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United States v. Brandveen

United States District Court, Eastern District of Virginia, Richmond Division

March 18, 2015

KIM JENKINS BRANDVEEN, Petitioner. Criminal No. 3:11CR149-HEH


Henry E. Hudson United States District Judge

Petitioner Kim Jenkins Brandveen ("Brandveen"), currently a federal inmate, [1]entered a plea of guilty on August 9, 2011 to Count One of the Indictment in this case, charging Tax Evasion, in violation of 26 U.S.C. § 7201. Her plea agreement (ECF No. 18), accompanied by an agreed statement of facts (ECF No. 19), provided for the dismissal of Count Two, alleging Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2). Brandveen was initially represented by the Federal Public Defender's Office.

Subsequently on September 28, 2011, the Federal Public Defender's Office moved to withdraw as counsel.[2] After granting the public defender's unopposed motion to withdraw, the Court appointed Diane Abato, Esquire to represent Brandveen and scheduled a hearing on Brandveen's Motion to Withdraw Guilty Plea (ECF No. 27), which was filed by her new counsel on October 13, 2011. Brandveen's motion was predicated on her contention that her plea was improvidently entered and that she was actually innocent of tax evasion. (Def.'s Mot. Withdraw Guilty Plea at 2-3.) After hearing extensive evidence, this Court issued a Memorandum Opinion on November 17, 2011, denying Brandveen's Motion to Withdraw Guilty Plea. (Mem. Op., ECF No. 37.)

The core contention in Brandveen's motion to withdraw her guilty plea was her belief that her obligation under the Internal Revenue Code, which formed the basis of the tax evasion count, was actually a penalty rather than a tax. In its Memorandum Opinion denying her Motion to Withdraw Guilty Plea, this Court found her claim lacked firm legal or factual footing. (Mem. Op. at 9.) In articulating its conclusion, this Court noted

With respect to the defendant's post-plea assertion of legal innocence, her evidence, at best, demonstrates a debatable, technical defense. Although the defendant offers a number of cases and IRS rulings characterizing the payment allegedly evaded as a penalty rather than tax, none squarely address the issue in the context of a violation of 28 U.S.C. § 7101. While the defendant's position may have some arguable support in a civil context, its viability as a defense in a criminal case is less clear.


On December 22, 2011, following the preparation of a Presentence Investigation Report, which was filed without objection, the Court sentenced Brandveen to sixty months imprisonment followed by three years of supervised release. By separate Order entered January 31, 2012 (ECF No. 63), this Court provided a detailed calculation of Brandveen's restitution obligation. After reviewing the record evidence, this Court decided that Brandveen owed restitution to the Internal Revenue Service in the amount of $2, 122, 897.82.

Brandveen timely filed a notice of appeal to the United States Court of Appeals for the Fourth Circuit, which affirmed this Court's judgment in an unpublished opinion on August 15, 2012. See United States v. Brandveen, 492 F.App'x. 424 (4th Cir. 2012) (unpublished). In its Opinion, the Fourth Circuit addressed both the district court's denial of her motion to withdraw her guilty plea and the calculation of the amount of restitution ordered, stating:

For the reasons that follow, we conclude that the district court did not abuse its discretion in denying Brandveen's motion to withdraw her guilty plea, and thus we affirm the criminal judgment. And, because we agree with the Government that Brandveen's appeal of the restitution order is foreclosed by the valid appeal waiver set forth in her plea agreement, we dismiss her appeal of that order.

Id. at 425.

As a subsidiary issue, in addressing the denial of Brandveen's motion to withdraw her guilty plea, the Fourth Circuit also touched on Brandveen's argument that her attorney, a federal public defender, employed abusive and coercive tactics to induce Brandveen to involuntarily plead guilty. The Fourth Circuit began its analysis by stressing that it "closely scrutinizes the Fed. R. Crim. P. 11 colloquy, and if properly conducted, a strong presumption that the plea is final and binding attaches." Id. (citing United States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012)) (internal quotation marks omitted). Furthermore, the appellate court noted that Brandveen conceded in her own pleadings that her claim of coercion was entirely inconsistent with her sworn representations during the Rule 11 hearing. Brandveen, 492 F.App'x. at 425. Finally, after emphasizing that the district court conducted a comprehensive Rule 11 colloquy and properly applied the six-factor analysis prescribed by United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), the Fourth Circuit concluded that "we discern no abuse of discretion in the court's weighing of the Moore factors or the resulting denial of Brandveen's motion to withdraw her guilty plea. We thus affirm the criminal judgment." Brandveen, 492 F.App'x. at 426.

Turning next to the calculation of Brandveen's restitution obligation, the Fourth Circuit found this argument equally unavailing. The court concluded that under the terms of her plea agreement, Brandveen had validly waived her right to appeal this issue. In articulating its opinion, the Fourth Circuit stated that: "[t]he language of the plea agreement is clear and unambiguous ... [t]he [trial] court also discussed the scope of the appeal waiver with Brandveen. We thus hold that the waiver is valid and enforceable as it was knowingly and voluntarily accepted." Id. at 427 (citation omitted). In conclusion, the court held that "because the restitution award was within the scope of the district court's authority, the appellate challenge to the amount of that award was within the ambit of the appeal waiver." Id.

In the immediate Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("§ 2255 Petition, " ECF No. 74), which was timely filed, Brandveen resurrects her challenge to the district court's denial of her motion to withdraw her guilty plea and its calculation of the amount of restitution due to the Internal Revenue Service. Because these issues were raised and considered on direct appeal, they cannot be relitigated in a § 2255 motion. See United States v. Under, 552 F.3d 391, 397 (4th Cir. 2009); see also Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) ("Boeckenhaupt will not be allowed to recast, under the guise of collateral attack, questions fully considered ... on direct appeal.").

Brandveen also engrafts an additional claim of ineffective assistance of counsel. This claim, in essence, recasts elements of her former motion to withdraw guilty plea into a separate and independent claim. According to Brandveen, her initial trial counsel, an Assistant Federal Public Defender, used inappropriate pressure tactics, failed to inform her of technical legal defenses, and coached her to answer questions untruthfully during her plea hearing. (ยง 2255 Pet. at 3.) As discussed above, ...

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