United States District Court, N.D. Georgia, Atlanta Division
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.
509]. The movant has filed objections thereto [Doc. Nos. 513
and 515]. Also pending are the movant's (1)
motion to pull document [sic] and records for the court [Doc.
No. 516]; (2) motion for release on bond pending a ruling on
the § 2255 motion [Doc. No. 518]; and (3) emergency
motion to amend and act on bond request [Doc. No. 520].
initial matter, the motions for release on bond [Doc. Nos.
518 and 520] are DISMISSED as moot because, as set forth
below, the movant's § 2255 motion is without merit.
Also, the motion to pull documents [Doc. No. 516] is nothing
more than a list of documents from the docket of this case
and a reference to the movant's appeal and the Supreme
Court's denial of her petition for writ of certiorari. To
the extent that the movant is seeking a copy of these
documents at no cost, there's been no showing of
necessity for them. Accordingly, the motion [Doc. No. 516] is
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).
movant and five co-defendants ran telemarketing businesses
that represented themselves as third-party negotiators who
could influence credit card companies to reduce
customers' interest rates. In 2010, the movant was
indicted by a federal grand jury for conspiracy to commit
mail and wire fraud in violation of 18 U.S.C. §§
1341 and 1343 (Count One), ten counts of wire fraud in
violation of 18 U.S.C. §§ 1343, 2326, and 2 (Counts
Two through Eleven), ten counts of structuring financial
transactions to evade reporting requirements in violation of
31 U.S.C. §§ 5324(a)(1), 5324(a) and 31 C.F.R. Pt.
103 (Counts Twelve through Twenty-One), and conspiracy to
commit obstruction in violation of 18 U.S.C. §§ 371
and 1512(c)(2) (Count Twenty-Two) [Doc. No. 123]. Counts Six
and Twelve were dismissed by the government with the
movant's consent [Doc. Nos. 331, 351].
was held from October 24, 2011, through November 7, 2011. The
Eleventh Circuit Court of Appeals summarized the evidence as
In 2008 and 2009, Ms. Adams's various businesses
initiated phone calls from Georgia to consumers across the
country in which a live representative or a prerecorded
message invited consumers to speak about lowering their
credit card interest rates. [Though the business model
remained the same, Ms. Adams and her associates cycled
through many different corporate entities and business names.
They switched entities whenever a business generated too many
complaints or lost a merchant account due to excessive
chargebacks.] Then, reading from a script, live
representatives explained that, for a fee, the business would
negotiate with credit card companies for rate reductions on
its customers' behalf. The representatives claimed that
Ms. Adams's businesses had special relationships with
credit card companies and guaranteed the service would save
customers at least $4, 000 in their credit card payments over
time. The representatives promised that if the guaranteed
savings were not achieved, the customer would receive a
refund of the cost of the program, which was typically
between $749 and $1, 495. Using this pitch, Ms. Adams's
businesses attracted thousands of customers and generated
revenue in the tens of millions of dollars. At trial, the
government sought to prove the business model was a fraud.
Customers testified that there appeared to be no special
relationships between Ms. Adams's businesses and the
credit card companies because, on three-way calls with the
customer, Ms. Adams's representatives simply made
requests for reductions that the credit card companies
denied. Ms. Adams's employees testified that no such
special relationships existed. Despite the emphasis that
representatives placed on rate reduction in sales calls, the
primary service the businesses provided was a financial
analysis that described how customers should structure their
credit card payments to achieve the promised savings.
Employees and customers testified that, at best, these
analyses merely instructed customers to follow an aggressive
payment plan, and, at worst, they also contained inaccurate
calculations and overestimated savings.
Naturally, some unsatisfied customers asked for refunds.
Employees testified that Ms. Adams instituted policies to
protect her sales regardless of the merit of a customer's
complaint: she set quotas for refunds, fought all chargebacks
from credit card companies, [A chargeback is a process by
which a credit card company challenges the validity of a
transaction in which a business has charged a customer. The
process requires the business to respond to the
customer's complaint with a justification of the
transaction, called a rebuttal.] and instructed employees to
alter analyses if they did not reflect the guaranteed
savings. Accordingly, customers testified that they failed to
obtain refunds despite their persistent attempts. The
government also introduced evidence of a Florida state civil
investigation into similar business operations Ms. Adams ran
in that state, to demonstrate both that she knew her
practices were illegal and that she had a reason to flee to
Georgia to begin her scheme anew.
United States v. Adams, 612 Fed.Appx. 565, 567 (11th
jury convicted the movant of one count of conspiracy to
commit mail and wire fraud, nine counts of wire fraud, seven
counts of structuring financial transactions, and one count
of conspiracy to commit obstruction of justice [Doc. No.
358]. This court sentenced the movant to 210 months'
imprisonment plus three years' supervised release [Doc.
the movant filed a timely notice of appeal, the Eleventh
Circuit affirmed her convictions and sentences by order dated
June 11, 2015. Adams, 612 Fed.Appx. at 572. The
Eleventh Circuit considered and rejected the movant's
arguments that (1) this court improperly denied her final
motion for continuance of trial; (2) this court improperly
admitted evidence of a Florida civil investigation and
settlement negotiations arising out of similar conduct not
included in the indictment; (3) this court improperly
admitted hearsay evidence; and (4) the 210-month sentence was
movant filed a petition for certiorari with the Supreme
Court. That petition was denied on January 11, 2016.
Adams v. United States, 136 S.Ct. 868 (2016).
Section 2255 Motion
movant now collaterally challenges her convictions and
sentences. In her motion, she asserts the following seven
grounds for relief: Ineffective assistance of counsel (1)
before trial, claims 1-8; (2) during trial, for failing to
prepare for trial or advise the movant on important decisions
and claims 6-8, 10; (3) during sentencing, claims 1, 4, 8-9;
(4) on ancillary matters, claims 1, 3, 5, 8; (5) on appeal,
for failing to raise meaningful arguments or support the
accused with available rules and evidence and claims 8, 9;
and (6) during the adversarial process generally, claims 1-5,
7-8; (7) prosecutorial misconduct, claim 11, which was not
raised on appeal because of ineffective assistance of
counsel; (8) trial court error, claim 12, which was not
raised on appeal because of ineffective assistance of
counsel; and (9) the movant is entitled to a defense based on
a change in the meaning of scheme or artifice to defraud,
claim 14. In her memorandum in support of her motion to
vacate, the movant raises the following fourteen claims:
1. Counsels provided constitutionally deficient
representation by failing to adequately research and analyze
the law as it applied to the facts of this specific case.
2. Counsels provided constitutionally deficient
representation by failing to adequately communicate the
indictment, the nature of the charges, the laws, the statutes
and/or the regulations as each related to the accused, her
businesses and/or her business relationships and/or the
affects of other agencies['] allegations.
3. Counsels provided constitutionally deficient
representation by failing to review the discovery with the
accused and how the government's evidence applied to each
of the elements of the government's allegations.
4. Counsels provided constitutionally deficient
representation by failing to adequately investigate and/or
adequately present mitigating evidence.
5. Counsels provided constitutionally deficient
representation by failing to seek authorization from the
court to represent the accused in other inextricably
intertwined ancillary matters ...