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United States v. Carpenter

United States District Court, D. Montana, Great Falls Division

May 15, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Brian Morris United States District Court Judge

         This 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.

         The 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.

         I. Background

         The 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 scheme.

         A grand 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.

         Campa 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.

         Campa 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 case.

         A 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.

         The 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.

         Carpenter 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).

         II. Remaining Claims and Analysis

         Both of 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.

         The 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.

         A. Venue

         Carpenter 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.

         1. Arguments in the Answer

         As the 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.

         Carpenter 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.

         The 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.

         The 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.

         In 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.

         Similarly, 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 California.” Id.

         For 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.

         2. ...

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