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Douglas Colliver Brandon v. United States of America

October 11, 2011

DOUGLAS COLLIVER BRANDON PETITIONER,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The petitioner, Douglas Colliver Brandon ("Brandon" or the "petitioner"), appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He has also filed applications for other relief such as change of venue.

I.

On June 26, 2003 Brandon was convicted by a jury of one count of conspiracy to commit securities fraud and wire fraud in violation of 18 U.S.C. § 371, two counts of securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, and four counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. See United States v. Rittweger, 524 F.3d 171, 176 (2d Cir. 2008) (Sotomayor, J.), cert. denied, 129 S. Ct. 1391 (2009).

Brandon's conviction stems from his participation in a conspiracy to defraud customers of Credit Bancorp, Ltd. (CBL), a financial services company for which Brandon served as an "employee, attorney and agent." United States v. Rittweger, 259 F. Supp. 2d 275, 280 (S.D.N.Y. 2003) (reviewing in detail indictment of Brandon and his co-conspirators). According to the superseding indictment, Brandon conspired with Thomas Rittweger ("Rittweger"), CBL's managing director for North America, and Richard Blech ("Blech"), CBL's president and chief executive officer, among others, "to defraud CBL customers of at least $210,000,000 by fraudulently inducing them to invest cash, securities, and other assets in two CBL investment programs . . . in the expectation of receiving dividend payments and loans on favorable terms," when in fact "CBL was actually a Ponzi scheme in which proceeds of investments in the programs were paid to earlier investors to create the false impression that the investments were profitable in order to induce more people to invest with CBL." Id. The indictment alleged that Brandon and his co-conspirators made or caused others to make numerous knowing misrepresentations during the duration of the scheme, including distributing "written marketing materials concerning CBL . . . . [that] contained numerous false representations." Id.*fn1

Blech pleaded guilty to three of the thirteen counts of the superseding indictment in February 2003. Id. at 282.

At Brandon's trial, the Government relied on documentary evidence, including Trust Engagement letters signed by Brandon; investor-victim testimony by three investors who described the scheme from their perspective; and the testimony of Blech, who implicated his co-conspirators. See United States v. Rittweger, No. 02 Cr. 122, 2003 WL 22290228, at *2-*5, *8-*11 (S.D.N.Y. Oct. 6, 2003) (reviewing in detail the evidence against Brandon and concluding that "the evidence against Brandon was very powerful," and was "more than sufficient to support the jury's verdict against Brandon"), aff'd, 274 F. App'x. 78 (2d Cir. 2008) (summary order).

After the jury verdict, Brandon moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 based on the alleged insufficiency of the evidence, and for a new trial pursuant to Fed. R. Crim. P. 33. See id. at *1. This Court denied both motions. Id. at *11. In June 2005, Brandon was sentenced principally to a term of 97 months' imprisonment. United States v. Rittweger, 274 F. App'x. 78, 80 (2d Cir. 2008) (summary order)

Brandon appealed his conviction to the Court of Appeals for the Second Circuit, arguing, among other things, that this Court erred in not granting a motion for severance of various counts, and that the evidence was insufficient to support his conviction. See Rittweger, 524 F.3d at 176-77. Brandon also alleged that, in violation of its Brady obligations, the Government had delayed producing to the defendant the grand jury testimony of Virginia Allen ("Allen"), a by-then deceased co-conspirator, and an FBI agent's debriefing notes of interviews with Allen. See id. at 180. The Court of Appeals affirmed Brandon's conviction; it rejected some arguments in a published opinion and rejected others in a summary order. Id. at 183; Rittweger, 274 F. App'x. at 84. The Court of Appeals found that "th[e] evidence would allow a rational juror to find Brandon guilty of the fraud and conspiracy." Id. at 81.*fn2 In February 2009, the United States Supreme Court denied Brandon's petition for a writ of certiorari. United States v. Rittweger, 129 S. Ct. 1391 (2009)

In August 2009, Brandon filed the present motion in this Court to vacate, set aside, or correct his sentence pursuant to 18 U.S.C. § 2255.*fn3 Brandon also filed a substantially similar petition for habeas corpus in the Eastern District of Kentucky, and that court dismissed that case in January 2011 for lack of jurisdiction because Brandon had not established that his remedy under § 2255 in this Court was inadequate or ineffective. See Brandon v. Holland, No. 10 Civ. 117 (DLB), 2011 WL 87183, at *3 (E.D. Ky. Jan. 6, 2011).

Brandon makes two major substantive claims in this § 2255 motion. First, in his initial motion, Brandon points primarily to a complaint (the "Curacao Complaint") filed in Curacao, Netherlands Antilles, in December 2008 by an attorney claiming to represent Credit Bancorp N.V., a Netherlands Antilles company affiliated with CBL. (See Pet. Ex. 1 ("Grounds"), at 1-2; Pet. Ex. 2 ("Curacao Compl."), at 1, 23). The Curacao Complaint See United States v. Rittweger, 2007 WL 1975490, at *1-*2 (S.D.N.Y. July 9, 2007), aff'd 309 F. App'x. 504, 505-506 (2d Cir. 2009) (summary order).

attributes statements to Blech retracting or contradicting the statements made in Blech's guilty plea allocution and in his trial testimony, and alleging, for example, that Blech was "under coercion and threat" from the Government and "told by the District Attorney [sic] what to say." (Curacao Compl. ¶ 3.8). The Curacao Complaint also alleges that Blech "was promised a considerably reduced sentence under the mildest punishment regime in a prison in California." (Curacao Compl. ¶ 3.5.) Brandon argues that the Curacao Complaint undermines the evidence against him at trial, particularly Blech's trial testimony, and otherwise raises questions about whether he received a fair trial. Second, Brandon has filed supplemental papers arguing that his conviction should be vacated in light of the Supreme Court's recent decision in Skilling v. United States, 130 S. Ct. 2896 (2010).

II.

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