United States v. Powell

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         On November 7, 2012, the Court sentenced defendant to 120 months in prison. This matter is before the Court on defendant's Motion To Vacate, Set Aside, Or Correct Sentence Brought Under Title 28 U.S.C. § 2255 - 2nd Amended Motion (Doc. #548) filed August 4, 2017. The government has filed a response and defendant has filed a reply. See United States' Answer To Defendant's Motion Under 28 U.S.C. § 2255 (Doc. #551) filed February 16, 2018; Defendant Answer [And] Response To The Government Response (Doc. #552) filed March 16, 2018. For reasons stated below, the Court overrules defendant's Section 2255 motion and denies a certificate of appealability.

         Factual Background

         On June 21, 2011, a grand jury charged defendant with 17 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and 11 counts of fraud related to securities of private entities in violation of 18 U.S.C. § 513(a). See Superseding Indictment (Doc. #26). Beginning July 16, 2012, the Court conducted a nine-day jury trial. Highly summarized, the evidence at trial included the following:

         In October of 2006, a TCF Bank investigator contacted Postal Inspectors Brian Mullervy and Richard Sheehan about possible bank fraud involving stolen checks. The investigator told the Postal Inspectors that approximately $70, 000 in stolen checks had been deposited into defendant's “Dis Wire” account at TCF Bank in Denver, Colorado. The Postal Inspectors went to TCF Bank and contacted a teller who identified defendant as the person who had deposited the checks. The Postal Inspectors also retrieved the stolen checks and the related deposit slip. The Inspectors then contacted defendant and he agreed to meet with them. Defendant acted surprised when the Inspectors told him that the checks were stolen. Defendant stated that he had two businesses involving business cards, used cell phones and used computers. He said that the checks which he had deposited came from customers who had purchased merchandise from him.

         Numerous witnesses testified about stolen checks that had been deposited into defendant's TCF bank account and other bank accounts at UMB Bank and Wells Fargo. These witnesses testified that they had placed specific checks in authorized mail receptacles, and that the checks were intended to be received and deposited by the designated recipients. The witnesses further testified that defendant did not have authority or permission to possess the checks or deposit them into his accounts. Numerous other witnesses to whom the checks were mailed testified that they never received specific checks and had not given defendant permission to possess the checks or deposit them into his accounts.

         Cheston Foster testified regarding his involvement in defendant's schemes. Foster pled guilty to a felony regarding his illegal activity, and testified that on October 16, 2008, defendant directed him to deposit an altered check. Although Foster was supposed to give defendant the money from the check, Foster lied; he told defendant that he did not deposit the check, and then he kept the money. Foster also testified that he had seen defendant in possession of United States Treasury checks stolen from the mail.

         Kenneth Lee testified that by opening a bank account at defendant's direction, purportedly for deposit of social security disability checks, he was an unwitting accomplice to defendant's fraud.

         Tellers and bank investigators testified that many of the stolen and forged checks had a “%” sign, which tellers who received the checks interpreted to mean “in care of.” FBI Special Agent John Elvig testified that defendant was involved in similar activities in 1992 through 1994 and that he used similar techniques in those schemes.

         On August 2, 2012, a jury found defendant guilty on all 28 counts. On December 7, 2012, the Court sentenced defendant to a total of 120 months in prison. Judgment In A Criminal Case (Doc. #298). Defendant appealed the 11 fraud convictions under Section 513(a). On September 22, 2014, the Tenth Circuit reversed defendant's convictions on eight of the Section 513(a) counts, finding insufficient evidence that the payors, payees and drawee banks of the forged checks were organizations operating in interstate commerce. See United States v. Powell, 767 F.3d 1026, 1033 (10th Cir. 2014). The Tenth Circuit remanded for resentencing. On May 15, 2015, the Court again sentenced defendant to 120 months in prison. See Amended Judgment In A Criminal Case (Doc. #437). The Court also ordered restitution in the stipulated amount of $57, 616.49. See id. at 6.

         On June 11, 2015, defendant filed a notice of appeal. On August 7, 2015, through court-appointed counsel, defendant filed a second amended motion to dismiss the appeal. The Tenth Circuit granted that motion and dismissed the appeal under 10th Cir. R. 46.3(B). Order (Doc. #460).

         On November 18, 2015, the Court overruled defendant's Motion For A New Trial Pursuant To Fed. R. Crim. P. 33(b)(1) (Doc. #483) as well as numerous related motions. See Memorandum And Order (Doc. #488). Defendant appealed. On October 4, 2016, the Tenth Circuit affirmed. See Order And Judgment (Doc. #537).

         Barrett Weisz represented defendant at trial. Ty Gee represented defendant on direct appeal, at resentencing and on appeal of defendant's amended judgment.

         On August 4, 2017, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. The government concedes that defendant's present motion is timely.^[1] Defendant's motion asserts that (1) Cheston Foster committed perjury at trial; (2) Barrett Weisz provided ineffective assistance of counsel at trial; (3) Ty Gee provided ineffective assistance of counsel on appeal and at resentencing; and (4) the amount of $57, 616.49 in the stipulated restitution order is incorrect. Motion To Vacate (Doc. #548) at 4-6.

         Analysis

         I. Perjury ...