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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. NO. 5:98CR30-SPM/AK

TOD STEVEN FAUGHT,

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant Tod Steven Faught’s motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255 with supporting affidavit. Docs. 173 &

183. Also pending are Defendant’s motions to supplement which request consideration of

Blakely and Booker. Docs. 267 & 270. The Government has responded to the motion to vacate,

Doc. 185, and Defendant has filed his reply. Doc. 192. On February 12, 2007, the Court held an

evidentiary hearing on one ineffective assistance of counsel issue. The Court has received the

transcript of that proceeding, and thus, this matter is finally in a posture for decision. Having

carefully considered the matter, the Court recommends that the motion to vacate be denied on all

grounds.

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BACKGROUND

On April 29, 1999, a jury convicted Defendant on all sixty-six counts of a sixty-six count

indictment for money laundering. Doc. 75. The jury also returned a special verdict of forfeiture,

finding that

the amount of $1,250,000.00 in United States currency was involved in one or

more of the currency reporting or money laundering violations alleged in the

indictment for which the defendant TOD STEVEN FAUGHT has been convicted,

or that such property is traceable to property which was involved in such currency

reporting or money laundering violations.

Doc. 78.

Defendant filed objections to the Presentence Report, including an objection based on his

lack of knowledge that the moneys at issue were “drug proceeds.” Doc. 96. At sentencing, the

Court denied all objections, Doc. 105, and sentenced Defendant to 120 months on each of

Counts One through Four and 189 months on each of Counts Five through Sixty-six, to be served

concurrently. Doc. 109.

Defendant appealed, charging that there was improper constructive amendment of the

indictment, that there was insufficient evidence to support the verdict, that the Court improperly

answered a question from the jury, that the Court improperly enhanced Defendant’s sentence for

his role in the crimes and for laundering drug proceeds, and that the Court improperly limited

defense counsel’s redirect of Defendant. Doc. 166. The court of appeals affirmed with the only

explanation being that “there is no merit to any of the arguments the appellant[ ] make[s] in this

appeal.” Id.

The instant petition ensued. On this occasion, Defendant claims: (1) that his sentence

violates Apprendi, and (2) that his trial and appellate counsel were ineffective. Each claim will

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be considered in turn.

DISCUSSION

I. Violation of Apprendi.

In his first claim for relief, Defendant charges that his sentence violates Apprendi

“because his sentences were predicated upon facts [drug type and drug quantity] that were not

alleged in the indictment nor established by proof beyond a reasonable doubt.” Doc. 173,

Amended Mem. at 7. According to Defendant, his sentence was improperly enhanced without

the jury being instructed “that it had to find that the offense involved drugs” or without the

verdict establishing “that the proceeds were from the sale of illegal drugs or importation of

drugs.” Id. at 8. Defendant recognizes that counsel “did object to the sentencing of the drug

enhancement at sentencing,” but argues that since Apprendi was a new rule of constitutional law,

it should apply retroactively to criminal cases pending on direct review. Id. (emphasis in

original).

In his reply, Defendant elaborates on this argument:

Movant asserts that all elements of the alleged illegal activity (alleged to be

illegal importation and sales of drugs) were essential element, whereas, no

reasonable person, without knowing; (how the drugs were imported) (when the

drugs were imported) (where the drugs were imported to) (what type of drugs was

imported) and (the quantity of drugs were imported) could make a finding as to

whether the illegal activity actually took place or as to whether monies involved

were actually proceeds from such an activity, whereas no money laundering could

exist without an illegal activity, it was essential that those elements be included in

the indictment and decided by the jury, if government intended to use them to

enhance movant offense, to laundering of monies from an illegal activity.

Doc. 192 at 2-3 (emphasis in original). According to Defendant, he “tried unsuccessfully to get

trial counsel to raise the Apprendi issues on direct appeal, [but] counsel said whereas movant’s

sentence did not exceed Statutory Maximum, he saw no Apprendi Violations.” Id. at 4. 

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Defendant maintains that he asked counsel again to raise the issue on motion for en banc

rehearing and on petition for writ of certiorari to the Supreme Court, and counsel failed to act on

Defendant’s request. Id. In his estimation, “There is a reasonable probability that counsel’s

omissions and...errors on Direct Appeal caused a miscarriage of justice.” Id. Thus, according to

Defendant, the Apprendi errors were preserved, and “he has shown cause why they were not

included on Direct Appeal,” and “to not hear them here would be a miscarriage of Justice....” Id.

at 5 (emphasis in original).

Defendant’s Apprendi claim is without merit. In Apprendi, which was decided while the

instant case was on direct appellate review, the Supreme Court found: “Other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. 

New Jersey, 530 U.S. 466, 490 (2000). In the Eleventh Circuit, this holding was interpreted by

the en banc court as follows:

Thus, Apprendi actually reaffirmed the longstanding practice of allowing judgedecided facts to affect the length of a defendant’s sentence, including leaving the

imposition of a mandatory minimum sentence within the purview of the trial

judge. Apprendi carved out only a limited exception to this general rule for facts

that actually cause the sentence imposed on a defendant to exceed the prescribed

statutory maximum, requiring that such facts be proven to a jury beyond a

reasonable doubt rather than decided by a judge based on a preponderance of the

evidence standard.

United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001). The Sanchez court further

found Apprendi inapplicable to the Sentencing Guidelines:

A factual finding under the Guidelines determines the sentence within the

statutory range rather than outside it. Because Apprendi only addresses facts that

increase the penalty for a crime beyond the statutory maximum, it does not apply

to those findings that merely cause the guideline range to shift within the statutory

range.

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Id. Of course, since then, the Supreme Court has found otherwise and clarified its definition of

“statutory maximum.” See United States v. Booker, 543 U.S. 220, 244(2005) (invalidating

mandatory provisions of Sentencing Guidelines and reaffirming that any fact besides prior

conviction that is necessary to support sentence exceeding maximum authorized by facts

established by guilty plea or jury verdict must be admitted by defendant or proved to jury beyond

reasonable doubt); Blakely v. Washington, 542 U.S. 296, 303 (2004) (“statutory maximum” for

Apprendi purposes is maximum sentence judge may impose solely on basis of facts reflected in

jury verdict or admitted by defendant).

As the Government points out, Defendant faced maximum terms of imprisonment of ten

years on each count of Counts One through Four and of twenty years on each count of Counts

Five through Sixty-six. His sentences of 120 months on each of the first four counts and 189

months on each of the remaining counts were therefore within the “statutory maximum” as that

term was interpreted both before and immediately after Apprendi. Thus, not only was there no

Apprendi error but also, in light of the Eleventh Circuit’s interpretation of Apprendi in Sanchez,

there was no prejudice from counsel’s refusal to pursue an Apprendi issue on direct appeal,

regardless of whether prejudice is analyzed under the standards for ineffective assistance of

counsel or procedural bar. See McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

Furthermore, Booker is not retroactively applicable to cases on collateral review, as

“Booker’s constitutional rule falls squarely under the category of new rules of criminal

procedure that do not apply retroactively to § 2255 cases on collateral review.” Varela v. United

States, 400 F.3d 864, 868 (11th Cir. 2005). Therefore, Defendant’s motions to supplement with

Blakely and Booker are not well taken and have been denied by separate order.

II. Ineffective assistance of counsel.

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Because the remaining claims involve allegations that Defendant’s trial and appellate

counsel were ineffective, a consideration of Strickland v. Washington, 466 U.S. 668 (1984), is

appropriate.

To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate (1) that his counsel’s performance was below an objective and reasonable

professional norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at

686. The court may dispose of the claim if a defendant fails to carry his burden of proof on either

the performance or the prejudice prong. Id. at 697. The court need not address the adequacy of

counsel’s performance when a defendant fails to make a sufficient showing of prejudice. Id.; see

also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must provide factual

support for his contentions that counsel’s performance was constitutionally deficient. Smith v.

White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The court must consider counsel’s performance

in light of all of the circumstances at that time and indulge in a strong presumption that counsel’s

conduct fell within the wide range of reasonably professional assistance. Strickland, 466 U.S. at

689-90. To show counsel’s performance was unreasonable, a defendant must establish that “no

competent counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he should

have done and that he exercised reasonable professional judgment.” Chandler v. United States,

218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001). “The

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for

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determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules would

interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s unreasonable

conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. Instead, a defendant must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

“reasonable probability is defined as a probability sufficient to undermine confidence in the

outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and presumptions

set forth above, “the cases in which habeas petitioners can properly prevail...are few and far

between.” Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is because the test is not what the

best lawyers would have done or even what most good lawyers would have done, but rather

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whether a reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

1. Trial counsel.

A. Failure to require proof by Government to support introduction of

coconspirator hearsay evidence pursuant to James and Bourjaily.

In this claim, Defendant charges that trial counsel acted ineffectively when he failed to

file a pretrial motion for a James hearing and to make the appropriate motion at the close of the

evidence. Doc. 173, Amended Mem. at 11 & Doc. 192 at 11. Though he does not allege any

specifics regarding this claim, e.g., which witness’ testimony counsel failed to challenge, the

Government pointed the Court in the right direction. Doc. 185. at 12. On the first day of trial,

the Government called Hans Wombach. Doc. 132 at 160. Mr. Wombach had met Defendant

when Defendant was seeking to secure financing for his dredging company. Id. at 162-63. At

some point during the course of their dealings, which had evolved into a request from Defendant

to help him bring cash from overseas into the United States, Wombach introduced Defendant to

Paul Murphy. Id. at 180. Defendant’s counsel objected to anything that Mr. Murphy may have

said to Mr. Wombach, but the objection was overruled. Id. at 182-83. However, a second

objection was sustained. Id. at 184.

Before testimony resumed on the second day, Defendant’s counsel made an ore tenus

motion in limine:

During the [course] of the direct examination of Mr. Wombach by [the

Government], there were questions that were asked of him concerning

conversations of other persons, including a Murphy, and I believe, Winters. We

objected...on hearsay. And...the prosecutor made the comment concerning that

these are statements of the conspiracy of some sort.

* * *

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At this point in time, on behalf of Tod Faught, I’m moving, in limine, Judge, that

the prosecutor not be allowed to go into what arguably could be...construed as

being some sort of co-conspirator hearsay statements in conjunction with his

presentation of his case in chief, for a number of reasons.

Number one, the only indictment in this case was returned in July of 1998. It did

not charge a conspiracy. It charged a scheme and it charged a number of

individual counts....On a number of occasions subsequent to July 28th, inquiries

have been made to whether there was going to be any type of superseding

indictment in this case and obviously there has not been.

We are prepared now to defend substantive counts. We have not prepared and we

are not on notice that there is a conspiracy or that we should have to be defending

against a conspiracy, co-conspirator hearsay statements, anything of that nature.

Doc. 133 at 4-5.

In response, the Government explained:

As far as the conspiracy and the admissibility of co-conspirator statements, under

the Federal Rules of Evidence 801, the case law is clear that there need not be a

conspiracy charged in the indictment for the government to be allowed to present

co-conspirator testimony in furtherance of the conspiracy as an exception to the

hearsay rule in this particular case.

* * *

The government’s position in this case...is that what we’ve established through

the testimony and what we will establish through the testimony is that the

defendant, Tod Faught, solicited first Hans Wombach, that is what we’ve heard so

far, in moving money for him.

And Mr. Wombach replied that he wanted to know the legitimacy and have proof

of the legitimacy of this money. That was not reflected by Tod Faught. He said: 

Do you know anyone else that can help me? And what Mr. Wombach reflected

then is: Yes. And I checked around and I found this fellow, and his name was

Murphy. And Murphy was then the one that he sets up the meeting in New York.

* * *

And clearly the government’s position is, what I’m going to establish is, that

they...acted in a joint venture. That is all I’m required to do. That is part of this

joint venture, the statement one made to the other in furtherance of the conspiracy

and that they elicited other people in furtherance of the conspiracy....All of those

people [in Blountstown, Florida] were involved in this...from that point on. And

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the statements and the communications, because they call all the time and pass

messages and faxes....All of that should come out.

* * *

[A]ll I’m required to show is a joint venture...and...during the course of this trial,

I’m going to be able to do that.

When I do...I think those co-conspirator statements in furtherance of the

conspiracy are going to be admissible. Those can be apprising the people of the

developments or encouraging them to do this or giving instructions.

Id. at 7-12.

After hearing counsel’s arguments, the Court found:

Counsel, in reference to the motion you made to the Court arguing that no

conspiracy had been charged in the indictment and therefore co-conspirator

statements are not admissible, the Court is going to overrule your objection on

that point. The Court finds that it’s not necessary that a conspiracy be charged in

the indictment for such co-conspirator statements to come in.

The Court has to determine, however, that the conspiracy did exist and that

certain required findings would have to be made prior to those statements coming

in. First, that there was a conspiracy in existence. Next, that the client was a

member of that conspiracy, and next that the defendant against whom the

statement was offered is–was also a member of that conspiracy. Next, the

statement was made in furtherance of the conspiracy, and five, the statement was

made during the course of the conspiracy.

Having heard the testimony so far, or the witness, I think it’s Hans Wombach, the

Court now makes...those required findings. I’m going to overrule the objection,

deny your motion in limine and will allow statements by Wombach as to

statements made to him by Murphy and relative to this conspiracy.

Id. at 12-13.

Pursuant to Fed. R. Evid. 801(d)(2)(E), a statement by a coconspirator made during the

course of and in furtherance of the conspiracy and offered against the party-opponent is not

hearsay. Before such statement is admissible, however, the Court must make a finding that a

conspiracy existed, that the coconspirator and the movant against whom the statement was

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1

The Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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offered were members of the conspiracy, and that the statement was made during the course of

and in furtherance of the conspiracy. United States v. James, 590 F.2d 575 (5th Cir. 1979). The

“conspiracy” label is a slight misnomer, as there is no requirement that the “conspiracy or

agreement be criminal in nature; it may be in the form of a joint venture.” United States v.

Postal, 589 F.2d 862, 886 n.41 (5th Cir. 1979).1

Defendant’s allegation that trial counsel did not act effectively in this regard is flatly

belied by the record. Counsel challenged the introduction of Wombach’s statements regarding

conversations with Murphy, and therefore, he properly preserved the issue for appeal, and

additional objections were unnecessary. He was not required to lodge a pretrial challenge to

testimony that he did not know would be offered, and he mounted his objections at the first

opportunity during trial. Counsel’s failure to prevail on the motion in limine is not ineffective

assistance of counsel. The Court considered the James factors and found them to be present,

thereby making the statements admissible pursuant to Rule 801, and there is not a reasonable

probability that even if counsel had made a pretrial motion and renewed his challenge throughout

the trial and at the end of the evidence that the outcome of the Court’s ruling on this evidentiary

matter would have been different.

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B. Failure to thoroughly investigate law and facts at trial and sentencing.

In this claim, Defendant charges that there was insufficient evidence to support the

convictions under Counts One and Two for structuring financial transactions with the intent to

cause the financial institution to fail to file a currency transaction report (CTR) and doing so as a

pattern of illegal activity involving more than $100,000 in a twelve-month period. According to

Defendant, “If the transaction[s] that were deposited on the same date [were] consolidated as one

transaction, and deposits at the same branch of a bank on [the] same date [are] consolidate[d] as

one,” then, as the Court understands his argument, the bank was required to file CTR’s, and he

did “nothing to cause South Trust Bank not to file” those CTR’s since the two business accounts

and two personal accounts at issue “were under the same name and under the same Social

Security Number,” Doc. 173, Amended Mem. at 12 (citations omitted) (emphasis in original). 

Defendant apparently believes that because “[t]here was no false information given to the Bank,”

he could not be held criminally liable under the antistructuring statute. Doc. 192 at 15. Thus, in

Defendant’s view, his trial counsel was ineffective for failing to investigate the law and the facts

as to these matters.

In 1970, “in an effort to facilitate the investigation of criminal activity,” Congress

enacted the Bank Secrecy Act to require banks to report to the government certain currency

transactions. United States v. Phipps, 81 F.3d 1056, 1058 (11th Cir. 1996); see also 31 U.S.C. §

101 et seq. Pursuant to the regulations, if the currency transaction exceeds $10,000, then the

bank must file a CTR. Phipps, 81 F.3d at 1058. In 1986, Congress amended the Act to impose

criminal liability on anyone who causes a bank to fail to file a CTR, causes a bank to report false

information on a CTR, or “structures transactions in an attempt to evade the CTR reporting

requirement.” Id.; see also 31 U.S.C. § 5324(a)(1)-(a)(3). In pertinent part, Defendant was

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charged with violating the antistructuring provision, subsection (a)(3), not subsections (a)(1) or

(a)(2). The antistructuring provision addresses the “‘offense of structuring a transaction to evade

the reporting requirements, without regard for whether an individual transaction is, itself,

reportable under the Bank Secrecy Act.’” Id. at 1061 (citation omitted). Structuring a

transaction is defined as withdrawing or otherwise participating in the transfer of a total of more

than $10,000 in cash or currency by or through a bank “by setting up or arranging a series of

separate transactions, each involving less tha[n] $10,000 individually, thereby intentionally

evading the currency reporting requirements that would have applied if the transaction had not

been so structured.” Basic Instructions 9.1 Eleventh Circuit Pattern Jury Instructions–Criminal

(2003). Despite Defendant’s protestations to the contrary, there is no requirement that the

defendant’s actions be willful, i.e., that they be committed “with bad purpose either to disobey or

disregard the law.” 31 U.S.C. § 5322(a) & (b); Criminal Pattern Instructions at 9.1 cmt.

After careful consideration, the Court finds that counsel did not render ineffective

assistance in this regard, as the evidence clearly supported the two counts of illegal structuring. 

Defendant was not charged with causing South Trust to fail to file a CTR or with causing it to

report false information on a CTR. He was charged with structuring transactions at South Trust

in an attempt to evade the CTR reporting requirement. Most of Defendant’s arguments do not

even bear on that provision, and, to the extent that they do, they are without merit. Therefore,

counsel did not render ineffective assistance of counsel with regard to these allegations.

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2

The Government spells this person’s last name as “Winters.” Doc. 185 at 15.

3

Defendant identifies this person as Jairo Romedo; counsel “believes” this person is Jairo

Romero Madrano. Doc. 185, Ex. 4.

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C. Failure to interview and call favorable material witnesses.

In this claim, Defendant alleges that he told his attorney that “Andy Winners2 and Paul

Murphy [were] well aware of the source of the U.S. Currency alleged to have been the proceeds

of specified unlawful activity.” Doc. 173, Amended Mem. at 13. More specifically, he

maintains that these men “would have testified that the currency in question was obtained from

legitimate business transactions.” Id. According to Defendant, trial counsel failed to interview

them or call them to testify, and the fact that neither was a United States citizen was immaterial,

as they had been arrested in Switzerland and were available for interview or to provide

affidavits. Id. Defendant also refers to the business Relfix and “two Hispanic males” who could

have testified about the proceeds of a $69,500 check and to Jerardo Rodrigues, the president of a

Coral Gables bank, who “could have testified that the money was not Faught’s,” and Jairo

Romero,3

 who “could have testified that he was not a member of the Colombian Mafia” and was

not laundering drug money. Id.

In response, the Government has submitted the affidavit of trial counsel, who states:

In conjunction with the preparation of [Defendant’s] trial, Your Affiant spent

hours reviewing records and discussing potential defenses and witnesses with

[Defendant]. [Defendant] had the ability to give Your Affiant the names of any

and all witnesses he though would be relevant to the defense of his case.

Your Affiant was provided a list of names by [Defendant]....Neither Romero nor

Rodrigues [is] on that last, which came from [Defendant], initially, and was

reduced to writing by Your Affiant for presentation to the Court.

The “two Hispanic males” were persons unknown to [Defendant], certainly

unknown to Your Affiant, and apparently unknown to law enforcement. 

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Throughout the discovery process, at no time was Your Affiant ever provided

specific names to go with the “two Hispanic males” in this case.

* * *

Your Affiant has no information as to what, if anything, Jerardo Rodrigues...could

have testified to that would have been relevant to the case. The fact that he may

have, as claimed by [Defendant], advised that the “money was not Faught’s”

would not have resolved the issue of the actions of the two Hispanic males in

trying to get payment for a bounced or bad $69,500.00 check.

As to Jairo Romero and the claim of [Defendant] that he could have testified at

trial that he (Romero) was not a member of the Colombian Mafia and was not

laundering money, or interpreted otherwise from the [motion], that Mr. Faught

was not a member of the Colombian Mafia and was not laundering drug money, a

review of Mr. Romero’s grand jury testimony is less than flattering insofar as his

relationship with [Defendant] is concerned.

Your Affiant had access to the grand jury testimony of Mr. Romero and had

discussed Mr. Romero at length with [Defendant].

I that grand jury testimony...Mr. Romero testified, under oath, that...Faught had

called him in Miami, apparently after Mr. Faught’s arrest, and advised Mr.

Romero that if he was asked by anyone about dealings with Mr. Faught, that he

(Romero) should say his dealings involved buying machinery by Mr. Faught from

Mr. Romero, which would have been a lie. In response to a question to the effect

that Mr. Faught wanted Mr. Romero to lie, Mr. Romero advised, in the grand jury

testimony, that Faught did.

A further review of the grand jury testimony by the undersigned attorney led the

undersigned attorney to believe that Jairo Romero, if called by anyone at trial,

would have been a particularly devastating witness against [Defendant].

At no time was Your Affiant ever asked to produce Mr. Romero for trial purposes

by [Defendant].

Your Affiant knows of no basis for utilizing a custodian of records from Relfix

for trial purposes. Relfix was never considered as part of a viable defense.

Doc. 185, Ex. 4. Counsel did not address Defendant’s allegations regarding either Winters or

Murphy. 

Affidavits are not generally admissible at trial, see generally, 3 Am. Jur. 2d Affidavits §

19 (2006), and thus, counsel’s failure to secure affidavits from Winters and Murphy was not

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ineffective, as there is not a reasonable probability that the affidavits would have been admitted. 

Counsel did attempt to exclude evidence seized during the arrests of both men because neither

was available to authenticate the documents. Doc. 137 at 7-8. Indeed, citing Fed. R. Evid. 403,

counsel argued for exclusion of any evidence related to the arrests of Winters and Murphy,

including introduction of their mug shots, their being in jail in Switzerland, and “whatever

activities are suspect under Swiss law....” Id. at 8-10 & 76-78. Otherwise, according to counsel,

such evidence made their “activities a feature of this case, even though their activities

presumably in Switzerland have nothing to do with the charges for which [Defendant is] on trial

here.” Id. at 9. Counsel’s objections with regard to the seized documents were continuing. See,

e.g., id. at 131 & 134. 

It is clear to the undersigned that counsel’s strategy was to limit the focus on either

Winters or Murphy to the extent possible. While it certainly was not possible to limit all

references to them, counsel succeeded in eliciting testimony from the Government’s witness,

Sergio Rageizzone, a Swiss police officer, that Murphy and Winters were legitimate

businessmen. See, e.g., id. at 159-161. Counsel could not conceivably have wanted to put the

legality of Murphy’s and Winters’ business practices at issue any more than necessary, see, e.g.,

id. at 181-82, and if he had called them as witnesses, he would have faced the real probability

that their alleged illegal activities both in the United States and overseas would have unfairly

prejudiced his client when he was trying to present a defense that everything his client did was,

to his knowledge, legal and above reproach and well within accepted business practices. 

Counsel was able to place that defense squarely before the jury through his own client, see, e.g.,

Doc. 139 at 135 & 150, while limiting the possibility that the jury would convict Defendant

merely because he associated with persons who might have had less than stellar reputations in

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the police community or engaged in shady business dealings. These are precisely the types of

issues which counsel must weigh and evaluate in determining which witnesses to call during

trial, and Defendant cannot establish that “no competent counsel would have taken the action that

his counsel did take.” Grayson, 257 F.3d at 1216.

With regard to Jerardo Rodrigues, the president of a Coral Gables bank, Defendant

denied knowing him or having any business dealings with him, id. at 205-06, and counsel’s

determination that Mr. Rodrigues had nothing relevant to offer his client’s defense, especially

when weighed against the prejudice to Defendant which would have resulted when the

Government cross-examined him on his seemingly illegal activities–Mr. Rodrigues processed

cash deposits without filing CTR’s–was a reasonable determination.

As to the two unknown Hispanic males who attempted to cash a $69,500.00 check to

“Relfix” drawn on one of Defendant’s business accounts, the Court is not clear what Defendant

hoped to gain from tracking down these unknown persons or further investigating Relfix. Surely,

Defendant did not allow checks to be written on his accounts to entities whose identity he did not

know, and there was no testimony offered at trial that this was one of the checks Defendant’s

sister forged or that the check was otherwise misappropriated. See also Doc. 132 at 93-94. 

Furthermore, the Court does not know how counsel was to determine the identities of these men

when even law enforcement did not know who they were. Counsel is only expected to engage in

reasonable, not extraordinary, investigation.

Finally, as to Defendant’s allegations regarding Jairo Romero, counsel’s explanation for

not calling him as a witness is perfectly reasonable. He weighed the benefits of Romero’s

testimony against the prejudice of calling a witness who had testified before the grand jury that

Defendant had attempted improperly to influence or tamper with his testimony. In counsel’s

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estimation, this would have been devastating to his client, and indeed, in this Court’s view, this

testimony from Romero would have focused on Defendant’s post-arrest activities, rather than on

the issues presented by the indictment and would have substantially prejudiced Defendant. 

Counsel’s decision not to call Romero was not deficient performance.

D. Failure to require Government to obtain and disclose identity of “two

Hispanic men.”

This allegation is part and parcel of the previous allegation, but the Court would add that

counsel cannot make the Government disclose information that it does not have and cannot

obtain.

E. Failure to impeach Government witnesses.

In this claim, Defendant claims that counsel failed to impeach either Pam Wilson,

Defendant’s sister, or Tim Smith, a special agent with the Drug Enforcement Administration. As

to Ms. Wilson, Defendant maintains that counsel knew that she had been arrested before trial

“and was told not to say anything about this arrest.” Doc. 173, Amended Mem. at 14. As to

Agent Smith, Defendant argues that counsel knew that Romero had denied to the grand jury

Agent Smith’s accusations that Romero was a member of the Colombian Mafia and was

involved in laundering drug money with Defendant, and that counsel failed to impeach Agent

Smith with Romero’s denials. The Court turns to the Wilson allegations first.

On direct examination, during the course of questioning Ms. Wilson about her forgery of

checks on Defendant’s business accounts, counsel for the Government asked her if she had been

“arrested for forgeries or for bad checks.” Doc. 134 at 57. She said, “No, sir....Tod had called

and said for me to leave my son there and that he wouldn’t press no charges.” Id. On crossexamination, Defendant’s counsel, after getting Ms. Wilson to admit to her numerous

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convictions for forgery, asked, “Have you been arrested and charged with forgery or passing

checks any other occasions that we haven’t talked about?” Id. at 77. Wilson replied, “Not that I

can recall.” Id.

According to Defendant, “prior to trial, Wilson had indeed been arrested and was told not

to say anything about this arrest,” a fact which counsel knew but did not use to impeach her. 

Doc. 173, Amended Mem. at 14. In response, counsel states that the “issue complained of

regarding witness Pamela Wilson and her check charges and prosecution or lack thereof were so

insignificant in light of the overall problems facing the Defendant in this case that any specific

question(s) that were not directed to Wilson...clearly would not have impacted this case.” Doc.

185, Ex. 5. 

While it does appear that Ms. Wilson was charged with uttering a forged instrument and

grand theft in Franklin and Gulf Counties, Florida, shortly before her appearance at trial in this

case, see www.dc.state.fl.us/InmateReleases, usually, an arrest, as opposed to a conviction, is not

a proper avenue for impeaching a witness, unless the arrest bears on the witness’ character for

truthfulness. United States v. Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999); see generally

Fed. R. Evid.607-609. An arrest for forgery would certainly bear on Ms. Wilson’s character for

truthfulness. Ad-Vantage Telephone Directory Consultants v. GTE Directories Corp., 37 F.3d

1460, 1464 (11th Cir. 1994). However, once she denied that she had been arrested for any

additional crimes beyond those already divulged, counsel was precluded from proving those

arrests by extrinsic evidence “and the questioning party must take the witness’ answer.” 

Matthews, 168 F.3d at 1244. Even so, in counsel’s view, any additional arrests were

inconsequential, and the Court cannot fault that evaluation. Counsel pointed out that “over the

last eight or nine years [Wilson had] conducted herself repeatedly as a thief,” and that she was

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someone who would “steal money from people that are close to [her].” There is not a reasonable

probability that pointing out one additional arrest or series of arrests would have been of any

consequence in the jury’s assessment of Wilson’s credibility or in tipping the verdict in

Defendant’s favor.

Turning to Defendant’s allegations regarding counsel’s failure to impeach Agent Smith,

the Court finds them without merit. In his affidavit in support of the criminal complaint filed in

this case, Agent Smith stated:

According to a Drug Enforcement Administration confidential informant (CI),

Jairo Romero is a member of the Colombian Mafia and is heavily involved in the

laundering of Colombian drug money.

 * * *

On December 2, 1997, Ocean Bank in Miami, FL, filed a Suspicious Activity

Report regarding Jairo Electronics, Jairo Romero, and his wife Julieta Romero. 

The report stated that Romero claimed to be operating his business out of his

garage and that the business consisted of exporting fans and electronic equipment

to Colombia.

* * *

Records checks show numerous large currency transactions for Romero and his

wife, including a Currency Transaction Report by Citibank in Miami showing a

deposit by Jairo Romero of $160,000.00, in currency....

The following evidence establishes that Tod Faught and Jairo Romero are linked

together in their money laundering activities.

-Three checks...drawn on [Faught’s business accounts] have the notation “loan

Jairo Electronics,” or “Jairo Electronics,” in the lower left corner of the check. 

These checks are signed by Tod Faught.

-Two wire transfers...were made to Jairo Romero...from [Faught’s business

accounts]....

-Analysis of telephone tolls records related to Faught and/or his associates

establishes a connection between Faught and Romero.

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4

Defendant filed two motions to supplement this claim, which the Court allowed. Docs.

217, 228, & 238. The Court has reviewed the motions and finds nothing in them to alter the

Court’s analysis of this claim.

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-A review of the checks written on Romero’s account establishes that several of

the payees on checks issued by Romero also appear as payees on checks drawn on

[Faught’s business accounts].

Doc. 1.

Defendant argues that counsel should have impeached the credibility of these statements,

which Smith did not repeat at trial, with Romero’s grand jury testimony denying Smith’s

allegations that Romero had ties with the Colombian Mafia and that he and Defendant were

involved in money laundering. In response, counsel states:

The testimony of Agent Smith regarding his knowledge and information relating

to Romero did not constitute “false” testimony. It was an opinion based upon

investigation. While Defendant Faught and the undersigned affiant absolutely

disagreed with Smith’s testimony, failure to ask specific questions of Smith

[does] not constitute ineffective assistance of counsel. In fact...Romero was not a

good witness for this Defendant whether or not he ever was a friend, a member, or

an associate of the Colombian Mafia.

Doc. 185, Ex. 5.

Having carefully considered the matter, the Court finds counsel’s assessment of Smith’s

averments correct and his position with regard to the statement imminently reasonable, and thus,

his actions in this regard were not ineffective.

F. Failure to object to prosecutorial misconduct.

In this ground, Defendant charges that counsel acted ineffectively when he failed to

challenge the Government’s “urging” of Wilson to lie to the grand and trial juries regarding

“being arrested and charged with forgery just prior to [Defendant’s] trial....”4

 As previously

noted, Defendant is correct that Ms. Wilson had been charged with grand theft and forgery just

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5

Defendant also filed two motions to supplement this claim, which the Court allowed. 

Docs. 212, 218, & 238. The Court has reviewed the motions and likewise finds nothing in them

to alter the Court’s analysis of this claim.

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weeks before her testimony in this case; however, he has absolutely no support for his accusation

that the Government improperly “urged” Wilson to lie about her criminal history. While she was

certainly less than candid when both the Government and defense counsel questioned her about

her arrests, once Wilson denied having been arrested beyond those times specifically pointed out

to her, there was nothing counsel could do, and in this Court’s view, a few additional arrests for

the same types of crimes for which she had previously been convicted would not have further

eroded her character for truthfulness in the mind of the jury in any appreciable way. Thus, there

is not a reasonable probability that the outcome of the proceeding would have been different.

G. Failure to request competency hearing on Pamela Wilson.

In this ground for relief, Defendant argues that his due process rights were violated

“when counsel...allowed a mentally ill person Pamela Wilson to testify.” Doc. 173, Amended

Mem. at 16.5

 In response, counsel states that he “did not believe it necessary or even appropriate

to seek some sort of mental examination of this particular witness. In the overall scheme, she

was relatively insignificant.” Doc. 185, Ex. 6.

“Every person is competent to be a witness except as otherwise provided in [the Federal

Rules of Evidence].” Fed. R. Evid. 601. Rule 601 specifically excludes any mental qualification

for testifying because “[s]tandards of mental capacity have proved elusive in actual application.” 

Id. at advisory committee’s note. “[F]ew witnesses are disqualified on that ground,” and the

court’s discretion “is regularly exercised in favor of allowing the testimony” since a “witness

wholly without capacity is difficult to imagine.” Id. The question of a witness’ mental

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competency “is one particularly suited to the jury as one of weight and credibility, subject to

judicial authority to review the sufficiency of the evidence.” Id. The case cited by Defendant,

United States v. Gutman, 725 F.2d 417 (7th Cir. 1984), is not to the contrary.

Counsel questioned Pamela Wilson directly and pointed out her pattern of deception and

thievery, particularly where it involved members of her most immediate family, Defendant and

their mother. He also questioned her about her mental illness and treatment for it and elicited

from her the drugs she had taken and the course of treatment she had followed. This was

sufficient. On paper, her testimony appears coherent, but whether it was credible was entirely up

to the jury. While the Court might not agree with counsel’s estimation that Wilson was a

“relatively insignificant” witness, the Court does not believe that he ineffectively questioned her

with regard to her mental capacity or her level of veracity or that he acted in a manner contrary

to what other competent counsel would have acted under the same circumstances. He had the

information that he needed regarding her mental illness, he questioned her about it, and that was

sufficient.

H. Failure to object to jury instructions or request specific instructions.

In this claim, Defendant maintains that counsel was ineffective for failing to request an

instruction on the money laundering counts (Counts Five through Sixty-six) which included

elements for drug crimes. This is an extension of Defendant’s prior Apprendi arguments. He

also apparently argues that counsel should have requested an instruction on conspiracy.

The Court properly instructed the jury on the elements of money laundering, using the

pattern instruction approved for use in the Eleventh Circuit. Doc. 135 at 15-20; Offense

Instructions 70.2 Eleventh Circuit Pattern Jury Instructions–Criminal (2003). The instruction

requires that the Court identify the “specified unlawful activity,” but it does not require that the

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Court then instruct the jury on the substantive elements of that unlawful activity. Defendant was

not charged with any substantive drug crime or with conspiracy, and the Court would have

committed clear error by instructing the jury on crimes with which Defendant was not charged. 

Counsel was therefore not ineffective for failing to request improper jury instructions.

I. Failure to adequately prepare for trial.

Defendant alleges in this ground that counsel’s cumulative errors as previously addressed

amounted to ineffective assistance of counsel. Since none of the alleged errors have merit, they

can have no cumulative harmful effect.

J. Failure to accompany Defendant to Probation Service interview and to

disclose and discuss PSR.

In this claim Defendant maintains that counsel did not accompany him to his interview

with the Probation Officer and did not provide him with a copy of the PSR or discuss it with him

before sentencing and that counsel failed to provide him with any assistance at sentencing. In

response, counsel acknowledges that he did not accompany Defendant to the interview, but in his

opinion, he “did not need to be present,” as he had instructed both Defendant and the Probation

Officer that Defendant “was not to discuss any case specifics during the interview.” Doc. 185,

Ex. 8 (emphasis in original). Based on counsel’s information, Defendant followed his

instructions. Id. Counsel also states that Defendant’s allegation that he did not assist him at

sentencing is “ludicrous.” Id.

The sentencing transcript is clear that counsel did assist Defendant during sentencing,

making lengthy and substantive arguments on his behalf. Doc. 154. Furthermore, there is

nothing in the PSR which suggests that Defendant was in any way prejudiced by having the

interview with the Probation Officer without benefit of counsel. As to Defendant’s assertion

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that he did not receive a copy of the PSR before sentencing and that counsel did not review it

with him, certainly, counsel had a duty to provide the PSR to Defendant and to review it with

him, and failing to fulfill that duty would amount to deficient performance. However, even if

counsel did fail in this duty, Defendant was not prejudiced thereby. If the Court had directly

asked Defendant whether he had reviewed the PSR and he had answered in the negative, the

Court would simply have taken a recess or continued the proceeding. Furthermore, even if

counsel advised Defendant “that the court could not sentence him with drugs and they could not

use drugs in his case,” the Court cannot discern the prejudice. Defendant was not taxed with any

drug quantities, only with being “aware that the currency involved in this case was the proceeds

from the sale of illegal drugs,” PSR at 15, and there were no drugs to cash conversions made in

this case, as there would have been in a drug case. The money attributed to Defendant was

strictly based on funds deposited, seized, or otherwise traceable, and the finding that the money

represented drug proceeds was made by the jury, not the Probation Officer. As this is the only

objection Defendant has articulated with regard to the contents of the PSR, and counsel

thoroughly objected to and then argued against Defendant’s being assessed any additional points

related to his knowledge that the money represented drug proceeds, see Docs. 96 & 154, the

Court cannot find any prejudice from counsel’s assumed failure to review the PSR with

Defendant.

K. Failure to advise Defendant “when deciding what pleas to enter.”

This claim, which was the subject of the only evidentiary hearing held in this case, will

be discussed in a separate section infra.

L. Failure to object to lack of evidence regarding knowledge and willfulness

and to request appropriate jury instructions.

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This claim is almost identical to the claim asserted in Section II.1.B. and is, for the

reasons explained previously, without merit.

2. Appellate counsel.

In his final claim for relief, Defendant attacks the performance of appellate counsel for

failing to argue several of the previously discussed alleged shortcomings of trial counsel. 

Because all of those claims are meritless, appellate counsel was not ineffective when he failed to

argue them on appeal.

III. Ineffective assistance of trial counsel regarding failure to advise Defendant “when

deciding what pleas to enter.”

In this claim, which was the subject of a February 12, 2007, evidentiary hearing,

Defendant charges that counsel failed to “advise[ ] him of the benefits of pleading guilty [or] the

consequences of losing at trial,” and that he failed to “advise[ ] him of the Federal Sentencing

Guidelines, its application with respect to a conviction entered, whether by guilty plea or jury

verdict.” Doc. 173, Amended Mem. at 18. He also complains that counsel never “advise[d] him

of any plea offer of the government,” id. at 19, and that the only time he was offered a plea was

immediately before trial when the United States Attorney “came to [the] room and told trial

counsel 28, counsel ask[ed] if [Defendant] wanted to plea [and] [Defendant] said no, because

[he] did not understand what the United States Sentencing Guidelines was, he thought [the

Government] was talking about 28 years not the Sentencing Table Level 28....” Doc. 183. 

According to Defendant, if counsel had “constitutionally advised him, he would have pled

guilty.” Doc. 173, Amended Mem. at 18.

In his initial response, counsel stated that he “repeatedly discussed” the Guidelines with

Defendant, “including repeated reviews of the table in the back of the guidelines, and the

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application of enhancements, including role and the like.” Doc. 185, Ex. 9. He maintained that

he never guaranteed Defendant “what his sentence might be, and at all times (at least six

different occasions) referred to the Sentencing Guidelines in the case,” and that, in response to

Defendant’s query, he advised him that the only chance he had for receiving a sentence of less

than five years was by cooperating. Id. In support of his affidavit, counsel attached a draft of a

Memorandum of Interview from the Internal Review Service, which states that Defendant

advised agents that “he would have to serve five years in jail” and that he was willing to “make

telephone calls directly to three cartel leaders to set up money laundering deals.” Id.

With these “he said-he said” statements in hand, the Court attempted to resolve the issue

without the necessity of transporting Defendant to this Court from his place of incarceration in

South Carolina. Towards that end, the Court directed the parties to “submit any additional

evidentiary materials either supporting or opposing Defendant’s claim....” Doc. 273. In

response to that order, Defendant’s attorney, Clyde M. Taylor, Jr., and the Assistant United

States Attorney who prosecuted this case, Randall J. Hensel, submitted affidavits, and Defendant

filed a response to the order which reiterated his prior allegations. Docs. 274 & 275. This

additional material did little to advance this matter towards resolution, and consequently, the

Court appointed counsel to represent Defendant and scheduled this matter for evidentiary

hearing.

Doc. 277.

On February 12, 2007, the Court conducted an exhaustive hearing on the limited question

of counsel’s alleged ineffectiveness regarding his advice about Defendant’s sentencing exposure

and the availability of a change of plea. Doc. 280. A review of the relevant testimony follows.

Defendant testified first. According to him, he and Mr. Taylor never discussed a plea

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agreement or “about engaging in plea negotiations” or what sentence he could expect if he was

convicted or pled guilty:

Mr. Taylor was very strict with me and he was very straight. He always said that

I was not going to–he was not going to lose the trial because I was not charged

with conspiracy, and everything that they were bringing in were hearsay; and he

fought that same argument all of the way up to the appeal. That was his

argument, even in his appeal. He never even discussed that.

* * *

All I asked him was, was this the best thing that we were doing and he kept

saying that we’re going to win this trial.

Tr. at 10-11. Defendant acknowledged that he never specifically told counsel that he was willing

to cooperate with the Government pursuant to a plea agreement. Id. at 11-12. According to

Defendant, Mr. Taylor never, either before trial or at sentencing, “brought out a copy of the

United States Sentencing Guidelines and sat with [Defendant] and figured out what he thought

the Sentencing Guidelines would result in if [Defendant] lost at trial or if [he] took a plea.” Id. at

12-13. The first time that a plea was mentioned was on the day of trial when the Court directed

the parties to “go back to a room and see if [they] could come to some kind of agreement.” Id. at

14.

I was sitting in a room with Mr. Taylor, Ms. Barbara Sanders, the attorney of my

brother, Chris Faught. Mr. Hensel walked to the door and he said “Level 28.” I

didn’t know what Level 28 was. I thought it might be 28 years. I had no idea of

what he was talking about.

I said, “No, no way.” I said, “Chris can plea out if he wants to but I ain’t pleading

out.” That’s just what I said.

And we got up and we went back and started the jury selection. 

* * *

I had no understanding. My understanding was 28 years. I had no idea of what

he was talking about. When he was talking I asked him what is he talking about. 

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I thought he wasn’t talking to me about the guidelines. I thought he was talking

to me about years....

* * *

Sir, I’ll be honest. I blowed up when he said that. I mean I thought he was

talking about 28 years. I blowed up. I mean exactly what I said, “No, I ain’t

going to prison. If he wants to, I’m getting out of here.” And we went right

straight back to the desk and didn’t have no time.

Id. at 14 & 28. 

The following exchange then occurred:

Q You didn’t tell Clyde Taylor, “I’m not taking 28 years”?

A No, I just said I ain’t taking that. That’s just what I said. I ain’t taking

that. I’m out of here. I said my brother can plea or whatever. I’m out of

here.

Q So you didn’t even ask for an explanation of what 28 was?

A No, I didn’t understand. I’m thinking of years, because if you come to

me, as I’m ignorant to the law, I would think that you would say you’re

going to get two years or five years or ten years. I had no idea, sir.

Q But you didn’t ask Mr. Taylor?

A No, sir, I didn’t ask. I didn’t know I had to.

* * *

I thought he would tell me. I thought that was what he was there for, to

represent me.

Q Well, you just said that you blew up and said, “I’m not taking any plea.”

A No. I just said I’m not taking that, and I left.

* * *

Q So there wasn’t time to sit down and explain to you and you didn’t ask for

an explanation. You just blew up.

A Right and left, because we had already waited a year and now we are in

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the process of trial and then they are going to come in and offer that. I

have no idea what it is.

Q But you didn’t ask then?

A Maybe that’s my mistake. I’m not going to say I did. Maybe I made that

mistake. I mean I’m not going to sit here and say I made that mistake.

Q And even after all of this, you never got 28 years. You got 15 years, nine

months?

A Sixteen years.

Q That’s 15 years, nine months?

A Oh, okay. I didn’t get 28 years, but it sure seems like it.

Q All right. Did it start striking you as strange that this 28 years never

materialized?

A No one ever explained to me. I mean it was after I went to prison that I

really got with an inmate and he explained to me how the guidelines work.

Id. at 28-30. Defendant stated that no plea was “really offered” to him and that he was never

advised that he did not need an agreement in order to plead to the indictment. Id. at 15.

On cross-examination, Defendant reiterated that he had never seen a Sentencing

Guidelines book and that Mr. Taylor had never shown him the Guidelines table. Id. at 20-21. 

He further stated that Mr. Taylor “guaranteed [him] that [he was] going to walk out a free man.” 

Id. at 21. He nevertheless acknowledged that he had indeed committed money laundering

crimes, id. at 25-26, and he later testified as follows:

Q And somehow then you are saying that Mr. Taylor convinced you that you

hadn’t really done anything wrong and that you weren’t going to get any

time?

A He didn’t say that. What I’m telling you is he never explained the

guidelines to me to where I would understand the difference or the

consequences between taking a plea or going to trial....I thought he was

very professional and I still do. I don’t have a grudge on Mr. Taylor. I

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just think that he made a mistake. He should have explained to me the

differences and the consequences; that’s all I say.

Id. at 27.

Defendant also admitted that he “might have” committed perjury during the trial. Id. at

30-31.

The Government’s first witness was Mr. Hensel, the attorney who prosecuted the

underlying criminal charges against Defendant. Mr. Hensel, who has been employed by the

United States Attorney’s Office in the Northern District of Florida for over twenty years, initially

explained the plea policy for this district:

In the Northern District of Florida, the policy pretty much follows what’s called

the Thornburg Rule and that is that any cases that we handle we don’t do, in

essence, plea negotiations.

As good as we do in this district is what’s called charge bargaining.

* * *

We don’t do offense bargaining as far as bargaining for the amount of time.

* * *

The problem that most defense attorneys have because of that is really the only

benefit most defendants get from pleading guilty to the offenses under our policy,

is that they have a hope of substantial assistance, is about the only way to avoid

the onerous penalties that they face...and then they get acceptance for

responsibility and that’s about it.

Id. at 38-40. With charge bargaining, “there is no agreement as to a specific period of time”

regarding the length of the sentence. Id. at 40.

Regarding the events which occurred the first day of trial, Mr. Hensel recalled the Court

directing the parties “‘to sit down one more time and see if you all can resolve this thing.’” Id. at

44. However, he had no recollection of a “discussion about a guideline Level No. 28.” Id. at 51. 

According to Mr. Hensel,

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The only scenario under which I can see that happen is where Mr. Taylor and Ms.

Sanders had shared with me their guideline calculations and I retreated to the

government office and tried to do some guideline calculations on my own to see

whether I thought...they were reasonable or whether those calculations were

within the ballpark of the facts as I knew them at that time. I can see how...the 28

figure could have been a reasonable figure at that point in time, but I don’t have

any specific recollection of going in and saying, yes, that’s a 28. I can’t recall

that actually happening but I can’t say that it didn’t.

Id. at 51-52. In any event, Mr. Hensel would not have bound the Government to that calculation

since “the Judge makes the final determination of the guidelines, and I can never make that

agreement.” Id. at 46-48. Furthermore, because of the nature of the charges against Defendant,

a plea “was an all or nothing deal.” Id. at 51. In other words, Mr. Hensel “would not have

allowed [Defendant] to plea to anything other than the entire indictment.” Id.

On cross-examination, Mr. Hensel testified that the “figure 28 would have come up...if it

was less than $2 million that was laundered....” Id. at 55. He also stated that he thought he and

Mr. Taylor discussed Defendant’s “providing substantial assistance, whether that opportunity

was open to him,” but Mr. Hensel “never prepared a plea and cooperation agreement in this case,

so it must not have gotten very far.” Id. at 66 & 68.

Mr. Taylor testified next. At the time Defendant hired him, counsel had been practicing

law for twenty-eight years and had devoted the last twenty years primarily to “criminal defense

in both state and federal courts.” Id. at 78. “[S]ince...the first day [he] started doing criminal

defense work,” Mr. Taylor’s standard practice when meeting a client for the first time is “to

advise the client that my job is to find as many options for them as possible, guarantee absolutely

nothing, and do the best job possible and set a fee....” Id. at 80. With regard to the plea policy in

this District, Mr. Taylor stated that “since the guidelines in ‘87, basically you plead to the

highest charge the government has filed against your client.” Id.

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Because of a 2001 tropical storm which flooded his garage, Mr. Taylor had “very few

documents relating to [Defendant’s] case.” Id. at 82. He did, however, recall that “we had

plenty of discovery insofar as getting ready for trial,” and that he “felt very comfortable with

knowing what we were facing in this case.” Id. at 82-83. “On more than one occasion,” counsel

met with Defendant and

explained to him what the government’s theory of prosecution was as it related to

the indictment, what they intended to show based on what I had seen in the

discovery and I asked him repeatedly questions about how, when, why, who he

knew, why did he associate with so and so, why was there all of this cash in the

banks, what was his brother doing bringing in money....We covered the

waterfront. There was a lot of information and Mr. Faught, in my opinion, knew

exactly what we were doing with it.

Id. at 84.

Mr. Taylor was adamant that he “never guaranteed any client, ever, a result from a jury

trial, never, ever.” Id. at 85. He also denied telling Defendant that “there was no reason to have

any kind of plea negotiations because he was going to walk,” but he recalled telling him “on

more than one occasion that I did not think that we could win the case outright with all 66

counts, and losing one count could arguably be just as bad as losing 20 counts. So I thought it

would be a difficult row to hoe.” Id. at 85-86

Although counsel knew that Defendant had dropped out of school, “there wasn’t a

question in my mind that I’m going to have to block print questions and explanations out to Mr.

Faught” since he was “not a slow individual from the standpoint of thought process.” Instead,

according to Mr. Taylor, Defendant communicated “very well,” spoke fluent Spanish, and “knew

how to negotiate deals and contracts and his employers thought the world of him at one point in

time....” Id. at 87. Counsel further recalled having conversations with Defendant regarding

cooperation with the Government:

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Initially, he didn’t want to talk about it. At some point in time he indicated that

he would have some problems if he was to cooperate because it might be difficult

on him or his family. He kept referring at one point in time to, I think in a few

years earlier, his dad had been kidnapped by rebels or people in Columbia and

held for ransom. He was concerned about that and that was brought up on more

than one occasion.

Id. at 87-88. Thus, before trial, Defendant did not offer to cooperate. Id. at 88. 

Mr. Taylor was “[a]bsolutely” positive that he and Defendant discussed the benefits of

pleading guilty:

Talked about the guidelines, talked about what would be a two-point

enhancement if he went to trial, testified, and was convicted. Specifically, even if

he were convicted of only one count and were acquitted on a bunch of others, the

government would still come in and suggest that you had committed perjury and

obstructed justice and you’ll get a two-level enhancement. I talked about that. I

talked about the scoring in the guidelines. We had to estimate the dollar figures. 

I don’t ever get pinned down on a range.

I’m well familiar with the plea colloquies that have evolved over the years in

federal court where the judges repeatedly say has anyone told you or guaranteed

you what your range was going to be, no one knows, not even me. We have a

presentence report. I went through all of that.

We talked about how role would be an issue in the case, how he could get

enhanced for role. If he pled and cooperated he might be able to have some

wiggle room there and, in turn, by minimizing the role of his brother, that would

help Christopher Faught if he in turn pled, because his role was clearly different

from that of Tod and Tod would be testifying. So it would be back-up

information for his brother. It was covered.

Id. at 88-89.

Mr. Taylor also testified that he discussed the consequences of going to trial:

Well, we could win. I have told people lightning strikes. You may win. In my

opinion we are going to lose this case. It is a difficult case, the vast numbers and

the people they are bringing in. It was a trial in Panama City, one of te more

conservative divisions in our district, and that if you did lose, you would for sure

not get acceptance of responsibility which is two or three points depending on

where he scored. Plus you were going to get a two-point enhancement if you

testified. So you’ll look at a five-point flop just on that issue alone under the

guidelines.

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Id. at 89. According to counsel, Defendant never told him that he wanted to plead guilty and

cooperate, but he was certain that Defendant knew there would be a difference in the application

of the Guidelines depending on whether he pled guilty or went to trial. Id. at 90-91. Counsel

testified that on at least one occasion, he explained to Defendant what the Government’s

expectations would be if he agreed to cooperate:

I discussed that if you decide to plea, you’ll be asked questions about everything

you have done in your life from A to Z and it will say that in the plea and

cooperation agreement. It is a one-way street....[I]f the government asks you 100

questions–and this is standard spiel–100 questions and you answered 99 of them

and they don’t like the 100th question, you can forget it, you’ll get the shaft. 

That’s the standard spiel. I have been doing it for 15 or 20 years.

Id. at 92.

While counsel did not have “an independent memory of the number 28 being raised”

after the Court directed the parties to discuss the possibility of a plea, he stated that he would

never have talked in terms of years when discussing Defendant’s sentencing exposure. Id. at 93. 

Instead, he would have talked in terms of months:

If the numbers were bandied about that day, Mr. Hensel and I as well as Ms.

Sanders were trying to determine for our own benefit where he would roughly

fall; because, obviously, if the statement of facts that the governments gives with

the presentence report comes out of the blue and you are five levels above, you

sort of get caught short and there w[ere] discussions as to where we fell, but all of

the numbers on the dollar amounts were down in the low 20s, maybe even below

that. I don’t recall specifically.

Id. According to Mr. Taylor, he “never heard the term 28 years until these documents got filed

in conjunction with this case.” Id. at 94. Further, in counsel’s view, if, on the day of jury

selection, Defendant had asked him what was happening, “[t]hat would have been a bizarre

question,” as he had already gone over everything with Defendant, including his right to testify

or to remain silent. Id. at 94-96.

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Mr. Taylor emphatically denied ever assuring Defendant that he “would win the case

because there was no conspiracy count”:

That would be a ludicrous statement for me to make. The fact that there’s no

conspiracy count is totally irrelevant to the other multiple counts. That statement

was never made by me.

Id. at 98. Furthermore, he never had a conversation with the Government “to the point of my

client is willing to negotiate, says he wants to plea, what can you do. Mr. Faught wanted to go to

trial....He wanted a trial. He got a trial.” Id. at 107-08. Mr. Taylor also testified that he did not

know why Defendant insisted on taking the witness stand:

You’ll have to ask him. I don’t know. We went through a number of issues over

the period of time of representation. Mr. Faught made a number of decisions

during the course of representation that I suppose you could wonder about

forever. He didn’t want to cooperate for four or five different reasons. One, his

concern was about family; two, he was concerned about relatives in Colombia;

three, he was afraid that some of the people that he might be talking about would

be in jail or have contacts in the States because he was told that under no

uncertain terms, even if he did cooperate, that he was still going to do prison time. 

There was no way he was not going to do prison time. The only question was

how much.

* * *

Mr. Faught said he wanted to testify. I went through the whole shooting match. 

You’ve got to tell the truth. Only you are the one that knows the truth. You have

the prior statement. You’ll get grilled on it.

* * *

If the client wants to testify, he’s entitled to testify. He’s supposed to tell the

truth.

* * *

I was worried about Mr. Faught testifying, and he said he wanted to testify and

that those were the facts, and I let him testify.

Id. at 113-15.

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Counsel admitted that the figure “28” is “one of the [Guidelines] numbers that could have

been relevant to the case.” Id. at 118-19. Although it was possible that Mr. Hensel mentioned

“28,” counsel had no recollection of any specific number being mentioned by him, but “that’s

certainly one number that could come into play along with anything from as low as minus five

off of 27 to minus five off of 29.” Id. at 119. In discussing the Guidelines with a client, Mr.

Taylor’s standard operating procedure, according to him, was as follows:

I would have had the guidelines book out and I would have gotten the book out

and I would take a legal pad. Rather than show the whole page and all of those

numbers and all of those columns, you go you are a criminal history number one

and here’s the column and you’re going to be looking at probably an 18, 19 or 20. 

Then you take 18, 19 or 20 out on one, figure in 24-30, 27-33, 33-37. Here is

what we were looking at. Here is also what we are going to be dealing with. You

can get role plus two to four, zero gun enhancement.

* * *

[I]n five or six different conversations with the client, we talked about the

guidelines. And my belief is that I would have shown him the book while I was

using my legal pad, simply because that’s what I do each day of the year.

Id. at 120-22. Mr. Taylor further explained:

[T]he term 28 years in any conversation with my client never came from my

mouth. There was no basis for it to be 28 years. It doesn’t equate to anything. I

think the statutes are 20....I don’t know where the 28 years would have come from

or why anybody would have thought 28 years. He and I never had a conversation

anywhere close to his exposure being anywhere near 28 years in any of the

conversations that we had. We’re talking in terms of months, maybe a case that

he’d say what does that mean, 11 years, 12 years, 14 years and get a third off,

eight years or nine years. It was 28 years never entered a conversation that I had

with my client.

* * *

The only thing I can tell you is that that day and the day before and the week

leading up to the case, his wife had been over. She was from Colombia and he

had another good friend of his. We were talking in terms of 11, 12, 13 years, less

any kind of cooperation and/or breaks we could get through a plea and getting the

three points off. That’s all I can tell you. And it was all done in months, so it

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never got to 28 years. I don’t know where the term came from.

Id. at 123-24.

Mr. Taylor concluded: “My orders were to go to trial, notwithstanding my explanations

to the client about his other options, including plea straight up, plea cooperate.” Id. at 124-25.

Shortly after this hearing, Defendant moved for the issuance of a subpoena for

Christopher Faught and for further evidentiary hearing. Doc. 282. According to Defendant,

testimony from Defendant’s brother “is pertinent and material to the issue of what Tod Faught

understood his putative sentence would be pursuant to a plea agreement” and is admissible to

show Defendant’s state of mind. Id. If subpoenaed, Christopher Faught would testify as

follows:

that he recalls that on the morning of trial, before jury selection, the judge

directed the parties to attempt to negotiate a plea. The defendants and their

respective counsel closeted themselves in a conference room. Each defendant

spoke with his counsel outside the hearing of the other. Christopher Faught

recalls that the prosecution offered him a substantially reduced sentence if both he

and his brother entered pleas; if he alone pled, he would not benefit as much. Tod

Faught rejected the plea offer. After the unsuccessful negotiation session ended,

Tod and Christopher Faught walked out of the room together, whereupon Tod

Faught told Christopher Faught that he rejected the plea bargain because he would

be required to serve some “twenty years.”

Id.

Having carefully considered the matter, the Court finds that Defendant has not carried his

burden of persuasion on this final claim of ineffectiveness. The parties agree that the Court

directed them to meet on the first day of trial immediately before voir dire, and while neither Mr.

Hensel nor Mr. Taylor had any independent recollection of the number 28 being mentioned

during that meeting, they acknowledged that it was certainly possible that Mr. Hensel, after

calculating Defendant’s Guidelines range himself, may have announced to the group that it was

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6

The Court does not find it even minimally conceivable that counsel promised Defendant

he would “walk out a free man.” After all, Defendant had already admitted his involvement in

money laundering to the agents before Mr. Taylor was even hired, and the fact that counsel

chose vigorously and repeatedly to attack the admission of the Rule 801 evidence does not

support Defendant’s argument.

7

The Sentencing Guidelines speak in terms of months, not years, and given counsel’s

experience with the Guidelines, there is no doubt in this Court’s mind that counsel would have

explained them to Defendant in those terms.

Case No: 5:98CR30-SPM/AK

“28,” as Defendant stated in his affidavit, or a “Level 28,” as Defendant testified at the hearing.

With that said, however, the Court does not find it credible that over the course of a

year’s representation, Mr. Taylor, who has been practicing criminal law in federal court for the

entire time that the Sentencing Guidelines have been in effect, never once reviewed Defendant’s

potential sentencing exposure with him. Instead, Mr. Taylor’s demeanor on the stand, his

adamance regarding matters which he discusses and never discusses with a client, and the

manner in which he handles the Guidelines discussions with a client convince the Court that he

certainly understands how the Guidelines operate, their importance, and the various factors that

might affect the final calculation, that he has, over the course of years, established a standard

procedure for explaining them and their operation to his client, and that he would never promise

his client a particular outcome in any proceeding.

Because the Court does not believe that counsel neglected the Guidelines discussion with

the instant Defendant or that he promised Defendant he would not be convicted,6

 it cannot find

Defendant’s testimony to the contrary credible. Instead, the Court finds the more plausible chain

of events to have been these: Counsel reviewed Defendant’s sentencing exposure with him in

terms of months7

 before converting the term into years, but he never told Defendant that his

sentencing exposure was twenty-eight years, since, under no circumstances, was Defendant ever

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8

The Court accepts as true Defendant’s representation of what his brother would say if

this Court resumed the evidentiary hearing in this matter. With that said, then, further hearing is

not necessary.

Case No: 5:98CR30-SPM/AK

looking at a twenty-eight year term of imprisonment. After Mr. Hensel announced “28” or

“Level 28,” Defendant “blowed up,” immediately left the room, and did not wait for or request

further explanation, just as he testified. Without any basis in fact, Defendant jumped to the

conclusion that Mr. Hensel was referring to years when he mentioned the number “28,” a

conclusion Defendant later shared with his brother.8 As Defendant himself recognized, he

obviously made a mistake, did not ask counsel for further direction, and proceeded to trial. 

When counsel heard Mr. Hensel say “28” or “Level 28,” he would never himself have thought in

terms of years, and having already discussed these issues with his client, he would not have

suspected that Defendant was thinking in those terms either. Defendant had previously directed

counsel to go to trial, and Mr. Taylor followed his directions. The Government never offered

Defendant a plea and cooperation agreement, and thus, counsel never had a plea offer to discuss

with Defendant.

In light of all of the circumstances, the Court finds that Defendant has not established that

Mr. Taylor neglected any of his duties towards him or that no competent attorney would have

taken the action Mr. Taylor took in this case.

CONCLUSION

Having carefully considered the matter, the Court finds that none of Defendant’s claims

have merit, and thus, it respectfully RECOMMENDS:

That the motion to vacate, Doc. 173, be DENIED;

That the ex parte application for issuance of subpoena and further evidentiary hearing,

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Case No: 5:98CR30-SPM/AK

Doc. 282, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 30th day of March, 2007.

 s/A. Kornblum 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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