United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
T. CANNON, UNITED STATES MAGISTRATE JUDGE
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. 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.
AND PROCEDURAL HISTORY
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. 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.
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.
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.
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.
nine-day jury trial began before the Honorable J. Richard
Smoak, Jr., on September 9, 2013. 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,  and due to the circumstances
surrounding the live seminars that lent the pitch an aura of
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
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
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.
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