Response In Opposition to by USA as to David Staveley re 87 Motion Requesting an Order — USA v. Staveley (Dkt. 117, D.R.I. No. 1:20-mj-00034, docketed in No. 1:20-cr-00074)

Record facts

U.S. District Court for the District of Rhode Island · No. 1:20-cr-00074-WES-LDA · Doc. 117 · 2022-12-01 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
DISTRICT OF RHODE ISLAND 
UNITED STATES OF AMERICA, 
 
v. 
DAVID STAVELEY, 
Defendant. 
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CR No. 20-74-MSM 
 
UNITED STATES’ RESPONSE IN OPPOSITION TO 
PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,  
OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY 
Predicated on a claim that his trial attorney, Jason P. Knight, Esq., provided him with 
ineffective assistance of counsel in the course of negotiating and advising him to accept a plea 
bargain in the above-captioned matter, petitioner David Staveley (“defendant” or “Staveley”) 
now seeks to vacate his convictions for bank fraud conspiracy and failing to appear in court as 
required.  For the reasons set forth below, the United States of America (the “government”) 
hereby opposes Staveley’s motion to vacate and asks that the Court deny it. 
A. 
Factual Background 
 
In order to orient the Court to the context of defendant’s § 2255 claims, the government 
sets forth the version of the facts contained in the Presentence Report prepared by Probation in 
this case (ECF No. 46, at ¶¶ 17-27): 
David Staveley (“Staveley”) and his co-conspirator David Butziger (“Butziger”) 
conspired to defraud BankNewport by submitting false and fraudulent loan applications 
under the federal Paycheck Protection Program (“PPP”). The PPP was enacted by 
Congress on March 29, 2020, as part of the Coronavirus Aid, Relief, and Economic 
Security (“CARES”) Act designed to provide emergency financial assistance to the 
millions of Americans who are suffering the economic effects caused by the COVID-19 
pandemic. The PPP program authorized billions of dollars in forgivable loans – that is 
loans that would be repaid to the banks by the government instead of the borrower -to 
small businesses for job retention and certain other expenses. 
 
Staveley and Butizger conspired to submit four fraudulent PPP loan applications to 
BankNewport in April 2020. In each of these applications, Staveley and Butziger falsely 
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represented those different businesses had significant numbers of employees and large 
monthly payrolls when they did not. First, on or about April 6, 2020, Staveley, in the 
name of his brother Gregg Sanborn, submitted a loan application under the PPP to 
BankNewport on behalf of Oakland Beach Restaurant Group LLC, d/b/a “Top of the 
Bay.” The loan application was in the amount of $185,750 and fraudulently represented 
that Oakland Beach Restaurant Group, LLC had 26 employees and an average monthly 
payroll of $53,000 at the Top of the Bay restaurant in Warwick, R.I. In truth and in fact, 
although Staveley had been in negotiations to purchase the Top of the Bay restaurant, he 
never did so and had no employees and no payroll whatsoever. 
 
On or about April 14, 2020, Staveley submitted to BankNewport an IRS 941 Form in 
support of the PPP application of Oakland Beach Restaurant Group LLC, d/b/a “Top of 
the Bay.” The 941 Form fraudulently listed wages for Oakland Beach Restaurant Group, 
LLC, to be $158,723.52 for the first quarter of 2020 when, in truth and in fact, no wages 
were paid whatsoever in this period. Emails between Butziger and Staveley show that 
Butziger knowingly created the false and fraudulent 941 Form that Staveley submitted to 
BankNewport. 
 
On or about April 6, 2020, Staveley, in the name of his brother Gregg Sanborn, submitted 
a loan application under the PPP to BankNewport on behalf of Apponaug Restaurant 
Group LLC, d/b/a “Remington House.” The loan application was in the amount of 
$144,050 and fraudulently represented that Apponaug Restaurant Group, LLC had 18 
employees and an average monthly payroll of $46,000. In truth and in fact, the 
Remington House restaurant had been closed since November 2018 and Apponaug 
Restaurant Group, LLC had no employees whatsoever. 
 
On or about April 10, 2020, Staveley submitted to BankNewport an IRS 941 Form in 
support of the PPP application of Apponaug Restaurant Group LLC, d/b/a “Remington 
House.” The 941 Form Staveley fraudulently listed wages for Apponaug Restaurant 
Group LLC to be $138,000 for the first quarter of 2020 when, in truth and in fact, no 
wages were paid whatsoever in this period. Emails between Butziger and Staveley show 
that Butziger knowingly created the false and fraudulent 941 Form that Staveley 
submitted to BankNewport. 
 
On or about April 6, 2020, Butziger submitted a loan application under the PPP to 
BankNewport in his own name on behalf of an unincorporated entity that he called Dock 
Wireless. The loan application was in the amount of $105,381.50 and fraudulently 
represented that Dock Wireless had 7 employees and an average monthly payroll of 
$42,152.60. In truth and in fact, Dock Wireless had no employees whatsoever and no 
wages were ever paid by Dock Wireless. 
 
On or about April 6, 2020, Staveley, in the name of his brother Gregg Sanborn, submitted 
a loan application under the PPP to BankNewport on behalf of New Flat Penny LLC, 
d/b/a “On The Trax,” a restaurant in Berlin, MA. The loan application was in the amount 
of $108,777.50 and fraudulently represented that New Flat Penny, LLC had 22 
employees and an average monthly payroll of $36,000. In truth and in fact, although New 
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Flat Penny did own and operate the On the Trax restaurant in 2019 and the beginning of 
2020, the On The Trax restaurant was closed permanently on about March 10, 2020 after 
its liquor license was revoked. New Flat Penny, LLC had no employees whatsoever when 
the PPP application was submitted. 
 
On or about May 5, 2020, defendant David Staveley appeared before the Hon. 
Magistrate Judge Lincoln D. Almond, District of Rhode Island, on a Criminal Complaint 
charging Staveley with federal charges related to the PPP fraud. The Court released  
Staveley on a personal recognizance bond and set numerous conditions for 
Staveley’s pretrial release. On or about May 11, 2020, the Court temporarily modified 
defendant’s pretrial release conditions to include the conditions of home confinement 
with electronic monitoring. 
 
On or about May 20, 2020, the Court scheduled a preliminary hearing and a hearing on 
the Government’s motion to modify defendant’s pretrial release conditions to take place 
on June 2, 2020. 
 
On or about May 26, 2020, defendant Staveley removed the electronic monitoring 
device from his body and fled. In an effort to deceive law enforcement into believing that 
he had died, Staveley staged his suicide by, among other things, leaving suicide notes 
with associates and in his car, which he left unlocked and parked by the Atlantic Ocean. 
27. From on or about May 26, 2020, to July 23, 2020, in an effort to avoid apprehension, 
defendant Staveley traveled to various States using false identities and stolen license 
plates. He was apprehended by the United States Marshals Service in Alpharetta, Georgia 
on July 23, 2020. Defendant Staveley did not appear as directed at the court hearing 
scheduled on June 2, 2020. 
 
B.  Travel of the Case 
1.  Preindictment.  Based on the above conduct, the government sought an arrest warrant 
and complaint for the defendant and his codefendant. (ECF No. 3).  The defendant was arrested 
on that warrant on May 5, 2020.  Initially, the defendant was released (by Magistrate Judge 
Almond) on unsecured bond with conditions.  The Court appointed attorney George J. West to 
represent the defendant.  On May 29, 2020, the Court admitted attorney Mark Josephs pro hac 
vice to represent the defendant.  Attorney West was allowed to withdraw.   
On June 2, 2020, the defendant failed to appear for a preliminary hearing and fled the 
jurisdiction.  An arrest warrant was again issued for the defendant. 
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On July 24, 2020, the defendant was arrested in Atlanta in the Northern District of 
Georgia.  On August 5, 2020, the defendant appeared before Judge Almond via video, who 
ordered him detained. 
On September 2, 2020, a federal grand jury indicted the defendant on seven counts:  
conspiracy to commit bank fraud; three counts of bank fraud; one count of making false 
statements to the SBA in reference to a loan application; aggravated identity theft; and failing to 
appear in court as required. 
2.  Postindictment.  Attorney Josephs moved to withdraw from the matter on January 6, 
2021.  Shortly thereafter, Judge Almond granted that motion, and attorney West was reappointed 
as Mr. Staveley’s attorney.  On March 1, 2021, attorney Jason P. Knight entered his appearance 
for the defendant, and Mr. West was again allowed to withdraw. 
Change of Plea and Sentencing.  On May 17, 2021, pursuant to a plea agreement (ECF 
No. 42), Staveley pled guilty to counts 1 and 7 of the indictment.  During that hearing, he agreed 
that the following facts, recited by the prosecutor, were true: 
This Defendant, David Staveley, and his co-conspirator, David Butziger, conspired 
to defraud Bank Newport by submitting false and fraudulent loan applications under 
the federal Paycheck Protection Program that was created by Congress in response to 
the coronavirus crisis. 
 
The PPP program or the Paycheck Protection Program authorized billions of dollars 
in forgivable loans, that is, loans that would be repaid to the banks by the 
Government instead of the borrower, the small businesses, for the purpose of job 
retention and certain other expenses.  Mr. Staveley and Mr. Butziger conspired to 
submit four fraudulent PPP loan applications to Bank Newport in April of 2020.  On 
each of these applications, Mr. Staveley and Mr. Butziger falsely represented that 
different businesses had significant numbers of employees and large monthly 
payrolls when they did not. 
 
First, on April 6th of 2020, Mr. Staveley, in the name of his brother, Greg Sanborn, 
submitted a loan application under the PPP to Bank Newport on behalf of an entity 
called Oakland Beach Restaurant Group LLC, doing business as Top of the Bay.  
The loan application was in the amount of $185,750 and fraudulently represented 
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that Oakland Beach Restaurant Group LLC had 26 employees and an average 
monthly payroll of $50,000 at the Top of the Bay restaurant in Warwick. 
In truth, although Mr. Staveley had been in negotiations to purchase the Top of the 
Bay restaurant, he never did so and had no employees or payroll at all at this 
location.  In furtherance of this application, Mr. Staveley submitted to Bank Newport 
an IRS 941 form. That form fraudulently listed wages for Oakland Beach Restaurant 
Group to be $158,723.52 for the first quarter of 2020 when, in fact, no wages were 
paid during this period. Co-Defendant David Butziger knowingly created this false 
and fraudulent 941 form that Mr. Staveley  then submitted to Bank Newport. 
 
Also, on or about October -- excuse me, on or about April 6th of 2020, Mr. Staveley, 
again in the name of his brother, Greg Sanborn, submitted a loan application under 
the PPP to Bank Newport on behalf of the entity Apponaug Restaurant Group LLC, 
doing business as Remington House. The loan application was in the amount of 
$144,050 and fraudulently represented that Apponaug Restaurant Group had 18 
employees and an average monthly payroll of $46,000.  In truth and in fact, the 
Remington House restaurant had been closed since November of 2018 and 
Apponaug Restaurant Group had no employees.  In furtherance of his application, 
Mr. Staveley submitted to Bank Newport an IRS 941 form that fraudulently listed 
wages of that entity, Apponaug Restaurant Group, to be $138,000 for the first 
quarter of 2020 when, in fact, no wages had been paid.  The Co-Defendant, David 
Butziger, knowingly created this false and fraudulent 941 form that Mr. Staveley 
then submitted to Bank Newport.   
 
On or about April 6th of 2020, Mr. Butziger submitted a loan application under the 
PPP to Bank Newport in his own name on behalf of an unincorporated entity that he 
called Dock Wireless.  That loan application was in the amount of $105,381.50 and 
fraudulently represented that Dock Wireless had seven employees and an average 
monthly payroll of $42,152 when, in fact, Dock Wireless had no employees at all. 
 
Finally, on or about, again, April 6th of 2020, Mr. Staveley, in the name of his 
brother, Greg Sanborn, submitted a loan application under the PPP to Bank Newport 
on behalf of New Flat Penny LLC, doing business as On The Trax, a restaurant in 
Berlin, Massachusetts.  The loan application was for $108,777.50 and fraudulently 
represented that New Flat Penny had 22 employees and an average monthly payroll 
of $36,000.  In truth, although New Flat Penny did own and operate the On The Trax 
restaurant in 2019 and the beginning of 2020, the On The Trax restaurant was closed 
permanently on or about March 10th of 2020 after its liquor license was revoked. 
 
On or about May 5th, 2020, Mr. Staveley appeared before Honorable Magistrate 
Lincoln D. Almond in this court on a criminal complaint charging him with offenses 
related to his PPP fraud.  The Court set Mr. Staveley – released Mr. Staveley on 
personal recognizance bond and set numerous conditions for Mr. Staveley's pretrial 
release.  On or about May 11th, 2020, on a motion – on motion from the 
Government, the Court modified Defendant's pretrial release conditions to include 
the conditions of home confinement with electronic monitoring.  On May 20th of 
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2020, the Court scheduled a preliminary hearing and a hearing on the Government 
motion to modify the Defendant's pretrial release conditions and scheduled that 
hearing to take place on June 2nd of 2020. 
 
On May 26th of 2020, Mr. Staveley removed the electronic monitoring device from 
his body and fled.  In an effort to deceive law enforcement into believing that he had 
died, Mr. Staveley staged his suicide by, among other things, leaving suicide notes 
with associates and family members and in his car, which he left unlocked and 
parked by the Atlantic Ocean.  
  
From on or about May 25th of 2020 to July 23rd of 2020, in an effort to avoid 
apprehension, Mr. Staveley traveled to various states in this country using false 
identities and stolen license plates.   Mr. Staveley did not appear as directed at the 
court hearing that had been scheduled for June 2nd of 2020.  An arrest warrant was 
issued for the defendant, who was apprehended by the United States Marshals 
Service in Alpharetta, Georgia, on July 23rd of 2020.  
 
During the defendant’s change of plea hearing, the defendant admitted that all of the 
above facts were true.  See ECF No. 68, at pp. 25-26.  The Court set sentencing for August 2, 
2021, but due to continuances requested by the defendant and rescheduling done by the Court, 
sentencing ultimately took place on October 7, 2021.  Following the Sentencing Guidelines, the 
Court sentenced the defendant to a total of 56 months incarceration, with three years of 
supervised release to follow. 
3.  The 2255 and Attorney Knight’s Response.  On August 29, 2022, the defendant filed 
the instant petition pursuant to 18 U.S.C. §2255.  The defendant put forth four grounds in his 
petition, for the most part asserting ineffective assistance of counsel claims.  His claims appear to 
argue that counsel was ineffective in advising the defendant to plead guilty, and in preparation 
for sentencing. 
On November 4, 2022, at the request of the government, attorney Knight responded in 
writing (in a letter to the assigned AUSA in this case) as to the allegations being put forward by 
the defendant in his petition.  That letter is attached as Exhibit 1 to this memorandum, and is 
summarized in the following paragraphs:   
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Discovery Review.  Knight noted that he entered his appearance for the defendant on 
March 1, 2022.  Given the nature of the allegations in the indictment (white collar PPP fraud), 
Knight reviewed an “enormous amount” of discovery, involving many hours of review.  This 
review took place primarily in March and April of 2021.  Knight visited the defendant (who was 
detained at Wyatt) on ?# occasions?  During those visits, Knight discussed the strength of the 
evidence and the legal issues at length with the defendant.  Knight also addressed issues of 
mitigation and the role of a previous attorney in his discussions with the defendant.  
On April 20, 2022, and pursuant to Wyatt’s rules for evidence distribution and viewing 
by defendants, Knight arranged for the delivery of all of the discovery in the case to Mr. 
Staveley.  Under Wyatt’s rules, it is the defendant’s obligation to make arrangements with Wyatt 
to view the discovery.  The defendant did not make these arrangements in a timely fashion. 
Plea Negotiations.  At one point, the prosecutor offered a plea arrangement to Knight – 
with a deadline to reply - but Knight responded that he needed more time to review the evidence.  
The prosecutor acceded to that request.  Subsequently, the prosecutor made another plea offer to 
Knight that was more favorable to the defendant, including an extended deadline and the offer to 
dismiss five of the seven counts of the indictment.  The offer Knight obtained included the 
dismissal of count 8, which charged the defendant with aggravated identity theft (18 U.S.C. 
§1028A), which carries a mandatory consecutive two-year prison sentence.   
Knight visited the defendant on two occasions to discuss this plea offer, May 4 and 6, 
2021.  On the May 4th visit, Knight reviewed in detail several key pieces of evidence, including: 
 A video recording of the cooperating codefendant’s proffered testimony; 
 Police reports; 
 Emails; and 
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 Financial documents. 
Mr. Knight informed the defendant of his opinion that the defendant would most likely be 
convicted of the fraud charges after trial, and that he would almost certainly be convicted of the 
failing to appear charge, which also carried a mandatory consecutive sentence.  He also informed 
the defendant that if he accepted the plea offer, the aggravated identity theft charge would be 
dismissed, and that his sentence would be subject to the advisory sentencing guidelines.  Finally, 
he noted that the sentencing judge was a former public defender, who might be open to the 
defendant’s claims of experiencing trauma from alleged assaults by a correctional officer during 
a prior period of incarceration for a different charge.   
Knight and the defendant made plans to meet again on May 6, 2022.  On that date, the 
defendant told Knight he had decided to sign the plea agreement, which he did.  Knight 
explained that, despite signing that document, the defendant was free to change his mind at any 
time prior to changing his plea.  Thereafter, on May 17, 2022, the defendant appeared before the 
Court and, pursuant to the plea agreement negotiated by Mr. Knight, pled guilty to counts 1 
(bank fraud conspiracy) and 7 (failing to appear in court) of the indictment.   
Sentencing and Appellate Court proceedings.  On October 7, 2021, Judge McElroy  
sentenced the defendant to 56 months in prison and 3 years of supervised release. 
After being sentenced, the defendant appealed his conviction to the First Circuit Court of 
Appeals.  Primarily, the defendant claimed that the appeal waiver agreed to in the plea agreement 
was not enforceable due to the ineffective assistance of his counsel.  On August 2, 2022, the First 
Circuit dismissed the appeal without prejudice, holding that the defendant needed pursue a §2255 
petition before the district court first prior to filing an appeal. United States v. Staveley, 43 F.4th 9 
(1st Cir. 2022).  Thereafter, on August 29, 2022, the defendant filed in this court his §2255 
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petition.  
As to the defendant’s waiver of appeal in this case, the First Circuit concluded that the  
defendant’s plea was knowing and voluntary.  “Here, the plea agreement and the transcript of the 
change-of-plea colloquy make manifest that the defendant’s waiver of appellate rights is 
presumptively valid. The plea agreement contains a clear statement elucidating the waiver and 
delineating its scope…. The change-of-plea colloquy reflects that the district court’s questioning 
anent the waiver was unimpugnable.”  Staveley, 43 F.4th at 14. 
 
C. 
Defendant’s § 2255 motion should be denied as meritless. 
 
In his § 2255 motion (ECF No. 79),1 Staveley raises four claims relating to Attorney 
Knight’s performance.  The claims overlap with each other to a great extent.  Some are explicitly 
refuted by the existing record; others are easily rejected after applying a modicum of common 
sense.  After setting forth the relevant legal standards, the government will summarize and 
discuss each claim as defined by its factual assertions, and will combine defendant’s scattered 
claims involving the same allegation into a single assertion where it makes sense to do so. 
1. 
Legal standards 
 
At the outset it is useful to bear in mind some of the legal principles that form the 
framework for deciding Staveley’s motion to vacate.  Section 2255 of Title 28 acts as a 
“‘surrogate for the historic writ of habeas corpus.’”  Rivera-Rivera v. United States, 844 F.3d 
367, 372 (1st Cir. 2016) (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)).  “A 
petitioner in federal custody may seek post-conviction relief if, inter alia, “his sentence ‘was 
imposed in violation of the Constitution or laws of the United States’ or ‘is otherwise subject to 
 
1 The government cites to the motion to vacate according to the pages assigned in the ECF 
system rather than the pages of the document itself. 
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collateral attack.’”  Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting 28 U.S.C. 
§ 2255(a)) (italics added).   
As petitioner, Staveley bears the burden of proof.  Id. (citing David v. United States, 134 
F.3d 470, 474 (1st Cir. 1998)).  In determining whether Staveley has met his burden, this Court 
does not have to assign any weight to “conclusory allegations, self-interested characterizations, 
discredited inventions, or opprobrious epithets.”  United States v. McGill, 11 F.3d 223, 225 (1st 
Cir. 1993).  Moreover, having presided over prior proceedings in the case, the Court “is at liberty 
to employ the knowledge gleaned during [those] proceedings and make findings based thereon 
without convening an additional hearing.”  Id.  It is thus appropriate for this Court to determine 
the merits of Staveley’s motion on the papers without holding an evidentiary hearing.  Id.   
 
To prevail on his claims of ineffective assistance of counsel, Staveley must meet both 
parts of the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984).  
Under the first, or “performance,” prong, Staveley has to prove that his defense attorney’s 
representation fell below an objective standard of reasonableness, as judged by reference to 
prevailing professional norms, and as viewed as of the time of defense counsel’s actions rather 
than through the lens of hindsight.  Id. at 687-90.  “Reviewing courts ‘must indulge a strong 
presumption that counsel’s conduct falls within the wide range of reasonable professional 
assistance’ and represents sound trial strategy.”  Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) 
(quoting Strickland, 466 U.S. at 689).  To overcome the strong presumption that his defense 
counsel acted competently, Staveley must demonstrate that, given the facts he knew at the time, 
any strategic choices Attorney Knight made were “‘so patently unreasonable that no competent 
attorney would have made [them].’”  United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir. 2012) 
(citation omitted).   
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The second, so-called “prejudice,” prong requires Staveley to demonstrate that there is a 
reasonable probability that, but for his attorney’s unprofessional errors, the result of the 
proceeding would have been different.  Strickland, 466 U.S. at 694.  This Court does not have to 
address both of the Strickland prongs if the evidence supporting either one of them falls short.  
Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007) (citing Strickland, 466 U.S. at 697). 
 
The Strickland standards apply in the context of a guilty plea as well as a trial.  United 
States v. Cobb, 350 F. Supp. 3d 64, 70 (D.R.I. 2018) (citing Hill v. Lockhart, 474 U.S. 52, 57 
(1985).  The first prong of Strickland is “just a restatement of the standard of attorney 
competence” the government has already outlined.  Id. (citing Hill, 474 U.S. at 58).  The 
prejudice prong of Strickland’s analysis focuses in the guilty plea context on whether defense 
counsel’s constitutionally ineffective performance created the reasonable probability that, but for 
the attorney’s errors, defendant would have refused to plead guilty and would have insisted 
instead on going to trial.  Id. at 70-71 (citing Hill, 474 U.S. at 59, and Lafler v. Cooper, 566 U.S. 
156, 163 (2012)).  Here, it should be noted, the defendant never states that he would have 
pursued the option of going to trial.  Furthermore, because of the high value that the judicial 
system places on finality, the scope of a § 2255 motion based on the validity of a conviction 
under a guilty plea is “‘ordinarily confined to whether the underlying plea was both counseled 
and voluntary.’”  Id. at 71 (citations omitted). 
2. 
Analysis of Staveley’s § 2255 Claims 
 
(a)  Did counsel provide unreasonable performance in obtaining discovery for the 
defendant in the case? 
 
 
Staveley first claims that Attorney Knight rendered ineffective assistance by having him 
plead guilty when he had not received or reviewed discovery.  (ECF No. 79, at 4) (Ground One).   
It is well established that this Court’s scrutiny of defense counsel’s performance must be 
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“‘highly deferential.’”  United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting 
Strickland, 466 U.S. at 689).  In that regard, this Court must presume that Attorney Knight’s 
conduct “‘f[e]ll[] within the wide range of reasonable professional assistance,’” unless Staveley 
can establish that, given the facts Knight knew at the time of sentencing, his actions were “‘so 
patently unreasonable” that “‘no competent attorney’” would have chosen those courses of 
action.  Id. (quoting  Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006) (internal quotation marks 
omitted)).  The government submits that Staveley’s ill-informed, self-serving, and conclusory 
assertions about defense counsel’s conduct fall far, far short of establishing that counsel’s actions 
were “patently unreasonable.”  See McGill, 11 F.3d at 225.   
In the main, Staveley’s complaining that Mr. Knight did not provide discovery to him is 
patently untrue.  Here, as his letter submission makes clear, attorney Knight obtained and 
reviewed all of the discovery in the case from the government.  Following the Wyatt’s 
procedures, he took all the steps he could to ensure that the defendant could access the discovery 
from Wyatt.  He spent hours reviewing the discovery with the defendant.  At this point, there was 
nothing further he could do to submit the materials to Mr. Staveley.  Thus, nothing here fell short 
of Strickland’s reasonableness standard. 
(b) 
Was counsel’s performance in the scheduling of sentencing unreasonable?  
 
Defendant’s second claim (Ground Two) is more difficult to understand.  In general, the 
claim states that counsel engaged in a “Failure to seek a continuance at sentencing.”  The 
defendant never makes clear why a continuance should have been sought, or what benefit there 
would have been to give one.  In any event, on July 14, 2021, Mr. Knight moved to continue the 
sentencing.  ECF No. 44.  That motion was granted on the following day, July 15, 2021.  
Sentencing was continued for nearly three months to October 7, 2021.  Thus, there was no failure 
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to seek a continuance. 
The defendant further claims that comments made at the sentencing hearing by the 
AUSA were somehow untrue or prejudicial to him.  During the proceedings, the defendant had 
raised issues relating to his allegations that, several years before the crimes in this case had even 
been committed, and while he was serving a sentence in a different case, the defendant had been 
sexually assaulted by a correctional officer.  During the sentencing hearing in this case, that issue 
came up, and the AUSA said: 
I don't really think it's appropriate for me in this venue  
to talk about the allegations that the Defendant made in the past. All I 
would say on that point, your Honor, is reading through 
the presentence report, there's a lot of mixed 
information on that and it's very unclear. I'm not 
saying it didn't happen, I just don't know; and I don't 
think the Court can just accept this Defendant's word 
that that happened. It may have; if it did, you know, 
I'm deeply sorry and I can't imagine how horrible it 
is, but there's no factual basis one way or the other. 
The thing that's always kind of jumped out to me 
about this particular Defendant and, you know, and 
different than a lot of other defendants in certain 
ways, he seems to constantly be playing the victim and 
blaming other people for his conduct. I was really 
struck in the presentence report where he told the 
Probation Department that he committed this crime of 
submitting, immediately when the funds became available 
submitting these false loan applications because he was 
going through a bad, he was in a bad relationship and 
that led to trauma and that led him to make this 
decision.  And I mean obviously there's no connection between  
the two. This crime was just pure greed. 
 
Comments of AUSA Vilker at Sentencing Hearing, ECF No. 69, at 21-22.   
The defendant complains that the prosecutor here was calling him a liar about his sexual 
assault allegations.  That is a misreading of what the AUSA said, which was simply to focus the 
Court’s attention on the defendant’s failure to accept genuine responsibility for his crimes.  
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There is nothing unreasonable about these comments, and certainly nothing present in them that 
would establish that Mr. Knight’s performance fell below the standard of reasonableness.  
The defendant’s final two grounds (three and four) can be resolved more quickly:   
(c) Was counsel’s performance unreasonable when counsel did not file postconviction 
motions that the defendant wanted to pursue, despite counsel only provisionally 
representing him? 
 
This claim appears to be much ado about nothing.  The defendant complains about Mr. 
Knight’s conduct in not filing postconviction motions he wanted filed after sentencing.  After the 
defendant pled guilty and was sentenced, the First Circuit directed Mr. Knight to continue to 
represent the defendant until he was relieved of such duty by the Court of Appeals.  (ECF 79 at 
p. 89).  Not long thereafter, the First Circuit appointed attorney Kara Hoopis Manosh, Esq. to 
represent him during the pendency of the appeal.  During this time, Mr. Knight ensured that the 
defendant’s rights were protected by the proper filing of a notice of appeal in the appellate case.  
As stated earlier in this memorandum, the defendant’s appeal was pursued by attorney Manosh, 
until it was dismissed without prejudice by the First Circuit.  Thus, not only did Mr. Knight 
behave reasonably regarding this ground, but there was absolutely no prejudice to the 
defendant’s legal interests by anything counsel did. 
(d) Did counsel act unreasonably in his billing practices in this case? 
 
The defendant here complains in detail regarding the defendant’s billing in this case.  The 
payments in this matter seem to have been the simple result of a free bargain agreed to by the 
defendant (and his attorney), on terms that were communicated to him by counsel.  What is 
missing from his complaint is any real allegation that there was any substantive fraud or 
deception.  Regarding the signature affixed by Mr. Knight, his explanation that he had 
authorization to sign the document is reasonable, and in any event the defendant never suffered 
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any prejudice by the date on their agreement being filled on a later date. 
3. 
Prejudice.  For similar reasons, Staveley cannot succeed on the prejudice prong of 
Strickland.  To state the obvious, the defendant never points to any way in which Mr. Knight’s 
representation was affected by his supposed errors.  Noticeably absent from defendant’s petition 
is any assertion of what the defendant would have done differently had Mr. Knight not 
committed the alleged errors. Defendant does not claim that he would not have pled guilty had 
Mr. Knight done anything differently. Nor does defendant now claim that he is innocent or 
would like to withdraw his plea of guilty. This is because the evidence against defendant was 
absolutely overwhelming, including emails with his co-conspirator discussing the creation of 
“bullshit” tax forms, the fact that defendant had no ownership interest at all in one of the 
businesses for which he sought a PPP loan and the absence of any defense to the charge that he 
fled the jurisdiction and failed to appear in court. None of the alleged errors by Mr. Knight, even 
assuming they occurred, caused any prejudice to defendant. Mr. Knight did the best he could for 
a defendant faced with insurmountable evidence by negotiating a favorable plea agreement on 
defendant’s behalf. 
The defendant here was offered and accepted a plea agreement that was much more 
lenient than the sentence he would have received after conviction, which would have included (at 
a minimum) a consecutive sentence on the §1028A of two years.  Had the case gone to trial, he 
was looking at a maximum sentence of extreme length.  The PSR calculated the defendant’s 
guidelines to be a minimum of 70 months and a maximum of 87 months.  Given his criminal 
history of similar fraudulent offenses, the defendant was extremely fortunate to only be 
sentenced to the 56 months he eventually received.  Once again, Staveley has failed to overcome 
the strong presumption that, based upon what Knight knew at the time, his actions were “‘so 
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patently unreasonable” that “‘no competent attorney’” would have chosen them.  Valerio, 676 
F.3d at 246. 
D. 
Conclusion 
For these reasons, Staveley’s § 2255 motion to vacate his conviction should be denied. 
Respectfully submitted, 
 
UNITED STATES OF AMERICA 
By its Attorney, 
 
ZACHARY A. CUNHA 
United States Attorney 
 
/s/ Lee H. Vilker 
 
 
LEE H. VILKER 
TERRENCE P. DONNELLY 
Assistant U.S. Attorneys 
U.S. Attorney’s Office 
One Financial Plaza, 17th Floor 
Providence, RI 02903 
Tel (401) 709-5000 
Fax (401) 709-5001 
Email:  lee.vilker@usdoj.gov 
 
 
CERTIFICATION OF SERVICE 
 
 
On this 1st day of December, 2022, I caused the within Response in Opposition to be filed 
electronically and it is available for viewing and downloading from the ECF system.  A copy of 
the foregoing filing was mailed via First Class mail to the following inmate: 
 
David Staveley 
Reg. No. 04230-049 
FMC Devens – Camp 
P.O. Box 879 
Ayer, MA 01432 
 
 
 
 
 
 
 
 
/s/ Lee H. Vilker________________ 
 
 
 
 
 
 
 
 
LEE H. VILKER 
 
 
 
 
 
 
 
 
Assistant U. S. Attorney,  
 
 
 
 
 
 
 
 
U. S. Attorney's Office 
 
 
 
 
 
 
 
 
One Financial Plaza, 17th Floor 
 
 
 
 
 
 
 
 
Providence, RI 02903 
 
 
 
 
 
 
 
 
401-709-5000, 401-709-5001 (fax) 
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