United States District Court, M.D. Louisiana
RULING AND ORDER
BRLANA. JACKSON JUDGE UNITED STATES DISTRICT COURT
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 (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.
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
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).
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.
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); Honest Services Wire Fraud, in
violation of 18 U.S.C. §§ 1343 and 1346 (Count
Two); Use of Interstate Facility in Aid of
Racketeering, in violation of 18 U.S.C. 1952 (Counts Three -
Six or "phone counts"); and Making False Statements
to the FBI, in violation of 18 U.S.C. § 1001 (Count
Seven). (Doc. 30).
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).
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).
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."
McDonnell v. United States
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. 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.