U.S. v. Gassaway
| Decision Date | 30 May 1997 |
| Docket Number | No. CR-95-20-A.,CR-95-20-A. |
| Citation | 966 F.Supp. 1054 |
| Parties | UNITED STATES of America, Plaintiff, v. John Michael GASSAWAY, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
John Michael Gassaway, Oklahoma City, OK, pro se.
David P. Henry, Henry & Davidson, Joe E. White, Jr., White & Adams, Oklahoma City, OK, for John Michael Gassaway.
Susan Dickerson Cox, U.S. Attorney's Office, Oklahoma City, OK, for U.S. Attorneys.
Before the Court is defendant John Michael Gassaway's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed December 30, 1996. The motion is based on a Supreme Court decision that overturned long-standing authority in this circuit and restored to jury determination the "materiality" element of an offense under 18 U.S.C. § 1001: United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Court has considered the following submissions: Gassaway's initial brief; his supplemental brief filed January 28, 1997; the government's response filed February 7, 1997; and Gassaway's reply brief filed February 13, 1997. For the reasons that follow, the Court denies the motion.
A jury convicted Gassaway in May, 1995, of filing a false income tax return for calendar year 1991 in violation of 26 U.S.C. § 7206(1) as charged in a superseding indictment.1 The Court's jury instructions stated the following elements of the offense: (1) Gassaway made, signed and mailed to the IRS for filing an individual income tax return "that contained false information as to a material matter;" (2) he "did not believe the return to be true and correct as to every material matter as of the time he mailed it in;" (3) the return contained a declaration that it was signed under penalty of perjury; and (4) Gassaway acted willfully. (Instr. No. 16.) The Court defined the term "material matters" in a separate instruction that will be discussed further below.
Gassaway concurred in these instructions; in fact, his attorneys expressly agreed with the prosecution during instruction conferences that materiality of the allegedly false statements was not a matter for the jury to decide under extant Tenth Circuit law. See United States v. Strand, 617 F.2d 571, 574 (10th Cir.1980).2 Gassaway's defense at trial was that the tax return he sent to the IRS was not his "real" tax return but a working draft prepared for his own use and mailed by mistake. He claimed that the tax return prepared by his accountant and mailed later was his "real" return and that he never intended to file the one he did.
After trial, Gassaway timely moved for a judgment of acquittal or a new trial based on allegations of insufficient evidence, erroneous jury instructions, and tainted jury deliberations. As to jury instructions, Gassaway challenged the omission of his proposed "theory of defense" instruction and the inclusion of an instruction concerning a later-mailed tax return (Instr. No. 25). The Court denied Gassaway's post-trial motion on June 19, 1995.
On the same day, June 19, the Supreme Court decided Gaudin. The defendant in that case was convicted of making false statements in federal loan documents submitted to the Department of Housing and Urban Development (HUD) in violation of 18 U.S.C. § 1001. One element of this offense was that the false statements were material to HUD activities and decisions. On this point, the trial judge instructed the jury that materiality was a matter decided by the court and "the statements charged in the indictment are material statements." Gaudin, 515 U.S. at 508, 115 S.Ct. at 2313. The Ninth Circuit reversed the convictions on the ground that taking the question of materiality from the jury violated the defendant's Fifth and Sixth Amendment rights. The Supreme Court affirmed, holding:
The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the "materiality" of Gaudin's false statements infringed that right.
Id. at 522-23, 115 S.Ct. at 2320.
On August 28, 1995, over two months after Gaudin, Gassaway was sentenced to a 12-month term of imprisonment and a 1-year term of supervised release. Gassaway appealed but raised no issue about the effect of Gaudin on his case. On March 28, 1996, the court of appeals affirmed Gassaway's conviction and sentence.
Gassaway filed a pro se motion under section 2255 in December 1996 containing a single claim for relief. He alleged that Gaudin retroactively invalidated his conviction. The government responded by asserting a procedural bar. The government noted that Gaudin pre-dated Gassaway's appeal, that it was not mentioned in his appellate filings, and that he did not claim ineffective assistance of appellate counsel in his 2255 motion. Also, the government argued that Gaudin is inapposite because materiality is not an element of an offense under 26 U.S.C. § 7206(1) of willfully filing a false income tax return. As part of his reply, Gassaway raised an ineffective assistance claim. He presented affidavits of his attorneys stating they were unaware of Gaudin until recently and would have raised it in Gassaway's appeal if they had known of it. The Court will address each of these issues, but in reverse order.
Because Gassaway seeks to present a claim on collateral review that could have been raised on direct appeal, the issue of procedural bar is properly raised and must be enforced unless Gassaway satisfies an established exception. See United States v. Cox, 83 F.3d 336, 341 (10th Cir.1996); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995); United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994); United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994); United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993). Gassaway can now challenge his conviction based on Gaudin only if "he can show cause for his procedural default and actual prejudice resulting from the alleged errors...."3 Allen, 16 F.3d at 378; see Cox, 83 F.3d at 341; Warner, 23 F.3d at 291. Cause and prejudice may be shown, of course, if Gassaway can establish his claim that he received ineffective assistance of appellate counsel in violation of the Sixth Amendment. Cox, 83 F.3d at 341; Cook, 45 F.3d at 392.
To establish ineffective assistance of counsel, Gassaway must show that his counsel's performance was constitutionally deficient and that the deficient performance was prejudicial. Cook, 45 F.3d at 392 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Counsel's performance is deficient under Strickland if it "`falls below an objective standard of reasonableness,'" and "[p]rejudice is `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 690, 694, 104 S.Ct. at 2065-66, 2068). As to appellate counsel, the court of appeals has stated: Id. at 392-93 (quoting United States v. Dixon, 1 F.3d 1080, 1084 n. 5 (10th Cir.1993)).
Here, Gassaway's ineffective assistance claim fails because his Gaudin claim has no merit. Gassaway's arguments for reversal of his conviction focus on recent Tenth Circuit cases. In United States v. Wiles, 102 F.3d 1043, 1060-61 (10th Cir.1996) (en banc), the court held that failure to instruct on the materiality element of an offense under section 1001 is "structural" error and falls within that "special category of forfeited errors" that must be corrected, that is, the error is not subject to "plain error" analysis under United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), but is reversible per se. In United States v. Pappert, 104 F.3d 1559 (10th Cir.), vacated on other grounds, 112 F.3d 1073 (10th Cir.1997), the court applied Wiles to reverse convictions under 18 U.S.C. § 1014, despite defense counsel's concession that the alleged misstatements were material. The court of appeals held that the trial court erred in deciding materiality as a matter of law because the defendant did not "actually stipulate[] to the existence of that element" nor "formally relinquish his Fifth and Sixth Amendment rights to have the jury decide the element beyond a reasonable doubt." Pappert, 104 F.3d at 1565. The court of appeals thus reversed the convictions "notwithstanding our view that based on review of the record as a whole, the error here did not affect the fairness, integrity, or public reputation of [the] judicial proceedings." Id.
These decisions have been superseded by Supreme Court precedent. In Johnson v. United States, ___ U.S. ___, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Supreme Court decided and addressed the same issue presented in Wiles: whether failure to instruct a jury on materiality as an essential element of a criminal offense is subject to "plain error" review under Fed.R.Crim.P. 52(b) and United States v. Olano. Unlike the Tenth Circuit, the Supreme Court declined to find the error "structural" and thus reversible per se. Id. at ___, 117 S.Ct. at 1549-50. Instead, the Court conducted the "plain error" analysis dictated by Olano and held that the error in Johnson, which involved a conviction under 18 U.S.C. § 1623 for lying to a grand jury, failed the fourth part of the Olano test:
When the first three parts of the Olano are satisfied [namely, there is "error," that is "plain" and that "affect[s] substantial rights"], an appellate court must...
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