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United States v. Taghon

United States District Court, N.D. Indiana, Hammond Division

September 21, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ANDREW TAGHON, Defendant/Petitioner.

          OPINION AND ORDER

          PHILIP P. SIMON, CHIEF JUDGE, UNITED STATES DISTRICT COURT

         In this petition filed under section 2255, Andrew Taghon challenges his conviction for honest services wire fraud on the grounds that he is factually innocent based on Skilling v. United States, 561 U.S. 358 (2010). He also claims two other errors relating to his prosecution. The problem for Mr. Taghon is that his petition is untimely by a long shot, and so it must be denied.

         Background

         Taghon was a member of the St. Joseph County Police Department, and was charged in three separate prosecutions. In the first case - cause number 2:07cr 149 - Taghon was charged with nine counts including conspiracy to commit honest services wire fraud in violation of 18 U.S.C. § 1343 and 1349 (Count 1); possessing cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 2); carrying a firearm during and in relation to the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Counts 3 and 5); distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 4 and 6); and wire fraud in violation of 18 U.S.C. § 1343 (Counts 7, 8, and 9). In general, the case involved Taghon and his co-conspirators abusing their police powers by stealing property and selling the goods on eBay. The scheme also involved stealing cocaine and selling it as well.

         The second case - cause number 2:08cr184 - was a similar scheme. Taghon abused his police authority by acquiring firearms from traffic stops and arrest warrants, and sold or tried to sell them to someone he knew was a felon. Taghon was charged in the second case with seven counts, including selling a gun to a known felon in violation of 18 U.S.C. § 922(d)(1) (Counts 4 and 6).

         Three days before trial of the first case, Taghon pleaded guilty to Count 1 of the second superseding indictment in cause number 2:07cr149 for conspiracy to commit honest services wire fraud, and to Count 6 of the indictment in cause number 2:08cr184, for knowingly selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1). [Plea Agreement, DE 143 at 3.] In exchange, the government agreed to dismiss the remaining eight counts against Taghon in cause number 2:07cr149, and the remaining six counts in cause number 2:08cr184. [Id. at 5.] As part of the plea agreement, Taghon and the government agreed upon a sentence of 78 months imprisonment for his pleas of guilty in the first two cases to run concurrent to one another. [Id. at 4.]

         In the third case, Taghon was charged with one count of Hobbs Act robbery in violation of Title 18, United States Code, Section 1951, and one count of carrying a firearm during a crime of violence. The cause number was 2:09cr113. He later pled guilty to the Hobbs Act robbery and was sentenced to a term of 33 months to run consecutive to the 78 month sentence that he had received in the earlier cases. [DE 250 at 5 n.2.] Although Taghon has completed service of his 78 month sentence from the first two cases, he is still serving his 33 month sentence imposed in his third case (the Hobbs Act robbery case).

         The plea agreement from the first two cases contained an express waiver of Taghon's right to file a section 2255 motion. Here's what it said:

I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed, and that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense(s) as set forth in this plea agreement; with this understanding and in consideration of the government's entry into this plea agreement, I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel related directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.

[Plea Agreement, DE 143 at 5.]

         During the change of plea hearing before Magistrate Judge Andrew Rodovich on January 30, 2009, Taghon was directly questioned about his appeal waiver and twice indicated that it was knowing and he was satisfied with his counsel. [DE 232 at 16-17, 23.] Judge Rodovich stated, “[b]ased upon the terms of the plea agreement, and your guilty plea, you are waiving your right to appeal your conviction and your sentence unless you can demonstrate that you received ineffective assistance of counsel in waiving your right to appeal. Mr. Taghon, do you have any questions about that?” Id. Taghon replied, “[n]o, sir” and said he was satisfied with the services of his attorney. Id.

         I accepted the plea [DE 157], and, as mentioned, sentenced Taghon to the agreed upon 78 months for Count 1 in cause number 2:07cr149 and 78 months for Count 6 in cause number 2:08cr184, to be served concurrently. [DE 186.] I also ordered supervised release of 3 years to be served concurrently. Id. I then dismissed the remaining counts and issued a final judgment on May 26, 2009. [DE 187, 191.] Taghon did not file a direct appeal. As noted above, Taghon has already served his 78 month sentence on the first two charges, but he is still in custody on his third case - the case in which he received a sentence of 33 months consecutive to the 78 month sentences from the first and second cases.

         Taghon claims that he is actually innocent of the honest services wire fraud conviction that he pled guilty to. He relies on the 2010 Skilling case to support his argument. The problem is that Taghon had 1 year from the Skilling decision to file his motion to vacate under section 2255, and he filed it nearly four years too late. Taghon claims that a Department of Justice memorandum issued on October 14, 2014 relating to appeal waivers in plea agreements excuses his dilatory filing. Here's what the memo states in pertinent part:

When negotiating a plea agreement, the majority of United States Attorney's offices do not seek a waiver of claims of ineffective assistance of counsel. This is true even though the federal courts have uniformly held a defendant may generally waive ineffective assistance claims pertaining to matters other than entry of the plea itself, such as claims related to sentencing. While the Department is confident that a waiver of a claim of ineffective assistance of counsel is both legal and ethical, in order to bring consistency to this practice, and in support of the underlying Sixth ...

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