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United States v. Bertram

United States District Court, District of Columbia

September 19, 2016



          AMY BERMAN JACKSON United States District Judge

         On May 5, 2015, defendant Kevin Duane Bertram was sentenced to thirty months' incarceration after he pleaded guilty to willfully failing to pay the federal income taxes that he withheld from his employees' paychecks. See J. in a Criminal Case [Dkt. # 18] (“J&C”) at 1-2. He now seeks to vacate that sentence pursuant to 28 U.S.C. § 2255. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Dkt. # 24] (“Def.'s Mot.”). Defendant alleges that he was the victim of selective prosecution, that his legal counsel was constitutionally deficient, and that he is actually innocent, and he petitions the Court to hold an evidentiary hearing to investigate these claims. See Mem. in Supp. of Def.'s Mot. [Dkt. # 24] (“Def.'s Mem.”) at 1, 20. Because defendant's selective prosecution and actual innocence claims are barred by his plea agreement, and because he has not demonstrated that his representation was constitutionally deficient, the Court will deny the motion without a hearing.


         Defendant operated Distributive Networks, a mobile media firm, from 2004 until 2010. See Def.'s Mem. at 1. Defendant describes that his firm was “widely viewed as the top mobile media consultant working for Republicans.” Id. at 7. On January 26, 2015, the government charged the defendant with violating 26 U.S.C. § 7202 by willfully failing to “pay over” to the Internal Revenue Service (“IRS”) federal income tax and Federal Insurance Contributions Act (“FICA”) taxes that, from 2007 to 2009, he had deducted from the wages of his workers. Information [Dkt. # 1]; see also Gov't's Resp. in Opp. to Def.'s Mot. [Dkt. # 26] (“Gov't's Opp.”) at 1; 26 U.S.C. § 7202.

         Defendant agreed to plead guilty, and as part of the plea, he swore to an agreed Statement of Offense. See Statement of Offense [Dkt. # 5]. In the statement, defendant admitted to keeping the federal income tax and FICA taxes that he withheld from the wages of his employees at Distributive Networks, and failing to submit those taxes to the IRS as required by law. Id. ¶ 8. He admitted that he did not truthfully account for the withheld taxes. Id. ¶ 9. He admitted that his failure to pay the taxes to the IRS was willful. Id. ¶ 10. And he admitted that he was aware of the legal duty to “pay over” those taxes, and that he violated the legal duty knowingly and voluntarily. Id. ¶ 11. The defendant's conduct resulted in a total tax loss to the IRS of $927, 921.78. Id. ¶ 12.

         The Court accepted defendant's guilty plea on February 10, 2015. See Tr. of Arraignment & Plea Hr'g [Dkt. # 22] (“Plea Hr'g”) at 24:19-25. On May 5, 2015, the Court sentenced defendant to thirty months of incarceration, followed by thirty-six months of supervised release. See J&C at 2-3. The Court also ordered defendant to pay restitution to the IRS in the amount of $897, 921. Id. at 5.

         Defendant filed this motion under 28 U.S.C. § 2255 on May 10, 2016. Def.'s Mot. The government filed its response in opposition on July 1, 2016, see Gov't's Opp., and defendant replied in support of his motion on July 13, 2016. Pet.'s Reply to Gov't's Opp. [Dkt. # 27] (“Def.'s Reply”). On July 19, 2016, the Court ordered both parties to file supplemental memoranda on “the specific legal question of whether an ineffective assistance of counsel claim under section 2255 and this plea agreement can be based on acts or omissions of an attorney who was engaged by defendant but was not ‘counsel' in the proceeding before the Court.” Min. Order (July 19, 2016). The parties submitted the supplements. Gov't's Notice Regarding Case Authority [Dkt. # 28] (“Gov't's Suppl.”); Mem. Supporting Pet.'s Ability to Bring an Ineffective Assistance of Counsel Claim [Dkt. # 29] (“Def.'s Suppl.”).


         To prevail on a motion to vacate a sentence under 28 U.S.C. § 2255, a defendant must show that his “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). The defendant bears the burden of proving his claims by a preponderance of the evidence. See United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973). “Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments.” United States v. Zakas, 793 F.Supp.2d 77, 80 (D.D.C. 2011). So in a section 2255 proceeding, the defendant “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). And “[t]o have a plea set aside on a section 2255 petition, the petitioner ‘must show that the plea proceeding was tainted by a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.'” United States v. Weaver, 265 F.3d 1074, 1077 (D.C. Cir. 2001), quoting United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995); see also Hill v. United States, 368 U.S. 424, 471 (1962).

         In considering a section 2255 motion, a district court shall grant a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The rules governing section 2255 proceedings add that “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing § 2255 Proceedings, Rule 4(b), 28 U.S.C. foll. § 2255. The decision to grant a hearing “is committed to the district court's discretion.” United States v. Pollard, 959 F.2d 1011, 1030-31 (D.C. Cir. 1992). And a “district judge's decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also presided” over the defendant's original proceeding. United States v. Morrison, 98 F.3d 619, 625-26 (D.C. Cir. 1996); see also United States v. Toms, 396 F.3d 427, 437 (D.C. Cir. 2005), quoting Morrison, 98 F.3d 619 at 625; United States v. Sayan, 968 F.2d 55, 66 (D.C. Cir. 1992). Ultimately, the “summary denial of a § 2255 motion is appropriate . . . . when the [claims do] not necessitate the consideration of any information not within the record or within the memory of the judge ruling on the motion.” Morrison, 98 F.3d at 626.


         Defendant has attacked his conviction on three grounds. First, he contends that he was the victim of selective prosecution on the basis of his political affiliation. See Def.'s Mem. at 5-9. Second, he argues that he received ineffective assistance of counsel. Id. at 9-13. Specifically, he claims that one of the attorneys he engaged in connection with the matter failed to investigate necessary witnesses and participated in the representation after he developed a conflict of interest. Id. And third, he claims he is actually innocent of the crime of which he was convicted, because he did not “willfully” violate the tax statutes. Id. at 13-19.

         These claims all fail. Defendant's selective prosecution and actual innocence claims are barred by the express terms of his plea agreement and his sworn admissions on the record. And his ineffective assistance of counsel claim alleges neither sufficient prejudice nor an actual conflict of interest. Because the “motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” 28 U.S.C. § 2255(b), defendant's motion will be denied without an evidentiary hearing.

         I. Defendant's selective prosecution and actual innocence claims are barred by his plea agreement.

         Defendant, whose media firm worked at various times for both Democratic and Republican candidates, asserts that he was the victim of selective prosecution because his work during President Obama's administration was for the GOP.[1] See, e.g., Def.'s Mem. at 8. In support of this claim, defendant provides the court with seven anecdotal examples of prominent Democratic figures who allegedly committed similar offenses but were not prosecuted. See Def.'s Mem. at 5- 6. He also provides statistics in an effort to show that the felony charged in this case - 26 U.S.C. § 7202 - is “infrequently charged.” See U.S. Sentencing Comm'n Guidelines Manual, Ex. 1 to Def.'s Mot. [Dkt. # 24-1]; see also Emp't Tax Evasion Statistical Data, Ex. 10 to Def.'s Mot. [Dkt. # 24-1] at 50 (providing statistics showing the relative infrequency of prosecution). Finally, he contends that the prosecution was permeated with “bad intent” because an IRS agent allegedly inquired as to the political motivations behind defendant's work. See Aff. of Kevin Duane Bertram, Ex. 14 to Def.'s Mot. [Dkt. # 24-2] ¶¶ 10-15. Defendant also argues that his sentence should be vacated because he is actually innocent of the crime of which he was convicted.[2] Def.'s Mem. at 13-14.

         The government contends that defendant's plea agreement explicitly bars him from attacking his conviction on these grounds, see Gov't's Opp. at 9-10, 12, and its position is well-taken.

         The defendant and the government agreed in the plea agreement that:

[Defendant] also waives any right to challenge the conviction entered or sentence imposed under this Agreement . . . in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255 . . . except to the extent such a motion is based on newly discovered evidence or on a claim that [defendant] received ineffective assistance of counsel in entering into this Agreement or in connection with sentencing.

Plea Agreement [Dkt. # 4] at 7.

         Defendant's claims of selective prosecution and actual innocence plainly do not implicate any allegation that he received ineffective assistance of counsel. And defendant does not point the Court to any newly discovered evidence as part of either claim.[3] So, under the terms of the plea agreement, defendant's selective prosecution and actual innocence claims are barred from consideration on collateral review.[4]

         And the record makes clear that defendant's plea was knowing, voluntary, and intelligent. Defendant signed the plea agreement, which was made a part of the record, and he specifically affirmed that:

I have read every page of this Agreement and have discussed it with my attorney, Jessie K. Liu. I fully understand this Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound.

         Plea Agreement at 10. The defendant also initialed and dated each page of the agreement prior to the entry of the plea, and he confirmed that he had done so on the record.

THE COURT: [O]ne of the things I asked you to do before I took the bench was not only sign the plea agreement, but to initial and date every page. And I don't have you initial and date every page just so I know that all the pages are there. I have you initial and date every page as a sign to me that you read that page and that you know what's on it. So have you had a chance to read this plea offer today and are you comfortable that you've read every paragraph and that you understand everything in it?
THE DEFENDANT: I apologize. I'm not intending to be difficult.
THE COURT: I don't think you're being difficult. I'm trying to make sure that you're prepared.

Plea Hr'g at 10:16-11:5. Finally, as part of the Rule 11 colloquy, the Court made sure that the defendant understood that he was waiving his right to attack his conviction as he seeks to do now:

THE COURT: Do you also understand, then, one of the things you've agreed to is you're not going to be able to come back later under . . . 28 United States Code § 2255 and attack this conviction and say there was something wrong with it, unless there is newly discovered evidence or your attorney was ineffective in representing you. Otherwise, this conviction is going to stand for the future. You understand that?

Plea Hr'g at 11:6-14.[5]

         “Although the analogy may not hold in all respects, plea bargains are essentially contracts.” Puckett v. United States, 556 U.S. 129, 137 (2009). Here, the Court will enforce the agreement, which was knowing, intelligent, and voluntary. See United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015) (enforcing the waiver of a defendant's right to appeal when the waiver is knowing, intelligent, and voluntary), citing United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).

         Defendant's argument that he did not commit the offense willfully is also belied by the sworn representations that are part of the record in this case. In the Statement of Offense, defendant acknowledged that he “willfully failed to pay over $927, 921.78 in payroll taxes due and owing to the IRS.” Statement of Offense ¶ 10. He also “declare[d] under penalty of perjury” that the statement of offense was a “true and accurate statement of facts and accurately set for [his] conduct in connection with this case.” Id. at 3.

         In addition, at the plea hearing, the Court asked the prosecutor to summarize the statement of offense on the record:

THE COURT: Now, I'm going to ask the prosecutor to tell you and tell me what happened in this case. I know it's written down, but I like people to put it on the record in the courtroom. So I'm going to ask you to listen very carefully while the prosecutor talks because when she's ...

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