United States District Court, D. Maryland
WILLIAM M. NICKERSON, District Judge.
Before the Court is a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed by Defendant Byron Keith Brown. ECF No. 237. Defendant also filed a Motion to Obtain Discovery Material. ECF No. 240. On April 16, 2014, the Court issued an order finding that that Defendant's § 2255 motion was timely and requiring the Government to respond to the merits of Defendant's § 2255 motion as well as the motion for discovery. ECF No. 242. After an extension of time in which to respond, the Government filed its opposition to both motions, ECF No. 247, and after several extensions of time, Defendant filed a one sentence reply indicating his reliance on the arguments made in his original motion. ECF No. 254. Thus, the motions are ripe. Finding no merit to Defendant's claims, the Court will deny the motion without an evidentiary hearing. See 28 U.S.C. § 2255 (permitting denial of motion without a hearing where "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief").
I. FACTUAL AND PROCEDURAL HISTORY
On June 2, 2009, a grand jury indicted Defendant on five counts of wire fraud and five counts of money laundering. The indictment charged that, from in or about 2003 through May 31, 2009, Defendant had engaged in a "scheme and artifice to defraud and to obtain money from investors in excess of $17 million by means of false and fraudulent practices." ECF No. 2 ¶ 4. As the "Manner and Means of the Scheme and Artifice to Defraud, " the Indictment identified several websites on which Defendant: falsely presented himself as having years of experience in the financial and securities industries, id. ¶ 6; falsely held out that his companies had offices in several cities and abroad, when in fact, he was using virtual offices, telephone answering services, and mail forwarding services to mimic multiple offices, id. ¶ 7; and that his company had a "capital management license" which, in reality, was a "license" that he just found on the internet. Id. ¶ 8. The Indictment also charged that Defendant's companies utilized computer software that created the illusion for investors that they were logging onto banking websites to view their account balances when, in truth, those balances were simply made up. Id. ¶ 10. In sum, the Indictment described a classic Ponzi type scheme in which Defendant "used funds from new investors to make payments to old investors and to conceal his diversion of investors' monies." Id. ¶ 13. New investors were found through the websites and also through referrals, id. ¶ 11, and their monies were diverted to, among other things, Defendant's purchase of multiple luxury automobiles, including a Rolls Royce purchased for over a quarter of a million dollars. Id., Count Seven.
The five counts of wire fraud, Counts One through Five, identified five specific wire transfers of about $1 million each from five particular defrauded investors to the credit of either an account over which Defendant had control or an account of one of Defendant's companies, IGT Investment Company. The five counts of money laundering, Counts Six through Ten, charged that Defendant used the funds fraudulently obtained through wire transfers for the purchase of five different luxury automobiles.
After his indictment, Defendant was initially represented by the Federal Public Defenders office. Defendant then retained counsel, but that counsel was permitted to withdraw after the funds Defendant was using to pay counsel were frozen as proceeds of the fraud. On or about May 3, 2010, Attorney Anthony Martin, a member of the Criminal Justice Act panel, was appointed to represent Defendant.
A motions hearing was held on July 22, 2010. Among the motions heard was Defendant's Motion for Notice of Intent to Introduce Uncharged Misconduct and Prior Convictions. ECF No. 113. While the motion itself did not identify any particular uncharged conduct, in the hearing, counsel focused on evidence related to Defendant's failure to pay federal income taxes and on misrepresentations Defendant had made concerning amounts on deposit in his bank account which he used to convince a potential landlord of his ability to pay rent. ECF No. 197, Tr. of 7/22/10 Hearing at 11-17.
An eleven-day jury trial of this matter commenced on August 2, 2010. On August 19, 2010, the jury found Defendant guilty on all counts of the Indictment. On August 31, 2010, Defendant filed a Renewed Motion for Judgment of Acquittal and Motion for New Trial. ECF No. 158. The basic premise of Defendant's motion was his allegation that the government produced the electronic data from his seized computers in an untimely manner and in a form that made it difficult and prohibitively time-consuming to locate emails and other documents that would have been helpful to his defense. The Court denied the motion, opining that the government turned over this material to Defendant with more than sufficient time to resolve any issues related to accessing the data. In denying the motion, the Court also noted "that the evidence against Defendant presented at trial was overwhelming to a degree unprecedented in the experience of the undersigned." ECF No. 165 at 2. On December 22, 2010, Defendant was sentenced to a term of imprisonment of 180 months and restitution was ordered in the amount of $9, 830, 111.16. ECF No. 178.
Defendant filed a timely appeal of his conviction and sentence, arguing that this Court abused its discretion in denying his motions for continuance of the trial and for a new trial and erred in its application of the Sentencing Guidelines. On August 15, 2012, the Fourth Circuit denied his appeal. United States v. Brown, 492 F.Appx. 421 (4th Cir. 2012). Defendant timely filed this motion under § 2255 arguing that his counsel both at trial and on appeal was ineffective.
II. LEGAL STANDARD
Ineffective assistance of counsel claims under the Sixth Amendment are examined under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed under Strickland, a petitioner must show both that: (1) his attorney's performance fell below an objective standard of reasonableness and (2) he suffered actual prejudice. Id. at 687. The first Strickland prong requires the petitioner to "show that counsel's representation fell below an objective standard of reasonableness' measured by prevailing professional norms.'" Lewis v. Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at 688). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " and "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. When making an ineffective assistance of counsel determination, a court must consider "the practical limitations and tactical decisions that counsel faced." Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
The second prong of Strickland requires the petitioner to show that counsel's errors were serious enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. In essence, the petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If it is clear the petitioner has failed to satisfy either prong of the Strickland standard, a court need not inquire into whether he satisfied the other. Id. at 697.
Although Defendant's motion sets out twelve separate claims of ineffective assistance of counsel, those claims revolve around only four issues. First and foremost, Defendant contends that matters presented at trial differed so dramatically from the conduct charged in the Indictment that a "constructive amendment" of the Indictment or a "fatal variance" from the Indictment occurred. Claims One through Six, Nine, Eleven, and Twelve assert that trial or appellate counsel were ineffective for failing to raise this issue in various motions or on appeal. Second, Defendant argues in Claim Seven that trial counsel was ineffective at sentencing in not arguing more strenuously against two sentencing enhancements. Third, in Claim Eight, Defendant asserts that trial counsel was ineffective when he failed to conduct adequate pretrial investigation, to call key witnesses, to effectively cross examine government witnesses, and to adequately develop his defense. Defendant suggests that, had trial counsel been effective, it would have been ...