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Prigge v. USA

United States District Court, D. Arizona

January 23, 2018

Terance Taylor Prigge, Petitioner,
v.
USA, Respondent.

          REPORT AND RECOMMENDATION

          Honorable Michelle H. Burns United States Magistrate Judge.

         Terance Taylor Prigge (“Movant”), who is confined in the Federal Correctional Institution in Phoenix, Arizona, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“2255 motion”). (CV-17-00327-PHX-GMS, “CVDoc.” 1; CR-13-01363-PHX-GMS, “CRDoc.” 240.) He asserts several claims of ineffective assistance of trial and appellate counsel. The United States of America (the “government”) filed a Response. (CVDoc. 6.) Movant then filed a Reply. (CVDoc. 12.)

         BACKGROUND

         On October 1, 2013, Movant was charged by Superseding Indictment with the following crimes: conspiracy to possess with the intent to distribute controlled substance (count 1), promotional money laundering (count 2), international money laundering (count 3), money laundering conspiracy (count 4), and possession with the intent to distribute cocaine (count 5). (CRDoc. 41.) Co-defendant Matthew Gruender (“Gruender”) was also charged in the drug conspiracy count. (Id.) The court appointed Robert McWhirter (“trial counsel”) to represent Movant. (CRDoc. 11.)

         Movant proceeded to trial on the charges. At trial, the government presented evidence of Movant's drug trafficking operation. The indictment charged that the conspiracy took place from “at least in or about April, 2010 to on or about September 21, 2013.” (CRDoc. 41.) Co-conspirator Shane Grafman testified at trial and described a conspiracy involving Movant, himself and others, to traffic in marijuana and cocaine. The drugs were obtained from Mexico and stored in stash houses in Phoenix before being shipped to other places in the United States. In 2010, Grafman worked on Movant's behalf to secure and transport 100 kilograms of cocaine from Latin America, to the Chicago area on private jets, each flight carrying 25 kilograms. The first of the flights was organized by Movant and the remaining three were organized by Grafman in coordination with an associate, Jeff Labriola, who also testified at trial. Grafman testified that Movant was on two of the flights, and on a third, Movant was waiting in Chicago to receive the cocaine from Grafman and Labriola. Emails containing flight records corroborated Grafman's and Labriola's testimony. Travel records and other testimony corroborated Grafman's testimony. Movant then organized the transportation of drug proceeds from Chicago to Phoenix.

         In 2010, police stopped Grafman and co-conspirator Patrick Burke in a car in Oklahoma, in which they discovered nearly $700, 000 in drug proceeds related to the drug conspiracy in a secret compartment. Also, on November 4, 2010, Movant was with nearly $300, 000 in cash on an Amtrack train in New Mexico. In late 2010, Grafman left the conspiracy.

         On September 21, 2013, Movant and co-defendant Gruender flew to DeKalb, Illinois on a privately retained jet. The airport manager became suspicious and called police. Both Gruender and Movant were questioned and gave inconsistent answers as to their purpose for being in town. Twenty-two kilograms of cocaine were later found inside two duffel bags found on the plane. Grafman testified that the Dekalb airport was utilized when transporting drugs by plane because it was remote and staffed by only one college student, and unstaffed at night.

         Co-defendant Gruender testified that he booked private flights for Movant to further his drug trafficking over the years, and that his role expanded in 2013, because Movant needed more help as the majority of his associates were incarcerated. On July 13, 2013, Gruender wired $100, 000 to an account in Guatemala at Movant's request to further a relationship with a drug supplier. Later in the year, on September 21, 2013, Gruender, in exchange for $10, 000, traveled with Movant to transport the cocaine to the DeKalb airport (as described further above). Three days after this flight, law enforcement searched the trash receptacle outside Movant's home and found two Western Union wire transfer receipts, dated September 10 and 14, 2013, which showed Movant as the sender and an individual in Guatemala as the recipient.

         On September 25, 2013, both Movant and Gruender were arrested and their homes in Arizona searched. Found in Gruender's home were printed emails from Movant to Gruender instructing him wire $100, 000 to an account in Guatemala, as well as a large electric welder that had been hollowed-out to transport and conceal money and drugs. The welder had been described by Grafman as an item used by Movant's drug trafficking operation. Found inside Movant's truck was a handwritten scrap of paper containing the account number from which Gruender had wired the money to Guatemala, as well as numerous documents detailing large payments for goods and services in cash. Inside of Movant's trash receptacle were money wire receipts reflecting their purchase from a Phoenix grocery store. Inside Movant's home were found various receipts for tens of thousands of dollars worth of home remodeling services paid for in cash. Further investigation into Movant's finances revealed a largely all-cash lifestyle. In addition, Grafman testified that he helped purchase a PT Cruiser car for the organization in 2010, and that the vehicle was outfitted with a secret compartment for holding drugs and money. Gruender testified that in September, 2013, he and Movant had been transported in around Chicago in a PT Cruiser that had a secret compartment, and that this vehicle had been used by Movant's organization for years prior to 2013.

         After five days of trial, on February 12, 2015, the jury convicted Movant of all counts. (CRDoc. 162.) Subsequently, the court sentenced Movant to concurrent terms of 320 months on counts one and five, to run concurrent with a term of 240 months on counts two, three, and four. (CRDoc. 194.)

         Movant appealed his judgment and sentence. Movant's trial counsel represented him on appeal. On September 18, 2015, counsel filed an appellate brief, raising two issues: that the District Court erred in failing to rule on his motion to preclude the use of Movant's prior conviction to impeach his testimony, and that the District Court failed to sever the five charged counts after the superseding indictment adding a different conspiracy involving multiple, unrelated defendants. (CVDoc. 6, Exh. 10.) Movant later claimed he never received a copy of counsel's opening brief before it was filed, despite his multiple requests. (CVDoc. 1 at 18; CRDoc. 240 at 18.) Movant requested that counsel supplement his brief with several issues counsel had not raised in his brief.

         On April 25, 2016, Movant filed a pro se supplemental brief with the Ninth Circuit, setting forth the issues counsel declined to include in his brief. (CVDoc. 6, Exh. 1.) On May 10, 2016, the Ninth Circuit declined to consider the brief, as Movant was represented by counsel. (Id., Exh. 2.) Movant then filed a pro se motion with the Ninth Circuit to replace counsel, for the reason that counsel would not argue the issues Movant wanted addressed. (Id., Exh. 5.) In counsel's response to the motion, he indicated that he had considered the issues Movant requested that he raise, but, exercising his professional judgment did not believe they had a chance of success. (Id., Exh. 6.) On July 19, 2016, the Ninth Circuit denied the motion. (Id., Exh. 8.)

         On July 29, 2016, the Ninth Circuit affirmed Movant's conviction in United States v. Prigge, 830 F.3d 1094 (9th Cir. 2016). The United States Supreme Court denied Movant's petition for writ of certiorari on January 9, 2017, in Prigge v. United States, 137 S.Ct. 697 (2017).

         On February 1, 2017, Movant filed his 2255 motion, raising nine claims of ineffective assistance of counsel:

(1) “Counsel was ineffective for not requesting a specific unanimity instruction as to count one and count four[;]”
(2) “Counsel was ineffective for failing to object to the lack of venue as to count two of the superseding indictment[;]”
(3) “Counsel was ineffective for failing to move to dismiss count two as there was no evidence of promotional money laundering[;]”
(4) “Counsel was ineffective for failing to raise the issue that there was no evidence that the $100, 000 was the proceeds of specified unlawful activity[;]”
(5) “Counsel was ineffective for failing to raise in a Rule 29 Motion or on appeal that there was insufficient evidence of a money laundering conspiracy[;]”
(6) Counsel was ineffective for failing to object to the Government's closing argument;
(7) Counsel was ineffective for failing to challenge on appeal the Court's admission of Joshua Hopkins' statements through the testimony of a DEA agent;
(8) Counsel was ineffective for failing to object to the presentence investigation;
(9) “Counsel's cumulative errors amounted to prejudice, even if no ...

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