UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 18-388-3 (RDM)

CHARESE JOHNSON,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Charese Johnson’s motion to vacate her

conviction and sentence pursuant to

. Dkt. 192. For the reasons that follow, the

Court will DENY that motion.

I. BACKGROUND

Following a jury trial, Johnson was convicted of three counts of aiding and assisting the

preparation of false tax returns, in violation of

(2). Min. Entry (July 1, 2021).

Each of the three counts involved the preparation of a false tax return—specifically, Forms

1040X—that claimed fictitious tax refunds on behalf of Johnson’s clients. Dkt. 90 (Superseding

Indictment). The return charged in Count One was a Tax Year 2012 Form 1040X that claimed a

refund of $463,961 on behalf of Bladen Russell III,

; see also Dkt. 191-3 at 64 (Gov’t Tr.

Ex. 83), while the returns charged in Counts Two and Three involved Tax Year 2011 Forms

1040X that respectively claimed $416,200 and $280,000, on behalf of Johnny and Maria Moore,

Dkt. 90 at 3; see also Dkt. 191-3 at 16 (Gov’t Tr. Ex. 51); Gov’t Tr. Ex. 102.

Johnson’s defense at trial was not that the claimed refunds were legitimate; instead, her

trial counsel argued that she had not, in fact, prepared the returns at issue. See, e.g., Dkt. 167 at

1 76 (Trial Tr. 593). The government responded with evidence linking Johnson to those returns.

This evidence included Russell’s testimony that Johnson had prepared the return charged in

Count One on his behalf. See Dkt. 164 at 68 (Trial Tr. 288). And, as for the returns charged in

Counts Two and Three, the government introduced Johnson’s sworn statement from a civil

proceeding before the U.S. District Court for the District of Maryland in which she

acknowledged that she “prepared [the] amended 1040x tax returns” at issue in Civil Case

Number 15-cv-3378, Gov’t Tr. Ex. 81 at 1, which included the Forms 1040X in government

Exhibits 51 and 102, see Dkt. 163 at 47–49 (Trial Tr. 148–50). 1

Following her conviction, Johnson’s trial counsel (at her request) moved to withdraw.

Dkt. 158 at 1. Replacement counsel filed an appearance on November 17, 2021, see Dkt. 172,

and, following several motions to continue, the Court imposed sentence (36 months of

incarceration) on February 14, 2022, see Min. Entry (Feb. 14, 2022); see also Dkt. 187.

On April 1, 2022, Johnson moved to set aside her conviction pursuant to

, arguing that her trial counsel was constitutionally ineffective for failing to call a

handwriting expert at her trial. Dkt. 192. The Court held a two-part evidentiary hearing on

Defendant’s motion on June 2, 2022, see Min. Entry (June 2, 2022), and September 21, 2022, see

Min. Entry (Sept. 21, 2022). Over the course of that hearing, the Court heard testimony from

two proposed handwriting experts, from Johnson’s trial counsel, and from Johnson herself.

II. LEGAL STANDARD

Under

, a prisoner serving a sentence imposed by a federal court may

move the sentencing court to vacate, set aside, or correct the sentence if it “was imposed in

1 Johnny and Maria Moore, who were named as Defendants in this matter in the original indictment, see Dkt. 1, died during the course of these proceedings. 2 violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral

attack.”

(a). The required showing is a demanding one, which poses “a

significantly higher hurdle than would exist on direct appeal.” United States v. Frady,

(1982). The Court is “authorized to grant relief only if [it] determine[s] that 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.” United States v. Pollard,

(D.C. Cir. 1992) (internal quotation

marks and citation omitted); see also United States v. Ashton,

(D.D.C.

2013) (describing relief under Section 2255 as “an extraordinary remedy in light of society's

legitimate interest in the finality of judgments”). The movant bears the burden of proof and must

demonstrate her right to relief by a preponderance of the evidence. See United States v. Simpson,

(D.C. Cir. 1973) (per curiam); United States v. Valdez,

(D.D.C. 2016).

III. ANALYSIS

Johnson presses two theories of relief, both premised on the contention that her trial

counsel was constitutionally ineffective in violation of the Sixth Amendment. See Dkt. 191 at 9–

14. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that her

“counsel’s performance ‘fell below an objective standard of reasonableness,’ and (2) [that] ‘there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Payne v. Stansberry,

(D.C. Cir. 2014)

(quoting Strickland v. Washington,

, 687–88 (1984)). “Judicial scrutiny of

counsel’s performance must be highly deferential,” and the Court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

3 assistance.” Strickland,

. A defendant’s failure to carry her burden as to either

Strickland prong defeats an ineffective assistance of counsel claim. See

.

A. Failure to offer handwriting expert

Johnson first argues that her trial counsel was ineffective because he failed, despite her

urging, to call a handwriting expert witness to challenge the government’s contention that she

signed the three tax returns identified in the superseding indictment. Dkt. 191 at 1–2, 9–13. She

maintains—in an affidavit and in her testimony at the evidentiary hearing—that she told her trial

counsel that she “did not sign any of the[] signatures which were on the false documents” and

that she “repeatedly asked” trial counsel to secure a handwriting expert in the weeks leading up

to trial. Dkt. 191-1 at 2–3, 5 (Johnson Aff. ¶¶ 4, 6); see also Dkt. 207 at 89–91 (June 2, 2022

Hrg.). Counsel’s refusal to call an expert, Johnson maintains, rendered his representation

constitutionally deficient. Dkt. 191 at 1, 13; Sept. 21, 2022 Hrg. Tr. (Rough at 23) (“[M]y point

is he should have gone out and found an expert” and asked “what [that expert] th[ought].”). In

an effort to show that a handwriting expert would have made a difference, Johnson offers the

testimony of two handwriting experts, both of whom now represent that, if called at trial, they

would have testified that Johnson did not sign at least some of the returns at issue. See Dkt. 207

at 51 (June 2, 2022 Hrg.); Sept. 21, 2022 Hrg. Tr. (Rough at 44).

1. Deficient performance

To satisfy the first Strickland factor—that is, deficient performance—Johnson must show

that her “counsel’s representation fell below an objective standard of reasonableness . . . under

prevailing professional norms.” Strickland,

; see also United States v. Gwyn,

(D.C. Cir. 2007). To succeed, she must demonstrate that her counsel’s errors were

“so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth

4 Amendment.” Strickland,

. The Court must analyze counsel’s conduct as a

whole and must consider his actions based on how a reasonable lawyer would have viewed the

case at the time, without the benefit of hindsight.

at 688–89. The Court, moreover, must

“indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.”

. Significantly, “the representation afforded by counsel is not

constitutionally ineffective under [Strickland] simply because [a defendant] believe[s] that

litigation strategies other than the ones employed by counsel might have been more successful,”

United States v. Catlett,

(D.C. Cir. 1996). Instead, to prevail on a claim of

ineffective assistance of counsel, a defendant must show that the decision (or inaction) that she

challenges was “unreasonable” and not merely a strategic choice. Kimmelman v. Morrison,

(1986); see also Strickland,

(explaining that “strategic choices

made after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable”).

Here, Johnson argues that her trial counsel’s performance fell below that “objective

standard of reasonableness because he “neglected the obvious need for a handwriting

consultation.” Dkt. 191 at 13. In Johnson’s view, the prosecutor’s acknowledgement during his

closing argument that “Johnson’s signature appears to vary across some of these same returns”—

along with Johnson’s repeated statements to counsel that “she was not the signer of the

returns”—“cried out for a handwriting expert.” Id. at 6; see also Dkt. 167 at 61 (Trial Tr. 578)

(“Johnson’s signature appears to vary across some of these same returns.”).

The government counters, based on evidence introduced at the September 21, 2022

evidentiary hearing, that trial counsel made a reasonable decision to “stay away from

handwriting experts.” Sept. 21, 2022 Hrg. Tr. (Rough at 75). At that evidentiary hearing,

5 Johnson’s trial counsel testified that, when he was retained in November 2019, he received a

case file from Johnson’s prior attorney, Christopher Davis. Id. at 4. That case file contained

“notes [Davis] had taken based on a[n] [October 28, 2019] conversation with a handwriting

expert[, John Hargett],” id. at 5, which documented Hargett’s view that the signatures on at least

two of the relevant Forms 1040X—government Trial Exhibit 51, the 2011 Form 1040X charged

in Count Two and government Trial Exhibit 83, the 2012 Form 1040X charged in Count One—

were “[p]robably [Johnson’s] (more likely than not),” Gov’t Ex. 202. As far as the Court can

tell, the notes did not mention government Trial Exhibit 102, the 2011 Form 1040X charged in

Count Three. Id. As a matter of trial strategy, however, it is safe to assume that the defense

would have had little interest in calling a witness to testify that Johnson “probably” signed the

allegedly fraudulent Form 1040X submitted on behalf of Bladen Russell III and the first of the

two allegedly fraudulent Forms 1040X submitted on behalf of Johnny and Maria Moore, even

assuming (for sake of argument) that the witness would have testified that Johnson probably did

not sign the second Form 1040X submitted on the Moores’ behalf. But in any event, trial

counsel testified that he was “aware of the results of the [Hargett] handwriting analysis;” that he

“ha[d] a conversation with [Defendant’s prior counsel] about his notes and his conversation with

Mr. [Hargett];” and that this information had a “bearing on [his] trial strategy.” Sept. 21, 2022

Hrg. Tr. (Rough at 8–9); see id. at 9 (“I didn’t think it wise or prudent or helpful to [Johnson] for

us to pursue this expert or to present this expert.”). That testimony would seem to put the matter

to rest.

Johnson nevertheless argues that it was unreasonable for trial counsel to fail to consult a

second handwriting expert who might have, if engaged, proffered a different opinion. Id. at 23

(“[H]e should have gone out and found an expert . . . .”); see also id. at 69 (“[A] competent

6 defense counsel who had not talked to this expert . . . would have said I should go get my own

expert . . . .”). But Johnson “has given [the Court] no basis [to] believe[e] that trial counsel’s”

reliance on Hargett’s conclusions “[fell] below an objective standard of reasonableness,” Gwyn,

(last alteration in original) (quoting United States v. Askew,

(D.C. Cir. 1996))—especially because Johnson herself signed a declaration in a civil proceeding

in which she admitted that she had prepared several tax returns, including the Moores’ Forms

1040X, see Gov’t Tr. Ex. 81 at 1; see also Dkt. 163 at 47–49 (Trial Tr. 148–50) (testimony

explaining that, by signing the affidavit in government Exhibit 81, Johnson was admitting to

signing the two Forms 1040X that form the basis of Counts Two and Three). Cf. Hoover-

Hankerson v. United States,

, 84 & n.3 (D.D.C. 2011) (rejecting ineffective-

assistance claim where the defendant “fail[ed] to plead any facts to substantiate her claim that

her counsel’s decision not to obtain a[] [handwriting] expert witness was outside of the range of

competent professional assistance”).

That conclusion is bolstered, moreover, by government Exhibit 201, an email that trial

counsel drafted (but did not send) to Johnson on June 27th, 2021—four days after the start of

trial and one day after Johnson forwarded trial counsel a forensic examiner’s report about her

documents. See Gov’t Ex. 201; Sept. 21, 2022 Hrg. Tr. (Rough at 11). (Government Exhibit

201 was admitted, without objection, on the understanding that counsel was “offering it to show

[his] existing state of mind.” Sept. 21, 2022 Hrg. Tr. (Rough at 13)). In that email, trial counsel

wrote that he “ha[d] not been able to speak to [Johnson’s requested expert];” that he was

concerned about proffering an expert after the start of trial; and that, “[s]trategically, [he]

th[ought] it ma[d]e sense t[o] keep the burden on the government.” Gov’t Ex. 201. “The jury

should be looking to the government for experts,” he wrote, “not you.”

Although some of

7 the reasoning proffered in the email was timing-related—that is, any effort to identify a new

expert came too late—the exhibit also provides insight into counsel’s strategic decision to “keep

the burden on the government,” rather than to call an expert witness that would be subject to

cross-examination. Id.; see United States v. Nersesian,

(2d Cir. 1987)

(“The decision whether to call any witnesses on behalf of the defendant . . . is a tactical decision

of the sort engaged in by defense attorneys in almost every trial.”); United States v. Staples,

, 488–89 (8th Cir. 2005) (explaining that the “decision not to call a witness is a

‘virtually unchallengeable’ decision of trial strategy”); United States v. Robinson, No. 20-cr-98,

, at *16 (D.D.C. Sept. 17, 2020), rev’d in part on other grounds,

(D.C. Cir. 2023) (concluding that trial counsel’s decision not to “call[] an expert witness

who could be subject to damaging cross-examination”—but instead to “engage in rigorous cross-

examination of the United States’ fact witnesses and expert witness”—was a reasonable trial

strategy).

The trial record further supports the conclusion that counsel made a reasonable strategic

decision to focus on the government’s burden. In closing, he argued to the jury:

You’ll be able to compare th[e] signatures [in the government’s exhibits]. . . . I don’t know that anyone here is a handwriting expert. I’m not a handwriting expert, no one at the government’s table is. And the government certainly didn’t present that type of evidence or testimony to you, right. The government made a point in its closing to say that . . . the signatures were pretty similar. Now, ladies and gentlemen, your burden here isn’t to decide if the signatures were pretty similar. Your burden is not to decide whether it’s pretty likely that Ms. Johnson is the person who prepared these documents. Your burden is not to decide whether it’s pretty likely that Ms. Johnson aided, assisted in, procured, counseled on the income tax returns at issue in counts one through three of the indictment. Your burden here, your job here, the government’s burden here is to convince you beyond a reasonable doubt that Ms. Johnson is the person that prepared these forms. That’s the task here. We’re not talking about pretty close or pretty likely, maybe it looks like it . . . . That is not proof beyond a reasonable doubt. Ladies and gentlemen, you deserve more, you should expect more, and you should demand more from the government in proving its burden in this case.

8 Dkt. 167 at 76–78 (Trial Tr. 593–95).

Johnson has failed to offer any basis to find that trial counsel’s strategic decision to focus

on the government’s burden—especially in light of prior counsel’s consultation with Hargett—

fell outside the “wide range of reasonable professional assistance,” Strickland,

.

Even if a “litigation strateg[y] other than the one[] employed by counsel might have been more

successful,” that alone is insufficient to satisfy the demanding burden under Strickland. Catlett,

. And, here, even with the benefit of hindsight, the Court is unpersuaded that the

decision was unsound.

Johnson’s ineffective-assistance claim, accordingly, fails at the first prong.

2. Prejudice

Johnson’s Strickland claim fails at the second prong as well because she cannot show that

she was prejudiced by trial counsel’s failure to offer the testimony of a handwriting expert. To

show prejudice, a defendant must prove that counsel’s incompetence was “so serious as to

deprive [her] of a fair trial, a trial whose result is reliable.” Strickland,

. In

practice, this means that the defendant must show that, “there is a reasonable probability that, but

for trial counsel’s unprofessional errors, the result of the proceeding would have been different.”

. A reasonable probability is a “probability sufficient to undermine confidence in the

outcome.” United States v. Loughery,

(D.C. Cir. 1990) (quoting Strickland,

). The defendant “must shoulder the burden of showing, not merely that the

errors . . . created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.” United

States v. Frady,

(1982) (emphasis in original). As relevant here, “if the

alleged Strickland violation is based on a failure to call an expert witness, the defendant must

9 demonstrate” with particularity “what the ‘scientific expert would have stated’” and “that the

testimony would have been favorable to a particular defense.” Robinson,

, at

*16 (quoting Day v. Quarterman,

(5th Cir. 2009)).

In her first effort to make this showing, Johnson offered the testimony of Curt Baggett,

who testified that, if called at trial, he would have opined that the signatures on the Forms 1040X

prepared for the Moores “were not written by Charese Johnson.” Dkt. 207 at 51 (June 2, 2022

Hrg.). (Notably, Baggett did not examine the Form 1040X prepared for Russell. See id. at 84.)

But that argument skips an important step in the process. Even if Johnson’s trial counsel had

sought out Baggett and had decided to call him as a witness at trial, the Court would have been

required to decide whether he was qualified to testify as an expert, and Johnson has failed to

carry her burden of showing that Baggett’s testimony would have been admissible under Federal

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993).

To the contrary, as the government emphasizes, federal courts across the nation have repeatedly

declined to permit Baggett to testify as a handwriting expert. See Balimunkwe v. Bank of Am.,

No. 14-cv-327,

, at *8–14 (S.D. Ohio Sept. 3, 2015); Routh v. Bank of Am.,

No. 12-cv-244,

, at *5–6 (W.D. Tex. Aug. 7, 2013); United States v. Revels,

No. 10-cv-110-1,

, at *16–26 (E.D. Tenn. May 9, 2012); Dracz v.

Am. Gen. Life Ins. Co.,

, 1377–80 (M.D. Ga. 2006); Wheeler v. Olympia

Sports Ctr., Inc., No. 03-cv-265,

, at *3–4 (D. Me. Oct. 12, 2004).

The Court’s review of these decisions, moreover, reveals a troubling pattern: in finding

Baggett unfit to testify as an expert, courts have not only rejected his qualifications as an expert

or the methodologies underlying his opinions, but they have expressed concerns about his

credibility and the truthfulness of his representations. In Balimunkwe, for example, the U.S.

10 District Court for the Southern District of Ohio noted that, although “Mr. Baggett list[ed] nearly

100 ‘cases and or cities’ in which he has been ‘qualified or appointed,’” the court was “unable to

corroborate Mr. Baggett’s representation;” the court found, instead, that “the record in at least

some of the federal cases listed by Mr. Baggett does not reflect that the court assessed his expert

credentials and qualified Mr. Baggett as an expert.”

, at *8. That same

decision expressed “serious concerns regarding the accuracy of Mr. Baggett’s representations in

the background information he has provided as to the number of cases he has completed and his

years of experience.”

The U.S. District Court for the Eastern District of Tennessee, likewise,

expressed “grave concerns about Mr. Baggett’s credibility,” Revels,

, at *23, while the U.S. District Court for the District of Maine pointed to a state court

proceeding in which Baggett “falsely testified that he had been designated by the court as an

expert witness,” Wheeler,

, at *4 n.3. And, in the state court proceeding

referenced by the District of Maine, the Texas Court of Appeals noted that “the prosecutor’s

argument that Baggett was a charlatan was proper as a reasonable deduction from the evidence.”

Brown v. State, No. 05-97-cr-00289,

, at *8 (Tex. App. Feb. 9, 1999). More

recently, the U.S. District Court for the District of New Jersey “note[d] that numerous federal

courts throughout the country . . . have excluded [Baggett’s] testimony as unreliable on the basis

of, among other things, ‘serious concerns’ with respect to his credentials.” Albert v. Specialized

Loan Servicing, LLC, No. 19-cv-74,

, at *9 n.5 (D.N.J. Feb. 14, 2020)

(collecting cases).

Beyond all of this, the government notes (and Johnson does not dispute) that Baggett has

a criminal history that includes “felony convictions for theft and aggravated assault,” along with

“a deferred adjudication after pleading guilty to the misdemeanor offense of Tampering with a

11 Government Record.” Dkt. 195 at 8 (quoting Revels,

, at *24–25).

To be sure, these convictions are all over two decades old. But, as the Eastern District of

Tennessee emphasized, the most recent conviction—from 2000, for tampering with a

government document—“directly implicates his character for truthfulness.” Revels,

, at *25. After Baggett attempted to explain this past conduct during his

testimony at a sentencing hearing before that court, the court reviewed the underlying court

records and found them so irreconcilable with Baggett’s explanation that the court concluded

that “it appear[ed] . . . that Mr. Baggett was testifying untruthfully at [the] [d]efendant’s

sentencing hearing with respect to his prior criminal record.”

.

Nor did Baggett’s testimony at the June 2, 2022 evidentiary hearing assuage the Court’s

concerns. Baggett testified, at the hearing, that he had “no idea” for how long he had been a

member of some of the organizations and associations listed on his resume and that he had “no

idea” what, if anything, he learned about in the referenced professional programming. Dkt. 207

at 21–23 (June 2, 2022 Hrg.). He conceded, moreover, that he has never been certified by the

American Board of Forensic Document Examiners; that the educational program he attended at

Handwriting University was non-accredited; and that none of the publications listed on his

resume were published in peer-review journals.

at 53–55. Indeed, most of the publications

listed on Baggett’s resume were self-published or publicized online by Handwriting

University—the non-accredited, remote learning platform owned and operated by Baggett’s son.

at 53–56. Nothing in his testimony would have permitted this Court to find that any expert

opinion that he might have offered at trial had “a reliable basis in the knowledge and experience

of his discipline”—a central prerequisite for admitting expert testimony in federal court. United

States v. Nwoye,

(D.C. Cir. 2016) (quoting Kumho Tire Co. v. Carmichael,

12

(1999)). Finally, even if the Court had (somehow) concluded that Baggett

was qualified to testify as an expert, the record described above would have provided fertile

ground for impeachment on cross-examination, significantly diminishing the value of his

testimony and likely hurting Johnson’s case.

Recognizing that Baggett would not have helped her case, Johnson shifted gears after the

June 2, 2022 hearing and requested to call yet another handwriting expert (the third that she or

her lawyers have identified since the investigative stage of her case) who would have been

prepared, if called, to testify at trial that “none of the questioned signatures were signed or

written by Charese Johnson.” Sept. 21, 2022 Hrg. Tr. (Rough at 37, 44). Johnson asserts that

this new expert, Beverly East, is “more credible” and “a far superior expert to” Baggett. Dkt.

202 at 1. Although the Court allowed Johnson to call East at the second evidentiary hearing over

the government’s objection, see Min. Order (Sept. 12, 2022), the Court remains skeptical that

Johnson can establish Strickland prejudice by proffering a new expert, after filing her Section

2255 petition and after the Court held a hearing on that petition, simply because the expert that

she claimed her trial counsel should have called to testify at trial, and who she called to testify at

her Section 2255 hearing, was unqualified. For present purposes, however, the Court need not

decide whether such an open-ended search for an expert is proper because Johnson, in any event,

has failed to demonstrate that “there is a reasonable probability that . . . the result of the

proceeding would have been different” had East testified at trial. Strickland,

.

As explained below, the Court concludes that at least portions of East’s testimony would have

been inadmissible and that, even if she was allowed to testify in other respects, it is unlikely—

and certainly not “reasonabl[y] probable”—that her testimony would have changed the result.

13 To start, at least portions of East’s testimony would not have satisfied Daubert. Under

Daubert, the Court must consider (1) “whether [a theory or technique] can be (and has been)

tested;” (2) “whether the theory or technique has been subjected to peer review and publication;”

(3) the “known or potential rate of error;” and (4) whether a technique has garnered

“[w]idespread acceptance” in the relevant scientific communities. 509 U.S. at 593–94. As

relevant here, East testified that the all-caps, block print signature on government Exhibit 102—

the 2011 Form 1040X charged in Count Three—was not Johnson’s signature, even though all of

Johnson’s self-provided “known signatures” were in cursive. Sept. 21, 2022 Hrg. Tr. (Rough at

43–47). She explained: “[I]f . . . you’re changing from script to block, your height, the

proportion and the width would be very much the same, and they’re not.” Id. at 45. When

questioned by the Court as to the basis of her opinion and whether there were any “peer-

reviewed studies” that support her testimony about the “chang[e] from script to block,” East was

unable to cite any relevant research. Id. at 45–46. And when provided the opportunity to

supplement the record with any peer-reviewed research on that point, East proffered two journal

abstracts that seem (at best) to address analyzing hand-printed and cursive signatures

independently, but do not support East’s testimony that the common characteristics of a person’s

cursive writing can help identify that writer’s block print. Dkt. 214-1 at 2–3. And, although the

defense submits a two-sentence-long excerpt from a book indicating that “writers transfer many

of their writing habits from handwriting to handprinting,” Dkt. 241-2 at 2, the Court cannot

discern from that short excerpt whether the author ultimately concludes that those transferred

“writing habits” permit handwriting experts reliably to determine whether the same person wrote

one signature in cursive and another that was block printed. The Court is, accordingly,

unconvinced that East’s technique, at least as to analyzing that exhibit, was “subjected to peer

14 review and publication” or that it has garnered “[w]idespread acceptance” in the relevant

scientific communities. Daubert, 509 U.S. at 593–94. The Court therefore cannot conclude that

East would have, if called, been qualified under Daubert to opine on whether the signature on

Exhibit 102 was Johnson’s.

Beyond that difficulty, the government elicited testimony at trial establishing that

Johnson prepared a 2011 Form 1040 on behalf of the Moores, see Dkt. 167 at 25 (Trial Tr. 542),

and that form includes a signature that is—at least to the untrained eye—very similar to the 2011

Form 1040X charged in Count Two, compare Dkt. 191-3 at 5 (Gov’t Tr. Ex. 50) with Dkt. 191-3

at 16 (Gov’t Tr. Ex. 51). Nothing that East said at the Section 2255 hearing would have, the

Court’s view, led a reasonable jury to find otherwise. But, even more importantly, Johnson fails

to offer any meaningful response to the government’s evidence that she admitted in a civil

proceeding in federal court that she prepared the false returns charged in Counts Two and Three.

Government Exhibit 81 included Johnson’s declaration that she, “Charese Johnson, doing

business as Prodigy Accounting Services, prepared [the] amended 1040x tax returns” at issue in

Civil Case Number 15-cv-3378—including government Exhibit 51, the Form 1040X charged in

Count Two and government Exhibit 102, the 1040X charged in Count Three—“at no cost . . . in

good faith without intentionally misleading fraudulent actions.” Gov’t Tr. Ex. 81 at 1; see also

Dkt. 163 at 47–49 (Trial Tr. 148–50) (testimony identifying the government Exhibits 51 and 102,

charged in Counts Two and Three, as tax returns at issue in Civil Case Number 15-cv-3378).

The government disputed her averment that she prepared those forms “in good faith” and without

fraud, but the fact remains that Johnson had previously admitted to preparing the forms from

which she now attempts to distance herself on the basis of her signature. In response, Johnson

testified at the Section 2255 hearing that she did not understand which taxpayers or tax returns

15 the declaration referenced. Dkt. 207 at 92–95 (June 2, 2022 Hrg.). But that testimony carries

little weight for present purposes because she did not take the stand at trial to testify to that

effect, nor did she offer any other evidence suggesting that she signed the declaration without

understanding what it said. The declaration constituted an admission and was thus, if anything,

more probative of whether Johnson signed the returns than East’s testimony regarding one of the

two returns, if offered, might have been, and it is now too late (after trial) for Johnson to disavow

her own declaration. Similarly, although Johnson testified at the June 2, 2022 evidentiary

hearing that she did not “sign the tax returns . . . that were used as a basis for [her] conviction,”

id. at 89 (June 2, 2022 Hrg.), she made no such assertion at trial. Notably, Johnson does not now

claim that she would have testified in support of either of these contentions if her counsel had

called a handwriting expert at her trial.

As for the tax return at issue in Count One, the individual on whose behalf Johnson

prepared the return testified at trial that Johnson prepared it at his request. See Dkt. 164 at 68

(Trial Tr. 288). Cf. United States v. Popov,

(9th Cir. 2014) (concluding

that the failure to call a handwriting expert was not prejudicial where “[t]he record shows that

[the defendant] admitted signing [the relevant] forms”). To be sure, the signatures on the three

returns differ in appearance. Compare Dkt. 191-3 at 16 (Gov’t Tr. Ex. 51) (2011 Form 1040X,

charged in Count Two), with Dkt. 191-3 at 64 (Gov’t Tr. Ex. 83) (2012 Form 1040X, charged in

Count One), with Gov’t Tr. Ex. 102 at 2 (2011 Form 1040X, charged in Count Three). But the

primary difference is between the two returns prepared on behalf of Johnny and Maria Moore,

which she admitted to preparing in the declaration. With respect to the one return that she did

not admit to preparing, Johnson’s signature features a cursive, sweeping style, Dkt. 191-3 at 64

(Gov’t Tr. Ex. 83), similar to the signatures she used elsewhere, see, e.g., Dkt. 191-3 at 5 (Gov’t

16 Tr. Ex. 50). The jury was well equipped to judge for itself whether the signatures were similar,

and, where they were not, to decide whether Johnson simply signed her name differently at

different times. Unsurprisingly, that is precisely the explanation the government gave the jury

during closing argument. Dkt. 167 at 59–60 (Trial Tr. 576–77).

The Court sees little likelihood that Baggett’s or East’s handwriting testimony would

have swayed the jury in the face of the evidence. To the contrary, this is a case in which “[t]he

evidence presented at trial would have made the need for an expert witness . . . insignificant.”

United States v. Edwards, No. 11-cr-129-01,

, at *11 (D.D.C. Nov. 21, 2019).

Johnson has, accordingly, failed to carry her burden of showing that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Payne,

(quoting Strickland, 466 U.S. at 687–88).

B. Other Grounds for Ineffective Assistance

Johnson also argues that her trial counsel “neglected to pursue other matters which

collectively could well have raised a reasonable doubt apart from the use of a handwriting expert

to testify that the signatures at issue were not made by Johnson.” Dkt. 191 at 13–14. Her

argument on this point, however, can be reduced to four propositions, which whether considered

together or separately do not amount to ineffective assistance of counsel:

(1) Trial counsel neglected to offer evidence that Johnson always stamps the returns with her office information, and the 1040x returns presented during the trial were not so stamped. See Dkt. 191-1 at 8 (Johnson Decl. ¶ 9); (2) He failed to show that the IRS had sent Johnson a letter in February 2021 informing her that she was a victim of identity theft, which could well have created a doubt as to whether it was she or someone else who submitted the tax returns. See Dkt. 191-1 at 18–21 (IRS letter annexed as Exhibit B to the Johnson Dec. referred to at para. 10 thereof); (3) He failed to offer evidence that, after she was arrested by IRS criminal investigative agents, Johnson completed and filed IRS Form 14039, Dkt. 191-1 at 23 (Johnson Decl. Exhibit C) as the IRS had instructed her. This 17 could have created an inference that she was not the person submitting the false tax returns as someone else had pirated her identity; (4) Trial counsel also failed to present evidence that, during Shauna Henline’s telephone interview with the government and in her affidavit, Henline never mentioned any of the names from the trial exhibits presented at the trial but mentioned them freely at trial.

.

Johnson’s alternative grounds for seeking to vacate her conviction and sentence

fall well short of satisfying the Strickland standard. She makes little (to no) effort to

explain why these four decisions by her trial counsel fell outside “the wide range of

reasonable professional assistance,” Strickland,

, and she makes little (to

no) effort to argue that, absent these purported errors, “the result of the proceeding would

have been different,” Payne,

(quoting Strickland, 466 U.S. at 687–88). To

take just one example, Johnson fails to explain how evidence of identify theft would have

invited the jury to disregard her declaration admitting that she prepared the Moores’

returns; the fact that she prepared the Moores’ 2011 Form 1040; and the testimony of

Bladen Russell that Johnson, in fact, prepared his fraudulent return at issue in Count One.

The Court declines to set aside the judgment and sentence imposed in this case based on

so sparse a showing.

CONCLUSION

For the foregoing reasons, Defendant’s motion to set aside her sentence, Dkt. 192, is

DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: July 5, 2023

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