of the conspiracy
charged in Count 1 of the second superseding indictment, Movant would be held accountable for the
acts of his co-conspirators, regardless of what direct knowledge he might have had. (Government’s
Response, P. 24).16 Second, the trust assets allegedly directed by Movant were part of the larger
Ponzi-like scheme, as “trust assets were used to both pay insurance premiums in other states and pay
the operation costs of the insurance company itself”, and “customer funds from other states (which

16

Movant’s attorney thus was not ineffective for failing to object to the introduction of evidence
15

were to be held in individually owned insurance policies) were used to pay debts of the trust.” (Id.,
PP. 24-25). Finally, the Government points out that Mr. Hogan in fact asked numerous witnesses,
including Movant himself, about Movant’s lack of participation in any criminal activity. (Id., P. 25;
see also, e.g., Cause No. 4:09CR509 JCH, ECF No. 738, PP. 98, 147, 152-53; ECF No. 739, PP. 57,
147-48, 235; ECF No. 740, PP. 78-79, 205-06; ECF No. 741, P. 230; ECF No. 745, PP. 147-48; ECF
No. 747, P. 47). Under these circumstances, the Court finds Mr. Hogan’s performance fell well
within the wide range of professionally competent assistance sanctioned by Strickland, and Movant
suffered no prejudice. This portion of Movant’s § 2255 Motion will therefore be denied.
D.

Failure To Identify And Call An Expert To Testify At Trial

Movant next asserts his trial counsel was ineffective for failing to present an expert willing to
testify it was neither Movant’s responsibility nor within his authority as investment advisor to
absolve the trustees from their duty to keep the life insurance policies used to fund the Missouri
trusts within their custody and under their control.17 In response, the Government provides the
following testimony from Mr. Hogan:
22.
I am aware that Mr. Wulf has also challenged my decision not to call an
expert witness to testify at trial during Mr. Wulf’s case-in-chief. Prior to trial, I
contacted two different individuals to determine whether they might be willing to
testify as expert witnesses for Mr. Wulf. I recommended the first of these individuals
to Mr. Wulf, but he rejected this expert. Instead, Mr. Wulf indicated that he wished
to retain Mr. Louis Smith as an expert witness, whom he knew personally from his
dealings with Maloney Securities, where Mr. Smith was employed.
23.
Like the decision not to call Mr. Bates, this decision not to call an expert
witness was made in direct consultation with Mr. Wulf. Mr. Wulf and I were both
present in the courtroom for the testimony of Arthur Laby, an expert witness
designated by the government. Mr. Wulf and I both regarded Mr. Laby’s testimony
as devastating. Before, during, and after Mr. Laby’s testimony, I asked Mr. Wulf if
regarding allegedly unlawful activities in states other than Missouri at trial either.
17
Movant claims the arrangement set forth in the November 5, 1999, letter from WBM to
Allegiant Trust Company, as Trustee of NPS’s trusts, violated Allegiant’s duties under Chapter
436 of the Missouri Revised Statutes.
16

he had any suggestions of questions that I could ask Mr. Laby to dispute his
testimony. Mr. Wulf indicated he could think of no questions to ask Mr. Laby.
24.
After Mr. Laby testified, I met with Mr. Wulf and Mr. Corlija. All three of us
agreed that, in light of Mr. Laby’s testimony, we should not call an expert witness in
Mr. Wulf’s case-in-chief. None of us believed that Mr. Smith could provide
testimony that would successfully rebut the testimony of Mr. Laby. Further, we
believed that calling an expert would have provided another opportunity for the
government to emphasize during cross examination the points that it had made
through the direct examination of its own expert. We all agreed that this risk was not
worth the minimal potential rewards.
(Hogan Aff., ¶¶ 22-24).
Upon consideration the Court finds that with this claim, Movant fails to satisfy either prong
of the Strickland test. With respect to performance, the Court again finds that Mr. Hogan’s decision
not to call an expert witness to testify on Movant’s behalf at trial was the product of sound trial
strategy on his part. See Emery, 2011 WL 5553776, at *5 (internal quotation marks and citations
omitted) (“We have consistently held that a reasoned decision not to call a witness is a virtually
unchallengeable decision of trial strategy, in part because there is considerable risk inherent in
calling any witness because if the witness does not hold up well on cross-examination, the jurors
might draw unfavorable inferences.”); see also Strickland, 466 U.S. at 691 (“Counsel’s actions are
usually based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant….In short, inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s….litigation decisions.”). Furthermore,
with respect to prejudice, the Court finds that regardless of whether Movant had the authority as
investment advisor to absolve the trustees from their duties, and/or whether said trustees also
violated Missouri statutes, the jury still would have seen ample evidence that Movant signed the
letter at issue, and thus participated in the alleged fraud. Under these circumstances Movant fails to
establish a reasonable probability that, had counsel designated an expert witness, the result of his

17

proceeding would have been different. This portion of Movant’s § 2255 Motion will therefore be
denied.
E.

Failure Adequately To Cross Examine Richard Markow

Movant next claims his trial attorney failed adequately to cross examine Mr. Richard
Markow, one-time Vice-President of Allegiant Trust Company and President of Bremen Bank.
Specifically, Movant complains that when Mr. Markow testified he did not remember talking to
Movant about the November 5, 1999, letter, Mr. Hogan did not follow up with questions regarding
the letter’s originators and/or authors.18
Once again the Court finds that with this claim, Movant fails to establish either prong of the
Strickland test. With respect to deficient performance, Mr. Hogan stated in his affidavit as follows:
25.
I understand that Mr. Wulf has challenged my strategy in my cross
examination of Richard Markow, the former President of Bremen Bank, one of the
trustees over National Prearranged Services Trust IV, for which Mr. Wulf had been
designated as the statutorily appointed independent investment advisor. During
preparation for trial, Mr. Wulf and I discussed the possibility of confronting Mr.
Markow about whether he had been the author of the November 5, 1999 letter….Mr.
Wulf suggested that Mr. Markow was the author.
26.
In court, I asked Mr. Markow whether he recalled discussing the letter with
Mr. Wulf. Mr. Markow responded “No.” In light of Mr. Markow’s failed
recollection, I did not believe he would agree that he had written the letter if I had
asked the question. Especially considering the minimal relevance of the authorship
of the letter (given the undisputed fact that Mr. Wulf had signed it), I regarded it as
too great a risk to ask the question and instead pursued other lines of questioning I
hoped would be more fruitful.
(Hogan Aff., ¶¶ 25-26). The Court finds this decision did not fall outside the wide range of
performance sanctioned by Strickland. Further, with respect to prejudice, as noted above although
Movant claims not to have authored the November 5, 1999, letter, he never claims not to have signed
it. Under these circumstances the Court finds no reasonable probability that the result of his trial

18

Again, Movant claims the letter was co-authored by Mr. Markow and Mr. Morisse.
18

would have been different had counsel raised the point with Mr. Markow during cross examination.
This portion of Movant’s § 2255 Motion will therefore be denied.
F.

Failure Adequately To Cross Examine Angela Hall

Movant finally asserts his trial counsel was ineffective for failing adequately to cross examine
Ms. Angela Hall. Specifically, Movant claims he was never copied on wire instruction faxes sent by
NPS (despite the fact that the computer generated cover sheets show he was “cc’d” on the missives),
and so his attorney was ineffective for failing to question Ms. Hall about her motives for testifying
otherwise.19
Upon consideration the Court finds that with this claim, Movant fails to demonstrate the
requisite prejudice. In other words, even if Mr. Hogan had questioned Ms. Hall further regarding
Movant’s alleged receipt of faxes concerning wire transfer requests, there is no reasonable
probability the result of Movant’s proceeding would have been different because at least two other
witnesses, Ms. Shari Gray and Ms. Sandi Wallis, testified as to similar procedures. (See Cause No.
4:09CR509 JCH, ECF No. 741, PP. 227-28; ECF No. 742, PP. 6-7). This portion of Movant’s §
2255 Motion will therefore be denied.20
CONCLUSION
Accordingly,

19

Ms. Hall testified that it was her practice to either fax, email or hand-deliver copies of all
forms documenting wires out of trusts to Movant. (See Cause No. 4:09CR509 JCH, ECF No.
750, PP. 52-53).
20
In its response, the Government recounts the abundant evidence establishing Movant’s guilt
presented at trial, including Movant’s own concessions during a prior arbitration proceeding and
during his testimony at trial. (See Government’s Response, PP. 30-37). The Court will not
repeat the detailed recitation here, but notes it provides additional support for the Court’s finding
that any alleged deficiencies on the part of Movant’s trial attorney did not result in prejudice.
19

IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) is DENIED, and his claims are DISMISSED
with prejudice. An Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).

Dated this 25th Day of April, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

20