Opinion
99 Cr. 1098 (JSM)
January 2, 2002
MEMORANDUM OPINION AND ORDER
Joseph Faraci petitions under 28 U.S.C. § 2255 seeking to set aside his sentence of fifteen month imprisonment entered after his plea of guilty to the crime of bribery.
Petitioner contends that his counsel was ineffective because he stipulated that the loss figure to be used in calculating Petitioner's guideline range was in excess of $20,000. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish 1) that counsel's performance was deficient and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
Petitioner contends that in failing to challenge the Government's loss figure his counsel abandoned the best chance of achieving a sentence of less than twelve months which would have avoided the risk that Petitioner will be deported as a result of his conviction.
There is no question that counsel was aware of the importance of having Petitioner receive a sentence of less than twelve months. In a sentencing memorandum submitted on Petitioner's behalf, counsel emphasized the impact of a sentence of more than twelve months on Petitioner's immigration status and urged that fact, in concert with several other factors, as a basis on which the Court should depart below the fifteen month guideline sentence.
It is also clear that counsel made a tactical decision not to contest the Government's assertion that the bribes paid by the defendant exceeded $20,000. (Tr. 36-37) However, that decision was not made without a thorough investigation of the underlying records the Government intended to rely on to support the loss calculation.
References in he form "Tr." are to the hearing held on October 31, 2001.
In preparing for sentencing, defense counsel met with the Assistant United States Attorney who advised him that, if Petitioner was to contest the loss amount, it would call corrupt inspectors who would testify that for every inspection they conducted at Petitioner's business establishment, Petitioner paid them $50 and that they had been informed by the other corrupt inspectors that Petitioner paid them $50 for every inspection. The Government's loss amount was calculated by using records showing all of the inspections conducted by the corrupt inspectors during the period from January 1996, through the date of Petitioner's arrest in 1999. To verify the Government's calculation, Petitioner and his counsel reviewed the inspection certificates to see that the number of inspections conducted by the corrupt inspectors was the same as stated by the Government. (Tr. 34)
Since the records supported the Government's assertion as to the number of inspections by the corrupt inspectors, the only possible way Petitioner could have challenged the Government's loss figure of $28,000 would be to prove that there were a substantial number of instances in which corrupt inspectors were not paid when they conducted an inspection. Since the minimum loss necessary to sustain the loss enhancement in Petitioner's case was $20,000, Petitioner's counsel would have to demonstrate that in at least 25% of the cases where the corrupt inspectors conducted inspections, no bribe was paid.
But, even if that could be proved, the Government had two other arguments to bolster its argument that the loss exceeded $20,000: 1) the corrupt inspectors said that the bribes were paid by Petitioner on a regular basis from the time he first came to the market in 1994, so that, even though the record of inspections conducted in 1994 and 1995 was not available, there was a reasonable inference that a substantial amount of additional money had been paid; and 2) the Government's witnesses would testify that the bribes were paid to downgrade product so that the loss to the shippers was substantially more than the $50 paid to the inspector. (Tr. 63)
Given this evidence that the Government said it was prepared to offer should Petitioner insist on a Fatico hearing, it was not unreasonable for Petitioner's counsel to conclude that a hearing at which he could not offer any contrary evidence and would have to depend solely on cross-examination of the Government's witnesses was unlikely to result in a change in the loss calculation.
One other factor that no doubt went into counsel's decision also should be noted. Counsel did not make this decision on his own. Petitioner was actively engaged with his counsel in reviewing the records to determine whether they supported the Government's loss calculation. While counsel testified that Petitioner told him he thought the Government's calculation of the amount of the bribes was high and that there may have been occasions when a corrupt inspector was not paid for an inspection, there was no credible evidence that Petitioner ever told his counsel that he did not pay the corrupt inspectors $50 per inspection in the vast majority of instances. (Tr.45) Indeed, when Petitioner pleaded guilty he told the Court: "Whenever we need an inspection I gave or I asked to insure them to come faster, I gave them a $50 gift." Petitioner also acknowledged at his plea that he made the payment of $50 on each of the occasions alleged in the indictment. (JA. 26-27)
While Petitioner's wife testified that Petitioner was angry at counsel for stipulating to an amount that was too high, the Court, having observed her testimony, found it unworthy of belief.
References in the form "JA." are to the Joint Appendix filed in connection with Petitioner's original appeal.
In light of his client's admission at the time of his plea that inspectors were paid $50 whenever an inspection was needed, counsel had no reasonable basis to believe that the Government's assertion that the loss amount exceeded $20,000 was not reasonably accurate or that he could persuade the Court that the evidence did not support that loss calculation. It was, therefore, a reasonable strategy for defense counsel to decide not to challenge the loss calculation and instead attempt to persuade the Court that a downward departure was appropriate. Since counsel was able to bring to the Court's attention the fact that a number of other judges had granted downward departures in similar cases of merchants who had bribed the same inspectors, this decision was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Strickland v. Washington, 466 U.S. 668, 689 (1984).
Counsel's tactical judgment is supported not only by the lack of proof he could offer to counter the Government's loss calculation, but also by the danger that a Fatico hearing posed to the chances of obtaining a downward departure for Petitioner. Counsel was arguing that there were a combination of circumstances present that justified a departure, including Petitioner's immigration status and special family circumstances. A key part of the departure argument was that Petitioner's conduct was more like a gratuity than a classic bribe, in that Petitioner made the payments not to obtain some financial benefit at a cost to the shippers, but merely to obtain a prompt inspection. (JA 81-82) Since counsel knew that the Government did not agree with this position, it was clearly in Petitioner's interest to avoid a hearing at which the Government would call inspectors who would testify that Petitioner paid them to downgrade the product. In addition, it had to be obvious to counsel that at a hearing the Government would offer a video tape showing Petitioner bribing an inspector and explaining why he wanted the product downgraded. Given how corrupt Petitioner appears to be on this video tape, any experienced defense counsel would want to avoid having the sentencing judge view it.
Defense counsel's strategy was almost successful since, once the loss amount had been stipulated, the Government agreed that a sentencing hearing was not necessary. Thus, it appeared that defense counsel would be free to argue for his version of the payments as more in the nature of gratuities rather than bribes and to combine that with the other special circumstances which in total might justify a downward departure.
Unfortunately for Petitioner, it was the Court and not the Government that insisted that a hearing was necessary to determine whether the payments were made to have the products downgraded or merely to obtain a prompt inspection. Once the Court saw Petitioner on the video tape and became convinced that the payments were made to downgrade the product, the Court lost sympathy for Petitioner's downward departure motion. This result does not show that Petitioner's counsel made a tactical mistake in not challenging the Governments loss calculation; it demonstrates the wisdom of counsel's decision to try to avoid a contested sentencing hearing.
But even if one were to assume that counsel had been ineffective in not challenging the loss calculation, Petitioner has failed to demonstrate that he was prejudiced by counsel's conduct. Having presided at both theFatico hearing and the hearing on this motion, the Court is persuaded that the Government could have proved that the total amount of bribes paid exceeded $20,000.
The Government has never wavered from its assertion that $50 was paid to the corrupt inspectors each time they conducted an inspection at Petitioner's place of business. The testimony of its witness at the Fatico hearing, William Cashin, is basically consistent with that position. Although Cashin did concede that there might have been an occasion when he did not receive $50 when he went to Cooseman's, Petitioner's place of business, it was also clear from his testimony that it would be a rare occasion when he conducted an inspection at Cooseman's without being paid $50. Thus Cashin testified as follows:
"Q. And did you get money every time you came to do an inspection? Whether you downgraded or didn't downgrade, did you get money each time you came?
A. At Cooseman's?
Q. Yes
A. As I remember, every time I went to see Joe Faraci, I went to do an inspection with Joe Faraci, I got paid.
Q. And there were times you came and did an inspection without Joe Faraci?
A. Before he started working at Cooseman?
Q. No
THE COURT: When he was on vacation or some other time, he might not be available?
A. I don't remember not being paid when Joe Faraci worked at Cooseman."
The Court found this testimony credible and consistent with Petitioner's plea allocution admission that $50 was paid "whenever" an inspection was needed. Thus, even if Petitioner's counsel had challenged the Government's assertion as to the appropriate loss calculation, there is little doubt that the Court would have found that the loss exceeded $20,000. While defense counsel might have been able to cast some doubt on the Government's claim that the loss amount was $28,000, there is nothing in the record to suggest that the number of occasions when the corrupt inspectors did not receive $50 was so great that the loss was under $20,000.
Since Petitioner has failed to demonstrate either that his counsel performance was deficient or that he was prejudiced by counsel's choice of strategy, his application for relief pursuant to 28 U.S.C. § 2255 is denied and the petition is dismissed.
SO ORDERED.