United States District Court, D. Colorado
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
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.
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:
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
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.
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.
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
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.
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.
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).
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).
Weisz represented defendant at trial. Ty Gee represented
defendant on direct appeal, at resentencing and on appeal of
defendant's amended judgment.
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. 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.