United States v. Barber
| Decision Date | 07 August 2018 |
| Docket Number | Case No.: 4:16cv9/RH/GRJ,Case No.: 4:12cr17/RH/GRJ |
| Parties | UNITED STATES OF AMERICA, v. KENNETH L. BARBER |
| Court | U.S. District Court — Northern District of Florida |
This matter is before the court upon a "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody," supporting affidavit and memorandum of law filed by Petitioner Kenneth L. Barber. (ECF No. 247-249.) The Government filed a response (ECF No. 254), and Petitioner filed a reply. (ECF No. 258.) Petitioner also filed a Motion for Preference (ECF No. 269), and a Motion for Leave to Amend his § 2255 Motion (ECF No. 271.) This case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a review of the record and the arguments presented, the undersigned concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases.
Petitioner Kenneth L. Barber and co-defendant Shavita Altrecia Davis were charged in a 58-count superseding indictment. (ECF No. 43.) The indictment alleged that Barber owned and operated tax preparation firms that employed Ms. Davis. Count One charged the defendants with conspiring to commit tax fraud—by submitting false federal income tax returns for a number of taxpayers—in violation of 18 U.S.C. § 371. The other 57 counts charged substantive offenses. Counts 2 through 34 charged filing false federal income tax returns in violation of 18 U.S.C. § 7206(2). Barber was charged in Counts 7, 8, 12, 16, 17, 21, and 32. Counts 35 through 53 chargeD wire fraud—the electronic filing of false federal income tax returns—in violation of 18 U.S.C. § 1343. Barber was charged in Counts 37, 44, 45, and 47. Counts 54 and 55 charged Ms. Davis with aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1). Counts 56 through 58 charged Barber with bank fraud—the submission of his own false federal income tax returns in support of loan applications—in violation of 18 U.S.C. § 1014. Barber and Davis were jointly charged only in Counts 1 and 8 of the superseding indictment.
On August 7, 2012, the Office of the Federal Public Defender was appointed to represent Barger, and Clifford Davis appeared in his behalf.
On December 21, 2012, Mr. Clifford moved to sever Counts 56, 57 and 58, which related to Barber's use of fraudulent tax returns as proof of income. (ECF No. 93.) The Government responded in opposition, and the court denied the motion on April 2, 2013. (ECF Nos. 98, 142.)
In January of 2013, the court entered an order setting the cases for separate trials. Ms. Davis' trial was scheduled first, but she entered a guilty plea during her trial in February of 2013. (ECF No. 124.)
Barber's three-day trial took place in April of 2013. The jury found Barber guilty of Counts 1, 7, 12, 16, 17, 21, 32, 37, 44, 45, 47, 56, 57, and 58 of the superseding indictment. (ECF No. 157.) Count 8 was dismissed upon Government motion at sentencing. (ECF No. 192.)
The Final Presentence Investigation Report ("PSR") determined that Barber had a total offense level of 27 and a criminal history category of III. The applicable guidelines range was 87 to 108 months. However, there was a statutory maximum sentence of 60 months as to Count 1 and 36 months as to Counts 7, 12, 16, 17, 21 and 32. (ECF No. 189, PSR ¶¶ 109, 110).
The court sustained a defense objection to the adjustment for use of an authentication feature, which brought the total offense level to 25, and the applicable guidelines range to 78 to 87 months. (ECF No. 189, PSR ¶ 58; ECF No. 207 at 23, 29). The Court sentenced Barber to concurrent terms of 60 months on Count 1, 36 months on Counts 7, 12, 16, 17, 21 and 32, and 87 months on Counts 37, 44, 45, 47, 56, 57, 58. (ECF No. 195.) The total 87-month sentence was at the top of the applicable guidelines range. The Court subsequently entered a restitution order directing Barber to pay the Internal Revenue Service $124,938.00 in accordance with the parties' restitution stipulation, and another order noting that the obligation was partly joint and several with his co-defendants. (ECF Nos. 209, 210, 215.)
Barber appealed, challenging the sufficiency of the evidence as to all of his convictions, the district court's denial of his motion to sever the false-statement counts, the application of the role adjustment, and the loss calculation. (ECF No. 240.) After a thorough review, the Eleventh Circuit affirmed on December 2, 2014. Barber's petition for a writ of certiorari was denied on May 5, 2015.
Barber timely filed the instant motion in January of 2016. (ECF No. 247.) He raises fourteen claims in the instant motion, primarily alleging errors by trial counsel. The motion also includes a claim of ineffective assistance of appellate counsel (Ground 5) and Government misconduct/ selective prosecution (Ground 7).
While his § 2255 motion was pending, Barber filed a Motion for Prior Custody Credit, seeking 71-75 days of credit for time served in custody before he was sentenced in this case. (ECF No. 266.) The district court denied the motion and Barber appealed. (ECF Nos. 270, 272, 276). Resolution of that appeal will have no bearing upon the instant motion.
A tax preparer who wants to electronically file tax returns for clients must obtain an Electronic Filing Identification Number ("EFIN") from the IRS. Barber's application for an EFIN for his tax preparation business, Kenneth Barber & Associates ("KBA") was denied in September of 2005.Two weeks later Barber's daughter applied and was approved for an EFIN for her tax preparation business, KLB Group Developers, Inc. ("KLB Group"). Barber's daughter contracted out KLB Group's business to Barber, and all of the fraudulent tax returns submitted by Barber's business were filed using KLB Group's assigned EFIN.
Barber operated both KLB Group and KBA, hired multiple employees to work in his office as tax return preparers, including co-defendants Shavita Davis, Anthony Barber and others, all of whom testified against him at trial.
During Davis' employment with Barber, Barber taught her many ways to fraudulently increase the amount of clients' refunds. He also asked Davis to train other employees how to prepare false returns. Clients whose returns contained false information were charged higher fees, and if they questioned the fees, Barber told Davis to tell them not to complain because they didn't make money anyway.
Anthony Barber estimated that during the three years he worked for Barber, of the 500 to 1000 tax returns prepared on a yearly basis, about 90 percent of them were false. He testified that Barber had told him to have Davis teach him "how to hustle," which was the practice of selling a false dependent listed on the tax form to increase the refund. Once Anthony Barber was proficient in preparing tax forms, Barber asked him to train other employees how to prepare false returns.
In 2007 IRS agent Timothy Evans conducted a scheduled compliance check on KLB and KBA. He reviewed 100 files and noticed a high number of returns listing HSH income, which is derived from working in someone's home and is not very commonly reported. Barber told Evans that self-employment income should be reported as Schedule C income. Reporting HSH income instead of Schedule C income generates a much higher refund. Evans noticed multiple irregularities in the business and ultimately his business was fined.
After this, Barber instructed Davis and Anthony Barber to stop using false HSH income and instead use false Schedule C income and expenses.
In January of 2009, Evans conducted an unannounced compliance check on KLB and KBA and again met with Barber. During this visit, Evans did not see any suspicious HSH income but noticed that many returns listed unsupported Schedule C income. Following this visit, Evans referred Barber to the IRS's criminal investigations unit.
On November 13, 2009, agents executed a search warrant at one of Barber's offices and seized 55 boxes of client files and business records as well as Barber's individual and corporate tax returns. Shortly thereafter, Barber arranged for another individual to take over his tax preparation business. After the execution of the lease, Barber continued to maintain an office nearby, interact with clients and participate in the preparation of fraudulent returns.
During the criminal investigation, the IRS reviewed copies of Barber's own tax returns and learned that he had submitted his individual and corporate tax returns to apply for business loans. The IRS discovered that the tax returns Barber had submitted to apply for the loans did not match the tax returns filed with the IRS. The IRS did not know which of the two versions, if either, was a correct reflection of his income during the years in question.
"Section 2255 does not provide a remedy for every alleged error in conviction and sentencing." Spencer v. United States, 773 F. 3d 1132, 1138 (11th Cir. 2014). Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could...
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