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United States v. Sarad

United States District Court, E.D. California

November 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW SARAD, Defendant.

          ORDER

         Defendant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence based on 28 U.S.C. § 2255, along with a motion to grant bail. Plaintiff opposes both motions. For the reasons discussed in this order both motions are DENIED.

          I. BACKGROUND

         On August 6, 2014, in accordance with a plea agreement reached with the government, defendant entered a plea of guilty to one count of securities fraud in violation of 15 U.S.C. §§ 77q(a) and 77x. ECF Nos. 58, 61. Plaintiff at the time was represented by attorney Joseph Wiseman. Id. at 61. Sentencing was initially set for November 19, 2014, id., but was continued several times between November 19, 2014 and January 5, 2015. See ECF Nos. 66, 67, 74, 75. On February 18, 2015, defendant submitted a motion to terminate counsel. ECF No. 77.

         On February 19, 2015, the court ordered that motion filed under seal and the sentencing hearing then set for February 25, 2015 was converted to a status conference. Id.

         On February 25, 2015, the court appointed a second defense counsel, attorney Donald Heller, “for the limited purpose of providing the defendant with a second opinion.” ECF No. 80. Sentencing was continued to April 15, 2015, then to June 3, 2015, then to July 22, 2015. ECF Nos. 80, 81, 84. On April 15, 2015, Mr. Heller was relieved as second opinion counsel for defendant. ECF No. 81. On July 9, 2015, Mr. Wiseman moved to withdraw as counsel for defendant. ECF No. 86. On July 22, 2015, the court granted Mr. Wiseman's motion to withdraw and appointed standby counsel, attorney Bruce Locke, initially for a one week period. ECF No. 88. Defendant informed the court that he wanted to move to withdraw his plea and to request an evidentiary hearing. Id.

         On July 29, 2015, the court appointed Mr. Locke to represent defendant and directed the parties to meet and confer concerning a dispute between the parties concerning defendant's mens rea. ECF Nos. 92, 97. On August 21, 2015, the parties filed a “Stipulation for Sentencing.” ECF No. 97. The stipulation provided:

The defendant, Matthew Sarad, by and through his undersigned attorney, and the United States, by and through its undersigned attorney, hereby stipulate to the following facts so as to resolve an issue that has been in contention in this sentencing proceeding:
The defendant paid real scientists to perform real research, but from the beginning he made a series of misrepresentations to cause investors to part with money, as outlined in the plea bargain, in violation of 15 U.S.C. §§ 77q(a) and 77x. The plea bargain mental state discusses and includes the standard of reckless or willful. The defendant believes that absent a trial the lower mental state is to be presumed, but the government disagrees.

ECF No. 97 at 1.[1]

         On August 26, 2015, defendant was sentenced to forty-eight months in prison. ECF Nos. 100, 101, 102. The sentence reflected a downward variance from the Guideline range of 60 months, the statutory maximum. ECF No. 102. Defendant filed his § 2255 motion on December 28, 2015. ECF No. 115. He began serving his sentence on January 4, 2016, and his motion to grant bail, prepared on January 4, 2016, was filed on January 6, 2016. ECF No. 122.

         II. DEFENDANT'S § 2255 MOTION

          A. Defendant's Contentions

         Defendant claims two errors: (1) his sentence is “illegal” and he received constitutionally ineffective assistance of counsel at sentencing; and (2) the trial court erred in considering at sentencing examples of mens rea offered by the government. ECF No. 115-1 at 14. Both claims arise from defendant's contention that the plea deal he agreed to should have been clarified to limit his mens rea to recklessness, which would have entitled him to a “minimal sentence, ” but that the plea agreement presented to the court did not “contain the defendant's clarifications.” Id. at 20-21. Defendant asserts the presentence report presented to the court described “defendant's actions as ‘deliberate and malicious' rather than simply ‘reckless.'” Id. at 22.

         Apparently referring to his February 2015 motion to end Mr. Wiseman's representation, defendant asserts that his motion to terminate counsel explained that “he had not knowingly signed the plea deal” and had taken “issue with the government's characterization of crimes” beyond what was contained in the plea agreement. Id. He also requested that “his statement of elocution (sic) [be] submitted to the court to help make his point on mens rea.” Id. Defendant states he also moved to withdraw his guilty plea because of the dispute over his mens rea. Id. at 24-25. Ultimately, the parties filed the stipulation described above. Defendant contends 15 U.S.C. § 77(x) requires a finding of a willful violation of 15 U.S.C. § 77q(a) to support the penalty of incarceration, and he argues the court erred by sentencing him without resolving the dispute over which mens rea standard, reckless or willful, applied. Id. at 27, 32. Defendant also contends the court erred in accepting arguments from the government for application of the willful mens rea standard, while disregarding defendant's “statement of elocution (sic).” Id. at 32. He also contends Mr. Wiseman “was generally ineffective during the sentencing phase” for the reasons cited in the § 2255 motion. Id. at 34.

         B. Government's Response

         In opposition to the motion, the government first contends that defendant's sentence could have been properly based on either reckless or knowing conduct and is therefore not illegal. ECF No. 128 at 14. Second, the government contends defendant pleaded guilty to conduct that “went well beyond recklessness” and showed that he “knowingly made misrepresentations of material fact to investors to secure their funds.” Id. at 16. Third, the government contends defendant was not misled about whether the conduct he admitted could result in prison time. Id. at 19. Fourth, the government contends it did not engage in misconduct either in the preparation and presentation of the plea agreement or at sentencing. Id. at 20. Finally, the government contends defendant received effective assistance from Mr. Wiseman and that defendant has not shown he suffered any cognizable prejudice as a result of Mr. Wiseman's performance. Id. at 22-24.

         C. Analysis

         1. Ineffective Assistance of Counsel

         Defendant claims he received constitutionally ineffective assistance of counsel from Mr. Wiseman “during the sentencing phase” and that Mr. Locke “probably erred in not requiring that the unsigned plea deal be remedied.” ECF No. 115-1 at 34.

         The federal law on claims of attorney ineffectiveness is clear:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688.

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments supported the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

Id. at 690-91. The court must presume that counsel acted effectively and evaluate strategic decisions to determine whether those decisions were “reasonable at the time.” Harrington v. Richter, 562 U.S. 86, 107 (2011); see also Strickland, 466 U.S. at 689 (internal citation omitted) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”). In Harrington, the Supreme Court emphasized the deference Strickland requires, noting that a court must presume that counsel acted effectively and reiterating that “[t]he question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms, ' not whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690).

         It also is defendant's burden to establish prejudice: “The defendant must show that there is 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.” Strickland, 466 U.S. at 694. “Failure to satisfy either prong of the Strickland test obviates the need to consider the other.” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002); see also Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (“[It] is unnecessary to consider the prejudice prong of Strickland if the petitioner cannot even establish incompetence under the first prong.”).

         The gravamen of defendant's claim appears to arise from contentions that, distilled to their essence, are as follows: at the time he entered his guilty plea defendant believed he was pleading guilty only to “reckless” misconduct and, therefore, that he could not be sentenced to prison. Although it is not entirely clear, it appears defendant's claim is that Mr. Wiseman, his attorney at the time he entered his plea, misled him about the content and consequences of the plea agreement and pressured him into pleading guilty, which defendant agreed to do because he thought he would avoid a prison sentence.

         This claim is without merit. Defendant has presented no evidence that Mr. Wiseman advised him that pleading guilty only to “recklessness” would guarantee defendant would avoid a prison sentence. While defendant signed the form § 2255 motion he filed with his motion under penalty of perjury, see ECF No. 115-1 at 1, 12, he did not similarly verify the attachment to that form, which he denominated “Amended Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255.” See ECF No. 115-1 at 13, 36. The attachment contains all of the allegations that defendant relies on to support his motion. Under appropriate circumstances, a verified pleading “may be treated as an affidavit to the extent that [it] is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify.” Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985) (citing Runnels v. Rosendale, 499 F.2d 733, 734 n.1 (9th Cir. 1974)). Even if the court were to construe the attachment as an affidavit, the document contains nothing that qualifies as evidence that counsel advised defendant he would not face a prison sentence if he pleaded guilty. The only allegations concerning counsel's advice about possible penalty are as follows:

The defendant had trouble pleading guilty. The court stated that it noted hesitancy and asked the defendant to confer with counsel outside of chambers. The defendant left and told counsel he couldn't plead because he was innocent and the factual allegations were inaccurate.
Defendant was then told by counsel that this plea was the federal equivalent of “criminal negligence” and that the recklessly concession materially justified a minimal sentence. He reminded the defendant that the factual basis should be viewed through the lens of recklessly, and so Mr. Sarad returned to the courtroom and made a ...

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