United States District Court, D. Minnesota
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
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.
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.
matter is before the Court on Gardner's motion to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255. 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. 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.
Jury Competence (Grounds One and Two)
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.
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.
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.
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 . . .
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).
Grand-Jury Proceedings (Ground Three)
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, ...