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Henricks v. United States

United States District Court, W.D. Wisconsin

February 7, 2018

JOHN E. HENRICKS, III Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB, DISTRICT JUDGE

         Petitioner John E. Henricks has moved for post conviction relief under 28 U.S.C. § 2255, contending that he was denied the effective assistance of counsel by each of the three lawyers who represented him after he was charged with mail fraud and aggravated identity theft. In addition, he contends that the government denied him due process and the Assistant United States Attorney who prosecuted him engaged in misconduct.

         A review of petitioner's filings reveals that he cannot prevail on any of these claims. Although he has a litany of accusations about his counsel and the faults of the government, he has not shown any failure or impropriety by any one of the three lawyers who represented him at various times during the prosecution of the case. Neither has he shown that the government denied him due process or that the Assistant United States Attorney prosecuting the case denied him due process or otherwise acted improperly. Accordingly, his motion for post conviction relief will be denied.

         BACKGROUND FACTS

         In summarizing the facts of the case, I have relied primarily on the facts set out by the government in dkt. #5. Although petitioner submitted two lengthy briefs, one in support of his motion and another in response to the government's opposition brief, he did not cite any evidence to support the assertions in the briefs. As a consequence, I cannot give weight to his allegations of error, omissions and bad faith on the part of his counsel, the government and the officials involved in the investigation of the case.

         A. Indictment

         Petitioner was charged in 2013 with three counts of mail fraud, in violation of 18 U.S.C. § 1341(a) and one count of aggravated identity fraud, in violation of 18 U.S.C. § 1028A, rising out of petitioner's scheme to defraud insurance companies and others by filing fraudulent claims for damaged vehicles. Each of the three fraud claims carried penalties of 20 years; the identity fraud claim carried a two-year penalty to run consecutively to any sentence imposed on the fraud claims. The charges grew out of a scheme by petitioner and others to use a body shop and other enterprises he owned in and around Rhinelander, Wisconsin, to defraud insurance companies and others. Petitioner utilized several schemes, including the filing of fictional claims for damage to cars or recreational vehicles and directing his employees to damage insured property and file fraudulent claims.

         A grand jury returned an indictment against petitioner in June 2013, charging him with three counts of mail fraud and one count of aggravated identity theft, but continued to investigate the case to consider, among other things, a possible charge of arson. Petitioner retained a lawyer, James Marcus and took Marcus's advice to enter a plea of guilty on one count of mail fraud (count 3 of the indictment). The entry of this plea had two significant advantages: it stopped further investigation into petitioner's activities, which could have revealed additional criminal acts, and it avoided an additional two-year penalty that could have been imposed on petitioner under § 1028A(a)(1).

         B. Plea Hearing

         At the September 14, 2013 plea hearing, petitioner told the court, under oath, that he and his counsel had had enough time to discuss his plea and that he understood the consequences of pleading guilty and the way in which the sentencing guidelines would apply to his case. He admitted he had filed a false claim and that he understood that this was the conduct for which he was being charged. He also agreed that he had carried out the acts supporting the government's charge: he had called AIG Insurance Company to make a false claim for insurance, telling the company that he had damaged a “junior dragster” (a scaled down version of a full size drag racing car) owned by a Thomas Lloyd, and he did not tell the company that the story was fictional.

         The government explained to petitioner that his efforts to make restitution and liquidate assets for this purpose would be a “significant factor” in determining whether he would be given credit toward his sentence for acceptance of responsibility. Dkt. #16, 13-cr-83, at 2. One of the conditions of obtaining this credit was to complete a detailed financial statement to be submitted to the United States Attorney during the week following entry of the plea. Id. Petitioner represented that he would submit such a statement. (In fact, he did not submit the statement until December 6, 2013 and the statement he did submit was incomplete and imprecise.) After the government had summarized the plea agreement, petitioner stated on the record that his understanding of the agreement was the same as the government's, that no one had told him he would get a particular sentence and that he had no reason to think he would.

         C. After-Discovered Facts

         In the course of conducting the presentence investigation, the United States Probation Officer assigned to petitioner's case learned that petitioner and his family were planning to move from Rhinelander to Amherst Junction, Wisconsin, and set up a new body shop, to be known as AJ's Auto Body. The officer learned that the family had secured a house in the Amherst Junction area, that petitioner's wife had taken out a loan for the new body shop, that petitioner had lied to the bank president in Amherst Junction about the provenance of the tools that would be available for the new shop and that the family was in the process of selling petitioner's old body shop in Rhinelander, as well as the family's former home there.

         The officer estimated that petitioner's fraud involved a $1.3 million intended loss, that petitioner had a positive net worth of $1, 200, 000 and that the recommended repayment was $1, 199, 145. In the presentence report, she wrote that petitioner had attempted to sell his home on the lake to his daughter for a price below the appraised value of the house and that petitioner had not disclosed assets he had listed in statements ...


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