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Spiridon v. United States

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

April 30, 2018

DANIELA M. SPIRIDON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITEDTED STATES DISTRICT JUDGE.

         This 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.

         Movant 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.

         The 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.

         BACKGROUND

         Criminal Proceedings

         On 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 of Movant.

         On 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.)).

         At the 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).

         The 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 ¶ 38).

         In 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).

         On 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.[1] (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.

         The 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.).

         On 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.

         On 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 those objections.

         The 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).

         On 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.)).

         § 2255 Motion

         On 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).

         The 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 appeal.

         Evidentiary Hearing

         On 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.

         a. Movant's testimony [[2]]

         Movant 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 sentencing counsel.

         Movant 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. ...


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