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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA, 

v. Case No. 5:03cr33/MCR/CJK

 5:09cv135/MCR/CJK

DAVID E. MARTINELLI,

Defendant.

ORDER AND 

SECOND AMENDED REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s amended motion to vacate, set

aside, or correct sentence (doc. 362), filed pursuant to 28 U.S.C. § 2255, and motion

to amend “in relation back” (doc. 392). The matter is referred to the undersigned

magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and

NORTHERN DISTRICT OF FLORIDA LOCAL RULE 72.2(B). Having conducted a careful

review of the record and the arguments presented, the undersigned concludes that the

motions should be denied.

FACTUAL & PROCEDURAL BACKGROUND

The defendant, David Martinelli, was charged with conspiring to launder

money, in violation of 18 U.S.C. § 1956(a)(1) and (h). (Doc. 1) Defendant’s

conviction stems from his apparent involvement in a mail fraud and money

laundering conspiracy. In 1995, defendant and two associates formed Global

Business Services, Inc. (GBS), “a corporation purportedly designed to facilitate the

sale of small businesses by putting hopeful sellers in contact with willing buyers.” 

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See United States v. Martinelli, 454 F.3d 1300, 1303 (11th Cir. 2006). “GBS would

randomly send letters to small-business owners, attempting to locate those who were

interested in selling their business.” Id. “When a potential seller responded, a GBS

representative wouldmeet with the client and gather information about the business.” 

Id. “The representative would explain that GBS placed generic advertising in

national publications representing that it had businesses for sale; when interested

buyers responded, GBS would attempt to match them with compatible sellers.” Id.

“A seller was required to sign a contract whereby it agreed to pay GBS a

certain percentage of the total value of the business in exchange for the advertising.” 

Id. Donald Cox, the original President and CEO of GBS, testified at trial for the

government, explaining that “clients had to immediately pay a small percentage,

‘around 2 percent,’ and then an additional ‘5 to 7 percent’ if the business actually

sold.” Id. “The government also presented evidence of initial fees ranging from

$1,900 to $16,900.” Id. “The contracts stated that GBS would provide advertising

until the business sold, but did not guarantee an actual sale.” Id. “Mr. Cox stayed

with GBS for slightly under twelve months and testified that, during this time, GBS

did not facilitate the sale of a single business.” Id. 

Cox also testified concerning numerous intentional and material

misrepresentations made by GBS, stating that “GBS sent direct mailings to

small-business owners with testimonials from allegedly satisfied customers

describing how GBS helped to sell their businesses.” Id. In fact, there were no such

customers: “the people pictured in the representations were actually Martinelli and

other GBS employees.” See id. Cox, moreover, described how “GBS represented in

its mailings to putative sellers that all of its buyers were prequalified to ensure they

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had the financial ability to purchase a business when, in fact, such screening was

discontinued soon after GBS wasformed.” Id. at 1303-04. Further, Cox testified that

“GBS touted that it used a sophisticated computer matching system to bring together

compatible buyers and sellers.” Id. at 1304. “Actually, at least initially, GBS had no

computers at all, and all buyers and sellers were manually logged in record books.” 

Id.

After a three-day jury trial, defendant was convicted as charged on April 26,

2004. (Doc. 155) In a special forfeiture verdict, the jury found that $4.4 million was

involved in and traceable to property involved in the money laundering violation. 

(Doc. 157) As directed by U.S. SENTENCING GUIDELINES MANUAL § 1B1.11, a

presentence report (PSR) was prepared using the 2000 version of the manual. (PSR

para. 17) After applying § 2S1.1(a)(1), the court determined that Martinelli registered

a level 23 base offense, because he had been convicted of violating § 1956(a)(1) and

(h). (PSR para. 18) The sentencing court increased the offense level to 35 to reflect

defendant’s leadership role in the conspiracy, as well as a $6.5 million loss. (PSR

para. 19, 21, 27) On August 2, 2004, the District Court sentenced defendant to a term

of 210 months in prison, a $150,000 fine, a $4.4 million criminal forfeiture, and a

three-year period of supervised release. (Doc. 197) 

The United StatesCourt of Appeals for the EleventhCircuit(Eleventh Circuit)

affirmed defendant’s conviction, but remanded the case for resentencing in

accordance with United States v. Booker, 543 U.S. 220 (2005). See Martinelli, 454

F.3d at 1303. At the resentencing hearing, the court again sentenced defendant to a

term of 210 months in prison, using the same guideline calculations as those utilized

by the first sentencing court. Defendant appealed the second sentence, arguing that

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the evidence did not support the court’s finding that $6.1 million had been laundered

to promote the mail fraud scheme, that the court erroneously assessed a role

enhancement, and that the post-Booker sentence was unreasonable. The Eleventh

Circuit affirmed defendant’s sentence, denying a petition for rehearing as well. (Doc.

339) Following the Supreme Court’s decision in United States v. Santos, 553 U.S.

507 (2008), defendant filed a petition for writ of certiorari seeking review of the

second sentence. The Supreme Court declined to grant review. (Doc. 350) 

On April 27, 2009, defendant filed the instant amended motion to vacate, set

aside, or correct sentence (doc. 362) pursuant to 28 U.S.C. § 2255, alleging five

grounds he believes require that his conviction and sentence be vacated or modified. 

Defendant asserts counsel was ineffective for failing to object to (1) the use of the

2000 version of the U.S. SENTENCING GUIDELINES MANUAL; (2) the court ordered

forfeiture; and (3) the sentencing court’s failure to make findings regarding ability to

pay the fine. By extension, defendant alleges that the cumulative errors of counsel

constitute ineffective assistance. Lastly, defendant argues that his sentence, in light

of Santos, should have been calculated only in consideration of the “profits” derived

from the mail fraud scheme. Defendant requests that this court vacate his sentence

and remand for resentencing under the 2003 version of the U.S. SENTENCING

GUIDELINES MANUAL, considering only the “profits” derived from the underlying

offense.

On December 14, 2010, defendant filed a “Motion to Amend § 2255 In

Relation Back Under Fed. R. Civ. P. 15(c)(1)(B)” (doc. 392). Defendant proposes

two additional claims, arguing first that the holding of Santosrendersinvalid both the

money laundering conviction and the jury’s forfeiture determination. Second,

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defendant asserts counsel was ineffective for failing to object to the forfeiture of

substitute assets, because, defendant contends, the government did not establish that

as a result of any act or omission of the defendant the money derived from the crime

was untraceable. (Doc. 392, 1) Conceding that the one-year limitation period

imposed on section 2255 movants had lapsed, defendant urges the court to consider

these newly asserted claims as dependent upon a common core of operative facts

uniting them with the original claims. (Doc. 392, 1) 

ANALYSIS

As a preliminary matter, the undersigned notes certain general rules applicable

in section 2255 proceedings following direct appeals, as well as the distinction

between review under section 2255 and direct appeal. “Generally speaking, an

available challenge to a criminal conviction or sentence must be advanced on direct

appeal or else it will be considered procedurally barred in a § 2255 proceeding.”

Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). “A ground of error is

usually ‘available’ on direct appeal when its merits can be reviewed without further

factual development.” Id. “A claim not raised on direct appeal is procedurally

defaulted unless the petitioner can establish cause and prejudice for his failure to

assert his claims on direct appeal.” McCoy v. United States, 266 F.3d 1245, 1258

(11th Cir. 2001). “Further, a § 2255 movant cannot argue as the causal basis for his

failure to advance an argument on direct appeal that the argument only became

known to the movant due to subsequent developments in the law.” Castro v. United

States, 248 F. Supp. 2d 1170, 1174 (S.D. Fla. 2003) (citing McCoy, 266 F.3d at

1258). 

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Regarding the important difference between a section 2255 collateral challenge

and direct review, “[i]t has long been settled law that an error that may justify reversal

on direct appeal will not necessarily support a collateral attack on a final judgment.” 

United States v. Addonizio, 442 U.S. 178, 184 (1979). Relief should be granted only

if the challenged sentence resulted from “a fundamental defect which inherently

results in a complete miscarriage of justice, [or] an omission inconsistent with the

rudimentary demands of fair procedure.” See Hill v. United States, 368 U.S. 424, 428

(1962).

“A convicted defendant’s claim that counsel’s assistance was so defective as to

require reversal of a conviction or death sentence has two components.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that

counsel’s performance was deficient[,]” which “requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. “Second, the defendant must show that the

deficient performance prejudiced the defense[,]” which “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id. In applying Strickland, the court may dispose of an

ineffective assistance claim if the defendant fails to carry his burden on either of the

two prongs. See 466 U.S. at 697.

At the outset the court must weigh the merits of defendant’s motion to amend

with relation back to the original pleading (doc. 392). Defendant does not dispute

that the one-year period of limitation applying to a motion under 28 U.S.C. § 2255

had already expired as of December 14, 2010, the date defendant filed the motion to

amend his amended section 2255 motion (which, for purposes of this analysis, is the

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“original” motion). The court therefore must determine whether defendant is entitled

to amend in relation back under FEDERAL RULE OF CIVIL PROCEDURE 15(c)(1)(B),

which provides that “[a]n amendment to a pleading relates back to the date of the

original pleading when . . . the amendment asserts a claim or defense that arose out

of the conduct, transaction, or occurrence set out—or attempted to be set out—in the

original pleading . . . .” See Davenport v. United States, 217 F.3d 1341, 1344 (11th

Cir. 2000) (“‘Relation back’ causes an otherwise untimely claim to be considered

timely by treating it as if it had been filed when the timely claims were filed.”). 

Interpreting the plain language of the rule, this Circuit has held that “for an

untimely § 2255 claim to ‘relate back’ under Rule 15(c), the untimely claim must

have more in common with the timely filed claim than the mere fact that they arose

out of the same trial and sentencing proceedings.” Id. “Instead, in order to relate

back, the untimely claim must have arisen from the ‘same set of facts’ as the timely

filed claim, not from separate conduct or a separate occurrence in ‘both time and

type.’” Id. (quoting United States v. Pittman, 209 F.3d 314 (4th Cir. 2000); United

States v. Duffus, 174 F.3d 333 (3d Cir. 1999); United States v. Craycraft, 167 F.3d

451 (8th Cir. 1999)). “The critical issue in Rule 15(c) determinations is whether the

original complaint gave notice to the defendant of the claim now being asserted.”

Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).

Guided by the foregoing precedent and the decisions discussed in Davenport,

the court concludes that defendant’s new claims did not arise from the same set of

facts as his original claims, but arose from separate conduct and occurrences in type. 

In his original section 2255 motion (doc. 362), defendant claimed, inter alia, that his

sentence, in light of Santos, should have been calculated only in consideration of the

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“profits” derived fromthe mail fraud scheme. On this basis, defendant requested that

this court vacate his sentence and remand for resentencing, considering only the

“profits” derived from the underlying offense. Defendant also originally claimed

counsel was ineffective for not objecting to the court ordered forfeiture and

petitioning for an order of restitution in its place. In contrast, defendant’s newly

asserted claims are (1) that the Santos decision invalidates the money laundering

conviction completely, as well as the jury’s forfeiture determination, and (2) that

counsel was ineffective for failing to object to the forfeiture of substitute assets in

particular. 

Although defendant’s original section 2255 motion (doc. 362) challenges the

legality of his sentence after Santos, his original motion does not question the

integrity of the underlying money laundering conviction, and only challenges the

forfeiture order on the grounds that he would have preferred restitution. The original

Santos claim thus concerns the proper calculation of defendant’s sentence, whereas

the proposed amended claims address the continuing viability, vel non, of the

conviction and forfeiture order. Regarding the new claim asserting counsel’s failure

to object to the forfeiture of substitute assets, defendant’s original section 2255

motion contains no mention of any such challenge. In fact, defendant originally

claimed prejudice from counsel’s failure to request a restitution penalty in place of

forfeiture, citing the government’s resulting discretion to access the substitute asset

provision of 18 U.S.C. § 982(a)(1). In so arguing, defendant expressed awareness of

the eventuality he now complains of. He therefore could have and should have raised

any infirmities with the seizure of substitute assets but did not. The court is

persuaded that the original complaint did not give notice to the government of the

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new claims now being asserted, see Moore, 989 F.2d at 1131, and that the new claims

do not arise out of the same set of facts as defendant’s original claims, but arose from

separate conduct and occurrences in type, if not in time. See Davenport, 217 F.3d at

1344. Accordingly, the court concludes that the motion to amend in relation back

(doc. 392) should be denied. 

Having determined that defendant’s proposed new claims will not be

considered, the court turns next to the timely amended section 2255 motion (doc.

362). Defendant alleges first that counsel, who was the same for trial and both

appeals, rendered ineffective assistance by failing to object to the use of the 2000

version of the U.S. SENTENCING GUIDELINES MANUAL (Guidelines). Defendant

believes that use of the 2003 Guidelines would have yielded a lower total offense

level than that computed under the 2000 version. Defendant argues that application

of the 2000 version of section 2S1.1, which was amended in 2001, resulted in a total

offense level of 35. Had the probation officer applied the 2003 Guidelines, defendant

concludes, the total offense level would have been calculated at a 31. (Doc. 362, 16-

17)

As a general rule, “[t]he court shall use the Guidelines Manual in effect on the

date that the defendant is sentenced.” U.S. SENTENCING GUIDELINES MANUAL §

1B1.11(a) (2003). But “[i]f the court determines that use of the Guidelines Manual

in effect on the date that the defendant is sentenced would violate the ex post facto

clause of the United States Constitution, the court shall use the Guidelines Manual

in effect on the date that the offense of conviction was committed.” Id. §

1B1.11(b)(1). Because defendant was sentenced in August 2004, the court would

have applied the 2003 Guidelines, unless such application would have violated the

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ex post facto clause. In fact, the probation officer who prepared the presentence

report and calculated the total offense level testified that use of the 2003 Guidelines

would violate the ex post facto clause. Applying the 2003 Guidelines, the probation

officer determined, would result in a total offense level of 39; under the previous

version, defendant’s total offense level was only 35. (PSR para. 19, 21, 27) 

Defendant plainly cannot establish that counsel’s failure to object to the use of

the 2000 Guidelines worked any prejudice to a fair or reliable outcome of the case. 

Granted, the outcome very well could have differed had defense counsel imposed the

objection defendant now urges, and the court relied on the 2003 Guidelines. The

record, however, reveals that such a tactic would not have redounded to defendant’s

benefit. The discrepancy between the total offense levels under the respective

Guidelines—35 under the 2000 manual and 39 under the subsequent

version—explains the court’s reliance on the earlier sentencing guidelines. 

Defendant scored a more lenient total offense level than he otherwise would have

under the 2003 Guidelines for which he now argues. Martinelli thus fails to

demonstrate the requisite prejudice to maintain a successful claim of ineffective

assistance of counsel. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (requiring

defendant to establish that “counsel’s errors are so serious as to deprive him of a trial

whose result is unfair or unreliable, not merely that the outcome would have been

different”) (citations omitted).

Defendant also argues that an amendment to the 2003 Guidelines Manual

would have yielded a lesser upward adjustment for the value of the money involved

in the offense. “The pre-2001 amendment version of § 2S1.1 contained a graduated

table that provided for an increase in the base offense level if the ‘value of the funds

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exceeded $100,000.’” United States v. Paley, 442 F.3d 1273, 1276 (11th Cir. 2006). 

In 2001, however, section 2S1.1 was amended. “The amended version . . . no longer

uses ‘the value of the funds’ as a specific offense characteristic.” Id. “Instead, §

2S1.1 now provides that the ‘value of the laundered funds’ should be used in

determining the offense level.” Id. (citing U.S. SENTENCING GUIDELINES MANUAL

§ 2S1.1(a)(2)(2004)). The commentary to the amended provision defines “laundered

funds” to mean “the property, funds, or monetary instrument involved in the

transaction, financial transaction, monetary transaction, transportation, transfer, or

transmission in violation of” the money laundering statute. See Paley, 442 F.3d at

1276 (citing U.S. SENTENCING GUIDELINES MANUAL § 2S1.1 cmt. n.1).

As the government points out, though, defendant has overlooked that section

2S1.1(b)(2)(B) (providing for two-level offense enhancement for conviction under

18 U.S.C. § 1956) and section 2S1.1(b)(3) (providing for two-level offense

enhancement for offense involving sophisticated money laundering) both may have

applied under the 2003 Guidelines Manual. Defendant’s calculations also fail to

account for the operation of section 2B1.1(b)(8), which provides for an offense

enhancement of two levels for certain types of misrepresentations, and section

2B1.1(b)(2)(C), which provides for an enhancement of six levels where the

government can establish that the subject offense involved more than 250 victims. 

The affidavit filed in this matter by defense counsel (doc. 379-2) provides a

persuasive (and factually unrebutted) showing that when properly calculated, the

guideline sentence as determined by reference to the 2000 manual was the more

advantageous of the options to defendant. Accordingly, defendant cannot satisfy the

prejudice prong of the Strickland analysis, necessary to gain ultimate relief on this

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claim of ineffective assistance of counsel. See 466 U.S. at 687 (requiring a showing

that the error was so serious as to deprive defendant of a “fair trial”). 

For his second point, defendant contends that counsel rendered ineffective

assistance by failing to object to the order of forfeiture. Defendant urges that

restitution would have been the appropriate penalty pursuant to 18 U.S.C. § 3663A,

which provides for mandatory restitution to the victims of certain crimes. Martinelli

asserts that counsel’s failure to secure an order of restitution, rather than forfeiture,

allowed the government to access the substitute asset provision of 18 U.S.C. §

982(a)(1), which provides for the seizure of “any property, real or personal, involved

in [the money laundering] offense, or any property traceable to such property.” The

government, according to defendant, was thereby able to seize property owned by

Martinelli’s daughter and wife, because money obtained through the supposed

business venture had been reinvested in the business. (Doc. 362, 20-21)

Defendant, without supporting legal authority, surmises he had an option

between forfeiture or paying restitution. As defense counsel’s affidavit recognizes,

however, the indictment charged a forfeiture count, the jury returned a special

forfeiture verdict against defendant, and the sentencing court ordered a criminal

forfeiture. Martinelli cites no authority to support the notion that a defendant, upon

sentencing, may choose either restitution or an order of forfeiture. I am unable to

verify the legal viability of such a proposition. Because defendant cannot

demonstrate that counsel acted unreasonably in declining to raise the forfeiture issue

at trial or on appeal, this claim of ineffective assistance of counsel must fail. See

Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983) (“Even if in retrospect

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the strategy appears to have been wrong, the decision will be held ineffective only if

it was so patently unreasonable that no competent attorney would have chosen it.”).

Defendant argues next that counsel was ineffective for failing to raise on

appeal the sentencing court’s failure to make findings regarding Martinelli’s ability

to pay a fine. Citing 18 U.S.C. § 3572, defendant maintains that the statute requires

the court, prior to imposing a fine, to make findings that the defendant has the ability,

or in the future will become able, to pay the contemplated penalty. Despite his

purported multiple requests that appellate counsel address the issue, defendant

complains that counsel declined to brief the issue on appeal. (Doc. 362, 13-14)

“The Sentencing Guidelines require courtsto ‘impose a fine in all cases, except

where the defendant establishes that he is unable to pay and is not likely to become

able to pay any fine.’” United States v. Hernandez, 160 F.3d 661, 665 (11th Cir.

1998) (quoting U.S.SENTENCING GUIDELINESMANUAL § 5E1.2(a)). “It is clear from

section 5E1.2 that the burden is on the defendant to prove an inability to pay the

fine.” Id. “If the sentencing court concludes that a fine is appropriate, the Guidelines

Manual lists several factors itshould consider in determining the amount ofthe fine.” 

Id. “Circuits are split on whether a court must make specific factual findings with

respect to these factors.” Id. (citing United States v. Lombardo, 35 F.3d 526, 529

(11th Cir.1994)). “While some circuits require that the district court make specific

findings,” the Eleventh Circuit does “not require the sentencing court to make

specific findings of fact with respect to the Sentencing Guideline factors as long as

‘the record reflect[s] the district court’s consideration of the pertinent factors prior to

imposing the fine.’” Id. at 665-66 (quoting Lombardo, 35 F.3d at 530). “[W]hen the

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record provides no guidance as to the court’s reason(s) for imposing a fine, we must

remand the case so that the necessary factual findings can be made.” Id. at 666.

Despite counsel’s assurances to the probation officer that defendant would

submit a financial statement to aid the preparation of a presentence report, Martinelli

did not do so. (PSR para. 47) The probation officer thus indicated that he could not

assess whether defendant had the ability to satisfy the financial obligations arising

from his prosecution. (PSR para. 49) The sentencing court ruled specifically that the

burden fell on defendant to prove inability to pay. (Doc. 239, 49-50) Recalling

evidence that much of the money taken in by GBS had been spent to furnish an

opulent lifestyle for defendant and his family, as well as defendant’s representations

that he could procure $500,000 in bond monies, the court imposed a $150,000 fine. 

(Doc. 239, 51-52)

In an affidavit attached to the government’s response, one of defendant’s

lawyers, Janice Singer-Capek, explainsthe reasoning behind the decision to withhold

a financial statement. According to Singer-Capek, defendant agreed with his

attorneys that he would not provide a financial statement, to avoid scrutiny over

assets belonging to his family. Singer-Capek noted the apparent belief of the

government and court that defendant wasthe true owner of certain assets and entities

owned or controlled by defendant’s daughter. (Doc. 379-3, para. 7) Citing the

treatment of defendant’s wife, who received an obstruction of justice enhancement

to her sentence for providing what the government concluded was a fraudulent

financialstatement, Singer-Capek professed her belief that defendant, too, could face

an increased sentence under the U.S. SENTENCING GUIDELINES MANUAL should

Martinelli fail to provide a financial statement including the assets and entities in his

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daughter’s name. Singer-Capek asserted thatshe discussed such considerations with

defendant, who agreed that no statement should be provided. (Doc. 379-3, para. 7)

Having failed to provide a financial statement, defendant could not satisfy his

burden to prove an inability to pay the fine. See Hernandez, 160 F.3d at 665. Nor

can defendant establish that counsel’s decision to withhold the financial statement

was not reasonable. Apparently unwilling to concede ownership of various assets,

defendant faced the same sort of sentence enhancement as that visited upon his wife

formaking intentional misrepresentations concerning the family’s financialstanding. 

In this posture, defense counsel made a reasonable, strategic determination, possibly 

insulating her client from additional time in prison. Accordingly, the undersigned

does not find that counsel’s performance was deficient in this regard. See Gordon v.

United States, 519 F.3d 1291, 1301 (11th Cir. 2008) (citing the “‘strong presumption

that counsel’s performance wasreasonable and adequate’” and requiring a petitioner

seeking to overcome the presumption to “‘establish that no competent counsel would

have taken the action that his counsel did take’”) (citations omitted).

Defendant also complains that appellate counsel should have alleged error in

the imposition of the fine. Defendant asserts that he specifically requested counsel

to raise this issue on appeal, citing “numerous phone calls and letters.” (Doc. 362,

14) Appellate counsel responds that he did not find pursuing an appeal of the fine

strategically prudent, “considering the meritorious issues . . . raised in the initial

appeal.” (Doc. 379-2, para. 5) As explained, defendant’s challenge to the imposition

of a fine stood virtually no chance at success. On the advice of counsel, provided in

the face of his own insistence to not include certain family assets, defendant declined

to provide the evidence necessary to prove his alleged inability to pay a fine. Because

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defendant was not likely to prevail on this issue on appeal, counsel acted reasonably

to forego this point and focus the court’s attention on issues of arguable merit. See

Shere v. Secy, Fla. Dep’t of Corr., 537 F.3d 1304, 1311 (11th Cir. 2008) (agreeing

that “appellate counsel is not ineffective for failing to raise a meritless issue on

appeal”); Ladd v. Jones, 864 F.2d 108, 110 (11th Cir. 1989) (“[S]ince these claims

were meritless, it was clearly not ineffective for counsel not to pursue them.”).

Defendant next asserts that the additional, cumulative errors of counsel

constitute ineffective assistance. The enumerated errors noted by defendant are: (1)

counsel failed to object to, or raise on appeal, leading questions posed by the

government; (2) counsel failed to call witnesses or present evidence on Martinelli’s

behalf; (3) appellate counsel failed to raise the denial of a request for bifurcated

verdict from the jury in the forfeiture proceedings; (4) counsel failed to object to, or

raise on appeal, the sentencing court’s consideration of conduct not relevant to the

charged offense; and (5) counsel failed to object to the court’s construction of the

term “proceeds,” as it pertains to money laundering under 18 U.S.C. § 1956. (Doc. 

362, 24) Defendant believes that the foregoing errors, in combination, worked to

deprive him of the legal assistance guaranteed by the Sixth Amendment.

Generally speaking, defendant’s allegations of cumulative error may be

dismissed as conclusory and unsupported by reference or citation to the record. 

Defendant contends that counsel erred by not objecting to the government’s leading

questions, but does not identify the substance of the alleged questions or where in the

record they may be found. Such vague, bare assertions do not allow this court to

discern either the deficient performance of counsel or prejudice to the outcome of

defendant’s case necessary to prevail under Strickland. See Wilson v. United States,

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962 F.2d 996, 998 (11th Cir. 1992) (“Conclusory allegations of ineffective assistance

are insufficient.” (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir.

1991))). Similarly, defendant argues that counsel failed to call witnesses or present

evidence on his behalf, but does not develop the substance of the omitted evidence

or its importance in the greater context of the case. Accordingly, defendant does not

allow this court to afford relief on a claim of ineffective assistance of counsel. See

Powell v. Allen, 602 F.2d 1263, 1275 (11th Cir. 2010) (denying relief on ineffective

assistance of counsel claim where defendant asserted that trial counsel should have

obtained testimony of teachers or school records, because “Powell did not allege . .

. what any such records would show other than to make the conclusory allegation that

such records would have revealed ‘numerous mitigating circumstances’”). Further,

defendant asserts that counsel failed to object to, or raise on appeal, the sentencing

court’s consideration of conduct not relevant to the charged offense. Again,

defendant declines to provide specifics or make any showing of prejudice to the

outcome of the matter. Because defendant failed to provide factual substantiation for

this speculative assertion, the claim must fail. See id; Wilson v. United States, 962

F.2d at 998. 

In his claim of cumulative error, defendant also urges that appellate counsel

failed to raise the denial of a request for bifurcated verdict from the jury in the

forfeiture proceedings. In a sworn affidavit submitted in conjunction with the

government’s response, counsel principally responsible for defendant’s appeals could

cite “no provision of law that requires the court to submit special interrogatories to

the jury on the issue of ‘promotion’ versus ‘concealment’ in a money laundering

case.” (Doc. 379-2, 4) Having reviewed the relevant case law, the undersigned is of

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the opinion that appellate counsel is correct. See, e.g., United States v. Felts, 579

F.3d 1341, 1344 (11th Cir. 2009) (“[I]t is permissible for district courts to submit

‘promotional money laundering’ and ‘concealment money laundering’ as a single

charge on a general verdict form.”). In light of such decisions, defendant cannot

establish that counsel’s performance was inadequate in this regard. See Shere, 537

F.3d at 1311 (agreeing that “appellate counsel is not ineffective for failing to raise a

meritless issue on appeal”); Ladd, 864 F.2d at 110 (“[S]ince these claims were

meritless, it was clearly not ineffective for counsel not to pursue them.”). As will be

shown, defendant’s claim that counsel was deficient in failing to object to the court’s

construction of the term “proceeds,” as it pertains to money laundering under 18

U.S.C. § 1956, is also without merit. In sum, defendant’s claim of cumulative error 

affords no basis for relief.

For his final point, defendant argues that his sentence for conspiring to launder

money must be vacated in light of the Supreme Court’s recent decision in United

States v. Santos, 553 U.S. 507, 509-14 (2008). Defendant cites Santos for the

proposition that the government, having leveled a charge of money laundering under

18 U.S.C. § 1956(a)(1), must prove that the supposedly illicit transactions involved

the “profits,” rather than the “gross receipts,” derived from the underlying offense (in

this instance, mail fraud). Defendant contends that he must be resentenced, because

the court impermissibly sentenced him in consideration of the gross receipts

generated by the mail fraud scheme. (Doc. 362, 24)

Defendant simply misreads the holding of Santos, which is especially

restrictive in scope. “The narrow holding in Santos, at most, was that the gross

receipts of an unlicensed gambling operation were not ‘proceeds’ under section 1956

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. . . .” United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009). Similarly,

in King v. Keller, the Eleventh Circuit held that Santos did not apply where the

defendant’s “money laundering convictions were based on his participation in ‘a cash

rental ‘ponzischeme’ and a related treasury bill leasing program.’” See 372 F. App’x

70, 73 (11th Cir. 2010). One finds no paucity of other cases that have rejected the

application of the Santos profits test to money laundering offenses stemming from

crimes other than gambling. See, e.g., United States v. Jennings, 599 F.3d 1241, 1252

(11th Cir. 2010) (rejecting defendant’s claim that, because the government failed to

prove money at issue was profits of illegal activity, he could not be convicted of

money laundering in connection with fraud and conspiracy convictions arising from

scheme to sell fraudulent workers’ compensation insurance); Mignott v. United

States,Nos. 09-60805-CIV, 04-60186-CR-UNGARO, 2010 WL 2035105, at *8 (S.D.

Fla. May 3, 2010) (denying relief “because the limited holding in Santos does not

apply to Mignott’s conviction for conspiring to launder money which is the proceeds

of Medicare fraud”); United States v. Morris,No. 6:09-16-S-DCR, 2010 WL 1049936

(E.D. Ky. Mar. 19, 2010) (holding Santos inapplicable where the predicate offenses

were bribery and extortion); United States v. Poulin, 690 F. Supp. 2d 415 (E.D. Va.

2010) (holding that Santos does not apply to health care fraud offenses); Arnaiz v.

Hickey, No. CV208-97, 2009 WL 2971638, *3 (S.D. Ga. Sept. 16, 2009) (limiting

Santos to gambling cases and declining to apply profits test where the offense

involves laundering of receipts of Medicare fraud); United States v. Prince, 627 F.

Supp. 2d 863, 868-72 (W.D. Tenn. 2008) (limiting Santos to gambling cases and

declining to apply profits test where the offense involves laundering of receipts of

health care fraud). Because defendant is not accused of laundering gross receipts

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derived froman unlicensed gambling operation, Santosis unavailing in thisinstance.1

See Demarest, 570 F.3d at 1242. 

Pursuant to 28 U.S.C. § 2255(b), this court must conduct an evidentiary hearing

upon defendant’s motion to vacate sentence, “[u]nless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief . . . .” 

In support of such motion, however, defendant must proffer credible and specific

evidence entitling him to relief. See Drew v. Dep’t of Corr., 297 F.3d 1278, 1293

(11th Cir. 2002) (referring to “our clear precedent establishing that such allegations

are not enough to warrant an evidentiary hearing in the absence of any specific factual

proffer or evidentiary support”); Hill v. Moore, 175 F.3d 915, 922 (11th Cir. 1999)

(“To be entitled to an evidentiary hearing on this matter [an ineffective assistance of

counsel claim], petitioner must proffer evidence that, if true, would entitle him to

relief.”). Here, defendant’s claims are without merit or otherwise refuted by the

record. This court may therefore deny the requested relief without an evidentiary

hearing. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner

is not entitled to an evidentiary hearing . . . when his claims are merely conclusory

 The foregoing analysis demonstrates that Santos is not applicable to defendant’s conduct 1

and thus offers no substantive legal basis for relief. In any event, defendant’s Santos claim

would appear to be barred, because defendant did not raise the claim on direct review. See Mills,

36 F.3d at 1055 (“Generally speaking, an available challenge to a criminal conviction or sentence

must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255

proceeding.”); Castro, 248 F. Supp. 2d at 1174 (“[A] § 2255 movant cannot argue as the causal

basis for his failure to advance an argument on direct appeal that the argument only became

known to the movant due to subsequent developments in the law.”). Nevertheless, because the

United States has not raised the procedural bar, the undersigned will rely upon the substantive

analysis of the claim, as set forth above, to deny relief on this issue.

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allegations unsupported by specifics or contentions that in the face of the record are

wholly incredible.”) (quotation marks omitted). 

Accordingly, it is ORDERED:

Defendant’s motion to amend in relation back (doc. 392) is DENIED.

And it is respectfully RECOMMENDED:

That the amended motion to vacate, set aside, or correct sentence (doc. 362)

pursuant to 28 U.S.C. § 2255 be DENIED. 

At Pensacola, Florida, this 30th day of November, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon the magistrate judge and all

other parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

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