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United States v. Butler

United States District Court, D. Alaska

April 10, 2018




         Before the Court is Defendant Michael Butler's Motion to Vacate, Set Aside or Correct Convictions and Sentence Pursuant to 28 U.S.C. § 2255, filed on April 13, 2017 at Docket 683. The Government responded at Docket 708.


         On November 4, 2014, a jury found Mr. Butler guilty of ten counts of mail fraud in violation of 18 U.S.C. § 1341, one count of money laundering conspiracy in violation of 18 U.S.C. § 1956, and one count of conspiracy to make false statements regarding the distribution of cigarettes in violation of 18 U.S.C. § 2342(b), and 2344(b).[1] The jury found Mr. Butler's codefendant, Insook Baik, not guilty on all counts.[2] On March 13, 2015, this Court entered a final judgment of conviction, after sentencing Mr. Butler to 36 months' imprisonment, concurrent on all counts, followed by 36 months of supervised release.[3]

         Mr. Butler appealed to the Ninth Circuit. He argued that the district court erred in refusing to compel the testimony of another codefendant, Kimberly Sims-Crandell, at trial.[4] Mr. Butler also asserted that there was insufficient evidence to satisfy the mailing requirement for the mail fraud convictions. The Ninth Circuit rejected these arguments and affirmed Mr. Butler's convictions in August 2016.[5] The mandate was issued on September 1, 2016.

         Mr. Butler was self-represented when he initially filed this petition in April 2017. On May 16, 2017, Mr. Butler filed a Motion to Appoint Counsel.[6] On May 26, 2017, the Court granted the motion and appointed an attorney to represent Mr. Butler.[7] On September 14, 2017, the attorney filed a Notice of No. Amendment to 28 U.S.C. § 2255 Petition.[8] On January 30, 2018, the Court granted the attorney's motion to withdraw; Mr. Butler is currently self-represented.[9]


         Mr. Butler asserts that his trial counsel was ineffective in three respects: (1) during jury selection, a juror admitted to having a personal relationship with one of the ATF agents involved in the investigation and Mr. Butler's trial counsel failed to disqualify the juror; (2) a different juror whose husband had a physical altercation with a member of the Hells Angels Motorcycle Club was biased due to a photo of Mr. Butler shown at trial wearing a Hells Angels patch and counsel failed to object; and (3) a second defendant was found not guilty at trial and Mr. Butler's trial counsel did not follow up regarding the inconsistency of verdicts. Mr. Butler also asserts that he was unable to question codefendant Ms. Sims-Crandell, whom he describes as critical to Mr. Butler's defense.[10]

         1. Ineffective Assistance Claims

         Mr. Butler's first ineffective assistance claim asserts the following:

One of the jurors had a personal relationship to one of the ATF agents who was involved in the investigation. That agent presented evidence during the trial. The relationship was discovered during the jury selection process. That juror should have been disqualified, but was allowed to remain.[11]

         The Government responds that Mr. Butler has failed to establish that his attorney's performance was deficient and that he suffered any prejudice.[12]

         To prevail on an ineffective assistance claim, a petitioner must satisfy the two-prong Strickland test, which requires a showing of both deficient performance and resultant prejudice.[13] Deficient performance requires a showing that trial counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms.[14] There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”[15] To establish prejudice, a petitioner must show a reasonable probability that “but for counsel's unprofessional errors, the result of the proceeding would have been different.”[16] Failure to meet either prong is fatal to a petitioner's claim.[17]

         At voir dire, the following discussion with the juror took place:

The Court: There was a list that Mr. Collins read, there was a list that Mr. Cavanaugh read about expected witnesses, and does anyone know or have any relationship with any of those witnesses?
Prospective Juror 12: Hi. Number 12. I know ATF agent Sarah Foreman. Her older sister was my best childhood friend, and currently, her parents live across the street from my parents. So our two families have known each other since I was three.
The Court: Anything about that that would make it difficult for you to hear this case fairly?
Prospective Juror 12: I don't think so.
The Court: Thank you.[18]

         No other discussion of Juror 12 was made during jury selection. Neither counsel for Mr. Butler nor counsel for Ms. Baik moved to strike the juror; nor did counsel for either defendant use a peremptory challenge to excuse her. Each lawyer was given an opportunity for follow up questions. Mr. Butler has not demonstrated that his lawyer's failure to object to the juror was constitutionally deficient performance.[19] Moreover, Mr. Butler has not provided any facts or evidence that the juror was in fact biased against him. Therefore, Mr. Butler has also not established that he was prejudiced by the juror's alleged bias and his counsel's failure to excuse her.[20] Accordingly, his claim for ineffective assistance of counsel on this ground is unavailing.

         Mr. Butler also asserts that he was denied effective assistance of counsel based on the potential bias of a different juror. He asserts as follows:

The court allowed the disclosure that I am a member of the Hells Angels Motorcycle Club. This disclosure came in the form of photographs of me wearing my [Hells Angels] patch and insignia that were shown to the jury at the start of trial. My involvement with the Club was not relevant to the investigation or the case. After this disclosure, a second juror failed to notify the court that her husband had been in a physical altercation with a member of the Club previously. It is unreasonable to think the husband did not discuss this with his wife. It is unreasonable to believe she could be an unbiased or impartial juror after discovering that I am a Hells Angel. Allowing the photos of me was unnecessary to the trial. I did not have a fair and impartial jury.[21]

         The Government responds that “[o]n its face, the ineffective assistance of counsel claim fails because [trial counsel's] performance cannot be deficient if he was not ever ...

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