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United States v. Thompson

March 12, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
BRIAN K. THOMPSON, MOVANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Movant is a federal prisoner proceeding through counsel with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 filed March 19, 2008. Following a jury trial in 2003, movant was found guilty of two counts of mail fraud (18 U.S.C. § 1341) and two counts of obstruction of justice (18 U.S.C. § 1503). The jury did not reach verdicts on two other mail fraud counts and a count for conspiracy to launder a monetary instrument (18 U.S.C. 1956(h)). Following a second trial in 2004, movant was found guilty of those charges.

The instant motion raises one claim: ineffective assistance of counsel during the second trial. Respondent filed a response on November 19, 2008. Movant did not file a reply.

After carefully reviewing the record, the court recommends that the motion be denied.

II. Discussion

A. Factual Background

Attached to respondent's response as exhibit A is the Statement of Facts taken from the government's brief to the Ninth Circuit Court of Appeals. Because movant has not objected to this factual summary, the court adopts it for purposes of these findings and recommendations. Because the factual summary is lengthy (22 pages) the court will take judicial notice of it rather than repeat it here.

B. Legal Standard for Ineffective Assistance of Counsel

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. To this end, the petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id., 104 S.Ct. at 2066. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S.Ct. at 2065).

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id., 104 S.Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S.Ct. 1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S.Ct. 838, 506 U.S. 364 (1993)).

C. Analysis

Movant argues that trial counsel was ineffective for failing to object to the introduction of "certain documents" by the government that related to his prior conviction. Movant argues that by failing to object, counsel paved the way for the government to ask him under cross-examination specific questions about the documents, the effect of which was to permit the government to introduce impermissible evidence of movant's bad character and criminal propensities.

In the pending motion, movant does not identify the documents counsel failed to object to. In the response, respondent presumes that movant is referring to trial exhibits 20 (copies of two checks), 59 (letter to Michael Flood) and 61 (independent contractor agreement). Copies of these exhibits are attached to respondent's response as exhibit B. Because movant has not objected to respondent's identification of these three exhibits, the court will also presume that these are the documents he is referring to.

On direct examination, trial counsel questioned movant regarding his prior convictions for mail fraud involving the "Allstate scheme":

Q: Now, based on your being involved with Skillz, you know Nnamdi Le Blanc, is that correct?

A: Yes, I do.

Q: And he was one of your coaches. He testified earlier.

A: Nnamdi is actually related to my by marriage.

Q: He was in an automobile accident, I believe, sometime in 1999, is that correct?

A: I believe so.

Q: And he was off work?

A: Yes, he was.

Q: All right. He had employment elsewhere, however, did he not?

A: I believe he did, yes.

Q: And he filed a claim with Allstate. Do you know that?

A: Yes, I do.

Q: As a result of that claim, he and you agreed to represent to Allstate that he was working for you, isn't that true?

A: Yes, I did.

Q: And you in fact represented that he was earning $19 an hour and he had lost wages?

A: Correct.

Q: And he filed a claim then indicating that he had lost wages, and you supported that with documentation indicating hours that ...


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