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Carlucci v. United States

United States District Court, D. Arizona

April 4, 2018

GINO CARLUCCI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On July 25, 2011, a jury found petitioner guilty of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and willful filing of a false tax return in violation of 26 U.S.C. § 7206(1). Jury Verdict (Doc. #238 in Case No. 10-cr-464-KHV). On August 17, 2012, the Court, sitting by designation in the District of Arizona, sentenced petitioner to 188 months in prison. Judgment In A Criminal Case (Doc. #412 in Case No. 10-cr-464-KHV).

         On March 2, 2016, petitioner filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody (Doc. #1 in Case No. 16-cv-588, Doc. #477 in Case No. 10-cr-464-KHV). On May 4, 2017, the Honorable Michelle H. Burns issued a Report And Recommendation (Doc. #23) which recommended that the Court overrule petitioner's motion. This matter is before the Court on petitioner's objections to the Report And Recommendation. See Movant's Objections To Proposed Report And Recommendation And Recommended Disposition (Doc. #25) filed May 19, 2017. On December 27, 2017, the government responded to petitioner's objections. Government's Response To Petitioner's Objections To Report And Recommendation (Doc. #31). For reasons stated below, the Court overrules petitioner's objections and approves and adopts Judge Burns's recommendation. Accordingly, the Court overrules petitioner's Section 2255 motion.

         Factual And Procedural Background

         Because the Report And Recommendation summarizes petitioner's criminal activity and conviction in great detail, the Court provides an abbreviated overview of the factual and procedural history of this case. Doc. #23 at 2-11. In May of 2004, petitioner and Wayne Mounts began a scheme to defraud Joseph Flickinger. They targeted Flickinger because he had amassed more than $1 million in cash and assets through a ponzi scheme which defrauded many investors. Petitioner and Mounts met Flickinger and learned of his fortune through Robert Garback, a limo driver.

         Petitioner and Mounts presented Flickinger with multiple fabricated investment opportunities. After some negotiation, Flickinger accepted the following agreement: he would help petitioner and Mounts pay a $200, 000 deposit to the Securities and Exchange Commission (“SEC”). After they paid the deposit, the SEC would release $5.4 million of assets which the SEC had purportedly seized from petitioner. In turn, petitioner and Mounts would transfer Flickinger's ponzi scheme proceeds to an offshore bank to avoid government detection. Petitioner did not have any seized assets, owed no deposit fee to the SEC and did not intend to transfer Flickinger's funds offshore.

         In late May of 2004, Flickinger, Garback and victims of Flickinger's ponzi scheme began transferring funds to the bank account of Associated Legal Mediation Services (“ALMS”) - a shell corporation that petitioner and Mounts controlled. Flickinger and Garback also gave petitioner and Mounts two cars and two expensive watches to sell to help pay the SEC deposit. In late June of 2004, Flickinger and his ponzi scheme victims (at his direction) began wiring the remaining ponzi scheme proceeds to the corporate bank account. Flickinger believed that petitioner and Mounts would transfer these funds offshore. Flickinger also transferred his Ohio condominium to petitioner and Mounts, so they could sell it and move the proceeds offshore.

         In late July of 2004, Flickinger completed his transfers to the ALMS account. Petitioner then sent incriminating, anonymous fax messages to federal agents, hoping that they would arrest Flickinger - which they did. Around the same time, Mounts began withdrawing funds from the corporate account for personal use and that of petitioner. They used several tactics to avoid government detection, including funneling funds through petitioner's relatives, transferring assets to other shell corporations, fabricating loan documents and purchasing large assets such as boats. For example, Mounts wired funds to petitioner's father-in-law, who transferred money to petitioner's wife and bought a Scarab boat. Petitioner and Mounts forged names on the boat title, created a false document which stated that Flickinger transferred the boat to a fake corporation and stored it at an acquaintance's home. Petitioner did not report any of these proceeds to the Internal Revenue Service. In April of 2005, he reported $24, 800 of business income on his 2004 tax return.

         On April 8, 2010, a grand jury charged petitioner with conspiracy to commit money laundering (Count 1), conspiracy to defraud the United States (Count 2), willful filing of a false tax return (Count 3) and witness tampering (Count 4). Indictment (Doc. #1 in Case No. 10-cr-464-KHV). On July 25, 2011, the jury found petitioner guilty of Counts 1 through 3. Judgment (Doc. #412 in Case No. 10-cr-464-KHV). On August 17, 2012, the Court sentenced petitioner to 188 months in prison. Id. Petitioner appealed his conviction and sentence directly to the Ninth Circuit Court of Appeals, which affirmed.[1] United States v. Mounts, 584 F. App'x 482, 482-85 (9th Cir. 2014).

         On March 2, 2016, petitioner filed a Motion Under 28 U.S.C. § 2255 (Doc. #1) with the aid of counsel, John D. Kirby. In his Section 2255 motion, petitioner asserts three grounds for relief: (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel and (3) prosecutorial misconduct. These claims include multiple sub-claims which the Court addresses in detail below. As noted, on May 4, 2017, Judge Burns issued a Report And Recommendation which recommended that the Court overrule petitioner's motion. Doc. #23. On May 19, 2017, petitioner filed his objection to the Report And Recommendation. Movant's Objections (Doc. #25). On November 30, 2017 the Court entered an Amended Order To Show Cause (Doc. #29) which directed the “government to show cause why the Court should not sustain Movant's Objections” because the government had not responded to them. On December 27, 2017, the government responded. Government's Response (Doc. #31).[2] This matter is before the Court on petitioner's objections to the Report And Recommendation. See Movant's Objections (Doc. #25).

         Analysis

         I. Ineffective Assistance Of Trial Counsel

         First, petitioner asserts that trial counsel provided ineffective assistance. In particular, petitioner alleges that his attorneys provided ineffective assistance because they:

A. ineffectively argued a statute of limitations issue;
B. failed to challenge the source of government evidence;
C. had a personal interest conflict with him;
D. failed to interview and call the proper witnesses;
E. failed to properly rectify the issue of sleeping jurors;
F. failed to invoke the marital communications and adverse spousal testimony privileges;
G. failed to be present at every stage of trial;[3]
H. conceded guilt on two counts during closing argument;
I. failed to successfully argue that text messages should be excluded;
J. failed to object to the restitution order; and
K. failed to argue unfair sentence disparities among similarly-situated defendants.

Motion Under 28 U.S.C. § 2255 (Doc. #1) at 5-12.

         To establish ineffective assistance, petitioner must show that counsel's (1) deficient performance (2) caused prejudice - a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Petitioner must prove that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment” to establish deficient performance. Id. at 687. In other words, petitioner must prove that counsel performed “below an objective standard of reasonableness.” Id. at 688. The Court may determine the second element, prejudice, before analyzing counsel's performance. Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001). If the Court determines that the alleged error did not prejudice petitioner, it does not need to consider counsel's performance. Id.

         In her Report And Recommendation, Judge Burns notes that some of the foregoing claims of ineffective assistance are procedurally barred because petitioner did not raise them on direct appeal. Doc. #23 at 14-15 (citing Bousely v. United States, 523 U.S. 614, 621-22 (1998) (must show cause and prejudice to bring habeas claim not raised on direct appeal). Petitioner objects, arguing that procedural bars do not apply to ineffective assistance claims. Movant's Objections (Doc. #25) at 2-3.

         Supreme Court precedent supports petitioner's objection. In Massaro v. United States, 538 U.S. 500, 504 (2003), the Supreme Court held that the procedural default rule which requires petitioners to directly appeal claims before raising them on collateral review does not apply to ineffective assistance claims. Further, the Ninth Circuit has stated that claims of ineffective assistance “are generally inappropriate on direct appeal.” See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003); see also United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000). Thus, in light of Massaro and Ninth Circuit precedent, petitioner did not procedurally default any ineffective assistance claims by failing to raise them on direct appeal.

         A. Statute Of Limitations Issue

         On January 4, 2011, District Judge Roslyn O. Silver denied petitioner's motion to dismiss Count 1 (conspiracy to commit money laundering) based on the statute of limitations. She reasoned as follows:

[Petitioner] was indicted on April 8, 2010. Thus the conspiracy charge is timely provided [petitioner] acted in furtherance of the conspiracy after April 8, 2005. According to the indictment, [petitioner] filed a false tax return on April 12, 2005. The false tax return allegedly was in furtherance of the money laundering conspiracy. [Petitioner] also took steps after April 2005 to hide assets from the government, such as a boat and trailer. Given the date of these alleged actions, the conspiracy to commit money laundering count is timely.

Order (Doc. #120 in Case No. 10-cr-464) at 1. Petitioner generally asserts that his retained attorney, Jason Lamm, provided ineffective assistance when he failed to successfully argue that the Court should have dismissed Count 1 because the statute of limitations had expired - i.e. more than five years had elapsed since his last overt act in furtherance of the money laundering conspiracy. Movant's Brief In Support (Doc. #2) at 3-13. In particular, petitioner asserts that counsel should have argued that (1) petitioner withdrew from the conspiracy before April of 2005; (2) under Grunewald v. United States, 353 U.S. 391, 401 (1957), acts of concealment “after the central criminal purposes of a conspiracy ha[s] been attained” do not constitute an overt acts in furtherance of the conspiracy; and (3) the law did not require petitioner's tax return to report illegally obtained funds. See id.

         Judge Burns recommended that the Court overrule this claim because the omitted arguments for dismissal “fail[] factually and legally.” Report And Recommendation (Doc. #23) at 17. Petitioner objects, asserting that Judge Burns “misunderstood the facts of this argument and relevant law pertaining to it.” Movant's Objections (Doc. #25) at 3.

         1. Withdrawal ...


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