United States v. Glenn

1

UNITED STATES OF AMERICA, v. JOHN D. GLENN, JR., Defendant.

Criminal Action No. 15-99

United States District Court, E.D. Pennsylvania

July 7, 2023

OPINION

Slomsky, J.

TABLE OF CONTENTS

I. INTRODUCTION 1

II. BACKGROUND 1

A. The Indictment .................................................................................................................. 1

B. The Court's Pro Se Colloquy with Defendant ................................................................ 2

C. Defendant's § 2255 Motion ............................................................................................. 14

III. STANDARD OF REVIEW................................................................................................. 15

IV. ANALYSIS ........................................................................................................................... 15

A. Appellate Counsel Was Not Constitutionally Ineffective for Failing to Argue That the Indictment Was "Jurisdictionally Defective" ............................................... 17

B. Appellate Counsel Was Not Constitutionally Ineffective for Failing to Raise on Appeal an Objection to the Court's Colloquy with Defendant to Determine Whether He Knowingly and Voluntarily Waived His Right to Trial Counsel ......... 19

1. Legal Framework for Requests to Proceed Pro Se ....................................................... 20

2. Defendant Knowingly and Voluntarily Waived His Right to Counsel......................... 23

V. CONCLUSION .................................................................................................................... 24

I. INTRODUCTION

Before the Court is Defendant John D. Glenn, Jr.'s (“Defendant”) pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“the Motion”). (Doc. No. 357.) Defendant was convicted of: (1) one count of conspiracy to commit bank fraud, and aiding and abetting, in violation of 18 U.S.C. §§ 1349 and 2, and (2) two counts of bank fraud, and aiding and abetting, in violation 18 U.S.C. §§ 1344 and 2. (Doc. No. 141 at 1-2.) On August 29, 2018, Defendant was sentenced to 168-months imprisonment. (Doc. No. 237 at 1-2.) On March 9, 2021, the Third Circuit Court of Appeals affirmed his sentence. See United States v. Glenn, 846 Fed.Appx. 110 (3d Cir. 2021), cert denied, 142 S.Ct. 831 (2022).

In the pro se Motion, filed on November 21, 2022, Defendant seeks to have his sentence vacated on all three counts and to have his Indictment dismissed. (Doc. No. 357 at 13.) He contends that his appellate counsel provided ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. (Id. at 4-6.) On February 16, 2023, the Government submitted a Response in Opposition to Defendant's Motion. (Doc. No. 362.) On April 24, 2023, Defendant filed a Reply. (Doc. No. 366.)

For reasons that follow, Defendant's pro se Motion (Doc. No. 357) will be denied without an evidentiary hearing. A certificate of appealability will not be issued because Defendant has failed to make a substantial showing of the denial of a constitutional right.

II. BACKGROUND

A. The Indictment

On March 12, 2015, a federal grand jury returned an Indictment charging Defendant with one count of conspiracy to commit bank fraud, and aiding and abetting (Count One), and two counts of bank fraud, and aiding and abetting (Counts Two and Three). (See Doc. No. 1.) The charges stem from Defendant's scheme to defraud three mortgage lending businesses to fund the purchase of a residential property, referred to as the Waverly property, that was in foreclosure. (See Id. at 1.) The three mortgage lending companies Defendant conspired to defraud are: (1) Oroton Equities (“Oroton”); (2) Stout Street Funding, LLC (“Stout Street”); and (3) National Capital Management (“National Capital”). (See id. at 3.) The Indictment alleged that these entities were “mortgage lending business[es] that engaged in interstate commerce and provided loans to fund the purchase of real estate, including residential single family dwellings.” (Id. at 2-3.)

Defendant defrauded these three mortgage lending businesses by, among other things, holding “himself out to be a successful real estate investor specializing in luxury homes” and as a principal of International Small Business Network, LLC (“ISBN”) and SSJ Realty, LLC (“SSJ Realty”). (Id. at 2.) Defendant then “applied for . . . loans from . . . Oroton, Stout Street and National Capital, purportedly to fund the purchase of the Waverly property.” (Id. at 3-4.) In applying for these loans, Defendant provided the mortgage lending companies with “fraudulent documents . . . including fraudulent agreements of sale that contained the forged signatures of the purported buyers and/or sellers.” (Id. at 4.) After being approved for the loans, Defendant then diverted funds at the closings on the loans to himself and his co-conspirator, Otis Johnson, rather than satisfy the property's mortgage and liens. (Id. at 5.) The only loan that did not close was one he applied for with Oroton Equities. (Id. at 6.) Oroton “declined to fund the loan and the closing [on that loan] was terminated.” (Id.)

B. The Court's Pro Se Colloquy with Defendant

On October 11, 2016, an on-the-record hearing was held with Defendant on his request to proceed pro se and to represent himself in this case. (See Doc. No. 111.) The Court conducted a colloquy with Defendant as required and described by the Third Circuit in United States v. Peppers, 302 F.3d 120 (3d Cir. 2002).^[1]The Court conducted the following colloquy with him to determine whether he knowingly and voluntarily waived his right to counsel:

THE COURT: All right. Mr. Glenn, how old are you?

THE DEFENDANT: 61.

THE COURT: And how far did you go in school?

THE DEFENDANT: Four years of college.

THE COURT: I assume you could read, write and speak English?

THE DEFENDANT: Yes, I can, Your Honor.

THE COURT: All right. You've understood everything I've said thus far?

THE DEFENDANT: Thus far, yes, sir.

THE COURT: All right. Are you presently under the influence of any drugs or alcohol?

THE DEFENDANT: No, I'm not, sir.

THE COURT: Do you take any medication?

THE DEFENDANT: Nothing other than for diabetes, that's about it.

THE COURT: All right. And are you receiving any kind of mental health treatment?

THE DEFENDANT: No, sir.

THE COURT: All right. And is it your decision and your decision alone to represent yourself in this criminal case?

THE DEFENDANT: That is correct, Your Honor.

THE COURT: All right. Now I have to go through some questions in addition to the ones that I've asked already, but I ask a lot of these questions because the law requires me - THE DEFENDANT: I understand, Your Honor.

THE COURT: -- to ask the questions. Have you ever studied law?

THE DEFENDANT: No, sir.

THE COURT: Have you ever represented yourself before in a criminal case?

THE DEFENDANT: No, sir.

THE COURT: Do you understand that you are charged with the following crimes. It's a three count indictment. Count 1 charges you with conspiracy to commit bank fraud. Count 2 charges you with the actual bank fraud. Count 3 charges you with actual bank fraud. Do you understand?

THE DEFENDANT: Yes, I do, Your Honor.

THE COURT: All right. And the conspiracy count is in violation of 18 U -

THE DEFENDANT: This is the conspiracy?

THE COURT: -- yes, the Count 1, conspiracy to commit bank fraud.

THE DEFENDANT: Okay. Aiding and abetting.

THE COURT: Well, that's not aiding and abetting. Conspiracy is a separate offense.

THE DEFENDANT: Oh, okay.

THE COURT: Aiding and abetting apply to the Counts 2 and 3.

THE DEFENDANT: It's a -- it's the third count, correct.

THE COURT: And let's see, Count 2 and Count 3 charge you with aiding and abetting also. But Count 1 is a violation of the Federal Statute Title 18 United States Code Section 1349. And the conspiracy alleged in Count 1 is set forth on page three of your indictment and it says, “From in or about June 2020 through at least September 2010 in the Eastern District of Pennsylvania you knowingly and willfully conspired and agreed together with Otis Johnson and others, known and unknown to the Grand Jury to knowingly and willfully execute and attempt to execute a scheme or artifice to defraud Oroton, Stout Street and National Capital, which are mortgage lending businesses and to obtain monies owned by and under the care, custody and control of these mortgage lending businesses by means of materially false and fraudulent pretenses, representations and promises in violation of 1344.” And that's what you're charged with in Count 1.

THE DEFENDANT: I understand.

THE COURT: Do you understand?

THE DEFENDANT: I understand what I am charged.

THE COURT: All right. No, do you understand that the United States Sentencing Commission has issued Sentencing Guidelines that will be used in determining your sentence if you are found guilty?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And with respect to Count 1 that we just went over, do you understand that if you are found guilty of the crime charged in Count 1, which is the conspiracy to commit bank fraud, the Court must impose a special assessment of $100, and could sentence you to as many as 30 years imprisonment and fine you as much as one million dollars or twice the amount of gain or loss that was the object of the conspiracy. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: All right. In addition, and this being a Class B felony, you can face up to five years

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