U.S. v. Means, 94-6218
| Decision Date | 09 January 1998 |
| Docket Number | No. 94-6218,94-6218 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Derrick Eugene MEANS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Derrick Eugene Means, Turney Center Industrial Prison, Only, TN, pro se.
Paula Skahan (argued and briefed), Thompson & Skahan, Memphis, TN, for Defendant-Appellant.
Before: RYAN, SUHRHEINRICH, and DAUGHTREY, Circuit Judges.
We are required to decide whether the procedural posture of this appeal is such that the case is properly before us for review. We hold that it is not and therefore we will dismiss the appeal.
The defendant, Derrick Eugene Means, was convicted following a jury trial of one count of falsely representing his Social Security number with the intent to deceive, in violation of 42 U.S.C. § 408(a)(7)(B), as well as one count of failure to appear before the district court as required by the conditions of his release on bond, in violation of 18 U.S.C. § 3146(a)(1). The procedural difficulties in this case began when, after filing a notice of appeal from the judgment of conviction, but before the appeal was heard, Means filed a motion in the district court under 28 U.S.C. § 2255, alleging that he had received constitutionally ineffective assistance of counsel at his trial. He requested of this court, and was granted, a stay of his direct appeal pending resolution of his section 2255 motion. Following an adverse judgment by the district court in the section 2255 proceeding, Means proceeded with this, his direct appeal. He presents two arguments: (1) that the district court erred in allowing him to be prosecuted for falsely using a Social Security number when his purpose in doing so was simply to conceal his identity from state law-enforcement officials; and (2) that the district court erred, in the section 2255 proceeding, in concluding that he was not unconstitutionally denied effective assistance of counsel.
Because the first issue was never raised in the district court, we will decline to address it, and will therefore affirm the judgment of conviction. As to the second issue, Means's failure to file a notice of appeal from the order denying relief in the section 2255 proceeding is a jurisdictional defect precluding this court's review of that order, and we will therefore dismiss this aspect of the appeal.
Means was scheduled to appear in federal court in the Western District of Tennessee on May 27, 1993, to answer to an indictment charging him with credit-card fraud, in violation of 18 U.S.C. § 1029(a)(2). This was the defendant's second scheduled appearance, as he initially appeared on April 7, 1993, pursuant to a writ ad prosequendam. This time, however, he failed to appear, being instead in a Shelby County, Tennessee jail on unrelated charges and then, later that same day, on his way to a Desoto County, Mississippi jail. At the May 27 hearing, his then-attorney informed the court that Means had told him that he had been in a car accident and received injuries to his left knee and foot, and would therefore be unable to appear. Questioning the veracity of the defendant's tale, the court instructed the government to investigate the story; the court stated its intention, if the story proved to be untrue, of issuing a bench warrant for Means's arrest. As we now know, the district court's instincts were correct, and the story was not true; further, Means does not contest that he could have been transported to the federal court had he informed the court of his actual location and circumstances.
A month or so after his failure to appear, Means was in a Sears department store, where he was arrested on unspecified charges. He told authorities that his name was either Darryl or Darrell Stevenson. He also told authorities that his Social Security number was 414-60-7081. This was untrue; his actual Social Security number is 414-17-5170.
Means was indicted shortly thereafter and charged with one count of failure to appear on or about May 27, 1993, in violation of 18 U.S.C. § 3146(a)(1), and one count of falsely representing his Social Security number with the intent to deceive on or about July 5, 1993, in violation of 42 U.S.C. § 408(a)(7)(B). Attorney Thomas Vornberger was appointed by the court to represent Means. A two-day trial was held in mid-February 1994, and the jury returned a guilty verdict on both counts.
At sentencing, where he was represented by a new attorney, Means received a sentence of six months on the failure-to-appear charge and 40 months on the Social Security fraud charge, to run consecutively. The sentencing hearing was held on August 19, 1994, at which time the district court pronounced oral judgment; a written judgment followed on September 6, 1994. Means filed a notice of appeal from the oral judgment, on August 26, 1994.
Then, on January 13, 1995, Means filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel from attorney Vornberger in connection with the failure-to-appear and Social Security fraud convictions. At the same time he filed his section 2255 motion, however, Means filed a motion in this court seeking to stay his direct appeal pending disposition in the district court. The motion to stay was initially denied by this court in January 1995. In February, however, the defendant filed a motion to reconsider, which motion was treated by this court as a renewed motion for stay of appeal and was granted, conditioned upon defense counsel's filing a status report every 30 days.
The government filed a motion seeking to have the section 2255 motion dismissed on the ground that Means was in state custody at the time he filed it. Rather than address the jurisdictional issue raised in the government's motion to dismiss, the magistrate judge addressed Means's ineffective assistance of counsel argument on the merits. After a detailed discussion of each of Means's arguments--and after making an explicit determination that Means's testimony was not credible in several important respects--the magistrate judge concluded that Means had been adequately represented, opining that "[t]he fact that the[ ] [jury] did not [acquit] speaks to the strength of the evidence against defendant and the energy and ability of the prosecutor, rather than to the inadequacy of Mr. Vornberger's trial efforts." Means filed timely objections to the magistrate judge's report and recommendation, but on November 12, 1996, the district court entered a final order denying relief to Means.
As Means's appellate counsel acknowledged during oral argument before this court, no notice of appeal was ever filed by Means following the entry of the district court's order. Counsel did, however, file a status report with this court ten days after the judgment in the section 2255 proceeding was entered, which read as follows:
Comes now your Appellant, Derrick Eugene Means, and states for the Appellate record that he has now received and reviewed the District Court's ruling on the Objections filed to the Magistrate Judge's findings. Your Appellant is now in a position to write his brief appealing the judgment of the District Court.
And on March 14, 1997, more than four months after the district court's final order in the section 2255 case, the defendant filed a motion in the district court for consolidation of his two district court cases--that is, his initial criminal case and his subsequent section 2255 case--"for purposes of appeal." The motion stated that "[o]ne of the issues on appeal relates to the denial of the § 2255 motion." This motion to consolidate was granted by a marginal notation, and a copy was filed with this court on March 25, 1997.
In the section of his brief attacking his criminal conviction, Means limits himself to a challenge to the Social Security fraud count. The statute in question provides, in pertinent part, as follows:
Whoever--
....
(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose--
....
(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person ...
shall be guilty of a felony and upon conviction thereof shall be fined under Title 18 or imprisoned for not more than five years, or both.
42 U.S.C. § 408(a)(7)(B) (emphasis added). Thus, the elements of the crime are: (1) false representation of a social security account number, (2) with intent to deceive, (3) for any purpose. See United States v. McCormick, 72 F.3d 1404, 1406 (9th Cir.1995).
Means argues that this statute should not be "interpreted to include falsely giving a social security number to police agencies for purely identification purposes," despite the "for any other purpose" language in the statute. Such interpretation, he asserts, fails to give him adequate notice under the Due Process Clause that his conduct was forbidden; the statute's location in Title 42 of the United States Code serves to imply that the statute only criminalizes the fraudulent receipt of government benefits. He concludes that since he "was not attempting to 'gain' anything of value from his actions" by giving a false...
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