United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
This case fell through the cracks and stayed there. Nothing can excuse the delay in ruling. The court can only offer its apologies to both parties in this case, especially to petitioner Angela Jackson, who should have learned the fate of her petition long ago.
Ms. Jackson was convicted at trial of one count of conspiracy to defraud and six counts of mail fraud. She stood trial with her husband Joe Jackson and her mother-in-law Essie Jackson. The court sentenced her to 15 months' imprisonment. Other facts and procedural events are set forth as needed. A fuller statement of facts can be found in the court of appeals' opinion affirming the convictions of her husband and mother-in-law. United States v. Jackson , 546 F.3d 801 (7th Cir. 2008).
Ms. Jackson is before the court on her petition under 28 U.S.C. § 2255, contending that her trial counsel (Robert Truitt) and her post-trial counsel (Jonathan Minkus) provided ineffective assistance of counsel. The court follows the government's lead and discusses the claims in chronological order rather than in the order Ms. Jackson used in her petition. She contends Mr. Truitt provided ineffective assistance of counsel by failing to (a) file a pretrial motion to suppress evidence of credit card fraud related to a receipt from Performance Plus that Joe Jackson submitted in support of Ms. Jackson insurance claim for custom rims and tires on her 1999 GMC, and (b) cross-examine government witnesses adequatley. She also asserts ineffective assistance of counsel by Mr. Minkus, who appeared for her before sentencing, for failing to (c) file a motion for a downward departure, (d) ask for a sentence based on the factors set forth in 18 U.S.C. § 3553(a), and (e) file a notice of appeal.
To prove ineffective assistance of counsel, a petitioner must persuade the court that (1) her lawyer made errors, and the errors were so serious that the lawyer can't be said to have been providing the petitioner with the counsel the Constitution guarantees to everyone, and (2) as a result, the petitioner's defense was prejudiced to the point she was deprived of a proceeding with a reliable result. Strickland v. Washington , 466 U.S. 668, 687 (1984). This is no small task. See Yu Tian Li v. United States , 648 F.3d 524, 527-528 (7th Cir. 2011) ("To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.").
This prosecution involved an insurance fraud scheme in which Ms. Jackson made insurance claims for damage or loss to three different motor vehicles. One of the vehicles was a 1999 GMC Suburban. That claim included the loss of custom rims and wheels Joe Jackson originally claimed he got from a business called Performance Plus. Mr. Jackson produced a receipt for the custom rims and wheels, and it turned out the purchase had been made with a fraudulent or stolen credit card. Ms. Jackson says Mr. Truitt should have moved to suppress the receipt or object to it at trial; Mr. Truitt did neither.
The grounds on which the receipt might have been suppressed before trial aren't clear; Ms. Jackson offers none. Joe Jackson objected at trial under Federal Rule of Evidence 403 because the jury might think he engaged in credit card fraud. The court overruled that objection because Mr. Jackson had claimed to have purchased the items himself, so the receipt had substantial probative value.
Had Mr. Truitt objected to the receipt at trial on Ms. Jackson's behalf, there's no reason to think the objection would have been sustained. The receipt was slightly less probative with respect to Ms. Jackson (who never stated directly that she bought the rims), but was still probative (this was part of the insurance claim she submitted) and carried considerably less risk of unfair prejudice (there was no suggestion that she ordered the rims). Mr. Truitt explained that he knew he could establish through the Performance Plus witnesses that they had no idea who actually ordered the items, and that Joe Jackson was going to testify that he purchased the rims and wheels from a passing stranger.
Ms. Jackson hasn't shown either that a reasonable attorney would have tried to exclude the receipt or that she was prejudiced in any way by Mr. Truitt's failure to try to exclude the receipt.
Ms. Jackson contends Mr. Truitt provided ineffective assistance of counsel by failing to cross-examine a crucial government witness about Fourth of July fireworks. In her third insurance claim, Ms. Jackson reported that she had driven the insured vehicle to Chicago to attend Taste of Chicago and watch the fireworks, and the vehicle was gone when she came back after the fireworks. The government presented the testimony of a postal inspector who was a 34-year Chicago resident and had often attended Taste of Chicago; she testified that the Taste of Chicago fireworks are always held on July 3.
Ms. Jackson is mistaken when she says her trial counsel didn't crossexamine the witness. Mr. Truitt established on the cross-examination that fireworks shows are held in Chicago on July 4, even if not the Taste of Chicago's show. Ms. Jackson doesn't suggest what else a cross-examination could have accomplished, and sometimes the best strategy is to simply get the witness off the stand as quickly as possible. Ms. Jackson also says there were other government witnesses Mr. Truitt should have cross-examined, but she doesn't identify them or specify what should have been done.
Ms. Jackson hasn't shown either that a reasonable attorney would have cross-examined witnesses differently or that she was prejudiced in any ...