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Berg v. United States

United States District Court, W.D. Washington, Seattle

April 3, 2014

FREDERICK DARREN BERG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

RICHARD A. JONES, District Judge.

This matter comes before the court on a motion calendar it created to address petitioner's motion invoking 28 U.S.C. ยง 2255, as well as various motions filed by petitioner. The court DENIES as MOOT petitioner's motion to stay proceedings pending petition for writ of mandamus. Dkt. #23. The court notes that petitioner has filed a fourteen-page objection and motion to strike in addition to his twenty-one-page overlength reply. Dkt. ##20, 22. The court granted petitioner thirty pages for his opening brief. Dkt. #5. Accordingly, his reply should not have exceeded fifteen pages. Local Rules W.D. Wash. CR ("LCR") 7(f)(4). Nevertheless, the court has considered the entirety of petitioner's twenty-one-page reply brief. Dkt. #22. However, requests to strike material contained in an opposition brief must be brought in the responsive brief, not in a separate motion. See LCR 7(g). Petitioner filed a separate objection and motion to strike. Dkt. #20. Given that combining petitioner's reply and objections yields thirtyseven pages, and the court did not approve an overlength reply brief, the court has disregarded petitioner's objections and motion to strike. Dkt #20. The court also notes that the Government has not provided pin point citations throughout most of its opposition, or clearly marked the relevant portions of its exhibits, in violation of LCR 10(e)(6) and 10(e)(10). As a result, the court has been unable to locate the evidence underlying many of its representations.[1] To the extent the court was unable to locate the evidence underlying a particular representation, the court has disregarded such representation.

For the reasons stated herein, the court concludes that petitioner has not established a valid challenge to the sentence this court imposed in February 2012. Dkt. # 95. The court also DENIES petitioner's motion for evidentiary hearing because the petition, files and record of the case conclusively show that he is not entitled to relief. Dkt. #24; See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004) (petitioner entitled to evidentiary hearing only if (1) petitioner alleges specific facts which, if true, would entitle him to relief, and (2) the petition, files and record of the case cannot conclusively show that he is entitled to relief).

Petitioner pleaded guilty to one count of Wire Fraud, one count of Money Laundering, and one count of Bankruptcy Fraud - Asset Concealment. Dkt. #78. This court imposed a two hundred sixteen month sentence in accordance with the parties' plea agreement. Id. at 8; Dkt. #95 at 2. Petitioner did not appeal, and, instead, filed his section 2255 motion.

Petitioner raises six claims in his section 2255 petition: (1) the government and trustee Calvert conspired to deny petitioner effective assistance of counsel; (2) counsel should have moved to suppress statements made by petitioner on August 11, 2010; (3) counsel should have negotiated proffer protection prior to agreeing to the September 20, 2010 proffer; (4) counsel should have moved to suppress the fruits of the August 27, 2010 search and seizure; (5) counsel should have undertaken their own independent forensic accounting; and (6) counsel should have moved for dismissal of petitioner's indictment alleging outrageous government conduct. Dkt. #1.

As part of his plea agreement, petitioner waived any right to collaterally attack his conviction except as it may relate to the effectiveness of legal representation. Dkt. #78 at 8. Accordingly, his section 2255 petition is limited to claims for ineffective assistance of counsel.

A party raising a claim of ineffective assistance of counsel in a case that resulted in a guilty plea must not only show that counsel's representation fell below an objective standard of reasonableness, but that there is a reasonable probability that the defendant would not have pleaded guilty but for the ineffective assistance. United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 686-90 (1984)); Hill v. Lockhart, 474 U.S. 52, 59 (1985). To establish such a claim, a petitioner must overcome the strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Id.

A. Claim 1: The Government and trustee Calvert conspired to deny petitioner effective assistance of counsel

With respect to the first claim, the court agrees with the government that such a claim is subject to the waiver of appeal. However, petitioner argues that leveraging a threat of criminal forfeiture against a third party solely to scuttle a criminal defendant's ability to pay his chosen attorney or to eliminate the funding for an independent forensic accounting offends due process. Dkt. #22 at 5. First, petitioner has not provided any evidence that would support a finding that the government threatened forfeiture "solely to scuttle [his] ability to pay his chosen attorney." Second, while petitioner does have a constitutional right to his attorney of choice, he does not have a constitutional right to use assets connected with the illegal conduct to pay for that attorney. See Kaley v. United States, 134 S.Ct. 1090, 1102-03 (2014). The Supreme Court recently held that where the assets' connection to the allegedly illegal conduct is not in dispute, a pretrial seizure is wrongful only when there is no probable cause to believe the defendants committed the crimes charged. Id. at 1103. "Or to put the same point differently, such a freeze is erroneous-notwithstanding the weighty burden it imposes on the defendants' ability to hire a chosen lawyer-only when the grand jury should never have issued the indictment." Id. There is no evidence before the court that the grand jury should not have issued the indictment.

Petitioner also argues that the government and trustee Calvert conspired to interview him outside the presence of counsel. Petitioner relies on Massiah v. United States, 377 U.S. 201 (1964) and its progeny. Under Massiah, "[o]nce a defendant's Sixth Amendment right to counsel has attached, the government is forbidden from deliberately eliciting' incriminating statements from the defendant." Randolph v. Cal., 380 F.3d 1133, 1143 (9th Cir. 2004) (citing Massiah, 377 U.S. at 206). "This prohibition has been extended to the use of jailhouse informants who relay incriminating statements from a prisoner to the government." Id. Thus, to demonstrate a Massiah violation here, petitioner must demonstrate that trustee Calvert was acting as an agent of the government when he obtained information from petitioner, and that trustee Calvert "made some effort to stimulate conversations about the crime charged." Id. at 1144. However, there is no evidence before the court that trustee Calvert was working as an agent of the government during the August 11, 2010, interview. While there is evidence that the government and trustee Calvert may have been cooperating with respect to exchanging information for investigatory purposes, there is no evidence that trustee Calvert was acting at the direction of the government, that the government even knew about the August 11 interview before it occurred, or that the interview was the likely result of the government's acts.

Additionally, the Sixth Amendment right to counsel and the Massiah line of cases do not apply to interviews that occur before the initiation of adversary criminal proceedings. United States v. Hayes, 231 F.3d 663, 669 (9th Cir. 2000). The Supreme Court, the Ninth Circuit, "and every other circuit to consider a similar issue has adhered to the rule that adversary judicial proceedings are initiated by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Id. at 675. Here, the felony information was filed on October 14, 2010. CR10-310RAJ, Dkt. #4. The interview petitioner complains of that was conducted by trustee Calvert took place in August 2010. Since the interview took place before adversary judicial proceedings had been initiated, the Sixth Amendment right to counsel had not attached, and Massiah is inapplicable. Accordingly, even if trustee Calvert was a government agent, petitioner was not denied effective assistance of counsel under the Sixth Amendment.

Accordingly, even if the first claim was an ineffective assistance of counsel claim, plaintiff has failed to demonstrate that there was a constructive denial of counsel's assistance or that the government interfered with counsel's assistance.

B. Claim 2: Counsel should have moved to suppress statements made by petitioner on August 11, 2010

Petitioner relies on Massiah with respect to this claim as well. For the same reasons stated above, failure to move to suppress the statements made in the August 11, 2010 interview was objectively reasonable where plaintiff has failed to provide any evidence that would support a finding ...


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