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Olson v. United States

United States District Court, D. New Hampshire

October 15, 2018

Aaron E. Olson
v.
United States of America

          ORDER

          LANDYA B. MCCAFFERTY UNITED STATES DISTRICT JUDGE.

         On March 9, 2015, Aaron Olson pleaded guilty to four counts of attempted tax evasion in violation of 26 U.S.C. § 7201, and on April 1, 2016, this court sentenced him to serve 60 months in prison. See United States v. Olson, 14-cr-0048-LM (D.N.H. April 1, 2016). He appealed that sentence and the First Circuit affirmed. See United States v. Olson, 867 F.3d 224 (1st Cir. 2017). He now moves pursuant to 28 U.S.C. § 2255 to vacate his sentence, alleging his counsel was ineffective at his sentencing hearing. For the reasons that follow, the court denies Olson's motion.

         Standard of Review

         Under § 2255, a federal prisoner may ask the court to vacate, set aside, or correct a sentence that “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The burden of proof is on the petitioner. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015). Once a prisoner requests relief under § 2255 the district court must grant an evidentiary hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). If the district court does not hold an evidentiary hearing, the allegations set forth in the petition are taken as true “unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.” Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

         Background

         From 2007 through 2010, Olson owned businesses that invested in commodity, stock and bond markets. By 2010, Olson had obtained approximately $27.8 million from investors, many of whom were family and friends. Unbeknownst to the investors, Olson was not a licensed broker and his businesses were not registered to trade in the state of New Hampshire. Following an investigation by the N.H. Bureau of Securities, Olson shut down his business in New Hampshire, renamed it, and reopened it in Massachusetts. Olson stayed under the regulatory radar, however, by running his newly named business out of his home in New Hampshire, where he and the business remained unlicensed.

         By 2011, many of Olson's investments failed, and he was not honest with his investors about his losses. To mislead investors about the true disposition of the funds they placed with him, and to entice them to place more funds with him, Olson created false earnings statements that showed significant earnings on their investments. Olson converted to his own use approximately $2.6 million of the funds invested with him. He also created a Ponzi scheme whereby he would disguise gains made by one investor as “earnings” to another investor, playing a shell game with his investors' money to avoid their suspicion and scrutiny. In addition to his securities violations, Olson attempted to commit tax fraud with respect to income from his investment companies. Despite his best efforts to conceal his fraud, Olson's clients eventually became suspicious and confronted him. In 2012, Olson self-reported and made a full confession to the government.

         On April 14, 2014, the government filed an information charging Olson with four counts of attempted tax fraud for each of the years 2007 through 2010. On March 9, 2015, Olson pleaded guilty to all four counts in a plea agreement brought pursuant to Fed. R. Crim. P. 11(c)(1)(C).[1] In his plea agreement, Olson agreed to a stipulated range of 42 to 60 months and to pay restitution to all the victims of his investment-related fraud.

         After his March 9 plea hearing, the court scheduled Olson's sentencing hearing for June 26, 2015. By joint request of Olson and the government, the court continued Olson's sentencing hearing numerous times throughout the next year. During that year, the court held four conferences with Counsel #2 and the government. At each conference, Counsel #2 successfully sought a further continuance of the sentencing hearing to give Olson more time to sell his family's granite quarry and make a substantial contribution toward restitution. At these conferences, Counsel #2 provided a detailed oral summary of Olson's ongoing efforts to sell the quarry. At no time did the government express doubts regarding the sincerity of Olson's efforts in this regard.

         Eventually, the conferences came to an end and the court scheduled the sentencing hearing for February 16, 2016. Shortly before that sentencing hearing, however, Olson retained new counsel (“Counsel #3”) who filed a motion to continue the sentencing hearing so that he could review the voluminous discovery records and get up-to-speed on the complex financial issues underlying Olson's fraud. The court granted that motion, and the sentencing hearing took place on April 1, 2016. Despite Olson's good faith efforts, he was not able to sell his quarry prior to his sentencing hearing.

         At his sentencing hearing, Olson's advisory sentencing guideline range was 37 to 46 months, and the parties jointly recommended a sentence of 42 months-the middle of the guideline range and the low-end of the stipulated range. The court sentenced Olson to 60 months-an upward variance and the high end of his stipulated range. Following a restitution hearing on October 31, 2016, where Olson was again represented by a newly retained attorney, the court ordered restitution in the amount of almost $23 million.

         Discussion

         Olson's § 2255 claim is based on the alleged ineffectiveness of Counsel #3 at Olson's sentencing hearing. When a § 2255 petition is based on ineffective assistance of counsel, the petitioner “must demonstrate both: (1) that ‘counsel's performance was deficient,' meaning that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment'; and (2) ‘that the deficient performance prejudiced the defense.'” United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

         Under the deficiency prong, the petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). Under the prejudice prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of ...


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