United States v. Whoolery
| Decision Date | 15 July 2016 |
| Docket Number | Civil No. 15-1168,Criminal No. 10-144-02 |
| Parties | UNITED STATES OF AMERICA, v. LEWIS WHOOLERY |
| Court | U.S. District Court — Western District of Pennsylvania |
Petitioner Lewis Whoolery ("Whoolery") filed a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (the "§ 2255 motion") on September 8, 2015. (ECF No. 352.) In the three months following the filing of his § 2255 motion, Whoolery filed six motions seeking relief related to this motion, including two motions for summary judgment, two motions seeking entry of default judgment, and motions for expedited review, immediate release, appointment of counsel, and an evidentiary hearing. (ECF Nos. 357, 367, 370, 380, 381, 382.) The court ruled upon these motions, or deferred their consideration in several written opinions and orders (ECF Nos. 378, 385, 389), prompting Whoolery to file two motions for reconsideration, which are pending (ECF Nos. 390-91). For the reasons set forth in this opinion, the § 2255 motion will be denied in all respects because all claims raised by Whoolery lack merit. A hearing is not required on the motion because the motion and records of the case show conclusively that Whoolery is not entitled to relief. The two pending motions for reconsideration will likewise be denied.
On July 27, 2010, a federal grand jury returned a one-count indictment against Whoolery and his sister, Kimberly Baldwin ("Baldwin").1 (ECF No. 1.) Whoolery owned and operated First Capital Home Equity ("First Capital"), a mortgage brokerage firm, and Baldwin worked at the firm during the pertinent time period. The indictment charged Whoolery and Baldwin with one count of conspiracy to commit wire fraud from in and around January 2003 and continuing to in and around November 2006 in violation of 18 U.S.C. § 1349. (Id.) On October 25, 2011, a federal grand jury returned a one-count superseding indictment charging Whoolery and Jason Sheraw with the same crime. (ECF No. 46.) Baldwin and several other individuals were listed in the superseding indictment as unindicted coconspirators. (Id. at 1-2.) Many of the coconspirators listed in the indictments testified on behalf of the government at Whoolery's trial. (ECF Nos. 1, 46, 155 at 2.)
Both Baldwin and Sheraw pleaded guilty to the charged wire fraud conspiracy. (ECF Nos. 59, 143.) Whoolery persisted in his plea of not guilty and his case proceeded to trial. Baldwin testified on behalf of the government, as did thirty other witnesses, including nearly a dozen members of the conspiracy, other employees of First Capital, individual borrowers, and representatives from lenders for whom First Capital brokered loans. (ECF No. 155.) Hundreds of pieces of documentary evidence were offered into the record. (ECF No. 156-2.)
The government established at trial that Whoolery, through First Capital, directed a mortgage fraud scheme pursuant to which unlicensed individuals prepared real estate appraisals that purposefully inflated the fair market value of a property and included falsified information about the size or location of the property, the applicability of comparable properties, and the visual appearance of the property, among other things. Some of the unlicensed individuals who prepared fraudulent appraisals on behalf of First Capital were Kenneth Cowden ("Cowden") and Baldwin. United States v. Whoolery, 579 F. App'x 78, 80 (3d Cir. 2014) (Whoolery I). Whoolery paid licensed real estate appraisers for permission to use their licensure credentials, signatures, and insurance information to submit these fraudulent appraisals to lender banks. Some of the licensed appraisers who were paid in exchange for the use of their licenses were Jeanette Gray ("Gray") and Jason Sheraw ("Sheraw"). The scheme also included fabricating or altering income and asset statements to make First Capital's borrower customers appear more financially attractive to lender banks. Id. The scheme increased the chance that a loanwould be approved and funded by a lender bank so that First Capital could earn the fees associated with brokering the loan. Id. Whoolery received half of all fees earned by any individual who brokered loans at First Capital, and more than half if he brokered the loan himself. (ECF No. 207 at 57.)
On January 29, 2013, after an eight-day trial, a jury found Whoolery guilty of wire fraud conspiracy. (ECF No. 152.) On October 7, 2013, Whoolery was sentenced to a term of imprisonment of 120 months, to be followed by 3 years of supervised release. (ECF No. 282.) Whoolery was ordered to pay more than $1.7 million in restitution to various financial institutions including, for example, Bank of America, Deutsche Bank, and GE Money Bank, as well as to numerous individual borrowers. (Id.)
On October 21, 2013, Whoolery filed a timely notice of appeal to the Court of Appeals for the Third Circuit. (ECF No. 289.) Whoolery appealed on the ground that the government advanced an alternative theory of prosecution at trial that amounted to either a constructive amendment or a prejudicial variance of the indictment in violation of the Fifth Amendment. (ECF No. 332-1); Whoolery I, 579 F. App'x at 78-80. The appellate court rejected Whoolery's arguments and affirmed his conviction. Id.
Several months after the appellate court issued its mandate, Whoolery filed in this court a "Rule 33 motion based on newly discovered evidence," with a request for immediate release from custody. (ECF No. 334.) The court denied that motion, and the court of appeals affirmed that ruling. (ECF Nos. 338, 366-1); United States v. Whoolery, 625 F. App'x 24 (3d Cir. 2015) (Whoolery II). The court of appeals denied Whoolery's request that his case be assigned to a different district judge upon remand due to purported bias, noting that such a claim was "unsupported by the record and meritless." Whoolery II, 625 F. App'x at 27 & n.4.
On September 8, 2015, Whoolery timely filed a pro se § 2255 motion seeking relief based upon ineffective assistance of counsel and prosecutorial misconduct. (ECF No. 352.) Eight days later, and obviously before the government could respond to his § 2255 motion, Whoolery filed a motion for summary judgment, essentially seeking an expedited ruling on the first two grounds for relief raised in his § 2255 motion. (ECF Nos. 357-59.) In October and November 2015, the government responded to these pending motions, and Whoolery filed replies. (ECF Nos. 363-65, 368. 371-73.) During this time period, Whoolery also filed an emergency motion to appoint counsel and a motion for default judgment, to which the government responded. (ECF Nos. 367, 370, 374, 375.)
On December 2, 2015, this court denied the pending motions, with the exception of the § 2255 motion. (ECF Nos. 378-79.) With respect to the § 2255 motion, the court set a supplemental briefing schedule because Whoolery's brief in support of that motion had not been docketed by the clerk of court when it was sent to the court around September 8, 2015. (ECF Nos. 376, 377.) As a result, the more than 450-page brief was not accessible on the court's electronic case management system. Shortly before the court issued these orders on December 2, 2015, Whoolery mailed to the court a motion for immediate release from custody, a motion for expedited review, and a second motion for summary judgment. (ECF Nos. 380-84.) These motions were denied in an opinion and order dated December 8, 2015. (ECF Nos. 385-86.) Again, shortly before the court issued this order, Whoolery mailed to the court a request for entry of default, which this court denied by order dated December 11, 2015. (ECF Nos. 387-89.)
Whoolery next filed two motions for reconsideration; one objecting to the supplemental briefing schedule, ECF Nos. 377, 391, and one objecting to the order denying his motions for summary judgment, default judgment, and appointment of counsel, ECF Nos. 378-79, 390. Whoolery shortly thereafter filed a motion to amend or supplement his pending § 2255 motion. (ECF No. 397.) The court ordered briefing on the motion to amend. (ECF Nos. 395, 398.) Whoolery filed another motion to appoint counsel. (ECF No. 399.) The government opposed Whoolery's motions for reconsideration and to appoint counsel, but did not oppose his motion to amend. (ECF No. 400.) Because, however, the government already filed its supplemental response tothe § 2255 motion, ECF No. 394, the court allowed an additional period of time for the government to file a substantive response to the new matters raised in Whoolery's amendment, ECF Nos. 401. The government filed its response to the amended § 2255 motion, and Whoolery filed replies in connection with his motion to vacate and his motions for reconsideration. (ECF Nos. 402-03, 405-06.)
Less than two months after the briefing on Whoolery's motion to vacate was complete, and approximately three months after Whoolery sought permission from this court to amend his §2255 motion to add an additional claim for relief, Whoolery made another procedural maneuver in an attempt to obtain expedited review of his motion - this time mailing a petition for writ of mandamus to this court. This court forwarded the petition to the Court of Appeals for the Third Circuit, and the appellate court docketed the matter at No. 16-2502 on May 19, 2016.
In this opinion, the court rules upon Whoolery's § 2255 motion, ECF No. 352, the related requests for an evidentiary hearing and appointment of counsel, ECF Nos. 353, 404, and the two motions for reconsideration, ECF Nos. 390, 391. For the reasons that follow, all motions, and requests for relief, will be denied.
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground that "the sentence was imposed in violation of the...
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