United States District Court, D. Minnesota
A. Magnuson United States District Court Judge
matter is before the Court on Defendant's Motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 (Docket
No. 103), based on alleged ineffective assistance of counsel.
For the following reasons, the Motion is denied.
Indictment charged Defendant with robbing the Virginia
Cooperative Credit Union in Virginia, Minnesota, on August
13, 2013. Defendant entered a plea of not guilty and
proceeded to a jury trial in the spring of 2014. At that
trial, in order to establish a federal nexus, the Government
offered testimony from the Credit Union's president that
it was federally chartered and its deposits were insured by
the National Credit Union Administration
(“NCUA”). (See Docket No. 104-1.) The
Government also offered as an exhibit a March 10, 2014
written certification from the NCUA, which specified that the
Credit Union was chartered on June 15, 1977, and that its
deposits “have remained federally insured since that
date.” (Id.) Defendant's counsel did not
object to either the testimony or the exhibit's
April 8, 2014, the jury found Defendant guilty, and the Court
later sentenced him to 240 months' imprisonment.
Defendant appealed, raising a suppression issue, but the
Eighth Circuit affirmed his conviction on April 11, 2016.
(See Docket No. 99.)
filed the instant Motion on June 23, 2017. He argues that his
trial counsel was ineffective for “fail[ing] to object
at a piv[o]tal phase when the [G]overnment failed to
establish the [federally] insured status” of the Credit
Union, “which is a[n] essential element of the crime
beyond a reasonable doubt.” (Docket No. 104 at
He also argues that his counsel was ineffective by failing to
object when the Government offered the NCUA certification.
(Id. at 4-5.) Lastly, although not mentioned in his
Memorandum, Defendant contends his appellate counsel was
ineffective for failing to raise these issues on appeal.
(See Docket No. 103 at 4.) None of Defendant's
contentions has merit.
order to be entitled to relief based on ineffective
assistance, Defendant must show, among other things, that his
counsel's performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S.
668, 688 (1984). Defendant cannot do so here, because his
counsel did not err in failing to object to either the
testimony regarding the Credit Union's insured status or
to the introduction of the NCUA certification. Though not
entirely clear, it appears that Defendant's contention is
that the president's testimony established only that the
Credit Union was insured on the date the president testified,
not on the date of the robbery. (Docket No. 104 at 5.) But
the Credit Union's president testified that the Credit
Union was chartered in 1977 and that “we are insured up
to 250, 000 [dollars] and backed by the full faith and credit
of the United States Government.” (Trial Tr. at 31-32.)
This was sufficient to permit the jury to infer the Credit
Union was federally insured on the date of the robbery.
See, e.g., United States v. Hadamek, 28
F.3d 827, 827-28 (8th Cir. 1994) (“At trial, [the]
president of the bank at the time of the fraud testified
without contradiction that the bank's deposits
‘are' insured by the Federal Deposit Insurance
Corporation (FDIC) . . . . We conclude that this testimony
was sufficient to allow the jury to infer that the bank was
FDIC insured on the date of the fraud.”). Thus, counsel
was not ineffective for failing to raise an objection. And
because this testimony alone was sufficient to sustain the
Government's burden of proof, counsel cannot have been
ineffective for failing to object to the introduction of the
NCUA certification, or for failing to raise these issues on
appeal. Accordingly, Defendant is not entitled to relief.
the Court declines to issue a certificate of appealability. A
defendant who seeks review of an order denying a motion under
28 U.S.C. § 2255 must obtain such a certificate, which
will not be granted unless he “has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(1)(B), (c)(2); accord, e.g.,
Williams v. United States, 452 F.3d 1009, 1014 (8th
Cir. 2006). He must show the issues are “debatable
among reasonable jurists, ” that different courts
“could resolve the issues differently, ” or that
the issues otherwise “deserve further
proceedings.” Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997). For the reasons stated above, Defendant
cannot meet this exacting standard here.
IT IS ORDERED that Defendant's Motion
under 28 U.S.C. § 2255 (Docket No. 103) is
DENIED. The Court DECLINES
to issue a Certificate of Appealability.
JUDGMENT BE ENTERED ACCORDINGLY.
 This argument does not appear to be
one of ineffective assistance, but rather failure by the
Government to sustain its burden of proof. Defendant could
have-and should have -raised that argument on appeal, and the
failure to do so could be deemed to bar him from asserting it
now. But because Defendant also asserts ineffective