Seratt v. United States

          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 The sentences were affirmed on direct appeal in an unpublished opinion filed on March 14, 2017, Appellate No. 16-1097.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 ...