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holding that counsel was not ineffective for failing to introduce scientific analysis of audiotape evidence where petitioner offered "no evidence to suggest there was any alteration of the tapes other than his own word, which ha[d] proven to be less than reliable"
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No. 02 Civ. 1846 (HB).
March 31, 2005
OPINION ORDER
Petitioner Jean Mocombe ("Mocombe") filed the instant motion, pursuant to 28 U.S.C. § 2255, in which he claims to have been denied his Constitutional right to effective assistance of counsel. In his petition, Mocombe alleges that counsel was ineffective for failure to: (1) scientifically test the Government's audio and video-tapes for evidence of alteration; (2) submit evidence that the tax loss at issue was less than $350,000; (3) object to the restitution Order; (4) argue that the Court lacked subject matter jurisdiction; (5) argue that Mocombe lacked notice of the prohibited conduct; and (6) argue that 18 U.S.C. § 666 is vague and arbitrary, in violation of Mocombe's right to Due Process. For the reasons set forth below, Mocombe's petition is DENIED.
I. BACKGROUND
In April 1999, Mocombe was charged with two counts of conspiracy to bribe New York City Department of Finance officials to eliminate records of his outstanding property taxes. U.S. v. Mocombe, 2000 WL 488464, *1 (S.D.N.Y.). On May 5, 1999, a jury returned a guilty verdict on both counts. Id. On May 26, 1999, and upon the defendant's application, new counsel was assigned as attorney of record for the defendant, replacing trial counsel. Before he was sentenced, Mocombe filed a motion for a mandated sentence of 12 to 18 months or less. Id. The Court noted the lack of precedent for a "motion for a mandated sentence;" and instead, characterized it as a motion for a writ of habeas corpus made pursuant to § 2241(c)(1) or (c)(3). Id. Mocombe claimed his trial counsel was ineffective, supported by the following allegations: (1) that no pretrial motions were made by Mocombe's counsel; (2) that Mocombe was not prepared adequately for trial; and (3) that Mocombe was never made aware of a plea offer from the Government that posited a 12 to 18 months prison term. The Court concluded that the motion failed on the merits, and Mocombe was subsequently sentenced to 46 months' imprisonment. This included a sentence enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice because I found the defendant had perjured himself at trial.
Mocombe then made four unsuccessful arguments on appeal: (1) that counsel at trial was ineffective for not advising Mocombe to accept a plea offer; (2) that Mocombe was not counseled properly before taking the stand; (3) that the Government's evidence as to the conspiracy charge was insufficient; and (4) that the District Court erroneously interpreted its authority to depart downward in sentencing. U.S. v. Mocombe, 2001 WL 138242, *1-2 (2d Cir. Feb. 16, 2001).
Mocombe has since filed the instant motion to vacate his sentence based on allegations of ineffective assistance of both his lawyers: (1) for failure of counsel at trial to scientifically test the Government's audio and video-tape evidence for signs of alteration; (2) for failure of counsel at sentencing to provide the Court with evidence that the tax loss related to the bribery was less than $350,000; and (3) for failure of counsel at sentencing and on appeal to object to the restitution order.
On December 31, 2003, this Court permitted Mocombe to amend the instant motion, and further allege that his sentencing counsel was ineffective for failure to argue: (1) that the Court lacked subject matter jurisdiction; (2) that Mocombe lacked notice of the prohibited conduct; and (3) that the bribery statute, 18 U.S.C. § 666, is vague and arbitrary, in violation of Mocombe's right to Due Process. (Dec. 31, 2003 Order) (Dckt. # 98 Crim. 770).
II. LEGAL STANDARD
To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show that counsel's performance was deficient in such a manner as to fall below an objective standard of reasonableness. Id. at 688. The proper measure of attorney performance is "reasonableness under prevailing professional norms." Id. A particular decision by counsel not to investigate a given issue must be directly assessed for reasonableness in all the circumstances, and a heavy measure of deference to counsel's judgments is applied. Id. at 691. Second, a petitioner must demonstrate that the deficient performance prejudiced the defense, such that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the case would have been different. See id. at 687, 694.
III. DISCUSSION
A. Failure to Scientifically Test the Government's Taped Evidence For Signs of Alteration
Mocombe alleges that the taped conversations presented by the Government "must have been tampered with because they have [him] saying things [he] did not actually say . . .," and that his counsel at trial should have authenticated the tapes. (Pet'rs Mot. to Vac. Sent. at ¶ 12) (Mar. 7, 2002) (Dckt. # 02 Civ. 1846). There is nothing in the record to indicate that Mocombe's trial counsel's decision not to challenge the authenticity of the tapes fell below an objective standard of reasonableness. Mocombe offers no evidence to suggest there was any alteration of the tapes other than his own word, which has proven to be less than reliable. See Mocombe, 2001 WL 138242 at **2. Indeed, Mocombe perjured himself at trial. Id.
Generally, counsel's strategic decisions are properly based on information supplied by the petitioner. Strickland, 466 U.S. at 691. The reasonableness of a decision to investigate or not depends critically on such information. Id. Therefore, a petitioner with a demonstrated lack of credibility must provide some evidence in addition to his own word if he is to prevail in an ineffective assistance argument. Accordingly, Mocombe has failed to show that counsel's decision not to scientifically test the tapes was unreasonable.
Furthermore, there is nothing in the record to indicate that Mocombe ever brought to the attention of counsel his suspicion that the tapes were "doctored." Mocombe set forth three specific bases for ineffective assistance of counsel in his § 2241 motion.Mocombe, 2000 WL 488464 at * 1. Mocombe then articulated two additional bases for ineffective assistance of counsel on appeal.Mocombe, 2001 WL 138242 at *1-2. The instant motion represents Mocombe's third, separate set allegations of ineffective assistance, yet it is the first time he challenges counsel's failure to authenticate the Government's tapes. (Pet'rs Mot. to Vac. Sent. at ¶ 12) (Mar. 7, 2002) (Dckt. # 02 Civ. 1846). While the Government concedes that Mocombe is not procedurally barred from raising the issue in the instant motion, it is doubtful that he ever told counsel he suspected the tapes were altered. (Resp'ts Supp. Br. Resp. Pet'rs Am. Mot. Vac. Sent. p. 2.) Although the Court gave Mocombe the opportunity to respond to the Government's opposition and explain this point, he never did. (Apr. 26, 2002 Order) (Dckt. # 98 Crim. 770). In light of the above, Mocombe has failed to show that counsel's decision not to seek to authenticate the tapes was an unreasonable course of conduct.
Assuming arguendo that Mocombe could show that counsel's conduct fell below an objective standard of reasonableness, he has failed to demonstrate that he was prejudiced by such conduct. An attorney's failure to investigate is considered reasonable unless there is some indication that the investigation would have changed the result of the proceeding. See Strickland, 466 U.S. at 691, 694. Mere speculation that the investigation may lead to a different outcome is insufficient. See U.S. v. Yanishefsky, 500 F.2d 1327, 1332 (2d Cir. 1974). In Maddox v. Lord, 818 F.2d 1058, 1062 (2d Cir. 1987), the petitioner claimed ineffective assistance of counsel for failure to investigate the prosecution's forensic evidence. The claim failed because the petitioner produced no evidence to indicate that an investigation would have been exculpatory. Id.; see also Yanishefsky, 500 F.2d at 1332 (holding that counsel's failure to interview a group of 100 people was not prejudicial where the claim was based on the assertion that counsel might have been able "to locate someone who might have observed something relating to the incident and who might be able to give testimony exculpatory to the defendant.") (emphasis added). Likewise, Mocombe provides no evidence other than his own speculation to support his contention that a scientific test of the taped conversations would have been exculpatory.
Accordingly, Mocombe has failed to establish either prong of the Strickland test.
B. Failure to Submit Evidence of Tax Loss Under $350,000
Under the Federal Sentencing Guidelines, which were applicable at the time of Mocombe's sentencing, a loss to the Department of Finance of greater than $350,000 increased the base offense level of crimes involving fraud or deceit by 9 levels. U.S.S.G. § 2F1.1(b)(1)(J) (2000). Mocombe asserts that he provided his newly assigned counsel with evidence that the Department of Finance's property tax loss was less than $350,000, but counsel failed to submit such evidence to the Court. (Pet'rs Mot. to Vac. Sent. at ¶ 12) (Mar. 7, 2002) (Dckt. # 02 Civ. 1846). Under Strickland, deference is afforded counsel's judgments, and "counsel's strategic choices made after a thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable." 466 U.S. at 690-91. Mocombe presented counsel with documents and graphs that allegedly proved the inaccuracy of certain relevant documents generated by the Department of Finance. (Jan. 5, 2000 Tr. 26). At the January 5, 2000 conference before me, counsel stated that Mocombe's documents were "not simple" and that "[e]ven after seeing the documentation it wasn't 100 percent clear that he was absolutely right. I think that requires a hearing." Id. at 25-26. Counsel added that he needed to go over the documents with the accountant in order to fully understand their meaning, and the Court adjourned sentencing for that purpose. Id. at 26, 32. At the May 9, 2000 sentencing hearing four months later, counsel indicated that he still found the documents to be inconclusive after spending a number of hours reviewing them with both Mocombe and an accountant. (May 9, 2000 Tr. 4) Counsel further stated that he "really didn't know if [the loss and restitution] figure[s] would change." Clearly counsel did not ignore the aspect of Mocombe's defense that related to the amount of tax loss suffered by the Department of Finance. Instead, counsel spent a considerable amount of time and attention reviewing the relevant documents, and he was persistent in his requests for a hearing or retrial. In the end counsel decided not to present the Court with what he characterized as inconclusive documents. I find that this falls within the acceptable range of professionally competent assistance.
Mocombe's argument that he was prejudiced by counsel's failure to produce the documents is also without merit. Ineffectiveness claims alleging a deficiency in counsel's performance are subject to a general requirement that the petitioner affirmatively prove prejudice, which Mocombe has not done. See Strickland 466 U.S. at 693. He provides no indication or argument as to how this information would have been exculpatory. Accordingly, Mocombe has failed to show that the decision not to produce or argue from Mocombe's documents amounted to ineffective assistance of counsel. See 466 U.S. at 687-88.
C. Failure to Object to Sentence of Restitution
Mocombe argues that the Department of Finance sustained no loss as a result of his offense, and on that basis, counsel should have objected to the restitution sentence. (Pet'rs Mot. to Vac. Sent. at ¶ 12) (Mar. 7, 2002) (Dckt. # 02cv1846). Mocombe reasons that "as a result of the alleged bribe, [the Department of Finance] may have thought that [he] paid taxes which [he] had not paid, but it did not cause a loss." Id. "The [Department of Finance] had no less money as a result of the bribe than it would have had had there been no bribe." Id. However, this argument rests on an incorrect assumption regarding what constitutes a loss. Indeed, the Department of Finance sustained a loss when the record of taxes owed by Mocombe was erased. Mocombe apparently seeks to distinguish between a victim whose property is physically taken and a victim who avoids judgment of a debt through illegal means. No such distinction, however, is to be found either in the statute that governs the procedure for the issuance and enforcement of restitution orders, or in the relevant case law. 18 U.S.C. § 3664 (2004); U.S. v. Gelb, 944 F.2d 52 (2d Cir. 1991). In Gelb the defendant had acquired two stolen postage meters and altered them in such a way as to produce an unlimited supply of meter stamps that appeared to have been printed by a legitimate machine. U.S. v. Gelb, 881 F.2d 1155, 1158 (2d Cir. 1989). The defendant used the machines for nearly 7 years in his mass-mail business, and evaded payment on approximately 25 million envelopes. Gelb, 944 F.2d at 56. Upon conviction, the defendant was ordered to pay $5,000,000 in restitution despite the fact that he did not physically take funds from the postal service till. See id. By Mocombe's reasoning, there should have been no restitution order in Gelb because the postal service merely "thought the defendant paid postage which he had not paid" and the postal service "had no less money as a result of the offense than it would have had otherwise." Id. With no precedent for the distinction argued by Mocombe, counsel's failure to object to the restitution order was fair and reasonable.
D. Failure to Argue Court Lacked Jurisdiction
Mocombe claims that effective trial counsel would have argued that the Court did not "establish federalism" and therefore lacked subject matter jurisdiction. (Pet'rs Mot. to Am. § 2255 Mot. at p. 2) (Oct. 24, 2002) (Dckt. # 98 Crim. 770). Mocombe was indicted and charged with violation of a federal statute, which triggered federal jurisdiction over the matter. See 18 U.S.C. § 666. Jurisdiction was found proper, despite a similar "federalism argument," in U.S. v. Roberts, 28 F.Supp. 2d 741 (E.D.N.Y. 1998), which also involved the bribery a New York City Department of Finance official to manipulate real estate tax records.
Mariano Ventura, the Department of Finance official bribed in Roberts, was later caught and prosecuted. Ventura, later cooperating with law enforcement, was the very official Mocombe attempted to bribe.
It is a federal crime to bribe a local official if the local government, or local government agency, receives more than $10,000 annually in federal funds. 18 U.S.C. § 666(a)-(c). Congress enacted 18 U.S.C. § 666 pursuant to its Spending Power.U.S. v. Cantor, 897 F. Supp. 110, 112 (S.D.N.Y. 1995). It was designed to increase the protection of the integrity of funds disbursed through federal programs. U.S. v. Foley, 73 F.3d 484, 489 (2d Cir. 1996). Because the Department of Finance receives more than $10,000 a year in federal funds, its officials are the ones contemplated by the federal statute. Contrary to Mocombe's argument, the connection between the Department of Finance's receipt of federal funds and the bribery of its officials is sufficient to support an indictment under the statute without contravening important principles of federalism. See id. Therefore, counsel's decision to not argue that the Court lacked jurisdiction was fair and reasonable.
E. Failure to Argue Mocombe Lacked Notice of Prohibited Conduct Due to Vagueness of 18 U.S.C. § 666
Mocombe claims that his trial counsel was ineffective for failure to argue that he lacked notice of the prohibited conduct and that the federal bribery statute was so vague and arbitrary as to violate his right to Due Process. (Pet'rs Mot. to Am. § 2255 Mot. at p. 2) (Oct. 24, 2002) (Dckt. # 98 Crim. 770). Vagueness may invalidate a criminal law insofar as it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits. Chicago v. Morales, 527 U.S. 41, 56 (1999). In support of his arguments, however, Mocombe specifies no portion of the statute he feels counsel should have challenged as vague or arbitrary.
The statute's prohibition of the conduct in which Mocombe engaged is neither vague nor arbitrary, and it provided him with sufficient notice. Accordingly, counsel's decision not to pursue these arguments was reasonable.