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Cochran v. United States

United States District Court, S.D. Indiana, Indianapolis Division

May 16, 2018

JAMES F. COCHRAN, Petitioner,


          Hon. Jane Magnus-Stinson, Chief Judge.

         For the reasons discussed in this Order, the motion of James F. Cochran for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. § 2255 Standard

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “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.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. Factual Background

         On February 14, 2012, Mr. Cochran was charged in a twelve-count multi-defendant Superseding Indictment. See USA v. Cochran, 1:11-cr-00042-JMS-DML-2 (hereinafter “Crim. Dkt.”), dkt. 217. He was charged in all twelve counts. Count 1 charged Mr. Cochran with conspiracy to commit wire fraud and securities fraud, in violation of 18 U.S.C. § 371. Counts 2-11 charged Mr. Cochran with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. Count 12 charged Mr. Cochran with securities fraud, in violation of 15 U.S.C. § 78j(b).

         Mr. Cochran's jury trial began on June 11, 2012, and ended on June 20, 2012. The jury found him guilty of counts 1, 4, 6, and 8-12, as charged in the Superseding Indictment. See Crim. Dkts. 354, 379.

         On August 27, 2012, the Court received a letter from Mr. Cochran that it forwarded to counsel. Crim. Dkt. 390. In the letter, Mr. Cochran made numerous claims of ineffective assistance of counsel regarding William Dazey and requested new counsel. On September 25, 2012, the Court held a status conference to discuss the matters raised in Cochran's letters regarding counsel. Crim. Dkt. 401. After the hearing, the Court appointed additional counsel to serve as lead counsel for purposes of sentencing for Mr. Cochran and had Mr. Dazey serve as co-counsel.

         On September 30, 2012, Mr. Cochran was sentenced to 25 years in prison: 5 years for count 1, 15 years for count 4, and for counts 6, and 8-12, 10 years for each count, concurrent, but consecutive to count 4 and counts 1 and 4 to run concurrently. Crim. Dkt. 444. The Court entered an amended judgment on December 14, 2012. Crim. Dkt. 460.

         On December 17, 2012, Mr. Cochran filed a notice of appeal of his conviction and sentence. See United States v. Durham, et al., 766 F.3d 672 (7th Cir. 2014). On March 27, 2013, Mr. Dazey withdrew as Mr. Cochran's counsel and, pursuant to the Criminal Justice Act, Michelle L. Jacobs was appointed to represent Mr. Cochran in his appeal. Crim. Dkt. 490. In his appeal, Mr. Cochran challenged the sufficiency of the wiretap application; argued that the district court erroneously refused to give a proposed theory-of-defense jury instruction on the securities fraud count; claimed prosecutor misconduct during the rebuttal closing argument; and challenged several sentencing issues and the restitution order. Durham, 766 F.3d at 678.

         On September 4, 2014, the Court of Appeals affirmed Mr. Cochran's conviction and sentence in all respects. The Court of Appeals held that 1) the affidavit supporting the wiretap application satisfied the necessity requirement; 2) there was no right to the proposed jury instruction; 3) the prosecutor did not engage in misconduct; 4) the district court's refusal to consider sentences from other districts was not procedural error; 5) sufficient evidence supported the calculation of actual loss at sentencing; and, 6) sufficient evidence supported the calculation of intended loss at sentencing. Id. On May 16, 2016, Mr. Cochran's petition for writ of certiorari was denied. Cochran v. United States, 136 S.Ct. 2035 (2016).

         On May 12, 2017, Mr. Cochran filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. The United States responded and Mr. Cochran has replied. The action is ripe for resolution.

         III. Discussion

         Over the course of 33 pages of briefing, 58 pages of attached exhibits, his 15-page affidavit, and a 12-page reply, Mr. Cochran identifies a number of issues for which he seeks relief pursuant to § 2255. See dkt. 1, dkt. 1-1, dkt. 2, dkt. 18. He argues that: (1) his trial counsel, Mr. Dazey, provided ineffective assistance; (2) his sentencing counsel, presumably just Mr. Dazey, provided ineffective assistance; (3) his appellate counsel provided ineffective assistance; (4) the trial court erred in not appointing a different counsel for sentencing; (5) there were errors in the sentencing calculations; (6) there were violations in sentencing because sentencing determinations were made outside his required presence and decided before the hearing began; and (7) the length of his sentence is improper given “changes in the law.” Each is discussed in more detail below.

         A. Ineffective Assistance of Counsel

         Apparently deeply dissatisfied with the results of the case and now retracting his previously expressed remorse, Mr. Cochran takes issue with his trial counsel, his sentencing counsel, and his appellate counsel, identifying a litany of instances he alleges his various counsel provided ineffective assistance of counsel.

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). If a petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, a petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. In order to satisfy the prejudice component, a petitioner must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In addition, in attacking trial counsel's performance, a defendant “must ‘overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (quoting Strickland, 466 U.S. at 689).

         1. Ineffective Assistance of Trial Counsel

         Mr. Cochran alleges that his trial counsel was ineffective for: (1) failing to file a motion to sever or asking for limiting instructions, dkt. 1 at 13-16; (2) failing to call certain witnesses, dkt. 2 at 10-11; (3) failing to allow him to testify, dkt. 1 at 18; and (4) failing to investigate, present favorable evidence, and conduct proper trial strategy, id. at 16-20.

         a. Failing to File a Motion to Sever

         Mr. Cochran first alleges that his trial counsel was ineffective for failing to file a motion to sever his trial from that of Mr. Durham, or in the alternative, to ask for limiting instructions to the jury. Dkt. 1 at 13-16. Mr. Cochran argues that the overwhelming evidence and mis-use of funds was attributable to Durham, not him, but that the “jury was forced to see Cochran (and Snow) in the same light as Durham.” Id. at 14-15.

         There is nothing inherently unlawful about trying more than one defendant at the same time, especially when, as here, the evidence established that Mr. Cochran worked in concert with Durham to manage Fair Finance (“Fair”) and defraud investors. In fact, severance under Fed. R. Crim. P. 14 is committed to the Court's sound discretion and should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). “There is a preference in the federal system for joint trials of defendants who are indicted together.” Id. at 537. Joint trials promote efficiency and go far to prevent the scandal and inequity of inconsistent verdicts among codefendants. Id. A defendant is not entitled to a separate trial simply because he might have a better chance of acquittal if tried alone. Id. at 540.

         Here, there is no reasonable probability that a motion for severance would have been granted if it had been filed, nor is there a reasonable probability that Mr. Cochran would have been acquitted if he had been tried separately. Mr. Cochran has pointed to nothing concrete that his counsel could have relied on as a basis to request severance under these standards. He was charged in the same indictment as Durham and Snow for the same crime, and much of the evidence allegedly attributable only to Durham would still have necessarily been presented in Mr. Cochran's trial to establish count 1, conspiracy (between at least Durham, Mr. Cochran, and Snow) to commit wire fraud and securities fraud. A joint trial was the most efficient way to try this case. See Zafiro, 506 U.S. at 537.

         In addition, Mr. Cochran has not identified any legal error in the jury instructions. Moreover, even if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and “juries are presumed to follow their instructions.” Id. at 540 (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)). The Court properly instructed the jury that the Government had “the burden of proving beyond a reasonable doubt the guilt of every defendant.” Crim. Dkt. 353 at 5; Crim. Dkt. 351; Crim. Dkt. 379 at 12. The Court then instructed the jury that it must “give each defendant separate consideration” and “consider each count and the evidence relating to it separate and apart from every other count.” Crim. Dkt. 353 at 19; see also Id. at 39 (“You must give separate consideration to each defendant.”). The jury was instructed that its “verdict of guilty or not guilty of an offense or as to a defendant charged in one count should not control [its] decision as to any other count.” Id. In addition, the Court admonished the jury that opening and closing arguments are not evidence and that it should draw no inferences from a defendant's exercise of the right to silence. Id. at 7, 12. These instructions sufficed to cure any possibility of prejudice. See Schaffer v. United States, 362 U.S. 511, 516 (1960).

         Accordingly, Mr. Cochran has failed to demonstrate that there was any deficient performance on the part of trial counsel nor prejudice relating to this issue.

         b. Failing to Call Certain Witnesses

         Mr. Cochran next alleges that Mr. Dazey was ineffective for failing to call as witnesses Ron Kaffen, a lawyer from an Ohio law firm; two unknown male subjects from “ODS”; John Head, President of Fair from 2002 to 2008; Terry Whitesell, President of Obsidian; an unknown female restaurant manager; and Jeff Birk, an accountant. He does not attach any affidavits from these witnesses, but alleges in his own affidavit as to what he supposed their testimony would have been. Dkt. 2 at 10-11.

         “The Constitution does not oblige counsel to present each and every witness that is suggested to him.” Blackmon v. Williams, 823 F.3d 1088, 1103 (7th Cir. 2016) (internal quotation omitted). “Rather, counsel need only investigate possible lines of defense and make an informed decision.” Id. “If counsel has investigated witnesses and consciously decided not to call them, the decision is probably strategic.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005). Strategic decisions like these, so long as they are made after a thorough investigation of law and facts, are “virtually unchallengeable.” Strickland, 466 U.S. at 690.

         “Complaints of uncalled witnesses are not favored in federal habeas corpus review.” United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (quoting Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)). “[I]f potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial.” DeRobertis, 811 F.2d at 1016. To meet this burden, “the petition must be accompanied with a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations going beyond mere unsupported assertions.” Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996).

         During Mr. Cochran's sentencing hearing, the Court acknowledged that Mr. Cochran had on several occasions expressed his dissatisfaction of Mr. Durham's spending habits, but he failed to do anything, tried to get some for his own, and used his “gift of gab” to betray investors:

THE COURT: It doesn't necessarily absolve you of any guilt, but it is clear that Mr. Durham was running the show. It is clear that Mr. Durham was spending this money as he saw fit, and it is clear that you didn't like that. And that had been going on for years, and you didn't like it. But your response to that, rather than say, and so, how does this relate to the investors of our company? Your response was, how can I get mine? When am I going to get mine? That is how it was being played out in the e-mails that came through. So that is about the nature and circumstances of the offense.
Was his conduct worse than yours? Sure. Because he was -- he turned on the tap and spent this money like it was nobody's business. But you didn't do much better, and you were living well beyond your means.
And then you were the guy that bragged about it in that one phone call talking about your gift of gab, and if you had that gift, you didn't use it for good, you used it for evil.
And within the victim letters, I don't know if you reviewed them, but within the victim letters a number of people recounted conversations with you where you made representations to them about the solvency of Fair and the safety of their investment, personal conversations. And in that way you were unique and you are different than Durham.
So basically what you did is you betrayed the very people that you grew up -- I am not saying literally but the type of people you grew up with, the people that grew up the same way you did. And that is an upbringing that should have taught you to do better, and I think it did. You knew better. You knew better than what you were doing, but boy, doggone it, you and Mr. Durham wanted to live that lifestyle. For whatever reason, I don't know.

Crim. Dkt. 481 at 156-57 (emphasis added).

         None of Mr. Cochran's proposed witnesses he alleges that Mr. Dazey failed to call (see dkt. 2 at 10-11) provides exculpatory or relevant information, as explained below.

• The two unknown male subjects (relating to how they saw no problems with Fair's offerings and had received no complaints against Fair) and the unknown female restaurant manager (who allegedly knew he was unhappy about Durham's use of Fair funds) remain unknown and thus would not be useful witnesses. Moreover, their testimony is not exculpatory or relevant.
• Ron Kaffen, a lawyer from an Ohio law firm, would have allegedly testified that Mr. Cochran wanted all laws and regulations to be complied with. This information is not exculpatory of Mr. Cochran's use of ...

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