Schoenauer v. U.S.

759 F.Supp.2d 1090

Russell J. SCHOENAUER, Movant/Petitioner,

v.UNITED STATES of America, Respondent.

No. 4:07–cv–00169–RP.

United States District Court, S.D. Iowa, Central Division.

Sept. 27, 2010.Order on Motion to Alter or Amend Judgment Nov. 2, 2010.

Frank L. Burnette, Attorney at Law, Des Moines, IA, J. Justin Johnston, Wyrsch Hobbs & Mirakian, Kansas City, MO, for Movant/Petitioner.Gary L. Hayward, Clifford D. Wendel, U.S. Attorney's Office, Des Moines, IA, for Respondent.

ORDER

ROBERT W. PRATT, Chief Judge.

Before the Court is Russell Schoenauer's motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. Schoenauer is represented by counsel. The Court held a hearing on the motion on July 14, 2010. The parties submitted post hearing briefs on August 12, 2010, and August 19, 2010. The matter is now fully submitted.

For the following reasons, the Court grants Schoenauer's 28 U.S.C. § 2255 motion.

I. Background

A jury convicted Schoenauer of conspiracy to distribute fifty to five hundred grams of methamphetamine and one hundred to one thousand grams of marijuana and of two counts of distributing methamphetamine. After a separate trial, he was also convicted of three counts of unlawful possession of a firearm. On August 26, 2002, he was sentenced to 210 months imprisonment on the drug charges and 120 months on the firearms convictions, the sentences to be served concurrently. The Eighth Circuit Court of Appeals affirmed his judgment and conviction on initial appeal. United States v. Cuervo, 354 F.3d 969 (8th Cir.2004) (rehearing and rehearing en banc denied). The Supreme Court accepted certiorari in the drug case, and remanded the case to the Eighth Circuit Court of Appeals for reconsideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), where the sentences were again affirmed. United States v. Norman, 427 F.3d 537 (8th Cir.2005) (rehearing and rehearing en banc denied).

Now pending is Schoenauer's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. He claims he is entitled to relief because (1) trial counsel James Martin Davis was ineffective in failing to move to exclude the testimony of government expert Brad Richards under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire v. Carmichael 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); (2) trial counsel was ineffective in failing to investigate and present evidence to support Schoenauer's claim that he possessed firearms in reliance on advice stemming from contacts with governmental agencies; (3) trial counsel was ineffective in failing to object to evidence relating to his alleged affiliation with the Sons of Silence motorcycle club; (4) trial counsel was ineffective for failing to move to sever Schoenauer's trial, so that Norman could testify on his behalf; (5) appellate counsel was ineffective in failing to argue, on remand, that Booker error had been adequately preserved; and (6) trial counsel was ineffective in failing to investigate and seek discovery regarding the Internal Revenue Service's participation in the investigation of Schoenauer's allegedly “unexplained income,” and the IRS's conclusions regarding such investigation. ¹

II. Analysis

Schoenauer cites a number of ways in which he claims counsel was ineffective. To prevail on a claim that trial counsel provided constitutionally ineffective assistance, a petitioner must show (1) counsel's representation was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the first prong, a petitioner must show that counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. Prejudice is demonstrated with “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. A court need not address both components of the test if a petitioner makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. 2052

A number of witnesses testified at the 2255 hearing. In determining the credibility of the witnesses and the weight to be accorded their testimony, the Court has taken into consideration:

The character of the witness[es], [their] demeanor on the stand, [their] interest, if any, in the result of the trial, [their] relation to or feeling toward the parties to the [trial], the probability or improbability of [their] statements as well as all the other facts and circumstances given in evidence.

Clark v. United States, 391 F.2d 57, 60 (8th Cir.1968).

The Court finds of particular importance the testimony of Russell Schoenauer regarding discovery requests he made to trial counsel James Martin Davis. Schoenauer testified that he requested that Davis obtain certain records, and that he told Davis he was certain the records would contradict any testimony by the government that he had unexplained income. Considering all factors cited above, the Court found Schoenauer's testimony regarding these requests to be credible.

The claims of ineffective assistance of counsel are individually addressed below.

a. Failure to move to exclude the testimony of government expert Brad Richards under Daubert v. Merrell Dow Pharmaceuticals, Inc., and Kumho Tire v. Carmichael.

Schoenauer claims counsel was ineffective in failing to move to have the testimony of government witness Brad Richards excluded pursuant to the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). He claims that the testimony was unreliable, counsel should have objected on that basis, and that the testimony should have been excluded.

The contested testimony was given by Brad Richards. Richards, an auditor with the Bureau of Alcohol, Tobacco and Firearms, gave expert testimony at trial to establish that Schoenauer's wealth exceeded his income. Richards testified that for the time period 1992–1998 Schoenauer's investments totaled $2.9 million while his available income was only $262,200. He testified that his conclusion was, therefore, that Schoenauer had $2.6 million unexplained income for that time period. It was the government's position at trial that this unexplained income was proceeds from the drug conspiracy.

The government claims that the issue of the admissibility of Richards' testimony was raised on direct appeal and therefore may not be raised in this proceeding. See, Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir.2003) (“It is well settled that claims which are raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.”). Schoenauer claims that the issue raised on direct appeal was a much more limited issue. He claims counsel raised only a claim that the evidence failed to meet the standard of admissibility set in the tax case Holland v. United States, 348 U.S. 121, 132–38, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and that the Eighth Circuit Court of Appeals therefore did not address the more narrow questions of whether Richards' underlying methods were proper or whether his conclusions were supported by sufficient facts, instead making only a finding that “Holland should not strictly apply in non-tax cases.” The Court agrees that the current claim differs somewhat from the issue raised on direct appeal. Schoenauer is now arguing that trial counsel was ineffective for failing to attack the fundamental reliability of the testimony; not just whether the Court erred in failing to require strict compliance with Holland.²

On direct appeal, the Eighth Circuit Court of Appeals held that the standards set forth in Holland v. United States, 348 U.S. 121, 132–38, 75 S.Ct. 127, 99 L.Ed. 150 (1954) should not strictly apply in non-tax cases, and found that because financial gain was not an element of any of the offenses of conviction, it was not reversible error to allow Richards to testify. United States v. Cuervo, 354 F.3d 969, 993 (8th Cir.2004). The Court found no reversible error in allowing Richards to testify as to Schoenauer's wealth, and that his testimony as to wealth was relevant. “There is no question that Richards testified as to a relevant matter; he spoke directly to the issue of money that the government alleged was derived from the drug conspiracy.” Id. The Court noted that it might have a different view if Schoenauer had been convicted of maintaining a continuing criminal enterprise, which did require proof that the defendant gained substantial income. Id.

In making its determination the Court cited to Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Pursuant to that case, expert testimony is only admissible if it is both relevant and reliable. Determining whether an expert's opinion is reliable enough to be admissible is not determined by a set formula; reliability is dependent upon the circumstances of a particular case. See Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In this case, for example, the Eighth Circuit Court of Appeals indicated it might have found Richards' testimony unreliable as to the continuing criminal enterprise charge because that charge required proof that the defendant gained substantial income as the result of the scheme. On direct appeal, however, the issue was not raised as a claim that counsel was ineffective in failing to make a motion under Kumho or Daubert, nor was it raised in conjunction with the claim that counsel failed to present evidence to support a Kumho claim.

Trial counsel conceded he did not even attempt to have the evidence...