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United states v. Cooper

United States District Court, Tenth Circuit

July 29, 2013

MICHAEL C. COOPER, Defendant. Criminal No. 04-20105-01-CM


CARLOS MURGUIA, United States District Judge

Defendant moves the court to vacate or amend his sentence under 28 U.S.C. § 2255, arguing that his counsel was constitutionally ineffective for various reasons (Doc. 398). Defendant also requests an evidentiary hearing. For the following reasons, the court takes defendant’s argument regarding counsel’s failure to inform him of plea offers under advisement pending an evidentiary hearing and denies the rest of defendant’s motion.


On August 13, 2004, the grand jury returned a 148-count indictment charging defendant with the following offenses: conspiracy to defraud (count 1), assisting in the preparation of false tax returns (counts 2-57), mail fraud (counts 58-93), wire fraud (counts 94-104), money laundering conspiracy (count 105), monetary transactions involving property derived from unlawful activity (counts 106-146), and money laundering (147-148).

On December 7, 2006, the grand jury returned a superseding indictment that removed various sentencing enhancements and included some technical changes but did not alter any of the charges. This court began defendant’s jury trial in January 2008, and the jury returned a mixed verdict in February 2008. This court sentenced defendant on April 20, 2010, to 240 months’ imprisonment.

Defendant appealed several issues. On August 15, 2011, the Tenth Circuit issued a published 48-page opinion affirming this court. Defendant did not file a petition for writ of certiorari to the Supreme Court. Defendant timely filed the instant motion on November 5, 2011, arguing that his trial counsel was constitutionally ineffective. Defendant presents several briefs and sworn declarations supporting these arguments.[1] The government opposes the motion and submits the sworn declaration of defendant’s counsel, John Jenab.


A. Ineffective Assistance of Counsel

Defendant argues that his counsel was constitutionally ineffective for eight reasons. To succeed on any of these claims, defendant must demonstrate that (1) defense counsel’s performance fell below an objective standard of reasonableness, and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, defendant must show that counsel’s performance was neither reasonable under prevailing professional norms nor sound trial strategy. Id. at 688–89. Under the second prong, defendant must show a reasonable probability that, but for counsel’s deficient performance, the result of the case would have been different. Id. at 694.

1. Speedy Trial Act

Defendant contends that counsel rendered ineffective assistance by failing to move to dismiss the indictment based on a Speedy Trial Act (“STA”) violation. The court disagrees. The STA generally requires that a federal criminal trial begin within seventy days from the date the defendant is charged or makes an initial appearance. 18 U.S.C. § 3161(c)(1). But there are periods of delay that are excluded from the calculation of the seventy-day time limit. Id. at § 3161(h).

Defendant has not shown that seventy nonexcludable days elapsed between his initial appearance and the start of his criminal trial. He does not provide any detailed analysis under 18 U.S.C. § 3161. And he fails to explain how specific complex case designations and other excludable time findings by this court were insufficient. Because defendant has not demonstrated that the STA was violated, he has not shown that counsel’s performance was deficient for not filing a motion to dismiss.

Even assuming that the STA was violated and that counsel’s performance was deficient, defendant has not shown that he was prejudiced. The district court is required to dismiss a case when the STA is violated. 18 U.S.C. § 3161(a). But the court retains discretion to determine whether the indictment is dismissed with or without prejudice. See United States v. Rushin, 642 F.3d 1299, 1309– 10 (10th Cir. 2011) (concluding that defendant was not prejudiced by counsel’s failure to move to dismiss the indictment under the STA).

Defendant has not argued that the district court would have dismissed his case with prejudice. Fraud charges are generally treated as serious offenses, and defendant has not presented any evidence that the government acted in bad faith or exhibited a pattern of neglectful or dilatory behavior in prosecuting him. See 18 U.S.C. § 3161(a) (outlining factors for the court to consider in determining whether to dismiss with prejudice). These factors indicate that the indictment would have been dismissed without prejudice. And defendant does not provide any evidence suggesting that the government would have been precluded from refiling the charges. See 18 U.S.C. ยง 3288 (providing that a new indictment may be returned within six calendar months of the date of ...

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