Persky v. USA

Filing 45

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Persky's § 2255 Motion 1 is DENIED. Based on the denial of the § 2255 Motion all other pending motions filed by Persky are deemed MOOT 8 , 11 , 15 , 16 , 23 , 24 (premature as no motion to appeal this Order has been filed), and 29 . Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL ROBERT PERSKY,
Petitioner (Defendant),
v.

Case No. 2:13-CV-00541-EJL
2:12-CR-00012-EJL
MEMORANDUM DECISION AND
ORDER

UNITED STATES OF AMERICA,
Respondent (Plaintiff).

Pending before the Court in the above entitled matter is Petitioner Michael Robert
Persky’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (Dkt. 1 in civil case, Dkt. 189 in criminal case). The
Government filed its answer to the motion on April 14, 2014 (Dkt. 22). Without leave of
the Court, Persky filed a supplemental memorandums (Dkt. 9, 12, 16, 28, 30). The Court
stayed the case pending a decision by the United States Supreme Court in 2016 relating to
recalling a jury after the jury is discharged. The Court allowed supplemental briefing after
the Supreme Court’s ruling in Dietz v. Bouldin, __ U.S. __, 136 S. Ct. 1885 (2016). The
motion is now ripe for the Court’s consideration and the Court finds Persky’s § 2255
motion should be denied.

ORDER- 1

FACTUAL BACKGROUND
A jury convicted Persky of eighteen counts of mail and wire fraud on
October 19, 2012. Dkt. 101.After the verdict was accepted by the Court, it was discovered
that the jury did not have all pages of one exhibit when they deliberated. Within 35
minutes of the verdict being received by the Court and the jurors excused, counsel for the
government discovered the exhibit issue. The Court immediately directed the jury
commissioner to call all jurors and advise them that an issue had come up and further
deliberations maybe be required. See Minutes, Dkt. 95. The jurors were instructed not to
discuss the case with anyone, to heed the admonitions of the Court previously given and
to report back to the courthouse the next time the Court was in Coeur d’Alene, Idaho the
first week of November. Id.1
Counsel for Persky moved for a mistrial. The Court requested briefing.
Defendant’s brief was filed on October 29, 2012 and the Government’s response was
filed on November 1, 2012. Dkts. 103 and 105. The Court issued its ruling denying the
motion for a mistrial on November 2, 2012. Dkt. 106. Due to the unavailability of some
of the jurors in early November, the Court continued the matter to December 3, 2012, the
next time the Court was in Coeur d’Alene. Dkt. 106.
On December 3, 2012, the jurors returned to the courthouse and the Court
confirmed no juror had discussed the case since they were excused on October 13, 2012

1

The District of Idaho covers the entire state of Idaho. The Court hears matters in
Boise, Pocatello and Coeur d’Alene. The Court travels to Coeur d’Alene once a month.
ORDER- 2

and there were no reasons which prevented any juror from continuing to sit as a qualified
juror in this matter. Transcript, Dkt. 164. The Court instructed the jury on the situation,
read one additional jury instruction and allowed argument by counsel. Id. The jury
deliberated and after an hour and 25 minutes, returned a new verdict finding Persky guilty
on the same 18 counts (Counts 1-12 and 13-20). Id., Minutes, Dkt. 1152, and Second
Verdict, Dkt. 116.
On February 4, 2013, Persky was sentenced to 24 imprisonment on each count to
run concurrently and three years of supervised release on each count to run concurrently,
$100 special assessment on each count as well as a $1,000 fine on each count plus
restitution in the amount of $92,636.61. Judgment, Dkt. 139, Amended Judgment dated
March 7, 2013, Dkt. 153. A Final Order of Forfeiture was entered by the Court. Dkt. 172.
Petitioner did not file a direct appeal. Petitioner timely filed his § 2255 motion on
December 30, 2013. In his motion, he claims ineffective assistance of counsel because his
counsel failed to file a direct appeal, failed to move the Court to sever his trial from the
trial of his co-defendant, failed to renew his motion for a mistrial. Persky claims his rights
under the Double Jeopardy clause were violated when the jury deliberated a second time.

2

The Minutes are dated “10/10/12” but this is a typographical error. The docket
notes that additional attachments were added to the Minutes on 12/10/2012. The Court
confirmed the contents of the Minutes by examining the Transcript of 12/3/2012, Dkt.
164.
ORDER- 3

STANDARD FOR EVIDENTIARY HEARING
Pursuant to 28 U.S.C. § 2255, the Court recognizes that a response from the
government and a hearing are required “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief....” Furthermore, a
hearing must be granted unless the movant’s allegations, “when viewed against the
record, either fail to state a claim for relief or are ‘so palpably incredible or patently
frivolous as to warrant summary dismissal.” United States v. Schaflander, 743 F.2d 714,
717 (9th Cir.); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). However, a
district court may summarily dismiss a Section 2255 motion “[i]f it plainly appears from
the face of the motion and any annexed exhibits and the prior proceedings in the case that
the movant is not entitled to relief....” Rule 4(b), Rules Governing Section 2255
Proceedings in the United States District Court. Thus in order to withstand summary
dismissal of his motion for relief under Section 2255, defendant “must make specific
factual allegations which, if true, would entitle him to relief on his claim.” United States
v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). In the present case, the legal issues do not
require an evidentiary hearing.
ANALYSIS
1.

Ineffective Assistance of Counsel Claims.

A Petitioner claiming ineffective assistance of counsel must allege specific facts
which, if proved, would demonstrate that (1) counsel’s actions were “outside the wide
range of professionally competent assistance,” and (2) “there is a reasonable probability
ORDER- 4

that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Mere conclusory
allegations do not prove that counsel was ineffective. See Shah v. United States, 878 F.2d
1156, 1161 (9th Cir. 1989). A defendant fails to state a claim for ineffective assistance if
he fails to allege facts sufficient to meet either the “performance” or “prejudice” standard,
and the district court may summarily dismiss his claim.
The Court has reviewed the Petitioner’s motion, and the entire record herein, and
concludes that even assuming the Petitioner has alleged facts sufficient to state a claim of
ineffective assistance of counsel, the Petitioner has failed to allege facts sufficient to
satisfy the “prejudice” prong of the two part test of ineffective assistance of counsel.
Specifically, the Petitioner has failed to demonstrate there is a reasonable probability that,
but for counsel’s alleged unprofessional errors, the result of his case would have been
different.
Persky had retained counsel represent him at trial. Counsel was an experienced
criminal defense attorney. Persky claims his counsel did not explain his right to appeal
and he was led to believe because he did not have the finances, he could not appeal. At
the sentencing hearing, Persky admitted he got caught and that he had accepted the risk of
his illegal actions to try to save his business. Sentencing Hearing Transcript, Dkt. 165.
Persky is a sophisticated businessman and this was not his first criminal proceeding.
Persky was specifically advised by the Court of his right to appeal. Id., p.16. Contrary to
Persky’s allegations, his former counsel, Mr. Loats, provided an email dated
ORDER- 5

February 1, 2013, that he sent to Persky setting out the deadline to appeal and if he could
not afford his services on appeal, the assistance of a public defender could be sought.
Persky does not deny he received the email from his former counsel. Moreover, former
counsel’s affidavit states he also specifically discussed the right to appeal with Persky and
Persky decided not to pursue an appeal. Dkt. 22-1. Therefore, the record is clear that
Persky did not have ineffective assistance of counsel regarding being informed of his
right to appeal, but instead he made the decision not to file a direct appeal. By failing to
appeal, Persky waived his right to renew challenges to the Court’s denial of the motion
for a mistrial and other trial rulings.
As to Persky’s claim that his counsel was ineffective for failing to move to sever
Persky’s trial from that of his long term girlfriend, this claim lacks factual support. When
Mr. Loats appeared on Persky’s behalf, the Court already had a motion from Ms. Dunkel
to sever. Loats did not object to the motion by Ms. Dunkel. The motion to sever filed by
Ms. Dunkel was denied. So Persky cannot show that there was any prejudice from his
counsel failing to file a second motion to sever. It is ultimately counsel’s strategic
decision, not the client’s about whether or not to file a motion. Wainwright v. Skyes, 433
U.S. 72, 93 (1977).
To the extent Persky is alleging ineffective assistance of counsel for his attorney
not moving to dismiss based on the Double Jeopardy Clause, this is again not factually
correct. Persky’s counsel did object, move and file a memorandum setting forth why the
Court should not allow the jury to return to deliberate again. This motion was denied.
ORDER- 6

Persky has failed to provide a legal basis in his § 2255 motion that would support his
argument that counsel should have filed a motion for reconsideration. Absent legal
authority that the Court was in error, counsel did not violate his professional duties by not
filing a motion for reconsideration. Persky could have raised this issue on appeal and
decided not to file an appeal. This is not ineffective assistance of counsel, it is a
ramification of deciding not to appeal. Persky has failed to show prejudice from counsel’s
decision not to file a motion for reconsideration.
Further, there was only one jury empaneled in this matter and Persky was only
tried once on the charges. The fact that the jury revisited its verdict after the discovery of
not having had a complete copy of one exhibit does not rise to the level of being tried
twice or punished twice for the same crime under the Double Jeopardy Clause.
In a supplemental brief, Persky also claims counsel was ineffective for failing to
file a statute of limitations motion. This again misstates the record. Counsel filed a motion
to dismiss wherein he argued various counts in the indictment were barred by the statute
of limitations. Dkt. 36. This motion was denied by the Court. Dkt. 83. There can be no
claim of ineffective assistance of counsel when a motion was filed and the Court ruled
against Defendant on the motion.
For these reasons all the claims of ineffective assistance of counsel are denied as
Persky has failed to show assistance of counsel must allege specific facts which, if
proved, would demonstrate that (1) counsel’s actions were “outside the wide range of
professionally competent assistance,” and (2) “there is a reasonable probability that, but
ORDER- 7

for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 687-690 (1984).
2.

Impact of Dietz v. Bouldin

Persky argues that based on the recent Supreme Court case, the Court should find
excusing and recalling the jury is a basis to find his Constitutional rights were violated
and his convictions in this matter should be vacated. The Court respectfully disagrees that
such relief is required by the Dietz decision.
In Dietz, the Supreme Court determined in a civil matter a federal district court has
the inherent power to rescind and recall a jury for further jury deliberations after
identifying an error in the jury’s verdict. 136 S.Ct. at 1893. The Court cautioned “[j]ust
because a district court has the inherent power to rescind a discharge order does not mean
it is appropriate to use that power in every case.” Id. This Court agrees. But under the
facts of this particular case and no objection having been voiced to the delay in having the
jury reconvene, the recall process was proper.
The Dietz opinion set forth four factors that were relevant to determining if the
recalling of the jury is proper. The Court finds that in applying the four factors set out in
Dietz, the discharge and recalling of the jury in this particular case in the manner in which
it occurred did not violate Persky’s Constitutional rights. First, the delay between the
discharge and the notification to the jurors they would need to deliberate again was less
than an hour. Moreover, all of the jurors confirmed they did not discuss the case with
third parties prior to receiving the call from the jury commissioner and returning to Court
ORDER- 8

to deliberate. There is no evidence that any smart phones or internet were accessed or
relevant to this case. Additionally, it is the Court’s standard practice to remove all cell
phones from jurors while deliberating and the documents in this case were all hard copies,
not electronic copies.
Second, while it is true based on the Court’s calendar in northern Idaho it did have
the jurors continue deliberations immediately, but such was not possible based on the
availability of jurors and the Court. This is a judicial district with two district judges to
cover the entire state and it is simply impossible for the Court to be in northern Idaho
more than once a month based on its case demands in other areas of the state. Counsel did
not object to the delay (only to the decision to reconvene the jury) and it is too late to
object to the continuance of bringing the jury back in the § 2255 motion when such
objection was forfeited. Also, defense counsel wanted the opportunity to brief the matter
before the Court ruled on the motion for a mistrial which was part of the delay.
Third, the jury had the majority of Exhibit 14 when it originally deliberated and
found the Defendant guilty on 18 counts. After being instructed by the Court, hearing the
second closing arguments of counsel and reviewing the entire Exhibit 14, the verdicts did
not change from the original guilty verdicts. The jury did not deliberate quickly. Instead,
the jury deliberated for nearly an hour and half before it returned the same verdict.
It is clear to the Court that the missing part of the Exhibit 14 was not material
determining whether the Government had proven the Defendant guilty beyond a
reasonable doubt on each element of each charge. Moreover, the missing part of one
ORDER- 9

particular exhibit did not cause the jury to target other facts or arguments not previously
presented. The arguments allowed when the jury reconvened were essentially the same
arguments previously made by counsel.
Fourth, there is no indication the second verdict was an emotional reaction to first
verdict or to the fact the jurors were called back to consider its verdicts in light of the
complete Exhibit 14.
While there is a risk of prejudice when a jury is discharged and recalled, in this
particular situation the jurors were notified immediately and there is no indication of any
prejudice or undue third party influence on the jury. The Court inquired and the jurors
responded they had not discussed or been exposed to potentially prejudical information
since their discharge after the original verdicts. If Persky believed he had a legal basis to
appeal the denial of motion for a mistrial, improper jury deliberations or a Double
Jeopardy claim, he should have filed a direct appeal. For all these reasons, the Court
finds this claim for relief must be denied.

ORDER
IT IS ORDERED:
1) Persky’s § 2255 Motion (Dkt. 1, and Dkt. 189) is DENIED.

ORDER- 10

2) Based on the denial of the § 2255 Motion all other pending motions filed
by Persky are deemed MOOT [Dkts. 216 and 217 in criminal case, Dkts. 8, 11, 15, 16,
23, 24 (premature as no motion to appeal this Order has been filed), and 29].

DATED: September 1, 2016

Honorable Edward J. Lodge
U. S. District Judge

ORDER- 11