United States District Court, D. Vermont
For USA, Plaintiff: Gregory L. Waples, AUSA, United States Attorney's Office, Burlington, VT.
REPORT AND RECOMMENDATION (Doc. 17)
John M. Conroy, United States Magistrate Judge.
Defendant Karen Brisson, proceeding pro se, has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence. (Doc. 17.) Brisson pleaded guilty to one count of federal-program embezzlement in violation of 18 U.S.C. § 666(a) (1) (A). (Doc. 4.) On July 18, 2013 Chief United States District Court Judge Christina Reiss sentenced Brisson to a term of imprisonment of 24 months. (Doc. 14.) Brisson was also ordered to pay restitution in the amount of $431, 812.06. (Id.) Attorney Devin McLaughlin represented Brisson throughout the underlying proceedings. Brisson did not pursue a direct appeal.
In her Motion, Brisson asserts that she was sentenced " based on factual errors." (Doc. 17-2 at 1.) The government filed an opposition, arguing that Brisson's Motion is procedurally barred, that she cannot establish any constitutional infirmity in her sentence, and that any ineffective-assistance-of-counsel claim is meritless. (Doc. 19.) In a Reply, Brisson insists that she is entitled to relief, and requests a hearing. (Doc. 20 at 2-3.) In a Supplemental Memorandum, she contends that she received ineffective assistance of counsel at her sentencing. (Doc. 23.) In response to the court's Order (Doc. 24), Attorney McLaughlin has filed an affidavit responding to Brisson's allegations of ineffectiveness (Doc. 25). The parties have filed supplemental memorandums in response to Attorney McLaughlin's affidavit. (Docs. 26, 27.)
For the reasons set forth below, I recommend that Brisson's Motion (Doc. 17) be DENIED.
I. Information, Plea Agreement, and Guilty Plea
In an Information dated and filed March 18, 2013, the government alleged that between 2006 and approximately November 2012, Brisson--while serving as the Town Clerk for the Town of Weybridge, Vermont--embezzled hundreds of thousands of dollars from the Town. (Doc. 1 at 1.) Alleging that the Town was " a municipality which in a one-year period between 2006 and December 31, 2012 received more than $10, 000 under federal programs involving loans, grants, subsidies and other forms of Federal assistance, " the government charged Brisson with violating 18 U.S.C. § 666(a) (1) (A). (Id. at 2.) Also on March 18, 2013, the parties filed an executed Plea Agreement. (Doc. 2.) At a hearing held on March 25, 2013, Brisson appeared with Attorney McLaughlin and pleaded guilty to the charge in the Information. (Doc. 4.) The court accepted the guilty plea and ordered a presentence report (PSR). (Id.) A sentencing hearing was scheduled for July 18, 2013. (Doc. 7.)
II. The PSR's Chronology of Events
Prior to sentencing, the United States Probation Office submitted a PSR to the court, recommending that the Sentencing Guideline range of imprisonment was 24 to 30 months, based on a total offense level of 17 and a Criminal History Category of I. (PSR ¶ 63.) The PSR included a lengthy narrative outlining Brisson's offense conduct. (Id. at ¶ ¶ 5-18.) It is necessary to understand the PSR's chronology of events, both because the court ultimately adopted that chronology as its findings of fact (see infra ), and because Brisson now alleges factual errors in the PSR. The relevant chronology of events outlined in the PSR can be summarized as follows; the factual errors that Brisson asserts are identified in footnotes.
In 1986 Brisson began her service as the Weybridge Town Clerk and Town Treasurer. (PSR ¶ 6.) " In the spring of 2012, in response to recent articles in the Burlington Free Press related to embezzlement, one of the selectboard members began contemplating an audit of the town's accounts." (Id.) " The matter was addressed at the May 2012 board meeting but was tabled by the board." (PSR ¶ 6.) In late August 2012, the Vermont League of Cities and Towns (VLCT) began recommending that Vermont towns conduct external audits. (PSR ¶ 7.) " This recommendation was discussed at a board meeting and Karen Brisson, who attended these meetings and took minutes a[t] these meetings, presented herself as being in support of an audit." (Id.)
On September 4, 2012, Brisson completed her last embezzlement from the Town by issuing herself a check in the amount of $3, 281.90. (PSR ¶ 15d.) In " early September" 2012, two Selectboard members discussed a complaint that Brisson had taken between $8, 000 and $9, 000 from the Town. (Id. at ¶ 8.) " One of the board members advised Brisson of the allegation the Monday following the initial discussion of the alleged theft." (Id.) Brisson appeared surprised and shocked, but said she was willing to cooperate. (PSR ¶ 8.)
At its next meeting, the Selectboard decided to proceed with an external audit " to protect both the town and Brisson." (Id. at ¶ 9.) The day after the meeting, a Selectboard member advised Brisson of the decision to conduct an audit, and also informed her that she had the Selectboard's support. (Id.) In response, Brisson " appeared to be in total agreement while at the same time angry and interested in finding out who made the allegation of theft." (Id.)
A meeting with an accountant took place during the week of November 5, 2012, attended by Brisson and a Selectboard member. ( See id . at ¶ ¶ 10-13.) At the meeting " Brisson appeared to act differently." (Id. at ¶ 11.) According to the Selectboard member who attended, Brisson--who was always well organized--informed the accountant that " her books were a mess and that she didn't have a good system in place." (Id.) Also, Brisson left the meeting after only about fifteen minutes " because she had to leave to pick up her daughter." (Id.)
On Friday November 9, 2012, a Selectboard member received a call from the Law Office of Peter Langrock advising that they had " a matter of town business to discuss" and asking Selectboard members to come to Langrock's office the following Monday. (Id. at ¶ 12.) On Monday November 12, 2012, the Selectboard met with Attorneys Peter Langrock and Devin McLaughlin. (Id. at ¶ 13.) During the meeting, Langrock informed the Selectboard that his firm represented Brisson, and provided the board with a letter from Brisson admitting that over the past several years she took money from various Town accounts. (Id. at ¶ ¶ 13, 13a) In the letter, Brisson stated that she was prepared to resign and that she " had decided to bring this forward some time ago, but . . . felt it important to the Town to complete the [November 6, 2012] election before doing so." (Id. at ¶ 13b.)
Attorney Langrock drafted a letter informing the Addison County State's Attorney of Brisson's embezzlement. (Id. at ¶ 14.) An investigation commenced, and Brisson gave interviews to a Vermont State Police detective on November 28, 2012 and March 1, 2013. (Id. at ¶ ¶ 15-16.) The Information charging Brisson with embezzlement was filed on March 18, 2013. (Id. at ¶ 1.)
In addition to the above chronology of events, the PSR quoted a letter from the Town of Weybridge that the Town had provided as its victim impact statement. That letter included the following:
Sentiment in town concerning what kind of sentence Karen should receive is mixed. Some feel she made a mistake but should not be punished at all as her life is in ruins already. Others feel she should get maximum jail time. Most people who have spoken to us think she should get some jail time. All felt she should be made to repay the Town for its financial losses, even though this realistically is probably not going to happen. Several people mentioned that her " cooperation" with the forensic audit and investigation was self-serving considering that she appeared to have withheld computer passwords that delayed our getting the books in order by months. One person was concerned if any townspeople lost their houses or had to move as a result of the higher taxes caused by her theft.
(Id. at ¶ 22f.) Regarding that paragraph, Brisson filed the following objection that is memorialized in the PSR:
The defense understands that this paragraph is quoted from the actual victim impact statement provided by the town of Weybridge, Vermont, however, it is the defendant's position that she provided all of her computer passwords to the town for everything she had access to at the town clerk's office. The defendant indicated that she does not understand why one or more of the passwords did not work. Finally, Ms. Brisson stated that she cooperated by providing the passwords in a note to the town, and also provided a bank password to one of the town officials via text message.
(Id. at 20.)
Both parties filed sentencing memorandums prior to sentencing. (Docs. 11, 12.) In its memorandum, the government agreed with the PSR's guideline conclusions (Doc. 11 at 1) and argued for a 24-month term of imprisonment ( id . at 3). Attorney McLaughlin filed a memorandum on Brisson's behalf, indicating that the defense had " no factual or legal objections to the PSR, " but arguing for a variance from the guideline range and a term of imprisonment of only 12 months and one day. (Doc. 12 at 1, 9.) The defense's sentencing memorandum pointed out, among other things, that Brisson " confessed to her crime, after assisting the Town get through the November elections without disruption." (Id. at 4.) The memorandum also noted that Brisson had cooperated by giving the Town a mortgage on her home. (Id.) And the memorandum stated that Brisson had been diagnosed with depression and anxiety, " which she did not have at all until she dug herself into this mess." (Id. at 7.)
Brisson and Attorney McLaughlin appeared at the July 18, 2013 sentencing hearing. According to Brisson, she was " under severe duress" during the hearing and her " head was in a fog." (Doc. 17-2 at 1.) She says her mental state at that time was " not very good" and that she had a " difficult time focusing and listening." (Id.)
The court began by asking Brisson if she had read the PSR; she responded that she had. (Doc. 15 at 2:8-14.) After noting and correcting a typo in the PSR,  the court separately asked Attorney McLaughlin, Brisson herself, and the government whether there were any other factual errors in the PSR; to which all responded no. (Id. at 3:5-12.) The court then stated that it would adopt the PSR (with the typo corrected) as its findings of fact. (Id. at 3:13-15.)
The parties indicated that they would call no witnesses, and the court accordingly outlined for the parties how it would proceed with the remainder of the hearing. (Id. at 3-4.) Attorney McLaughlin began with his argument, and the court interrupted to inquire about some of the material in the PSR that the court found surprising:
Well, let me ask you about something because I thought this got presented as Miss Brisson heard about the embezzlement cases around Vermont and on her own felt so guilty about her misdeeds that she came forward and, you know, confessed without any hint that there was a problem and that's how this all came about.
So I was surprised to see the chronology of events in the Pre-Sentence Report that it didn't unfold that way and that there had been an allegation of theft and that the Selectboard was proceeding with an audit and it was only when it really came down to the wire and the audit had been ordered that the confession became, you know, apparent. And that there was a last check of $3, 000 and ...