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Mackenzie v. United States

United States District Court, D. Massachusetts

November 16, 2017




         This is 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 release.

         Petitioner 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.

         I. Background

         A. Factual Background

         Because 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. 1992).

         The 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).

         Over 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.

         On May 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).

         1. PSR Objections

         Prior to sentencing, Probation produced a presentence report to which Mackenzie's counsel made four objections. (Id. at 46).[1] 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.).

         Mackenzie's 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).

         Second, 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 5-6).

         Third, 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).

         Fourth, 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).

         2. Sentencing Hearing

         The 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 violence. (Id.).

         The government also described Mackenzie's long-standing history of criminal activity, much of which came from his autobiography. (Id. at 11-12).[2] 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).

         B. Procedural Background

         Mackenzie 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.


         On 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).

         On May 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 grounds.[3]

         II. Analysis

         Because 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).

         A. 28 U.S.C. § 2255

         Under 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.

         1. Ineffective Assistance of Counsel

         Petitioner 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.

         In 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 ...

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