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United States v. Bolton

United States District Court, S.D. Mississippi, Eastern Division

July 3, 2017

UNITED STATES OF AMERICA
v.
CHARLES BOLTON and LINDA BOLTON

          MEMORANDUM OPINION AND ORDER

          Keith Starrett UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the “Motion for New Trial Due to Defense Counsel for Defendant Charles Bolton Commenced the Representation With an Actual Conflict of Interest” (“Charles's First Motion for New Trial”) [175], “Motion to Vacate Conviction and Sentence and in the Alterative, for New Trial Under Federal Rule of Criminal Procedure Rule 33 and Request for Garcia Hearing” (“Charles's Second Motion for New Trial”) [177], “Motion to Vacate Conviction and Sentence and in the Alternative, for New Trial Under Federal Rule of Criminal Procedure Rule 33 and Request for Garcia Hearing” (“Charles's Third Motion for New Trial”) [181], and “Expedited Motion by Charles Bolton to Vacate Conviction and Sentence, or in the Alternative for New Trial, Based on Newly Discovered Evidence and Prosecutorial Misconduct” (“Charles's Fourth Motion for New Trial”) [226] filed by Defendant Charles Bolton, and the “Motion to Vacate Conviction and Illegal Sentence or in the Alternative, for New Trial Under Federal Rule of Criminal Procedure Rule 33 Based on New Evidence” (“Linda's First Motion for New Trial”) [178] and “Limited Supplemental Motion to Vacate and/or for New Trial” (“Linda's Second Motion for New Trial”) [231] filed by Defendant Linda Bolton. After considering the submissions of the parties, the record, and the applicable law, the Court finds that these motions are not well taken and should be denied.

         I. BACKGROUND

         On March 22, 2016, a federal grand jury indicted Defendants Charles Bolton (“Charles”) and Linda Bolton (“Linda”) (collectively “Defendants”) on five counts of attempted tax evasion for the years 2009-2013 (Counts 1-5) under 26 U.S.C. § 7201 and five counts of filing false tax returns for those same years (Counts 6-10) under 26 U.S.C. § 7206(1). Attorney Joe Sam Owen (“Owen”) filed his initial appearance on behalf of Charles on March 28, 2016. Attorney Paul Holmes (“Holmes”) initially appeared in this case on behalf of Linda at her initial appearance before the magistrate judge on March 31, 2016. Parties are husband and wife, and represented to the Court that there was a joint defense agreement between them. It was discussed on the record that Owen was taking the lead in the defense.[1] He hired experts to review the records and provided help in the defense of both Defendants.

         Trial was initially set for May 23, 2016. Defendants filed a joint Unopposed Motion to Continue [17] on April 25, 2016. The Court granted this motion on April 29, 2016, and the trial date was then set for July 18, 2016.

         Attorney James K. Dukes (“Dukes”) filed his appearance in the case on behalf of Linda on June 22, 2016, less than four weeks before trial. It was represented to the Court by both Dukes and Owen on the record in multiple hearings that Dukes was retained by Linda because Holmes needed some help understanding the case and had not practiced in federal court in a number of years. Despite the circumstances and the short time her new attorney had to prepare for the impending trial, Linda did not file for a continuance.

         Due to courtroom unavailability[2] and after conferring with the parties to ascertain any objections, the Court sua sponte continued the case until August 22, 2016.

         Because they were potential witnesses in the case, [3] Holmes and Dukes were disqualified from the case in a hearing held on July 28, 2016, [4] and the Court gave Linda ten days to find new representation. On August 8, 2016, the deadline the Court originally gave Linda to find a new attorney, Attorney Lisa Ross (“Ross”) entered her appearance on behalf of Linda. Attorney Carlos Tanner (“Tanner”) attempted to enter his appearance as well, but it was not properly filed. Tanner did not properly enter his appearance in the case until August 12, 2016. Nevertheless, both Ross and Tanner appeared on behalf of Linda on August 10, 2016, at a telephonic hearing pertaining to the possibility of obtaining a continuance in this case. The Court advised parties that a motion to continue had to be filed before it could grant a continuance. The Court further informed the parties that the only trial dates available to continue the case until would be either August 29, 2016, or September 12, 2016, due to the scheduling constraints caused by the Court's own docket as well as Owen's and AUSA Fred Harper's conflicts, [5] which had long been brought to the attention of the Court. When Ross asked about dates in December, the Court advised her that it did not feel such a long continuance would be appropriate given the nature of the case, but that it would consider any arguments she may make if she filed a motion.

         On August 12, 2016, the Court held a telephonic conference with the parties to remind them that, because a motion for continuance had yet to be filed and the trial date was still set for August 22, proposed jury instructions and the parties' exhibit and witness lists were due the following Monday on August 15, 2016. Ross informed the Court that she intended to file a motion for continuance that day on behalf of Linda, and Owen confirmed that he would join in whatever motion she filed on behalf of Charles. Ross contacted the Court later that date seeking information regarding the ordering of transcripts of previous proceedings. She then filed the Motion to Continue [42][43][6] on behalf of Linda late that evening, after business hours. Because it was a Friday, the Court did not receive the motion until the morning of August 15, 2016. Nevertheless, on August 16, 2016, the Court granted the Motion to Continue [42][43] and continued the trial date to September 12, 2016.

         Attorney Robert McDuff (“McDuff”) entered his appearance in this case on August 26, 2016, eighteen days before the trial date. Less than a week later, on September 1, 2016, McDuff filed a second Motion to Continue [69] on behalf of Linda, less than two weeks before trial. On September 2, 2016, Ross filed her Motion to Withdraw as Attorney [72].

         The Court issued its rulings on these motions on September 8, 2016.[7] In its Order [81] denying the Motion to Withdraw as Attorney [72], the Court found that Ross had not shown good cause as to why she should be allowed to withdraw from the case. (See Order [81] at pp. 3-4.) In its Order [82] denying the Motion to Continue [69], the Court found, in light of the multiple continuances already granted in the case, that Linda's purported reasons for a continuance did not warrant such an action.[8]

         On September 9, 2016, counsel for John Lee filed a Motion to Quash Trial Subpoena and Rule 17 Subpoena [84] on his behalf. Because this motion pertained to documents[9] subpoenaed for the trial, the Court continued the trial by one day and heard arguments pertaining to this motion on September 12, 2016. The Court ultimately denied the motion.

         Trial began on September 13, 2016. Due to the high local interest in the case, the Court took the precaution of calling for a district-wide venire instead of a division-wide one, in order to ensure the Defendants would be tried before an unbiased panel.

         The government rested its case on September 15, 2016, after presenting several witnesses and exhibits. Defense called one witness and rested that same day. After deliberations, the jury returned a verdict of guilty for Charles on Counts 2-10 and for Linda on Counts 6-10. Both Defendants were found not guilty as to Count 1. The jury was unable to reach a verdict as to Counts 2-5 with respect to Linda Bolton, and the Court declared a mistrial as to those counts.

         On September 28, 2016, Charles filed his Motion for a Judgment of Acquittal and the Conditional Grant of a New Trial or, Alternatively, Motion for a New Trial [118], and Linda filed her Motion for a Judgment of Acquittal or, in the Alternative, for a New Trial [119] a day later on September 29, 2016. Both motions were fully briefed, and the Court entered its Order [127] denying them both on November 4, 2016.

         Sentencing was originally set for December 19, 2016. On that date, Attorney Owen, counsel for Charles, and counsel for the Government requested an in camera meeting with the Court and made a joint request for a continuance, citing Charles's willingness to cooperate with the Government in connection with ongoing investigations. Linda made no objection to this continuance. The sentencing was then continued to January 18, 2017. Owen and counsel for the Government contacted the Court again on January 13, 2017, requesting the Court to continue the sentencing once more to allow Charles more time to speak with agents of the Government. Sentencing was then continued to February 3, 2017, again with no objection from Linda.

         On January 20, 2017, during the time Charles was supposedly actively cooperating with the Government and being represented by Owen, an affidavit was signed by Carl Nicholson (“Nicholson”) with a heading bearing the style of this case, detailing John Lee's purported involvement with Owen. (See Nicholson Affidavit [177-3].)

         On January 24, 2017, because of internal scheduling conflicts of the Court, [10] sentencing was continued once again, with the consent of the parties, and set for March 17, 2017.

         On March 15, 2017, Owen filed his Motion to Deem Attorney-Client Privilege Waived [151], stating that Charles had terminated his representation and was now attempting to allege Owen had conducted himself unethically during his representation of Charles. At the time, Charles was also represented by Robert Nathan Udashen (“Udashen”), who represented that he would not be present for the sentencing hearing as his representation was for the appeal phase only, and Samuel S. McHard (“McHard”), who served as local sponsoring counsel for the pro hac vice admission of Udashen and who also did not intend to attend the sentencing hearing. The Court learned through the filings connected with Owen's motion that Charles had apparently hired Alabama Attorney Willie J. Huntley (“Huntley”) some time during the prior week and that Huntley intended to represent Charles at the sentencing hearing. Despite these intentions, Huntley had not entered an appearance in the Court and had not filed a motion for pro hac vice admission, as required by an out-of-state lawyer not licensed to practice in Mississippi.[11]

         On March 17, 2017, prior to the sentencing hearing, the Court heard in camera arguments as to the Motion to Deem the Attorney-Client Privilege Waived [151].[12] During these arguments, the Government represented to the Court that Charles, despite his promises to cooperate, had given its agents no useful information despite the continuances of sentencing granted by the Court and that, as a result, it was ready to move forward with the sentencing with no further delay. Despite his previous termination of Owen's representation, Charles allowed Owen to represent him at the sentencing hearing as he had no other counsel present[13] and did not wish to utilize the Federal Public Defender.[14]

         After the in camera arguments, the sentencing hearing was held in open court. Over the objections of the Defendants, the Court adopted the Pre-Sentence Reports' calculated sentencing guideline range of 27 to 33 months for both Charles and Linda. The Court then sentenced Linda to 30 months confinement per count with the Federal Bureau of Prisons (“BOP”), to be served concurrently. Charles was sentenced to 33 months confinement as to Counts 2 through 5, to run concurrently, and 12 months confinement for Counts 6 through 10, to run concurrently with each other but consecutively with the 33-month sentence under Counts 2 through 5, for a total of 45 months confinement in the custody of the BOP.[15] Fines and restitution were also levied against both Defendants. Judgment was entered in the case on March 28, 2017. (See Judgments [165][166].) Defendants were allowed to self-surrender to the custody of the BOP as notified by the U.S. Marshal, but no later than 60 days from the date of sentencing.

         Huntley and his associate, Attorney Dennis James Knizley (“Knizley”) were admitted pro hac vice on March 29, 2017. On March 30, 2017, Margaret W. Holmes (“Margaret”)[16] entered an appearance on behalf of both Defendants. On March 31, 2017, Knizley filed a Notice of Appeal [172] on behalf of Charles. Subsequently, on April 3, 2017, Huntley requested that Notice of Appeal be dismissed without prejudice, as it was filed in error. The Court granted this request that same day. (See Order [174].)

         On April 11, 2017, Huntley filed Charles's First Motion for New Trial [175] and Charles's Second Motion for New Trial [177]. That same day, Huntley filed a Notice of Appeal [180] on Charles's behalf, despite knowledge that, under Federal Rule of Criminal Procedure 33, a pending appeal took away the Court's authority to grant any motion for a new trial based on new evidence.

         Also on April 11, 2017, Attorney Ursula K. Mitchell (“Mitchell”) entered an appearance on behalf of Linda, and Attorney Sharon Denotra Henderson (“Henderson”) entered an appearance on behalf of Charles. Mitchell then filed Linda's First Motion for New Trial [178], while Henderson filed Charles's Third Motion for New Trial [181]. That same day, Attorney McDuff filed a Notice of Appeal [182] on behalf of Linda, again despite knowledge that an appeal divested the Court of authority to grant the motions for a new trial previously filed on behalf of his client.

         The Court issued an Order [183] on April 12, 2017, terminating all pending Motions for New Trial [175][177][178][181], finding that it did not have jurisdiction over the matters they involved. See United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) superceded by statute on other grounds as stated in United States v. Martinez, 763 F.2d 1297, 1308 (11th Cir. 1985) (citations omitted); see also Fed. R. Crim. 33(b)(1) (“If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.”)

         On April 21, 2017, Defendants filed their Motions to Seal [189][190], [17] asking for leave to file certain confidential medical information under seal for purposes of forthcoming motions to stay the Defendants' self-report dates. The Court entered its Order [191] granting these motions on April 24, 2017.[18] Defendants' Motions to Stay [198][199] were subsequently filed on April 26, 2017.

         The Court learned on April 26, 2017, that Defendants had filed motions for bail pending appeal in the Fifth Circuit.[19] These motions were procedurally incorrect, as motions for bail pending appeal must first be filed with the district court before they are brought to the appellate court, and no such motions were filed with this Court. See Fed. R. App. P. 9(b); see also Jago v. U.S. Dist. Court, N. Dist. of Ohio, 570 F.2d 618, 623 (6th Cir. 1978) (“Release pending an appeal must be first sought in the district court even after an appeal has been noted from the judgment of conviction.”). Because of the confusing motion practice of Defendants and because it was uncertain how to proceed on the Motions to Stay [198][199] given the motions for bail, the Court consulted with staff attorneys at the Fifth Circuit.

         It was ultimately decided that the best course of action was for the Court to request a remand pursuant to Federal Rule of Appellate Procedure 12.1(b), [20] in order to streamline the proceedings and to allow for factual findings to be made on the issues in all of the motions filed by Defendants. The Fifth Circuit panel issued a per curiam order remanding the case on April 27, 2017, divesting itself of jurisdiction and denying all pending motions before it as moot. (See Order of USCA [205].) The Court issued an Order [206] on April 27, 2017, reviving the Motions for New Trial [175][177][178][181] and setting briefing deadlines. Because of the remand, no appeal is currently pending in this case.

         The Court denied the Motions to Stay [198][199] on May 1, 2017. That same day, Defendants filed their Motions for Bond [214][218][21] and asked for expedited consideration of these motions, which the Court denied. Linda surrendered to the custody of the BOP on May 2, 2017, and Charles surrendered on May 3, 2017.

         Charles's Fourth Motion for New Trial [226] was filed on May 3, 2017, and Linda's Second Motion for New Trial [231] was filed on May 6, 2017.

         The Court denied Defendants' Motions for Bond [214][218] on June 28, 2017. All of the Motions for New Trial [175][177][178][181][226][231] have been fully briefed and the Court is now ready to rule.

         II. STANDARD OF REVIEW

         All but one of the Motions for New Trial [175][177][178][181][226][231] are styled as motions to vacate or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33(b) based on new evidence.[22] The only avenue for a motion to vacate for a prisoner in federal custody is through a motion under 28 U.S.C. § 2255. Motions under § 2255 are collateral attacks on a federal conviction which may not be heard “until [the conviction] has been affirmed on direct appeal.” Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988) (citing Jones v. United States, 453 F.2d 351, 352 (5th Cir. 1972)). Because Defendants' convictions have not been affirmed on direct appeal, the only relief the Court can consider is under Rule 33(b) for a new trial based on new evidence.

         “Motions for new trial based on newly discovered evidence are disfavored and reviewed with great caution.” United States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004) (quoting United States v. Erwin, 277 F.3d 727, 731 (5th Cir. 2001)) (internal quotations omitted). There are five prerequisites, referred to as the “Berry rule, ” that must be met for a new trial to be granted based on new evidence:

(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence if introduced at a new trial would probably produce an acquittal.

Id.

         As a preliminary matter, the Court would state that Defendants have failed to introduce any new evidence that satisfies the Berry rule, nor do they even attempt to argue that this standard is met.[23] Furthermore, many of Defendants' arguments are duplicative of each other, and most contain flagrant misrepresentations of the record. Some of the allegations in Defendants' motions even cross the thin line between flagrant misrepresentation and blatant lie.[24] At least three of these motions [175][178][181] should rightfully be stricken under Local Criminal Uniform Rule 47(E) for exceeding the page limit of such motions without obtaining leave from this Court. The only reason the Court has not done so is because it finds it necessary to address the misrepresentations contained in those motions in order to give clarity to any reviewing court, whether on direct appeal or collateral review.

         III. CHARLES'S FIRST MOTION FOR NEW TRIAL [175]

         Charles's First Motion for New Trial [175] raises only two issues: Owen's alleged conflict and Owen's deficiency as counsel for failure to call certain witnesses to the stand. These issues are addressed in more detail below, see infra IV. For the same reasons, this motion will be denied.

          IV. CHARLES'S SECOND MOTION FOR NEW TRIAL [177]

         A. Owen Conflict of Interest

         Most of Charles's arguments stem from what he contends is a conflict of interest his attorney Owen had in his representation of Charles. Charles contends that this conflict arose because Owen's attorney fees were paid by John Lee, who he calls a “key Government witness.” (See Charles's Second Motion for New Trial [177] at pp. 5-6.)

         Before the Court addresses this alleged conflict, it must first point out this first lie by Defendants that is featured prominently throughout all the motions currently pending before the Court. Not only was John Lee not a “key Government witness, ” John Lee was never even a witness at trial and no subpoena to testify was ever enforced against him, as all parties were aware that he would only invoke the Fifth Amendment if called to the witness stand.[25] No testimonial statements[26] from John Lee were introduced at trial, [27] and the Court specifically ruled that any such statements would be inadmissible as hearsay in violation of both the Federal Rules of Evidence and the Sixth Amendment Confrontation Clause. (See Trial Transcript Vol. II [149] at 332:12-333:13.) With that point addressed, the Court moves to Owen's representation of Charles, beginning in August 2014.

         Owen was first contacted regarding possibly representing Charles Bolton in August 2014, when Charles's brother, Terrell Bolton, called his office. (See Call List [276-2] at p. 1.) Owen met with Charles at his law office on September 3, 2014, to discuss Owen representing Charles, who was under investigation at the time for the theft of food from the Forrest County Sheriff's Office (the “FCSO”) and the Adult and Youth Detention Center (the “Detention Center”). (See Owen Memo. in Response [277] at pp. 10-11.) Owen agreed to represent Charles in the food theft case and stated that he would further advise him on his fee structure. (See Id. at p. 11.) Owen sent an email to Charles with the fee structure on October 24, 2014, stating that the fixed retainer fee for his representation was an initial $75, 000, and if an indictment were returned, an additional $50, 000 would be owed four weeks prior to trial or an additional $10, 000 would be owed if, four weeks before the trial date, it was apparent that there would be no trial.[28] (See Oct. 24 Email [276-5]; see also Owen Memo. in Response [277] at p. 12.)

         On October 22, 2014, Charles informed Owen about a scheduled meeting with the U.S. Attorney's Office of the Southern District of Mississippi (the “Mississippi USAO”) and directed him to consult Dukes[29] about the meeting, which Owen did. (See Emails [276-4]; Owen Memo. in Response [277] at p. 11.) Owen and an associate with his office, along with Dukes, Holmes, [30]John Colette, [31] and an associate from Dukes's office, attended this meeting with the Mississippi USAO on October 27, 2014. (See Owen Memo. in Response [277] at pp. 12-13.) During this meeting, the Mississippi USAO “presented an abbreviated, but fairly detailed version of the facts supporting the Government's claim” against the Defendants in the food theft case, which had “zero connection to John Lee.” (Id. at p. 13; see also Ballard Affidavit [276-16] at ¶ 5.) Charles has not claimed at any time that John Lee had an interest in the food theft case.

         The Mississippi USAO contacted all attorneys after this meeting seeking clarification on the representation of Charles, as Dukes could not represent Charles because of conflicts with his representation of the FCSO and the Detention Center. (See Oct. 27 Letter [276-6].) On October 19, 2014, the Mississippi USAO transmitted a plea offer to Owen, which was communicated to Charles and ultimately turned down. (See Plea Email [276-14]; Jan. 9 Email [276-15].)

         On November 3, 2014, Charles called Owen and advised that he had made arrangements to pay his retainer fee. (See Owen Memo. in Response [277] at p. 14; Nov. 3 Call List [276-7].) On November 5, 2014, Charles, accompanied by no other person, met with Owen at his law office and presented him with three checks totaling $60, 000. (See Owen Memo. in Response [277] at pp. 14-15; Nov. 5 Calendar [276-8]; Ballard Affidavit [276-16] at ¶ 3.) One of these checks was from Nicholson[32] in the amount of $25, 000 and dated November 3, 2014, one was from John Lee in the amount of $25, 000 and dated November 5, 2014, and one was from Southern Neurologic & Spinal Institute for $10, 000 and dated October 31, 2014. (See Checks [276-9]; see also Checks [177-3][181-3].) Charles told Owen “that he obtained loans from friends and had the checks made payable to Owen” and that “he would make arrangements to obtain the additional $15, 000.00 payment in due course.”[33] (Owen Memo. in Response [277] at p. 15.) At no point before or after November 5, 2014, did Owen or any member of his firm “meet with, converse with or have any contact with John Lee concerning the money Charles Bolton borrowed from John Lee or about the food theft case.” (Id. at p. 16; see also Ballard Affidavit [276-16] at ¶ 4.) Charles has not alleged any specific contact between John Lee and Owen. Rather he relies on statements that “John Lee made payments to Attorney Owen for attorney fees with funds controlled by Lee” without mentioning that these payments were made through Charles himself, [34] who personally delivered the checks to Owen's law office and who represented that they were “loans from friends.” (Charles's Second Motion for New Trial [177] at p. 6; Owen Memo. in Response [277] at p. 15.)

         Owen transmitted Charles's denial of the plea offer on January 9, 2015. (See Jan. 9 Email [276-16].) To the Court's knowledge, no further activity has occurred in the food theft case and no indictment was ever filed against Charles or Linda.

         Owen was first given notice of the Indictment [1][2] in this case on March 23, 2016, [35] the day after it was filed. (See Owen Memo. in Response [277] at p. 17.) Neither Charles nor Owen knew about the tax investigation or indictment until this time. (See Id. at p. 18.) The tax indictment was filed by the U.S. Attorney's Office for the Eastern District of Louisiana (the “Louisiana USAO”) and was unrelated to the potential charges in the food theft case. (See Owen Memo. in Response [277] at p. 19; see also Indictment [1][2].)

         Owen took up the representation of Charles in this case under the same fee structure as he previously detailed and, because no indictment was filed in the food theft case and as a gesture of good will, gave Charles credit for the fees already paid in the previous case and only charged a fee of $65, 000 for his representation in the tax case, plus expenses.[36] (See Owen Memo. in Response [277] at p. 19; see also Ballard Affidavit [276-16] at ¶ 3.) Of this $65, 000 fee, only $35, 000 was paid: $2, 500 from Charles Bolton on April 21, 2016, $2, 500 from C. T. Finnegan/Bolton on April 21, 2016, $5, 000 from Frazier Bolton on June 14, 2016, and $25, 000 from Linda Bolton on August 29, 2016. (See Client Settlement Trust Report [276-10].) With litigation expenses totaling $38, 000 in relation to the tax case, Charles still owes Owen and his firm approximately $58, 000 in fees and expenses. (See Owen Memo. in Response [277] at p. 19; Ballard Affidavit [276-16] at ¶ 3.)

         With this history of Owen's representation of Charles and his fee arrangement before it, and with no allegation of any actual contact between Owen and John Lee, the Court can find with certainty that Owen had no conflict of interest in this case based on any payment made by John Lee for Charles's legal fees.

         Even assuming arguendo that such a conflict did exist, the Court is at a loss as to how this could possibly be new evidence to qualify for a new trial under Rule 33(b). Although he never raised the issue with the Court until he filed his First Motion for New Trial [175], [37] Charles knew that he borrowed money from John Lee to pay his legal fees in 2014 for the food theft case when he gave the check from John Lee to Owen in 2014. So the evidence was not unknown to him as required by the first prong of the Berry rule, and cannot be the basis for a new trial under Rule 33(b). See Wall, 389 F.3d 467. The Court will deny his motion under his conflict argument.

         B. Ineffective Assistance of Counsel

         Charles argues that, because Owen had a conflict of interest due to John Lee's payment of his legal fees, he provided ineffective assistance of counsel. This argument unravels with the Court's determination that Owen had no such conflict of interest. The Court would also be remiss if it did not comment on the irony of this claim, as Owen's representation was so effective that he was able to negotiate a plea bargain with the Government on Charles's behalf, which would have significantly reduced his sentencing guideline range and put probation potentially within his reach. (See Galloway Affidavit [276-1] at ¶ 7.) Because Owen could not guarantee probation, however, Charles turned this offer down, as was his right. (See id.)

         Furthermore, the Fifth Circuit has held that “a Rule 33 motion . . . premised on ‘newly discovered evidence, ' is an improper vehicle for raising a claim of ineffective assistance of counsel.” United States v. Medina, 118 F.3d 371 (5th Cir. 1997) (per curiam) (citing United States v. Ugalde, 861 F.2d 802, 807-09 (5th Cir. 1988)). In Ugalde, the Fifth Circuit reasoned that allowing such claims under Rule 33 would “greatly expand the opportunities to make a late request for a new trial” and noted that “defendants prejudiced by ineffective assistance of counsel” already have a “ready remedy” in 28 U.S.C. § 2255. 861 F.2d at 809. Therefore, the Court must deny his motion under this argument.

         Even if Charles could bring an ineffective assistance of counsel claim under a Rule 33(b) motion for new trial based on new evidence, he has woefully failed to bring a meritorious claim. All of Charles's arguments are based on misrepresentations of the record, an almost willful misunderstanding of the law, or a combination of both.

         The standard for ineffective assistance of counsel claims is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test requires that two prongs be met before assistance of counsel is found to be deficient. Id. at 687. First, counsel's performance must be shown to be deficient. Id. “To establish deficient performance, a petitioner must demonstrate that counsel's representation ‘fell below an objective standard of reasonableness'” as established by “prevailing professional norms.” Wiggins v. Smith, 538 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Such scrutiny of counsel's performance is “highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, counsel's performance must have prejudiced the defendant. Id. at 687. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

         1.Failure to Request a Garcia Hearing

          A Garcia hearing is typically held when “a defendant chooses to proceed with representation by counsel who has a conflict of interest” in order for the district court “to ensure a valid waiver by the defendant of his Sixth Amendment right.” United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (citations omitted). A Garcia hearing is only necessary “if there is an actual conflict of interest.” Id. (quoting United States v. Carpenter, 769 F.2d 258, 263 (5th Cir. 1985)).

         The Court only became aware of a potential conflict of interest when Owen filed his Motion to Deem the Attorney-Client Privilege Waived [151], in which Owen represented that he only a few days prior had any notification that Charles was alleging that he, Owen, had a conflict of interest in this case. After the in camera hearing held on March 17, 2017, the Court was not convinced that an actual conflict existed, and after the extensive briefing on the current motions, it is still not convinced that any actual conflict exists. See supra, IV.A. The Court does not find Owen's performance here deficient as there was no actual conflict mandating a Garcia hearing and, even if there were, Owen brought it to the Court's attention as soon as he learned about the allegation of a conflict.

         2. Failure to Call Nicholson

         Charles claims Owen's performance was deficient in failing to call Nicholson as a witness in his defense. To establish Owen was ineffective based on his failure to call a witness, Charles “must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citing Bray v. Quarterman, 265 F.App'x 296, 298 (5th Cir. 2008)). Charles has failed to set out what Nicholson would have testified to at trial[38] or that such testimony would have been favorable to him. Furthermore, “the initial defense strategy of Owen, Galloway and OGM was to aggressively challenge Nicholson & Co., particularly Carl Nicholson” and to “lay the blame for the indictment at the feet of Nicholson, ” a strategy to which Charles objected. (Owen Memo. in Response [277] at p. 10.) Moreover, Owen was of the opinion that Nicholson “may be considered by the Government as a possible co-conspirator” and “would be subjected to grueling cross examination” if called. (Id. at p. 22.) Owen also states that “[t]here were other secondary factors that play[ed] into a decision to call Carl Nicholson, such as credibility, reputation in the community and any prior arrest/convictions, ”[39] and that it “would have been imprudent to call Nicholson as a witness” even “[a]side from the very important fact Nicholson would have invoked protection from self-incrimination under the Fifth Amendment, ” as he “would have encountered damaging cross examination on several issues.” (Id. at p. 23.) As such, the Court does not find that Owen was deficient in his performance for failing to call Nicholson as a witness.

         3. Failure to Object to Lee's Attorney's ...


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