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Adams v. United States

United States District Court, N.D. Georgia, Atlanta Division

December 12, 2018



          CHARLES A. PANNELL, JR. United States District Judge.

         This 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].[1] 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].

         As an 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 DENIED.

         I. Standard of Review

         In 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).

         II. Discussion

         A. Background[2]

         The 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].

         A trial was held from October 24, 2011, through November 7, 2011. The Eleventh Circuit Court of Appeals summarized the evidence as follows:

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 Cir. 2015).

         The 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. No. 386].

         After 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 substantively unreasonable.

         The 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).

         B. Section 2255 Motion

         The 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 ...

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