Monea v. United States

• Decision Date: 22 January 2019
• Docket Number: No. 16-4250,16-4250
• Citation: 914 F.3d 414
• Parties: Paul MONEA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

914 F.3d 414

Paul MONEA, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 16-4250

United States Court of Appeals, Sixth Circuit.

Argued: October 19, 2018

Decided and Filed: January 22, 2019

ARGUED: Matthew D. Rowen, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Matthew D. Rowen, Erin E. Murphy, Megan M. Wold, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: KEITH, CLAY, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

After the FBI arrested Paul Monea for money laundering, he told his attorney that the undercover agent coerced him into committing the crime. Those claims turned into allegations that the government tampered with evidence. And eventually—after the jury convicted him—Monea found a witness claiming that the undercover FBI agent lied on the stand. So he asks the court for a writ of habeas corpus, either because his trial counsel ineffectively pursued the evidence-tampering claim, or because the government’s star witness perjured himself. But neither claim ends up bearing much fruit. We affirm.

I.

The FBI arrested Paul Monea on December 13, 2006 after a prolonged sting operation. See United States v. Monea , 376 F. App'x 531, 533–35 (6th Cir.2010). Undercover agent John Tanza posed as a man named Rizzo, a cocaine-broker who needed help cleaning cash for his drug-dealing clients. Id. at 533. He met Monea through a mutual acquaintance, purportedly in search of legitimate businesses to invest in. Id . Eventually, Monea agreed to sell a 43-carat diamond and some real estate to Rizzo’s clients for $19 million. Id. at 534–35. But Monea was apprehensive about dealing in cash, so he asked Rizzo to wire him a deposit. Rizzo then sent Monea $100,000 in three separate transactions—supposedly because he did not have the money to wire it in one lump sum. Id . Soon after that the FBI arrested Monea for four separate money-laundering related crimes.

Sometime later, Monea learned from an acquaintance that Tanza might not have been completely forthcoming on the witness stand about why he wired the deposit in three separate transactions. Nancy McCann, the trustee of the Monea Family Trust, claims she overheard Tanza tell a colleague that he deliberately structured the $100,000 deposit as three different transactions to ensure the Government could charge Monea with three separate counts of money laundering. But when Monea’s attorney asked Tanza during trial why he wired three different payments, Tanza testified that he did not have enough money to pay it out as a lump sum.

Early on after his arrest, Monea claimed that Tanza coerced him into going along with the plan by threatening him and his family. But it turned out that much of the case against Monea was captured on a wire, and the audio tapes contained no evidence of the alleged threats. Monea’s claims about coercion soon turned into allegations that the Government tampered with the tapes to delete evidence of misconduct. And that’s when the problems began.

In March 2007, Monea alerted his attorney, William Whitaker, to his suspicion that the Government tampered with the tapes. Whitaker admits that he was skeptical. But he agreed to meet with a private investigator in early April to discuss the issue. The investigator, Michael Robertson, proposed a significant investigation for $50,000. Whitaker pushed back. Instead, they agreed to a preliminary review of the tapes for $1,000. But no one ever paid Robertson the money to retain him.

Trial was scheduled to begin about a month later. Whitaker asked for a continuance, but he declined to raise the tampering issue without more evidence. He cited the voluminous record and substantial number of audio recordings as grounds for the delay. The district court denied his request.

The night before trial, Robertson contacted Whitaker about the recordings. Robertson had started listening to the tapes "out of curiosity" (because he still had not been paid) and discovered an anomaly. R. 175, Hr’g Tr. at 89–91, PageID 5769–71. But Whitaker rebuffed him. Robertson was not qualified to testify about such issues, Whitaker said. And he would not bring the issue to the court without competent evidence from a qualified witness. So the trial continued, and Whitaker made no objection to the authenticity of the tapes as the Government introduced them.

Then Robertson forced the issue. He found another witness and produced an affidavit confirming the anomaly. This put Whitaker in a tough spot. The evidence at trial had already closed, and the district judge was about to instruct the jury. Whitaker asked for a sidebar with the court and explained that his investigator discovered evidence suggesting that one of the tapes might have been altered. Although Robertson informed him of the issue "[o]n the eve of trial," Whitaker told the court that he chose not raise it at that time because Robertson "wasn’t qualified to testify to a requisite degree." R. 280, Trial Tr. at 869, PageID 3233.

To put it mildly, the judge did not appreciate the timing. He chastised Whitaker for sitting on the issue, stating that Whitaker "had an obligation to bring it forward and call it to the court’s attention" as soon as he could. R. 280 at 873, PageID 3237. But the judge did not punish Monea for the delay. The judge finished the trial and told Whitaker he could file a post-trial brief to address the issue if necessary. The judge also gave Whitaker a bit of an assist. He provided Whitaker with the name and contact information of a qualified forensic analyst who could conduct an independent examination of the audio recording. After the sidebar, the jury convicted Monea on all four counts.

For whatever reason, Whitaker did not hire the court’s recommended independent expert. He instead retained two other individuals—a music professor and his assistant—to examine the recordings. He then moved to vacate the conviction and asked for an evidentiary hearing to explore the authenticity of the tapes.

The district court held a six-hour hearing on October 15, 2007. It quickly became apparent that the court believed that neither of Monea’s witnesses was qualified to opine about the authenticity of the recordings, and it rejected their proffered testimony. The Government, on the other hand, produced several qualified witnesses to rebut Monea’s unsubstantiated claim that the tapes had been altered. Collectively they testified that it would require a complex conspiracy among many different individuals to successfully alter one of these recordings. That’s because Tanza could not turn the device on or off on his own, the metadata showed that the audio files had not been modified, and these types of files would not play if a modification had been made. Monea had no answer to this testimony.

By the end of the hearing, the Government had provided overwhelming and unrebutted evidence that the tampering claim was farfetched. So Whitaker continued to search for qualified witnesses to examine the audio recording. He found two, James Reames and Gregg Stutchman, and submitted a supplemental brief about one month later. Both witnesses stated they believed the recording contains an anomaly attributable to an alteration. Whitaker asked for a second hearing to put on additional testimony from Reames and Stutchman. He also asked to analyze the device.

The district court denied Monea’s post-trial motion and did not permit Reames or Stutchman to testify. It did so after it "thoroughly considered" the affidavits and determined that Reames’s and Stutchman’s testimony would not sufficiently rebut the Government’s witnesses and prove the tampering claim. See Monea , 376 F. App'x at 548–50. The court also refused Monea’s request for access to the recording device, finding that Monea’s speculative evidence did not merit requiring the Government to turn over a highly confidential device. We upheld both decisions on appeal. See Monea , 376 F. App'x at 548–50.

The district court judge eventually sentenced Monea to 150 months, a substantial downward variance from the 235-month recommendation under the guidelines. He imposed that sentence after first expressing substantial misgivings about what he perceived to be Monea’s eleventh-hour gamesmanship over the audio recordings. Without the "contrived" antics, the judge explained, "a variance in this case would be extraordinarily likely." R. 216, Sentencing Hr’g Tr. at 142–44, PageID 2066–68. But then he backtracked a bit. He said he could set aside his frustration about the tampering issue and vary downward from the recommendation, which he ultimately did.

Monea eventually moved for habeas relief. He asserted six grounds to vacate his conviction and sentence under 28 U.S.C. § 2255. The district court denied each one, and we granted a certificate of appealability on two. First, we granted a certificate to appeal Monea’s claim that Whitaker provided ineffective assistance of counsel by failing to properly investigate and present the evidence-tampering claim to the trial court. Second, we granted a certificate to appeal his claim that Tanza perjured himself on the witness stand. But we denied Monea’s request to appeal whether he suffered sentencing prejudice from Whitaker’s inadequate representation. And finally, we certified whether the district court should have held an evidentiary hearing under 28 U.S.C. § 2255(b).

II.

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 686–87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendants claiming ineffective assistance must establish two things. First, that the attorney’s performance fell below "prevailing professional norms." Kimmelman v. Morrison , 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And second, that...