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United States v. Sims

United States District Court, N.D. Florida, Pensacola Division

January 4, 2018

UNITED STATES OF AMERICA
v.
JOHN NORMAN SIMS

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE

         This 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.

         PROCEDURAL BACKGROUND

         On July 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, [1] 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).

         Sims 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).

         At the 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 took place:

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 case.
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.

         The 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).

         On 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).

         Sims filed the instant motion to vacate pursuant to the prison mailbox rule on October 18, 2016 (ECF No. 212).[2] 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.

         Before 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.

         The 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 at 2-4).[3]

         The 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).

         The Evidentiary Hearing[4]

         At the 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.

         Marie 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.

         William 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.

         Sims' 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).

         Colonel 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.

         Sims' 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.

         Mrs. 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.

         Mrs. 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, [5] 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 ...


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