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Barton v. United States

United States District Court, Fifth Circuit

January 10, 2014



SAM SPARKS, District Judge.

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Movant Kurt Barton's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [#117], Barton's Motion for Discovery [#118], the Government's Response [#122], and Barton's Reply [#123]; and Barton's Motion to Add Attachment [#124].[1] Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.


On February 15, 2011, Barton was indicted and charged with thirty-nine separate counts, including securities fraud, wire fraud, false statements related to a loan, money laundering, and conspiracy to commit the same offenses. Barton used his company, Triton Financial, and related entities to run a Ponzi-like scheme and defraud investors out of more than sixty million dollars. Barton's investors were primarily members of his church, retired individuals (or those nearing retirement), professional athletes, and Barton's family members and friends.

On February 25, 2011, this Court appointed attorney Rip Collins to represent Barton, and set a trial date of April 25, 2011.[2] Barton moved for a continuance on April 1, 2011, based on Collins's trial schedule and the complexity of this case. This Court granted the motion and reset the trial date for August 8, 2011. On July 8, 2011, Barton again moved for a continuance, and moved for the appointment of a financial expert and additional counsel.[3] This Court granted the motion to appoint additional counsel, and appointed attorney David Gonzalez to represent Barton. The motion requesting a financial expert was denied without prejudice to refiling, based on the lack of specificity as to the need, purpose, and identity of the requested expert.[4] The motion to continue was denied, based on the considerable amount of time Barton and his counsel had been given to prepare for trial, especially considering the Government's open-file discovery policy.

Barton proceeded to trial on August 8, 2011. On August 17, 2011, the jury returned a verdict and found Barton guilty on all counts. Barton subsequently moved for a new trial, alleging the Court improperly denied his second motion to continue the trial date and arguing trial counsel provided ineffective assistance because they lacked sufficient time to prepare a defense. This Court denied the motion, finding Barton's allegations to be incredible in light of the time and resources given to Barton's defense team and the overwhelming evidence of Barton's guilt presented at trial. See Order of Sept. 7, 2011 [#70].

Barton was sentenced on November 4, 2011. This Court sentenced Barton to various terms of imprisonment across the thirty-nine counts, but all were ordered to run concurrently for a total sentence of 204 months, followed by a five-year term of supervised release. This sentence was a downward variance from Barton's guideline range of life in prison. Barton was also ordered to pay restitution to his victims in the amount of $63, 707, 496.00.

Barton appealed, raising four issues for review: (1) this Court erred by denying Barton's second motion to continue; (2) Barton was entirely denied his Sixth Amendment right to counsel, because counsel failed to provide any meaningful representation under United States v. Cronic, 466 U.S. 648 (1984); (3) there was insufficient evidence to sustain Barton's convictions on various wire fraud and money laundering counts; and (4) there was insufficient evidence of five additional money laundering counts based on the "merger problem" discussed in United States v. Santos, 553 U.S. 507 (2008). The Fifth Circuit affirmed this Court's judgment "in all respects." United States v. Barton, 526 F.Appx. 360, 364 (5th Cir. 2013) (unpublished).

Barton filed his § 2255 motion on October 16, 2013. In the motion, Barton raises two general grounds for relief: (1) Barton received ineffective assistance of counsel, because trial counsel (a) failed to adequately test the Government's case; (b) failed to conduct an adequate pretrial investigation; (c) failed to identify a defense; (d) failed to call certain defense witnesses; (e) deprived Barton of effective counsel based on cumulative errors; and (f) deprived Barton of effective counsel based on a conflict of interest between Rip Collins and his partner, Roy Minton; and (2) the Government committed a Brady violation by failing to timely provide Barton's appointed forensic accountant with complete accounting data.


I. Section 2255-Legal Standard

Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255: (1) the imposition of a sentence in violation of the constitution or the laws of the United States; (2) a lack of jurisdiction of the District Court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th cir. 1996). Section 2255 is an extraordinary measure; it cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, "result in a complete miscarriage of justice." United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). In addition, a defendant who raises a constitutional or jurisdictional issue for the first time on collateral review must show both "cause" for his procedural default, and "actual prejudice" resulting from the error. Placente, 81 F.3d at 558.

II. Barton's Claims

Barton raises two general grounds for relief, which the Court addresses in turn.

A. Ineffective Assistance of Counsel Claims

The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

In evaluating counsel's performance, care must be taken to "eliminate the distorting effects of hindsight." Id. at 690. Accordingly, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. If counsel's performance is found to be deficient, it must also have prejudiced the result to afford any relief to the defendant. Id. at 691. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

1. Lack of Meaningful Adversarial Testing

Barton contends counsel failed to meaningfully test the Government's case. The precise scope of this argument, based on Barton's ninety-five page memorandum in support of his motion, is unclear. At first glance, it appears to be merely prefatory. See Def.'s Mot. [#117-1]J, Ex. A (Def.'s Mem.), at 12 (referencing "the following specific examples" recounted in other portions of the memorandum). To the extent Barton is raising the same Cronic issue he raised on direct appeal, the Fifth Circuit has already determined Barton received meaningful representation. Barton, 526 F.Appx. at 362 ("Here, counsel represented Barton throughout the proceedings below. Barton's first-appointed attorney successfully moved for the appointment of a second attorney who in turn assisted with the final month of preparation and advocated on Barton's behalf during and after trial. During trial, counsel lodged objections, examined witnesses, and argued the case to the jury."). The Fifth Circuit thus held "[a]ny deficiency in the quality of this representation plainly sounds under Strickland and rather than Cronic. " Id. To the extent Barton's argument is based on the various alleged errors committed by his trial counsel, those are discussed below.

Barton's motion is DENIED on this ground.

2. Failure to Conduct an Adequate Pretrial Investigation

Barton faults his counsel for failing to adequately investigate his case. Barton notes his case was complex, and claims counsel admitted "they had no real strategy" and "called no defense witnesses, did not use the accounting, and did not know enough about the case to effective[ly] submit documents or cross-examine witnesses." Def.'s Memo. [#117-1], at 14. Barton does not particularly identify any aspects of counsel's investigation which were deficient, but instead refers generally to later portions of his ninety-five page memorandum as proof he was prejudiced. See id. ("The bulk of the showing in this petition proves that because counsel did not investigate the case, they were at a substantial disadvantage' during trial, and this created prejudice.")

Barton's counsel had a duty to conduct a reasonable investigation in light of the evidence and their professional experience and judgment. See Strickland, 466 U.S. at 691. "A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." United States v. Green, 882 F.2d 999, 1003 (5th Cir. ...

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