Spiridon v. USA

Filing 75

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant Daniela Spiridon's motions filed under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence are DENIED. (Doc. Nos. 1 , 39 ). IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right as required by 28 U.S.C. § 2253(c)(2). A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge John A. Ross on 4/30/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DANIELA M. SPIRIDON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:15-CV-01380-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Movant Daniela Spiridon’s motions filed under 28
U.S.C. § 2255 to vacate, set aside, or correct her sentence. On March 13, 2013, Movant was
indicted on six counts of Fraud by Wire, Radio, or Television, in violation of 18 U.S.C. §§ 1343
and 1342, and Forfeiture, in violation of 18 U.S.C. § 981(a), 21 U.S.C. § 853(p), and 28 U.S.C. §
2461(c). On September 26, 2013, Movant pled guilty to all counts, and the Court sentenced
Movant to 78-months’ imprisonment on August 9, 2014.
Movant now seeks to set aside her conviction and sentence, asserting that plea counsel
was ineffective for failing to review a financial document, later determined to be fraudulent,
before instructing Movant to submit the document to her probation officer. Movant also claims
that sentencing counsel was ineffective for failing to investigate the financial document, for
advising Movant to concede that the document was forged in exchange for a reduced offense
level under the sentencing guidelines, and for erroneously advising Movant that she had waived
her right to appeal.

The Court held evidentiary hearings on October 12 and 20, 2017, regarding Movant’s
claims of ineffective assistance of counsel. The transcripts of the evidentiary hearings were
prepared, and the parties submitted their proposed findings on January 26, 2018. (Doc. Nos. 73
and 74). Based on the entire record, for the reasons set forth below, Movant’s motion will be
denied.
BACKGROUND
Criminal Proceedings
On March 13, 2013, Movant was charged by indictment with six counts of wire fraud
occurring between 2010 and March 2013 and resulting in significant losses to several victims.
On March 23, 2013, plea counsel entered his appearance on behalf of Movant.
On September 26, 2013, Movant pled guilty to all six counts filed against her. (Plea
Hearing Transcript, Doc. No. 34, United States v. Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)).
The Plea Agreement specifically provided that if, after pleading guilty and before sentencing,
Movant intentionally provided misleading, incomplete, or untruthful information to the probation
office, the Government would be released from its obligations under the agreement. (Plea
Agreement, Doc. No. 42 at ¶ 12, United States v. Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)).
At the plea hearing, the Court specifically discussed, and Movant indicated that she
understood, that Movant was waiving her right to appeal all non-jurisdictional, non-sentencing
issues, including any issue related to the filing of pretrial motions, the discovery in the case, and
the circumstances of her guilty plea. (Id. at 94). She also acknowledged her understanding that
she was agreeing to waive her right to appeal the sentence if the Court accepted the guideline
calculations. (Id.). Movant then confirmed that nobody had promised her anything, threatened
her in any way, or made any other representations to her to get her to enter the plea of guilty.

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(Id.). The Court then ordered that a presentence report be prepared and directed Movant to
cooperate and assist the probation officer in the preparation of that report. (Id. at 38).
The probation officer conducted an investigation into Movant’s financial condition
during its preparation of the PSR.

In the Disclosure PSR filed on January 30, 2014, the

probation officer had no information indicating that Movant impeded or obstructed justice.
(Disclosure PSR, Doc. No. 57, United States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D.
Mo.)).

However, the Disclosure PSR noted that Movant had failed to provide complete

information related to her financial situation and provide additional documentation, including
bank statements. (Id. at ¶ 38).
In February 2014, Movant provided the probation officer with a document titled “Deed
Agreement” as proof of a commission she would receive from a transaction valued at ten billion
euros. That Deed Agreement was “riddled with typographical errors and appear[ed] fraudulent,”
as it was numbered in an unusual fashion, the font was inconsistent throughout the document,
and Movant’s name appeared in only one place on the document. (Id. at ¶ 52).
On February 12, 2014, Movant, through plea counsel, accepted the Disclosure PSR. On
February 18, 2014, plea counsel filed a motion to withdraw, indicating that he had concerns that
Movant was suffering from a mental illness. 1 (Motion to Withdraw, Doc. No. 67, United States
v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). Shortly thereafter, the Government filed
a motion to revoke Movant’s bond on the ground that Movant had provided a document that
appeared fraudulent on its face, and that motion was granted.
The Government further investigated the Deed Agreement and contacted the individual
listed as the paymaster, Mr. Billy Wilson. (Id. at ¶ 54). Wilson stated that he was not the
1

A competency examination was ordered and a hearing held, at which time the Magistrate
Judge found Movant to be competent. (Doc. Nos. 97 and 100, United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)).
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paymaster for the transaction, that he had never heard of some of the entities listed on the Deed
Agreement, and that he had never heard of Movant. (Id.). Wilson indicated that while he
believed the document to be false, it did list his actual bank account number, which could have
been obtained from public records or past transactions. (Id.). The Government also interviewed
the Director of Anti-Money-Laundering Special Investigations at Deutsche Bank, a purported
party to the transaction set forth in the Deed Agreement. (Id.). The Director also believed the
document was fraudulent for a number of reasons, including irregularities in the names used on
the document as they related to Deutsche Bank. (Id.).
On February 25, 2014, sentencing counsel filed a motion to enter his appearance on
behalf of Movant. The Court granted sentencing counsel’s motion and subsequently granted plea
counsel’s motion to withdraw. On February 27, 2014, a Revised PSR was filed. (Revised PSR,
Doc. No. 80, United States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). It included
an adjustment for the obstruction of justice, stating that Movant “has failed to provide true and
complete financial information to the probation officer while feigning cooperation.” (Id. at ¶
41). The probation officer noted that Movant had not accepted responsibility for her criminal
conduct and had continued that conduct after pleading guilty. (Id. at ¶ 53). The Revised PSR
listed the total loss suffered by the victims as $2,579,267.17. As a result, Movant’s total offense
level under the Revised PSR was 29, with a guideline range of punishment of 87 - 108 months’
imprisonment, rather than the total offense level of 22 listed in the Disclosure PSR.
On August 5, 2014, sentencing counsel filed objections to the Revised PSR challenging
its conclusion that Movant engaged in obstruction of justice and failed to accept responsibility
based on Movant’s providing a fraudulent Deed Agreement to the probation office. (Doc. No.

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104, United States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). However, on August
18, 2014, sentencing counsel withdrew those objections.
The Final PSR was filed on August 15, 2014, and it revised the total offense level to 27
with a guideline range of punishment of 70 - 87 months’ imprisonment. (Final PSR, Doc. No.
110, United States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). It also reduced the
total loss to $2,499,988.17. (Id. at ¶ 41). Movant reported a net worth of approximately
$4,353,196.05 based on her claim that she was owed commissions totaling $4,375,000. (Id. at ¶
108). However, the probation officer’s investigation found her bank accounts depleted, and the
probation officer commented that “the credibility of the financial information provided by
[Movant] is now in doubt.” (Id. at ¶ 108).
On August 19, 2014, Movant appeared at her sentencing hearing, and the Court first
established that Movant was competent to proceed with her sentencing. (Sentencing Transcript,
United States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). The Court also confirmed
with Movant that she had reviewed the disclosure, revised, and final PSRs. (Id. at 10). Movant
confirmed that she had reviewed the PSRs with sentencing counsel and that he had answered any
questions she had. (Id. at 11). She also confirmed that she wished to withdraw any objections to
the Final PSR and that she understood how the sentencing calculations were made. (Id. at 15).
The Court then sentenced Movant to a term of 78 months in prison, which was within the
guidelines range determined by the Court and agreed to by the parties, and then advised Movant
of her right to appeal her conviction under some limited circumstances. (Id. at 41). Movant
signed the Notice of Compliance with Local Rule 12.07(A), acknowledging that sentencing
counsel had explained to Movant her right to appeal and that she had not requested that counsel

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file a notice of appeal. (Notice of Compliance, Doc. No. 116, United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)).
§ 2255 Motion
On September 2, 2015, Movant filed her motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence by a person in federal custody. (Doc. No. 1). She asserted that both
her plea and sentencing counsel were ineffective by failing to keep her reasonably informed
about the status of the case, failing to explain and discuss her case, failing to conduct adequate
and independent pretrial investigation, failing to file any substantive pretrial motions, and failing
to properly advise her of the consequences of pleading guilty. On August 30, 2016, plea counsel
filed a motion for leave to file an amended § 2255 motion, which only asserted claims of
ineffective assistance of counsel against sentencing counsel. The Court set the matter for a
hearing based on plea counsel’s apparent conflict of interest, since he had represented Movant in
her underlying criminal matter. Plea counsel ultimately withdrew as counsel for Movant (Doc.
No. 28), and attorney Kevin Schreiner entered his appearance on behalf of Movant and filed an
amended § 2255 motion on December 1, 2016. (Doc. No. 39).
The amended motion asserts the following claims: (1) plea counsel was ineffective
because he failed to review and advise Movant regarding the Deed Agreement that she submitted
to the probation officer; (2) sentencing counsel was ineffective because he failed to investigate
the Government’s allegation that Movant forged the Deed Agreement; (3) sentencing counsel
was ineffective because he advised Movant to concede that the Deed Agreement was forged in
exchange for the Government agreeing that the total loss was less than $2.5 million; and (4)
sentencing counsel was ineffective because he advised Movant that she had waived her right to
appeal.

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Evidentiary Hearing
On October 12 and 20, 2017, the Court held an evidentiary hearing on Movant’s amended
§ 2255 motion. At that hearing, Movant, plea counsel, sentencing counsel, and the probation
officer testified.
a. Movant’s testimony 2
Movant testified that she obtained the Deed Agreement on February 8, 2014, and
believed the Deed Agreement was authentic. (Evidentiary Hearing Transcript, Vol. 2, Doc. No.
71, at 15, 41). The Deed Agreement was meant to serve as proof of a transaction that she
brokered between Deutsche Bank and Singapore Bank. (Id. at 8). According to Movant, she
obtained the Deed Agreement to establish that she could pay restitution. (Id.). Movant testified
that prior to providing the Deed Agreement to the probation officer, she contacted Wilson, who
verified the authenticity of the Deed Agreement. (Id. at 11-12). On February 11, 2014, Movant
provided a copy of the Deed Agreement to plea counsel via e-mail. (Id. at 16). She testified that
plea counsel directed her to forward the Deed Agreement to the probation officer. (Id.). Shortly
thereafter, plea counsel withdrew from Movant’s case, and she retained sentencing counsel.
Movant testified that she advised sentencing counsel of her objections to the Revised
PSR’s inclusion of a two-level enhancement for obstruction of justice and asked him to
investigate the allegedly fraudulent Deed Agreement. (Id. at 21). She also directed sentencing
counsel to advise the Government that she would fully cooperate in its investigation of the
fraudulent origins of the Deed Agreement. (Id.). She testified that she offered to provide
sentencing counsel with the names and contact information of the parties to the Deed Agreement,
as well as her e-mail passwords, computer, and phone, to assist sentencing counsel’s efforts to
2

Plea counsel testified before Movant due to a scheduling conflict. However, for purposes
of this order and for ease of understanding, the Court will first set forth Movant’s testimony.
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prove her innocence concerning the origin of the Deed Agreement. (Id. at 23-24). She also
testified that she provided sentencing counsel with her e-mail communications with Wilson to
prove that they had an existing professional relationship. (Id. at 24).
With regard to her claim that sentencing counsel was ineffective for failing to provide her
with accurate information regarding her right to appeal her sentence and conviction, Movant
testified that sentencing counsel told her that her only option was filing a habeas corpus petition.
(Id. at 31).
On cross-examination, Movant admitted she did not have any problems with plea
counsel’s representation during the course of her plea. (Id. at 33). Movant was questioned about
the ten billion euro transaction that she allegedly brokered and testified that she had engaged in
extensive e-mail and Skype communications with “21 people at a time on conference calls.” (Id.
at 35). She testified that she had saved all of the e-mails regarding the transaction on a Gmail
account, the password for which was provided to sentencing counsel. (Id.). She testified that she
did not bring those e-mails with her to Court for the hearing. (Id. at 37).
Movant testified that all the information concerning the ten billion euro transaction, as
well as documents proving she was not involved in fabricating the fraudulent Deed Agreement,
was located on a hard drive and memory stick, which in turn was located in a safety deposit box
in the name of Lee Chang Trust. (Id. at 49-50). Movant testified that Wilson lied to the
probation officer when he denied knowing her and that she had spoken with him many times
because she was one of his clients. (Id. at 38).
The Court then directed some clarifying questions to Movant regarding her e-mail
communications about the transaction and with Wilson as follows:
THE COURT: Okay. And all of these e-mails, all of these
communications were on a hard drive, or a thumb drive?
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THE WITNESS: Were on my phone, you know, on my phone e-mail. It
was on device, or the e-mail on the computer, yes, your Honor.
THE COURT: And the hard drive is in a safe deposit box?
THE WITNESS: That’s not the same hard drive we are talking about, your
Honor. The hard drive –
THE COURT: Where are the records of any of these transactions?
THE WITNESS: On my computer.
THE COURT: Where is your computer?
THE WITNESS: It was back -- sent back in the summer with my children
back to Romania. This is four years ago, your Honor. I asked [sentencing
counsel].
THE COURT: So did you ever contact your children and say, “Get that to
[sentencing counsel]”.
THE WITNESS: Well –
THE COURT: Just answer my question, did you ever contact your
children and say, “Get the computer, bring it to [sentencing counsel]”.
THE WITNESS: Yes, your Honor, and there is a phone conversation as
well.
THE COURT: And to your knowledge, did they do that?
THE WITNESS: No, because [sentencing counsel] –
THE COURT: Okay. Do you know where the computer is now?
THE WITNESS: This summer, they went with the kids back to Romania.
THE COURT: Why wouldn’t you have that here today?
THE WITNESS: If I knew, I would have. I could probably have someone
bring it. I do not know.
THE COURT: You have known you were going to be here today for a
long time; isn’t that correct?

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THE WITNESS: You are correct, but I don’t know that I need to have it.
THE COURT: Okay. . . .
(Id. at 68-70).
b. Plea counsel’s testimony
Plea counsel testified that he entered his appearance on behalf of Movant on March 22,
2013. (Evidentiary Hearing Transcript, Vol. 1, Doc. No. 71, at 11). Plea counsel further testified
that Movant advised him she would be able to obtain proof of future financial compensation
totaling several million dollars as a result of a business transaction that she brokered. (Id. at 13).
He promptly requested a continuance of Movant’s sentencing to allow the transaction to
conclude because an extraordinary restitution of this kind could be the basis for a downward
variance. (Id.).
Plea counsel testified that he subsequently participated in a meeting on February 11,
2014, with the Government, the probation officer, and the undersigned to discuss the financial
transaction. (Id. at 16-17). The main topic of discussion was the Deed Agreement, which
Movant had provided to the probation officer via e-mail. (Id. at 18). Plea counsel recalled
seeing the Deed Agreement for the first time during that meeting, although he testified that he
may have received a copy of the agreement via e-mail prior to that; he simply had no
recollection. (Id. at 20). He had no recollection of any conversation with Movant in which he
did or did not advise her to provide the Deed Agreement to the probation officer, and he did not
have any reason to believe at that time that Movant had fabricated the document. (Id. at 23).
However, plea counsel testified that upon review of the document, it was clear that it was
fraudulent due to various typographical errors and a number of other discernable inaccuracies.
(Id.).

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Plea counsel acknowledged that in his motion to withdraw as counsel, he suggested that
he did not advise Movant to send the document to the probation officer; however, he did not
recall any such conversation. (Id. at 25). Plea counsel testified that if he had seen the document
before the meeting on February 11, 2014, it would have been within an hour of the meeting. (Id.
at 27).
c. Probation officer’s testimony
The probation officer testified regarding her investigation into Movant’s background,
including her finances. On February 10, 2014, Movant called the probation officer and informed
her that she could provide the probation officer with proof of a transaction worth a large amount
of money from which she could pay restitution. (Id. at 79). On February 11, 2014, the probation
officer received an e-mail from Movant with the Deed Agreement attached. (Id. at 79-81). She
received a copy of the Deed Agreement from plea counsel about 15 to 20 minutes later, and he
highlighted the fact that that the document listed Movant as a beneficiary. (Id. at 86). The
probation officer testified that the Deed Agreement appeared to be an inauthentic document
because the page numbering was unusual, the font was not uniform throughout the document,
and the name of one of the banks was misspelled. (Id. at 96). The fraudulent nature of the Deed
Agreement was confirmed upon subsequent investigation, which revealed that Deutsche Bank
was unaware of the transaction and the paymaster did not know Movant. (Id. at 100-101).
d. Sentencing counsel’s testimony
Sentencing counsel testified that he was retained to represent Movant after plea counsel
withdrew. (Id. at 105). He testified that Movant asked him to investigate the Deed Agreement.
(Id.).

She also provided him with an e-mail chain between herself and Wilson, which

purportedly proved that they had a professional relationship. (Id.). However, sentencing counsel

11

testified that upon closer inspection of the e-mail chain, the e-mails appeared forged, citing
inconsistencies in the e-mail chain and timing errors. (Id. at 106-07). Sentencing counsel
testified that other than looking at the Deed Agreement, which he believed was fraudulent on its
face, and confirming the obvious inconsistencies contained therein with the probation office, he
did not perform any additional investigation into the Deed Agreement. (Id. at 131).
Sentencing counsel asked Movant to provide him with the login information and
passwords to e-mail accounts that Movant claimed would exonerate her. (Id. at 109). He
obtained the information from Movant’s daughter, but was unable to access the account due to
two-factor authentication requirements, which required Movant’s phone. (Id.). Despite attempts
to obtain the authentication code from Movant’s daughter and friend, who purportedly had the
phone, he was never given the code. (Id.). Sentencing counsel testified that Movant had also
provided him with various leads and contacts to investigate.

(Id. at 110).

However, the

information was either unhelpful or sentencing counsel was unable to contact the individual or
verify the exonerating information. (Id.).
Sentencing counsel testified that he requested that the hard drive containing information
about the transaction be sent to him so that he could have it forensically imaged, but was
informed that the hard drive was located in a safety deposit box that only Movant could access.
(Id.). Sentencing counsel was provided sound files that purported to be recorded conference
calls over Skype regarding the transaction. (Id. at 112). However, sentencing counsel testified
that the calls were “textbook wire fraud calls” in which there were “multiple people on the line,
including [Movant]” who were “throwing around meaningless jargon.” (Id. at 113).
After his investigation, sentencing counsel concluded that the Government would be able
to prove the allegations in the Revised PSR, and he believed Movant would be lucky if she did

12

not get an enhancement for abuse of a position of trust or “for sophisticated means.” (Id. at 115).
He was concerned that such enhancements might be added at a later time, and he communicated
these concerns when he discussed with Movant the benefits of withdrawing the objections filed
to the Revised PSR. (Id.).
After Movant’s sentencing, sentencing counsel testified that he had counseled Movant
that she had not waived sentencing issues by virtue of the plea agreement because her sentence
was outside of the range within the original plea agreement; however, because she had come to
an agreement with the Government about the appropriate sentence and guideline calculation, any
appeal would have a small likelihood of success. (Id. at 119). Sentencing counsel also discussed
the possibility of a habeas motion with Movant because she seemed interested in filing such a
motion against plea counsel. (Id. at 120).
DISCUSSION
The Sixth Amendment affords a criminal defendant the right to effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A Section 2255 movant
asserting ineffective assistance of counsel, however, “faces a heavy burden.” United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To prevail on such a claim, the movant must first
show that counsel’s performance “fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. Movant must show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Anderson v. United States, 393 F.3d 749, 753 (8th Cir. 2005). Review of
counsel’s performance by the Court is “highly deferential,” and the Court presumes “counsel's
conduct falls within the wide range of reasonable professional assistance.”

Id. (quoting

Strickland, 466 U.S. at 689). To overcome this presumption, a movant must prove that, “in light

13

of all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. The Court “must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct.” Id.
The movant must then establish prejudice by showing 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. When determining if prejudice exists, the court “must consider
the totality of the evidence before the judge or jury.” Id. at 695.
Ground One
Movant first argues that plea counsel was ineffective for failing to review the Deed
Agreement before directing her to provide it to the probation officer. Plea counsel testified that
he did not recall whether he directed Movant to forward the Deed Agreement to the probation
officer on February 11, 2014, although his motion to withdraw strongly implies that he did not
do so. Specifically, the motion to withdraw contends that plea counsel believed Movant was
experiencing psychological difficulties, citing her decision to personally send the probation
officer documents “that have jeopardized the guideline calculations estimated in her plea
agreement and that have raised a contested issue at sentencing.” (United States v. Spiridon, 4:13CR-00101-JAR-1, Doc. No. 67 at ¶ 4). Movant, on the other hand, testified that she had no
knowledge of the fraudulent nature of the Deed Agreement, and she believes that plea counsel
should have reviewed it for authenticity. However, the Court, after having heard her testimony
and having had the opportunity to observe her, finds that Movant’s account is not credible.

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“In assessing the credibility of witnesses, the court properly may consider variations in
demeanor and tone of voice, as well as documents and objective evidence that may contradict a
witness’ testimony or reveal inconsistencies. Additional considerations may include the witness’
motive to lie and the specificity of a witness’ statements.” Jackson v. United States, No. 5:07CR-110-FL-1, 2014 WL 7149635, at *4 (E.D.N.C. Dec. 15, 2014) (citations omitted). Here,
Movant has exhibited a pattern of deceptive behavior, and her insistence that she had no
knowledge of the fraudulent nature of the Deed Agreement is refuted by testimony and evidence
from other witnesses. In the course of its investigation into the Deed Agreement, the probation
officer spoke with some of the parties listed on the Deed Agreement. The representatives of
Deutche Bank had no knowledge of the transaction valued at ten billion euros and identified
specific portions of the Deed Agreement that exhibited irregular entries. Wilson, the purported
paymaster on the Deed Agreement, had no knowledge of its existence and denied any knowledge
of Movant, even though she claimed she was one of his clients.
Further, sentencing counsel’s testimony highlights Movant’s lack of truthfulness.
Movant testified that she provided sentencing counsel with information he would need to access
her e-mail accounts, and sentencing counsel confirmed that he received this information.
However, he was unable to obtain the necessary authentication to access the accounts, and
Movant never provided sentencing counsel with any details about the Deed Agreement or
contact information for any parties involved in the transaction.

Moreover, she provided

sentencing counsel with e-mails between herself and Wilson, which sentencing counsel believed
had been altered. Movant also provided sentencing counsel with a recorded conference call that
sentencing counsel characterized as “textbook wire fraud calls.” Even the Court asked Movant
where her computer was located (she had shipped it to Romania) and why she had not brought

15

the allegedly exonerating evidence with her to Court, for which she had no answer. This pattern
of deceit renders her testimony incredible.
Thus, Movant’s contention that plea counsel was ineffective for his failure to prevent her
from submitting a document she knows to be fraudulent fails. To hold otherwise would be a
perversion of the purpose behind an ineffective assistance of counsel claim, as it would impose
an affirmative duty on a defense attorney to prevent his client from engaging in unlawful
conduct, even where the attorney has no reason to believe his client was lying or submitting
forged documentation.
Ground Two
Movant next contends that sentencing counsel was ineffective for failing to investigate
the Deed Agreement. The record directly refutes her assertion, as it demonstrates that sentencing
counsel diligently attempted to investigate Movant’s claims of innocence, following each lead
provided by Movant. Sentencing counsel credibly testified that he tried to access Movant’s email accounts and obtain her hard drive for forensic imaging. He attempted to determine the
contact information of individuals with whom Movant indicated she had business dealings. All
of these leads were too vague or insubstantial to fully investigate.

Furthermore, Movant

provided sentencing counsel with recordings that he testified were clearly fraudulent, and she
was evasive regarding a means by which sentencing counsel could obtain a hard drive
purportedly containing exonerating information. Here, sentencing counsel made dutiful attempts
to investigate facts supporting Movant’s case, and his inability to find nonexistent evidence
cannot be held against him. Movant’s claim thus fails.

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Ground Three
Movant next claims that sentencing counsel was ineffective because he advised her to
concede that the Deed Agreement was forged in exchange for the Government’s agreement that
the total loss was less than $2.5 million. She maintains that if sentencing counsel had done an
adequate investigation into the Deed Agreement, “there would have been no reason for him to
advise [Movant] to concede that the Deed Agreement was forged.” (Doc. No. 74 at 27).
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–91. “In other
words, counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Id. As indicated above, sentencing counsel
did conduct a reasonable investigation, and the Court does not find credible Movant’s testimony
that she was unaware of the fraudulent nature of the Deed Agreement. Moreover, Movant
concedes that she received a benefit from withdrawing her objections: her offense level in the
Revised PSR was 29 with a guideline range of punishment of 87 - 108 months’ imprisonment,
and her offense level in the Final PSR was 27, with a guideline range of 70-87 months’
imprisonment. (Doc. No. 74 at 27).
Sentencing counsel testified that based on Movant’s conduct after pleading guilty, the
Government was no longer bound to its prior sentencing recommendation and could request any
sentence that was supported by the facts. (Evidentiary Hearing Transcript, Doc. No. 72, at 118).
Based on Movant’s conduct, sentencing counsel believed the Government could have moved for
several additional enhancements. Therefore, when he was negotiating with the Government, he

17

believed it was beneficial to Movant to withdraw her objections to the Revised PSR to avoid
additional enhancements. This conduct was reasonable in light of the particular facts of the case,
viewed at the time of counsel’s conduct. Movant’s claim fails.
Ground Four
In her fourth ground for ineffective assistance of counsel, Movant argues that sentencing
counsel provided her with incorrect information about her ability to file an appeal. “[A]n
attorney’s failure to file a notice of appeal after being instructed to do so by his client constitutes
ineffective assistance entitling [a] petitioner to section 2255 relief, no inquiry into prejudice or
likely success on appeal being necessary.” Walking Eagle v. United States, 742 F.3d 1079, 1082
(8th Cir. 2014) (citation omitted). However, for such a claim to succeed, a movant “must show
that [s]he manifestly instructed [her] counsel to file an appeal.” Id. “A bare assertion by the
petitioner that [s]he made a request is not by itself sufficient to support a grant of relief, if
evidence that the fact-finder finds to be more credible indicates the contrary proposition.” Id.
“If the defendant did not clearly request or instruct [her] trial attorney to appeal, . . . the
court considering a claim of ineffective assistance must then determine whether counsel
consulted with the defendant about an appeal and, if not, whether the failure to consult was
unreasonable.” Parsons v. United States, 505 F.3d 797, 798 (8th Cir. 2007).

“Counsel has a

constitutionally imposed duty to consult when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated to counsel that [s]he was
interested in appealing.” Id. (citations omitted).
Here, the Court credits sentencing counsel’s testimony over that of Movant. Sentencing
counsel testified that he consulted with Movant about her right to appeal and explained “what the

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likely scenarios would be.” (Evidentiary Hearing Transcript Vol. 2, Doc. No. 72, at 120).
Sentencing counsel noted Movant’s interest in filing a habeas motion relating to plea counsel’s
representation, and sentencing counsel advised her that her habeas motion could not be filed until
she completed her direct appeal.
Based on the record as a whole, including the record at the plea and sentencing hearings
and the Court’s observation and evaluation of the demeanor of Movant at the evidentiary
hearing, the Court does not find credible Movant’s testimony that she did not understand her
right to appeal. Movant’s testimony is also contradicted by her representations in the signed
Notice of Compliance, which sets forth such waiver in plain and simple language. Movant’s
claim thus fails.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movant Daniela Spiridon’s motions filed under 28
U.S.C. § 2255 to vacate, set aside, or correct her sentence are DENIED. (Doc. Nos. 1, 39).
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a federal
constitutional right as required by 28 U.S.C. § 2253(c)(2).
A separate Judgment shall accompany this Memorandum and Order.
Dated this 30th day of April, 2018.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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