Marcusse v. United States, File No. 1:09-CV-913

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtROBERT HOLMES BELL
PartiesJANET MAVIS MARCUSSE, Movant, v. UNITED STATES OF AMERICA, Respondent.
Decision Date26 October 2012
Docket NumberFile No. 1:09-CV-913

JANET MAVIS MARCUSSE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

File No. 1:09-CV-913

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 26, 2012


HON. ROBERT HOLMES BELL

OPINION

This matter is before the Court on Movant Janet Marcusse's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 1.)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, Superseding Indictment.) 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

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motion on October 2, 2009. (Dkt. No. 1.) On March 30, 2011, this Court conducted a preliminary review pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings. (Dkt. Nos. 41-42.) Upon review the Court dismissed many of Movant's claims for failing to present a plausible basis for relief and directed the government to respond to the remaining claims. (Id.)

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

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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 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. 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

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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.

As listed in this Court's March 30, 2012, order, Movant has 33 remaining claims for collateral relief.2 Upon review, all of these claims lack merit. The Court will discuss the merits of each, in turn.

A. Ground Two: Argument (2)

Marcusse asserts that the Supreme Court's holding in United States v. Santos, 553 U.S. 507 (2008) - that "proceeds" under 18 U.S.C. § 1956(a)(1) means "profits" - precludes her conviction on the money laundering counts. (Dkt. No. 30, at 171.) However, this claim was not raised on appeal, and thus is procedurally defaulted unless Marcusse can show cause and prejudice. Santos was decided after Marcusse's appeal, giving support to the notion that Marcusse has cause for not raising it on appeal. However, the government correctly notes that this Court found the same Santos claim raised by Marcusse's co-defendant, Donald Buffin, to be procedurally barred. (Dkt. No. 59, at 26.) The Court ruled this way because the claim was available to be raised on appeal due to a 2002 Seventh Circuit decision finding that "proceeds" meant "profits" and discussion of the matter in the First and Eighth Circuits. (Dkt. No. 1:09-CV-146, Dkt. No. 27, at 8.) For the same reasons, the Court finds that

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Marcusse's failure to raise the Santos claim lacks cause, and thus the claim is procedurally barred.3

If this claim was not barred, Marcusse would be entitled to § 2255 relief on some counts of her conviction. Marcusse is correct that Santos precludes her conviction as to the counts involving promotion money laundering in violation 18 U.S.C. § 1956(a)(1)(A)(I) (Counts 43-57), a point the government concedes. (Dkt. No. 59, at 28.) However, Movant is incorrect as to the other counts of money laundering (Counts 41, 58, 81-82). But despite her entitlement to collateral relief on some counts if her claim was not procedurally barred, the Court would nonetheless, pursuant to the concurrent sentencing doctrine, deny Marcusse § 2255 relief.

First, the Court will discuss why Marcusse's Santos claim has merit for certain money laundering counts, but not others. In Santos, the plurality concluded that because "proceeds" could fairly be interpreted to mean either "profits" or "receipts," to avoid a "merger" problem, the rule of lenity required limiting proceeds to profits, at least insofar as it was applied to an illegal lottery where the government charged promotional money laundering. 553 U.S. at 514-16. The Court explained that interpreting proceeds to mean receipts would mean that every person who operated an illegal lottery would, by default, simultaneously commit promotional money laundering "because paying a winning bettor is a transaction

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involving receipts that the defendant intends to promote the carrying on of the lottery." Id.

The Sixth Circuit has interpreted Santos as follows: "[proceeds] means profits only when the § 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase." United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009) (emphasis added). The Sixth Circuit put it a different way in a later opinion: "[A] merger problem arises when defining 'proceeds' as 'receipts' automatically makes commission of the predicate offense a commission of money laundering and where the predicate offense carries a much lower statutory maximum sentence than the associated money laundering." United States v. Crosgrove, 637 F.3d 646, 655 (6th Cir. 2011).

Because there is a merger problem with Counts 43-57, as the government concedes, Marcusse is entitled to collateral relief on those grounds. However, Movant is not entitled to collateral relief for the other money laundering counts (41, 58, 81-82) because those counts do not raise a merger problem. See Kratt, 579 F.3d at 562 (requiring a merger problem for Santos to apply).

Count 58 regarded transactional money laundering under 18 U.S.C. § 1957. Under this statute, it is a crime to knowingly engage in a monetary transaction in property of a value greater than $10,000 that is derived from a specified unlawful activity. 18 U.S.C. § 1957(a). Here, the specified unlawful activity was mail fraud. (1:04-CR-1 65, Dkt. No. 108, at 31.) There is no merger problem because the mail fraud, which involved conduct such as mailing

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newsletters to investors with false statements and mailing fake interest checks, did not "merge" with Marcusse's use of funds derived from the scheme for the personal expenditure of purchasing a...

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