United States District Court, N.D. Georgia, Atlanta Division
GEOFFREY A. GISH, Movant,
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:15-CV-591-CAP
CHARLES A. PANNELL, JR. United States District Judge
action is before the court on the magistrate judge's
report and recommendation (“R&R”) [Doc. No.
228]. The movant has filed objections thereto [Doc. Nos. 236
Standard of Review
reviewing a magistrate judge's R&R, the district
court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). “Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court.” United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). The district judge must “give
fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v.
State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.
1990) (citation and internal quotation marks omitted). Absent
objection, the district judge “may accept, reject, or
modify, in whole or in part, the findings and recommendations
made by the magistrate judge, ” 28 U.S.C. §
636(b)(1), and “need only satisfy itself that there is
no clear error on the face of the record in order to accept
the recommendation, ” Fed.R.Civ.P. 72, advisory
committee note, 1983 Addition, Subdivision (b).
2010, the movant and his co-defendant, Myra Ettenborough,
were indicted by a federal grand jury of conspiracy to commit
mail and wire fraud in violation of 18 U.S.C. § 371
(Count One), four counts of mail fraud in violation of 18
U.S.C. §§ 1341 and 2 (Counts Two through Five), and
six counts of wire fraud in violation of 18 U.S.C.
§§ 1343 and 2 (Counts Six through Eleven) [Doc. No.
was held from September 7, 2011, through September 23, 2011.
The Eleventh Circuit Court of Appeals summarized the evidence
Between 2004 and May of 2006, the purported investment firm
of Weston Rutledge raised approximately $30 million from over
300 investors for primarily three investment programs.
Geoffrey A. Gish was the head of Weston Rutledge. Myra
Ettenborough was Gish's office and operations manager,
with responsibility for managing almost all aspects of the
company's business, employee, and interactions with its
investors. Ettenborough handled all mail, managed and
reconciled Weston Rutledge's numerous bank accounts,
handled all banking transaction, checks and wires, and
processed all payments to investors. Gish and Ettenborough
communicated to investors how the programs worked, details of
the investments' safety and security, the
investments' performance and earnings and other
information. They also provided all other employees with the
information provided to investors.
Ettenborough also wrote a newsletter that was distributed to
investors. In one newsletter, she described how
investors' principal would reside at a major bank in a
non-interest bearing account with a block on it, which no one
could touch during the investment period. The newsletter also
purported to report investment results. Ettenborough provided
standard document packages to investors showing substantial
rates of return and created and distributed account
statements to investors showing positive monthly earnings and
increasing total account balances said to be from earnings.
In March 2006, the last full month for which there were
statements, the account balances as shown on investor
statements reached $34 million.
In reality, virtually none of the representations made to
investors was true. Of the $30 million raised by Gish,
approximately $12 million was returned to investors to
satisfy earnings and principal withdrawal demands. The rest
went to Gish, Ettenborough, other third parties and various
non-investment purposes. Ettenborough signed most of these
checks. None of the investment funds went to any trading
activity of any kind. Of course, the cash on hand at Weston
Rutledge steadily declined over time. Upside down from the
beginning, the gap between investor statements and cash on
hand grew to almost $34 million by March 2006.
Various investigations of Weston Rutledge took place,
beginning in late 2004 when the Georgia Secretary of State
securities division subpoenaed Gish and Weston Rutledge. This
investigation resulted in a cease and desist order and a
civil fine. Instead of ceasing operations, Gish moved Weston
Rutledge to a new office and resumed soliciting investors.
Other investigations took place in both Arizona and Texas.
During this time, Gish and Ettenborough consulted a
securities lawyer about their securities investment program
Zamindari. They did not tell this lawyer about the Georgia
investigation. Subsequently the lawyer withdrew his
representation of Zamindari, informing him that his
investment program was in violation of numerous securities
laws and had the “indicia” of fraud. Gish did not
further communicate with the lawyer, nor attempt to recover
the unexpended retainer paid to him out of an account funded
by investor monies.
In March and April of 2006, the SEC instituted its own
investigation of Gish and his investment programs. On May 17,
2006, the SEC obtained a court order shutting down Weston
Rutledge and appointing a Receiver for the business and
approximately $1 million of investor funds remaining.
United States v. Gish, 518 F. App'x 871, 873-74
(11th Cir. 2013).
jury convicted the movant of Counts One through Ten of the
Indictment, and acquitted him on Count Eleven [Doc. No. 110].
Ettenborough was convicted of Counts One through Three and
Six through Seven [Doc. No. 111]. This court sentenced the
movant to 240 months' imprisonment, three years'
supervised release, and ordered the movant to pay $17, 245,
275.63 in restitution [Doc. No. 140].
the movant filed a timely notice of appeal, the Eleventh
Circuit affirmed the movant's conviction and sentence by
order dated May 16, 2013. Gish, 518 F. App'x at
871. The Eleventh Circuit considered and rejected the
movant's arguments that (1) the jury was improperly
instructed on the theory of deliberate ignorance; (2)
testimony of three lawyers regarding their communications
with the movant should not have been admitted at trial; (3)
evidence regarding the Georgia Secretary of State's
investigation was improperly admitted under Federal Rule of
Evidence 404(b); and (4) the movant was sentenced in error.
Id. at 874-75.
Section 2255 Motion
movant now collaterally challenges his convictions and
sentences on the following grounds: (1) trial counsel was
ineffective in failing to negotiate a plea deal; (2) trial
counsel was ineffective at trial for failing to call certain
witnesses; (3) trial counsel was ineffective for failing to
seek a severence; (4) trial counsel was ineffective for
failing to object to a variance between the evidence and the
court's instruction to the jury on materiality; (5) trial
counsel was ineffective for failing to insist on jury
instructions that would allow the jury to “parse out
culpability on a temporal basis;” (6) appellate counsel
was ineffective for failing to raise a Rule 43 error; (7)
appellate counsel was ineffective for failing to raise the
trial court's refusal to give an alleged theory of the
defense good faith jury instruction; (8) the trial court
erred in conducting “supplemental jury
instructions” without the movant being present or
having waived his right to be present; (9) the trial court
erred in refusing to give the jury his requested good faith
jury instruction; and (10) the federal fraud statutes are
Ineffective Assistance of Counsel Claims
the Sixth Amendment, a defendant has the right to
“reasonably effective” legal assistance.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show constitutionally ineffective assistance of counsel, a
petitioner must establish that (1) counsel's
representation was deficient and (2) counsel's deficient
representation prejudiced him. Id. at 690-92;
Bottoson v. Moore, 234 F.3d 526, 532 (11th Cir.
2000) (stating that the court may resolve an ineffective
assistance claim based on either prong).
the first prong, a movant must show that “in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690.
“[C]ounsel's conduct is presumed reasonable, [and]
a petitioner must establish that no competent counsel would
have taken the action that his counsel did take.”
Chandler v. United States, 218 F.3d 1305, 1315 (11th
Cir. 2000) (en banc). To prove ineffectiveness, a movant must
show that his attorney's representation “fell
outside the wide range of professionally competent
assistance.” Id. at 1314 (internal quotation
marks omitted). When evaluating an attorney's
performance, the court must be highly deferential and
“avoid second-guessing counsel's
performance.” Id. ...