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United States v. Boedigheimer

United States District Court, D. Minnesota

March 7, 2018

United States of America, Plaintiff,
v.
Robert David Boedigheimer, Defendant.

          Julie E. Allyn, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Robert David Boedigheimer, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendant Robert David Boedigheimer's (“Boedigheimer”) Motion to Vacate under 28 U.S.C. § 2255 [Criminal Docket No. 130] (the “2255 Motion”).[1] Also before the Court is Boedigheimer's Motion to Amend the Motion to Vacate under 28 U.S.C. § 2255 [Docket No. 137]. For the reasons set forth below, Boedigheimer's motions are denied.

         II. BACKGROUND[2]

         On June 17, 2014, following an 11 day trial, a jury returned a verdict finding Boedigheimer guilty on two counts of money laundering and one count of making a false statement to an IRS agent. See Verdict [Docket No. 64]. On March 9, 2015, Boedigheimer was sentenced to a below guideline sentence of 60 months' imprisonment on the three counts. See Sentencing J. [Docket No. 92].

         Boedigheimer now brings this 2255 Motion and argues that he received constitutionally deficient representation by his trial and appellate attorneys.

         A. Boedigheimer's Financial Troubles

         Boedigheimer was a personal injury attorney who had owned his own law firm since 1995. Trial Tr. [Docket Nos. 109-122] 1471:20-25. In 2006, Boedigheimer's firm started experiencing financial difficulties. Id. 1484:2-6. The financial issues grew when Boedigheimer and his law partner, Sam McCloud (“McCloud”), ended their professional relationship, and Boedigheimer started a new firm. Id. 1472:23-25.

         While McCloud Boedigheimer were partners, McCloud brought between $60, 000 to $70, 000 a month to the firm. Id. 1474:9-15. This stream of income ended when McCloud departed. Id. 1474:1-8. The finances of Boedigheimer's practice also changed in 2006. Insurance companies were only offering $4, 000 to $7, 000 to settle cases that Boedigheimer used to be able to settle for $15, 000 to $18, 000. Id. 1490:20-24. Consequently, Boedigheimer was required to litigate more cases, which translated into out-of-pocket expenses that would not be recovered for a year or more. Id. 1491:6-17.

         Boedigheimer started falling behind on his bills, and he had trouble making payroll obligations for the employees of his firm. Id. 1485:14-19. Boedigheimer's mother was the law firm's office manager, and even she would occasionally not collect a paycheck due to the firm's financial difficulties. Id. 1648:4-5; 1649:4-19. One attorney at the firm accepted a reduction in pay, while another attorney elected to leave the firm. Id. 197:21-198:17; 259:22-260:15.

         To alleviate his financial obligations, Boedigheimer started borrowing money from his family and friends, including his brother-in-law, Brandon Lusk (“Lusk”). Id. 289:19-24; 308:2-5; 323:5-8; 877:16-22; 1649:15.

         1. Boedigheimer's Financial Transactions with Lusk

         In May 2009, Boedigheimer asked Lusk for $10, 000. Id. 877:16-20. Lusk agreed to loan Boedigheimer $10, 000 at 10% interest, and the two executed a promissory note to memorialize the loan. Id. 877:21-22; 880:7-881:7.

         On September 22, 2009, Boedigheimer and Lusk agreed to refinance the loan. Id. 888:17-24. Boedigheimer agreed to repay Lusk with a check for the $10, 000 principal as well as $83.33 in interest. Id. 893:15-894:2. Lusk then gave Boedigheimer another $10, 000 in cash, and the two executed another promissary note. Id. 891:24-892:19.

         On January 29, 2010, Boedigheimer and Lusk again agreed to refinance. Id. 899:7-10. Boedigheimer provided Lusk a check for the $10, 000 principal plus interest to satisfy the earlier loan, and Lusk gave Boedigheimer another $10, 000 in cash. Id. 899:18-901:11. This loan also came with 10% interest and was again memorialized with a promissory note. Id. 899:3-6.

         2. Boedigheimer employs Lusk

         In late 2009, Boedigheimer agreed to employ Lusk as a consultant to his law firm. Id. 904:1-5. Lusk's responsibilities included soliciting potential clients. Id. 916:23-917:6. As part of this arrangement, Lusk would give Boedigheimer $5, 000 a month in cash, and Boedigheimer's firm would issue Lusk a payroll check every month in return. Id. 904:3-13.

         Lusk signed an employment agreement that stated, “Lusk has . . . experience in networking, marketing and sales. Boedigheimer Law Firm, P.A. desires to hire [Lusk] to utilize his contacts and skills in marketing, networking and sales to locate, recruit, develop and maintain clients for the Boedigheimer Law Firm, P.A.” Id. 925:18-24. The contract additionally stated that Lusk would receive training and skills as a result of his employment. Id. 927:1-4. Lusk had no education or experience working as a marketer, he spent almost no time at the law firm, and he did not receive any training and skills from Boedigheimer or his law firm. Id. 926:5-23; 927:9-11; 930:7-14; 932:17-19. Although Boedigheimer and Lusk did discuss the possibility of Lusk speaking with chiropractors to attract potential clients to Boedigheimer's law firm, Lusk never did such a thing. Id. 916:18-917:18. Behind only Boedigheimer himself, Lusk was the second highest paid member of the firm. Id. 928:19-23.

         From March 26, 2010, to January 28, 2011, Lusk provided approximately $55, 000 in cash to Boedigheimer as part of this employment arrangement. Trial Exh. 269.

         B. The Richard Kay Investigation

         In June 2010, Minnesota Bureau of Criminal Apprehension Special Agent Thomas Oliveto and Internal Revenue Service Special Agent Lucinda Schad (“Agent Schad”) began investigating Richard Kay (“Kay”) based upon information that he was trafficking large quantities of marijuana in southeastern Minnesota. Id. 344:12-22. Two of Kay's mid-level distributors were Lusk and Jason Meek (“Meek”). Id. 356:17-22. In 2011, Meek was on track to make $600, 000 distributing marijuana for Kay, and Lusk was expecting to make slightly less. Id. 423:7-19.

         In addition to partnering in distributing marijuana, Lusk and Meek were equal partners in Rochester's Reliable Rentals, a home rehabilitation business. Id. 480:5-9. Lusk and Meek used the business to launder cash obtained through their marijuana distributing. Id. 479:14-482:23.

         Later in 2010, Kay discovered GPS tracking devices that law enforcement had placed on his vehicles. Id. 361:5-25. After Kay became aware that he was being monitored and their covert investigation was compromised, law enforcement approached individuals connected to Kay who were suspected of having knowledge of Kay's criminal activities. Id. 362:12-363:7. On March 29, 2011, officers contacted Meek, who afterward informed Lusk that he had been approached by law enforcement. Id. 365:15-23; 493:2-19. After speaking with Meek, Lusk contacted his attorney brother-in-law Boedigheimer. Id. 993:1-5.

         C. Lusk and Boedigheimer

         Boedigheimer referred Lusk to Mark Kelly (“Kelly”), an attorney who shared an office with Boedigheimer. Id. 993:15-20. Kelly in turn recommended an attorney with federal experience, Steve Grimshaw (“Grimshaw”). Id. 993:21-994:5. Boedigheimer, Lusk, Kelly, and Grimshaw met, and sometime thereafter Lusk signed a retainer agreement, which provided Boedigheimer a referral fee. Id. 1296:21-1297:22.

         Grimshaw contacted the United States Attorney's Office, who extended Lusk a “no charge deal” requiring Lusk to cooperate with law enforcement by testifying truthfully. Id. 1289:1-10. Grimshaw arranged for Lusk to attend a proffer meeting with the United States Attorney's Office and advised him to be completely forthcoming about his criminal activities. Id. 1291:4-12; 1294:4-1295:16.

         During the April 4, 2011 proffer meeting, which Boedigheimer requested he attend with Lusk, Lusk was asked about his employment and the disposition of his drug proceeds. Id. 376:2-4, 16-18; 1301:7-18; 1306:2-6. Lusk did not disclose his financial arrangement with Boedigheimer during the proffer meeting. Id. 376:7-15.

         During its proffer session with Meek, the United States Attorney's Office learned that Lusk was laundering money through Boedigheimer. Id. 379:3-20; 381:2-13. Investigators obtained checks that were coming from the Boedigheimer law firm to Lusk. Id. 381:4-5. Lusk was then invited to attend a second proffer meeting, this time without Boedigheimer's presence. Id. 381:17-382:1. During his second proffer meeting, Lusk told law enforcement about his agreement with Boedigheiemer to exchange cash for payroll checks to make his income appear legitimate. Id. 382:22-4.

         D. Boedigheimer is Charged

         On June 29, 2011, law enforcement conducted a search warrant at Boedigheimer's law firm. Id. 712:6-10. Before the search began, Agent Schad questioned Boedigheimer about the payroll checks his firm issued to Lusk. Id. 530:8-14; Trial Exh. 105. Boedigheimer told Agent Schad that Lusk was legitimately employed by his firm to do marketing. Trial Exh. 105; Jury Instrs. [Docket No. 62] at 33.

         After his law firm was searched, Boedigheimer retained counsel, who hired an investigator for assistance. Id. 437:10-22. Boedigheimer gave his cellular telephone to the investigator, who retrieved text messages between Boedigheimer and Lusk regarding their payroll arrangement. Id. These messages were ...


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