US v. Busse, 92-C-1194

• Decision Date: 22 February 1993
• Docket Number: No. 92-C-1194,92-Cr-90.,92-C-1194
• Citation: 814 F. Supp. 760
• Parties: UNITED STATES of America, Plaintiff, v. James BUSSE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

814 F. Supp. 760

UNITED STATES of America, Plaintiff, v. James BUSSE, Defendant.

No. 92-C-1194, 92-Cr-90.

United States District Court, E.D. Wis.

February 22, 1993.

Susan M. Knepel, Asst. U.S. Atty., Milwaukee, WI, for plaintiff.

Wendy Patrickus, Gerald Boyle, Milwaukee, WI, for defendant.

DECISION AND ORDER

GOODSTEIN, United States Magistrate Judge.

Currently pending before the court is the motion of James Busse to vacate his sentence pursuant to 28 U.S.C. § 2255. Busse claims that his attorney was ineffective in representing him in his misdemeanor criminal case which was tried before this court. The court conducted an evidentiary hearing regarding Busse's ineffective assistance of counsel claim on January 20, 1993. Testifying at the hearing were Attorney Michael Trewin, who represented Busse throughout the criminal proceedings and the defendant, James Busse. Based upon the testimony at the hearing and the court record in this case, the court makes the following findings of fact:

Sometime in 1991, James Busse contacted Attorney Michael Trewin regarding the bankruptcy reorganization of Busse's farm. During, or before, June of 1991, the United States filed an adversary proceeding against Busse in the bankruptcy matter seeking to have certain farm loans declared non-dischargeable. Assistant United States Attorney Dan Flaherty represented the Commodity Credit Corporation in that matter. During the same period, the United States represented by Assistant United States Attorney Susan Knepel, was considering felony criminal charges against Busse under 15 U.S.C. § 714m(c), the conversion of property which is pledged to the Commodity Credit Corporation. On December 27, 1990, Knepel had sent a letter to James Busse indicating that the government had received information regarding a possible violation of § 714m(c) and wanted to speak with him, or his attorney about the matter.

Busse sent AUSA Knepel's letter to Attorney William Hickmann, and then on April 26, 1991, AUSA Knepel sent a followup letter to Hickmann. Attorney Hickmann responded on May 2, 1991, indicating that he was recommending that Busse retain new counsel. Busse then contacted Attorney Trewin, who was handling his bankruptcy matter, and it was agreed that Trewin would also handle the potential criminal matter.

Attorney Trewin, by letter dated July 31, 1991, advised AUSA Knepel that because of the timing of the government's interest in criminal violations, he believed the criminal action was an attempt to collect on an unsecured claim in the pending bankruptcy action. Attorney Trewin further advised AUSA Knepel that he was "predisposed to pursue this matter in the bankruptcy court setting." Trewin testified that it was his belief that the criminal matter could be subsumed within the bankruptcy matter, and the bankruptcy automatic stay provisions would be applicable. AUSA Knepel responded by advising Attorney Trewin that the criminal action was separate from the bankruptcy action and not in any way connected.

On September 27, 1991 AUSA Knepel sent a letter to Attorney Trewin together with a proposed plea agreement. Under the proposed plea agreement, Busse would agree to plead guilty to a one count misdemeanor information charging a violation of 15 U.S.C. § 715m(c). In exchange, the government would recommend a two level decrease for acceptance of responsibility and would not object to the defendant's request for a downward departure from the applicable sentencing guideline range. The plea agreement also provided for restitution in the amount of $27,890.30 to be payable under the terms and conditions set by the court. In her letter, AUSA Knepel advised Trewin that the sentencing guideline range should be a matter of great concern to his client and that the provision for a downward departure would permit him to ask the court for a term of probation where Busse may otherwise face a period of incarceration. Attorney Trewin testified that he discussed the possibility of the plea agreement with his client over the telephone. Trewin believes he requested that his secretary send a copy of the plea agreement to Busse, but his records do not indicate that a copy was ever sent. Busse testified that he never received a copy of the plea agreement.

Trewin testified that he has practiced law for six years, primarily in the area of bankruptcy. He has never engaged in any criminal defense work in state court, and this was his first federal criminal case. Attorney Trewin testified that his theory of defense was that the defendant had a lack of knowledge that his actions were illegal and consequently, there could be no finding of specific intent. Trewin stated that he had no familiarity with the sentencing guidelines; the first time he looked at the guidelines was on the day of sentencing. Trewin discussed the plea agreement with an associate in his office who had state criminal law experience, but no federal experience. Trewin concluded that Busse would likely face probation regardless of whether he entered in a plea agreement and potentially could face a lower amount of restitution or more favorable terms than those included in the plea agreement. Accordingly, Trewin advised Busse that probation would be the likely worst scenario.

Busse testified that he never received a copy of the plea agreement and he only discussed the plea agreement with counsel by telephone. He said that Trewin told him the agreement provided that he plead to a misdemeanor, and that he make restitution in the amount indicated. Busse testified that, at the time, he felt that some restitution was appropriate, but the amount requested by the government was too much. Busse's recollection of this conversation with Trewin was that probation was to be expected whether the matter was resolved by trial or by plea.

In retrospect, Busse testified that, knowing what he now knows, he would have accepted the plea agreement. Busse also testified that before going to trial, he knew he was "guilty" of feeding the pledged corn to his cows, but he did not fully understand or appreciate the illegality of his conduct until he read the presentence report.

On April 16, 1992, the government filed a two count information, and on May 5, 1992, it filed a superseding information. On June 29, 1992, the defendant proceeded to trial, and the jury returned a verdict of guilty on count one and not guilty on count two. The defendant filed a motion for judgment of acquittal or, for new trial, which was denied. On September 10, 1992, the defendant appeared for sentencing and was sentenced within the guidelines to a period of five months imprisonment, to be followed by five months home detention, plus restitution of $15,609.61. The defendant then filed a notice of appeal, and this motion under § 2255. Prior to filing the § 2255 motion, the defendant retained substitute counsel.

Finally, the court finds that Attorney Trewin provided the defendant with effective assistance of counsel during the jury trial and at the sentencing hearing. Despite his prior lack of knowledge of the sentencing guidelines, Trewin made some very persuasive, although unsuccessful, arguments regarding restitution, acceptance of responsibility and downward departure.

Discussion

At the outset, it should be noted that the defendant has filed a notice of appeal with the Seventh Circuit. The fact of a pending appeal, however, does not prevent this court from exercising jurisdiction over the defendant's § 2255 motion. The Seventh Circuit recently observed that ineffective assistance of counsel claims are best brought through a motion for new trial or under § 2255. See, United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992). Since the defendant did not raise the issue of ineffective assistance of counsel in his motion for new trial, this claim might not be considered on direct appeal, if raised, although the appellate court has indicated that such a claim could be addressed if the record is sufficiently developed. Id. In any event, this court finds that it has jurisdiction to entertain the defendant's present § 2255 motion based on his claim of ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, the defendant must meet a two pronged test which was established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and requires that "the defendant must affirmatively establish: (1) that his attorney's performance was constitutionally deficient; and, (2) that the deficiency prejudiced the outcome of the case." United States v. Jackson, 983 F.2d 757, 761 (7th Cir.1993). "The defendant must overcome a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' ... and the failure to establish either one of the two components is fatal to the claim." Id. (citations omitted).

Directing attention to the first prong of the test, has the defendant established that the performance of Attorney Trewin was constitutionally deficient? In other words, was it "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. The defendant alleges that the specific acts or omissions that form the basis of his claim are counsel's failure to provide him with a copy of the plea agreement offered by the government and counsel's failure to fully discuss the application and ramification of the sentencing guidelines, as they applied to the offered agreement, and throughout this case.

In its post hearing memorandum, the government analyzes the defendant's claim at various stages of the case, and takes the position that the defendant's right to effective assistance of counsel was not violated at any stage. The government discusses the claim prior to the imposition of charges, post charging and at the time of sentencing. The government first submits that a person has no sixth amendment right to...