UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 04-543 (BAH)

CHARLES E. HALL, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

Pending before the Court is the defendant’s pro se Motion for an Indicative Ruling on a

Motion for Relief that is Barred by a Pending Appeal (“Def.’s Mot.”), ECF No. 276, which this

Court construes as a motion under Federal Rule of Civil Procedure 62.1(a), rather than under

Federal Rule of Criminal Procedure 37(a) as relied upon by the defendant, because the rules of

civil procedure apply to habeas cases such as this one. See Gonzalez v. Crosby,

(2005); United States v. Arrington,

(D.C. Cir. 2014) (applying Crosby’s

rationale to post-conviction civil proceedings under

). Federal Rule of Civil

Procedure 62.1 permits a district court, “[i]f a timely motion is made for relief that the court

lacks authority to grant because of an appeal that has been docketed and is pending,” to “defer

considering the motion,” “deny the motion,” or “state either that it would grant the motion if the

court of appeals remands for that purpose or that the motion raises a substantial issue,” FED. R.

CIV. P. 62.1(a).

This Court denied the defendant’s motion for a new trial in a Memorandum and Order,

United States v. Hall, No. 04-cr-543 (BAH),

(D.D.C. Dec. 7, 2018)

(addressing certain arguments), and, following an evidentiary hearing, in an oral ruling, see Min.

Entry (Dec. 13, 2018); Tr. of Evidentiary H’rg, Dec. 13, 2018 (“H’rg Tr.”) at 101:16–106:8, ECF 1 No. 275 (addressing remaining arguments). The defendant timely appealed, see Notice of

Appeal, ECF No. 268, and this Court issued a Certificate of Appealability, see Order (Jan. 23,

2019), ECF No. 273.

The defendant’s appeal is currently pending before the D.C. Circuit, see United States v.

Hall, 18-3092 (D.C. Cir. appeal docketed Dec. 31, 2018), and thus this Court no longer has

jurisdiction over the defendant’s case. See Griggs v. Provident Consumer Discount Co.,

(1982) (per curiam) (noting that, as a general rule, “[t]he filing of a notice of appeal

is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and

divests the district court of its control over those aspects of the case involved in the appeal”);

United States v. DeFries,

(D.C. Cir. 1997) (per curiam).

Given this procedural posture, the defendant seeks only an indicative ruling. Although

the defendant couches his motion in rules of criminal rather than civil procedure, the Court

construes his motion as one made under Federal Rule of Civil Procedure 60(b)(1), (2), (3), or (6)

to reopen the judgment denying his habeas motion on the proffered ground of ineffective

assistance of counsel in his habeas proceedings. This motion is denied.

The specific bases for the defendant’s assertions that his attorney in his habeas

proceedings provided ineffective assistance of counsel are that this attorney: (1) overlooked or

otherwise failed to pursue what the defendant claims was “newly discovered” evidence and other

meritorious arguments the defendant made in his pro se motions and supplements, including

arguments made in a pro se Motion to Amend Pleadings as a Matter of Course or in the

Alternative by Leave of Court, ECF No. 229, which was denied as moot, with the parties’

agreement, in light of a later, counseled motion, see Min. Order (Dec. 13, 2017); Def.’s Mot. at

6–7 & n.16; (2) was operating under a conflict of interest, in part because the attorney agreed to

2 dismiss the defendant’s pro se Motion to Amend without adequate consultation with the

defendant, Def.’s Mot. at 6–7; and (3) failed to adequately prepare for an evidentiary hearing on

the defendant’s habeas motion because the attorney failed to subpoena an attorney, Marc

Sliffman, to testify regarding the defendant’s advice-of-counsel defense,

at 7–9.

Although the defendant purports to focus his motion on the alleged ineffectiveness of the

attorney assisting him with his habeas proceeding, a review of his motion and supporting

documentation reveals that the defendant’s motion actually reflects another attempt to relitigate

the merits of his habeas case. That is, the arguments that the defendant accuses his counsel of

overlooking are, for the most part, arguments that this Court already considered and rejected in

denying his § 2255 motion.

For example, the defendant claims that “throughout [his] hearings and/or proceedings,

exculpatory evidence discovered after trial . . . fell short of being utilized by all defense counsels

of record,” id. at 2, and that his habeas counsel “actively represented conflicting interests when

he unilaterally dismissed [defendant’s] newly discovered documents proving actual innocence,”

id. at 6–7. Yet this purported “exculpatory evidence” and “newly discovered documents proving

actual innocence” relate to the defendant’s persistent argument, rejected both on direct appeal by

the D.C. Circuit and as grounds for habeas relief in this Court, that the defendant’s scheme to

“flip” residential properties did not qualify as bank fraud. See id. at 10–21 (listing various facts

and arguments regarding mortgage financing, federally insured financial institutions, and

whether the defendant’s conduct is properly considered bank fraud). The D.C. Circuit rejected

the defendant’s challenges to his bank fraud convictions on these grounds on direct appeal, see

United States v. Hall,

, 252–53 (D.C. Cir. 2010), and this Court rejected his

attempts to relitigate those convictions in a habeas proceeding, see Hall,

, at

3 *4–5. Just as before, the defendant has failed to establish “how any intervening change of law or

other exceptional circumstance would allow him to relitigate this issue,”

.

Further, although the defendant argues that his habeas counsel was ineffective by not

calling a witness to testify at the evidentiary hearing, this Court’s resolution of the habeas

petition—which focused in part on whether the defendant’s trial counsel was ineffective for

failing to call or seek an advice-of-counsel instruction related to that same witness—explained in

detail why trial counsel had sound strategic reasons for failing to call this witness or to seek such

an instruction, and why the defendant had not established that he suffered prejudice as a result of

his trial counsel’s alleged failures. See H’rg Tr. at 103:1–105:23 (“[B]ased on what [the trial

counsel] said about the risks of calling Mr. Sliffman, the decision not to do so makes sound

sense.”). Those same risks, including the possibility that Mr. Sliffman may have been deemed a

co-conspirator, foreclosing an advice-of-counsel defense,

at 105:3–11, or that he would have

deflected any criminal liability onto the defendant,

at 105:12–18, apply equally to the

defendant’s habeas attorney’s failure to call this witness to testify at the evidentiary hearing. In

addition, the defendant’s own testimony at trial and in his habeas hearing established that he did

not tell Mr. Sliffman all of the material facts pertinent to the activities in question, negating the

viability of an advice-of-counsel defense.

at 105:19–23.

Accordingly, any Rule 60(b) motion made on the grounds the defendant raises must be

denied, because a motion that attacks the court’s prior resolution of a § 2255 claim on the merits

is “similar enough” to a habeas motion that the district court, under

and

(h), may not consider the motion without prior authorization from the court of

appeals. Crosby, 545 U.S. at 531–32 & n.5 (noting that “an attack based on . . . [defendant’s]

habeas counsel’s omissions . . . ordinarily does not go to the integrity of the proceedings, but in

4 effect asks for a second chance to have the merits determined favorably” (citation omitted));

Arrington, 763 F.3d at 22–24; United States v. Washington,

(9th Cir. 2011)

(“Because the gravamen of [defendant’s] assertions go to the merits of his conviction, his Rule

60(b) motion is, in fact, a § 2255 motion in disguise.”). With the exception of faulting his

habeas attorney for failing to call a witness at an evidentiary hearing, the defendant’s reasons for

seeking to reopen the judgment in his habeas case are merits-based challenges to this Court’s

previous rulings on those same arguments. Those challenges, as well as the defendant’s motion

to replace his current court-appointed attorney, which motion is included in the documents filed

in this Court, see ECF No. 276 at 32–37, are most appropriately addressed in the D.C. Circuit,

where the defendant’s appeal remains pending. See United States v. All Assets Held in Account

No. 80020796, No. 13-cv-1832 (JDB),

, at *2 (D.D.C. Nov. 15, 2017) (“There

is little indication the drafters of Rule 62.1 intended it to be used . . . to ask a district court to

issue an indicative ruling reconsidering the same question being reviewed by the court of

appeals.” (citation and internal alterations omitted)).

Accordingly, it is hereby

ORDERED that the defendant’s pro se Motion for an Indicative Ruling is DENIED.

SO ORDERED.

Date: May 31, 2019

_______________________ BERYL A. HOWELL Chief Judge

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