United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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.
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. §
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.
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.
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.”).
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).
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.
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.
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
Defendant's selective prosecution and actual innocence
claims are barred by his plea agreement.
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. 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. Def.'s Mem. at 13-14.
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.
defendant and the government agreed in the plea agreement
[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
Plea Agreement [Dkt. # 4] at 7.
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. So, under the terms of the plea agreement,
defendant's selective prosecution and actual innocence
claims are barred from consideration on collateral
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
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
THE COURT: I don't think you're being difficult.
I'm trying to make sure that you're prepared.
THE DEFENDANT: Okay, yes.
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
THE DEFENDANT: Yes.
Plea Hr'g at 11:6-14.
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).
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.
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