United States v. Mogler
| Decision Date | 20 September 2021 |
| Docket Number | CV-20-00173-PHX-SPL (DMF),CR-15-01118-PHX-SPL |
| Parties | United States of America, Plaintiff/Respondent, v. Jason Todd Mogler, Defendant/Movant. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Jason Todd Mogler (“Movant” or “Mogler”) is an inmate detained at the Sheridan, Oregon Federal Correctional Institution. (Doc. 16 at 1)[1] On December 31 2019, Movant filed a pro per a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1)[2] The Court denied the motion with leave to amend. (Doc. 13) Movant filed his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Amended Motion”) on May 19, 2020. (Doc. 16 at 10, Doc. 18) Respondent filed its response on November 13, 2020 (Doc. 46), after which Movant filed a reply on March 1, 2021 (Doc. 61).
This matter is on referral to undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 24 at 11) For the reasons set forth below, it is recommended that the Amended Motion be denied without conducting an evidentiary hearing.
On September 8, 2015, Movant was indicted along with co-defendants Hinkeldey, Polanchek, Stevens, and Torres: in Count 1 for conspiracy to commit mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation 18 U.S.C. § 1343, aggravated identity theft in violation of 18 U.S.C. § 1028A, and transactional money laundering in violation of 18 U.S.C. § 1957 (CR Doc. 3 at 21-25); in Counts 2 through 18 for mail fraud in violation of 18 U.S.C. § 1341 (Id. at 25-27); in Counts 19 through 57 for wire fraud in violation of 18 U.S.C. § 1343 (Id. at 27-30); in Counts 58 through 64 for aggravated identity theft in violation of 18 U.S.C. § 1028A (Id. at 30-31); and in Counts 65 through 84 for transactional money laundering in violation of 18 U.S.C. § 1957 (Id. at 31-33). The indictment alleged that the five co-defendants would be jointly and severally liable for losses by 226 investor-victims totaling $18, 185, 199.00 in U.S. currency. (Id. at 9, 34)
The indictment alleged that Movant and the co-defendants defrauded the investor-victims out of more than $18 million “by promoting and selling fraudulent high-yield investments, primarily involving: (1) real estate development in Sonora, Mexico; (2) waste management and recycling companies in Nevada and Illinois; and (3) distressed residential real estate in Arizona.” (Id. at 2) The indictment charged that Movant “orchestrated all three types of fraudulent investment opportunities, acting through numerous entities, either alone or with others.” (Id.) As charged in the indictment, Movant and the co-defendants made “materially false statements and omissions to obtain investment funds . . . in private placement memorandums, marketing materials, contracts, and other documents” and in turn “used the investment funds for purposes other than what was promised to investor-victims, such as for personal living expenses or other business ventures, and in some instances used funds received from later investor-victims to make payments to earlier investor-victims.” (Id.)
Movant and Respondent entered into a plea agreement on December 2, 2015. (CR Doc. 437) Movant agreed to plead guilty to conspiracy in Count 1, to Count 33 for wire fraud, and to Count 84 for money laundering. (Id. at 1) The agreement set forth the maximum penalties required for each of these three counts. (Id. at 1-2) The parties stipulated that the amount of loss for sentencing purposes was $18, 177, 199 and Movant specifically agreed “to pay full restitution, totaling at least $18, 177, 199 to all victims directly or proximately harmed by [Movant]'s ‘relevant conduct,' including conduct pertaining to any dismissed counts or uncharged conduct . . . regardless of whether such conduct constitutes an ‘offense' under 18 U.S.C. § 2259, 3663, or 3663A.” (Id. at 3) The agreement terms included that Movant understood “that such restitution [would] be included in the Court's Order of Judgment and [would] not serve as grounds to withdraw [Movant]'s guilty plea or withdraw from this plea agreement.” (Id.) The agreement required that if Movant made “full and complete disclosure” to the Probation Office regarding the “circumstances surrounding [Movant's] commission of the offense up to and including the time of sentencing” and demonstrated acceptance of responsibility for the offense, Respondent would “recommend a two-level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. §3E1.1(a).” (Id. at 3-4) Additionally, the agreement provided that if Movant had “an offense level of 16 or more, [Respondent would] recommend an additional one-level reduction in the applicable Sentencing Guidelines offense level pursuant to U.S.S.G. § 3E1.1(b).” (Id. at 4)
The plea agreement stated that Movant would cooperate fully and truthfully and that at the request of Respondent, Movant would ask that he not be sentenced until his cooperation was completed. (Id. at 5) The agreement further instructed that prior to Movant's sentencing, Respondent would “consider moving the Court to depart downward from the Sentencing Guidelines, and if applicable impose a sentence below the level established by law as the minimum sentence, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).” (Id. at 5) The agreement provided for the waiver of defenses and appeal rights, as follows:
[Movant] waives (1) any and all motions, defenses, probable cause determinations, and objections that [Movant] could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against [Movant], or any aspect of [Movant's] sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under 18 U.S.C. § 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion [Movant] might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct' (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).
(Id. at 7)
Movant averred he had read the entire agreement with assistance of counsel Michael Kimerer, understood all the agreement provisions, and voluntarily agreed to it. (Id. at 17) Movant additionally declared that “promises, including any predictions as to the Sentencing Guideline factors that will apply, made by anyone (including my attorney) that are not contained within this written plea agreement, are null and void and have no force and effect.” (Id. at 18)
The Court held a change of plea hearing on December 9, 2015. (CR Doc. 254, RT 12/09/2015) Upon questioning by the Court, Movant testified he understood the entire plea agreement and averred that no one had forced, threatened, or coerced him to enter into the agreement. (Id. at 6) Movant told the Court he was guilty of the crimes of conspiracy in Count 1, wire fraud in Count 33, and money laundering in Count 84, and that he wished to plead guilty to these crimes because he was in fact guilty of the crimes. Id. Movant assured the Court that he understood that the maximum terms of imprisonment for the counts charging conspiracy, wire fraud, and money laundering were five years, twenty years, and ten years, respectively. (Id. at 6-7) Movant further declared he understood the parties' stipulation that the loss amount for sentencing guideline purposes was $18, 177, 199, and that under the agreement he agreed to pay full restitution of at least that amount. (Id. at 8-9) The Court advised Movant that if Movant accepted the plea agreement, he would not be able to challenge his judgment or sentence on direct appeal or in a collateral review action except on grounds of ineffective assistance by Movant's counsel or prosecutorial misconduct by Government counsel. (Id. at 13) The plea agreement was lodged with the Court on December 9, 2015 (CR Doc. 113) and subsequently filed on December 18, 2017 (CR Doc. 437).
In August 2017, represented by new counsel Ashley Adams, Movant filed under seal a motion to withdraw from his plea agreement. (CR Doc. 303 (Sealed)) Movant alleged that his prior counsel Mr. Kimerer coerced him into entering the plea agreement. (Id. at 3) Movant further declared that he had lied or exaggerated to the Court regarding parts of the factual basis for his charges and that he “was not thinking clearly” on the day he entered into the plea agreement. (Id.) Movant further stated that he lied when he told the Court he had not been treated for any mental disorder and that at the time of his plea agreement he had been counseled by a psychotherapist and had been prescribed anti-anxiety medication by his family care provider. (Id. at 3-4) Movant also indicated he was diagnosed with bipolar disorder after he entered into the plea agreement. (Id. at 4) Movant stated he was not claiming he lacked mental competency when he entered into his plea...
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