Brown v. United States

• Decision Date: 16 March 2018
• Docket Number: CIVIL NO. 3:17-cv-638(DCB),CRIMINAL NO. 3:15-cr-28(DCB)
• Parties: MARVIN R. BROWN PETITIONER v. UNITED STATES OF AMERICA RESPONDENT
• Court: U.S. District Court — Southern District of Mississippi

MARVIN R. BROWN PETITIONER v. UNITED STATES OF AMERICA RESPONDENT

CRIMINAL NO. 3:15-cr-28(DCB)

CIVIL NO. 3:17-cv-638(DCB)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

March 16, 2018

MEMORANDUM OPINION AND ORDER

This cause is before the Court on defendant/petitioner Marvin R. Brown ("Brown")'s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (docket entry 174 in the criminal action and docket entry 1 in the civil action), his first Supplemental Memorandum in support thereof (docket entry 176), and his second Supplemental Memorandum in support thereof (docket entry 178).

After conducting the preliminary review required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States Courts, the Court requested the Government to file an answer, motion or other response as required by Rule 4. The Government has filed its Response to the defendant's Motion Under 28 U.S.C. § 2255 (docket entry 181), and Brown has filed a Reply (docket entry 182).

The Court finds that on May 11, 2015, Brown appeared for arraignment on a twenty-one count indictment charging various violations of money laundering and IRS reporting requirements. On March 28, 2016, Brown pled guilty to conspiring to launder proceeds of illegal narcotics trafficking, pursuant to a written plea agreement and plea supplement. On July 12, 2016, this Court sentenced Brown to 240 months' imprisonment, and a fine of $1,500. The Court further imposed a 3-year period of supervised release. The sentence was ordered to run concurrent with the 240 months sentence imposed in United States v. Brown, 3:14-cr-64(CWR)(FKB). The Judgment was entered of record on July 18, 2016. Brown did not appeal.

Brown timely filed his Motion to Vacate on July 31, 2017 (docket entry 174). His motion alleges that his Sixth Amendment right to effective assistance of counsel was violated "when counsel's actions led the Petitioner to enter an involuntary, unknowing, and unintelligent plea under uninformed and coercive circumstances ... [and] was violated during sentencing proceedings, in that counsel failed to challenge the imposition of an unreasonable sentence, as the district court utilized unsupported firearm, sophisticated means, drug quantity assessment, and leadership enhancements in crafting the Petitioner's sentence." Id. Brown sets forth four complaints against his former counsel, and requests an evidentiary hearing:

I. The collateral review waiver contained in the plea agreement cannot bar review of the substantive issue raised herein because the Petitioner's plea was entered due to Counsel's ineffective assistance, thus the waiver is invalid.

II. The Petitioner's Sixth Amendment right to effective assistance of counsel was violated When Counsel's Assistance Resulted in an Unknowing, Involuntary, Unintelligent Plea Under Coercive Circumstances.

III. The Petitioner's Sixth Amendment right to effective assistance of counsel was violated during sentencing proceedings when counsel failed to object to the imposition of an unreasonable sentence that was based upon the use of improper sentencing enhancements.

[IV.] The Petitioner's Sixth Amendment right to effective assistance of counsel was violated when counsel failed to challenge the sufficiency of the evidence of money laundering.

V. The Petitioner is entitled to an evidentiary hearing on these issues.

Motion to Vacate, p. 4. Brown subsequently filed a memorandum in support of his Petition (docket entry 176) and a supplemental memorandum in support of his Petition (docket entry 178).

Brown's first complaint is that the plea agreement contains an unenforceable provision waiving collateral review. A perusal of his plea agreement (docket entry 122) reveals that Brown waives post-conviction relief "except that Defendant reserves the right to raise ineffective assistance of counsel claims." Since Brown is alleging ineffective assistance of counsel in all of his claims, his Petition can be properly heard by this Court under that auspice.

It is well established that in order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that his "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, [the movant] must demonstrate that his attorney'sperformance fell below an objective standard of reasonableness." Id. "Second, [he] must also prove that he was prejudiced by his attorney's substandard performance." Id.; see also Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). The Fifth Circuit has stated that "[i]n order to succeed on an ineffective assistance claim, [a movant] must establish that his counsel's performance was deficient, and that this deficiency prejudiced him." United States v. Simpson, 645 F.3d 300, 307 (5^th Cir.), cert. denied, 132 S.Ct. 543 (2011)(citing Strickland, 466 U.S. at 687)). "Deficient performance" means "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

To prove prejudice, the 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." Strickland, 466 U.S. at 695. "An attorney's failure to raise a meritless argument thus cannot form the basis of a successfulineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue." United States v. Kimler, 167 F.3d 889, 893 (5^th Cir. 1999). Conclusory allegations are insufficient to prove a claim of ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5^th Cir. 2000); Barnard v. Collins, 958 F.3d 634, 642 (5^th Cir. 1992).

Brown's second claim alleges ineffective assistance of counsel regarding his plea. Brown refers the Court to his Exhibit "A" (docket entry 178-1) to his Petition. He claims in Exhibit "A" that his counsel failed to object to a faulty indictment and failed to object on grounds of double jeopardy. He further claims that he did not enter a knowing and voluntary plea.

The petitioner's first two claims are easily disposed of. As a matter of legal principle, a money laundering indictment arising out of a conviction for drug distribution is not barred by double jeopardy. United States v. Brown, 553 F.3d 768, 782-83 (5^th Cir. 2008); United States v. Kennedy, 707 F.3d 558, 564 (5^th Cir. 2013); United States v. Pratt, 533 F.3d 34 (1st Cir. 2008); United States v. Edgmon, 952 F.2d 1206, 1213-14 (10^th Cir. 1991); United States v. Evans, 272 F.3d 1069, 1088 (8th Cir. 2001); United States v. Hirko, 447 F. Supp. 2d 734, 746-47 (S.D. Tex. 2006).

Brown's argument that the Indictment failed to allege a predicate offense sufficient to show that he laundered proceeds islikewise meritless. The Indictment put Brown on notice of the offense and addressed all elements of a conspiracy to launder drug trafficking proceeds. The elements of this offense are:

First: That two or more persons, directly or indirectly, reached an agreement to try to accomplish a common and unlawful plan to violate 18 U.S.C. Section 1956, as charged in the Indictment;

Second: That the defendant knew of the unlawful purpose of the agreement; and,

Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose;

A Defendant violates Title 18 United States Code Section 1956(a)(1), the object of his conspiracy, upon conspiring to effect the following elements:

First: the Defendant knowingly conducted, or attempted to conduct, a financial transaction;

Second: That the financial transaction [attempted financial transaction] involved property represented to be the proceeds of a specified unlawful activity, namely the distribution of controlled substances; and,

Third: That the defendant intended to conceal or disguise the nature, location, source, ownership, or the control of property believed to be the proceeds of a specified unlawful activity;

or Fourth: The Defendant engaged in the financial transaction for the purpose of avoiding a transaction reporting requirement under State or Federal law.

With respect to the second element immediately above, the Government must show that, in fact, the property was the proceeds of the distribution of controlled substances, which is a specified unlawful activity under the statute.

With respect to the third element immediately above, the Government must prove that the defendant knew that the property involved in the transaction was the proceeds of some kind of crime that is a felony under federal, state, or foreign law, although it is not necessary to show that the defendant knew exactly what crime generated the funds. See Fifth Circuit Pattern Jury Instructions.

Count One of the Indictment notified Brown that he conspired to conceal the source of proceeds of narcotics trafficking by engaging in financial transactions. Those transactions were detailed in 19 overt acts alleged in the Indictment. The Indictment also alleged 20 additional counts of money laundering and IRS disclosure violations. Brown was common to all counts and was the source of the illegal proceeds.

The Supreme Court has stated that there are "two constitutional requirements for an indictment: 'first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against...