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United States v. Davis

United States District Court, E.D. Pennsylvania

March 27, 2017

UNITED STATES OF AMERICA
v.
LEE DAVIS, JR. Civil No. 14-2091

          MEMORANDUM

          JUAN R. SÁNCHEZ, J.

         Defendant Lee Davis, Jr. has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, asserting he was improperly sentenced in three separate indictments and claims of ineffective assistance of trial counsel. Because Davis's claim concerning his indictments is procedurally defaulted and meritless, and because the record conclusively shows his ineffective assistance of counsel claims are meritless, Davis's motion will be denied without an evidentiary hearing.

         FACTS

         In 2009, Davis, an insurance broker, was charged in a separate criminal action than the instant case with mail and wire fraud for the theft of more than $1 million in insurance premiums from his clients between 2003 and 2008. See United States v. Davis, No. 09-343, 2012 WL 895918 (E.D. Mar. 16, 2012). While awaiting trial in that case, in March 2011, Davis was charged in the instant case, assigned to this Court, for fraudulently obtaining money from a trust established for his daughter's college education by making false representations and submitting false documents to the trust company. See United States v. Davis, No. 11-123. A year later, Davis was charged in a third criminal case for stealing a $175, 000.00 fee and unsuccessfully attempting to obtain $74, 000.00 in premiums for a fraudulent performance bond he created. See United States v. Davis, No. 12-118.

         In June 2012, a jury found Davis guilty of all charges of mail and wire fraud in the instant action before this Court. See Snt'g Hr'g Tr. 2, Sept. 26, 2012. This Court subsequently sentenced Davis to 30 months' imprisonment, and assigned a forfeiture amount of $60, 000.00. See Id. at 42; Forfeiture Money Judgment, ECF No. 82. On July 9 and July 17, 2012, David plead guilty, pursuant to a plea agreement, to one count of mail fraud in Criminal No. 12-118 and one count of wire fraud in Criminal No. 09-343. Those two cases were consolidated for sentencing, and the court sentenced Davis to 77 months' imprisonment. See United States v. Davis, Nos. 09-343, 12-118, Judgment, Nov. 30, 2012.

         On April 10, 2014, Davis filed the instant motion, and subsequently supplemented the motion on November 6, 2014.

         DISCUSSION

         Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to vacate, set aside, or correct his sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law[ ] or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Davis brings this § 2255 motion pro se, and his pleadings are thus construed liberally. See United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). Even so, Davis must nevertheless plead “facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 521 (1972).

         In evaluating a § 2255 motion, the court “must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record” and “must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.” Gov't of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Although the threshold for obtaining an evidentiary hearing on a § 2255 motion is “reasonably low, ” see United States v. Booth, 432 F.3d 542, 546 (citation omitted), “vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court, ” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).

         Davis first asserts he was improperly sentenced in three separate indictments rather than in one indictment, resulting in a substantially greater sentence. This claim is procedurally defaulted, as Davis failed to raise it on appeal. See Hodge v. United States, 554 F.3d 372, 378-79 (3d Cir. 2009) (“Because collateral review under § 2255 is not a substitute for direct review, a movant ordinarily may only raise claims in a 2255 motion that he raised on direct review.”); see also Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) (noting federal courts may raise the issue of procedural default sua sponte). Davis has failed to allege cause and prejudice or a fundamental miscarriage of justice to excuse his default. See Sweger, 294 F.3d at 520 (“[F]ederal courts may not consider the merits of [procedurally defaulted] claims unless the applicant establishes cause and prejudice or a fundamental miscarriage of justice to excuse his or her default.” (internal quotation marks and citations omitted)).

         In any event, this claim is meritless. The Government first indicted Davis in 2009 for a fraudulent scheme that took place between June 2003 and January 2009, during which time Lee “devised and intended to devise a scheme to defraud and to obtain money and property by” accepting “money on behalf of clients for performance surety bonds and worker's compensation insurance, ke[eping] the premiums for himself, and . . . not purchas[ing] the bonds or insurance for the clients.” Govt's Resp., Ex. 1, Crim. No. 09-343 Indictment ¶¶ 3-4. In March 2011, while Davis awaited trial in case No. 09-343, the Government learned of his scheme to defraud the trust company managing his daughter's trust account that took place between September 2009 and November 2010. The Government charged Davis with devising a scheme to defraud by submitting false and fraudulent invoices and unnegotiated checks to the trust company, and falsely telling the company he had expended such money for the education, welfare, and support of his daughter. Id., Ex. 2, Crim. No. 11-123 Indictment ¶¶ 3-4. A year later, in March 2012, Davis was indicted for a third scheme, which took place between December 2011 and March 2012, involving a fraudulent surety bond issued to a contractor on behalf of his company. See id., Ex. 3, Crim. No. 12-118 Indictment ¶¶ 2-4. The three indictments charged Davis with three separate and distinct fraudulent schemes, all occurring at three separate and distinct times. Thus, not only was the Government not required to file one indictment, see United States v. Mallah, 503 F.2d 971, 987 (2d Cir. 1974) (holding in the case of drug conspiracies, separate conspiracies that become known at different times may be prosecuted separately if the “criminal agreements are indeed separate and distinct, ” and “[i]n any case, separate indictments on substantive counts are always available, without double jeopardy problems”), but it arguably would have been improper to do so, see United States v. Deloera-Escalera, 636 F.App'x 977, 979 (10th Cir. 2016) (“A single indictment . . . may charge multiple offenses only if those offenses ‘are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.'” (quoting Fed.R.Civ.P. 8(a))). Because Davis was properly charged by three indictments for his three separate and distinct crimes, and was sentenced accordingly, the Court denies his motion as to this claim.

         Davis also brings three claims of ineffectiveness assistance of counsel, asserting counsel failed to (1) fully investigate or introduce into evidence information concerning all of the expenses Davis paid on behalf of his daughter, depriving him of a fair trial and sentencing; (2) object to a question posed to a witness at trial; and (3) strike a biased juror from the prospective jury panel. A defendant who seeks relief based on a claim of ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Davis must show (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Id. at 687. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and to be considered deficient, counsel's performance must have fallen below “an objective standard of reasonableness” when measured against “professional norms.” Id. at 688-89. Failing to raise meritless claims does not render counsel ineffective. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). To demonstrate prejudice, “[t]he 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.” Strickland, 466 U.S. at 694.

         Davis first argues his two defense attorneys were ineffective for failing to present evidence of all expenses he paid on behalf of his daughter while she was attending college, which would have reduced the “loss amount” used to calculate his sentence.

         Contrary to Davis's assertion, defense counsel presented evidence at trial that Davis paid for a variety of his daughter's expenses, including seven or eight flights between Philadelphia and Los Angeles, health insurance, medication, parking, gas, cell phone bills, clothing, food, rent, and the shipment and repair of his daughter's car, as well as money wired to his daughter's bank account. See Trial Tr. 38-40, June 28, 2012. Although Davis has provided documents representing expenses he argues should have been presented at trial, he fails to identify which expenses defense counsel omitted or to provide an alternative calculation showing the total loss attributable to him. In fact, many of those expenses appear to have been presented to ...


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