Howell v. United States

634 F.Supp.3d 1076

Robyn Ann HOWELL, Petitioner, v. UNITED STATES of America, Respondent.

Case No. 2:22-cv-571 CW

Related Case No: 2:18-cr-379

United States District Court, D. Utah

Filed October 7, 2022

Signed October 6, 2022

Benjamin C. McMurray, Robert L. Steele, Federal Public Defender District of Utah, Salt Lake City, UT, for Petitioner.

Mark Evan Woolf, Victoria K. McFarland, US Attorney's Office, Salt Lake City, UT, for Respondent.

MEMORANDUM DECISION AND ORDER

Clark Waddoups, United States District Judge

INTRODUCTION

Petitioner Robyn Ann Howell ("Petitioner") pled "guilty to theft of government money," in violation of 18 U.S.C. § 641 (hereinafter "§ 641"). She now petitions the court "to vacate and set aside her conviction pursuant to 28 U.S.C. § 2255" because her "plea was the product of ineffective assistance of counsel." Petition to Vacate, at 1 (ECF No. 1).¹ Petitioner asserts she received ineffective assistance of counsel because her attorney "advised her that she did not have any defenses and should plead guilty." Id. at 5. According to Petitioner, had her counsel adequately "investigate[d] the underlying facts of the case," he would have discovered her actual innocence because the money she took belonged to her former husband and not to the Social Security Administration. Id. at 5-6. The court denies the petition.

FACTUAL BACKGROUND

Danny Howell filed for Social Security Disability in July 2014. Presentence Rpt., at 4 (ECF No. 47 in Criminal Case). At the time of his application, he was married to Petitioner, and they shared a joint bank account. Id.; Divorce Decree, at 6 (ECF No. 1-1). Mr. Howell specified on his application that Social Security payments made to him should be deposited into that joint bank account. Presentence Rpt., at 4 (ECF No. 47 in Criminal Case); Hr. Tr., at 27, 29 (ECF No. 90 in Criminal Case).

In April 2015, Mr. Howell and Petitioner divorced. Hr. Tr., at 44 (ECF No. 90 in Criminal Case). The State court ordered that Mr. Howell be removed from the joint bank account. Divorce Decree, at 6 (ECF No. 1-1). Subsequent bank statements show that the court order was carried out and that Petitioner became the sole person on the account shortly after the parties divorced. Cf April 17, 2015 Bank Statement (listing Mr. and Ms. Howell) with May 18, 2015 Bank Statement (listing only Ms. Howell) (ECF No. 41-5 at 20, 26 in Criminal Case).

In 2017, the Social Security Administration ("SSA") approved Mr. Howell's disability application. In May 2017, SSA deposited a lump sum payment of $68,726 into the account Mr. Howell specified on his application. See id. at 144. An initial monthly payment of $1,446 was then deposited into that same account in June 2017, followed by four monthly payments of $1,580. Id. at 156, 162, 174, 180. In total, SSA deposited $76,492 into Petitioner's bank account, all of which Petitioner depleted for her own use. Hr. Tr. at 22-23, 49-50 (ECF No. 90 in Criminal Case). After not receiving any of the money, Mr. Howell learned that the payments had been deposited into the account he had shared with Petitioner because Mr. Howell had failed to notify SSA about the account change. Id. at 29, 34-35.

Petitioner knew the money deposited into her account were payments from SSA to Mr. Howell. Id. at 48-49 (stating Petitioner knew her former husband had been approved for Social Security disability, and that she got an attorney when the lump sum payment was deposited). She asserts that she was entitled to over $40,000 of the money because Mr. Howell had allegedly taken part of her assets and had failed to satisfy debts he was obligated to pay. Id. at 51-58. Petitioner does not dispute, however, that she stole at least part of the money. Id. at 70. Although Petitioner admits that she stole at least part of the money, she contends she stole it from her former husband and not from SSA because SSA acted in accordance with Mr. Howell's instructions on where to deposit the funds and lost any claim to the money once it did so. Petitioner further asserts that had her counsel "undertaken even minimal investigation," he would have known these facts, and consequently, that Petitioner "was actually innocent of stealing from the government." Petition, at 5-6 (ECF No. 1).

ANALYSIS

I. STANDARDS OF PROOF

A. Ineffective Assistance of Counsel

"[T]he right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quotations and citation omitted). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id. at 687, 104 S.Ct. 2052 (citations omitted). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S.Ct. 2052. Objectively, counsel is required "to consult with the defendant on important decisions." Id. at 688, 104 S.Ct. 2052. When rendering legal advice, the advice must be "within the range of competence demanded of attorneys in criminal cases." Id. at 687, 104 S.Ct. 2052 (citation omitted).

Ineffective assistance of counsel occurs when (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. This means the defendant must show errors so significant "that there is 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." Id. at 694, 104 S.Ct. 2052. Finally, a court "must consider the totality of the evidence before the judge or jury." Id. at 695, 104 S.Ct. 2052.

The above principles apply the same in "collateral proceedings as they do on direct appeal or in motions for a new trial." Id. at 697, 104 S.Ct. 2052. A court does not have to approach the elements "in the same order or even . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id.

B. Actual Innocence

To prove actual innocence, "[t]he petitioner must show that it is more likely than not that no reasonable juror would have convicted [her] in the light of the new evidence." United States v. Singleton, 462 F. App'x 857, 858 (10th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). "Actual innocence requires a showing of factual innocence, not merely legal insufficiency." Id. (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).

In this case, Petitioner was convicted of theft of government money under § 641. That section states: "Whoever embezzles, steals, purloins, or knowingly converts to his use . . . or without authority . . . disposes of . . . money, or thing of value of the United States or of any department or agency thereof, . . . [s]hall be fined under this title or imprisoned." 18 U.S.C. § 641. Petitioner contends she is innocent of a crime under § 641 because the money she stole was not SSA's. Specifically, Petitioner contends she "believed the money in her bank account belonged to her ex-husband and that she was legally entitled to the money she took." Petition, at 6 (ECF No. 1). To prove guilt under § 641, however, the government generally does not have to prove knowledge that the "thing of value" was property of the United States. United States v. Speir, 564 F.2d 934, 938 (10th Cir. 1977). Thus, the issue before the court is not whether Petitioner knew to whom the money belonged. It is whether the money at issue belonged to SSA or to Mr. Howell.

C. Ownership of Money Deposited by a Federal Agency

Whether money belongs to the government is a nuanced area of law, but certain absolutes have developed. It is well established that when an SSA recipient dies, that person is no longer entitled to SSA payments. If SSA continues to deposit funds into that former recipient's account, the money remains the property of SSA, and may be collected back by SSA. This is so even if the account is held jointly with someone else. United States v. Samson, 433 F. Supp. 3d 1046, 1054-55 (S.D. Tex. 2020). Thus, if a joint account holder or another uses any portion of the funds, it constitutes theft of government money. Id.; see generally United States v. Walker, 563 F. Supp. 805 (S.D. Iowa 1983).

In contrast, in United States v. Howard, 787 F. Supp. 769, 770 (S.D. Ohio 1992), social security payments were "direct deposited into the account of a proper social security recipient." The recipient's son then took some of the social security payments for his own use. Id. The court found that the deposits were made into the correct account and to the correct recipient, who was entitled to the money. Id. at 771. Moreover, the recipient was not restricted on how she could use the government funds. Id. The court therefore concluded the money "did not constitute 'money of the United States' as used in 18 U.S.C. § 641," and the son was acquitted of a federal crime. Id. (alteration omitted).

Neither Samson nor Howard is applicable. Because Mr. Howell was entitled to SSA payments, one cannot assume that SSA retained the same rights as they did in Samson. Because the payments owed to Mr. Howell never reached his account, one also cannot assume that the SSA was divested of ownership like they were in Howard.

The United States mainly relies on United States v. Griffith, 584 F.3d 1004 (10th Cir. 2009) to support that Petitioner stole government funds. In Griffith, a Veterans Affairs (the "VA") recipient² suffered from significant disabilities to the point that the VA concluded the recipient could not "handle his own financial affairs." Id. at 1008 (alteration omitted). Debbie L. Griffith, the VA recipient's girlfriend, "signed a VA form...