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McQueen v. United States

United States District Court, W.D. Michigan, Southern Division

November 19, 2019

DAVID WILSON McQUEEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION REGARDING MCQUEEN'S § 2255 MOTION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         Pursuant to 28 U.S.C. § 2255, David Wilson McQueen moves to vacate, set aside, or correct his sentence. (ECF No. 1.) McQueen claims that he was denied effective assistance of counsel in the pre-trial, trial, sentencing, and appellate phases of his case. Because “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” § 2255(b), the Court will deny McQueen's motion in its entirety without a hearing.

         I. Factual Background

         The Sixth Circuit summarized the facts of this case as follows:

In 2006, McQueen used a home equity loan acquired from the purchase of a rental home to personally invest in Maximum Return Trading (MRT). Jim Clements, the owner of MRT, represented to McQueen that Clements was earning returns of forty to fifty percent per month from currency trading. Clements told McQueen that he would receive a twenty-percent return, but it would eventually drop to ten percent. Soon after his initial investment with MRT, McQueen started accepting funds from others on behalf of his own company, Accelerated Income Group (AIG), to invest in MRT. In turn, he paid a five-percent return to those who had invested in AIG from the total ten percent he was receiving from MRT.
For a short period of time, MRT fulfilled its obligations by making the promised returns to AIG. However, in mid-2007, MRT ceased making payments to AIG. Subsequently, McQueen stopped sending his investors' funds to MRT in mid-2007. Except for some nominal amount, MRT was insolvent. Despite the lack of returns from MRT, which were the only significant source of revenue for AIG at that time, McQueen managed to meet his payment obligations to preexisting AIG investors from the only source available to him: funds from new investors.
McQueen also established three other investment funds, International Opportunity Consultants (IOC), Diversified Global Finance (DGF), and Diversified Liquid Asset Holdings (DLAH). With the help of his bookkeeper, Tricia Rice, McQueen comingled the funds from these newly created entities, paid himself a monthly salary ranging from $75, 000 to $120, 000, and compensated agents who helped him find new investors. McQueen personally received about $3.2 million in investor funds and spent an additional $3.1 million for business-related travel and other miscellaneous expenses. In addition, McQueen disbursed approximately $3.6 million in commissions for agents, who were paid between one and five percent for every month an investor's money remained with one of McQueen's entities.
Following a tip from a financial institution in early 2008, IRS Agent Barbara Birdsong started investigating McQueen. In 2009, the IRS and the FBI executed a search warrant for McQueen's home, a home of one of McQueen's associates, and several business locations tied to McQueen. The search revealed severely depleted assets; the agencies recovered only $433, 467 from McQueen's accounts.

United States v. McQueen, 636 Fed.Appx. 652, 654 (6th Cir. 2016) (footnote omitted).

         McQueen falsely represented to investors, either directly or through his agents, that (1) he would invest all of their money in some kind of investment; (2) the investment was safe or guaranteed; (3) he was very successful; and (4) investors could withdraw their money at any time. McQueen sent out monthly or quarterly account statements that communicated to investors that their investments were safe and growing. Although McQueen promised investors that they could liquidate their accounts at any time, most did not because they relied on the account statements. McQueen also funneled money through his associate, John Bertuca, a Berrien County bail bondsman. McQueen provided investment funds to Bertuca for “marketing” expenses, and directed Bertuca to pay McQueen's personal expenses with the funds.

         II. Procedural Background

         In late 2011, the Grand Jury for the Western District of Michigan returned fraud and money laundering charges against McQueen and Trent Francke, McQueen's business associate since 2007. One year later, the Grand Jury brought a superseding indictment that added Jason Juberg, Donald Juberg, and Penny Hodge as codefendants and an additional charge of securities fraud. Subsequent superseding indictments continued to add charges.

         Trial commenced against McQueen on the Fourth Superseding Indictment on April 1, 2014. After a six-week trial with 40 government witnesses and 30 defense witnesses, McQueen was convicted on six counts of mail fraud, four counts of spending money laundering, one count of structuring, one count of concealment money laundering, and three counts of misdemeanor failure to file tax returns. The jury acquitted him of one count each of mail fraud, spending money laundering, and concealment money laundering.

         On December 3, 2014, this Court sentenced McQueen to a below-guidelines sentence of 360 months' incarceration, more than $32 million in restitution, and three years' supervised release. McQueen appealed, but the Sixth Circuit affirmed his conviction and sentence in an opinion dated January 19, 2016.

         III. Legal Standards

         Pursuant to 28 U.S.C. § 2255(a), a prisoner in the custody of the United States may seek collateral relief from a sentence where “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” A “[s]ection 2255 [motion] is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process.” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594 (1982)). Consequently, a habeas court will not readjudicate claims raised and rejected on direct review “absent countervailing equitable considerations.” Withrow v. Williams, 507 U.S. 680, 720-21, 113 S.Ct. 1745, 1769 (1993); see also DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (“A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.”).

         Additionally, claims that a movant failed to raise on direct review are procedurally defaulted and “may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice', or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998) (internal citations omitted). To show cause, a movant must demonstrate “that some objective factor external to the defense impeded counsel's efforts to comply with the . . . procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The movant also carries the burden of showing actual prejudice-“not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. at 1596 (emphasis in original). In the absence of cause and actual prejudice, the movant may present a new claim only if he can show actual innocence. “To establish actual innocence, petitioner must demonstrate that, in ...


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