Court filing

Exhibit 3 — USA v. Lattany (Dkt. 64.3)

Filed February 27, 2024 in USA v. Lattany; one of 77 filings from this case.

Record facts

Court	U.S. District Court for the District of Colorado
Filed	2024-02-27

U.S. District Court for the District of Colorado · No. 1:23-cr-00074-NYW · Doc. 61 · 2024-02-27 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Case No. 23-cr-00074-NYW
Civil Case No. 23-cv-03024-NYW

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

DEJANE REANIECE LATTANY,

Defendant-Movant.

UNITED STATES’ RESPONSE TO MOTION TO VACATE

Dejane Reaniece Lattany applied for and received millions of dollars in loans and grants
under federal programs designed to help small businesses respond to the COVID-19 pandemic.
As it turned out, she made numerous material misrepresentations on those applications, which
earned her a federal conviction for wire fraud under a pre-indictment plea agreement. She now
moves to vacate her conviction on the grounds that (1) the government failed to disclose certain
evidence, and (2) her counsel was ineffective. The court should deny the motion.
BACKGROUND
Congress, with the assent of the President, enacted two programs to help small businesses
suffering economic hardship prompted by the COVID-19 pandemic: The Economic Injury
Disaster Loan (EIDL) Program and the Paycheck Protection Program (PPP). Both were
administered by the Small Business Association (SBA) and generally provided loans and grants
to small businesses. Where the EIDL Program was funded by the SBA, the PPP Program was
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funded by private lenders and backed by the SBA. To qualify under either program, a business
had to provide information about its operations and finances, which in turn dictated the loan
amount. Program funds could only be used to pay certain business costs. See Doc. 13 at 8-10.
Between June 2020 and January 2022, Lattany applied for loans and grants under both
programs. She did so in her own name and on behalf of various businesses that she supposedly
owned and operated. Some applications succeeded. Others did not. See Doc. 13 at 11-15.
The problem for her was that many applications contained material false statements.
Lattany misrepresented her ownership of other businesses. She lied about her businesses’ payroll
costs, number of employees, and compliance with program rules. And she certified that program
funds would be used to pay only permissible business costs when in reality a significant portion
subsidized her personal expenses (for example, a new house and two Hummers). In all, Lattany
fraudulently received $450,000 in loans and grants under the EIDL Program and nearly $3
million in loans under the PPP Program. She fraudulently applied for more than $7 million under
both programs. See Doc. 13 at 11-15.
Rather than charge Lattany right away, the government engaged in pre-indictment plea
negotiations with her and her counsel, which culminated in her agreement to plead guilty to one
count of wire fraud. Doc. 13 at 1-2; 18 U.S.C. § 1343. She also agreed to certain restitution and
forfeiture obligations, along with a limited waiver of her appellate and collateral-review rights.
Doc. 13 at 2. The government agreed to recommend a sentence at the low-end of the guidelines
range (as finally calculated) and not bring other charges based on known information. Id. at 3.
Lattany’s agreement to plead guilty before an indictment preempted some of the rights
and procedures that would otherwise follow an indictment. For example, there was no discovery
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conference or memorandum, and consequently no requests by Lattany to trigger the
government’s disclosure obligations under Rule 16. See Fed. R. Crim. P. 16(a).
This court sentenced Lattany to a below-guidelines sentence of 48 months to run
concurrent to a state sentence for Medicaid fraud. Doc. 27 at 2; see also Doc. 22 at 13. Lattany
picked up the state conviction and sentence after her plea in the federal case. Doc. 22 at 13.
RULE 5 STATEMENT AND TIMELINESS
Lattany has not previously used any other federal remedies to attack her conviction or
sentence. Her motion (filed November 13, 2023) is timely because it was filed within one year of
the date her judgment of conviction became final (that is, when the time to file a direct appeal
ran out on September 4, 2023). 28 U.S.C. § 2255(f)(1); Fed. R. App. P. 4(b)(1)(A)(i).
ARGUMENT
Lattany claims (1) that the government violated its disclosure obligations under Brady v.
Maryland, 373 U.S. 83 (1963), and (2) that she was denied effective assistance of counsel. This
court construes her pro se motion liberally, but does not “assume the role of advocate” for her.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Even so, both claims fail.
I.
Lattany’s Brady claim is meritless and procedurally defaulted.
The government generally has a due-process obligation under Brady to disclose material
exculpatory evidence to the defendant before trial. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d
801, 823 (10th Cir. 1995). Lattany procedurally defaulted her Brady claim. But the claim fails
for the more straightforward reason that it is meritless on its face.
A.
Lattany’s Brady claim is meritless.
Lattany claims that the government withheld several pieces of evidence in violation of
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Brady. Her claim fails as an initial matter because Brady does “not apply to pre-indictment plea
negotiations.” United States v. Sgarlat, 705 F. Supp. 2d 347, 359 (D.N.J. 2010). That’s because
Brady concerns a defendant’s right to a fair trial, which is “among the many rights waived by an
individual who decides to waive indictment and plead guilty to an information.” Id. at 360. A
pre-indictment plea agreement has “many advantages for a defendant,” but includes “among its
disadvantages the simple procedural fact” that the government “need never make discovery
disclosures under Rule 16. A defendant accepts the benefits and burdens of such a plea, and there
is nothing unfair about this compromise of rights and obligations.” Id. (cleaned up).
Even if Brady applied, Lattany has not made out a violation. She must show that the
government suppressed material exculpatory evidence. Smith, 50 F.3d at 823. Exculpatory means
“expressly exculpatory,” which does not include evidence that “might possibly be favorable to
the accused by inferential reasoning.” United States v. Comosona, 848 F.2d 1110, 1115 (10th
Cir. 1988). Material means a “reasonable probability” that the outcome at trial would have been
different had the evidence been disclosed. Smith, 50 F.3d at 827.
This obligation extends only to evidence within the possession of the “prosecution team.”
McCormick v. Parker, 821 F.3d 1240, 1247 (10th Cir. 2016). The prosecution team includes only
those who act “at the behest of law enforcement as part of the criminal investigation.” Id.
(cleaned up). The government has no duty to disclose “information which it does not possess.”
United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (citation omitted). And “a defendant
is not denied due process by the government’s nondisclosure of evidence if the defendant knew
of the evidence anyway.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).
Lattany cites five pieces of evidence that she says support a Brady violation.
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First is an e-mail from an accountant with the Colorado Department of Health Care
Policy and Financing indicating that the state owes her money. Doc. 46 at 5; see also id. at 22.
This e-mail does Lattany no good because the state department did not take part in the federal
criminal investigation and thus was not part of the prosecution team. In addition, Lattany
contends that this e-mail is exculpatory to the state Medicaid fraud charge, not the federal wire-
fraud charge. See id. at 10 (“there are payments owed to me because I didn’t commit Medicaid
fraud”). And Lattany obviously knew of the e-mail because it was sent to her.
Second, Lattany refers to evidence from the SBA about “the origin of the funds that were
claimed to have been stolen.” Doc. 46 at 5. Even assuming that the SBA was part of the
prosecution team, Lattany again hints that this evidence is exculpatory to the state charge only.
See id. at 10 (suggesting that the money supporting the state charge could be “traced back to a
wire deposit” from the PPP Program).
Third, Lattany asserts that the Colorado Attorney General has “conflicting statements
from employees and clients.” Doc. 46 at 5. Yet the Colorado Attorney General did not participate
in the federal criminal investigation (which was separate from the state investigation) and hence
was not part of the prosecution team either. In any case, Lattany does not provide any details
about these statements. Nor does she explain how they are exculpatory to the federal charge.
Fourth, Lattany cites reports from her payroll provider, which she says show that not all
her federal loans were fraudulent. Doc. 46 at 5; see also id. at 8. But Lattany herself provided
many of these reports to the government in response to a subpoena, which means they cannot
support a Brady violation because she knew of them. Erickson, 561 F.3d at 1163. Moreover, her
claim that some applications contained accurate payroll figures does not exculpate her as to other
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applications which undisputedly did not and served as the basis of her conviction for a single
scheme to defraud. And even if the payroll figures in some applications were accurate, those
applications still contained other misrepresentations: for example, that the funds would be used
for permissible business costs, that Lattany did not own other businesses, and that she had not
received and would not receive other PPP loans. See Doc. 13 at 11-14.
Fifth, Lattany says that a “line by line” analysis of records was not given to her. Doc. 46
at 4. Once again, however, Lattany asserts that this analysis is exculpatory to the state charge
only. Id. at 7 (“I wanted them to prove I stole that money line by line and I can prove that I didn’t
by the financial statements from Medicaid…”). Plus, she does not explain how analysis of the
records could be exculpatory when there is no claim that the records themselves were withheld.
B.
Lattany has procedurally defaulted her Brady claim.
Lattany did not raise a Brady claim before final judgment. And in her plea agreement, she
waived her appellate rights subject to certain exceptions, none of which allowed her to appeal
such a claim. Doc. 13 at 3-4. She did not appeal on that or any other ground.
Lattany’s failure to raise the claim results in a procedural default. United States v. Frady,
456 U.S. 152, 165 (1982). “This rule applies even where the defendant has waived [her] right to
appeal.” United States v. Majid, 196 F. App’x 685, 686 (10th Cir. 2006) (unpublished). Lattany
must therefore show cause and actual prejudice, or a fundamental miscarriage of justice, to get
around the procedural bar. United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). She has not.
Starting with cause, although a meritorious ineffective-assistance claim can suffice,
Lattany’s claims here are meritless, as explained later. United States v. Harms, 371 F.3d 1208,
1211 (10th Cir. 2004). Moreover, Lattany does not appear to claim ineffectiveness with respect
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to the appellate waiver or her failure to appeal in spite of that waiver. United States v. Smith,
2022 WL 889178, at *3 (D. Colo. Mar. 25, 2022). Cause may also exist when “the factual or
legal basis for a claim was not reasonably available to counsel.” Murray v. Carrier, 477 U.S.
478, 488 (1986). But Lattany does not allege that she learned about the supposedly withheld
evidence so late that she could not have raised the claim before now.
Turning to actual prejudice, Lattany must show an “error of constitutional dimensions
that worked to [her] actual and substantial disadvantage.” United States v. Snyder, 871 F.3d
1122, 1128 (10th Cir. 2017) (cleaned up). Lattany has not shown any constitutional error, let
alone one that worked to her actual and substantial disadvantage given that the supposedly
withheld evidence generally concerns the state charge and was largely known to her anyway.
Lattany also cannot establish that a fundamental miscarriage of justice would result if her
claim is not considered. Cox, 83 F.3d at 341. That requires “a colorable showing” of actual
innocence. Id. Lattany all but concedes her guilt when she points out that not all the federal loans
were fraudulent. Doc. 46 at 5. The uncontested implication is that the other loans were.1
II.
Lattany was not denied effective assistance of counsel.
Ineffectiveness claims are properly raised in a § 2255 motion. Beaulieu v. United States,
930 F.2d 805, 807-08 (10th Cir. 1991). To establish ineffective assistance, a defendant must
show both that counsel’s performance “fell below an objective standard of reasonableness” and
that she was prejudiced as a result. Hill v. Lockhart, 474 U.S. 52, 57 (1985).

1 Lattany’s Brady claim is procedurally barred even though her plea agreement “does not prevent
[her] from seeking relief otherwise available in a collateral attack” on the ground that she “was
prejudiced by prosecutorial misconduct.” Doc. 13 at 5. That exception precludes enforcement of
the waiver as to a prosecutorial-misconduct claim, but does not suspend normal operation of the
procedural bar because the relief sought must be “otherwise available in a collateral attack.” Id.
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Lattany sets out numerous ineffectiveness claims, which broadly relate to counsel’s
performance in relation to both her guilty plea and sentencing. Lattany’s main claim is that
counsel misadvised her about the consequences of her state conviction for purposes of her
federal sentencing. None of these claims have merit.
A.
Lattany has not established prejudice.
“If it is easier to dispose” of an ineffectiveness claim based on a “lack of sufficient
prejudice,” the court may do so. Strickland v. Washington, 466 U.S. 668, 697 (1984). In the
context of a guilty plea, prejudice means “a reasonable probability that, but for counsel’s errors,
[the defendant] would not have pleaded guilty.” Hill, 474 U.S. at 57. In the sentencing context,
prejudice means a reasonable probability of a shorter sentence but for counsel’s errors. United
States v. Becker, 109 F. App’x 264, 269 (10th Cir. 2004) (unpublished).
Lattany never expressly alleges the required prejudice. That is, she never says that she
would have gone to trial or received a shorter sentence but for counsel’s errors. She mainly
regrets pleading guilty in the state case, which does not establish prejudice in the federal one.
Lattany mentions in passing that she agreed to plead guilty in the federal case “because I
just had my baby and lost my grandfather who raised me on top of [counsel] promising outcomes
that did not happen.” Doc. 46 at 8. The promised outcomes seem to concern the idea that her
state conviction would not affect her guidelines range (when in reality it increased her criminal-
history category). Even with this statement, though, Lattany does not say she would have gone to
trial but for the supposed promises. Not to mention, she cites other reasons why she pleaded
guilty, which undermines any assertion that counsel’s performance caused her to do so.
Even if one could construe this statement as an assertion of prejudice, it is inadequate.
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To start, a defendant is generally not prejudiced by counsel’s “erroneous advice” when
she is “correctly informed” by the district court or other sources. Schumacher v. Ortiz, 406 F.
App’x 290, 293 (10th Cir. 2010) (unpublished). Lattany was advised that there were no promises
except those in the plea agreement, that the guidelines range in that agreement was an estimate
and could end up higher, and that no sentencing outcomes were guaranteed. Doc. 13 at 15, 18;
Doc. 14 at 7; Ex. 1 at 20. Whatever else counsel might have told Lattany about sentencing could
not have prejudiced her in light of these advisements. See United States v. Silva, 430 F.3d 1096,
1099 (10th Cir. 2005) (“These admissions alone belie Mr. Silva’s claim that he was prejudiced
by counsel’s failure to accurately predict the impact of his criminal history.”).
Moreover, a defendant’s “mere allegation that [s]he would have insisted on trial but for
h[er] counsel’s errors, although necessary, is ultimately insufficient.” United States v.
Dominguez, 998 F.3d 1094, 1111 (10th Cir. 2021) (cleaned up). Thus, “incorporated and
subsumed” into the prejudice standard is a requirement that the defendant show that the
“decision to reject the plea would have been rational under the circumstances.” Id. (cleaned up).
Lattany cannot do so here. The plea agreement gave her the benefit of a reduction for
acceptance of responsibility, a low-end recommendation by the government, and an agreement
not to bring additional charges based on known information. Had Lattany gone to trial, the
evidence against her would have been strong, and she would likely have faced additional charges
(such as money laundering) and a higher guidelines range. Under these circumstances, it would

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not have been rational for her to reject the plea agreement.2
Not only that, Lattany’s criminal-history category would have been the same after a
conviction at trial as after a guilty plea. So any further advice on that issue was unlikely to make
any difference in her choice between those two options. That Lattany agreed to plead guilty
before an indictment stands further proof to how far away she was from ever going to trial and
how unlikely it was that further advice would have pushed her in that direction. And any claim of
sentencing prejudice is belied by the government’s recommendation of a sentence at the low-end
of the guidelines range as estimated in the plea agreement (without the criminal-history bump)
and the court’s decision to go even lower. See Docs. 24, 27.
B.
Lattany has not shown that counsel’s performance was deficient.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690. Lattany has not rebutted that presumption here.
Her primary claim, in all its various formulations, is that counsel told her the state
conviction would receive no criminal-history points when it actually did. The trouble for Lattany
is that “[a] miscalculation or erroneous sentence estimation by defense counsel is not a
constitutionally deficient performance rising to the level of ineffective assistance of counsel.”
United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993).
Lattany also laments that the criminal-history points for the state conviction disqualified

2 The prospect of additional charges was not an idle one. The government has charged other
individuals who committed similar offenses with both wire fraud and money laundering. See,
e.g., United States v. Harrington, 22-cr-00264-NYW (D. Colo.); United States v. Foreman, 21-
cr-00165-RM (D. Colo.); United States v. Lacona, 23-cr-00104-DDD (D. Colo.).
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her from safety-valve relief. E.g., Doc. 46 at 9. The complaint is an odd one because safety-valve
relief allows the court to sentence a defendant convicted of certain drug offenses below the
mandatory minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Suffice it to say that is not Lattany.
Next, Lattany highlights that counsel was not present during her presentence report
interview. This claim “lacks merit because a criminal defendant has no constitutional right to the
presence or advice of counsel at a presentence [report] interview.” United States v. Saleh, 2017
WL 599900082, at *6 (D. Colo. Apr. 19, 2017); see also Gordon, 4 F.3d at 1572.
Several of Lattany’s claims fall into the category of inadequate communication. Insofar
as Lattany claims a “complete breakdown in communication” resulting in a “presumption of
ineffectiveness,” she has not shown that she “had such minimal contact” with counsel “that
meaningful communication was not possible.” United States v. Holloway, 939 F.3d 1088, 1098
(10th Cir. 2019). Just the opposite according to the text messages she attaches to her motion,
which demonstrate sufficient communication.
Many of Lattany’s other claims concern counsel’s performance in the state case and thus
cannot establish deficient performance in the federal one. For instance, she protests that counsel
told her to disclose information about an unrelated account that the state used against her and that
counsel did not look at the aforementioned e-mail from the state accountant. Doc. 46 at 6. She
also notes that counsel failed to investigate defenses to the state charge and “seemed unprepared
for trial” before the state. Id. at 13.
Still other claims are incongruous. Lattany says that counsel failed to object to
“inadmissible and prejudicial evidence” when there was no trial or hearing where evidence was
admitted. Doc. 46 at 5. She is also less than clear about what it means that counsel did not raise
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“appropriate defenses before and during” the change of plea hearing and sentencing. Id.
What remains of Lattany’s motion is “merely conclusory in nature” and hence
insufficient to show deficient performance. United States v. Fisher, 38 F.3d 1144, 1147 (10th
Cir. 1994). For example, she claims that counsel failed “to challenge prosecutorial
mischaracterizations and errors during proceedings” without specifics. Doc. 46 at 4. She
similarly faults counsel’s failure to “defend or explain discrepancies during or before the chance
of plea or at the time of sentencing” without further explanation. Id. at 6. And she generally
protests that she was not the beneficiary of “zealous advocacy.” Id. at 13.
*
*
*
One last procedural point: Lattany is not entitled to an evidentiary hearing because “the
motion and the files and records of the case conclusively show” that she is not entitled to relief.
28 U.S.C. § 2255(b). There are no disputes of material fact. And “district courts are not required
to hold evidentiary hearings in collateral attacks without a firm idea of what the testimony will
encompass and how it will support a movant’s claim,” which is the case here. United States v.
Moya, 676 F.3d 1211, 1214 (10th Cir. 2012).
CONCLUSION
The court should deny Lattany’s motion.

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Dated: January 17, 2024

Respectfully submitted,

COLE FINEGAN
United States Attorney

By: s/ Rajiv Mohan

Rajiv Mohan
Assistant U.S. Attorney
U.S. Attorney’s Office
1801 California Street, Suite 1600
Denver, CO 80202
Telephone: 303-454-0100
Fax: 303-454-0406
E-mail: Rajiv.Mohan@usdoj.gov

Attorney for Government
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CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2024, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system. Participants in the case who are registered
CM/ECF users will be served by the CM/ECF system. I also certify that a copy will be placed in
the U.S. Mail, postage pre-paid and addressed to the following:
Dejane Lattany
Reg. No. 51090-510
FCI Victorville Medium I
P.O. Box 3725
Adelanto, CA 92301

s/ Kayla Keiter

Kayla Keiter

U.S. Attorney’s Office

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Exhibit 3 — USA v. Lattany (Dkt. 64.3)

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