657 F.3d 322 (6th Cir. 2011), 09-6400, United States v. Holder

Docket Nº:09-6400.
Citation:657 F.3d 322
Opinion Judge:ZATKOFF, District Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Pamela HOLDER, Defendant-Appellant.
Attorney:Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellee. Michael C. Holley, Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Daniel S...
Judge Panel:Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge. [*]
Case Date:September 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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657 F.3d 322 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Pamela HOLDER, Defendant-Appellant.

No. 09-6400.

United States Court of Appeals, Sixth Circuit.

September 12, 2011

Argued: April 27, 2011.

Rehearing Denied Sept. 30, 2011.

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[Copyrighted Material Omitted]

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ARGUED:

Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Michael C. Holley, Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Daniel Steven Goodman, United States Department of Justice, Washington, D.C., Peter A. Frandsen, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge. [*]

OPINION

ZATKOFF, District Judge.

On April 13, 2009, Defendant Pam Holder was convicted by a jury of two counts of bank fraud under 18 U.S.C. § 1344 and two counts of wire fraud under 18 U.S.C. § 1343 in the United States District Court for the Middle District of Tennessee. Holder appeals the district court's denial of her motion for new trial, arguing (1) prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (2) ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons that follow, we AFFIRM the district court's denial of Holder's motion for a new trial.

I. BACKGROUND

In June 2008, the Government charged Fred Holder and his wife, Pamela Holder

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(" Holder" ), with two counts of bank fraud and two counts of wire fraud. In August 2008, the Government dismissed the charges against Fred Holder due to his death, however, the Government maintained its charges against Holder. The Government's charges against Holder involved her conduct in falsifying or assisting in falsifying certain documents to obtain several loans, in conjunction with Fred Holder, to acquire a home purchased for $1.4 million, intending to resell the home for a profit.1 The purchase of the home involved recruiting a third-party with good financial credit, Brenda Leeper (" Leeper" ). With Leeper's good credit score, the Holders told her that she could make $1,000 or more per month by assisting the Holders with purchasing and selling homes. Leeper was intended to be the nominal purchaser of the home. The fraudulent scheme further included Team Fat Man, Inc., a corporation Fred Holder (a closing manager at a car dealership in Tennessee) organized to manage his own team of car salespersons at the dealership in Nashville, Tennessee.

In an effort to make Leeper appear eligible for three loans, totaling $1.8 million,2 the Holders provided Leeper with a check for $30,000 that she deposited in her personal bank account,3 and falsified documents so that Leeper appeared as the president of Team Fat Man, Inc. since July 2003, earning a salary of $30,000-to-$40,000 per month.4 In May 2005, at the closing on the home, Leeper signed mortgage documents to purchase the home at a price of about $1.4 million. Within months, the loan went into default. 5 The First Tennessee Bank foreclosed on the home and eventually resold it, resulting in a net loss of $376,070.16.

A. PRIOR TO TRIAL

Although the Government charged Holder, the Government never charged Leeper for her involvement in the fraudulent scheme. As trial approached, Peter Frandsen, the lead prosecutor, notified Ronald Small, Holder's defense counsel, that he had promised not to prosecute Leeper for her involvement in the scheme. On February 12, 2009, the Government requested a jury instruction addressing

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the fact that Leeper would testify pursuant to a guarantee that she would not be prosecuted. The requested instruction stated in relevant part:

(1) You have heard the testimony of Brenda Leeper. You have also heard that the government has promised that she will not be prosecuted.

Notwithstanding the requested instruction and communication to defense counsel, the Government never communicated to Leeper that she would receive any protection against future prosecution in exchange for her testimony at trial. 6 The Government also did not notify defense counsel, despite its earlier communication with defense counsel, that Leeper would be testifying without a nonprosecution agreement or withdraw its requested instruction before trial.7

B. AT TRIAL

In April 2009, at trial, the Government had to prove that (a) some of Holder's actions contributed to the fraud, and (b) she acted with the intent to defraud. In his opening statement, defense counsel stated that he would impeach Leeper by proving she was testifying pursuant to a promise against future prosecution:

you are going to hear [that Leeper] got a promise not to be prosecuted by the United States Government sitting at this table right here. You get to decide what the basis or motive is for people to come into this courtroom and testify that something happened.

In fact, they talk about this testimony from [Leeper] about being Fred Holder's sister; again, balance her credibility as to against that statement that she is getting a free pass in this case. She signed multi-million dollar documents.

R93 at 34-35 (emphasis added).

Besides presenting several witnesses and documentary proofs, the Government called Leeper to testify to the jury. Leeper testified to the jury regarding Holder's involvement in the fraudulent scheme. Following up with defense counsel's opening statements, when Leeper took the stand, defense counsel questioned Leeper on whether she was testifying for the Government in exchange for a promise to not be prosecuted:

Q. At any time were you promised that you would not be prosecuted for your involvement in this case?

A. Never.

Q. No one promised you that?

A. No one said anything like that.

* * *

Q. So nobody has come up to you and said you are going to be charged with a federal offense?

A. No one has.

* * *

Q. So you were not told by any agent or prosecutor that you could have been charged with offenses?

A. No, sir, I don't even know what wire fraud is.

Q. Yes, ma'am. And you've met with Mr. Frandsen before, have you not?

A. Yes.

Q. Did Mr. Frandsen ever make any representations that he would not prosecute you?

A. Absolutely not.

Q. Did Ms. Hill ever say to you at any time that you wouldn't be prosecuted for any of your involvement?

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A. No. No, because I'm innocent.

Defense counsel next questioned the case agent, FBI Agent Lowanda Hill (" Hill" ), about the purported nonprosecution agreement. Hill denied its existence. On cross-examination, Hill testified that the decision not to prosecute Leeper was made by the U.S. Attorney's Office, not by her. Defense counsel then asked Hill whether she was present when the decision not to prosecute Leeper was communicated to Leeper. Hill responded that she could not remember. At this point, the Court interrupted defense counsel's questioning to take a recess.

C. THE DISTRICT COURT'S INTERVENTION AT TRIAL

While in recess, the district court told the parties that defense counsel's examination of Hill regarding a nonprosecution agreement was confusing. The district court ascertained by questioning the prosecutor that, although the prosecutor had previously decided to promise not to prosecute Leeper, in fact the prosecutor did not offer Leeper such a promise for her testimony at trial.

Before the jury returned, defense counsel further explained to the Court that " [t]he whole reason for me bringing Ms. Leeper back [to question her about the purported nonprosecution agreement] was because I was under the impression for quite a while that she was given a pass. I was told that and I know Mr. Frandsen corresponded with me about it." The prosecutor confirmed that he had written a letter to defense counsel before trial expressing that Leeper would not be prosecuted.8 To resolve the...

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