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United States v. Gunter

United States District Court, M.D. Florida, Tampa Division

September 24, 2019

UNITED STATES OF AMERICA,
v.
PAUL ROBERT GUNTER

          ORDER

          MARY S. STRIVEN UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Gunter’s motion under 28 U.S.C. 2255 to vacate and supporting memorandum, the United States’ response, and Gunter’s reply, as supplemented. (Docs. 1, 8, 15, 25 and 42) Upon consideration of the papers and in accordance with the Rules Governing Section 2255 Cases in the United States District Courts, it is ORDERED that the motion to vacate is DENIED.

         A jury found Gunter guilty of all but one count of a 36-count indictment that charged Gunter and five others with various offenses relating to two investment-fraud schemes. Gunter is imprisoned for 300 months. The convictions and sentences were affirmed on appeal. United States v. Odoni, et. al., 782 F.3d 1226 (11th Cir.), cert. denied, 135 S.Ct. 2335 (2015). As summarized by the circuit court, “Gunter provided escrow services and managed bank accounts in connection with the two investment-fraud schemes.” 782 F.3d at 1234 The United States correctly summarizes Gunter’s involvement in the schemes as follows (Doc. 15 at 12–13) (citations to trial transcript omitted):

Gunter, who was an old friend of [co-conspirator] Pope, took over the banking and administrative functions of the fraudulent stock scheme and managed them out of Florida. This role required Gunter to establish several escrow companies and bank accounts to receive the investors’ money. In addition, after investors agreed to purchase stock shares, Gunter, through his daughter, sent paperwork to the investors that explained where the investors should send payments for the shares they had agreed to buy. Once investors wired payments to the designated bank accounts, Gunter’s daughter contacted associates (initially in Costa Rica, the headquarters of another co-conspirator, Larry Hartman) who prepared board resolutions authorizing the issuance of stock certificates to those investors. Based on the board resolutions, a transfer agent produced stock certificates for those investors, and Gunter’s daughter, Zibiah Gunter, sent the certificates to the investors via UPS delivery.
Zibiah Gunter acted at the direction of Gunter, Pope, and or Hartman, and redistributed the funds that the investors had wired into the escrow bank accounts. The sales teams, located in Spain, who sold the fraudulent stock, also referred to as “advisor groups, ” typically received sixty percent or more of the gross receipts, and Gunter, Hartman, and Pope each took shares of the remaining funds. No one told the investors about this redistribution of their investment principal. Ultimately, more than $127 million in investor funds came through the various bank accounts that Gunter set up in furtherance of the fraudulent-stock scheme.

         Gunter moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges the validity of his convictions. Gunter asserts four grounds for relief: one claim of trial court error, two claims of ineffective assistance of trial counsel, and one claim of ineffective assistance of appellate counsel. Gunter is not entitled to relief.

         I. TRIAL COURT ERROR

         In Ground One Gunter challenges the constitutionality of the mail fraud and wire fraud statutes under which he was convicted. Gunter contends that Congress unconstitutionally delegated legislative authority to the judiciary to define an essential element of each crime. He argues that this Court supplied a definition, which “transforms the statute into a Bill of Attainder and creates sanctions in an Ex Post Facto manner.” (Doc. 1 at 13) The United States correctly argues that Gunter forfeited this claim by not both asserting an objection at trial and raising the claim on direct appeal. “The general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). See also Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989) (“In general, a defendant must assert an available challenge to a sentence on direct appeal or be barred from raising the challenge in a section 2255 proceeding.”), cert. denied, 494 U.S. 1018 (1990). Gunter cannot now present his claim in a post-conviction proceeding. Nonetheless, the claim lacks merit for the reasons argued in the response. (Doc. 15 at 7–15)

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Gunter claims ineffective assistance of counsel, which is a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” 466 U.S. at 690.

         Gunter must demonstrate that counsel’s alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691‒92. To meet this burden, Gunter must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

         Strickland cautions that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at ...


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