Lopez v. United States
| Decision Date | 12 February 2019 |
| Docket Number | No. 1:18-cv-02172-TWP-MPB,1:18-cv-02172-TWP-MPB |
| Parties | JAIME C. LOPEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Indiana |
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on a Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Jaime C. Lopez ("Lopez"). For the reasons explained in this Order, the motion is DENIED and dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).
In January 2016, Lopez was tried and convicted by a jury of all charges contained in a nineteen-count Revised Indictment, which included fifteen counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 1-15); four counts of money laundering, in violation of 18 U.S.C. § 1957 (Counts 16-19); and one count of securities fraud, in violation of 15 U.S.C. § 78j(b) (Count 20). United States v. Lopez, No. 1:15-cr-00069-TWP-DML-1 (S.D. Ind.) (hereinafter "Crim. Dkt."), Dkt. 61.
Between December 2009 and January 2012, Lopez created various business entities on paper which he later utilized to commit the wire fraud, money laundering and securities fraud offenses of which he was convicted. These entities, with names all beginning with Lopez's initials, included JCL Interest Plus, JCL Capital Inc., JCL & Company, Inc. and JCL Direct (the "JCL Entities"). These companies had no employees and were essentially alter egos of Lopez, who conducted all of his business from his house.
The victims of Lopez's fraud scheme were all people that he met personally at his church (Thomas Holsworth) or through family members (Jerry and Colleen Wilson and Danny Cole). The only people who ever invested with Lopez were these four victims and his father-in-law, Stevie Brown. Lopez persuaded the victims to transfer their retirement funds to him for further investment. In soliciting their business, Lopez represented that the funds invested would be used as loans to outside businesses, to purchase corporate bonds or notes, or to invest in real estate. In a letter to Danny Cole, Lopez claimed that JCL Capital was engaged in the business of "small equipment financing to large corporate loans." These investments never occurred.
Beyond the solicitations he made to the investors in personal conversations with them, Lopez provided flyers and used a website, www.jcl-companies.com, to seek their business under false pretenses. For example, flyers for JCL Capital indicated that the company provided real estate lending throughout North America and claimed that other companies "make use of JCL's broad industry expertise" to achieve their financial goals. The flyers further claimed that JCL Capital had "industry-specific expertise in aviation, energy, infrastructure, healthcare, and media." JCL Capital never conducted any such business. The website falsely described the JCL Entities, falsely claiming that its portfolio included such major corporations as Exxon Mobil, Wells Fargo, Visa, American Express and Procter & Gamble.
To execute his scheme, Lopez directed his victims to transfer funds from their Individual Retirement Accounts (IRAs) into self-directed IRAs administered by an independent IRA management company, Entrust IRA, later known as Midland IRA ("Midland"). Lopez advised the investors that, after their retirement funds were transferred to Midland, he would move the funds into one or more of the JCL Entities for further investment. As a further part of the process, the investors executed promissory notes to the JCL Entities, per instructions from Lopez.
At Lopez's direction, once the investor funds had been received by Midland, they were deposited into bank accounts controlled by Lopez in the name of one or more of the JCL Entities or an assumed business name thereunder. In total, the victims invested the following amounts of money with Lopez: (1) Thomas Holsworth, $49,215.20; (2) Jerry Wilson, $140,261.46; (3) Colleen Wilson, $36,351.60; and (4) Danny Cole, $222,963.53. In total, these individuals invested $448,791.79 with Lopez.
Very little of this money was ever invested by Lopez. Beyond a $45,000 investment of Danny Cole's money into an E* Trade account, which was completely lost, Lopez diverted all thefunds for his own use, including $70,574 for his home mortgage payments, $41,208 for personal automobiles, and $45,870 for landscaping of his home. The four money laundering counts of which Lopez was convicted relate to transactions in which he used some of the diverted money to make mortgage and landscaping payments and to purchase two Mercedes-Benz automobiles.
Lopez's conversion of the investment funds for his personal use was accomplished in two basic ways. Much of the money was taken by Lopez simply writing checks for personal expenses on the JCL Entities accounts into which the victims' funds had been transferred by Lopez. The other method was that Lopez transferred invested money into a bank account in the name of 413 Solutions, Inc. and then paid for personal expenses out of that account. 413 Solutions was a business operated by Lopez's wife. However, he wrote every check on the account and managed the bank records. Lopez's victims obtained no ownership interest or any other benefit from his movement of their funds into the 413 Solutions account.
Late in the scheme, Lopez created new promissory notes for each victim with one or more of the JCL Entities. Each of these new notes had less favorable terms for the investor than the original notes, in that the required investment term was longer and the rate of return to be paid was lower. Although these notes appeared to bear the signatures of the investors, they testified that they did not agree to the revised terms and did not sign any documents authorizing the new notes.
Danny Cole testified on both direct and cross examination that, although he did not sign his original promissory note and related documents which were executed in December 2010, he had orally given Lopez approval to sign these documents on his behalf because he trusted Lopez at that time. Cole further testified that he did not sign the later promissory note and related documents dated in July 2011 and did not authorize Lopez in any fashion to sign his name or execute those documents. When Lopez was confronted by Cole regarding Lopez's unauthorizedtransfer of $122,000 of funds from Cole's Midland account to JCL Capital, based ostensibly on the latter promissory note bearing the forged signature of Cole, Lopez returned that amount plus some interest to Cole in September 2012. Otherwise, none of the investors, including Cole, ever received any money back from Lopez.
On January 22, 2016, a jury found Lopez guilty on all counts charged in the Revised Indictment. Crim. Dkt. 61. On May 19, 2016, Lopez was sentenced to 57 months' imprisonment for each count, to be served concurrently, followed by three years of supervised release. Crim. Dkt. 89.
Lopez appealed his conviction and the Seventh Circuit affirmed his conviction, holding that: (1) the IRS agent's testimony did not fall outside the permissible scope of testimony as a summary witness; (2) the government's references to an infamous operator of a Ponzi scheme during closing argument did not deny Lopez of a fair trial; (3) the district court did not abuse its discretion by prohibiting the Lopez from referring to a certain witness as an "expert;" and (4) although extrinsic evidence of prior inconsistent statements by Cole was admissible, the Court's error in prohibiting extrinsic evidence of the prior inconsistent statement was harmless. See United States v. Lopez, 870 F.3d 573 (7th Cir. 2017), rehearing and rehearing en banc denied, 2017 U.S. App. LEXIS 20336 (7th Cir. October 17, 2017).
On July 16, 2018, Lopez filed the pending motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. The United States filed a response. Dkt. 8. Lopez did not file a reply, and the time to do so has passed.
Lopez seeks relief pursuant to § 2255 arguing: (1) it was illegal for Danny Cole to provide false statements to federal agencies and investigators and when he later retracted the statements,the Court refused the use of the prior statements for impeachment (grounds one and two), Dkt. 1 at 6-7; (2) his trial counsel provided ineffective assistance of counsel by failing to do pretrial interviews of witnesses and victims to determine the strength of their testimony, Dkt. 1 at 14; (3) his trial counsel provided ineffective assistance of counsel by failing to prepare properly, object effectively, or moving for a mistrial after Danny Cole's testimony changed, Dkt. 1 at 15. In response, the United States argues that his arguments about Cole's testimony are...
To continue reading
Request your trial