United States v. Richard Tucker , 434 F. App'x 355 ( 2011 )


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  •      Case: 09-41206     Document: 00511550218         Page: 1     Date Filed: 07/25/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 25, 2011
    No. 09-41206                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee
    v.
    RICHARD JAMES TUCKER,
    Defendant – Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:05-CV-17
    Before JONES, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.
    PER CURIAM:*
    In 2002, Richard James Tucker was convicted, following a jury trial, of one
    count of securities fraud, 15 U.S.C. §§ 77q(a), 77x, and one count of mail fraud,
    
    18 U.S.C. § 1341
    . The district court judge sentenced Tucker to a total of 120
    months of imprisonment, three years of supervised release, and $15,219,965.37
    in restitution. On direct appeal, Tucker claimed that the district court erred by
    failing to provide a specific unanimity-of-theory instruction to the jury. United
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 09-41206    Document: 00511550218      Page: 2   Date Filed: 07/25/2011
    No. 09-41206
    States v. Tucker, 
    345 F.3d 320
    , 324 (5th Cir. 2003). This court, however,
    affirmed Tucker’s conviction and sentence. 
    Id. at 338
    .
    Subsequently, Tucker sought relief under 
    28 U.S.C. § 2255
    . Without
    holding an evidentiary hearing, the magistrate judge recommended that
    Tucker’s motion for relief be denied. The district court adopted the magistrate
    judge’s recommendation and denied Tucker’s motion for habeas relief and
    request for a certificate of appealability (“COA”). This court vacated the district
    court’s decision and directed it to conduct an evidentiary hearing regarding
    Tucker’s claims of ineffective assistance of trial and appellate counsel. Following
    the evidentiary hearing, the district court reached the same conclusion. Tucker
    now appeals the district court’s decision. Because we find that Tucker’s trial and
    appellate counsel were not ineffective, we affirm the district court’s judgment.
    FACTS AND PROCEEDINGS
    First Fidelity Acceptance Corporation (“FFAC”), a Nevada Corporation,
    headquartered in Plano, Texas, was founded in 1991 for the purpose of
    purchasing and selling automobile loans in the form of installment sales
    contracts. After purchasing the loans, FFAC would “package” the loans and sell
    them to financial institutions and large investors.
    In April 1992, Tucker joined FFAC as a consultant to assist FFAC in its
    first private placement of asset-backed securities. Shortly thereafter, the FFAC
    Board of Directors named Tucker Chief Executive Officer and Chairman of the
    Board.    According to Tucker, from 1992-1996, FFAC’s assets totaled
    $11,672,000.00.     The Government, however, contends that FFAC was
    experiencing a financial crisis during this time.
    In 1996, FFAC created Automobile Receivables Corporation (“FFAC-ARC”)
    for the purpose of establishing three investment trusts. FFAC-ARC established
    these trusts with the goal of raising money for FFAC to borrow to make
    investments in automobile loans. To generate capital, the trusts facilitated the
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    offer and sale of certificates, with a minimum investment of $25,000.00. In order
    to entice potential investors to purchase the trust certificates, Tucker drafted a
    Private Placement Memorandum (“PPM”) for each trust which included a
    description of the investment, the trust, and the trust’s relationship to FFAC.
    The PPM also contained information regarding how FFAC would handle and use
    the money invested in the trusts.
    In April 1998, FFAC’s Chief Financial Officer reported to FFAC’s Board
    of Directors that the corporation was insolvent. Thereafter, the Board forced
    Tucker to resign and brought in a team to review the corporation’s financial
    records. After a review of FFAC’s records, it was determined that FFAC was
    bankrupt. This team also examined the financial records of the three trusts. It
    was determined that the three trusts held very few assets of value.
    On November 14, 2001, Tucker was indicted on two counts, charging him
    with one count of securities fraud, 15 U.S.C. §§ 77q(a) and 77x, and one count of
    mail fraud, 
    18 U.S.C. §1341
    . Count one alleged that from January 1996 through
    March 1998, in the Eastern District of Texas and elsewhere, Tucker offered and
    sold “securities by use of means or instruments or transportation or
    communication in interstate commerce or by use of the mails” and
    (a) employed a device, scheme and artifice to defraud;
    (b) obtained money by means of untrue statements of a material fact
    and omitted statements of a material fact necessary in order to
    make the statements made not misleading, in the light of the
    circumstances under which the statements were made; and,
    (c) engaged in a transaction, practice, and course of business that
    operated as a fraud and deceit upon the purchasers.
    The Government alleged that Tucker’s “scheme and artifice to defraud”
    was evinced by the various statements contained in the three PPMs.
    Specifically, count one of the indictment averred that Tucker failed to disclose
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    to investors that (1) their investments would be deposited directly into FFAC’s
    operating accounts, rather than the trusts as promised in the PPMs; (2) the
    proceeds would be used to pay FFAC’s operating costs; (3) previously invested
    funds were not used as promised; and (4) the interest paid to some investors
    came out of the proceeds from the sale of certificates of another trust. The
    Government also stated that Tucker used the United States mail, interstate
    telephone services, and commercial interstate couriers to deliver the fraudulent
    PPMs. In addition, the Government listed thirteen individuals that allegedly
    had been duped by Tucker, along with the dates and amounts of their
    investments.
    Count two of the indictment charged Tucker with mail fraud under 
    18 U.S.C. §1341
    . Specifically, count two reiterated the allegations of count one, but
    added that Tucker “knowingly and willfully” caused the investors “to place into
    the United States mails, envelopes addressed to FFAC in Plano, Texas, such
    envelopes containing checks and money orders as directed by TUCKER . . . , for
    delivery . . . to FFAC’s headquarters in Plano, Texas . . . .” Count two also listed
    the same thirteen investors that were listed in count one.
    Following a jury trial, Tucker was convicted on both counts. On July 19,
    2002, the district court sentenced Tucker to a total of 120 months
    imprisonment,1 three years of supervised release and ordered Tucker to pay
    $15,219,965.37 in restitution.
    On appeal, Tucker argued, inter alia, that the district court failed to
    include a specific unanimity-of-theory instruction in the jury instructions. We
    found that Tucker could not demonstrate, under plain error review, that the
    district court’s failure to instruct the jury on a specific unanimity-of-theory
    amounted to clear error. Tucker, 
    345 F.3d at 338
    . Therefore, we affirmed. 
    Id.
    1
    The district court sentenced Tucker to 60 months on each count and ordered the
    sentences to run consecutively.
    4
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    On January 14, 2005, Tucker sought relief under 
    28 U.S.C. § 2255
    ,
    presenting inter alia multiple claims of ineffective assistance of trial and
    appellate counsel. Without conducting an evidentiary hearing, the magistrate
    judge recommended that Tucker’s § 2255 motion be denied and that a COA be
    denied.2 Following a de novo review, the district court adopted the magistrate
    judge’s report, denied Tucker’s § 2255 motion, and denied a COA. Tucker
    appealed.
    On April 28, 2008, our court vacated the district court’s judgment, granted
    Tucker’s COA application in part and remanded to the district court for an
    evidentiary hearing to determine whether trial and appellate counsel rendered
    ineffective assistance of counsel. On remand, the magistrate judge conducted an
    evidentiary hearing and recommended that Tucker’s § 2255 motion be denied.
    After Tucker filed his objections to the report, the magistrate judge issued a
    supplemental report and recommendation, recommending that Tucker’s motion
    for summary judgment and claim of ineffective assistance of appellate counsel
    be denied. Tucker again filed objections to the magistrate judge’s report and
    recommendation. Following a de novo review, the district court overruled
    Tucker’s objections, adopted the magistrate judge’s report, denied Tucker habeas
    relief and denied a COA. Tucker timely appealed.
    This court granted Tucker a COA on only two issues. Specifically, this
    court granted a COA regarding Tucker’s claims that (1) his trial counsel was
    ineffective in failing to request a specific unanimity-of-theory jury instruction
    and (2) his appellate counsel was ineffective for failing to adequately brief the
    issue of whether the district court’s failure to instruct the jury on a specific
    unanimity-of-theory satisfied the requirements of plain error.
    2
    Pursuant to a Standing Order, certain civil suits are referred at the time of the filing
    equally among magistrate judges. See 
    28 U.S.C. §§ 626
    (b)(1) and (3).
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    STANDARD OF REVIEW
    On requests for § 2255 relief, we review the district court’s findings of fact
    for clear error and issues of law de novo. Woodfox v. Cain, 
    609 F.3d 774
    , 788-789
    (5th Cir. 2010). The clear error standard applies equally to findings by the
    district court as it does to proposed findings by a magistrate judge adopted by
    the district judge. United States v. Cates, 
    952 F. 2d 149
    , 153 (5th Cir. 1992). “‘An
    ineffective assistance of counsel claim presents a mixed question of law and
    fact.’” Richards v. Quarterman, 
    566 F.3d 553
    , 561 (5th Cir. 2009) (quoting Ward
    v. Dretke, 
    420 F.3d 479
    , 486 (5th Cir. 2005)). “When examining mixed questions
    of law and fact, [we] employ[] ‘a de novo standard by independently applying the
    law to the facts found by the district court, as long as the district court’s factual
    determinations are not clearly erroneous.’” Richards, 
    566 F.3d at 561
     (quoting
    Ramirez v. Dretke, 
    396 F.3d 646
    , 649 (5th Cir. 2005)). “A finding is clearly
    erroneous only if it is implausible in the light of the record considered as a
    whole.” Rivera v. Quarterman, 
    505 F.3d 349
    , 361 (5th Cir. 2007) (citation and
    internal quotation marks omitted).
    DISCUSSION
    Tucker challenges the district court’s determination that his trial counsel
    was not ineffective when he failed to specifically request a unanimity-of-theory
    jury instruction. Tucker further challenges the district court’s determination
    that his appellate counsel was not ineffective for failing to adequately brief the
    issue of whether the district court’s failure to charge the jury with a specific
    unanimity-of-theory instruction satisfied the requirements of plain error.
    I. Ineffective Assistance of Trial Counsel
    The Sixth Amendment to the United States Constitution guarantees a
    defendant in a criminal prosecution the right to effective assistance of counsel.
    U.S. Const. amend. VI. In order to make a showing that the defendant was
    denied effective assistance of counsel, the defendant must meet the two-prong
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    test set forth in Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). Under the
    Strickland test, the defendant must show that his counsel’s performance was
    deficient and that the deficient performance prejudiced his defense. 
    Id.
     In
    making its determination, a court must take steps to “eliminate the distorting
    effects of hindsight” and “evaluate the conduct from counsel’s perspective at the
    time.” 
    Id. at 689
    . Under Strickland, this court can look at either prong first; “if
    either one is found dispositive, it is not necessary to address the other.” United
    States v. Webster, 
    392 F.3d 787
    , 794 n.12 (5th Cir. 2004) (quoting Buxton v.
    Lynaugh, 
    879 F.2d 140
    , 142 (5th Cir. 1989)).
    The first prong of Strickland requires that counsel’s performance fall
    below an objective standard of reasonableness. Strickland, 
    466 U.S. at 688
    . For
    counsel’s performance to be objectively unreasonable, counsel’s errors must be
    so serious that he is not functioning as the “counsel” guaranteed by the Sixth
    Amendment. 
    Id. at 690
    . It is not the province of this court, however, to second
    guess an attorney’s strategic decisions; rather, we “must indulge a strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance . . . .” 
    Id. at 689
    . With regard to the prejudice prong, the
    court must determine whether the “errors were so serious as to deprive the
    defendant of a fair trial, a trial whose result is reliable.” 
    Id. at 687
    . Put simply,
    to establish the prejudice prong there must be a reasonable probability that, but
    for counsel’s errors, the jury would have reached a different conclusion. 
    Id. at 694
    .
    On direct appeal, Tucker argued for the first time that the district court
    erred by failing to include a specific unanimity-of-theory jury instruction.
    Tucker, 
    345 F.3d at 336
    . Tucker claimed that each count of the indictment listed
    thirty mailings, and that each listing could support a separate act of securities
    fraud or mail fraud. Thus, Tucker argued that his counsel’s failure to request
    a specific unanimity-of-theory instruction was objectively unreasonable, and that
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    the jury’s guilty verdict might not have been unanimous as to which mailing
    Tucker caused – i.e., prejudicially ineffective. 
    Id.
     Because Tucker raised this
    issue for the first time on appeal, our court reviewed for plain error. 
    Id. at 333
    ;
    see also Fed. R. Crim. P. 52(b). Based on Fifth Circuit precedent this court
    concluded that the district court did not commit plain error by omitting a
    unanimity-of-theory instruction. 
    Id. at 336-37
    .
    This court’s precedent supporting its decision on direct appeal is relevant
    to Tucker’s present § 2255 appeal. This court primarily relied upon United
    States v. Gipson, 
    553 F.2d 453
     (5th Cir. 1977) and United States v. Holley, 
    942 F.2d 916
     (5th Cir. 1991). While Gipson established that a defendant not only
    has a right to a unanimous verdict, but also has the right to unanimity in the
    theory of which actions constituted the crime charged, Tucker’s reliance on
    Gipson is misplaced. Gipson, 
    553 F.2d at 457
    . Gipson differed from the present
    case because the trial judge improperly instructed the jurors that they could
    convict Gipson as long as each of them found that Gipson had committed one of
    the six enumerated actions prohibited by the statute. 
    Id. at 458
    . Furthermore,
    Gipson explained that in cases where the trial judge does not misinstruct the
    jury, “absent competent evidence to the contrary, a court has no reason to
    assume that an inconsistent or compromise verdict is not unanimous, and
    therefore has no justification for inquiring into the logic behind the jury’s
    verdict.” 
    Id. at 457
     (internal citation omitted). This presumption was repeated
    in Holley.
    Like Gipson, Holley found that “a general unanimity instruction will
    ensure that the jury is unanimous on the factual basis for a conviction, even
    where the indictment alleges numerous factual bases for criminal liability.”
    Holley, 
    942 F.2d at 925-26
     (citation and internal quotation marks omitted). This
    rule fails only where “there exists a genuine risk that the jury is confused or that
    a conviction may occur as the result of different jurors concluding that a
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    defendant committed different acts.” 
    Id. at 926
     (citation and internal quotation
    marks omitted). In Holley, before the instructions were submitted to the jury,
    Holley objected to the instructions because they did not require all of the jurors
    to agree “in the knowing falsity of at least one particular statement.” 
    Id. at 929
    .
    The Holley court agreed finding the indictment to be duplicitous, and concluded
    that there was a “reasonable possibility that the jury was not unanimous with
    respect to at least one statement in each count.” 
    Id.
     Therefore, this court
    ordered a new trial. 
    Id.
    Both Gipson and Holley provide an outline for a defendant’s right to a
    unanimous verdict, and indicate that a unanimity-of-theory instruction is a
    constitutional right only when “evidence to the contrary” undermines the
    expectation that a general unanimity instruction suffices. This is true “even
    where an indictment alleges numerous factual bases for criminal liability.” A
    habeas petitioner claiming ineffective assistance of counsel, therefore, must
    allege more than a duplicitous indictment.                 He must identify facts and
    circumstances that raise “a genuine risk” of juror confusion.                           These
    circumstances exist, according to Holley, where one count of the indictment
    includes offenses that would require the government to prove dissimilar facts.
    Tucker, 
    345 F.3d at 336-37
    .
    Other than his “bare assertion that the error ‘was plain and substantially
    prejudicial to him,’” Tucker has failed to identify facts and circumstances that
    juror confusion was likely.3 This court has previously stated as much in ruling
    on Tucker’s direct appeal: “Tucker does not corroborate his claim of prejudicial
    error with a modicum of evidence tending to show that the jury was confused or
    possessed any difficulty reaching a unanimous verdict.” Id.; see also Gipson, 553
    3
    The jury heard both a general unanimity instruction – “[t]o reach a verdict, all of you
    must agree. Your verdict must be unanimous” – and an instruction that, to convict, it needed
    to find Tucker guilty of each element of the offenses beyond a reasonable doubt.
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    F.2d at 457 (no error where appellant does not corroborate claim of prejudicial
    error with evidence that the jury was confused in reaching unanimous verdict).
    Because Tucker has failed to make the requisite showing, we find that the
    district court’s finding that counsel’s performance was not ineffective despite his
    decision not to request a unanimity-of-theory instruction was not clearly
    erroneous.
    Tucker further contends that the magistrate judge’s proposed findings
    were clearly erroneous. The magistrate judge’s proposed finding was that the
    “[m]ovant has shown that there could have been a remote possibility that jurors
    could not have been unanimous in their decision concerning both mailing and
    materiality, he has wholly failed to show any evidence that they were, in fact,
    confused, in disagreement, or not unanimous in their decision.” Tucker argues
    that people other than the investors themselves might have placed the
    documents in the mail, and therefore no juror could have convicted him for one
    of the thirty offenses listed in the indictment. This argument fails as a matter
    of law. “The test to determine whether the defendant caused the mails to be
    used is whether the use was reasonably foreseeable.” United States v. Massey,
    
    827 F.2d 995
    , 1002 (5th Cir. 1987) (citation and internal quotation marks
    omitted). It is of no consequence that a secretary or broker who was not named
    in the indictment actually placed the documents or payments in the mail on the
    investor’s behalf. Criminal liability attaches when a person “knowingly or
    willfully” causes another to use the United States mail and commercial
    interstate carriers to deliver checks and negotiable instruments in furtherance
    of a scheme or artifice to defraud. See 
    18 U.S.C. § 1341
    . Under Massey, an
    interpretation that Tucker could foresee his investors using the mails, but not
    their staff doing so would undoubtedly be unreasonable. Therefore, despite
    Tucker’s argument for juror confusion, the magistrate judge’s proposed finding
    that no confusion existed was not clearly erroneous.
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    Similarly, Tucker’s investor-by-investor argument is also inappropriate
    to a claim based on the lack of a unanimity-of-theory instruction. In Holley, a
    unanimity-of-theory instruction was necessary because the Government’s case
    required proving “dissimilar facts” for each of the offenses contained in a single
    count of the indictment. 
    942 F.2d at 928
    . Without a doubt, Holley’s duplicitous
    indictment casts doubt on the jury’s ability to reach a unanimous verdict. Here,
    however, the Government’s case requires proving similar facts for each of the
    offenses identified in each count of the indictment.       To no avail, Tucker
    attempts to cast doubt on the jury’s verdict by highlighting small differences
    between the investors (e.g., Mr. Kiyomura relied on his broker to mail his check,
    while Mr. Eichinger might have relied on his secretary). Contrary to Tucker’s
    assertion, a jury could reach a unanimous verdict that Tucker “set forces in
    motion that foreseeably resulted in such use [of the mails].”
    “[A]bsent competent evidence to the contrary,” courts should not doubt
    that jurors understood the general unanimity instruction. Gipson, 
    553 F.2d at 457
    . Thus, even where an indictment includes multiple offenses within a given
    count, a unanimity-of-theory instruction is not constitutionally necessary.
    Holley, 
    942 F.2d at 925-26
    . Tucker’s trial attorney, therefore, did not engage
    in unreasonable performance by failing to seek an instruction on the unanimity
    of the jury’s theory. Trial counsel does not fall below an objective standard of
    reasonableness by failing to request a jury instruction to which the defendant
    is not entitled.
    When presented with an ineffective assistance of counsel claim, this court
    need not address both stages of the Strickland inquiry if an insufficient showing
    is made as to one. Scheanette v. Quarterman, 
    482 F.3d 815
    , 815-20 (5th Cir.
    2007).   As discussed supra, Tucker has failed to establish that counsel’s
    performance was deficient. Therefore, because Tucker’s trial counsel did not
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    fall below an objective standard of reasonableness by failing to seek an
    instruction on the unanimity of the jury’s theory and, thus, was not ineffective,
    we need not address the prejudice prong under Strickland.
    II. Ineffective Assistance of Appellate Counsel
    Tucker also contends that his appellate counsel (on direct appeal) was
    ineffective for failing to persuade this court that the omission of a unanimity-of-
    theory instruction was plain error. This argument rests on Tucker’s assumption
    that “[c]learly, the District Court’s unanimity instruction and mailing
    instruction were erroneous . . . .” Tucker argues that this court’s refusal to find
    plain error must have resulted from appellate counsel’s sub-par performance.
    See Tucker, 
    345 F.3d at 336-37
    . As explained above and in this court’s earlier
    decision, Tucker was not entitled to a unanimity-of-theory instruction. His
    appellate counsel, therefore, did not engage in unreasonable performance by
    failing to brief the issue of whether the omission of the instruction was plain
    error. Even assuming that a unanimity-of-theory instruction would have been
    appropriate, appellate counsel did not render constitutionally infirm
    representation by foregoing the instruction. The Supreme Court has recognized
    “the importance of having the appellate advocate examine the record with a
    view to selecting the most promising issues for review.” Jones v. Barnes, 
    463 U.S. 745
    , 752 (1983). In the present case, Tucker’s appellate counsel presented
    the unanimity argument, and this court rejected it. In this court’s opinion,
    nothing suggests that appellate counsel’s performance was to blame.
    CONCLUSION
    For the foregoing reasons, Tucker’s trial counsel was not ineffective
    despite the decision not to request a specific unanimity-of-theory jury
    instruction. Likewise, Tucker’s appellate counsel was not ineffective for failing
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    to persuade this court that the jury instructions were incorrect. Therefore, the
    judgment of the district court is AFFIRMED.
    13