Court: District Court, D. Delaware; July 11, 2017; Federal District Court
Carolyn Wall, a federal inmate at USP Hazelton, filed a motion to vacate her sentence under 28 U.S.C. § 2255, which the government opposed. The court denied her motion without an evidentiary hearing. Wall was implicated in a fraudulent scheme involving counterfeit checks presented at various retailers, leading to over $100,000 in losses between July 2010 and March 2011. Following investigations, police discovered evidence linking her to the fraud, including blank and counterfeit checks, personal identification documents, and check-writing software. She faced a thirty-count indictment for multiple offenses, including conspiracy to commit wire fraud and aggravated identity theft.
Wall admitted to her involvement in the fraud but claimed her actions were due to duress, citing manipulation by family members and a romantic partner. She sought to introduce expert testimony from psychologist Dr. Catherine Barber regarding the impact of her past abuse on her susceptibility to coercion. However, the District Court excluded this testimony for lack of proper foundation. Wall was convicted on all counts and sentenced to a total of 81 months in prison, followed by supervised release. Her appeal, which argued for the inclusion of Dr. Barber’s testimony to challenge the intent to defraud, was rejected by the Third Circuit, affirming her conviction.
Movant filed a pro se motion under 28 U.S.C. § 2255, raising four claims: (1) denial of the right to a speedy trial, (2) improper use of a proffer statement at trial, (3) failure to sequester case agents during testimony, and (4) tainted trial evidence due to unreasonable search and seizure. Under § 2255, a federal prisoner can seek to vacate or correct a sentence if it violates constitutional rights or exceeds legal authority. Relief is reserved for extraordinary circumstances, and claims not raised on direct appeal are procedurally defaulted unless the movant shows cause and prejudice or actual innocence. To establish cause, a movant must identify an objective factor that impeded counsel from raising the claim. Ineffective assistance of counsel can serve as cause if it meets constitutional standards set forth in Strickland v. Washington, which requires demonstrating both substandard performance and resulting prejudice. The record indicates that movant defaulted on all claims by not raising them on direct appeal and attempts to attribute this to ineffective counsel. To succeed in an ineffective assistance argument, movant must show that counsel's performance fell below professional norms and that there’s a reasonable probability of a different outcome had the errors not occurred. Additionally, concrete allegations of actual prejudice must be substantiated to avoid dismissal. The Strickland standard is stringent, favoring the presumption of reasonable representation.
Defense counsel's failure to present claims one through four on direct appeal does not establish cause for the movant's default, as the court finds that the counsel's actions did not constitute constitutionally ineffective assistance.
Regarding Claim One, which alleges a violation of the right to a speedy trial, the movant argues that the pursuit of psychiatric evaluations created a conflict with counsel and led to a delay that violated her Sixth Amendment rights. The court identifies two distinct periods of delay: (1) a 158-day interval from February 16, 2012, to July 23, 2012, and (2) an 87-day interval from January 18, 2013, to April 15, 2013, totaling 245 days attributed to obtaining psychological evaluations.
The court emphasizes that the presumption exists that defense counsel's reasons for seeking these evaluations were sound trial strategy, particularly given the findings of Dr. Barber, who indicated that the movant's psychological issues and vulnerability were significant factors in her defense. Consequently, the 245-day delay does not constitute a violation of the Sixth Amendment.
Further, the court references the precedent set in Barker v. Wingo, which outlines four factors to evaluate claims of speedy trial violations: the length of the delay, the reason for the delay, the defendant's assertion of the right, and any prejudice to the defendant. Although the 245-day delay does not necessitate a full Barker analysis due to being less than a year, the total delay of 711 days from indictment to trial triggers a presumption of prejudice, favoring the movant on this factor.
The key inquiry regarding the reason for delay in a criminal trial is determining whether the government or the defendant is primarily responsible. Deliberate government actions that hinder the defense are heavily scrutinized, while neutral reasons, like negligence or court congestion, are judged less harshly, provided there is no evidence of bad faith by the prosecution. Delays due to joint requests, plea negotiations, or the defendant's own continuances are charged against the defendant. In this case, a 711-day delay from the defendant's initial appearance on May 4, 2011, to the trial beginning on April 15, 2013, was attributed to several factors: scheduling multiple trials, pretrial motions, competency and psychological evaluations, and other court proceedings aimed at justice. The document outlines specific periods of time excluded from the 70-day limit under the Speedy Trial Act, detailing various court orders and motions that accounted for the delays.
The 711-day delay in the case resulted from several factors: (1) plea negotiations leading to the scheduling of two change of plea hearings on November 9, 2011, and October 25, 2012; (2) the movant's rejection of plea offers just before these hearings, which led to trials being scheduled for April 9, 2012, and February 5, 2013; (3) the defense's request for a continuance of the April 2012 trial for a competency evaluation; and (4) a similar request for a continuance of the February 2013 trial for a psychological evaluation. The court found that these reasons for delay weighed against the movant's claim for a speedy trial. Specifically, the 245-day delay for psychological evaluations was also deemed unjustified, as defense counsel's strategy of pursuing these evaluations was considered sound. Evaluations by Dr. Barber in both 2012 and 2013 indicated that the movant was competent but suffered from significant psychological issues, affecting her culpability and decision-making. Dr. Barber testified that psychological factors significantly influenced the movant's involvement in the charged offenses, highlighting her vulnerability to perceived threats from her romantic partner. Consequently, the defense's strategy to use these evaluations in trial was justified, and thus this aspect of the delay also weighed against the movant. Regarding the assertion of her speedy trial rights, the court noted that movant’s counsel did not file any formal motions to address speedy trial issues. Although the movant claimed to have discussed her concerns with counsel, there was no record evidence to support this, and such discussions did not fulfill the requirement for formally asserting her rights. Therefore, this factor also weighed against the movant.
Barker's fourth factor of actual prejudice is evaluated based on three interests: (1) preventing oppressive pre-trial incarceration, (2) minimizing the accused's anxiety, and (3) limiting the impairment of the defense due to fading memories or loss of exculpatory evidence. The most significant prejudice arises from a compromised defense. In this case, the movant was not incarcerated prior to trial and did not object to her release conditions. There was no indication of lost witnesses due to the delay. Although the movant claimed her defense was "strained" and required attendance at numerous psychiatric appointments, these assertions did not demonstrate actual impairment of her defense. Consequently, the court concluded that this factor weighed against the movant.
The court determined that the government exhibited reasonable diligence in pursuing the case, with a significant portion of the 711-day delay attributable to psychological evaluations. Given the lack of demonstrated prejudice, the court found the movant's speedy trial claim unmeritorious under Barker. It noted that an attorney is not ineffective for failing to pursue meritless claims. Therefore, defense counsel was not deemed ineffective for not raising the speedy trial issue on appeal. The movant's failure to demonstrate ineffective assistance precluded further examination of prejudice. Moreover, the movant's default of her claim could not be excused under the miscarriage of justice exception due to the absence of new reliable evidence of actual innocence, leading to a procedural bar on claim one.
In relation to claim two, the movant entered into a proffer agreement with the government on July 18, 2012. This agreement permitted the government to utilize any statements made by the movant during the proffer for cross-examination or rebuttal at trial, should she choose to testify.
Movant acknowledged her understanding of the proffer agreement and admitted to participating in a fraudulent scheme. She confirmed her residence at 178 Auckland Drive, Newark, Delaware, where much of the incriminating evidence was located. Regarding counts twenty-five through thirty of the indictment, she admitted to altering a real social security card to use another individual’s number due to her poor credit, which she used to secure a lease and obtain cable and power services. In connection with counts one through twenty-two, she confessed to creating fraudulent checks found at her home, a practice she had engaged in for over a decade, beginning in 2001. Movant detailed her methods for producing these checks, including the use of a computer and acquiring check paper and ink. She also admitted to cashing some checks and distributing others to third parties for cash and purchases at retailers such as Acme and Wal-Mart, receiving cash and gift cards in return.
Additionally, she disclosed other actions that facilitated her check fraud, including altering driver’s licenses and social security cards, using bank routing numbers sourced online, and purchasing social security numbers needed for cashing payroll checks. Defense counsel was present during the proffer, and a memorandum of the interview was given to movant. The government sought to use the proffer statement in court if the defense raised inconsistencies during cross-examination.
In claim two, movant argues that the use of the proffer at trial violated her due process rights through self-incrimination, asserting she would not have provided the proffer had her defense counsel not misinformed her about its potential use against her. She identifies three instances of prejudice: first, the government allegedly misused the proffer during the re-direct examination of Special Agent Sain from the Social Security Administration; second, it misused the proffer during the re-direct examination of Special Agent Bracken from the United States Postal Inspection Service to counter defense claims regarding her residence and to clarify co-conspirators' roles; and third, it improperly referenced the proffer during her cross-examination.
Movant claims ineffective assistance of counsel due to defense counsel's introduction of a proffer during cross-examination, which allegedly revealed her prior bad acts related to the scheme. The court will evaluate this claim separately from the government's use of the proffer. The enforceability of a proffer's waiver provision hinges on whether the defendant entered the proffer knowingly and voluntarily, as established in United States v. Mezzanatto. The court reviewed the terms of the proffer agreement, which is treated as a contract reflecting the parties' intent.
In a related case, United States v. Hardwick, the court upheld the government's use of proffer statements for cross-examination and rebuttal purposes due to a waiver triggered by the co-defendant's counsel's actions. Applying this to the movant's case, the court found that the waiver was enforceable since the movant had voluntarily entered the proffer letter, contradicting her claim of reliance on defense counsel's assurances regarding self-incrimination protections. The explicit language of the waiver permitted the government to use statements made during the interview against her in any legal proceeding.
The government sought admission of the proffer statement pre-trial, and the court granted this motion, affirming the enforceability of the waiver provision. The court concluded that movant triggered the waiver by raising inconsistent inferences during cross-examination. Consequently, the government's use of the proffer statement to rebut these inferences did not violate her confrontation rights.
The government’s use of the proffer to cross-examine the movant did not infringe on her confrontation rights, as she triggered a waiver by providing inconsistent testimony. Specifically, the government referenced her admission about the victim’s social security number to counter her claim of ignorance regarding its credibility. Defense counsel utilized the proffer during cross-examinations of special agents Bracken and Sain, focusing on the movant's statements about her residence at 179 Auckland Avenue. Defense counsel's questioning revealed that the agents only documented the movant's responses, and they confirmed the importance of her residence to the case. The absence of this detail in the agents’ report was highlighted by defense counsel to challenge the government’s assertion regarding the movant’s leadership in the alleged scheme.
Defense counsel's strategy, including efforts to shift blame to Shawn Dyton and demonstrate the movant acted under duress, was deemed sound despite its lack of success, as alternative strategies do not indicate ineffective assistance under the Strickland standard. The court concluded that the movant cannot show a reasonable probability that the trial or appeal outcomes would differ due to counsel’s use of the proffer. Additionally, her inability to present new reliable evidence of actual innocence means her procedural default cannot be excused by a miscarriage of justice. Consequently, claim two is denied as procedurally barred.
Claim Three addresses the issue of the non-sequestration of two special agents during the trial. Defense counsel requested that only Agent Sain remain at the government’s table, arguing that Agent Bracken should be excused. The government countered that both agents were necessary due to the extensive nature of the fraudulent scheme and their differing areas of expertise from separate agencies. The court inquired about any legal obstacles or potential prejudice to the defense, to which defense counsel acknowledged the relevance of the agents’ knowledge but did not identify specific legal issues or prejudices arising from their presence.
The government affirmed that each agent had distinct responsibilities, and the court cautioned against using their presence to unduly highlight the involvement of multiple investigative agencies. Ultimately, the court allowed both agents to remain in the courtroom, determining there were no valid reasons to sequester one of them. Both agents later provided testimony relevant to their investigations.
The court concluded that the defense did not suffer prejudice from the lack of sequestration raised on appeal. Federal Rule of Evidence 615 mandates sequestration upon request but exempts party representatives and individuals essential to a party’s claims or defenses. The Third Circuit has previously allowed a case agent to remain in court despite testifying, and while it has not ruled on allowing multiple agents, it supports the trial judge’s discretion in such matters. In this instance, the government successfully proved the necessity of both agents' presence, affirming that the court's decision to not sequester the second agent aligned with the rules.
Movant's claim regarding ineffective assistance of counsel, specifically concerning the failure to appeal a denied sequestration request, is dismissed due to the lack of evidence showing any influence between the testimonies of the case agents or any improprieties resulting from their presence in the courtroom. Consequently, movant did not demonstrate prejudice from this alleged ineffective assistance, and the court will not consider prejudice in light of movant's failure to establish this as a cause for her default of claim three. Furthermore, movant has not provided new, reliable evidence of actual innocence to invoke the miscarriage of justice exception, leading to a procedural bar on claim three.
In claim four, movant argues that a search of her home on November 26, 2010, was unreasonable, citing that evidence was removed through the back door while law enforcement guarded the front. However, during the trial, officers conducted a security sweep and found incriminating evidence in plain view before obtaining a warrant. Movant's argument lacks legal basis, as there is no rule indicating a search becomes unreasonable due to the removal of items by third parties. Additionally, any challenge to the admission of the seized bag based on chain of custody or authentication under Federal Rule of Evidence 901 fails, as the court recognizes that the evidence presented met the necessary standards for authentication.
The government can authenticate documents using circumstantial evidence, including details surrounding their discovery. In the case referenced, testimony from a K-9 specialist and a detective established a foundation for admitting a bag containing checks and personal identification items. The detective corroborated that similar items were found at the movant's residence, and defense counsel cross-examined the law enforcement witnesses regarding the search and the bag's contents. The court determined that the movant's challenge to the bag's authenticity and chain of custody was unfounded, thus denying the ineffective assistance of counsel claim associated with it. Consequently, the court dismissed the movant's 28 U.S.C. § 2255 motion without holding an evidentiary hearing, as the records conclusively showed the movant was not entitled to relief. Additionally, the court declined to issue a certificate of appealability since the motion did not present a viable constitutional claim, and reasonable jurists would not find the dismissal debatable. The court noted that compliance with the Speedy Trial Act does not preclude a claim under the Sixth Amendment regarding the right to a speedy trial.
