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United States v. Calle

United States District Court, N.D. Florida, Panama City Division

May 8, 2019

UNITED STATES OF AMERICA
v.
WILSON CALLE

          REPORT AND RECOMMENDATION

          HOPE T. CANNON, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Wilson Calle's (“Calle”) “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF Doc. 509), the Government's response (ECF Doc. 516) and Calle's reply (ECF Doc. 523). Calle's motion is based on one ground -that his counsel was ineffective for failing to raise a timely objection at trial to the district court's disclosure to the jury that a co-conspirator defendant had pled guilty and failing to timely move for a mistrial.[1] This 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). Based on a review of the record and the arguments presented, the undersigned recommends Defendant's § 2255 motion be DENIED without an evidentiary hearing because Calle has failed to meet his heavy burden of showing counsel's representation was constitutionally ineffective. See Rules 8(a) and (b), Rules Governing Section 2255 Cases.

         BACKGROUND AND PROCEDURAL HISTORY

         On April 19, 2012, a federal grand jury returned a 54-count indictment against Calle and six (6) co-defendants, Evelyn Johnston, Blaine Johnston, Hector A. Cabrera, Diana M. Gonzalez, Angel Done and Wilfredo Rodriguez. ECF Doc. 1. The charges were based on an extensive conspiracy to defraud the Internal Revenue Service through the filing of fraudulent tax returns claiming refunds totaling over $19, 000, 00.00.[2] Id. Count One charged Calle and the other defendants with a conspiracy to defraud the Government with respect to claims between October 1, 2008, and October 27, 2009, in violation of 18 U.S.C. §§ 286 and 287. ECF Doc. 1 at 1-9. Counts 44 through 53 charged Calle and Angel Done with filing false claims in violation of 18 U.S.C. §§ 287 and 2. Id. at 12-13.

         Calle was arrested in New York and had his initial appearance before U.S. Magistrate Judge Cheryl Pollak in the Eastern District of New York. ECF Doc. 94, at 1. He was then transferred to Panama City, Florida, where he was arraigned by Magistrate Judge Larry A. Bodiford. See Id. at 2. At the arraignment, Calle did not have an attorney, elected not to complete a financial affidavit and advised the Court he wished to represent himself. Id. Subsequently, he filed two (2) motions objecting to the Court's jurisdiction over him as a sovereign American Citizen. ECF Docs. 83, 99. The Court denied both motions. ECF Docs. 86, 117. At the request of the Government, and over Calle's objection, the Court held a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), on July 18, 2012, to determine whether Calle had waived his right to counsel, to ensure he knew the consequences of doing so and to inquire into his ability to make such a decision knowingly, voluntarily and intelligently. ECF Docs. 94, 105, 128, 133. The Court found Calle “did not unequivocally waive his right to counsel” and directed the Federal Public Defender to provide counsel. ECF Doc. 124.

         CJRA attorney Thomas Cassidy, III, filed a notice of appearance on August 7, 2012. ECF Doc. 134. On September 17, 2012, Mr. Cassidy moved to withdraw. ECF Doc. 150. Mr. Cassidy requested the Court evaluate Calle's representation options given Calle's “concerns about the quality of his current representation.” Id. Mr. Cassidy reported his client did not trust or have confidence in counsel; believed counsel was dishonest; and believed counsel was insufficiently motivated by CJRA compensation. ECF Doc. 150. Counsel's motion was granted, and CJRA counsel Rachel Seaton-Virga took his place on October 12, 2012. ECF Docs. 154, 155.

         In August 2013, Ms. Seaton-Virga filed a Motion to Evaluate Representation and Motion to Withdraw as Counsel for Defendant and a Supplemental Motion. ECF Docs. 240, 245. Similar to what Mr. Cassidy had reported, Ms. Seaton-Virga advised the Court Calle had expressed that he did not trust or have confidence in her; he did not believe counsel could provide zealous effective assistance of counsel; and he believed the relationship between him and his attorney to be irreversibly broken. ECF Doc. 245 at 1. Counsel denied the latter two allegations, although Calle had filed a pro se law suit against her and others related to the present case in which he claimed violations of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). ECF Doc. 245 at 2, 4-16. The Court denied the motions without a hearing on September 4, 2013, based on counsel's assurances that she could provide effective assistance of counsel and the relationship was not irretrievably broken. ECF Doc. 247.

         A nine-day jury trial began before the Honorable J. Richard Smoak, Jr., on September 9, 2013.[3] At trial, defendants Calle, Blaine Johnston, Rodriguez, Gonzalez and Done collectively asserted a good-faith defense and proclaimed ignorance that their submission of the 1099-OID form in this manner was illegal. According to the defense, the 1099-OID process appeared legitimate based on the willingness of co-defendant Evelyn Johnston, an IRS enrolled agent, to submit these filings through ABACO, [4] and due to the circumstances surrounding the live seminars that lent the pitch an aura of credibility.

         On the fourth day of trial, a Thursday, defendant Gonzalez tendered a guilty plea to Count One of the indictment. ECF Doc. 434 at 5; ECF Docs. 270-272. Without consulting with counsel, the District Judge made the following disclosure to the jury:

You all have been locked away. I apologize for the delay but we had to first deal with another matter, and one of those matters that defendant Diana M. Gonzalez, pursuant to an agreement with the Government, pled guilty to Count One, and she is no longer on trial.

ECF Doc. 434 at 5. None of the four remaining defense attorneys either voiced an objection or requested that a limiting instruction be given. See id. The following Monday, the sixth day of trial, defense counsel jointly moved for a mistrial based on the District Judge's earlier disclosure. ECF Doc. 446 at 3-5. Defendant Done's counsel, Walter B. Smith, made the motion on behalf of all the defendants. In speaking to the Court, Mr. Smith explained:

It sort of took us by surprise when you informed the jury that she had pled guilty, because our defense strategy from the beginning has been everybody is similarly situated, everybody had the same information, everybody acted on the information that they obtained from seminars, et cetera. So it sort of caught us off guard. And we didn't have a chance to research the issue until this weekend.

ECF Doc. 446 at 3-4. Mr. Smith also stated “[n]ow, the reason I didn't object when-when you informed the jury, I didn't want to highlight it anymore, and I didn't know what the law was, and I didn't want to object and-and raise-focus more attention on it if it was not error, reversible error.” ECF Doc. 446 at 4. Neither Ms. Seaton-Virga nor any of the other defense attorneys spoke at that time.

         The Court denied the motion for mistrial but directed defense counsel to propose a curative instruction. Id. at 5. The Court advised counsel that, if requested, the curative instruction could be given twice-once during trial as soon as an instruction could be prepared and approved and again during the final charge to the jury. Id.

         After the Government rested on the sixth day of trial, the defendants individually moved for judgments of acquittal. ECF Doc. 446 at 240-263. Attorney Seaton-Virga argued the Government had not proven Calle had any knowledge his conduct was illegal. Id. at 258-260. The Court denied Calle's motion, as well as those made by the other defendants. Id. at 263. The defense proceeded to present their evidence, and defendants Done, Johnston and Rodriguez testified. Calle did not testify. ECF Docs. 451, 452. During closing arguments, counsel for Done reminded the jury that Gonzalez's guilty plea was not evidence against his client. ECF Doc. 452 at 69. Ms. Seaton-Virga noted in her closing argument that Mr. Smith had touched on many of the same points she had planned to address without specifically mentioning Ms. Gonzalez's plea. ECF Doc. 452 at 86. During jury instructions, the Court gave the jurors the following curative instruction:

. . . I told you last week that Diana Gonzalez is no longer a participant in the trial because she had pled guilty to a charge. I also instruct you that you must completely disregard what I said at that time about Diana Gonzalez, and you must not consider what I said about Diana Gonzalez's ...

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