Opinion
No. 97 Cr. 1042. No. 01 Civ. 7195 (JSM). No. [97 Cr. 1042].
April 8, 2002
OPINION AND ORDER
Robert Breining and John Motzko, who were convicted after a jury trial and whose convictions were sustained on appeal, have now filed separate petitions under 28 U.S.C. § 2255 seeking to vacate their convictions. In large measure their petitions raise claims that could have been raised on appeal. For example, Breining challenges the validity of the indictment due to the alleged failure of the U.S. Attorney to obtain authorization for a tax investigation, and due to the undue delay in filing the indictment which prejudiced him because of the death of a critical witness. He also argues that the Court did not correctly determine his guideline range, and contends that the Court mistakenly admitted hearsay statements of an alleged co-conspirator. Similarly, Motzko asserts claims of error in the Court's charge and in the calculation of his guideline range.
It is well-settled, however, that:
an error which can be raised on appeal is not cognizable under § 2255 unless it is a constitutional violation or an error of law or fact of such "fundamental character" that it "renders the entire proceeding irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). See also Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).United States v. Frady, 456 U.S. 152, 180 fn. 2, 102 S.Ct. 1584, 1601 (1982).
The only claims asserted by either petitioner that are not procedurally barred by the failure to raise them on direct appeals are a claim by Motzko that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because factual issues that resulted in enhancements to his guideline range were not alleged in the indictment or decided by the jury and claims by each of the petitioners that their counsel was ineffective.
Turning first to Motzko's Apprendi claim, the Second Circuit has clearly held "Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count. United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001)." United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001).
In an obvious attempt to surmount § 2255's limit on the right to assert errors that could have been raised on appeal, each of the petitioners claim that his counsel was ineffective for failing to raise these issues at either trial or on appeal. The question whether the ineffective assistance of counsel claims can be considered in a § 2255 proceeding is different in the two cases because Breining had new counsel on appeal, whereas Motzko was represented on appeal by his trial counsel.
As a general rule defendants are required to raise a claim of ineffective assistance of counsel at the earliest possible opportunity and such a claim may not be raised in a § 2255 proceeding if "petitioner was represented by new appellate counsel at direct appeal, and . . . the claim is based solely on the record developed at trial."Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993). Thus, in order to obtain consideration of his ineffective assistance of counsel claim Breining must show that "there was cause for failing to raise the issue, and prejudice resulting therefrom." Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). See also Abbamonte v. United States, 160 F.3d 922, 924 (1998). Breining has failed to carry this burden.
To prevail on a claim of ineffective assistance of counsel, a petition must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (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. at 694, 104 S.Ct. at 2068.
Breining's attack on his appellate counsel fails to satisfy either prong of the Strickland test. In Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313 (1983), the Supreme Court rejected the argument that appellate counsel had an obligation to raise every non-frivolous ground for reversal, stating:
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. (citations omitted) Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940) — in a verbal mound made up of strong and weak contentions.
An examination of the issues that Breining faults his counsel for not raising shows that they have little merit and that counsel's decision to rely on other grounds for appeal 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, 466 U.S. at 689, 104 S.Ct. at 2065.
Since Motzko did not have new counsel on appeal he is not required to show cause and prejudice in order to have his ineffective assistance of counsel claim considered on the merits. Billy-Eko, 8 F.3d at 115. However, he is required to meet the Strickland test of showing both that his counsel was ineffective and that "but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694, 104 S.Ct. at 2608.
Having presided over Motzko's trial, the Court is particularly well-situated to assess his trial counsel's performance. At trial Motzko was represented by William Aronwald, a highly respected member of the criminal defense bar. Mr. Aronwald's defense of Motzko was vigorous, highly professional and consistent with his enviable reputation. In his attack on his counsel, Motzko loses sight of the time worn maxim, "You can't make a silk purse out of a sow's ear."
As the Court noted in denying the Rule 29 motion of these defendants:
The Government's evidence overwhelmingly established the existence of a conspiracy to defraud the IRS of various employment taxes and to defraud suppliers. . . . Anyone associated with the employee leasing companies had to know that they were a sham designed solely for the purpose of evading the payment of taxes. No one who met Susan Smith could honestly believe that she was the legitimate head of a company. The fact that Breining recruited her to serve in this role demonstrates not only his guilt but also his cynicism. The evidence that Motzko drove her around in an attempt to portray her as the head of the company demonstrates more forcefully than anything else that he was a willing participant in Breining's cynical scheme. of course the evidence of the participation of each of these defendants is much more extensive . . .United States v. Breining, 97 Cr. 1042, (S.D.N.Y. Jan. 19, 1999).
Thus, even if Breining were not barred from raising his ineffective assistance of counsel claim, he too would not be able to show prejudice.
Even if counsel had done all that Motzko claims he failed to do, the Court has no doubt that the result would not have been different. For example, while Motzko faults his counsel for not doing more to prove that there were legitimate reasons for corporations to employ the services of an employee leasing company, that issue was not contested. The government never claimed that it was improper to use an employee leasing company. What the government alleged and proved was that these employee leasing companies were shams whose only purpose was to evade the payment of employee taxes. The government proved this overwhelmingly and an army of forensic accountants could have done no more than confirm the government's proof that these shell companies failed to pay the taxes and that the defendants placed people who were judgment proof as the nominal officers of these companies to protect themselves from personal liability for the taxes.
Motzko also claims that his counsel was ineffective prior to trial, in failing to arrange a meeting with the government prior to indictment to obtain immunity for him, and in failing to properly advise him of the merits of accepting a plea agreement. As to the immunity claim, this Court has sufficient experience with the criminal justice system to be confident that, in light of Motzko's substantial role in a serious fraudulent scheme, there is no possibility that any attorney could have obtained immunity for him. In order to prevail on his claim that counsel failed to explain the benefits of a plea agreement to him, Motzko must demonstrate "a reasonable probability that but for incompetent counsel [he] would have accepted the plea offer and pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)."United States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997). Given the fact that Motzko is claiming that his counsel should have encouraged him to testify, which would have established his innocence, there is no probability that Motzko would have accepted any reasonable plea offer the government might have made.
There is one aspect of the ineffective assistance claim of each of the petitioners that prudence suggests the Court should not resolve on the current record. Each of the petitioners contends that his counsel did not advise him of his right to testify in his own defense. The Second Circuit has held:
We agree with Teague that "[d]efense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify . . . ." 953 F.2d at 1533. Although counsel should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best, counsel must inform the defendant that the ultimate decision whether to take the stand belongs to the defendant, and counsel must abide by the defendant's decision on this matter.Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
While common sense suggests that people as sophisticated as Breining and Motzko could not have been unaware that they had a right to testify in their own defense, they both claim that they were not. advised of this right by their attorneys. However, neither of them have provided an affidavit that would be adequate to support such a claim. For his part, Breining simply makes the assertion in his petition that counsel failed to inform him of his right to testify without submitting a supporting affidavit. While Motzko has submitted an affidavit on the subject, it states only that counsel "advised Motzko that he could not testify at trial in his own defense." This may have been nothing more than the good advice that, despite having a right to testify, it would be foolish for Motzko to testify and face cross-examination on issues for which there could be no reasonable explanation, with the additional risk that, if the judge found that he committed perjury in his testimony, there would be an additional two points added to his guideline sentence for obstruction of justice.
Even though the petitioners' failure to make an adequate record on this issue might justify dismissal of their claim, the Court will give them the opportunity to supplement the record. If each of them is prepared to subject themselves to a possible perjury prosecution if their assertions are later proved false, by submitting a detailed affidavit setting forth their conversations with their counsel concerning their testifying at trial, the Court will consider the issue further. Each petitioner is, therefore, directed to submit an affidavit as set forth above no later than May 3, 2002. If no such affidavit is submitted, the petition will be dismissed. If an affidavit is submitted, the Government within two weeks of its receipt shall file an affidavit from defense counsel setting forth his recollection of his conversations with his client concerning possible testimony by the client.
SO ORDERED.