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United States v. Osemwengie

United States District Court, D. Oregon

April 22, 2019


          Billy 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 for Defendant

          OPINION & ORDER


         On 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.

         This is 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.


         I. Investigation and Indictment

         In 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.

         II. Retention of Mr. Bertoni as Counsel and Initial Discovery

         Defendant's 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.

         Before 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.

         On 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.[1] 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.

         Mr. 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.

         On May 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.

         Defendant 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.

         On 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.

         Defendant 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.”

         Though 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 activities.

         Defendant 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 indictment.” Id.

         By 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.

         On 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.

         Dr. 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 offer. Id.

         Mr. 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 negotiation.

         Defendant 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.

         At the 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.

         The 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.

         III. Substitute Counsel

         On 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 period.

         Ms. 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.

         Defendant 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.

         Ms. 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.

         To 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.

         During 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 ΒΆ 1 ...

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