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Hickson v. United States

United States District Court, D. Maryland

November 18, 2014

MICHAEL ANTHONY HICKSON and ALVITA K. GUNN, Petitioners,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action Nos. RWT-13-2790, RWT-14-167

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Petitioners and co-defendants Michael Anthony Hickson ("Hickson") and Alvita K. Gunn ("Gunn") (Hickson and Gunn collectively referred to as "Petitioners") have filed Motions to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.[1] ECF Nos. 692 and 700. Also pending are a flurry of related motions filed by Hickson:

• Motion for Re-Submission of Defendant's Amended 2255 Memorandum of Support for Defendant's 2255 Filing Based on Second Altered January 21, 2011 Transcript not Discovered until after Original Submission, ECF No. 708;
• Motion for Recusal of Trial Judge from Ruling on Defendant's 2255 Motion Based on Judicial Nonfeasance, Malfeasance, and Bias, ECF No. 709;
• Motion to Change Jurisdiction, ECF No. 710;
• Motion for Release Pending Adjudication of 2255, ECF No. 713; and
• Request for Chief Judge Chasanow to Recuse Trial Judge Titus from Ruling on Defendant's 2255, ECF No. 716. Gunn has also filed a Motion for Release Pending Adjudication of 2255. ECF No. 711. For the reasons more fully stated below, Petitioners' motions will be denied.

BACKGROUND

I. Metro Dream Homes and Petitioners

From 2005 through 2007, the leadership of the Metro Dream Homes ("MDH") program made extraordinary promises to investors. For an upfront investment of $50, 000, not only would MDH make an investor's monthly mortgage payment, but would also pay off the investor's mortgage in full in five to seven years, no matter how much remained on the mortgage. ECF No. 698 at 2. MDH supposedly used investor funds to purchase "POS Cafes, " which consisted of ATM/check-cashing machines, point-of-sale vending machines, and "electronic billboards, " i.e. flat-screen televisions that displayed advertisements. Id. Investors were told that POS Cafes would generate the massive revenues required to meet MDH's massive obligations.[2] Id.

Although MDH did purchase some POS Cafes, these generated almost no revenue. Id. In reality, MDH relied entirely on new investor funds to pay its obligations to investors. Id. MDH was thus a classic Ponzi scheme, and like all Ponzi schemes, it collapsed. The collapse was precipitated in August 2007 by a series of negative articles in the Washington Post, and a cease-and-desist order issued by the Maryland Securities Commissioner prohibiting MDH from enrolling new investors. Id. at 2-3. The leadership of MDH attempted to stave off the inevitable by initiating a lawsuit in this Court to enjoin the Maryland Securities Commissioner from enforcing the cease-and-desist order, a request which the Court denied.[3] On October 10, 2007, the collapse became complete when the Circuit Court for Prince George's County froze the assets of MDH and ordered that its records be examined. ECF No. 429-14. On October 29, 2007, the Circuit Court ordered MDH into receivership. ECF No. 429-12 at 3. Invotex, Inc. ("Invotex") was appointed as receiver, and Invotex principal Raymond Peroutka handled the receivership. ECF No. 411 at 12.

Petitioners knew well before the collapse of MDH that its reality did not come close to matching its promise. Gunn was one of MDH's earliest employees.[4] ECF No. 458 at 1. In August 2006 MDH retained Hickson as a consultant. ECF No. 624 at 87-88. In that role, and with Gunn's assistance, id. at 88, Hickson prepared and presented in November 2006 an accounting report for MDH's leadership. ECF No. 450-1. In that report, nearly a year before its collapse, Hickson presciently pointed out that MDH was "so vulnerable to collapse...it is alarming" and could be characterized as a scam. Id. at 3. In December 2006, after giving this report, Hickson was hired as chief financial officer of MDH. United States v. Hickson, 506 Fed.App'x 227, 228 (4th Cir. 2013). He served as CFO until MDH's inevitable collapse in October 2007. Id. As CFO, Hickson drew a $200, 000 salary, and benefited from the use of a home and luxury automobile at MDH's expense. ECF No. 450 at 3. For her part, Gunn was paid $211, 000 over the year and a half that she worked at MDH. ECF No. 458 at 1. Hickson also testified before this Court in connection with MDH's lawsuit. In his testimony, Hickson denied that MDH was a Ponzi scheme or that new investor money was needed to pay off old investors. Id. at 5.

II. Trial

A. Pretrial

On April 22, 2009, a grand jury returned an indictment charging Petitioners, as well as Andrew Williams and Isaac Smith, with one count of conspiracy to commit wire fraud, fifteen counts of wire fraud, and one count of money laundering for their participation in the MDH scam. ECF No. 1. In addition, Hickson was charged with one count of perjury for his prior testimony before the Court. Id. Petitioners pled not guilty. ECF Nos. 23 and 26. Trial was set to begin on June 1, 2010. ECF No. 42. As the trial approached, Hickson expressed concern to his attorney that they would not be ready, given the large volume of documents the Government had recently provided. ECF No. 437-4 at 17. Hickson wanted time to review each document, so his attorney requested a continuance of the trial, which the Court granted over the Government's opposition. ECF No. 109

Hickson's attorney spent significant time preparing for Hickson's trial, meeting with Hickson, reviewing documents, and engaging the services of a financial expert. See ECF No. 437-4 (email communications between Hickson and his attorney); ECF No. 698-1 (CJA invoices). However, during a two-month period from October to December 2010, Hickson's attorney was trying a death-eligible case for another client. ECF No. 590 at 13. While Hickson was able to work with his financial expert on his defense during that time, Hickson's attorney understandably was not communicative. Both Hickson and the investigator became worried by the lack of communication as the time for trial drew near. Id. at 4. Once the other trial concluded, however, Hickson's attorney resumed contact and continued preparing for his trial. ECF No. 437-4.

B. Trial and Hickson's Decision to Go Pro Se

Petitioners and Isaac Smith proceeded to trial on January 11, 2011. After four days of trial, Hickson had apparently seen enough. On January 18, 2011, Hickson informed the Court that, after two years of extensive pretrial preparation, these four days of trial conclusively demonstrated that his attorney was unable to adequately handle his defense, and he requested another continuance to secure new counsel.[5] ECF No. 590 at 3-29. The Court refused to continue the trial while Hickson attempted to find another attorney, and admonished him to attempt to reconcile his differences with his attorney. Id. at 4. The next day Hickson informed the Court of his decision to proceed pro se, a decision the Court accepted only after a lengthy colloquy.[6] ECF No. 591 at 3-10. Petitioners presented a defense of good faith at trial, attempting to show that as high-ranking officers of MDH, they were not aware of its true financial condition. The jury disagreed and convicted Petitioners on all counts. ECF No. 337.

C. Post-Trial and Sentencing

Hickson filed numerous post-trial motions, including multiple requests for a new trial in which Gunn joined. The Court denied all of these motions. ECF No. 417. Hickson's presentence report recommended a sentencing guidelines range of 324-405 months. ECF No. 450. Gunn's recommended a guidelines range of 210-262 months. ECF No. 440 at 9. However, the Court's sentence for each of the Petitioners reflected a significant downward variance from the guidelines range. Hickson was sentenced to 120 months imprisonment, and Gunn to 60 months. ...


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