Brandon v. USA
Filing
28
MEMORANDUM OPINION AND ORDER: The Court has carefully considered all of the parties' arguments. To the extent they are not dealt with above, they are either moot or without merit. For the reasons explained above, the petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. The petition is therefore dismissed. Because the petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court declines t o issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The Clerk is directed to enter judgment dismissing the petition and closing this case. The Clerk is also directed to close all pending motions (Signed by Judge John G. Koeltl on 10/10/2011) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
DOUGLAS COLLIVER BRANDON
Petitioner,
09 Civ. 7720(JGK)
- against UNITED STATES OF AMERICA,
Defendant.
────────────────────────────────────
MEMORANDUM OPINION AND
ORDER
JOHN G. KOELTL, District Judge:
The petitioner, Douglas Colliver Brandon (“Brandon” or the
“petitioner”), appearing pro se, moves pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence.
He has also
filed applications for other relief such as change of venue.
I.
On June 26, 2003 Brandon was convicted by a jury of one
count of conspiracy to commit securities fraud and wire fraud in
violation of 18 U.S.C. § 371, two counts of securities fraud in
violation of 15 U.S.C. §§ 78j(b) and 78ff, and four counts of
wire fraud in violation of 18 U.S.C. §§ 1343 and 1346.
See
United States v. Rittweger, 524 F.3d 171, 176 (2d Cir. 2008)
(Sotomayor, J.), cert. denied, 129 S. Ct. 1391 (2009).
Brandon’s conviction stems from his participation in a
conspiracy to defraud customers of Credit Bancorp, Ltd. (CBL), a
1
financial services company for which Brandon served as an
“employee, attorney and agent.”
United States v. Rittweger, 259
F. Supp. 2d 275, 280 (S.D.N.Y. 2003) (reviewing in detail
indictment of Brandon and his co-conspirators).
According to
the superseding indictment, Brandon conspired with Thomas
Rittweger (“Rittweger”), CBL’s managing director for North
America, and Richard Blech (“Blech”), CBL’s president and chief
executive officer, among others, “to defraud CBL customers of at
least $210,000,000 by fraudulently inducing them to invest cash,
securities, and other assets in two CBL investment programs . .
.
in the expectation of receiving dividend payments and loans
on favorable terms,” when in fact “CBL was actually a Ponzi
scheme in which proceeds of investments in the programs were
paid to earlier investors to create the false impression that
the investments were profitable in order to induce more people
to invest with CBL.”
Id.
The indictment alleged that Brandon
and his co-conspirators made or caused others to make numerous
knowing misrepresentations during the duration of the scheme,
including distributing “written marketing materials concerning
CBL . . . . [that] contained numerous false representations.”
Id. 1
1
More specifically, the superseding indictment alleged that
“Rittweger, Brandon, Blech, and other co-conspirators knowingly
misrepresented to prospective CBL customers 1) that Brandon
2
Blech pleaded guilty to three of the thirteen counts of the
superseding indictment in February 2003.
Id. at 282.
At Brandon’s trial, the Government relied on documentary
evidence, including Trust Engagement letters signed by Brandon;
investor-victim testimony by three investors who described the
scheme from their perspective; and the testimony of Blech, who
implicated his co-conspirators.
See United States v. Rittweger,
No. 02 Cr. 122, 2003 WL 22290228, at *2-*5, *8-*11 (S.D.N.Y.
Oct. 6, 2003) (reviewing in detail the evidence against Brandon
and concluding that “the evidence against Brandon was very
powerful,” and was “more than sufficient to support the jury's
verdict against Brandon”), aff’d, 274 F. App’x. 78 (2d Cir.
2008) (summary order).
After the jury verdict, Brandon moved for a judgment of
acquittal pursuant to Fed. R. Crim. P. 29 based on the alleged
would act as a trustee on their behalf and would hold any assets
that they invested in a custodial account; 2) that neither CBL
nor Brandon would sell, margin, pledge as collateral or
otherwise encumber any assets invested by the customer without
authorization; and 3) that any assets invested would be returned
upon the customer's request, so long as the customer's debt
obligations were satisfied. The Indictment alleges that
Rittweger, Blech, Brandon and other co-conspirators fraudulently
induced approximately 80 customers to invest securities and
other assets worth $200,000,000 in the CBL Insured Credit
Facility through such misrepresentations.” Rittweger, 259 F.
Supp. 2d at at 281 (internal citations omitted).
3
insufficiency of the evidence, and for a new trial pursuant to
Fed. R. Crim. P. 33.
motions.
Id. at *11.
See id. at *1.
This Court denied both
In June 2005, Brandon was sentenced
principally to a term of 97 months’ imprisonment.
United States
v. Rittweger, 274 F. App’x. 78, 80 (2d Cir. 2008) (summary
order)
Brandon appealed his conviction to the Court of Appeals for
the Second Circuit, arguing, among other things, that this Court
erred in not granting a motion for severance of various counts,
and that the evidence was insufficient to support his
conviction.
See Rittweger, 524 F.3d at 176-77.
Brandon also
alleged that, in violation of its Brady obligations, the
Government had delayed producing to the defendant the grand jury
testimony of Virginia Allen (“Allen”), a by-then deceased coconspirator, and an FBI agent’s debriefing notes of interviews
with Allen.
See id. at 180.
The Court of Appeals affirmed
Brandon’s conviction; it rejected some arguments in a published
opinion and rejected others in a summary order.
Rittweger, 274 F. App’x. at 84.
Id. at 183;
The Court of Appeals found that
“th[e] evidence would allow a rational juror to find Brandon
guilty of the fraud and conspiracy.”
2
Id. at 81. 2
In February
While the appeal was pending, Rittweger again moved pursuant to
Rule 33 for a new trial based on purported new evidence. This
Court denied the motion and the denial was affirmed on appeal.
4
2009, the United States Supreme Court denied Brandon’s petition
for a writ of certiorari.
United States v. Rittweger, 129 S.
Ct. 1391 (2009)
In August 2009, Brandon filed the present motion in this
Court to vacate, set aside, or correct his sentence pursuant to
18 U.S.C. § 2255. 3
Brandon also filed a substantially similar
petition for habeas corpus in the Eastern District of Kentucky,
and that court dismissed that case in January 2011 for lack of
jurisdiction because Brandon had not established that his remedy
under § 2255 in this Court was inadequate or ineffective. See
Brandon v. Holland, No. 10 Civ. 117 (DLB), 2011 WL 87183, at *3
(E.D. Ky. Jan. 6, 2011).
Brandon makes two major substantive claims in this § 2255
motion.
First, in his initial motion, Brandon points primarily
to a complaint (the “Curacao Complaint”) filed in Curacao,
Netherlands Antilles, in December 2008 by an attorney claiming
to represent Credit Bancorp N.V., a Netherlands Antilles company
affiliated with CBL.
(See Pet. Ex. 1 (“Grounds”), at 1-2; Pet.
Ex. 2 (“Curacao Compl.”), at 1, 23).
The Curacao Complaint
See United States v. Rittweger, 2007 WL 1975490, at *1-*2
(S.D.N.Y. July 9, 2007), aff’d 309 F. App’x. 504, 505-506 (2d
Cir. 2009) (summary order).
3
The motion was received by the Pro Se Office on August 21,
2009, and filed with the Clerk on September 8, 2009.
5
attributes statements to Blech retracting or contradicting the
statements made in Blech’s guilty plea allocution and in his
trial testimony, and alleging, for example, that Blech was
“under coercion and threat” from the Government and “told by the
District Attorney [sic] what to say.”
(Curacao Compl. ¶ 3.8).
The Curacao Complaint also alleges that Blech “was promised a
considerably reduced sentence
under the mildest punishment
regime in a prison in California.”
(Curacao Compl. ¶ 3.5.)
Brandon argues that the Curacao Complaint undermines the
evidence against him at trial, particularly Blech’s trial
testimony, and otherwise raises questions about whether he
received a fair trial. Second, Brandon has filed supplemental
papers arguing that his conviction should be vacated in light of
the Supreme Court’s recent decision in Skilling v. United
States, 130 S. Ct. 2896 (2010).
II.
A.
Brandon’s first two grounds for his initial § 2255 motion
are based on the Curacao Complaint.
In Ground One, Brandon
argues that the Government violated its obligations under Brady
because the Government failed to disclose to the defense that
Blech was “coerced” into giving false testimony, and that
6
Blech’s guilty plea was the result of coercion and the promise
of a sentence reduction.
In Ground Two, Brandon alleges that
Blech’s trial testimony was false and that he Court should
examine the authenticity of all documents authenticated by Blech
in view of the statements attributed to Blech in the Curacao
Complaint.
“It is axiomatic that witness recantations ‘must be looked
upon with the utmost suspicion.’”
Haouari v. United States, 510
F.3d 350, 353 (2d Cir. 2007) (rejecting a successive § 2255
petition based on co-conspirator’s unsworn, uncorroborated
recantation letter) (internal citation omitted) (collecting
cases).
Indeed, suspicions are “even greater” when the
recanting witness is a co-conspirator who has already been
sentenced and who has obtained the benefit of a cooperation
agreement and has “nothing to lose by recanting.”
Id.
At the
very least, before a recantation statement may qualify as
competent evidence for habeas review, it must be in a sworn
affidavit, subject to the penalties for perjury.
Id. at 354;
see Salazar v. Espinoza, No. 11 Civ. 0247, 2011 WL 2946166, at
*2 (S.D.N.Y. July, 11, 2011).
Even if a petitioner presented an affidavit alleging
recantation, those allegations must be assessed in the context
of all the evidence to determine whether the petitioner has made
7
a sufficient showing to warrant an evidentiary hearing or
whether “the motion and the files and records conclusively show
that the prisoner is entitled to no relief.”
28 U.S.C. §
2255(b); see also Puglisi v. United States, 586 F.3d 209, 213
(2d Cir. 2009) (to warrant an evidentiary hearing on a claim of
ineffective assistance of counsel, the petitioner must establish
a “plausible” claim); United States v. Aiello, 814 F.2d 109, 113
(2d Cir. 1987) (“Airy generalities, conclusory assertions and
hearsay statements will not suffice because none of these would
be admissible evidence at a hearing.”); Florez v. United States,
No. 07 Civ. 4965, 2009 WL 2228121, at *11 (E.D.N.Y. July 24,
2009) (“An evidentiary hearing is necessary only where a
petitioner establishes a ‘plausible claim’ of perjury-one not
plainly disproved by the totality of evidence and that, if true,
would entitle him to collateral relief.”) (citation omitted).
In this case, the Curacao Complaint does not begin to
establish a basis for relief under § 2255, or to warrant an
evidentiary hearing.
The Curacao Complaint is not a sworn
affidavit by Blech.
It consists of hearsay statements by an
attorney for an affiliate of CBL that were made in a pleading
seeking to obtain relief for that company.
Moreover, the statements are entitled to even less weight
because they have been specifically repudiated by Blech.
8
The
Government brought the Curacao Complaint to the attention of the
Court in connection with the terms of Blech’s continued
supervised release.
In a letter to his attorney which he
authorized to be presented to the Court, Blech completely
disavowed the representations made on his behalf in the Curacao
Complaint with regard to his plea and trial testimony, telling
this Court that “ALL of my testimony that I gave at the criminal
trial and my statements made to the government, were truthful
then and they are truthful today,” and that “I gave my testimony
freely, voluntarily, and without coercion from the government.”
(April 20, 2009 Letter of Richard J. Blech, United States v.
Rittweger, 02 Cr. 122, Docket No. 285 at 3.)
Moreover, the
lawyer who signed the Curacao Complaint wrote to this Court that
the Curacao Complaint “in no way seeks to diminish, alter or
recant the factual findings of your Honor in regard to the
offenses committed by Richard J. Blech in his guilty plea.”
(April 27, 2009 Letter of Andre C. Small, United States v.
Rittweger, 02 Cr. 122, Docket No. 288 at 9.) 4
Furthermore, the conclusory, hearsay statements in the
Curacao Complaint would not be entitled to any credence, because
4
The Curacao Complaint does not actually appear to exculpate
Brandon. Rather, it blames him and Rittweger for CBL’s wrongful
acts, noting that “Rittweger and Brandon . . . after all, had
committed acts in violation of SEC rules.” Curacao Compl. ¶
3.4.
9
they are simple denials of the sworn testimony by Blech at his
plea allocution and in his sworn trial testimony.
At his plea
allocution, Blech affirmed, under oath, that he was pleading
guilty voluntarily and of his own free will, and affirmed to the
Court that he had not been offered any inducement, or been
threatened or forced to plead guilty or to enter into the plea
agreement.
(Feb. 6, 2003 Trial Tr., United States v. Rittweger,
02 Cr. 122, at 19, 26.)
Blech also swore that there were no
understandings with the Government other than those reflected in
the plea agreement.
(Id. at 19).
His trial testimony
implicating Brandon was, similarly, under oath.
Such “[s]olemn
declarations in open court carry a strong presumption of
verity.”
United States v. Rivas, 99 F.3d 401, 1995 WL 736547,
at *1 (2d Cir. 1995) (table) (quoting Blackledge v. Allison, 431
U.S. 63, 74 (1977)).
Finally, Brandon’s own involvement in the scheme was and
remains supported by clear documentary evidence, most obviously
the Trust Engagement letters which he signed that contained
false representations that he had control over the accounts into
which the securities would be placed, despite the fact that he
had no such control.
See Rittweger, 2003 WL 22290228, at *2-*5,
*8-*11.
10
Therefore, there is no viable claim that the § 2255 motion
should be granted on the ground that the Government did not
disclose to the defendant the alleged coerced guilty plea of
Blech.
There is no basis to conclude that the guilty plea was
anything but truthful, knowing and voluntary.
Similarly, there
is no basis for the second alleged ground for relief in the §
2255 motion, namely that Blech committed trial perjury.
Blech’s
trial testimony, and his authentication of documentary evidence
against Brandon at trial, remain unaffected by the Curacao
Complaint.
Brandon’s first and second asserted grounds for
relief lack merit and are denied.
B.
Brandon’s third asserted ground for relief relies on the
fact that the judgment of restitution against him was satisfied,
in part with the proceeds of an insurance policy which he “was
instrumental in obtaining” for the benefit of investors.
(Grounds at 2.)
Brandon argues that because the insurance
covered the loss, “there was no loss to the investors, and thus
there was no Ponzi scheme.”
(Grounds at 2.)
As an initial matter, to the extent that Brandon’s claim
that “there was no Ponzi scheme” is a challenge to the
sufficiency of the evidence against him, that challenge is
11
barred because the Court of Appeals has already heard, and
rejected, Brandon’s challenge to the sufficiency of the evidence
for his conviction.
See Rittweger, 274 F. App’x. at 81; see
generally Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir.
1998) (“[P]etitioners may not raise on collateral review a claim
previously litigated on direct appeal”).
Indeed, the failure to
raise a claim on direct appeal will generally bar consideration
of the claim in a § 2255 motion unless the movant can establish
cause and prejudice or actual innocence.
See Bousley v. United
States, 523 U.S. 614, 622 (1998); Sapia v. United States, 433
F.3d 212, 217 (2d Cir. 2005).
Moreover, Brandon’s argument that the judgment of
restitution against him has been satisfied does not suggest that
the evidence was insufficient to establish his guilt beyond a
reasonable doubt.
See Feb. 10, 2009 Satisfaction of Judgment,
United States v. Rittweger, 02 Cr. 122, Docket No. 281.
Brandon
argues that the investors were eventually paid from various
assets, including the proceeds of insurance policies that he was
instrumental in obtaining. 5
The argument is frivolous.
The fact
that investors were eventually compensated by insurance proceeds
does not mean that there was no loss, and moreover a scheme to
5
The Government disputes that the investor losses were in fact
fully paid. (See October 3, 2008 Letter of the Government,
Gov’t Mem. Ex. B.)
12
defraud can exist even where investors ultimately suffer no
loss.
See, e.g., United States v. Gelb, 881 F.2d 1155, 1162-63
(2d Cir. 1989).
Brandon’s third asserted ground for relief
lacks merit and is denied.
C.
Brandon’s fourth asserted ground for relief is that the
Government did not advise him early enough that Allen was
terminally ill, and that he was thus unable to depose her before
she died.
Brandon argues that the Curacao Complaint
demonstrates that there were many matters in Blech’s trial
testimony that were false and could have been rebutted by Allen.
Brandon argues that he should be allowed to subpoena documents
and testimony from Allen’s attorney which, he alleges, would
confirm these assertions.
As explained above, the Curacao Complaint provides no basis
for relief.
Moreover, Brandon has already raised the issue of
the Government’s delayed production of prior statements by Allen
as an issue on direct appeal.
180.
See Rittweger, 524 F.3d at 176,
The Court of Appeals found that, while the Government
should have produced the information earlier, “there is no
probability that the government’s late disclosure of the
evidence resulted in a different outcome in Brandon’s case . . .
13
.
The exculpatory information was . . . put before the jury and
Brandon was able to assimilate the materials into his case for
‘its effective use at trial.’”
Id. at 182.
To the extent that
Brandon is arguing that he should now be entitled to § 2255
relief to pursue further information from Allen’s lawyer, he has
failed to show cause and prejudice or a claim of actual
innocence for failing to pursue that argument on direct appeal,
if in fact it is distinct from the argument he already raised on
direct appeal that was rejected by the Court of Appeals.
D.
Finally, Brandon argues that “the cumulative effect” of the
above four grounds, combined with “the Brady violations found by
the Court of Appeals,” deprived him of a fair trial.
at 2.)
(Grounds
As explained above, the first four grounds for relief
asserted by Brandon are meritless, and thus they have no
cumulative effect.
As Brandon points out, the Court of Appeals
has already addressed the alleged Brady violations about which
he complains, and he may not raise the issue again in this
petition.
Brandon’s fifth asserted ground for relief is thus
without merit and is denied.
14
III.
After he filed his original §2255 motion, Brandon filed
applications to supplement his motion to add an allegation that
his conviction should be vacated in light of the Supreme Court’s
recent decision in Skilling, 130 S. Ct. 2896.
As an initial
matter, Brandon’s application to supplement his petition to
include his Skilling argument is granted.
The Government has
responded on the merits and Brandon has replied.
In addition to two counts of securities fraud in violation
of 15 U.S.C. §§ 78j(b) and 78ff, Brandon was convicted of one
count of conspiracy to commit securities fraud and wire fraud in
violation of 18 U.S.C. § 371 and four counts of wire fraud in
violation of §§ 1343 and 1346.
The scope of the wire fraud
statute includes “any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations or promises . . . .”
1343.
18 U.S.C. §
Section § 1346 provides that a “scheme or artifice to
defraud includes a scheme or artifice to deprive another of the
intangible right to honest services.”
18 U.S.C. § 1346.
In Skilling, the Supreme Court considered whether Skilling,
the former Chief Executive Officer of Enron, was convicted on
“an improper theory of honest-services wire fraud.”
Skilling 130 S. Ct. at 2925.
See
Skilling had argued that § 1346’s
15
language was void for vagueness, or, alternatively, that his
actions did not come within its coverage.
The Supreme Court
applied a limiting construction to § 1346, and concluded that it
should be limited to “fraudulent schemes to deprive another of
honest services through bribes or kickbacks supplied by a third
party who had not been deceived.”
Id. at 2928.
Skilling had
been convicted of conspiracy and securities fraud, among other
crimes, and the conspiracy count had “alleged three objects of
the conspiracy—honest-services wire fraud, money-or-property
wire fraud, and securities fraud.”
Id. at 2934.
In Skilling’s
case, there had been only a general verdict on the conspiracy
charge, and it was thus unclear whether there was a valid basis
independent of honest services fraud for the conspiracy
conviction.
Id.
The Court thus remanded Skilling’s case to the
Court of Appeals for the Fifth Circuit to determine whether
Skilling’s conspiracy conviction could stand, and whether, as
Skilling alleged, his other convictions “hinged on the
conspiracy count and, like dominoes, must fall.”
Id. at 2934-
35.
There was never an allegation against Brandon of bribery or
kickbacks.
Brandon argues that, under Skilling, his convictions
under §1346 are therefore invalid.
The issue is whether
Brandon’s wire fraud and conspiracy convictions were based
16
solely or inextricably on the theory that Brandon was part of “a
scheme to deprive another of the intangible right of honest
services,” § 1346, such that, in the acknowledged absence of any
allegation of a bribe or kickback, the convictions run afoul of
Skilling and must be vacated.
Here, for each count of the indictment involving wire
fraud, the jury completed a special verdict sheet explicitly
explaining whether it had based its verdict on a money or
property theory, or an honest services theory.
(See Verdict
Form, Dated, June 26, 2003, Entered June 30, 2003, United States
v. Rittweger, 02 Cr. 122 (“Verdict Form”), at 1-4.)
For Count
One, conspiracy to commit securities fraud and wire fraud, the
jury was asked whether it was the object of the conspiracy to
commit securities fraud or wire fraud.
The jury chose both.
(Verdict Form at 1.)
(Verdict Form at 1.)
The verdict form
further asked whether it was the object of the conspiracy to
commit wire fraud “to obtain money or property,” or “to deprive
another of the intangible right to honest services.”
Form at 1.)
Again, the jury chose both.
(Verdict
(Verdict Form at 1.)
Similarly, for each of the four wire fraud counts, the jury was
asked whether it found that there was “a scheme to obtain money
or property,” or “a scheme to deprive another of the intangible
right to honest services.”
(Verdict Form at 4.)
17
Again, the
jury found both.
(Verdict Form at 4.) It is clear from the
special verdict form that, for every count relating to wire
fraud, the jury found Brandon guilty on both a money or property
theory and an honest services theory of fraud. As the Skilling
Court noted, the constitutional error of instructing a jury on
an invalid theory of guilt is subject to harmless error
analysis.
See Skilling, 130 S. Ct. at 2934 (citing Hedgepeth v.
Pulido, 555 U.S. 57 (2008) (per curiam)); see also United States
v. Dupre, 462 F.3d 131, 139 (2d Cir. 2006) (“We will vacate a
conviction on the basis of erroneous jury instructions if a
defendant . . . can demonstrate that the charge actually given .
. . caused her prejudice.” (citing Neder v. United States, 527
U.S. 1, 8–15 (1999))).
Here, because the verdict form makes
explicit that the jury found an independent and valid basis for
Brandon’s conviction on the conspiracy count and each of the
wire fraud counts, any error in the application of § 1346 was
harmless.
Cf. United States v. Skilling, 638 F.3d 480, 483-484
(5th Cir. 2011) (on remand, finding, “[b]ased on our own
thorough examination of the considerable record in this case, .
. . that the jury was presented with overwhelming evidence that
Skilling conspired to commit securities fraud, and thus we
conclude beyond a reasonable doubt that the verdict would have
been the same absent the alternative-theory error.”).
18
Because
the jury’s verdict on each of the challenged counts was clearly
based on a ground unaffected by Skilling, the verdict stands
unaffected.
Brandon argues that the securities fraud counts are also
challengeable under Skilling.
argument.
There is no merit to this
This Court’s jury charge makes plain that the
securities fraud charges were based on making false and
misleading statements, not on an “honest services” theory.
This
Court’s charge to the jury explained that the securities fraud
counts against Brandon were based on Brandon’s “participat[ion]
in a scheme to defraud customers of CBL by fraudulently inducing
them to invest in CBL investment programs by making, and causing
others to make, false and misleading statements about CBL
investment programs.”
(June 19, 2003 Trial Tr., United States
v. Rittweger, 02 Cr. 122 (“Jury Instructions”), at 3569.)
To the extent that Brandon can be understood to argue that
Skilling’s limitation on the meaning of the intangible right to
honest services to bribery and kickbacks also limits the duty
owed by a fiduciary making representations about securities,
this argument is without merit.
The only place where the issue
of duty even arose in this Court’s instructions to the jury on
the securities fraud counts was in its instruction on the
fiduciary duty to disclose, the violation of which makes
19
material omissions actionable instances of securities fraud
under the established law of this circuit.
See Jury
Instructions at 3570-72; United States v. Wolfson, 642 F.3d 293,
295-96 (2d Cir. 2011) (per curiam) (upholding identical
instruction to jury on fiduciary duty in securities fraud case);
United States v. Szur, 289 F.3d 200, 209-210 (2d Cir. 2002)
(same).
Nothing in Skilling’s interpretation of § 1346 casts
doubt on the law of this circuit with respect to the element of
duty as it relates to omissions in establishing securities
fraud.
See Wolfson, 642 F.3d at 295-96.
There is no basis for
asserting that Skilling applies to Brandon’s securities fraud
convictions.
IV.
Brandon has also moved for a change of venue to the Eastern
District of Kentucky, where he is currently incarcerated.
However, as Judge Bunning noted when he refused jurisdiction
over Brandon’s motion, this Court is the proper venue for the
motion.
See Brandon, 2011 WL 87183 at *2 (citing Capaldi v.
Pontesso, 135 F.3d 1122, 1123 (6th Cir.2003); accord Poodry v.
Tonawanda Band of Seneca Indians, 85 F.3d 874, 890 n.17 (2d Cir.
1996) (“Section 2255 is essentially a venue provision, requiring
a motion to the sentencing court rather than an application to
20
the district court in the district in which the prisoner is
confined.”); see generally 28 U.S.C. § 2255(a), (e).
Brandon has not made the required showing that a § 2255
motion before this Court would be “inadequate or ineffective to
test the legality of his detention.”
§ 2255(e); see generally
Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (discussing
“relatively few” circumstances in which “a petitioner can show
that a motion” qualifies for the savings clause of § 2255(e)).
Brandon’s motion for a change of venue is therefore denied.
IV.
Brandon has also sought bail.
However, because there is no
merit to Brandon’s motion to vacate, set aside, or correct his
sentence, there is no merit to his application for bail.
Similarly, Brandon has sought the appointment of counsel.
However, because he has not made any showing that any of his
claims have likely merit, the application for counsel is denied.
Brandon has also complained about his health.
Health
complaints, however, are not a basis for relief under § 2255.
These complaints should be brought to the attention of the
Bureau of Prisons and Brandon should seek relief from the Bureau
of Prisons.
Because Brandon has raised this issue, however, the
Court directs the Government to bring Brandon’s health
21
complaints to the attention of the Bureau of Prisons and to
obtain a report for the Court on the current status of the
treatment of Brandon's medical conditions.
Conclusion
The Court has carefully considered all of the parties'
arguments.
To the extent they are not dealt with above, they
are either moot or without merit. For the reasons explained
above, the petitioner's motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C.
petition is therefore dismissed.
§
2255 is denied.
The
Because the petitioner has
failed to make a substantial showing of the denial of a
constitutional right, the Court declines to issue a certificate
of appealability pursuant to 28 U.S.C.
§
2253(c).
The Clerk is
directed to enter judgment dismissing the petition and closing
this case.
The Clerk is also directed to close all pending
motions.
SO ORDERED.
Dated:
New York, New York
October 10, 2011
Judge
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?