United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Rodger
Calvin Seratt, a person in federal custody. On July 29, 2015,
Seratt pled guilty to Making a False Statement, Theft of
Government Funds in No. 1:14CR00083 SNLJ, and Tampering with
a Witness in No. 1:15CR00058 SNLJ at a consolidated
sentencing hearing on October 27, 2015, this Court sentenced
Seratt to the Bureau of Prisons for a term of 41 months on
all charges, a sentence within the sentencing guideline
range. The sentences were affirmed on direct appeal in an
unpublished opinion filed on March 14, 2017, Appellate No.
16-1097. Seratt's § 2255 action, which is based on
several allegations of ineffective assistance of counsel, is
fully briefed and ripe for disposition.
STATEMENT
OF THE CASE AND FACTS RELEVANT TO THE PETITION
On
August 21, 2014, a federal grand jury sitting in the Eastern
District of Missouri returned a five-count indictment
charging RODGER CALVIN SERRATT, (hereinafter
“Seratt”) with violations of: Title 18, United
States Code, Section 1001(a)(2), making false statements, and
Title 18, United States Code, Section 641, theft of
government property. DCD 2.[1] The federal grand jury returned
superseding indictments on February 19, 2015 and May 28,
2015. DCD 40; DCD 59. The final superseding indictment
included a charge of conspiracy to defraud, Title 18, United
States Code, Section 371 in relation to the earlier charged
violations of: Title 18, United States Code, Section
1001(a)(2), making false statements, and Title 18, United
States Code, Section 641, theft of government property. DCD
59. During the pendency of the prosecution of criminal case
number S2-1:14CR00083 SNLJ, on April 23, 2015, the federal
grand jury returned an indictment charging Seratt with two
counts of obstruction of justice pursuant to Title 18, United
States Code, Section 1512. DCD 9, criminal case number
1:15CR00058 SNLJ.
As to
the calculations of the advisory sentencing range, the
parties agreed that six levels would be added pursuant to
U.S.S.G. § 2B1.1(b)(1)(D) because the loss exceeded $30,
000.00, and that two levels would be subtracted for
Seratt's acceptance of responsibility. DCD 94, p. 10; DCD
64, p. 10, criminal case number 1:15CR00058 SNLJ. However,
the plea agreement contained a dispute regarding two
sentencing enhancements. The government argued that four
levels should be added pursuant to U.S.S.G.§ 3B1.1
because Seratt was a leader and organizer of a criminal
activity that involved five or more participants; and two
levels should be added pursuant to U.S.S.G. § 3C1.1
because the defendant obstructed justice. DCD 94, p. 10; DCD
64, p. 10, criminal case number 1:15CR00058 SNLJ. Seratt
initially opposed these enhancements, and the plea agreement
set forth the parties' respective calculations. According
to the government, the resulting offense level would be 16,
but Seratt took the position that the total offense level
would be 10. DCD 94, p. 11; DCD 64, p. 11, criminal case
number 1:15CR00058 SNLJ.
In the
presentence investigation report, the United States Probation
Office disagreed with the parties' stipulation as to the
amount of loss, and agreed with the government's
positions regarding defendant's role in the offense and
obstructive conduct. As to the loss calculation, the
presentence investigation report established a loss of less
than $30, 000.00, resulting in a four level increase rather
than six levels as stipulated by the parties. PSR, p. 11. The
United States Probation Office based its imposition of the
enhancement by stating that Seratt “was an organizer or
leader of criminal activity that involved at least three
participants but was otherwise extensive as he used the
unknowing[] services of many other outsiders.” PSR, p.
11. In support of the enhancement for obstruction of justice,
the presentence investigation report cited facts relating to
Seratt's obstructive conduct to corporate officers of his
companies including his son, Rodger P. Seratt, and another
family member, Karina Seratt (K.S.).
The
presentence investigation report noted the following:
During the SSA-OIG's ongoing investigation of R.C.
Seratt's theft of government funds, law enforcement
identified individuals who had been designated as corporate
officers for Ozark River Farms and SEMO Collections and who
R.C. Seratt instructed as to the manner in which they should
respond to queries by investigators for the SSA and court
orders for the production of corporate documents.
Specifically, on April 6, 2015, law enforcement served a
federal grand jury subpoena on K.S. at her place of business.
As the president of Ozark River Farms and SEMO Collections,
K.S. was requested to bring records relating to those
businesses as well as other businesses which had been
associated with Ozark River Farms and SEMO Collections. On or
about April 10, 2015, R.C. Seratt obtained a motion from D.N.
to quash the federal grand jury subpoena. With the intention
of causing K.S. to mail the motion he procured from D.N. to
the Clerk for the United States District Court for the
Eastern District of Missouri and to not report to the grand
jury as ordered. R.C. Seratt knowingly used corrupt and
misleading conduct toward K.S. with the intention that K.S.
withhold testimony and evidence from a federal grand jury on
April 16, 2015.
Further, R.C. Seratt engaged in misleading conduct toward his
son, Rodger Payan Seratt with the intent to cause and induce
R.P. Seratt to withhold testimony and documents from an
official proceeding. Specifically, on May 6, 2015, R.C.
Seratt instructed R.P. Seratt to falsely advise a federal
grand jury that P.D. and D. M. were the corporations'
attorneys and that they possessed the documents sought by the
grand jury in their role as the corporations' attorneys.
PSR, pp. 9-10. The information regarding the obstructive
conduct in the presentence investigation report closely
mirrored that contained in Seratt's plea agreement. In
that document, Seratt admitted that:
[His] involvement with the companies extended to instructing
individuals who had been designated as corporate
officers… as to the manner in which they should
respond to queries by investigators for the Social Security
[Administration] and court orders for the production of
corporate documents. On April 10, 2015, this included
obtaining, on behalf of K.S., a motion to quash a federal
grand jury subpoena through which the government sought
business records of companies defendant directed. With the
intention of causing K.S. to withhold the records from the
federal grand jury, defendant instructed her to mail the
motion to quash he procured for her to the Clerk for the
United States District Court for the Eastern District of
Missouri and the United States Attorney's Office.
DCD 94, p. 8; DCD 64, p. 8, criminal case number 1:15CR00058
SNLJ.
Seratt
objected to the enhancements set forth in the presentence
investigation report. Regarding the leadership enhancement,
Seratt contended that he used the services of others in order
to comply with the conditions of his supervised release that
he not operate, manage or participate in any business without
its written permission. DCD 107, p. 2; DCD 80, p. 10,
criminal case number 1:15CR00058 SNLJ. He also asserted that
the business activity in which the individuals engaged was
legitimate. DCD 107, p. 3; 80, p. 10, criminal case number
1:15CR00058 SNLJ. While objecting to the enhancement
recommended to be imposed for obstruction of justice, Seratt
was silent as to the applicability of the two level
enhancement for obstruction of justice. DC 107, p. 3; DCD 80,
p. 10, criminal case number 1:15CR00058 SNLJ.
With an
offense level of 14 and a criminal history category of VI,
the presentence investigation report established the
applicable advisory guideline range as 37 to 46 months
incarceration. PSR, pp. 12, 16, 24. Despite disagreeing with
the two level enhancement for obstruction of justice in the
plea agreement, Seratt's sole objection to the
enhancements set forth in the presentence investigation
report was to the four level enhancement for his role in the
offense. DC 107, p. 3; DCD 80, p. 10, criminal case number
1:15CR00058 SNLJ. Rather than the offense level of 14 set
forth in the presentence investigation report, Seratt argued
that the applicable offense level was 10 due to the following
calculations:
-
Base Offense Level
|
6
|
Amount of Loss
|
|
Obstruction of Justice
|
|
Reduction for Acceptance of Responsibility
|
-2
|
DC 107, p. 3; DCD 80, p. 3, criminal case number 1:15CR00058
SNLJ.
While
the government did not dispute the probation office's
calculation of loss, it disagreed with the two level
reduction for acceptance of responsibility on the grounds
that Seratt made materially false statements to the probation
officer in the course of the officer's preparation of the
presentence investigation report. DCD 106, pp. 2-3; DCD 80,
pp. 2-3, criminal case number 1:15CR00058 SNLJ. The
government also objected to the use of the “otherwise
extensive” aspect of the four level role in the offense
enhancement as the sole basis for its application. In
addition to Seratt and the other three participants
identified in the presentence investigation report, the
government named four additional individuals who knowingly
participated in the criminal activity upon which the
convictions were based. DCD 106, p. 1; DCD 80, p. 1, criminal
case number 1:15CR00058 SNLJ.
At the
outset of the sentencing hearing, this Court inquired as to
Seratt's understanding of the presentence investigation
report. TR. Sentencing Hearing, p. 3. When Seratt complained
that he had only received 30 minutes to discuss it with his
attorney, he requested five minutes to address a single issue
that had arisen. TR. Sentencing Hearing, p. 4. After
receiving the time requested, Seratt advised that his
concerns had been resolved, and that he went over the
presentence report with his lawyer in detail. TR. Sentencing
Hearing, p. 4. Seratt also informed this Court that he
understood that the attorneys had agreed to withdraw their
respective objections to the four-level enhancement for role
in the offense and two-level reduction for acceptance of
responsibility. TR. Sentencing Hearing, pp. 7-8. The
resulting discussion was as follows:
Court: Your lawyer has filed this objection on your behalf on
the question of whether or not there should be a four-level
increase because you were considered to be an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive. You know the issue
then, don't you.
Defendant: No, Your Honor.
Mr. D'Agrosa: Your Honor, when we've discussed this,
the otherwise extensive language is likely to be a finding of
the Court. Court: Right.
Mr. D'Agrosa: So to preserve acceptance of responsibility
we're going to forego that objection and presentation of
...