Odoni v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SIMON ANDREW ODONI,

Petitioner,

v. Case No: 8:16-cv-1231-T35AAS

Case No. 8:08-cr-172-T35EAJ

UNITED STATES OF AMERICA,

Respondent.

ORDER

This matter is before the Court on Petitioner Simon Andrew Odoni’s Amended

Motion under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence. Civ.

Docs. 33 and 34. The United States filed a Response in Opposition (Civ. Doc. 39), and

Odoni filed an Amended Reply (Civ. Doc. 80). For the reasons stated herein, Odoni is

not entitled to relief.

I. STATEMENT OF THE CASE AND FACTS

A. Procedural History

A federal grand jury in Tampa, Florida, returned a 36-count superseding indictment

charging Paul Gunter, Odoni, and others with various offenses relating to two investment-

fraud schemes. Crim. Doc. 160. Count One charged Gunter, Odoni, and others with

conspiring to commit mail fraud and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343,

and 1349. Id. at 14–28. Count Two charged Gunter, Odoni, and others with conspiring

to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. Id. at 28–34. Count

Three charged Gunter, Odoni, and others with conspiring to commit various money

laundering offenses, in violation of 18 U.S.C. §§ 1956(a)(2)(A), 1956(a)(2)(B)(i), 1957,

and 1956(h). Id. at 34–39. Counts Four through Seven and Nine through Seventeen

charged Gunter and others – including Odoni, in Count Eleven – with engaging in illegal

monetary transactions, in violation of 18 U.S.C. §§ 1957 and 2. Id. at 39–44. Counts

Eighteen through Twenty-Seven charged Gunter, Odoni, and others with mail fraud, in

violation of 18 U.S.C. §§ 1341 and 2. Id. at 44–47. Counts Twenty-Eight through Thirty-

Six charged Gunter, Odoni, and others with wire fraud, in violation of 18 U.S.C. §§ 1343

and 2. Id. at 47–51. Following a lengthy joint trial, Odoni and Gunter were convicted as

charged. Crim. Doc. 849 at 7–12. Odoni was sentenced to 160 months’ imprisonment.

Id. at 863.

Odoni appealed, claiming that (1) this Court lacked personal jurisdiction over him;

(2) there was insufficient evidence to convict him; (3) this Court erred in denying his

motion for a new trial; and (4) his 160-month sentence was unreasonable. In January

2015, the Eleventh Circuit Court of Appeals rejected Odoni’s claims and affirmed his

convictions and sentence. United States v. Odoni, 782 F.3d 1226 (11th Cir. 2015).

Odoni’s petition for Supreme Court review was denied on May 18, 2015. Odoni v. United

States, 135 S. Ct. 2339 (2015).

Odoni timely filed his initial Section 2255 motion, and this Court ordered the United

States to respond. Civ. Docs. 1 and 4; Washington v. United States, 243 F.3d 1299,

1300 (11th Cir. 2001) (explaining that if a prisoner timely petitions for certiorari review,

the Section 2255 limitation period “begins to run when the Supreme Court denies

certiorari or issues a decision on the merits”). Before a response was filed, however,

Odoni moved to amend his Section 2255 motion. See generally Civ. Docs. 9–27. In

late September 2017, this Court granted Odoni’s motion to file an amended Section 2255

motion. Id. at 30—34. The United States filed its Response in Opposition to the

amended Section 2255 motion, and subsequently, Odoni filed his Amended Reply. Id.

at 39 and 80.

B. Factual Background

The following summary of Odoni’s two criminal schemes is quoted from the

Eleventh Circuit’s decision affirming his convictions and sentence:

A. Fraudulent-Stock Scheme

Lawrence Hartman and Richard Pope began operating a

fraudulent-stock scheme in 2003. Hartman would procure

valueless United States shell companies that did no real

business but appeared to be legitimate publicly-traded

entities. Pope would then recruit salespeople to sell stock in

those companies to investors. Hartman and others created

brochures, websites, and press releases containing fabricated

information meant to portray the shell companies as legitimate

investment opportunities. Pope’s salespeople, called

“advisors,” would call potential investors, mostly in the United

Kingdom, and try to sell them stocks in the shell companies

using “scripts” based on fabricated information intended to

make the companies looks more attractive.

Odoni played two key roles in the fraudulent-stock scheme.

First, he managed Bishop and Parkes, an advisor group that

employed a sales floor of advisors, i.e., individuals who used

fabricated scripts to sell stocks in the valueless shell

companies. Odoni’s responsibilities at Bishop and Parkes

included managing the sales floor, helping advisors’ “write

good scripts,” and ensuring advisors were “chasing money in.”

In exchange for his work, Odoni received a portion of the

investors’ funds.

Second, Odoni served as the CEO and sole director of

Nanoforce Incorporated, one of the valueless shell companies

Hartman procured. Salespeople told investors that

Nanoforce was a technology business, although, in reality,

Nanoforce did no business. In early May 2005, Odoni helped

create a website for Nanoforce and told Hartman “[i]t would

probably look better” to use a webhosting company located in

the United States. In June 2005, Odoni circulated a

Nanoforce press release to Paul Gunter, Richard Pope, and

Zibiah Gunter, among others. The press release contained

false statements about Nanoforce’s business and efforts to

expand. Beginning in mid-2005, Odoni signed board

resolutions approving the issuance of Nanoforce stock to

investors who had purchased shares. From May 25, 2005,

through December 20, 2005, advisor groups convinced

investors to buy more than $12 million of worthless Nanoforce

stock.

B. Forex Fraud Scheme

In addition to the fraudulent-stock scheme, Odoni also

participated in a Forex fraud scheme, which involved the sale

of foreign-exchange options. Foreign-exchange options

allow investors to speculate on the future prices of major

currencies such as the pound, yen, euro, and dollar.

In furtherance of the Forex scheme, Michael Geraud, Jeff

Jedlicki, and others created Hartford Management Group, a

Barcelona firm that employed salespeople who called

potential investors and persuaded them to buy foreign-

exchange options. Legitimate firms selling foreign-exchange

options are required to disclose the risks of foreign currency

investment and honestly advise investors about the outlook of

the foreign currency market. Hartford Management Group,

by contrast, falsified information about future developments in

the currency market and told investors only about the profits

they could expect to gain from trading in the foreign exchange

market without disclosing any of the associated risks.

Legitimate foreign currency firms also typically place trade

hedges against their clients’ trades, so that if a client is right

about the price movement of a currency, the firm has enough

money to pay the client back. Hartford Management Group,

on the other hand, “never hedges [its] accounts at all”; they

“just rolled the dice that over time the clients would lose.”

Odoni participated in the Forex fraud scheme by providing

escrow services to Hardford Management Group—that is, he

received investor funds and transferred them to a clearing

firm. In this role, Odoni created an escrow company,

International Escrow Enterprises, and set up accounts at

Bank of America to receive investor funds. In exchange for

providing these escrow services, Odoni collected a 5%

escrow fee, which he split with co-defendant Paul Gunter and

Richard Pope. In total, more than $10.7 million of investor

funds came through International Escrow Enterprise’s bank

accounts.

Odoni, 782 F.3d at 1229–31 (footnote omitted).

II. LEGAL STANDARDS

A. Burden of Proof

In general, on collateral review the petitioner bears the burden of proof and

persuasion on each and every aspect of his claim, In re Moore, 830 F.3d 1268, 1272

(11th Cir. 2016) (collecting cases), which is “a significantly higher hurdle than would exist

on direct appeal” under plain error review, United States v. Frady, 456 U.S. 152, 164–66

(1982). Accordingly, if this Court “cannot tell one way or the other” whether the claim is

valid, then the petitioner has failed to carry his burden. Moore, 830 F.3d at 1273; cf.

United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (in plain error review,

“the burden truly is on the defendant to show that the error actually did make a difference

… Where errors could have cut either way and uncertainty exists, the burden is the

decisive factor in the third prong of the plain error test, and the burden is on the

defendant.”). Odoni cannot meet this burden.

B. Cognizability

Odoni’s claims that counsel was ineffective are grounded in the Sixth Amendment

and are cognizable under 28 U.S.C. Section 2255. Lynn v. United States, 365 F.3d

1225, 1234 n.17 (11th Cir. 2004) (ineffective assistance claims should be decided in

Section 2255 proceedings).

C. Merits

In his amended Section 2255 motion, Odoni raises five claims of ineffective

assistance based on counsel’s alleged failure (1) to retain expert investigative services;

(2) to retain a forensic accountant; (3) to produce email evidence; (4) to advise Odoni of

the risks of a joint defense agreement; and (5) to conduct reasonable pre-trial

investigations. Civ. Docs. 33, 34, and 80.

1. Ineffective Assistance of Counsel Generally

To succeed on an ineffective assistance of counsel claim, a petitioner must show

that (1) his counsel’s performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When

evaluating performance, this Court must apply a “strong presumption” that counsel has

“rendered adequate assistance and [has] made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 690.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at

the trial could have acted, in the circumstances, as defense

counsel acted at trial.... We are not interested in grading

lawyers' performances; we are interested in whether the

adversarial process at trial, in fact, worked adequately.

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc; quoting White v.

Singletary, 972 F.2d 1218, 1220–21 (11th Cir.1992)).

To establish deficient performance, a petitioner must show that “no competent

counsel would have taken the action that his counsel did take.” Chandler v. United

States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). A petitioner demonstrates

prejudice only when he establishes “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. If the petitioner fails to establish either of

the Strickland prongs, his claim fails. Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292,

1319 (11th Cir. 2005).

2. Failure to Call Witnesses and Retain Experts

Generally, counsel's failure to call particular witnesses the petitioner thinks would

be helpful does not constitute ineffective assistance of counsel. Hardwick v. Crosby, 320

F.3d 1127, 1161 (11th Cir. 2003). Instead, it is regarded as a strategic or tactical

decision. Tompkins v. Moore, 193 F.3d 1327, 1334 (11th Cir. 1999) (counsel's failure to

call a witness who claimed she saw the victim alive after the State alleged the defendant

killed her was not ineffective when counsel believed the witness would not make a good

witness). "Which witnesses to call, and when to call them, is the epitome of a strategic

decision." Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004).

To demonstrate ineffective assistance of counsel for failing to call expert

witnesses, a petitioner must show this failure caused his performance to fall outside the

bounds of reasonable professional judgment. Dorsey v. Chapman, 262 F.3d 1181, 1186

(11th Cir. 2001) (holding that the petitioner did not establish ineffective assistance based

on defense counsel’s failure to call an expert witness because the petitioner failed to show

that counsel’s decision was so patently unreasonable that no competent attorney would

have chosen that strategy); see also Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099

(11th Cir. 2007) (“Even if counsel’s decision . . . appears to have been unwise in

retrospect, the decision will be held to have been ineffective assistance only if it was ‘so

patently unreasonable that no competent attorney would have chosen it.’”).

3. Failure to Conduct Pre-trial Investigation

“The Sixth Amendment guarantees a defendant the right to reasonably effective

assistance of counsel.” Mitchell v. Kemp, 762 F.2d 886, 888 (11th Cir. 1985).

Defense counsel’s duty to investigate before trial is governed by a reasonableness

standard. Id. at 888–89; Strickland, 466 U.S. at 691. Defense counsel must perform a

“reasonable” investigation or make a “reasonable” decision that such an investigation is

not warranted. Mitchell, 762 F.2d at 888; Strickland, 466 U.S. at 691. Further, defense

counsel’s decisions regarding the level of investigation warranted must be viewed with a

strong presumption of reasonableness at the time the decision regarding investigation

was made, not with the benefit of hindsight. Id. at 689. No absolute duty exists to

investigate particular facts or a certain line of defense. Chandler, 218 F.3d at 1317. To

show counsel’s performance was unreasonable, a petitioner has the burden of proving

that “no competent counsel would have taken the action that his counsel did take.” Id.

at 1315. The decision whether to present a line of defense or even to investigate it, is a

matter of strategy and is not ineffective unless the petitioner can prove that the chosen

course, in itself, was unreasonable. Hardwick, 320 F.3d at 1162, n. 146.

A tactical decision amounts to ineffective assistance of counsel "only if it was so

patently unreasonable that no competent attorney would have chosen it." Adams v.

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983); accord Strickland, 466 U.S. at 690.

Tactical decisions made by counsel do not render assistance ineffective merely because

in retrospect it is apparent that counsel chose the wrong course. Adams v. Balkcom,

688 F.2d 734, 739 (11th Cir. 1982); see also Alexander v. Dugger, 841 F.2d 371, 375

(11th Cir. 1988). Thus, a court deciding an ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. Strickland, 466 U.S. at 690.

4. Vague, Conclusory, and Unsupported Claims

It is well established that pro se complainants are held to less stringent pleading

standards than those applicable to lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The Court, however, cannot make assumptions as to the intent of claims raised by a

Section 2255 petitioner. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008)

(“Although we liberally construe pro se filings, we do not assume the role of advocate.”

(internal quotation marks omitted)). Accordingly, claims not fairly raised will not be

entertained on collateral attack. United States v. Jones, 614 F.2d 80 (5th Cir. 1980);

Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988) (claims raised only superficially

will not be treated as properly raised). Claims that lack specificity will also be dismissed

without further consideration. Jones, 614 F.2d at 81–82 (district court was justified in

dismissing petitioner’s Section 2255 claims when petitioner presented only conclusory

allegations to support those claims).

Likewise, vague, conclusory, speculative, or unsupported claims cannot support

an ineffective assistance of counsel claim. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

Cir. 1991); Caderno v. United States, 256 F.3d 1213, 1217 (11th Cir. 2001) (vague,

conclusory allegations in a Section 2255 motion are insufficient to state basis for relief);

see also Saunders v. United States, 278 F. App’x 976, 979 (11th Cir. 2008) (petitioner

must allege “reasonably specific, non-conclusory facts with respect to his claim such that

there was a reasonable probability sufficient to undermine confidence in the outcome.”).

III. SUBSTANTIVE ANALYSIS

A. Grounds One, Two, and Five

Odoni claims that counsel was ineffective because he failed to secure various

experts and did not conduct “reasonable pre-trial investigations[.]” Civ. Doc. 33 at 4–5,

9. These claims are unsupported and contradicted by the record and the affidavit of

Bjorn E. Brunvand, Odoni’s former trial counsel.

1. Ground One

In Ground One, Odoni claims his counsel should have retained “expert

investigative services” so he could better address: the “activities of the Rendina family

and their associates” regarding several companies including Nanoforce and Transglobal;

the methods by which 9.5 million shares of Nanoforce were allegedly transferred to Odoni

and illegally redistributed without his knowledge or consent; that Odoni was an “unwitting

puppet” in a scheme planned by his codefendants; and that Odoni had no “reason to

suspect there was anything criminal going on when he worked for Nanoforce, Inc.” Civ.

Doc. 34 at 7–9. Odoni provides documents to support his assertions regarding his

involvement with Nanoforce and claims that, with proper investigation, these documents,

used in conjunction with unidentified witnesses, would have caused the jury to find him

not guilty. Id. at 9 and Civ. Doc. 34-1.

Odoni’s contention that further investigation of the Rendina family’s role in

Nanoforce would have changed the outcome of the trial fails. The January 25, 2007,

letter purportedly signed by “David Rendina, CEO” upon which Odoni relies, Civ. Doc. 34-

1 at 4, was sent to Nanoforce investors advising them that they were being issued a

Refinery Science Corp. stock certificate as a distribution (dividend) of Nanoforce’s assets.

This document was introduced and discussed at trial several times. Victim investors

testified that they received this letter and the Refinery Science shares as a dividend but

had no dealings or communication with “David Rendina.” Crim. Doc. 836 at 28–29; Crim.

Doc. 838 at 194–197; Crim. Doc. 845 at 39–40. Odoni fails to provide any evidence,

such as affidavits or other verified documents, to support his claim of involvement by the

“Rendina family.” Counsel cannot be deemed ineffective for failing to investigate this

unsupported claim.

Moreover, according to counsel, he and Odoni discussed the “various defenses

available” and decided to pursue a defense “consistent with the position [Odoni] had

maintained since [counsel] first met him, that he was an innocent victim” of Pope, Gunter,

and others. Civ. Doc. 39, Ex. A at ¶ 8. Because they were conceding the fraud occurred

and arguing Odoni was a “victim” and “unwitting puppet” of Pope and the others, they

determined that “investigators with specialized training in security laws or forensic

accountants would really not add anything” to the defense. Id.

Odoni also fails to support his claim that a full pre-trial investigation by counsel

would have revealed that he was unaware of the transfer of 9.5 million Nanoforce shares

into his name. Civ. Doc. 34 at 8. Odoni contends that such an investigation would have

bolstered his “puppet” defense. Id. Contrary to Odoni’s claim, as discussed more

thoroughly below, however, counsel did elicit testimony that Odoni was a “puppet” for

Pope and the others. Crim. Doc. 838 at 50–52. This comports with Odoni’s agreed-upon

defense theory. Notwithstanding this testimony, the Eleventh Circuit upheld the judgment

and sentence against Odoni based on the fact that “Odoni knew the stocks he sold were

worthless because he was the CEO of Nanoforce, a fictitious shell company similar to the

ones being pitched on his sales floor. As the CEO of Nanoforce, Odoni knew the

company did not conduct any legitimate business.” Odoni, 782 F.3d at 1232.

Finally, Odoni claims that documents detailing Nanoforce’s operations, including

“mergers with other entities, sales of shares, multiple press releases, hiring of other

executive, scientists and agents, the US Government financial grant to fund research and

the award of patents for new technologies[,]” were never presented to the jury, despite

the fact that he provided them to counsel before trial. Civ. Doc. 34 at 8–9. Odoni fails

to show how these documents support his assertion that a “full investigation” of the

corporations and individuals involved would have resulted in a “proper defense” and a

different trial outcome.

The Eleventh Circuit reviewed Odoni’s challenge to the sufficiency of the evidence,

concluding that “[t]he evidence that Odoni knowingly and intentionally engaged in the

schemes to defraud was more than sufficient; it was overwhelming.” Odoni, 782 F.3d at

1232. This included “ample circumstantial evidence of Odoni’s knowledge.” Id. The

overwhelming evidence introduced at trial regarding Odoni’s knowledge and intent

concerning Nanoforce included January 2008 emails.

Specifically, Odoni emailed Gunter and Pope to alert them to certain information

he had seen on the Internet. Crim. Doc. 837 at 104-05. In an email, Odoni stated, “I

found some very disturbing stuff on one of the links on Motley Fool which leads me to

believe an insider is leaking info on our activities. Who the fuck could this be??????”

Crim. Doc. 837 at 105. Odoni explained that an anonymous Internet poster had made

connections between International Escrow Enterprises, Nanoforce, and other entities,

accounts, locations, and people involved in the fraud schemes. Id. at 105-06. Odoni

wrote, “No one here knows ANYTHING about IEE,” and asked Gunter and Pope, “[W]ho

the hell knows all this???” Id. at 105. Odoni noted that the Internet poster had

described Odoni as “nothing but a front man for others,” and he closed the email by telling

Gunter and Pope: “You need very much to be on your guard and lets [sic] get together

bloody quickly and figure this shit out.” Id.

Gunter agreed that the Internet posting was “quite disturbing.” Id. at 106. In

response, Odoni told Gunter and Pope that he had done further digging and had

discovered more posts that he characterized as “very disturbing.” Id. at 106-07. Among

other things, these posts claimed that Odoni was “a gopher for the big guys who are too

smart to have their names on anything.” Id. at 107. In response, Pope suggested that

they speak by phone the following day, rather than continuing discussions by email. Id.

at 107-08.

To prevail on his claim that counsel was ineffective because he did not retain

expert investigative services, Odoni must show that counsel’s performance was outside

the bounds of reasonable professional judgment and that no competent counsel would

have taken the action his counsel did take. Odoni clearly fails to satisfy this burden.

Odoni offers no specificity as to what this investigation would have revealed. He

certainly does not suggest that this investigation would have negated his own email traffic

from which any reasonable juror could have inferred at least a guilty conscience and, at

most, an unwitting confession of guilt. In sum, Odoni has offered no specific explanation

as to the prejudice he claims to have suffered. Odoni’s conclusory statement that his

Sixth Amendment right to a fair trial was violated does not meet the Strickland standard.

Odoni is not entitled to relief on Ground One.

2. Ground Two

In Ground Two, Odoni speculates that, had counsel retained a forensic accountant,

he would have been able to impeach several government witnesses during cross

examination, which “may have led to charges of obstruction of justice in some cases.”

Civ. Doc. 34 at 11. In addition, he asserts that a forensic accountant would have enabled

counsel to discredit an international wire transfer incorrectly attributed to Odoni. Id. at

11–12. Odoni surmises that a forensic accountant would have allowed counsel to

present unspecified “true facts” to the jury resulting in a different outcome.1 Id. at 12. As

noted above, according to defense counsel, he and Odoni determined that a forensic

accountant would not have benefitted the defense. Civ. Doc. 39, Ex. A at ¶ 9.

The record shows that Odoni’s counsel conducted lengthy cross-examination

regarding the document that reflected the international wire transfer to Odoni, which was

identified at trial as Government Exhibit 1131B, repeatedly pointing out that attributing

those funds to Odoni was a possible mistake. Crim. Doc. 847 at 100–106. This line of

defense continued through closing arguments when counsel argued that this transfer of

funds, which was erroneously portrayed as benefiting Odoni, was a “snapshot[] of [his]

innocence.” Crim. Doc. 848 at 95–97 (“[T]he intent” of the witness testimony about the

transfer “was to mislead you to believe that that money went to Simon Odoni. And it’s

clearly not the case.”); see also Civ. Doc. 39, Ex. A at ¶ 9 (“The evidence of the $300,000

transaction evidence [sic] ended up being used as a persuasive snapshot of innocence

1 To the extent that Odoni argues that a forensic accountant would have testified about

“petitioner’s involvement and participation in the alleged conspiracy[,]” Civ. Doc. 34 at 11, such

argument lacks merit because the testimony would not have been admissible. An expert witness

may not testify as to his opinion concerning ultimate legal conclusions. Montgomery v. Aetna Cas.

& Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (“A witness . . . may not testify to the legal

implications of conduct; the court must be the jury’s only source of the law.”).

in the trial, since it was made clear to the jury that the government made a mistake in their

evaluation of those funds and their attempt to connect those funds to Mr. Odoni or an

entity connected to him.”).

Counsel also raised this issue in a motion for new trial and request for evidentiary

hearing, claiming that when the jury asked for a copy of “Government Exhibit 1133B”, it

was intending to request Government Exhibit 1131B—the document reflecting the

international wire transfer to Odoni. Crim. Docs. 794 and 807. Counsel further claimed

that when the jury was told that there was no “Government Exhibit 1133B”, the jury

erroneously believed that Government Exhibit 1131B, which was one of Odoni’s essential

“snapshots of innocence,” also did not exist. Crim. Doc. 794 at 4. This Court denied

Odoni’s motion for a new trial (Crim. Doc. 816), and the Eleventh Circuit affirmed that

decision. Odoni, 782 F.3d at 1233 (“There is no basis in the record for Odoni’s claim that

the jury’s question meant the jurors did not consider all of the exhibits.”).

Odoni’s contention that he would not have been convicted had counsel corrected

erroneous testimony by a government witness about an international wire transfer of

€300,000 to an account controlled by Odoni and challenged the testimony of Zibiah

Gunter regarding funds sent to Odoni, lacks merit. Civ. Doc. 34 at 12. Odoni fails to

overcome the presumption that counsel’s decision to forego hiring an expert witness was

anything other than trial strategy. He also offers no evidence he suffered any prejudice

as a result of counsel’s decision. Strickland, 466 U.S. at 689; United States v. Perry, 908

F.2d 56, 59–60 (6th Cir. 1990). Odoni also fails to support his claim that retention of a

forensic accountant expert would have resulted in a different outcome at trial. These

claims entitle him to no relief.

3. Ground Five

In Ground Five, Odoni asserts that had counsel conducted a “reasonable” pre-trial

investigation, his cross-examination of witnesses and challenges to the evidence would

have been more effective and counsel would have been able to better identify possible

defense witnesses. Civ. Doc. 33 at 9; Civ. Doc. 34 at 17–24. However, Odoni fails to

demonstrate deficient performance or resulting prejudice, and therefore, he is not entitled

to relief on this ground.

Odoni’s assertion that counsel was ineffective because he failed to inspect and

photograph his “office” located at 8270 Woodland Center Boulevard, in order to contradict

testimony that the location was a “virtual office,” fails. Civ. Doc. 34 at 17–18. Evidence

admitted during trial clearly showed this location was a “virtual office.” Odoni himself

described it as such in email. Crim. Doc. 845 at 146, 157 (“[M]y CC has been whacked

for the virtual office in the tune of $571.00.” and “Temple- $ 392.00 for the virtual office

facilities”).

Additionally, the evidence Odoni suggests should have been raised during Pope’s

cross-examination was discussed at length during trial. During his opening statement,

counsel asserted that Odoni knew Pope socially and had “only sporadic contact” with him

between 1985 and 2005. Crim. Doc. 833 at 50. Counsel emphasized that “Mr. Odoni

was used as a pawn or puppet by Mr. Pope and others[.]”). Id. at 52. Counsel further

urged that Odoni had “absolutely no knowledge whatsoever of any fraud” being

committed. Id. at 53. These same points were elicited on cross-examination of Pope.

Crim. Doc. 838 at 42–44 (Pope and Odoni connected in 1985 and had sporadic contact

until the late 1990’s.); id. at 50–52 (Pope described Odoni as a puppet during prior

testimony.); id. at 71–72 (Odoni was not included in various emails.); id. at 74–76 (Odoni

established an escrow account of the Forex industry started by Gunter and took care of

Coco Cabana for Pope.). This line of questioning comports with Odoni’s defense theory.

The record also contradicts Odoni’s claim that counsel was ineffective during

cross-examination of David Manley. On cross-examination, counsel elicited from Manley

that Odoni voluntarily turned himself into the police, that Odoni was concerned that

investors get their money back, and that Odoni’s interview with Manley may have been

confusing because the parties to the interview were talking over one another. Crim. Doc.

843 at 107–110.

Odoni fails to demonstrate that defense counsel’s investigation was deficient.

Further, the issues Odoni claims counsel should have investigated, in fact, were raised

during trial. Odoni’s allegations of ineffective assistance of counsel constitute neither

deficient performance nor prejudice and entitle him to no relief.

B. Ground Three

In Ground Three, Odoni alleges that counsel’s failure to produce email evidence

at trial exposing witnesses’ “character and motives” prejudiced his defense. Civ. Doc.

33 at 6–7. To support his claim, Odoni provides a selection of emails he claims would

have discredited witnesses’ testimony and would have supported Pope’s testimony that

Odoni was “merely a ‘puppet.’” Civ. Doc. 34 at 13–14. Contrary to Odoni’s claim,

counsel used several emails “brought to [his] attention by Simon Odoni in an attempt to

persuade the jury that [Odoni] was a victim rather than a willing participant in the

fraudulent conspiracy.” Civ. Doc. 39, Ex. A at ¶ 10.

Odoni claims that an email between Pope and his Dominican Republic neighbor,

Patrick Smit, shows Pope’s deceptive character and motive. Civ. Doc. 34 at 13–14; Civ.

Doc. 34-3. Odoni believes this email, and the others he attached to his motion,

demonstrate that these witnesses were deceptive and untruthful. Counsel, however,

consistently pursued the agreed–upon defense that Odoni was an unknowing and

unwitting participant. During cross-examination, counsel even elicited an admission

from Pope that he was “a master of deception.” Crim. Doc. 838 at 68. Contrary to

Odoni’s claim, counsel conducted a lengthy cross-examination of witness Sean McCart,

questioning him about his role as president of Knightsbridge and Crown Escrow Service

and meetings with Odoni in Spain. Crim. Doc. 841 at 16–22. Moreover, counsel

traveled to the Dominican Republic and United Kingdom to interview witnesses and, with

the assistance of an investigator, interviewed or attempted to interview other witnesses

by telephone or electronically. Civ. Doc. 39, Ex. A at ¶¶ 4–6.

To the extent counsel did not use all the emails suggested by Odoni, counsel made

tactical decisions not to rely on those emails, decisions which Odoni has not shown to fall

outside the bounds of reasonable professional judgment. Accordingly, this claim entitles

Odoni to no relief.

C. Ground Four

In Ground Four, Odoni contends that counsel failed to advise him of the risks

associated with a joint defense agreement and did not consult with or support Odoni

testifying at trial. Civ. Doc. 33 at 8; Civ. Doc. 34 at 15–16. This claim is contradicted by

counsel’s affidavit and the record.

Odoni’s counsel states that there was no joint defense agreement, “formal,

informal, or otherwise.” Civ. Doc. 39, Ex. A at ¶ 11. Furthermore, even if there were a

joint defense agreement, Odoni fails to show that there was a conflict stemming from the

use of any confidential information about him by a co-defendant that undermined the

propriety of his conviction or his counsel’s effectiveness.

Odoni also claims that he expected Gunter to “take the stand and confirm that

Odoni had no knowledge of the criminality of the underlying charges and place Odoni in

the position of least culpable and the recipient of little compensation” and that Odoni “had

been lied to and manipulated, and had no knowledge.” Civ. Doc. 33 at 8. Odoni offers

no basis for this expectation, nor is any such expectation reasonable in light of the obvious

significant risk to Gunter.

He further asserts that, had counsel properly prepared him to testify, the jury would

have found him not guilty. Id. Odoni’s claim that ineffective assistance of counsel

caused him to be “unprepared and unable to affirmatively respond” when asked if he

wished to testify, is equally unavailing. “A criminal defendant has a fundamental right to

testify in his defense.” United States v. Hun Thien Ly, 646 F.3d 1307, 1313 (11th Cir.

2011) (citing Rock v. Arkansas, 483 U.S. 44, 52 (1987)). “Although often framed as a

right to testify, it is more properly framed as a right to choose whether to testify.” Id.

(citing United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc)). That

right “is truly protected only when the defendant makes his decision knowingly and

intelligently.” Id. (citing Teague, 953 F.2d at 1533). “Defense counsel bears the primary

responsibility for advising the defendant of his right to testify or not to testify, the strategic

implications of each choice, and that it is ultimately for the defendant himself to decide.”

Topete v. United States, 628 F. App’x 1028, 1029 (11th Cir. 2015) (citing Teague, 953

F.2d at 1532–33)).

During a break from trial, defense counsel for Gunter and Odoni advised the Court

that it was “the defense’s intention to rest after the Government rests without calling any

witnesses[.]” Crim. Doc. 847 at 72. Gunter and Odoni were sworn and then engaged

in an extensive colloquy with the Court concerning that decision. Id. at 73. During this

exchange, Odoni confirmed his understanding that his lawyer was not going to present

testimony or witnesses in defense of the charges “beyond the evidence and testimony

that [the] lawyers have elicited so far by cross-examination of the Government’s

witnesses, … and the entry or admission of exhibits in the context of that cross-

examination.” Id. at 73–74. Odoni confirmed he understood that he was “entitled to

testify on [his] own behalf[,]” and, alternatively, “not to testify so as not to incriminate

[him]self.” Id. at 74. Odoni denied being threatened or promised a specific outcome to

give up his right to present a defense. Id. at 75. Odoni confirmed that he “had a full

opportunity to discuss this decision with [his] lawyers before [he] made this decision not

to present any further defense,” and that he was satisfied with counsels’ representation.

Id. at 75. This Court then asked:

THE COURT: Mr. Odoni, could you tell me, in your own words,

what you understand your decision to be?

DEFENDANT ODONI: Yes, I will not be mounting a defense

in answer to the Government's case.

Id. at 76. Odoni’s counsel advised the Court that he “fully disclosed the risks and

potential benefits” of this defensive strategy and that both counsel discussed it

“extensively” with Odoni. Id. at 76–77. After the United States rested its case, both

Gunter and Odoni immediately rested without offering any additional evidence and

without testifying. Id. at 115.

The record supports counsel’s assertion that he “thoroughly discussed the pros

and cons of Simon Odoni testifying throughout the trial preparations time as a well as

during trial” and advised Odoni that it was exclusively Odoni’s decision whether or not to

testify. Civ. Doc. 39, Ex. A at ¶ 11. Contrary to Odoni’s unsupported claim, counsel spent

“multiple hours and days” during trial preparation and while in trial preparing Odoni to

testify. Id. Ultimately, Odoni advised this Court he did not want to testify. Odoni’s claims

are contradicted by the record and counsel’s affidavit and entitle him to no relief.

III. NEED FOR EVIDENTIARY HEARING

Odoni is not entitled to an evidentiary hearing. No evidentiary hearing is required

where, as here, the record establishes that a Section 2255 claim lacks merit. United

States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984). Odoni has not established the

need for an evidentiary hearing because the issues he raises are facially insufficient to

merit relief and are based on faulty legal reasoning. But see Williams v. United States,

660 F. App’x 847, 850 (11th Cir. 2016) (citing Friedman v. United States, 588 F.2d 1010,

1015 (5th Cir. 1979) (contested fact issues in section 2255 motions cannot be resolved

solely on the basis of affidavits)).

IV. CONCLUSION

Odoni’s pro se Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence (Civ. Doc. 33) is DENIED. Additionally, Odoni’s “Request for Ruling on

Petitioner’s Section 2255 Motion to Vacate prior to His Release from Prison, August 4th,

2020” (Civ. Doc. 81) is DENIED AS MOOT. The CLERK is directed to enter a judgment

against Odoni, enter a copy of this order in the criminal action, and CLOSE THIS CASE.

On September 8, 2020, Odoni filed a “Notice of Change of Address and Request

for Leave to File Supplementary Documentary Support to Final Reply to 2255 Motion to

Vacate.” (Civ. Doc. 82). He states that, due to the COVID-19 pandemic restrictions in

his place of incarceration, he was unable to print and copy materials referenced in his

amended reply. He has since been released from confinement and asks that the Court

update the docket to reflect his current address. He further requests the Court grant

him leave to file unspecified materials referenced in his amended reply.

Upon consideration, Odoni’s motion is GRANTED IN PART AND DENIED IN

PART. Odoni’s motion is granted to the limited extent that the Clerk has already

updated the civil and criminal dockets to reflect his current address. Odoni’s motion is

otherwise denied. Odoni filed his amended reply, including over 100 pages of

supporting exhibits on April 6, 2020. (Civ. Doc. 80) Odoni waited over five months to

seek leave of Court to file additional exhibits. During such time, he filed another

motion, requesting that the Court rule on his Section 2255 motion before he was

released from confinement. (Civ. Doc. 81) Therefore, the conditions of Odoni’s

confinement did not prevent him from timely seeking leave to file additional exhibits.

Odoni fails to explain why he delayed more than five months to file this motion.

Furthermore, he fails to identify what specific materials he was unable to print and copy

while confined. The Court has thoroughly considered Odoni’s amended reply,

including the supporting exhibits, and Odoni has not demonstrated a sufficient reason to

grant him leave to belatedly file additional, unidentified materials.

DONE and ORDERED in Tampa, Florida, this 29th day of September, 2020.

( Ard ff □ -

J fy

MARYS. SGRIVEN

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Any Unrepresented Person