Adams v. United States of America
Filing
3
ORDER denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Carri O Adams. Signed by Honorable Timothy D. DeGiusti on 3/8/2016. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
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Plaintiff,
vs.
CARRI O. ADAMS,
Defendant.
Case No. CR-10-11-D
(No. CIV-13-208-D)
ORDER
Before the Court is Defendant Carri O. Adams’ pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence [Doc. No. 244], which is accompanied by
a Memorandum in Support [Doc. No. 245] explaining her claims. Ms. Adams seeks relief
from a conviction of multiple counts of wire fraud based on allegations of ineffective
assistance of trial counsel. The government has filed a response [Doc. No. 252], supported
by copies of trial exhibits and portions of the trial transcript. Ms. Adams has filed a reply
brief, denominated “Motion in Traverse” [Doc. No. 256]. For reasons that follow, the Court
finds the existing record shows Ms. Adams is not entitled to relief.
A.
Factual and Procedural Background
On May 18, 2010, a jury convicted Ms. Adams and co-defendant Wallace Laverne
Lawrence, III of seven counts of wire fraud in violation of 18 U.S.C. § 1343.1 These
offenses were part of a fraudulent scheme in which victims were led to believe that consumer
1
Mr. Lawrence was convicted of additional counts of access device fraud and aggravated identity
theft based on conduct in which Ms. Adams was not involved.
debts, such as utility bills or car payments, would be paid or forgiven as part of a government
or charitable debt-relief program, if they made cash payments in amounts equal to half of
their outstanding debts. The victims’ bills were fraudulently paid using stolen credit card or
bank account information, and the cash payments were collected before the unauthorized
charges were discovered and reversed. Interstate wire communications were used to carry
out the scheme through internet ads posted on www.craigslist.com. Ms. Adams testified at
trial that she unwittingly participated in the scheme by collecting cash payments and posting
internet ads. Ms. Adams’ defense was that she, like the victims, was duped into believing
there was a legitimate debt-forgiveness program, and that Mr. Lawrence “portrayed to her,
the ruse of a legitimate job” as a courier of cash payments. See Def.’s Mem. [Doc. No. 245],
p.3.2 Other trial witnesses included two participants in the scheme (co-defendant Sandra
Acuna and cooperating witness Carrie DeLaPorte), numerous victims, and a local television
news reporter who investigated and broadcast a report about the scheme. The jury convicted
Ms. Adams of all charges against her in the Indictment, and she was sentenced to concurrent
18-month terms of imprisonment.3
Regarding Ms. Adams’ legal representation, her first appointed attorney, Joe Wells,
was permitted to withdraw less than three weeks before the April 2010 trial setting after a
2
Citations to Ms. Adams’ briefs utilize page numbers assigned by the Court’s CM/ECF system.
3
Although Ms. Adams has discharged her prison sentence and completed her term of supervised
release, she remains subject to a restitution order and other collateral consequences of her conviction. Thus,
her Motion is not moot. See United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000); see also Sibron
v. New York, 392 U.S. 40, 55 (1968).
2
hearing regarding Ms. Adams’ dissatisfaction with the representation.4 The Court later
continued the trial to the May 2010 jury trial docket and appointed substitute counsel, Bill
Zuhdi. Upon a motion filed by Mr. Zuhdi, the Court extended the deadline for Ms. Adams
to file pretrial motions. Mr. Zuhdi timely filed multiple motions, as well as proposed jury
instructions and voir dire.5 Mr. Zuhdi also represented Ms. Adams at a hearing on two
motions to suppress evidence that Mr. Wells had filed, and a James6 hearing to determine
the admissibility of certain out-of-court statements. The Court denied the motions to
suppress, but determined that only two of the out-of-court statements at issue were
admissible at trial. See 5/3/10 Order [Doc. No. 104]; 5/10/10 Order [Doc. No. 128].
Before trial, Mr. Zuhdi submitted under seal an ex parte application for the issuance
and service of five trial subpoenas [Doc. No. 130], which was granted. The subpoenas were
issued [Doc. Nos. 135 & 136], and two of the five witnesses were called at trial to testify in
Ms. Adams’ defense. In addition to witnesses, Mr Zuhdi presented documentary evidence,
which was admitted.
From the Court’s perspective, Mr. Zuhdi capably represented
Ms. Adams throughout the course of the seven-day jury trial.
4
The Court determined at the time that “a serious conflict in the attorney-client relationship has
developed that warrants a substitution of counsel” because “[a]lthough there has not been a complete
breakdown in communications, . . . the current relationship is such that effective communication . . . is not
possible and Mr. Wells’ ability to provide effective legal representation” was impaired. See Order 3/24/10
[Doc. No. 67].
5
The motions were mostly denied, but one motion in limine was granted in part. See 4/30/10 Order
[Doc. No. 97]; 5/3/10 Order [Doc. No. 114]; 5/7/10 Orders [Doc. Nos. 122, 123 & 124].
6
United States v. James, 590 F.2d 575 (5th Cir. 1979).
3
Ms. Adams was represented on direct appeal by other appointed counsel, although
Mr. Zuhdi filed a timely notice of appeal on her behalf. After obtaining an extension of time
to file the opening brief, Ms. Adams’ appellate counsel filed an Anders7 brief and a motion
to withdraw, certifying that he had not found any non-frivolous grounds for appeal. The
court of appeals exercised its independent duty to examine the record and determine whether
Ms. Adams’ claims were “wholly frivolous.” See United States v. Calderon, 428 F.3d 928,
930 (10th Cir. 2005). Similarly finding no non-frivolous issues, and noting any claim of
ineffective assistance of counsel was “reserved for collateral review,” the court of appeals
granted counsel’s motion and dismissed the appeal. See United States v. Adams, 448 F.
App’x 834, 836-37 (10th Cir. 2011).8 Within one year of the deadline for filing a petition
for a writ of certiorari, Ms. Adams filed the instant Motion, asserting four claims of
ineffective assistance of trial counsel with respect to certain areas of allegedly deficient
performance.
B.
Standard of Decision
The standard of decision governing these claims are well established:
Ineffective assistance of counsel claims are . . . guided by the now
familiar Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Under this test, a petitioner must show that “his
trial counsel committed serious errors in light of ‘prevailing professional
norms’ and that there is a ‘reasonable probability’ that the outcome would
have been different had those errors not occurred.” United States v. Haddock,
7
Anders v. California, 386 U.S. 738 (1967).
8
During the pendency of the appeal, Ms. Adams filed a § 2255 motion that this Court dismissed as
premature, “without prejudice to refiling, if appropriate, after the court of appeals decides Ms. Adams’
pending appeal.” See 9/13/11 Order [Doc. No. 227], p.2.
4
12 F.3d 950, 955 (10th Cir.1993) (quoting Strickland, 466 U.S. at 688, 694,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
United States v. Mora, 293 F.3d 1213, 1217 (10th Cir. 2002); see Lockhart v. Fretwell, 506
U.S. 364, 369 (1993). The “two prongs [of Strickland] may be addressed in any order, and
failure to satisfy either is dispositive.” Littlejohn v. Trammell, 704 F.3d 817, 859 (10th Cir.
2013) (internal quotation omitted); see Fields v. Gibson, 277 F.3d 1203, 1216 (10th Cir.
2002) (same); see also Strickland, 466 U.S. at 697; United States v. Kennedy, 225 F.3d 1187,
1197 (10th Cir. 2000) (“ineffective assistance claim may be resolved on either performance
or prejudice grounds alone”) (internal quotation omitted).
To establish prejudice under the circumstances of this case, Ms. Adams must show
“a reasonable probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” Strickland, 466 U.S. at 695. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. In assessing
prejudice, the Court “looks at the totality of the evidence, not just the evidence helpful to the
petitioner.” See Moore v. Gibson, 195 F.3d 1152, 1178 (10th Cir. 1999); see also Strickland,
466 U.S. at 695; Hooks v. Workman, 689 F.3d 1148, 1200 (10th Cir. 2012).
C.
Discussion
Liberally construing the Motion in light of Ms. Adams’ pro se status, she asserts that
trial counsel provided constitutionally ineffective assistance in four respects: 1) failure to
investigate the law and assert a defense under Skilling v. United States, 561 U.S. 358 (2010);
2) failure to adequately investigate the facts of her case, prepare for trial, and subpoena
5
witnesses, as described more fully in her briefs and discussed infra; 3) failure to effectively
cross-examine the government’s witnesses; and 4) failure to move for a severance of the
charges against her from the charges against Mr. Lawrence.9
1.
Legal Investigation
Ms. Adams claims Mr. Zuhdi erred by not utilizing the Supreme Court’s decision in
Skilling in her defense. The decision was issued between the time of Ms. Adams’ trial and
her sentencing. Although she faults Mr. Zuhdi for the alleged error, her appellate counsel
and the court of appeals also failed to raise any issue related to Skilling during the pendency
of her case. This silence is unremarkable because, as explained by the government, Skilling
was not implicated by the charges of the Indictment.
In Skilling, the former chief executive officer of Enron Corporation was convicted of
conspiracy to commit “honest services” wire fraud, involving a fraudulent scheme as defined
by 18 U.S.C. § 1346 to include “a scheme or artifice to deprive another of the intangible right
of honest services.” To resolve an unconstitutional vagueness challenge, the Supreme Court
construed the statute narrowly and held “that § 1346 covers only bribery and kickback
schemes.” Skilling, 561 U.S. at 367.
The wire fraud charges against Ms. Adams did not involve a scheme to defraud
victims of an intangible right to honest services. Ms. Adams received cash payments from
9
Ms. Adams also makes a conclusory statement in her supporting Memorandum that counsel failed
to challenge restitution as “inapplicable.” See Def.’s Mem. Supp. [Doc. No. 245], p. 2. This unsupported
assertion is insufficient to state a claim under § 2255. See United States v. Fisher, 38 F.3d 1144, 1147 (10th
Cir. 1994) (“Although we must liberally construe Defendant’s pro se petition, we are not required to fashion
Defendant’s arguments for him where his allegations are merely conclusory in nature and without supporting
factual averments.”) (citation omitted).
6
victims of the fraudulent scheme under the pretense of satisfying their outstanding debts, but
instead, the money was taken by perpetrators of the scheme and used for their own financial
benefit. The “honest services” statute was inapplicable to this case, and the holding of
Skilling had no bearing on the wire fraud offenses of which Ms. Adams was convicted. Thus,
Mr. Zuhdi did not err in failing to raise Skilling in Ms. Adams’ defense, and any legal
argument based on Skilling would not have altered the outcome of the case.
The Court therefore finds that Ms. Adams’ claim of ineffective assistance based on
trial counsel’s failure to invoke Skilling lacks merit.
2.
Factual Investigation and Trial Preparation
Ms. Adams claims Mr. Zuhdi failed to investigate facts relevant to her defense, was
unprepared at trial to question witnesses and present pertinent evidence and arguments, and
refused to subpoena or call witnesses whose testimony would have shown she was unaware
of the fraudulent nature of the scheme and whose testimony could have been used to impeach
her testifying co-defendant, Sandra Acuna. This claim is supported only by conclusory
arguments in Ms. Adams’ supporting Memorandum that she found it necessary to assist
counsel during trial by informing him of facts pertinent to particular witnesses and providing
questions for him to ask. According to Ms. Adams, “[c]ounsel was virtually clueless to the
entire proceeding.” See Def.’s Mem. Supp. [Doc. No. 245], p.5. She also argues that
Mr. Zuhdi failed to interview or subpoena potential witnesses whose names she had provided
7
to him, and failed to prepare the two witnesses who were called so they could testify
effectively. Id.10
Ms. Adams’ contentions are refuted by the existing record. Responding to arguments
by the government that her Motion does not identify any particular witness who was
requested, she names in her reply brief five witnesses (other than Mr. Lawrence) whose
names she allegedly provided to Mr. Zuhdi. See Mot. Traverse [Doc. No. 256] (hereafter,
“Reply Br.”), p.7. With one exception, Mr. Zuhdi obtained subpoenas for all of these
witnesses; Ms. Adams’ statements to the contrary are simply wrong.
See id., p.8.
Ms. Adams includes in her list two witnesses who actually testified at trial. Although she
takes credit for their attendance and her help in explaining what questions to ask, the record
shows the testimony that Ms. Adams alleges was necessary to her defense was actually
presented to the jury. Ms. Adams contends the failure to call other witnesses was due to a
lack of planning and effort by Mr. Zuhdi, but she fails to explain what testimony the absent
witnesses might have given and how it would have impacted the jury’s credibility
determination. In short, Ms. Adams lacks any factual support for her claim that Mr. Zuhdi
was unprepared for trial and his lack of preparation prejudiced her defense.
The Court therefore finds that Ms. Adams’ claim of ineffective assistance based on
her counsel’s lack of adequate trial preparation lacks merit.
10
Ms. Adams also cites as an example of Mr. Zuhdi’s alleged unpreparedness the fact that his wife
“brought in legal documents such as exhibits, statements, retracted statements, etc.” See Def.’s Mem. Supp.
[Doc. No. 245], p.5. Ms. Adams is apparently unaware that Mr. Zuhdi’s wife is a capable, experienced legal
assistant who routinely assists him at trial with managing evidence and exhibits. The Court observed nothing
unusual about her participation in the trial of this case.
8
3.
Trial Performance
Ms. Adams claims that, in addition to a general lack of preparedness, Mr. Zuhdi
performed deficiently during the trial by failing to cross-examine Ms. Acuna and
Ms. DeLaPorte about inconsistences in their testimony, failing to cross-examine some
government witnesses at all and to cross-examine others effectively, and by appearing at trial
impaired by some medical condition or medication error that rendered him “incoherent” and
“unable to function.” See Def.’s Mem. Supp. [Doc. No. 245], p.6.
In response to Ms. Adams’ allegations regarding cross-examination, the government
points to instances in the trial record that refute her belief that Mr. Zuhdi made no effort to
impeach the government’s witnesses and that better questioning could have “reveal[ed] the
perjury of these witnesses.” Id. The government argues that Ms. Adams simply disagrees
with the jury’s credibility determinations. The government also challenges her claim that
Mr. Zuhdi was impaired during the trial. The government states, correctly, that any such
impairment would not have gone unnoticed by the Court.
Upon consideration of the trial record, including the entire transcript filed in
connection with the direct appeal, the Court finds no constitutional deficiency in Mr. Zuhdi’s
performance. Ms. Adams argues generally that Mr. Zuhdi should have found some way to
discredit the government’s witnesses, particularly Ms. Acuna. However, Mr. Zuhdi’s crossexamination of Ms. Acuna raised numerous issues of possible bias and impeachment. The
credibility of Ms. Acuna, Ms. DeLaPorte, and other witnesses was squarely presented to the
jury, and decided adversely to Ms. Adams and Mr. Lawrence. In fact, if jurors believed the
9
government’s witnesses, as they obviously did, the evidence of Ms. Adams’ guilt was
overwhelming. The court of appeals expressly considered on direct appeal the sufficiency
of the evidence to support Ms. Adams’ conviction and found this to be a frivolous issue
because “ample evidence demonstrated the existence of the fraudulent scheme and Adams's
participation in it.” See United States v. Adams, 448 F. App'x 834, 836 (10th Cir. 2011). The
Court concurs in this assessment, and finds that Ms. Adams has neither shown deficient
performance by Mr. Zuhdi nor prejudice to her defense by any trial error on his part.
The Court therefore finds that Ms. Adams’ claim of ineffective assistance based on
her counsel’s allegedly deficient trial performance lacks merit.
4.
Pretrial Procedure
Ms. Adams claims that Mr. Zuhdi should have moved before trial to sever her case
from Mr. Lawrence’s case. However, she fails to identify a sufficient basis for severance.
Ms. Adams states the “main issue” about a joint trial is that she was prevented from
calling Mr. Lawrence as a witness. See Def.’s Mem. Supp. [Doc. No. 245], p.7. She
contends he could have testified in her defense if the charges against them had been tried
separately. This conclusory argument is based on sheer speculation.11 Ms. Adams provides
no factual basis to believe Mr. Lawrence would have waived his Fifth Amendment rights and
testified at her trial, while electing not to testify on his own behalf. Ms. Adams also
misapprehends the law governing her proposed motion.
11
Ms. Adams makes a bare assertion that “Lawrence could have testified, willingly, or been
subpoenaed.” See Reply Br. [Doc. No. 256], p.4.
10
A motion to sever is governed by Fed. R. Crim. P. 14(a). It is well established that
“[w]hen defendants properly have been joined under Rule 8(b), a district court should grant
a severance under Rule 14 only if there is a serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993); see
United States v. Jones, 530 F.3d 1292, 1302 (10th Cir. 2008). “This rule expresses the
‘preference in the federal system for joint trials of defendants who are indicted together.’”
United States v. Wardell, 591 F.3d 1279, 1299 (10th Cir. 2009) (quoting Zafiro, 506 U.S. at
537); see United States v. Zapata, 546 F.3d 1179, 1191 (10th Cir. 2008). A defendant
requesting a severance bears a heavy burden of showing real or actual prejudice. See
Wardell, 591 F.3d at 1299; United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009).
This case presents no issue of improper joinder.12 Ms. Adams has not identified a
specific trial right that was compromised by a joint trial or a specific circumstance that posed
a risk of an unreliable judgment. Ms. Adams makes only a vague assertion that she and
Mr. Lawrence “had two different and unique defenses that should have been litigated
separately.” See Def.’s Mem. Supp. [Doc. No. 245], p.5. The case did not involve any
antagonistic defenses, however, that might warrant severance. Defenses must be “so
antagonistic that they are mutually exclusive,” that is, “the conflict between the defendants’
defenses must be such that the jury, in order to believe the core of one defense, must
12
Rule 8(b) permits an indictment to charge two or more defendants “if they are alleged to have
participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense
or offenses.” Fed. R. Crim. P. 8(b).
11
necessarily disbelieve the core of the other.” See United States v. Jones, 530 F.3d 1292,
1304 (10th Cir. 2008) (internal quotations omitted) (emphasis added in Jones). Further, the
prosecution in this case was based on an aiding and abetting theory of liability, and used the
same witnesses and evidence to prove the seven wire fraud charges against Ms. Adams and
Mr. Lawrence. Their joint trial resulted in a substantial savings of judicial and prosecutorial
resources, and if the issue had been presented by a timely motion to sever, the Court would
have denied the motion.
The Court therefore finds that Ms. Adams’ claim of ineffective assistance of trial
counsel based on a failure to move for severance lacks merit.
IT IS THEREFORE ORDERED that Defendant Adams’ Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence [Doc. No. 244] is DENIED.13 Judgment
shall be entered accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court must issue or deny a certificate of appealability
(“COA”) when it enters a final order adverse to a movant. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
13
No evidentiary hearing is needed where, as here, the existing record conclusively shows the
defendant is not entitled to relief. See United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996); 28 U.S.C.
§ 2255(b).
12
Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon
consideration, the Court finds this standard is not met in this case. Therefore, a COA is
denied, and the denial shall be included in the judgment.
IT IS SO ORDERED this 8th day of March, 2016.
13
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