Olson v. United States of America
Filing
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///ORDER RE 1 Motion to Vacate Sentence 2255- Olson's motion for relief under 28 U.S.C. § 2255 (doc. no. 1) is denied. Because Olson has not made a substantial showing of the denial of a constitutional right, the court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Rule 11(a), Rules Governing Section 2255 Proceedings. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Landya B. McCafferty.(js)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Aaron E. Olson
v.
Civil No. 18-cv-478-LM
Opinion No. 2018 DNH 203
United States of America
O R D E R
On March 9, 2015, Aaron Olson pleaded guilty to four counts
of attempted tax evasion in violation of 26 U.S.C. § 7201, and
on April 1, 2016, this court sentenced him to serve 60 months in
prison.
See United States v. Olson, 14-cr-0048-LM (D.N.H. April
1, 2016).
He appealed that sentence and the First Circuit
affirmed.
See United States v. Olson, 867 F.3d 224 (1st Cir.
2017).
He now moves pursuant to 28 U.S.C. § 2255 to vacate his
sentence, alleging his counsel was ineffective at his sentencing
hearing.
For the reasons that follow, the court denies Olson’s
motion.
Standard of Review
Under § 2255, a federal prisoner may ask the court to
vacate, set aside, or correct a sentence that “was imposed in
violation of the Constitution or laws of the United States.”
U.S.C. § 2255(a).
The burden of proof is on the petitioner.
Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015).
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Once a prisoner requests relief under § 2255 the district court
must grant an evidentiary hearing unless “the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.”
28 U.S.C. § 2255(b).
If
the district court does not hold an evidentiary hearing, the
allegations set forth in the petition are taken as true “unless
those allegations are merely conclusory, contradicted by the
record, or inherently incredible.”
Ellis v. United States, 313
F.3d 636, 641 (1st Cir. 2002).
Background
From 2007 through 2010, Olson owned businesses that
invested in commodity, stock and bond markets.
By 2010, Olson
had obtained approximately $27.8 million from investors, many of
whom were family and friends.
Unbeknownst to the investors,
Olson was not a licensed broker and his businesses were not
registered to trade in the state of New Hampshire.
Following an
investigation by the N.H. Bureau of Securities, Olson shut down
his business in New Hampshire, renamed it, and reopened it in
Massachusetts.
Olson stayed under the regulatory radar,
however, by running his newly named business out of his home in
New Hampshire, where he and the business remained unlicensed.
2
By 2011, many of Olson’s investments failed, and he was not
honest with his investors about his losses.
To mislead
investors about the true disposition of the funds they placed
with him, and to entice them to place more funds with him, Olson
created false earnings statements that showed significant
earnings on their investments.
Olson converted to his own use
approximately $2.6 million of the funds invested with him.
He
also created a Ponzi scheme whereby he would disguise gains made
by one investor as “earnings” to another investor, playing a
shell game with his investors’ money to avoid their suspicion
and scrutiny.
In addition to his securities violations, Olson
attempted to commit tax fraud with respect to income from his
investment companies.
Despite his best efforts to conceal his
fraud, Olson’s clients eventually became suspicious and
confronted him.
In 2012, Olson self-reported and made a full
confession to the government.
On April 14, 2014, the government filed an information
charging Olson with four counts of attempted tax fraud for each
of the years 2007 through 2010.
On March 9, 2015, Olson pleaded
guilty to all four counts in a plea agreement brought pursuant
to Fed. R. Crim. P. 11(c)(1)(C).1
In his plea agreement, Olson
Almost a full year passed between the filing of the charges
(April 2014) and Olson’s “c-plea” (March 2015). During that
time, Olson had entered into an earlier plea agreement while
represented by his original counsel. Also during that time,
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agreed to a stipulated range of 42 to 60 months and to pay
restitution to all the victims of his investment-related fraud.
After his March 9 plea hearing, the court scheduled Olson’s
sentencing hearing for June 26, 2015.
By joint request of Olson
and the government, the court continued Olson’s sentencing
hearing numerous times throughout the next year.
During that
year, the court held four conferences with Counsel #2 and the
government.
At each conference, Counsel #2 successfully sought
a further continuance of the sentencing hearing to give Olson
more time to sell his family’s granite quarry and make a
substantial contribution toward restitution.
At these
conferences, Counsel #2 provided a detailed oral summary of
Olson’s ongoing efforts to sell the quarry.
At no time did the
government express doubts regarding the sincerity of Olson’s
efforts in this regard.
Eventually, the conferences came to an end and the court
scheduled the sentencing hearing for February 16, 2016.
Shortly
before that sentencing hearing, however, Olson retained new
counsel (“Counsel #3”) who filed a motion to continue the
Olson sought, and was granted, at least two continuances of his
sentencing hearing to permit him and the government time to
finalize the terms of a proposed restitution order. In October
2014, Olson retained new counsel (“Counsel #2”) and, with the
government’s assent moved to withdraw his original plea. The
court granted that motion. Counsel #2 negotiated the terms of
Olson’s c-plea.
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sentencing hearing so that he could review the voluminous
discovery records and get up-to-speed on the complex financial
issues underlying Olson’s fraud.
The court granted that motion,
and the sentencing hearing took place on April 1, 2016.
Despite
Olson’s good faith efforts, he was not able to sell his quarry
prior to his sentencing hearing.
At his sentencing hearing, Olson’s advisory sentencing
guideline range was 37 to 46 months, and the parties jointly
recommended a sentence of 42 months—the middle of the guideline
range and the low-end of the stipulated range.
The court
sentenced Olson to 60 months—an upward variance and the high end
of his stipulated range.
Following a restitution hearing on
October 31, 2016, where Olson was again represented by a newly
retained attorney, the court ordered restitution in the amount
of almost $23 million.
Discussion
Olson’s § 2255 claim is based on the alleged
ineffectiveness of Counsel #3 at Olson’s sentencing hearing.
When a § 2255 petition is based on ineffective assistance of
counsel, the petitioner “must demonstrate both: (1) that
‘counsel’s performance was deficient,’ meaning that ‘counsel
made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment’; and
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(2) ‘that the deficient performance prejudiced the defense.’”
United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Under the deficiency prong, the petitioner “must show that
counsel’s representation fell below an objective standard of
reasonableness.”
Strickland, 466 U.S. at 688.
There is a
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” and the petitioner
“must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks omitted).
Under the
prejudice prong, the petitioner “must show 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.
Failure to satisfy either the deficiency or
prejudice prong defeats an ineffective-assistance-of-counsel
claim.
Id. at 700.
Olson claims that Counsel #3 was ineffective for failing to
advocate for him at his sentencing hearing with respect to the
issue of remorse.
During the hearing, the court asked whether
there was evidence of Olson’s remorse during the lengthy twoyear time frame (2014-2016) that Olson remained out on bail
pending his sentencing hearing.
Olson claims that there were
numerous acts of remorse that he performed during that time
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frame that his counsel could have articulated for the court.
Olson claims that his counsel’s failure to prepare adequately
for the sentencing hearing rendered counsel unaware of these
acts of remorse and therefore ineffective.
Although Olson could
have detailed these acts of remorse orally for the court during
his allocution, Olson contends that he was too nervous to
provide the necessary detail.
Under the first prong of Strickland, Olson argues that his
counsel was deficient both for not knowing the details related
to Olson’s remorse and failing to articulate those details for
the court.
Under the second prong, Olson argues that—had
counsel not been deficient in this regard—the court would have
given Olson a less severe sentence.
Olson fails to carry his
burden on both prongs.
First, with respect to his deficiency argument, Olson fails
to rebut the “strong presumption” that his counsel’s performance
fell within the “wide range of professional assistance” of
counsel.
Strickland, 466 U.S. at 689.
Indeed, Olson’s
arguments fall well short of the mark.
One of the most
challenging tasks for a defense counsel at a sentencing hearing
is to argue in favor of a lighter sentence without in any way
appearing to minimize his client’s criminal conduct.
performed this task with skill.
Counsel #3
Although the court ultimately
found that a 60-month sentence was fair and just, there is
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simply no way the court could characterize Counsel #3’s advocacy
in favor of a 42-month sentence as deficient.
Counsel #3
brought numerous arguments in support of a 42-month sentence to
the attention of the court, including a Guidelines-based policy
argument regarding Olson’s cooperation.
And, although Counsel
#3 did not detail every act of Olson’s remorse related to the
quarry, he summarized Olson’s remorse during that time frame
(and before) in an effective and persuasive manner.
In short,
even assuming the truth of Olson’s allegations, the court finds
that the performance of Counsel #3 at Olson’s sentencing hearing
was more than adequate and certainly did not fall below any
objective standard of reasonableness.
Although Olson’s failure to meet the first prong of
Strickland is dispositive, the court will also address his
prejudice argument.
Like his deficiency claim, Olson’s
prejudice argument is unpersuasive.
Olson claims that, but for
his counsel’s failure to articulate his acts of remorse, he
would have received a lesser sentence.
Olson’s brief details
the missing evidence of remorse in 23 separate paragraphs.
See
doc. no 1-1 at 20-25 (Olson’s memorandum); doc. no. 1-2 (Olson’s
affidavit).
Even assuming that Counsel #3 had brought all of
that evidence to the attention of the court, Olson cannot show
that the result of his sentencing hearing would have been any
different.
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The vast majority of these separately described acts of
remorse concern Olson’s efforts to sell his quarry.
Olson’s
argument fails to recognize that the court was already aware of
acts of remorse related to attempts to sell his quarry.
Prior
to sentencing, the court held four conferences with Counsel #2
and the government and, at each, Counsel #2 provided the court
detailed updates about Olson’s ongoing efforts to sell his
quarry.
By the time of Olson’s sentencing hearing, therefore,
the court was well aware of Olson’s extensive efforts to sell
his quarry and use the profits to pay restitution to his
victims.
At the sentencing hearing, the court was interested in
hearing evidence of Olson’s remorse unrelated to the quarry
during the two-year time frame (2014-2016) that the court had
continued his sentencing hearing and permitted him to be
released on bail to try to sell his quarry.
The point of the
court’s inquiry was to learn something new about the nature of
Olson’s remorse.
Had Counsel #3 attempted at the sentencing
hearing to summarize details related to the attempted sale of
the quarry—as Olson argues he should have—such an attempt would
have been nonresponsive and unpersuasive.
Moreover, a large
portion of the evidence Olson faults Counsel #3 for not bringing
to the court’s attention occurred outside the relevant two-year
time frame.
Any reference to that evidence would have been
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nonresponsive.
Thus, the vast majority of the evidence that
Olson now contends Counsel #3 should have presented to the court
would have been either immaterial to the court’s decision or
nonresponsive to the court’s central inquiry.
Moreover, some of the remorse evidence Olson contends
Counsel #3 should have brought to the court’s attention would
have been aggravating rather than mitigating.
For example,
Olson contends that Counsel #3 should have alerted the court to
the fact that Olson “traded his Cadillac for a less expensive,
used Acura” to generate funds for the victims.2
Trading in one
luxury car for another typifies an attitude toward remorse that
Olson’s victims decried.
The two victims who testified at the
sentencing hearing addressed their concerns regarding Olson’s
lifestyle and lack of remorse.
One of the victims stated:
We all know it’s public information, the amount of
your taxes, . . . and this is just me, I’m going to
throw it out there, but you need at least 125,000,
150,000 a year to live. That’s a half a million to
$600,000 in the last four years. Every one of your
victims wonders: Where is the money? Did Aaron do a
full disclosure?
You’ve hired three high-priced lawyers, each of
whom has pushed your day of reckoning out. The many
hundreds of thousands of dollars, literally hundreds
of thousands, if not a million dollars, you’ve spent
on legal fees with our money. You’re defending
yourself. You just can’t make this stuff up.
2This
evidence is also nonresponsive because it occurred in
July 2012—before the relevant time frame.
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If you were genuinely contrite, you would have
served your time and come clean with all of your
victims. You would have sat us down and explained
everything. We can forgive.
As far as remorse, I haven’t seen -- you hide in
your house. You go out at night. You go out -- your
lifestyle has not changed. And rumor has it you
bought a new pickup.
. . .
You’re supposed to make an honest and real
disclosure of all your finances, and the big question
is how are you financing your attorneys, lifestyle.
You still live in that big opulent house in the hill.
So that's -- I mean, that’s a huge question for us.
Doc. no. 68 at 28-29, 31-32.
A second victim stated:
What really hurts us is that you’ve never come to
apologize for what you’ve done. Instead, we’ve watched
you sink our money into lawyers and other things while
many of us continue to scrape through what we have
earned or have left.
When you’ve done this, it appears that you are
not remorseful but enjoy the love of nice things more
than doing what’s right.
Id. at 21-22.
Finally, in one paragraph of his brief, Olson
describes having placed small amounts of his personal funds
into an account set aside for investors.
23-24.
Doc. no. 1-1 at
Although Olson does not specify a time frame for
this evidence of remorse, the court will assume it occurred
during the relevant time frame.
While this evidence would
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have been responsive, the court is not persuaded that it
would have made any difference in the court’s sentencing
decision.
See Scarpa v. Dubois, 38 F.3d 1, 8-9 (1st Cir.
1994) (holding that defendant alleging ineffective
assistance of counsel carries burden of persuasion on both
prongs of Strickland).
For all of these reasons, the court finds Olson’s
arguments under both prongs of Strickland unavailing.
Request for Evidentiary Hearing
Olson requests an evidentiary hearing in support of his §
2255 motion, but no hearing is necessary to dispose of this
case.
“[A] § 2255 motion may be denied without a hearing as to
those allegations which, if accepted as true, entitle the movant
to no relief . . . .”
United States v. McGill, 11 F.3d 223, 226
(1st Cir. 1993) (internal quotation omitted).
Olson is not
entitled to an evidentiary hearing as a matter of right;
instead, it is Olson’s burden to establish that a hearing is
necessary to decide his motion.
Id. at 225.
However, the
record and the pleadings, as well as this court’s familiarity
with this case, enable the court to decide Olson’s motion
without an evidentiary hearing.
As the court has explained,
Olson offers only allegations or facts that, even if true, would
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not entitle him to relief under § 2255.
Thus, the court denies
Olson’s request for an evidentiary hearing.
Conclusion
For the foregoing reasons, Olson’s motion for relief under
28 U.S.C. § 2255 (doc. no. 1) is denied.
Because Olson has not
made a substantial showing of the denial of a constitutional
right, the court declines to issue a certificate of
appealability.
See 28 U.S.C. § 2253(c)(2); Rule 11(a), Rules
Governing Section 2255 Proceedings.
The clerk of court shall
enter judgment accordingly and close the case.
SO ORDERED.
____________________________
Landya B. McCafferty
United States District Judge
October 15, 2018
cc: Counsel of Record
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