Saturday, February 23, 2013

Court Rejects Claim of Ineffective Assistance of Counsel for Failure to Assert Sex Addition to Mitigate Sentence (2/23/13)

The old adage that sex sells seems not to account for the wild popularity of the tax law.  Tax law just has no sex in it.  But every now and then, sex rises up in tax cases.  And, so it did in Carroll v. United States, 2013 U.S. Dist. LEXIS 23769 (ND OH 2013).

In a six-count information, Carroll was charged with "with participating in three separate bribery schemes, making false statements to law enforcement officers, and falsifying his federal income tax returns."  He pled guilty and was sentenced "to 108 months imprisonment, followed by two years of supervised release, a $600 special assessment and ordered Petitioner to pay $728,000 in restitution."  He did not take a direct appeal, but thereafter filed a "§ 2255 motion, asserting he received ineffective assistance of counsel at sentencing."  The claims of ineffective assistance, apparently focused most on his bribery conduct, were (record citations omitted):
First, Petitioner claims that trial counsel was ineffective for failing to seek a downward departure pursuant to U.S.S.G. §5K2.13 for diminished capacity in light of his "addiction to sex." Second, Petitioner asserts that trial counsel was ineffective for failing to argue for a departure pursuant to U.S.S.G. §5K2.20 for aberrant behavior because the "bribery conspiracy was driven by sexual addiction and not avarice . . . ." 
The Court later summarizes the basis for his claim as follows (record citations omitted):
Petitioner claims that trial counsel was ineffective for failing to request downward departures for diminished capacity pursuant to U.S.S.G. §5K2.13 and for aberrant behavior pursuant to U.S.S.G. §5K2.20. In support of his argument, petitioner maintains that he developed a "raging addiction to sex" after meeting coconspirator Nilesh Patel ("Patel"), that "the entire bribery scheme between [Patel] and [himself] was driven by the insatiable desire for sex[,]" and that he and Patel "conspired to defraud the hospital so [they] could travel for sex." Petitioner further asserts that "there is no question my mental state was compromised by this addiction[,]" that he sought treatment in April or May 2010 for his sex addiction, but that his trial counsel "asked prosecutors to let it rest for fear of embarrassing [him]." Additionally, he contends that the only reason the government did not find "hidden accounts or cash in his home" was that the bribery conspiracy in this case "was driven by a sexual addiction and not avarice . . . ." According to Petitioner, his attorney "missed the entire defense of diminished capacity," and "should have argued for a sentence reduction based on the guidelines for Aberrant Behavior."
The Court then rejected the claim as follows (record citations omitted and bold-face added):
Here, Petitioner offers only his unsupported, conclusory assertions that he suffered from a sex addiction and that his sex addiction contributed significantly to the bribery scheme involving Patel. The Court cannot find any evidence in the record related to an alleged sexual addiction aside from the instant motion, which lacks any supporting medical diagnosis. Further, there is no indication in the presentence report that Petitioner raised the issue of his purported sex addiction with his probation officer. Petitioner also did not mention any such issue when allocuting at sentencing. 
Additionally, the evidence in the record refutes any finding of significantly diminished mental capacity. For example, Petitioner stipulated to the factual basis of his plea agreement, indicating that he was a high-ranking official at a large public hospital, whose duties included operating and supervising the hospital's food, laundry, police, environmental, facilities and construction services, advising the board and chief executive officer, approving purchase orders, payment applications, and change orders, and lobbying architects and engineers. Petitioner offers no support for his contention that a person of such capabilities could not have exercised the power of reason. Further, Petitioner's false statements to federal investigators and the IRS further demonstrate his knowledge of the wrongfulness of his conduct and his ability to reason. Trial counsel cannot be found to be ineffective for failing to negotiate for a departure absent any evidence or any indication that Petitioner even qualified for such a departure. n3
   n3 Moreover, Petitioner has not established that his purported sex addiction contributed substantially to any of the offenses charged. The plea agreement describes a multitude of bribes related to the bribery scheme between Patel and Petitioner (Counts 1 and 2) that were wholly unrelated to sex or money to pay for sex, including accepting scuba equipment, tree removal, appliances, and retail gift cards. Further, Petitioner has not established that his sex addiction contributed at all to Counts 3-6, [the tax counts] none of which related to Neal Patel or involved travel for sex.
Similarly, there is no evidence in the record that Petitioner qualified for an aberrant behavior departure. Such a departure is only available when "the defendant committed a single criminal occurrence or a single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life." U.S.S.G. §5K2.20. Here, the record demonstrates that Carroll participated in not one, but three complex bribery schemes, spanning ten years, involving hundreds of thousands of dollars in bribes, complex accounting schemes, and significant planning. Further, Petitioner failed to report his bribe proceeds on his tax returns for five straight years and then made material misrepresentations to the FBI and IRS. By engaging in multiple criminal transactions over an extended period, Petitioner failed to meet the first and second elements of the aberrant behavior departure. Indeed, his prolonged and repeated pattern of conduct demonstrates that Petitioner's life was far from law-abiding. Consequently, trial counsel cannot be deficient in failing to argue for this departure. 
Even if Petitioner could establish that he may have qualified for either of the aforementioned departures, he has not established prejudice. Petitioner has not demonstrated that if his attorney had raised these issues at sentencing that his sentence would have been different. Petitioner pleaded guilty pursuant to a negotiated plea agreement, in which he agreed neither to "argue nor suggest in any way that a departure or variance is appropriate." Petitioner has not offered to withdraw this guilty plea. Petitioner therefore cannot show "actual prejudice" by his counsel's failure to request any departure. Indeed, had counsel done so, Petitioner could have lost the benefit of his plea agreement thereby possibly incurring an even harsher sentence. 
Further, Petitioner has not established, much less alleged, that the Court would have granted any departures and thereafter would have imposed a lesser sentence. Indeed, at sentencing, the Court found there was, 
nothing in the defendant's history or characteristics that would justify a lower sentence than the guideline range. The defendant was well educated, had every opportunity to avoid engaging in activities like this, did not really need for out of desperation or otherwise to enhance his income, he simply chose out of greed and for no other reason to participate in illegal activity in a way that stole from the public entity for which he worked and stole from the taxpayers of this community who support that public entity, and so, there is nothing that would justify a sentence below the guideline range. 
Further, the Court expressed its discomfort with whether the agreed upon sentence in this case was even sufficient, noting that, "[u]ltimately, while struggling with whether the low end is sufficient in this case, the Court will abide by the parties' plea agreement and impose the low end sentence on this defendant." Consequently, Petitioner has failed to establish that his sentence would have been different and, therefore, cannot establish ineffectiveness or prejudice under the Strickland standard.

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