United States v. Fabian

Decision Date14 July 2011
Docket NumberCivil No. CCB–09–2810.Crim. No. CCB–07–0355.
Citation798 F.Supp.2d 647,108 A.F.T.R.2d 2011
PartiesUNITED STATES of America v. Alan Brian FABIAN.
CourtU.S. District Court — District of Massachusetts


Alan Brian Fabian, Lewisburg, PA, pro se.


CATHERINE C. BLAKE, District Judge.

On May 16, 2008, Alan B. Fabian pled guilty to mail fraud in violation of 18 U.S.C. § 1341 and making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1). He now has moved under 28 U.S.C. § 2255 to vacate his conviction and sentence. For the following reasons, his motion will be denied, no hearing being necessary.

                ¦TABLE OF CONTENTS  ¦
                BACKGROUND                                                              655
A.  Facts                                                               655
                B.  Indictment, plea agreement and guilty plea                          661
                C.  Sentencing                                                          663
                D.  Restitution                                                         665
                E.  Forfeiture                                                          666
                F.  Motion under 18 U.S.C. § 2255                                       669
ANALYSIS                                                                669
A.  Effect of Fabian's guilty plea                                      669
                B.  Ineffective assistance claims bearing on the voluntariness of the   670
                    guilty plea
    1.  Failing to investigate, interview witnesses and engage experts  671
                        Advising that Fabian agree to the statement of facts and plead
                    2.  guilty                                                          672
                        Failing to advise Fabian about the purported violation of the
                    3.  Speedy Trial Act                                                672
                    4.  Failing to investigate whether a check was “mailed”             673
    5.  Failing to discover the alleged constructive amendment          674
                    6.  Failing to inform Fabian about the forfeiture money judgment    676
                    7.  Conclusion                                                      677
C.  Post-plea ineffective assistance claims                             677
    1.  Sentencing                                                      677
                    2.  Failing to appeal                                               678
D.  Post-plea non-ineffectiveness claims                                680
    1.  Breach of plea agreement                                        680
                    2.  Prosecutorial misconduct                                        681
                    3.  Judicial misconduct                                             683
                    4.  Restitution order                                               683
                    5.  Forfeiture order                                                685
E.  Claims of “actual innocence”                                        686
CERTIFICATE OF APPEALABILITY                                            687
                CONCLUSION                                                              688
A. Facts

The following facts are taken from the statement of facts attached to the plea agreement that Fabian signed on May 13, 2008 and that Judge Bennett accepted as part of Fabian's valid guilty plea on May 18, 2008.

Offense Conduct
Count 9—Mail Fraud

In approximately 1998, Alan Fabian and a business partner created a limited liability company called Strategic Partners International LLC (“SPI LLC”). Fabian was the Managing Partner of SPI LLC. SPI LLC specialized in IT and activity-based costing consulting services. In July 2000, Fabian and his partner sold their ownership interests in SPI LLC to MAXIMUS, Inc. (“MAXIMUS”), a publicly traded government consulting company. SPI LLC became a wholly-owned subsidiary of MAXIMUS, a status it retained until September 2001. In September 2001, MAXIMUS merged SPI LLC out of existence. Fabian signed the Articles of Merger on behalf of SPI LLC, which explicitly stated that SPI LLC ceased to exist. On March 14, 2002, Fabian incorporated a new company called Strategic Partners International Incorporated (“SPI Inc.”). He did not inform MAXIMUS that he had incorporated SPI Inc. and MAXIMUS had no ownership interest in SPI Inc. Rather, Fabian was the 100 percent owner of SPI Inc.

Beginning in approximately March 2001, Fabian caused SPI LLC and later SPI, Inc. (collectively referred to as “SPI”) to enter into a series of sale-leaseback transactions of computer equipment and software with a leasing broker, Solarcom, Inc. (“Solarcom”). Fabian specified the equipment and software that was to be the subject of each sale-leaseback transaction. Solarcom in turn located third-party funding sources for the transactions. Solarcom then purchased the specified computer equipment and software from SPI using funds made available by the funding sources and leased the equipment and software back to SPI. SPI paid three months' rent (plus tax) to Solarcom and then owed the remaining monthly payments to the funding sources. Solarcom mailed a check to SPI to purchase the equipment specified under each particular lease. The funding sources to which Solarcom directed the SPI sale-leaseback transactions between 2001 and 2004 included the following financial institutions: Deutsche Financial Services Corporation (“Deutsche”), DeLage Landen Financial Services Inc. (“DLL”), Fleet Business Credit LLC (“Fleet”), and Key Equipment Finance (“Key”).

Between approximately March 2001 and June 2004, SPI obtained approximately $32,000,000 in funds from Solarcom after Deutsche, DLL, Fleet, and Key funded the sale-leaseback transactions. All $32,000,000 was deposited into SPI bank accounts over which Fabian had sole signatory authority. Between March 2001 and June 2004, Fabian caused SPI to pay approximately $3,300,000 to Solarcom and approximately $12,900,000 to the funding sources in rent payments.

In connection with the above-described sale-leaseback transactions, Fabian provided Solarcom with equipment itemization spreadsheets describing the equipment to be sold and executed various documents prepared by Solarcom. Beginning in 2003, in response to requests from Solarcom, Fabian also provided Solarcom with invoices and wire transfer advices of debit, which Solarcom transmitted to the funding sources. These documents contained material misrepresentations that Fabian made with knowledge of their falsity. With respect to most of the transactions that took place between March 2001 and the Fall of 2003, SPI did not purchase the Dell servers, laptops, and other items of hardware that it purported to sell to, and lease back from, Solarcom. One example is a sale-leaseback transaction that Fabian caused SPI Inc. to enter into on or about April 17, 2003. In that transaction, Fabian provided Solarcom with an equipment itemization form which stated that SPI had purchased 15 Dell Latitude D800 laptops at a per unit price of $4999 and four Dell Poweredge 8450 servers at a per unit price of $19,999, for a total cost of $154,981. In fact, as Fabian well knew, SPI had purchased none of the listed Dell equipment that it purported to sell to, and lease back from, Solarcom in connection with that transaction. Based on Fabian's misrepresentations, Solarcom paid SPI $154,981 for this computer hardware that SPI had not purchased.

Beginning in the Fall of 2003, Fabian caused SPI to purchase certain computer hardware from Dell, but provided fraudulent Dell quotes and invoices to Solarcom to make it appear that the items SPI had purchased were different, substantially more expensive pieces of hardware. Fabian also created fraudulent wire transfer records which reflected wire transfers from Fabian's SPI accounts to Dell that never happened. When a representative of DLL inquired of Solarcom whether the wire confirmations that Fabian presented were reflections of actual transactions, Fabian falsely stated in an email to representatives of Solarcom and DLL that they were screen-prints from his computer captured right after the wires were executed. Recovered from Fabian's laptop that contained SPI's electronic records was a template that Fabian used to create the false Dell documentation. A template used to create fraudulent wire transfer records was also recovered from Fabian's laptop.

Between approximately June 2001 and early 2003, SPI purported to sell to, and then lease back from Solarcom, software marketed by ABC Technologies (“ABC”) and SAS Institute (“SAS”). SPI never made any purchases of software from ABC or SAS. Instead, SPI purported to sell, and then lease back, licenses of software that MAXIMUS had been provided for free to use in its consulting engagements as part of a marketing agreement. In reality, these software licenses were not transferrable and could not be used by anyone other than MAXIMUS consultants.

From 2003 through 2004, SPI purported to purchase software, in arms length transactions, from Special Properties, Inc. (“Special Properties”) and SMART Software USA (“SMART Software”). Fabian controlled both of these entities. Fabian misrepresented to Solarcom and the funding sources that Special Properties and SMART Software were controlled by other persons and that he had made legitimate software purchases from those entities. Although Fabian transferred money from SPI's bank accounts to bank accounts in these entities' names, which he controlled, SPI did not purchase software from either of these companies.

When asked by Solarcom about Special Properties, Fabian told Solarcom that it was controlled by another person. When asked for invoices and wire receipts to confirm software purchases from this company, Fabian provided Solarcom with false invoices and false wire receipts, which he created and then falsely claimed were provided to him by Special Properties. At that time, Fabian knew that he had incorporated a company called Special Properties, that he had opened a bank account in the name of...

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