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United States v. Gardner

United States District Court, D. Minnesota

April 3, 2018


          Robert M. Lewis and Kimberly A. Svendsen, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Jeffrey Allen Gardner, pro se.


          Patrick J. Schiltz United States District Judge

         Defendant Jeffrey Gardner owned Hennessey Financial, LLC (“Hennessey”), a financing company that made loans to land-development companies (most of which were also owned by Gardner). Gardner solicited individuals to invest in Hennessey; many of those individuals were unsophisticated and had limited assets. In 2006, Gardner's land-development companies started to fail, and Hennessey began to suffer as those land-development companies defaulted on their loans. Gardner nonetheless continued to raise money from investors, without informing them of Hennessey's precarious condition. In 2008, Hennessey collapsed, causing its investors to suffer millions of dollars in losses. Some lost their life savings.

         Gardner and a codefendant, Stuart Voigt, were indicted on fraud and other charges. A jury found Gardner guilty of four counts of mail fraud (Counts 1-4), one count of conspiracy to commit mail fraud (Count 5), four counts of bank fraud (Counts 6-9), and two counts of making a false statement in a loan application (Counts 10 and 12). ECF No. 174. The jury acquitted Gardner of a third count of making a false statement in a loan application (Count 11). Id. The Court later granted Gardner's motion for acquittal as to two of his bank-fraud convictions (Counts 8 and 9). ECF No. 227. The Court then sentenced Gardner to a total of 90 months in prison and two years of supervised release. ECF No. 298. The United States Court of Appeals for the Eighth Circuit affirmed Gardner's convictions and sentence on direct appeal. ECF Nos. 299, 300.

         This matter is before the Court on Gardner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.[1] Gardner's motion lists five numbered claims and his memorandum appears to raise several more. With respect to most of Gardner's claims, the record conclusively demonstrates that Gardner is not entitled to relief and thus no response or other proceedings are necessary.[2] See Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts; 28 U.S.C. § 2255(b); Noe v. United States, 601 F.3d 784, 792 (8th Cir. 2010). With respect to two of Gardner's claims, however-specifically, his claims of ineffective assistance for failing to present an advice-of-counsel defense and ineffective assistance for advising him not to testify-the Court will order Gardner's trial counsel to file an affidavit and the government to respond to Gardner's claims.

         A. Jury Competence (Grounds One and Two)

         Gardner claims that the jury was so confused by the evidence at trial that he was denied a mentally competent tribunal. He further claims that his appellate counsel was ineffective for failing to raise this issue on appeal. To support these claims, he points to (1) comments that the Court made during the trial concerning the complexity of the case and (2) the jurors' questions during deliberations. None of this evidence shows that the jury was mentally incompetent.[3]

         The comments to which Gardner points were made during an argument over an evidentiary issue at the end of the fourth day of trial. ECF No. 204 at 883-91. In the course of the discussion, the Court expressed its opinion that the jury was struggling to follow the case because the evidence was complex. Importantly, however, the Court made these comments while discussing whether to exclude certain evidence under Fed.R.Evid. 403. Rule 403 requires courts to weigh the relevance of evidence against the risk of confusing or misleading the jury. The Court's comments must be understood in that context. The Court was expressing its frustration that the parties were seeking to introduce particularly complex and time-consuming evidence that would have little probative value and that would further complicate an already complicated trial. During long and exhausting trials, judges sometimes use strong language (including hyperbole) to encourage counsel to be more efficient and more cognizant of the demands that they are placing on the jurors. The Court watched the jury carefully during the trial, and the Court never saw evidence that any juror lacked the mental capacity to understand the case. The Court's comments were not intended to imply otherwise.

         Gardner also points to the jury's questions during their deliberations as well as their statement that they were “getting nowhere” with respect to some of the charges. ECF No. 186. These things are not evidence of incompetence. To the contrary, they are evidence that the jury was doing exactly what it was supposed to do-grappling with the evidence and debating with each other. The jurors' care and attention to the case is also reflected in the fact that they acquitted Gardner of one of the three counts of making a false statement in a loan application, a decision that appears to reflect close attention to the evidence and the precise wording of the jury instructions.

         The jurors were chosen after a thorough voir dire in which the parties were permitted to participate. No juror or courtroom observer reported any misconduct or other circumstances that would cast doubt on the competence of any juror. The Supreme Court has recognized that these procedures are significant safeguards that protect the defendant's right to an “impartial and competent” jury. Peña-Rodriguez, 137 S.Ct. at 866. Under the circumstances, Gardner's evidence that the jury lacked the mental competence to adjudicate his case is insufficient to warrant relief. See Gander v. FMC Corp., 892 F.2d 1373, 1379 (8th Cir. 1990) (mere speculation that the jury's verdict may have been based on a misunderstanding of the law or the evidence is not enough to set aside the verdict); cf. United States v. Schoppert, 362 F.3d 451, 459 (8th Cir. 2004) (“A defendant must . . . make some effort to support an allegation of jury taint before an evidentiary hearing or declaration of a mistrial will be appropriate. A bald assertion of taint will not suffice . . . .”).

         Finally, because Gardner cannot show that the jury was incompetent, he likewise cannot show that his appellate counsel was ineffective for failing to raise this issue. See Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013) (to establish ineffective assistance of appellate counsel, defendant must show that his appellate counsel's performance was constitutionally deficient and that he was prejudiced by the deficiency).

         B. Grand-Jury Proceedings (Ground Three)

         Gardner next claims that his Fifth Amendment rights were violated in one of the following ways: (1) he was never indicted at all, as evidenced by the lack of signatures on the amended second superseding indictment; or, ...

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