Toth v. United States, 3:17-cv-653-RJC

• Decision Date: 28 April 2020
• Docket Number: 3:17-cv-653-RJC,3:14-cr-195-RJC-DCK-1
• Court: U.S. District Court — Western District of North Carolina
• Parties: PAUL R. TOTH, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

PAUL R. TOTH, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

3:17-cv-653-RJC

3:14-cr-195-RJC-DCK-1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

April 28, 2020

ORDER

THIS MATTER is before the Court on Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and Amended Motion to Vacate, (Doc. No. 8).

I. BACKGROUND

Petitioner was charged for his involvement in a fraudulent lottery scheme for: Count (1), conspiracy to commit money laundering (18 U.S.C. § 1956(h)); and Counts (2)-(7), money laundering concealment and aiding and abetting the same (18 U.S.C. § 1956(a)(2)(B)(i)). See (3:14-cr-195, Doc. No. 3).

The Government presented evidence at trial that an elderly couple, Wilma and Darwin Follman, had wired over $300,000 to Petitioner in 37 transactions in order to procure lottery winnings as part of a scam. (Id., Doc. No. 57 at 37, 179-80). Petitioner recruited several friends and family members to cash checks at various banks and in different account numbers; $208,214 of the money was broken down into smaller amounts that were then sent in 81 separate wire transfers to Costa Rica. (Id., Doc. No. 57 at 180, 188). Petitioner received money for each of these transactions, usually between $2,000 and $3,000, totaling over $99,000 of the Follman's money.(Id., Doc. No. 57 at 168, 180). Agent Eric Kost investigated the case and interviewed Petitioner on several occasions. Petitioner's videotaped statements were played for the jury. (Id., Doc. No. 156 et seq.). Agent Kost presented evidence about the flow of the Follmans' money to Petitioner then to Costa Rica, the role of each of Petitioner's crew members, and the pattern of concealment that indicated Petitioner was aware that he was engaged in illegal conduct. (Id., Doc. No. 57 at 180-88); (Id., Doc. No. 58 at 5-6).

The Court informed Petitioner about the right to testify or not testify as follows:

THE COURT: ... I wanted to talk to you about something that I'm sure you've talked to your attorney about, and that's your right to testify or not to testify. I'm sure you have talked to Mr. Jones, Mr. Phillips, and you will continue to talk to them. But I wanted to make sure that I had a conversation with you.

And you have a right not to testify. I've told the jury that already. I've instructed them at the end of the case, if that's your choice that they can't hold that against you. That's your constitutional right.

You also have a right to testify. And although your lawyers can instruct you and recommend things to you, at the end of the day it's a personal choice that you make.

And I wanted to make sure that you knew that you had an absolute right not to testify, if that's what you chose, can't be held against you. And you have an absolute right to testify if that's your choice. Do you understand?

THE DEFENDANT: Yes, Your Honor. Thank you.

THE COURT: And some time after the government rests I'm going to come back and ask you what your choice is. I just wanted to take this time when the jury is out to explain that to you.

THE DEFENDANT: Appreciate that.

(Id., Doc. No. 57 at 189-90).

The Court followed up the next day after the Government rested:

THE COURT: ... I'd like to make an in-court inquiry of Mr. Toth in light of our conversation last night on your choice as to whether to testify or not. Again, youhave a constitutional right not to testify, but you also have the right to testify if that's your choice. Have you been able to talk with your attorney about that choice?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And have you made a choice whether to testify or not?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And what is that choice?

THE DEFENDANT: I will testify.

(Id., Doc. No. 58 at 38-39).

Petitioner testified that a college friend, Chris Griffin, contacted Petitioner around 2008 saying that he had come into a fortune and asking Petitioner to send Griffin's inheritance money, that he was having trouble accessing in Costa Rica where he was living, for investments. (Id., Doc. No. 58 at 49-50, 53). Petitioner carried out multiple transactions involving "Wilma," who he though was Griffin's aunt. (Id., Doc. No. 58 at 53-54). He admitted speaking to Wilma on three occasions and told her that Chris was not available to speak with her and that he would contact her another time. At one point, Petitioner's bank account was temporarily frozen then unfrozen. Up until the point when his account was frozen, Petitioner did not think anything was wrong. Eventually Petitioner was blocked from sending further funds to Costa Rica so he asked friends and family to help him. (Id., Doc. No. 58 at 60-64). Petitioner claimed that he became suspicious towards the end of October 2010 when Griffin asked him to dress up as a mailman, pick up $50,000 in cash, and fly it to Costa Rica. (Id., Doc. No. 58 at 72-73). Petitioner refused and, the next day, an unsigned blank check arrived at Petitioner's home. Petitioner put the money in the bank but the bank rejected the check. Petitioner did not send any more money to Costa Rica. Petitioner claimed that he would not have helped Griffin move money or get his family and friends involved if he knew that Griffin was a con artist. (Id., Doc. No. 58 at 75). On cross-examination, Petitionertestified that he would keep a couple hundred dollars, up to $1,000, per transaction. (Id., Doc. No. 58 at 92). Defense counsel also called several other witnesses for the defense. See (Id., Doc. No. 58 at 39-137).

The jury found Petitioner guilty of all seven counts. (Id., Doc. No. 43).

The Presentence Investigation Report ("PSR") calculated the base offense level as 20 because the base offense level for money laundering is 12 and eight levels were added because the value of laundered funds was $307,702. (Id., Doc. No. 55 at ¶ 47). Four levels were added because Petitioner was in the business of laundering funds, two levels were applied because the offense involved sophisticated laundering, two levels were added because Petitioner knew or should have known the victims were vulnerable, four levels were added because Petitioner was a leader or organizer of a criminal activity involving five or more participants or was otherwise extensive. (Id., Doc. No. 55 at ¶¶ 48-51). Two levels were added for obstruction of justice because "[t]e government has provided information that indicates that the defendant attempted to obstruct justice by providing false statements to investigators, provided false testimony at trial, and disobeyed the Court's Order prohibiting contact with witnesses." (Id., Doc. No. 55 at ¶ 52). This resulted in an adjusted offense level subtotal of 34. (Id., Doc. No. 55 at ¶ 53). Petitioner had one criminal history point and a criminal history category of I. (Id., Doc. No. 55 at ¶¶ 62-63). The resulting advisory guidelines range was between 151 and 188 months' imprisonment. (Id., Doc. No. 55 at ¶ 100).

Counsel filed written PSR objections on Petitioner's behalf. (Id., Doc. Nos. 51, 59); see also (Id., Doc. No. 61 at 4-6) (Sentencing Memorandum).

At the sentencing hearing, the Court asked Petitioner whether he had reviewed the PSR as follows:

THE COURT: ... Have you had a chance to read the presentence report?

THE DEFENDANT: The rough draft one.

THE COURT: All right. So the presentence report that I have in front of me is dated - the final report is November 19, 2015, that's the one you're referring to. And then there's a revised report of February 12.

So is it my understanding that you reviewed the November 19 final report?

MR. JONES: Your Honor, what Mr. Toth is telling me is that he has seen and received the October 15, 2015, draft. I'll tell the Court, I've sent copies of both the next two presentence report to him. I've also been to visit him at the Mecklenburg County jail and we've discussed -

THE COURT: Have you gone over the differences between the October report and the final report?

MR. JONES: I have. And specifically we've gone through the objections or the enhancements that were added. We talked about the different enhancements that have been added and the objections that I've lodged to those.

THE COURT: Very well. And do you confirm all that, Mr. Toth?

THE DEFENDANT: We went over the objections, yes.

THE COURT: And so, I guess, my question for you would be:

The report you reviewed, did you understand it?

THE DEFENDANT: Yes.

THE COURT: And the objections that Mr. Jones went over with you and the modifications to the report, did you understand all of those? I'm not asking if you agree with them, but did you understand those?

THE DEFENDANT: I got to see some of the objections. Yes, I'm pretty sure I understood them.

THE COURT: Well, let me ask you whether you believe that you've had enough time to go over the presentence report and the objections in the - and the presentence reaction to those objections have you had enough time to go over those things with your attorney?

THE DEFENDANT: The ones I have here -

(Conferring with counsel.)

THE DEFENDANT: Yes.

THE COURT: Do you think you've had enough time?

THE DEFENDANT: Yes.

THE COURT: Very well. What I'm going to do is let Mr. Jones argue any objections he wishes to argue, and at some point before imposing sentence I'm going to let you say whatever you think I need to hear from you.

THE DEFENDANT: Thank you, Your Honor.

(3:14-cr-195, Doc. No. 76 at 2-4).

The Court sustained the defense objection to paragraph 49 and found that the offense did not involve sophisticated money laundering. The Court also reduced the enhancement in paragraph 51 to three levels after finding that Petitioner was a manager or supervisor but not a leader or organizer. The Court overruled the objection to the enhancement for obstruction of justice because "the whole thrust of the testimony was false, and knowingly so, with an intent to deceive...." (Id. Doc. No. 76 at 35). The Court's rulings reduced the total offense level to 31 and the resulting guidelines range was 108...