Christopher v. United StatesChristopher v. United States
MEMORANDUM AND ORDER
This matter is before the Court on the motion of the petitioner, Charles Christopher, to vacate, set aside or correct sen
Facts and Travel
In 1993, petitioner and George W. Reed-er were indicted by a federal grand jury on multiple counts of violation of
Christopher was Resolute’s vice-president. Reeder was Resolute’s majority stockholder. Since American was a Rhode Island corporation, Resolute needed regulatory approval from the Rhode Island Department of Business Regulation (RIDBR) in order to acquire American. Similarly, because Diamond was an Arizona corporation with its principal offices in California, Resolute needed the approval of both of those states’ insurance regulators in order to acquire Diamond.
In seeking the requisite regulatory approvals on Resolute’s behalf, Christopher and Reeder made certain assurances to state regulators, including that Resolute would not use the acquired companies’ assets to pay for the purchase and that the collateral tendered by Resolute in its acquisition of the companies would be cleared of all pre-existing liens prior to closing. In fact, American and Diamond assets were used, inter alia, to pay part of the purchase price and to clear liens on the real estate owned by Reeder that was used as collateral by Resolute. After the acquisition, both American and Diamond went into receivership. Moreover, contrary to assurances made to the California, Arizona and Rhode Island regulators, encumbrances on the collateral property were not cleared prior to Resolute’s acquisition of American and Diamond.
Prior to trial, the cases against Reeder and Christopher were severed. Reeder’s trial was continued due to his illness and Christopher proceeded to trial. 1 In July 1995, a district court jury adjudged Christopher guilty of 11 counts of wire fraud and 10 counts of interstate transportation of stolen property.
In December 1996, Senior United States District Judge Francis J. Boyle sentenced Christopher to consecutive terms totaling 121 months of imprisonment on three of the counts of conviction. On the remaining counts, the court imposed sentences of 60 to 120 months of imprisonment, to be served concurrently with the 121 month term. On each count the court imposed concurrent terms of three-years of supervised release. In addition, Christopher was ordered to pay restitution totaling $26.7 million and a special assessment of $1050.
Christopher appealed from his conviction and sentence. After modifying the restitution order to exclude losses for which Christopher had not been charged in the indictment, the First Circuit affirmed the conviction and sentence.
United States v. Christopher,
On December 14, 1999, exactly one year following the denial of certiorari, Christopher filed the instant
The government filed an objection to the
In
Apprendi,
the Court held that the United States Constitution requires that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Id.
at 488-90,
On November 22, 2000, Christopher filed a pleading captioned “Second Amended Motion Pursuant to
In
Cleveland,
the Court held that state and municipal licenses in general, and Louisiana’s video poker licenses in particular, did not amount to “property” for purposes of
Neither “amendment” was filed within the one-year time limitation period applicable to the filing of
Discussion
The Motions to Amend.
Neither
[i]f no procedure is specifically prescribed by these rules, the district court * * * may apply the Federal Rules ofCriminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.
Rules Governing
(a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served * * *. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
* * * * * *
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading * * *.
Christopher’s assertions to the contrary notwithstanding, both of his proposed amendments were filed subsequent to the government’s filing of its objection to the initial
Although
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
* * * * * *
(3)the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.
Christopher’s conviction became “final” for purposes of
Christopher seeks leave to amend his
Christopher argues that under the doctrine of equitable tolling his proposed amendments should be considered as timely filed. The First Circuit has not ruled on whether
Moreover, if either motion to amend was granted, neither proposed amendment would “relate back” to the date of Christopher’s filing of his original
Pursuant to
In order for an untimely
It is clear that petitioner’s
Apprendi
and
Cleveland
claims do not relate back to the time of his filing of his initial motion to vacate sentence. The proposed amendments do not clarify or amplify claims presented in the original
In sum, because neither of Christopher’s proposed additional claims can be considered as timely filed under either
The
Remaining before the Court for consideration are the three grounds proffered by Christopher in his initial
Christopher’s first claim is that he was sentenced on the basis of inaccurate information in violation of his right to due process. In support of this assertion, Christopher points out that he received a lengthier sentence than did Reeder. Christopher argues that the two sentences were based on inconsistent sentencing guideline calculations, including amount of loss determinations, for the same offense.
Second, Christopher alleges that the government suppressed exculpatory evidence in violation of his right to due process. Third, petitioner alleges that he was denied due process by the prosecution’s use of testimony during trial and at sentencing which the government knew or should have known was false.
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct sentence.
In order to be cognizable under
Although cloaked in a claim of a denial of due process, Christopher’s claim that his sentence was based on inaccurate information is, in fact, no more than a challenge to the court’s sentencing determination under the sentencing guidelines. In substance, Christopher alleges that his guideline range was incorrectly calculated. However, Christopher has not made the requisite showing of “exceptional circumstances.” Thus, Christopher’s claim of sentencing error is not cognizable in this proceeding.
Moreover, none of the grounds which Christopher now proffers in support of his § 2255 motion were presented on appeal. Thus, he is procedurally precluded from pursuing those claims in the instant proceeding unless he demonstrates both “cause” for the default and “prejudice” or, alternatively, that he is “actually innocent.”
E.g., Brache v. United
States,
As “cause” for failing to raise some of his claims, Christopher argues that those claims were either unavailable to him prior to his submission of his appellate brief, or involved collateral matters which were not subject to consideration on direct appeal from his conviction. Christopher contends that “prejudice” exists in that, as the result of the sentencing court’s reliance on inaccurate information, he received a harsher sentence than he would have if such erroneous information had not been considered. As set forth below, Christopher’s allegations that his sentence was based on inaccurate information are not persuasive. Thus, he cannot demonstrate “prejudice” and is procedurally precluded from litigating his claims in the instant proceeding. In any event, considered on the merits, each of the grounds proffered by Christopher in support of his § 2255 motion fails.
There are several allegations underlying Christopher’s claims that his conviction was obtained and that he was sentenced on the basis of inaccurate information. First, he challenges the court’s loss calculation under the sentencing guidelines as overstating the actual amount of loss.
At sentencing, the court determined that the total loss attributable to Christopher amounted to $26.7 million. In part, the court relied on the testimony of Diamond’s special deputy receiver, Lawrence War-field.
During Christopher’s sentencing hearing, Warfield testified, inter alia, that, other than realty known as “Florence Gardens,” Diamond received no assets in exchange for $18 million in cash which had been received by Diamond in conjunction with its assumption of certain annuity obligations of the Life Assurance Company of Pennsylvania (LACOP) but diverted by Christopher.
Christopher now alleges that Warfield’s testimony was false. Specifically, Christopher argues that at the time of his testimony Warfield was aware of an anticipated settlement of a civil suit brought by Diamond against American. Christopher claims that the loss amount should have been reduced by the value of assets eventually received by Diamond as part of the civil settlement.
However, Christopher’s underlying legal theory, that the loss amount was subject to offset, has been considered and rejected by both the sentencing court and the Court of Appeals in the direct proceedings.
Christopher,
Christopher also challenges the two-level enhancement that he received for causing Diamond’s insolvency. Specifically, Christopher contends that the sentencing court’s offense level adjustment was unsupported by credible evidence.
The sentencing court’s determination that Christopher’s misdeeds had rendered Diamond insolvent was supported by War-field’s testimony. At Christopher’s sentencing hearing, Warfield testified that, although Diamond was experiencing significant cash-flow difficulties, it remained viable until Christopher improperly diverted $18 million that Diamond received from LACOP in conjunction with Diamond’s assumption of $31 million of LA-COP’S annuity obligations. On appeal, the Court of Appeals held that the district court’s finding that Christopher had caused Diamond’s insolvency was not clearly erroneous.
Christopher,
In support of his attack on the veracity of Warfield’s testimony and, in turn, the court’s determination that petitioner’s criminal conduct caused Diamond’s insolvency, Christopher relies on a report prepared by Diamond’s expert witness, Edward Buttner, in conjunction with a subsequent, related civil action. In his report, Buttner opines that, as of December 31, 1997, Diamond was “statutorily insolvent” as that phrase is employed under Arizona law.
Christopher’s claim amounts to no more than an impermissible attempt to relitigate the solvency issue in the instant proceeding. Moreover, Buttner’s report, which was prepared well after the conclusion of direct review of Christopher’s conviction, neither refutes Warfield’s testimony nor provides any indicia that Warfield testified falsely. In substance, Buttner’s report is of no significance.
Next, in a thinly veiled attempt to reliti-gate the jury’s determination that he was guilty of wire fraud and to revisit the sentencing judge’s application of an upward adjustment in Christopher’s offense level due to his violation of regulatory orders, Christopher alleges that Nancy Mayer, former RIDBR chief legal counsel, testified falsely at trial concerning: (1) RIDBR’s lack of knowledge of Christopher’s pending personal bankruptcy, and (2) the regulators’ requirement that all prior liens on collateral securing Resolute’s acquisition of American be cleared prior to May 27, 1988, the date of RIDBR’s conditional approval of Resolute’s purchase of American.
During Christopher’s criminal trial, Mayer testified concerning RIDBR’s requirement that the collateral securing the American acquisition be encumbrance-free as of the time of Resolute’s acquisition of American. The conditional order approving the transaction was issued on May 27, 1988. Change of ownership occurred on that same day. However, as set forth in the conditional order, final regulatory approval of the transfer was not issued until Resolute’s submission of title insurance policies for the collateral properties, “effective as of the closing date” which indicated that all prior liens had been satisfied. At trial and on appeal, Christopher contended that the regulators did not require that the encumbrances be cleared by May 27, 1988, but rather, that the conditional order required only that title policies have an “effective date” of May 27, 1988, thus permitting the liens to be cleared subsequent to the date of the conditional order. Both the jury and the Court of Appeals rejected this contention.
In an attempt to revisit that issue here, Christopher argues that the falsity of May
In her deposition, Mayer distinguished between transfer of ownership of American to Resolute and “final” regulatory approval of the transaction. However, this distinction does not contradict her trial testimony concerning the fact that the encumbrances were to be cleared prior to the issuance of the conditional order. In fact, her deposition testimony is entirely irrelevant with regard to that understanding.
Finally, Christopher alleges that Mayer’s trial testimony that prior to issuance of its conditional approval state regulators were unaware of Christopher’s personal bankruptcy was false. In support of this contention, Christopher proffers notes taken by two attendees of a December 1997 meeting at which Mayer was also present. Those notes purportedly contain references to the bankruptcy proceeding. However, at best, those writings suggest that Mayer was mistaken in testifying that regulators were unaware of Christopher’s bankruptcy. Moreover, Christopher has not demonstrated that this alleged misstatement was material to the outcome of the criminal proceeding.
In sum, none of Christopher’s claims that his conviction and sentence were based on false or otherwise inaccurate information are of merit. Accordingly, since all of the legal arguments proffered by Christopher in support of his § 2255 motion are premised on these unfounded factual assertions, such claims also fail.
Conclusion
Petitioner’s motion to vacate, set aside or correct sentence pursuant to
It is so ordered.
Notes
. Ultimately, Reeder was convicted of five counts of violation of
.
Christopher v. U.S.,
.