United States District Court, D. Minnesota
E. Allyn, Assistant United States Attorney, United States
Attorney's Office, Minneapolis, MN, on behalf of
David Boedigheimer, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
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”). 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.
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].
now brings this 2255 Motion and argues that he received
constitutionally deficient representation by his trial and
Boedigheimer's Financial Troubles
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.
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.
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.
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.
Boedigheimer's Financial Transactions with Lusk
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.
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.
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.
Boedigheimer employs Lusk
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.
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.
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.
The Richard Kay Investigation
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.
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.
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.
Lusk and 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.
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.
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.
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.
Boedigheimer is Charged
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.
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 ...