Opinion
No. 97 Civ. 7060 (JFK), 96 Cr. 241 (JFK).
October 26, 2000.
For the Petitioner: FRANK T. HASSELL, Pro Se, Middle Village, N Y.
For the United States of America: MARY JO WHITE, United States Attorney, S.D.N.Y., of Counsel: AUSA Jamie L. Kogan, New York, New York.
OPINION and ORDER
Before this Court is the Petitioner Frank T. Hassell's ("Hassell") motion pursuant to 28 U.S.C. § 2255 ("§ 2255") to vacate and set aside his conviction. Hassell was convicted of two counts of mail fraud in violation of 18 U.S.C. § 1341. For the reasons that follow in this Opinion and Order, Hassell's petition is denied.
BACKGROUND
Hassell was employed by Progressive Brokerage Corp. ("Progressive"), an insurance brokerage firm located in Manhattan, as an insurance broker during the period of time relevant to this offense. Peter Laupheimer ("Laupheimer") was one of Progressive's clients. Hassell handled Laupheimer's Progressive account, which included a policy covering certain works of fine art through Cigna Companies ("Cigna").
In April 1992, Hassell applied to Cigna on Laupheimer's behalf for additional coverage for several works of art. These works included two oil paintings: (1) "Oil on paper, STILL LIFE LILACS, signed R.M. De Longpre Fils, 18" x 25", gilded frame . . . $10,000;" and (2) "Oil on canvas, PASTORAL LANDSCAPE, signed Daubigny, (C.F. Daubigny), 19th century, 18" x 26", ornate period frame . . . $27,000." The appraisal stated that it was conducted for "Mr. and Mrs. P. Laupheimer" and was signed by Dorothy Orefice, a conservator. (See Resp. Br. at 2).
On September 29, 1995, Hassell faxed and mailed to Aetna Casualty and Surety Co. ("Aetna") an application in his own name for a valuable-items insurance policy to cover two oil paintings, worth $27,000 and $10,000 respectively. Along with this application, Hassell submitted an appraisal, dated August 21, 1991, stating that it was arranged by "D. Orefice" and performed for "John L Hassell Sr. Bro. Frank T Hassell." (See id.).
The application to Aetna described the paintings as follows: (1) "Oil on canvas, Pastoral Landscape, 19th Century, Signed Daubigny (C.F. Daubigny) 18" x 26" . . . $27,000;" and (2) "Oil on paper, Still Life Lilacs[,] Signed R.M. De Longpre Fils, 18" x 25". . . $10,000." Aetna accepted Hassell's application, effective September 29, 1995, and sent Hassell a copy of the valuable-items insurance policy by United Parcel Service on October 2, 1995. (See id. at 2-3)
On October 6, 1995, one day after Progressive received the approved policy, Hassell notified Aetna that the insured paintings had been stolen from his car the night before, and that he had filed a police report regarding the alleged theft.
A member of Aetna's Special Investigation Unit interviewed Hassell about the theft by telephone on December 7, 1995. On December 27, 1995 Aetna questioned Hassell under oath about the circumstances of his insurance claim. During these interviews, Hassell made the following statements: (1) that he had inherited the paintings from his late father, who had himself received them for plumbing work he had performed for a Masonic lodge in Freeport, New York; (2) that the paintings had been stored in a container in another Masonic lodge in Bellmore, New York for several years prior to October 5, 1995; (3) that the appraisal had been stored together with the paintings at the Bellmore lodge; (4) that his father's friend Alex Reimer ("Reimer") had called him and told him to retrieve the paintings because the lodge was cleaning out its storage room; (5) that Reimer also sent Hassell a copy of the appraisal that had been stored with the paintings; (6) that Hassell retrieved the paintings on October 5, 1995, shortly after Reimer's call; and (7) that he had intended to sell them at an auction, but carjackers stole them from his car as he drove home from the Masonic lodge. (See id. at 3-4).
Aetna regarded Hassell's insurance claim as suspicious and refused to reimburse him for the paintings. Hassell was arrested in March 1996 for mail fraud in connection with his insurance claim with Aetna, and was immediately fired from his job at Progressive.
In April 1996, Progressive received a letter addressed to Hassell at Progressive that appeared to pertain to Hassell's criminal charges. The unsigned letter, dated April 22, 1996, read as follows:
Dear Mr. Hassel [sic],
I am writing to you on behalf of Alex Reimer. Alex has passed away back in October.
I am one of Alexs [sic] last remaining friends. I just became aware of the problems that Alex has caused for you. His final instructions to me were that in the event you should have any trouble with the information and appraisals that he did supply to you, I should then contact you and tell you exactly what happened.
Several years ago, about 7 to 10 I believe, Alexs [sic] family had enormous medical expenses that were not covered by insurance. He knew that you [sic] Dad had the paintings stored at the lodge. He then out of desperation took the paintings and sold them. He did this through an individual that he knew so he would not be questioned. This is the person that got an appraisal for him for what they believed they were worth. Alex did then send you the appraisal figuring on you would find out they were missing and you could get the money back through a tax credit on your income taxes.
He did ask that I tell you he knew he was dying and this was his way of clearing his sole [sic] before leaving us. He also asked that since he knew your Dad was a true believer in the Masonic Works, he hopes you are also and he must ask that this be "MASONIC HELP". He is asking from heaven above in his name and his families [sic] that you do grant Masonic Help as stated to in you vows.
I am sorry to hear what did happen. Alex did not intend for this. He was a good man that loved his family and did what he felt he had to do in order to save them.
I hope that this well [sic] be help to you. I can not do more for I too do have a terminal disease.
I ask that you do not hate Alex but pitty a [sic] ill and dying man.
These are the wishes of-Alex Reimer
See id. at 4-5.
Progressive turned the letter over to Postal Inspector Sandra Spector, who then gave the letter to the U.S. Postal Inspection Service Forensic Laboratory for fingerprint analysis. The tests revealed that three fingerprints found on the envelope in which the letter was mailed matched Hassell's fingerprints.
The Government charged Hassell with two counts of mail fraud ( 18 U.S.C. § 1341) in an indictment filed on April 15, 1996. Count One charged Hassell with mail fraud for mailing his fraudulent application to Aetna for the valuable-items insurance policy. Count Two further charged Hassell with mail fraud for the valuable-items policy that Aetna mailed back to him.
This Court had scheduled jury selection for Hassell's trial for July 2, 1996. However, on that morning, Hassell decided to plead guilty to both counts rather than proceed to trial.
After Hassell pled guilty, the U.S. Probation Department concluded in its presentence investigation and report that Hassell's sentencing range was fifteen to twenty-one months' imprisonment. At Hassell's January 15, 1997 sentencing, this Court departed downwardly by four offense levels because of Hassell's medical condition and sentenced him to three years probation, one year of which he was to serve in home confinement. The Court also imposed a $3,000 fine and $100 in special assessments. Hassell did not appeal his conviction.
DISCUSSION
In this § 2255 petition, Hassell's asserts the following four claims: (1) that the Government failed to disclose exculpatory evidence, namely, an offer by Aetna to renew the insurance policy at issue (the "Aetna letter"); (2) that Hassell entered his guilty plea without fully understanding the nature of his charges or the consequences of his plea; (3) that his right to a fair trial was violated because his arresting agent was present at pre-trial court proceedings; and (4) that Hassell was deprived of his Sixth Amendment right to the effective assistance of counsel. The Court shall address Hassell's first three claims under the heading "Hassell's Procedurally Barred Claims," and his fourth claim, for the ineffective assistance of counsel, under a separate heading.
I Hassell's Procedurally Barred Claims
Hassell raises as his first three claims that (1) the Government failed to disclose exculpatory evidence, (2) he entered a guilty plea without fully understanding the nature of his charges or the consequences of his plea, and (3) his right to a fair trial was violated. Hassell could have raised all three claims in a direct appeal of his conviction, but did not.
A petitioner may not use § 2255 to relitigate issues that he could have, but did not, raise on direct appeal. See Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) However, a petitioner may raise a claim for the first time in a § 2255 petition if he can show both "cause" for the procedural default and "actual prejudice" from the alleged error. See Billy Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (superseded by statute on other grounds). A petitioner must show that the prejudice was caused by something external to the petitioner, "something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Hassell has not staked any reasons for his failure to raise his first three claims in a direct appeal of his conviction. He has stated neither cause nor actual prejudice arising from his failure to raise those claims on direct appeal. Therefore, he may not now raise them in this § 2255 petition.
II Ineffective-Assistance-of-Counsel Claim
In order to protect the fundamental right to a fair trial, the Sixth Amendment to the United States Constitution guarantees all criminal defendants the right to the effective assistance of counsel. See U.S. Const. amend. VI. Generally, there is a strong presumption that counsel's professional performance falls within a spectrum of reasonableness. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
Therefore, in order for a petitioner to prevail on a claim of ineffective assistance of counsel, he must satisfy both elements set out in Strickland: (1) that "counsel's representation fell below an objective standard of reasonableness" as weighed against "prevailing professional norms;" and (2) that the petitioner "affirmatively prove prejudice" by showing that his counsel's deficient performance was so serious that but for such performance, the result would have been different. Strickland, 466 U.S. 668, 687-94 (1984); see United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994). When both Strickland prongs are met, the Court may conclude that "counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
Hassell asserts two grounds in support of his ineffective-assistance-of-counsel claim: (1) that his counsel failed to bring the Aetna letter to the attention of the Court, and (2) that his counsel failed to introduce evidence of "wrongdoing on [the] part of [a] prior broker [who] may have manufactured evidence." (See Petition at 5). Because neither ground meets Strickland's requirements, Hassell cannot sustain his claim.
Hassell first states that his attorney failed to apprise the Court of the Aetna letter. In that letter, Aetna offered to renew the same insurance policy for which Hassell was charged with mail fraud.Strickland recognized that no two attorneys will represent a client in the same manner, because "there are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 698. It is not clear that because Hassell's attorney failed to bring the Aetna letter to the Court's attention, his performance was objectively unreasonable.
Moreover, the result in Hassell's case would not seem to have been any different. Hassell was convicted pursuant to his own guilty plea before this Court. It is not likely that the Court's knowledge of the Aetna letter would have affected that result.
Hassell also argues that his attorney failed to pursue evidence that a "prior broker" may have manufactured evidence in his case. From this unsupported assertion alone, the Court cannot conclude that Hassell's attorney acted unreasonably. The Court also cannot conclude that this would have changed the result in Hassell's case, in light of his own admission of guilt.
In addition, the Court notes that Hassell's attorney argued successfully for a downward departure based upon Hassell's medical condition. As a result, this Court departed four offense levels downward and sentenced Hassell to three years of probation, one year of which to be in home confinement, rather than the fifteen to twenty-one month term of imprisonment required by the Sentencing Guidelines.
CONCLUSION
Hassell's motion to vacate his convictions pursuant to 28 U.S.C. § 2255 is hereby denied. This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.
SO ORDERED.