Morchik v. USA

Filing 3

MEMORANDUM AND ORDER re Motion to Vacate (2255) as to Yefim Morchik (7): For the foregoing reasons, the Court DENIES Morchik's § 2255 motion. Because he has not made a substantial showing of the denial of any constitutional right, the Court declines to issue a certificate of appealability. See 28. U.S.C. § 2253. The Court also respectfully directs the Clerk of Court to close the case in No. 1:18-CV-03088-CBA. Ordered by Judge Carol Bagley Amon on 4/9/2019.Ordered by Judge Carol Bagley Amon on 4/9/2019. (Fernandez, Erica)

FILED
^

IN CLERK'S OFFK
CLERK'S OFFICE

^

UNITED STATES DISTRICT COURT

;trictcoUrti
U.S. district court e.d.n.y.

EASTERN DISTRICT OF NEW YORK

^ APR "9 2019

YEFIM MORCHIK,

BROOKLYN OFFICE
Petitioner,

-againstNOT FOR PUBLICATION

UNITED STATES OF AMERICA,

MEMORANDUM & ORDER
l:12-cr-00617-CBA-7

Respondent.

T.18-cv-03088-CBA
X

AMON,United States District Judge:

Before the Court is Petitioner Yefim Morehik's motion to vacate his sentence pursuant to

28 U.S.C. § 2255. Morchik pleaded guilty to Count Two of an indictment, conspiracy to receive

and pay healthcare kickbacks in violation of 18 U.S.C. § 371,pursuant to a cooperation agreement

on August 29, 2013. (D.E.# 142.) On December 9, 2016, Morchik was sentenced to thirty-four

months imprisonment. (D.E. dated December 9, 2016.) Morehik's motion challenges aspects of
his sentencing on the basis that his counsel provided ineffective assistance in violation ofhis Sixth
Amendment rights. See eenerallv Strickland v. Washington,466 U.S.668(1984). For the reasons
stated below,the Court denies Morehik's motion.
BACKGROUND

1.

Role in the Offense

Morchik pleaded guilty to conspiracy to receive and pay healthcare kickbacks in violation
of 18 U.S.C. § 371, based on his role in a fraudulent Medicaid billing scheme centered around the

healthcare provider Cropsey Medical Care, PLLC. Cropsey Medical Care,PLLC paid kickbacks

to patients so that it could submit fraudulent Medicaid bills on their behalf between November
2009 and October 2012. (D.E. # 1 ("Indictment")118.) It also received kickbacks from certain
other healthcare providers in exchange for referring patients to them. (Id.

19-20.)

A plea hearing was held on August 29, 2013. At the hearing, Morchik allocuted to the
following:

From June 2010 through May 2012, during which time 1 was employed by G&M
Ambulette Service, I agreed with others to pay cash kickbacks and receive cash
back from Cropsey Medical Care, PLLC. In return for the kickbacks that I paid,

Cropsey referred patients to G&M to transport them to and from Cropsey. G&M
billed Medicaid for its services.

During the same period, I agreed with an employee of Cropsey to refer Medicare
patients to Cropsey in return for which I receive [sic] kickbacks. I knew that paying
and receiving kickbacks was wrong.

On January 5, 2012,1 paid cash kickbacks to an employee of Cropsey in a car in
Brooklyn.

(D.E.# 463-16("Plea")at 31.) Magistrate Judge Orenstein also questioned Morchik about the full
scope of the conspiracy. He mentioned that the indictment referred to the time period November
2009 through October 2012 and noted "with respect to the timing, the government wouldn't have

to prove that you were involved in this agreement for that whole time, but just that at some time
during that period, you either entered into the agreement or you or somebody else while you were
a member ofthat agreement did something to make it succeed." (Id at 14.) Judge Orenstein asked
if Morchik understood, to which he responded "Yes." (Id)
II.

Cooperation

Morchik was arrested on October 4,2012. (D.E.# 18.) From the time of his arrest through

the weeks prior to his guilty plea, Morchik was represented by Arkady Bukh (counsel of record
for this motion)and Nicholas Woolridge of Bukh & Associates, P.C. (D.E.# 22—23) During that

period, Morchik met with the government on several occasions,admitted to his role in the scheme,
and made recordings with individuals at Cropsey. (D.E.# 463-1 ("Fatico Transcript ) 115—19.)
at
Morchik then retained new counsel—Jonathan Marks—^who entered an appearance on

August 15, 2013. (D.E.# 136.) The Government and Morchik agreed that he would plead guilty

pursuant to a written cooperation agreement on August 29, 2013. (D.E. # 142, 463-2.) That

agreement required Morchik to "provide truthful, complete and accurate information" to the
Government in addition to testifying at any proceedings requested by the Government. (D.E.

# 463-2("Cooperation Agreement")at 3.) On January 29,2014, Albert Dayan, Esq., the attorney
Morchik now alleges provided ineffective assistance of counsel, entered an appearance on
Morchik's behalf. (D.E. #193.) Morchik's cooperation continued thereafter.
The Government states that, in 2015, it became concerned that Morchik had been offering

untruthful testimony about co-defendant Pavel Zborovskiy both before and after Morchik signed

his cooperation agreement. (D.E. # 471 ("Gov. Br.") at 5.) Special Agent Delaney testified that
she set up a meeting with Morchik in March of 2015 in preparation for upcoming Fatico hearings
for co-defendants Pavel Zborovskiy and Igor Ishchuk. (Fatico Transcript at 22.) At that meeting,
Morchik said—consistent with his post-arrest statements—that he knew who Zborovskiy was, but
that he was not aware of Zborovskiy's relationship with G&M Ambulette Services. (li at 23.)

But these statements appeared to conflict with the statements and recordings ofanother cooperator

which suggested that Morchik and Zborovskiy had worked together within the scope of the
conspiracy. (Id at 29-30.)

These apparent inconsistencies transformed into problems with Morchik's cooperation
later in 2015. Morchik failed to appear at meetings with the Government in July and August in
which the Government sought to explore the information he had given them with regard to

Zborovskiy. (Id at 57.) Morchik claims that "[p]rior to that meeting,[he] had several encounters

with Mr. Zborovskiy and his associates, during which [he] was threaten [sic] that if[he] testified

against Mr. Zborovskiy,[he] and/or [his] family members would be physically hurt." (D.E.# 465

("Morchik Deck")^ 2.) Morchik claims that he came to both scheduled meetings but was advised

by Dayan that "it was not in [his] best interest to meet with the government." (Id. 14.) Morchik
also claims that Dayan "respected [his] decision not to testify against Mr. Zborovskiy because of

[his] fear for safety" and that Dayan "never advised [him] that [his] refusal to testify against Mr.
Zborovskiy would constitute a breach of cooperation agreement [sic]." (Id. H 3.)

Morchik ultimately met with the Government on October 7, 2015. (Fatico Transcript at

57.) At that meeting, Morchik explained to the Government why he felt threatened by Zborovskiy.

(Id, at 58-61.) He was once again asked substantive questions about his relationship with
Zborovskiy. He responded consistent with his post-arrest and March statements. (Id, at 62.) In
the meeting, Morchik made clear that he was unwilling to testify against Zborovskiy. (Id.)
The Court held a Fatico hearing on October 13, 2016 to explore whether Morchik was

dishonest in his cooperation with the Government. (D.E. dated October 12,2016.) Morchik claims

that "Mr. Dayan never explained to [him]the purpose and significance of[his] Fatico hearing and
did not permit [him] to testify despite [his] willingness to do so." (Morchik Deck H 11.) Dayan
refutes this claim, stating that he "informed [Morchik] that if he testified dishonestly he could be

charged with obstruction" and that "[i]t was Mr. Morchik's decision not to testify. (D.E. # 476
("Dayan Deck")115.) Morchik ultimately did not testify at the Fatico hearing. Toward the close
of the hearing, Dayan indicated that he would include in his sentencing submission "a couple of

paragraphs" about the hearing,(Fatico Transcript at 142), but he failed to do so,(see generally
D.E. #418). At his sentencing on December 9, 2016, Judge Towmes concluded that Morchik did
in fact lie about Zborovskiy to the Government,(D.E.# 463-3 ("Sent. Transcript") at 4), but that

there was—in any event—"no issue" whether he "deserve[d]" a 5K1.1 letter because Morchik
"conceded that he did not deserve this letter because he had violated the conditions of his

cooperation agreement in that he failed to meet with the Government as requested and he refused

to testify when asked to do so,"(id at 3). Judge Townes ultimately concluded that her ruling about
Morchik's dishonesty "does not affect the guidelines range or anything in this case." (Id at 5.)
III.

Sentencing Submissions

Probation filed an initial Presentence Investigation Report("PSR")on July 28,2015,(D.E.

# 320), as well as two addenda—one filed October 5,2016,(D.E.# 408), and one on December 8,

2016, (D.E. #423). Morchik now challenges the accuracy of a few statements in the PSR,
including that he "recruited patients from the Brooklyn Russian immigrant community," (PSR

^ 28),that he was an ambulette driver, and that he received $40 kickbacks from co-defendant Irina
Barikyan.' (D.E.# 463("Def. Br.")at 34.) Among its other recommendations.Probation provided
some background on Morchik's background and family life. (PSR

79-85.) The PSR also

remarked on Morchik's health, noting that he had two stints placed in his heart following a heart

attack, was diagnosed with high blood pressure and cholesterol, and suffers panic attacks. (Id
86-87.) A later addendum shows that Morchik provided Probation with a report from Dr.
Enikeev verifying his anxiety and also diagnosing him with depressed mood and insomnia. (D.E.
# 408.)

The Government submitted a sentencing memorandum on July 5, 2016. (D.E. # 371.)

Relying on United States Sentencing Guidelines § 2B4.1(b)(1),the Government calculated the loss
amount attributable to Morchik to be $2,080,944: "$1,518,586, the amount Cropsey billed
Medicare billed for claims associated with G&M beneficiaries; and $562,358, the amount G&M

hilled Medicaid for patients transported to Cropsey." (Id. at 4.) This calculation resulted in a total
offense level of 21, corresponding to a guidelines range of 37 to 46 months. (Id at 3.) The

Probation Department adopted this calculation in its second addendum to the PSR. (D.E.# 423.)

'These second and third alleged inaccuracies do not appear in any Probation department submissions.
5

Dayan submitted a sentencing memorandum on behalfof Morchik on November 23,2016.

(D.E. #418.) In broad strokes, that submission argued that Morchik should be given a below-

guidelines sentence because he had the support of his family, (id. at 2—3), because cultural
differences kept him from understanding the severity of his crimes,(id. at 3-4), and because he
was genuinely remorseful about what he had done,(id. at 5). Morchik claims he was not shown
this memorandum before it was submitted and that several statements contained therein were false.

(Morchik Deck ^ 12.) Dayan failed to include several letters written in support of Morchik, as
well as the medical reports submitted by several of Dayan's doctors. (D.E. # 463-20, at 2.) He

also failed to offer any objections to the PSR,despite his alleged commitment to do so in a meeting
with Morchik. (Morchik Deck

9-10.) Several emails and text messages submitted in

connection with this motion show that Morchik was not pleased with the attention Dayan was

showing to his case in the time-period leading up to his sentencing. (D.E.# 463-14, -17, -20.)
IV.

Sentencing

Morchik was sentenced on December 9, 2016. (D.E dated December 9, 2016.) After

presentations from Dayan, the Government, and Morchik, Judge Townes set out the reasoning
behind her sentence. She noted that "there is no question how serious this offense is" and that the

"defendant knew exactly what he was doing." (Sent. Transcript at 26—27.) She "[took] into

consideration [Morchik's] cooperation, but[found]that his dishonesty and refusal to testify in this
case almost negates what he ha[d] done." (Id. at 27.) As noted above. Judge Townes concluded
that the matters discussed at the Fatico hearing "d[id] not affect the guidelines range or anything

in this case." (Id at 5.) She also took into account the "history and characteristics ofthe defendant
as described to [her] by the Government, by the Defense Counsel, and the Pre-Sentence Report"

before concluding that the sentence imposed "must result in general and specific deterrence; also.

promote respect for the law, and; also, punish the defendant." (Id) She concluded: "I am
sentencing Mr. Morchik below the advisory guideline range, but not very far below: 34 months in
the custody ofthe Attorney General." (Id at 28.)
* * *

In the present motion, Morchik argues that Dayan rendered ineffective assistance in the
course ofthe events described above at a level which deprived him of his Sixth Amendment rights.
He seeks vacatur of his thirty-four month sentence.
STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, federal prisoners may seek post-conviction relief for

sentences "imposed in violation of" federal law, entered by courts'without jurisdiction, issued
"in excess of the maximum authorized by law," or "otherwise subject to collateral attack." 28

U.S.C. § 2255(a); see also Adams v. United States. 372 F.3d 132,134(2d Cir. 2004). The Court
also "shall vacate and set the judgment aside" if, among other things, the Court finds that "there
has been such a denial or infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). A petitioner may raise a claim of
ineffective assistance of counsel for the first time in a § 2255 motion. Massaro v. United States,

538 U.S. 500,504(2003). On other claims,ifa petitioner procedurally defaults"by failing to raise

[them]on direct review," a court generally may not hear them on § 2255 review. Bousley v. United
States. 523 U.S. 614,622(1998).
DISCUSSION

Each of Morchik's arguments challenge the adequacy of Dayan's representation at and

leading up to sentencing. Ineffective assistance ofcounsel claims are decided under the framework
of Strickland v. Washington. 446 U.S. 668 (1984). "Under Strickland, in order to prevail on an

ineffective-assistance-of-counsel claim, a defendant must meet a two pronged test; (1) he 'must

show that counsel's performance was deficient,' so deficient that,'in light ofall the circumstances,
the identified acts or omissions were outside the wide range of professionally competent

assistance,' and (2) he must show 'that the deficient performance prejudiced the defense,' in the

sense that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result

ofthe proceeding would have been different.'" Bennett v. United States. 663 F.3d 71,84(2d Cir.

2011)(quoting Strickland v. Washington. 466 U.S. at 687,690,694). "With respect to a claim of
ineffective assistance in sentencing,the defendant must show a reasonable probability that, but for

counsel's substandard performance, he would have received a less severe sentence." Gonzalez v.
United States. 722 F.3d 118,130(2d Cir. 2013).

Morchik argues that five aspects of Dayan's representation were constitutionally deficient
under this standard:

(1) Dayan's failure to dispute specific aspects ofthe PSR;

(2) Dayan's failure to raise specific arguments at the sentencing hearing and in his
submissions;

(3) Dayan's failure to inform him that refusal to testify would constitute a breach
of his cooperation agreement;

(4) Dayan's refusal to allow him to testify at his Fatico hearing; and
(5) Dayan's failure to adequately communicate.
None ofthese arguments establish Dayan's deficient performance.

I.

Objections to the PSR

Morchik argues that his guidelines range was "unjustifiably increased" by sixteen levels^
because of Dayan's failure to make pertinent objections to the PSR. (Def. Br. at 32.) Specifically,
be argues that Dayan should have objected to the inclusion of;

(1) The loss caused by Cropsey's fraudulent billing in bis loss amount. (Id at
32.)

(2) The loss caused before Morchik joined the conspiracy, and after be made
bis last kickback in furtherance of it. (Id, at 32—33.) And,

(3) Several factual inaccuracies. (Id at 34-35.)

None ofthese failures to object violated Morcbik's Sixth Aunendment rights.

Regarding the amounts billed by Cropsey, Judge Townes correctly included these bills

when calculating the loss amount attributable to Morchik. Judge Townes (and the PSR)applied
United States Sentencing Guideline § 2B4.1 which directs the Court to increase a defendant's
offense level based on the value of"the improper benefit to be conferred." USSG § 2B4.1(b)(1).

Because Morchik pled guilty to conspiracy under 18 U.S.C. § 371,the Court was required to apply
Guildeline § lBI.3(a)(l)(B)(iii), which requires "in the case of a jointly undertaken criminal

activity ...,all acts and omissions of others that were reasonably foreseeable in connection with
that criminal activity" to be taken into account in determining offense levels. Here, Morchik paid
kickbacks to Cropsey so that G&M could provide ambulette services to Cropsey's patients. It was

"reasonably foreseeable" that these patients would also have illegal Medicare bills submitted on
their behalf for services they received (or did not receive) while at Cropsey. Since the challenge

^ By this, Morchik appears to mean that a 16-level loss amount enhancement was applied rather than a 14-level
enhancement.

had no merit, Dayan's failure to object to this application of the Guidelines did not render his
assistance ineffective.

Inclusion of loss amount incurred both before and after Morehik actively participated in

the conspiracy was also proper under the Guidelines. "In general, 'one who joins an existing

conspiracy takes it as it is, and is therefore held accountable for the prior conduct of eoconspirators." United States v. Bengis, 783 F.3d 407, 413 (2d Cir. 2015)(quoting United States
V. Sansone. 231 F.2d 887, 893(2d Cir. 1956)). In the context of drug conspiracies and restitution
orders, the Second Circuit has held that a defendant should be held accountable for past conduct

"if, when he joined the conspiracy, he could reasonably foresee" or "knew or reasonably should

have known" of past conduct. Id. (citing United States v. Miranda-Ortiz, 926 F.2d 172, 178(2d
Cir. 1991). Here, Morehik admitted that he understood the full scope of the conspiracy when he

pled guilty to a conspiracy charge spanning from "November 2009 to October 2012." (D.E.# 1,
at 5.) And although Morehik "alloeuted that on or about May 1, 2012 he stopped paying []
kickbacks," this does not alter his responsibility for subsequent losses. (D.E.# 473("Def. Reply")

at 12.) "'[T]o avert a continuing criminality' there must be 'affirmative action... to disavow or

defeat the purpose' ofthe conspiracy." Smith v. United States, 568 U.S. 106,113(2013)(quoting
Hvde V. United States. 225 U.S. 347, 369(1912)). Morehik has pointed to no such action. Given
that the loss amounts that occurred before and after Morehik's participation in the conspiracy were

properly included in the loss amount, Dayan was not ineffective for failing to object.
Morehik's argument that Dayan failed to object to incorrect "factual postulates of the
offenses scheme [sic]," (Def. Br. at 34), is furthest afield. He claims that Dayan should have

objected to three inaccuracies in the PSR: (1) that Morehik was an ambulette driver; (2) that
Morehik was a "recruiter from Brooklyn Russian community [sic]"; and (3) that a eo-defendant

10

paid Morchik forty dollars "to pass through each patient." (Id.) The first and third statements do
not appear in the PSR. The second is consistent with Morchik's own admissions. To date, his

moving papers admit that Morehik reeruited eight patients on behalf of G&M and Cropsey. (Def.
Br. at 17 ("He personally reeruited only 8 patients."): Def. Reply at 4 ("[H]e simply referred 8

people to Cropsey.").) Further, even assuming that these facts were misstated in the PSR,nothing
in the sentencing transcript indicates that Judge Townes relied on them in imposing Morchik's
sentence. Showing prejudiee is requisite to a elaim ofineffeetive assistanee of counsel.
* * *

The short ofthe matter is that Dayan did not commit error in failing to make the objections
to the PSR that Morchik now insists he should have made.

II.

Arguments at Sentencing

Morehik also takes issue with the way Dayan handled his case through his senteneing
submission and in his presentation at senteneing. He argues that Dayan:

(1) Did not eompare Morehik to other defendants who had already been sentenced,
(Def. Br. at 33);

(2) Failed to emphasize Morehik's cooperation in his senteneing letter,(Def. Br. at 3536); and

(3) Failed to submit medical records and letters ofsupport despite his promise to do so,
(Def. Br. at 36,41^2);

These arguments are once again without merit.

At sentencing and in his papers, Dayan deeided to focus on Morchik's remorsefulness,

support from his family, and the cultural differences that prevented him from understanding the
seriousness of his crime. His decision to do so is exactly the sort of"strategie choice[]" that the

Striekland Court described as "virtually unchallengeable." 466 U.S. at 690. That is because "[n]o

partieular set of detailed rules for counsel's conduct can satisfactorily take aceoxmt of the variety
11

of circumstances faced by defense counsel or the range oflegitimate decisions regarding how best

to represent a criminal defendant." Id. at 688-89. For this reason,"[j]udicial scrutiny ofcounsel's
performance must be highly deferential. It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,

examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or
omission ofcounsel was unreasonable." Id Dayan focused on factors at sentencing that Morchik
now believes were not the best. But this Court's function is not to second-guess the strategic

choices of counsel. "[T]here are countless ways to provide effective assistance in any given case"
and "even the best criminal defense attorneys would not defend a particular client in the same
way." Strickland. 466 U.S. at 689.

In any event, Morchik has not shown that these strategic decisions prejudiced him in any

way. Morchik complains that Dayan did not "compare other co-defendants' exposure and
attributable amount ofloss,"(Def. Br. at 33), but he does not explain which co-defendants received

sentences that would serve as a helpful comparison for showing his relative lack of culpability.^
Further, although Dayan did not emphasize Morchik's attempts at cooperation in his sentencing
submission, he discussed Morchik's cooperation at length at sentencing. ("See Sent. Transcript at

9-12(discussing both "private historical cooperation" and "proactive cooperation," including that
Morchik wore wires, went to meetings, and conducted video recordings).) And although Dayan

failed to submit letters of support and medical records on behalf of Morchik, the PSR detailed
Morchik's family life, (PSR

83—84), and health,(PSR

85-86); an addendum to the PSR

detailed Morchik's medical conditions,(D.E.# 408); and Dayan's sentencing submission reflected

^ Dayan did offer some comparison of Morchik to his co-conspirators at his sentencing hearing, noting that Morchik
agreed to pay $55,000 in restitution, "five times more than every other defendant in this case that has pled guilty and
has been imposed restitution." (Sent. Transcript at 11-12.)
12

the same information,(D.E. # 418, at 2-3, 4). At sentencing, Morchik himself reiterated that he
was in poor health. (Sent. Transcript at 26.) In other words, information about Morchik's family

and health was before Judge Townes when she sentenced him. She plainly took this information
into account when setting the conditions of Morchik's incarceration. (D.E. # 29 ("Yes, I will
recommend mental health treatment. .. ."); id. at 31 (granting surrender date one month out to
avoid the "tremendous shock with his health condition").) Morchik has failed to show that "there

is a reasonable probability that, but for counsel's unprofessional errors,the result ofthe proceeding
would have been different." Strickland. 466 U.S. at 694.

III.

Breach of the Cooperation Agreement

Next, Morchik argues that"Mr. Dayan's neglect and erroneous advices [sic] in connection
with defendant's cooperation substantially contributed to the breach ofthe cooperation agreement

and to the government's failure to file a substantial assistance letter." (Def. Br. 36-37.) Putting
aside the factual dispute whether Dayan in fact informed Morchik that his course ofconduct would

breach the cooperation agreement,"^ this alleged error does not satisfy either prong of Strickland.
First,"counsel's performance" is not deficient when he fails to inform a client ofsomething
which he already knows. Here, Morchik does not allege that Jonathan Marks—^his attorney at the
time the cooperation agreement was signed—failed to inform him ofthe contents ofhis agreement
or that his entry into that agreement was in some other way unknowing. And the cooperation
agreement is clear by its own terms. It required Morchik to provide "truthful, complete and
accurate information" and to "testify at any proceeding in the Eastern District of New York or
elsewhere as requested by the Office." (D.E. # 463-2, at 3.) In other words, it was abundantly

Dayan averred:"I advised Morchik that his refusal and unwillingness to meet with the Government and testify against
Pavel Zborovskiy would be considered a breach of his cooperation agreement." (D.E.# 476.)
13

clear that Morchik's failure to testify against Zborovskiy would constitute a breach of bis
cooperation agreement. Morchik's other allegations of ineffectiveness, for example,that he "was

also held completely in the dark by Mr. Dayan as the government wanted to talk to him,"(Def. Br.

at 37), is also belied by the record. As is clear from the Fatico hearing and Morchik's own
submissions, Morchik met with the Government on October 7, 2015 and affirmatively refused to

testify against Zborovskiy. (Def. Br. at 12; Fatico Transcript at 58.)

Second,there is no reasonable probability that any alleged errors prejudiced Morchik. One

ofthe three reasons the Government gave for refusing to file a 5K1.1 letter on Morchik's behalf is

that "the government no longer f[ound] the defendant to be credible and believe[d] that he

purposely failed to disclose all that he knew about Zborovskiy both before and after he entered
into the cooperation agreement." (D.E. # 404, at 6.) Morchik's dishonesty—dating from long

before Dayan began to represent him—cannot be attributed to any alleged ineffectiveness in
Dayan's representation.
IV.

Testimony at the Fatico Hearing

Morchik also argues that "Mr. Dayan[] never explained to the defendant the purpose and

the significance of his Fatico hearing and did not permit him to testify despite his willingness to
do so." (Def. Br. at 40.) Under Rock v. Arkansas. 483 U.S. 44, 49 (1987),"a defendant in a
criminal case has the right to take the witness stand and to testify in his or her own defense."

However,"[wjhile the Supreme Court has acknowledged the absolute personal right to testify at
one's trial, it is still an open question whether the same right applies to the defendant's testimony

at a pre-trial hearing." Hawthorne v. Snitzer. No. 07-CV-4128 (NG), 2010 WL 3803861, at *1
(E.D.N.Y. Sept. 20,2010). Morchik has not pointed to any case extending the Rock right to testify

14

to the context of a Fatico hearing. Assuming arguendo that Morchik had a right to testify,^ he has
not shown that his right was violated or that any violation caused him prejudice.

First, the Court finds that as a factual matter Dayan did not stop Morchik from testifying
at the Fatico hearing. On this point, Morchik averred that "Mr. Dayan[] never explained to [him]
the purpose and the significance of his Fatico hearing and did not permit [him] to testify despite
[his] willingness to do so." (Morchik Deck til.) In contrast, Dayan averred that "[he] informed
Mr. Morchik exactly what the purpose of the Fatico hearing was. [He] informed him that he had

the right to testify. [He] also informed him that if he testified dishonestly he could be charged with
obstruction. It was Mr. Morchik's decision not to testify." (D.E.# 476, at 5-6.)

This Circuit "permits a middle road of deciding disputed facts on the basis of written

submissions," in resolving § 2255 motions. Ravsor v. United States. 647 F.3d 491,494(2d Cir.
2011) (quoting Pham v. United States. 317 F.3d 178, 184 (2d Cir. 2003)). Here, Morchik's
"blanket statements that counsel had prohibited him from testifying" are "belied" by Dayan's

entirely plausible explanation ofwhy Morchik chose not to testify. Id (discussing Chang v. United
States. 250 F.3d 79, 81-82, 85(2d Cir. 2001)). As in Chang v. United States. Morchik's "proffer

involve[s] a generic claim—one that can be, and is often, made in any case in which the defendant
fails to testify—^based solely on his own highly self-serving and improbable assertions." Chang.
250 F.3d at 86. And,as in Chang,"a full testimonial hearing ... would add little or nothing to the

written submissions." Morchik's claim is simply not credible.^ The Court therefore finds on the

^ The Court is inclined to agree with then-Judge Sotomayor "that the decision to put the defendant on the stand in a
pretrial evidentiary hearing has no special constitutional status beyond the right to present evidence on one's own
behalf and is thus committed, as are all decisions about which witnesses to call or not call, to trial counsel's

professional judgment."). Narvaez v. United States. No. 97-CV-8745, 1998 WL 255429, at *5 n.6 (S.D.N.Y. May
19, 1998)(Sotomayor, J.).

® As detailed within this opinion, Morchik has a history of not being candid. At sentencing. Judge Townes concluded
that Morchik "was not... truthful" with the Government during his attempt to cooperate. (Sent. Transcript at 5.)
15

basis of Morchik and Dayan's affidavits that Morchik has failed to establish that he was denied his
right to testify, if any such right exists.

Second, even had Dayan violated Morchik's right to testify, that violation did not cause
Morchik any prejudice. "[A]ny claim by the defendant that defense counsel has not discharged
[his responsibility under Rock1—either by failing to inform the defendant ofthe right to testify or
by overriding the defendant's desire to testify—must satisfy the two-prong test established in
Strickland v. Washington. 466 U.S. 668 (1984), for assessing whether counsel has rendered

constitutionally ineffective assistance." Brown v. Artuz. 124 F.3d 73, 79 (2d Cir. 1997). The

purpose ofthe Fatico hearing was to determine whether Morchik was honest during his attempt to

cooperate with the Government. (Fatico Transcript at 2.) Morchik averred in his affidavit—^and
counsel reiterated in the § 2255 brief—^that had he testified at his Fatico hearing, he "was going to
tell the court the circumstances of the case, details of [his] pro-active cooperation, which the

testifying agent simply could not remember, and the reasons for failure to communicate with the

government." (Morchik Deck T| 11; Def. Br. at 40.) But it is unclear how any ofthese showings
would have vitiated Judge Townes' eventual conclusion that Morchik was not being honest with
the Government when discussing his relationship with Zborovskiy. (Sent. Transcript at 4-5.) And
even ifhis testimony would have been material, it did not effect Judge Townes's ultimate sentence.
(See id at 5 (explaining that the resolution of the issue discussed at the Fatico hearing "does not

affect the guildelines range or anything in this case.").) Morchik's failure to establish any
prejudice caused by his not having testified at his Fatico hearing is another reason to reject his
claim.

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V.

Dayan's Communication

Finally, Morchik stresses that there were communication problems between him and Dayan
shortly prior to sentencing that adversely impacted his sentence. (Def. Br. at 37-39.) He claims
that Dayan's lack of communication (which is reflected in several email exchanges and text
messages,

D.E. # 463-14, -20)) prejudiced his ability to present a defense because it, among

other things,"caused Mr. Dayan's letter and the sentencing speech to contain factual errors and to

omit critical individualized personal characteristics." (Def. Br. at 39.) For example, Dayan
allegedly made up some details about Morchik's life in the Soviet Union and about his work as a

cab driver while omitting certain information about his personality and prior achievements. (Id.)
The Court has reviewed the record underlying these allegations and determines that none
of the alleged errors are sufficiently serious to constitute a constitutional violation. Cf Cheng

Chui Ping v. Willingham. 746 F. Supp. 2d 496, 501 (S.D.N.Y. 2010)("Cheng was not prejudiced
by Hochheiser's failure to present mitigating character testimony during the sentencing phase.").
The alleged factual inaccuracies that Dayan put forth at sentencing were at the level of minor detail
and are unlikely to have impacted Judge Townes' calculus one way or another. And Morchik has

not pointed to any particular "prior achievements" or "personality" traits, (Def. Br. at 39), that
would have caused Judge Townes to impose a sentence other than the one she did. Cf id at 500

("The Court is not persuaded that Cheng was prejudiced by Hochheiser's failure to adequately
consult with her. Cheng has not made any specific allegations that this purported lack of
communication weakened her case.").

The Court therefore finds that the communication problems between Dayan and Morchik
prior to sentencing did not cause his resulting sentence to be constitutionally infirm.

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CONCLUSION

For the foregoing reasons, the Court DENIES Morchik's § 2255 motion. Because he has

not made a substantial showing ofthe denial ofany constitutional right, the Court declines to issue

a certificate of appealability. See 28 U.S.C. § 2253. The Court also respectfully directs the Clerk
of Court to close the case in No. 1:18-CV-03088-CBA.
SO ORDERED.

Dated: April 9,2019
Brooklyn, New York

s/Carol Bagley Amon

United States/DistriciJudge

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