Cartman v. United States

• Decision Date: 19 January 2018
• Docket Number: CIVIL ACTION NO. 1:16-CV-4511-ELR-LTW,CRIMINAL ACTION NO. 1:10-CR-512-ELR-LTW-1
• Parties: ANTHONY VINCENT CARTMAN, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Georgia

ANTHONY VINCENT CARTMAN, Movant, v. UNITED STATES OF AMERICA, Respondent.

CRIMINAL ACTION NO. 1:10-CR-512-ELR-LTW-1

CIVIL ACTION NO. 1:16-CV-4511-ELR-LTW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

January 19, 2018

MOTION TO VACATE 28 U.S.C. § 2255

ORDER AND FINAL REPORT AND RECOMMENDATION

Movant is a federal prisoner who, pro se, challenges under 28 U.S.C. § 2255 his judgment of conviction. (Doc. 291.)¹ Respondent filed a brief opposing the motion, (doc. 301), and Movant filed a reply, (doc. 305). Movant also filed a motion for leave to expand the record with unidentified affidavits. (Doc. 307.) For the reasons discussed below, the undersigned denies the motion to expand the record and recommends that the § 2255 motion and a certificate of appealability be denied.

I. Background

In December 2010, a grand jury indicted Movant and three co-defendants for crimes regarding the illegal purchase of firearms. (Doc. 1.) The original indictment charged Movant with one count of conspiring with his co-defendants to knowingly cause false representations to be made with respect to information required to be kept in the records of a federal firearms licensee ("FFL") and seven counts of knowingly causing such false representations to be made. (Id.)

Movant was a fugitive at the time the indictment issued. Law enforcement arrested him in New York in August 2011, and he first appeared before this Court on August 22, 2011. (Docs. 79, 80.)

On May 8, 2012, two weeks before trial began, a grand jury issued a superseding indictment. (Doc. 151.) That indictment charged Movant with the same crimes as the original indictment and added five counts of unlawful possession of a firearm by a convicted felon. (Id.) The firearms at issue in those five counts were the same ones at issue in the counts charging false representations in the records of the FFLs. (Id.) All of the firearms at issue in this case were Taurus handguns. (Id.)

The conspiracy count alleged a violation of 18 U.S.C. § 371, the federal conspiracy statute. (Doc. 151 at 1-9.) The Court refers to that charge as simply theconspiracy charge. The seven counts of causing false representations to be made in FFL records alleged violations of 18 U.S.C. § 924(a)(1)(A), which makes such conduct a crime, and 18 U.S.C. § 2, which prohibits aiding and abetting the commission of a crime. (Id. at 9-13.) The Court refers to those charges as the "FFL Charges." The five counts of unlawful possession of guns by a felon alleged violations of 18 U.S.C. § 922(g), which makes such possession a crime. (Id. at 14-16.) The Court refers to those charges as the "Possession Charges."

Attorney Samuel Little was appointed to represent Movant in this case. (Doc. 82.) When Movant quickly expressed reservations about Little and a possible desire to proceed pro se, the undersigned held hearings in September 2011. (Docs. 243, 273.) At the second of those hearings, Respondent's counsel informed Movant and the Court that Respondent intended to seek a superseding indictment that would add the Possession Charges and significantly increase the maximum sentence if Movant was convicted. (Doc. 273 at 3-4.) Movant stated at that hearing that he wanted Little to represent him. (Id. at 7-8, 12.)

In February 2012, Movant filed documents pro se suggesting that he wanted new counsel, so the undersigned held another hearing. (Doc. 244.) Movant indicated at that hearing that he wanted to continue with Little as his lawyer. (Id. at 13-14.)

Two weeks before trial in May 2012, Little filed a motion to withdraw because Movant refused to communicate with him. (Doc. 149.) The Court held a lengthy hearing on that motion on May 9, 2012. (Doc. 245.) The Court concluded that Little would continue to represent Movant and later issued an Order explaining why, under Faretta v. California, 422 U.S. 806 (1975), the Court found that Movant had not validly waived his right to counsel. (Id.; Doc. 248 at 4-21.) The trial was then conducted from May 21, 2012, to May 24, 2012. (Docs. 217 through 219.)

In the Order just referenced, the Court summarized the trial evidence:

[Movant] was tried before a jury, convicted, and sentenced to 137 months in prison. The facts of the case were fairly simple. As found by the jury, [Movant], along with his co-conspirator, Tchaka Shields, exploited two women with whom [Movant] was romantically involved, to make straw purchases of firearms in the Atlanta area. [Those women were Casita Q. Washington and Erron Denise Love.] Movant could not legitimately make these purchases, as he was a convicted felon, having previously been convicted of conspiracy to distribute crack cocaine and of being a felon in possession of a firearm.

The evidence indicated that [Movant] and his co-conspirator [Shields] purchased these guns in order to sell them in the Boston area, which they did. Based on this conduct, [Movant] was convicted of causing false representations as to the true purchaser of firearms to be recorded in a federal firearms transaction record, as well as being a felon in possession of these firearms. [Movant's] three co-defendants pled guilty reasonably quickly after the filing of the indictment. [Movant], however, remained a fugitive for eight months, and his proceedings began thereafter.

(Doc. 248 at 1-2.)

Only Respondent presented evidence at trial. That evidence consisted of twenty-one witnesses, documentation of all the gun purchases, three of the guns, photos of a few of the other guns, maps of the area where seven of the guns were recovered, written and electronic communications between Movant and Washington and Love, Love's and Washington's written statements to law enforcement, and other documents. (See Doc. 217 at 2; Doc. 218 at 2-3; Doc. 219 at 2; Doc. 257.) The witnesses were Washington and Love, the three FFLs from whom the guns were purchased or attempted to be purchased, managers of the five locations where the guns were purchased at gun shows, five Boston police officers who recovered five of the guns, a Massachusetts State Trooper who recovered one of the guns, a Rhode Island State Trooper who recovered one of the guns, two DeKalb County police officers, a Facebook employee who authenticated electronic messages between Movant and Love, and the agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") who led the case investigation. (Docs. 217 through 219.) The ATF agent, Jason Stricklin, testified twice and sat with Respondent's counsel throughout the trial. (Doc. 218 at 159-70; Doc. 219 at 20-62.)

The first two FFL charges in the superseding indictment were for Love's and Washington's attempted purchase of guns at The Gun Store in Doraville, Georgia. (Id. at 9-10.) Love testified that on March 11, 2009, Movant gave her money to buy guns from that store and accompanied her to the store. (Doc. 218 at 191-94; Doc. 257-1.) Washington testified that on March 12, 2009, Movant took her to the store, gave money to Shields that Shields later gave her, and asked her to buy guns for Shields. (Doc. 218 at 60-64, 90-91; Doc. 257-2.) The FFL at The Gun Store testified that the store refused to sell guns to Love and Washington on those occasions. (Doc. 218 at 29-30.) That FFL then reported the attempted purchases to the ATF, which initiated the investigation that led to this case. (Id. at 30-32.)

The other five FFL charges were for Love's and Washington's successful purchases of guns from gun shows. Washington testified that she went to a gun show with Movant on March 14, 2009, where she bought three guns Movant selected with money that Movant gave her. (Doc. 218 at 64-66, 83, 89, 94; Docs. 257-5, 257-6, 257-19.) Washington gave those guns to Movant. (Doc. 218 at 90.) Movant asked Washington to buy more guns after that date, telling her that he and Shields could make money by selling the guns on the street. (Id. at 66-67.) Washington refused. (Id.)

Around the same time, in April and May 2009, Movant told Washington that he had traveled to Boston and that he had an automobile accident in Boston. (Id. at 72-73.) In September 2009, while he was in jail in Cherokee County, Georgia, Movant wrote Washington a letter, which she testified she received.² (Id. at 74-75, 86, 93; Doc. 257-8.) In that letter, which was admitted as evidence at trial, Movant told Washington he needed more money for when he got out of jail, was waiting on money from "that boston accident," and that he "[g]otta hit the gun show and fill two orders." (Doc. 257-8 at 1.)

Love testified that she went to four gun shows and bought a total of fifteen guns at those shows at Movant's request. (Doc. 218 at 188, 194, 212, 232.) Love purchased three guns at each of three gun shows on March 21, 2009, April 18, 2009, and April 26, 2009. (Id. at 187-91, 194-98.) Movant and Shields accompanied Love on those three occasions, Shields gave Love the money and told her which guns to buy, and Love gave the guns to Shields upon exiting the gun shows. (Id.; Docs. 257-12 through 257-16.) Love purchased six guns at a gun show on May 3, 2009,accompanied by only Shields. (Doc. 218 at 198-200; Docs. 257-17, 257-18.) Love never saw any of the fifteen guns after giving them to Shields outside the gun shows. (Doc. 218 at 199-200.)

Love testified that she went to Boston with Movant and Shields, in Movant's van, on three to four occasions between March and May 2009 and that each trip lasted three to four days. (Doc. 218 at 200, 224.) Before making those trips, Movant told Love they were going to Boston so Shields could show the guns to people there. (Id. at 201.) Love did not see any guns on any of those trips and was not with Movant throughout the time in Boston. (Id. at 201-04, 228-30.) Movant took duffel bags on those trips, but Love did not know what was in those bags. (Id.)

Law enforcement officials from Massachusetts testified that they recovered in Boston, during traffic stops or in response to police reports, five of the...