Opinion
CV-20-00173-PHX-SPL (DMF) CR-15-01118-PHX-SPL
09-20-2021
United States of America, Plaintiff/Respondent, v. Jason Todd Mogler, Defendant/Movant.
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Deborah M Fine, United States Magistrate Judge.
Jason Todd Mogler (“Movant” or “Mogler”) is an inmate detained at the Sheridan, Oregon Federal Correctional Institution. (Doc. 16 at 1) On December 31, 2019, Movant filed a pro per a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1) The Court denied the motion with leave to amend. (Doc. 13) Movant filed his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Amended Motion”) on May 19, 2020. (Doc. 16 at 10, Doc. 18) Respondent filed its response on November 13, 2020 (Doc. 46), after which Movant filed a reply on March 1, 2021 (Doc. 61).
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona. Citations to documents within Movant's criminal case CR-15-01118-PHX-SPL are denoted “CR Doc.” Citations to documents in Movant's instant § 2255 matter CV-20-00173-PHX-SPL (DMF) are denoted “Doc.”
Rule 3(d) of the Rules Governing § 2255 Proceedings “codifie[d] the prison mailbox rule, which states that a motion or other paper submitted by a prisoner is deemed filed as of the date he submits it to prison authorities for mailing if certain conditions are met.” United States v. Winkles, 795 F.3d 1134, 1145-46 (9th Cir. 2015). The Motion was accompanied by Movant's signed declaration that he placed the Motion in the prison mailing system on December 31, 2019. (Doc. 1 at 10)
This matter is on referral to undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 24 at 11) For the reasons set forth below, it is recommended that the Amended Motion be denied without conducting an evidentiary hearing.
I.BACKGROUND
A. Indictment
On September 8, 2015, Movant was indicted along with co-defendants Hinkeldey, Polanchek, Stevens, and Torres: in Count 1 for conspiracy to commit mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation 18 U.S.C. § 1343, aggravated identity theft in violation of 18 U.S.C. § 1028A, and transactional money laundering in violation of 18 U.S.C. § 1957 (CR Doc. 3 at 21-25); in Counts 2 through 18 for mail fraud in violation of 18 U.S.C. § 1341 (Id. at 25-27); in Counts 19 through 57 for wire fraud in violation of 18 U.S.C. § 1343 (Id. at 27-30); in Counts 58 through 64 for aggravated identity theft in violation of 18 U.S.C. § 1028A (Id. at 30-31); and in Counts 65 through 84 for transactional money laundering in violation of 18 U.S.C. § 1957 (Id. at 31-33). The indictment alleged that the five co-defendants would be jointly and severally liable for losses by 226 investor-victims totaling $18,185,199.00 in U.S. currency. (Id. at 9, 34)
The indictment alleged that Movant and the co-defendants defrauded the investor-victims out of more than $18 million “by promoting and selling fraudulent high-yield investments, primarily involving: (1) real estate development in Sonora, Mexico; (2) waste management and recycling companies in Nevada and Illinois; and (3) distressed residential real estate in Arizona.” (Id. at 2) The indictment charged that Movant “orchestrated all three types of fraudulent investment opportunities, acting through numerous entities, either alone or with others.” (Id.) As charged in the indictment, Movant and the co-defendants made “materially false statements and omissions to obtain investment funds . . . in private placement memorandums, marketing materials, contracts, and other documents” and in turn “used the investment funds for purposes other than what was promised to investor-victims, such as for personal living expenses or other business ventures, and in some instances used funds received from later investor-victims to make payments to earlier investor-victims.” (Id.)
B. Movant's Plea Agreement and Change of Plea Hearing
Movant and Respondent entered into a plea agreement on December 2, 2015. (CR Doc. 437) Movant agreed to plead guilty to conspiracy in Count 1, to Count 33 for wire fraud, and to Count 84 for money laundering. (Id. at 1) The agreement set forth the maximum penalties required for each of these three counts. (Id. at 1-2) The parties stipulated that the amount of loss for sentencing purposes was $18,177,199 and Movant specifically agreed “to pay full restitution, totaling at least $18,177,199 to all victims directly or proximately harmed by [Movant]'s ‘relevant conduct,' including conduct pertaining to any dismissed counts or uncharged conduct . . . regardless of whether such conduct constitutes an ‘offense' under 18 U.S.C. § 2259, 3663, or 3663A.” (Id. at 3) The agreement terms included that Movant understood “that such restitution [would] be included in the Court's Order of Judgment and [would] not serve as grounds to withdraw [Movant]'s guilty plea or withdraw from this plea agreement.” (Id.) The agreement required that if Movant made “full and complete disclosure” to the Probation Office regarding the “circumstances surrounding [Movant's] commission of the offense up to and including the time of sentencing” and demonstrated acceptance of responsibility for the offense, Respondent would “recommend a two-level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. §3E1.1(a).” (Id. at 3-4) Additionally, the agreement provided that if Movant had “an offense level of 16 or more, [Respondent would] recommend an additional one-level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. § 3E1.1(b).” (Id. at 4)
The plea agreement stated that Movant would cooperate fully and truthfully and that at the request of Respondent, Movant would ask that he not be sentenced until his cooperation was completed. (Id. at 5) The agreement further instructed that prior to Movant's sentencing, Respondent would “consider moving the Court to depart downward from the Sentencing Guidelines, and if applicable impose a sentence below the level established by law as the minimum sentence, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).” (Id. at 5) The agreement provided for the waiver of defenses and appeal rights, as follows:
[Movant] waives (1) any and all motions, defenses, probable cause determinations, and objections that [Movant] could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against [Movant], or any aspect of [Movant's] sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under 18 U.S.C. § 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion [Movant] might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct' (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).(Id. at 7)
Movant averred he had read the entire agreement with assistance of counsel Michael Kimerer, understood all the agreement provisions, and voluntarily agreed to it. (Id. at 17) Movant additionally declared that “promises, including any predictions as to the Sentencing Guideline factors that will apply, made by anyone (including my attorney) that are not contained within this written plea agreement, are null and void and have no force and effect.” (Id. at 18)
The Court held a change of plea hearing on December 9, 2015. (CR Doc. 254, RT 12/09/2015) Upon questioning by the Court, Movant testified he understood the entire plea agreement and averred that no one had forced, threatened, or coerced him to enter into the agreement. (Id. at 6) Movant told the Court he was guilty of the crimes of conspiracy in Count 1, wire fraud in Count 33, and money laundering in Count 84, and that he wished to plead guilty to these crimes because he was in fact guilty of the crimes. Id. Movant assured the Court that he understood that the maximum terms of imprisonment for the counts charging conspiracy, wire fraud, and money laundering were five years, twenty years, and ten years, respectively. (Id. at 6-7) Movant further declared he understood the parties' stipulation that the loss amount for sentencing guideline purposes was $18,177,199, and that under the agreement he agreed to pay full restitution of at least that amount. (Id. at 8-9) The Court advised Movant that if Movant accepted the plea agreement, he would not be able to challenge his judgment or sentence on direct appeal or in a collateral review action except on grounds of ineffective assistance by Movant's counsel or prosecutorial misconduct by Government counsel. (Id. at 13) The plea agreement was lodged with the Court on December 9, 2015 (CR Doc. 113) and subsequently filed on December 18, 2017 (CR Doc. 437).
C. Movant's Motion to Withdraw from Plea Agreement
In August 2017, represented by new counsel Ashley Adams, Movant filed under seal a motion to withdraw from his plea agreement. (CR Doc. 303 (Sealed)) Movant alleged that his prior counsel Mr. Kimerer coerced him into entering the plea agreement. (Id. at 3) Movant further declared that he had lied or exaggerated to the Court regarding parts of the factual basis for his charges and that he “was not thinking clearly” on the day he entered into the plea agreement. (Id.) Movant further stated that he lied when he told the Court he had not been treated for any mental disorder and that at the time of his plea agreement he had been counseled by a psychotherapist and had been prescribed anti-anxiety medication by his family care provider. (Id. at 3-4) Movant also indicated he was diagnosed with bipolar disorder after he entered into the plea agreement. (Id. at 4) Movant stated he was not claiming he lacked mental competency when he entered into his plea agreement but argued there were circumstances which, taken together, demonstrated a fair and just reason for withdrawal of his plea. (Id. at 14) Movant asserted those circumstances included his later diagnosis of bipolar disorder, his perception that his trial counsel and prosecutor Peter Sexton were good friends, this relationship left him with “no choice but to accept the plea, ” his concern that the prosecution wanted him to lie at trial, and that the plea agreement had exaggerated facts, including the loss amount. (Id.)
The Court conducted an evidentiary hearing on Movant's motion to withdraw plea on October 5, 2017. (CR Docs. 404, 405 (Sealed), RT 10/05/2017) Movant's psychotherapist and psychiatrist each testified (CR Doc. 404 at 15-71) along with Movant's prior trial counsel Mr. Kimerer (Id. at 127-146). Movant also testified. (Id. at 77-126, 146-182, CR Doc. 405 at 3-14)
The Court denied Movant's motion to withdraw. (CR Doc. 405 at 36-44) The Court concluded that any statements by Movant's psychotherapist and psychiatrist about Movant's mental state in 2015 when he entered the plea agreement were necessarily speculative because they had first seen and treated Movant in 2017. (Id. at 38) The Court further reminded Movant that there were numerous points during the change of plea hearing that Movant could have, but did not, advise the Court that Movant felt the factual basis was wrong and that he did not wish to proceed. (Id. at 39) The Court noted it was obvious at the hearing that Movant understood the charges. (Id. at 40) The Court also stated that it had not appeared at the change of plea hearing that Movant “was suffering from any type of mental health issue” and Movant had advised the Court he had not been treated for any mental illness. (Id.) The Court told Movant there was every reason to conclude that Movant's answers at the hearing had been made knowingly, intelligently, and voluntarily. (Id. at 41) The Court explained it was obvious that part of Movant's concern with his plea agreement arose after Movant learned of his less-involved co-defendants' plea offers that were more favorable than Movant's. (Id. at 42-43) The Court concluded that Movant had failed to establish a “fair and just reason under [Federal Rule of Criminal Procedure] 11(d)(2)[.]” (Id. at 43)
D. Sentencing and Direct Appeal
At Movant's sentencing hearing on December 18, 2017, the Court accepted Movant's December 2015 plea agreement and his plea of guilty. (CR Doc. 473 at 147, RT 12/18/2017). The Court sentenced Movant to prison terms of: 52 months on Count 1 (conspiracy); 240 months on Count 84 (money laundering); and 120 months on Count 33 (wire fraud). (Id. at 153) The Court ordered the prison terms in Counts 1 and 84 to run consecutively and the term in Count 33 to run concurrently to the consecutive terms in Counts 1 and 84, for a total term of 292 months. (Id.) Movant was ordered to pay restitution totaling $14,019,818.56, to be paid jointly and severally with Movant's co-defendants. (Id. at 153, 159) The Court indicated that Movant's plea agreement included an appellate waiver clause. (Id. at 158) In determining Movant's sentencing range, the Court stated that Movant's adjusted offense level was 40, and using a criminal history category of 1, his guideline sentencing range was 292 to 365 months in prison. (Id. at 71) Accordingly, Movant's sentence was the lowermost in the applicable range determined by the Court.
Movant's presentence report explained that over the course of the conspiracy, payments were made to some of the victims and that after subtracting those payments from the $18,177,199 restitution total charged, the net restitution amount was $14,019,818.96. (CR Doc. 417 at 19, ¶ 47)
Movant filed a counseled direct appeal in the Ninth Circuit. (Ninth Circuit Case No. 17-10555, Dkt. 18) Movant argued his waiver of appeal right had been involuntary (Id. at 18-30), the Court improperly denied his motion to withdraw from the plea agreement (Id. at 30-36), and the Court's determination of Movant's sentence was unreasonable (Id. at 36-48).
References to the docket in Movant's appeal in the Ninth Circuit Case No. 17-10555 are denoted “Dkt.”.
More specifically, Movant contended his waiver of appeal right was not voluntary because: (1) the agreement provisions gave the prosecution “unlawful discretion”; (2) Movant's mental illness prevented him from entering the agreement knowingly and voluntarily; (3) Movant's counsel was ineffective for advising him to cooperate and enter a plea agreement without waiting for discovery or exploring Movant's mental illness, for assuring him he would receive a downward departure for cooperation, for advising Movant to exaggerate his wrongdoing to make him appear more useful to the prosecution, and for telling Movant that he should enter the plea agreement because the prosecutor had a close relationship with the Court; (4) the Court improperly rejected Movant's claim he had felt coerced and was misled into entering the agreement; and (5) the prosecution had breached the plea agreement, thereby invalidating the agreement. (Id. at 18-30)
Movant argued he should have been permitted to withdraw from the plea agreement because: (1) the appeal waiver was invalid; (2) the prosecution breached the plea agreement by expecting Movant to state that the investments involved in the conspiracy had been fraudulent from the beginning and then not giving Movant the benefit of his bargain when he refused to testify consistent with the prosecution's expectations; and (3) the prosecution further breached the agreement by using evidence provided by Movant against him. (Id. at 30-36)
Movant asserted the Court's determination of his sentence was not reasonable because: (1) the Court improperly used Movant's statements against him without finding the statements were made after the cooperation agreement was accepted; (2) evidence suggested that the Court acted with bias or vindictiveness to determine Movant's sentence; (3) Movant's counsel was not given adequate time to prepare and present mitigation evidence; (4) the Court should have adjusted Movant's sentence downward because Movant had cooperated; (5) Movant's sentence was disparate when compared to the average sentences given in similar cases and to the sentence one of Movant's co-defendants received. (Id. at 36-48)
Respondent moved to dismiss Movant's appeal based on the appellate waiver in Movant's plea agreement. (Ninth Circuit Case No. 17-10555 at Dkt. 32-1) The Ninth Circuit's March 14, 2019, order in its entirety stated:
[a]ppellee's motion to dismiss this appeal in light of the valid appeal waiver (Docket Entry No. 32) is granted. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (knowing and voluntary appeal waiver whose language encompasses the right to appeal on the grounds raised is enforceable); see also United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (waiver of the right to appeal the conviction covers the appeal of a denial of a motion to withdraw a guilty plea). Contrary to [Movant's] contentions, the record does not show that his plea was involuntary, that the Government breached the plea agreement, or that the plea agreement is invalid. We decline to address [Movant's] claims of ineffective assistance of counsel on direct
appeal. See Rahman, 642 F.3d at 1259-60.(Id. at Dkt. 39) The Ninth Circuit issued its mandate on June 6, 2019. (Id. at 44)
II.MOVANT'S HABEAS GROUNDS
Movant asserts 38 grounds for relief in his Amended Motion. (Doc. 16 at 5-8, Doc. 18 at 2-85) In Grounds 1 through 13, Movant asserts claims of ineffective assistance of counsel (“IAC”) against his first trial counsel, Mr. Kimerer. (Doc. 16 at 5-8, Doc. 18 at 2-10) Mr. Kimerer represented Movant at the time he entered into the plea agreement and for a period thereafter while the investigation of Movant's co-defendants proceeded. Movant argues claims of IAC against his second trial counsel Ashley Adams in Grounds 14 through 24. (Doc. 18 at 11-21) Ms. Adams represented Movant after he fired Mr. Kimerer during the months prior to Movant's sentencing and at the sentencing hearing, filed Movant's motion to withdraw from his plea agreement, and represented Movant at the evidentiary hearing conducted on the motion to withdraw plea as well as at sentencing.
Movant sent Mr. Kimerer a letter terminating Kimerer as his counsel on March 10, 2017. (CR Doc. 334-3 (Sealed) at 5) In a minute entry dated April 10, 2017, the Court documented that Mr. Kimerer was withdrawn as counsel of record and Ms. Adams was appointed for all further proceedings. (CR Doc. 250 (Sealed))
Movant's claims of IAC against Mr. Kimerer alleged that Kimerer was ineffective for: failing to conduct an investigation of the facts and circumstances of Movant's case prior to the indictment or to review discovery prior to advising Movant to enter a plea agreement (Ground 1); advising Movant to enter into the plea agreement without first subjecting the case to “adversarial testing” (Ground 2); grossly mischaracterizing the length of Movant's likely sentence if he accepted the plea offer (Ground 3); leading Movant to believe that Kimerer's relationship with prosecutor Sexton and Sexton's relationship with the Court would result in leniency in sentencing Movant (Ground 4); failing to investigate Movant's mental health issues prior to meeting with the prosecutors and before advising Movant to enter a plea offer (Ground 5); erroneously advising Movant that if he entered the plea agreement his sentence would likely be a term of imprisonment between 3 and 5 years (Ground 6); advising Movant to enter the plea agreement when he knew or should have known the indictment was flawed because it did not identify the United States as the target of the conspiracy charge (Ground 7); advising Movant to sign a stipulation of facts in the plea agreement that contained a “nonexistent” and “misleading” fact (Ground 8); failing to ensure that the plea agreement and plea colloquy included the correct factual basis, consistent with Federal Rule of Criminal Procedure 11 (Ground 9); failing to make sure the Court complied with Rule 11 regarding Movant's understanding of “the forfeiture rights” (Ground 10); not challenging the grand jury proceeding during which Movant claims a co-defendant interacted with grand jurors and thereby tainted the indictment (Ground 11); and recommending that Movant enter into the plea agreement, which provided that if Movant did not comply with any of the promises or obligations made in the agreement Respondent could declare any provision of the plea agreement null and void at Respondent's sole and absolute discretion (Ground 12). (Doc. 16 at 5-8, Doc. 18 at 2-9) In Ground 13, Movant contends Mr. Kimerer provided IAC cumulatively for the reasons he asserted in Grounds 1 through 12. (Doc. 18 at 10)
Movant's claims of IAC against Ms. Adams contend she was ineffective for: not properly preparing mitigation evidence for sentencing purposes (Ground 14); failing to challenge the Court's grouping of Movant's wire fraud and money laundering charges for sentencing (Ground 15); not challenging the Court's imposition of restitution of more than $14,000,000 when the single money laundering charge he pleaded to involved an actual loss of about $65,000 (Ground 16); failing to challenge the Court's imposition of restitution of over $14,000,000 when the single wire fraud charge he pleaded to involved an actual loss of $600,000 (Ground 17); not challenging the Court's application of the Sentencing Guidelines to the wire fraud count to which he pleaded guilty (Ground 18); not effectively challenging the Court's enhancement of Movant's sentence as a leader in the conspiracy (Ground 19); failing to either develop adequate mitigating evidence on Movant's mental health history or seek to understand his mental health issues (Ground 20); not challenging the Court's failure to rule on Movant's objection to Paragraph 22 of the presentence report, which addressed a recommendation for a sentence enhancement for Movant's obstruction of justice (Ground 21); failing to move the Court for a hearing in which to resolve Movant's claim that Respondent breached the plea agreement and failing to challenge the Court's failure to rule on this claim (Ground 22); and not arguing that discovery provided to Movant after he had entered his plea was newly discovered evidence that would support his motion to withdraw from the plea (Ground 23). (Doc. 18 at 11-20) In Ground 24, Movant argues his claims in Grounds 14 through 23 cumulatively establish IAC by Ms. Adams. (Id. at 21)
Movant contends that the prosecution violated his due process rights by not disclosing exculpatory evidence (Ground 25) and by breaching the cooperation terms of the plea agreement when it campaigned for a higher sentence, used evidence provided by Movant against him at sentencing, and asked Movant to provide false testimony (Ground 26). (Doc. 18 at 22-23)
Movant argues the Court violated his due process rights when it: did not establish a factual basis for his plea to the money laundering count (Ground 27); failed to read portions of the plea agreement regarding waiver of motions, defenses, probable cause determinations, or objections to the indictment or information, which Movant argues violated Federal Rule of Criminal Procedure 11 (Ground 28); denied Movant credit for his acceptance of responsibility and his cooperation in the investigation because Movant, at direction of counsel, declined to discuss his role in detail with the presentence report writer (Ground 29); failed to conduct a hearing on Movant's argument that the prosecution breached the plea agreement (Ground 30); and improperly “grouped together” Movant's wire fraud and money laundering counts for purposes of sentencing (Ground 31). (Doc. 18 at 24-29) Movant further claims the Court violated his due process rights when: at sentencing it used evidence Movant supplied against him to justify denying downward departures and to support sentencing enhancements (Ground 36); committed the cumulative errors asserted in Grounds 27 through 36 (Ground 37); and when it violated Rule 11 by not recognizing that Movant had an “innocent state of mind” regarding the charges of fraud (Ground 38). (Id. at 36-38)
In Ground 35, Movant claims the Court abused its discretion by imposing a “disparate and unreasonable sentence” and “accepted a plea agreement with unlawful provisions[.]” (Id. at 35)
Movant also argues the Court violated his Fifth and Sixth Amendment rights by: exceeding its statutory jurisdiction and imposing an illegal sentence on Movant's money laundering count when it ordered Movant to pay excess restitution (Ground 32); exceeding its statutory authority when applying the sentence enhancement based on the loss amount relating to the wire fraud charge (Ground 33); and erroneously applying U.S.S.G. 2B1.1(b)(2)(B) when sentencing Movant on the wire fraud count (Ground 34). (Id. at 30-34)
Respondent argues that Movant's non-IAC claims asserted in Grounds 25 through 38 are waived by the express terms of Movant's plea agreement. (Doc. 46 at 17-19) Respondent further contends that each of Movant's claims of IAC fails on the merits. (Id. at 19-33)
III.STANDARDS OF REVIEW
A. Section 2255 Motion to Vacate, Set Aside, or Correct Sentence
A federal prisoner is entitled to relief from his sentence if it was “imposed in violation of the United States Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
B. Ineffective Assistance of Counsel
To obtain relief for an IAC claim, a movant must show both that counsel's representation fell below an objective standard of reasonableness and also that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). In reviewing counsel's performance, courts “indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. The standard for judging counsel's representation is “highly deferential.” Id. It is “all too tempting” to “second guess counsel's assistance after conviction or adverse sentence.” Id. “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
To establish prejudice, a movant must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In claims of IAC involving the plea process, a defendant must “show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The court need not reach both components of the Strickland test. Id. at 697 (“Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”).
C. Standard for Warranting Evidentiary Hearing
Under 28 U.S.C. § 2255, a court shall grant an evidentiary hearing “[u]nless 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). To state a claim for ineffective assistance of counsel such that a movant would be entitled to an evidentiary hearing, a movant must allege facts showing that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 at 686.
To show that he is entitled to an evidentiary hearing, a movant must allege “specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotations and citations omitted). In determining whether to grant an evidentiary hearing, a court must consider whether, accepting the truth of a movant's factual assertions that are not directly and conclusively refuted by the record, the movant could prevail on his claims. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002).
IV.DISCUSSION
A. Grounds Waived by the Plea Agreement
Respondent argues that Grounds 25 through 38 are precluded from review based on the waiver provision of Movant's plea agreement. (Doc. 46 at 17-19) Each of these claims is addressed below.
“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). When a defendant has admitted in open court that he is guilty of a charged offense, “he may not thereafter raise independent claims that occurred prior to the entry of the guilty.” Id. “A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.” United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); see also Tollett, 411 U.S. at 267. It is a “fundamental rule that plea agreements are contractual in nature and are measured by contract law standards.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007).
The plain language of a plea agreement generally will be enforced if the agreement is clear and unambiguous, including provisions under which a defendant waives the right to challenge his or her conviction and sentence through appeal or a collateral proceeding, such as a § 2255 proceeding. Id. “A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005) (quoting Jeronimo, 398 F.3d at 1153). The Ninth Circuit “will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because “[t]he whole point of a waiver ... is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462-63 (9th Cir. 2016) (quoting United States v. Nguyen, 235 F.3d 1179, 1184 (9th Cir. 2000), abrogated on other grounds by United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).
A defendant may bring a claim alleging that a waiver or plea agreement was involuntary or that the ineffective assistance of counsel rendered the waiver or plea agreement involuntary. See Davies v. Benov, 856 F.3d 1243, 1247 n.2 (9th Cir. 2017) (“Claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary, however, may not be waived.”); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to Section 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver). The Ninth Circuit has explained that because “it is difficult to probe the highly subjective state of mind of a criminal defendant, the best evidence of his understanding when pleading guilty is found in the record of the Rule 11 colloquy.” United States v. Jimenez-Dominguez, 296 F.3d 863, 869 (9th Cir. 2002); see also Jeronimo, 398 F.3d at 1153-55 (finding a waiver of a direct appeal knowing and voluntary based on the plea agreement and the change of plea proceeding).
1.Grounds 25 and 26 allege claims of prosecutorial misconduct
Respondent argues that each of Grounds 25 through 38 are precluded from review by operation of Movant's waiver in his plea agreement. (Doc. 46 at 17-19) However, Grounds 25 and 26 assert claims of prosecutorial misconduct, a claim category along with ineffective assistance of counsel, that was expressly excluded from Movant's waiver in his plea agreement (CR Doc. 437 at 7). Accordingly, Movant did not waive the ability to assert claims of prosecutorial misconduct on appeal or on collateral review.
In Ground 25, Movant asserts that the prosecution violated Brady v. Maryland's requirement to disclose exculpatory and impeachment evidence when, during a meeting between Movant, the prosecutors, the FBI, and defense counsel Kimerer held on December 2, 2015, the prosecutors told the FBI to exclude from the FBI's 302 investigation report any mention that Movant disputed the $18,000,000 restitution amount and had requested a three-year sentencing cap. (Doc. 18 at 22)
In Ground 26, Movant claims that the prosecution breached Movant's plea agreement by campaigning for a higher sentence, by using evidence provided by Movant against him at sentencing, and by asking Movant to provide false testimony. (Id. at 23)
Movant did not raise his Ground 25 claim in his direct appeal. (Ninth Circuit Case No. 17-10555, Dkt. 18) However, Movant did argue his Ground 26 claims in his direct appeal, asserting the Government breached the plea agreement by pressuring him to “say things that were not true during trial preparation, ” by failing to “advocate for leniency and downward adjustments, ” and “by using . . . evidence given by [Movant][.]” (Id. at 33, 34-36)
A defendant procedurally defaults his or her right to collaterally attack a conviction under section 2255 when the defendant fails to first address the claim on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982). However, procedural default is an affirmative defense that the Government must assert in its response to the defendant's section 2255 motion; a failure to raise the defense results in a waiver of that defense, after which the court will address a claim on the merits. McDaniels v. Kirkland, 813 F.3d 770, 775 n.3 (9th Cir. 2015); United States v. Guess, 203 F.3d 1143, 1146 (9th Cir. 2000). While Movant failed to raise Ground 25 on direct appeal, Respondent has not asserted the affirmative defense of procedural default. Accordingly, Ground 25 will be addressed on the merits below in Section IV(B)(1).
As discussed, Movant raised his Ground 26 claims on direct appeal. The Ninth Circuit expressly held that the record in Movant's case failed to show that the Government breached Movant's plea agreement. (Ninth Circuit Case No. 17-10555, Dkt. 39) The Ninth Circuit has long held that “[i]ssues disposed of on a previous direct appeal are not reviewable in a subsequent petition under 2255.” Stein v. U.S., 390 F.2d 625, 626 (9th Cir. 1968). “The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion.” Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972). Accordingly, Movant is precluded from relitigating his Ground 26 claim in his Amended Motion because the Ninth Circuit decided the claim on direct appeal.
2.Grounds 27 through 38
As noted, in Grounds 27 through 31 Movant argues the Court violated his due process rights when it failed to establish a factual basis for his plea to the money laundering count, did not read portions of the plea, denied Movant credit for his acceptance of responsibility and his cooperation in the investigation, failed to conduct a hearing on Movant's argument the prosecution breached the plea agreement, and improperly combined Movant's wire fraud and money laundering counts for purposes of sentencing. (Doc. 18 at 24-29)
In Grounds 32, 33, and 34, Movant contends that the Court violated his Fifth and Sixth Amendment rights when it ordered Movant to pay excess restitution, exceeded its statutory authority when applying the sentence enhancement based on the loss amount relating to the wire fraud charge, and erroneously applied U.S.S.G. 2B1.1(b)(2)(B) when sentencing Movant on the wire fraud count. (Id. at 30-34)
In Ground 35, Movant claims the Court abused its discretion by imposing a “disparate and unreasonable sentence” and “accepted a plea agreement with unlawful provisions[.]” (Id. at 35)
Movant asserts in Grounds 36, 37, and 38 that the Court violated his due process rights at sentencing when it used evidence Movant had supplied against him to justify sentencing enhancements, committed cumulative errors regarding Grounds 27 through 36, and violated Rule 11 by not recognizing that Movant had an “innocent state of mind” regarding the charges of fraud. (Id. at 36-38)
Respondent argues that the claims asserted in Grounds 27 through 38 are subject to Movant's express waiver in his plea agreement of claims made on collateral review. (Doc. 46 at 17-19) Respondent notes that in Movant's direct appeal the Ninth Circuit assessed Movant's waiver provision and rejected Movant's claims that his waiver provision was entered into involuntarily or unknowingly. (Id. at 18)
While all of Movant's Grounds 27 through 38 are subject to the plea agreement's waiver provision, the record indicates that Grounds 29, 30, 35, and 36 assert claims that Movant also raised in his counseled direct appeal in the Ninth Circuit (Ninth Circuit Case No. 17-10555, Dkt. 18 at 18-48), which the Ninth Circuit found to be waived because Movant knowingly and voluntarily waived his appeal rights in the plea agreement (Id. at Doc. 39). In addition to being waived on collateral review in accordance with Movant's knowing and voluntary waiver in the plea agreement, these claims also are barred from review because the Ninth Circuit found these claims waived on direct appeal. Stein, 390 F.2d at 626.
Grounds 27, 28, 31, 32, 33, 34, 37, and 38 do not assert claims of IAC or prosecutorial misconduct and were not raised on direct appeal. Movant waived the ability to raise these claims on collateral review in his plea agreement, a waiver the Ninth Circuit has held Movant made knowingly and voluntarily.
Thus, each of Movant's Grounds 27 through 38 claims were waived pursuant to the terms of his plea agreement.
B. Assessment of the Merits of Ground 25 and Movant's IAC claims
As noted, Movant's plea agreement provided that the agreement would “not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct' (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).” Arizona Ethics opinion 15-01 concluded that the rules governing conflicts of interest “prohibit a defense attorney from advising a criminal defendant to waive the defendant's right to raise that attorney's ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims.” Jaramillo v. United States, CV-19-8017-PCT-SPL (JFM), CR-15-8236-PCT-SPL, 2020 WL 3001783, at *7 n.7 (D. Ariz. May 11, 2020). Respondent concludes that Movant's Grounds 1 through 24 assert claims of ineffective assistance of trial counsel and are not covered by Movant's waiver of claims in the plea agreement. (Doc. 46 at 19) Undersigned agrees and addresses the merits of the Grounds 1 through 13 claiming IAC against trial counsel Kimerer and Grounds 14 through 24 claiming IAC against sentencing counsel Adams after addressing Movant's Ground 25 claim of prosecutorial misconduct.
1.Ground 25 is without merit
Movant argues in Ground 25 that the prosecution violated Movant's rights under Brady by concealing exculpatory evidence. (Doc. 18 at 22) Movant asserts that during a December 2015 meeting between the parties at which the FBI was present, Movant had disputed he was responsible for more than $18,000,000 in restitution and had asked for a three-year sentencing cap. (Id.) Movant contends the prosecutor told the FBI to exclude Movant's statements about the restitution amount and his request for a sentencing cap from the FBI's 302 report. (Id.) Movant states that this information “would have been of key importance at the change of plea and at [Movant's] request to withdraw[ ] his plea at the hearing in October 2017.” (Id. at 78)
The standard of federal habeas review of a claim of prosecutorial misconduct is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). A prosecutor's actions constitute misconduct if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643).
The Supreme Court in Brady held that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. Subsequently, the Supreme Court clarified that the duty to disclose was applicable even in the absence of a request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that this duty applied to impeachment evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). Strickler v. Greene, 527 U.S. 263, 280 (1999). Withheld evidence is material “'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” Id. (quoting Bagley, 473 U.S. at 682). The Supreme Court explains there are three components of a Brady violation: “the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Id. at 281-82.
Movant fails to state a claim for, let alone establish, a Brady violation. The prosecution did not suppress any evidence of which Movant and his counsel were unaware because the evidence involved Movant's own alleged misgivings about the restitution amount and his desire to negotiate a sentencing cap of three years. Moreover, Movant claims this evidence was withheld from the Court, a circumstance that fails to allege a Brady violation. Further, the record does not demonstrate that Movant suffered any prejudice resulting from the FBI's exclusion of any mention of Movant's discomfort about the restitution amount or his wish to negotiate a three-year sentencing cap in its 302 report, because Movant testified specifically at the October 5, 2017, evidentiary hearing on his motion to withdraw from the plea agreement about his reservations regarding the plea agreement. In his testimony, Movant stated that he had told his counsel and the prosecution that he wanted a three-year sentencing cap and had reservations regarding the $18,000,000 restitution amount. (CR Doc. 404 (Sealed) at 106, 178; CR Do. 405 (Sealed) at 4)
Movant's Ground 25 claim fails because Movant has not established and cannot establish that the prosecutor's actions during the pretrial proceedings, allegedly withholding evidence, denied him due process. See Darden, 477 U.S. at 181.
2. Movant's IAC claims against trial counsel Kimerer
Movant alleges IAC by Mr. Kimerer in Grounds 1 through 13. For the reasons set forth below, undersigned recommends that the Court find that on this record, Movant has not established and cannot establish that IAC under Strickland and its progeny as to any of Grounds 1 through 13.
a. Grounds 1 and 2 - IAC based on failure to investigate or subject the prosecution's case to adversarial testing
In Ground 1, Movant argues trial counsel Kimerer provided IAC by failing to conduct an investigation of Movant's case prior to indictment and before Movant entered into the plea agreement. (Doc. 16 at 5, Doc. 18 at 46-53) Movant asserts that Mr. Kimerer's focus on having Movant seek out and accept a plea deal before receipt of the voluminous discovery in Movant's and his co-defendants' case was per se ineffective. (Id. at 50-51)
Movant's Ground 2 argument is that defense counsel Kimerer was constitutionally ineffective when Kimerer convinced Movant to plead guilty “before subjecting the prosecutor's case to adversarial test[ing].” (Doc. 16 at 6, Doc. 18 at 54-57) Movant contends that the discovery materials indicated there were errors in the indictment and that he believed on that basis that “he was not guilty of the charges against him.” (Doc. 16 at 6)
In a declaration filed by Respondent in connection with Movant's motion to withdraw his plea, Mr. Kimerer declared that it was accurate he had “never received all of the 300, 000 pages of discovery the Government provided after [Movant] entered his plea of guilty on December 9, 2015[]” and noted that “by that time [Movant] had been cooperating for nearly a year with access to documents provided by the Government.” (CR Doc. 334-3 at 8 (Sealed)) Mr. Kimerer observed the prosecution did not provide formal discovery until January 2016, but advised that “[i]t is common for me and other defense attorneys to not review all of the discovery in a complex fraud case where the client has fully acknowledged his guilt and chooses to proceed down a cooperation path.” (Id. at 8-9)
Mr. Kimerer stated that before Movant entered into the proffer agreement in December 2014, Movant had “consistently asserted he was guilty of criminal conduct.” (Id. at 9) Mr. Kimerer declared that Movant provided him with “detailed information that had been used in connection with [Movant's Arizona Corporation Commission] hearing” and had “consistently asserted he was guilty of criminal conduct.” (Id.) Additionally, Mr. Kimerer explained that in November 2014, the prosecution had provided him with documents, including “a complete diagram generally showing the scope of the conspiracy, the entities, and the people involved.” (Id.) Mr. Kimerer said that during the period prior to Movant's proffer, Movant explained how he had used Private Placement Memoranda to solicit investors and that Movant had acknowledged that the memoranda were “mostly fraudulent and he knew it.” (Id.) Kimerer attested that Movant “had never claimed innocence, did not want to go to trial, and requested [that Kimerer] seek an opportunity for [Movant] to be a cooperation defendant. (Id.)
In Strickland, the Supreme Court instructed that:
[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. See United States v. Decoster, supra, at 372-373, 624 F.2d, at 209-210. Strickland, 466 U.S. at 691.
A defendant is “entitled to the effective assistance of counsel in his decision whether and when to plead guilty” and it is ineffective “to fail to advise a client to enter a plea bargain when it is clearly in the client's best interest.” United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003). Recognizing that cooperation “with the Government has become a crucial aspect of plea bargaining and sentencing under the Federal Sentencing Guidelines[, ]” the Ninth Circuit has explained that defendants often choose to cooperate with the Government “in hopes of persuading the Government to file a ‘substantial assistance' motion” and that a sentencing court would decide to “depart from the guidelines and reduce the defendant's sentence in an amount reflecting, inter alia, the nature, extent, and usefulness of the defendant's assistance. See U.S.S.G. § 5K1.1.” Id. at 1117-18. The Ninth Circuit further recognized that “a downward departure for substantial assistance is never guaranteed, as the Government may rightfully decline to file a substantial assistance motion for any reason, so long as its decision is not arbitrary, based on an unconstitutional motive, or made in bad faith.” Id. at 1119. The Ninth Circuit observed that despite the absence of a guarantee of a downward departure, “such a departure is assuredly impossible to obtain without successful cooperation.” Id.
Regarding Ground 1, Movant fails to establish that Mr. Kimerer's advising Movant to enter into the plea agreement prior to reviewing all of the discovery that was provided to Movant after he entered into the plea agreement was objectively unreasonable. The record demonstrates that Movant provided substantial evidence of his guilt on the charged crimes, evidence that supports both Mr. Kimerer's explanation that Movant was motivated to seek an agreement early in the investigation of the conspiracy and also Movant's statements to the Court under oath at his change of plea hearing.
Similarly, Movant fails to establish Mr. Kimerer was ineffective under Movant's Ground 2 claim that Kimerer convinced Movant to plead guilty prior to subjecting the prosecutor's case to adversarial testing. The record includes Mr. Kimerer's declaration that he and Movant spent hours discussing the facts of Movant's case during which Movant explained to him how the business entities associated with the criminal charges were established and “ultimately operated as a ‘Ponzi operation.'” (CR Doc. 334-3 at 6-7) Mr. Kimerer further attested that Movant and he reviewed the private placement memoranda (“PPM's”) that were used in the scheme to solicit investors and reported that Movant “pointed out that the information contained in the PPM's was mostly lies, and the forecasted results were unachievable. He knew this, yet made these representations at investor meetings and on radio broadcasts.” (Id.) Mr. Kimerer further declared that he reviewed with Movant “the financial transactions, the various business entities and the fraudulent conduct involved in each one” and also that Movant “described the roles of his co-conspirators, how forged documents were used, [and] how he controlled the money . . .” (Id.) As with Ground 1, Mr. Kimerer's declarations are supported by record evidence of Movant's guilt, including evidence provided by Movant and Movant's statements to the Court at his change of plea hearing.
Moreover, other evidence in the case establishes that Mr. Kimerer's advising Movant to cooperate early in the investigation was reasonable. Movant's co-defendant James Hinkeldey proceeded to trial, at which he was convicted and later sentenced by the Court to a prison term of over 30 years. Mr. Hinkeldey's trial record includes the testimony of Dawson Anglin, a forensic accountant for the FBI who assessed voluminous financial records, including bank records, corporate organization and registration information, PPM's for business entities involved in the charges, and the co-defendant's roles in such entities. (CR Doc. 588 at 13-104, RT 2/22/2018; CR Doc. 589 at 5-143, RT 2/23/2018) Mr. Anglin's testimony regarding his investigation and supporting trial exhibits was that Movant's involvement in the conspiracy and fraudulent schemes was pervasive and predominant. (CR Doc. 588 at 26-27, 28, 30, 35, 48-49, 53, 62, 63-64, 100, 102; CR Doc. 589 at 6-7, 10-11, 13-14, 16-17, 20-24, 26, 32, 74-75, 89, 100, 102-104, 106, 108-110, 113, 120, 122-123, 137, 139) This evidence provides further support for the conclusion that Mr. Kimerer's advice for Movant to obtain an early cooperation plea agreement was objectively reasonable.
For the reasons set forth above, Movant has not established and cannot establish with regard to Movant's Grounds 1 and 2 either that Mr. Kimerer's representation was objectively unreasonable or that Movant suffered prejudice.
b. Ground 3 - IAC based on alleged mischaracterization of Movant's likely sentence
In Ground 3, Movant argues IAC by defense counsel Kimerer, asserting that Mr. Kimerer grossly mischaracterized the sentence Movant was likely to receive by pleading guilty. (Doc. 16 at 7) Movant claims Mr. Kimerer advised Movant that he would receive a sentence of just three to five years of imprisonment, when in fact he received a sentence of twenty-four years. (Id.) Movant states that the disparity between the sentence Mr. Kimerer suggested he would receive and the sentence the Court handed down shows that he entered the plea agreement unknowingly, involuntarily, and unintelligently. (Doc. 18 at 58) Movant declares that if he had known of the “actual consequences instead of the gross misrepresentation by counsel Kimerer, ” he would have chosen to go to trial. (Id. at 59) Movant states that he had believed his counsel's estimation of his sentence was “the absolute truth and therefore blindly followed the advice . . . and accepted the plea agreement and plead[ed] guilty.” (Id. at 61)
“To establish a claim of ineffective assistance of counsel based on alleged erroneous advice regarding a guilty plea, a petitioner must demonstrate more than a ‘mere inaccurate prediction.'” Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986)). A § 2255 movant must demonstrate that defense counsel “grossly mischaracterized” the likely outcome and provided erroneous advice on the effects of going to trial to be entitled to relief based on this type of ineffective assistance of counsel claim. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (citing Iaea, 800 F.2d at 865).
The record does not support Movant's argument. The plea agreement advised Movant of the maximum penalties associated with the counts to which he pleaded guilty, as follows: the conspiracy count was punishable by a maximum term of imprisonment of 5 years; the wire fraud count was punishable by a maximum prison term of 20 years; the money laundering count was punishable by a maximum prison term of 10 years; and the maximum prison terms for the offenses could run consecutively. (CR Doc. 437 at 1-2)
Under the plea agreement, Movant attested that he had been advised by counsel “of the nature of the charges to which” he was pleading guilty and that his counsel had also advised him of “the nature and range of the possible sentence and that [his] ultimate sentence shall be determined by the Court after consideration of the advisory Sentencing Guidelines.” (Id. at 17) Movant further agreed that his guilty plea had not been “the result of force, threats, assurances, or promises, other than the promises contained in this agreement.” (Id.)
Similarly, at Movant's change of plea hearing in which Movant was under oath to tell the truth, Movant told the Court that no person had forced, threatened, or coerced him into entering the plea agreement or made promises to get him to enter the agreement other than promises included in the agreement. (CR Doc. 254 at 3, 6) The Court informed Movant of the maximum prison terms for each of the counts to which he was pleading guilty and that the terms could run consecutively; Movant stated he understood. (Id. at 6-7) Movant confirmed that he had reviewed the Federal Sentencing Table “several times” with Mr. Kimerer; Movant told the Court he understood it. (Id. at 8) Movant also told the Court that the factual basis recited in the plea agreement was accurate. (Id. at 27, 29)
Movant provides no evidence other than his own statement that Mr. Kimerer told Movant that his likely sentence would be a prison term between three and five years. In his declaration filed with the Court in response to Movant's motion to withdraw from his plea agreement, defense counsel Kimerer declared that: (1) he did not at any time coerce Movant into agreeing with the factual basis of the plea (CR Doc. 334-3 (Sealed) at 6); (2) he had explained to Movant in detail “how the Federal Sentencing Guidelines worked and the significance of a 5K.1 departure” for cooperating witnesses (Id. at 7); (3) while he told Movant that he had a good relationship with prosecutor Sexton after at least 30 cases together, he never advised Movant that the process was about relationships and not the law (Id. at 7-8); (4) he had advised Movant that the “more substantial his cooperation the better the prosecution's 5K.1 recommendation would be” but that based on Movant's involvement in the scheme and the large sums of money he had personally received, it was unlikely that Movant would not receive a prison sentence (Id. at 8); and (5) he advised Movant that the prosecutors would not likely agree to a specific sentence as long as Movant was a cooperating witness until Movant's cooperation was completed (Id. at 11).
On this record, Movant has not met and cannot meet his burden of establishing that his counsel's performance was either deficient or prejudicial. Movant was informed prior to entering his guilty plea in both his plea agreement and by the Court of the potential sentence he could receive and thus cannot establish prejudice from counsel's alleged inaccurate prediction as to his sentence. See Womack v. Del Papa, 497 F.3d 998, 1003-4 (9th Cir. 2007) (defendant did not suffer prejudice where his counsel underestimated the sentence he would receive but where the court advised him at his plea hearing of possible maximum sentence). See also United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (explaining that an erroneous sentence prediction “does not entitle a defendant to challenge his guilty plea”); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (finding that an inaccurate sentence prediction was not prejudicial).
c. Ground 4 - IAC relating to alleged coercion regarding plea
In Ground 4, Movant asserts that counsel Kimerer provided IAC by advising Movant that Movant would obtain a downward departure and a lighter sentence by pleading guilty and cooperating because of prosecutor Sexton's relationship with the Court. (Doc. 16 at 8) Movant argues that Mr. Kimerer's repeated statements that cases were decided based primarily on relationships made Movant conclude that taking a plea was his only viable option. (Id. at 63-67) Movant claims that his resulting belief that he had no option other than to plead guilty rendered his plea coercive. (Id. at 65)
Respondent notes that at the evidentiary hearing on Movant's motion to withdraw from his plea agreement, the Court thoroughly addressed Movant's arguments that he was coerced into entering the plea agreement by Mr. Kimerer and rejected those arguments based on the record. (Doc. 46 at 26-27)
After hearing evidence and the parties' arguments on Movant's motion to withdraw from his guilty plea in the evidentiary hearing conducted on October 5, 2017, the Court rejected Movant's claims that Movant's plea had been coerced by Mr. Kimerer. The Court explained that Movant's responses to the Court's questions at Movant's change of plea had been direct and strong. (CR Doc. 405 (Sealed) at 38-40) The Court noted that Movant received his diagnosis of bipolar disorder well after his plea. (Id. at 38) The Court reminded Movant:
So the time that I had you in court in December of 2014, it was pretty obvious to me before we got to the maximums in the case and what you were charged with that you were very, very comfortable with the process in terms of understanding what you were charged with.(Id. at 40) The Court noted that Movant had been “clear in your allocution and I had several reasons to believe that your answers that you provided to me, they were voluntary, they were knowing, they were intelligently made by you.” (Id. at 41) The Court concluded that Movant had not satisfied his “burden demonstrating that you have a genuine concern about [there] being, you know, any coercion and there was no issue with the accuracy of your factual basis or your plea agreement. And you never claimed that . . . you were factually or legally innocent.” (Id. at 41-42) The Court stated that Movant had filed his motion to withdraw his plea after he had “provided very detailed - - a lot of detailed information to the United States Government about [his] involvement in this fraud scheme.” (Id. at 42) The Court advised Movant that it:
can't help but question the motives that you must have, considering that you're asking me for this extraordinary remedy after finding out that multiple co-defendants have received not only plea agreements in the case, but they've entered pleas that are favorable or more favorable than what you received from the United States Government.(Id. at 43)
In connection with its response to Movant's motion to withdraw from his plea agreement, Respondent filed a declaration provided by defense counsel Kimerer in which Kimerer declared that Movant had “readily conceded at our first meeting that he had little chance of avoiding a finding of guilt if he went to trial.” (CR Doc. 334-3 at 7) Mr. Kimerer asserted that Movant desired to determine if it was even possible to obtain a cooperation agreement “given the fact [that Movant] was viewed as the most culpable and prominent member of the criminal venture.” (Id.) Mr. Kimerer further stated that he told Movant he had:
a good relationship with [prosecutor] Peter Sexton and we had been involved in at least 30 cases together, many involving cooperation agreements. I told him Peter Sexton was a tough prosecutor but fair and a man of his word. I said Peter was objective in looking at the facts of a case and, as long a cooperating defendant was truthful, Peter had never failed in making a 5K1.1 recommendation for a reduced sentence. I never told [Movant] the legal system is “about relationships and not the law.” [Movant] wanted a cooperation agreement that guaranteed what sentence he would receive. I explained that the procedure of the U.S. Attorney's Office in Phoenix was not to agree or recommend a fixed sentence until after the defendant' cooperation was complete.(Id. at 7-8)
Although Movant urges the Court to hold an evidentiary hearing on his Ground 4 claim (Doc. 18 at 66-67), the Court held a hearing based on the same arguments and assertions raised in the motion to withdraw. After the hearing, the Court rejected Movant's arguments on which his claim is based. The record supports the conclusion that the Court reasonably relied on Movant's statements and testimony at his change of plea hearing and discounted Movant's contradictory statements related to his motion to withdraw his plea. Further, Movant argued on direct appeal that he had felt coerced into pleading guilty. (Ninth Circuit Case No. 17-10555, Dkt. 18 at 28) Based on its review of the record, the Ninth Circuit concluded Movant had failed to show his plea was not voluntary. (Id. at Doc. 39)
On this record, Movant cannot and does not show that Mr. Kimerer's representation was objectively unreasonable regarding his advice for Movant to enter the plea agreement or demonstrate that Kimerer coerced him into entering the agreement. Moreover, as the Court indicated during the evidentiary hearing on October 5, 2017, in the course of his cooperation in the case Movant provided the prosecution with substantial evidence of his deep involvement in the criminal activity leading to the charges of the indictment. This evidence strongly supports a conclusion that Movant did not suffer prejudice by not proceeding to trial given that co-defendant Hinkeldey, whose involvement in the fraud was somewhat comparable to Movant's, was the only of the co-defendants who went to trial; Hinkeldey received a sentence of 365 months of imprisonment (CR Doc. 678).
d. Ground 5 - IAC regarding Movant's mental health
In Ground 5, Movant argues trial counsel Kimerer was ineffective for failing to investigate Movant's mental health issues before meeting with the prosecutors and before advising Movant to enter into the plea agreement. (Doc. 18 at 2, 68; Doc. 61 at 22)
The record indicates that in December 2014, when Movant was interviewed by the prosecutors and FBI, Kimerer was aware that Movant had been taking Valium for anxiety and was then being seen by a psychotherapist. (Doc. 18-1 at 38) The notes from this interview document that at one point, Movant “became visibly upset and outwardly emotional and told the [FBI] agents he was ‘this close to committing suicide' (while holding two fingers in the air approximately 1 inch apart).” (Id. at 39) The Court conducted Movant's change of plea hearing on December 9, 2015, more than a year later. (CR Doc. 254)
At the Court's evidentiary hearing on Movant's motion to withdraw his plea on October 5, 2017, testimony was taken from Movant's then-therapist who had first seen Movant earlier that year in February 2017. (CR Doc. 404 at 17 (Sealed)) The therapist testified that when she first saw Movant he was “really anxious, ” complained of heart palpitations, was “very depressed, ” “crying excessively, and having insomnia” and was having “thoughts of suicide.” (Id. at 19) The therapist stated she had requested that Movant be referred to a psychiatrist for medication evaluation and reported he had been so referred. (Id.) The therapist also testified that after Movant had been treated with medication he became more calm, was not crying excessively, was not suicidal, and maintained intact concentration. (Id. at 28)
Movant's then-psychiatrist also testified. (Id. at 43-71) The psychiatrist explained that his initial appointment with Movant had been in March 2017. (Id. at 44) The doctor stated that Movant had not reported any prior psychiatric history. (Id. at 47) The doctor stated that Movant first presented as hyperactive, hyper-observant, using a lot of body language, having scattered thoughts, and was tearful. (Id. at 48) After the initial 45- to 50-minute visit, the doctor diagnosed Movant with moderate bipolar disorder and assessed him with a Global Assessment scale score of 60. (Id.) The doctor prescribed the mood stabilizing medication Depakote. (Id. at 53) The doctor reported that Movant's symptoms improved over time on the medication. (Id. at 55) The doctor indicated that he did not obtain any previous medical records or history for Movant but said that Movant “denied any acute medical ailment.” (Id. at 60) The doctor affirmed that Movant had failed to report past psychiatric history, his prior prescription for Valium, and prior treatment by a psychiatrist or psychologist. (Id. at 66) The doctor stated that Movant complained of anxiety but denied any suicidal ideation. (Id. at 67) The doctor clarified that if Movant had been prescribed Valium in the past, that treatment is indicative of anxiety, not of a bipolar condition, and would not have had an impact on the doctor's diagnosis of Movant as suffering from bipolar disorder. (Id. at 70-71)
At the evidentiary hearing, the Court noted that during Movant's change of plea hearing in December 2015, Movant had seemed to be very bright, engaged, alert, attentive, and “incredibly helpful during the factual basis for the Plea Agreement.” (Id. at 134) The Court indicated that Movant appeared to be the same at the evidentiary hearing. (Id. at 135) The Court also recalled asking Movant at the change of plea hearing whether Movant had ever had treatment for a mental illness. (Id. at 134, referring to CR Doc. 254 at 4-5, where the Court asked Movant if he had “ever been treated for a mental or an emotional disorder” and Movant replied, “No, Sir.”)
In a declaration prepared by counsel Kimerer and filed by the prosecution in September 2017 in response to Movant's motion to withdraw from his plea agreement, Mr. Kimerer stated:
There was never any concern by me at the time of the change of plea [Movant] suffered from any mental disorders. He never indicated any symptoms of being mentally impaired during the many hours I spent with him before and after his change of plea hearing.
He did mention that he was taking medication for anxiety but it was never described by him or seen by me as a significant problem. He mentioned seeing a psychotherapist for the first time when we were preparing for his proffer to the Government on December 4, 2014. It was not until early 2017 he started claiming that he was having psychological problems. I did not know he had been diagnosed as bi-polar until I read his Declaration. He was referred to me by Dr. Stephen Lipsky in April, 2014, a friend and general practitioner, but Dr. Lipsky never mentioned to me that [Movant] was his patient or he suffered from any mental health issues.(CR Doc. 334-3 at 6 (Sealed))
Movant's February 2017 e-mail to Mr. Kimerer substantiates Kimerer's declaration that Movant did not advise Mr. Kimerer that Movant was suffering from concerning psychological problems until early 2017. (Id. at 38) Movant wrote to Mr. Kimerer in February 2017, “I do, however, need to let you know as my attorney that I have been receiving psychiatric help.” (Id.) In the email, Movant informed Mr. Kimerer that Movant had seen a psychologist three weeks in a row and was waiting for approval by the courts to see a psychiatrist so that medication could be prescribed. (Id.) Movant wrote that the case had been taking a toll on him, he was suicidal on more days than not, and that “as of the last year” had “been in a sinkhole of depression.” (Id.) Movant would have not needed to advise Mr. Kimerer about Movant's serious mental health problems if those problems had existed at the time of Movant's meeting with the prosecutors in December 2014 or leading up to Movant's December 2015 change of plea hearing.
Given the absence of evidence that Movant had been treated for serious mental illness prior to early 2017, coupled with Mr. Kimerer's observations that Movant had displayed no symptoms of mental disorder during their extensive meetings prior to his change of plea hearing, the observations of the Court about Movant's mental status at the change of plea hearing, and Movant's own statement to the Court under oath that he had never been treated for a mental or emotional disorder, undersigned concludes that Movant has not established and cannot establish that Mr. Kimerer's representation fell below an objective standard of reasonableness when Mr. Kimerer did not investigate Movant's mental health issues before meeting with the prosecutors and before advising Movant to enter into the plea agreement.
e. Ground 6 - IAC regarding restitution
Movant's Ground 6 claim is that defense counsel Kimerer provided IAC when advising Movant that “the $18,177,199 stipulation in the plea agreement would be attributed only [to] Count One (1), conspiracy [under] 18 U.S.C. § 371[.]” (Doc. 18 at 3) Movant further declares that Mr. Kimerer advised him that Kimerer would argue that Movant was responsible only for a fraction of the more than $18 million restitution amount. (Id.) Movant states that Mr. Kimerer did not advise him that “the conspiracy amount would be used for wire fraud and money laundering at the plea colloquy (verbally) and in the plea agreement (written) to the related dollar amounts in each separate charge.” (Id. at 68)
The record does not substantiate Movant's Ground 6 claim. In his declaration, Mr. Kimerer explained that he had advised Movant “that the sentencing guidelines would take into account the total loss caused by all of the participants in the conspiracy, even though there may have been transactions where Mogler had not been directly involved. This is where we first discussed the $18M loss . . . .” (CR Doc. 334-3 (Sealed) at 8) In the plea agreement, Movant stipulated that “the loss amount for purposes of the Sentencing Guidelines is $18,177,199.” (CR Doc. 437 at 2-3) The Court ensured that Movant understood and agreed with this stipulation during the change of plea hearing. (CR Doc. 254 at 8-9) Given the express terms in Movant's plea agreement and Movant's statements to the Court at the change of plea hearing regarding his understanding that he would be held responsible, along with his co-defendants, for the full amount of $18,177,199 in restitution, and given Mr. Kimerer's sworn declaration, Movant has not stated a claim upon which relief can be granted that Mr. Kimerer had been ineffective in advising Movant about his responsibility for the restitution amount.
Movant has not met and cannot meet his burden of establishing that his counsel's performance regarding his Ground 6 claim was either deficient or prejudicial.
f. Ground 7 - IAC regarding alleged defect in indictment
Movant asserts in Ground 7 that counsel Kimerer provided IAC by advising Movant to sign the plea agreement despite knowing that the indictment was flawed for not charging that the United States was the target of the co-defendants' conspiracy. (Doc. 18 at 4) Movant argues that while the indictment did identify the United States as a target of the fraud and money laundering charges, it did not identify the United States as a target of the conspiracy charge. (Id. at 68) Movant contends that Mr. Kimerer should have challenged the indictment on that basis and should not have advised Movant to enter into the plea agreement. (Id.)
The indictment charged Movant and his co-defendants under Count 1 with conspiracy pursuant to 18 U.S.C. § 371 to commit the offenses of mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, aggravated identity theft in violation of 18 U.S.C. § 1028A, and transactional money laundering in violation of 18 U.S.C. § 1957. (CR Doc. 3 at 21) Title 18 United States Code section 371 addresses conspiracies to commit offenses against the United States or to defraud the United States and requires in relevant part that:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.18 U.S.C. § 371. Thus, section 371 prohibits conspiracies to commit federal offenses (“offense clause” conspiracies) and also conspiracies to defraud the United States (“defraud clause” conspiracies). United States v. Bentson, 220 Fed.Appx. 643, 646 (9th Cir. 2007); United States v. Conti, 804 F.3d 977, 979-80 (9th Cir. 2015). To establish an offense clause conspiracy under 18 U.S.C. § 371, the prosecution must establish: (1) an agreement to engage in criminal activity; (2) one or more overt acts to implement the agreement; and (3) the necessary intent to commit the substantive crime. United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016) (citation and internal quotation marks omitted). See also Ninth Circuit Manual of Model Criminal Jury Instructions § 8.20 (2010 ed.). Movant was charged with offense clause conspiracy to commit the offenses of mail fraud, wire fraud, aggravated identity theft, and transactional money laundering. (CR Doc. 3 at 21)
Thus, under the conspiracy charge of the indictment in this matter, the Government was not required to allege that the conspiracy intended to obstruct a lawful Government function. Accordingly, the indictment was not flawed and Mr. Kimerer was not ineffective for advising Movant to enter the plea agreement based on the indictment. Ground 7 does not state a claim upon which relief can be granted.
g. Ground 8 - IAC involving stipulation in plea agreement
Movant's Ground 8 claim is that defense counsel Kimerer was ineffective when Kimerer advised Movant to enter the plea agreement because the agreement included a stipulation of facts containing a “misleading and non-existent fact.” (Doc. 18 at 5) The fact in question was the stipulated restitution amount of $18,177,199, which Movant contends was “a non-factual dollar amount stipulated in the plea agreement.” (Id. at 68)
Movant does not explain why he believes the stipulated restitution amount was “non-existent” or “misleading.” (Id. at 5, 68, Doc. 61 at 25) Respondent reasonably assumes that Movant intends to challenge the restitution amount based on his argument that the amount as applied to him was between 7 or 10 million dollars. (Doc. 46 at 28)
However, “[r]estitution is not confined to the harm caused by the particular offenses to which [a particular defendant] pleaded guilty. . . . A conspirator is vicariously liable for reasonably foreseeable substantive crimes committed by a coconspirator in furtherance of the conspiracy.” United States v. Riley, 335 F.3d 919, 931-32 (9th Cir. 2003). As the plea agreement accurately reflected, Movant as a leading co-conspirator was liable for the full restitution amount resulting from the conspiracy, which the parties agreed was $18,177,199.
Accordingly, Movant has not stated a claim upon which relief can be granted. On this record, Movant has not established and cannot establish that Mr. Kimerer's representation with regard to Movant's Ground 8 claim was objectively unreasonable.
h. Ground 9 - IAC regarding money laundering factual basis
In Ground 9, Movant argues that counsel Kimerer did not challenge the Court's acceptance of his plea without fully adhering to the requirements of Federal Rule of Criminal Procedure 11 when it failed to apply the correct factual basis for the plea. (Doc. 18 at 6) Movant contends that because the plea agreement identified the money laundering count Movant would plead to as money laundering Count 84 of the indictment rather than money laundering Count 80, his plea to Count 84 necessarily lacked a factual basis, and his plea was not made knowingly or voluntarily. (Id. at 6, 69-72, Doc. 61 at 12-15) Movant notes that the amended judgment in his case perpetuated the error by identifying the money laundering charge to which Movant had pleaded guilty as Count 84. (Id. at 13, citing CR Doc. 439)
Yet, it is apparent that the plea agreement mistakenly identified the number assigned to the money laundering count to which Movant was pleading guilty as Count 84 rather than the intended number 80. The elements and factual basis listed in the plea agreement and discussed at Movant's change of plea hearing were those identified with Count 80 in the indictment, not those identified with Count 84.
The indictment set forth transactional money laundering counts pursuant to 18 U.S.C. § 1957, including Counts 65 through 84. (CR Doc. 3 at 31-33) Count 80 alleged a transaction date of February 2, 2012, a transaction amount of $64,990, that Wells Fargo Bank was the involved financial institution, and the following transaction description: “[c]ashier's check from Pangaea to Lund Cadillac with memo “Jason Mogler.” (Id. at 33) In contrast, Count 84 alleged a transaction date of December 11, 2012, a transaction amount of $300,000, that Wells Fargo Bank was the transaction financial institution, and the transaction description “[t]ransfer from ERC Chicago to TCBD's Wells Fargo Bank account.” (Id.)
The plea agreement stated that Movant would agree to plead guilty to three counts of the indictment, including the money laundering charge in Count 84. (CR Doc. 437 at 1) The plea agreement identified the elements of the money laundering count under 18 U.S.C. § 1657 to which Movant was pleading guilty, including a date of “[o]n or about February 2, 2012” and a property value of “greater than $10,000[.]” (Id. at 11) This factual basis related to the date for indictment Count 80, not Count 84. (CR Doc. 3 at 33) The plea agreement further included the following statement about the money laundering charge to which Movant was agreeing to plead guilty:
On [or] about February 2, 2012, I directed the payment of $64,990 via a cashier's check from Wells Fargo Bank to Lund Cadillac to purchase a Cadillac Escalade for personal use. These funds were originally obtained by means of the conspiracy and scheme to defraud set forth above and charged in the indictment dated September 10, 2015.
[Movant] shall swear under oath to the accuracy of this statement and, if [Movant] should be called upon to testify about this matter in the future, any intentional material inconsistencies in [Movant's] testimony may subject [Movant] to additional penalties for perjury or false swearing, which may be enforced by the United States under this agreement.(CR Doc. 437 at 16-17) Again, this factual basis corresponds to Count 80 of the indictment, not Count 84. During the plea colloquy at Movant's December 9, 2015, change of plea hearing, the Court advised Movant as follows:
THE COURT: Count 84 is the money laundering count under 18 U.S.C. Section 1957, which states: on or about February the 2nd, 2012, in the District of Arizona and elsewhere, you knowingly engaged or attempted to engage in a monetary transaction.
Second, you knew the transaction involved criminally derived property.
And third, the property had a value greater than $10,000.
Fourth, the property was, in fact, derived from the criminal involved in the conspiracy and wire fraud.
And fifth, the monetary transaction took place in the United States.(CR Doc. 254 at 18-19) The Court asked the prosecution to place the factual basis for each of the three counts Movant was pleading to on the record. (Id. at 27) Regarding the factual basis for the money laundering count, the prosecutor stated:
MS. KLAPPER: . . . we can prove that on February 2nd of 2012 [Movant] directed the payment of about $64,000 from the Wells Fargo bank account
that was - - had investor funds to Lund Cadillac to purchase a Cadillac Escalade for his personal use. And these funds, again, were originally placed into that account as a result of the fraud.(Id. at 29) The Court then addressed Movant:
THE COURT: . . . Was everything in the factual basis and everything Miss Klapper just placed on the record, was all of that true?
[MOVANT]: Yes, sir.
. . .
THE COURT: Sir, as to Count No. 1, Count No. 33 and Count No. 84 of the Indictment in case number CR-15-1118, it's a Phoenix case assigned to me, Mr. Mogler, how do you wish to plead, guilty or not guilty?
[MOVANT]: I'd like to plead guilty, sir.
THE COURT: Sir, this Court accepts your plea of guilty. This Court also finds that you've knowingly, intelligently and voluntarily entered a plea of guilty, that you understand the charges, and that there's a factual basis for your pleas, and also that you're competent to enter pleas of guilty.(Id. at 30)
Accordingly, the factual basis for the money laundering charge to which Movant agreed to, and did, plead guilty was that for Count 80 of the indictment, which the parties mistakenly identified as Count 84 in the plea agreement and which the Court also referred to as Count 84 at the change of plea hearing.
Movant's argument essentially is that although: the plea agreement notified Movant of the nature of the money laundering charge against him and the specific factual basis for that charge; and at Movant's change of plea hearing he declared that he understood the charge, told the Court the factual basis for the charge was true, and pleaded guilty to the described charge; the Court should nevertheless find that because there was a mistake about the number assigned the charge that went unnoticed by the parties and the Court, there was plain error, a gross miscarriage of justice, and a violation of Rule 11. (Doc. 18 at 24, 69-72) Movant's argument is misguided.
The Ninth Circuit has observed that:
[a] plea agreement must be knowing and voluntary, which requires that “the defendant possess[ ] an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In addition, Federal Rule of Criminal Procedure 11 requires judges to determine that a plea has a factual basis. Fed. R. Crim. P. 11. To satisfy this requirement, “[t]he judge must determine ‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.'” McCarthy, 394 U.S. at 467, 89 S.Ct. 1166 (citation omitted).United States v. Jones, 472 F.3d 1136, 1140 (9th Cir. 2007). Here, the record demonstrates that Movant, the Court, and the Government each understood that Movant was pleading guilty to the money laundering count in the indictment charging that on or about February 2, 2012, Movant directed the payment of $64,990 by cashier's check from Wells Fargo Bank to Lund Cadillac to purchase a Cadillac Escalade for Movant's personal use and that the funds were obtained by means of the conspiracy and scheme to defraud. Movant attested that he was in fact guilty of the charge. The fact that a typographic error was made in drafting in plea agreement by mistakenly listing Count 84 instead of Count 80 does nothing to alter the fact that Movant voluntarily and knowingly pleaded guilty to the Count 80 money laundering charge as it was defined in the indictment. See e.g., United States v. Blinn, 490 F.3d 586, 587-88 (7th Cir. 2007) (a typographical error in a plea agreement as to a count number did not “rise[ ] to the level of ambiguity that warrants disregarding [appellant's] waiver of his right to appeal.”)
Under these circumstances, Movant has failed to demonstrate that he has established or can establish that Mr. Kimerer's failure to notice the typographic error in the plea agreement was objectively unreasonable or that Movant suffered any resulting prejudice.
i. Ground 10 - IAC regarding plea colloquy on forfeiture rights
Movant's Ground 10 claim is that Mr. Kimerer was ineffective for not challenging the Court's plea colloquy when the Court allegedly failed to address Movant personally to “ensure that [Movant] understood the forfeiture (rights)” in violation of Federal Rule of Criminal Procedure 11(b)(1)(J). (Doc. 18 at 7) Movant concludes that the Court “simply failed to ask a substantial question that gave up substantial rights.” (Id. at 72) The record does not support Movant's claim.
Rule 11(b)(1)(J) requires that “[b]efore the court accepts a plea of guilty . . ., the defendant may be placed under oath and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine the defendant understands . . . any applicable forfeiture.” Fed. R. Crim. P. Rule 11(b)(1)(J).
At the change of plea hearing held on December 9, 2015, the Court addressed the forfeiture section of Movant's plea agreement with Movant personally. (CR Doc. 254 at 15-17, RT 12/09/2015) The forfeiture section of the plea agreement is contained at pages 8 through 10. (CR Doc. 437 at 8-10) The Court summarized this section of the plea agreement, explaining that Movant would “agree to forfeit certain items to the United States Government, all interests in the asset that you may own or exercise control, directly or indirectly.” (CR Doc. 254 at 15) The agreement specifically identified as being subject to forfeiture Lots 3 and 47 in Mexico, and a variety of personal items seized from Movant's former personal residence. (CR Doc. 437 at 8-9) The Court noted that under the agreement Movant agreed to forfeit these specified items and asked Movant if he understood that the “United States Government is seeking to forfeit all of that?” (CR Doc. 254 at 15-16) Movant indicated he understood. (Id. at 16) The Court continued to summarize the plea agreement forfeiture provisions under which Movant agreed “to waive all constitutional and statutory challenges in any matter, including direct appeal, habeas, double jeopardy and any other means.” (Id. at 16-17) The Court asked Movant if Movant agreed to do that, and Movant replied, “Yes, sir.” (Id. at 17) The Court also inquired whether Movant agreed to “waive and agree to hold the Government and its agents and employees harmless from any and all claims whatsoever in connection with the seizure, forfeiture and disposal of the property that I listed on the record above?” (Id.) Movant said he did. (Id.)
On this record it is clear that the Court complied with the requirement that it personally address the Movant and determined that he understood “any applicable forfeiture” resulting from his plea. Fed. R. Crim. P. 11(b)(1)(J).
Movant additionally contends that the Court violated Rule 11 when it did not ask Movant whether he agreed to the plea agreement provision stating that Movant waived “any and all motions, defenses, probable cause determinations, and objections that [Movant] could assert to the indictment or information.” (Doc. 18 at 7) This language was located in the plea agreement paragraph addressing waiver of defenses and appeal rights. (CR Doc. 437 at 7) The record shows the Court addressed this section of the agreement and asked Movant whether he understood that under the plea agreement he would not “be permitted to withdraw from your plea or challenge your judgment and sentence on appeal or in a collateral proceeding, with the exception of an appeal based on ineffective assistance of counsel on the part of your lawyer, or prosecutorial misconduct on the part of the Government lawyers.” (CR Doc. 254 at 13) Movant replied that he understood. (Id.) This colloquy also complied with the Court's duty under Rule 11(b)(1)(N) to inform Movant of “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence[.]” Fed. R. Crim. P. 11(b)(1)(N).
Because the Court properly followed its obligations under Rule 11, Mr. Kimerer could not have been constitutionally ineffective as defined by Strickland for not challenging Movant's plea on the grounds asserted by Movant in Ground 10.
j. Ground 11 - IAC regarding grand jury deliberations
Movant argues in Ground 11 that defense counsel Kimerer provided IAC because he failed to challenge the grand jury proceedings in Movant's case relating to alleged actions of Movant's co-defendant Casimer Polanchek that “produced a biased tainted indictment.” (Doc. 18 at 8, 73) Movant asserts that Polanchek “snuck into the Grand Jury room and interacted with Grand Jury member(s)” and concludes that “Polanchek's presence alone” rendered the process hostile and biased the grand jury. (Doc. 18 at 73)
Respondent counters that Movant's Ground 11 claim is factually unsupported. Undersigned agrees. The information filed in Movant's case charged Mr. Polanchek with a count of false statement under 18 U.S.C. § 1001 and a count of observing grand jury proceedings in violation of 18 U.S.C. § 1507. (CR Doc. 221) The second count alleged that Polanchek appeared at a grand jury proceeding on December 9, 2014, although the proceeding was “related to a subpoena for documents served on him” and he was told by his counsel not to appear. (Id. at 2) The count further alleged that Mr. Polanchek did not identify himself while jury deliberations were ongoing, took notes, and shared this information with the co-defendants. (Id.) In Mr. Polanchek's plea agreement, he admitted that he appeared at the proceeding knowing that the subpoena he had received was for the production of documents rather than his testimony and that his counsel had told him he should not appear. (CR Doc. 223 at 9) Mr. Polanchek acknowledged that he listened to the presentation to the grand jury about subpoenas, including those that involved him, before he was “discovered in the grand jury room and [was] removed.” (Id.) He admitted that he had shared what he heard with several of his co-defendants. (Id.)
Although Movant contends that Mr. Polanchek interacted with the grand jurors and that the jury “produced a biased tainted indictment” (Doc. 18 at 8), he refers to no evidence that Polanchek interacted with the jurors and Movant does not otherwise support his claim that Polanchek's mere presence in the jury room had any impact on the indictment ultimately issued by the grand jury. Accordingly, Movant has not established and cannot establish either that Mr. Kimerer's representation was objectively unreasonable because Kimerer did not challenge the grand jury proceedings, or that Movant suffered any prejudice.
k. Ground 12 - IAC regarding Government discretion
Movant's claim under Ground 12 is that defense counsel Kimerer was ineffective when he advised Movant to enter the plea agreement which Movant contends “gave unlawful discretion” to the Government to declare any provision of plea agreement null and void. (Doc. 18 at 9) Movant argues that due process considerations require that a court determine whether a defendant has breached a plea agreement by a preponderance of the evidence. (Id. at 73)
In a section of the plea agreement addressing “breach of the plea agreement” the agreement provides that
[i]f [Movant] fails to comply with any of the obligations or promises set forth in the Plea Agreement or this Addendum, the United States may . . . in its sole and absolute discretion, declare any provision of the Plea Agreement null and void, without giving [Movant] any right or option to withdraw from the Plea Agreement or the plea of guilty[.](CR Doc. 437 at 5-6) Movant's claim is that because the plea agreement included a clause that granted the Government “unlawful discretion, ” Mr. Kimerer was ineffective for advising Movant to enter the agreement. (Doc. 18 at 9, 73)
On Movant's direct appeal, the Ninth Circuit decided the issue of whether Movant's plea agreement was invalid on the basis Movant claims here. Movant argued in his counseled direct appeal that his plea agreement was invalid due to the inclusion of the above-quoted provision. (Ninth Circuit Case No. 17-10555, Dkt. 18 at 20-22) Movant contended that the discretion provided by the plea agreement terms violated due process and that the prosecution “unleashed the broad discretion” by refusing to acknowledge any cooperation by Movant and used evidence provided by Movant at the evidentiary hearing on Movant's motion to withdraw his plea and at sentencing. (Id. at 21-22) The Ninth Circuit expressly rejected Movant's argument and held that the record did not show that his plea agreement was invalid. (Ninth Circuit Case No. 17-10555, Dkt. 39 at 1)
Given the Ninth Circuit's disposition of this issue, Movant cannot and does not establish that Mr. Kimerer's representation was either constitutionally deficient or that it caused Movant prejudice.
l. Ground 13 - cumulative IAC
In Ground 13, Movant asserts that the cumulative effect of his claims within Grounds 1 through 12 prejudiced him and denied his Sixth Amendment right to effective assistance of counsel. (Doc. 18 at 10) Movant contends that Mr. Kimerer's representation was so faulty as to essentially deny Movant of effective “counsel at every step of the process.” (Id. at 73)
Cumulative error applies where, “although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Where no constitutional error exists in a case, there is nothing to accumulate to a level of a constitutional violation. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000). Because Movant has not stated or established any claim that counsel Kimerer provided ineffective assistance, Movant similarly fails to show a cumulative constitutional violation. 3.Movant's IAC claims against defense counsel Adams
Movant argues in Grounds 14 through 24 that counsel Adams' representation was constitutionally ineffective. Undersigned recommends the Court find that on this record, Movant has not established and cannot establish that Ms. Adams provided IAC under Strickland and its progeny under any of Grounds 14 through 24, for the reasons discussed below.
a. Ground 14 - IAC involving mitigation evidence
Movant's Ground 14 claim is that defense counsel Adams provided IAC by failing “to properly prepare mitigation evidence[.]” (Doc. 18 at 11) Movant contends the Court did not allow defense counsel Adams sufficient time to “investigate, familiarize, or prepare to litigate what was deemed a complex case with a ‘voluminous' amount of discovery. (Id.)
At Movant's sentencing hearing, the Court asked Movant whether he thought Ms. Adams had “done a good job for [him]?” (CR Doc. 473 at 97) Movant replied affirmatively but noted that Ms. Adams had “always been concerned about the amount of time that she's gotten in this case, and she's expressed that to me in terms of her effectiveness[.]” (Id. at 98) The Court stated that it had found Ms. Adams' representation to have been “incredibly effective” and declared that Ms. Adams had not “missed anything.” (Id.) Weighing in, Ms. Adams said that an “incredible amount of material” had been produced in the case and concluded she could not have been able to master the bank records and financial information in the time allotted, but advised the Court that prosecutor Sexton had been very helpful walking her through things and Movant had helped her, but stated that “anybody in this situation is at a disadvantage being in the case as short of a time as I have been in.” (Id. at 88-89)
Despite Movant's argument and Ms. Adams' expressed misgivings about the time allotted her to prepare, Movant has not pointed to evidence establishing either that Ms. Adams' representation was constitutionally ineffective or that her alleged ineffectiveness prejudiced him. Thus, Movant cannot establish and has not established that Ms. Adams' representation insofar as mitigation evidence for sentencing was constitutionally ineffective pursuant to Strickland and its progeny.
b. Ground 15 - IAC regarding grouping of charges
In Ground 15, Movant argues that counsel Adams was ineffective for not properly challenging the grouping of the wire fraud and money laundering charges for sentencing purposes. (Doc. 18 at 12) Movant cites to caselaw that he says hold that wire fraud and money laundering charges may not be grouped because these charges measure harm differently. (Id. at 75) The cases cited by Movant, United States v. Taylor, 984 F.2d 298 (9th Cir. 1993), United States v. Hanley, 190 F.3d 1017 (9th Cir. 1993), and Glover v. United States, 531 U.S. 198 (2001), were decided prior to changes in the United States Sentencing Guidelines applicable to money laundering charges that took effect on November 1, 2001. United States v. Martin, 278 F.3d 988, 1003 (9th Cir. 2002). The November 2001 amendments to the sentencing guidelines in fact provided for grouping of money laundering charges, as follows:
Grouping of Multiple Counts. -- In a case in which the defendant is convicted of a count of laundering funds and a count for the underlying offense from which the laundered funds were derived, the counts shall be grouped pursuant to subsection (c) of § 3D1.2 (Groups of Closely-Related Counts)Id. at 1003-04 (quoting U.S.S.G. § 2S1.1 cmt. n. 6 (2001)).
The Presentence Investigative Report (“PSR”) explained that Movant's sentence was determined by application of the 2013 Guidelines Manual. (CR Doc. 417 at 20) The PSR further detailed:
Counts 33 and 84 are grouped pursuant to USSG § 3D1.2(d) as the offense level is determined largely on the basis of the total amount of harm or loss. Count 1 is grouped with Counts 33 and 84 as the offenses that are the object of the conspiracy are covered under USSG § 3D1.2(d). The guidelines are calculated under USSG § 2S1.1, the guidelines associated with Count 84, as it produces the highest Total Offense Level.(Id.) The PSR calculated a base offense level of 33. (Id. at 20-21) In the calculation, the PSR explained that the applicable guideline to a § 1957 money laundering offense was U.S.S.G. § 2S1.1. (Id. at 20) Applying § 2S1.1(a)(1), the PSR stated that “the base offense level is the offense level for the underlying offense from which the laundered funds were derived if the defendant committed the underlying offense or would be accountable under relevant conduct.” (Id.) The PSR identified the underlying offense as “wire fraud, which is referenced at USSG § 2B1.1” and noted that Movant had been “convicted of an offense that referenced to the § 2B1.1 guideline, therefore the base offense level is 7. USSG § 2B1.1(a)(1).” (Id. at 20-21) An additional 20 levels were added because the offense involved $17,722,887.01 in loss. (Id. at 21 (citing U.S.S.G. § 2B1.1(b)(1)(K))) Further, the base offense level was increased by 4 levels because the offense involved 226 investor victims. (Id. (citing U.S.S.G. § 2B1.1(b)(2)(B))) The base offense level was increased by 2 more levels because “[t]he offense involved sophisticated means.” (Id. (citing U.S.S.G. § 2B1.1(b)(10)))
As is noted above in Section IV(B)(2)(h), the plea agreement included a typographical error mistakenly labeling Count 80 of the indictment as Count 84.
Because Movant's Ground 15 argument is premised on outdated caselaw and Movant's sentence was calculated under the applicable sentencing guidelines, Movant fails to establish that Ms. Adams' representation could be construed as objectively unreasonable or that he could show that he suffered prejudice in this regard. . . .
c. Ground 16 - IAC regarding restitution on money laundering charge
Movant's Ground 16 claim is that counsel Adams provided IAC by not challenging the Court's imposition of $14,019,818.56 in restitution “as the loss amount for a transactional money laundering charge that had an actual loss of $64,990[, ]” using a fact not determined by a jury or admitted by Movant. (Doc. 18 at 13, 75) Movant's argument lacks merit.
The PSR explained that “[t]he offense involved the victimization of 226 investors and the receipt of funds totaling $17,722,877.01” (CR Doc. 417 at 19, ¶ 47) The PSR further detailed that over the course of the conspiracy payments were made to some of the victims and that after subtracting those payments, the net restitution amount was $14,019,818.96. (Id.)
In Movant's plea agreement the parties stipulated that “the loss amount for purposes of the Sentencing Guidelines is $18,177,199.” (CR Doc. 437 at 3) Additionally, the agreement documented that Movant, “[p]ursuant to 18 U.S.C. § 3663 and/or 3663A”
specifically agrees to pay full restitution, totaling at least $18,177,199, to all victims directly or proximately harmed by [Movant's] “relevant conduct, ” including conduct pertaining to any dismissed counts or uncharged conduct, as defined by U.S.S.G. § 1B1.3, regardless of whether such conduct constitutes an “offense” under 18 U.S.C. §§ 2259, 3663 or 3663A.(Id.) Title 18 U.S.C. § 3663(a)(2) provides that “in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, ” restitution may be owed on all losses sustained by “any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663(a)(2). Under § 3663, it is not the case that “restitution must be limited to the loss attributable to the specific conduct underlying the conviction.” United States v. Thomsen, 830 F.3d 1049, 1065 (9th Cir. 2016).
In the factual basis of the plea agreement, Movant stated that he was “aware that, during the course of this fraudulent scheme, the Co-Defendants and I defrauded approximately 226 investors out of approximately $18,177,199.” (CR Doc. 437 at 12) At Movant's change of plea hearing, the Court addressed Movant, stating, “Sir, there's a restitution provision that states that you agree to pay full restitution totaling at least $18,177,199 to all the victims directly or proximately harmed by your relevant conduct, including conduct pertaining to any dismissed counts or uncharged counts. Do you agree with all of that?” (CR Doc. 254 at 9) Movant replied that he did agree. (Id.)
In light of Movant's plea and applicable federal statutory law, it has not and cannot be shown that Ms. Adams was ineffective when she did not challenge the Court's imposition of $14,019,818.56 in restitution.
d. Ground 17 - IAC regarding restitution on wire fraud charge
In Ground 17, Movant contends defense counsel Adams was ineffective for not challenging Movant's sentence requiring restitution of $14,019,818.56 for a wire fraud charge associated with a loss amount of $600,000. (Doc. 18 at 14) Movant argues that a court “may not order restitution beyond the actual loss sustained by the victim.” (Id. at 76) For the same reasons set forth in Section IV(B)(3)(d) immediately above regarding Ground 16, because Movant admitted to a conspiracy under which he and his co-conspirators defrauded 226 victims out of more than 18 million dollars, Movant has not established and cannot establish that counsel Adams was ineffective for not challenging the restitution ordered by the Court.
e. Ground 18 - IAC involving wire fraud sentencing guidelines
Movant alleges in Ground 18 that counsel Adams failed to “litigate and investigate the sentencing guidelines properly” in relation to the Court's application of U.S.S.G. 2B1.1(b)(2)(B) to the wire fraud count as to 226 victims. (Doc. 18 at 15) Movant argues that for sentencing purposes “Count 33 was a one (1) count, 1 victim charge pursuant to the plea agreement[.]” (Id.) In his Reply, Movant notes that while U.S.S.G. § 2B1.1 does not include a definition of the term “victim, ” the application notes refer to “any person” or “any individual.” (Id. at 76) Movant further asserts that Ms. Adams either knew or should have known that this error wrongfully enhanced his sentence. (Id.)
Movant pleaded to one of the charged wire fraud counts, Count 33. (CR Doc. 437 at 1) At sentencing, the Court explained that it had increased the offense level by 4 levels pursuant to U.S.S.G. § 2B1.1(b)(2)(B) because the offense involved 226 victims. (CR Doc. 473 at 69-70) In the plea agreement, Movant admitted that during the course of the fraudulent scheme and conspiracy, he and his co-defendants defrauded “approximately 226 investors out of approximately $18,177,199.” (CR Doc. 437 at 12) Thus, Movant admitted that the full loss and the total number of victims associated with that loss was attributable to him. The parties agreed that application of the 2013 version of the United States Sentencing Guidelines should apply to Movant's sentencing. (CR Doc. 473 at 53-55) As the probation officer who prepared the PSR in Movant's case advised the parties, the “2013 guidelines do not include a victim enhancement for substantial financial hardship, it's just strictly based on the number of victims.” (Id. at 54, citing U.S.S.G. § 2B1.1(b)(2)(B) (2013))
Because Movant admitted responsibility as a co-conspirator for losses to approximately 226 victims, Ms. Adams could not be and was not ineffective for failing to challenge enhancement of his sentence based on U.S.S.G. § 2B1.1(b)(2)(B). Such a challenge would not have been justified under either the facts or applicable law.
f. Ground 19 - IAC regarding guidelines leadership enhancement
Movant's Ground 19 claim is that defense counsel Adams was ineffective for not challenging the Court's enhancement of Movant's sentence based on a finding of Movant's leadership role in the conspiracy. (Doc. 18 at 16) Movant argues that a finding that Movant was an organizer or leader must be established by a preponderance of the evidence and that the Court had expressed uncertainty about Movant's participation in the crimes charged. (Id. at 76)
Movant's claim is not supported by the record. Ms. Adams did object to PSR Paragraph 59 regarding leadership role. (CR Doc. 414 at 22-23) Further, the Court discussed Movant's objection to Paragraph 59 of the PSR, which disputed the conclusion that Movant played a leadership role in the charged offenses. (CR Doc. 473 at 56-61) In its discussion, the Court emphasized evidence indicating Movant's extensive withdrawal and signatory authority over accounts involved in the offenses. (Id. at 56-60) The Court overruled Movant's objection to Paragraph 59 and found that “in terms of [Movant's] leadership and organizational role” the prosecution had established that Movant had “exercised substantial decision-making authority, that of a leader.” (Id. at 61) Moreover, the Court concluded the evidence established that Movant had “directed the other individuals and the activities of the coconspirator[.]” (Id.) The Court found that the role enhancement was appropriate. (Id.) The Court's finding of Movant's leadership role in the conspiracy was amply supported by discovery that Ms. Adams had reviewed, as is set forth in Section IV(B)(2)(a), above.
The Court's statement that it “did not know what [Movant's] participation was” (Id. at 47) was not made in connection with Movant's objection to Paragraph 59 of the PSR and does nothing to detract from the Court's express finding that the evidence supported the conclusion that Movant qualified for an upward adjustment of 4 levels as an organizer or leader in the charged criminal activity.
On this record, Movant has not established and cannot establish that Ms. Adams provided IAC regarding the Court's enhancement of Movant's sentence based on a finding of Movant's leadership role in the conspiracy.
g. Ground 20 - IAC regarding mitigation evidence about Movant's mental health and regarding penalties for testifying at motion to withdraw hearing
In Ground 20, Movant asserts defense counsel Adams provided IAC by not developing Movant's mental health history as mitigation in preparation for Movant's sentencing hearing. (Doc. 18 at 17) Movant claims that Adams was ineffective because based on the record, Adams was not able to establish when Movant developed bi-polar disorder. (Id. at 77) Movant also states that his birth father has mental health issues and that Movant had received special education at a very young age because of physical and sexual abuse by his step-father. (Id.) Additionally, Movant claims Ms. Adams was ineffective by not explaining to Movant “the potential penalties for taking the stand” at the hearing on Movant's motion to withdraw from the plea agreement. (Id. at 17)
During the October 2017 evidentiary hearing on the motion to withdraw Movant's plea, Ms. Adams questioned Movant about seeking medical help for anxiety around the time he first met with the prosecutors in late 2014. (CR Doc. 404 (Sealed) at 85-86) Movant testified that his family doctor, Dr. Lipsky, had prescribed Valium for anxiety. (Id. at 86) On further questioning by Ms. Adams, Movant explained that when he met with the FBI in December 2014, he was seeing a therapist and was taking medication. (Id. at 96) On redirect examination, Ms. Adams asked Movant if he had any of his medical or pharmaceutical records from 2014, asked if Movant had spoken to Dr. Lipsky, and inquired how long Movant had been on Valium. (CR Doc. 405 (Sealed) at 9) Movant answered that he did not have his records and testified he had been on Valium for only a few months. (Id.)
In Movant's objections to the PSR filed just prior to his sentencing hearing, Ms. Adams advised the Court that Movant had only achieved “clarity” after proper treatment for his bipolar disorder and almost two years of sobriety. (CR Doc. 414 at 2) Ms. Adams argued that Movant then began to question his prior statements during free talks, “the circumstances surrounding his plea agreement, and his subsequent cooperation.” (Id. at 2-3) Objecting to PSR Paragraph 4, Ms. Adams reiterated that during Movant's meeting in December 2014 with the prosecution and FBI agents, Movant reported he was taking Valium for anxiety and in fact took a Valium pill during a break during that meeting. (Id. at 17) In her objection to PSR Paragraph 52, Ms. Adams argued that Movant had been suffering from untreated bipolar disorder when he entered into the plea agreement. (Id. at 20)
The transcript makes it evident that at the time of sentencing, the Court was aware that Movant had been diagnosed with bipolar disorder shortly before the hearing on Movant's motion to withdraw plea, and that Movant had alleged he had undergone physical and sexual abuse as a child. (CR Doc. 473 at 48) Ms. Adams emphasized the circumstance that Movant was receiving medication for symptoms of bipolar disorder that Ms. Adams pronounced Movant “probably has needed for a very long time.” (Id. at 85) Ms. Adams expressed that she had confirmed with Movant's sister and other family members that Movant had been physically and sexually abused. (Id. at 91)
Movant fails to identify evidence Adams missed or ignored that would have established when he developed bipolar disorder. Further, Movant has not identified facts which could show that Ms. Adams was ineffective for not advising him of any “penalty” resulting from his testifying at the hearing on his motion to withdraw his plea. Under questioning by Ms. Adams at the October 5, 2017, evidentiary hearing on the motion to withdraw Movant's plea, Movant testified that he had lied at his change of plea hearing. (CR Doc. 404 (Sealed) at 105-112) The Court explained that Movant could be prosecuted for lying under oath. (Id. at 113-114) The Court asked Ms. Adams if she had advised Movant about potential additional charges of perjury and false statements resulting from Movant's testimony that he had lied. (Id. at 114-115) Ms. Adams told the Court that she had talked to Movant about his exposure on perjury and stated that Movant's exposure on perjury charges would be much less than what he faced on the charges to which he had pleaded guilty. (Id. at 116) The Court expressed its concern that Movant needed to be advised that “by coming into Federal Court under oath and saying he lied to the Federal Government, that he faced additional exposure[.]” (Id. at 117) Ms. Adams asked Movant if he understood that he “could be charged in a separate proceeding for perjury because of your testimony today?” (Id.) Movant stated that he understood that. (Id.)
On this record, Movant cannot establish and has not established that Ms. Adams' representation was objectively unreasonable either regarding Movant's mental health history as mitigation or regarding advising Movant of penalty resulting from his testifying at the hearing on his motion to withdraw his plea. Nor does the record reveal evidence on which prejudice could be established.
h. Ground 21 - IAC regarding obstruction of justice enhancement
Movant argues in Ground 21 that Ms. Adams was ineffective because she did not challenge the Court's enhancement of Movant's sentence on the basis that he had obstructed justice at hearings conducted by the Arizona Corporation Commission (“ACC”). (Doc. 18 at 18) Movant contends that the Court did not rule on Movant's objection to Paragraph 22 of the PSR as is required by Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure. (Id.) Movant asserts that the Court never explained at the sentencing hearing why Movant should receive a sentencing enhancement based on obstruction of justice. (Id. at 77) The record does not support Movant's claim.
At the sentencing hearing, the Court addressed Movant's objection to PSR Paragraph 22, stating that Movant objected to the reference that Movant and co-defendant Hinkeldey colluded regarding Hinkeldey's testimony at the ACC hearing. (CR 473 at 16) Ms. Adams advised the Court that Movant admitted meeting with Mr. Hinkeldey prior to Hinkeldey's testimony to the ACC but denied talking to Hinkeldey about “putting up false testimony.” (Id. at 17) Ms. Adams advised the Court that Movant disagreed with the FBI agents' 302 investigative report statement that the Movant confessed to colluding with Mr. Hinkeldey prior to the ACC hearing to provide false testimony. (Id.) On questioning by the Court, the prosecution stated that Movant in fact did tell FBI agents that he and Hinkeldey had “met to conspire to present false testimony in the ACC hearing” but that Movant had recently changed his position. (Id.) The Court asked if anything in the record corroborated “either way in terms of what happened[.]” (Id. at 18) Prosecutor Klapper advised the Court there were at least four persons then in the courtroom who were present when Movant initially stated he had colluded with Mr. Hinkeldey. (Id.) Ms. Adams verified that the meeting between Movant, defense counsel, the prosecution, and the FBI had not been recorded. (Id.) The Court responded, “I appreciate that. The objection to number 22 is overruled.” (Id.)
Rule 32(i)(3)(B) requires that at sentencing, a court “must-for any disputed portion of the presentence report or other controverted matter-rule on the dispute or determine that ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing . . . .” Fed. R. Crim. P. 32(i)(3)(B). “Rule 32 findings need not be detailed and lengthy, but they must state the court's resolution of the disputed issues.” United States v. Wijegoonaratna, 922 F.3d 983, 990 (9th Cir. 2019). A district court has complied with the requirements if the record indicates that the court was aware of the defendant's objections “but disagreed with them.” Id. Here, the record plainly shows that the Court was aware of Movant's objection to PSR Paragraph 22 and also that the Court expressly ruled on the objection. Therefore, Ms. Adams could not be and was not ineffective pursuant to Strickland regarding the obstruction of justice enhancement.
i. Ground 22 - IAC regarding Government's alleged breach of plea agreement
Movant contends in Ground 22 that defense counsel Adams was ineffective for not challenging the Court's failure to conduct “a hearing to resolve the argument that there was a breach of the plea [agreement] by the Government.” (Doc. 18 at 19) Movant asserts that a court hearing was required to determine whether a breach of the plea agreement had occurred. (Id. at 77) Respondent concludes that the Court implicitly ruled on the question of whether the Government had breached the plea agreement when it denied Movant's motion to withdraw. (Doc. 46 at 32)
Significantly, the Ninth Circuit on Movant's direct appeal rejected Movant's claim that the Government had breached the plea agreement. (Ninth Circuit Case No. 17-10555, Dkt. 39 (“the record does not show that his plea was involuntary, that the Government breached the plea agreement, or that the plea agreement is invalid.”)) As noted, issues ruled on in a previous direct appeal are not reviewable in a later § 2255 petition. Stein, 390 F.2d at 626.
Given the Ninth Circuit's holding that the record failed to show the Government breached the plea agreement, it is axiomatic that Ms. Adams could not have provided constitutionally ineffective assistance of counsel by not challenging the Court's failure to hold a hearing on that question. Movant has failed to state a claim on this ground.
j. Ground 23 - IAC regarding Movant's motion to withdraw from plea agreement
In Ground 23, Movant argues defense counsel Adams was ineffective for her purported failure to “properly litigate the grounds for [Movant's] withdraw[al] from the plea agreement presentencing[.]” (Doc. 18 at 20) Movant contends that Ms. Adams should have argued at the October 2017 hearing on his motion to withdraw from the plea agreement that discovery which was not available to Movant before he entered into the plea agreement was newly discovered evidence which supported his request for withdrawal. (Id. at 20, 77)
Federal Rule of Criminal Procedure 11 provides that withdrawal of a plea prior to sentencing is freely allowed where a defendant shows “a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). The Ninth Circuit has explained that fair and just reasons permitting withdrawal of a plea may include intervening circumstances, inadequate Rule 11 plea colloquies, newly discovered evidence, “or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009) (citation and internal quotation marks omitted). The defendant bears the burden of establishing at least one of such conditions exist. Id. The Ninth Circuit has instructed that “the generous ‘fair and just reason' standard does not require that the defendant show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial.” United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005). Newly discovered evidence may justify withdrawal if the evidence “could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty had [she] known about the evidence prior to pleading.” Id. at 1011-12. However, a defendant's mere “belief that the Government had a weaker case than he originally thought does not constitute a fair and just reason to withdraw his guilty plea.” Showalter, 569 F.3d at 1156. Moreover, “a defendant may not withdraw a guilty plea because his sentence may be different from that which was originally anticipated.” Id.
Movant does not identify what specific evidence he had been unaware of that would have motivated him not to plead guilty had he known about it prior to entering into the plea agreement. In the Amended Motion, Movant states that “newly discovered evidence in the form of discovery brought [to] light that [Movant] was directed by previous counsel [Kimerer] to plead guilty to a charge/count [of which Movant] was actually innocent.” (Doc. 18 at 20) In his Reply, Movant explains only that he had reviewed discovery in April and May 2017 and after his review of 300, 000 pages of documents had filed his motion to withdraw his plea. (Doc. 61 at 28)
Movant's vague claim does not establish that newly discovered evidence existed which would support a finding there was a fair and just reason for requesting the withdrawal of his plea. Vague and speculative assertions that Ms. Adams was ineffective fail to warrant a hearing, let alone relief, under § 2255. See United States v. Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1986). Accordingly, Ms. Adams' representation could not have been objectively unreasonable when she did not argue that discovery provided after Movant entered into the plea agreement was newly discovered evidence that supported his request for withdrawal.
k. Ground 24 - cumulative IAC
Movant asserts in Ground 24 that the cumulative effect of his claims within Grounds 14 through 23 prejudiced him and denied his Sixth Amendment right to effective assistance of counsel. (Doc. 18 at 21, 77) As noted in Section IV(B)(2)(1) above regarding defense counsel Adams, cumulative error applies where, “although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.” Frederick, 78 F.3d at 1381. Where no constitutional error exists in a case, there is nothing to accumulate to a level of a constitutional violation. Olivarez, 292 F.3d at 957. Because Movant cannot establish that counsel Adams provided ineffective assistance regarding any of his Grounds 14 through 23 claims, he fails to state a claim for a cumulative constitutional violation.
C. Evidentiary hearing
Movant requests an evidentiary hearing. (Doc. 16 at 10, Doc. 18 at 39-40) To show that he is entitled to an evidentiary hearing, Movant must allege “specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotations and citations omitted). For the reasons set forth above in Section IV(A) and (B), undersigned recommends the Court find that Movant has failed to establish he is entitled to an evidentiary hearing on any of the Grounds in the Amended Motion and that instead the evidence conclusively supports that: Grounds 1 through 13 claiming IAC against counsel Kimerer fail on the merits; (2) Grounds 14 through 24 asserting IAC against counsel Adams fail on the merits; (3) Ground 25 alleging prosecutorial misconduct fails on the merits; (4) Ground 26 alleging prosecutorial misconduct was decided against Movant on direct appeal and cannot be raised in this § 2255 action; and (5) Grounds 27 through 38 are waived pursuant to the terms of Movant's plea agreement. Accordingly, undersigned recommends that the Amended Motion be denied without an evidentiary hearing.
V. CONCLUSION
As discussed above, the grounds in the Amended Motion either were waived in the plea agreement, have been decided in this case by the Ninth Circuit, or are without merit and do not warrant an evidentiary hearing. Further, Movant has not made a substantial showing of the denial of a constitutional right in any ground of his Amended Motion; thus, a certificate of appealability should be denied. Accordingly, IT IS RECOMMENDED that Movant Jason Todd Mogler's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 16) be denied without an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.