United States v. Svete, Case No.: 3:04cr10/MCR

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
• Writing for the Court: M. CASEY RODGERS
• Decision Date: 11 March 2014
• Parties: UNITED STATES OF AMERICA v. DAVID W. SVETE
• Docket Number: Case No.: 3:11cv152/MCR/EMT,Case No.: 3:04cr10/MCR

UNITED STATES OF AMERICA
v.
DAVID W. SVETE

Case No.: 3:04cr10/MCR
Case No.: 3:11cv152/MCR/EMT

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Dated: March 11, 2014

ORDER

This matter is before the court upon Defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum of law (docs. 1003, 1026), as well as the Government's response thereto (doc. 1040). After a careful review of the record and the arguments presented, this Court concludes that Defendant has not raised any issue requiring an evidentiary hearing, see Rules Governing Section 2255 Cases 8(a) and (b), or asserted any claim that entitles him to relief. Thus, his motion must be, and is, denied.

History of the Case/Procedural Background

Defendant and seven others were charged in a superseding indictment with ten violations of federal law (doc. 277). In Count One Defendant was charged in a conspiracy involving three objectives: (1) to obtain money from investors by misrepresenting the true nature of the investment; (2) to divert the funds obtained from investors for the personal use of Defendant and others; and (3) to conceal or misidentify the origins of the diverted funds (id. at 9). Count Two charged Defendant and others with conspiring to transfer in interstate commerce the fraudulently obtained funds in a manner so as to conceal and disguise the nature, location, source, ownership, and control of said funds (id. at 24). Counts Three through Seven charged Defendant and others with substantive violations of

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mail fraud or aiding and abetting others in the commission of mail fraud (id. at 25-26), and Counts Eight through Ten charged Defendant and others with substantive violations of the interstate transportation of funds obtained by fraud or aiding and abetting others in that regard (id. at 27). Defendant was convicted on all charges after an eight week jury trial in 2005 (see doc. 430).¹

A Pre-sentence Investigation ("PSR") report was prepared prior to sentencing. Defendant had a base offense level of 6, which was increased by 18 levels due to the amount of loss (PSR ¶¶ 89, 90). The probation officer recommended additional two-level adjustments due to the fact that more than minimal planning and multiple victims were involved, the offense was committed through mass-marketing, the offense involved sophisticated means, and the offense was perpetrated against vulnerable victims (PSR ¶¶ 91-94). Defendant also received a four-level upward adjustment due to his leadership role in the offense and a two-level upward adjustment for obstruction of justice (PSR ¶¶ 95-96). His total offense level therefore was 38. Defendant had no previous criminal history, and thus his Criminal History Category was I. Pursuant to these calculations, the applicable advisory guidelines range was 235 to 293 months (PSR ¶ 136).

Defendant objected generally to the facts set forth in the PSR, and he also objected to the obstruction of justice adjustment, the loss calculation (which counsel contended should have been zero), the adjustment for mass marketing and sophisticated means, the victim-related adjustment, and the role adjustment (PSR addendum ¶¶ 157-169). In light of these objections, counsel asserted that Defendant's total offense level should have been calculated at 8 rather than 38, yielding an advisory guidelines range of 0 to 6 months (see PSR addendum ¶ 171).

At sentencing, the Court heard argument from the parties and the testimony of Henry Moran, a court appointed receiver, on the issue of loss (doc. 688 at 16-73). Defendant's counsel argued briefly each of his remaining objections, and then argued that

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a departure was warranted under 18 U.S.C. § 3553 due to the particular facts and circumstances of this case (id. at 74-101). The Court heard testimony from Defendant's sister and brief remarks from Defendant (id. at 102-05), as well as numerous statements about the impact the offense conduct had on specific victims (id. at 121-36). Mr. Moran and D. Benham Kirk took the stand to respond to some of the Court's questions about restitution (id. at 137-51). The Court initially indicated its intent to award restitution in the amount of $130 million, although it ultimately reserved ruling on the issue of restitution pending receipt of additional information from Mr. Moran (id. at 153-55). With respect to the objections, the Court rejected counsel's argument that the loss amount was zero (id. at 157-60).² It also overruled the objections to application of the adjustments for obstruction, Defendant's role in the offense, the vulnerable victims, sophisticated means, and more than minimal planning (id. at 160-62). The Court sustained a defense objection to the two-level adjustment for mass marketing (id. at 162). The amended total offense level was 36, and the revised guidelines range was 188 to 235 months. Despite the arguments of counsel to the contrary, the Court found that this range was sufficient, but not greater than necessary, to accomplish the goals set forth in 18 U.S.C. § 3553(a) (id. at 166-68). The Court then sentenced Defendant to a term of 60-months imprisonment on Count One, 200-months imprisonment on Counts Two through Seven, and 120-months imprisonment on Counts Eight through Ten, with all counts to run concurrently (id. at 169). The Court advised that although the victim's losses were not ascertainable at the time, they would be within 90 days, and the Court would determine the victims' losses and the restitution award within 90 days and enter the award by separate order (id. at 170-71).

Judgment was entered on June 23, 2005, reflecting a total sentence of a term of 200-months imprisonment in the Bureau of Prisons ("BOP"), three years of supervised release, and a $1,000 special monetary assessment (docs. 544 & 558). An amended judgment was entered on August 11, 2005, in which the same custodial sentence was

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imposed and Defendant was directed to pay restitution in the amount of $100,722,605.34 and to forfeit $21,000,000.00 in United States currency (doc. 593).

Defendant appealed, raising numerous grounds for relief. He first challenged the sufficiency of the evidence as to the substantive mail fraud convictions. The Eleventh Circuit found that Defendant's testimony along with other corroborative evidence was sufficient to support his convictions. United States v. Svete, 521 F.3d 1302, 1310 (11th Cir. 2008)³ (citing United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) for the proposition that the jury was entitled to believe the opposite of Defendant's testimony). Defendant also claimed that the Court abused its discretion when it gave the pattern mail fraud charge to the jury. Under United States v. Brown, 79 F.3d 1550, 1557 (11th Cir. 1996), mail fraud requires the Government to prove that a defendant intended to create a scheme "reasonably calculated to deceive persons of ordinary prudence and comprehension." Svete, 521 F.3d at 1310 (quoting Brown 79 F.3d at 1557). This language is not reflected in the pattern jury instruction for mail fraud. The Eleventh Circuit found that the Court's decision to give the pattern jury instruction—and not include the additional language from Brown—was an abuse of discretion, and it held that Defendant (and co-defendant Girardot) were entitled to a new trial on the substantive mail fraud counts. Svete, 521 F.3d at 1311. It also specifically found that the "incomplete" jury instruction did not affect Defendant's ability to conduct his defense with respect to the other charges. Id.

The Eleventh Circuit next rejected Defendant's assertion that reversal was warranted due to the Court's denial of his pre-sentencing motion for a new trial based on alleged Brady and Giglio violations. The violations in question were brought to light due to inconsistencies between the trial and sentencing testimony of Government witness Charme Austin. Austin had been charged with conspiracy as a result of her involvement with Defendants Svete and Girardot. She pleaded guilty to conspiracy in August of 2004,

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testified at Defendant's trial on January 18 and 19, 2005, and was sentenced on May 6, 2005. One week after her sentencing, the Government filed a notice disclosing inconsistencies between her testimony at Defendant's trial and at her own sentencing relating to her past criminal history and psychological treatment. The Eleventh Circuit noted both that much of her testimony was beneficial to the defense (such that further impeachment might not be in the defense's favor) and that her testimony was "riddled with successful impeachment," and found that the Government's failure to disclose Austin's time in a military stockade did not rise to the level of requiring a new trial under Brady or Giglio. Svete, 521 F.3d at 1312-17. Finally, the appellate court rejected Defendant's challenges to the loss calculation and amount of restitution awarded. Id. at 1317-18.

The Government's motion for rehearing en banc was granted. Upon rehearing, the Eleventh Circuit reversed the panel's initial decision, holding that this Court did not err when it delivered the pattern jury instruction on mail fraud and expressly overruling United States v. Brown, 79 F.3d 1550 (11th Cir. 1996). See United States v. Svete, 556 F.3d 1157, 1160, 1169 (11th Cir. 2009) (en banc). The Eleventh Circuit declined to address other issues that it indicated were...