United States District Court, D. Arizona
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
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.
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.
And Procedural Background
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.
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.
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.
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
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. United States
v. Mounts, 584 F. App'x 482, 482-85 (9th Cir. 2014).
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). This matter is before the Court on
petitioner's objections to the Report And
Recommendation. See Movant's Objections
Ineffective Assistance Of Trial Counsel
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
H. conceded guilt on two counts during closing argument;
I. failed to successfully argue that text messages should be
J. failed to object to the restitution order; and
K. failed to argue unfair sentence disparities among
Motion Under 28 U.S.C. § 2255 (Doc. #1) at
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
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.
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
Statute Of Limitations Issue
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.
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.