Dougherty v. USA

Filing 35

ORDER and OPINION denying Motion for Postconviction Relief and Declining to issue Certificate of Appealability. ORDER MAILED REGULAR MAIL TO PRO SE MOVANT. Signed on 07/24/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KRISTEN L. DOUGHERTY,

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Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 12-0143-CV-W-ODS
Crim. No. 09-00143-04-CR-W-BCW

ORDER AND OPINION DENYING MOTION FOR POSTCONVICTION RELIEF AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
I. BACKGROUND1

Movant and more than ten other individuals were indicted on four counts of a
143-count Superseding Indictment. Movant was charged with the following crimes:
Count 1

racketeering in violation of 18 U.S.C. § 1962(c)

Count 2

conspiracy to engage in racketeering in violation of 18 U.S.C. § 1962(d)

Count 98

money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i)

Count 120

wire fraud, in violation of 18 U.S.C. § 1343

Generally speaking, the Superseding Indictment charged the criminal enterprise
involved the establishment of companies employing foreign nationals as laborers. The
companies supplied these laborers to clients in the restaurant, hotel, casino, and
construction industries. The foreign nationals were induced to enter the country illegally
or to overstay their visas. Additional facts about the crimes will be set forth as they
become relevant to Movant’s allegations.
The jury found Movant guilty of the crimes charged in Counts 1, 2, and 120;
Count 98 was dismissed before trial. The Sentencing Guidelines recommended a

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There is no need for a hearing in this matter because there are no relevant
factual disputes to resolve. The issues raised can be disposed of based on the Record
developed at trial, the contents of Movant’s arguments, and the materials he has
submitted for consideration.

sentence of 87 to 108 months, but the Court varied from the recommendation and
sentenced Movant to sixty months imprisonment on each count of conviction, with the
sentences to be served concurrently. Movant did not appeal.

II. DISCUSSION

Most of Movant’s claims assert ineffective assistance of trial counsel. A claim of
ineffective assistance of counsel is governed by the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). “This standard requires [the applicant] to show that
his ‘trial counsel’s performance was so deficient as to fall below an objective standard of
reasonable competence, and that the deficient performance prejudiced his defense.’”
Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995), cert. denied, 517 U.S. 1214 (1996)
(quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)). This analysis
contains two components: a performance prong and a prejudice prong.
Under the performance prong, the court must apply an objective standard
and "determine whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally competent
assistance," Strickland, 466 U.S. at 690, while at the same time refraining
from engaging in hindsight or second-guessing of trial counsel's strategic
decisions. Id. at 689. Assuming the performance was deficient, the
prejudice prong "requires proof 'that there is a reasonable probability that,
but for a counsel's unprofessional errors, the result of the proceeding
would have been different.'" Lawrence, 961 F.2d at 115 (quoting
Strickland, 466 U.S. at 694).
Id. Failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713
(8th Cir. 1997) (no need to “reach the performance prong if we determine that the
defendant suffered no prejudice from the alleged ineffectiveness”); see also DeRoo v.
United States, 223 F.3d 919, 925 (8th Cir. 2000).

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A. Flawed Advice Regarding Appeal

Movant contends his attorney provided flawed advice that affected his decision
not to pursue an appeal. For support, he has provided e-mail communications between
himself and his attorney. The Government has supplied additional e-mail
communications between Movant and counsel. The e-mails, combined with the
temporal context, demonstrate Movant is not entitled to relief.
The trial took place in October 2010, with the jury returning its verdicts on
October 28. The preliminary Presentence Investigation Report was prepared on March
21, 2011, and the final report was prepared on April 13, 2011. The sentencing hearing
took place on April 27.
A series of e-mails from early May 2011 – after the sentencing – addressed the
issue of an appeal. Among the matters addressed in evaluating the wisdom of
appealing were (1) the prospects for success, (2) the risk that the Government might
cross-appeal the sentence, (3) the fact that Movant had been named a target of
investigations in the Eastern District of Missouri and that an appeal might heighten the
possibility of being indicted, and (4) the possibility that Movant might face resentencing
in front of a different judge. Counsel recommended against an appeal, but made clear
that he would file a Notice of Appeal if Movant desired. As noted earlier, Movant
eventually elected to eschew an appeal.
Movant does not contend that anything in these e-mails, or anything said
following sentencing, was incorrect or otherwise flawed. Instead, he relies on an excerpt
from an e-mail from February 2011 that is part of an exchange addressing Movant’s
arrangements for his house while he is in prison (as it was anticipated that Movant
would be given a custodial sentence). In the excerpt, counsel discusses the fact that the
Superseding Indictment included forfeiture counts that might threaten the various bank
accounts and the equity in his house, but that the forfeiture count would be addressed at
sentencing. As it turns out, no forfeiture was ordered – but, on August 23, 2011, the
Government instituted a civil forfeiture proceeding targeting the house. The suit was
dismissed without prejudice on November 28, 2011, at the Government’s request.
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Movant claims that counsel’s failure to tell him that the Government could file a
civil forfeiture proceeding was deficient performance, and that if he had known the
Government could file a civil forfeiture proceeding he would have appealed his
conviction. As he frames his argument in his Reply Suggestions, Movant “was led to
believe that his business with the government regarding this case had concluded
(including collateral consequences).” He also claims that his conviction has had
additional collateral consequences, including a prohibition on him from doing business
with the Government.
The Court rejects Movant’s claims for two reasons. First, as a factual matter, the
Record does not suggest these considerations were important to Movant. In discussing
the wisdom of an appeal, there are no discussions, questions from Movant, or
statements by counsel regarding the prospect of a civil forfeiture or other “collateral
consequences.” The discussion about criminal forfeiture does not appear in the context
of considering an appeal. Moreover, that discussion does not suggest, predict, or
promise that all matters between Movant and the Government will be resolved at
sentencing (which had not yet occurred). The Court does not believe counsel’s
statements (or omissions) played a part in Movant’s decision not to appeal. Second, as
a legal matter, the consequences Movant complains of are speculative, collateral, and
attenuated. Effective counsel cannot be expected to inform a defendant of every
conceivable consequence of a conviction. Cf. Padilla v. Kentucky, 130 S. Ct. 1473,
1487-88 (2010) (Alito, J., concurring).2

B. Failure to Object to Application of 8 U.S.C. § 1324(a)(1)

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In Padilla, the Supreme Court addressed whether effective counsel should
discuss the possibility of deportation as a consequence for a guilty plea, but the
consequences Movant has described do not have a “close connection to the criminal
process” and are not otherwise “unique” in the same manner as deportation. 130 S. Ct.
at 1481, 1482. This does not mean effective counsel can supply incorrect advice (which
the Court holds did not happen here); it just means there is no Sixth Amendment
requirement that counsel describe every possible consequence of a decision.
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One of the racketeering acts alleged in support of the conspiracy – Racketeering
Act 16 – alleged Movant and others encouraged an alien (Alp Aktog) to remain in the
United States in violation of law in prohibition of 8 U.S.C. § 1324(a)(1)(A)(iv). This
statute makes it unlawful to “encourage[ ] or induce[ ] an alient to come to, enter, or
reside in the United States, knowing or in reckless disregard of the fact that such coming
to, entry, or residence is or will be in violation of law.” Movant argues he was actually
innocent of this predicate offense because Aktog was not in the country for religious
purposes. Movant’s argument is rejected because it rests on a misreading of 8 U.S.C. §
1324(a)(1)(C).
That statute provides an affirmative defense that can be asserted by a defendant:
it does not define the crime. More importantly, an understanding of the statute requires
one to carefully adhere to the punctuation Congress employed. Based on the
placement of commas, section 1324(a)(1)(C) declares that it is not a violation of
clauses (ii) or (iii) of subparagraph (A), or
of clause (iv) of subparagraph A except where a person encourages
or induces an alien to come to or enter the United States
for a religious denomination to encourage, invite, call, allow, or enable an alien
present in the United States to perform work as a minister or missionary.3
Movant interprets section 1324(a)(1)(C) is establishing that the offense in
1324(a)(1)(A)(iv) does not occur unless the alien is induced to enter to engage in
religious activity – but this is not the correct reading of the statute. Cf. United States v.
South Carolina, 840 F. Supp. 2d 898 (D.S.C. 2011). Movant did not avail himself of this
defense. Had he done so, he would have been required to prove the religious exception
applied, which would have been impossible on this Record. Regardless, the
Government was not required to prove that section 1324(a)(1)(C) does not apply.

C. Failure to Interview Alp Aktog

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Surplusage has been removed to enhance understanding.
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As mentioned in the previous section, one of the predicate acts involved Plaintiff
encouraging Alp Aktog to reside or remain in the United States. Movant contends his
attorney was ineffective for failing to interview Aktog. This claim is rejected for three
reasons.
First, Aktog visa was not extended, and he returned to Turkey on August 3, 2009.
This was approximately two and a half months after trial counsel was appointed to
represent Movant. While interviewing Aktog before he left the country was not
impossible, the fact is that this was an extremely complicated case, the amount of
investigative material generated by the Government and to be reviewed by counsel was
voluminous, and counsel would have had little time to ascertain the need to interview
Aktog (assuming such a need existed).
Second, there is no indication as to what Aktog would have said at trial (beyond
Movant’s speculation). It is therefore impossible to find a reasonable probability that the
outcome of the proceedings would have been different and, hence, no basis for
concluding Movant was prejudiced by counsel’s failure to preserve Aktog’s testimony for
use at trial. E.g., United States v. Williams, 562 F.3d 938, 942 (8th Cir. 2009); Sanders
v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989).
Third, even if Aktog would have testified in the manner Movant predicts, the
testimony would not have created a reasonable probability of acquittal. Movant asserts
Aktog would have testified that he was “actively seeking employment, legal or illegal.”
Reply Suggestions at 7. This testimony would not have disproved the Government’s
accusation that Movant encouraged Aktog to remain in the country (as set forth in
Instruction No. 25): Aktog’s pre-existing desire not inconsistent with a finding that
Movant encouraged him by providing the actual means or arrangements to do so.

D. Failure to Investigate the Crime of Wire Fraud

While this argument’s title is couched in terms of ineffective assistance of
counsel, the substance of Movant’s argument is that he was innocent of the crime
charged and the evidence does not support a conviction. The Court will not recount the
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evidence or Movant’s arguments because the substance of this claim is not cognizable
in a postconviction proceeding. The issues Movant has raised should have been raised
on direct appeal: having failed to do so, he cannot use a postconviction proceeding as a
substitute for his foregone opportunity to appeal. E.g., Auman v. United States, 67 F.3d
157, 160-61 (8th Cir. 1995).

E. Withdrawn by Movant

Movant’s fifth claim for relief was withdrawn by Movant. See Movant’s Motion to
Take Judicial Notice (Doc. # 30); Movant’s Reply Suggestions at 15. The claim is
dismissed without further discussion.

F. “Failing to Defend Against an Invalid Government Theory”

Returning to the racketeering act involving Alp Aktog discussed in subsections (B)
and (C), above, Movant argues his attorney was ineffective for failing to argue that Aktog
was already in the country illegally so Movant could not be criminally responsible for
causing him to come to the United States. Counsel was not ineffective because the
argument Movant posits misapprehends the law. At a minimum, Movant’s actions
encouraged Aktog to “reside in the United States, knowing or in reckless disregard of
the fact that such . . . residence is or will be in violation of the law.” 8 U.S.C. §
1324(a)(1)(A)(iv). Indeed, this is the theory that Instruction No. 25 embodies.

G. Withdrawn by Movant

Movant’s seventh claim for relief was withdrawn by Movant. See Movant’s
Motion to Take Judicial Notice (Doc. # 30); Movant’s Reply Suggestions at 17. The
claim is dismissed without further discussion.
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H. Erroneous Transcripts

Movant contends the Trial Transcript is erroneous and has been “doctored.” By
way of background, the Court notes that in the criminal case Movant requested a copy
of audio recordings used by the Court Reporter, but the Court held they were not
available for production because they were the Court Reporter’s property and did not
have to be produced under either the Constitution or statute. Movant was provided an
opportunity to review the Court Reporter’s notes. Specifically, arrangements were made
to permit his mother to review them, but that offer has never been acted upon. The
Court also held the sole error identified by Movant at that time would not justify relief.
This sole error was reiterated as the basis for Movant’s seventh ground for relief, which
he has now abandoned. Beyond his bare (and fantastic) assertion that his attorney
actually tried to convince the jury that Movant was guilty, there is nothing to suggest that
it actually happened. The entire transcript is a testament to his attorney’s efforts on his
behalf. Movant cannot create a factual issue about supposed omissions by claiming
things were said and then rely on their absence from the Transcript to prove his point.
Nonetheless, Movant persists in his effort to rewrite the Transcript through
innuendo and obtain relief based on his revisions. He now presents an affidavit from his
sister, who avers that the prosecutor made certain statements during closing but those
statements are not in the Transcript. In truth, the substance of the testimony she
describes appears in the Transcript. See Transcript at 793, 803, 806.
Movant has not made a showing that there are errors in the Trial Transcript.
There is no basis for relief in this claim.

I. Withdrawn by Movant

Movant’s ninth claim for relief was withdrawn by Movant. See Movant’s Motion to
Take Judicial Notice (Doc. # 30); Movant’s Reply Suggestions at 22. The claim is
dismissed without further discussion.

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J. Failure to Object to Response to Jury’s Note

During deliberations, the jury sent out two notes. At issue in this claim is the
second note, which asked for certain exhibits and clarification of Instruction No. 25.
Movant’s complaint with the Court’s answer and counsel’s conduct is rather nonspecific. He seems to be alleging that he was somehow prejudiced simply because the
jury was confused and asked for further guidance, which – even if true – would not
entitle him to relief. The practice of permitting a jury to seek clarification through notes is
so well-established that if the mere use of the procedure entitled a defendant to a new
trial, few verdicts would stand. See United States v. Bartley, 855 F.2d 547, 551 (8th Cir.
1988) (describing standard for answering jury notes). Movant does not specify any error
or, more importantly, any failing on the part of counsel. Nothing in this allegation
justifies postconviction relief.

K. Withdrawn by Movant

Movant’s eleventh claim for relief was withdrawn by Movant. See Movant’s
Motion to Take Judicial Notice (Doc. # 30); Movant’s Reply Suggestions at 23. The
claim is dismissed without further discussion.

L. Failure to Object to Amounts of Loss and Number of Victims

Movant contends the amount of loss was improperly calculated. He concedes
that his attorney objected to the loss calculation, but argues that his attorney failed to
assert potentially viable objections. In particular, Movant argues the loss calculation
included not only losses suffered by the foreign workers but also losses suffered by the
companies that employed them. He contends these figures were not proved at trial, but
ignores the fact that they were proved at the sentencing hearing. Movant also argues
these entities were actually beneficiaries of the illegal conduct, but this novel argument

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ignores the factual record. Movant has not identified an argument that would have likely
affected the outcome, so Strickland’s prejudice prong has not been satisfied.

III. DENIAL OF CERTIFICATE OF APPEALABILITY

In order to appeal, Petitioner must first obtain a Certificate of Appealability. The
Court customarily issues an Order addressing the Certificate of Appealability
contemporaneously with the order on the Petition because the issues are fresh in the
Court’s mind and efficiency is promoted. See Rule 11(b), Rules Governing Section
2254/2255 Proceedings. 28 U.S.C. § 2253(c)(2) provides that a Certificate of
Appealability should be granted “only if the applicant has made a substantial showing of
the denial of a constitutional right.” This requires Petitioner to demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quotation omitted).
None of Movant’s arguments deserve further consideration. His arguments
depend on clear misunderstandings of the law or on factual assertions that defy belief.
Accordingly, a Certificate of Appealability is denied.

IV. CONCLUSION
The Motion for Postconviction Relief is denied. A Certificate of Appealability will
not be issued.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: July 24, 2012

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