Gindi v. U.S.A.
ORDER denying 18 Motion for Reconsideration. For the reasons set forth in the enclosed Memorandum & Order, petitioner's motion for reconsideration is denied in its entirety. A certificate of appealability will not issue pursuant to 28 U.S.C. § 2253(c)(2) because the court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right. Ordered by Judge Kiyo A. Matsumoto on 5/21/2014. (Raghunathan, Abhishek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
UNITED STATES OF AMERICA,
MATSUMOTO, United States District Judge:
Petitioner Isaac Gindi has moved this court to
reconsider its February 5, 2014 decision denying his motion to
vacate his judgment of conviction and be resentenced pursuant to
28 U.S.C. § 2255. (ECF No. 18, Motion for Reconsideration
For the reasons set forth below,
petitioner’s motion for reconsideration is denied in its
Although the parties are familiar with the extensive
background of this case, the court will discuss certain facts
relevant to petitioner’s motion for reconsideration.
pleaded guilty on November 22, 2011 to one count of conspiracy
to commit bank fraud in violation of 18 U.S.C. § 1349, (No. 11cr-294, ECF No. 34, Minute Entry for Guilty Plea, 11/22/11), and
was sentenced on November 19, 2013, to 27 months imprisonment,
three years of supervised release, and also ordered to pay a
$6,000 fine and a $100 special assessment, (No. 11-cr-294, ECF
No. 73, No. 11-cr-294, Judgment, 11/21/13).
On January 17,
2014, petitioner moved to vacate his judgment of conviction
pursuant to 28 U.S.C. § 2255 and be resentenced. 1
argued that he had been denied his right to effective assistance
of counsel under the Sixth Amendment because his former
attorney, Jonathan Kaye, Esq., had an actual conflict of
interest due to his representation in a separate prosecution of
petitioner’s brother Mayer Gindi, and had acted to the detriment
of petitioner as a result of this purported actual conflict of
After conducting an evidentiary hearing on February
3-4, 2014, the court denied petitioner’s § 2255 motion in its
entirety on February 5, 2014.
(ECF No. 12, Order Denying Motion
to Vacate/Set Aside/Correct Sentence (“Feb. 5 Order”), 2/5/14.)
On February 21, 2014, counsel for the government
disclosed that they had “recently discovered” a report
containing statements made by Mayer Gindi during a proffer
meeting with the government on March 30, 2011, that was
“arguably relevant to the Court’s decision denying the
Petitioner initially filed his motion to be resentenced as a motion in his
criminal case, No. 11-cr-294, but the motion was reopened as a new related
civil case, No. 14-cv-755.
The court will refer to Isaac Gindi as either “Isaac Gindi” or petitioner
and to Mayer Gindi as “Mayer Gindi” for the sake of clarity.
petitioner’s motion pursuant to 28 U.S.C. § 2255.”
Letter re: Additional Information, 2/21/14.)
(ECF No. 14,
further acknowledged that Mayer Gindi conceded during his
proffer meeting that “he was aware of the petitioner’s bank
fraud scheme” and stated that, although Mr. Kaye and the same
assistant United States attorneys who prosecuted Isaac Gindi
were present at the proffer meeting with Mayer Gindi, “the
Assistant United States Attorneys who were present had no
recollection of the statements contained in the report.”
at 1 n.1.)
In response to a court order inviting petitioner to
inform the court as to how he wished to proceed in light of the
new information disclosed by the government, petitioner, who is
now represented by the law firm Newman & Greenberg LLP, stated
that he wished to move the court “to reconsider or renew
[petitioner’s] §2255 motion.”
(ECF No. 15, Letter re:
Contemplated Motion, 2/27/14.)
The government subsequently turned over additional
documents to petitioner’s counsel: notes of the government’s
June 2010 interview of petitioner’s co-conspirator and codefendant Daniel Baddouch, notes by the government’s undercover
agent, “Angel Mejia,” concerning his conversations with Mayer
Gindi, and a memorandum of the August 2010 proffer meeting
between the government and Yitzchok Kaplan, who also
participated in the instant bank fraud conspiracy with Baddouch
and Isaac Gindi.
(ECFs No. 16-17.)
The motion for
reconsideration was fully briefed on April 25, 2014.
notes at the outset that petitioner has confirmed yet again that
he does not seek to withdraw his guilty plea.
(Mot. at 1, 2
A. The Court’s Previous Findings
After considering the affidavits, exhibits, and
testimony submitted during the February 3-4 evidentiary hearing,
the court did not find the testimony of Isaac Gindi, Mayer
Gindi, or Isaac Gindi’s wife Julie Gindi credible to the extent
that such testimony was at odds with the testimony of Mr. Kaye
concerning his discussions with Isaac Gindi, Mayer Gindi, and
(Feb. 5 Order at 16.)
But the court found that
Mayer Gindi knowingly made materially false statements to the
court under oath while testifying in the proceeding and in a
declaration submitted under penalty of perjury, and that Isaac
Gindi, Julie Gindi, and Mayer Gindi provided testimony that was
not credible concerning their interactions and discussions with
(Id. at 16-22.)
The court also found that it was not
credible that Isaac Gindi owed Mayer Gindi “[a] few hundred
thousand dollars” given the dearth of documentary evidence or
any details about such a large claim.
(Id. at 19.)
addition, the court found that both Isaac Gindi and Julie Gindi
were opposed to cooperating with the government against anyone.
(Id. at 19-20.)
Significantly, both Mayer Gindi and Isaac Gindi
testified during the evidentiary hearing that Mayer Gindi had no
role in Isaac Gindi’s bank fraud conspiracy beyond the initial
referral of Mejia.
35, 51-52).) 3
(Id. at 25 (quoting Transcript (“Tr.”) at
Mayer Gindi testified that he “had nothing to do
with” Isaac Gindi’s bank fraud conspiracy, (Tr. at 35), and
Isaac Gindi testified that Mayer Gindi “did not assist” him in
any respect concerning the fraudulent business loan, multiple
credit card applications, and Toyota lease involved in the
instant bank fraud scheme.
(Id. at 51-52.)
Based on this
testimony by the Gindis, the court found that “[t]here is no
evidence in the record . . . to suggest that Mayer Gindi knew
of, planned, supervised, or participated in any way in the
fraudulent schemes that Isaac Gindi and Daniel Baddouch engaged
(Feb. 5 Order at 25.)
Finally, the court found credible Mr. Kaye’s testimony
that he “made decisions about which arguments to make on behalf
of petitioner due to strategic considerations and not as a
result of any purported conflict.”
(Id. at 22.)
based its findings on the testimony and affidavits provided in
Certain transcript page numbers may be different in this Memorandum & Order
than in the court’s Feb. 5 Order because revised and updated transcripts have
since been completed.
connection with the proceeding, whether the testimony was
consistent with other evidence, and on the court’s observations
of the demeanors of the witnesses.
B. Additional Discovery
1. Mayer Gindi Proffer Session
On March 30, 2011, Mayer Gindi, who was then
represented and accompanied by Mr. Kaye, met in a proffer
session with government agents and the two assistant United
States attorneys who were prosecuting him and subsequently
prosecuted Isaac Gindi.
(Memorandum of Proffer Session
(“Proffer Mem.”), 3/31/11.)
According to the government
memorandum memorializing the proffer session between Mayer Gindi
and the government, Mayer Gindi admitted introducing Mejia to
his brother Isaac Gindi and told government agents that his
brother Isaac “was constantly calling” him “to discuss how” to
use Mejia “to obtain a business loan” and how to “make it
(Id. ¶¶ 54, 61.) 4
Mayer Gindi also proffered that,
while he was not involved in obtaining the loan for Isaac Gindi,
he “knew [Isaac Gindi] intended to use Mejia to engage in loan
fraud,” form a company in Mejia’s name, apply for credit under
Mayer Gindi and Mr. Kaye signed a proffer agreement which provided that
Mayer Gindi’s statements would not be admissible except for the limited
purpose of impeaching false testimony provided by Mayer Gindi. (Proffer Mem.
at p. 1.) At the February 3-4 evidentiary hearing, Mayer Gindi’s new counsel
indicated he would instruct his client to invoke his Fifth Amendment right
against self-incrimination rather than answer questions by Isaac Gindi’s new
counsel concerning the instant bank fraud conspiracy, and Isaac Gindi’s new
counsel decided not to ask Mayer Gindi any additional questions. (Tr. at 3745.)
Mejia’s company and not pay back the loan, and that Isaac Gindi
“wanted the loan to appear legal but that it was fraud.”
¶¶ 50-51, 55.)
Mayer Gindi also stated that Mejia would be paid
for the use of his name and credit and that Isaac Gindi also
intended to use Mejia’s name and credit to lease a Toyota
Highlander through fraudulent means.
(Id. ¶¶ 56-57.)
In addition, Mayer Gindi reported during his proffer
that he, Isaac Gindi, and Baddouch met on the night of June 23,
2010, after learning that Baddouch had been contacted by and
spoken to government agents.
(Id. ¶¶ 40-42, 49.)
stated that he, Baddouch, and Isaac Gindi discussed withdrawing
the credit applications and documents and that he had instructed
Isaac Gindi and Baddouch not to withdraw the applications.
Mayer Gindi also proffered that Isaac Gindi had
returned the Toyota Highlander obtained through fraudulent use
of Mejia’s identity to the dealership as a result of his
conversation with Mayer Gindi.
(Id. ¶ 63.)
Gindi stated that he “knew what [Isaac Gindi] was doing was
fraud, knew it was wrong,” and “did not get involved in any part
of the [Isaac Gindi] application using Mejia’s information.”
(Id. ¶ 61.)
Following the proffer session with Mayer Gindi, the
government declined to offer Mayer Gindi a cooperation agreement
because the government determined him to be untrustworthy.
No. 20, Memorandum in Opposition, 4/9/14, at 9.)
2. Daniel Baddouch Interview
After he was contacted by government agents on June
23, 2010, Baddouch told the agents that Isaac Gindi and Mayer
Gindi were aware of the scheme employed by Baddouch to use
Mejia’s identity to “falsify loan and credit card applications”
but that he could not remember if either Mayer or Isaac Gindi
directly submitted false loan or credit card applications using
(Memorandum of Daniel Baddouch Interview
(Exhibit B of Petitioner’s Motion for Reconsideration)
(“Baddouch Mem.”), 6/23/10, ¶ 3.)
Baddouch proffered that he
submitted loan applications and credit card applications using
Mejia’s identity, the proceeds of which were to be used by and
for the benefit of Mayer Gindi and Isaac Gindi.
(Id. ¶ 2.)
Baddouch said he spoke with Isaac and Mayer Gindi “often” and
that he, Mayer Gindi, and Isaac Gindi planned to direct Mejia to
transfer money obtained through the fraudulent scheme to Isaac
(Id. ¶¶ 9, 12.)
3. Yitzchok Kaplan Proffer Session
Kaplan met with the government in a proffer session on
August 31, 2010.
(Yitzchok Kaplan Interview Memorandum (Exhibit
D of Petitioner’s Motion for Reconsideration) (“Kaplan Mem.”),
Kaplan, who participated in the instant conspiracy
with Isaac Gindi and Daniel Baddouch but pleaded guilty to a
separate information, (No. 11-cr-33, ECF No. 15, 3/25/11),
stated in a proffer meeting that “Isaac and Mayer Gindi were
desperate for money,” that “Isaac Gindi, Mayer Gindi and
Baddouch” wanted to use the Mejia’s identity to obtain loans,
and that Isaac Gindi, Mayer Gindi, and Baddouch gave him “the
run around” when he tried to speak to Mejia.
(Kaplan Mem. ¶¶ 9-
C. New Findings of Fact
As a preliminary matter, the court notes its concern
that the government’s late disclosures of the proffers by Mayer
Gindi and Yitzchok Kaplan, the interview of Daniel Baddouch, and
the agent’s notes, have caused understandable criticism by
counsel for petitioner.
Nevertheless, the court continues to
have serious doubts about the credibility of Mayer Gindi, Isaac
Gindi, and Julie Gindi, who are all convicted felons who pleaded
guilty to crimes involving fraud and false statements.
Order at 21.)
The court finds, however, that certain statements
made by Mayer Gindi in his proffer session are partially
credible because they are statements by Mayer Gindi that are
against Mayer Gindi’s penal interest and are corroborated to
some extent by the government memorandum memorializing
statements by Daniel Baddouch and the government memorandum of
Yitzchok Kaplan’s proffer session.
Accordingly, based on the
newly provided evidence, the court now finds that Mayer Gindi
knew that his brother Isaac Gindi would use, and was in fact
using, Mejia’s identity to engage in fraud with respect to the
business loan, the Toyota Highlander lease, and credit card
applications, that Isaac Gindi constantly called Mayer Gindi to
discuss using Mejia’s identity to obtain the fraudulent business
loan, which Isaac Gindi wanted to obtain through fraudulent
means but still appear legal, and that Mayer Gindi met with
Isaac Gindi and Baddouch on June 23, 2010, after Baddouch spoke
with government agents, to discuss the ramifications of what
Baddouch disclosed to the agents.
The court also finds that
Mayer Gindi did in fact advise Isaac Gindi and Baddouch not to
withdraw the submitted Mejia applications in the course of that
In addition, the court finds that, based upon the
statements of Mayer Gindi, Daniel Baddouch, and Yitzchok Kaplan
regarding Mayer Gindi’s knowledge of and advice about Isaac
Gindi’s fraudulent schemes, both Isaac Gindi and Mayer Gindi
testified falsely about material issues during the evidentiary
hearing held by this court on February 3 and 4, 2014.
Mayer Gindi was asked during the evidentiary hearing on February
3 whether he had any involvement with the bank fraud scheme that
Isaac Gindi was charged with, Mayer Gindi responded: “No. I had
nothing to do with it.”
(Tr. at 35.)
Although Mayer Gindi also
told the agents during his March 30, 2011 proffer that he was
not involved in the efforts to obtain a fraudulent business loan
for Isaac Gindi, (Proffer Mem. ¶¶ 51, 54-55, 61), it is clear
that Mayer Gindi knew of and advised Isaac Gindi about the
fraudulent credit card applications and obtaining the fraudulent
(Id. ¶¶ 54, 59.)
Similarly, when Isaac Gindi was questioned on February
3, 2014, by the court concerning his brother Mayer Gindi’s
involvement in the bank fraud scheme, he testified that Mayer
Gindi had no involvement in the scheme besides the initial
referral of Mejia:
THE COURT: Other than referring him [Mejia], did
your brother, Mayer, do anything else with regard
to what you were charged with in this case, was
he involved in anything? For example, did he
assist you in the business loan that you
attempted to obtain in Mr. [Mejia’s] name?
THE WITNESS: No, he did not assist me.
THE COURT: Did he assist you or Mr. Baddouch -well, let me ask you about you since I’m asking
about your personal knowledge. Did he assist you
at anytime in applying for multiple credit cards?
THE WITNESS: No, he did not.
THE COURT: Did he assist you in applying for a
car lease for a Toyota SUV?
THE WITNESS: No, he did not.
THE COURT: Did he assist you in applying for
financing for your home?
THE WITNESS: No.
(Tr. at 51-52 (emphasis added).)
The statements provided by Isaac Gindi and Mayer Gindi
while testifying are contradicted by the statements made by
Mayer Gindi and Yitzchok Kaplan during their proffer sessions.
Mayer Gindi told the government during his proffer session that
he knew his brother Isaac Gindi intended to use Mejia in the
fraudulent business loan, credit card, and the Toyota lease
schemes, and that his brother Isaac constantly called him to
discuss how to use the government agent in the fraudulent
Mayer Gindi also stated during his proffer session that
he, Isaac Gindi, and Daniel Baddouch met at the home of Isaac
Gindi’s in-laws to discuss what Baddouch had told government
agents and that he had told Isaac Gindi and Baddouch not to
withdraw the fraudulent financing applications and other
documents they had submitted using Mejia’s identity.
The court does not find it plausible that Mayer Gindi
would have forgotten these facts or been ignorant of these facts
while he was testifying under oath.
Thus, the court finds that
Mayer Gindi intentionally gave false testimony concerning a
material matter – his involvement in and knowledge of Isaac
Gindi’s bank fraud conspiracy – while testifying before this
In addition, the court does not find it plausible that
Isaac Gindi would have forgotten about or been ignorant while
testifying before this court of the extent of his brother Mayer
Gindi’s knowledge of and participation in the instant bank fraud
conspiracy to which Isaac Gindi pleaded guilty.
the court finds that Isaac Gindi intentionally gave false
testimony concerning a material matter – his brother Mayer
Gindi’s involvement in and knowledge of the instant bank fraud
conspiracy – while testifying before this court.
Third, although Mayer Gindi also stated during the
course of his proffer session that he “did not get involved in
any part of the [Isaac Gindi] application using Mejia’s
information,” this statement is contradicted by the statements
of Baddouch during his interview and the statements by Kaplan
during his proffer session.
(Baddouch Mem.; Kaplan Mem.)
Because of these contradictions, and due to the court’s concerns
about Mayer Gindi’s credibility and the fact that Mayer Gindi
may have made this statement for self-serving reasons, the court
is unable to determine the full extent of any role played by
Mayer Gindi in Isaac Gindi’s conspiracy because the details of
Mayer Gindi’s involvement are presumably known only to Mayer
Gindi and Isaac Gindi.
(Proffer Mem. ¶¶ 51, 61.)
The court notes that, in the instant motion for
reconsideration, petitioner’s counsel rely heavily on statements
during proffers by Mayer Gindi and Yitzchok Kaplan and the
interview of Daniel Baddouch.
Yet petitioner’s counsel fail to
address the fact that these statements also demonstrate that
their client, Isaac Gindi falsely testified that his brother
Mayer Gindi had no involvement and provided no assistance beyond
the initial referral of Mejia.
Moreover, counsel for petitioner
have not submitted an explanatory affidavit or declaration of
the defendant that would attempt to reconcile their client’s
sworn testimony and the contradictory statements of Mayer Gindi,
Daniel Baddouch, and Yitzchok Kaplan.
A. Legal Standards
As explained in the Feb. 5 Order, to establish an
actual conflict of interest, a defendant must meet two
requirements: First, he must establish that counsel actively
represented conflicting interests such that the interests of the
defendant and his attorney “diverge[d] with respect to a
material fact or legal issue or to a course of action.”
States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002).
defendant must show that the “actual conflict of interest
adversely affected his lawyer’s performance.”
Sullivan, 446 U.S. 335, 348, 350 (1980).
To demonstrate an
adverse effect on counsel’s performance, a defendant must
establish that the actual conflict resulted in a “lapse of
United States v. Stantini, 85 F.3d 9, 16 (2d
Cir. 1996) (quotation and citation omitted).
“To prove a lapse of representation, a defendant must
‘demonstrate that some plausible alternative defense strategy or
tactic might have been pursued’ but was not pursued because ‘the
alternative defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests.’”
United States v. Felzenberg, Nos. 97 Civ. 2800 & 93 CR 460, 1998
WL 152569, at *15 (S.D.N.Y. Apr. 2, 1998) (emphasis added)
(quoting Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993)); see
also United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)
(“the defendant must also show causation-that the alternative
defense was inherently in conflict with or not undertaken due to
the attorney’s other loyalties or interests.”) (internal
quotation and citation omitted).
Finally, “[t]he term ‘plausible alternative defense
strategy’ does not embrace all possible courses of action open
to a defense attorney; it refers to those which a zealous
advocate would reasonably pursue under the circumstances.”
Lopez v. Scully, 58 F.3d 38, 42 (2d Cir. 1995).
The court notes at the outset that the government
should have turned over the newly disclosed documents to
petitioner’s counsel before the February 3-4 evidentiary
Although the assistant United States attorneys have
represented to the court that they did not remember the proffer
session memorandum because of the passage of time, they should
have been aware of and turned over the documents in a timely
fashion prior to the hearing.
Their failure to do so has led to
additional motion practice and the expenditures of resources by
the parties and the judiciary.
Nevertheless, the fact that the
government failed to turn over these documents before the
evidentiary hearing does not necessarily entitle petitioner to
the relief he seeks.
Therefore, the court will address the new
arguments raised by petitioner based on the additional evidence.
1. Whether Evidence is Exculpatory
The court will first consider petitioner’s argument
that “the newly discovered exculpatory evidence casts doubt on
Isaac’s own culpability” because he “arguably sought to withdraw
from the conspiracy by withdrawing Mejia’s loan applications”
but did not do so because of Mayer Gindi’s instructions to “let
(Mot. at 11.)
This claim is meritless because it
distorts the facts and misapplies the law.
First, although Mayer Gindi stated in the proffer
session that he discussed withdrawing the Mejia credit
applications and related documents with Isaac Gindi and Baddouch
and told them that they should not pull back the applications,
he did so during a meeting that was held to discuss the
ramifications of what Baddouch had told government agents.
(Proffer Mem. ¶ 59.)
There is no indication that Isaac Gindi
ever made any affirmative statements indicating his intent to
withdraw from a bank fraud conspiracy.
Second, the crime of conspiracy to commit bank fraud
is completed once the parties enter into an unlawful agreement
because “[t]he essence of conspiracy is ‘the combination of
minds in an unlawful purpose’ . . . . Far from contradicting an
element of the offense, withdrawal presupposes that the
defendant committed the offense.”
Smith v. United States, 133
S. Ct. 714, 719 (2013) (quoting United States v. Hirsch, 100
U.S. 33, 34 (1879)).
Accordingly, Isaac Gindi’s participation
in a general discussion to discuss possibly withdrawing
applications after he engaged in the bank fraud conspiracy does
not exculpate him because, even if this evidence had been
disclosed, there would have been no “reasonable probability that
. . . the result of the proceeding would have been different” as
it would not have altered his liability for the underlying
conspiracy to commit bank fraud.
Strickler v. Greene, 527 U.S.
263, 280 (1999) (internal quotation and citation omitted).
The court also notes that Isaac Gindi’s mere
participation in a discussion about possibly withdrawing the
fraudulent applications took place only after he became aware of
the government’s knowledge of his criminal activities, and is
thus insufficient to show that he actually withdrew or attempted
to withdraw from the conspiracy because there is no indication
that he took affirmative steps to do so or voiced any clear
statements indicating his intent to do so.
(Proffer Mem. ¶ 59.)
Finally, even if Isaac Gindi could show he withdrew from the
conspiracy, the withdrawal would only “terminate the
defendant’s liability for postwithdrawal acts of his coconspirators, but he [would] remain guilty of conspiracy.”
Smith, 133 S. Ct. at 719.
2. Guilty Plea
Petitioner also argues that Mr. Kaye “could not advise
Isaac to seriously consider exercising his right to trial since
a trial would necessarily result in Kaye being disqualified from
representing Isaac” as a result of his knowledge of Mayer
Gindi’s statements to the government.
(Mot. at 8.)
finds this argument implausible because petitioner affirmed
during the February 3-4 evidentiary hearing and in his most
recent motion papers that he does not wish to withdraw his
(Id. at 1, 2 n.1, Tr. at 4.)
By affirming his
guilt on the record since replacing Mr. Kaye with new counsel
and repeatedly stating that he does not seek to withdraw his
guilty plea, petitioner has demonstrated that he pleaded guilty
of his own volition and not as a result of any undue influence
by Mr. Kaye resulting from any purported conflict.
In addition, Mr. Kaye did not begin representing Isaac
Gindi until after Mayer Gindi, who did not enter into a
cooperation agreement, pleaded guilty on May 27, 2011, to an
information that charged him one count of conspiracy to commit
wire fraud in connection with a mortgage fraud scheme, in
violation of 18 U.S.C. § 1349, and one count of bankruptcy
fraud, in violation of 18 U.S.C. § 152(3), in an unrelated case
involving a completely different fraudulent scheme before Judge
Sandra L. Townes of this court, United States v. Mayer Gindi,
No. 11-cr-347 (SLT).
(No. 11-cr-347, Minute Entry for Guilty
Plea of Mayer Gindi, 5/27/11; No. 11-cr-294, Minute Entry dated
7/14/11 stating Isaac Gindi was retaining Mr. Kaye as new
counsel; Tr. at 99-100.)
Consequently, despite petitioner’s
arguments to the contrary, when Mr. Kaye began representing
Isaac Gindi, it was clear that Mayer Gindi would not be a
witness against Isaac Gindi in the event that Isaac Gindi
exercised his trial rights because Mayer Gindi had already
pleaded guilty and was not entering into a cooperation agreement
with the government.
Nor is there any plausible prospect that
Mr. Kaye would testify against Isaac Gindi, notwithstanding
petitioner’s contrary argument.
Thus, Mr. Kaye had no reason to
encourage Isaac Gindi to plead guilty due to his representation
of Mayer Gindi.
Similarly, the court finds that there is no new
evidence indicating that Mr. Kaye failed to advise petitioner to
gain leniency by cooperating against Mayer Gindi as a result of
any purported actual conflict related to Mr. Kaye’s
representation of Mayer Gindi.
Based on testimony at the
February 3-4 hearing, the court found that Mr. Kaye had credibly
testified that Isaac Gindi had consistently refused to cooperate
with the government against anyone and that Julie Gindi was also
opposed to her husband cooperating against anyone.
Order at 14, 32-33.)
Instead, petitioner now argues that
because Mr. Kaye could not tell him about the statements made by
Mayer Gindi during Mayer Gindi’s proffer session, Isaac Gindi
“remained blissfully ignorant of the alacrity with which his
brother Mayer, aided by Kaye, gave him up to the government.”
(Mot. at 11.)
The court disagrees with petitioner that the
additional evidence demonstrates that petitioner declined to
cooperate with the government as a result of Mr. Kaye’s
To the contrary, the additional evidence
only buttresses Mr. Kaye’s testimony that Isaac Gindi was
unwilling to cooperate with the government despite his knowledge
of the criminal activities of Mayer Gindi, Baddouch, and Kaplan.
According to the notes of Mayer Gindi’s proffer session, Isaac
Gindi had knowledge related to his brother’s involvement in the
bank fraud conspiracy at issue in this case.
(Proffer Mem. ¶¶
Yet, instead of describing the true extent of his
brother Mayer Gindi’s involvement, Isaac Gindi chose to falsely
testify during the February 3-4 hearing that his brother Mayer
Gindi had no role in the conspiracy besides the initial referral
of Mejia, (Tr. at 51-52), and now argues that Mayer Gindi is
more culpable than petitioner for the fraudulent scheme to which
petitioner pleaded guilty, (Mot. at 7).
Because Isaac Gindi
offers no explanation for his contradictory position, it appears
that he was willing to knowingly provide false testimony under
oath rather than testify truthfully about his brother’s
As a result, the court finds that the additional
evidence only supports Mr. Kaye’s earlier testimony that Isaac
Gindi was advised of the advantages of cooperation but chose not
to cooperate with the government on his own volition and with
the support of his wife, Julie Gindi.
In any event, Isaac Gindi
has still failed to identify any information that he is willing
to provide to the government that has not already been disclosed
to the government.
4. Mr. Kaye’s Credibility
The court also declines to accept petitioner’s
assertion that Mr. Kaye knowingly made a false statement to this
court when he testified that he did not see a conflict in his
representation of both Isaac and Mayer Gindi.
Although the new
evidence shows that Mayer Gindi knew of and spoke with Isaac
Gindi about Isaac Gindi’s fraudulent schemes, Mayer Gindi’s
statements during his proffer session must be viewed in light of
the fact that Mayer Gindi ultimately decided to plead guilty
without a cooperation agreement, and that Mr. Kaye only began
representing Isaac Gindi after Mayer Gindi pleaded guilty.
(Feb. 5 Order at 3-4, Tr. at 99-100.)
Therefore, at the time
Mr. Kaye began representing Isaac Gindi, he was aware that Mayer
Gindi would not be cooperating with the government, and Mr. Kaye
subsequently was informed by Isaac Gindi that he, too, was not
willing to cooperate with the government against anyone, let
alone his brother Mayer Gindi.
Thus, contrary to petitioner’s
assertion, the court sees no reason to change its finding that
Mr. Kaye credibly testified during the February 3-4 proceedings
that he did not see a potential conflict with representing both
Isaac and Mayer Gindi, (Tr. at 101), because the record
demonstrates that neither brother was interested in cooperating
with the government.
Petitioner further argues that the newly disclosed
documents show that Mr. Kaye “was not a credible witness”
because he gave “false testimony about a material issue.”
No. 21, Reply, 4/25/14, at 5.)
Specifically, in responding to a
question about why he chose not to pursue the strategy of
blaming Mayer Gindi, Mr. Kaye testified that he did not want to
argue that Mayer Gindi was more culpable than Isaac Gindi
because “besides the introduction of Angel Mejia, Mayer had
nothing to do with anything of Isaac’s case,” and Mr. Kaye
confirmed that he did not believe it would be a viable defense
strategy to blame Mayer Gindi for Isaac Gindi’s bank fraud
(Tr. at 114.)
On cross-examination, when Mr. Kaye
was asked if he understood the only role played by Mayer Gindi
in Isaac Gindi’s bank fraud conspiracy to be the introduction of
Isaac Gindi and Mejia, Mr. Kaye responded “[t]hat’s correct.”
(Tr. at 124.) 5
Petitioner argues that because the new documents
show that Mayer Gindi admitted to “far greater involvement than
simply introducing the undercover officer to Isaac [Gindi],” the
documents show that Mr. Kaye gave false testimony.
Petitioner’s argument is flawed for two reasons.
First, as the court has explained, the newly disclosed documents
show that Mayer Gindi knew that Isaac Gindi would use Mejia in a
bank fraud conspiracy, spoke to Isaac Gindi about Mejia, and met
with Isaac Gindi and Baddouch to discuss the ramifications of
what Baddouch had told government agents.
But the extent of Mayer Gindi’s involvement is still
Mr. Kaye also testified that he accompanied Mayer Gindi to a proffer meeting
with the U.S. Attorney’s Office, but Mr. Kaye was not asked about and thus
did not testify as to what Mayer Gindi said in the proffer meeting. (Tr. at
Indeed, Mayer Gindi also stated during the proffer
meeting that he “did not get involved in any part of the [Isaac
Gindi] application using Mejia’s information,” even though he
knew Isaac Gindi was engaged in fraud and that it was wrong.
(Proffer Mem. ¶ 61.)
Therefore, the court declines to find that
the newly produced discovery shows that Mayer Gindi had “far
greater involvement” than previously discussed, (Reply at 5),
although the court acknowledges that his involvement included
more than his referral of Mejia to petitioner, as both Gindis
previously testified under oath.
Also, petitioner fails to account for the full context
of Mr. Kaye’s testimony.
Mr. Kaye testified that he believed
Mayer Gindi had no real connection to Isaac Gindi’s bank fraud
conspiracy besides introducing Isaac Gindi to Mejia in response
to questions concerning why he chose not to blame Mayer Gindi as
more culpable than Isaac Gindi for Isaac Gindi’s bank fraud
(Tr. at 114, 115, 124.)
Mr. Kaye’s testimony was
thus based on his belief that Mayer Gindi had no role other than
the introduction of Mejia to Isaac Gindi and that it would thus
not be plausible to argue that Mayer Gindi was more culpable
than Isaac Gindi for a fraudulent scheme that Mayer Gindi was
not even charged with committing.
While the newly disclosed evidence shows that Mr. Kaye
was present when Mayer Gindi proffered that he had some role in
the instant bank fraud conspiracy beyond the initial referral of
Mejia, the court declines to make the finding that Mr. Kaye
knowingly made a material misstatement of fact given the passage
of time since the proffer session and the fact that both Isaac
Gindi and Mayer Gindi had consistently maintained and falsely
testified that Mayer Gindi had no role beyond the initial
referral of Mejia.
(Tr. at 35, 51-52.)
Based on Mr. Kaye’s
demeanor while testifying and the fact that his testimony was
consistent with public statements made by the Gindis under oath
in the proceedings, the court finds that Mr. Kaye, unlike the
Gindis, was mistaken in his testimony but did not knowingly make
a material misstatement.
The court also finds that the Gindis
would have remembered the details of Mayer Gindi’s involvement
at the time of their testimony before this court because of
their personal knowledge of and involvement in the bank fraud
conspiracy, whereas Mr. Kaye would only have known what he was
told by Isaac and Mayer Gindi.
Finally, even if Mr. Kaye had knowingly made a
misstatement about the extent of Mayer Gindi’s involvement,
which the court finds that Mr. Kaye did not do, the court’s
credibility determinations would not change concerning Mr.
Kaye’s testimony about his interactions with Isaac Gindi, Mayer
Gindi, and Julie Gindi because Mr. Kaye’s testimony would not be
rendered less credible than the testimony of Isaac Gindi, Mayer
Gindi, and Julie Gindi.
First, as explained, the court has
found that Isaac Gindi and Mayer Gindi knowingly provided false
testimony under oath about material issues.
In addition, the
court found Mr. Kaye’s account credible and the accounts of
Mayer Gindi, Julie Gindi, and Isaac Gindi not credible based on,
inter alia, (1) the demeanors of the witnesses while testifying,
(2) the fact that Mr. Kaye’s accounts of his interactions were
more plausible and corroborated by other evidence, including the
sentencing submissions he made on behalf of both Gindis, while
the Gindis offered no documentary evidence or details supporting
Isaac Gindi’s assertions, including Isaac Gindi’s motivation to
engage in fraudulent schemes because of a debt of several
hundred thousand dollars purportedly owed to Mayer Gindi, (3)
the fact that Isaac Gindi, Julie Gindi, and Mayer Gindi are all
felons who pleaded guilty to crimes involving fraud and false
statements, and (4) that Isaac Gindi has twice confirmed that he
does not wish to withdraw his guilty plea and has not stated
that he has any information to offer to the government that has
not already been disclosed to the government, actions which are
consistent with Mr. Kaye’s testimony that Isaac Gindi
voluntarily pled guilty and was firmly opposed to cooperating
with the government.
(Feb. 5 Order.)
Mayer Gindi’s Culpability
Isaac Gindi has also failed to demonstrate that Mr.
Kaye did not blame Mayer Gindi because Mr. Kaye feared exposing
Mayer Gindi to additional liability.
As an initial matter, the
newly disclosed evidence does not show that Mr. Kaye could have
plausibly argued that Mayer Gindi was somehow more culpable than
Isaac Gindi for the bank fraud conspiracy in this case.
explained previously, the newly disclosed evidence shows that
Mayer Gindi knew about Isaac Gindi’s scheme, spoke to Isaac
Gindi frequently about the scheme, and met with Isaac Gindi and
Daniel Baddouch to discuss the ramifications of what Baddouch
had told government agents and offer advice.
(Proffer Mem. ¶
Although the recently disclosed information shows that
Mayer Gindi knew about and had some involvement in Isaac Gindi’s
bank fraud conspiracy beyond the mere referral of Mejia, the
court finds that an attorney could not plausibly argue that
Mayer Gindi was somehow more culpable than Isaac Gindi for a
bank fraud conspiracy that Mayer Gindi was not charged with
committing, especially considering that Mayer Gindi also told
the government during the proffer session that he “did not get
involved in any part of [Isaac Gindi’s] application using
(Id. ¶ 61.)
Even if Mayer Gindi were more culpable than Isaac
Gindi for the bank fraud conspiracy at issue in this case, the
court finds that Mr. Kaye did not pursue blaming Mayer Gindi for
strategic reasons rather than because of any purported conflict.
Mr. Kaye credibly testified that he wanted to ensure that Isaac
Gindi would receive his acceptance of responsibility points and
appealed to the court at sentencing by highlighting petitioner’s
showing of remorse, family circumstances, acceptance of
responsibility, and prior good acts.
(Tr. at 114-115.)
addition, Isaac Gindi’s contradictory testimony during the
evidentiary hearing that his brother “did not assist” him in any
respect concerning the bank fraud scheme beyond the initial
referral of Mejia, (id. at 51-52), only further supports Mr.
Kaye’s testimony that he did not want to blame Mayer Gindi for
strategic reasons because it would not have been plausible for
Isaac Gindi to claim, on the one hand, that his brother did not
assist him beyond the initial referral of Mejia and, on the
other hand, to argue that Mayer Gindi was also more culpable.
(Feb. 5 Order at 26.) 6
Similarly, petitioner also fails to show that Mr. Kaye’s representation of
him was ineffective under the standard in Strickland v. Washington, 466 U.S.
668 (1984). As explained, the court finds that Mr. Kaye represented Isaac
Gindi after Mayer Gindi pleaded guilty without a cooperation agreement, and
that Isaac Gindi, Mayer Gindi, and Julie Gindi were all opposed to
cooperating with the government. Furthermore, the court continues to find
that Mr. Kaye credibly testified that he presented certain arguments and not
others at sentencing due to strategic considerations, and not because of any
purported conflict in his representation of Mayer Gindi and Isaac Gindi.
Given the court’s credibility findings, it declines to reopen the evidentiary
6. Challenge of Loss Calculations
Petitioner also argues that the “new and additional
evidence of [petitioner’s] stated intention to repay any loan
proceeds reveals another lapse” in Mr. Kaye’s representation.
(Mot. at 12.)
This argument lacks merit because the additional
evidence does not change this court’s findings.
explained by the court in detail in its previous order, Mr. Kaye
did argue in his sentencing submission and during the sentencing
that Isaac Gindi intended to repay the money he sought through
the fraud conspiracy.
(Feb. 5 Order at 27-28.)
this court rejected Mr. Kaye’s argument, finding that it was not
plausible that Isaac Gindi intended to repay the hundreds of
thousands of dollars he tried to borrow through fraudulent means
because he lacked the means or assets to do so.
additional scattered references to an intent to repay money in
the new discovery produced by the government are contradicted by
other statements regarding Isaac Gindi’s apparently dire
financial condition and thus do not alter this court’s prior
analysis of petitioner’s intended loss and lack of intent to
For example, Mayer Gindi proffered that he knew Isaac
Gindi intended to form a company in the undercover agent’s name,
obtain a fraudulent business loan, and not pay it back.
(Proffer Mem. ¶ 55.)
Similarly, Yitzchok Kaplan proffered that
Isaac Gindi and Mayer Gindi were “desperate” for money and that
Isaac Gindi had a company that was struggling financially.
(Kaplan Mem. ¶¶ 9, 26.)
Petitioner also argues that this court made a
“baseless and clearly erroneous” factual determination when it
found that Mr. Kaye was not aware of Baddouch’s statement that
Isaac Gindi and Mayer Gindi purportedly would be receiving and
making payments on the loan and credit they obtained.
Petitioner has misinterpreted this court’s Feb. 5 Order
and misstated the record.
As the court’s Feb. 5 Order
explained, although Mr. Kaye testified that his practice would
have been to read sentencing submissions made on behalf of Mr.
Baddouch, Mr. Kaye testified that he was not aware of the
Baddouch statement concerning payments until reading a
submission by petitioner’s new counsel before the February 3-4
Q Did you speak to your client, Mayer, about the
fact that he had been implicated in the scheme?
A I never spoke to him about it.
Q But you were aware of it, correct?
A I was aware of that by your submission.
Q You mean the first time you became aware of the
fact that Mayer was going to be receiving
payments was when you read it in our submission?
A That’s correct.
Q But now having read it in our submission, you
are aware that his role was more, is greater than
just making an introduction, correct?
A From reading your submission.
(Tr. at 125 (emphasis added).)
When considered in context, Mr. Kaye’s testimony shows
that while his general practice was to read sentencing
submissions made on behalf of Baddouch, Mr. Kaye only became
aware of Baddouch’s statement that Mayer Gindi may have received
payments from Isaac Gindi’s fraudulent scheme in connection with
the papers submitted by Isaac Gindi’s new counsel before the
Additionally, as the government has
pointed out, Mr. Kaye was not aware of the Baddouch or Kaplan
reports because he did not receive them during discovery.
petitioner has failed to show that Mr. Kaye did not make this
argument as a result of any purported conflict because the court
finds that Mr. Kaye was simply not aware of these additional
(ECF No. 20, Memorandum in Opposition, 4/9/14, at
Finally, even if Mr. Kaye had been aware of these
statements, as the court explained in its Feb. 5 Order, the “use
or failure to use the [Baddouch] statement is not an alternative
defense [that] was inherently in conflict with or not undertaken
due to the attorney’s other loyalties or interests as it does
not help or hurt one Gindi brother more than the other or at the
expense of the other.”
(Feb. 5 Order at 29 (internal quotations
omitted) (alteration in original).) 7
7. Other Arguments
Finally, the court notes that petitioner’s counsel has
also misrepresented certain statements made by the government
during the February 3-4 evidentiary hearing by quoting them
completely out of context.
Near the conclusion of the hearing,
the government stated that while it would be easier for all
parties and the court to “just do a resentencing,” it would be
“extremely disturbing to have people come up here and lie on the
witness stand in order to get them the most easy out . . . .
[I]f you could come up on the witness stand and say whatever you
needed to say, and at the end of the day we can put that all
aside and say let’s just do a resentencing, that’s not,
certainly, the best way to practice.”
(Tr. at 221-222.)
other words, the government argued that Isaac Gindi should not
be permitted to testify falsely about material issues under
oath, present testimony from his wife that this court found to
be not credible and present false testimony about material
issues from his brother that flatly contradicts his argument
that his brother was more culpable, and receive another
sentencing through such conduct.
In addition, the court still finds credible Mr. Kaye’s testimony that he did
not focus his submissions and defense strategy on challenging the loss
calculations because he made the strategic decision that petitioner should
take responsibility for his actions. (Feb. 5 Order at 29-30.)
The court is aware that the government should have
turned over the relevant notes that led to this motion for
reconsideration to petitioner’s counsel before his evidentiary
While the court agrees that it would have been easier
for the court and all parties to grant a resentencing rather
than conduct an evidentiary hearing and decide two postsentencing § 2255 motions, the court cannot allow a defendant
who flagrantly provides false statements about material issues
to the court to receive a resentencing merely for the sake of
For the reasons set forth above, the court denies
petitioner’s motion for this court to reconsider its decision
denying his motion to vacate his judgment of conviction and be
resentenced pursuant to 28 U.S.C. § 2255.
A certificate of
appealability will not issue pursuant to 28 U.S.C. § 2253(c)(2)
because the court finds that petitioner has failed to make a
substantial showing of the denial of a constitutional right.
Dated: May 21, 2014
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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