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United States v. Lamoureaux

United States District Court, W.D. Arkansas, Fort Smith Division

April 10, 2018




         The Court has received a report and recommendations (Doc. 72) from United States Magistrate Judge Mark E. Ford. Defendant Donald Wayne Lamoureaux has filed objections (Doc. 74). The Court is required to give de novo review only to those portions of a report and recommendations to which a party files objections. 28 U.S.C. § 636(b)(1). Because Defendant's objections appear to be missing pages 9 and 10, however, the Court has reviewed the entire report and recommendations de novo. In addition to the documents filed in this case, the Court has listened to the digital recording of the evidentiary hearing held before the magistrate judge on January 29, 2018, and reviewed the exhibits admitted at that hearing.

         On April 26, 2017, Defendant filed a motion to vacate his sentence (Doc. 59) under 28 U.S.C. § 2255. Defendant's motion raises three grounds for relief. Defendant first argues that he received ineffective assistance of counsel when trial counsel failed to investigate Defendant's case and advance a public authority defense, which would have revealed Defendant lacked criminal intent. Defendant then argues that his conditional guilty plea was taken in violation of due process, in that the plea was not knowing and voluntary because the Court did not actively engage Defendant in developing the factual basis and establishing the necessary intent for conviction. Finally, Defendant argues that he received ineffective assistance of appellate counsel because appellate counsel failed to raise the public authority defense and his lack of intent on appeal.

         In ground one, Defendant claims that he received ineffective assistance of counsel prior to the entry of his guilty plea. Ground one does not set out a viable independent basis for vacating Defendant's sentence. Defendant pled guilty.

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Tollet v. Henderson, 411 U.S. 258, 268 (1973). Therefore, to the limited extent the report and recommendations addresses ground one as an independent basis for a motion to vacate, the Court declines the report and recommendations.

         The magistrate judge's correct analysis of ineffective assistance of counsel in ground one is not wasted effort, however. In ground two, Defendant claims that acceptance of his guilty plea violated his right to due process because the plea was not knowing and voluntary. In evaluating whether a guilty plea entered on the advice of counsel is knowing and voluntary, the Court must determine whether counsel's advice was “within the range of competence demanded of attorneys in criminal cases.” Id. at 266 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Whether counsel rendered ineffective assistance prior to entry of the plea “may play a part in evaluating the advice rendered by counsel.” Id. at 267. The Court must also determine whether Defendant's guilty plea was “made with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Martinez-Cruz, 186 F.3d 1102, 1104 (8th Cir. 1999) (citation omitted). In addition to showing that counsel's representation fell below an objective standard of reasonableness, Defendant must also show prejudice-that “but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985).

         Here, any advice from counsel that Defendant should plead guilty was well within the range of competence demanded of attorneys in criminal cases. As the magistrate judge determined in analyzing the ineffective assistance of counsel claim in ground one, the type of legal defense Defendant cited in ground one (e.g., public authority, entrapment by estoppel, etc.) was simply inapplicable to Defendant's case. “The public authority defense requires a defendant to show that he was engaged by a government official to participate in a covert activity.” United States v. Parker, 267 F.3d 839, 843 (8th Cir. 2001). “Entrapment by estoppel arises when a government official tells a defendant that certain conduct is legal, and the defendant commits what otherwise would be a crime in reasonable reliance on the official representation.” Id. at 844. The evidence is undisputed here. No. government official asked Defendant to investigate or engage in a sting operation on the mother and minor child he believed he was communicating with. Rather, those characters were themselves decoys in a law enforcement sting operation.

         Defendant's argument that his actions were mandated by statute is similarly unavailing. Although there is no question that Defendant was a mandated reporter under Arkansas's Child Maltreatment Act, that Act requires him only to make a report of suspected maltreatment or abuse. Nowhere does the Act affirmatively direct mandated reporters to unilaterally initiate investigations or conduct sting operations. Finally, assuming Defendant can rely on a statute rather than directives from a government official when making a public authority or entrapment by estoppel defense, the statutes cited by Defendant do not support his defense because he did not learn of their requirements until after conviction. Defendant's actions were entirely unilateral.

         The public authority defense and similar defenses were inapplicable, leaving only Defendant's innocent intent argument for consideration by counsel. Defendant does not dispute that he committed the acts set out in the plea agreement. Standing unrebutted, that evidence would be sufficient for a jury to find beyond a reasonable doubt that Defendant had criminal intent when he committed those acts. Beyond his own word, Defendant had no witnesses or other evidence that he lacked criminal intent when he communicated with the decoy mother about engaging in sexual contact with her minor child and then drove to Missouri. Therefore, the only way for counsel to weaken the Government's case for criminal intent would be for Defendant to testify. Defendant's decision not to testify due to his performance anxiety, or stage fright, made even that evidence unavailable for trial counsel to use.

         Because the affirmative defenses Defendant cites were not applicable to his case, it was not objectively unreasonable for counsel to fail to pursue those defenses rather than recommend a guilty plea. Nor was it unreasonable for counsel to advise Defendant to plead guilty, given the strength of the Government's case and the fact that the only evidence Defendant could proffer that he lacked criminal intent was his own testimony and three witnesses who would purportedly have testified about his good character.

[T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. See Nickols v. Gagnon, 454 F.2d 467, 472 (CA7 1971, cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972). . . . And, of course, even when there is a bona fide defense, counsel may still advise his client to plead guilty if that advice falls within the range of reasonable competence under the circumstances.

United States v. Cronic, 466 U.S. 648, 656 n.19 (1984). Defense counsel's decision not to pursue an inapplicable defense and to advise a conditional guilty plea under these circumstances did not fall below the range of competence demanded of attorneys in criminal cases.

         Moving beyond the issue of counsel's reasonable advice, Defendant has not demonstrated that he lacked awareness of the relevant circumstances and likely consequences of his guilty plea. Defendant agrees his plea was voluntary, but argues it was not knowingly and intelligently entered. In particular, Defendant argues that the Court[1] failed to engage in a ...

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