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Mescall v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 5, 2018

SEAN F. MESCALL, Petitioner,



         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and Motion to Order Government to Respond, (Doc. No. 2). The § 2255 Motion to Vacate will be denied and the Motion to Order the Government to Respond will be denied.[1]

         I. BACKGROUND[2]

         On September 9, 2009, the Commodities Futures Trading Commission brought a civil action against Petitioner, charging him with operating the Ponzi scheme. On September 16, 2009, the Court issued a preliminary injunction forbidding the movement of assets, appointing a receiver, and requiring Petitioner to cooperate fully with the receiver. Petitioner violated the preliminary injunction, and the Court found him in contempt. The Court stayed imposition of civil contempt sanctions and referred the matter to the U.S. Attorney for possible criminal contempt proceedings. Petitioner was charged with and convicted of criminal contempt, in violation of 18 U.S.C. § 401(3) (2012), case number 3:10-cr-121. He pled guilty and, in a judgment dated May 18, 2011, he was sentenced to 27 months' imprisonment followed by three years of supervised release. (Case No. 3:10-cr-121, Doc. Nos. 10, 15). He did not appeal or seek post-conviction relief in that case.

         On November 22, 2011, the Government charged Petitioner with a single count of wire fraud by Bill of Information[3] in criminal case number 3:11-cr-379. The wire fraud was alleged to have occurred from 2006 through September, 2010, via an email transmitted on or about October 31, 2008, from Petitioner to victim “MB.” (Case No. 3:11-cr-379, Doc. No. 1). Petitioner signed a plea agreement on November 17, 2011, but did not go forward with a Rule 11 hearing. (Id., Doc. No. 3); see (Case No. 3:12-cr-215, Doc. No. 64 at 13-14). It became apparent by early 2012 that Petitioner had changed his position of cooperation and began contesting the wire fraud charge. See (Case No. 3:11-cr-379, Doc. No. 5) (letter from Petitioner notifying the Court that counsel was refusing to raise a double jeopardy issue that Petitioner believed to be meritorious). On January 8, 2015, the Government dismissed the case without prejudice. (Id., Doc. Nos. 8, 9).

         After Petitioner failed to plead guilty in case number 3:11-cr-379, the Government brought charges before the Grand Jury in case number 3:12-cr-215. The Indictment filed on June 20, 2012, charged Petitioner with: (1) securities fraud from in or about 2006 through in or about 2010; (2) wire fraud from in or about 2006 through in or about 2010 involving an email transmitted on or about October 3, 2007, to victim “DR;” and (3) money laundering on or about November 27, 2009. (Case No. 3:12-cr-215, Doc. No. 1). Petitioner was arrested on June 22, 2012, and his initial appearance with counsel occurred that same day. On July 18, 2012, Petitioner's counsel, Assistant Public Defender Peter Adolf, moved to continue the trial date because the case was not ready for trial pursuant to 18 U.S.C. § 3161(c)(2). (Id., Doc. Nos. 6). The Court granted the continuance in a written Order finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. (Id., Doc. Nos. 6, 7).

         On August 25, 2012, Petitioner filed a pro se Motion to excuse appointed counsel and represent himself at trial. (Id., Doc. No. 9). At a hearing before Magistrate Judge Keesler, Petitioner explained that he wanted to pursue a double jeopardy argument with regards to his contempt case. See (Id., Doc. No. 64 at 9). Judge Keesler granted Petitioner's motion to excuse counsel and represent himself after conducting a thorough colloquy about the consequences of proceeding pro se, including the difficulty of conducting discovery while incarcerated and negotiating a plea on his own behalf. The prosecutor noted that the parties had discussed asking to reset the upcoming trial in light of the voluminous discovery and complexity of the case. (Id., Doc. No. 64 at 3). Petitioner requested that the Court reset the October 1 trial date “until springtime like [the prosecutor] was talking about earlier.” (Id., Doc. No. 64 at 19). Judge Keesler appointed Mr. Adolf to serve as standby counsel with Petitioner's consent. (Id., Doc. No. 64 at 23).

         On September 17, 2012, Petitioner filed a pro se “Unopposed Motion for Status Conference” in which he requested a continuance of the trial date, which the Court granted in a written Order again making findings that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. (Id., Doc. Nos. 13, 14).

         On October 9, 2012, Petitioner filed a pro se pleading arguing that the Fifth and Sixth Amendments require dismissal of the charges in case number 3:12-cr-215, because Petitioner was already convicted of criminal contempt for the same conduct in case number 3:10-cr-121. (Id., Doc. No. 15); see (Id., Doc. No. 20). The Court denied Petitioner's motion, finding that his prosecution for securities fraud, wire fraud, and money laundering was not barred by his earlier criminal contempt conviction. United States v. Mescall, 2012 WL 12829999 (W.D. N.C. Dec. 4, 2012).

         The case proceeded to a jury trial in December 2012, at which Petitioner represented himself, and resulted in guilty verdicts on all three counts. (Case No. 3:12-cr-215, Doc. No. 33).

         The Presentence Investigation Report (“PSR”) scored the base offense level as 31 because the offense involved money laundering, and the most serious underlying offenses had an offense level of 31.[4] (Id., Doc. No. 46 at ¶ 21). Two levels were added because Petitioner was convicted of violating 18 U.S.C. § 1956, and two more levels were added for sophisticated means. (Id., Doc. No. 46 at ¶¶ 22, 23). Two levels were added for obstruction of justice, resulting in a total offense level of 37. (Id., Doc. No. 46 at ¶¶ 26, 30). Petitioner had two criminal history points and a criminal history score of two, and two points were added because Petitioner committed the instant offense while under a sentence for driving while intoxicated, resulting in a total criminal history score of four and a criminal history category of III. (Id., Doc. No. 46 at ¶¶ 38-40). The resulting guidelines imprisonment range was 262-327 months. (Id., Doc. No. 46 at ¶ 59).

         When the matter came before the Court for sentencing, Petitioner requested counsel's assistance. The Court reset sentencing to give Mr. Adolf time to file written objections. Counsel argued that: the four-level enhancement for gross receipts over $1, 000, 000 does not apply because the funds came from individuals, and not from the financial institutions themselves; the sophisticated means enhancement does not apply; Petitioner should receive a reduction for acceptance of responsibility because he only went to trial to preserve his double jeopardy objection; the enhancement for obstruction of justice is double-counting due to his contempt conviction in case number 3:10-cr-121; and the criminal history score over-represents the seriousness of his criminal record. (Id., Doc. No. 48).

         When sentencing again came before the Court on October 30, 2014, Petitioner stated that he had read the PSR and discussed it with counsel. (Id., Doc. No. 70 at 1). The Court sustained counsel's objections with regards to acceptance of responsibility and granted a two-level reduction, and overruled the other objections. (Id., Doc. No. 70 at 17). The adjusted offense level was 35 and the criminal history category remained III, resulting in a corrected guideline range of 210-262 months' imprisonment. (Id., Doc. No. 70 at 21).

         Defense counsel argued that the criminal history category overrepresented Petitioner's prior record, that Petitioner immediately told counsel it was a Ponzi scheme, and that Petitioner would not have gone to trial but for the double jeopardy issue. (Id., Doc. No. 70 at 29). Counsel noted the case's unusual procedural history, stating that, “when Mr. Mescall first came in, whenever it was four years ago or so, he was charged with contempt, and in state court they were prosecuting the underlying fraud. There were decisions why the government did that. But at some point while he was serving the sentence for the contempt, the government changed its mind and they're entitled to do that.” (Id., Doc. No. 70 at 29-30). If Petitioner had pled guilty, he would have been looking at considerably less time - perhaps three levels lower with a range of 151 to 188 months' imprisonment. Taken along with Petitioner's overrepresented criminal history, counsel argued, a 10-year sentence would be appropriate. The Government requested a guideline sentence. (Id., Doc. No. 70 at 34).

         The Court agreed with defense counsel that a criminal history category of III overrepresented Petitioner's prior record and instead relied on a criminal history category of II. In addition, the Court granted Petitioner credit for the 27-month sentence he had served for the contempt conviction in case number 3:10-cr-121 because it was part of the relevant conduct in the instant criminal case. (Id., Doc. No. 70 at 38). The Court therefore imposed a sentence of 168 months as to each count (195 months minus 27), concurrent, followed by three years of supervised release and $1, 248, 812.90 in restitution. (Id., Doc. No. 70 at 41-42); (Id., Doc. No. 55).

         Petitioner argued on direct appeal, through new appointed counsel, that the convictions were for the same conduct as the criminal contempt conviction and thus obtained in violation of double jeopardy. The Fourth Circuit affirmed, concluding:

[A]pplication of the Blockburger [v. United States, 284 U.S. 299, 304 (1932), ] test compels the conclusion that there was no double jeopardy violation. Criminal contempt has as an element the willful violation of a court order, … while the other offenses do not. Additionally, wire fraud contains an element - use of a wire communication … - that criminal contempt does not; securities fraud contains an element - engaging in fraud in connection with the purchase or sale of a security … - that criminal contempt does not; and money laundering contains an element - a financial transaction designed to conceal proceeds of an unlawful activity … - that criminal contempt does not.

United States v. Mescall, 624 Fed.Appx. 103, 104 (4th Cir. 2015).

         The United States Supreme Court denied certiorari on June 13, 2016. Mescall v. United States, 136 S.Ct. 2475 (2016).

         Petitioner filed the instant § 2255 Motion to Vacate on April 10, 2017. Construing the pro se pleadings liberally, he appears to argue (renumbered): (1) the Court erred by: (A) convicting and sentencing him in violation of double jeopardy; and (B) convicting and sentencing him in violation of his right to a speedy trial; (2) trial counsel was ineffective for: (A) failing to raise the double jeopardy issue; (B) failing to raise the speedy trial issue; and (C) misadvising him about the effect of the criminal contempt plea and failing to negotiate a plea encompassing the criminal attempt as well as the three substantive charges; and (3) appellate counsel was ineffective for failing to raise the speedy trial violation on direct appeal. He acknowledges that his speedy trial claim is procedurally defaulted because it was not raised on direct appeal, however, he argues that the default is excused by the ineffective assistance of “pre-trial counsel.” See (Doc. No. 1 at 9). He also acknowledges that the Fourth Circuit rejected his double jeopardy claim on direct appeal, but argues that its decision is not binding because the Fourth Circuit did not “fully” consider his double jeopardy argument and the controlling case law and therefore rendered an erroneous ruling that, if applied in these proceedings, would result in manifest injustice. (Doc. No. 1 at 17). He requests an evidentiary hearing. (Doc. No. 1 at 12).


         Petitioner has filed a pro se letter that is construed as a Motion to Order the Government to Respond to the § 2255 Motion to Vacate. (Doc. No. 2). The Court concludes that Petitioner's claims can be resolved on the face of the record without requiring the Government to respond. See Rules 4(b), 5(a), Rules Governing Section 2255 Proceedings for the United States District Courts. Therefore, Petitioner's Motion is denied.


         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The Strickland standard is difficult to satisfy in that the “Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The prejudice prong inquires into whether counsel's deficiency affected the judgment. See Strickland, 466 U.S. at 691. A petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In considering the prejudice prong of the analysis, a court cannot grant relief solely because the outcome would have been different absent counsel's deficient performance, but rather, it “can only grant relief under … Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.'” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a “reviewing court need not even consider the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), vacated on other grounds, 218 F.3d 310 (4th Cir. 2000).

         The Sixth Amendment right to the assistance of counsel during criminal proceedings extends to the plea-bargaining process. See Missouri v. Frye, 566 U.S. 134 (2012). Thus, criminal defendants are “entitled to the effective assistance of competent counsel” during that process. Lafler v. Cooper, 566 U.S. 156, 162 (2012) (internal quotation marks omitted); Merzbacher v. Shearin, 706 F.3d 356, 363 (4th Cir. 2013). As a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Frye, 566 U.S. at 145. To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel, as well as a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it. Id. at 147. It is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Id.

         Strickland also applies in the context of appellate representation. To show prejudice in such cases, a petitioner must show a “reasonable probability ... he would have prevailed on his appeal” but for his counsel's unreasonable failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285- 86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) (“The test for prejudice under Strickland is not whether petitioners would likely ...

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