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United States v. Nelson

United States District Court, M.D. Louisiana

December 24, 2018

UNITED STATES OF AMERICA
v.
THOMAS A. NELSON, JR.

          RULING AND ORDER

          BRLANA. JACKSON JUDGE UNITED STATES DISTRICT COURT

         Before the Court is the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 217) and the Amended Motion to Vacate under 28 U.S.C. § 2255[1] (Doc. 246) filed by Petitioner, Thomas A. Nelson, Jr. The United States filed an Opposition to both motions. (Docs. 237, 247). An evidentiary hearing on Petitioner's ineffective assistance of counsel claim was held on June 28, 2018 and July 19, 2018. For the following reasons, the Motion to Vacate (Doc. 217) is DENIED AS MOOT and the Amended Motion to Vacate (Doc. 246) is DENIED.

         I. BACKGROUND

         As part of an elaborate Federal Bureau of Investigation (FBI) investigation, undercover FBI agents posed as corrupt businessmen while marketing a product called Cifer 5000, which was touted as an automatic system for cleaning waste containers. United States v. Nelson, 732 F.3d 504, 509-12 (5th Cir. 2013). Throughout the investigation, Petitioner, the former Mayor of the City of New Roads, Louisiana, inter alia, accepted $20, 000 in cash, proposed a kickback scheme to receive ten percent of the profits from the venture, and bragged about using his public office as mayor for personal benefits. Id. He also provided an official letter to the United States Environmental Protection Agency (EPA) in support of a multi-million-dollar grant request, as well as an investor letter to a "private investment group" in support of Cifer 5000. Id. at 511. Furthermore, Petitioner, inter alia, facilitated the passage of a resolution by the Louisiana State Legislature supporting the waste cleaning containers, and drafted a city ordinance benefiting Cifer 5000 by requiring sanitation of garbage cans in New Roads. Id.

         On or about June 29, 2010, Petitioner, then represented by Attorney Mary Olive Pierson and Attorney Fred Crifasi, entered into a plea agreement in which he agreed to plead guilty to a Bill of Information charging bribery involving an entity receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B). (Doc. 216-1). The plea agreement contained a stipulated factual basis and it provided that, if Petitioner failed to plead guilty, any information provided by Petitioner, including the stipulated factual basis, could be used against him in any prosecution. (Id. at ¶¶ 10, 6). The plea agreement also contained a provision stipulating that the gross proceeds of Petitioner's offense would total $22, 053, which would be "the figure used for purposes of the [United States Sentencing Guidelines, ] U.S.S.G. § 2C1.1(b)(2)." (Id. at ¶¶ 11, 13). On July 1, 2010, a Bill of Information charging Petitioner as contemplated in the plea agreement was filed. (See Criminal Number 10-92, Doc. 1).

         On July 2, 2010, Petitioner, through Attorney Page Pate, Petitioner's then-newly acquired counsel, notified the United States that he no longer intended to plead guilty. (Doc. 66 at ¶ 2). Petitioner subsequently appeared in court and notified the Court that, upon reconsideration, he had decided to not plead guilty and instead, intended to proceed to trial. (Id.). Thereafter, the United States was granted permission to introduce the factual stipulation agreed to by Petitioner, but not the plea agreement itself, during its case-in-chief at trial. (Docs. 66, 80).

         On August 18, 2010, Petitioner was charged by superseding indictment with violating the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count One);[2] Honest Services Wire Fraud, in violation of 18 U.S.C. §§ 1343 and 1346 (Count Two);[3] Use of Interstate Facility in Aid of Racketeering, in violation of 18 U.S.C. 1952 (Counts Three - Six or "phone counts");[4] and Making False Statements to the FBI, in violation of 18 U.S.C. § 1001 (Count Seven).[5] (Doc. 30).

         On June 22, 2011, after a jury trial, Petitioner was convicted on all counts; and on January 17, 2012, he was sentenced. (Docs. 112, 137). Thereafter, Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Fifth Circuit. Nelson, 732 F.3d 504 (affirming Nelson's conviction, but ordering the Court to recalculate the sentence). Subsequently, Petitioner was resentenced on March 14, 2014 to a term of imprisonment of 120 months. (Doc. 194). On the second appeal, the Fifth Circuit affirmed the new sentence. United States v. Nelson, 631 Fed.Appx. 237 (5th Cir. 2016), cert, denied, 137 S.Ct. 172 (2016).

         Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 on November 21, 2016. (Doc. 217). He amended his Motion to Vacate on June 6, 2018. (Doc. 246). Petitioner asserts three grounds for vacating his conviction. Two of them are based on the Supreme Court's 2016 decision in McDonnell v. United States. 136 S.Ct. 2355, 2372 (2016). First, he argues that the Court erroneously defined "official act" when it instructed the jury on the elements of bribery. (Doc. 217-1 at p. 8). Petitioner argues that his failure to raise this argument on appeal is excused by McDonnell, which was decided after Petitioner's appeal. Second, Petitioner argues that given McDonnells narrowing of what constitutes bribery, he is "actually innocent" of the bribery-based charges. (Id. at p. 5). Third, Petitioner asserts that Mr. Pate provided ineffective assistance of counsel and alleges that but for Mr. Pate's faulty advice, Petitioner would have pleaded guilty to the charge contained in the Bill of Information and would have received a lesser sentence. (Id. at pp. 4-5).

         II. LEGAL STANDARD

         Section 2255 provides that a federal prisoner serving a court-imposed sentence may move the court to vacate, set aside or correct his sentence. 28 U.S.C. § 2255(a) (2012). Only a narrow set of claims are cognizable on a § 2255 motion. The statute identifies four grounds on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." Id.

         III. DISCUSSION

         A. McDonnell v. United States

         Petitioner argues that his conviction should be vacated based on the Supreme Court's 2016 decision in McDonnell u. United States, which limited the scope of criminal liability for federal bribery offenses by narrowing the definition of "official act" within the meaning of 18 U.S.C. §201.[6] McDonnell, 136 S.Ct. 2355 at 2372. Petitioner makes two arguments based on McDonnell. First, Petitioner argues that the Court's jury instructions during Petitioner's trial were too broad and incorporated conduct that was not in fact criminal under 18 U.S.C. § 201 (Doc. 246-1 at p. 6). Petitioner asserts that his failure to raise this argument on appeal, which would ordinarily result in a procedural default, is excused by McDonnell, which was decided after Petitioner's appeal. (Id.). Second, Petitioner argues that he did not engage in activity that falls under the definition of "official act" as outlined by McDonnell and as such, he is "actually innocent" of the federal bribery charges. (Doc. 217-1 at p. 5). The Court addresses each of these arguments in turn.

         1. Improper ...


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