United States v. Tresch
| Decision Date | 22 September 2016 |
| Docket Number | No. 15 CV 9779,12 CR 658,15 CV 9779 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Respondent, v. DAVID TRESCH, Defendant-Movant. |
| Court | U.S. District Court — Northern District of Illinois |
ORDER
David Tresch filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.1 He alleges that his defense counsel provided ineffective assistance of counsel, and that the government engaged in misconduct that forced him to plead guilty. For the reasons that follow, Tresch's motion is denied and no certificate of appealability will issue.
Between 2004 and 2012, Tresch worked for the Mayer Brown law firm in Chicago, Illinois. See Plea Agreement at 3, 12, No. 1:12-CR-00658 (Apr. 22, 2013), ECF No. 69 (hereinafter "Plea Agreement").2 Tresch started as an operations manager in the information technology (IT) department and eventually became the firm's Chief Information Officer. Id. at 3, 11. Throughout his tenure at the law firm, Tresch participated in a kickback scheme in which he steered business to an outsideIT company, netting over $4 million dollars to the company in profits and to Tresch in kickbacks. Id. at 2-12.
Here's how the scheme worked: On Tresch's recommendation, Mayer Brown contracted with NS Mater, an IT firm, in Fall 2004. Plea Agreement at 3-4. Around this time, Tresch entered into a corrupt agreement with Nicholas Demars, the president of NS Mater: in exchange for a kickback for the Mayer Brown work that NS Mater performed, Tresch agreed to continue steering Mayer Brown's IT work to NS Mater. Id. at 4-8. This kickback scheme continued for six years, until Mayer Brown stopped using NS Mater's services in late 2010. Id. at 9. At this point, Tresch and Demars tweaked their scheme: in exchange for a kickback, Tresch helped Demars submit false invoices to Mayer Brown for work that NS Mater never performed. Id. at 9-12. After discovering the scheme in June 2012, the firm fired Tresch. Id. at 12.
In August 2012, the government filed a criminal complaint against Tresch. Compl., No. 1:12-CR-00658 (Aug. 29, 2012), ECF No. 1 (hereinafter "Compl."). Initially, Tresch was appointed a lawyer, 08/30/12 Minute Entry, No. 1:12-CR-00658 (Aug. 30, 2012), ECF No. 6, and waived his right to a preliminary examination, 09/05/12 Minute Entry, No. 1:12-CR-00658 (Sept. 5, 2012), ECF No. 11. By the end of October, Tresch retained Jeff Steinback as his lawyer. 11/02/12 Minute Entry, No. 1:12-CR-00658 (Nov. 2, 2012), ECF No. 23. After a series of proffer sessions with the government, Tresch appeared before a grand jury. To meet the requirements under the Speedy Trial Act, the government filed, and was granted,five unopposed motions for an extension of time to seek an indictment between September 2012 and January 2013. No. 1:12-CR-00658, ECF Nos. 13, 18, 19, 22, 24, 27, 28, 31, 32, 35.
In January 2013, the grand jury returned an indictment charging Tresch with ten counts of mail fraud. Indictment, No. 1:12-CR-00658 (Jan. 10, 2013), ECF No. 37. Tresch pled guilty four months later to one count of mail fraud under 18 U.S.C. §§ 1341, 1346. Plea Agreement at 2. At the change-of-plea colloquy, Tresch confirmed that he was satisfied with his attorney, Mr. Steinback, Rule 11 Colloquy Tr. at 7:25-8:4, No. 1:12-CR-00658 (July 29, 2013), ECF No. 142 (hereinafter "Rule 11 Colloquy Tr."); that he read and understood the terms of the plea agreement, id. at 10:1-6; that his plea was voluntary, id. at 10:16-21; that he would pay restitution and forfeit assets according to the terms of the plea agreement, id. at 11:20-12:5; and that the plea agreement summarized the factual basis for his guilty plea, id. at 24:20-24. Tresch also agreed to waive his appellate and collateral rights as part of the plea deal. Plea Agreement at 25-26.
After a series of delays brought about by both Tresch and his counsel, the Court sentenced Tresch on October 28, 2014. 10/28/14 Minute Entry, No. 1:12-CR-00658 (Oct. 28, 2014), ECF No. 143. At the sentencing hearing, Tresch reaffirmed that Mr. Steinback had provided adequate representation throughout the entire criminal proceeding. Sentencing Hr'g Tr. at 3:7-10, No. 1:12-CR-00658 (Dec. 2, 2014), ECF No. 151 (hereinafter "Sentencing Hr'g Tr."). Tresch also admitted that he committed the crimes. Id. at 53:11-55:25.
A lot of the sentencing hearing revolved around whether Tresch was entitled to a three-level reduction for acceptance of responsibility. Although Tresch had cooperated with the government and acknowledged his guilt, he also wrote an e-book just before his sentencing; despite the fact that he engaged in a long-running kickback scheme, the book suggested that Mayer Brown fired him for whistleblowing. Sentencing Hr'g Tr. at 16:13-22:12. The Court ultimately granted Tresch the three-level reduction, which yielded a guideline sentencing range of 57 to 71 months of imprisonment. Id. at 24:21-23. After hearing § 3553 arguments from both the government and attorney Steinback, as well as a personal statement from Tresch himself, the Court sentenced Tresch to 27 months' imprisonment, imposed a restitution amount of $1,112,000 payable to Mayer Brown, and entered the parties' agreed-to forfeiture order. Id. at 61:13-63:3.
Tresch now moves for the Court to vacate his sentence. R. 13, Am. § 2255 Mot. He asserts two main claims in support of his petition: (1) ineffective assistance of counsel based on his attorney's failure to investigate the kickback scheme; failure to adequately communicate; waiver of Tresch's speedy trial rights; failure to request a special prosecutor; failure to advise on the consequences of entering a guilty plea; failure to object to the government's asset forfeiture calculations; and failure to present an adequate defense at sentencing; and (2) government misconduct.3 Am. § 2255 Mot.; see also R. 24, Tresch's Reply Br.; R. 34, Tresh's Sur-Reply Br. Thegovernment has asked this Court to deny Tresch's motion. R. 17, Government's Resp. Br.; see also R. 36, Government's Sur-Reply Br.
Under 28 U.S.C. § 2255, a prisoner in custody pursuant to a federal court sentencing may move the sentencing court to vacate his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ... ." 28 U.S.C. § 2255. In other words, to obtain relief under § 2255, Tresch must show that the error asserted is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997).
Section 2255, however, "is not a substitute for a direct appeal." Barnickel, 113 F.3d at 706; see also Qualls v. United States, 774 F.2d 850, 851 (7th Cir. 1985) (citing United States v. Addonizio, 442 U.S. 178, 184 (1979)). Consequently, "[i]f any issue could have been raised on direct appeal, the failure to take such appeal precludes review pursuant to a § 2255 motion unless the petitioner can show 'cause' for the procedural default and 'actual prejudice' resulting from the errors of which the petitioner complains." Qualls, 774 F.2d at 851 (quoting United States v. Frady, 456 U.S. 152, 167 (1982)); see also Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1988). The "cause and prejudice" escape hatch, however, only applies toconstitutional claims, not non-constitutional claims. Bontkowski, 850 F.2d at 313. In contrast, ineffective-assistance claims are not procedurally defaulted at all for failure to raise them on direct appeal. See Massaro v. United States, 538 U.S. 500, 503 (2003) ().
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. To receive habeas relief on the merits of his ineffective-assistance-of-counsel claim, Tresch must meet the familiar two-element, performance-and-prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, he must show that his counsel's performance was deficient and that prejudice resulted. Id. at 687. On performance, the question is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688. On prejudice, the question is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the context of guilty pleas, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process"; that is, "but for counsel's errors, [Tresch] would not have [pled] guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Tresch must show both unreasonable performance and resulting prejudice to win habeas relief. Strickland, 466 U.S. at 687.
Judicial review of counsel's performance "must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. The Court must presume that "the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted).
Tresch alleges that his counsel made seven mistakes: (1) failure to investigate the kickback scheme; (2) failure to adequately communicate; (3) waiver of Tresch's speedy trial rights; (4) failure to request a special prosecutor; (5) failure to advise Tresch of the...
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