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United States v. Hall

United States District Court, District of Columbia

December 7, 2018

UNITED STATES OF AMERICA,
v.
CHARLES E. HALL, Defendant.

          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. ...


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