Pro Se Motion to Vacate Under 28 U.S.C. § 2255 — United States v. Gladys Harun (3:23-cr-3)

Summary

A pro se motion under 28 U.S.C. § 2255 by Gladys Harun, filed February 12, 2025 as Document 57 in United States v. Gladys Harun, No. 3:23-cr-00003-DHB-BKE, in the U.S. District Court for the Southern District of Georgia. The motion states that she pleaded guilty on April 27, 2023 to one count of false statements under 18 USC 1001(a)(2) and was sentenced on January 23, 2024 to 60 months with 3 years of supervised release. It claims ineffective assistance of counsel, denial of due process, an unknowing and involuntary plea and prosecutorial misconduct. It argues the loan applications were prepared in Byron, Georgia, in the Middle District, so venue was improper, and that her attorneys did not raise venue or investigate mitigating circumstances. The 52-page motion asks the court to vacate the plea and sentence, stay a monetary penalty of 547095.07 and hold an evidentiary hearing.

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Case 3:23-cr-00003-DHB-BKE Document 57 Filed 02/12/25 Page 1 of 52

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION

)
UNITED STATES .
RESPONDENT ) | GASE NO 3523 CR Ue renrticr OF Osoncis
)
: cep 12 2028
)
GLADYS HARUN us

PETITIONER C V3 25- O12

PRO SE MOTION FOR INEFFECTIVE ASSISTANCE OF COUNSEL UNDER
AUTHORITY OF 28 U.S.C 2255 AND STAY OF MONETARY FORFEITURE
OF 547095.07 $

Now comes pro se petitioner Gladys Harun to ask this
honorable court for relief and reconsideration pursuant to
28 U.S.C 2255, ineffective assistance of counsel.
Petitioner advances several claims of relief including that
she was deprived the effective assistance of counsel, deprived
due provess of law and her plea was unknowing and involuntary.

Additionally she suffered prosecutorial misconduct.
Case 3:23-cr-00003-DHB-BKE Document57 _ Filed 02/12/25 Page 2 of 52
es

STATEMENT OF THE CASE

Petitioner pleaded guilty to one count of False

Statements in Violation of 18 USC 1001(a)(2).
Petitioner pleaded guilty on 04/27/2023. Thereafter on January 23

2024, petitioner was sentenced to 60 months incarceration with
additional 3 years of supervised release. Petitioner is currently

housed in a federal facility, Alderson Federal Prison Camp located

at One Glen Ray Rd, Alderson West Virginia 24910.
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25 Page 3 of 52

JURISDICTION

The Southern District Court did not have jurisdiction of the case
The court acted outside its limited jurisdiction as discussed

further in the motion.
LEGAL STANDARDS 3b

Case 3:23-cr- ment 57, , FilegdOARYBS s Rageref 52
The Fifth Amendment provides in relevant part "no person
shall be... deprived life, liberty, or property without the due
process of the law". Importantly, "due process is flexible and

calls for such procedural protections as the particular situation

demands".Morrissey v. Brewer, 408 U.S 471,481(1972). But, "in

order to state a claim for failure to provide due process, a
petitioner must have taken advantage of the processes that are
available to him or her..."Alvin v. Suzuki, 227 F.3d 107, 116
(3rd Cir. 2000). Where the Petitioner attempted to avail herself
the procees that are available to her, and those processes are
not provided to her through no fault of her own, the due process

is necessarily violated.

B.) PRO SE LITIGANT
Hetrun is appearing pro se in this matter and respectfully
requests the court to take judicial notice of same and accord
Her: filings a liberal construction. Due to the unlawful arrest,
Petitioner is indeed confined at Alderson Federal Prison Camp in
West Virgia, where she does not have access to outside legal

assistance and very limited access to legal materials,
Case $:23-61-00003-DHB-BKE Document 57 = =Filed 02/12/25 Page 5 of 52

Emergency situations such as lockdowns far beyond control
further curtail her limited access to what can be described
as a sparse law library. Finally, Ste is forced to prepare
her court filings using an antiquated typewriter and the
preparation of her filings is further hampered because her
typing skills are at best rudimentary.

With respect to pro se filings, the Supreme Court, in
Erickson v. Pardus, 551 U.S. 89,93 (2002) (per Curiam), declared
"a document filed pro se is to be liberally construed" (citing
and quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). According
pro se litigants a special solitude is consistent with the high
standard of fundamental fairness constitution requires in
case where life and liberty are at stake. (Fay v. Noia, 372
U.S 391 (1963( (Brennan, J. )).

Because Petitioner is proceeding pro se, she respectfully
requests the court to take notice of her pro se status and accord

her the benefit of liberal construction.

C. ) INEFFECTIVE ASSISTANCE OF COUNSEL
It is well settled that claims of ineffective assistance
of counsel are cognizable directly in a 2255 action. (United
States v. Anderson, 2018) (Anderson, J. ) citing Mcmann v.
Richardson, 397 U.S.759, 771 n.14(1970)).
A successful claim of ineffective assistance of counsel requires
the movant to "prove that counsel's performance fell below an

objective standard of reasonableness, and counsel's deficiencies

prejudiced his defense." (id. citing strictland v. Washington,
466 U.S 668 (1984)). Importantly, a claim of ineffective

assistancerequires a "reasonable probability that but for
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25 Page 6 of 52
40

counsel's unprofessional errors, the result of the proceeding
would have been different."(id). The "reasonable probability"
standard should not be confused with the preponderance’ standard
(see e.g Frost v. Pryor, 749 F. 3d 1212, 1225 (10th Circuit. 2014
(discussing "reasonable probability" standard and finding "if a
state court were to reject a prisoner's claim of ineffective

on the ground that he had not established by a preponderance of
the evidence that the result of his criminal proceeding would
have been different absent counsel's deficient performance,

that decision would be contrary to clearly established Supreme
Court precedent because the prisoner need only demonstrate a
reasonable probability that the result of the proceeding would

have been different.'") (emphasis in original, internal quotation

brackets and citations omitted).
As explained in more detail below, Petitioner contends her

counsel was constitutionally ineffective in that counsel failed

to:
(a) Properly investigate the law with regard to this case

(b) Conduct an indepth interview with petitionerX

(c) Research the law (4) Kaure re Chen Wee
ne > 6 >
(d) Review Discovery Os ) a
(e) Conduct an investigation (AI Conse frie P
adwcoye

(£) Pursue a defense strategy and dismiss charges

(g) Impeach false testimony (o\ fur b CLetoe cons hf
Viel cr
(h) Present exculpatory evidence favorable to petitioner

(i) Review documents
. precccurrl

muccy aducte

(8) Chaves

(j) Interview witnesses

dusore™
(d) Chery, aorr j
by Cur
Case 3:23-cr-00003-DHB-BKE Document57 _ Filed 02/12/25 Pagé}ot 52

FAILURE OF ATTORNFY TO ADDRESS LACK OF JURISDICTION BY THR
SOUTHFRN DISTRICT COURT

The Southern District court of Georgia did not have jurisdiction
over this case. All attorneys failed to address the lack of
jurisdiction. Rule 26.2 of criminal rule of procedure states
that the governement must prosecute an offense in a district

where the offense was committed. Courts must set the place of
trial within the district with regard for the convenience of the

defendant, any victims and the witnesses in the prompt administration
of justice.

Petitioner asserts that the alleged crime in the plea agreement
and all conduct in the dismissed cases took place in Byron Georgi@e
in the Middle District. The plea agreement charges petitioner for
fraudulently falsifying information on a loan application for
K. Wellsin eastman Georgia. Wells lives in eastman but the loan
was prepared in Byron Georgia.Petitioner contends that the loan
application began, continued and completed in Byron Georgia.
Petitioner did not have a business in Fastman at the time of the
loan application. Petitioner did not travel to the Southern
District(Rastman GA) and did not meet Wells there. Petitioner's
business had closed down in Fastman by then.

The agents and prosecution in this case intentionally
interfered with the venue so they could prosecute the case in
Savannah Georgia in the Southern District where they work.

Agents Truax who prepared the warrants misrepresented that
petitioner committed the ofense in Fastman Georgia. Petitioner
was prosecuted in the wrong venue which prejudiced her

substantially. Petitioner lives and had her central business offic@

2.5 hours from Augusta Georgia where the proceedings mostly took
place including sentencing.
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 8 of 52

Petitioner's employees and community members could not drive
2.5 hours to suport her or testify for her. No witness was wiling
to drive that long. There was judicial misconduct and bias when
agents committed perjury in the indictment document and used
southern district as the venue of the case in Agent's favor.
Agents were able to come testify at their convenience while
petitioner could not get any of her employees and comunity members
to drive that long. Petitioner's children paid 350$ for Ubber to dng em In Cour:

Petitioner was unknowingly made to waiver her right to

challenge venue on 04/27/23 when she took a plea. This was 9 months
after being held in custody in the wrong district as she was held
in Jefferson County jail in Lousville Georgia.
Petitioner applied for her disaster loans in Byron Georgia and
she did all the FIDL AND PPP LOAN applications for all
her clients in Byron Georgia. She met them in Warner Robins Georgia
when they came to file their taxes.

All the charges were filled in connection to her IPP INTERNET
activity from her home located in 192 Amelia Dr Byron Georgia
31008. This IPP INTERNET is proof that petitioner did all the
applications in Byron Georgia. This internet based evidence from
her IPP address satisfies the constitutional venue statue.

The agents falsified information on the venue which violated
jurisdictional requirements.

Petitioner contends that venue "turns on the action by the
defendant that is essential to the offense and where that specific
action took place. Because the "essential conduct of the charged
false statements offense is the making of the false statement

and the false statements were made in an online loan application
using her internet in Byron Georgia then southern distrutewas

not a proper venue
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 9 of 52

©

The southern District court therefore does not have jurisdiction
of the charged offense. While defendants can agree to a change of
venue, they cannot waive this right if the court in the chosen

venue lacks the authority to hear the case.

All attorneys for petitioner did not argue that venue was improper
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25 Page 10 of 52
+

_ FAILURE OF ATTORNEY TO INVESTIGATE, OBTAIN OR PRESENT
ANY EVIDENCE OF MITIGATING CIRCUMSTANCES

Petitioner argues that her sentence should be vacated because her
counsel failed to investigate, obtain or present any evidence of
mitigating circumstances to the court and to the government
during the pretrial, plea phase and sentencing phase.

Strickland holds that a criminal defense lawyer has a duty
to conduct reasonable investigations into her client's case which
extends to the law as well as facts. As that duty pertains to
investigation of the law, counsel is obligated to research
relevant law to make an informed decision whether certain avenues
will prove fruitful. the American Bar Association also suggests
that under no circumstances should defense counsel recommend to a
defendant acceptance of a plegunless appropriate investigation
and study of the case has been completed, including an analysis
of controlling law and the evidence likely to be introduced in
trial. The extent to which the counsel will be obligated to
research the law in order to perform at a constitutionally
adequate level of competency will vary case by case: as Supreme
Court observed in Strickland, starategic choices made after
less than complete investigation are reasonable precisely to the

extent that reasonable professional judgements support the limitation
*Cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 11 of 52
; 8

on the investigation. But the decision not to investigate cannot
be deemed reasonable if it is uniformed.

An attorney has a duty to investigate independently the
charges against his client. Wiggins v. Smith, 539 U.S. 510, 524
123 S. Ct. 2527, 156 L.Ed 2d 471 (2003). Under the court's
jurispendence, there must be a "reasonable amount" of pre trial
investigation. Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir 1994)
strictland explains that if an investigation is incomplete, a
court should weigh that incompleteness only to the extent that
"reasonable professional judgements support the limitations on
the investigation because "counsel has a duty to make... a
reasonable decision that makes particular investigations
unnecessary." Stickland, 466 U.S at 690-91

While counsel's selection of a strategy is unchallengeable
See stricklane, 466 U.S. at 691, the sixth, seventh and ninth
circuitS™Nnave held that the selection of a defense strategy
before a reasonable investigation is ineffective. Richey v.
Mitchell, 395 F.3d 660, 685 (6th Cir 2005), red'd on other ground
Bradshaw v. Richey, 546 U.S. 74, 126 S. Ct. 602,163 L.Ed 2d 407
(2005); White v. Godizen, 301 F. 3d 796, 801, 803 (7th cir 2002).
Rios v. Rocha, 299 F. 3d 796, 805-07 ( 9th cir 2002).

Informed evaluation of potential defenses to criminal charges
and meaningful discussions with one's client of the realities of

of his case are cornestones of effective assistance of counsel
- Washington v. Watkins, 655 F.2d 1346, 1355 (5th circuit 1981)

(citing Gaines v. Hopper, 575 F. 2d 1147, 1149-50 (5th circuit
1978).
Filed 02/12/25 Page 12 of 52

1

~™"-¥Casé 3:23-Cr-00003:DHB-BKE “Document 57

In Wiggins v. Smith 539 U.S. 510, 123 Ss. ct. 2527 (2003),
the court stated that its principal concern was whether counsel's
investigation of defendant's background was itself reasonable.
the court concluded that counsel did not conduct a reasonable
investigation because they did not expand their investigation
beyond a presentence investigation and information contained in
the records of the Department of social services. It was unreasonable
for counsel not to continue their investigation after discovering
facts from the DSS records concerning the defendant's alcoholic
mother and his problems in foster care. Counsel's failure to
investigate missed the facts of defendant's diminished mental
Capacity and sexual abuse in foster car@ as well as his
homelessness. The court concluded that had these facts been presented
at trial, there was a reasonable probability of a different
decision by the jury.

In Rompilla v. Beard 545 U.S 374, 125 S. Ct 2456 (2005),
the court held that even when a defendant and /his family members
have suggested that no mitigating evidence is available, The
lawyer is bound to make reasonable efforts to obtain and review

material that counsel knows the prosecution will rely on.. the
court further found that there was inefective assistance of

counsel in failing to present Significant mitigating evidence
about the defendant's childhood, mental capacity and health and
alcoholism. The court in this case also relied upon and cited
the ABA standards for criminal justice whith stated, "it is the
duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading to

facts relevant to the merits of the case and the penalty in the
Filed 02/12/25 Page 13 of 52

Case 3:23-cr-00003-DHB-BKE Document 57 _

event of conviction... the duty to investigate exists regardless
of the accused's admissions or statements to.the lawyer of facts
constituting guilt or the accused's stated desire to plead guilty’
(1 ABA Standards for Criminal Justice 4-4, 1,. 2ed. 1982 Supp).
the court further cited Wiggins, Supra in stating that the ABA
guidelines provide that investigation into mitigating evidence
Should comprise efforts to discover all reasonable available
mitigating evidence and evidence to rebut any aggravating evidence
that may be introduced by the prosecutor. (1989 ABA GUIDELINES
11.4.1.€). The court finally concluded that such evidence might
well have influenced the jury's appraisal of defendant's
culpability.

In examining the investigation that counsel made, a court

must not only consider the quantum of evidence already known to

counsel, but also whether this evidence known to counsel would

4

lead a reasonable attorney to investigate further ( Strickland, -
Supra; Haliym v. Mitchell, 492 F. 3q 680, 6th Cir 2007). In assesizZ
counsel's performance, a court must thus consider whether counsel

adequately folowed up on the "leads" that were available to them
(Haliym, supra; Strickland, Supra; Harries v. Bell 417 F.3d 631,
6th Cr 2005).
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 14 of 52
The facts of this case are very similar to those of the cases
cited herein. Mr Vines did not make any efforts to discover all
reasonable available mitigating evidence to rebut aggravated
false evidence that prosecutor used against petitioner. Vines
did not gather an indepth information concerning petititioner's
backgroround concerning her charity work, education, family life
and work involvement.Because no amount of strategic deference
could compel any fair conclusion other than that petitioner was
denied effective assistance of counsel.

Counsel (Luwemba) advised petitioner to>takeia-%pléa-without
eenducting investigation in her business, payroll and charity
work. He never investigated issues sorrounding the application of
disaster loans and how petitioner used them. He adopted prosecuto¢,
file and advised petitioner to pay whatever amount the government
deemed fit. when a lawyer advises his client to plea a bargain to
an offense which the attorney has not investigated such conduct
is always unreasonable. (see Woodard V. Collins, 898 F. 2d 1027,
1029 (5th Cir 1990).Despite having time to investigate all attorn
did not devote any efforts to investigate.

Allegations of ineffective assistance of counsel centered on

a supposed failure to investigate must indicate what would have
been obtained from the investigation and whether such information
would have produced a different result... see United States ex rel
Cross v. DeRobertis, 811 F. 2d 1008, 1016 (7th Cir 1987).
Petitioner therefore presents evidence that attorneys failed to

produce.
Case 3:23-cr-00003-DHB-BKE Docunmgnt 57 ~=—-Filed 02/12/25 Page 15 of 52

DEFENDANT'S OPERATIONS AND BUSINESS STRUCTURE

Petitioner had three businesses merged in Operation. She had
blue sky started in 2010, Embrace Africa (non profit) and Jackson
Hewitt Tax Service which is a forprofit franchiseed business.
Petitioner had 12 locations in her franchiseed tax business with
Jackson Hewitt. she had bought various territories and was in the
process of expanding when she abruptly became incarcerated
(see a list of her business locations and territories in Jackson
Hewitt defrachising letter Exhibit 1)

Petitioner had over 50 workers in 2020 and 2021. Some were
paid as independent contractors and others received a wage as
employees. Her tax business was seasonal as it involved doing
taxes.

Petitioner offered various charity programs under Embrace Africa.
She administered free tax programs or discounted rates to help
middle Georgia community especially seniors who had challenges
mostly filing taxes. Petitioner also sponsored orphans and needy
children in Kenya. Petitioner's father run a school in Nyandarua
in Central Kenya region. This school has been running since 2004.
Petitioners had various initiatives to pull women out of poverty
in Africa and sponsored educational programs and intiatives in
Kenya.

Petitioner paid her employees out of her bank accounts using
a payroll provider and issued annual w2s reflecting paid wages.

late in 2019, Wells fargo her provide stopped offering payroll
Case 3:23-cr-00003-DHB-BKE écument57 Filed 02/12/25 Page16o0f52

UNDERREPORTING OF WAGES
Petitioner paid workers via wells fargo payroll company but they terminated these services end of 2019. There was a
misunderstanding between petitioner and Wells fargo. Wells fargo did not report some of the wages paid by petitioner to
IRS. This company claimed to have sent petitioner a letter advising her to handle her employer filings with IRS but
petitioner never received such a letter. Employees from Dublin reported problems with IRS as they filed their personal taxes
in 2020. As a result of this, Petitioner ended up having paid more wages than reported to IRS; her paystubs for workers
demonstrate this. This was a genuine error, some workers reported not to recieve a w2 or a 1099 at the end of the 2020
year .
Petitioner then used square payroll provider; Square payroll was not able to import petitioner all wages from Wellsfargo.
Petitioner reported thi to IRS in 2021. Petitioner sent her some of her payroll documentation to Social Security office,
petitioner was working with both IRS and Social Security to correct her employee wages. This process was not completed

due to covid shut downs. Both agencies understood that this task would take time due to Covid . petitioner was undegoing
this civil action to resolve the challenges when the governmnt arrested her and turned it into a criminal case
Case 3:23-cr-O0003-DHB-BKE Document57 ~ Filed 02/12/25 Pade 17 of 52

FAILURE OF ATTORNEY TO CHALLENGE MIS REPRESENTATION
OF PPP RULE AND OVEREACHING BY Prosecution

All attorneys in this case did not challenge the government's
false interpretation of PPP program rules which prejudiced
petitioner. The PPP loan rules contained in the ACT

U.S.C 636 (a)(36) stipulated that if funds are knowingly used:

for anauthorized purposes,the federal government may hold someone
liable legally such as for charges of fraud. The federal government
may pursue recovery of loan amounts and or civil or criminal char gées,
Petitioner asserts that her conduct did not amount to fraud as

as defined by the CARES ACT RULE because she never mis-used PPP
AND EIDL loan proceeds. There was no personal financial gain or
fraudulent intent in petitioner's conduct. Her prosecution and
closure of her business locations was improper. The court erred

in ordering her to pay restitution in recovery of PPP that were
not fraudulently used. Petitioner used all her loans to pay for
payroll, business rent, business marketing fees and royalties to
Jackson Hewitt her franchisor and paying for business utilities.
petitioner did not use PPP and EIDL funds to pay for a car,
mortgage and personal expenses as charged by the government.

ALL ATTORNEYS FAILED TO ARGUE THAT PETITIONERS CASE=*YNVOEVED-MAINOR
INFRACTIONS THAT DOES NOT CONSTITUTE FRAUD

In prosecuting petitioner, the government focused on technical
violations and minor discrepancies in PPP loan applications; hers
was not a clear cut case of fraud. Petitioner asserts that she

made unintentional errors due to the rushed nature of the program
and complex regutationss.

Petitioner was given severe penalties including a hefty restitutigry,

of 547, 095.07$ and 60 months incarceration plus 3 years of
Case 3:23-cr-00003-DHB-BKE Rgcument 57 ~=-Filed 02/12/25 Page 18 of 52

Supervised release. Petitioner asserts she received a harsh

and cruel punishment for unintentional misrepresentations in the
PPP loan application... Attorney Vines failed to urgue that these
penalties are disproportionate to the offense alleged. This

severe punishment runied her life and shut down her businesses.
Attorneys failed to argue that lack of clarity in regulations on
PPP loan applications made it difficult for petitioner and other
business persons to ensure full compliance. Petitioner did not have

clear guidance on what to do when her wages were under reported

to IRS. Petitioner called SBA for direction in good faith. She
was advised to come up with a work-around solution to help her
get the PPPloan she was qualified for. This was interpreted as

crime by prosecution.

FAILURE OF ALL ATTORNEYS TO PURSUE A VALID DEFENSE AND DISMISS
CHARGES

All attorneys in this case did not research, never investigated

that petitioner was innocent of the crime charged. Counsels

ignored and remained indifferent to the fact that petitioner

did not defraud SBA. Petitioner did not have the intent to

defraud SBA either. She therefore had a Men's Rea defense availab le
to her. If attorneys considered this defense, there is a reasonab le

probability that charges against petitioner would have been dismi ssed

ATTORNEYS FAILED-TO _DISPUTE FRAUD CHARGES

All attorneys failed to challenges various issues that sorrounded

the fraud charges that petitioner received.
A. Falsity

"The FCA does not define false." United States v. Bourseau, 531
F.3d 1159, 1164 (9th Cir 2008) "rather , courts decide whether a
Case 3:23-cr-00003-DHB-BKE Dolfument57 Filed 02/12/25 Page 19 of 52

claim is false or fraudulent by determining whether a defendant's
representations are accurate in light of applicable law" and
applicable law is subject to judicial interpretation. (citing

U.S. ex rel. Oliver v. Parsons co., 195 F.3d 457, 463 (9th Cir
1999). courts must further interprete the FCA broadly in keeping
with the congress's intention to reach all types of fraud, without:
qualification, that might result in financial loss to the government
(Winter ex rel u.s v. Gardens Reg'l Hosp. & Med. Ctr., inc, 953
F.3d 1108,1116, (9th Cir 2020)) (quoting United states v. Neifert
-white co., 390 U.S. 238, 232, 88 S. Ct. 959, 19 L.Ed. 2d 1061
1968)) The supreme court has constistently refused to accept a
rigid, restrictive reading of the FCA... AND HAS CAUTIONED COURTS
against adopting a circumscribed view of what it means for a claim
to be false or fraudulent. id (quoting Universal Health Servs

v. U.S ex rel. escobar (Escobar 1, 579 U.S 176, 192, 136 S.Ct.

1989, 195 L.Ed 2d 348 (2016))

2)
1. ) Payroll costs

All attorneys failed to challenge prosecution's theory of
liability that petitioner falsely reported payroll expenses on

her PPP loan application that she did not have,

Prosecution solely relied on forms 941's from the IRS. Petitioner
contends that the CARES ACT and subsequent SBA rules and guidance
define payroll costs such that petitioner's payments of employee
salaries from its bank account and issuing paystubs fulfilled

PPP requirements. Thus according to petitioner, her listing of
payroll costs on her PPP loan application could not be false

mm those figures not have been reported fully in IRS FORM
Ss
Case 3:23-cr-00003-DHB-BKE Doouments7 Filed 02/12/25 Page 20 of 52

The errors in the 941s is attributed to her payroll provider.
Petitioner's 941s had less wages reported. Petitioner had 25
employees in 2020 and 50 employees in 2021. Her forms 941s

shows zero as the number of employees. The government used this
€rrors to prosecute petitioner unjustly. IRS forms w3s for 2020
and 2021 report the number of employees while 941s have none.

The payroll costs petitioner asserted in her application for
loans were legitimate and false statements. Petitioner had payrol
expenses as amatter of accounting. She had eligible payroll costs
"payment of ... compensation with respect to employees" as define qd
by the PPP 15 U.S.C. 636 (a)(36)(A)(viii)(1).

The SBA subsequently issued an interim and further guidance
providing compatible definitions of the term, see Business Loan

Program Temporary Changes; Paycheck Protection Program, 85 Fed
- Reg. 20811, 20813 (April 15, 2020, (payroll costs includes all

cash compensation paid to employees subject to the 100,000 annual
compensation per employee limitation.

Petitioner asserts that she paid hourly wages and bonus to her
employees.

2. ) Economic uncertainty
Attorneys failed to argue that petitioner's certifications of
economic uncertainty in her PPP loan applications could not
constitute falsities for purposes of the FCA.
In applying for both her 1st and 2nd draw PPP loans, petitioner
certified that "current economic uncertainty made the loan request:
necessary to support her ongoing operations...". These certification$
were derived from Statutory borrower requirements in the CARES

ACT, WHICH REQUIRED ELIGIBLE PPP loan recipients to make make a

good faith certification.... that the uncertainty of current covid

st
Ware de, Lo an fle cerca,
Case 3:23-cr-00003-DHB-BKE Document 5/7 ——- Filed 02/12/25 Page 21 of 52

Petitioner asserts that she made her economic uncertainty

certification in good faith and therefore could not be false per

the applicable SBA rule.

3. PROPER USE OF PPP LOAN PROCEEDS
Both of petitioner's PPP loan application§’required her to
certify that all loan proceeds will be used only for business
related purposes as specified in the loan application and
consistent with the Paycheck Protection Rule"i.e to maintain payroll
and retain workers. Petitioner's 2nd draw laon aplication made
her certify that she would use use the full loan amount’ for
eligible expenses . Petitioner fulfilled her contractual obligation-:
for both PPP loans as certified in the applications. Her loans
were used only for business related purposes as specified in the
loan applications and consistent with the PPP RULE "to retain
workers and maintain payroll(see 15 u.s.c 636 (a)(36)9g)(i)(11)
Petitioner qualified and received LOAN forgiveness for both loans
because she used her loans to costs that are eligible for forgive negs

such as "payroll costs to retain employees" Petitioner used at

least 60% of the loan on payroll. (see 636m (d)(8)

B. MATERIALITY
All attorneys failed to challenge the materiality of the governme nt
case against petitioner. The government's case mainly rested on
the premise that petitioner's PPP applications were differing and
had fraudulent information about numbers of employees and the
monthly payroll of her business.

Petitioner asserts that the misrepresentation the case was based

upon were not material for SBA's decision to give PPP LOAN.
Case 3:23-cr-00003-DHB-BKE Document57 Aiféd 02/12/25 Page 22 of 52

lenders knowledge of the facts underlying the alleged false
record or statement can negate scienter required for FCA
VIOLATION.
Petitioner asserts that in consideration of her loans, lenders
did not rely entirely on the forms 941s. They had interviews with
petitioner where she was interviewed about her expenses in payroll.
and other expenses. There were email exchanges with the lenders
and other payroll documents were considered besides the 941s.
The mistatements in 941s wre simply not material to the lender's
decision issue loan

SBA DID NOT ISSUE a loan that was not used properly.
petitioner did not pocket any money or used any for her personal
illegitimate reasons. The disaster loans went into the right
purposes. SBA did not incur any loss in these transactions.
Lendistry and SBA knew that petitioner as a bonafide employer
had discrepancies in the payroll she paid and the amount reported
to IRS. Petitioner has paystubs to show this.

The lender and petitioner knew why a wage reconstruction was
was being used and why.

Nevertheless the loan was approved. the lenders can hardly be

faulted for paying even though they knew the information

identifying the payroll data is not accurate.

Wells fargo as a lender was aware that it did not report petitioner's
wages accurately. This was not an issue with them.

These lenders were concerned with making sure that disaster loans
were dispelled to business owners in a timely manner to eleviate
effects of covid shut downs so businesses can stay afloet and not

close down.
As a direct result of Covid 19 pandemic, petitioner's
Case 3:23-cr-00003-DHB-BKE Document57_ Filed OQpl12/25 Page 23 of 52

business was negatively impacted and suffered economic injury

If the disaster loans were declined, petitioner's business would
have suffered closure. She would not have been able to stay

open or pay employees, contractors and pay business bills and
other obligations and expenses.

“Fhe disaster loans sustained her business during pandemic
which aligns with congressional intent for CARES ACT.

The misstatements that gave rise to this case allowed 20 employee

in 2020 and 50 employees in 2021 to remain employed and 12 business
locations to remain open. Petitioner was able to help her community
overcome covid shutdowns by offering 600 free stimulus returns

and discounting fees to enable seniors and other groups get

stimulus money and refunds on time. Petitioner delivered tax

and stimulus charity drives that helped many people. Overall

good was achieved as a result of these loans. Petitioner wasaabte
able to help the community through. he employees that were sustained
by the disaster loans.

The misstatements in her loan applications are precisely the
type of insubstantial mistatements where materiality cannot be
found.

Prosecution misrepresented and converted a genuine unprofitabhe
PPP loan application and proper use of funds into a fraud case.

The reconstructed 941s were intended as one thing and oné thing
only, they were intended to derive a technical formula that was

used to calculate a fair share of PPP loan for a seasonal employees
who had paid more wages than reported. This prevented petitioner
from missing out on disaster loans as a legitimate employer who
was affected by Covid 19 shut downs.

Petitioner's employees needed pay amidst Covid shut downs when
Case 3:23-cr-00003-DHB-BKE Document57_ Filed o2iflee Page 24 of 52

when customers were not visiting petitioner's business
locations for fear of Covid 19 exposure. These employees needed
their pay to sus#@in themselves and their fiamilies amidst low
business productivity due to covid 19 shut downs..
Those employees needed their pay upon which the loan applications
were based on. Nothing suggests that the data derived from the
941s or the workaround that prevented a legitimate business from
missing out on disaster loans served anything other than the
practical purpose of facilitating acquisition of PPP loans which
were later used for legitimate purposes.
the whole activity ended up as sspending expense for petitioner.
She matched her PPP loans by providing covid relief services that
put money on many American's pockets helping them survive the shué¢,
down.
Attorneys failed to argue that petitioner's actions were business

and charity oriented not greed motivated .

Petitioner contends that her payroll documentation including
paystubs and bank statements clarify clearly that the 941s that
Agent Jack from IRS used as a benchmark for this prosecution
were in error. Prosecutor Howard and Agent Brian Truax all three
were informed about this issue at the start of the case. However,
thewy ignored petitioner's concerns and pushed through with the
prosecution.

Petitioner Asserts that the government did not meet the material
standard required to sustain a false claims act for fraud charges
petitioner asserts that a restitution in repayment of these forgiven

and properly used loans is a miscarriage of justice.
Case 3:23-cr-00003-DHB-BKE Document 57 2?Filed 02/12/25 Page 25 of 52
No single fact or occurence determines materiality. Instead,

multiple factors inform materiality analysis such as whether
the government alleged violation goes to the essense of the bargain
and how the government responds to claims when it has knowledge
of violations. Ecobar' 1, 579 U.S at 193 n.5 194-95.
The materidskaity standard is demanding, The false Claims Act is
not an all purpose anti fraud statue or a vehicle for punishing
garden-variety breaches of contract or regulatory violations. By
enforcing the materiality requirement rigorously, courts ensure
that government contractors do not face onerous and unforeseen FCA
liability as the result of noncompliance with any of the potential
hundreds of legal requirements ( united states ex rel Kelly V.
Serco, inc., 846 F.3d 325,333 (9th Cir 2017)(citation ommitted

A misrepresentation cannot be deemed material merely because
the government designates compliadnce with a particular statutory

regulatory, or contractual -requiremenentadtions. A misrepresent
as a condition for payment. Nor is it sufficient for a finding of}
Watertality that the government would have the option to
decline to pay if it knew of the defendant's non compliance.
Materiality cannot be found where non compliance is minor or
insubstantial. see United States ex rel Marcus v. Hess, 317

U.S. 537, 543, 63 S CT. 379, 87 L.ed.443 (1943))

Failure of Attorneys to assert Government knowledge inference

No attorney was willing to advocate for petitioner on

the lack of intent to defraud in her loan applications.

Attorneys chose to distance themselves from the wage differences
that petitioner faced in her IRS reported wages and what she real
paid.

Petitioner asserts that she had discussed her wage discrepancies

with SBA and lenders before hand. SBA directed petitioner
Case 3:23-cr-00003-DHB-BKE Document57 Filed-$2/12/25 Page 26 of 52

to apply for a PPP loan with Lendistry. SBA checked its system

and gave petitioner 5 names of lenders who still hade money left

to give under the PPP program. At this point the money was in the
verge of depletion most lenders were out of money.

There is therefore government knowledge inference that undermines
the materiality and fraud charges from the government. Her

loan lenders knowledge of the alledged false records negate

the scienter required for an FCA violation.

A classic example of the government knowledge inference occurs
when the government with the knowledge of the facts underlying an
allegedly false claim, authorizes a contractor to make that claim
For instance in the United States ex rel Durcholz v. KKW, Inc
officers at a naval facility directed the defendant general
contractor to use incorrect line-items in order to expedite the
biddip process. fhe officers did so because they were more interested
in speed than cost and made their decisions in accordance with
these priorities. The court of appeals for the seventh Circuit
declined to hold the defendant reliable for defrauding the govenmeny,
by following the government's explicit directions. The court
explained that the government knew what it wanted and it got
what it paid for. Though such direct and contract specific
authorization is not required to support the govenment knowledge
inference, generally where the governiegen and a contractor have
been working together albeit outside the written provisions of
the contract, to reach a common solution to a problem, no claim

arises
Case 3:23-cr-00003-DHB-BKE Document57_ Filed?62/12/25 Page 27 of 52

The government inference arises when the government knows and
approves of the facts underlying an allegedly false claim prior
to presentment and the defendant knows that the governemnt is
aware of the false informetion in a claim. There is a two prong
test that must be met before the government knowledge inference
can preclude liability. The two prong requires that
(1) The government agency knew about the alleged false statements
(2) The defendant knew the government knew

In Shaw v. AAA Engineering & drafting, inc, the court of
appeals for the 10 circuit distinguished the decisions of the
court of appeals for the ninth cirsuit in united states ex rel
butler v. hughes inc and wang ex rel united States v. FMC CORP.

The 10th circuit stressed that in Butler and Wang, the defendant
and the government had completely cooperated and shared all

information and had an ongoing dialogue about the problems
Petitioner asserts that she had cooperated with the lenders
and SBA, shared information and had an ongoing dialogue about
her payroll problems. This SBA/LENDERS KNOWLEDGE was sufficient
to negate the intent requirement under the FCA as a matter of law
(1) The government knew about the alledged false statements
(2) Petitioner knew that the government knew government knew
There was cooperation and colaborative problem solving going on.
The workaround could arguably described as a creative common
sense solution to a very real and perplexing problem
Petitioner asserts that there is nothing that would justify
calling it fraud. Her loan applications were neither false nor
fraudulent. Nothing in the text or history of the FCA leads to

the conclusion that congress intended conduct such as this to

morph into an actionable fraud prosecution.
> <@asea:28.crisv003-Didectnce DosunShhsA  Fites02/12/255 Page 28 of 52
G\ Charges RUCK Aremuseel onl,

(ore. ®
PETITIONER DID NOT COMMIT MONEY LAUNDERING

“SUR Nae brie Chiseucces Qu Charge

Petitioner asserts that her conduct did not involve unlawful
money activities . She never concealed, disgusted the nature of
of location, the source, the ownershipr or control of the proceed
of any unlawful activity. Petitoner aserts that her loans were

not criminally derived. She rightfully acquired an EIDL LOAN
that was used for business purposes.

Her PPP loans were qualified by lender and used properly too.

PETITIONER DID NOT COMMIT WIRE FRAUD

All Counsels did not challenge the charges of wire fraud and merieg
laundering. The petitioner asserts that
The united States burden under the wire fraud requires a showing
that the defendant had the intent to deceive and cheat- in other
words to deprive the victim of money or property by means of
deception(United States v. Miller, 953 F.3d 1095,1103(9th cir
2020)). This requires that defendant made false or fraudulent
pretenses, representations or promises. Evidence that petitioner
submitted false information when applying for disaster EIDL
AND PPP LOAN IS INSUFFICIENT TO SUPPORT a conviction of wire
fraud charge under 18 USC 1343. Petitioner did not defraud SBA
OF MONEY or property by receiving disaster loans. A rational
triefof fact could not conclude the government did not receive
the benefit of its bargain.

Petitioner therefore seeks reversal of her restitution
order on the basis of insufficiency of evidence. There is no
plausible evidence showing that SBA did not receive the benefit
of the bargain or was subject to a scheme to deprive it of money
or property. The court should challenge the sufficiency of the

evidence de novo, asking whether viewing the evidence in the
Case 3:23-cr-00003-DHB-BKE Document 57 _ Filed 02/12/25 age 29 of 52

26

in the light most favorable to the verdict, "any rational trier

of fact could have found the essential elements of the crime
beyond a reasonable doubt. (United states v. Boyd, 803 F.3d

690. 692 (D.C Cir 2015)).(quoting Jackson v. Virginia 443 U.S

307, 319 (1979)).

The evidence presented fails to prove beyond a reasonable doubt
that petitioner was not acting in good faith as a legitimate
busieness owner desperately trying to save her business in a time
of crisis due to Covid 19. Where the evidence supporting a fraud
charge fails to prove a loss of money or property, it fails. Courts
have held that where the evidence supporting a fraud charge

failed to prove a loss of money or property, it could reversé

for insufficiency of the evidence under either the plain error

or denovo review (United States v. Barrow, 109 F.4th 521 526

(D.C Cir 2024).

Petitioner asks that the restitution be reversed.

Attorney Luwemba and “ine npso Aid nox CM QUEAgO Qo CHa ments

FAILURE OF ATTORNEYS TO CHALLENGE LACK OF CRIMINAL CONDUCT
CHARGED IN THE PLEA AGREEMENT

Petitioner pled to a charge of false statements in violation of

18 USC 1001(a). Petitioner helped K.W FREE of charge to apply

for an EIDL loan. Wells was a cancer survivor at the time petit ioner
applied for this loan. Petitioner met Wells through her mum Lotsieé
Gordon who was a long time friend of petitioner and a neighbor.

Both Wells and her mum were battling cancer in 2021. They approached
petitioner to help them apply for a grant. Petitioner apllied

for wells EIDL loan using her tax transcript for 2019 tax year

which indicated that she had self employment. Wells and her Mum

had supplied documentation to Jackson hewitt when they filed =

taxes in 2020 concerning their self employment income.
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 30 of 52

Prosecutor Howard and Agents Jack and Truax who interviewed
petitioner had the opinion that to qualify for a PPP loan or
EIDL, a person has to have an actual business like a store front.
petitioner argued with them because an a loan applicant did not
require to have an "actual business" but need to have self
employment. Having a business and having self employment are two
different requirements.

The Coronavirus Aid Relief and Economic Act (CARES ACT)
stipulated that small businees include
(a) sole proprietors
(b) Self employed individuals
(c) Independent contractors
in the EIDL and PPP loan applications the above sole proprietors,
independent contractors and self employed individuals were all
classified as businesses in a broad category to include them all.
The plea agreement on page 2 charged petitioner for making false
statements that Wells had a business "Defendant knew at the time
of the application that K.E.W did not have such business".
Allegations in this charge were similar to others where prosecution

to have

required a aloan applicant qa real traditional or actual
business. They never recognized other categories recognized as
businesses by SBA as listed above.

Petitioner asserts that the EIDL/PPP loan applications
that she prepared for her few wie sane were based on their data
from their tax returns showing ‘they were qualified for the loan.
These cli@@ts had schedule c in their tax returns for 2019 and
2020 tax years. Agents refused to review their tax returns and

relied on their word of mouth or hearsay evidence that was

not factual.
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25 a¢Page 31 of 52

Petitioner discussed with wells that in order to get a disaster
gran she had to apply for the EIDL loan since there was no stand
alone application for a grant . Even thought her tax transcript
qualified her for the EIDL loan, there was a zero probability
she could get the loan since her credit score was below 575. She
told petitioner that her credit got messed up when she battled
cancer and did not take care of various payments.Her low credit
score disqualified her for the EIDL loan but she applied to try
see if she could get the grants associated withthe loan.

Once petitioner applied for the EIDL loan for wells, Wells
received a username in her emails from SBA. She went onto SBA
portal and created a password. A verification code was sent on he
phone. She logged into SBA portal read all loan application
disclosures and application details. She then signed all relevant
paperwork and gave SBA permission to process the loan,

Petitioner asserts that wells by signing these documents insidé S&A portal

made herself responsible and legally reliable for her loan applications,
Wells reviewed her loan application and completed it by signing
therefore petitioner cannot be held responsible for it. This

applies also to Jane Njeru, Esther Njoroge, and Jacqueline Black.

They all reviewed their loan applications, read disclosures and

loan agreements with SBAiand the lenders. This removed liability

from petitioner as a loan preparer. These applicants signed their

their loan applications therfore are responsible for the loan detetails.
They signed their loans and got into contractual agreements and

were therefore legally responsible for theirvcloans.

As a loan preparer, petitioner fulfilled her due diligence by

preparing their loans according to their tax records. This was
Case 3:23-cr-00003-DHB-BKE Document 57 _ Filed 02/12/25 gqPage 32 of 52

the acceptable and required procedure for the application of
disaster loans. Their loans were also proper and legitimate

court erred in ordering petitioner to pay back these loans.
Petitiner argues that there is no statue that punishes a loan
preparer for using an applicant's tax transcript details to apply

for a loan. This charge was therefore improper.

FAILURE OF ATTORNEY TO CHALLENGE LACK OF PLAUSIBILITY IN THE
PLEA AGREEMENT

Attorney Luwemba did not address the plea agreement's facial

invalidity since no valid crime was alledged. The plea did not

state an offense on its face. The falsity alledged in the applicarin (Lean)
details was invalid because as discussed the loan was prepared

using Wells tax return for 2019. Wells had signed her tax return

in 2020 and indicated that the details listed in the return was

accurate and prepared according to the information she furnished

Jackson Hewitt. In 2021, she used this tax return to applya -
forazloan. She had indicated that she had self employment with »%

her mum for year 2019. She also claimaedsher nephew in the tax
return. Wells and her mum took care of thetr’sibling who was
bound in a wheelchair. Wells and her mum claimed in their taxes t
that the rest of the family gave them some money for it. Her mum
also baby sat in their home. They claimed this as joint income in
the tax return.

Petitioner had paid Wells mum on various occassions to baby

sit for her. Petitioner has attached an affidavit showing thaa’

they babay sat in their home. see affidavit from Emmanuel

Githinji exhibit '0)
Case 3:23-cr-O0003-DHB-BKE Document57 ~ Filed 02/12/25 Page)33 of 52

Petivoner was charged with a crime that was simply not a crime.

Her attorneys failed to advocate for her in this issue. The plea

did not charge facts that constitute a federal crime.

petitioner lacked knowledge of the material facts in the plea
because facts in the plea are inconsistent with the crime.

the government's charge of fraud in this case was implausible
based on the correct use of Well's tax information; petitioner's
plea was not fully informed. The plea failed to allege fraudulent
intent, the indictment did not charge petitioner with an express
misrepresentation to obtain the loan at issue. The courts review
dismissal under Fed R. CIV P. 12(b)(6) de novo. Under rule
12(b)(6), the court reviews for plausability, specifically
whether enough facts have been pled to state a plausible claim.
see Bell atl corp v. Twombly, 550 U.S 544, 570, 127 S.ct 1955,
167 L.Fd 2d 929 (2007). Rule 8(a) dismissals are reviewed for an
abuse of discretion but to overcome a motion to dismiss, Ff
plantiff's allegations must move from conceivable to plausible
see Ashcroft v. Iqbal, 129 S. Ct 1937, 1950-51, 173 L.Fd 2d

868 (2009)

Petitioner asserts that section 2255 relief will be if the informator
or indictment failed to charge an offense, because the error is
one that divests the court of jurisdiction see e.g United states

v. Harper 901 F.2d 471, 472-73 (5th cir)
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 Page 34 of 52

FAILURE OF ATTORNEY TO REVIEW AND SUBMITT BUSINESS DOCUMENTS TO
COURT

Attorney Vines did not contact square payroll or wells fargo to

obtain and review business records for petitioner's business

Vines adopted prosecutor's file and never investigated further.

Petitioner desperately emailed him some of the payroll documents
and other business records through her family. Counsel never
submitted them to court.

Counsel refused to submitt petitioner's IRS FORMS W2s , W3s,
1099s, payroll reports, transaction details from Jackson Hewitt,
Business licenses, employee clock in hours etc. This would have
cured the misunderstanding that petitioner used disaster loans
for anauthorized purposes.

Petitioner has attached some of these documents here.
Sve wi Send more in vwten be Prisun OfGcrois QU ber 4d,

FAILURE OF ATTORNEY TO ASSERT THAT OPETITIONFR ACTED IN GOOD
FAITH

Petitioner asserts that she received ineffective assistance of
counsel because all attorneys did not defend her actions through
good faith. Petitioner asserts that she applied for the FIDL

AND PPP LOAN IN good faith. She projected data from using her
rightfull paystubs and reconstructed her missing wages in good
faith. A person who acts on a_ belief or an opinion honestly
held is not punishable --- merely because the belief or opinion
turns out to be inaccurate, incorrect or wrong. An honest mistake
in judgement does not rise to the level of criminal conduct,
Good faith encompasses among other things a belief or opinion
honestly held, an absence of malice or ill will and an intention
to avoid taking advantage of others. Petitioner was extra dedicated
to making sure her workers keep their jobs during covid, she was
dedicated to helping seniors and the needy in the society during

covid, she was dedicated to helping orphans and needy children in
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/b2h25 Page 35 of 52

Africa in good faith. Petitioner believed in good faith that it
was appropriate to apply for FIDL and PPP loans and use them to
sustain her business during covid shut downs. She believed in good
faith it was appropriate to match her disaster loans and offered
tax filing charitable services towards seniors, people who were
bed ridden in hospitals and homes due to Covid. she helped them
to get their stimulus and refunds in a timely manner.

petitioner believed in good faith that her actions were
authorized and consistent with principles of charity work upheld
by embrace Africa. Her actions of helping ethe less fortunate
and needy in sociéty is recognized and accepted standard of
practice for chariety organizations as stipulated by Internal
Revenue Service - charity division.
The government cannot prove beyond a reasonable doubt that her
business actions and charity actions were malevolent rather than

benevolent. For this reason, the sentence verdict need to be vaca ted

FAILURE OF ATTORNEY TO CHALLENGF AND DISMISS CHARGFRS ON FIDL LOAN
FRAUD

Consel did not present mitigating evidence to exonorate petitioner
on charges that she committed FIDL loan fraud. During pre-trial,
plea and sentencing phase of the case all attorneys did not
challenge this charge.The government charged that petitioner
illegally obtained and mis-used 137,000.00$ from FIDL loan. The
government declared the loan improper and charged that petitioner
misused these funds on personal expenditure including buying a

car, making mortgage payments, sending international transfers(wire
payments) and on personal purchases.

During sentencing, Vines kept quite and did not advocate for

petitioner on this issue. He did not explain mitigating circumstances
Case 3:23-cr-00003-DHB-BKE Doeyments57 Filed 02/12/25 Page 36 of 52

Petitioner had a business with not more than 500 employees, she
paid payroll and had 12 business locations. Petitioner was in
business for the one year required period prior to covid 19
disaster. To qualify for her loan, SBA run and approved the loan
based on petitioner's credit score which was more than 575 as
required by SBA. SBA further determined that petitioner was able

to repay the loan since Jackson Hewitt and Fmbrace Africa were
operational. In addition to giving petitioner ana FIDL loan of
127,000.00, SBA freely also gave petitioner an advance grant of
10,000.00$Both FIDL loan and FIDL grants were used for appropriate
business purposes as stipulated by SBA. petitioner had enough funds
in her account to cover for her personal international wire transfers
and expenditure within America . Petitioner used her business
income from Jackson Hewitt to buy the car, pay mortgage and send
money to her family in Africa. None of the FIDL loan went for
illegitimate personal uses.

Prosesution selectively picked some transactions from her account
to use against her but never recognized that she had enough deposits
to cover her expenses from Jackson Hewitt.

Petitioner has attached a breakdown of how he spent the FIDL loan
. . i a Ur b < é
(see exhibit 34 ) Pe tiene wced DI a au Od BA (ayrou whe oar 6a [po

of BEE Ese pop Leon, Se used Gil Ela & Pay Ry Businecc Ment Kev (2 leCaneny.
Arc ore, SX Nensess
Petitioner was facing a critical moment in her business; she was

in the verge of closing because customers were not coming to her
business locations in fear that they would contract the virus.

Her FIDL loan enabled her to pay her payroll, to pay for franchis®@.’
obligations with Jackson Hewitt such as marketing fees and royalties

Petitioner was able to pay for utilities and supplies therefore

saving her business. The FIDL funds thus helped Fmbrace Africa

and Jackson Hewitt survive the Covid 19 economic challenges. Goua
Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/26, Page 37 of 52 oe

The United States burden under the wire fraud statute — a
requires a showing that defendant had the "intent to deceive
and cheat- in other words to deprive the victim of money or
property by means of deception" United States v. Miller 953 F.3d
1095, 1103 (9th Cir 2020). This requires that the defendant
made "false or fraudulent pretenses, representations, or promises
(id).

Petitioner asserts that her EIDL loan application was proper
and no fake or fraudulent pretenses or representations or promise

@ere made. Petitioner was qualified for 9009 - 15USC 636(b) (2)
EIDL Loan in response to covid 19 during the covered period.
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25

»

Petitioner had a qualifying business; in the loan application she
gave truthful information about her business. The information
she gave concerning her business was correct. As agreed on the
loan authorization and agreement, petitioner used the EIDL
FUNDS AS working capital, to cover payroll expenses and other \
business obligations including rent, debts, supplies and utilities,
di ge during sentencing was speculative and declared the loan
improper without specificity on why petitioner's EIDL loan was
not appropriate.
Rule 9(b) requires that allegations of fraud or mistake
must state with particularity the circumstances constituting
fraud. Fed. R. CIV. P.9(b).. The circumstances required by rule 9
procedure are the "who, what, when, where, and how" of the
fraudulent activity. (see Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1106 (9th Cir 2003)). see also Neubronner v Milken
6. F.3d 666, 672 (9th Cir 1993).
In addition, the allegation must set forth what is false or -
misleading about a statement and why it is false. See Vess 317
F.3d at 1106(quoting Decker v. Glenfed, inc. (in re Glenfed, inc
sec. litig), 42 F.3d 1541, 1548(9th Cir 1994). This heightened
pleading standard ensures that the allegations of fraud are
specific enough to give defendants notice of the particular
misconduct which is alleged to constitute the fraud charged so
that they can DEFEND against the charge and not just deny that
they have done anythinbg wrong (Semegen v. Weidner, 780 F.2d TB,

731 (9th Cir 1985). 7
7. ) GOVERNMENT INTERFERENCE WITH VALID CONTRACTS

The constitution prohibits the government from interfering with
legitimate activities and actions.(United States v Williams, 514
U.S 527 (1995). The government declared petitioner's loan <
illegitimate after she met all contractual obligations . This

interference violates her rights under the contracts clause.
Petitioner had a valid contract with SBA to repay the EIDL loan

in 30 years. This illegitimate interference from the governement
went against the constitution article 1 section 10.

The government interfered with petitioner's loan after a valid
underwriting actions that violated her right to contract freely

(see Kaiser Aetna v United States, 444 U.S 164(1979).
Government is prohibited from overreach into private property
and contract matters( Loretto v. Teleprompter manhattan CATV CORP

458 U.S 419 (1982)

The government declared petitioner's FIDL loan illegitimate

after she met all contractual obligations. This interference
violates her rights under the contract clause. Government
interference with legitimate actions is prejudicial(United States
v. Willims 514 U.S 527 (1995). The government interfered after a
valid underwriting process completed. This violated petitioner's
right to contract freely. The government improperly interfered
‘with legitimate actions (Kaiser Aetna v. United States, 444 u.s

164 (1929)

Case 3:23-cr-00003-DHB-BKE Document57 Filed 02/12/25 . Page 40 0f 52.
3

FAILURE OF ATTORNEY TO CHALLENGE PROSECUTORIAL MISCONDUCT

All attorneys did not submit a prosecutorial misconduct challenge despite evidence that the government engaged in
intentional misconduct which violate brady, he federal rules of criminal procedure and the constitution. attorneys refused to
object various prosecutorial misconducts:
Investigating officers in this case prosecuted petitioner by preparing and or signing an accusatory instrument which they
knew to be incomplete, misleading and false.
Petitioner contends that this misconduct was clear, devious and willful.

GOVERNMENT USE OF PERJURED TESTIMONY
Petitioner contends that her due process was violated because Agent Brian Jack who worked the case mainly presented false
testimony and the prosecutor Christopher Howard allowed it to go uncorrected. This false testimony was imputed to the

prosecution
Case 3:23-cr-00003-DHB-BKE Document 57 Filed 02/12/25 3kage 41 of 52

PROSECUTORIAL MISCONDUCT: FAILURE TO DISCLOSE
EXCULPATORY EVIDENCE

InBrady v. maryland 373 83 s.ct 1194, 10 L Ed 2d 215 1963) the
supreme court held that the suppression by prosecution of evidenc
ffavorable to an accused upon request violates die process where
the evidence is material either to guilt or to punishment
irrespective of the good or bad faith off the prosecution. >

for a brady claim to succeed, petithtioner must show that

1. that the evidence at issue is favorable to the accused

2. that it was suppressed by the prosecution, either

willfully or inadvertently

3. it was material see Banks v. Dretke 540 U.S 668, 692, 124

S.Ct 1256, 157 L.Ed 2d 1166 (2004)

Inthe course of applying for PPPliean petitioner exchanged emails
with Lendistry and SBA. agents removed these emails from her
inbox kept them and they never presented them to defense counsels
nof to court. agents directly tampered with evidence and spoiled
it.The emailsawere kept by agents andpetitioner couldmnot access
them. Petitioner was informed by the email company that agent’
had taken them.These emails contained evidence that petitioner ,
SBA, andlendistry cooperated and worked a problem solution on
how her loans were calculated amidst inaccurate form 941s.

Agents suppressed this evidence to the prosecution's advantage.
counsel for petitioner (all attorneys) refused to addess this iss
issue.

Agent Jackffrom IRS WITHHELD tax transcripts for

a.

a. Melinda Hoven
b. Jane Njeru

c. Esther Njoroge

d. Freanci <+Leki
Case 3:23-cr-O0003-DHB-BKE Document57 ~ Filed 02/12/25 Page; 42 of 52
a

i

e. jacqueline black.

These persons had filed taxes with Jackson Hewitt for years.
They had self employment uin their tax returns for 2019 and or

2020 tax years; this qualified them for disaster laans.
Prosecution charged petitioner with wire fraud and deemed these
loan applications illegitimate and fraudulent. Prosecution relied
on a false premise thet "you have to have a physical business to
qualify for the loans. Agent Lott from SBA TESTIFIED
during sentencing that they had to have an "actual business"
to qualify for disaster loans. Consel failed to contend for ,
petitioner that that was not a requirement by the CARES ACT USC
636 (a)(36)(B)(F). Agent Jack visited some of these individuals
and @sked them specificallyy'"did you have a business in 2019?"
Most of them answered nooottt of misunderstanding. Prosecution used
these misrepresentations to convict petitioner.

These tax transcripts are material evidence and if they
were produced, no jury would have indicted petitioner for wire
fraud. Restitution could nat as well been ordered.
Petitioner was ordered to pay back the EIDL loan of Jane Njeru in
the amountof 119 810.71. Njeru was interviewed and approved
by anloan specialist from SBA. Agents suppressed this information
against petitioner. Mjeru had worked agan independent contractor
for 2019 and 2020 she was qualified for the EIDL loan.Agents
testified that she was not but SBA qualified her after undergoing

underwriting . see her attached AFFIDAVIT. EX hey te ttf ,

agen&t Lott From SBA SUPPRESSED various communications between
SBA and these loan applicants. These phone calls and emails
would have shown that trhe loans were proper and nothing fraudulént.

was associated with them.
Case 3:23-cr-00003-DHB-BKE Document57 _ Filed 02/12/25 Page 43 of 52

These::tax returns, emails and phone call communications were
favorable to petitioner because they were both exculpatory and
Lipedching,. They contradict prosecution theory that theseiskoans
were improper.
in PRESENTENCING REPORT , agents misrepresented that petitioner
used disaster loans to buy airticket, groceries, dental fees,
mortgage payments and a rental car (PSI ITEM 24) this is non
factual as petitioner used all her loans for allowable purposes.
2. In PSI item 28, agents accused petitioner of taking a
PPP LOAN of 20,000 and not using it appropriately agents
state that "within the application , Harun agreed that not more
than 40 percent of the forgiven loan amount may be used for non
payroll costs. subsequent debits were examined and was determined
that Harun mispent the funds at best Harun used approximately
47.5 percent of the finds on payroll rather than 60% percent as
required by law". This falsity is unquestionably egregious and 0.
outrageous as petitioner spent over 600,000.00$ for payrollfor
fogboth 2020 and 2012 periods wags aad conwacr pe),
3. PSI ITEM 23 accused petitioner of fraudulently getting loans
ignoring the work around they disctssed with lendistry.
SBA allowed business oweners to apply for PPP loans with multiple
lenders because money was running out. This increased chances of
a businesssgetting money as money was defpeting fast. Petitioner
— advised by SBA to apply with various lenders which she did.
there was a zero probability that all 5 lenders could have given

her a loan (just like you cannot get multiple refunds onyour

taxes using aa social security number). Petitioner used the same
EIN number(Employer Identification Number) when applying

for PPP loan with 5 lenders. SBA system had a mechanism to eadrop

all othe’ eapplications if one was approved. This was the case -7i-
Case 3:23-cr-00003-DHB-BKE Document57_ Filed 02/12/25 Page 44 of 52
HA

with petitioner, the other four lenders dropped her applications,

4 of them when she was approved by Lendistry. the government false
accused petitioner of attempting to obtain an extra 397, 075.00$
PPP loan. This impossible loan of 397,075.00 was imputed into
sentencing which gave her an intended loss enhancement in her
criminal points in the sentencing guideline tablee. fhis increased
her points with 12. This gave rise to vidbation of her due proces
rights. “(he peg rity fn Sumrd he_ vacated:
petitoner asserts that these misrepresentations resulted into
her severe sentence and excessive restitution

Petitioner ASSERTS that she never met Agent Justin Lott~-
from SBA. She saw him the first time during sentencing. He never
interrogated petitioner. He never corrected misconceptions on
disaster loans which led to this unduly prosecution. He never
clarified on the issues of contraversy, he went along vouching
for false testimony mainly from Agent Jack who interected with

petitioner

Attorneys for petitioner never sort aslaon specialist to

a a

resolve the bias that petitoner faced as a result of falsity on
key application elements and requirements of disaster loans which
was distorted by prosecution in their favor.

PROSECUTORIAL MISCONDUCT; FAILURE OF INVESTIGATORS TO REVIEW

DUE DILIGENCE RECORDS

Counsels for petitioner did not advocate for petitioner. They ev
never challenged Agents developing crimes from petitioner's onling-

IPPFINTERNET activity without reviewing documents.
Case 3:23-cr-O0003-DHB-BKE Document57 _~ Filed 02/12/25

Page 45 of 52
ie

Agent Jack from IRS is well versed wih? the inspection requirement
of due diligence records towards Electronic Return Originator

(ERO) petitioner was an approved IRS approved provider who
originated and submitted returns. Agent jack did not review the
documents that petitioner used to prepare tax returns and loan 2»
applications for her clients. He did not review records associated
with applications for Jane Njeru, Esther Njoroge, Melinda Hoven

a dn Jacqueline Black. He concluded from the internet ipp address
that their applications were fraudulent. IRS HAS A COMPREHENSIVE
procedure to evaluate compliance with ERO providers. If':he

followed this procedure, petitioner would have been able to demonswate
that she followed due diligence in her work as a preparer.

This illustrates further bias in the investigation.

PROSECUTORIAL MISCONDUCT: GOVERNMENT RECALLED

PETITIONER'S FORGIVEN PPP LOANS AND DEMANDED “REPAYMENT

Fund

COUNSEL FOR PETITIONER DID NOT OBJECT WHEN PROSECULLON OVER_REACH&O
counsel for petitioner did not object when prosecution overeached
and over stepped® SBA"S decision to forgive petitioner her loans.
Petitioner did not get a formal review from SBA in reviewing her
forgiven loans. On the contrary she received emailsfrom SBA
inviting her to apply for more EIDL funding. L*¥wvle F
Petitioner-asserts she would have passed the review and allowed to Keay
since she used all her loans properly and as well donated her
money to help the community during covid. Agents did not allow
this fair review to tske place. They recalled the loan on their
criteria

SBA had a mechanism to ensure that the employers who did not
use all ppp funds for payroll (60%) would repaythe loan. Petitoner

asserts that this would have allowed her to keep her business if
prosecution allowed SBA to solve the issue instead of the

prosecution and shutting down of ther business.
Case 3:23-cr-00003-DHB-BKE Document 57, Filed 02/12/25 Page 46 of 52

KS

petitioner was already undergoing and pursuing civil remedies penta
IRS and Social Security concerning her unreported wages. Petitioner
asserts that the governement selectively prosecuted her personally
instead of her corporation Embrace Africa despite government
knowledge of ongoing civil remedies , this was unfair treatment
towards her. Charging the petitioner personally for payroll data
already being addressed by the cooporation in civil remedies with

IRS AND SOCIAL SECURITY CREATED A DE FACTO DOUBLE PUNISHMENT

that carrries a double jeopady concern.

Counsels did not address these overlapping civil and criminal
issues. Disregarding that civil remedies were in progress and
purstiting criminal charges on her personally instead of the corporation
constituted government overreach and a violation of due process.
petitoner contends that she was entitled to a resolution of her
PPP_loan liability through SBA and an update of her employer
records with IRS. Petitioner assepts she was entitled to these
administrative processes with the two agencies before criminal
liability was imposed in United States v. Lasalle National Bank,

437 U.S 298 (1978), limits the use of IRS investigations to m
gather evidence for criminal prosecution if civil remedies are
actively pursued. Misuse of overlapping civil and criminal proceéses
may constitute misconduct. ( United states v. Kattar, 840 F.2d 11

8 (1st Cir 1988)
Case 3:23-cr-00003-DHB-BKE Dagyment 57 ~=—~Filed 02/12/25 Page 47 of 52

PROSECUTORIAL MISCONDUCT: USE OF WRONG PPP LOAN CALCULATION FORMULA

Throughout the case agents maintained that petitioner was only
suppose to get 25,000.00$ worth of PPP loan. Agents divided the
wage reported for 2020 which was 108017.50 divided it by 12 then
charged petitioner of getting a loan 7 times more than she was
supposed to get.

Petitioner was prejudiced by this formula since her loans were
calculated using a di€€efernt formula. she was a seasonal business,
her loan amount should have been more than the agents calculated.
Agents used the wrong formueala willfully and intentionally

to prejudice her.

Agents would have derived a way more different amount if

they calculated it right. they calculated pftitioners loan using

the annual formulathat divided a years wage by 12 then multiplied

by 2.5 . For example if the agents were near being fair,
bE NIATAN

petitioner was a seasona\employer, for fairness her loan, have been
108,000 divide by 3 multiply by 3.5 whichwould have given her
126,000.00 this is a majar difference that prejudiced her.
however, lendistry used her wages for a period of 12 weeks and

mutliplied by 3.5 since she qualified for a exception in NAICS

CODE 72. wa Se was €Entitted re move Loan than Carenteied by
Petitoner's loan was calculated by Lendistry AS a seasonal mes:
business, agents calculated it as if she was a full year annual

business. €his added fraud liability on her violating her

due process.
i.
CSC'S 23°C -OUTOS-DHE BRE DOCUMENTS 7 pond O2TTZTZ0" Page 48 of 2

Qemer ete: ~

PAILURE OF ATTORNFY TO CHALLFNGR COURT'S ABUSF OF DISCRETION

Petitioner asserts that her attorney wqas deficient during sentencing
for failure to object when the court changed her laqn contractual
obligation. The court changed petitioner's contractual loan
obligation for her FIDL LOAN. she was Supposed to pay in 30
years but she was ordered to repay it by making 400 dollars payment
everymonth upon release from prison. Petitioner invokes the
"Taking Clause" of the 5th amendment. This court and governement
action substamntially impared her loan contract to the point of
“depriving her of its property rights. It could also be considered
a "taking" requiring just compensation. The due processs clause
of the 5th and 14th amendments states that governements interference
with coulracts must be rationally related to a legitimate governrent
purpose and cannot be abitrary, ’
Petitioner was generating income in her Jackson Hewitt loacations
she was already scheduled to start making payments on her FIDL
Starting December of 2022. Petitioner was in forebearance because

SBA gave businesses a grace period to then start making payments

on loans by December of 2022. There was no need for prosecution
and a court order for restitution on this loan.
Case 3:23-cr-00003-DHB-BKE Documergs, 5/7 ~—- Filed 02/12/25 Page 49 of 52

ABUSE OF DISCRETION BY COURT

A district court abuses its discretion when it relies on

clearly erroneous findings of fact, uses an erroneous legal
standard, or improperly applies the law. Attoéneysfor petitioner
did not raise plain error review. Plain error has four elements
(1) an error (2) that is clear and abvious

(3) that affected the defendant's substantial rights and

(4) whose adverse impact seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. But an error
satisfies all four elements only in exceptional circumstances
where it is so plain that the trial judge and prosecutor were
derelicit in countenancing it.

In this case petitioner asserts that the entire evidence
was based on a false premise creating a definite and firm
conviction that a mistake was committed. Thus:: the
district courts account of the evidence is not plausible in the
light of the record. The court should vacate this sentence.

The evidence of knowledge and intent was not sufficient to
convict petitioner of wire fraud and false statements. Granting
habeas relief based on prosecutorial misconduct is prop#e because
prosecution committed improprieties during their investigation
that was unduly prejudicial. Petitioner contends that this impropriety
was flagrant because
(a) it misled the jury to indict petitioner in the first place
(b) it was extensive
(c) it was deliberate
(d) the evidence against petitioner was weak.

The court's erroneous consideration of false evidence and fabricated

testimony affected the substantial right of petitioner.
Case 3:23-cr-00003-DHB-BKE Documeéekt57 Filed 02/12/25 Page 50 of 52

Petitioner received cruel AND harsh punishment from the court
because the sentencing decision was based on improper basis.
The errors resulted to a harsh sentence and high restitution
amount.

These errors were a@@agegregated in nature. Due to ineffective
assistance of counsel, the errors were not addressed leading to
a miscarriage of justice.

FAILURE OF ATTORNEY TO OBJECT OVERSENTENCING

Attorney Vines did not object when s petitioner was sentenced
outside guidelines. Petitioner was deprived to be sentenced
under a sentence guideline range which had a minimum and a
maxtimum.. The plea agreement on page 4 item @ promised
petitioner the low end of the advisory guidelinerrange

range. This was determined by court to be 27-33 months of
incarceration. Petitioner asserts that court breached this
agreement by sentencing her to 60 months in prison.

Petitioner asserts it is unconstitutional unconscionability
for a plea proffer to take a quantum leap of 547,000.00$ and
suggest to the court without objection of defense counsel

and claim that petitioner owes that large an amount of restitutivw

toward a 2114 ec claim in gross revenue loan claim. It is
improper for a plea agreement without objection of attorney

to claim a 5 year possible sentence should be applicable in pe
petitioners case without giving consideration to a sentencing
guideline pursuant to U.S.S.G . This plea also shows an ambiguous

calculation between actual and intended loss.
Case 3:23-cr-00003-DHB-BKE Documypnt57 Filed 02/12/25 PageSlof52. 0

Petitioner asserts that her Sentence was substantively unreasonable. The court reviews the substantive reasonableness ofa
sentence for abuse of discretion (United states v. Kirlin, 859 F.3d 539, 545 (8th Cir 2017). A district court abuses its
discretion (a) when it fails to consider a relevant factor that should have received significant weight

(b) gives a significant weight to an improper or irrelevant factor or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgement (United States v. Borromeo, 657 F.3d 754, 756 (8th Cir 2011).
A defendant challenging his sentence must show more than the fact that the district court disagreed with his view of what
weight ought to be accorded certain sentencing factors (United states v. Townsend 617 F.3d 991, 995 (8th Cir 2010). a
within guideline sentence is is presumptively reasonable on appeal.

Attorney Vines did not object to the cruel and harsh sentencing that petitioner received in court.

The court did not do any inquiry on the various issues petitioner raised during sentencing. Petitioner informed the court
that IRS as a branch of the government already has her employer wages sufficient to demonstrate that she used loans
properly and that the errors in her loan application could have been overlooked because she did not cause any loss to the
government. The court discredited her entire testimony and condemned her with harsh words and severe penalties. Court
did not assess the prosecutor's evidence in the light of defendants challenges to its reliability. By evaluating only the the
prosecution's investigating evidence, the court could not reach no logical conclusion regarding petitioner's testimony to
rebut or cast doubt on the government's case.

Court errored in giving all weight and consideration to the agent's testimonies and rejecting her testimony totally. The
court did not conduct a particularized inquiry and may be give some credibility to her testimony. It was an error for the court
to reject her testimony as unnecessary and unbelievable.

Attorney Vines did not advocate or vouch for petitioner's testimony in court especially during sentencing where court
rejected her entire testimony and gave her cruel and harsh punishment in violation of 8th amendment. ( Robinson vs

California 370 us 660 (1962)
Case 3:23-cr-00003-DHB-BKE Dagyment 57 =~ Filed 02/12/25 Page 52 of 52

CONCLUSION

Petitioners has included her bank statements and payroll...
documents for 2022 year. This is to demonstrate that the disaster
loans she received sustained her business and survived Covid 19
as congress intended. The government prosecuted her and did not

allow the civil procedure within SBA and other agencies like

IRS to resolve the issue. The ultimate goal for disaster loans
was to safeguard businesses; this happened but the government

shut down petitioners: businesses and sent her to prison. Over

50 of her workers were rendered jobless as a result. This was
against congressional intent for disaster loans. The decision
to place criminal liability for a disaster loan that was used
for legitimate business purposes as stipulated by SBA -IS
Capricious and arbitrary.
petitioner entrusted her attorney with her liberty and that trust
resulted in a horrific injustice.

Therefore petitioner:asks the court to consider all =2%.
aggregated errors that predujiced her and vacate the guilty plea
and the sentence.

petitioner askg the court to place a stay on the monetary

penalty of 547095.07 until final disposition of this case. Finally
petitioner requests the court to grant her all such relief she

is entitled or is proper including an evidentiary hearing.

respectfully submitted

02/05/2025

Gladys Harun

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