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Perry v. United States

United States District Court, E.D. Missouri, Eastern Division

February 13, 2017

JOHN K. PERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner John K. Perry's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On February 28, 2012, a jury convicted Petitioner of four counts of willful income tax evasion in violation of 26 U.S.C. § 7201, for failing to report and then concealing kickbacks received from vendors of Ford Motor Company during each of the 2001 through 2004 tax years. This Court sentenced Petitioner to 51 months in prison. On May 6, 2013, the Eighth Circuit Court of Appeals affirmed the conviction and sentence. United States v. Perry, 714 F.3d 570 (8th Cir. 2013).

         Petitioner now moves to set aside his conviction and sentence, asserting four grounds of ineffective assistance of defense counsel[1] and one ground of prosecutorial misconduct. Petitioner claims that defense counsel was ineffective in (1) failing to seek to exclude or limit “unnecessary and unfairly prejudicial details” of Petitioner's involvement in the kickback scheme that was the source of Petitioner's unreported taxable income; (2) failing to seek to exclude Petitioner's ex-wife Tamara (“Tammy”) Perry's testimony based on the marital confidential communications privilege; (3) failing to impeach the credibility of a key government witness, IRS Special Agent Julie Ricchio; and (4) misadvising Petitioner during the plea bargaining stage. For his claim of prosecutorial misconduct (Ground Five), Petitioner claims that the prosecutor knowingly elicited the false testimony of a witness, and failed to correct defense counsel's mistaken impression that money seized from Petitioner in a separate civil forfeiture action could be used to pay Petitioner's restitution liability in this case.

         On January 30, 2016, the Court held an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel during the plea bargaining stage (Ground Four). Petitioner was represented by private counsel, Schriener, at the evidentiary hearing. Based on the entire record, and having had the opportunity to observe and evaluate the demeanor of the witnesses at the hearing, Petitioner's motion will be denied.

         BACKGROUND

         Criminal and Civil Forfeiture Proceedings

         On August 16, 2006, Special Agent Ricchio, with the IRS Criminal Investigation Division, executed a search warrant to search Petitioner's residence in Vermillion, Ohio. The search warrant was based on allegations by Tammy Perry and Thomas Moore, an employee of Ford vendor Thomas Buske, that Petitioner received kickbacks from Buske while Petitioner was employed as the Materials, Planning, and Logistics Manager at Ford. During the search, Ricchio interviewed Petitioner, and informed him that the search was being conducted because the government believed that Petitioner was involved in a scheme in which he used his position at Ford to approve fraudulent invoices from one of Buske's companies. Petitioner denied involvement in any such fraudulent invoice scheme and denied receiving cash payments or kickbacks from Buske. Also during the search, federal agents seized several “cut sheets” from a safe in Petitioner's house. These cut sheets appeared to be handwritten ledgers of payments from Buske.

         Meanwhile, in the Eastern District of Wisconsin, the government seized approximately $660, 000 from Petitioner's TD Ameritrade account and initiated a separate civil action in January 2007, in the United States District Court for that district, to forfeit the funds as proceeds of a money laundering conspiracy involving Petitioner and Buske. See United States v. Approximately $659, 990.83 in U.S. Currency in TD Ameritrade Account Ending in 0902 Held in the Name of John K. Perry, No. 2:07-cv-00264, Order Granting Motion to Stay (E.D. Wis. Mar. 20, 2008). Petitioner was represented by a different attorney in the Wisconsin civil forfeiture action.

         Petitioner was indicted in this Court on March 24, 2011, on four counts of willful income tax evasion in violation of 26 U.S.C. § 7201, for failing to report and then concealing kickbacks received from Ford vendors during each of the 2001 through 2004 tax years. A superseding indictment was returned on July 14, 2011, charging Petitioner with the same four counts but adding allegations that the alleged offenses continued until August 16, 2006. Each count of the superseding indictment charged that Petitioner willfully attempted to evade taxes by preparing and filing a false and fraudulent income tax return for the tax year at issue, “and by making false statements to an IRS Special Agent regarding income.”

         On May 27, 2011, an evidentiary hearing was held on Petitioner's pretrial motions, including a motion to dismiss the indictment based on the statute of limitations, before Magistrate Judge Frederick Buckles. Special Agent Ricchio testified on behalf of the government, and Petitioner testified on his own behalf, regarding Petitioner's statements during the August 16, 2006 search and interview. As relevant to Petitioner's § 2255 claims, Ricchio also answered the government's questions about how the search was conducted. Ricchio testified that approximately 13 federal agents were present with her during the search, but that she did not recall any local police being present. She further testified that she did not frisk Petitioner during the search and that she did not observe Petitioner being frisked by any other agents.

         The Court adopted the Magistrate Judge's Report and Recommendation to deny the motion to dismiss upon finding that, if the government was able to prove at trial that Petitioner made false statements to Ricchio during the August 16, 2006 interview, those false statements would constitute affirmative acts of evasion rendering the criminal charges timely filed within the six-year statute of limitations.

         Trial commenced on February 21, 2012.[2] At no point during the trial did Petitioner indicate a desire to reinitiate plea discussions. At trial, the government introduced evidence that Buske paid Petitioner substantial kickbacks in the form of cash and indirect payments for his role in various fraudulent schemes. The government also introduced the cut sheets found in Petitioner's safe, which documented the kickbacks. In addition to the payments and kickbacks from Buske, the government introduced evidence that Petitioner pressured the owners of Ford vendor Syms Trucking, Floyd and Susan Wright, to buy Petitioner a truck, to pay for a cruise, and to pay Petitioner $10, 000 to $20, 000 per month, to keep their contract with Ford. The monthly payments were disguised as “consulting fees.” The government introduced evidence that Petitioner failed to report the above-noted kickbacks and bribes as income on his tax returns for the 2001 through 2004 tax years, except for the payments disguised as consulting fees.

         Specifically, on direct examination, Tammy Perry testified that Petitioner received money from the Wrights even though Petitioner provided no consulting services to the Wrights' company. Tammy Perry testified that Petitioner and the Wrights had a falling out and agreed to end their relationship, with the Wrights paying Petitioner $200, 000 in four $50, 000 installments.

         Tammy Perry also testified that she deposited cash Petitioner received from Buske in a joint bank account owned by Petitioner and her, in deposits less than $5, 000, at Petitioner's direction. She testified that Buske purchased a Jaguar and Lincoln Aviator for the couple, paid for an addition to the couple's home in Lake St. Louis, Missouri, and made the down-payment and mortgage payments on two homes for the couple in Colorado, which were eventually quit-claimed to Petitioner for no consideration. She further testified that the home the couple owned in Breckenridge, Colorado was not investment property, as Petitioner had told federal agents, and that Petitioner created fictitious promissory notes to disguise Buske's payments as loans. Finally, she identified Petitioner's handwriting on the cut sheets taken from Petitioner's safe. On cross-examination, Tammy Perry acknowledged that she had signed a proffer letter which provided that the government could not use her testimony in a prosecution against her.

         The government also called David Seib, one of Buske's employees, as a witness. Seib testified on direct examination that, while working for Buske, Seib sometimes submitted inflated bills to Petitioner at Ford per Petitioner's request. Seib recounted one instance at some point between the years 2000 and 2002, when Seib submitted an invoice for approximately $2 million to $2.4 million to Petitioner. Seib initially submitted the invoice for a lower amount, but Petitioner instructed Seib to review and resubmit the invoice at the higher amount. Consequently, Seib and another employee of Buske created false documentation and resubmitted the invoice at the higher $2 million to $2.4 million amount that Petitioner requested. Seib also identified Petitioner's handwriting on the cut sheets.

         On cross-examination, when asked by defense counsel whether he previously told federal agents, during a February 2009 interview, that he had not prepared or instructed anyone to prepare false invoices while employed by Buske, Seib could not recall doing so. Seib also denied signing a proffer letter, but on redirect, after the government showed him a copy of his signed proffer letter, Seib acknowledged that he had signed a proffer letter but stated that he had forgotten doing so.

         Floyd Wright, co-owner of Syms Trucking, also testified as a witness for the government. Wright recounted how after Syms Trucking obtained a contract to provide services to Ford, Petitioner asked Wright to pay for Petitioner and Petitioner's son to go on a cruise, and also asked Wright to buy Petitioner a pickup truck. Wright further testified that he paid Petitioner $10, 000 to $20, 000 a month in “consulting” fees, even though Petitioner never provided any consulting services. Wright testified that he provided these payments and gifts because he was intimidated by Petitioner and afraid of losing Ford's business. Wright testified that he eventually agreed to end his relationship with Petitioner by paying Petitioner $200, 000 in four $50, 000 installments.

         Finally, the government called Special Agent Ricchio to testify on matters including the tax loss computation and the execution of the search warrant on August 16, 2006. Ricchio recounted her interview with Petitioner, in which Petitioner denied involvement in a fraudulent scheme against Ford, denied receiving any cash payments from Buske, and stated that any payment Buske made toward the purchase of Petitioner's home was, in fact, for a joint investment. Ricchio also testified that she did not recall any county sheriffs at the search but that local police were notified of the search and a uniformed police officer was present when the federal agents made entry. In response to questioning as to whether Petitioner was frisked by one of the federal agents, Ricchio testified: “That could be, yes.”

         After closing arguments and as part of the final jury instructions, the Court instructed the jury that Seib and Tammy Perry each received a promise from the government that their testimony would not be used against them in a criminal case, and that whether the testimony of those witnesses may have been influenced by the government's promise was for the jury to determine.

         On February 28, 2012, the jury returned guilty verdicts on all four counts. At sentencing, the Court determined that the advisory guidelines sentencing range was 51 to 63 months, and on May 31, 2012, the Court sentenced Petitioner at the low-end of the guidelines, to 51 months in prison, to be followed by 36 months of supervised release. As a condition of supervised release, the Court ordered Petitioner to pay restitution to the IRS in the amount of $926, 602.75, constituting $578, 226 in unpaid taxes and $348, 376.75 in interest. In doing so, the Court rejected Petitioner's argument, raised by defense counsel in objection to the presentence investigation report (“PSR”), that interest should not be added to the restitution order.

         The Court also heard argument on the issue of whether the seized funds from the Wisconsin civil forfeiture action could be applied to offset Petitioner's restitution liability. Ultimately, the Court declined to address the issue because the civil forfeiture action was still pending at that time, and as such, it was unclear whether the seized funds would ultimately be forfeited and, if so, whether and to what extent they would be distributed to victims of Petitioner's fraudulent schemes or be retained by the government. However, the Court ordered that, because the seized funds were being held in an interest-bearing account, any interest ultimately retained by the government would offset the interest portion of Petitioner's restitution obligation.

         On direct appeal, Petitioner argued that the Court erred in denying certain of his pretrial motions. Petitioner also argued that his objections to the tax loss computation should not have been overruled; that his sentence was objectively unreasonable; and that the restitution order was inappropriate. In an opinion issued on May 6, 2013, the Eighth Circuit rejected these arguments, and affirmed Petitioner's conviction and sentence. United States v. Perry, 714 F.3d 570 (8th Cir. 2013). With respect to Petitioner's challenge to the restitution order, the Eighth Circuit affirmed the inclusion of interest. The Eighth Circuit also agreed with this Court that the issue of whether the seized funds could offset Petitioner's restitution liability could not be determined until the final resolution of the civil forfeiture action, at which time “the district court [would] retain authority to modify the amount of restitution as may be appropriate.” Id. at 578-79.

         On January 22, 2014, Petitioner, through his attorney in the Wisconsin civil forfeiture action, entered a “Stipulation for Compromise Settlement” with the government in that action, in which the parties agreed that $248, 922.36 of the seized funds would be applied toward the restitution owed in Petitioner's Missouri criminal case. (Doc. No. 8-2 at 1-4.)

         Motion to Vacate

         As noted above, Petitioner now asserts four grounds of ineffective assistance of counsel and one ground of prosecutorial misconduct.

         For Ground One, Petitioner argues that defense counsel was ineffective for failing to seek exclusion of, or a limiting instruction with respect to, “unfairly prejudicial details” of Petitioner's involvement in schemes the government used to prove the source of Petitioner's unreported taxable income, including Wright's testimony regarding Petitioner's intimidation tactics.

         For Ground Two, Petitioner argues that defense counsel was ineffective for failing to seek to exclude Tammy Perry's testimony on the ground that such testimony was protected by the martial confidential communications privilege. Specifically, Petitioner argues that defense counsel should have sought to exclude Tammy Perry's testimony regarding the Wrights' and Buske's cash payments to Petitioner, Buske's purchase of vehicles and homes for the couple, Petitioner's conduct in disguising Buske's payments as loans, and identification of the handwriting on the majority of the cut sheets as Petitioner's.[3]

         For Ground Three, Petitioner argues that defense counsel was ineffective for failing to impeach Special Agent Ricchio during trial with her prior testimony during the May 27, 2011 motion to suppress hearing, that Petitioner was not frisked during the August 2006 search of his home, or to call witnesses who would have contradicted Ricchio's testimony that there was no local police presence during the search. Petitioner argues that if defense counsel had discredited Ricchio's testimony in this regard, the jury would not have believed Ricchio's testimony that Petitioner lied to her during the August 16, 2006 interview (the last ...


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