Federal judge rules man convicted in gaming, mining fraud has no further appeal issues

No rights violated, lawyers provided effective counsel, ruling shows

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A federal judge ruled that a man who was convicted of 47 counts of wire fraud and money laundering stemming from gaming and mining schemes has no grounds for post conviction relief or appeal.

U.S. District Chief Judge Linda Reade said in her ruling last Thursday that his constitutional rights raised in his civil motion were not violated and his lawyers provided reasonable advice and effective counsel.

Donald K. Washburn, 67, asked the court to correct or vacate his 11 year federal prison sentence, which he started serving in 2012, based on several claims, including his lawyers provided ineffective counsel and made errors when they allowed the prosecution to submit his signed guilty plea, which he later rescinded during trial.

He initially agreed to a plea deal with the government but then decided to go to trial, according to court records. Before the trial wrapped up he intentionally shot himself with a nail gun to delay the proceedings, which the judge said was willful failure to appear.

Washburn was found guilty by a jury in February 2012 on 30 counts of wire fraud, five counts of money laundering and 13 counts of making false statements stemming from a dice game and mining schemes that cheated investors out of more than $850,000. He was sentenced to 11 years and five months.

Washburn, testifying by phone from FMC Lexington prison in Eastern Kentucky last month during a hearing, said he was pressured into signing the plea agreement on Dec. 15, 2011. He said he discussed the plea with his lawyers, Robert Barr and Adam Zenor, but he didn’t want to sign it because it was “all lies” and he disagreed with the restitution amount.

Washburn also claimed he didn’t read it, nor did his lawyers go over it with him, and they said he could back out before the judge signed off on it.

Washburn said he only signed the plea to “get away from them.”

Assistant U.S. Attorney Matt Cole asked if the initials on each paragraph and page of the plea agreement were his and Washburn confirmed they were.

Barr, testifying by phone from his law office in Atlanta, Ga., said he reviewed the draft and final plea agreement with Washburn and Washburn carefully reviewed it.

Barr said nobody told Washburn he could back out without consequences. He said Washburn was told the facts in the plea could be used against him if he signed it and then decided to go to trial.

Washburn then called Barr on Jan. 19, 2012 and said he wanted a trial.

Zenor, lawyer with Grefe and Sidney in Des Moines, testified during the hearing that he read every word of the plea agreement to Washburn on Dec. 15, 2011. Zenor also said Washburn understood the plea and consequences.

Reade in her ruling said the lawyers’ accounts of the events were more credible than Washburn’s claims. Washburn’s knowledge about certain portions of the agreement and his discussion of restitution amounts contradicts his testimony that he never read the plea.

Reade noted that Washburn has been convicted of fraud on two separate occasions, and the facts in his second prosecution, at issue in this matter, included false statements to the court during his term of supervised release resulting from the first conviction.

Reade also found that the lawyers didn’t pressure Washburn into signing the document. They both said they believed the plea gave Washburn the best option to lessen his prison time, but they made it clear to Washburn that it was his choice to plead or go to trial, she said.

Reade said she thoroughly reviewed the record in this case and found Washburn cannot make a “substantial showing” of his claims and denied his ability to appeal the case, which she has the authority to do.

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