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United States v. Bruce

United States District Court, S.D. Texas, Houston Division

May 8, 2018

UNITED STATES OF AMERICA
v.
KENNETH ROBERT BRUCE

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.

         This criminal prosecution is before the Court on Defendant Kenneth Robert Bruce's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Motion”) [Doc. # 187]. Bruce asserts that he received ineffective legal assistance during the pretrial stage, during trial, and at sentencing. The United States filed a Response and Motion for Judgment on the Record [Doc. # 196], and Bruce filed a Reply [Doc. # 201].

         The Court has carefully reviewed all pertinent matters in this criminal case. Additionally, the Court has a clear recollection of the criminal proceedings in this case. Based on its review of the record, its recollection of the case, and the application of governing legal authorities, the Court denies Bruce's § 2255 Motion, grants the Government's Motion for Judgment on the Record, and dismisses the corresponding civil action (No. H-17-3121) for reasons set forth below.

         I. BACKGROUND

         In June 2014, Bruce was charged by Indictment [Doc. # 1] with twenty-six counts under 18 U.S.C. § 287 of making a false claim to the United States Treasury, Internal Revenue Service (“IRS”), for income tax refunds on his own behalf and on behalf of others. A chart in the Indictment listed Counts 1-26 with each Count's corresponding false income tax return, the taxpayer's name, the date filed, and the amount of the false claim.

         Count Twenty-Seven charged Bruce with interference with the administration of IRS laws in violation of 26 U.S.C. § 7212(a). In Count Twenty-Seven, it was alleged, inter alia, that Bruce filed fraudulent IRS forms 1099-OID through his Filing Information Returns Electronically (“FIRE”) Account, many of which corresponded to the fraudulent IRS forms that were attached to the income tax returns described in Counts One through Twenty-Six. It was alleged that in many of the false information forms, Bruce reported income in the nature of an Original Issue Discount paid to taxpayers, and reported withholdings of some or all of the income. Additionally, it was alleged that Bruce falsely indicated that income tax returns he prepared for others, for which he charged a substantial fee, were “self-prepared.” It was further alleged that Bruce wrote in red ink “Hurricane Ike” on several returns (or on the envelope), even though the taxpayer in question had not been affected by Hurricane Ike. When the IRS civil collection officer attempted to recover a fraudulent refund issued to a taxpayer based on a tax return that Bruce prepared, the Indictment charged that Bruce caused that taxpayer to file a civil lawsuit against the IRS, the IRS civil collection officer, and the IRS Area Manager. The Indictment alleged further that Bruce caused a fraudulent 2009 United States Income Tax Return for Estates and Trusts to be filed for the taxpayer, naming the IRS civil collection officer as the fiduciary of the trust.

         Defendant entered a plea of not guilty to all counts in the Indictment. Jury selection was held on March 16, 2015. On March 19, 2015, the jury returned a verdict in which it found Bruce guilty of all twenty-seven counts. See Verdict of the Jury [Doc. # 78]. On June 22, 2016, the Court sentenced Bruce to an aggregate 180 months in the custody of the United States Bureau of Prisons, followed by a three-year term of supervised release. See Judgment in a Criminal Case [Doc. # 133], entered July 7, 2016. The Court also ordered restitution in the amount of $3, 342, 962.15. See id.

         Bruce filed a Notice of Appeal [Doc. # 138] on July 20, 2016. On August 1, 2016, Bruce filed a “Notice [attorneys discharged]” advising that he had discharged his defense attorneys. The Fifth Circuit dismissed the appeal on October 21, 2016.

         Bruce's § 2255 Motion was received by the Clerk's Office and docketed on October 16, 2017. It has been fully briefed and is now ripe for decision.

         II. STANDARD FOR § 2255 RELIEF

         Relief pursuant to § 2255 is available only if the movant's conviction or sentence “was imposed in violation of the Constitution or laws of the United States, or the court was without jurisdiction to impose such sentence, or the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” United States v. Scruggs, 1 F.3d 660');">691 F.3d 660, 666 (5th Cir. 2012) (citing 28 U.S.C. § 2255(a)). Relief under § 2255 is generally limited to questions of constitutional or jurisdictional magnitude. Id. A claim that the movant was denied constitutionally effective assistance of counsel may be asserted in a § 2255 motion, whether or not the movant could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Johnson, 124 Fed.Appx. 914');">124 Fed.Appx. 914, 915 (5th Cir. 2005).

         III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

         A. Applicable Legal Standard

         A successful claim of ineffective assistance of counsel requires a showing of: (1) deficient performance; and (2) prejudice. See Harrington v. Richter, 562 U.S. 86, 104 (2011); United ...


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