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United States v. Talbott

United States District Court, District of Columbia

February 10, 2017

BRIAN W. TALBOTT, Defendant.


          ROSEMARY M. COLLYER United States District Judge

         Brian 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.

         I. FACTS

         A. Background

         On 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.

         Before 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.

         On 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].

         On July 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).

         In 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.

         Mr. 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.

         On 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.

         During 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.

         Mr. 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.

         On 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 ...

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