# Watson v. United States

> District Court, E.D. Missouri · August 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10235454

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** August 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10235454

## How later opinions describe it (automated extraction)

- holding that any inconsistency between conspirators’ initial statements to police that did not implicate the defendant and later statements naming him as a key player did not fall under Brady

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PIERRE WATSON, )
)
Petitioner, )
)
v. ) Case No. 4:19-cv-01545-AGF
)
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Pierre Watson’s motion filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Watson and two co-
defendants were charged with multiple offenses related to a counterfeiting scheme. On
November 7, 2016, Watson entered into an open plea and pled guilty to the following
charges: conspiracy to defraud in violation of 18 U.S.C. § 371 (Count One); bank fraud in
violation of 18 U.S.C. § 1344 (Count Two); and passing counterfeit securities in violation
of 18 U.S.C. § 513(a) (Count Nine). However, Watson’s plea to Count Nine was later
withdrawn and dismissed on the government’s motion.
Following a bench trial also held on November 7, 2016, this Court found Watson
guilty of three additional charges: passing counterfeit securities in violation of 18 U.S.C.
§ 513(a) (Count Eight); possessing an implement suitable for making counterfeit
securities in violation of 18 U.S.C. § 513(b) (Count Eleven); and tampering with a
witness in violation of 18 U.S.C. § 1512(b)(1) (Count Twelve).1 The Court sentenced
Watson to 60 months’ imprisonment on Count One and 84 months’ imprisonment on

Counts Two, Eight, Eleven, and Twelve, all such sentences to run concurrently.
In his pro se motion to vacate and set aside his conviction and sentence, Watson
asserts numerous claims of ineffective assistance of counsel and prosecutorial
misconduct. The Court scheduled an evidentiary hearing and appointed new counsel to
represent Watson. On March 10, 2021, the Court held the evidentiary hearing on
Watson’s claims, at which Watson and the attorney who represented him in the

underlying criminal case, Talmage E. Newton, IV, testified. Based on the entire record,
and having had the opportunity to observe and evaluate the demeanor of the witnesses at
the hearing, the Court will now deny Watson’s motion.
BACKGROUND
Criminal Investigation

The events leading up to the filing of criminal charges in this case were
summarized by the United States Court of Appeals for the Eighth Circuit on direct appeal
as follows:
On August 30, 2014, Maryland Heights, Missouri, police officers
approached a stopped car and found Watson in the driver’s seat. Watson was
arrested on several outstanding warrants. An inventory search of the vehicle
revealed the following items: four counterfeit payroll checks; a business
check in the name of an insurance company; two pieces of perforated check
stock; copies of a deposit ticket containing images of two checks drawn on a
Bank of America account belonging to the Law Offices of J.P.; two

1 This Court granted the government’s motion to dismiss Counts Four and Five
before trial; and Watson was not charged in the remaining counts (Counts Three, Six,
Seven, and Ten).
photocopies of checks drawn on an Enterprise Bank and Trust account
belonging to the law firm, Sher & Shabsin, P.C.; and a social security card
that was not issued to Watson.

The investigators discovered that from August 10 through August 19,
2014, the conspirators successfully passed six counterfeit checks drawn on
the Enterprise Bank account of Sher & Shabsin. One of these checks, written
for $465.90, was deposited into an account at U.S. Bank by co-defendant
Shontell Hill.

The counterfeit Sher & Shabsin checks were similar, but not identical,
to the two photocopied Sher & Shabsin checks seized during the inventory
search. The name of the bank, the bank routing number, and the five digit
length of the check numbers matched Sher & Shabsin’s account. On the
counterfeit checks, a transposed letter changed “Sher & Shabsin” to “Sher &
Shasbin.” The counterfeit checks also omitted the last digit of the law firm’s
account number, modified the number of signature lines, inserted a law firm
logo, removed Enterprise Bank’s logo, and included language that the check
was “VOID AFTER 90 DAYS” and “Do Not Cash If Amount Exceeds
$10,000.00.”

United States v. Watson, 883 F.3d 1033, 1035–36 (8th Cir. 2018).
Original and Superseding Indictments
As a result of the investigation, a federal grand jury returned an indictment on
September 23, 2015 (“Original Indictment”)2 charging Watson and a co-defendant,
Darisha Taylor, with the following:
COUNT3 DATE CHARGE FACTS
One August 11, 2014 18 U.S.C. § 1028A, Watson and Taylor
Aggravated Identity used the name of “J.F.”
Theft during the commission
of the crime of bank
fraud

2 The Original Indictment was returned by the grand jury to United States District
Judge Catherine D. Perry.

3 Watson was not charged in Counts Two or Three.
Four August 30, 2014 18 U.S.C. § 513(b), Watson possessed a
Possessing Counterfeit template of a business
Implements check in the name of
Tokio Marine
Specialty Insurance
Co.
Five August 30, 2014 18 U.S.C. § 1028A, Watson possessed the
Aggravated Identity name of “J.F.” during
Theft the commission of the
crime of bank fraud

United States v. Watson, Case No. 4:15CR00440 AGF, ECF No. 1 (E.D. Mo. Sept. 23,
2015).4
Newton was appointed to represent Watson, and Newton entered his appearance
on October 1, 2015. On October 2, 2015, the government disclosed evidence pursuant to
Federal Rule of Criminal Procedure 16. Crim. ECF No. 14. The evidence included,
among other things, the items seized from Watson’s vehicle on August 30, 2014; two
Maryland Heights police reports; a University City police report; a St. Louis County
police report; records from Sher & Shabsin; and a photographic line-up in which Watson
was identified as the individual who provided counterfeit checks. Id.
On January 20, 2016, the government filed a superseding indictment (“First
Superseding Indictment”),5 containing substantially similar charges as the Original
Indictment, but replacing the name “J.F.” with “M.S.,” as follows:

4 All references to filings made in the underlying criminal case will be identified
hereafter as “Crim. ECF No.”

5 The First Superseding Indictment was returned by the grand jury to United States
District Judge Ronnie L. White.
COUNT6 DATE CHARGE FACTS
One August 11, 2014 18 U.S.C. § 1028A, Watson and Taylor
Aggravated Identity used the name of
Theft “M.S.” during the
commission of the
crime of bank fraud
Four August 30, 2014 18 U.S.C. § 513(b), Watson possessed a
Possessing Counterfeit template of a business
Implements check in the name of
Tokio Marine
Specialty Insurance
Co.
Five August 30, 2014 18 U.S.C. § 1028A, Watson possessed the
Aggravated Identity name of “M.S.” during
Theft the commission of the
crime of bank fraud

Crim. ECF No. 51.
On January 26, 2016, co-Defendant Taylor pled guilty to the charges against her,
and thereafter, on January 27, 2016, the government filed a second superseding
indictment (“Second Superseding Indictment”)7 against Watson only, charging him with
the following:
COUNT DATE CHARGE FACTS
One August 11, 18 U.S.C. § 1028A, Watson and Taylor used
2014 Aggravated Identity the name of “M.S.” during
Theft the commission of the
crime of bank fraud
Two August 11, 18 U.S.C. § 513(a), Watson and Taylor passed
2014 Passing Counterfeit a counterfeited check in
Securities the amount of $869.50
drawn on an Enterprise
Bank & Trust account in

6 Watson was not charged in Counts Two or Three.

7 The Second Superseding Indictment was returned by the federal grand jury to
Chief United States District Judge Rodney W. Sippel
the name of Sher &
Shabsin, P.C.
Three August 13, 18 U.S.C. § 513(a), Watson and an individual
2014 Passing Counterfeit named Shontell Hill (“S.
Securities Hill”) passed a
counterfeited check in the
amount of $465.90 drawn
on an Enterprise Bank &
Trust account in the name
of Sher & Shabsin, P.C.
Four August 18, 18 U.S.C. § 513(a), Watson, Taylor, and an
2014 Passing Counterfeit individual named
Securities Courtney Lowe passed a
counterfeited check in the
amount of $489.75 drawn
on a Wells Fargo Account
in the name of Restoration
Temple Child
Development Center
Five August 30, 18 U.S.C. § 513(b), Watson possessed a
2014 Possessing Counterfeit template of a business
Implements check in the name of
Tokio Marine Specialty
Insurance Co.
Six August 30, 18 U.S.C. § 1028A, Watson possessed the
2014 Aggravated Identity name of “M.S.” during the
Theft commission of the crime
of bank fraud
Seven November 4, 18 U.S.C. § 1512(b)(1), Watson attempted to
2015 Witness Tampering persuade Taylor to
complete a fraudulent
affidavit in the charged
action.

Crim. ECF No. 65.
Watson, through defense counsel, moved to dismiss the charge of possession of
the Tokio Marine check template set forth in Count Five of the Second Superseding
Indictment on the ground that 18 U.S.C. § 513(b) was facially invalid in that it did not
include an express interstate commerce nexus, and thus exceeded Congress’s authority
under the Commerce Clause.8 Crim. ECF No. 73. This Court denied Watson’s motion to
dismiss on May 11, 2016. Crim. ECF No. 99.

After continued investigation into the activities of Watson and others, the
government filed a third and final superseding indictment (“Final Superseding
Indictment”)9 on May 18, 2016, charging Watson, S. Hill, and Desiree Hill (“D. Hill”)10
with the following:
COUNT11 DATE CHARGE FACTS
One July 9, 2014 18 U.S.C. § 371, Watson, S. Hill, D. Hill,
through Conspiracy to Defraud Jason Reese, Taylor,
May 22, 2015 Lowe, and others
engaged in a conspiracy
to commit the offenses
of bank fraud, identity
theft, aggravated
identity theft, and
passing counterfeit
securities between July
9, 2014 and May 22,
2015
Two August 14, 18 U.S.C. § 1344, Bank To further their bank
2014 Fraud fraud scheme, S. Hill
withdrew $200.00 from
her U.S. Bank account
after depositing a
counterfeit check drawn
on the Enterprise Bank

8 Defense counsel had similarly moved to dismiss the charge from the previous
indictments, and he preserved the motion for ruling with respect to the Second
Superseding Indictment.

9 The Final Superseding Indictment was returned by the federal grand jury to Chief
United States District Judge Ronnie L. White.

10 Desiree Hill is the daughter of Shontell Hill.

11 Watson was not charged in Counts Three, Six, Seven, or Ten.
& Trust account of Sher
& Shabsin P.C. in the
amount of $465.90 that
was provided by
Watson
Four August 11, 18 U.S.C. § 1028A, Watson used the name
2014 Aggravated Identity of “M.S.” during the
Theft commission of the
crime of bank fraud
Five August 14, 18 U.S.C. § 1028A, Watson used the name
2014 Aggravated Identity of “M.S.” during the
Theft commission of the
crime of bank fraud
Eight August 14, 18 U.S.C. § 513(a), Watson and S. Hill
2014 Passing Counterfeit passed a counterfeited
Securities check in the amount of
$465.90 drawn on an
Enterprise Bank & Trust
account in the name of
Sher & Shabsin, P.C
Nine August 18, 18 U.S.C. § 513(a), Watson and Taylor
2014 Passing Counterfeit passed a counterfeited
Securities check in the amount of
$489.75 drawn on a
Wells Fargo N.A.
account in the name of
Restoration Temple
Child Development
Center
Eleven August 30, 18 U.S.C. § 513(b), Watson possessed a
2014 Possessing Counterfeit template of a business
Implements check in the name of
Sher & Shabsin, P.C.
with the intent that it be
so used to create
counterfeit securities
Twelve November 4, 18 U.S.C. § 1512(b)(1), Watson and S. Hill
2015 Tampering with a attempted to persuade
Witness Taylor to complete a
fraudulent affidavit in
the charged action.

Crim. ECF No. 100.
Discovery and Pretrial Motions
On May 24, 2016, the government filed another discovery letter setting forth

evidence that supported the Final Superseding Indictment. Crim. ECF No. 126. The
documents referenced items that had been previously disclosed in the intervening time
period, as well as tapes of jail telephone calls, U.S. Bank records and surveillance photos
relating to the accounts of S. Hill and D. Hill, and a St. Louis County police report
detailing the U.S. Bank fraud. Id.
On June 14, 2016, Watson’s counsel, Newton, and S. Hill’s counsel filed

independent motions to dismiss. Newton, on behalf of Watson, again moved to dismiss
Count 11, which charged the possession of a counterfeit implement, on the ground that
the statute exceeded Congress’s authority under the Commerce Clause (Crim. ECF No.
130). He also sought to sever Watson’s trial from that of his co-defendants (Crim. ECF
No. 131) and to sever Count 12 (witness tampering) from the remaining counts (Crim.

ECF No. 132). Watson also filed a filed a pro se motion to dismiss the indictment based
on a perceived Speedy Trial Act violation. Crim. ECF No. 143. The Magistrate Judge
held a motion hearing on June 24, 2016, where Watson, with counsel present, withdrew
his pro se motion. At that hearing, the Magistrate Judge held an inquiry and determined
that Watson was fully satisfied with his attorney’s performance to date. See Crim. ECF

No. 178. Watson’s counsel thereafter requested, and was given leave, to file a motion to
dismiss out of time in order to assert Watson’s Speedy Trial Act claim; counsel filed that
motion on July 1, 2016. Crim. ECF No. 171. On August 5, 2016, after a hearing, the
Magistrate Judge recommended that the Court deny Watson’s motions (Crim. ECF No.
178), and October 18, 2016, this Court on de novo review agreed and denied Watson’s
motions. Crim. ECF No. 215.

On June 14, 2016, S. Hill’s counsel sought to dismiss the indictment on the ground
of vindictive prosecution, arguing that the prosecutor was retaliating against S. Hill for
refusing to testify against Watson. Crim. ECF No. 133. On August 5, 2016, after a
hearing, the Magistrate Judge recommended that the Court deny S. Hill’s motions (Crim.
ECF No. 177), and October 28, 2016, this Court on de novo review agreed and denied S.
Hill’s motions. Crim. ECF No. 227. The Court held that neither the record nor the

sequence of events in this case, including the timing and allegations of the various
indictments, supported S. Hill’s allegations that the government acted with improper
motive. See Crim. ECF No. 227.
Meanwhile, the government had begun investigating allegations that Watson
engaged in additional criminal activity while incarcerated pretrial in his criminal case

before the undersigned. On August 3, 2016, a federal grand jury returned an indictment
to Judge Perry charging Watson with conspiracy to commit bank fraud and wire fraud,
and substantive violations of bank fraud and aggravated identity theft; a new criminal
case related to these charges was opened before United States District Judge John A.
Ross. Criminal Case No. 4:16CR00336 JAR. Newton was again appointed to represent

Watson, and he represented Watson throughout that criminal case and appeal.
On October 31, 2016, the government moved to dismiss Counts Four and Five of
the Final Superseding Indictment (aggravated identity theft). Crim. ECF No. 234. The
government asserted that, during preparations for trial, it discovered that the name used
on the counterfeit checks giving rise to the charges was a misspelling of the victim’s
name due to a transposed letter. The government believed that, because the misspelled

name could not be used to properly identify the victim, the counterfeit checks could not
give rise to an aggravated identity theft conviction. This Court granted the government’s
motion on November 1, 2016. Crim. ECF No. 249.
Guilty Plea and Bench Trial
Watson’s criminal case was set for a bench trial on November 7, 2016, Watson
having waived his right to a jury trial. The government filed its exhibit and witness lists

on November 4, 2016. Crim. ECF No. 263 & 264.
On the morning of trial on November 7, 2016, Watson’s counsel informed this
Court that Watson wished to change his plea to Counts One (conspiracy to defraud), Two
(bank fraud on U.S. Bank), and Nine (passing counterfeit check on a Wells Fargo N.A.
account in the name of Restoration Temple Child Development Center) of the Final

Superseding Indictment; to enter an “open plea” to those Counts; and to proceed to a
bench trial on the remaining Counts Eight (passing counterfeit security on an Enterprise
Bank & Trust account in the name of Sher & Shabsin, P.C), Eleven (possessing
counterfeit implement in the form of a template of a business check in the name of Sher
& Shabsin, P.C.), and Twelve (witness tampering).

This Court thus held a plea colloquy with respect to Counts One, Two, and Nine,
and questioned Watson under oath. During the colloquy, Watson represented that he
received a copy of the Final Superseding Indictment; that he fully discussed the charges
and the case with his attorney, Newton; that he reviewed the evidence the government
had against him; that he understood the current pending charges; that he had enough time
to discuss his case and his plea with his attorney; that he understood the rights he was

giving up by entering a plea; that he was entering the plea of his own free will; that he
was satisfied with the representation he received from his attorney; and that there was
nothing Watson wanted his attorney to do for him that the attorney had not done in
representing him.
Because the parties had not entered a plea agreement or agreed to a stipulation of
the factual basis for the plea, Watson provided the Court with a factual basis in his own

words for Counts One, Two, and Nine. Watson admitted during the plea colloquy that he
and his fellow conspirators engaged in a scheme to defraud U.S. Bank, Enterprise Bank,
and Sher & Shabsin, P.C. He further admitted that, as a part of the scheme, he obtained
fraudulent checks that were either made by himself or given to him by another member of
the conspiracy to give to S. Hill for deposit in S. Hill’s bank account. The government

then represented that it was satisfied that Watson had adequately testified as to the factual
basis for these counts. Based on Watson’s representations, the Court accepted Watson’s
guilty plea to Counts One, Two, and Nine as knowing, intelligent, and voluntary.
Later that day, the Court began the bench trial on Counts Eight, Eleven, and
Twelve. In connection with the bench trial, the parties entered into a stipulation

regarding certain facts underlying Counts Eight and Eleven. Watson’s counsel
represented that the sole issues for trial with respect to those counts were the following
legal issues: with respect to Count Eight (passing counterfeit securities), whether the
check at issue qualified as a counterfeit security under the relevant statute in light of the
misspelling of the victim’s name, and with respect to Count Eleven (possessing
counterfeit making implement), whether the photocopied checks could qualify as a

counterfeit making “implement” under the relevant statute. The parties did not enter into
any stipulations of fact with respect to Count Twelve (witness tampering). See Crim.
ECF No. 274 at 49-56.
The government also presented two witnesses during the bench trial. The first
witness, Michael Shabsin, president and partner of Sher & Shabsin, P.C., testified
regarding the counterfeit checks that had been presented for payment on his law firm’s

account. Id. at 56-63. On cross examination, Watson’s counsel elicited testimony from
Shabsin that the counterfeit check at issue in Count Eight differed in several respects
from the law firm’s legitimate business checks, including that the counterfeit check
slightly misspelled the law firm’s name, omitted the last digit of the law firm’s account
number, modified the number of signature lines, inserted a law firm logo, removed a

bank logo, and included language that the check was “VOID AFTER 90 DAYS” and “Do
Not Cash If Amount Exceeds $10,000.00.” Id. at 63-71.
The second government witness was Taylor. She testified that Watson recruited
her to cash counterfeit checks and split the proceeds with him, and that while Watson was
in pretrial detention in November of 2014, Watson called Taylor on the telephone and

asked her to file a false affidavit in this Court regarding Watson’s criminal case.
Watson’s counsel did not present any witnesses. A transcript of this call and a call log
from the jail was also introduced into evidence.
Post-Trial Motions
On November 18, 2016, Watson, through attorney Newton, moved for a judgment

of acquittal on Counts Eight, Eleven, and Twelve, on the ground that the government
failed to prove the requisite elements of these charges beyond a reasonable doubt.
Regarding Count Eight (passing counterfeit securities), Watson argued that the check at
issue was not a “counterfeit security . . . of an organization” because of the misspelling of
the payor law firm’s name. With respect to Count Eleven (possessing counterfeit making
implement), Watson argued that a photocopy of two legitimate checks was not an

“implement” designed or particularly suited for making a counterfeit or forged security,
as required by the relevant statute, particularly because the counterfeited checks actually
passed by Watson and others differed in several respects from the photocopies. Finally,
regarding Count Twelve (witness tampering), Watson argued that merely asking a
witness to lie in an affidavit does not constitute witness tampering under the relevant

statute. Crim. ECF No. 275.
On January 24, 2017, the government moved to voluntarily dismiss Count Nine
(passing counterfeit check drawn on a Wells Fargo N.A. Account in the name of
“Restoration Temple Child Development Center”), to which Watson had previously pled
guilty, because the government believed it had failed to obtain allocution of all of the

elements of the offense during the change of plea. Crim. ECF No. 292. As a result,
Watson moved to withdraw his guilty plea to Count Nine.
On January 25, 2017, the Court granted both motions regarding Count Nine, and
Count Nine was dismissed. Crim. ECF No. 295. The same day, January 25, 2017, this
Court denied Watson’s motion for judgment of acquittal on Counts Eight, Eleven, and
Twelve, and found that the government had proved Watson’s guilt on these counts

beyond a reasonable doubt. Crim. ECF No. 296.
On May 23, 2017, less than two weeks before his sentencing hearing, Watson,
through attorney Newton, filed a motion to withdraw his guilty plea to Count Two (bank
fraud) and a portion of Count One (conspiracy). Crim. ECF No. 352. Watson asserted
that, after additional post-trial review of the transcript, witness statements, and discovery
materials, Watson realized he was confused about which check formed the basis of Count

Two. Watson asserted that he was factually innocent of the charges involving the Sher
& Shabsin check at issue in Count Two and in a portion of Count One, because he was
incarcerated on a different matter at the time S. Hill cashed that check and therefore could
not have given the check to S. Hill. Watson asserted that he had been unable to evaluate
the evidence against him at the time of his plea.

On June 5, 2017, the Court held a hearing on Watson’s motion to withdraw his
plea. At that hearing, Watson again confirmed that he was satisfied with his attorney,
that there was no question he had that his attorney had not answered, and that there was
nothing he asked his attorney to do that the attorney had not done. Crim. ECF No. 360.
Watson then testified that he was confused about which check was at issue in Count Two

because he had not seen the particular Sher & Shabsin check until trial. On cross-
examination, Watson admitted that he had seen the check when he reviewed the original
discovery more than a year before trial, but that the account number on the check had
been redacted at that time.
This Court then reviewed the transcript of the change-of -plea hearing and pointed
to evidence in the record that established Watson clearly understood the consequences of

entering guilty pleas and knowingly admitted to a detailed factual basis in support of
Counts One and Two, including that Watson passed counterfeit Sher & Shabsin checks
drawn on the law firm’s Enterprise Bank account—the same law firm and bank contained
in the factual allegations of Counts One and Two. The Court held:
[I]t appears . . . from a full review of the record that the defendant in this case
made very deliberate and strategic decisions about how to proceed with the
case overall based upon the particular checks that were at issue in this case.
And after planning initially to proceed to trial, the defendant made the
deliberate decision to plead guilty to Counts 1, 2, and 9 and to proceed to
trial with respect to Counts 8, 11, and 12. And essentially with respect to
Counts 8 and 11, this defendant also chose to depend upon legal arguments,
which . . . were not successful.

Crim. ECF No. 360 at 28-29. The Court also held that Watson had admitted and there
was no reason to doubt that the particular check at issue in Count Two was provided to
him as part of the original discovery and that any redaction in the account number at that
time was irrelevant. Further, the Court held that Watson’s claim that he was incarcerated
during the time that S. Hill cashed the check at issue did not undermine Watson’s guilt
because Watson could have arranged for someone else to provide the check to S. Hill. In
short, the Court held that Watson’s new and self-serving claim that he was confused
about which checks corresponded to Counts One and Two was directly contradicted by
his statements during his plea colloquy. The Court thus denied Watson’s motion to
withdraw his guilty plea to those counts.
Sentencing
The Court held a sentencing hearing on June 16, 2017. At the beginning of that

hearing, Watson represented that he had received and reviewed the final presentence
investigation report (“PSR”) prepared by the United States Probation Office. Watson,
through attorney Newton, asserted numerous objections to the PSR, including objecting
the imposition of various sentencing enhancements as recommended by the PSR, such as
enhancements based on the number of people involved in the conspiracy; Watson’s role
in the offense; the loss amount; and the trafficking of an access device, namely, a debit

card, used in connection with fraudulent transactions. The government responded to
Watson’s objections and also presented the testimony of a witness, Special Agent
Scowcroft, in support of the government’s request for the sentencing enhancements.
Based on the entire record, including the evidence presented at the sentencing
hearing, the Court overruled Watson’s objections to the PSR. The Court also granted in

part the government’s motion for an upward variance from the United States Sentencing
Guidelines, which Watson, through counsel, opposed. While the government sought an
upward variance for a total of 120 months’ incarceration, the Court only sentenced
Watson to 84 months’ incarceration.12 The Court noted that, even if it had granted some
of Watson’s objections to the PSR, such as the intended loss amount, the Court still

12 The Court sentenced Watson to 60 months’ imprisonment on Count One and 84
months’ imprisonment on Counts Two, Eight, Eleven, and Twelve, all such sentences to
run concurrently.
would have imposed a sentence of 84 months’ incarceration.13 Crim. ECF No. 374 at 72.
The Court held that the sentence would be consecutive to any sentence imposed in

Watson’s other federal criminal cases pending in the Eastern District of Missouri. The
also ordered Watson to make restitution in the amount of $9,045.40 to his victims.
Direct Appeal
Watson, through attorney Newton, filed a direct appeal on June 29, 2017. Crim.
ECF No. 369. The United States Court of Appeals for the Eighth Circuit appointed
Newton to continue representing Watson through the appeal. Crim. ECF No. 372. The

appeal challenged: (1) the sufficiency of evidence to support the conviction of Watson’s
possession of a counterfeit-making template charged in Count Eleven; (2) this Court’s
decision to direct Watson’s sentence to run consecutive to a yet-to-be-imposed sentence
in Watson’s other federal criminal case; and (3) this Court’s denial of Watson’s motion to
withdraw his guilty plea to Counts One (conspiracy) and Two (bank fraud). United

States v. Watson, 883 F.3d 1033, 1035 (8th Cir. 2018)
On February 28, 2018, the Eighth Circuit affirmed this Court’s judgment. The
appellate court held that the evidence was sufficient to support Watson’s conviction in
Count Eleven and rejected as a matter of law Watson’s argument that the photocopied

13 The reasons for variance included Watson’s extensive criminal history—28
criminal history points—history of committing new crimes while on supervision, and
practice of inducing others to participate in his schemes, as well as the need to protect the
public and deter Watson from engaging in similar illegal conduct. Crim. ECF No. 374 at
72-74
Sher & Shabsin checks at issue in Count Eleven did not constitute a counterfeit making
implement under 18 U.S.C. § 513(b).

The appellate court next held that Watson’s challenge to this Court’s decision to
run his sentences consecutively was moot because the judge in Watson’s other federal
criminal case independently imposed a consecutive sentence and because “[t]he
consecutive nature of the sentences [was] eminently reasonable given that [Watson’s]
additional criminal conduct was committed while he was in custody on the charges in this
case.” Id. at 1037.

Finally, the appellate court affirmed the denial of Watson’s motion to withdraw
his guilty plea to Counts One and Two, holding that Watson’s “self-serving claim that he
was confused about which checks corresponded to those counts [was] directly
contradicted by his statements during his plea colloquy.” Id. at 1038.
Motion to Vacate

In his § 2255 motion now before this Court, Watson asserts six claims of
ineffective assistance of counsel and one claim of prosecutorial misconduct. Watson
does not provide any explanation of his claims in his motion (ECF No. 1), but he includes
a lengthy narrative with respect to each of his claims in a supporting memorandum
attached to his motion (ECF No. 1-1). Watson filed his motion and supporting

memorandum pro se, and although the Court appointed counsel at Watson’s request
thereafter, appointed counsel did not amend these pro se filings.
As best the Court can discern from Watson’s memorandum, Watson asserts that
defense counsel was ineffective for:
Ground 1: advising Watson to plead guilty to charges of which counsel knew or
should have known that Watson could not be convicted, based on the evidence of record

and/or on Watson’s legal interpretation of the statutes at issue, and advising Watson to
plead guilty to some charges while proceeding to trial on others even though all of the
charges were directly related.
Ground 3: failing to file motions for an early disclosure of material subject to the
Jencks Act,14 18 U.S.C. § 3500, and for the government to disclose evidence favorable to
the Watson and impeachment material “in order to ensure such evidence being withheld

by the government under the guise of it being Jencks material.” ECF No. 1-1 at 39.
Ground 4: failing to review discovery and Jencks material in unredacted form in
order to discover favorable evidence and assert Brady violations, in particular:
a. Maryland Heights Police Officer Matt Schmitz’s August 30, 2014 incident
report, which does not mention any photocopies of checks with the name of
Sher & Shabsin, P.C. among the items seized from Watson’s vehicle, despite
mentioning the company names listed on other checks seized from that vehicle,
and a Secret Service report prepared by Special Agent Kristen Scowcroft,
which stated that two Sher & Shabsin checks were seized from Watson’s
vehicle in connection with his arrest.15 See App’x, Disc. Docs., ECF No. 114-
1 at pp. 1-7, 67-89.

14 “The Jencks Act requires a court to order the government, upon request by the
defendant, to produce any statement in the government’s possession which relates to the
matter on which a witness called by the government has testified on direct
examination.” United States v. Benton, 890 F.3d 697, 718 (8th Cir. 2018) (citing 18
U.S.C. § 3500(b)), judgment corrected (May 15, 2018).

15 Watson asserts that he received copies of the Sher & Shabsin checks along with
Officer Schmitz’s August 30, 2014 incident report during the discovery process prior to
his plea and trial, but he does not know whether the copies of the checks were included in
the incident report or were added to that report at some time after his arrest.
b. Maryland Heights Police Officer Schmitz’s July 28, 2014 incident report
summarizing an interview of Lawanda Ledbetter in which Ledbetter described
an assault earlier that day by Watson inside a white Chevy Suburban that
Watson was operating; and Schmitz’s August 30, 2014 incident report which
states that Watson was found in a brown Chevrolet Suburban. See App’x,
Jencks Docs., ECF No. 116-1 at pp. 7-11; App’x, Disc. Docs, ECF No. 114-1
at pp. 67-72.

c. St. Louis County Police Report dated April 5, 2016, summarizing an
interview of D. Hill taken on March 29, 2016, in which D. Hill stated that
she cashed a counterfeit check after a “black male she knows” asked her
to do so and told her she would receive money in exchange, but D. Hill
refused to name the black male. See App’x, Jencks Docs., ECF No. 117-
1 at pp. 2-8.
d. St. Louis County Police Report dated March 4, 2015, summarizing an
interview of Taylor following her arrest in which Taylor denied cashing
a counterfeit check, requested a lawyer, and was not asked about and did
not mention Watson. See App’x, Jencks Docs., ECF No. 117-1 at pp. 37-
39.
e. Special Agent Scowcroft’s report dated January 13, 2016, summarizing
an interview of Taylor taken that day, in which Taylor stated that on
November 1, 2015, a woman called Taylor and added Watson to the call
as a three-way conference call, and that on the call, Watson asked Taylor
to lie about crimes they committed. Whereas the transcript of the call
does not indicate that it was a three-way call. See App’x, Jencks Docs.,
ECF No. 117-1 at p. 50.16
Ground 5: failing to argue that Count Four of the Original Indictment should have
been dismissed “due to there not being any counterfeit securities [bearing] the name
Tokio Marine Specialty Insurance Company” and failing to argue that Count Eleven of
the Final Superseding Indictment (which changed the company name on the counterfeit

16 As part of his argument for Ground Four, Watson also challenges the sufficiency
of the evidence supporting various sentencing enhancements, including enhancements
related to the loss amount, Watson’s role in the offenses, the number of people involved
in the conspiracy, and whether Watson was involved in the trafficking of an access
device.
making template from Tokio Marine Specialty Insurance Company to Sher and Shabsin,
P.C.) lacked sufficient evidence.

Ground 6: failing to seek to withdraw from representing Watson on direct appeal
after Watson asked him to either withdraw and after counsel refused to assert all of the
arguments that Watson wanted him to assert on appeal.
Ground 7: refusing to file motions requesting the recusal of the undersigned in
Watson’s criminal case and of Judge Perry in an earlier criminal case charging Watson
with escape for an alleged conflict of interest.

Watson further asserts a claim of prosecutorial misconduct (Ground Two) on the
ground that the prosecutor failed to disclose the allegedly favorable evidence described
above, in violation of Brady, and allowed or encouraged perjury during the grand jury
proceedings and sentencing hearing.
Watson bases his claim regarding perjured testimony on the differences between

the facts stated in the original indictment and superseding indictments, such as the change
from the initials “J.F.” to “M.S.” as the name used during the bank fraud and the removal
of any reference to “Tokio Marine Specialty Insurance Co.” Watson suggests that these
changes indicate that there was insufficient evidence to support the original indictment
and that grand jury testimony used to support the indictment must therefore have been

perjured.
Watson further contends that Special Agent Scowcroft lied throughout the
sentencing hearing when describing Watson’s trafficking of an access device in the form
of a debit card; when describing the seizure of evidence; when describing the statements
that D. Hill, S. Hill, and others made to law enforcement officers; and when stating that
two Sher & Shabsin checks were seized from Watson’s vehicle in connection with his

arrest.
The government responds that, to the extent that Watson asserts claims based on
alleged violations of the Jencks Act or insufficiency of the evidence presented during
trial and sentencing, such claims are not cognizable under § 2255 or have been
procedurally defaulted, and should therefore be dismissed. The government further
asserts that each of Watson’s claims is without merit.

Specifically, regarding Ground One, the government argues that the record
establishes that Watson’s guilty plea was knowing, voluntary, and intelligent, and that
Newton’s trial strategy in this regard was neither unreasonable nor prejudicial. In an
affidavit attached to the government’s response, Newton attests that, prior to Watson’s
plea of guilty to certain charges, he discussed with Watson the benefits and disadvantages

of the strategy to enter a partial guilty plea; and that these discussions included
consideration of the evidence, the posture of the co-defendants, and the relevant case
authority.
Regarding Grounds Three and Four, the government argues that no Brady
violation occurred because it did not fail to timely disclose any evidence material and

favorable to the defense and that a review of the Jencks Act material referenced by
Watson reveals that it had no exculpatory value and minimal impeachment significance.
The government further contends that it emailed unredacted copies of its trial evidence
and its Jencks Act materials to Newton on November 3, 2016; that when Newton
informed the government he had not received the Jencks Act material, the government
resubmitted that material on November 4, 2016; and that Newton received the Jencks Act

material and reviewed the material with Watson in person in Warren County, where
Watson was being detained pretrial, on November 6, 2016. In support of these assertions,
the government has submitted copies of the email correspondence between it and
Newton, as well as Newton’s affidavit attesting to these facts. ECF No. 25-1 – No. 25-6.
In his affidavit, Newton further attests that he reviewed and discussed all discovery
provided by the government with Watson. ECF No. 25-5.

As to Ground Five, the government argues that the Final Superseding Indictment
did not include any count relating to the Tokio Marine Specialty Insurance Company
check, and that any motion to dismiss such a count would therefore have been meritless.
Regarding Ground Six, the government contends that Watson never asserted a
conflict of interest with Newton during the trial court proceedings or on direct appeal and

that there was no reason for Newton to seek to withdraw from representing Watson on
direct appeal. The government further argues that Watson’s alleged dissatisfaction with
counsel for refusing to pursue Watson’s desired trial or appellate strategy does not
constitute ineffective assistance of counsel and is also contradicted by Watson’s
statements during the plea colloquy that he was satisfied with his counsel.

As to Ground Seven, the government argues that there was no basis to seek
recusal of any district court judges and that Newton was not ineffective for refusing to
file a baseless motion.
Finally, regarding the prosecutorial misconduct claim in Ground Two, the
government argues that no such misconduct occurred and that Watson’s allegations of

perjury and Brady violations are wholly unsubstantiated.
Evidentiary Hearing
The Court held an evidentiary hearing on Watson’s § 2255 motion on March 10,
2021, in person at Watson’s request. Watson and his appointed counsel appeared, and
the Court heard testimony from Newton and Watson. The evidentiary hearing focused on
Watson’s claims regarding (1) Newton’s advice to Watson to plead guilty to some but not

all counts and to stipulate to facts underlying other counts; (2) Newton’s decisions not to
seek to suppress, assert a Brady violation with regard to the Sher & Shabsin checks, or
otherwise challenge the government’s assertion that the Sher & Shabsin checks were in
fact possessed by Watson and recovered from Watson’s vehicle as part of the August 30,
2014 search by Maryland Height Police officer Schmitz; (3) Newton’s decision not to

assert a Brady violation with respect to police interviews of co-conspirators D. Hill or
Taylor, which were not disclosed to Newton and Watson until day before or morning of
trial, as part of the government’s disclosures under the Jencks Act; and (4) Newton’s
decision not to call various witnesses whom Watson allegedly asked Newton to call at the
bench trial.

DISCUSSION
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence
imposed against him on the ground that “the sentence was imposed in violation of the
Constitution or law of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. An ineffective

assistance of counsel claim is properly raised under 28 U.S.C. § 2255 rather than on
direct appeal. United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006).
Ineffective Assistance of Counsel
In order to prevail on an ineffective-assistance-of-counsel claim, a habeas
petitioner must meet the two-prong test established by Strickland v. Washington, 466
U.S. 668 (1984): (1) he “must show that counsel’s performance was deficient,” so

deficient that, “in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance,” and (2) he must show
“that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687,
690, 694. In measuring counsel’s performance, courts apply “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

at 689 (citation omitted).
Prejudice in the context of a guilty plea requires the petitioner to show “that there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Prejudice in the trial or sentencing context requires the petitioner to show a reasonable

probability that result of the proceeding would have been different but for the deficient
performance. See Coleman v. United States, 750 F.3d 734, 739 (8th Cir. 2014)
(sentencing). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome or a substantial, not just conceivable, likelihood of a different
result.” Meza-Lopez v. United States, 929 F.3d 1041, 1044-45 (8th Cir. 2019) (citation
omitted).

“Courts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney’s deficiencies.” Id., at
1045 (citing Lee v. United States, 137 S. Ct. 1958, 1967 (2017)). “Instead, judges should
look to contemporaneous evidence to substantiate a defendant’s expressed preferences.”
Id. In particular, a “defendant’s representations during the plea-taking carry a strong
presumption of verity and pose a formidable barrier in any subsequent collateral

proceedings.” Adams v. United States, 869 F.3d 633, 635 (8th Cir. 2017) (citation
omitted).
Applying these standards, each of Watson’s claims of ineffective assistance fail.
a. Advice Regarding Partial Plea and Factual Stipulations (Ground 1)
From a review of the evidence, and after having an opportunity to observe the

demeanor of the witnesses at the evidentiary hearing, the Court finds that Watson’s
assertion that he was not adequately informed of the risks and benefits of his chosen plea
strategy is not credible. Rather, Newton credibly testified at the evidentiary hearing that
Watson was among the most sophisticated of his clients and that Watson was in constant
contact with and took the lead with respect to trial strategy. This Court’s own

observation of Watson during the criminal proceedings—in particular, at the change of
plea hearing, bench trial, and hearing on Watson’s motion to withdraw his guilty plea—
as well as during these § 2255 proceedings and the evidentiary hearing, cements the
Court’s conclusion that Watson’s partial plea and trial strategy was the product of his
own wholly voluntary and fully informed decisions.
The strategy was also a sound one, and counsel’s advice to follow that strategy fell

well within the bounds of reasonable professional conduct. Indeed, the issue of whether
the government could prove that the checks and photocopied checks at issue could
qualify as a counterfeit security and counterfeit making “implement,” respectively, under
the relevant statutes were close calls and required this Court and the Eighth Circuit on
appeal to resolve novel questions of law. That the questions were ultimately resolved in
the government’s favor does not render counsel’s assistance ineffective. See, e.g., Lemon

v. United States, 335 F.3d 1095, 1096 (8th Cir. 2003) (“Lemon’s counsel made the
decision to stipulate as part of a reasonable trial strategy in which counsel sought to
disprove the element of possession rather than the drug type.”).
By contrast, a factual defense was likely to fail in light of the overwhelming
evidence against Watson. Watson highlights various initial statements of his co-

conspirators, D. Hill and Taylor, that did not identify Watson by name and on S. Hill’s
motion to dismiss for vindictive prosecution filed on June 14, 2016, in which S. Hill
suggested that the prosecutor was retaliating against her for refusing to testify against
Watson. But by the time of Watson’s trial on November 7, 2016, these co-conspirators
had entered guilty pleas and other pretrial agreements that expressly implicated Watson

in the crimes at issue. Thus, Newton’s advice and Watson’s decision to stipulate to the
factual bases of those crimes and focus on a legal defense were manifestly reasonable.
Nor can Watson demonstrate prejudice. Watson offers little more than post hoc
assertions regarding his decision to plead guilty to some counts and proceed to trial on
others. As this Court previously held in denying Watson’s motion to withdraw his guilty
plea, and as the Eighth Circuit affirmed, Watson’s conduct and statements during the plea

colloquy clearly demonstrate that he entered the plea of his own free will and fully
understood the consequences of his chosen plea and trial strategy.
b. Failure to Discover and to Assert Alleged Brady Violations (Grounds 3 &4)
Newton could not have been ineffective for failing to assert a Brady violation
because no Brady violation occurred here. “To establish a Brady violation, a defendant is
required to show that: (1) the prosecution suppressed evidence; (2) the evidence was

favorable to the defendant; and (3) the evidence was material.” United States v. Tate, 633
F.3d 624, 630 (8th Cir. 2011).
As to the first element, the due process concerns addressed by Brady are satisfied
“if the information is furnished before it is too late for the defendant to use it at
trial.” United States v. Szczerba, 897 F.3d 929, 941 (8th Cir. 2018) (citation omitted).

Thus, to establish a Brady violation based on the government’s delay in disclosing
evidence, the movant must show that the delay “deprived him of [the evidence’s]
usefulness and that this deprivation materially affected the outcome of his trial.” Id.
As to the remaining elements, evidence may be favorable to the defendant if it is
exculpatory or tends to impeach government witnesses. United States v. Baez, 983 F.3d

1029, 1044 (8th Cir. 2020). “Evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different..” United States v. Ruzicka, 988 F.3d 997, 1006 (8th Cir.
2021) (citation omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the proceeding.” Id. “To decide if
impeachment evidence is material, we examine the record as a whole because the relative

strengths of the prosecution's case and the impeachment value of the undisclosed
evidence bear on whether disclosure in time for use at trial would have made a
difference.” United States v. Chappell, 990 F.3d 673, 679 (8th Cir. 2021).
Watson cannot prove any of these elements. Watson’s own testimony at the
evidentiary hearing and his letters to counsel reveal that he was aware of much, if not all,
of the evidence he describes as Brady material in enough time to make use of it at trial.

For example, Watson testified at the § 2255 evidentiary hearing that he asked Newton to
file pretrial motions to suppress evidence or dismiss the indictment because of
discrepancies he had discovered between the Maryland Heights Police report and Secret
Service report regarding whether the Sher & Shabsin checks were found in his vehicle.17
See Evid. Hrg. Tr., ECF No. 170 at 122-25. Thus, Watson admitted that he was aware of

the underlying purported Brady material in plenty of time to make use of it at trial.
But even if the evidence were not timely disclosed, none of the evidence cited by
Watson was either favorable or material to his case. For example, the fact that the Sher
& Shabsin checks were not referenced by name in the August 30, 2014 Maryland Heights
Police report does not establish that those checks were not in fact found in Watson’s

vehicle. Indeed, the report indicates that, aside from the enumerated items, “misc.

17 Likewise, Watson’s pretrial motions, such as his motions to sever his trial from
that of his co-defendants, indicate that Watson had reviewed some, if not all, of the
witness statements well in advance of trial. See, e.g., Crim. ECF No. 131 at 3 (discussing
co-defendants S. Hill and D. Hill’s statements that were provided in discovery).
papers” were found in Watson’s vehicle, and the report attaches photocopies of two Sher
& Shabsin checks.

Moreover, Watson stipulated to the authenticity of the Sher & Shabsin checks at
issue at the change of plea hearing and bench trial. It is undisputed that Officer Schmitz
was prepared to testify at the bench trial regarding the origin of the checks, and Newton
credibly testified at the evidentiary hearing that he would not have waived any objection
to the authenticity of those checks without Watson’s specific approval. As the Court
previously noted in denying Watson’s motion to withdraw his guilty plea, and as the

Eighth Circuit affirmed on Watson’s direct appeal, the record establishes that Watson
was well versed in the contents and origin of each of the checks at issue and, had there
been any question as to whether the Sher & Shabsin checks were in fact recovered from
Watson’s vehicle, he would have raised the issue.
Likewise, any discrepancy in descriptions of the color of Watson’s car in various

police reports would not have been favorable to Watson in light of the evidence that
Watson had access to multiple cars. See Evid. Hr’g Def.’s Ex. 6, ECF No. 179-6 at 4.
Neither did the early statements of Watson’s co-conspirators constitute favorable
impeachment evidence. For example, in her initial interview, Taylor denied any
involvement in the criminal conduct, so she could not have named Watson without

implicating herself. For her part, D. Hill described Watson physically even in her initial
statement by stating that a black man was involved in the crimes. That she refused to
provide police with Watson’s name initially does not undermine her credibility. See
United States of Am. v. Pendleton, 832 F.3d 934, 941 (8th Cir. 2016) (holding that any
inconsistency between conspirators’ initial statements to police that did not implicate the
defendant and later statements naming him as a key player did not fall under Brady).

Regarding evidence of Taylor’s suggestion in an interview with Scowcroft that the
jail call with Watson that formed the basis of the witness tampering charge was a three-
way call, notwithstanding that the audio recording and transcript of that call indicates it
was a two-way call between Taylor and Watson only, such evidence has no impeachment
value. The fact that the call was not a three-way call does not undermine contents of the
call, the audio and transcript of which plainly demonstrate that Watson tampered with

this witness.
Finally, besides being unfavorable to Watson, all of the evidence highlighted by
Watson is immaterial. Based on Newton’s credible testimony at the evidentiary hearing
and the Court’s review of the record, it is clear that Watson pored through all of the
evidence, including the witness statements provided on the eve of trial as part of the

Jencks Act material, and that he understood the impact of this material before he chose to
enter his guilty plea to certain counts and proceed to trial on others. Any assertion that he
would not have pled guilty had he received some of this material earlier is not credible.
There is also no reasonable probability that the outcome of the bench trial would have
been different had any of this evidence been disclosed earlier, particularly in light of the

overwhelming evidence of Watson’s guilt.
c. Failure to File Certain Pretrial Motions (Grounds 5 & 7)
Watson’s claims regarding Newton’s failure to file various pretrial motions, such
as motions to dismiss the indictment or motions for recusal of the undersigned or Judge
Perry, are all without merit. Watson has not shown that any of these motions would have
been successful. As the government correctly notes, the Final Superseding Indictment

did not include any count relating to the Tokio Marine Specialty Insurance Company
check, so Newton could not have sought to dismiss such a count. And there was more
than sufficient evidence to convict Watson on the counts of which he was actually
convicted and to which he pled guilty. Likewise, Watson has not shown any basis for the
recusal of the judges who presided over his criminal cases.
d. Failure to Call Alibi Witnesses

To the extent Watson claims that Newton was ineffective for failure to call certain
alibi witnesses at trial,18 the claim lacks merit. Watson has not provided evidence, as
opposed to speculation, as to what these witnesses would have testified to or
demonstrated that their testimony would have altered the outcome of the proceedings,
particularly in light of the evidence against Watson.

e. Failure to Withdraw
As the government correctly notes, despite filing countless pro se motions and
memoranda while represented by counsel, never once did Watson assert a conflict of
interest with Newton during the trial court proceedings or on direct appeal that would
require Newton to withdraw from representing Watson. Watson would have had to

demonstrate “a conflict of interest, an irreconcilable conflict, or a complete breakdown in

18 Watson’s appointed counsel and the government argue such a claim in their pre-
and post-hearing briefs, but it is not clear from Watson’s lengthy pro se § 2255 motion
under which Ground such claim is asserted.
communication between the attorney and the defendant” to warrant a motion to
withdraw. See United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992). Watson

failed to demonstrate such a conflict. To the contrary, he consistently represented during
the trial court proceedings that he was satisfied with his attorney.
Prosecutorial Misconduct (Ground 2)
With respect to Ground Five, “[t]he test for reversible prosecutorial misconduct
has two parts: (1) the prosecutor’s . . . conduct must in fact have been improper, and (2)
such . . . conduct must have prejudicially affected the defendant’s substantial rights so as

to deprive him of a fair trial.” United States v. Rodriguez, 612 F.3d 1049, 1055-56 (8th
Cir. 2010)
a. Alleged Brady Violations
As discussed in detail above, Watson has not established any Brady violation in
this case.

b. Alleged Perjury
Essentially all of Watson’s claims of prosecutorial misconduct stem from his
belief that the government witnesses lied in grand jury proceedings and at trial. “[T]he
prosecution may not use or solicit false evidence, or allow it to go uncorrected.” United
States v. Martin, 59 F.3d 767, 770 (8th Cir.1995). “To prove prosecutorial use of false

testimony, [Watson] must show that” (1) the prosecution used perjured testimony; (2) the
prosecution knew or should have known of the perjury; and (3) there is a ‘reasonable
likelihood’ that the perjured testimony could have affected the jury’s judgment. Id.
Here, Watson has no actual evidence of any perjury. In some instances, Watson
mischaracterizes various transcripts and documents, some of which relate to dismissed
charges, in an attempt to prove that witnesses were lying. In other instances, Watson

merely points out inconsistencies in various witness statements. But “[m]ere
inconsistency between witnesses’ testimony is not necessarily perjury, and not every
contradiction is material. A challenge to evidence through another witness or prior
inconsistent statements is insufficient to establish prosecutorial use of false testimony.”
Id. (citation omitted).
In short, although Watson’s various pro se supporting and reply briefs—many of

which were filed notwithstanding the Court’s directive that all filings must be through
appointed counsel—consist of hundreds of pages of Watson’s speculations, they still fail
to put forward even a scintilla of evidence establishing that any witness lied before the
grand jury or at trial or that the government knowingly assisted in or condoned perjury.
Watson’s allegations are not made any less baseless just because he repeats them again

and again. Nor is there any reasonable likelihood that the inconsistencies in witness
statements highlighted by Watson would have affected the judgment in this case.
Remaining Claims
To the extent that Watson asserts claims regarding the sufficiency of the evidence
supporting his convictions or sentencing enhancements, such claims are procedurally

defaulted if they could have been but were not raised on direct appeal. See Bousley v.
United States, 523 U.S. 614, 622 (1998). In any event, they are without merit. There was
more than enough evidence against Watson on the crimes of which he was convicted, the
sentencing enhancements imposed were supported by the evidence and the law, and as
the Court noted at sentencing, it would have imposed the same sentence even if it had
sustained Watson’s objections to those enhancements.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner Pierre Watson’s motion filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a federal
constitutional right as required by 28 U.S.C. § 2253(c)(2).
A separate Judgment shall accompany this Memorandum and Order.

tee
UNITED STATES DISTRICT JUDGE
Dated this 4th day of August, 2021.

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10235454. Public record. Not legal advice.