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McKuhn v. United States

United States District Court, W.D. Tennessee, Western Division

April 29, 2015

CHARLES ANDERSON McKUHN, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

JON PHIPPS MCCALLA, District Judge.

Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Charles Anderson McKuhn, Jr., Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution Low in Forrest City, Arkansas. (§ 2255 Mot., McKuhn v. United States, No. 2:14-cv-02078-JPM-tmp (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the Court DENIES Movant's § 2255 Motion.

I. BACKGROUND

A. Case Number 10-20170

On April 20, 2010, a federal grand jury returned a five-count indictment against McKuhn. (Indictment, United States v. McKuhn, No. 10-cr-20170-JPM (W.D. Tenn.), ECF No. 12.) On January 12, 2011, the grand jury returned a seven-count superseding indictment. (Superseding Indictment, id., ECF No. 76.) Each of the counts involved the following scheme to defraud:

1. At all times material to this indictment, CHARLES A. McKUHN, JR., operated and owned at least two companies, Intersec Capital Trust and Taurian Worldwide, Incorporated (Taurian).
2. Beginning on or about June 1, 2007 and continuing to on or about August 25, 2009, in the Western District of Tennessee, and elsewhere, the defendant,

_________CHARLES A. McKUHN, JR.________

did knowingly devise and intend to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses, representations, and promises to various individuals and institutions, by representing himself as a legitimate debt reduction service, and international private banker, able for a front-end fee to reduce the debt owed by individuals and institutions and establish lines of credit and secured loans for building projects.
3. As a part of said scheme to defraud, the defendant, CHARLES A. McKUHN, JR., began recruiting churches into his debt reduction plan in 2009. Over several months during this time, the defendant, CHARLES A. McKUHN, JR., traveled to several states to personally meet with Pastors and church officials to represent himself as a banker. He also persuaded several churches to commit to paying large sums of money for debt reduction and lines of credit. During this period of time, he also recruited church officials and Ministers to accompany him to other churches to conduct meetings in which other churches paid defendant, CHARLES A. McKUHN, JR., or his representatives, large amounts of money in order to reduce church debt and fund building programs.
4. It was further part of the scheme to defraud, that the defendant, CHARLES A. McKUHN, JR., or his representatives, collected thousands of dollars in advanced fees promising to a number of churches that for that amount, he could reduce the debts of said churches and fund various building projects for said churches.
5. It was further part of the scheme to defraud, the churches that owed debts to banks or other financial institutions were advised that they should not pay these institutions, but should forward any payments to Taurian, or other representatives of defendant, CHARLES A. McKUHN, JR., and as a result, many of these churches became delinquent in their legitimate debts to financial institutions and face foreclosure.
6. It was further a part of said scheme to defraud, that defendant, CHARLES A. McKUHN, JR., or his representatives, took absolutely no legitimate action to either reduce the debt of any church or individual, nor was any building project actually funded for any church or individual. All monies collected by defendant, CHARLES A. McKUHN, JR., his representatives, or companies, were used for the benefit of defendant, CHARLES A. McKUHN, JR., his representatives, or companies, and no benefit accrued to any customer of any company controlled by the defendant, CHARLES A. McKUHN, JR.

( Id. at 1-3.)

Counts 1 and 2 charged McKuhn with engaging in two acts of mail fraud for the purpose of executing the scheme and artifice to defraud, in violation of 18 U.S.C. § 1341. Specifically, Counts 1 and 2 charged that, on June 4, 2009, and on May 11, 2009, respectively, a check in the amount of $3200 was mailed from a church to Taurian in Memphis, Tennessee.

Counts 3 through 6 charged McKuhn with causing interstate wire transfers of money for the purpose of executing the scheme and artifice to defraud, in violation of 18 U.S.C. § 1343. Count 3 charged that, on August 25, 2009, McKuhn caused $85, 000 to be wired from the State of Virginia to the State of Tennessee. Count 4 charged that, on July 22, 2009, McKuhn caused $110, 000 to be wired from the State of Virginia to the State of Tennessee. Count 5 charged that, on June 29, 2009, McKuhn caused $102, 000 to be wired from the State of Virginia to the State of Tennessee. Count 6 charged that, on June 22, 2009, McKuhn caused $75, 000 to be wired from the State of Virginia to the State of Tennessee.

Count 7 charged that, on or about July 28, 2009, McKuhn caused the issuance of a check from the account of Intersec Capital Trust to Bud Davis Cadillac in the amount of $52, 500, said money having been derived from wire fraud, in violation of 18 U.S.C. § 1957.

The factual basis for these charges is set forth in the opinion of the United States Court of Appeals for the Sixth Circuit on direct appeal:

Even though McKuhn charmed people into parting with their money over false promises related to financial instruments rather than band instruments, his scheme was not complex-more Harold Hill than Bernie Madoff. He would identify individuals struggling to make their monthly mortgage payments and promise he could reduce their debts for an upfront fee. He added sophisticated-sounding phrases and claims of access to his pitch with talk of "private banking, " "diplomatic immunity" and "blanket bonds" from the Federal Reserve that would underwrite the payments. After his victims paid the upfront fee, McKuhn told them not to make any additional payments to their banks or to return any phone calls threatening sanctions. Then he disappeared, taking the debtors' fees with him and leaving the victims to face foreclosure, bankruptcy or both.

McKuhn initially preyed on people who had known him for years. He expanded his web by encouraging friends to introduce him to other acquaintances and eventually to their ministers. After tapping into a network of pastors, McKuhn identified several struggling congregations and convinced the church leaders to fork over fees, sometimes to secure a line of credit, sometimes to eliminate debt.

All told, 194 individuals and 22 churches suffered from the fraud. Many lost their homes, barely escaped foreclosure or were forced to declare bankruptcy. One church lost its building, and several others had to restructure their loan agreements and mortgages on less favorable terms. The total losses from the fraud exceeded $3.1 million.

United States v. McKuhn, 518 F.App'x 375, 377 (6th Cir. 2013).

A jury trial commenced on February 7, 2011 and, on February 9, 2011, the jury returned guilty verdicts on all counts of the Superseding Indictment. (Min. Entry, United States v. McKuhn, No. 2:10-cr-20170-JPM (W.D. Tenn.), ECF No. 83; Min. Entry, id., ECF No. 85; Min. Entry, id., ECF No. 86; Jury Verdict, id., ECF No. 92; 02/07/2011 Trial Tr., id., ECF No. 121; 02/08/2011 Trial Tr., id., ECF No. 122; 02/09/2011 Trial Tr., id., ECF No. 123.) At a hearing on May 20, 2011, the Court sentenced McKuhn to concurrent terms of imprisonment of two hundred ten months on each count of the Superseding Indictment, to be followed by a three-year period of supervised release. The Court also imposed restitution in the amount of $2, 547, 455.49. (Min. Entry, id., ECF No. 101; Sentencing Hr'g Tr., id., ECF No. 124.) Judgment was entered on May 20, 2011. (J. in a Criminal Case, id., ECF No. 102.) The United States Court of Appeals for the Sixth Circuit affirmed. United States v. McKuhn, 518 F.App'x at 377.

B. Civil Case Number 14-2078

On February 3, 2014, McKuhn filed his pro se § 2255 Motion, which consists of the § 2255 form, a legal memorandum, an "Affidavit in Support of 28 USC 2255 Motion, to Vacate, Set Aside, or Correct Sentence, by a Person in Federal Custody, " and a series of documents. (§ 2255 Mot., McKuhn v. United States, No. 2:14-cv-02078-JPM-tmp (W.D. Tenn.), ECF No. 1; Mem., id., ECF No. 1-1; Aff. in Supp., id., ECF No. 1-2.) The issues presented in the form § 2255 Motion are as follows:

1. "[W]hether the conviction obtained was by use of coerced confession/[t]estimony of Government witnesses" (§ 2255 Mot. ...

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