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United States v. Durand

United States District Court, D. Minnesota

July 12, 2017

United States of America, Plaintiff/Respondent,
v.
Gerald Joseph Durand, Defendant/Petitioner.

          Tracy L. Perzel, Assistant United States Attorney, Counsel for Respondent.

          Petitioner, pro se.

          MEMORANDUM OPINION AND ORDER

          Michael J. Davis Judge

         This matter is before the Court upon the petition of Gerald Durand to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.

         I. Introduction

         Following an eight week trial, Petitioner was found guilty of multiple counts of aiding and abetting wire fraud, mail fraud and money laundering, conspiracy to commit wire and mail fraud, concealing material facts from the United States and filing false tax returns. These convictions arose from a Ponzi scheme that operated between July 2006 and July 2009, in which Petitioner and others received over $193 million from hundreds of investors.

         The evidence presented at trial demonstrated that Petitioner participated in a scheme to defraud victims by convincing them to invest their money in a sham currency program. For his part, Petitioner was involved in the marketing of the sham currency program through radio broadcasts, in presentations at the Van Dusen mansion and in personal contacts with victim investors. The evidence at trial also demonstrated that Petitioner attended many meetings with co- conspirators and that he knew co-defendant Beckman and Trevor Cook were dishonest. The evidence at trial also demonstrated that the Petitioner knew that Crown Forex S.A. was illiquid in May 2007 and that he took steps to prevent creditors from publicly exposing its illiquidity while continuing to invest victim funds into Crown Forex, S.A.

         II. Procedural History

         Prior to his sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”) advising that the total offense level for the crimes of conviction was 43 and that his criminal history category was III. At sentencing, the Court granted Petitioner's motion for a downward departure as to criminal history, finding that a category I more appropriately represented the seriousness of the Petitioner's criminal history and the likelihood he would commit other crimes. The Court then calculated the applicable guideline range based on the statutory maximum for each count of conviction as follows: Counts 1 to 13 - 20 years; Counts 18 and 19 - 10 years; Counts 24 and 25 - 5 years; and Counts 26, 28 and 30 - 3 years. But for the statutory maximum sentences for the crimes of conviction, the advisory guideline range would have been life in prison.

         On January 3, 2013, the Petitioner was sentenced to a term of imprisonment of 240 months as follows: 240 months on Counts 1 through 13, 120 months on Counts 18 and 19, 60 months on Counts 24 and 25 and 36 months on Counts 26, 28 and 30, all terms to be served concurrently.

         On appeal, the Eighth Circuit affirmed Petitioner's conviction and sentence. United States v. Beckman et al., 787 F.3d 466, 488 (8th Cir. 2015) reh'g denied (Jun. 17, 2015) and reh'g and reh'g en banc denied (Jun. 17, 2015).

         On August 26, 2016, Petitioner filed the instant habeas petition in which he asserts he was denied effective assistance of counsel. He then filed a motion to amend his petition in June 2017 asserting new bases for his ineffective assistance of counsel claims. Petitioner claims that defense counsel: failed to zealously represent him; failed to inform Petitioner of a plea offer from the government in January 2012; failed to secure Petitioner's knowing and voluntary waiver of his right to testify at trial; and failed to maintain attorney/client privilege while representing Petitioner.

         III. Standard of Review

         Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence . . .claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. SunBear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). It is not intended to be a ...


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