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Brass v. United States

United States District Court, D. Connecticut

September 29, 2017

UNITED STATES, Respondent.


          Robert N. Chatigny United States District Judge

         Petitioner Robin Bruhjell Brass, a federal inmate, brings this action under 28 U.S.C. § 2255 seeking to vacate her conviction and sentence. She claims that she has been deprived of her rights to due process, effective assistance of counsel and freedom from cruel and unusual punishment under the Fifth, Sixth and Eighth Amendments. The Government contends that the claims should be dismissed without a hearing because they are without merit, were rejected on appeal, or have been waived. I agree and therefore deny the petition.

         I. Background

         In 2012, petitioner pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341. See United States v. Brass, No. 3:11-cr-224(RNC). She admitted to taking money from victims, promising to invest it, and instead using it to pay her personal expenses and make “lulling payments” to other victims. The Government's case against her included evidence that she induced vulnerable victims to entrust her with their savings by befriending them and convincing them she had a record of producing better results than other investment firms. She claimed to use sophisticated, proprietary strategies and employ traders around the world. She told her victims her investment fund was insured against loss. None of this was true. To keep the scheme going, she provided victims with fabricated account statements showing their investments had grown. When state regulators began an investigation, she tried to stop victims from complaining by threatening to declare bankruptcy if anyone spoke up. After she was indicted, her appointed counsel negotiated a plea agreement with the Government. The agreement stipulated to a loss amount of more than $1 million and stated that petitioner understood the Government intended to seek enhancements at sentencing.

         Prior to and during the sentencing hearing, petitioner maintained that she did not intend to operate a Ponzi scheme. She claimed that she had simply made bad personnel decisions; at one point she even suggested that her victims would be wise to invest with her again in the future. Several victims testified to the devastating impact of petitioner's fraudulent conduct: she took one couple's entire life savings and an elderly parent's trust account, and she left another couple in a dire financial position after taking the entirety of an insurance settlement they needed to pay medical bills. After enhancements for abuse of trust, vulnerable victims and obstruction, and a reduction for acceptance of responsibility, the advisory guideline range suggested a sentence of imprisonment of 63 to 78 months. Assessing the factors relevant to a sentencing determination under 18 U.S.C. § 3553(a), I thought a sentence within that range would be insufficient to reflect the aggravated nature of petitioner's criminal conduct, the nature and extent of the clearly foreseeable harm she had caused the numerous victims, or the need to protect the public against the risk she would commit similar financial crimes in the future. Ultimately, I sentenced her to 96 months' imprisonment.

         On appeal, petitioner argued that her sentence was procedurally defective because she did not receive advance notice that an upward departure was contemplated. She also argued that the sentence was unreasonable because it punished her twice for the same conduct. The Court of Appeals rejected these arguments and affirmed the sentence. See United States v. Brass, 527 Fed.Appx. 70, 71-73 (2d Cir. 2013).

         II. Legal Standard

         To obtain relief under § 2255, a petitioner must show that her “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. A claim is cognizable under § 2255 if it involves a “fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. Hill, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         A hearing is not required when allegations are “insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous.” United States v. Seiser, 112 F.3d 507 (2d Cir. 1996) (citing United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970)). To avoid summary dismissal, a motion under § 2255 “must contain assertions of fact that a petitioner is in a position to establish by competent evidence.” United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987).

         III. Discussion

         A. Ineffective Assistance of Counsel

         As her principal ground for relief, petitioner claims that, for various reasons, she received ineffective assistance of counsel in violation of the Sixth Amendment.

         To obtain relief on an ineffective assistance of counsel claim, petitioner must demonstrate that (1) her counsel's performance fell below an objective standard of reasonableness and (2) she suffered prejudice as a result of her counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 694 (1984). To show prejudice, she “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id.

         Petitioner first claims that her counsel failed to properly investigate and introduce evidence of her legitimate trading activity. Had evidence of this type been provided, she argues, the Court would not have formed the impression that she was a predator who stole money from people close to her. Instead, the Court would have seen her as a legitimate investor who made a series of mistakes under unfortunate circumstances. This claim is unavailing. Even assuming petitioner's counsel was constitutionally ineffective because he did not investigate or ...

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