United States District Court, D. Oregon
J. Williams United States Attorney Geoffrey A. Barrow
Assistant United States Attorney Attorneys for Plaintiff
Michelle A. Ryan Law Office of Michelle A. Ryan, LLC Attorney
OPINION & ORDER
A. HERNÁNDEZ, DISTRICT JUDGE
December 4, 2012, Defendant pleaded guilty, without a plea
agreement, to conspiracy to distribute oxycodone and use
communication facilities, conspiracy to launder drug
proceeds, and conspiracy to violate the travel act. On April
29, 2013, Defendant was sentenced to 210 months in custody.
Now, Defendant moves to vacate and correct his sentence
pursuant to 28 U.S.C. § 2255, arguing that he received
ineffective assistance of counsel.
a case about a lawyer with serious professional failings. The
Court finds, however, that these failings did not impact the
outcome of Defendant's underlying criminal case.
Accordingly, Defendant's motion is denied.
Investigation and Indictment
January of 2011, the Government obtained authorization to
intercept communications between parties suspected of
distributing drugs. Gov't. Resp. at 1, ECF 841. On March
17, 2011, authorities searched several properties involved in
its investigation, including properties owned by Defendant in
Florida and Nevada. Id. Defendant was charged in a
three-count indictment alleging that he, along with 17
co-defendants, operated the largest oxycodone trafficking
ring ever found in the District of Oregon. Id.;
Third Sup. Indict., ECF 192. Defendant was accused of: (1)
obtaining tens of thousands of oxycodone pills and
distributing the pills throughout the country; and (2)
laundering the proceeds from the oxycodone sales through
numerous bank accounts and shell corporations. Third Sup.
Indict., ECF 192.
Retention of Mr. Bertoni as Counsel and Initial
father, Dr. Lantis Osemwengie, was referred to Gary Bertoni
by an attorney in Nevada who previously represented Defendant
in a separate matter. Def.'s Ex. 101 (“Dr.
Osemwengie Decl.”) at ¶ 2, ECF 943-1. Dr.
Osemwengie testified that he did not want his son to be
represented by a public defender because he was concerned a
public defender would do the bare minimum on his son's
case. Accordingly, in April of 2011, he retained Mr. Bertoni
to represent Defendant for a non-refundable flat fee of $10,
000. Id. at ¶ 4; Def.'s Ex. 111 at 1-2, ECF
943-13. The fee agreement contained a trial escalation clause
that required Defendant to pay $4, 000 if the case went to
trial. Def.'s Ex. 111. The agreement also provided that,
if the case was determined to be a “complex drug case,
” defined as “a case where discovery, as it
pertains specifically to CLIENT, exceeds 10, 000 pages,
” then the flat fee would need to be adjusted to
reflect the complexity of the case. Id. at 1. At the
evidentiary hearing, Mr. Bertoni acknowledged that there were
inherent risks involved in flat-fee agreements because cases
that take more time generate less income. He testified that
there is generally no advantage to having a flat-fee case
linger on, especially once the attorney has spent time
preparing for trial. The complex case and trial escalation
clauses were intended to mitigate that risk.
signing the agreement, Dr. Osemwengie questioned the cost
increase stipulation in the case of a complex drug case
designation. Dr. Oswemwengie Decl. ¶ 3; Def.'s Ex.
112 at 1, ECF 943-14. Mr. Bertoni assured Dr. Osemwengie that
“[t]here is nothing about [his] son's case that is
extraordinary or that suggests it would be designated a
Complex Drug Case.” Def.'s Ex. 112. Mr.
Bertoni testified that at the time he was negotiating the
agreement with Dr. Osemwengie, no discovery had been provided
and he had not seen anything indicating the case would be
complex. After receiving these reassurances from Mr. Bertoni,
Dr. Osemwengie signed the retainer and paid an $8, 000 down
payment towards the flat fee. Dr. Oswemwengie Decl. ¶ 4;
Def.'s Ex. 112 at 1.
April 11, 2011, Federal Public Defender Steve Wax, defense
attorney for one of Defendant's co-defendants, sent a
letter to Mr. Bertoni, alerting him of the Government's
intention to seek a complex drug case
designation. Def.'s Ex. 113 at 2, ECF 943-15. Mr.
Wax cited the Government's extensive investigation and
over 40, 000 pages of discovery. Id. In an email to
Dr. Osemwengie on April 15, 2011, Mr. Bertoni stated that the
discovery would likely be 40, 000 pages. Def.'s Ex. 114,
ECF 943-16. He clarified that it was unclear how many pages
pertained to Defendant. Id. Mr. Bertoni did not
mention that he knew of the Government's intent to seek a
complex case designation. Id. A few months later, on
August 5, Mr. Bertoni told Dr. Osemwengie that the case had
been designated a complex case and asked to renegotiate his
flat fee. Def.'s Ex. 117 at 3, ECF 943-19. Mr. Bertoni
also informed Dr. Osemwengie that “there is evidence
that [Defendant] was engaged in some form of drug dealing
during the time frame of this case.” Id. After
some back and forth, Def.'s Exs. 121, 123, ECF 943-23,
943-25, they ultimately renegotiated a flat fee of $16, 000,
Dr. Osemwengie Decl. ¶ 11, ECF 943-1.
Bertoni testified that he went through the extensive
discovery by hand, and both Mr. Bertoni and Defendant
testified that Defendant was provided with a laptop in
Columbia County Jail to go through the discovery himself and
take notes. They discussed the discovery, and Mr. Bertoni
answered Defendant's questions. According to Defendant,
Mr. Bertoni told him that there was no “smoking
gun” and that they could go to trial. However,
Defendant testified that his own review of the overwhelming
discovery convinced him that he needed to plead guilty.
12, 2011, a prosecutor for the Government wrote a letter to
Mr. Bertoni, addressing the Oregon State Bar
(“OSB”) investigation of Mr. Bertoni's
alleged misuse of funds. Def.'s Ex. 116, ECF 943-18. In
the letter, he asked Mr. Bertoni to ensure that Defendant
made an informed decision to continue retaining Mr. Bertoni
while he was under investigation. Id. The AUSA, Mr.
Barrow, requested that the discussion happen “in open
court.” Id. Though the record does not show
that a hearing occurred, id.; Def.'s Corrected
Reply at 4, ECF 943, Mr. Bertoni testified that he discussed
the status of his bar complaint with Defendant and Judge
Haggerty at a court appearance outside the presence of the
Government. After having been informed of the bar complaint,
Mr. Bertoni's possible sanctions, and the
Government's concerns on this matter, Defendant signed a
Consent of Representation and Waiver on June 14, 2011.
Consent of Rep. and Waiver, ECF 145.
testified that in April, May, and June of 2011, he met with
Mr. Bertoni several times while he was in Multnomah County
Jail. After being transferred to Columbia County, it became
more difficult for Mr. Bertoni to visit and he saw Mr.
Bertoni less often. Defendant testified that he considered
Mr. Bertoni a good friend and turned to him for emotional
support. He also trusted Mr. Bertoni and left case strategy
to him. Initially, Defendant said that he intended to go to
trial because he was confused about why he was being charged
in Portland when he had never been to Oregon. But in August
of 2011, after other inmates in the jail advised him that he
should not proceed to trial in federal court, Defendant told
Mr. Bertoni that he was interested in a plea.
August 8, 2011, Defendant wrote Mr. Bertoni and asked that he
send a “counteroffer” to Mr. Barrow, indicating
Defendant's interest in providing information to the
prosecution in exchange for assistance getting pretrial
release. Def.'s Ex. 118, ECF 943-20. Mr. Bertoni
testified that he began discussing a proffer or
“reverse proffer” early in his representation of
Defendant. Mr. Bertoni discussed the benefits of cooperating
with Defendant and chose this strategy based on recent
experiences where cooperation had proved beneficial.
According to Mr. Bertoni, Defendant questioned the strength
of the Government's case. Mr. Bertoni hoped that by
presenting its case to Defendant, Defendant would be more
amenable to cooperating with the Government.
ultimately attended proffer sessions with the Government on
September 15 and 18, 2011. McGeachy Aff. ¶ 6, ECF 842.
According to Mr. Bertoni, the Government began the first
proffer by discussing Defendant's role in the alleged
conspiracy, the law of conspiracy, and the advisory
guidelines. Mr. Bertoni testified that this conversation was
not inconsistent with the advice that he had given Defendant.
While Defendant admitted to his involvement in some of the
events presented by the Government, he denied or tried to
minimize his involvement in others. Specifically, he
maintained that he was not responsible for the conduct
charged in the conspiracy, but he admitted to distributing
drugs on the East and West coasts. IRS Special Agent Scott
McGeachy confirms that Defendant admitted to certain
transactions involving oxycodone but minimized the quantities
of drugs substantially. McGeachy Aff. ¶ 6. He also
recalls Defendant admitting in his proffer that he directed
co-defendant Reina Nakachi to engage in certain business
transactions and work for him as a dancer or prostitute in
exchange for payment of her expenses. Agent McGeachy also
said that Defendant did not express interest in resolving the
case and denied involvement in the charged conspiracy with
co-defendant Olumbenga Badamosi. He described Defendant
during the proffer as “defiant.”
Defendant testified that he went over the proffer agreements
with Mr. Barrow, Defendant alleges that Mr. Bertoni failed to
prepare him for the proffer sessions with the Government in
September of 2011. Def.'s Ex. 141 (“Def.'s
Decl.”) ¶ 5, ECF 943-40. He claims that Mr.
Bertoni advised him to use the proffer sessions as an
opportunity to gain information about the Government's
evidence. Id. Consistent with the testimony of Mr.
Bertoni and Agent McGeachy, Defendant testified that he
denied being a member of the conspiracy charged in the
indictment at his proffer and admitted buying and selling
oxycodone. Defendant also denies directing Ms. Nakachi to
engage in drug trafficking, prostitution, or other
declares that Mr. Bertoni never reviewed the law of
conspiracy with him. Id. at ¶ 11. Though
Defendant admits that the Government explained the law of
conspiracy to him at this proffer, he asserts that he did not
trust Mr. Barrow. Id. The Government suggests that
Defendant was familiar with the conspiracy charge because he
had a prior federal criminal conspiracy conviction. But
Defendant counters that his 2006 conviction for defrauding
banks was different than “this drug case [in which he]
didn't understand how [he] could be guilty of being a
leader of or being in this conspiracy with the codefendants
because [he] never dealt with most of the people from the
early February of 2012, Mr. Bertoni had reached a settlement
with the OSB, which provided that Mr. Bertoni would serve a
five-month suspension from practicing law, beginning on March
27, 2012. Def.'s Ex. 120 at 653:2-22, ECF 943-22. The
Court scheduled a status conference on February 8, 2012, to
discuss Mr. Bertoni's upcoming suspension. Sched. Order,
ECF 240; Status Conf. Tr., ECF 678.
February 3, 2012, the Government offered Defendant a plea
deal. Gov't. Resp. Ex. 1, ECF 841-1. The plea deal
included a sentence of 188 months and expired on March 2,
2012. Id. Mr. Bertoni informed Defendant of the plea
deal on the day of the status conference, February 8, 2012.
Def.'s Decl. ¶¶ 15-18.
Osemwengie submits a declaration stating that in January or
February of 2012, Mr. Bertoni discussed the Government's
“14 years sentence plea deal” with Defendant and
advised Defendant to turn the deal down because of the length
of the sentence in comparison to the relatively low sentences
given to Defendant's co-defendants. Dr. Osemwengie Decl.
¶ 16. According to Dr. Osemwengie, Mr. Bertoni promised
to “extract a reasonable plea deal from the
prosecutors.” Id. Defendant similarly declares
that Mr. Bertoni recommended that Defendant reject the plea
offer. Def.'s Decl. ¶ 16. Defendant asserts that, if
he had understood more about the law of conspiracy and
sentencing, he would have accepted the Government's
Bertoni testified that he reviewed the plea offer with
Defendant. See also Bertoni Aff. ¶ 6, ECF 843.
Mr. Bertoni had been tracking the cases of Defendant's
co-defendants and charting their plea agreement letters. Mr.
Bertoni recalls Defendant questioning the Government's
ability to prove the quantity of drugs set out in the
agreement and bring witnesses to court to prove these
quantities. Id. Accordingly, they discussed the
quantities alleged in the agreement, where the government had
obtained that information, and how this impacted the
sentencing guidelines. Mr. Bertoni said that he never told
Defendant to reject the plea offer. Rather, his practice was
to keep an offer open as long as possible, evaluate the plea,
and determine whether there was any room for further
was moved to FCI Sheridan, and in February of 2012 he sent a
letter to Mr. Badamosi. Gov't Hr'g Ex. 1. The letter
states, in relevant part:
I been through enough shit to film a movie in the past year
but I'm goin to trial if not just for the fuck of it cuz
this whole shit threw me all the way off. I aint got shit but
still got the fam & shorty in MIA. So I'm still
straight. Just need to get the fuck outta here. Shinx got
another 18 months & Chris and Darnell signed for 10 a
piece (damn). These dudes offered me something stupid but I
told my lawyer I aint want to hear it. Prolly same as they
offered you. I don't know what got these people tryna put
me & you as “partners” but they got me fucked
up if they want me to sign anything sayin so. Shorty aight
too. She still workin in Vegas (barely hittin for anything)
but she got her head on straight. I was just up there with
Spark at Columbia County & he good too so I ain't
stressin, jus waitin for my day in court. Hopefully you'd
be able to testify on my behalf.
Id. Defendant testified that the purpose of this
letter was to let Mr. Badamosi know that he was not going to
testify against him and, for his own safety, dispel the rumor
that Defendant was a cooperating witness. He was also telling
Mr. Badamosi that their mutual friends were doing okay, not
that they were not going to testify against him. Defendant
contends that was referring to the September 2011 proffers
when he said that “these dudes offered [him] something
stupid.” But Agent McGeachy understood the letter as
indicating Defendant was rejecting the Government's plea
offer. He also understood Shorty as Ms. Nakachi. Based on his
training and experience, Agent McGeachy testified that
“got her head on straight” is a reference to Ms.
Nakachi not talking to the Government.
February 8, 2012 status conference, the Government informed
the Court that it had extended a plea offer to Defendant and
hoped to have the case resolved prior to Mr. Bertoni's
suspension. Status Conf. Tr. 2, ECF 678. But Mr. Bertoni told
the Court the case would not be settled before his
suspension. Id. at 3:3-6. Mr. Bertoni also informed
the Court of his plan to provide substitute counsel to
Defendant and to resume control of the case after his
suspension. Id. at 3:10-24. He indicated
that an attorney who “specialize[s] in federal court
matters” would discuss the case with Defendant, and Mr.
Bertoni would continue working on the case as a legal
assistant by conducting research, interviews, and
investigations. Id. Mr. Bertoni also stated that he
would be reinstated by August and would resume full
representation of Defendant in advance of his trial,
scheduled at that time for October of 2012. Id. at
3:25-4:5. Mr. Bertoni reassured Judge Haggerty that
“whoever takes over the case will be able to handle any
matters that [were] scheduled” during the suspension
period.” Id. at 4:13-18.
Court asked Defendant if he had any objections to Mr.
Bertoni's plan. Defendant responded that he had
“none at all.” Id. at 4:10. Defendant
testified that he was shocked when he first found out about
the suspension but was okay once Mr. Bertoni explained it.
However, he would have taken the opportunity to talk to an
independent lawyer if the option had been presented to him
and if Mr. Bertoni had not been in the courtroom.
March 28, 2012, the Court granted Mr. Bertoni's motion to
withdraw and substitute Ronnee Kliewer as counsel. Order, ECF
261. Ms. Kliewer stepped in as substitute counsel in a
majority of his cases. Def.'s Ex. 136 (“Kliewer
Decl.”) ¶ 2, ECF 943-35. Ms. Kliewer had not
represented clients in federal court before substituting for
Mr. Bertoni's cases. Id. at ¶ 1. Although
Ms. Kliewer was hesitant to accept federal cases, Mr. Bertoni
assured her that these cases were “static” and
that there were no pending issues to address. Id. at
¶ 2. Mr. Bertoni testified that he had discussed his
suspension with Mr. Barrow, the prosecutor on this case, and
did not anticipate any plea offers or motions during this
Kliewer declares that Defendant was not “fully advised
of the circumstances of Mr. Bertoni's suspension”
and “was surprised by the substitution of
counsel.” Id. at ¶ 5. Less than a month
into Mr. Bertoni's suspension, on April 12, 2012,
Defendant and Dr. Osemwengie expressed concern over the new
arrangement. Def.'s Ex. 148, ECF 943-47. Dr. Osemwengie
emailed Mr. Bertoni because Defendant had been unable to
contact anyone about his case. Id. Mr. Bertoni
assured Dr. Osemwengie that Ms. Kliewer would act as counsel,
that he had been in contact with Defendant, and that they
were attempting to set up a meeting with Ms. Kliewer and
Defendant at FCI Sheridan. Id.
testified that he began questioning Mr. Bertoni after he got
in contact with Ms. Kliewer. They discussed the case, and she
told Defendant that she had not received the case file yet,
did not have the time or specialization to handle his case,
and he should find a new attorney. She did not, however, tell
him that he could get a court-appointed attorney. On May 2,
2012, Dr. Osemwengie emailed Mr. Bertoni, voicing concern
over Ms. Kliewer's competency. Def.'s Ex. 153, ECF
943-51. Defendant had told Dr. Osemwengie that Ms. Kliewer
said that she did not know details about the case, she lacked
experience in federal court, and that she did not have all of
his files. Id. Four days later, Dr. Osemwengie
contacted Mr. Bertoni again because of a looming motions
deadline. Def.'s Ex. 156, ECF 943-53. He indicated that
Defendant's concerns were not being addressed and that
Ms. Kliewer would not communicate with Defendant.
Id. Dr. Osemwengie claims that he tracked
Defendant's case on PACER due to lack of communication
from Mr. Bertoni. Dr. Osemwengie Decl. ¶ 15. Defendant
alleges that he requested a refund so that he could hire new
counsel, but Mr. Bertoni told him that the retainer was
non-refundable. Def.'s Decl. ¶ 22; Dr. Oswemwengie
Decl. ¶¶ 26, 28.
Kliewer also expressed concerns over her position as
substitute counsel in emails to Mr. Bertoni. Def.'s Ex.
150, at 3-4, ECF 943-7. She told him that she was frustrated
with the transfer process because she did not have all of the
case files from him. Id. at 4. Mr. Bertoni testified
that he provided Ms. Kliewer a summary of the case. But Ms.
Kliewer says that Mr. Bertoni refused to turn over a complete
copy of Defendant's file to her. Kliewer Decl. ¶ 7.
Without a complete copy of the file, Ms. Kliewer declares
that she could not effectively represent Defendant.
Id. at ¶ 7.
assist with the difficulties she had in communicating and
working with Mr. Bertoni, Ms. Kliewer retained counsel.
Id. at ¶ 10. On May 9, 2012, Ms. Kliewer's
lawyer requested the assistance of the OSB to facilitate the
transition of client files from Mr. Bertoni to Ms. Kliewer.
Id. at ¶ 15. Ms. Kliewer also offered to help
find Defendant a new attorney. Id. at ¶ 16.
After Mr. Bertoni failed to hand over the files within a
month of transferring his cases, Ms. Kliewer filed a
complaint with the OSB. Def.'s Ex. 176 at 2, ECF 943-73.
She alleged that Mr. Bertoni failed to provide files and
other necessary information for nine cases that Mr. Bertoni
transferred to her for the period of his suspension.
Id. She named Defendant's case in the
complaint-alleging that Mr. Bertoni withheld files and failed
to respond to Defendant's request for a record of
previous payments. Id.
this time, Mr. Bertoni continued to have contact with
Defendant and made arrangements to transfer the case to a new
attorney, Robin Runstein. Kliewer Decl. at ¶
16. On May 23, 2012, Ms. Runstein replaced Ms. Kliewer as
substitute counsel for Defendant, though Defendant testified
that he never agreed to hire her. Notice of Att'y Sub.,
ECF 313. Mr. Bertoni asked Ms. Runstein to
“babysit” Defendant's case during his OSB
suspension. Def.'s Ex. 186 (“Runstein Decl.”)
¶ 2, ECF 943-83. Robin Runstein had little experience in
federal court. Id. at ¶ 1 ...