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United States v. Whoolery

United States District Court, W.D. Pennsylvania

January 18, 2017

UNITED STATES OF AMERICA,
v.
LEWIS WHOOLERY, Civil No. 15-1168

          OPINION

          Joy Flowers Conti Chief United States District Judge

         Lewis Whoolery (“Whoolery”) was convicted of wire fraud conspiracy in January 2013, after an eight-day trial in this court, and was sentenced to serve a 120-month sentence of incarceration and to pay almost $2 million in restitution. (ECF Nos. 152, 282.) He is incarcerated at FCI Loretta in Pennsylvania. Pending before the court are four motions filed by Whoolery, pro se. The motions ask this court to enter an indicative order, pursuant to Federal Rule of Civil Procedure 62.1, stating that this court would vacate Whoolery's judgment, pursuant to Federal Rule of Civil Procedure 60(b), if the Court of Appeals for the Third Circuit remanded his case. (ECF Nos. 419-20.) In connection with those motions, Whoolery asks that he be immediately released on bond and that counsel be appointed to assist him with adjudicating the merits of his claims. (ECF Nos. 421, 427.)

         This case is presently within the jurisdiction of the Court of Appeals for the Third Circuit due to Whoolery's appeal of this court's order denying the motion to vacate sentence that he filed pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion to Vacate”), and orders denying various motions related to that § 2255 Motion to Vacate. (ECF Nos. 410-11, 413-18.) Whoolery's appeals are pending at Docket Numbers 16-3243 and 16-3483 in the court of appeals, and were consolidated by order dated September 19, 2016. Numerous motions filed by Whoolery are under advisement in the appellate court, such as a motion for a certificate of appealability, a motion to remand, and a motion asking the appellate court to take judicial notice of the proceedings in this court. All these motions were referred to a single panel of the appellate court for adjudication.

         I. Subject-Matter Jurisdiction

         In general, the filing of a notice of appeal “is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982). Although there are exceptions, set forth in both case law and rule, none of them apply to Whoolery's Rule 60(b) motion to vacate judgment. See In re Merck & Co. Sec. Litig., 432 F.3d 261 (3d Cir. 2005) (noting that a district court retains the power to “review attorney's fees applications, order the filing of bonds, modify or grant injunctions, issue orders regarding the record on appeal, and vacate bail bonds and order arrests” while a case is on appeal); Bensalem Twp. v. Int'l Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (holding that the filing of a premature notice of appeal does not divest a district court of jurisdiction); Venen v. Sweet, 758 F.3d 117, 121 (3d Cir. 1985) (holding that the filing of a notice of appeal from an unappealable order does not divest a district court of jurisdiction); Fed. R. App. P. 4(a)(4) (stating that if a party timely files a motion for judgment under Rule 50(b), to amend or make additional factual findings under Rule 52(b), for attorney's fees under Rule 54 (if the district court has extended the time to appeal under Rule 58), or to alter or amend the judgment under Rule 59, the time for filing an appeal runs from the entry of the order disposing of the last such motion and any existing notice of appeal becomes effective only when the last of those motions is decided).

         Whoolery's Rule 60(b) motion does not fall within any exception and, therefore, the general rule that the filing of a notice of appeal divests a district court of jurisdiction to consider motions filed in the district court after a notice of appeal has been filed applies in this case. Venen, 758 F.2d at 123. By virtue of the appeals pending at the Court of Appeals for the Third Circuit, this court does not have subject-matter jurisdiction over Whoolery's Rule 60(b) motion, which seeks relief from his 2013 criminal judgment. (ECF No. 420.) That motion, and the related motions seeking bond and the appointment of counsel, ECF Nos. 421, 427, will be denied on this basis.

         II. Indicative Ruling

         Whoolery essentially concedes that this court lacks jurisdiction to adjudicate his Rule 60(b) motion on its merits due to the pendency of his appeals. Contemporaneously with his Rule 60(b) motion to vacate, Whoolery filed a motion seeing an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1. (ECF Nos. 419-20.) Federal Rule of Civil Procedure 62.1 allows a district court to issue an indicative ruling on a motion for relief from judgment when ruling on such a motion is barred by a pending appeal. Fed.R.Civ.P. 62.1. A district court can dispose of a motion pursuant to this rule in one of four ways: (1) it may defer considering the motion; (2) it may deny the motion; (3) it may state that it would grant the motion if the court of appeals remands for that purpose; or (4) it may state that the motion raises a substantial issue. Id. When the district court indicates that it would grant the motion for relief, the court of appeals may remand at its discretion. Fed. R. App. P. 12.1(b).

         Whoolery's motion for an indicative ruling pursuant to Rule 62.1 will be denied because, for the reasons that follow, Whoolery's Rule 60(b) motion to vacate would be denied if the appellate court remanded this case. Remand is also inappropriate because Whoolery's Rule 60(b) motion does not raise any substantial issues. Whoolery's motion is based largely upon the following premise: the Assistant United States Attorney who prosecuted him allegedly conceded at the change of plea hearing of codefendant Jason Sheraw (“Sheraw”) that the government would be unable to prove at trial that Sheraw and Whoolery entered into an agreement to allow a third codefendant, Kimberly Baldwin (“Baldwin”), to submit fraudulent real estate appraisals using Sheraw's name and licensing credentials. From this single premise, Whoolery argues that: (1) the government a) withheld exculpatory and impeachment material about the circumstances surrounding Sheraw's involvement in the charged wire fraud conspiracy and b) engaged in prosecutorial misconduct by offering evidence at Whoolery's trial that Sheraw and Whoolery had an agreement about Baldwin's use of Sheraw's license; and (2) Whoolery's own trial attorney was ineffective because he failed to a) stop the government attorney's misconduct, b) call Sheraw to testify on behalf of the defense, and c) impeach the government's witnesses with Sheraw's denial, at his guilty plea, of having entered into an agreement with Whoolery about Baldwin's use of his credentials. (ECF No. 420.)

         There are four fundamental, and independently dispositive, defects in Whoolery's argument. First, the government attorney never conceded at Sheraw's change of plea hearing that the government would have been unable to prove at trial that Sheraw entered into a criminal agreement with Whoolery. Second, Sheraw pleaded guilty to engaging in the same wire fraud conspiracy of which Whoolery was convicted. Third, Whoolery already presented evidence with his § 2255 Motion to Vacate that Sheraw disavowed entering into a criminal agreement with Whoolery, but the court found that the evidence was insufficient to overcome the overwhelming “substantial and consistent trial testimony that established Whoolery's actual knowledge of the [wire fraud] conspiracy.” (ECF No. 410 at 50-51.) Fourth, the factual and legal basis of Sheraw's guilty plea in January 2013 is not new, or newly discovered, evidence, making Whoolery's motion procedurally improper in any event.

         A. Lack of Government Concession

         Whoolery was charged with one count of conspiracy to commit wire fraud, specifically, a mortgage fraud scheme pursuant to which, among other things, unlicensed individuals prepared real estate appraisals that were fabricated or falsified in various ways. (ECF No. 46.) Sheraw was charged with the same crime, in the same indictment, and was scheduled to be tried jointly with Whoolery in January 2013. (Id.) The day before jury selection commenced, Sheraw pleaded guilty to the charged wire fraud conspiracy. (United States v. Sheraw, Crim. No. 10-144-03 (W.D. Pa.), ECF No. 143.) Whoolery persisted in his not guilty plea and went to trial. The jury found that Whoolery was guilty of the same wire fraud conspiracy to which Sheraw pleaded guilty. (ECF No. 152.) Whoolery contends that his conviction and sentence must be vacated because the government accepted Sheraw's version of the facts at his change of plea hearing. This contention is contradicted by the record.

         Sheraw's change of plea hearing was held in open court on January 14, 2013. (United States v. Sheraw, Crim. No. 10-144-03 (W.D. Pa.), ECF No. 412 at 2 (ln.1).) At that hearing, the government attorney set forth the elements of the charge of conspiracy to commit wire fraud, which included, among other things, that there was an agreement or understanding to violate federal law and defendant deliberately became part of the agreement or understanding to violate federal law and knowingly and willfully participated in the scheme to defraud. (Id. at 15.) The government attorney summarized the evidence that the government would produce at Sheraw's trial, which included that Sheraw knew that Balwdin was preparing fraudulent real estate appraisals using Sheraw's name and licensing credentials and that Sheraw was receiving cash payments from Whoolery in exchange for allowing Baldwin to use Sheraw's licensing credentials. (Id. at 16-20.)

         Following the government's recitations, Sheraw's counsel stated that Sheraw admitted that the government could establish the elements of the charged conspiracy to commit wire fraud, agreed that there was a factual basis for the guilty plea, and accepted responsibility for the wire fraud conspiracy. (Id. at 20.) Sheraw's counsel, however, disputed that there was any “direct evidence that [Sheraw] knew” that Baldwin was using his licensing credentials to submit fraudulent appraisals. (Id. at 20-21.) Defense counsel stated that the evidence would prove only that Sheraw should have known, and consciously disregarded, that Baldwin was engaged in such misconduct, subjecting Sheraw to criminal liability under a willful blindness theory. (Id. at 21.) After Sheraw's counsel reiterated that Sheraw accepted responsibility for the wire fraud ...


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