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United States v. Whitlow

United States District Court, D. Nebraska

October 18, 2016



          John M. Gerrard United States District Judge.

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 334) filed by the defendant, Thomas Whitlow. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.


         The defendant and four alleged co-conspirators were indicted in 2014 on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and eleven separate counts of wire fraud in violation of 18 U.S.C. § 1343. Filing 51. After a jury trial, the defendant was convicted of conspiracy and four counts of wire fraud. Filing 237. The defendant was sentenced on each count to 108 months' imprisonment, sentences to be served concurrently. Filing 301. The defendant appealed to the U.S. Court of Appeals for the Eighth Circuit, which affirmed the defendant's convictions and sentences. United States v. Whitlow, 815 F.3d 430 (8th Cir. 2016). The defendant moves to vacate his convictions pursuant to § 2255. Filing 334.


         The defendant's § 2255 motion raises five issues: three claims for ineffective assistance of counsel, and two underlying jurisdictional claims. For reasons that will become apparent, it will be easier to dispose of the underlying jurisdictional claims before addressing the ineffective assistance of counsel claims.

         Federal Court Jurisdiction over Offense

         The defendant's first jurisdictional argument is that the Court lacked jurisdiction over this prosecution because, among other things, the United States had not accepted territorial jurisdiction over the lands where the alleged offense took place. Filing 334 at 17-18. Thus, according to the defendant, the government "failed to establish and prove any federal criminal jurisdiction over the locus in quo." Filing 334 at 18.

         But the source of legislative authority for the wire fraud statute is the Commerce Clause. United States v. Louper-Morris, 672 F.3d 539, 563 (8th Cir. 2012); see, United States v. Jinian, 725 F.3d 954, 967-68 (9th Cir. 2013); United States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999); United States v. Brumley, 116 F.3d 728, 730 (5th Cir. 1997). All that is required for federal jurisdictional purposes is an allegation that the falsehoods composing the fraud were "transmitted by means of wire, radio, or television communication in interstate or foreign commerce . . . ." § 1343.

         For that reason, the defendant's reliance on Adams v. United States, 319 U.S. 312 (1943), and United States v. Prentiss, 206 F.3d 960 (10th Cir. 2000), is misplaced. In Adams, the defendants were convicted of sexual assault on a military base, and it was found that the federal court lacked jurisdiction because the federal government had not, at the time, completed the process of accepting jurisdiction over the property. Adams, 319 U.S. at 315. But this case does not deal with property over which the government was required to formally accept jurisdiction, and the Court has original jurisdiction of all violations of federal law. United States v. Watson, 1 F.3d 733, 734 (8th Cir. 1993); see United States v. Deering, 179 F.3d 592, 597 (8th Cir. 1999). Adams is not applicable here.[1]

         Similarly, the issue in Prentiss was whether it was necessary, for a crime prosecuted under the Indian Country Crimes Act, 18 U.S.C. § 1152, to allege that the crime occurred between an Indian and a non-Indian. 206 F.3d at 966. The Tenth Circuit held that it was. See Id. at 974; see also United States v. Graham, 572 F.3d 954, 956 (8th Cir. 2009). But obviously, this case was not prosecuted under the Indian Country Crimes Act. Instead, wire fraud-and conspiracy to commit wire fraud-are "within the extensive reach of the Commerce Clause[, ]" Louper-Morris, 672 F.3d at 563, and the federal courts have original jurisdiction over the offense, see Watson, 1 F.3d at 734.

         The defendant also suggests that the indictment was defective for failing to allege a material element of the offense. Filing 334 at 18, 20-21. But the sufficiency of the indictment was challenged on direct appeal; the Eighth Circuit's "review of the indictment shows it includes all the elements of the crimes charged." Whitlow, 815 F.3d at 433. And claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to § ...

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