Response in Opposition to Motion to Stay Surrender Date and Motion — USA v. Thomas (Dkt. 128, N.D. Okla.)

Record facts

U.S. District Court for the Northern District of Oklahoma · No. 4:21-cr-00239-GKF · Doc. 128 · 2022-07-15 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OKLAHOMA 
 
UNITED STATES OF AMERICA, 
 
 Plaintiff, 
 
v. 
 
ALETA NECOLE THOMAS, 
 
 
Defendant. 
 
 
 
 
Case No. 21-CR-239-GKF 
 
 
 
 
Response in Opposition to Defendant’s 
Motion to Stay Surrender Date and Motion for Bond  
Pending 28 U.S.C. § 2255 Motion (Dkt. # 124) 
 
The Court should deny Aleta Thomas’s requests to delay her surrender date and 
for bond pending the disposition of her 28 U.S.C § 2255 Motion because she is 
unable to show exceptional and deserving reasons for delay. Furthermore, Ms. 
Thomas is unlikely to prevail on her claims that Mr. Ward rendered her ineffective 
assistance. Even if an investigation reveals that Mr. Ward performed deficiently, Ms. 
Thomas would be unable to show that Mr. Ward’s representation prejudiced her, 
because she received an eight-level downward variance at sentencing. The 
overwhelming evidence of Ms. Thomas’s guilt, including her own recorded 
statements to law enforcement and the grand jury testimony, also supports her 
conviction and sentence. Finally, Ms. Thomas provides no applicable authority for 
her requests to delay her surrender and for bail; therefore, the Court should deny her 
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requests to delay her surrender date and for bond pending the disposition of her § 
2255 motion.     
Ms. Thomas’s reliance on Aronson v. May is misplaced. In Aronson, the Court 
upheld the denial of bail pending the resolution of a writ of habeas corpus, filed 
pursuant to 28 U.S.C. § 2241. Aronson v. May, 85 S. Ct. 3, 5 (1964). Notably, Mr. 
Aronson filed a § 2255 motion that was denied before he filed a writ of habeas 
corpus. Id. at *4.  Mr. Aronson was tried by a jury, convicted, and sentenced by a 
federal court.  The Supreme Court explained that a “greater showing of special 
reasons” is required by someone seeking to attack their conviction in a collateral 
proceeding than an applicant seeking “to attack by writ of habeas corpus an 
incarceration not resulting from a judicial determination of guilt.”. Id. at * 5.   
Likewise, here, Ms. Thomas’s sentence results from a judicial determination of 
guilt and she seeks to collaterally attack her conviction and sentence. Thus, she is 
required to show that her circumstance is “exceptional and deserving of special 
treatment in the interests of justice.” Id. She has failed to show such circumstance.   
Argument & Authorities 
Ms. Thomas is unlikely to prevail on her ineffective assistance of counsel claim.  
 
 
To demonstrate that her counsel=s assistance was so ineffective as to require 
reversal of her conviction, Ms. Thomas must satisfy both components of the test set 
forth in Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Orange, 447 
F.3d 792, 796–97 (10th Cir. 2006). First, she must show that counsel=s performance 
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was deficient, which requires showing that Acounsel=s performance fell below an 
objective standard of reasonableness.@ Id. at 687-8. Second, Ms. Thomas must show 
that counsel=s deficient performance prejudiced the defense; i.e., Athat there is a 
reasonable probability that, but for counsel=s unprofessional errors, the result of the 
proceeding would have been different.@ Id. at 694. Because Ms. Thomas must prove 
both prongs of the Strickland test to establish her claim, a failure to prove either one is 
grounds to deny Ms. Thomas’s § 2255 motion.    
 
Before sentencing, Mr. Ward filed an extensive Motion for Sentencing Variance. 
(See Dkt. # 97). In this motion, Mr. Ward thoroughly documented every aspect of 
Ms. Thomas’s history and characteristics, her leadership position in her community, 
and her role as a caregiver in her family. (Id.). In conjunction with this motion, Mr. 
Ward also submitted 16-character letters from life-long friends, leaders of Ms. 
Thomas’s church, and family members. (See Dkt. # 97-1).  Mr. Ward additionally 
filed Objections to the Presentence Investigative Report. (See Dkt. # 103). Mr. Ward 
requested additional time to submit more letters of support and to investigate last-
minute information as a part of Ms. Thomas’s Motion for Continuance of 
Sentencing Hearing. (See Dkt. # 106). The Court properly denied this request and the 
sentencing hearing proceeded as scheduled.    
 
Even if pertinent information was not included in the 16-character letters already 
filed with the Court, Mr. Ward and Ms. Thomas each provided lengthy arguments at 
the sentencing hearing in favor of a probationary sentence. The Court granted Ms. 
Thomas’s request for a downward variance and departed downward eight levels. (See 
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Dkt. # 112). The Court sentenced Ms. Thomas to a term of imprisonment of 30 
months – a sentence substantially below the advisory guideline range and well below 
the maximum prison sentence the parties agreed to in the plea agreement (Dkt. # 
113).   
 
Now, seven days before she is scheduled to surrender to the Bureau of Prisons, 
Ms. Thomas contends that Mr. Ward performed deficiently and therefore her 
surrender should be delayed. (See Dkt. ## 124, 125). Specifically, Ms. Thomas 
alleges that Mr. Ward failed to submit to the Court an estimated 30- to 40-character 
letters and that this alleged inaction resulted in a harsher sentence than Ms. Thomas 
might have otherwise received. (See Dkt. # 125 at p.5). Even if these letters existed at 
the time of her sentencing and Mr. Ward submitted them to the Court, they would 
not have had a significant impact on Ms. Thomas’s sentence. Ms. Thomas designed 
and participated in a lengthy fraud scheme, recruited others to participate in her 
scheme, and continued to flagrantly violate the law even after she testified before a 
federal grand jury. At sentencing, she received an eight-level downward departure 
and received representation that was objectively reasonable. Consequently, she 
cannot demonstrate that Mr. Ward performed deficiently, or that his allegedly 
deficient performance prejudiced her.       
The overwhelming evidence of Ms. Thomas’s guilt supports her conviction and 
sentence.     
 
 
 Overwhelming evidence supports Ms. Thomas’s conviction and sentence for 
counts three and four of the second superseding indictment. Special agents 
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conducted a recorded, noncustodial interview of Ms. Thomas at her home. A copy of 
the recorded interview and a transcription of it are contained in the discovery 
provided to Ms. Thomas. Ms. Thomas stated that she obtained loans from Tulsa 
Federal Credit Union, Arvest, Bluevine, and Fundbox. Bluevine and Fundbox are 
the banks alleged in counts three and four of the second superseding indictment. 
Further, during her February 19, 2021, grand jury testimony, Ms. Thomas admitted 
that she received a PPP loan in the amount of approximately $241,000 from 
Fundbox for Coming Correct Community Ministries II. Ms. Thomas also admitted 
that she received $87,500 from Cross River Bank (Bluevine Capital, Inc.) in her bank 
account after she submitted a loan application on behalf of Coming Correct 
Community Ministries. Thus, Ms. Thomas’s own grand jury testimony shows that 
she applied for the loans alleged in counts three and four of the second superseding 
indictment, to which she entered guilty pleas. Finally, at the change of plea hearing, 
Ms. Thomas denied using the loan proceeds to gamble at casinos but admitted that 
the factional statement recited by the prosecutor and contained in her plea agreement 
was correct.    
 
To the extent that Ms. Thomas and her codefendants now claim that she was 
uninvolved in her codefendant’s loan fraud, the evidence points to the contrary. Ms. 
Thomas’s email messages to the case agent at the time of the offense explain that she 
recruited and instructed her friends and family members (including the codefendants) 
to submit loan applications and that she allowed them to use her bank account to 
deposit these loan proceeds. The unsupported statements of codefendants in this case 
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do no merit further investigation because these alleged statements contradict Ms. 
Thomas’s own statements and the evidence. Consequently, Ms. Thomas’s conviction 
and sentence are amply supported by evidence of her guilt.   
Conclusion 
 
The Court should deny Ms. Thomas’s requests to delay her surrender and for 
bond pending the conclusion of her 2255 Motion because she provides no applicable 
authority for delay. Further, she is unlikely to prevail on her claims ineffective 
assistance of counsel. Additionally, the overwhelming evidence of Ms. Thomas’s 
guilt, including her own recorded statements to law enforcement and the grand jury 
testimony, supports her conviction and sentence.     
    
 
 
 
 
 
 
 
 
 
 
 
Respectfully submitted, 
CLINTON J. JOHNSON 
UNITED STATES ATTORNEY 
 
/s/ Kristin F. Harrington 
 
 
 
 
Kristin F. Harrington, OBA No. 21185 
Assistant United States Attorney 
110 West Seventh Street, Suite 300 
Tulsa, Oklahoma 74119 
(918) 382-2785 
 
 
 
 
 
 
 
 
 
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Certificate of Service 
 
 
I hereby certify that on the day of July 15, 2022, I served the foregoing document 
via electronic email, on the following: 
 
Matthew Allen Chivari, Esq.  
mchivari@lowtherwalker.com 
Counsel for Ms. Thomas 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Kristin F. Harrington 
 
 
 
 
 
 
 
 
 
 
Kristin F. Harrington 
 
 
 
 
 
 
 
Assistant United States Attorney 
Case 4:21-cr-00239-GKF     Document 128 Filed in USDC ND/OK on 07/15/22     Page 7 of 7

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