United States District Court, E.D. Missouri, Eastern Division
DANIELA M. SPIRIDON, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
A. ROSS, UNITEDTED STATES DISTRICT JUDGE.
matter is before the Court on Movant Daniela Spiridon's
motions filed under 28 U.S.C. § 2255 to vacate, set
aside, or correct her sentence. On March 13, 2013, Movant was
indicted on six counts of Fraud by Wire, Radio, or
Television, in violation of 18 U.S.C. §§ 1343 and
1342, and Forfeiture, in violation of 18 U.S.C. §
981(a), 21 U.S.C. § 853(p), and 28 U.S.C. §
2461(c). On September 26, 2013, Movant pled guilty to all
counts, and the Court sentenced Movant to 78-months'
imprisonment on August 9, 2014.
now seeks to set aside her conviction and sentence, asserting
that plea counsel was ineffective for failing to review a
financial document, later determined to be fraudulent, before
instructing Movant to submit the document to her probation
officer. Movant also claims that sentencing counsel was
ineffective for failing to investigate the financial
document, for advising Movant to concede that the document
was forged in exchange for a reduced offense level under the
sentencing guidelines, and for erroneously advising Movant
that she had waived her right to appeal.
Court held evidentiary hearings on October 12 and 20, 2017,
regarding Movant's claims of ineffective assistance of
counsel. The transcripts of the evidentiary hearings were
prepared, and the parties submitted their proposed findings
on January 26, 2018. (Doc. Nos. 73 and 74). Based on the
entire record, for the reasons set forth below, Movant's
motion will be denied.
March 13, 2013, Movant was charged by indictment with six
counts of wire fraud occurring between 2010 and March 2013
and resulting in significant losses to several victims. On
March 23, 2013, plea counsel entered his appearance on behalf
September 26, 2013, Movant pled guilty to all six counts
filed against her. (Plea Hearing Transcript, Doc. No. 34,
United States v. Spiridon, 4:13-cr-00101-JAR-1 (E.D.
Mo.)). The Plea Agreement specifically provided that if,
after pleading guilty and before sentencing, Movant
intentionally provided misleading, incomplete, or untruthful
information to the probation office, the Government would be
released from its obligations under the agreement. (Plea
Agreement, Doc. No. 42 at ¶ 12, United States v.
Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)).
plea hearing, the Court specifically discussed, and Movant
indicated that she understood, that Movant was waiving her
right to appeal all non-jurisdictional, non-sentencing
issues, including any issue related to the filing of pretrial
motions, the discovery in the case, and the circumstances of
her guilty plea. (Id. at 94). She also acknowledged
her understanding that she was agreeing to waive her right to
appeal the sentence if the Court accepted the guideline
calculations. (Id.). Movant then confirmed that
nobody had promised her anything, threatened her in any way,
or made any other representations to her to get her to enter
the plea of guilty. (Id.). The Court then
ordered that a presentence report be prepared and directed
Movant to cooperate and assist the probation officer in the
preparation of that report. (Id. at 38).
probation officer conducted an investigation into
Movant's financial condition during its preparation of
the PSR. In the Disclosure PSR filed on January 30, 2014, the
probation officer had no information indicating that Movant
impeded or obstructed justice. (Disclosure PSR, Doc. No. 57,
United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)). However, the Disclosure PSR
noted that Movant had failed to provide complete information
related to her financial situation and provide additional
documentation, including bank statements. (Id. at
February 2014, Movant provided the probation officer with a
document titled “Deed Agreement” as proof of a
commission she would receive from a transaction valued at ten
billion euros. That Deed Agreement was “riddled with
typographical errors and appear[ed] fraudulent, ” as it
was numbered in an unusual fashion, the font was inconsistent
throughout the document, and Movant's name appeared in
only one place on the document. (Id. at ¶ 52).
February 12, 2014, Movant, through plea counsel, accepted the
Disclosure PSR. On February 18, 2014, plea counsel filed a
motion to withdraw, indicating that he had concerns that
Movant was suffering from a mental illness. (Motion to
Withdraw, Doc. No. 67, United States v. Daniela
Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)). Shortly
thereafter, the Government filed a motion to revoke
Movant's bond on the ground that Movant had provided a
document that appeared fraudulent on its face, and that
motion was granted.
Government further investigated the Deed Agreement and
contacted the individual listed as the paymaster, Mr. Billy
Wilson. (Id. at ¶ 54). Wilson stated that he
was not the paymaster for the transaction, that he had never
heard of some of the entities listed on the Deed Agreement,
and that he had never heard of Movant. (Id.). Wilson
indicated that while he believed the document to be false, it
did list his actual bank account number, which could have
been obtained from public records or past transactions.
(Id.). The Government also interviewed the Director
of Anti-Money-Laundering Special Investigations at Deutsche
Bank, a purported party to the transaction set forth in the
Deed Agreement. (Id.). The Director also believed
the document was fraudulent for a number of reasons,
including irregularities in the names used on the document as
they related to Deutsche Bank. (Id.).
February 25, 2014, sentencing counsel filed a motion to enter
his appearance on behalf of Movant. The Court granted
sentencing counsel's motion and subsequently granted plea
counsel's motion to withdraw. On February 27, 2014, a
Revised PSR was filed. (Revised PSR, Doc. No. 80, United
States v. Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D.
Mo.)). It included an adjustment for the obstruction of
justice, stating that Movant “has failed to provide
true and complete financial information to the probation
officer while feigning cooperation.” (Id. at
¶ 41). The probation officer noted that Movant had not
accepted responsibility for her criminal conduct and had
continued that conduct after pleading guilty. (Id.
at ¶ 53). The Revised PSR listed the total loss suffered
by the victims as $2, 579, 267.17. As a result, Movant's
total offense level under the Revised PSR was 29, with a
guideline range of punishment of 87 - 108 months'
imprisonment, rather than the total offense level of 22
listed in the Disclosure PSR.
August 5, 2014, sentencing counsel filed objections to the
Revised PSR challenging its conclusion that Movant engaged in
obstruction of justice and failed to accept responsibility
based on Movant's providing a fraudulent Deed Agreement
to the probation office. (Doc. No. 104, United States v.
Daniela Spiridon, 4:13-cr-00101-JAR-1 (E.D. Mo.)).
However, on August 18, 2014, sentencing counsel withdrew
Final PSR was filed on August 15, 2014, and it revised the
total offense level to 27 with a guideline range of
punishment of 70 - 87 months' imprisonment. (Final PSR,
Doc. No. 110, United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)). It also reduced the total
loss to $2, 499, 988.17. (Id. at ¶ 41). Movant
reported a net worth of approximately $4, 353, 196.05 based
on her claim that she was owed commissions totaling $4, 375,
000. (Id. at ¶ 108). However, the probation
officer's investigation found her bank accounts depleted,
and the probation officer commented that “the
credibility of the financial information provided by [Movant]
is now in doubt.” (Id. at ¶ 108).
August 19, 2014, Movant appeared at her sentencing hearing,
and the Court first established that Movant was competent to
proceed with her sentencing. (Sentencing Transcript,
United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)). The Court also confirmed
with Movant that she had reviewed the disclosure, revised,
and final PSRs. (Id. at 10). Movant confirmed that
she had reviewed the PSRs with sentencing counsel and that he
had answered any questions she had. (Id. at 11). She
also confirmed that she wished to withdraw any objections to
the Final PSR and that she understood how the sentencing
calculations were made. (Id. at 15). The Court then
sentenced Movant to a term of 78 months in prison, which was
within the guidelines range determined by the Court and
agreed to by the parties, and then advised Movant of her
right to appeal her conviction under some limited
circumstances. (Id. at 41). Movant signed the Notice
of Compliance with Local Rule 12.07(A), acknowledging that
sentencing counsel had explained to Movant her right to
appeal and that she had not requested that counsel file a
notice of appeal. (Notice of Compliance, Doc. No. 116,
United States v. Daniela Spiridon,
4:13-cr-00101-JAR-1 (E.D. Mo.)).
September 2, 2015, Movant filed her motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence by a
person in federal custody. (Doc. No. 1). She asserted that
both her plea and sentencing counsel were ineffective by
failing to keep her reasonably informed about the status of
the case, failing to explain and discuss her case, failing to
conduct adequate and independent pretrial investigation,
failing to file any substantive pretrial motions, and failing
to properly advise her of the consequences of pleading
guilty. On August 30, 2016, plea counsel filed a motion for
leave to file an amended § 2255 motion, which only
asserted claims of ineffective assistance of counsel against
sentencing counsel. The Court set the matter for a hearing
based on plea counsel's apparent conflict of interest,
since he had represented Movant in her underlying criminal
matter. Plea counsel ultimately withdrew as counsel for
Movant (Doc. No. 28), and attorney Kevin Schreiner entered
his appearance on behalf of Movant and filed an amended
§ 2255 motion on December 1, 2016. (Doc. No. 39).
amended motion asserts the following claims: (1) plea counsel
was ineffective because he failed to review and advise Movant
regarding the Deed Agreement that she submitted to the
probation officer; (2) sentencing counsel was ineffective
because he failed to investigate the Government's
allegation that Movant forged the Deed Agreement; (3)
sentencing counsel was ineffective because he advised Movant
to concede that the Deed Agreement was forged in exchange for
the Government agreeing that the total loss was less than
$2.5 million; and (4) sentencing counsel was ineffective
because he advised Movant that she had waived her right to
October 12 and 20, 2017, the Court held an evidentiary
hearing on Movant's amended § 2255 motion. At that
hearing, Movant, plea counsel, sentencing counsel, and the
probation officer testified.
Movant's testimony []
testified that she obtained the Deed Agreement on February 8,
2014, and believed the Deed Agreement was authentic.
(Evidentiary Hearing Transcript, Vol. 2, Doc. No. 71, at 15,
41). The Deed Agreement was meant to serve as proof of a
transaction that she brokered between Deutsche Bank and
Singapore Bank. (Id. at 8). According to Movant, she
obtained the Deed Agreement to establish that she could pay
restitution. (Id.). Movant testified that prior to
providing the Deed Agreement to the probation officer, she
contacted Wilson, who verified the authenticity of the Deed
Agreement. (Id. at 11-12). On February 11, 2014,
Movant provided a copy of the Deed Agreement to plea counsel
via e-mail. (Id. at 16). She testified that plea
counsel directed her to forward the Deed Agreement to the
probation officer. (Id.). Shortly thereafter, plea
counsel withdrew from Movant's case, and she retained
testified that she advised sentencing counsel of her
objections to the Revised PSR's inclusion of a two-level
enhancement for obstruction of justice and asked him to
investigate the allegedly fraudulent Deed Agreement.
(Id. at 21). She also directed sentencing counsel to
advise the Government that she would fully cooperate in its
investigation of the fraudulent origins of the Deed
Agreement. (Id.). She testified that she offered to
provide sentencing counsel with the names and contact
information of the parties to the Deed Agreement, as well as
her e-mail passwords, computer, and phone, to assist
sentencing counsel's efforts to prove her innocence
concerning the origin of the Deed Agreement. (Id. ...