United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
case comes before the Court on Defendant/Movant Steven
William Carpenter's motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255.
Carpenter is a federal prisoner proceeding pro se.
Court denied some of Carpenter's claims for lack of merit
on December 16, 2016. The United States filed an answer on
two claims on February 3, 2017. Carpenter filed a reply and,
three weeks later, a supplement to the reply.
prosecution in this case centered on a scheme to obtain money
from investors for a non-existent oil and gas development
project on the Fort Peck Indian Reservation. The reservation
is near enough to the Bakken oil formation to use the word as
bait for investors, but not quite near enough actually to tap
the Bakken. Carpenter worked with co-defendant Mike Alfons
Campa (also known as Mike Heretel), who was acknowledged by
all to be the leader of the group. Campa's wife Suzette
Gal, her sons Andras and Krisztian Gal, and Carpenter's
girlfriend, Dana Yvonne Kent, also participated in the
jury indicted the six defendants on one count of conspiracy
to commit investment fraud by wire and mail, a violation of
18 U.S.C. § 371 (Count 1); one count of wire fraud, a
violation of 18 U.S.C. § 1343 (Count 2); and one count
of mail fraud, a violation of 18 U.S.C. § 1341 (Count
3). See Indictment (Doc. 19) at 2-3. Count 1 carried
a five-year maximum prison sentence. Counts 2 and 3 carried
20-year maximum sentences.
pled guilty to all counts without a plea agreement on April
22, 2013. The Court held a final pretrial conference as to
Carpenter and the Gal defendants. Kent pled guilty and had no
involvement in the remainder of the case. Trial commenced on
April 23, 2013. Campa testified for the Gal defendants.
blamed himself and Carpenter for the entire scheme. Carpenter
also testified. After six days of testimony by more than 25
witnesses, the jury deliberated for two hours and fifteen
minutes. The jury convicted Carpenter and Suzette and Andras
Gal on all counts. The jury convicted Krisztian Gal on Count
1 and acquitted him on Counts 2 and 3. Krisztian Gal's
conviction on Count 1 was later vacated for insufficient
evidence. He pled guilty to a similar charge in a different
presentence report was prepared. Starting from a base offense
level of 7, Carpenter received a 14-level enhancement because
the loss exceeded $400, 000; a four-level enhancement for 50
or more victims; and three two-level enhancements for
sophisticated means, vulnerable victims, and leading role.
Presentence Report ¶¶ 43-48. The total adjusted
offense level was 31. With a criminal history category of IV,
Carpenter's advisory guideline range was 151 to 188
months. Id. ¶¶ 61, 115.
Court sentenced Carpenter to serve 60 months on Count 1, 62
months on Count 2, and 66 months on Count 3, with all three
terms to run consecutively, followed by a three-year term of
supervised release. The Court also ordered Carpenter to pay
$675, 406.62 in restitution, jointly and severally, with
Campa and the Gal defendants. See Judgment (Doc.
413) at 2-6.
appealed. As relevant here, he argued that venue was not
proper in Montana. The Ninth Circuit rejected all of his
arguments and affirmed his convictions on March 27, 2015.
See Mem. (Doc. 589) at 1-18, United States v.
Carpenter, No. 13-30241 (9th Cir. Mar. 27, 2015).
Remaining Claims and Analysis
Carpenter's remaining claims allege that his trial
counsel provided ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984)
governs claims for ineffective assistance of counsel. At this
stage of the proceedings, Carpenter must allege facts
sufficient to support an inference (1) that counsel's
performance fell outside the wide range of reasonable
professional assistance, id. at 687-88, and (2) that
a reasonable probability exists that, but for counsel's
unprofessional performance, the result of the proceeding
would have been different, id. at 694.
Court directed the United States to answer the remaining
claims. The Court warned the United States that it could not
discuss the case with Carpenter's trial counsel. The
Court instead required the United States to “respond to
the allegations on the merits based on the information
currently available to the United States.” Order (Doc.
646) at 14-15 ¶ 3. The United States requests no
evidentiary hearing and asserts that the case should be
decided on the existing record because Carpenter's claims
are “palpably incredible or patently frivolous.”
See Answer (Doc. 654) at 2, 10, 11.
alleges that his trial counsel failed to make a motion
regarding improper venue before trial thereby waiving the
issue for future review. Carpenter asserts that counsel's
“lack of investigation and preparation for trial
certainly must have been a factor in the oversight.”
Carpenter claims that “the evidence . . . revealed
during trial, there were no ties to the district of Montana
for counts 2 or 3 of the indictment regarding
Carpenter.” Mem. in Supp. of § 2255 Mot. (Doc.
636) at 21-22.
Arguments in the Answer
Order of December 16, 2016, explained, Carpenter's claim
that “there were no ties to the district of Montana for
counts 2 or 3” proves incorrect. The Ninth Circuit
determined that sufficient evidence supported venue on Counts
2 and 3. See Order (Doc. 646) at 11. The United
States's answer goes too far in asserting that this
determination means “[n]othing more is required.”
Answer (Doc. 654) at 5-6.
raised venue for the first time on appeal and also asserted
that trial counsel provided ineffective assistance of counsel
for failing to object to venue. The Ninth Circuit determined
that Carpenter had waived the issue. As a result, the Ninth
Circuit applied plain error review.
Ninth Circuit concluded that the United States had presented
sufficient evidence of venue to support Carpenter's
convictions on Counts 2 and 3. The Ninth Circuit conceded
that the record created at trial did not enable it to decide
whether counsel had provided ineffective assistance of
counsel. See Mem. (Doc. 589) at 4-5,
Carpenter, No. 13-30246. The Ninth Circuit did not
resolve Carpenter's ineffective assistance of counsel
claim. The Ninth Circuit's determination that sufficient
evidence existed to support venue in Montana on Counts 2 and
3 under the plain error review does not control disposition
of Carpenter's ineffective assistance of counsel claim.
United States's answer also avers that the indictment
adequately established venue in Montana when it alleged that
each offense took place “at Poplar, in the State and
District of Montana.” Answer at 4-5. An indictment need
only contain a bare-bones allegation of proper venue. An
indictment nonetheless must allege something that, assuming
to be true, makes venue proper.
United States v. Mendoza, 108 F.3d 1155, 1156 (9th
Cir. 1997), for instance, the indictment alleged that
“within the Western District of Washington, ” the
defendants “knowingly and intentionally did possess and
aid and abet the possession of, with intent to distribute,
cocaine.” This allegation proved sufficient to
establish venue “because the crime of drug
possession with intent to distribute, or aiding and abetting
such possession, occurs where the principal commits
it.” Id. (emphases added). The mere
recitation of the phrase “within the Western District
of Washington” did not satisfy venue. The additional
allegation that the defendants possessed cocaine in
Western Washington, intending to distribute it, established
proper venue for trial.
in Rodd v. United States, 165 F.2d 54 (9th Cir.
1947), cited in Carbo v. United States, 314 F.2d
718, 733 n.13 (9th Cir. 1983), quoted in Answer at
5, the equivalent of the phrase the United States here relies
on-“at Poplar, in the State and District of
Montana”-was missing from the first count of the
indictment. See Rodd, 165 F.2d at 55. Nonetheless,
Count 1 alleged that an obscene book had been
“deposited with a common carrier . . . for carriage
from Brooklyn, State of New York, to San Diego . . . within
the Southern Division of the Southern District of
these reasons, the government's answer does not show that
a motion to dismiss would have been denied. The government
asks the Court to decide Carpenter's claims on the
existing record. The government has elected to forego an
evidentiary hearing or an opportunity to conduct discovery to
determine whether counsel possessed a reasonable strategic
basis for not objecting to venue. The Court will decide
Carpenter's claim on the existing record.