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Norwood v. United States

United States District Court, W.D. Missouri, Western Division

August 7, 2019




         Pending is Marion Norwood's Motion to Vacate, Set Aside or Correct Sentence, (Doc. 1), which seeks relief pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is DENIED, and the Court declines to grant a Certificate of Appealability.

         I. BACKGROUND

         The Court will summarize the facts and the procedural history, but will not set forth all of the evidence introduced at trial. Details will be provided as necessary to discuss Movant's claims. Additional facts will be set forth in the context of some of Movant's claims.

         A. Pretrial and Trial

         Movant was charged with one count of conspiracy to commit bank fraud. The Indictment states the conspiracy began “at least as early as December 10, 2012” and continued “to at least on or about January 4, 2013.” (Crim. Doc., ¶ 1.)[1] He was represented by appointed counsel during the pretrial process and at trial. Shortly after counsel was appointed a Magistrate Judge conducted a scheduling conference, and Scheduling and Trial Order was issued after the conference. The order reflects that “during the conference defense counsel requested all discovery to which defendant may be entitled pursuant to the Federal Rules of Criminal Procedure, the Federal Rules of Evidence and the United States Constitution.” (Crim. Doc. 15, p. 2.)[2] Part III of the order set forth categories of information that the Government was to produce. (Crim. Doc. 15, pp. 3-4.)

         During the trial, multiple witnesses discussed the conspiracy's operations. First, conspirators stole mail from business parks to obtain the businesses' checks. Some members of the conspiracy (referred to by some witnesses as “printers”) used those checks to create counterfeit checks. Other conspirators (referred to by some witnesses as “drivers”, “handlers”, or “recruiters”) recruited homeless individuals to cash the checks in exchange for a fee. The drivers texted the names of the homeless men to the printers so that the printers could print counterfeit checks payable to the homeless men. The drivers also helped the homeless recruits obtain a state ID card (so that they could cash the counterfeit checks), housed them in a hotel or motel, got them a shower, clothing, and food, and drove them to the banks so they could cash the checks. In this way, the homeless men never saw the printers. In addition, few of the drivers ever actually saw the printers; often, the drivers would communicate with the printers via texts or through intermediaries. Most (if not all) of the conspirators traveled from Atlanta to Kansas City, and multiple “crews” (each headed by one or more printers) were operating in the Kansas City area (and elsewhere in the United States) at various times. The crews would travel from Atlanta to their destination cities, operate for a short period of time, and then return to Atlanta. Drivers were not permanently “assigned” to a particular crew; thus, a driver might be working with one printer for a period of time and work with another printer at another time, or with multiple printers at a time.

         Evidence presented to the jury included testimony regarding the arrest of Markus Bryant and Anthony Lowe on January 31, 2013, in Leawood, Kansas. They were arrested in connection with a homeless individual's attempt to pass a counterfeit check at a bank. Their car was searched, and a cellphone was found. Forensic analysis of the phone revealed exchanges with Movant regarding the printing of checks.[3] In addition, the phone's software automatically recorded the location of pictures taken with the phone. Those coordinates (as well as the content of some of the pictures themselves) confirmed that the phone was in Kansas City, Missouri (or a suburb of Kansas City) at times relevant to the case, including when texts were sent to or received from Movant regarding matters related to the creation and passing of counterfeit checks.

         Bryant testified that he was brought into the scheme by Lowe to work with Lowe as an additional driver, and that on at least some of their trips to Kansas City Movant was the printer for their crew. He also testified about the involvement of others, including Truly Matthews, Norman Weaver, Preston West, and Gary Merritt; Matthews and Weaver were printers, and West and Merritt orchestrated the crews (by scouting locations to find homeless men, obtaining check stock and other supplies, and occasionally acting as a go-between by transporting checks or money to and from printers and drivers). Bryant explained that he and Lowe used the cellphone found in his car over the course of several different trips to Kansas City to communicate with Movant, Matthews and Bryant to supply the names to be put on the counterfeit checks and to exchange other information in connection with the cashing of the counterfeit checks.

         Lowe testified that West brought him into the conspiracy in the beginning of 2012, that he was initially a driver with West, and that in his time with the conspiracy he met Movant. Specifically, he met Movant in late 2012, and Lowe agreed to go to Kansas City with Merritt, Bryant, and Movant.

         Merritt testified that Movant personally brought him into the conspiracy in or before 2010. In addition to testifying how the counterfeiting scheme worked, Merritt testified that he observed Movant making counterfeit checks and that Movant made the decisions as to what cities the crew would go to. Finally, Merritt and Matthews were arrested on February 1, 2013 as they were leaving town (because of the arrest of Bryant and Lowe); equipment to counterfeit checks (such as a printer, a laptop, a check writing program, and check stock) was found in the car, and Merritt testified that it belonged to Movant. Some copies of counterfeit checks (i.e., not on check stock) were also recovered.

         The jury found Movant guilty of conspiracy to commit bank fraud.

         B. Post-Trial

         After the trial, the Court granted Movant's request to represent himself at sentencing and appointed his trial counsel to serve as standby counsel. (Crim. Doc. 99.) The Court ordered that Movant be given access to all of the discovery in the case (but not the trial transcript, because a transcript had not been ordered or prepared). Thereafter, Movant filed multiple motions to obtain additional information, some of which were granted. One such motion requested a transcript of the grand jury testimony provided by Steven Ryan of the Postal Inspector's Office. The Court deferred ruling on this request and directed the Government to indicate whether Inspector Ryan testified in front of the grand jury. (Crim. Doc. 123, p. 2.) The Government reported that he had and “acknowledge[d] that the government should have produced the grand jury transcript in this case as Jencks Act material, 18 U.S.C. § 3500, since Postal Inspector Ryan was to be called as a government witness at trial.” (Crim Doc. 129, p. 1.) The Government further represented that in response to the Court's inquiry it had provided a transcript of the testimony to standby counsel.

         The Court ordered that the Inspector Ryan's grand jury testimony be submitted for in camera review so that it could conduct a sua sponte determination whether the Jencks Act had been violated. (Crim. Doc. 131.) After conducting its review, the Court concluded that any violation was harmless because there was no substantial or significant difference between Inspector Ryan's grand jury testimony and his testimony at trial. (Crim. Doc. 132.)

         Movant objected to practically the entire Presentence Investigation Report, (“PSR”) including particularly the provisions regarding the dates of the conspiracy, the dates of his involvement in the conspiracy, the amount of loss and the number of victims. The sentencing hearing took place over the course of two days: September 30 and October 5, 2015. At the end of the hearing on October 5, the Court orally announced its conclusions relevant to the sentencing guidelines and the sentence (of 144 months) and advised that after the hearing it would issue an Order detailing the Court's findings that resulted in the announced conclusions regarding the loss amount and the number of victims. That Order was issued on October 7, 2015. (Crim. Doc. 185.)

         C. Appeal

         Movant filed a Notice of Appeal; the Case Number in the Eighth Circuit was 15-3442. Over Movant's objection, the Eighth Circuit appointed Movant's trial counsel to represent him on appeal. On January 29, 2016, counsel filed a motion to withdraw. The motion is sealed, but Movant represents that counsel reported that he had a potential conflict of interest. The Eighth Circuit denied the motion to withdraw on February 17, 2016; the order is also sealed.

         Counsel filed a brief and another motion to withdraw, this time pursuant to Anders v. California, 386 U.S. 738 (1967). The Anders brief discussed the following issues:

1. sufficiency of the evidence,
2. denial of motions in limine regarding evidence outside the periods charged in the Indictment,
3. erroneous calculations of loss amount and the number of victims,
4. improper application of enhancements for use of sophisticated means, unlawful use of means of identification, and for being an organizer/leader, and
5. the overall reasonableness of the sentence.

         Movant was given leave to file a supplemental brief. He argued that the Court erred:

1. by failing to recuse because she served as the United States Attorney when the investigation into the conspiracy began,
2. by relying on Lowe's and Merritt's testimony to make findings related to sentencing,
3. by failing to make sufficient findings that Movant was responsible for relevant conduct (particularly victims and losses) occurring outside the time frame contained in the Indictment,
4. by failing to rectify a conflict of interest between Movant and counsel based on counsel's representation of “Mr. Carter, ”
5. because the Government failed to prove the elements of the crime beyond a reasonable doubt,
6. in calculating the amount of loss,
7. by failing to require proper authentication of the Government's exhibits,
8. by failing to provide certain documents prior to sentencing, and
9. by failing to make sufficient findings regarding Movant's alleged connection to some of the relevant conduct that factored into the Sentencing Guideline calculations.

         The Court of Appeals directed the Government to respond to the first issue raised in Movant's pro se brief.

         The Eighth Circuit affirmed the conviction and sentence. United States v. Norwood, 854 F.3d 469 (8th Cir.) (per curiam), cert. denied, 136 S.Ct. 366 (2017). After summarizing the nature of the conspiracy and the evidence, the court stated “that the evidence was sufficient to sustain the jury's verdict, and . . . evidence about past events was properly admitted under Federal Rule of Evidence 404(b).” Norwood, 854 F.3d at 471. The court next noted that the Government's investigation into Movant's involvement in the conspiracy did not begin until after January 2013 - after the undersigned resigned as United States Attorney. Id. at 471. The court held that the undersigned was not required to recuse because “while U.S. Attorney [she] had no significant personal involvement in a critical decision regarding [Movant's] subsequent prosecution for mail fraud conspiracy.” Id. at 472. Finally, the court noted the many sentencing issues that had been raised and held “that the district court properly applied the Guidelines and made no clearly erroneous factual finding.” Id. It also concluded that the sentence was not unreasonable. Id. The opinion concludes by observing that after reviewing the Record as required by Penson v. Ohio, 488 U.S. 75 (1988), there were no other nonfrivolous issues; the judgment and conviction were affirmed and counsel was granted leave to withdraw. Id.

         D. Post Conviction Proceedings

         Movant's initial Motion raised thirty-two grounds for relief. (Doc. 1.) He then filed a Supplement that raised three additional grounds for relief. (Doc. 4.) Later, he filed a Second Supplement. (Doc. 10.) The Second Supplement does not add new grounds for relief; instead, it amends or supplements some of the previously-asserted grounds for relief. The Court directed the Government to respond to the issues raised in these three filings. (Doc. 11.)[4] The Government did so, (Doc. 19), [5] and Movant has filed his Reply Suggestions, (Doc. 31).

         Movant has also filed two motions requesting that the Court hold a hearing on his motion. A petitioner “is entitled to an evidentiary hearing unless the motion and the files and the records of the case conclusively show that he is entitled to no relief.” Witthar v. United States, 793 F.3d 920, 922 (8th Cir. 2015) (cleaned up); see also Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008). All of Movant's claims for relief can be resolved based on the Record and the law; none of his claims depend on disputed issues of fact. Therefore, his motions requesting an evidentiary hearing, (Doc. 32 and Doc. 35) are denied.[6]


         Movant's claims all allege that his attorney provided ineffective assistance at trial or on appeal. Such claims are evaluated under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires the movant to “show that his lawyer's performance fell below the minimum standards of professional competence (deficient performance) and that there is a reasonable probability that the result of the proceedings would have been different if his lawyer had performed competently (prejudice).” Hamberg v. United States, 675 F.3d 1170, 1172 (8th Cir. 2012) (quotation omitted).

         With respect to the performance prong, there is a “strong presumption that counsel's conduct falls within the wide range of professional assistance, ” Charboneau v. United States,702 F.3d 1132, 1136 (8th Cir. 2013) (quotation omitted), so the Court's scrutiny of counsel's performance must be deferential. E.g., Hamberg, 675 F.3d at 1172. The Court's scrutiny is even more deferential with respect to the performance of appellate counsel because appellate counsel is expected to “winnow[ ] out weaker arguments on appeal.” Charboneau, 702 F.3d at 1136-37. The prejudice prong's requirement of a “reasonable probability” of a different outcome means there must be a “substantial, not just conceivable, likelihood of a different result. Cullen v. ...

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