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United States v. Clough

United States District Court, D. Montana, Missoula Division

September 5, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JESSICA LYNN CLOUGH, aka Jessica Lynn Kotur, Defendant/Movant.


          Donald W. Molloy, United States District Judge

         Jessica Lynn Clough moves to vacate, set aside, or correct her sentence, pursuant to 28 U.S.C. § 2255. Clough is a federal prisoner proceeding pro se. She has also filed a motion seeking reconsideration of her sentence. All pending matters are addressed. Each of her claims is denied for the reasons set forth below.

         I. Motion for New Counsel

         Clough asks the Court to appoint new counsel to represent her. See Mot. § 2255 (Doc. 75) at 6 ¶ 6. Counsel may be appointed at any stage of the proceedings if "the interests of justice so require." 18 U.S.C. § 3OO6A(a)(2)(B). Under § 3006A, the court must consider the likelihood of success on the merits, the complexity of the legal issues involved, and the movant's ability to articulate her claims pro se. See Weygandt v. Look, 718 F.2d 952, 954 ¶ 2 (9th Cir. 1983) (per curiam). Counsel must be appointed "when the case is so complex that due process violations will occur absent the presence of counsel," Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993) (discussing Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), or when an evidentiary hearing is required, Rule 8(c), Rules Governing § 2254 Cases.

         Clough presents coherent motions articulating claims for relief. As explained, her claims lack merit, but that is not due to any lack of ability on her part or to the complexity of the task. There is no reason to suppose her right to due process is in jeopardy. The circumstances of her case do not warrant the appointment of counsel. That request is denied.

         II. Motion Under 28 U.S.C. § 2255

         A. Preliminary Review

         Before the United States is required to respond to Clough's § 2255 motion, the Court must determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (''Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But the Court should "eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         B. Background

         On October 26, 2016, a grand jury indicted Clough on one count of conspiracy to commit wire fraud, a violation of 18 U.S.C. § 1349 (Count 1); 109 counts of wire fraud, violations of 18 U.S.C. § 1343 (Counts 2-110); one count of conspiracy to commit money laundering, a violation of 18 U.S.C. § 1956(h) (Count 111); one hundred one counts of money laundering in violation of 18 U.S.C. § l956(a)(1)(B)(i) (Counts 112-132); two counts of money laundering in violation of 18 U.S.C. § 1957 (Counts 133 and 134); and three counts of tax evasion, violations of 26 U.S.C. § 7201 (Counts 135-137). Clough retained attorney Robert Bernhoft for her defense, with Matthew Stevenson as local counsel. See Order (Doc. 34); Acknowledgment (Doc. 35).

         The Indictment alleged Clough defrauded her employer by entering legitimate payees in the company accounting system while actually writing company checks to herself (Counts 16-21), third parties (Counts 79-110), her husband Randy[1] (Counts 22-36), his mowing business (Counts 37-58), and a contracting firm renovating their home (Counts 59-78). She also used the company credit card for her personal expenditures and frequently paid off the card balance with company checks to avoid detection (Counts 2-15). Randy assisted her in concealing the scheme by transferring funds from his mowing business account to his personal account (Counts 112-132). The pair also withdrew funds from Randy's personal account to purchase a BMW and to pay the contracting firm (Count 133-134). As a result of these machinations, Clough underreported her income in calendar years 2011, 2012, and 2013 (Counts 135-137).

         On April 7, 2017, the parties filed a fully executed plea agreement. Clough agreed to plead guilty to one count of wire fraud (Count 2), one count of money laundering (Count 133), and one count of tax evasion (Count 137). She also agreed to pay restitution to the Internal Revenue Service in the amount of $189, 737.00 and waived her right to appeal the sentence. See Plea Agreement (Doc. 49) at 2 ¶ 2, 3 ¶ 4(a), 11-12 ¶ 10. The United States agreed to dismiss the remaining counts and to move for a two-level or, if appropriate, a three-level reduction in the offense level for acceptance of responsibility. See Id. at 2 ¶ 2, 11 ¶ 8. On April 20, 2017, Clough pled guilty in open court. See Minutes (Doc. 55).

         Sentencing was held on September 14, 2017. The probation office calculated the guideline application and restitution amount. On Counts 2 and 133, Clough's base offense level was seven. She received a 14-level enhancement for a loss amount between $400, 000 and $1, 000, 000, a two-level sophisticated-means enhancement, a one-level enhancement for conviction under 18 U.S.C. § 1957, and a two-level enhancement abuse of a position of trust. The adjusted offense level for Counts 2 and 133 was 26. See Presentence Report ¶¶ 49-57 & Ex. A. On Count 137, the tax loss fell between $80, 000 and $200, 000, resulting in a base offense level of 16. Clough received a two-level enhancement for failure to identify the source of income exceeding $10, 000 from criminal activity. The adjusted offense level was 18. See Id. ¶¶ 58-63. Under the rules for multiple counts, the combined adjusted offense level was 27. The United States moved for and obtained a three-level downward adjustment for acceptance of responsibility. The total offense level was 24. See Id. ¶¶ 64-71. With a criminal history category of I, the advisory guideline range was 51 to 63 months. See Id. ¶ 121. The restitution amount was $590, 244.26 for the fraud offense and $189, 737.00 for the tax offense. See Id. ¶ 133 & Ex. B.

         At sentencing, Clough objected to the two-level enhancements for sophisticated means and abuse of a position of trust. She also objected to several aspects of the restitution amount, including its redundancy with a civil judgment obtained by her employer in state court. See Presentence Report Addendum at 1-5; Sentencing Tr. (Doc. 73) at 5:5-10:25. Her objections were overruled. See Sentencing Tr. at 13:23-18:2. Counsel argued thoughtfully, articulately, and at length about the guideline levels for fraud and tax offenses and about Clough's good characteristics as evidenced by the many ...

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