Marcusse v. U.S.

• Decision Date: 30 March 2011
• Docket Number: No. 1:09–CV–913.,1:09–CV–913.
• Citation: 785 F.Supp.2d 654
• Parties: Janet Mavis MARCUSSE, Movant,v.UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Michigan

785 F.Supp.2d 654

Janet Mavis MARCUSSE, Movant,

v.UNITED STATES of America, Respondent.

No. 1:09–CV–913.

United States District Court, W.D. Michigan, Southern Division.

March 30, 2011.

OPINION

ROBERT HOLMES BELL, District Judge.

This matter is before the Court on Movant Janet Mavis Marcusse's motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct her sentence. (1:09–CV–913, Dkt. No. 1). Movant was indicted on October 27, 2004, on the following charges: (1) mail fraud, in violation of 18 U.S.C. § 1341; (2) conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371; (3) conspiracy to commit money laundering, in violation of 18 U.S.C. § 371; (4) conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; and (5) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). (1:04–CR–165, Dkt. No. 108). Movant was convicted on June 14, 2005, and sentenced to twenty-five years in prison. (1:04–CR–165, Dkt. Nos. 522, 558). Movant appealed and her conviction was affirmed on February 19, 2008. (1:04–CR–165, Dkt. No. 704). Movant filed her § 2255 motion on October 2, 2009. (1:09–CV–913, Dkt. No. 1).

After a § 2255 motion is filed, the Court must undertake a preliminary review of the motion to determine whether it plainly appears from the motion, the attached exhibits and the record of prior proceedings that Movant is not entitled to relief in the district court. Rule 4, Rules Governing § 2255 Proceedings. If so, the court shall make an order for its summary dismissal. Id. The Government is not required to answer the motion unless the Court so orders. Rule 5, Rules Governing § 2255 Proceedings. The Court has conducted its preliminary review, and finds that summary dismissal of Movant's § 2255 motion is not warranted, and that the Government must respond to Movant's motion. However, the Court concludes that only a portion of the arguments raised in Movant's brief in support of her § 2255 motion (1:09–CV–913, Dkt. No. 34) present a plausible basis of relief. Therefore, pursuant to Rules 4 and 5 of the Rules Governing § 2255 Proceedings, the Government is directed to respond to Movant's motion, but need only respond to those arguments designated by this opinion and corresponding order. The Government need not respond to those arguments which the Court identifies as being without merit upon preliminary review.

Movant's brief in support of her § 2255 motion contains thirty separate “grounds,” many of which contain multiple arguments. (1:09–CV–913, Dkt. No. 34). Although Movant's brief does not subdivide or label the arguments made under each “ground,” the Court has numbered the separate arguments found under each “ground” for ease of reference and analysis.

I.

A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir.2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (internal quotations omitted)).

As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either 1) “cause” and “actual prejudice”; or 2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 621–22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Frady, 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504, 123 S.Ct. 1690. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Id.

In reviewing a § 2255 motion where factual disputes arise, “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.” Valentine v. United States, 488 F.3d 325, 333 (6th Cir.2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir.1999)). The Court must grant a hearing to determine the issues and make findings of fact and conclusions of law on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). No evidentiary hearing is required if the allegations “cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999)). “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing § 2255 Cases, Rule 4(b). Where the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996).

II.Ground One

Movant's first ground in support of her § 2255 motion consists of three arguments: (1) failure of the superceding indictment to use the term “Ponzi scheme” caused it to be defective, (2) the jury instructions were defective because they failed to use the term “Ponzi scheme,” and (3) the Government engaged in prosecutorial misconduct. All three arguments listed within Movant's first ground in support of her § 2255 are without merit.

First, Movant contends that the failure of the superceding indictment to use the language “Ponzi scheme” caused it to be defective and that through prosecutorial misconduct, removal of the term “Ponzi scheme” from the jury instructions was “per se prejudicial” and violated her Fourth, Fifth, and Sixth Amendment rights. (1:09–CV–913, Dkt. No. 34).

Failure of the superceding indictment to use the term “Ponzi scheme” does not render it defective. For an indictment to be constitutional, two requirements must be met: “first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Resendiz–Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (quoting Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)).

The superceding indictment clearly and explicitly identifies the elements of each charged offense and the charges' corresponding statutory authority. ( See 1:04–CR–165, Dkt. No. 108). Movant was indicted under 18 U.S.C. §§ 371, 1341, 1956, 1957. Id. The term “Ponzi scheme” does not appear in the statutory language of any of the statutes which Movant was convicted of. See 18 U.S.C. §§ 371, 1341, 1956, 1957. A “Ponzi scheme” is merely a lay-term used to describe a variety of fraud. Absence of the term “Ponzi scheme” from the superceding indictment is irrelevant to its effectiveness.

Further, the Judgment also states the same statutes and corresponding indictment counts that Movant was found guilty of violating. (1:04–CR–165, Dkt. No. 558). Because the Judgment and superceding indictment properly identified the statutes and counts which Movant was found guilty of, Movant bears no risk of being prosecuted in the future for the same offenses. Therefore, Movant's superceding indictment was constitutional, and her argument is without merit.

Second, Movant contends that the jury instructions were defective because they failed to use the term “Ponzi scheme.” (1:09–CV–913, Dkt. No. 34). In Middleton v. McNeil, the Supreme Court stated the proper due process analysis of jury instructions for criminal trials:

[T]he State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is “whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process.” “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” “If the overall charge is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the constitution.”

541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (citations omitted). As stated before, the term “Ponzi scheme” is not itself a legally significant term, and is merely used to describe various types of fraud. Movant appears to contend that the use of the term “Ponzi scheme” during the trial combined with its absence in the jury instructions prejudiced her and resulted in defective jury instructions. (1:09–CV–913, Dkt. No. 34, at 67–74, Ex....