Brennerman v. United States

Background

Raheem J. Brennerman, who was incarcerated and represented himself, filed an omnibus motion seeking to vacate his convictions and sentence, recusal of the judge, and the return of personal property. He also requested a stay of enforcement of the judgment and release on bail while the motion was pending.

A jury had found Brennerman guilty of conspiracy to commit bank and wire fraud, bank fraud, wire fraud, and visa fraud. The court sentenced him to 144 months’ imprisonment, ordered restitution of $5,264,176.19, and later imposed a $4,400,000 forfeiture money judgment. The court also ordered the forfeiture of two luxury watches as substitute assets after finding that the government had been unable, despite due diligence, to locate or collect assets traceable to the offenses.

The appeals court affirmed the amended judgment and rejected Brennerman’s challenges to the sufficiency of the evidence and to the government’s handling of the Industrial and Commercial Bank of China’s London branch underwriting file. The Supreme Court later denied review.

Habeas petition

The court treated part of Brennerman’s motion as a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence on specified constitutional, jurisdictional, or fundamental legal grounds. Brennerman argued that the evidence did not show that he intended to defraud an institution insured by the Federal Deposit Insurance Corporation, that the government’s failure to obtain and disclose the complete underwriting file violated his constitutional rights, and that his trial counsel was ineffective.

The court held that Brennerman was barred from relitigating the first two arguments because the appeals court had already considered and rejected them. The court noted that a § 2255 petition generally cannot be used to relitigate issues decided on direct appeal unless an intervening change in law would have changed the result. Brennerman did not identify such a change in law.

The court separately considered the ineffective-assistance claim on its merits. Under the two-part test for ineffective assistance, a defendant must show both that counsel’s performance fell below reasonable professional standards and that the deficiency probably affected the result.

The court found that the trial record contradicted Brennerman’s claim that counsel failed to argue that Morgan Stanley Smith Barney was not insured by the Federal Deposit Insurance Corporation. Counsel elicited testimony on that issue and argued it to the jury. The court also found that seeking the underwriting file would not have been objectively unreasonable because the file was outside the government’s disclosure obligations, the appeals court had found no sufficient indication that the documents existed, and the court lacked jurisdiction over the foreign bank identified by Brennerman.

As to the birth certificate, the court concluded that Brennerman had not shown a reasonable probability of a different result. Even if the document could have addressed one alleged false statement about his place of birth, the trial evidence showed other false statements in his visa application, including statements about prior visa applications, nationality, his position as a chief executive, his salary, and his company’s revenue. The court therefore denied the habeas petition.

Recusal

Brennerman sought recusal under 28 U.S.C. § 455(a), which requires a judge to step aside when the judge’s impartiality could reasonably be questioned. He claimed that the court had misrepresented and distorted the evidence.

The court denied recusal. It found that Brennerman offered no evidence supporting the accusation and that disagreement with the court’s rulings was not a sufficient basis for recusal.

Return of property

Brennerman also sought the return of personal items under Rule 41(g) of the Federal Rules of Criminal Procedure. The court explained that a person seeking this relief must show a right to possess the property, that it is not contraband, and that either the seizure was illegal or the government no longer needs the property as evidence.

The court found that two requested watches were subject to forfeiture and could not be returned. The government stated that the other personal items had been shipped to Brennerman’s designated representative and that a search of its records and evidence vault found no additional property belonging to Brennerman. Because Brennerman submitted no evidence that the items had not been delivered, the court denied the property request.

Disposition

The court denied Brennerman’s habeas petition, recusal motion, request to stay enforcement of the judgment and obtain release on bail, and request for the return of personal items. The court’s conclusion states that these requests were denied with prejudice. It also denied a certificate of appealability for the habeas petition and certified that any appeal would not be taken in good faith, preventing Brennerman from proceeding without paying the applicable filing fee.