FINDINGS AND RECOMMENDATIONS
Movant is a former federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Movant seeks post-conviction relief on the grounds that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the court will recommend that the motion be denied.
In 2001, movant was charged in a four-count superseding indictment with one count of mail fraud and three counts of credit card fraud. After a jury trial, movant was convicted on all counts. On April 23, 2002, the district court sentenced movant to thirty-six months imprisonment on each count, to be served concurrently, and ordered him to pay restitution. Movant was also sentenced to a three year term of supervised release.
Movant filed a timely appeal raising several issues, including a claim of ineffective assistance of trial counsel. On September 22, 2003, the Ninth Circuit Court of Appeals affirmed his convictions but declined to address his claim of ineffective assistance of counsel, noting that the record on appeal was insufficient to permit full review of that claim. (Memorandum Opinion (docket # 129) at 5-6.) The instant motion was filed on August 27, 2004, seeking relief pursuant to 28 U.S.C. § 2255.
Movant was released from prison on November 17, 2003. (Government's Opposition to § 2255 Motion (Opp'n) at 3.) His supervised release term expired on November 16, 2006. (Report of Offender Non-Compliance (docket # 139) at 2.)
II. Factual Background*fn2
In 2000, Ubah, a Sacramento area resident, was employed as an accounting officer in Sacramento by the California Department of Transportation ("CALTRANS"). R.T. at 592:1-17. In June 2000, Ubah caused a change of address notice to appear in the CALTRANS accounting department providing a new address for Western Pacific Specialties ("WestPac"), a former Arcata, California CALTRANS vendor that had ceased operating as a business around July 1997. R.T. at 250:7-23, 623:6-624:5; Ex. 42. The notice listed 2718 SE Kelley #235, Portland, Oregon, 97201, as Westpac's new business address. R.T. at 624:2-5; Ex. 42. Also around that time, Ubah caused a "vendor Data Record" to be submitted to the CALTRANS accounting department identifying "James McKenney" as WestPac's office manager and reflecting the Portland address. R.T. at 625:18-626:11; Ex. 51.
In Spring 2000, Ubah caused what purported to be a WestPac invoice, dated March 15, 2000, in the amount of $250,000 to be submitted to the CALTRANS accounting department for payment. R.T. at 630:10-13; Ex. 28. The invoice reflected WestPac's former contract number and purported to bill CALTRANS for work performed at a 120-gallon hazardous materials spill in Southern California in January 2000. R.T. at 627:17-18; Ex. 28. The invoice bore the words "Approved" and an illegible signature. Ex. 28.
In June 2000, the accounting department processed the invoice for payment with "spill number" 222067HSPILL. R.T. at 630:10-631:23. The "spill number" is a unique identifier generated by CALTRANS field personnel to designate a particular highway spill incident. R.T. at 559:8-20.
Spill number 222067HSPILL referred to a highway hazardous material spill in Southern California in October 1999 to which Ecology Control Industries ("ECI") had responded and for which ECI billed CALTRANS. R.T. at 563:1-654:15; Ex. 44. ECI performed work for CALTRANS under the same master contract as WestPac. Ex. 28, 44. The ECI invoice was approved by the appropriate CALTRANS hazardous materials manager and processed in the CALTRANS accounting department by Ubah.
R.T. at 564:13-15, 617:9-13; Ex. 44. WestPac, however, did not respond to this hazardous material spill. R.T. at 565:20-22, 568:2-10. The approval signature on the WestPac invoice does not belong to either of the two hazardous materials managers authorized to approve invoices in that geographic area. R.T. at 564:18-565:1. The hazmat manager that approved the ECI invoice for spill number 222067HSPILL had no memory of the spill identified in the WestPac invoice and estimated that a 120-gallon spill would have resulted in a bill as low as $5,000 and as high as $25,000. R.T. at 570:2-12. A spill resulting in a cleanup bill of $250,000 likely would have involved a gasoline tanker or similarly large bulk liquid carrier holding 4,000 to 5,000 gallons. R.T. at 570:13-20. The hazmat manager could not recall such a spill on Interstate 5 in January 2000. R.T. at 570:21-571:9.
The fraudulent WestPac invoice, accompanied by the legitimate ECI invoice spill number, was processed by the CALTRANS accounting department in June 2000 and caused the State of California Controller's Office, on July 6, 2000, to issue a check in the amount of $250,000 made payable to "Western Pacific Specialtes [sic] Inc." R.T. at 432:9-10, 435:16-436:1; Ex. 35. The check was mailed to 2718 S.E. Kelly #235, Portland, Oregon, and deposited by "James McKenney" into a U.S. Bank checking account on July 22, 2000. R.T. at 365:11-13; Ex. 34.*fn3 On June 17, 2000, an individual identifying himself as James McKenney, sole proprietor of Western Pacific Specialties, had opened a checking account at U.S. Bank in Portland. R.T. at 354:6-16; Ex. 110. At that time, McKenney provided a nonexistent Portland address. R.T. at 794:18-20. On July 8, 2000, an individual identifying himself as James McKenney, sole proprietor of Western Pacific Specialties, using a fraudulent California driver's license, signed a second signature card for the U.S. Bank account changing his address to 2718 SE Kelly #235, Portland. R.T. at 354:24-355:8, 438:6-439:2; Ex. 31. This address corresponded to a private post office box. R.T. at 795:16-20. Within three weeks of depositing the $250,000 check into the U.S. Bank account, "McKenney" had withdrawn over $33,000, and he had initiated a wire transfer of $140,000 to KNC Ventures. R.T. at 265:23-266:4; Ex. 29. "McKenney" attempted a second wire transfer on August 10, 2000, but an alert U.S. Bank employee recognized that McKenney's California driver's license was fraudulent and refused to authorize the transaction. R.T. at 303:11-21, 304:5-15, 309:8-11, 313:11-314:4.*fn4 The $140,000 wire transfer was credited to the account of KNC Ventures at Diamond Bank, Lagos, Nigeria, on August 15, 2000.
R.T. at 701:6-11. The sole signatory to the account was Ngozi Kamalu, Ubah's sister-in-law. R.T. at 697:21-22, 716:23-717:6, 721:23-722:2. Thereafter, Ubah's brother-in-law, C.U. Kamalu, made three cash withdrawals totaling $50,000. R.T. at 701:23-702:1, 703:24, 704:4; Ex. 115. On October 23, 2000, C.U. Kamalu transferred $88,600 from the KNC Ventures account controlled by his sister, Ngozi Kamalu, to his own account where the funds were converted into Naira, Nigeria's national currency. R.T. at 704:16-705:3; Ex. 115. C.U. Kamalu than withdrew 283,520 naira in cash, leaving 10,100,400 naira in the account. R.T. at 707:1-708:11; Ex. 116. The next day, C.U. Kamalu deposited additional funds into the account, and on October 26, he transferred 11,500,000 naira (approximately $97,000 US) into a fixed deposit account. R.T. 708:20-709:10; Ex. 116. On October 26, 2000, Diamond Bank issued a certificate of deposit to C.U. Kamalu documenting the 11,500,000 naira investment. R.T. at 709:16-710:5; Ex. 64.
When the fixed deposit account was liquidated on December 21, 2000, 11,677,093.61 naira (approximately $97,309 US) was withdrawn in the form of a cashier's check made payable to "Mr. C.O. Uba." R.T. at 713:22-714:17; Ex. 116. Ubah was in Nigeria from December 4, 2000, through January 20, 2001. R.T. at 853:1-13.
Federal law enforcement agents executed a search warrant at Ubah's residence in February 2000 and found a piece of paper in Ubah's bedroom on which was written the address 2718 Southwest Kelly, Number 135, Portland, Oregon, 97201, the same address provided by James McKenney to CALTRANS and U.S. Bank with one error: the post office box number 235, not 135. R.T. at 824:15-825:5; Ex. 82. In addition, agents found handwritten notes corresponding to the three withdrawals from the C.U. Kamalu Diamond Bank account and exchange rate calculations for the $88,600 US originally deposited into the fixed deposit account.
Ex. 99, 100. Agents also found stacks of Nigerian currency banded with Diamond Bank wrappers. R.T. at 880:9-881:22; Ex. 98. During the search, agents also found evidence indicating that Ubah, during his visit to Nigeria, had spent considerable sums of money on a home he was building in Nigeria. R.T. at 858:8-13, 869:7-10, Ex. 89-94. (Ubah described his home as a "palace" to his former girlfriend, Maureen Hunter. R.T. at 165:15-23.)
2. Count Two: Credit Card Fraud
During the execution of the search warrant at Ubah's residence, agents also discovered that Ubah had been engaged in credit card fraud using the identities of innocent individuals. Agents recovered a May 3, 1999, invoice from the Great Valley Chrysler Plymouth Jeep dealership in Sacramento for a purchase totaling $950.04. The invoice reflected the purchase of two absorbers for $33.50 each, a manifold for $215, and a "power uni" for $265, and other items. R.T. at 848:11-850:22; Ex. 22. Agents also recovered from Ubah's residence a handwritten list with the words "Plymouth Jeep," a telephone number, and an address at the top. The list is comprised of a number of car parts and prices, three with check marks beside them: "Manifold - $215.00," "Shocks -- (b) Rear -- $33.50," and "Brakes: -- (a) Buster -- $265.00." Ex. 76. The telephone number and address correspond to the telephone number for Great Valley as reflected on the invoice. Ex. 22, 76. This purchase and various other purchases and cash advances are reflected on a First USA Bank*fn5 Visa credit card account fraudulently obtained in April 1999 in the name of Gary L. Wilson, 1185 Second Street, G1-103, Brentwood, California. Gary L. Wilson, who maintained his principle residence in Los Angeles, had not rented a private post office box in Brentwood, had not authorized anyone to do so on his behalf, and had not caused First USA Bank to issue credit cards in his name. R.T. at 216:1-222:3. During the execution of a search warrant of Ubah's residence, agents found on a piece of paper handwritten notes with Wilson's correct name and correct social security number listed. R.T. at 846:12-847:6; Ex. 75. Other information, including address, birth year (the birth date was correct), employment, and mother's maiden name were incorrect, but corresponded to the information provided to First USA Bank. R.T. at 220:1-17. The toll-free telephone number for First USA Bank was also written on the piece of paper. Ex. 75.
The total loss to First USA Bank from fraud involving this credit card was $22,692.39. R.T. at 244:12-14.
3. Count Three: Credit Card Fraud
Agents identified a second First USA Bank credit card fraudulently obtained in the name of Gary L. Wilson during the investigation. The information provided to First USA Bank in the application for this card was the same as that provided in the application for the card charged in count two. Ex. 16, 18. Among the charges on this account is a May 28, 1999, cash withdrawal of $900 made at the Arden Fair Mall. Ex. 17. On the same day, at Arden Fair Mall, a cash withdrawal of $900 was made from the First USA Bank credit card charged in count two. Ex. 19.
The total loss to First USA Bank from fraud involving this credit card was $8,366.79. ...