United States District Court, D. Massachusetts
EDWARD J. MACKENZIE, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255. Petitioner Edward J.
Mackenzie pleaded guilty on October 21, 2014, to RICO
conspiracy in violation of 18 U.S.C. § 1962(d),
racketeering in violation of 18 U.S.C. § 1962(c), money
laundering conspiracy in violation of 18 U.S.C. §
1956(h) and 18 U.S.C. § 1956(a)(1)(B)(i), two counts of
mail fraud conspiracy in violation of 18 U.S.C. § 1349,
and eight counts of wire fraud in violation of 18 U.S.C.
§ 1343. He was sentenced to a 144-month term of
incarceration followed by a three-year term of supervised
has filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, alleging
ineffective assistance of counsel in violation of the Sixth
Amendment due to trial counsel's alleged (1) failure to
fully investigate and object to the government's use of
certain intercepted jail communications; (2) failure to
object to “double-counting” sentence
enhancements; (3) failure to object to enhancements for
charges not present in the indictment; and (4) failure to
hold the government to its discovery obligations. Petitioner
also alleges due-process violations stemming from misapplied
sentencing guidelines in light of inflation adjustments, an
insufficient indictment that failed to identify a financial
institution victimized by him, and the Court's reliance
on a vulnerable victim as a factor in sentencing. For the
reasons set forth below, the motion will be denied.
the conviction resulted from a guilty plea, the following
facts are taken largely from the March 6, 2015 sentencing
hearing and the Presentence Investigation Report
(“PSR”), unless otherwise noted. See United
States v. Connell, 960 F.2d 191, 192-93 (1st Cir. 1992);
United States v. Garcia, 954 F.2d 12, 14 (1st Cir.
Boston Society of the New Jerusalem (“BSNJ”) is a
charitable religious non-profit corporation originally
chartered as one of the first Swedenborgian churches in
Massachusetts. (PSR at ¶ 8). Beginning in late 2002 to
early 2003, Mackenzie and his initial co-conspirator Thomas
Kennedy conspired to take over the BSNJ. (Id. at
¶ 10). Mackenzie gained voting control of the church by
recruiting friends and family and creating phony membership
applications for “members” who were unaware they
“applied” for membership. (Id. at ¶
11). In May 2003, Mackenzie succeeded in taking over the BSNJ
and began using his powers to enrich himself and other
co-conspirators. (Id. at ¶¶ 12-15).
the next few years, Mackenzie abused his power in a series of
improper transactions. For example, in 2004 he invested $200,
000 of BSNJ money in a Florida corporation, Space Propulsion
Systems, in exchange for an $80, 000 kickback to himself and
Kennedy. (Id. at ¶ 16). By 2014, shares of
Space Propulsion Systems were worthless, causing the church
to lose virtually its entire investment. (Id. at
¶ 18). Mackenzie also accepted bribes totaling more than
$20, 000 to direct more than $108, 000 in church scholarship
money to an acquaintance. (Id. at ¶¶
20-22). He engaged in a litany of other fraudulent
transactions that cost the church, at minimum, hundreds of
thousands of dollars.
22, 2013, Mackenzie was arrested. (Id. at ¶ 1).
On October 21, 2013, he pleaded guilty to thirteen counts of
a fourteen-count indictment. (Id. at ¶ 2).
Count One charged Racketeering Conspiracy in violation of 18
U.S.C. § 1962(d); Count Two charged Racketeering in
violation of 18 U.S.C. § 1962(c); Counts Three and Four
charged Mail Fraud Conspiracy in violation of 18 U.S.C.
§ 1349; Count Five charged Money Laundering Conspiracy
in violation of 18 U.S.C. § 1956(h) and 18 U.S.C. §
1956(a)(1)(B)(i); and Counts Seven through Fourteen charged
Wire Fraud in violation of 18 U.S.C. § 1343.
(Id.). Pursuant to a written plea agreement the
government agreed to dismiss Count Six (Extortion).
(Id. at ¶ 3).
to sentencing, Probation produced a presentence report to
which Mackenzie's counsel made four objections.
(Id. at 46). First, counsel objected to the inclusion
of paragraphs 79-86 of the PSR, which detailed
Mackenzie's non-privileged communications to friends,
acquaintances, and family while detained at the Wyatt
Detention Facility. (Id. at 46). During those
communications, Mackenzie encouraged others to lie in an
attempt to facilitate his release from custody and to make
modifications to character letters. (Id. at ¶
79). For example, in a letter to his daughter dated May 30,
2014, Mackenzie wrote that her character letter was
“awesome, ” but asked her to rewrite it and omit
the fact that he “‘hurt people' because the
judge might not like that.” (Id. at ¶
85). He then proceeded to write an entire paragraph for his
daughter to include in a letter to the Court about how caring
he was. (Id.).
counsel argued that because Probation concluded that the
communications did not rise to the level of obstruction of
justice, as defined in U.S.S.G. § 3C1.1, they were
irrelevant to the presentence evaluation. (Id. at
46). At the sentencing hearing, the Court overruled the
objection, finding that 18 U.S.C. § 3553(a) permits a
near limitless scope to what a court may consider for
purposes of sentencing, and that the communications were
appropriately part of the record. (Sen. Tr. at 5).
counsel objected to paragraphs 98-102 of the PSR, which
created an overlap of multiple enhancements in the
guidelines, leading to what he contended was an unfair or
improper increase in the sentence range. (PSR at 46).
Specifically, counsel objected that the increases applied
pursuant to U.S.S.G. §§ 2B1.1(b)(10)(C),
2B1.1(b)(9)(A), 3B1.3, and 3B1.1(a) were cumulative because
they encompassed the same behavior to which defendant pleaded
guilty. (Id. at 46-47). For example, there was an
overlap between a sophisticated-means enhancement and an
adjustment for the role in the offense as the leader or
organizer of criminal activity. (Id. at ¶¶
98-102; Sen. Tr. at 5-6). Counsel argued that the enhancement
provided in § 2B1.1(b)(10)(C)- the sophisticated means
enhancement-was the appropriate enhancement. (PSR at 46). The
Court overruled the objection, concluding that
Probation's calculation was appropriate. (Sen. Tr. at
counsel objected to paragraphs 109-118 of the PSR, which
included examples of behavior not part of the relevant
offense that Probation nevertheless believed ought to be
considered during sentencing. (PSR at 47). Probation
contended that these were non-privileged conversations during
Mackenzie's detention where he sought money and asked
individuals to lie on his behalf. (Id. at ¶
109). For example, Mackenzie asked his daughters to lie to
the Quincy District Court by telling the court that he was
having gallbladder surgery and could not make an appearance,
rather than admit he was in federal detention. (Id.
at ¶¶ 114-15). Counsel contended that these were
partial excerpts taken out of context and could be
misleading. (Id. at 47). This Court overruled the
objection, finding that the information was properly
included. (Sen. Tr. at 6-7).
counsel objected to paragraph 124, a one-point application in
Mackenzie's criminal history calculation. (PSR at 47).
Counsel argued that Mackenzie was charged in 1990 with
conspiracy to distribute cocaine and use of a communications
facility to further a drug transaction, pleaded guilty in
1992, and served a term of probation. He contended that
pursuant to U.S.S.G. § 4A1.2(e)(3), that sentence was
outside of the 10-year time frame of applicable prior
offenses and should have been excluded from defendant's
criminal history calculation. (Id.). At the
sentencing hearing, the court overruled the objection,
finding that Probation's calculation was correct. (Sen.
Tr. at 8).
sentencing hearing was held on March 6, 2015. The government
requested a 144-month sentence, which was an upward departure
from the guidelines. It argued that Mackenzie had lived a
life of crime and would not otherwise be adequately deterred.
(See Sen. Tr. at 9). It also noted that the crimes
in this case took place over a decade, and that the victim
was a church. (Id. at 10). And it argued that the
crime was a sophisticated white-collar offense whose success
relied in large part upon Mackenzie's reputation for
government also described Mackenzie's long-standing
history of criminal activity, much of which came from his
autobiography. (Id. at 11-12). For example, the
government mentioned how Mackenzie poured scalding hot coffee
on a victim and then threatened him with a beating if he
testified against him. (Id. at 12). That case was
apparently dismissed. (Id.). The government also
described how Mackenzie swindled hundreds of thousands of
dollars from an unsuspecting elderly woman and received no
jail time. (Id.). It also mentioned that he
threatened to chain his ex-wife's ankles to a cinder
block and throw her off a bridge if she testified against him
and how that case was also dismissed. (Id. at 13).
was sentenced to a 144-month term of imprisonment followed by
a three-year term of supervised release. (Id. at
24). The guideline range was 97 to 121 months, and therefore
the sentence constituted an upward departure from the
guideline range. (PSR at 49). The Court justified the
departure by virtue of defendant's criminal history and
the nature of the offense. (Judgment at 12). Specifically,
the Court observed,
Defendant is a career criminal with a lengthy history of
fraud and violence. His criminal history category does not
begin to capture the true nature of his criminal history. His
criminal conduct in this case was elaborate and calculating
and took place over many years. The victim was a church, and
indirectly victimized the elderly members of the church. He
continued to engage (or attempt to engage) in criminal and/or
manipulative and inappropriate conduct after his detention in
this case, including involving his own children in such
conduct. There are virtually no mitigating factors to
counterbalance the many aggravating factors.
March 12, 2015, Mackenzie appealed his sentence pro
se, challenging his indictment, his guilty plea, and the
application of the U.S.S.G. to the facts of his case.
See Judgment of the U.S. Court of Appeals for the
First Circuit, No. 15-1339 at 1. The First Circuit affirmed
the decision, finding “Mackenzie's autobiographical
account of his violent criminal past, his prior frauds, and
his disreputable behavior while in custody are all highly
relevant to the choice of sentence, and entitled to great
weight.” Id. Mackenzie then petitioned for a
writ of certiorari to the Supreme Court, which denied the
petition. (Docket No. 139, 140).
15, 2017, Mackenzie filed the present motion to vacate under
28 U.S.C. § 2255, claiming ineffective assistance of
counsel and constitutional due process violations on numerous
petitioner appears pro se, his pleadings must be
construed more leniently than those drafted by an attorney.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, a petitioner's pro se status does
not excuse him from complying with procedural and substantive
requirements of the law. Ahmed v. Rosenblatt, 118
F.3d 886, 890 (1st Cir. 1997).
28 U.S.C. § 2255
28 U.S.C. § 2255, a petitioner may file a motion to
vacate, set aside, or correct a sentence. The relief
requested may be granted on the grounds that the
“petitioner's sentence (1) was imposed in violation
of the Constitution, or (2) was imposed by a court that
lacked jurisdiction, or (3) exceeded the statutory maximum,
or (4) was otherwise subject to collateral attack.”
David v. United States, 134 F.3d 470, 474 (1st Cir.
1998). Petitioner bears the burden of establishing that he is
entitled to relief under § 2255. Id.
Ineffective Assistance of Counsel
contends that his counsel rendered ineffective assistance in
violation of the Sixth Amendment on four basic grounds: (1)
failing to fully investigate and object to the
government's use of intercepted jail communications; (2)
failing to object to “double-counting” and
sentencing enhancements; (3) failing to object to
enhancements for charges not present in the indictment; and
(4) failing to hold the government to its discovery
obligations. Within these four broad grounds for relief are
various sub-claims, which will be addressed in turn.
order to establish a claim of ineffective assistance of
counsel, a petitioner must show that “counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S.
668, 687 (1984). “The essence of an ineffective
assistance claim is that counsel's unprofessional errors
so upset the adversarial balance between defense and
prosecution that the trial was rendered unfair and the
verdict rendered suspect.” United States v. De La
Cruz, 514 F.3d 121, 140 (1st Cir. 2008) (internal
citations omitted). The Constitution does not guarantee to
any defendant a perfect defense or a successful defense.
See Moreno-Espada v. United States, 666 F.3d 60, 65
(1st Cir. 2012). Rather, “the ...