United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
W. Talbott moves to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. See Motion to
Vacate [Dkt. 152]. On November 7, 2016, this Court held an
evidentiary hearing on Mr. Talbott's motion and heard
argument from both parties. For the reasons set out below,
the Court will deny Mr. Talbott's § 2255 motion.
January 9, 2012, Mr. Talbott pled guilty to Conspiracy to
Commit Bank Fraud (Count 1), Conspiracy to Commit Mail Fraud
(Count 2), and Conspiracy to Defraud the Government (Count 3)
before Judge Robert Wilkins, formerly a district court judge
and now a judge of the D.C. Circuit. See Plea
Agreement [Dkt. 31]. The underlying fraud involved repeated
“sales” of the same house between Mr. Talbott and
his partner, each based on falsified releases of the prior
bank lien due to a mortgage. During the plea negotiations and
at the plea hearing, Mr. Talbott was represented by Michael
P. Resavage of The Phillips Law Offices, LLC, who became
counsel of record on December 9, 2011. Mr. Talbott chose to
retain new counsel, Matthew Kaiser and Rebecca LeGrand of
KaiserDillon PLLC (formally Kaiser, LeGrand & Dillon),
for sentencing. Mr. Kaiser and Ms. LeGrand represented Mr.
Talbott both at sentencing and on appeal.
his plea hearing, Mr. Talbott moved to be released on bond,
which motion was denied at a status conference on December
20, 2011. See Motion for Bond [Dkt. 20]. Mr.
Talbott's plea agreement anticipated Offense Level 22 and
Criminal History Category II under the United States
Sentencing Guidelines (USSG or Guidelines). This calculation
included a three level downward departure of his offense
level for early acceptance of responsibility. See
Plea Agreement at 3. The Guidelines range for Mr. Talbott was
46 to 57 months' incarceration. See id. at 4.
After the plea hearing, Judge Wilkins indicated that he would
entertain any further motions for release on bond. Based on
Mr. Talbott's second motion for release because his
elderly mother was very ill, on January 24, 2012, the Judge
released Mr. Talbott on electronic monitoring and other
conditions to live with his parents in Florence, South
Carolina, where the local Probation Office had agreed to
supervise him. See Tr. 9/5/12 [Dkt. 134] at
51:17-18. As part of his conditions of release, Mr. Talbott
was ordered not to conduct any financial or business
transaction without approval or to commit any new criminal
offences. See Motion to Revoke Conditions of Release
[Dkt. 78] (Mot. to Revoke) at 1.
February 8, 2012, less than a month after being released to
South Carolina, Mr. Talbott requested relocation to Delaware
in order to attend to his business affairs before sentencing
and potential imprisonment. See Motion for
Reconsideration [Dkt. 45]. The motion was granted and Mr.
Talbott was ordered to report to the U.S. Probation Office in
Delaware on February 24, 2012. Thereafter, in April 2012, Mr.
Talbott registered multiple vehicles with the Delaware
Division of Motor Vehicles, despite notifying the Pretrial
Services Officer that he was only registering one vehicle. In
addition, for at least one of those vehicles, Mr. Talbott
attempted to file a forged lien release document.
See Mot. to Revoke at 1-2. On learning of this
failure to comply with release conditions, Judge Wilkins
issued a warrant for Mr. Talbott's arrest on June 19,
2012. See Arrest Warrant [Dkt. 86].
2, 2012, at what was scheduled to be a sentencing hearing,
Judge Wilkins held a status conference to consider
“several adjustments under the sentencing
guidelines” after he had reviewed all the pertinent
documents, including several victim impact statements. Tr.
7/2/12 [Dkt. 139] at 6:1-14. In particular, the Judge
explained that he was considering the following upward
changes to Mr. Talbott's base offense level under the
Guidelines: (1) two points for obstructing or impeding the
administration of justice, pursuant to § 3C1.1 of the
Guidelines, because Mr. Talbott failed to disclose certain
assets and had threatened at least one victim for revealing
his fraudulent activity; (2) two points for abuse of a
position of trust or use of a special skill, pursuant to
§ 3B1.3, because Mr. Talbott was president and CEO of
the company engaged in, and at the time of, the fraud and he
was a licensed realtor; (3) two points for aggravated role as
the leader, pursuant to § 3B1.1, because Mr. Talbott was
president of the company and most of its assets were in his
name, demonstrating leadership; (4) two points for ten or
more victims, pursuant to § 2B1.1(2)(A); and (5) removal
of Mr. Talbott's three point adjustment for early
acceptance of responsibility based on his behavior while on
supervision. See id. at 6:15-10:9; USSG §§
2B1.1(2)(A), 3B1.1, 3B1.3, 3C1.1, 3E1.1 (Nov. 2011).
response to Judge Wilkins' suggested adjustments, the
government filed a Supplemental Memorandum noting that a
stipulation in Mr. Talbott's plea agreement barred
adjustments for aggravated role, abuse of position of trust,
or ten or more victims, so that the government would not
request such adjustments. See Gov't Mot. for
Departure [Dkt. 109] at 1-2. However, the government argued
that the denial of Mr. Talbott's three point reduction
for early acceptance of responsibility was appropriate.
See id. at 3-4 In addition, because Mr. Talbott
“engaged in conduct that both violated the conditions
of his release and constituted new fraudulent criminal
activity” the government requested an upward departure
to Offense Level 30. Id. at 4. Combined with Mr.
Talbott's criminal history, this upward departure would
result in a Guidelines range of 108 to 135 months of
imprisonment. The government requested a sentence of 132
months. See id.
Talbott argued that his misconduct during pre-trial release,
while unacceptable, did not negate his acceptance of
responsibility. See Def. Supp. Sentencing Memorandum
[Dkt. 111-2] at 7-9. He argued that his prior efforts to
disclose assets and provide access to his property should
continue to justify a downward departure and that his
behavior was indicative of his need for mental health
treatment because of his struggle “to manage
overwhelming anxiety.” Id. at 8. In response
to the government's motion for an upward departure to
offense level 30, Mr. Talbott argued that his behavior during
pretrial release could be a basis to remove his three-point
downward departure but not for an upward departure
as “the defendant's acceptance of responsibility
can never be used as the basis for a
departure” and even if it could, Mr. Talbott's
behavior was not “so exceptional that it should result
in an upward departure.” Reply to Gov't Mot. for
Departure [Dkt. 112] at 3-4.
September 5, 2012, Judge Wilkins sentenced Mr. Talbott to 120
months of incarceration for Counts 1, 2, and 3, all to be
served concurrently, followed by sixty months of supervised
release for Count 1 and thirty-six months for Counts 2 and 3,
all terms running concurrently. Mr. Talbott's sentence
included a special assessment of $300 and restitution in the
amount of $2, 969, 284 jointly and severally with his
co-defendant, Chester Ransom. Judge Wilkins ultimately
declined to increase Mr. Talbott's base offense level but
also declined to accept the three-level downward departure
for early acceptance of responsibility. See Tr.
9/5/12 at 27:17-28:25. Thus, Judge Wilkins' final
calculation of Mr. Talbott's Guideline range was Offense
Level 25 and Criminal History Category II for a range of 63
to 78 months' imprisonment. See id.
the sentencing hearing, Judge Wilkins expressed his
frustration with Mr. Talbott's behavior during his
pretrial release. While Mr. Talbott “tried to show some
remorse” the Judge was “not really all that
convinced.” Tr. 9/5/12 at 50:17-19. Judge Wilkins
recounted his grandmother scolding him as a child saying,
“it seems like you don't think fat meat's
greasy, ” and how “the next thing that was going
to happen was she was going to go to her drawer where she
kept her strap, and you were going to taste it if you
didn't get your act together.” Id. at
51:2-11. Addressing Mr. Talbott, the Judge stated
“somehow I don't think that you think that fat
meat's greasy.” Id. at 51:12-13. Judge
Wilkins recalled that he “let [Mr. Talbott] out [on
pre-sentence release] against [his] better judgment”;
that Mr. Talbott asked to be located in South Carolina to
care for his sickly mother; that he was there for only a
brief period of time before requesting relocation; and that
he proceeded to commit further crimes while in Delaware.
Id. at 51:14-25. The Judge further concluded that
the “nature and circumstances of [Mr. Talbott's]
offense are such that a sentence above the guidelines is
clearly appropriate.” Id. at 52:11-13. Mr.
Talbott committed fraud repeatedly and he threatened those
who might have reported him. See id. at 52:14-20.
His behavior was “callous and calculating”
showing “a lot about [his] character . . . or lack
thereof.” Id. at 52:20-22. Despite a good plea
deal, Mr. Talbott “abused the deal that [he]
got.” Id. 53:3-4. For these reasons, the Judge
departed upwards from the Guidelines range in his sentencing.
Talbott filed a timely notice of appeal on September 10,
2012. See Notice of Appeal [Dkt. 116]. The United
States Court of Appeals for the District of Columbia affirmed
Mr. Talbott's plea and sentence on July 1, 2014. See
United States v. Ransom, 756 F.3d 770 (D.C. Cir. 2014).
The case was reassigned to Chief Judge Richard Roberts
following Judge Wilkins' appointment to the D.C. Circuit.
On April 4, 2015, following Chief Judge Roberts'
retirement, the case was reassigned to this Judge.
October 25, 2015, Mr. Talbott filed a Motion to Vacate
Sentence pursuant to 28 U.S.C. § 2255 claiming
ineffective assistance of counsel with respect to Mr.
Resavage, Ms. LeGrand, and Mr. Kaiser. See Motion to
Vacate Sentence [Dkt. 152]. The United States moved for an
order recognizing a waiver of attorney-client privilege
between Mr. Talbott and his former attorneys with respect to
issues raised by Mr. Talbott's ineffective assistance of
counsel claims, see Mot. for Order Finding ...