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United States v. Moser

United States District Court, Tenth Circuit

October 16, 2013

JAMES DEWEY MOSER, Defendant. Criminal No. 09-40086-CM



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. 131). Defendant also requests appointment of counsel (Doc. 133) and an evidentiary hearing (Doc. 136). For the following reasons, the court denies defendant’s motions.


On October 28, 2009, a grand jury returned an indictment charging defendant with multiple counts of bankruptcy fraud and one count of conspiracy to commit bankruptcy fraud. These charges were based on defendant’s conduct in two bankruptcy cases: a Chapter 7 proceeding filed on April 27, 2005, and a Chapter 13 proceeding filed on April 3, 2007. The indictment alleged that at the time of filing the Chapter 7 and Chapter 13 bankruptcy petitions, and throughout the bankruptcy proceedings, defendant intentionally concealed assets from the Chapter 7 and Chapter 13 trustees. The court appointed Michael Jackson to represent defendant.

This court presided over defendant’s jury trial. During trial, defendant argued—among other things—that the property he allegedly concealed (i.e., the property underlying the counts in the indictment) belonged to, or was a business asset of, Hallmark Arabian Farms LLC (“HAF”), not defendant. Based on this argument, defendant contended that because the property did not belong to defendant’s bankruptcy estate, he was not required to claim it on his bankruptcy schedules, and thus, he did not fraudulently conceal it from the trustees and could not have had the fraudulent intent to conceal it from the trustees. The jury rejected this argument and convicted defendant. This court sentenced defendant to 121 months’ imprisonment.

Defendant appealed several issues, and the Tenth Circuit affirmed this court on December 19, 2011. Defendant filed a petition for writ of certiorari to the Supreme Court, which was denied on May 21, 2012. Defendant timely filed the instant 28 U.S.C. § 2255 motion on May 24, 2013. The government opposes the motion.


A. Ineffective Assistance Of Counsel

Defendant argues his counsel was constitutionally ineffective. To succeed on this claim, defendant must demonstrate that (1) 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. Counsel Meaningfully Tested The Government’s Case

Defendant principally contends his counsel “entirely fail[ed] to subject the prosecutor’s case to meaningful adversarial testing.” (Doc. 131 at 14.) A review of the transcript refutes this argument.[1]Counsel thoroughly and vigorously cross-examined the government’s witnesses and, in the process, highlighted to the jury several instances where the evidence arguably indicated that defendant did not own the allegedly concealed property. (See, e.g., Doc. 117 at 110–11 (questioning Kristie Orme about the ownership of the 2003 option contract); id. at 134–35 (confirming with Ms. Orme that defendant was not a party to the 2005 lawsuit involving the 2003 option contract).) Counsel also presented several other arguments to undermine the government’s case and question witness credibility. (See, e.g., id. at 162–65 (suggesting through his questions that defendant complied with Chapter 7 forms in disclosing stamps and coins); id. at 172–73 (highlighting $27, 000 in trustee’s fees in Chapter 7 proceeding).)

The record and other evidence also rebut defendant’s position. Counsel filed several motions before, during, and after trial. His Criminal Justice Act (“CJA”) worksheet reveals that he personally reviewed thousands of pages of discovery, interviewed witnesses, hired an expert to educate him on the intricacies of bankruptcy law, researched the law, maintained regular communication with defendant, and prepared for trial. In total, counsel billed over 380 hours on this case.

Defendant’s complaint is also inconsistent with the court’s recollection of trial. Defense counsel made relevant and necessary objections, was organized each day, eloquently argued trial issues, and demonstrated a professional manner throughout the litigation. He cogently outlined the main points for the jury during opening and closing arguments. And he appeared genuinely interested and engaged in advocating defendant’s interests. ...

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