United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
Michael Sheneman ("Mr. Sheneman") and his son Jeremie Sheneman ("Jeremie") were convicted by a jury on four counts of wire fraud for their role in an elaborate mortgage fraud scheme. Mr. Sheneman was sentenced to 97 months of imprisonment, while Jeremie was sentenced to 120 months. Both defendants' sentences were affirmed by the court of appeals on direct appeal, and Mr. Sheneman has now moved for collateral relief under 28 U.S.C. § 2255. [DE 185]. That initial motion has been fully briefed. [DE 197, 210]. Mr. Sheneman has also filed two motions for leave to amend his § 2255 motion [DE 211, 221], the first of which has been fully briefed, [DE 213, 218], in addition to a "Supplement" [DE 243], a "Motion to Submit Newly Discovered Evidence [of] Actual and Factual Innocen[ce]" [DE 247], and an "Addendum." [DE 254]. For the reasons stated below, Mr. Sheneman's § 2255 motion is denied in part and taken under advisement in part. The parties are granted leave to supplement the record with affidavits or other evidence for the claims that remain at issue.
The factual background of this case has been set forth extensively in prior orders by this Court [DE 111, 150, 166] and by the Seventh Circuit Court of Appeals. United States v. Michael Sheneman, 682 F.3d 623 (7th Cir. 2012); United States v. Jeremie Sheneman, 538 F.Appx. 722 (7th Cir. 2013). Those facts, as set forth by the court of appeals on Mr. Sheneman's direct appeal, are as follows:
From 2003 to 2005, Sheneman and Jeremie worked in tandem to defraud both real estate buyers and mortgage lenders through a series of calculated misrepresentations. Generally speaking, their plan involved acquiring control over a large number of rental properties, inducing buyers to purchase the properties through a host of false promises, and ensuring that lenders would finance the purchases by falsifying loan documents and misrepresenting the buyers' financial standing.
Sheneman and Jeremie began by acquiring control over a large number of rental properties being sold by landlords in the South Bend and Mishawaka areas of Indiana. Many of these sellers had difficulty renting out their properties-some were in very poor condition-and were, by and large, simply looking to cut their losses and walk away from the homes with their mortgages and taxes paid. They agreed to sell their properties to either Sheneman or Jeremie, both of whom had a reputation for "flipping" homes and selling them at a profit. Although most sellers believed they had sold their properties directly to either Sheneman or Jeremie, the sellers had in fact merely granted one of the two power of attorney over their properties. By exercising powers of attorney, Sheneman and Jeremie took control over the properties without ever appearing on any chain of title. The sellers, for their part, did not notice much of a practical difference. Each seller received the amount of money agreed upon as the selling price-albeit not from a title company, as would normally be the case, but directly from either Sheneman or Jeremie. After they "flipped" the houses and sold them to new buyers for more than the seller's asking price, Sheneman and Jeremie then endorsed and deposited the checks issued by the title company directly into their own accounts, yielding them hefty profits.
Once granted control, Sheneman and Jeremie then set about searching for buyers to purchase the dilapidated properties. Eventually, they found their marks, selling sixty properties to four buyers with no relevant real estate experience: Gladys Zoleko, a Cameroonian citizen in the United States on a student visa, bought fifteen homes; Paul Davies, a Liberian citizen also on a student visa, bought fourteen homes; David Doolittle, an electrician, bought twenty-one homes; and Gary Denaway, a maintenance worker, bought ten homes. For each buyer, a very similar pattern of conduct transpired.
Sheneman and Jeremie made a wide range of promises to the buyers-false promises, as it turns out-in order to induce the sales. The buyers were all looking for an additional source of income, and Sheneman promised them just that. Significant profits could be made by purchasing homes and then renting them out-the more homes purchased, the bigger the profit. The homes were all in excellent condition, buyers were assured, and either Sheneman or Jeremie would make any necessary repairs. There was also little risk because most of the homes already had paying tenants living in them, and Sheneman and Jeremie would help find new tenants for vacant homes. And if the buyers ever wanted to get out of the real estate business, Sheneman and Jeremie promised to buy back properties that they no longer wanted. Perhaps most enticing of all, Sheneman and Jeremie also promised to cover all down payments and closing costs. The buyers, despite their relatively modest incomes, could therefore purchase a large number of homes and begin earning an immediate profit-without having to spend a dime out-ofpocket. They jumped at the chance.
The buyers, for their part, ignored some clear red flags. Most obviously, they were only permitted to see one or two of the properties they were purchasing prior to closing. The other homes, buyers were told, had tenants already living in them and a visit to those homes might disturb the tenants. But the buyers were assured that the other homes were all in similar condition and located in comparable neighborhoods.
Buyers filled out only minimal paperwork throughout the process. Sheneman brought each potential buyer to Superior Mortgage, a mortgage broker where Jeremie worked as a loan officer. There, each buyer completed a few documents with some very basic information. Shortly thereafter, Jeremie informed the buyer that he or she was approved to buy a large number of properties. In order to ensure that mortgage lenders approved the loan applications, however, Jeremie falsified key parts of the documents. Among other misrepresentations, numerous loan applications falsely stated the buyers' citizenship, employment status, and finances, and the buyers' signature on many documents was often forged.
Beyond falsifying documents, Sheneman and Jeremie took other steps to secure financing from lenders and ensure the closings took place. First, they artificially inflated buyers' bank accounts, depositing tens of thousands of dollars in order to make it appear as though the buyers had sufficient assets to take on the loans. After the transactions were completed, the money was returned to Sheneman and Jeremie. Second, they masked the buyers' financial infirmities from lenders by utilizing certified checks to cover down payments and closing costs. Lenders therefore had no way of knowing that the buyers were not the true source behind these payments, as the loan documents contemplated.
After closing, each of the buyers quickly discovered that the deals they were promised were too good to be true. A number of the newly purchased homes were hardly habitable. Some had faulty plumbing, others had significant mold and termite damage, and yet others had structural damage and leaky roofs. Moreover, paying tenants were difficult to come by. Many of the homes did not have tenants living in them-despite previous assurances to the contrary-while others had tenants who never paid rent. Often, the few homes that the buyers had actually viewed prior to closing were not even included among the properties they had purchased. Many of the properties were also located in worse neighborhoods than the ones they had visited.
When the buyers contacted Sheneman and Jeremie to repair the homes or assist them in finding tenants, as they had promised to do, they were suddenly difficult to reach. The buyers' calls would often be ignored, or Sheneman and Jeremie would hang up when the buyers began complaining. In the end, Sheneman and Jeremie made very few repairs to the properties and reneged on their promise to buy any of them back. Unsurprisingly, each of the buyers was soon unable to make timely mortgage payments. Of the sixty properties: thirty-six were foreclosed upon, eleven were deeded back to the lender in lieu of foreclosure, six were demolished by the city, and four were sold in tax sales.
Sheneman and Jeremie were indicted on October 13, 2010, and charged with four counts of wire fraud in violation of 18 U.S.C. § 1343. After a four-day jury trial, they were convicted on all four counts. At sentencing, the district court calculated Sheneman's advisory sentencing guidelines range to be 87 to 108 months' imprisonment. In doing so, the court applied several sentencing enhancements, including enhancements for a loss amount of more than $1 million, using sophisticated means, having ten or more victims, and gaining more than $1 million in gross receipts from a financial institution. The district court then sentenced Sheneman to 97 months' imprisonment [and imposed restitution].
Sheneman, 682 F.3d at 626-28.
The Seventh Circuit affirmed Mr. Sheneman's conviction and sentence on appeal, and Mr. Sheneman has now timely moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
II. STANDARD OF REVIEW
Section 2255(a) of Title 28 provides that a federal prisoner may claim "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, [and] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, "a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Consequently, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4, Rules Governing Section 2255 Proceedings for the United States District Courts. A court may also deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
III. PRELIMINARY MATTERS
As noted above, Mr. Sheneman has filed five separate amendments, supplements, or addenda to his motion since it became ripe. [DE 211, 221, 243, 247, 254]. The government only responded to the first motion for leave to amend, and addressed Mr. Sheneman's arguments on their merits rather than opposing the amendment. The motions are each GRANTED to the extent that the Court will consider the arguments raised therein on their merits. The Court has incorporated the arguments raised in Mr. Sheneman's first and second motions for leave to amend, his supplement, and his addendum [ DE 211, 221, 243, 254] into its analysis below.
As to the "Motion to Submit Newly Discovered Evidence [of] Actual and Factual Innocen[ce], " the Court first notes that much of the "newly-discovered evidence" is not only not newly-discovered, but was actually admitted at trial. In any event, this filing seeks to establish Mr. Sheneman's actual innocence under Schlup v. Delo, 513 U.S. 298 (1995) and McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). However, as the Supreme Court noted in those cases, "actual innocence" itself has never been recognized as a freestanding ground for collateral relief; it can simply be used to excuse a petitioner's procedural default so as to "allow a prisoner to pursue his constitutional claims... on the merits notwithstanding the existence of a procedural bar to relief." McQuiggin, 133 S.Ct. at 1931; Schlup, 513 U.S. at 314 ("Schlup's claim of innocence... is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, and the withholding of evidence by the prosecution, denied him the full panoply of protections afforded to criminal defendants by the Constitution." (internal citations omitted)). Here, the government has not raised procedural default as a bar to any of Mr. Sheneman's claims (though it could have, except as to the ineffective assistance of counsel claim), nor does the Court rely on that doctrine to dispose of any of the claims, as procedural default can itself be waived or forfeited. Accordingly, although this filing falls well short of establishing Mr. Sheneman's actual innocence, he does not need to establish cause to excuse a procedural default in the first place, so the Court need not further address this filing.
Finally, the Court notes that Mr. Sheneman's continuous filings do little except to delay the resolution of his petition. Just over a month after his initial motion became ripe on May 21, 2013, Mr. Sheneman filed his first motion for leave to amend. [DE 211]. After the government's response and Mr. Sheneman's reply, that motion became ripe on August 26, 2013. [DE 218]. Just over a month later, Mr. Sheneman filed his second motion for leave to amend on October 3, 2013. [DE 221]. After that motion became ripe upon the lapsing of the government's time for response, Mr. Sheneman filed a "Supplement, " [DE 243], which was followed shortly thereafter by his motion to submit newly-discovered evidence, [DE 247], which was then followed by an "Addendum, " [DE 254], which has yet to become ripe.
These recent filings have added little if any substance to Mr. Sheneman's arguments, and his own briefing on this matter already far exceeds 100 pages. Accordingly, if Mr. Sheneman wishes to further amend or supplement his motion, he must demonstrate good cause for his failure to raise the issue at the time of the initial filing of his § 2255 motion. Otherwise, except for the submissions the Court expressly requests below, the Court will not consider any further filings.
Mr. Sheneman seeks to vacate his conviction under 28 U.S.C. § 2255, which permits a court to vacate a judgment where "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). As a basis for his § 2255 motion, Mr. Sheneman alleges four violations of his constitutional rights: (1) ineffective assistance of counsel in violation of his Sixth Amendment right to counsel; (2) constructive amendment of the indictment in violation of the Fifth Amendment right to an indictment and his Sixth Amendment right to be informed of the nature and cause of the accusation; (3) improper jury instructions in violation of his Fifth Amendment right to due process of law; and (4) solicitation of perjury in violation of his Fifth Amendment right to due process. The Court considers each in turn.
A. Ineffective Assistance of Counsel
Mr. Sheneman argues that he was denied his right to the assistance of counsel, as guaranteed by the Sixth Amendment. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To satisfy this right, an attorney must not only be present with a criminal defendant at his trial, but must assist the defendant in a way that ensures the trial is fair. Strickland v. Washington, 466 U.S. 668, 685 (1984). A fair trial is one in which the adversarial process functions properly to produce a just result. Id. at 686.
To prevail on a claim for ineffective assistance of counsel, Mr. Sheneman must first demonstrate that counsel's performance was deficient-"that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To show deficient performance, the defendant must show "that counsel's representation fell below an objective standard of reasonableness." Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland, 466 U.S. at 688). "This means identifying acts or omissions of counsel that could not be the result of professional judgment. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (citing Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011)).
Further, "there is a strong presumption that [the defendant's] attorney performed effectively, " Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003), and that the challenged conduct "might be considered a sound trial strategy." Strickland, 466 U.S. at 689 (citation and quotation omitted). The reasonableness of counsel's performance must be evaluated "from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). So long as an attorney articulates a strategic reason for a decision that was sound at the time it was made, the decision generally cannot support a claim of ineffective assistance of counsel. Yu Tian Li v. United States, 648 F.3d 524, 528 (7th Cir. 2011) (citing United States v. Lathrop, 634 F.3d 931, 937-38 (7th Cir. 2011) (provided counsel's reasons for not questioning further were not "so far off the wall that we can refuse the usual deference that we give tactical decisions by counsel, his performance will not qualify as deficient")); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).
Even if Mr. Sheneman establishes this first element, he must also demonstrate that counsel's deficient performance prejudiced his defense-"that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland, 466 U.S. at 694); United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (same). "In weighing the effect of counsel's errors, the court must consider the totality of the evidence.... A verdict or conclusion that is overwhelmingly supported by the record is less likely to have been affected by errors than one that is only weakly supported by the record." Eckstein, 460 F.3d at 848 (quoting Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001)). Failure to satisfy either the performance or the prejudice prong of the Strickland test is fatal to a defendant's ineffectiveness claim. Velarde v. United States, 972 F.2d 826, 828 (7th Cir. 1992); see Strickland, 466 U.S. at 687 (reasoning that "[u]nless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable").
Mr. Sheneman raises multiple grounds for his ineffective assistance claim, asserting that his appointed counsel, David Jones, was ineffective because he: (1) failed to investigate Mr. Sheneman's claims and introduce certain evidence that would have been favorable; (2) had a conflict of interest; (3) failed to object to a constructive amendment of the indictment; (4) failed to object to a jury instruction; (5) failed to object to perjured testimony; and (6) failed to raise certain arguments relative to Mr. Sheneman's Guidelines range and restitution at sentencing. Mindful of the fact that "ineffective assistance of counsel is a single claim no matter the number of attorney errors it is based on, " Peterson v. Douma, No. 12-2924, 2014 WL 1778150, at *3 n.1 (7th Cir. May 6, 2014), the Court first addresses the arguments individually to determine whether they identify any potential errors or shortcomings that could possibly have had a prejudicial effect. Once the record permits resolution of each of those arguments, the Court will then assess any potential errors in light of the record as a whole to determine whether Mr. Sheneman's attorney was functioning as a counsel as guaranteed by the Sixth Amendment, and whether Mr. Sheneman was prejudiced by any potential deficiencies.
1. Failure to Investigate and Introduce Particular Evidence at Trial
The core of Mr. Sheneman's ineffective assistance of counsel claim is his argument that his attorney failed to properly investigate and to introduce evidence at trial that would have led to his acquittal. In order to sustain an ineffective assistance of counsel claim based on his attorney's failure to investigate or to introduce favorable evidence at trial, Mr. Sheneman bears the burden of identifying the specific evidence that his attorney should have introduced and setting forth what that evidence would have shown at trial. Wright v. Gramley, 125 F.3d 1038, 1044 (7th Cir. 1997) ("It is firmly established that in order to succeed on a failure to investigate claim, the petitioner must demonstrate what the attorney would have discovered had a proper investigation occurred, as well as what evidence would have been introduced at trial."); United States v. Ashimi, 932 F.2d 643, 649-50 (7th Cir. 1991) (holding that to succeed on a failure to investigate or failure to introduce favorable evidence claim, "we must know what the attorney would have discovered after adequate' investigation" and what the purportedly favorable evidence would have been at trial); United States ex rel. Partee v. Lane, 926 F.2d 694 (7th Cir. 1991) ("[A] habeas court cannot even begin to apply Strickland's standards to [a failure to investigate or elicit testimony] claim unless and until the petitioner makes a specific, affirmative showing as to what the missing evidence or testimony would have been.'"). Accordingly, the Court begins its analysis by distilling from Mr. Sheneman's arguments the specific evidence and witnesses that he asserts his attorney should have offered.
Mr. Sheneman has identified the following alleged shortcomings in the presentation of his case, as summarized in his reply brief:
Failure to interview and call witnesses Alan Butz and Jack Griffith to testify that even where the seller is available for closing, the use of power of atto[r]ney forms are commonplace, and not nefarious and deceptive, and are frequently used for rights to connect and disconnect utilities, pay taxes and obtain tax information, to collect and disburse rental payments and to continue and/or assume maintenance contracts.
Failure to interview and call witnesses Alan Butz and Jack Griffith to testify that it is commonplace in the industry of buying residential real estate that property inspections are usually handled by property inspection firms, and that contact with property tenants, pre-closing is usually restricted.
Failure to introduce into evidence additional Power of Attorney forms to verify that Petitioner Sheneman was contractually restricted from allowing prospective buyers contact with property tenants, pre-closing.
Failure to introduce exculpatory documentation [including a mortgage application and a Truth in Lending packet] to verify that the California property had not been switched on Ms. Zoleko at closing.
Failure to call property tenants, and representatives of the utility companies and appraisal firms, to testify that every single home sold by Petitioner Sheneman, either directly or indirectly, was rented at the time that the house was sold.
Failure to interview and call South Bend property code inspector Stan Martinez [ sic ] to testify that all homes sold in South Bend owned by Petitioner Sheneman or controlled by him through powers of attorney, were up to code at the time they were sold.
Failure to interview and call as a witness the specified expert witness [in contract interpretation], who would have testified that the contract provided that homes were sold "AS IS", and that therefore, Petitioner Sheneman had no legal or contractual duty to make repairs to the homes, post-closing, and further that a party to a contract cannot unilaterally amend the obligations of the contract.
Failure to interview and call a forensic accountant to account for all the "down payment moneys" paid by Petitioner Sheneman to the home buyers as matching those amounts on the real estate purchase agreement.
Failure to interview and call as witnesses, each of the lender representatives involved in the actual loans relative to the Indictment and trial, who would have testified that the "down payment moneys" were fully disclosed to them in the closing Settlement Statements, and was not material to the issuance of the loans, due to the type of loan program utilized.
Failure to interview and call as witnesses Brenda Buck and Steve Kollar who were the perpetrators of mortgage fraud on the Gary Denaway loans.
Failure to interview and call a handwriting expert, who would have testified that the subject original mortgage applications were not forged, but were handwritten by Gladys Zoleko, and Lauren Duesler.
Failure to introduce prior inconsistent testimony of Lauren Duesler, and interview and call Andrew Beam as a witness to testify about rampant mortgage fraud at Superior Mortgage not involving Petitioner Sheneman nor Jeremie, and for other reasons state in Ground III herein.
[DE 210 p. 15]. Mr. Sheneman's filings further assert these alleged shortcomings:
Failure to call Liz Toban and Charlotte Johnson to testify that they had purchased properties from Mr. Sheneman and had no complaints. [DE 185-3 p. 20].
Failure to introduce the settlement statements from the closings to demonstrate that Mr. Sheneman's contributions were disclosed to the lenders. [DE 185-3 p. 29].
Failure to call Andrew Beam as a witness and introduce certain documents to show that Mr. Sheneman did not own Superior Mortgage. [DE 185-3 pp. 36-37].
Failure to call Andrew Beam as a witness to testify that he actually interviewed the buyers and personally signed their loan applications, and that Lauren Duesler and Gladys Zoleko, not Jeremie, made the false statements on the loan applications. [DE 185-3 pp. 40-42].
Failure to introduce a loan application that corrects a previous misrepresentation that the property would be owner-occupied. [DE 185-3 p. 36].
Failure to request a copy of a Form 302 report documenting Gladys Zoleko's interview with the FBI, and to impeach her with prior inconsistent statements contained in that report. [DE 211, 218].
To address each of these claims, the Court first addresses the items that Mr. Sheneman's counsel either did introduce at trial, could not have introduced at trial, or fully addressed to the extent relevant but through other means. The Court then details the remaining items for which there is any meaningful discrepancy between what defense counsel actually did and what he might have done, in order to determine whether such discrepancies could satisfy both prongs of the Strickland analysis.
a. Evidence that Defense Counsel Did Introduce to the Extent Admissible and Relevant
A substantial portion of the evidence Mr. Sheneman faults his attorney for not introducing is evidence that either was actually introduced, that would have been wholly immaterial or inadmissible, or that would have been cumulative to evidence that his counsel introduced to accomplish substantially the same ends through other means. Because there is no meaningful discrepancy between what Mr. Sheneman's counsel did and what Mr. Sheneman urges he should have done, they have no tendency to demonstrate ineffective assistance of counsel, and can be eliminated as potential bases for this claim.
Tyl Power of Attorney
First, Mr. Sheneman argues that his counsel should have introduced the specific power of attorney signed by Elinor Tyl in order to demonstrate that he did not have the authority to permit the buyers to contact the tenants. Mr. Sheneman states that his attorney "surely clinched [his constitutional ineffectiveness] by failing to admit into evidence the Power of Attorney covering the houses to which Mr. Davies was denied entry, " which "undoubtedly was not done by Petitioner Sheneman's trial counsel as a result of his lack of preparation in this case." [DE 185-3 p. 18]. Notably, however, Mr. Sheneman's counsel did introduce this document, and in fact placed great emphasis on it. [Defendant's Exhibits M-30, M-31]. The very first thing Mr. Sheneman's counsel did in his case in chief was to admit and publish to the jury the signed agreement between Ms. Tyl and Mr. Sheneman, which states, "It is expressly understood that NO ONE is to have any direct contact with or approach the tenants of any of the properties." [DE 78 pp. 5-6]. He returned to this ...