MEMORANDUM AND ORDER
BERYL
A. HOWELL, CHIEF JUDGE.
Upon
consideration of the defendant's pro se Motion
for Extension of Time to File a Memorandum of Law in Support
of a Habeas Corpus § 2255 Motion, ECF No. 227, pro
se Motion to Vacate, Set Aside, or Correct a Sentence,
ECF No. 227-1, pro se Affirmation in Support of
Memorandum of Law and Habeas Corpus § 2255 Motion, ECF
No. 228, counseled Motion for a New Trial Pursuant to 28
U.S.C. § 2255 (“Def.'s Counseled Mot.”),
ECF No. 240, and, in light of the defendant's original
intention, in addition to cross-examining the trial counsel
James W. Beane, Jr., to call eight other witnesses over two
days, see Joint Response to Order of Court, ECF No.
255, which suggests an inappropriate effort to retry this
case on collateral review, compounded by the defendant's
recent representation that, at the hearing, he “expects
to address many of the issues raised in his pro se
pleading[s], ” see Def.'s Response to
Order of Court at 1-2, ECF No. 260, this Memorandum and Order
resolves certain of the defendant's claimed bases for a
new trial in order to focus any evidence presented at the
hearing on viable issues.[1]
I.
BACKGROUND
A.
Offense Conduct
The
defendant's offense conduct was summarized by the D.C.
Circuit in an opinion affirming his convictions for bank
fraud and wire fraud, in violation of 18 U.S.C. §§
1344 and 1343, respectively. United States v. Hall,
613 F.3d 249, 251 (D.C. Cir. 2010). Specifically, from April
2002 until May 2003, while working as a loan officer at
mortgage company, Guaranty Residential Lending
(“GRL”), the defendant and six other individuals
became involved in a scheme to “flip” residential
properties in Washington, D.C. See id. In this
scheme, co-conspirator Alan Davis would buy homes in
disrepair and sell them to straw buyers recruited by the
defendant. See Id. Before the homes were resold to
the straw buyers, co-conspirator Robbie Colwell (a sham
appraiser) would appraise the homes in disrepair as if they
had been renovated. Id. These higher, false
appraisals were sent to GRL and another mortgage company,
National City Mortgage Company (“NCM”), which
would provide mortgage funding, facilitated by the
underwriters and co-conspirators Susan Shelton and Marcus
Wiseman, who were paid off by the defendant. See Id.
The mortgage funds were sent to co-conspirator Vicki
Robinson, the settlement agent for the property sales.
Id. Robinson worked for Vanguard Title, a settlement
company owned by attorney Marc Sliffman. Id.
Robinson
would give a portion of the mortgage funds from GRL and NCM
to the defendant, who would convert a portion of those funds
into cashier's checks in the amount that the straw buyer
was supposed to bring to the settlement as a down payment.
Id. At the settlement, the defendant would receive
the loan proceeds, which were identified on settlement
documents as reimbursement for “rehab construction,
” most of which was never done. Id. The
defendant took the money as personal income or used the money
to pay off co-conspirators. See id. Most of
the properties involved in the scheme later went into
foreclosure, with a resulting loss to GRL and NCM of over $5
million. Id.
B.
Indictment And Trial
The
defendant was indicted on December 15, 2004 and charged with
eight counts: one count of conspiracy to commit crimes
against the United States in violation of 18 U.S.C. §
371; two counts of bank fraud and aiding and abetting bank
fraud in violation of 18 U.S.C. §§ 1344, 2; four
counts of wire fraud and aiding and abetting wire fraud in
violation of 18 U.S.C. §§ 1343, 2; and one count of
money laundering conspiracy in violation of 18 U.S.C. §
1956(a)(1)(A)(i), 1965(h). See Indictment, ECF No.
1.
At a
jury trial before visiting Judge Sterling Johnson, Jr. of the
United States District Court for the Eastern District of New
York, the defendant was represented by James W. Beane, Jr.,
who hired Leo A. Canseco, CPA, JD, as an expert documents
examiner. See Minute Order (Nov. 15, 2005). The
trial lasted from July 24, 2006 until August 3, 2006,
including voir dire and deliberations, and included
testimony from 17 government witnesses, six of whom testified
pursuant to plea deals, and five defense witnesses, including
the defendant himself. See Trial Transcripts
(“Trial Tr.”), ECF Nos. 147, 148, 149, 150, 154,
193, 194, 223.
The
defendant was convicted on all counts and, on December 8,
2006, was sentenced to 293 months' incarceration on the
bank fraud and money laundering conspiracy counts, and 60
months' incarceration on the other counts, all running
concurrently. See Judgment, ECF No.
172.[2]
C.
Appeal To The D.C. Circuit
The
defendant, then represented by Charles Wayne, timely appealed
his conviction and sentence, on the following grounds: (1)
the government failed to prove the elements of bank fraud and
the district court erred in denying the defendant's
motion for judgment of acquittal on that ground; (2) the
government failed to prove the elements of conspiracy to
commit money laundering and the district court erred in
denying the defendant's motion for judgment of acquittal
on that ground; (3) the district court violated the
defendant's Sixth Amendment rights by precluding
cross-examination of the government witnesses on the details
of their plea agreements; (4) the district court erred by
refusing to allow the defendant to present evidence through
cross-examination in support of his defense that he lacked
the specific intent required for each offense; (5) the
district court erred by treating the guidelines sentence as
presumptively applicable and failing to consider all of the
factors of 18 U.S.C. § 3553(a); and (6) the D.C. Circuit
should order a hearing on the defendant's ineffective
assistance of counsel claim based on his attorney's
failure to call the title company's attorney, Marc
Sliffman, to testify on direct. See Br. for
Appellant at 1-2, 37-38, United States v. Hall, No.
07-3036 (D.C. Cir. Oct. 13, 2009). See also Reply
Br. for Appellant, United States v. Hall, No.
07-3036 (D.C. Cir. Feb. 23, 2010).
On July
16, 2010, the D.C. Circuit affirmed the defendant's wire
and bank fraud convictions but reversed his conviction for
money laundering conspiracy because the activities underlying
that charge were part and parcel of the underlying bank
fraud. See Hall, 613 F.3d at 251, 253-54, 257. The
Court did not remand, however, because the sentence for the
money laundering charge ran concurrently with the bank fraud
convictions, which were affirmed. Id. at 257. The
D.C. Circuit held that sufficient evidence was presented to
convict the defendant of bank fraud, finding that the
institutions defrauded by the defendant were wholly owned
subsidiaries or operating subsidiaries of federally insured
banks, and evidence that the bank was federally insured at
the time of trial adequately established that the bank was
federally insured at the time of fraud. Id. at
252-53.
The
Court also held that the district court did not abuse its
discretion in preventing defense counsel from cross-examining
co-conspirators about what attorney Sliffman had told them
about the legality of the mortgage scheme because the
testimony was not relevant. Id. at 256-57. The Court
held that “[t]estimony as to whether attorney Sliffman
had told Hall that the transactions were legal did not make
any fact then within the consideration of the court or jury
either more or less probable than it would have been without
the testimony.” Id. at 257. To the extent
“the evidence was offered to corroborate testimony that
the defense expected to offer during its case in chief,
” id., “perhaps the disputed evidence
may have been relevant after the defense made such an
introduction in its case in chief. However, at the time the
district court made its ruling, no such testimony was before
it.” Id. Accordingly, the Court concluded that
it was not error for the district judge to refuse to run the
risk that the defendant would not testify or would testify
inconsistently with the disputed testimony, requiring
portions of those cross-examinations to be stricken, thereby
arguably impermissibly calling attention to the fact that the
defendant had exercised his rights against self
incrimination. Id.
The
Court completely rejected, without discussion, the
defendant's ineffective assistance of counsel claims
based on the failure to call Sliffman on direct. Id.
(“reject[ing] also his . . . inadequacy of counsel
claims”); id. at 252 (“see[ing] no merit
in [defendant]'s claims . . . that a hearing should be
ordered on his ineffective assistance of counsel
claim.”).
Following
this appeal, the defendant filed a petition for
certiorari, which was denied on February 22, 2011.
See Hall v. ...