United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's
pro se Motion to Seal Docket Document, (3:16-cv-189,
Doc. No. 115), in which he asks the Court to seal the
Court's August 8, 2018 Order denying his § 2255
Motion to Vacate, and have it removed from the online legal
research websites until he is released from prison.
is a “presumption under applicable common law and the
First Amendment that materials filed in this Court will be
filed unsealed.” LCvR 6.1(a); see Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
Cir. 1988) (First Amendment right to access to court
proceedings includes criminal and civil cases). However, a
court has authority to seal documents before it based upon
the court's inherent supervisory authority over its own
files and records. See Nixon v. Warner Commc'ns,
Inc., 435 U.S. 589, 598 (1978). The denial of access to
documents under the First Amendment must be necessitated by a
compelling government interest that is narrowly tailored to
serve that interest. See In re Washington Post Co.,
807 F.2d 383, 390 (4th Cir. 1986); In re
State-Record Co., Inc., 917 F.2d 124, 127
(4th Cir. 1990). Courts have noted safety concerns
as overriding interests that outweigh the presumption of
public access to judicial records. See Presley v.
Georgia, 558 U.S. 209 (2010). Before sealing judicial
records, a court must identify the interest that overrides
the public's right to an open court, and articulate
supporting findings specific enough that a reviewing court
can determine whether the order was properly entered. See
Press-Enterprise Co. v. Superior Ct. of Ca., 464 U.S.
501, 510 (1984); LCvR 6.1. When addressing motions to seal,
the Court must consider alternatives to sealing and specify
whether the sealing is temporary or permanent and also may
redact such orders in its discretion. LCvR 6.1.
seeks to seal the Order denying his § 2255 Motion to
Vacate because it alludes to confidential discussions that
occurred during the criminal case and asserts that their
disclosure could affect his safety. He also asks that the
Order be sealed in the Court's records and removed from
online legal research website LexisNexis until his release
from incarceration which is expected to be on May 10, 2034.
The Government filed a Response deferring to the Court's
determination on whether relief should be granted. (Doc. No.
Court finds that Petitioner's interest in his personal
safety overrides the public's interest in accessing the
Order denying § 2255 relief. However, sealing the Order
in its entirety is not the narrowest remedy that will address
Petitioner's concerns. Redaction will adequately address
Petitioner's concerns while retaining the public's
interest in accessing the non-confidential portions of the
Order. Therefore, the Clerk of Court will be instructed to
replace the August 8, 2018 Order with a redacted version
(attached to this Order) and will be directed to instruct
online legal research providers LexisNexis and Westlaw to
replace the Order with the redacted version on their
IS, THEREFORE, ORDERED that:
Motion to Seal Docket Document, (Doc. 115), is
However, the Clerk is instructed to REPLACE
docket entries 3:16-cv-189 (Doc. No. 104), and 3:12-cr-259
(Doc. No. 222), with the redacted document attached to this
IT IS FURTHER ORDERED that the Clerk of
Court is instructed to forward a copy of this Order to
LexisNexis at firstname.lastname@example.org, and Westlaw
at email@example.com with instructions to replace
the August 8, 2018 Order that currently appears at 2018 U.S.
Dist. LEXIS 133671 and 2018 WL 3763016, respectively, with
the redacted version of the document (attached) due to its
MATTER is before the Court on Petitioner's
Amended Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255, (Doc. No. 2), and numerous pending
motions, (Doc. Nos. 8, 12, 16, 20, 22, 36, 37, 38, 40, 41,
45, 47, 49, 53, 56, 57, 59, 62, 73, 79, 88, 96, 102). The
Government has filed a Response opposing relief. (Doc. No.
and co-defendant Warren Tonsing were indicted in a Costa
Rican telemarketing fraud conspiracy. The charges pertaining
to Petitioner are: Count (1), conspiracy to commit wire and
mail fraud; Counts (2)-(9), wire fraud; Count (10),
conspiracy to commit money laundering; and Counts (11)-(14),
international money laundering. (3:12-cr-259, Doc. No. 9).
Government presented evidence at trial that Petitioner and
several co-defendants operated a call center in Costa Rica
from which they made phone calls into the United States,
posing as representatives of the Federal Trade Commission,
Random House Publishing, and Lloyds of London. They presented
a “pitch” in which they told victims that they
had won large cash sweepstakes prizes but, in order to
collect their winnings, they must wire money into Costa Rica
to purchase insurance and pay fees. The evidence against
Petitioner included testimony from cooperating
co-conspirators Christopher Coble and Andrew Longhurst who
identified Petitioner as a call center “opener”
and “reloader” who defrauded victims under the
aliases Benjamin Walker and Robert Hayward. (3:12-cr-259,
Doc. No. 174 at 58-59, 219). A jury found Petitioner guilty
of all 14 Counts. (3:12-cr-259, Doc. No. 96).
Presentence Investigation Report (“PSR”) scored
the base offense level as seven for wire fraud, plus the
following enhancements: 18 levels for a loss amount greater
than $2, 500, 000 but less than $7, 000, 000; six levels for
more than 250 victims; two levels for misrepresenting that
the defendant and/or conspirators were acting on behalf of a
government agency; and two levels because a substantial part
of the fraudulent scheme was committed from outside the
United States. (3:12-cr-259, Doc. No. 118 at ¶ 28). Two
levels were added because Petitioner was convicted under 18
U.S.C. § 1956, and for vulnerable victims, and three
levels were added because Petitioner was a manager or
supervisor. (3:12-cr-259, Doc. No. 118 at ¶¶
29-31). This resulted in a total offense level of 42.
(3:12-cr-259, Doc. No. 118 at ¶ 36). Petitioner had a
criminal history score of four and two levels were added
because Petitioner committed the instant offense while under
a criminal justice sentence. (3:12-cr-259, Doc. No. 118 at
¶¶ 42, 43). The total criminal history score was
therefore six and Petitioner's criminal history category
was III. (3:12-cr-259, Doc. No. 118 at ¶ 44). The
resulting guideline range was 360 months to life in prison.
(3:12-cr-259, Doc. No. 118 at ¶ 80).
counsel filed objections arguing, inter alia, to the
PSR's calculation of the loss amount and number of
victims, arguing that the PSR relied on the
“spreadsheet analysis” prepared by Agent Eric
Kost was not reliable. (3:12-cr-259, Doc. No. 131). Counsel
also filed a Motion for Sentencing Departure/Variance for the
imposition of a sentence not greater than necessary to
achieve the purposes of sentencing and to avoid a sentencing
disparity from his co-defendants' 24-month sentences.
(3:12-cr-259, Doc. No. 134); see also (3:12-cr-259,
Doc. No. 138).
Court found that the loss amount was more than $1, 000, 000
and reduced the base offense level by two levels. This did
not change the advisory guideline imprisonment range. The
Court granted the defense motion to vary below the guidelines
and sentenced Petitioner to 300 months' imprisonment as
to Count (1) and 240 months as to Counts (2)-(14),
concurrent, followed by two years of supervised release, and
imposed restitution of $2, 419, 706.68. (3:12-cr-259, Doc.
No. 144); see (3:12-cr-259, Doc. No. 177).
argued on direct appeal that the Court erred in denying his
motion for judgment of acquittal because the money laundering
offenses merged with the wire fraud offenses, that the Court
was required to submit Petitioner's restitution amount
and facts underlying the application of the Sentencing
Guidelines to the jury, and that the Court procedurally erred
in applying several sentencing enhancements. The Fourth
Circuit Court of Appeals affirmed, finding that Petitioner
waived his merger argument by failing to assert it in a Rule
29 motion, that the Court was not required to submit the
facts underlying Petitioner's Guidelines calculation and
restitution amount to the jury, and that the Court did not
clearly err in calculating the loss amount, number of
victims, applying enhancements for vulnerable victims and a
supervisory role. United States v. Tonsing, 629
Fed.Appx. 464 (4th Cir. 2015). The United States
Supreme Court denied certiorari on March 28, 2016. Adkins
v. United States, 136 S.Ct. 1506 (2016).
filed a § 2255 Motion to Vacate on April 19, 2016, and
he filed the instant Amended § 2255 Motion to Vacate on
June 7, 2016. (Doc. Nos. 1, 2). He raises a number of claims
of substantive error and ineffective assistance of trial and
STANDARD OF REVIEW
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).
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.
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. Strickland, 466 U.S. at 697.
applies in the context of appellate representation. To show
prejudice, 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 prevail upon remand, but whether we would have likely
reversed and ordered a remand had the issue been raised on
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).
Illegal Arrest and Extradition
contends that the United States violated his constitutional
rights and the Extradition Treaty with Costa Rica by seizing
him in Costa Rica and extraditing him on June 25, 2012. He
claims that a Costa Rican court had issued a judicial
mandate barring his removal from Costa Rica and
that U.S. agents unlawful coordinated efforts to seize
Petitioner and remove him from Costa Rica on a national
holiday when government agencies were closed. The U.S. had a
duty to use procedures in place to request Petitioner's
extradition from Costa Rica and not seize and remove him
unlawfully. U.S. embassy personnel breached their duties by
seizing Petitioner and transferring him to U.S. Marshals
agents who unlawfully removed him from Costa Rica against his
will. Petitioner informed counsel about the Costa Rican
mandate and instructed counsel to challenge his seizure and
removal. None of his lawyers complied and told him to use his
argument as leverage in plea negotiations or to raise the
issue in a § 2255 petition.
Government asserts that Petitioner was deported from Costa
Rica, not extradited, and thus his repatriation to the United
States did not implicate the Extradition Treaty between Costa
Rica and the United States.
record supports the Government's representations.
Petitioner's arrest warrant indicates that he was
arrested in the underlying criminal case in Arizona on July
30, 2012. (3:12-cr-259, Doc. No. 5). The United States
District Court for the District of Arizona held a detention
hearing on August 6, 2012, case number
12-7399M. The Arizona District Court found in its
Order of Detention that “Defendant was actually
deported or removed by the Costa Rican Government because he
was not living lawfully in Costa Rica.” (2:12-mj-7399,
Doc. No. 10 at 4). Petitioner claimed that he was returning
to San Diego to turn himself in when he was arrested, which
the Arizona Court rejected as incredible and unsupported by
any evidence. (Id.).
present allegations about having been illegally seized by
U.S. agents in Costa Rica are rejected. Moreover, Petitioner
has failed to establish that any law violation occurred with
regards to his arrest and presence in the United States. This
claim is therefore denied.
Jurisdiction and Venue
appears to argue that the Court lacked jurisdiction and venue
to try him because he was illegally arrested in Costa Rica
and was brought to the United States against his will.
district courts of the United States “have original
jurisdiction, exclusive of the courts of the states, of all
offenses against the laws of the United States.” 18
U.S.C. § 3231 (2006). Physical presence in the United
States usually supplies the only necessary prerequisite for
personal jurisdiction in a federal criminal prosecution.
See United States v. Wilson, 721 F.2d 967, 972
(4thCir. 1983) (“It has long been the
general rule that a court's power to try a criminal
defendant is not impaired by the government's use of even
forcible abduction to bring the defendant within the
court's jurisdiction.”). The manner through which a
defendant found himself within the United States generally
does not affect the jurisdiction of the district court to
preside over his prosecution. See United States v.
Alvarez-Machain, 504 U.S. 655, 657 (1992) (district
court had jurisdiction over prosecution of Mexican national
who had been forcibly kidnapped and brought to the United
States where abduction did not violate extradition treaty
between United States and Mexico); United States v.
Porter, 909 F.2d 789, 791-92 (4th Cir.1990)
(district court had jurisdiction over defendants
involuntarily deported from the Philippines to the United
in a federal criminal prosecution lies in the district in
which the alleged crime was committed. Fed. R. Crim. P. 18;
U.S. Const. Art. III, § 2, Cl. 3; U.S. Const. Amend VI.
Wire fraud is properly tried in any district where a
payment-related wire communication was transmitted in
furtherance of the fraud scheme. See United States v.
Ebersole, 411 F.3d 517, 527 (4th Cir. 2005)
(addressing venue);18 U.S.C. § 3237(a) (general venue
statute). Conspiracy is a continuing offense so its
prosecution is proper in any district in which the offense
was begun, continued, or completed. 18 U.S.C. § 3237(a).
Money laundering offense can be brought in any district where
a prosecution for the underlying specified unlawful activity
could be brought. 18 U.S.C. § 1956(i)(1).
Government presented evidence that Petitioner engaged in the
charged offenses by phoning victims in the United States from
Costa Rica and instructing them to wire money to Costa Rica,
and many of the wiring transactions went through Charlotte.
(3:12-cr-259, Doc. No. 175 at 68). Petitioner's present
conclusory and unsupported claim that the Court lacked
jurisdiction and venue is refuted by the record and is
denied. See generally United States v. Dyess, 730
F.3d 354 (4th Cir. 2013) (vague and conclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the district
Withdrawal of Counsel
contends that the Court violated the Sixth Amendment by
providing Petitioner's “inquiry of counsel
letter” to the United States and for allowing the
Government to attend the hearing on the matter which should
have been conducted ex parte. (Doc. No. 2 at 18).
Petitioner claims that, immediately upon becoming
unrepresented, prosecutor Donley solicited
information/evidence from Petitioner. The United States
“subsequently took the fraudulent, contrary position
that it had not solicited information/evidence from Movant
and prejudicially introduced Government's Exhibit 50A
under such false pretenses.” (Doc. No. 2 at 18). The
jury counsel had been dismissed, the Court advised him not to
do so until a new attorney was representing him.
claim that his constitutional rights were violated with
regards to the pleadings and hearing on counsel's
withdrawal is lacking in any legal or factual basis and is
contends that the Court erred by (i) precluding Petitioner
from presenting the “Coble Interrogatories” at
trial, and (ii) ...