United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
matter is before the court upon John Norman Sims'
“Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody” (ECF No. 212). The Government responded (ECF
No. 228, 229), and Sims filed a reply (ECF No. 236). The case
was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2; see also 28 U.S.C. § 636(b) and
Fed.R.Civ.P. 72(b). After reviewing the record and, on
September 18, 2017, conducting an evidentiary hearing, the
undersigned now recommends that Sims' motion be granted
to the extent that he be allowed to withdraw his guilty plea
to Count 34 of the indictment, subject to the
Government's right to proceed against him on this count.
23, 2013, John Norman Sims was charged in the following
counts of a 34-count indictment:
Count 1: Conspiracy to Commit Bribery, Theft
of Government Funds, Disclosing or Obtaining Contractor Bid
or Proposal Information of Source Selection Information,
Honest Services Mail Fraud, and the Making of False
Statements within the Jurisdiction of the Executive Brand of
the U.S. Government, between February 2007 and June 2010, in
violation of 18 U.S.C. §§ 371 and 1349;
Count 3: Bribery, between December 2005 and
May 2009, in violation of 18 U.S.C. § 201(b)(1)(B);
Count 5: Bribery, between August 2007 and
October 2007, in violation of 18 U.S.C. § 201(b)(1)(B);
Counts 7-11: Theft of Government Property in
violation of 18 U.S.C. §§ 641 and 2;
Counts 12-18: Disclosing or Obtaining
Contractor Bid or Proposal Information or Source Selection
Information, on seven dates certain, in violation of 41
U.S.C. § 423 and 18 U.S.C. § 2;
Counts 19-23: Scheme or Artifice to Commit
Mail Fraud, on five dates certain, in violation of 18 U.S.C.
§§ 1341, 1346, and 2;
Count 24: Money Laundering in or about
December 2005 and in or about May 2009 in violation of 18
U.S.C. §§ 1956(a)(1)(A)(i), (B)(i) and 1956(h);
Counts 25, 30, 32: Making False Statements
within the Jurisdiction of the Executive Branch of the
Government of the United States, on three dates certain, in
violation of 18 U.S.C. § 1001; and
Count 34: Possession or Retention of
Information Relating to the National Defense,  between on or
about August 6, 2008, and on or about March 24, 2012, in
violation of 18 U.S.C. § 793(e).
(ECF No. 3; ECF No. 145).
retained attorney James Van Camp of North Carolina as well as
local counsel John Beroset to represent him. On July 7, 2014,
he pleaded guilty pursuant to a written plea agreement to
Counts One (Conspiracy), Three (Bribery), Nine (Theft of
Government Property), Sixteen (Disclosing or obtaining
contractor bid or proposal information or source selection
information), and Thirty-Four (Possession or retention of
information relating to the national defense) (ECF Nos.
105-108). The plea agreement provided that the Government
would move to dismiss the remaining counts against him at
sentencing. Additionally, the agreement “specifically
exclude[d] and d[id] not bind any other . . . federal agency
. . . from asserting any civil, criminal, or administrative
claim against the Defendant” (ECF No. 107 at 1).
plea colloquy the court asked Sims whether he had reviewed
the Statement of Facts and whether the facts contained
therein were true and correct (ECF No. 217 at 8-9). Sims
acknowledged he had carefully reviewed the document and that
the facts set forth therein were true and correct. The court
explained the possible penalties Sims faced, including a term
of supervised release, and that his sentence could not be
predicted (ECF No. 217 at 9-12). Sims acknowledged his
signature on the plea agreement and supplement thereto, and
the fact that he had reviewed the agreement in careful detail
with counsel (ECF No. 217 at 12). The following exchange then
THE COURT: And does this document contain all of the promises
and all of the agreements that you feel you have with anyone
that causes you to enter the plea here today?
THE DEFENDANT: I believe it does, Your Honor.
THE COURT: All right. So there are no secret or undisclosed
promises or agreements?
THE DEFENDANT: Absolutely not.
THE COURT: All right. And do you understand that this is an
agreement between you and the Government and is not binding
on the Court in any way. The Court does reserve the right to
impose any sentence that might be lawful and proper in your
THE DEFENDANT: I understand. Yes, Your Honor.
(ECF No. 217 at 12-13). Sims responded in the affirmative
when the court asked whether he had sufficient time to
discuss his case with his attorneys (ECF No. 217 at 14). When
the court asked if he was satisfied with the representation
they had provided to him, Sims responded that “[t]he
representation has been stellar, Your Honor. Thank
you.” (ECF No. 217 at 15). The court then asked Sims
whether he had any questions about anything that had been
discussed or any of the court's questions, and whether he
wanted to change, add to, or modify any of his answers
(id.). Sims responded “No, Your Honor”
and thanked the court for its patience (id.). At no
time did he indicate that he had any questions about the
penalties he faced, and neither he nor his attorneys broached
the subject of his retirement pay.
Presentence Investigation Report (“PSR”)
calculated that Sims had a total offense level of 30 and a
criminal history category of I (ECF No. 145, PSR ¶¶
87- 108, 111-112). The applicable guidelines range of 97 to
121 months was limited, as to Count 16 only, to 60-months
imprisonment due to the application of a statutory maximum
(ECF No. 145, PSR ¶¶ 157-158).
October 28, 2014, after expressly stating that it had taken
into account all of the factors enumerated by 18 U.S.C.
§ 3553(a), the court sentenced Sims to concurrent
below-guidelines terms of 36-months imprisonment on each
count, followed by three years of supervised release (ECF
Nos. 154, 170, 171). Sims did not appeal, and he began to
serve his sentence on January 28, 2015 (ECF No. 187).
filed the instant motion to vacate pursuant to the prison
mailbox rule on October 18, 2016 (ECF No. 212). The lone ground
for relief is that counsel provided constitutionally
deficient representation as it related to Sims' decision
to enter a guilty plea to Count 34. Sims claims that his
retained attorneys' affirmative misadvice regarding the
consequences of a conviction under 18 U.S.C. § 793(e)
rendered his plea involuntary and unintelligent as to that
count. He also alleges in his memorandum that counsel failed
to investigate and provide accurate advice about the
potential loss of retirement and related benefits that would
flow from a conviction of this offense.
the instant prosecution, Sims had retired honorably from the
United States Air Force and was receiving approximately $3,
500 per month in military retirement pay, as well as full
health insurance benefits for his family (ECF No. 212 at 12).
He states in his motion that he asked his attorneys whether
pleading guilty would, or could, cause the forfeiture or
termination of his military retirement pay and benefits. He
states he was informed that it would not (ECF No. 212 at
12-13). Sims also maintains that Mr. Van Camp relayed to him
that AUSA Stephen Kunz had indicated that the Government
“would not be going after [his] retirement” (ECF
No. 212 at 13). Sims asserts that the advice provided by his,
which led him to accept the plea offer, was plainly wrong. He
further claims that if he had been correctly advised about
the ramifications of his plea, he would not have pled guilty
to this charge, because it was important to him to maintain
his retirement and medical benefits.
Government opposes the motion claiming in turn that (1) the
motion is untimely; (2) a lack of advice about collateral
consequences of a plea does not render the plea uninformed or
involuntary; and (3) Sims cannot show prejudice (ECF No. 228
undersigned held an evidentiary hearing on September 18,
2017. Assistant Federal Public Defender Tom Keith represented
Defendant at the hearing. Assistant United States Attorney
Andrew Grogan, who prepared the Government's response to
the § 2255 motion but was not the attorney who
prosecuted the case, appeared on behalf of the Government. At
the conclusion of the hearing, the court asked the parties if
they wanted to submit argument on the issue of the
appropriate remedy if the court were to grant relief on
Sims' claim, or any other supplemental briefing as a
result of the hearing (ECF No. 250 at 226). The parties'
submissions, limited to the question of the appropriate
remedy, are now part of the record (ECF Nos. 247, 248).
hearing, the defense first presented brief testimony from
three of Sims' friends to whom he had made comments about
his retirement pay or benefits. Robert Morton Miller
testified that Sims told him that Sims' wife would still
receive his military benefits. Therefore, Miller was
surprised to hear that Sims' benefits had ceased, once
this occurred. Sims never told him that this was contrary to
what his attorneys advised.
Ulrich testified that Sims told her he was concerned about
the loss of retirement income, but his attorneys had advised
him that the Government was not going after his retirement.
Ulrich did some “open source research” for Sims
regarding the potential loss of his retirement benefits
before he entered his plea. She stated that she did so
because Sims was ill from his prostate cancer treatments. In
response to the court's question about why such research
was necessary if Sims' lawyers had told him he would be
fine, Ulrich testified that it was Sims' nature to want
as much information as he could find. She denied having
received the impression that Sims did not trust his lawyers.
Patrick Lawson testified telephonically that he spoke with
Sims before trial, and Sims indicated that he believed he
would receive his military pension, but not his disability,
during incarceration. Sims also stated he was relying on his
retirement income to provide partially for his family while
he was in prison. In light of the forced sale of the
family's primary residence, Sims rented a house from
Lawson for his wife to live in during his incarceration.
Lawson testified that he had been confused about how Sims
would be able to pay for it until it became clear that a
military pension would help cover his costs.
parents, Eleanor and Colonel Johnny Norman Sims Sr., also
testified. Mrs. Sims recalled that their son had come to
visit around June 11 or 12, 2014, and they had talked about
his case. She testified that, as retired military personnel,
she and Sims' father were concerned about their son's
medical benefits and his retirement. Sims told his parents
that his lawyer had advised that his retirement would not be
affected. Mrs. Sims said she believed that it was Mr. Van
Camp who had provided this advice. As a result, they were
shocked when Sims' wife (Kathy Sims) called them,
hysterical, after the benefits were discontinued. In speaking
separately with her son and his wife afterward, she did not
recall Sims blaming his lawyers, but she testified that Kathy
Sims said words to the effect that she “can't
believe this has happened when they told him it wasn't
going to happen” (ECF No. 250 at 45, 46).
Sims testified that when his son came to visit June 11-12,
2014, one month before his plea, the elder Sims asked whether
the case would affect his military retirement or Tricare. His
son responded that, according to his lawyers, his retirement
and health benefits would not be affected in any way. The
elder Sims also testified that Sims told him that his lawyer
had said that the prosecutor said that they were not going
after his retirement. Colonel Sims testified that he was
under the impression that it was Van Camp who had made this
statement. He elaborated that he believed the reason Sims had
two lawyers was because he needed a Florida lawyer too, and
that Van Camp was the primary lawyer on the case.
daughter, Kristin Nicole Sims, testified that she recalled
her father stating that his attorney had told him that his
retirement would be safe and that was the one thing they had
going for them. Ms. Sims said her father did not specify
which attorney had advised him of such. She further stated
that her father repeated this multiple times throughout the
process, reiterating words to the effect that “at least
we have that.” Mrs. Katherine “Kathy” Sims
(Defendant Sims' wife) testified that she had been a
school teacher for 22 years. Because the family had moved
around for her husband's career, she did not have her own
retirement benefits. Mrs. Sims recalled many conversations
about her husband's military retirement and health care.
She was concerned because they had to sell their home and use
retirement savings to pay for lawyers. Mrs. Sims recalled
learning from her husband about what had transpired during a
meeting Van Camp had with AUSA Kunz. Her husband told her
that when Van Camp got out of the meeting with Kunz he said
that the Government had a really good case, but the good news
was that the Government would not be going after their
retirement. Mrs. Sims described this news as a huge relief
given the uncertainty of their situation. The health benefits
and retirement were a comfort because when she and her
husband could be back together they could rebuild their lives
with the retirement.
Sims testified that both she and her husband attended a
meeting with Van Camp where they discussed the Sentencing
Guidelines. She said that she could remember leaving the
meeting knowing that her husband was going to prison, but
that they had the retirement. Mrs. Sims did not recall
anything that was specifically stated during the meeting,
only that when she left there she felt she did not have to
worry about the retirement (ECF No. 250 at 77). Mrs. Sims
further testified that when the retirement benefits ceased
some months after her husband's incarceration, Mrs. Sims
talked to both lawyers, whom she described as
“shocked” because they had no idea this was
coming (ECF No. 250 at 81). She even called AUSA Robert
Wallace, from Washington D.C., who had been involved in the
case. Mrs. Sims recalled that the lawyers speculated that
perhaps the benefits stopped during the pendency of Sims'
incarceration, but they really did not know what happened or
what to do.
Sims then contacted the military. She spoke to a Colonel
Mitchell to whom Mr. Beroset later wrote an email on
Sims' behalf. She said that Mr. Van Camp also sent a
letter to a different Colonel in an attempt to get Sims'
retirement reinstated. Mrs. Sims was asked on
cross-examination why neither her comments to her
mother-in-law nor her emails to Beroset referenced what the
lawyers had allegedly told them about the security of the
retirement. She explained that at the time she thought the
Government was just stopping it because her husband was
incarcerated, and that this was the result of “the
Government.” Defendant Sims was the last defense
witness. He recalled that the first discussion of the
retirement issue was when he met with Van Camp in Charleston,
South Carolina, and Van Camp asked if Sims had retirement.
Sims also testified that the first time he and his lawyers
were allowed into the classified facility,  that Beroset
asked Sims if the case would affect his retirement (ECF No.
250 at 97). Sims responded that he hoped that it would not,
and Van Camp adamantly stated that they needed to ...