           Case: 16-15460   Date Filed: 08/21/2019   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 16-15460
                       ________________________


               D.C. Docket Nos. 8:15-cv-02325-SCB-TBM,
                      8:09-cr-00585-SCB-TBM-2


MARIAN I. MORGAN,

                                              Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                              Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 21, 2019)

Before JORDAN, GRANT, and DUBINA, Circuit Judges.

PER CURIAM:
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      Marian Morgan is a federal prisoner serving a 405-month sentence for her

involvement in an illegal investment scheme. After twice appealing the length of

her sentence, Ms. Morgan filed a motion to vacate, set aside, or correct her sentence

under 28 U.S.C. § 2255, arguing that her trial counsel’s failure to object to certain

hearsay statements amounted to ineffective assistance of counsel.         The facts

surrounding Ms. Morgan’s conviction are well known to the parties and were fully

developed in Ms. Morgan’s previous appeals. See United States v. Morgan, 586 F.

App’x 547, 548–49 (2014); United States v. Morgan, 530 F. App’x 908, 909–10

(11th Cir. 2013). We recount the facts relevant to her ineffective assistance of

counsel claims below.

                                             I

      A grand jury charged Ms. Morgan with 22 counts, including conspiracy to

defraud the United States, wire fraud, transferring funds taken by fraud, money

laundering, and making false statements on income tax returns. Ms. Morgan’s

husband, John Morgan, and two other co-conspirators were charged in the same

indictment but agreed to plead guilty to particular charges. Ms. Morgan was the

only defendant who elected to go to trial.

                                         A

      Over the course of her 17-day trial, the government presented volumes of

evidence to show that Ms. Morgan, her husband, and two co-conspirators defrauded


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approximately 143 investors of almost $14 million. The jury heard testimony from

13 victims, multiple law enforcement officers, and an expert in the alleged

investment scheme. One of the government’s principal witnesses was IRS Special

Agent Diane Knott, who investigated the fraud and forensically examined the

accounts used to facilitate the scheme.

      On the fifth day of Ms. Morgan’s trial, the government informed the court and

the defense that, over the previous weekend, Agent Knott had obtained a signed

statement from Mr. Morgan admitting to the scheme and incriminating Ms. Morgan.

The government furnished the defense with a copy of the statement. The following

day, the government called Agent Knott as a witness to testify about her

investigation and introduce evidence that the Morgans ran a fraudulent investment

scheme.    The defense then cross-examined Agent Knott by attacking the

thoroughness of her investigation and suggesting that the government rushed to

judgment in accusing Ms. Morgan. Before redirect examination, the prosecutor

requested a side bar with the court and argued that by questioning the thoroughness

of the government’s investigation the defense had opened the door for Agent Knott

to testify about Mr. Morgan’s recent statement incriminating Ms. Morgan. Defense

counsel did not object to the government eliciting Mr. Morgan’s statement but

requested that he be permitted to question Agent Knott about Mr. Morgan’s plea

agreement and attack his credibility.


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      On redirect, the prosecutor asked Agent Knott whether the investigation was

ongoing. Agent Knott explained that that the government was still investigating and

that Mr. Morgan was cooperating. The prosecutor then asked whether Mr. Morgan

had told Agent Knott anything about the fraudulent documents. Agent Knott

responded that Mr. Morgan had admitted that the financial documents were “all

fraudulent documents and that he and Marian [Morgan] knew that those documents

were fraudulent documents.” D.E. 9 at 6 (quoting Crim. D.E. 355 at 72:14–19).

Defense counsel did not object to Agent Knott reciting Mr. Morgan’s statement, but

he questioned Agent Knott on recross about Mr. Morgan’s plea agreement and

suggested that Mr. Morgan only implicated his wife to reduce his own sentence.

      Mr. Morgan’s statement was mentioned at least three more times during Ms.

Morgan’s trial. During the defense’s case in chief, Ms. Morgan elected to testify,

and the prosecutor cross-examined her about her husband’s statement. Ms. Morgan

stated that she and her husband never defrauded their investors and that the

government had forced Mr. Morgan to say the financial documents were fake. In

response to Ms. Morgan claiming that her husband’s statement was coerced, the

government called Mr. Morgan’s attorney to testify to Mr. Morgan’s cooperation

with the government. On direct and cross examination, the attorney confirmed that

Mr. Morgan’s cooperation with the government and statement incriminating Ms.




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Morgan were voluntary.         Finally, the government referenced Mr. Morgan’s

statement in closing arguments.

                                           B

      Based on the evidence presented, the jury convicted Ms. Morgan on all 22

counts charged in the indictment. The district court sentenced Ms. Morgan to 420

months’ imprisonment, which was reduced to 405 months as a result of her first

appeal. See Morgan, 530 F. App’x at 909–10. After unsuccessfully appealing her

reduced sentence, Ms. Morgan moved to vacate, set aside, or correct her sentence

under 18 U.S.C. § 2255, arguing that her trial counsel provided ineffective assistance

of counsel. As summarized by the district court, Ms. Morgan alleged that her trial

counsel erred in the following ways:

             (1) by failing to make a motion in limine to exclude all
             testimony about co-defendant, alleged co-conspirator, and
             husband John Morgan’s hearsay statement to [Agent]
             Knott, which, if believed, proved [Ms. Morgan]’s criminal
             intent; (2) by failing to object to the Government’s
             question to [Agent] Knott that asked her to provide clearly
             hearsay testimony about an out-of-court statement made
             by [Ms. Morgan]’s husband John Morgan that directly
             established [Ms. Morgan]’s criminal intent; (3) by failing
             to move in limine to preclude, and by repeatedly failing to
             object to, questions from the Government to [Ms. Morgan]
             during cross-examination that again emphasized the John
             Morgan hearsay statement made by [Agent] Knott; (4) by
             failing to impeach John Morgan’s hearsay statement,
             which directly established [Ms. Morgan]’s criminal intent,
             with prior inconsistent statements that were made by the
             hearsay declarant; (5) by failing to preclude introduction


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               of evidence regarding John Morgan’s guilty plea; and (6)
               through [t]rial [c]ounsel’s cumulative errors.

D.E. 9 at 8.

      To establish ineffective assistance of counsel, Ms. Morgan had to show that

(1) her counsel’s performance was deficient and (2) the deficient performance

prejudiced her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

The district court rejected Ms. Morgan’s ineffective assistance of counsel claim

under both prongs of Strickland—concluding that the alleged errors amounted to

“trial strategy” and that Ms. Morgan could not show a reasonable probability that,

absent the alleged errors, her trial would have had a different result. See D.E. 9 at

11, 13. According to the district court, “[e]ven excluding the statement of John

Morgan as testified to by [Agent] Knott, the evidence of [Ms. Morgan]’s guilt was

overwhelming.” D.E. 9 at 14 (emphasis added).

      Following our review of the record, and with the benefit of oral argument, we

affirm the district court’s conclusion that Ms. Morgan was not prejudiced by her trial

counsel’s alleged errors.

                                          II

      On appeal from the denial of a § 2255 motion, we review the district court’s

legal conclusions de novo and its factual findings for clear error. See Denson v.

United States, 804 F.3d 1339, 1341 (11th Cir. 2015). Whether Ms. Morgan’s trial



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counsel provided ineffective assistance of counsel is a mixed question of law and

fact that we review de novo. See id.

                                         A

      To establish an ineffective assistance of counsel claim, a petitioner must

satisfy both prongs of Strickland—deficient performance and prejudice.           See

Strickland, 466 U.S. at 687.     In reviewing performance, “counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Id. at 690. Trial counsel’s

performance is deficient only if it falls below the wide range of competence

demanded of attorneys in criminal cases. See id. at 689. To establish prejudice, the

petitioner must establish a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694.

      Because a petitioner must show both deficient performance and prejudice, we

“need not determine whether counsel’s performance was deficient before examining

the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id.

at 697. If the petitioner “makes an insufficient showing on one [prong],” the

ineffective assistance claim fails. Id. See also Oats v. Singletary, 141 F.3d 1018,

1023 (11th Cir. 1998) (recognizing that under Strickland, “we are free to dispose of

ineffectiveness claims on either [performance or prejudice] grounds”).


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      Here, we start with the prejudice prong. In this context, Strickland requires

Ms. Morgan to show that it is reasonably probable that the jury would not have

convicted her but for her trial counsel’s errors. See Strickland, 466 U.S. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. “It is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding, . . . and not every error that

conceivably could have influenced the outcome undermines the reliability of the

result of the proceeding.” Id. at 693. Stated differently, “[t]he likelihood of a

different result must be substantial, not just conceivable.” Harrington v. Richter,

562 U.S. 86, 112 (2011). “On the other hand, . . . a defendant need not show that

counsel’s deficient conduct more likely than not altered the outcome in the case.”

Strickland, 466 U.S. at 693.

      To determine whether Ms. Morgan has shown prejudice, we remove any

evidence from the record that was admitted due to her trial counsel’s alleged errors

and ask, based on the remaining evidence, whether there is a reasonable probability

that the jury would not have convicted her. See id. at 695–96. “In making this

determination, we consider the totality of the evidence before the judge or jury.” Id.

at 695. See also Wong v. Belmontes, 558 U.S. 15, 26 (2009) (per curiam) (“[T]he

reviewing court must consider all the evidence—the good and the bad—when

evaluating prejudice.”). Therefore, “a verdict or conclusion only weakly supported


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by the record is more likely to have been affected by errors than one with

overwhelming record support.” Strickland, 466 U.S. at 696.

                                          B

      The errors alleged by Ms. Morgan all trace back to her trial counsel allowing

the government to introduce Mr. Morgan’s hearsay statement through Agent Knott.

If defense counsel had successfully moved to exclude Mr. Morgan’s statement when

the government requested a side bar and argued that the defense had opened the door

to introduce Mr. Morgan’s statement—as Ms. Morgan alleges he should have—the

subsequent alleged errors related to Mr. Morgan’s statement would have been

avoided. See Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1269 (11th Cir.

2012) (“[T]he prejudice inquiry should be a cumulative one as to the effect of all of

the failures of counsel that meet the performance deficiency requirement . . . .”). We

therefore measure prejudice by correcting that alleged error and asking whether it is

reasonably probable that the jury would not have convicted Ms. Morgan based on

other evidence in the record. See Strickland, 466 U.S. at 696. For several reasons,

we conclude that Ms. Morgan was not prejudiced.

      First, “a petitioner cannot satisfy the prejudice prong of the Strickland test

with evidence that is merely cumulative of evidence already presented at trial.” Rose

v. McNeil, 634 F.3d 1224, 1243 (11th Cir. 2011). See also Belmontes, 558 U.S. at

22 (finding no prejudice where “adding [certain evidence] to what was already there


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would have made little difference”). In this case, Mr. Morgan’s statement—

admitting that certain financial documents were fraudulent and that Ms. Morgan

knew that the documents were fraudulent—was mostly cumulative of evidence

already in the record. During the defense’s cross examination of Agent Knott, and

before the government ever sought to introduce Mr. Morgan’s statement, defense

counsel suggested that Agent Knott had assumed that the Morgans were defrauding

investors before investigating. Agent Knott responded with the following answer:

            Well, we investigated enough to know that the
            documents—we do have witness testimony and evidence
            to show that these were . . . actually fraudulent documents.
            We do have witness testimony to tell us[,]that were
            actually involved in this fraud with Miss Morgan[,] . . .
            that was a fraud and that all these documents were
            obtained fraudulently and that the documents were
            fraudulent.

Crim D.E. 355 at 25. Defense counsel then asked Agent Knott, “So someone told

you and you believed them?” Agent Knott responded, “Yes.” Id. Defense counsel

did not object to this elicited testimony by Agent Knott, and Ms. Morgan does not

argue in her § 2255 motion that this amounted to ineffective assistance of counsel.

Allowing the government to subsequently admit Mr. Morgan’s statement on Agent

Knotts redirect, therefore, clarified that Mr. Morgan was the witness Agent Knott




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previously referred to and that, by being involved in the fraud, Ms. Morgan was

aware that the financial documents were fraudulent.1

       Second, the record contains overwhelming evidence, apart from Mr.

Morgan’s hearsay statement, that the financial documents were fraudulent and that

Ms. Morgan knew of the fraud. See Hays v. Alabama, 85 F.3d 1492, 1496 (11th Cir.

1996) (concluding that the petitioner failed to establish that he was prejudiced by his

trial counsel’s failure to make certain objections “[i]n view of the overwhelming

evidence supporting the verdict”). Over Ms. Morgan’s 17-day trial, the government

called almost 20 witnesses to establish that the Morgans and their co-conspirators

operated a scheme that defrauded their investors of almost $14 million.

       Although no witness directly testified that Ms. Morgan knew that the scheme

used fraudulent financial documents, other evidence in the record strongly supported

that conclusion.      Law enforcement officers and an investment-scheme expert

testified that the Morgans’ investment scheme performed no lawful function or

legitimate investments. The government also introduced evidence that Ms. Morgan

consistently communicated with investors and co-conspirators to facilitate the

scheme, that investment funds were transferred into the Morgans’ personal accounts,

and that Ms. Morgan used those funds to support an extravagant lifestyle. Given


1
 We acknowledge, of course, that identifying Mr. Morgan as the witness gave the testimony added
bite. Our point is that the substance of Mr. Morgan’s statement was already in the record without
objection before the alleged error by defense counsel.
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this evidence, it is not reasonably probable that Mr. Morgan’s statement affected the

outcome of Ms. Morgan’s trial. Cf. Strickland, 466 U.S. at 696 (“[A] verdict or

conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support.”).

      Third, “a defendant who chooses to present a defense runs a substantial risk

of bolstering the Government’s case.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). That is, in part, because we have held that “a statement by a

defendant, if disbelieved by the jury, may be considered as substantive evidence of

the defendant’s guilt.” Id. (emphasis in original). See also United States v. Bennett,

848 F.2d 1134, 1139 (11th Cir. 1988) (noting that the jury might have concluded

that the defendants were “lying in an attempt to cover up illegal activities” based on

their “dubious, if not wholly incredible” testimony). Here, Ms. Morgan testified for

almost four days, and she repeatedly claimed that she was not aware of the fraud.

The government attacked Ms. Morgan’s credibility by introducing communications

sent by Ms. Morgan to victims and co-conspirators, evidence that the Morgans fled

the country to avoid prosecution, and a recording of a jailhouse phone call where

Ms. Morgan contradicted her testimony. See United States v. Blakey, 960 F.2d 996,

1000 (11th Cir. 1992) (“Evidence of flight is admissible to demonstrate

consciousness of guilt and thereby guilt.”). Based on her conviction on all 22 counts,

the jury obviously disbelieved Ms. Morgan’s testimony.


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       At sentencing, the district court applied a two-level sentencing enhancement

for obstruction of justice under U.S.S.G. § 3C1.1, citing “numerous instances where

[Ms.] Morgan gave false testimony.” Crim. D.E. 443 at 78. The court—which

presided over Ms. Morgan’s trial—noted that she could fill “a whole legal pad” with

false statements made by Ms. Morgan. Id. at 44–45. Similarly, in denying Ms.

Morgan’s § 2255 motion, the court concluded that, when she testified, Ms. Morgan

“lied repeatedly, showed little remorse, and provided unbelievable explanations for

her conduct.” D.E. 9 at 13.

       The government’s evidence establishing the fraud scheme, Ms. Morgan’s

testimony, and the evidence undermining Ms. Morgan’s credibility is substantial

evidence of Ms. Morgan’s guilt. Therefore, it is not reasonably probable that the

introduction of Mr. Morgan’s statement affected the outcome of Ms. Morgan’s trial.2

       Because Ms. Morgan has not shown prejudice, we do not consider whether

her trial counsel’s performance was deficient. See Strickland, 466 U.S. at 697.

                                              III

       For the foregoing reasons, we affirm the district court’s denial of Ms.

Morgan’s § 2255 motion.


2
  Given our conclusion that Ms. Morgan failed to show prejudice from her counsel’s failure
exclude Mr. Morgan’s hearsay statement—which would have avoided the subsequent alleged
errors related to his statement—Ms. Morgan’s other ineffective assistance of counsel claims fail.
Even if all the errors related to Mr. Morgan’s statement were corrected, Ms. Morgan has not shown
a reasonable probability that the result of her trial would have been different.

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AFFIRMED.




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