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United States v. Mowen

United States District Court, D. Utah

March 30, 2018



          Dee Benson, District Judge

         Before the Court is Petitioner Jeffrey Lane Mowen's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Having considered the motion and pleadings, having reviewed the file, and being otherwise fully informed, the court enters the following Memorandum Decision and Order.


         On February 19, 2009, a federal grand jury returned an indictment against Petitioner alleging three counts of Wire Fraud, pursuant to 18 U.S.C. § 1343, arising out of a Ponzi scheme related to a real estate leveraging and foreign currency trading program. (Case No. 2:09-cr-98, Dkt. No. 1.) Defendant made his initial appearance on May 22, 2009, before Magistrate Judge Warner. (2:09-cr-98, Dkt. No. 12.) Judge Warner appointed Jamie Zenger from the Utah Federal Defender's Office to represent Petitioner. (Id.) On September 30, 2009, Ms. Zenger filed a motion to withdraw from representing Petitioner, due to a conflict of interest within the Federal Defender's Office. (2:09-cr-98, Dkt. No. 29.) Judge Warner held a hearing on the motion on October 7, 2009, and granted Ms. Zenger's request to withdraw. (2:09-cr-98, Dkt. No. 32.) The court then appointed Stephen R. McCaughey, CJA counsel, to represent Petitioner. (Id.) Because of the volume of discovery and complexity of Petitioner's case, the court also appointed a second attorney to assist Mr. McCaughey in his representation of Petitioner. (2:09-cr-98, Dkt. No. 36.)

         While Petitioner awaited trial in federal custody at the Davis County Jail, Petitioner allegedly attempted to hire a hit man to murder four material witnesses, with the intent of preventing their attendance and testimony at his trial. (2:09-cr-98, Dkt. No. 52.) Based on this alleged conduct, on November 18, 2009, a federal grand jury returned a superseding indictment against Petitioner, adding one count each of Solicitation to Commit a Crime of Violence (18 U.S.C. § 373(a)), Tampering with a Witness (18 U.S.C. § 1512(a)(1)(A)), and Retaliating Against a Witness (18 U.S.C. § 1513(a)(1)(B)). (Id.) Petitioner was arraigned on December 14, 2009, and ordered to remain in federal custody. (2:09-cr-98, Dkt. No. 63.)

         On March 17, 2011, Petitioner pleaded guilty to one count of Wire Fraud. (2:09-cr-98, Dkt. Nos. 141, 142.) As part of the plea agreement, the United States agreed to dismiss the remaining counts at sentencing. (Id.) On April 28, 2011, petitioner was sentenced to 120 months imprisonment, followed by 60 months of supervised release. At the sentencing hearing, the government moved to dismiss the remaining counts. (Id.) The court held the issue of restitution open and requested additional briefing from the parties. (2:09-cr-98, Dkt. Nos. 147, 148.)

         On September 28, 2011, the United States filed its memorandum regarding restitution. (2:09-cr-98, Dkt. No. 175.) On September 29, 2011, at Petitioner's request, the court appointed new counsel for Petitioner, Jared G. Parkinson, and set a briefing schedule regarding restitution. (2:09-cr-98, Dkt. No. 177.) On October 7, 2011, Petitioner moved the court for additional time to file a response to the government's memorandum regarding restitution. (2:09-cr-98, Dkt. No. 180.) On October 11, 2011, Petitioner filed his sentencing memorandum concerning restitution, noting that the court had not yet ruled on his request for an extension of time. (2:09-cr-98, Dkt. No. 182.) On October 11, 2011, the court entered an order allowing petitioner an extension of time to November 10, 2011, “only for the purpose of filing a response to the United States' Sentencing Memorandum Concerning Restitution.” (2:09-cr-98, Dkt. No. 184.) On October 21, 2011, the United States filed a response to Petitioner's memorandum regarding restitution. (2:09-cr-98, Dkt. No. 187.)

         On November 9, 2011, Petitioner's counsel, Mr. Parkinson, filed a motion seeking to withdraw as counsel, noting difficulties communicating with Petitioner, Petitioner's desire to proceed pro se, and Petitioner's directive to Mr. Parkinson to withdraw as counsel. (2:09-cr-98, Dkt. No. 189.) On February 3, 2012, the court held a hearing on the Motion to Withdraw, and a motion by Petitioner for leave to appear pro se. (2:09-cr-98, Dkt. No. 208.) At that hearing, the court granted both motions, and Petitioner made a formal waiver of counsel on the record. (Id.)

         On February 25, 2014, following extensive filings related to the assets at issue and third party claimants, the court issued an Order, setting the restitution amount at $9, 799, 790, and adopting the government's breakdown of restitution among the victims as reflected in the Final Victim Restitution List submitted by the United States. (2:09-cr-98, Dkt. No. 304.) On February 28, 2014, the court entered an Amended Judgment, consistent with that Order. (2:09-cr-98, Dkt. No. 305.)

         On September 2, 2014, Petitioner filed a “Notice of Motion; to Vacate - Aberrant Sentencing & Resulting Abeyant Judgment.” (2:09-cr-98, Dkt. No. 316.) On September 15, 2015, the court issued an order denying Petitioner's motion, reasoning:

To the extent the motion is seeking the withdrawal of defendant's guilty plea, it is denied because defendant has already been sentenced and therefore may not withdraw his plea. Defendant's plea may be set aside only on direct appeal or collateral attack.
Defendant has several options regarding a possible § 2255 motion. He may (1) file a letter or pleading indicating that the court may characterize his request as a § 2255 motion, (2) supplement his request, or (3) withdraw his request. The Court will not consider Defendant's possible § 2255 request unless and until the court receives permission from Defendant.

(2:09-cr-98, Dkt. No. 317.) The court also provided Petitioner with a copy of United States v. Kelly, 235 F.3d 1238 (10th Cir. 2000) and a Form 2255 Petition. Petitioner did not file anything with the court in response to its September 16 Order.

         On March 11, 2016, Petitioner filed a “Motion to Be Construed Liberally as a Pro Se Defendant.” (2:09-cr-98, Dkt. No. 316.) The court denied the motion, ...

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