Wulf v. United States

• Decision Date: 25 April 2016
• Docket Number: Case No. 4:14CV1903 JCH
• Parties: DAVID R. WULF, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

DAVID R. WULF, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 4:14CV1903 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

April 25, 2016

MEMORANDUM AND ORDER

This matter is before the Court on pro se Movant David R. Wulf's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed November 10, 2014. (ECF No. 1).

BACKGROUND

On November 18, 2010, Movant was charged in a second superseding indictment with one count of conspiracy to commit mail fraud affecting a financial institution, mail fraud, wire fraud affecting a financial institution, wire fraud, and bank fraud in violation of 18 U.S.C. § 1349¹; ten counts of bank fraud in violation of 18 U.S.C. § 1344; seven counts of wire fraud affecting a financial institution in violation of 18 U.S.C. § 1343; four counts of wire fraud in violation of 18 U.S.C. § 1343; six counts of mail fraud affecting a financial institution in violation of 18 U.S.C. § 1341; six counts of mail fraud in violation of 18 U.S.C. § 1341; one count of money laundering in violation of 18 U.S.C. § 1957; one count of conspiracy to commit insurance fraud in violation of 18 U.S.C. § 371; two counts of making a false statement to an insurance regulatory agency thatjeopardized the safety and soundness of an insurer in violation of 18 U.S.C. § 1033(a)(1) and (a)(2); and two counts of embezzling or misappropriating funds from an insurer which jeopardized the safety and soundness of an insurer in violation of 18 U.S.C. § 1033(b)(1) and (b)(2).²

Movant's criminal trial began on August 5, 2013. On August 21, 2013, the parties agreed to redact the second superseding indictment to remove certain counts which the United States did not pursue at trial, to remove the forfeiture allegation against Movant, and to renumber the remaining counts. On August 22, 2013, the jury returned a verdict of guilty on all eighteen counts of the redacted indictment, including one count of conspiracy to commit mail fraud affecting a financial institution, mail fraud, wire fraud affecting a financial institution, wire fraud, and bank fraud, eight counts of bank fraud, six counts of wire fraud affecting a financial institution, and three counts of wire fraud. On November 14, 2013, the Court sentenced Movant to 120 months imprisonment, to be followed by a five-year term of supervised release. Movant's motion to dismiss his direct appeal was granted before a ruling was issued.

As stated above, Movant filed the instant § 2255 Motion on November 10, 2014³, alleging the following two grounds for relief:

(1) That the Government's attorneys engaged in prosecutorial misconduct by failing to disclose evidence material to Movant's defense; and

(2) That Movant received ineffective assistance of counsel at trial.

(§ 2255 Motion, P. 5; Memorandum in Support of § 2255 Motion, PP. 3-61).⁴

STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. § 2255

Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on 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(a). Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, "can be raised on collateral review only if the alleged error constituted a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (citations omitted).⁵

The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "'[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8^th Cir. 1994), quoting 28 U.S.C. § 2255. Thus, a movant is entitled to an evidentiary hearing "'when the facts alleged, if true, would entitle him to relief.'" Payne v. United States, 78 F.3d 343, 347 (8^th Cir. 1996), quoting Wade v. Armontrout, 798 F.2d 304, 306 (8^th Cir. 1986). The Court may di smiss a claim "without an evidentiary hearing if theclaim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043 (citation omitted).

DISCUSSION

I. Ground 1

As stated above, in Ground 1 of his § 2255 Motion Movant asserts the Government's attorneys engaged in prosecutorial misconduct, by failing to disclose evidence material to Movant's defense. In order to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963), Movant must show that "(1) the evidence was favorable to the defendant, (2) the evidence was material to guilt, and (3) the government suppressed evidence." United States v. Sigillito, 759 F.3d 913, 929 (8^th Cir. 2014) (quotation marks and citation omitted), cert. denied, 135 S.Ct. 1019 (2015). "[E]vidence is 'material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995) (citations omitted); see also Masten v. United States, 752 F.3d 1142, 1147 (8^th Cir. 2014) (same). Further, a "reasonable probability" means that "the likelihood of a different result is great enough to 'undermine[] confidence in the outcome of the trial.'" Smith v. Cain, 132 S.Ct. 627, 630 (2012), quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted).

Movant specifies several individuals with allegedly exculpatory information, and the Court will address each in turn.

A. Sharon Nekol Province

As support for his claim that co-conspirator Sharon Nekol Province gave exculpatory evidence to the Government, Movant provides an affidavit from his daughter, Susan E. Woods, in which she attests in relevant part as follows:

2. After the criminal trial of David R. Wulf in August 2013, but before sentencing in November 2013, I talked to Sharon Nekol Province on the telephone a few times....

3. During our conversations, Ms. Province told me that....the fraud and conspiracy that had happened during the NPS (National Prearranged Services) scandal was kept from my Dad....

4. When asked if she ever told the prosecutors or investigators that my Dad was innocent, Ms. Province told me about a meeting she had with the Federal Prosecutors and an IRS agent prior to my Dad's trial. This meeting was not disclosed to my Dad or his defense counsel.

5. In this meeting, Ms. Province told the prosecutors that David R. Wulf did not participate in or know of any conspiracy to commit fraud.

6. In this meeting, Ms. Province disclosed that she told the prosecutors that she created fraudulent funeral home letters and used a David R. Wulf signature stamp on Wulf, Bates & Murphy stationery without my father's knowledge or permission.

(Movant's Exh. 12).

By way of response, the Government asserts it has no record of Ms. Province ever making such statements to government attorneys. (Government's Response, P. 14). Instead, the Government notes that Ms. Province met with government attorneys on May 27, 2011, and June 22, 2011, and the memoranda of those interviews do not reflect the statements contained in Ms. Woods' affidavit. (Id.; see also Government's Exh. 1).⁶ See United States v. Heppner, 519 F.3d 744, 750 (8^th Cir.) (citations omitted) ("Brady does not require the government to discover information not in its possession or of which it was not aware."), cert. denied, 555 U.S. 909 (2008). The Government further notes that Ms. Province's alleged assertion that Movant did not participate in or know of the alleged conspiracy is contradicted by her Plea Agreement, in which she admitted as follows: "The banks were further defrauded with each trust transfer made pursuant to the direction of co-defendant David R. Wulf, or under the color of the authority of Wulf, Bates & Murphy, Inc. as an independent investment advisor." (See Cause No. 4:09CR509 JCH, ECF No. 440, P. 23).

Upon consideration the Court finds that with this claim, Movant fails to establish the third element of his Brady claim. In other words the hearsay testimony⁷ presented in the affidavit prepared by his daughter, when contrasted with the statements provided by the Government, does not establish that the Government possessed but suppressed evidence relating to Ms. Province. This portion of Movant's § 2255 Motion will therefore be denied.

B. Tony Lumpkin

Movant next claims the Government withheld exculpatory materials relating to Mr. Tony Lumpkin, former Chief Operating Officer of Lincoln Memorial Life Insurance Company. As support for this assertion Movant provides a declaration from Mr. Lumpkin, in which he attests in relevant part as follows:

4. During several interviews, I told the [federal] investigators and prosecutors that David Wulf had no knowledge of any criminal activity. I told them that, to the extent there was a fraudulent scheme, Doug Cassity had hidden it from David.

5. I gave the investigators and prosecutors several examples to show David had no knowledge of the criminal activity. For example, in or about 2010, I told the investigators and prosecutors that I had seen Sharon Province using David's signature stamp to stamp documents without David's permission or knowledge.

(Movant's Exh. 10B).

In response, the Government again notes that it turned over all memoranda of interview involving Mr. Lumpkin to Movant's attorney prior to trial. (See Government's Response, P. 8; Government's Exh. A, ¶ 7). The Government continues to assert that Mr. Lumpkin's memoranda of interview do not reflect his current position that Movant did not knowingly participate in the fraud. Further, and perhaps more importantly, the...