Meszaros v. United States of America
Filing
13
ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). For the reasons stated herein, Meszaros's motion to vacate his conviction under Section 2255 is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/15/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-1076 (JFB)
_____________________
STEVEN MESZAROS,
Movant,
VERSUS
UNITED STATES OF AMERICA,
Respondent.
___________________
MEMORANDUM AND ORDER
August 15, 2016
___________________
JOSEPH F. BIANCO, District Judge:
In July 2008, a federal jury found Steven
Meszaros (hereinafter, “Meszaros”) guilty of
wire fraud and conspiracy to commit wire
fraud. On April 22, 2009, this Court
sentenced Meszaros to a prison term of 151
months.
Meszaros, who remains
incarcerated, moved pursuant to 28 U.S.C. §
2255 to vacate, correct, or set aside his
sentence. This Court ordered an evidentiary
hearing on the limited issue of whether
Meszaros received effective assistance of
counsel as to advice he was given by his trial
attorneys, Stephen Scaring (hereinafter,
“Scaring”) and Matthew Brissenden
(hereinafter, “Brissenden”), with respect to
plea offers made by the government. The
evidentiary hearing took place over two days
on February 22 and March 14, 2016.
1
The parties have filed their submissions pertaining to
the instant motion on both Meszaros’s criminal
docket, No. 06-cr-503, and the civil docket opened for
For the reasons stated below, Meszaros’s
Section 2255 petition is denied in its entirety.
In particular, Meszaros claimed the following
in his Section 2255 petition: (1) he was under
the mistaken belief throughout from his
attorneys that his maximum statutory
sentencing exposure was 60 months in jail
(see Meszaros Mot. to Vacate ¶ 21, ECF No.
1 (14-cv-1076)1 (“Even at sentencing . . . the
Movant was under the impression that his
sentence was limited by statute to 5 years.”));
(2) he never knew (a) about a possible plea
offer from the government of 51 to 63 months
in jail in exchange for a guilty plea to the
Superseding Indictment (see Movant’s Reply
Aff. ¶ 15, ECF No. 7 (14-cv-1076) (“Further,
I was never aware of a term of imprisonment
of five . . . years that had apparently been
discussed between the government and my
attorney until I read about it in the
his Section 2255 petition, No. 14-cv-1076. Where
necessary to avoid confusion, the Court shall
distinguish to which docket it is citing.
government’s response to my 2255 Motion.
This is yet another instance of my attorney’s
ineffective assistance of counsel in my
case.”)), or (b) that the government’s
projected Guidelines range was 235 to 293
months’ imprisonment on the Superseding
Indictment if he were convicted at trial (see
also Hr. Tr.2 at 234 (denying knowledge of
government’s Guidelines calculation if he
were convicted at trial on the Superseding
Indictment)); (3) Scaring and Brissenden did
not properly advise him regarding any
recommendation as to whether he should take
a guilty plea; and (4) had he been aware that
he would be sentenced to 151 months of
imprisonment, much less had he known that
he faced a potential prison sentence of 235 to
293 months if found guilty at trial, he would
have accepted the government’s plea offer of
51 to 63 months.
including, inter alia, the following: (1) the
credible testimony by Meszaros’s first
attorney, Steven Brill (hereinafter, “Brill”),
who testified that he told Meszaros that he
faced in excess of ten years imprisonment if
the government filed a Superseding
Indictment charging him with both the first
fraud Meszaros perpetrated between 1999
and 2001 using a company called Nexus
Asset Management, L.L.C. and its successor,
Livestreet, L.L.C. (hereinafter, referred to as
the “Nexis/Livestreet fraud”) and the second
fraud committed by Meszaros between 2003
and 2007 using a company called the PentaCycle Group (hereinafter, referred to as the
“Penta-Cycle fraud”) (Brill’s testimony is
supported by a contemporaneously-recorded
note, which indicated, under a heading titled,
“explained to client,” that, if a Superseding
Indictment were returned, Meszaros would
be exposed to over ten years in jail (see
Resp’t’s Ex.3 3)); (2) the credible testimony
by Brissenden, who testified that during the
May 2007 reverse proffer meeting (attended
by Meszaros), he had “no doubt” that: (a) the
24- to 30-month plea offer for the
Nexus/Livestreet fraud, as well as the 51- to
63-month plea offer for the Nexus/Livestreet
fraud and the Penta-Cycle fraud, were both
conveyed to Meszaros, and (b) the
government’s calculated Guidelines range of
235 to 293 months’ imprisonment for a
conviction on both frauds after trial was
discussed with Meszaros (the discussion of
the government’s Guidelines range is
corroborated in a memorandum prepared by
Brissenden to Scaring summarizing the
meeting); (3) the credible testimony by
Scaring, who stated that he never told
Meszaros that it was not possible for him to
receive a sentence of greater than five years
on the charges; (4) the credible testimony by
Having conducted an evidentiary hearing,
including an assessment of the credibility of
the witnesses, the Court makes several
findings with respect to Meszaros’s claims.
First, the Court finds that the following sworn
statements by Meszaros are false: (1) that he
believed throughout the case, until
sentencing, that his maximum statutory
exposure was five years; (2) that a potential
51- to 63-month plea offer made in
connection with the Superseding Indictment
was not communicated to him; and (3) that
the government’s Guidelines assessment of
235 to 293 months in jail, if he were to be
convicted at trial, was not communicated to
him during a reverse proffer with the
government held on May 2, 2007.
The Court bases these findings on the
overwhelming credible evidence presented
by the government at the evidentiary hearing
“Hr. Tr.” refers to the transcript from the evidentiary
hearing held on February 22 and March 24, 2016.
All citations to “Ex.” refer to the exhibits moved into
evidence during the evidentiary hearing.
2
3
2
Assistant U.S. Attorney, Allen Bode
(hereinafter, “AUSA Bode”) that, at the May
2007 reverse proffer, he discussed with
Meszaros and his attorney the 51- to 63month potential plea offer for both frauds, as
well as the 235- to 293-month maximum
sentence under the Guidelines Meszaros
faced if he went to trial on both frauds and
were convicted (AUSA Bode’s testimony is
corroborated by notes he prepared to be used
at the meeting); and (5) the credible
testimony by Investigator James Cox
(hereinafter, “Investigator Cox”), a criminal
investigator with the U.S. Attorney’s Office,
that, during a meeting in January 2007,
Investigator Cox specifically recalls telling
Meszaros that his exposure for both frauds
could exceed seventeen years if he were
convicted at trial. The incredible contention
by Meszaros that he believed even right up to
his sentencing that his maximum statutory
exposure was only five years is further belied
by the fact that, immediately following the
jury’s verdict, the government sought to
revoke his bail and stated, on the record, in
Meszaros’s presence, that Meszaros’s
sentencing exposure under the Guidelines
was “in the neighborhood of fifteen years.”
(Resp’t’s Ex. 9.)
his position. Although defense counsel may
not have made an explicit recommendation
that he should take the government’s plea
offer, the Court concludes that the failure to
do so was not ineffective in this particular
case, in light of Meszaros’s adamant
insistence throughout the case that he was
innocent, as well as the other efforts that were
made by defense counsel to make Meszaros
aware of the strength of the government’s
case and the risks of going to trial.
Finally, the Court finds that, even if
Meszaros had received all the factual
information and legal advice that he now
claims was lacking, he would not have
admitted his guilt and accepted a plea offer of
51 to 63 months. The Court finds credible
Scaring and Brissenden’s testimony that
Meszaros has adamantly maintained his
innocence and would not even consider a
guilty plea. That testimony aligns with this
Court’s
observations
of
Meszaros’s
demeanor throughout this case, including at
trial and sentencing.
In fact, at the
evidentiary hearing, when asked whether he
would have accepted a plea of 51 to 63
months if he knew he faced a sentence of 253
to 293 months, Meszaros responded, “I
would have had no choice.” (Hr. Tr. 95.)
That response is consistent with the Court’s
finding that, even to this day, Meszaros does
not believe he committed a crime and could
never have allocated to doing so. Thus, the
Court concludes that, even if defense counsel
explicitly and strongly recommended that he
take a plea offer of 51 to 63 months and even
knowing that he faced a potential sentence of
253 to 293 months under the Guidelines
(which the Court finds was communicated by
the Government to Meszaros), there is no
reasonable likelihood that Meszaros would
have accepted a guilty plea and
acknowledged his guilt under the particular
circumstances of this case.
The Court also finds that defense counsel
adequately advised Meszaros regarding
whether or not he should plead guilty. In
particular, through the meetings with the
government and independent discussions
between Meszaros and his defense counsel,
Meszaros was certainly aware of (1) the
strength of the evidence against him; and (2)
the possible sentence of incarceration that
could be imposed after a guilty plea as
opposed to a verdict after trial. More
specifically, the Court credits the testimony
of both Scaring and Brissenden that they met
with Meszaros specifically to show him the
strength of the government’s case, as well as
the corresponding weaknesses or pitfalls in
3
Accordingly,
having
failed
to
demonstrate either ineffective performance
or prejudice, Meszaros’s Section 2255
petition is denied in its entirety on the merits.
I.
At some point after the reverse proffer,
Brill prepared a document titled “Meszaros
Plea Offer (as of March 29).” (See Resp’t’s
Ex. 3.) It contains two headings: first, “plea
to mail fraud,” and second, “explained to
client.” (Id.) Under the first heading, Brill
outlines the calculation of the 24- to 30month
Guidelines
range
for
the
Nexus/Livestreet fraud (e.g. “Money
Amount = +4,” “Special Skill = +2”). (Id.)
Under the “explained to client” heading, Brill
makes reference to the anticipated
Superseding Indictment and writes “may be
detained if superced[ing] indictment” and
“exposed to over 10 years.” (Id.)
FACTUAL BACKGROUND
Meszaros was arrested in March 2006 in
connection with his involvement between
1999 and 2001 in the Nexis/Livestreet fraud.
Shortly after the arrest, Meszaros was
indicted on charges of wire fraud and
conspiracy to commit wire fraud. Meszaros
retained Brill to represent him. (Hr. Tr. 7:2224.)
In January 2007, Brill attended a reverse
proffer meeting with AUSA Bode and
Investigator Cox. (Hr. Tr. 100:18-101:7.)
Meszaros asserts that he did not attend this
meeting (Hr. Tr. 224:1-6), though AUSA
Bode and Investigator Cox both testified that
Meszaros was there (Hr. Tr. 236:10-13;
245:4-14); Brill believed, but was not certain,
that Meszaros was present (Hr. Tr. 101:1-10).
However, the parties agree that during the
reverse proffer, the government offered
Meszaros a plea agreement, whereby he
would plead guilty to the Nexus/Livestreet
fraud in exchange for a two-year sentence
and restitution of approximately $300,000.4
(Hr. Tr. 55:25-56:4.) They also discussed the
government’s ongoing investigation of the
Penta-Cycle fraud, and the government
indicated that it was considering seeking a
Superseding
Indictment
that
would
incorporate charges related to this scheme.5
(Hr. Tr. 237:5-13.)
Meszaros decided to replace Brill and, in
or around April 2007, he met with, and
ultimately agreed to retain, Scaring. (Hr. Tr.
16:12-16; Movant’s Ex. G.)
Scaring’s
associate, Brissenden, was also to assist in the
case. (Hr. Tr. 142:13-18.)
4
5
In May 2007, Brissenden and Meszaros
attended the reverse proffer session with the
government. (Hr. Tr. 173:20-174:1.) During
this meeting, AUSA Bode outlined the
government’s evidence against Meszaros in
connection with the Nexus/Livestreet fraud
and reiterated its two-year plea offer. (See
Hr. Tr. 177-79, 233.) The government also
discussed its ongoing investigation into the
Penta-Cycle fraud. (See generally Hr. Tr.
177-79.)
Both AUSA Bode and Brissenden
prepared notes in connection with the reverse
proffer. (See Resp’t’s Exs. 4, 6.) AUSA
Bode’s document was prepared in advance
The government submitted a page of handwritten
notes that AUSA Bode prepared to show Meszaros at
the meeting. (Hr. Tr. 246:10-247:6; Resp’t’s Ex. 2.)
The notes reflect the general terms of the agreement
delineated above, including the calculation of a
Guidelines range of 24 to 30 months for the
Nexus/Livestreet fraud. (Id.)
AUSA Bode also prepared a second page of notes,
which he believes were created for his personal
reference during this meeting. (See Hr. Tr. 253-54.)
The notes state: “[i]f superseding . . . Guidelines very
high.” (Movant’s Ex. J.)
4
of, and then presented during, the meeting.
(See Hr. Tr. 248-49.) The document is titled
“Guidelines” and is divided into two
columns, one labeled “Trial” and one labeled
“Plea.” (See Hr. Tr. 248-50; Resp’t’s Ex. 6.)
In the respective columns, AUSA Bode lists
the various Guidelines elements (e.g. loss
amount, use of sophisticated means, abuse of
trust) and calculates the corresponding
Guidelines range. (See id.) Under the “Trial”
heading, he calculates a Guidelines range of
235 to 293 months. (See id.) In the plea
column, his total is 51 to 63 months. (See id.)
could be done one of two ways. [Meszaros]
could plead to both schemes, or just plead to
the 1st scheme. . . . Assuming [he] pled guilty
to both schemes . . . the recommended
sentence would be 51-63 months. In the
alternative, if [he] were to plead guilty to just
the first scheme, . . . [it would] result[] in . . .
24-30[] months.” (Id.) Brissenden adds that,
if Meszaros were to plead only to the first
scheme, AUSA Bode indicated that he would
be willing to let the Penta-Cycle fraud “play
out for a time,” but AUSA Bode also
“admit[ed] he may eventually be required to
charge [Meszaros] with something, even if
there is full restitution.” (Id.)
After the meeting, Brissenden compiled
his notes from the reverse proffer and his
conversations with Meszaros into a
memorandum for Scaring. (Resp’t’s Ex. 4;
Hr. Tr. 174:20-24.) The memorandum
reports that, at the meeting “[w]e discussed
the current indictment and allegations
relating to the potential superseding
indictment.” (Resp’t’s Ex. 4.) The document
is broken into five sections: in the first
section, Brissenden describes the evidence
presented by the government during the
reverse
proffer
concerning
the
Nexus/Livestreet fraud; in the second
section, Brissenden provides Meszaros’s
“rebuttal” to the government’s evidence.
(See Hr. Tr. 177.) The third and fourth
sections provide the same information, but as
it relates to the Penta-Cycle fraud. (Id.) The
final section of the memorandum is titled
“Proposed Disposition.” (Resp’t’s Ex. 4.) It
states “[AUSA] Bode [c]laims that if he
throws everything at [Meszaros], based on a
loss amount of more than 2.5 million,
[Meszaros] could end up with a Guideline
calculation of 38 (2536-293 mos.).” (Id.) It
notes, however, that “[i]f [Meszaros] were to
plead guilty, [AUSA] Bode suggested it
On May 31, 2007, the Grand Jury
returned a Superseding Indictment charging
Meszaros in seven counts. See United States
v. Meszaros, No. 06-CR-0290 JFB/ARL,
2008 WL 5113425, at *1 (E.D.N.Y. Nov. 25,
2008). Counts One and Two pertained to his
involvement with the Nexus/Livestreet fraud;
Counts Three through Six related to the
Penta-Cycle fraud, and Count Seven alleged
that Meszaros committed the conduct in
Counts Three through Six while on bail.
Meszaros, 2008 WL 5113425, at *1.
In June 2007, after the Superseding
Indictment was returned, the government
moved to revoke Meszaros’s bail, arguing in
a letter to this Court that Meszaros was a
likely flight risk because his Guidelines range
under the Superseding Indictment was 235 to
293 months.
(See Movant’s Ex. B.)
Meszaros’s attorneys submitted a reply letter,
in which they characterized the government’s
assertion that Meszaros would be sentenced
to 235 to 293 months as “absurd” given the
circumstances and pointed out that the
government had recently proposed to resolve
6
Brissenden testified that his reference to 253 months
was a typographical error and that he intended to write
235 months. (See Hr. Tr. 182.)
5
sentence in the fifteen (15) year range”; he
added, however, “I do not believe that the
sentence Steve will receive will be anywhere
near that number and, more than likely, will
be in the range of six (6) to eight (8) years.”
(Id.)
both frauds with a plea agreement whereby
Meszaros would serve only 51 to 63 months.
(See Movant’s Ex. C.) The letter also noted
that
Meszaros
had
“declined
the
Government’s plea offers and ha[d] strongly
maintained his innocence.” (Id.) Meszaros
claims that he never saw either letter. (See
Hr. Tr. 70.)
Several months later, Brissenden
received a copy of Meszaros’s pre-sentence
report (“PSR”). The PSR recommended a
sentence of 220 months. (Decl. of Steven
Meszaros (“Decl.”) ¶ 13, ECF No. 1-1 (14cv-1076).) On April 22, 2009, this Court
sentenced Meszaros to 151 months in prison.
(Decl. ¶ 16.)
Meszaros was allowed to remain on bail,
and he set about preparing his defense. He
visited his attorneys’ office regularly to
review evidence and discuss his case. (Hr.
Tr. 162:23-163:9.) Scaring and Brissenden
also started to prepare for trial; however, as
they reviewed the evidence, they began to
have concerns about Meszaros’s defense.
(Hr. Tr. 186:2-14.) They testified that they
endeavored to convey their misgivings to
Meszaros, but he appeared unaffected. (Hr.
Tr. 186:9-14.) Accordingly, they testified,
they therefore convened a meeting with
Meszaros and his wife, who was paying for
his defense, for the purpose of presenting the
weaknesses in the case to both of them, with
the hope that Ms. Meszaros might be able to
reason with her husband. (Hr. Tr. 186:11187:7.) Meszaros denies that such a meeting
with his wife transpired. (Hr. Tr. 229:7-15.)
Meszaros appealed his conviction to the
Second Circuit; he claimed certain errors
regarding the Court’s rulings during trial and
its Sentencing Guidelines calculations,
including denial of severance, failure to
consider childhood history for downward
departure, and that the sentence given on
Count Two exceeded the statutory maximum.
His appeal did not challenge the efficacy of
his representation. The Second Circuit held
that the sentence on Count Two exceeded the
statutory maximum and remanded for
resentencing on this Count, but affirmed the
remainder of the judgment. Meszaros was
resentenced in February 2011. (ECF Nos.
207, 208 (06-cr-503).) Although his sentence
on Count Two was reduced, his total sentence
remained 151 months, based on the sentences
imposed for the other Counts.
Meszaros did not accept a plea and
proceeded to trial, where the jury found him
guilty on Counts One through Six. After the
verdict was announced, AUSA Bode moved
in open court, in Meszaros’s presence, that
Meszaros be held in custody until sentencing,
noting that “the defendant’s Guidelines are
quite high. . . . [M]y recollection . . . [is that
they] are in the neighborhood of 15 years.”
(Resp’t’s Ex. 9.)
II.
THE PENDING MOTION
On February 18, 2014, Meszaros,
proceeding pro se, filed the current motion
pursuant to 28 U.S.C. § 2255 to vacate his
sentence based on ineffective assistance of
counsel. Specifically, Meszaros alleged that,
in the fall of 2006 and again at the reverse
proffer in May 2007, the government made
him an offer whereby he could plead guilty to
Shortly after the trial, in a letter dated July
10, 2008, Scaring wrote to Ms. Meszaros
regarding her husband’s sentencing.
(Movant’s Ex. A.) He stated “[a]s you know,
the government is going to be arguing for a
6
the Nexus/Livestreet fraud and serve a twoyear sentence, and the government would
allow the Penta-Cycle fraud to be resolved
civilly.7 (Decl. ¶ 3.) He contended that he
sought Scaring’s advice on whether to take
the plea and that Scaring told him that it was
not a good offer because his maximum
exposure if convicted was only five years.
(Decl. ¶ 5.) Meszaros further asserted that
Scaring repeatedly assured him that his
maximum exposure was five years, even after
the Superseding Indictment was returned.
(Decl. ¶ 8.) In fact, Meszaros maintained that
it was not until he received the PSR, which
recommended a sentence of 220 months, that
he learned that his exposure might exceed
five years. (Decl. ¶ 13.) Meszaros claimed
that Scaring and Brissenden did not meet the
minimum objective standards of performance
for defense counsel because they failed to
accurately advise him regarding his
maximum sentencing exposure and that this
failure prejudiced him because, if he had been
“properly informed . . . that [his] maximum
sentence exposure was 20 years and not 5
years[,] [he] would have accepted the
government plea offer.” (Decl. ¶ 15.)
Meszaros requested an evidentiary hearing
on his motion.
sentence of 235 to 293 months, and that the
response submitted on behalf of Meszaros,
while characterizing such a sentence as
“absurd” based on the circumstances of the
case, recognized that this range was the
government’s
calculation.
(Id.)
Additionally, the government disputed that it
had ever offered a two-year plea agreement,
contending that it had only offered the 51- to
63-month sentence. (See Opp’n 30.)
Meszaros submitted his reply on May 19,
2014. He contended that Scaring and
Brissenden had never informed him about
either the 51- to 63-month plea offer or his
maximum sentence under the Guidelines of
235 to 293 months, and that the government’s
Opposition was the first time he had been
made aware of this information. (Reply
Mem. (“Reply”) ¶¶ 26-27, ECF No. 7 (14-cv1076).)
He acknowledged that both
Guidelines ranges were contained in the June
2007 correspondence concerning his bail
revocation, but he alleged that he never saw
either letter. (Reply ¶¶ 22-23.) Meszaros
asserted that Scaring and Brissenden’s failure
to inform him about the 51- to 63-month plea
offer, as well as his maximum sentencing
exposure of 235 to 293 months, prevented
him from making an informed decision about
whether to proceed to trial and plainly
qualified as ineffective assistance of counsel.
Additionally, he refuted the government’s
position that a two-year plea had not been
offered by providing a declaration from Brill,
in which Brill attested that the government
made such an offer. (Decl. of Steven Brill ¶
3, ECF No. 7 (14-cv-1076).)
The government opposed Meszaros’s
motion on April 11, 2014 and argued that
Meszaros was well-aware of his sentencing
exposure and pointed to the parties’
correspondence from June 2007 concerning
the revocation of Meszaros’s bail, which
referenced Meszaros’s maximum sentence
under the Guidelines. (Resp’t’s Opp’n to
Mot. to Vacate (“Opp’n”) 31, ECF. No. 216
(06-cr-503).) Specifically, the government
noted that its letter from June 1 specifically
mentioned that Meszaros could face a
On April 21, 2015, this Court granted
Meszaros’s request for a hearing, concluding
that “Meszaros has presented a plausible
7
The alleged plea also required Meszaros to make
restitution payments. However, these payments are
not at issue in the instant petition.
7
Sixth Amendment claim, and there are
disputed facts beyond the record that need to
be resolved at an evidentiary hearing.” (ECF
No. 11 (14-cv-1076).) Specifically, this
Court found that “an evidentiary hearing is
warranted, both to determine whether
counsel’s performance was deficient and
whether Meszaros actually would have
consented to a plea agreement.” (Id.) The
Court’s April 21 Order also directed that
Meszaros be appointed counsel to represent
him during the hearing. (Id.)
III.
husband. (See Hr. Tr. 12-13.) After this
exercise, Ms. Meszaros testified that she
asked Scaring, “You think we can win this?”,
to which he allegedly replied, “Yes.” (Hr. Tr.
13:12-13.)
She then supposedly asked
Scaring, “What’s the worst case scenario?”,
to which he allegedly replied, “Five years.”
(Hr. Tr. 13:19-22.) She testified that this
advice “had all the impact in the world” on
the couple’s decision to try the case rather
than take the plea. (See Hr. Tr. 15:22-16:19.)
It was her understanding that the same
two-year plea was offered again during the
reverse proffer in May 2007, but she testified
that her husband told her “[Scaring] still is
advising the worst case scenario is five years.
So we’re you know, standing the course,
continuing on.” (See Hr. Tr. 16:22-17:10.)
Similarly, she testified that, after the
Superseding Indictment was issued, Scaring
did not revise Meszaros’s estimated
sentencing exposure. (Hr. Tr. 18:3-12.)
Even on the day of the jury deliberations, she
contends that Scaring reiterated that her
husband’s maximum sentencing exposure
was five years. (Hr. Tr. 30:4-14.)
HEARING TESTIMONY
The Court conducted the hearing over
two days on February 22 and March 14, 2016
and heard testimony from Ms. Meszaros,
Meszaros, Brill, Scaring, Brissenden,
Investigator Cox, and AUSA Bode.
Meszaros was represented at the hearing by
Gary Schoer, Esq.
The testimony is
summarized in relevant part below.
A.
Ms. Meszaros
Ms. Meszaros testified that, in the fall of
2006, Brill informed her and her husband that
the government had made a plea offer with a
two-year sentence. (See Hr. Tr. 8.) Although
they discussed the offer with Brill at the time,
they had been advised to seek a second
opinion on the plea from another attorney, so
they reached out to Scaring. (See Hr. Tr. 10.)
They retained Scaring in April 2007.
(Movant’s Ex. G.)
She testified that she did receive
Scaring’s July 10, 2008 letter in which he
advised that the government would likely
seek a sentence of fifteen years. (See Hr. Tr.
28.) The Court asked Ms. Meszaros why, if
she had been repeatedly assured that her
husband’s maximum exposure was five
years, she did not come to the Court and
complain that she had been misled about her
husband’s potential sentence after Scaring’s
letter informed her that he might face as many
as fifteen years. (See Hr. Tr. 48.) She replied
that “at the end of the day, your Honor, when
you’re up against this, you don’t think
anybody is going to believe anything that you
are saying. At the end of the day, I was in a
contentious relationship with my own
attorney.” (Hr. Tr. 48:20-49:4.)
She stated that she was invited to attend a
meeting with her husband, Scaring, and
Brissenden on April 27, 2007. (See Hr. Tr.
12.) She testified that Scaring started the
meeting by informing her that her husband
was “facing significant accusations” and “a
significant amount of time.” (Hr. Tr. 12:1619.) The group then proceeded to review
some of the “difficult” evidence against her
8
She conceded that her husband had
continued to assert his innocence. (See Hr.
Tr. 35:17-20 (“Q: In all your conversations,
up to and including today, [your husband]
asserted his innocence? A: He asserted his
innocence, and we paid an attorney to guide
us accordingly.”).)
B.
would allow . . . the [Penta-Cycle] situation
to play out in civil court.” (See Hr. Tr. 64.)
Meszaros stated that immediately
following the meeting, he and Brissenden
walked to the parking lot to discuss what had
transpired. (See Hr. Tr. 65.) Brissenden
purportedly told him not to worry and that the
government was just trying to scare him into
taking a plea, an assessment which Scaring
allegedly confirmed when the pair called
him. (Id.) Meszaros reiterated that neither
the government’s proposed Guidelines range
of 235 to 293 months, nor the 51- to 63month plea offer, were discussed at the
meeting. (Hr. Tr. 234:18-25.)
Meszaros
Meszaros took the stand after his wife.
He testified that in the fall of 2006, Brill
relayed to him a two-year plea offer from the
government in exchange for pleading guilty
to the Nexus/Livestreet fraud. (Hr. Tr. 55:2356:4.) In his moving papers, he also takes the
position that, in conjunction with this offer,
the government agreed to permit the PentaCycle fraud to be resolved civilly. (Decl. ¶
3.)
He further stated that, after his
conversation with Brill, it was his
understanding that his maximum exposure in
connection with the Nexus/Livestreet
charges was five years. (Hr. Tr. 56:8-11.)
However, he also admitted that as revelations
about the Penta-Cycle fraud crystalized, “the
conversation veered from five years to
potentially more,” though he did not recall
any specifics. (Hr. Tr. 56:15-23.)
When the Superseding Indictment was
returned, charging Meszaros for his
involvement with both frauds, he stated that
there was no discussion about how his
exposure might have changed, rather the
focus was on severing the new counts from
the original ones. (See Hr. Tr. 66.)
Meszaros denied seeing either the
government’s June 1, 2007 letter that
referenced the maximum Guidelines
sentence of 235 to 293 months or the June 4
letter, submitted on his behalf, which
referenced the 51- to 63-month offer and
acknowledged the government’s calculation
of the Guidelines range. (See Hr. Tr. 225-26.)
Meszaros testified that he was advised to
seek a second opinion on the merits of the
plea offer and so he went to Scaring. (See Hr.
Tr. 57.) During their initial meeting, Scaring
purportedly stated that the two-year offer was
“not a good offer” because, if convicted,
Meszaros would likely only be subject to a
sentence of three to five years. (See Hr. Tr.
58.)
Meszaros
asserted
that
Scaring
repeatedly assured him that his maximum
sentencing exposure was five years. (See Hr.
Tr. 79.) In fact, Meszaros maintains that he
did not become aware that his exposure
significantly exceeded five years until
Brissenden advised him that the PSR
recommended a sentence of 220 months.
(See Hr. Tr. 83; Decl. ¶ 13.)
Meszaros also testified regarding the
reverse proffer conducted on May 2, 2007. In
particular, he stated that, at the end of the
meeting, AUSA Bode “repeated his offer of
the two-year offer . . . [a]nd added that he
Finally, Meszaros again asserted that, if
he had known that he faced a potential
9
sentence of 235 to 293 months, or even his
sentence of 151 months, he would have
accepted the government’s plea offer. (Hr.
Tr. 79:25-80:15.)
C.
Scaring recalled discussing the two-year
plea deal after the reverse proffer.8 (See Hr.
Tr. 127.) Scaring explained that he had
concerns about the two-year agreement
because it would only resolve the
Nexus/Livestreet fraud and would therefore
leave Meszaros exposed on the Penta-Cycle
fraud. (Id.) Scaring stated that he explained
this reservation to Meszaros. (See Hr. Tr.
127-28.) He recalled that the government had
also proposed resolving both frauds with the
51- to 63-month deal. (See Hr. Tr. 127:2023.) He explained, however, that, “in any
event, Mr. Meszaros emphatically claimed he
was innocent of both [frauds], so it never
went anywhere.” (Hr. Tr. 128:13-14.)
Brill
Brill testified that he attended a reverse
proffer session with the government in
January 2007, at which time Meszaros had
only been charged in connection with the
Nexus/Livestreet fraud and, therefore, faced
a maximum exposure of ten years. (Hr. Tr.
101:23-102:8.)
Brill also discussed the notes he prepared
after this meeting, titled “Meszaros Plea
Offer (as of March 29).” (Resp’t’s Ex. 3.) He
acknowledged that in the section of the notes
under the heading “explained to client,” he
had written that if a Superseding Indictment
were returned, Meszaros would be subject to
a sentence of more than ten years (see Hr. Tr.
109), and testified that he would not have
placed this note in that section if he had not
discussed it with Meszaros (see Hr. Tr. 109110).
D.
Scaring testified that he did not have a
specific recollection of discussing the June
2007 bail letters with Meszaros, but said that
he and Brissenden typically would not submit
a bail letter without first discussing it with the
client. (See Hr. Tr. 138-39.)
Scaring testified that, as they prepared for
trial, he and Brissenden became increasingly
concerned that there were “serious problems”
with the case and that Meszaros did not have
a realistic view of the evidence. (See Hr. Tr.
133, 160:4-6 (“[W]e believed at that time we
had a very bad case and the chances of losing
were pretty high.”).) They attempted to
convey their concerns to Meszaros, but said
that it was difficult to do so because
“[Meszaros] was not buying anything. He
would spin the evidence. He had a view of
what his defense was. He believed it.” (Hr.
Tr. 129:7-12, 162:15-16 (“[W]e had some
serious problems and . . . Mr. Meszaros
wasn’t listening to us.”).) They were also
concerned that Meszaros was not sharing the
weaknesses in his defense with his wife, even
Scaring
According to Scaring, Meszaros came to
him, not for a second opinion on the plea
offer, but because “he wanted to go to trial
because he said that he didn’t do anything
wrong. . . . He came to us because he did not
want to take a plea and wanted to go to trial.
. . . He never, ever said to us that he had
committed any crime.” (Hr. Tr. 143:19144:4; see also Hr. Tr. 146:23-24 (“[H]e was
coming to us to try the case, not to negotiate
a plea. . . .”).)
evidence to make such a representation.” (Hr. Tr.
155:8-15.)
8
Scaring denied opining on whether Meszaros should
take the two-year plea during their initial meeting,
explaining that, at that time, he “didn’t have sufficient
10
though she was financing his defense. (See
Hr. Tr. 154:10-13 (“[I]t was becoming
clearer to us that we had issues going forward
and we were not satisfied that Mr. Meszaros
was being honest with himself, or with his
family,
regarding
his
exposure.”).)
Accordingly, Scaring testified that he and
Brissenden met with Meszaros and Ms.
Meszaros together, in order to “la[y] out . . .
all the problems with the case.” (See Hr. Tr.
129.) He also testified that they discussed the
plea options during this meeting and the fact
that Meszaros would face “significant” jail
time if he lost at trial. (See Hr. Tr. 132, 160.)
wanted to go to trial, even in the face of
damaging evidence. (See, e.g., Hr. Tr. 186:511 (“[I was] assessing th[e] discovery . . .
[and] grew more concerned about our
prospects for trial. And then there were
conversations with Mr. Meszaros. He was
adamant that he still wanted to go to trial.”),
187.)
Brissenden did not believe that
Meszaros was grasping the strength of the
case against him, despite “multiple
conversations” about weaknesses in his
defense. (See Hr. Tr. 186-87.) Brissenden
testified that he and Scaring therefore invited
Ms. Meszaros to attend one of their meetings
with Meszaros, hoping that, if they presented
the problematic evidence to her, she could
help “drive home the idea that [it] was going
to be a difficult trial to win at” (Hr. Tr.
186:15-18), and help him see that “there was
a very serious risk that he was going to be
convicted if he insisted on taking this case to
trial” (Hr. Tr. 201:5-7).
Scaring also testified that he never told
Meszaros that it was not possible for him to
receive a sentence of greater than five years.
(Hr. Tr. 132:11-14.) Likewise, he denied
ever telling Ms. Meszaros that the “worst
case scenario is five years.” (Hr. Tr. 149:69.) He explained “[i]t was never an issue as
to whether or not [Meszaros] faced less than
five years.” (Hr. Tr. 165:16-17.)
E.
However, Brissenden testified that the
meeting did not have the “desired effect”; he
explained: “Mr. Meszaros was adamant in
maintaining his innocence all along. I don’t
think that meeting changed anything in that
regard. He was always a strong proponent of
taking the case to trial.” (See Hr. Tr. 186-87.)
Brissenden
Brissenden testified that he attended the
May 2007 reverse proffer along with
Meszaros and that he had “no doubt” that the
government’s calculated Guidelines range of
235 to 293 months was discussed (Hr. Tr.
188:18-25), as well as both the 24- to 30month and the 51- to 63-month plea offers
(Hr. Tr. 179, 180:19-22).
Brissenden was asked whether he ever
advised Meszaros that it would be in his best
interest to take a plea, and Brissenden
responded, “Yes. I think that’s fair to say. I
don’t know that we used that phrase, but I –
certainly that was what we were trying to
convey to Mr. Meszaros.” (Hr. Tr. 205:2-7.)
He added, “We were trying to sort of pressure
him all along to consider taking a plea. But
those conversations didn’t really go
anywhere.” (Hr. Tr. 206:3-6.)
Brissenden also testified that Meszaros
continued to profess his innocence and never
gave any indication that he wanted to plea.
(See, e.g., Hr. Tr. 181:22-182:2, 187:9-10,
197:5-9, 205:11-14 (“Q: Did you have any
negotiations with the government at that
point with respect to a plea? A. No, because
there was never the slightest inclination in the
part of our client to go down that road.”).) He
described Meszaros as adamant that he
Brissenden testified that he was sure that
he had discussions with Meszaros about the
government’s
Guidelines
calculation,
11
including in the context of explaining how
the Guidelines operated, though he could not
recall “word-for-word” any of the
discussions. (Hr. Tr. 194:21-195:10.) He
also testified that “we had the backdrop of the
government’s Guideline calculation in
forming the discussion that we were having.
So we were aware of what the government
was advocating for a Guideline sentence if he
should be convicted at trial.” (Hr. Tr. 201:1216.)
recollection to the fact that seventeen years
was a long sentence in a white-collar case.
(Hr. Tr. 238:14-16.)
G.
Finally, AUSA Bode took the stand. He
likewise testified that Meszaros attended the
January 18, 2007 proffer and that Meszaros
was informed that the government was
investigating the Penta-Cycle fraud and that
a Superseding Indictment would result in a
Guidelines range in excess of ten years. (See
Hr. Tr. 245, 246:23-24.) He testified that he
prepared notes for his personal use during the
proffer that stated that the Guidelines range
accompanying a Superseding Indictment
would be “very high.”9 (See Hr. Tr. 255;
Resp’t’s Ex. J.)
Finally, the Court asked Brissenden
whether, when he spoke with Meszaros after
the release of the PSR, which recommended
a sentence of 220 months, Meszaros
expressed shock or disbelief about this figure,
in light of the fact that Meszaros contends
that prior to that point he believed that his
exposure was no more than five years. (See
Hr. Tr. 211-12.) Brissenden responded that
Meszaros was upset, but did not seem
shocked. (Hr. Tr. 211:23-212:12.)
F.
AUSA Bode also provided testimony
regarding the May 2, 2007 reverse proffer.
He stated that both the 51- to 63-month plea
agreement and the 235- to 293-month
maximum Guidelines range were discussed.
(See Hr. Tr. 250.) He testified that both
ranges were explicitly calculated in the notes
he presented during the meeting and that he
went through these calculations with
Meszaros “step-by-step.”10 (Id.) He stated:
“I walked through [my notes] with Mr.
Meszaros and discussed how if he was
interested, I would go to my supervisors and
seek a plea agreement for . . . 51 to 63
months. And in essence I was leaning on the
guidelines, giving him the benefit of every
doubt for those guidelines, but that after trial,
the way I saw the guidelines it was 235 to 293
months.” (Hr. Tr. 250:13-19.)
Investigator Cox
Investigator Cox testified that he attended
the January 18, 2007 reverse proffer and that
Meszaros was present as well. (Hr. Tr.
236:10-13.) He recalled discussing the
Guidelines calculations for both the
Nexus/Livestreet fraud by itself, and what the
Guidelines range would look like in the event
that charges were added for the Penta-Cycle
fraud. (Hr. Tr. 237:20-23.) In fact, he
testified that he specifically recalled looking
at Meszaros and telling him that his exposure
if sentenced for both frauds could exceed
seventeen years. (Hr. Tr. 238:10-13, 243:58.) He attributed the specificity of this
9
Although these notes were not presented during the
meeting, their reference to a “very high” sentence
corroborates AUSA Bode’s testimony that he
conveyed this information to Meszaros.
10
AUSA Bode
reverse proffer discussions to walk through Guidelines
calculations and inform the defendant that, “[i]f you
are interested, let me know and I’ll take it to the
supervisors to see if a plea agreement, a plea offer can
be made.” (Hr. Tr. 245.)
AUSA Bode testified that it is his practice during
12
IV.
FINDINGS OF FACT
a plea deal that would allow him to plead to
both frauds with a recommended sentence of
51 to 63 months (Resp’t’s Ex. 4); his
statement is consistent with AUSA Bode’s
notes, which include a calculation of a 51- to
63-month Guidelines range in the section of
the document regarding pleas (Resp’t’s Ex.
6). Further, this plea offer was mentioned in
Scaring’s June 2007 letter to the Court on the
issue of Meszaros’s bail. (Movant’s Ex. C
(“[T]he Government ha[s] recently proposed
a disposition whereby the Defendant would
plead to (sic) guilty to both the
Nexus/Livestreet
and
Penta-Cycle
allegations in return for a sentence in the
range of 51 to 63 months.”).) Though
Meszaros maintains that he did not see this
letter, its reference to the plea agreement is
consistent with the position that the
agreement was discussed during the May
2007 meeting, at which Meszaros was
unquestionably present.
Based on the evidence in the record, the
parties’ written submissions, and the
testimony elicited during the evidentiary
hearing, including an assessment of the
credibility of the witnesses, the Court makes
the following findings of fact:
A.
Meszaros Was Informed About the
51- to 63-Month Plea Offer11
Although Meszaros asserts in his reply
submission that he did not become aware of
the government’s 51- to 63- month plea offer
until the government submitted its opposition
to the instant petition in April 2014, the Court
concludes that Meszaros was informed about
the offer during the May 2, 2007 reverse
proffer. AUSA Bode and Brissenden both
credibly testified that this offer was explicitly
discussed during this meeting.
Their
testimony is corroborated by their
contemporaneous notes. (See Resp’t’s Exs.
4, 6); see also United States v. NunezPolanco, 20 F. Supp. 3d 473, 480 (S.D.N.Y.
2014) (relying on circumstantial evidence,
including attorney’s notes, to conclude that a
plea offer had been communicated to the
defendant).
Brissenden’s memorandum
states that the government offered Meszaros
B.
Meszaros Was Aware His
Maximum Sentencing Exposure
Exceeded Five Years
Second, the Court rejects Meszaros’s
contention that Scaring repeatedly assured
him that his maximum exposure would not
exceed five years.12 Instead, the Court
11
Meszaros admits that he received the initial two-year
plea offer for the Nexus/Livestreet fraud, and the
Court independently finds that such an offer was made
and communicated to Meszaros. However, the Court
does not find (as Meszaros has suggested) that this
offer included any representation that the Penta-Cycle
fraud would be handled civilly and no further criminal
charges would be brought. Instead, the credible
evidence demonstrates that, as part of the initial plea
offer, the potential for additional charges based on the
Penta-Cycle fraud was left unresolved (although a
potential civil resolution was possible).
lost would be two to three years. (See Decl. of
Jacqueline Gould, ECF No. 4 (14-cv-1076).) Her
husband’s declaration states that his wife related this
information to him. (See Decl. of Charles A. Gould
IV, ECF No. 4 (14-cv-1076).) This testimony is
hearsay (and double hearsay), and does not alter the
Court’s analysis. First, Ms. Gould does not state that
Scaring made this statement in Meszaros’s presence,
so it is of little probative value in assessing the advice
rendered to Meszaros. See Munoz v. United States,
No. 07 CIV. 2080, 2012 WL 666783, at *5 (E.D.N.Y.
Feb. 29, 2012) (discounting the defendant’s relative’s
testimony that counsel said he could win the case and
that the defendant would not face a sentence of more
than three years because testimony had minimal
corroborative value given that relatives were not
present for any conversations between counsel and the
12
In support of this argument, Meszaros submits
declarations from his sister and brother-in-law. His
sister avers that during the trial, she heard Scaring state
that the worst sentence Meszaros would receive if he
13
concludes that Meszaros was aware that his
maximum exposure exceeded five years and,
more specifically, that the government
estimated his sentencing Guidelines range for
both frauds to be between 235 and 293
months.
indictment carried a potential term of
imprisonment of twenty years).
Separately, the record does not support
the conclusion that Meszaros actually
believed that his maximum exposure was five
years. Meszaros testified that he knew that
he faced a five-year sentence solely for the
counts related to the Nexus/Livestreet fraud
(Hr. Tr. 56:8-11), and (as with Scaring) it is
not credible that he did not believe that his
sentence exposure would not increase if he
were convicted of the Penta-Cycle fraud as
well. In fact, Meszaros admitted as much,
acknowledging that as his responsibility for
the Penta-Cycle fraud came into focus, “the
conversation veered from five years to
potentially more.”
(Hr. Tr. 56:15-23.)
Furthermore, Brill’s notes indicate that he
informed Meszaros that, if a Superseding
Indictment were issued, Meszaros would be
“exposed to over 10 years.” (Resp’t’s Ex. 3.)
Investigator Cox even testified that he had a
specific recollection of looking at Meszaros
and informing him that his exposure could
exceed seventeen years. (Hr. Tr. 238:12-13.)
Scaring credibly denies representing that
Meszaros’s maximum exposure would not
exceed five years. (Hr. Tr. 132:11-14 (“Q:
Did you ever tell Steven Meszaros that it was
not possible for him to receive a sentence of
greater than five years? A: No.”).) Scaring
testified that he knew that the two counts
related to the Nexus/Livestreet fraud each
carried a five-year sentence (Hr. Tr. 142:24143:1); thus, it is implausible that he would
have represented that Meszaros’s maximum
exposure was only five years after the
Superseding Indictment was returned
incorporating the Penta-Cycle fraud, which
involved more victims and a greater loss
amount.13 In like manner, it is implausible
that Brissenden or Scaring would have
informed Meszaros that his maximum
exposure was five years after being informed
during the reverse proffer in May 2007 that it
could exceed twenty-four years.14 See also
Colotti v. United States, No. 04 CR 1110-02,
2012 WL 1122972, at *15 (S.D.N.Y. Apr. 4,
2012) (rejecting the contention that counsel
would advise defendant that his maximum
sentence could not exceed thirteen years
when both the attorney and the client had
been made well-aware during the pretrial
process that the offenses charged in the
Finally, Meszaros’s contention that it was
not until he received the PSR that he knew
that his sentencing exposure exceeded five
years, is incredible in light of his apparent
failure to react to what should have been
shocking news. Brissenden testified that
when Meszaros received the PSR
recommending a sentence of 220 months,
Meszaros appeared concerned, but not
minimum loss amount of $2.5 million. (See Resp’t’s
Exs. 4, 6.)
defendant). Additionally, it occurred after Meszaros
had already proceeded to trial, and therefore has
limited bearing on his decision to forgo the plea offers.
14
Of course, Scaring was not present during the
reverse proffer when the government shared this
information. However, he was advised about the
government’s Guidelines range in the memorandum
that Brissenden prepared for him. (See Resp’t’s Ex.
4.)
As reflected in Brissenden and AUSA Bode’s
respective notes from the May 2007 reverse proffer,
the Nexus/Livestreet fraud involved only one investor
and a loss amount of $1.9 million, whereas the PentaCycle fraud involved at least two other investors and a
13
14
surprised, and never questioned Brissenden
about why this number was so much greater
than what he had been allegedly assured was
his maximum exposure. (Hr. Tr. 211:23212:12.) Presumably, if Meszaros believed
to that point that his maximum exposure was
five years, he would have made some protest,
or at least some inquiry, when he learned that
the government had recommended a sentence
nearly four times greater.15 Additionally,
when Meszaros appeared before this Court
and was sentenced to 151 months, he never
stated that his attorneys had failed to inform
him that he could be sentenced to more than
five years. Ms. Meszaros testified that they
did not raise this issue with the Court because
they feared that they would not be believed
(Hr. Tr. 48:19-49:4), but the Court does not
find this explanation persuasive in light of all
the evidence presented at the hearing.
both make reference to the 235- to 293-month
range. Again, while Meszaros claims he did
not see this correspondence at the time it was
filed, the reference to the Guidelines range
supports the conclusion that it was discussed
during the reverse proffer, in Meszaros’s
presence.
V.
LEGAL STANDARD
A.
Section 2255
Pursuant to 28 U.S.C. § 2255, a prisoner
sentenced in federal court may “move the
court which imposed the sentence to vacate,
set aside or correct the sentence” when the
petitioner claims “that the sentence was
imposed in violation of the Constitution or
laws of the United States, or that the court
was without jurisdiction to impose such
sentence, or that the sentence was in excess
of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). With respect to ineffective
assistance of counsel claims under Section
2255, the Supreme Court has stated that “in
most cases a motion brought under § 2255 is
preferable to direct appeal for deciding
claims of ineffective-assistance.” Massaro
v. United States, 538 U.S. 500, 504 (2003).
The record further evidences that
Meszaros was made aware of his actual
maximum sentencing exposure. Both AUSA
Bode and Brissenden credibly testified that,
during the reverse proffer on May 2, 2007,
Meszaros was advised that he would face a
Guidelines sentence of 235 to 293 months
under
the
anticipated
Superseding
Indictment. (Hr. Tr. 182 (Brissenden), 24850 (AUSA Bode).) Their testimony is also
substantiated
by
their
respective,
contemporaneously-prepared notes regarding
the proffer, which both make reference to the
235- to 293-month Guidelines range. (See
Resp’t’s Exs. 4 (Brissenden writes: “[AUSA]
Bode [c]laims that if he throws everything at
[Meszaros], . . . [Meszaros] could end up with
a Guideline calculation of 38 (2[35]-293
mos.).”), 6.) In addition, the government’s
June 2007 bail letter and Scaring’s response
B.
Ineffective Assistance of Counsel
Under the standard promulgated in
Strickland v. Washington, 466 U.S. 668
(1984), a defendant is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness,” id. at 688, and (2) “there is
15
An e-mail exchange around this time is especially
telling on this point. In preparation for Meszaros’s
sentencing, Brissenden e-mailed him a draft of
(presumably) the sentencing memorandum Brissenden
had prepared, to which Meszaros replied, “[f]antastic
work, hard to believe we lost the case!! Thank you so
much.” (Movant’s Ex. C at 158.) It is hard to imagine
such an upbeat exchange if Meszaros truly believed
that he had been misled by his attorneys for months.
15
a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different,”
id. at 694.
1.
45. There is no per se rule that defense
counsel must always expressly advise the
defendant whether to take a plea offer. Id. at
48. “[T]he ultimate decision whether to
plead guilty must be made by the defendant,”
and a “lawyer must take care not to coerce a
client into either accepting or rejecting a plea
offer.” Id. at 45
Performance Prong
With respect to Strickland’s performance
prong, “[c]onstitutionally effective counsel
embraces a ‘wide range of professionally
competent assistance,’ and ‘counsel is
strongly presumed to have rendered adequate
assistance and made all significant decisions
in the exercise of reasonable professional
judgment.’” Greiner v. Wells, 417 F.3d 305,
319 (2d Cir. 2005) (quoting Strickland, 466
U.S. at 690). The performance inquiry
examines the reasonableness of counsel’s
actions under all circumstances, keeping in
mind that a “‘fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight.’” Id. (quoting Rompilla v. Beard,
545 U.S. 374, 408 (2005)). In assessing
performance, a court “must apply a ‘heavy
measure of deference to counsel’s
judgments.’” Id. (quoting Strickland, 466
U.S. at 691).
In recognition of the challenge of
“steer[ing] a course between the Scylla of
inadequate advice and the Charybdis of
coercing a plea,” there is a “wide range” of
what qualifies as reasonable advice
pertaining to the acceptance or rejection of a
plea offer. See id. The Second Circuit has
advised that:
[c]counsel rendering advice in
this critical area may take into
account, among other factors,
the defendant’s chances of
prevailing at trial, the likely
disparity in sentencing after a
full trial as compared to a
guilty plea (whether or not
accompanied by an agreement
with
the
government),
whether the defendant has
maintained his innocence, and
the
defendant’s
comprehension of the various
factors that will inform his
plea decision.
In the context of plea negotiations,
“counsel has the duty to communicate formal
offers from the prosecution to accept a plea
on terms and conditions that may be
favorable to the accused.” Missouri v. Frye,
132 S. Ct. 1399, 1408 (2012). Additionally,
“defense counsel ‘must give the client the
benefit of counsel’s professional advice on
this crucial decision’ of whether to plead
guilty.” Purdy v. United States, 208 F.3d 41,
44 (2d Cir. 2000) (quoting Boria v. Keane, 99
F.3d 492, 497 (2d Cir. 1996)). As part of this
advice, an attorney “should usually inform
the defendant of the strengths and
weaknesses of the case against him, as well
as the alternative sentences to which he will
most likely be exposed.” Purdy, 208 F.3d at
Id.
2.
Prejudice Prong
The second prong of the Strickland
standard focuses on prejudice to the
petitioner. Strickland, 466 U.S. at 694. A
petitioner is required to show that there is “a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.” Id.
16
“Reasonable probability” means that the
errors were of a magnitude such that they
“‘undermine[] confidence in the outcome.’”
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) (quoting Strickland, 466 U.S. at 694).
“‘An error by counsel, even if professionally
unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the
error had no effect on the judgment.’”
Lindstadt v. Keane, 239 F.3d 191, 204 (2d
Cir. 2001) (quoting Strickland, 466 U.S. at
691). Moreover, “[u]nlike the determination
of trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice may be made with the benefit of
hindsight.” Hemstreet v. Greiner, 491 F.3d
84, 91 (2d Cir. 2007) (internal citation and
quotation marks omitted).
petitioners may establish that they would
have accepted a plea by providing a credible
sworn statement to that effect that is
supported by objective evidence. Vargas v.
United States, 951 F. Supp. 2d 531, 550
(S.D.N.Y. 2013). Objective evidence may
come in the form of a “significant disparity”
between the sentence recommended in the
plea offer and the sentence imposed after a
conviction at trial.16 See Pham v. United
States, 317 F.3d 178, 182 (2d Cir. 2003).
However, such a disparity in outcomes does
not mandate a finding of prejudice. See Page
v. Martuscello, No. 10 CIV. 9699 JSR AJP,
2011 WL 3678820, at *27 (S.D.N.Y. Aug.
23, 2011) (“The Second Circuit, however, did
not create a per se rule that a petitioner is
always prejudiced when there is a significant
sentencing disparity; rather, such disparity is
simply a factor for a court to consider in
addressing
prejudice.”),
report
and
recommendation adopted, No. 10 CIV. 9699
JSR, 2013 WL 1092825 (S.D.N.Y. Mar. 15,
2013), aff’d, 561 F. App’x 118 (2d Cir.
2014); Muyet v. United States, No. 03 CIV.
4247 (PKL), 2009 WL 2568430, at *5
(S.D.N.Y. Aug. 19, 2009) (“While a
significant sentence disparity between the
plea offer and the actual sentence imposed
can be indicative of prejudice, such a
disparity does not mandate a finding of
prejudice in all cases.” (internal citations
omitted)). Rather, “[e]ven with such a
disparity . . . the district court must still find
the defendant’s evidence to the effect that he
would have made a different decision but for
his counsel’s deficient advice to be credible.”
United States v. Frederick, 526 F. App’x 91,
93 (2d Cir. 2013).
“To show prejudice from ineffective
assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s
deficient performance, defendants must
demonstrate a reasonable probability they
would have accepted the earlier plea offer
had they been afforded effective assistance of
counsel.”
Frye, 132 S. Ct. at 1409.
Although, the Court “need not accept
petitioners’ self-serving, post-conviction
statements that [they] would have pleaded
guilty if properly advised,” Dodakian v.
United States, No. 14-CV-01188(AJN)(SN),
2015 WL 11144511, at *14 (S.D.N.Y. Aug.
14, 2015), report and recommendation
adopted, No. 14-CV-1188 (AJN), 2016 WL
3866581 (S.D.N.Y. July 12, 2016); Shi Yong
Wei v. United States, No. 11 CIV. 6961
RMB, 2013 WL 980151, at *5 (S.D.N.Y.
Mar. 12, 2013) (citing U.S. v. Gordon, 156
F.3d 376, 378, 380-81 (2d Cir. 1998)),
“There is no magic formula to use in determining
whether a disparity between sentences is
‘significant.’” Mickens v. United States, No. 97-CV2122 JS, 2005 WL 2038589, at *8 (E.D.N.Y. Aug. 17,
2005). In Pham, the Second Circuit found a
significant disparity where the sentence imposed was
“more than double” the plea offer (210 months
compared to 78-97 months). A difference of more
than double, however, is not required. See id. (citing
U.S. v. Gordon, 156 F.3d 376, 378, 381 (2d Cir. 1998)
(finding significant disparity between 120-month
sentence and a 210-month sentence)).
16
17
VI.
A.
Application
1.
Failure to Communicate 51- to 63Month Plea Offer and Failure to Advise
Regarding Maximum Sentencing Exposure
Performance Prong
As described above, the Strickland
standard requires a defendant to demonstrate
that his counsel’s performance was deficient.
In this regard, Meszaros argues that his
attorneys (a) failed to communicate the 51- to
63-month plea offer; (b) failed to advise him
of his maximum sentencing exposure under
the Superseding Indictment; and (c) failed to
advise him on the issue of whether to proceed
to trial or to enter a guilty plea.17
As explained above, a defendant must be
advised of plea offers made by the
government and of his maximum sentencing
exposure. See Frye, 132 S. Ct. at 1408
(holding that “counsel has the duty to
communicate formal offers from the
prosecution”); Gordon, 156 F.3d at 380
(finding representation deficient where
defense counsel grossly underestimated
defendant’s maximum sentencing exposure).
The Court concluded above that Meszaros
was made aware of the government’s two
plea offers and of his maximum sentencing
exposure.18 See supra at IV. Accordingly,
In Meszaros’s petition, filed prior to his alleged
“discovery” of the 51- to 63-month plea offer, he
argued that, had he been properly advised that he faced
a maximum sentencing exposure of twenty years, he
would have accepted the government’s initial twoyear plea offer. This contention fails. Underlying, and
essential to, this argument is Meszaros’s position that
this offer included an agreement by the government to
allow the Penta-Cycle fraud to be handled civilly
(thereby effectively resolving the question of
incarceration for both frauds). However, Brissenden’s
notes plainly reflect that the government made no such
concession. (See Resp’t’s Ex. 4 (“[AUSA] Bode said
he would wait to see what happens with civil litigation
with [the Penta-Cycle plaintiffs] before deciding how
to proceed with the second indictment, although he
made no real promises.” Additionally, “[AUSA Bode]
admits that he may eventually be required to charge
Steve with something [on the Penta-Cycle fraud], even
if there is full restitution.”).) Although AUSA Bode
apparently agreed to allow the Penta-Cycle fraud to
“play out” before seeking a second indictment, it is
clear that the two-year plea agreement would have
resolved only the Nexus/Livestreet fraud. Therefore,
Meszaros’s contention that he would have accepted
the two-year plea had he known he was facing a
twenty-year sentence is meaningless. He was not
facing a twenty-year sentence in connection with the
Nexus/Livestreet fraud, and his acceptance of the twoyear plea could not have resolved his potential
sentencing exposure in connection with the PentaCycle fraud.
17
18
To the extent that it was the government, not
Meszaros’s counsel, that conveyed this information to
him, the outcome of his ineffective assistance claim
would be no different. Because Meszaros was advised
of this critical information, he cannot show that he was
prejudiced by the fact that it was allegedly not his
attorneys who communicated it to him. See, e.g.,
Mavashev v. United States, No. 11-CV-3724 DLI,
2015 WL 1508313, at *8 (E.D.N.Y. Mar. 31, 2015)
(holding that defendant could not show that he was
prejudiced by counsel’s alleged failure to provide
details about the plea agreement where defendant and
attorney attended reverse proffer session at which the
government reviewed the plea offer); Vargas, 951 F.
Supp. 2d at 555 (defendant could not show that he was
prejudiced by attorney’s alleged failure to inform him
regarding his sentencing exposure because defendant
knew about “high” potential sentence from bail
hearing and “other sources”); see also Ventura v.
Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (court’s
conveyance at plea allocution of the actual sentencing
possibilities that result from a defendant’s guilty plea
may correct any misrepresentation by counsel as to
defendant’s probable sentence); Munoz, 2012 WL
666783, at *5 (rejecting defendant’s asserted
ignorance regarding his maximum sentencing
exposure where he was present at a bail hearing where
the Court advised him regarding his exposure).
18
explained, “the entire purpose of the meeting
– and there were multiple conversations
leading up to that point – was to advise Mr.
Meszaros that it was going to be difficult to
prevail at trial, and there was a very serious
risk that he was going to be convicted if he
insisted on taking this case to trial.”20 (Hr.
Tr. 201:2-7.) Thus, it is clear that his
attorneys informed him about the strength of
the case against him. See, e.g., Purdy, 208
F.3d at 46 (counsel satisfied obligation to
convey strength of government’s case by
“repeatedly advising [the defendant] of the
strengths of the government’s case against
him” and even performed a mock crossexamination of the defendant).
Meszaros cannot maintain his ineffective
assistance claim on the grounds that he was
not advised of the government’s plea offer or
his maximum sentencing exposure.
2.
Failure to Advise Regarding
Guilty Plea
As noted above, defense counsel must
provide his client with professional advice on
the crucial decision of whether to plead guilty
and can “generally discharge [this] obligation
by informing the defendant of (1) the strength
of the case against him or her and (2) the
possible sentence of incarceration that may
be imposed after a guilty plea as compared to
a guilty verdict.” Daley v. Lee, No. 10-CV6065 NGG, 2012 WL 2577472, at *11
(E.D.N.Y. July 3, 2012) (citing Purdy, 208
F.3d at 45).
Furthermore, Meszaros admits that he sat
through the reverse proffer in May 2007, at
which the government provided a detailed
and extensive outline of the case against him.
(See, e.g., Resp’t’s Ex. 4); see Ortiz v. United
States, 2015 WL 5613182, at *3 (S.D.N.Y.
Sept. 24, 2015) (defendant could not show
that attorney failed to provide effective
assistance of counsel where defendant was
advised of nature and strength of
government’s evidence against him during
reverse proffer session).
The record reflects that Scaring and
Brissenden advised Meszaros about the
weaknesses in his case and the strength of the
government’s evidence. Brissenden credibly
testified that “it was certainly conveyed to
Mr. Meszaros that it was going to be
problematic taking this case to trial.” (Hr. Tr.
205:20-23.) Even Meszaros admits that he
and Scaring “would sit an hour, two hours
sometimes, and basically go over positives in
our trial strategy, or what we’re going to
present, potential pitfalls, so on and so forth.”
(Hr. Tr. 76:6-9.) In fact, both attorneys
credibly testified regarding the meeting that
they convened with Meszaros and his wife
expressly for the purpose of “la[ying] out the
case . . . and all the problems with the case.”19
(Hr. Tr. 139:15-19.)
As Brissenden
Finally, Meszaros is a sophisticated
defendant, and the record reflects that he
actively participated in his defense and
strategized frequently with his attorneys.
(See, e.g., Hr. Tr. 162-163.) Scaring credibly
testified that Meszaros came to the office “a
lot,” because he “was reviewing all of the
evidence,” and that they discussed the case
during each visit. (Id.) Between his frequent
19
Although there is a factual discrepancy over whether
Ms. Meszaros attended a meeting where the evidence
was discussed, the Court finds that the meeting took
place with Meszaros, regardless of whether his wife
was or was not present.
20
in presenting the case against Meszaros that it
allegedly upset Ms. Meszaros. Brissenden recalled
that after the meeting, Meszaros told him that “his wife
was disturbed by the meeting, [and] thought that, A,
we didn’t believe in him, and, B, that maybe we didn’t
even like him.” (Hr. Tr. 188:2-4.)
In fact, Scaring and Brissenden were so aggressive
19
conversations and strategy sessions with his
attorneys, the presentation of evidence at the
reverse proffer, and his own review of the
evidence, it is clear that Meszaros was made
aware of the weaknesses in his case.
of discussing these numbers, we would have
gone through the Guidelines calculation
[provided by the government].” (Hr. Tr.
195:4-10.) Brissenden further stated that “we
had the backdrop of the Government’s
Guideline calculation in forming the
discussion we were having. So we were
aware [that] the Government was advocating
a Guideline sentence if he should be
convicted at trial.” (Hr. Tr. 201:8-16.)
Scaring also credibly testified that, as they
got closer to trial, he also talked “generally”
about the fact that Meszaros would face
“significant” jail time if he were convicted at
trial.21 (Hr. Tr. 160:23-161:1.)
Meszaros was also aware of the different
sentences to which he could be exposed.
Meszaros was present at the reverse proffer
in May 2007 when the various sentencing
alternatives—the
two
possible
plea
agreements and Meszaros’s exposure of 235
to 293 months under the Guidelines—were
discussed. (See, e.g., Resp’t’s Exs. 4, 6.)
Both Brissenden and AUSA Bode’s notes
from the meeting clearly indicate that these
topics were addressed. (See id.)
Nevertheless, Meszaros argues that his
attorneys “failed to adequately advise him,
and to provide to him the benefit of their
professional advice, on the crucial question
of whether to proceed to trial or to plead
guilty.” (See Movant’s Post Hearing Mem.
1, ECF No. 242 (06-cr-503).) Counsel is not
per se required to make an explicit
recommendation on whether the client should
accept a plea.22 See Purdy, 208 F.3d at 46.
The attorneys also credibly testified
regarding their discussions with Meszaros
concerning the Guidelines and sentencing.
Brissenden stated that “there was definitely a
discussion about how the Guidelines worked.
There were discussions about the Court’s
discretion to go above or below the
Guidelines. . . . [A]nd certainly in the context
21
During his cross-examination, Scaring testified that
he estimated that Meszaros would be sentenced to
between six and eight years if convicted at trial (see
Hr. Tr. 160:13-161:8); Meszaros was ultimately
sentenced to 151 months.
Although Scaring’s
prediction proved to be inaccurate, Meszaros’s
attorneys advised him “about how the Guidelines
worked” and about “the Court’s discretion to go either
above or below the Guidelines,” and he was also aware
of his maximum sentencing exposure and the holes in
his defense. Thus, Scaring’s underestimation of
Meszaros’s eventual sentence cannot substantiate an
ineffective assistance claim. See, e.g., Vaknin v.
United States, No. 08-CV-02420 DGT, 2010 WL
3394659, at *19 (E.D.N.Y. Aug. 23, 2010) (counsel
who inaccurately predicted his client’s sentence was
not ineffective where he also advised his client that the
court could impose a greater sentence and informed
the defendant about his maximum potential exposure);
see also Pena v. United States, No. 09-CR-0341 (VM),
2016 WL 3659114, at *5 (S.D.N.Y. June 27, 2016)
(“Errors in counsel’s predictions of a defendant’s
ultimate sentence under the Sentencing Guidelines
generally do not support a determination of ineffective
assistance of counsel.”); Colotti, 2012 WL 1122972,
at *14 (“[A]n inaccurate prediction as to the sentence
a defendant is likely to receive after trial should only
rarely be susceptible to an ineffective assistance
claim.” (citing United States v. Sweeney, 878 F.2d 68,
70 (2d Cir. 1989))); Varone v. United States, No. 09CV-5703 DLI, 2012 WL 252845, at *4 (E.D.N.Y. Jan.
26, 2012) (refusing to withdraw a guilty plea where the
attorney incorrectly predicted the defendant’s
sentence, explaining “a mistaken estimate of [the
defendant’s] likely sentence . . . [is] insufficient to
support a claim for ineffective assistance of counsel.”
(quoting Goldberg v. United States, 100 F.3d 941 (2d
Cir. 1996))).
22
In Boria v. Keane, 99 F.3d 492 (2d Cir.), decision
clarified on reh’g, 90 F.3d 36 (2d Cir. 1996), the
Second Circuit held that, in certain circumstances, an
attorney may be ineffective for failing to explicitly
advise his client to take a plea. However, the facts in
Boria are materially different from those presented
here, and therefore, Boria’s holding does not control
20
In Purdy, for example, the Second Circuit
concluded that it was reasonable for counsel
not to “specifically and explicitly” advise his
client whether he should accept the plea offer
where the attorney had repeatedly advised his
client on the strength of the government’s
case, advised his client on the likely sentence
he would face after trial, and his client
steadfastly maintained his innocence. Id.
now that you had received the
superseding indictment, was a
reasonable
offer
and
something that he should
consider?
A. No. Mr. Meszaros said he
was not guilty, had a story for
everything in the indictment.
Q. Did you provide him with
the
benefit
of
your
professional advice as to
whether or not the pleas that
were being offered were
reasonable?
A. No. What I said to him
was, if you want to plead
guilty, you have to admit you
are guilty. That’s the only way
it goes and that isn’t what he
said it was.
Q. Did you explain, to the
extent reasonably necessary
to permit him to make an
informed decision, regarding
When asked whether he advised
Meszaros that “based on the problematic
nature of the evidence that it would be in
[Meszaros’s] best interest to take a plea,”
Brissenden credibly testified, “Yes. I think
that’s fair to say. I don’t know that we used
that phrase, but I --- certainly that was what
we were trying to convey to Mr. Meszaros.”
(Hr. Tr. 205:2-7.) Scaring also provided the
following credible testimony:
Q. Was there any discussion
with Mr. Meszaros at that
time as to whether or not a
plea offer of 51 to 63 months,
“suicidal” to proceed to trial (he was apprehended
during a “buy and bust”), the same was not true for
Meszaros, given the complexity of the facts and law
and that the outcome at trial would depend in large part
on the jury finding the cooperating defendants’
testimony credible. See Mazique v. Ercole, No. 06CV-1723(NGG), 2008 WL 2884370, at *11 (E.D.N.Y.
July 23, 2008) (distinguishing Boria where the
“evidence was not so overwhelming that a victory at
trial was completely unrealistic”). Finally, it is not
clear that the client in Boria actually maintained that
he was innocent (or merely opposed pleading guilty
because he did not want to be embarrassed in front of
his children); however, Meszaros’s attorneys testified
that Meszaros was not interested in a plea agreement
because he claimed he was not guilty. See Berry v.
Ercole, No. 06 CIV. 6957 (DLC), 2009 WL 1321906,
at *12 (S.D.N.Y. May 12, 2009) (counsel was not
ineffective for failing to advise the defendant that he
should plead guilty where the defendant adamantly
denied his guilt and had been informed of the risk of
conviction and his sentencing exposure), aff’d, 391 F.
App’x 87 (2d Cir. 2010).
the outcome here. There, the government offered the
defendant a plea bargain whereby he would receive a
sentence of one to three years in prison, but the
defendant refused the offer, and after trial, received a
prison term of twenty years to life. Boria, 99 F.3d at
494. The defense counsel did not “in any way or at
any time discuss[] . . . the advisability of accepting or
rejecting the offered plea,” confining his discussions
with Boria to trial strategy, even though he personally
believed that rejection of the plea offer would be
“suicidal.” Id. at 495. He rationalized his approach
based on his client’s repeated assertions that he did not
want to plead guilty because it would embarrass him
in front of his children. Id. at 496.
In contrast to the attorney in Boria who provided
his client no advice on how to deal with the offered
plea bargain, id. at 498, here, counsel expressly
advised Meszaros on the strength of the government’s
case. See Purdy, 208 F.3d at 47 (distinguishing Boria
on the same grounds); Ramos v. United States, No.
01CR217SCR, 2007 WL 3071185, at *3 (S.D.N.Y.
Oct. 18, 2007) (same). Additionally, unlike the
defendant in Boria, for whom it would have been
21
“[T]he law affords counsel broad
discretion in choosing ‘how best to advise a
client in order to avoid, on the one hand,
failing to give advice and, on the other,
coercing a plea.’”
Colotti, 2012 WL
1122972, at *14 (quoting Purdy, 208 F.3d at
45). Moreover, “[c]counsel rendering advice
in this critical area may take into account . . .
whether the defendant has maintained his
innocence.” Purdy, 208 F.3d at 45. Here,
Meszaros consistently professed his
innocence and expressed no interest in
pleading guilty. Accordingly, his attorneys
were mindful not to pressure him to plead
guilty, but provided the required advice
concerning the weaknesses in his defense and
his maximum sentencing exposure. Thus, the
Court cannot say that his counsel was
ineffective. See Rivera v. United States, No.
10-CR-316 (KBF), 2016 WL 1064605, at *6
(S.D.N.Y. Mar. 14, 2016) (counsel provided
effective advice by “informing the defendant
of the terms of the plea offer, the strengths
and weaknesses in the case against him, and
the alternative sentences to which he would
most likely be exposed”); Mitchell v. Rock,
No. 11-CV-2642 JG, 2013 WL 4041545, at
*19 (E.D.N.Y. Aug. 9, 2013) (upholding
decision that counsel had performed
effectively, despite the defendant’s argument
that counsel failed to give his professional
how to proceed with this case
-A. Yes.
Q. -- the analysis of his case
and the plea offer?
A. I gave him an informed
decision as to how to proceed
with the case.
(Hr. Tr. 158:9-159:4.)
Although this testimony indicates that
there may have been limited attention paid to
the question of a plea agreement,23 it appears
that, when the 51- to 63-month plea
agreement was offered in May 2007, there
was little point in discussing it at length
because Meszaros maintained that he was
innocent and wanted to go to trial. As
Scaring testified, “[w]e never got to the point
where there was ever any discussion about
taking a plea. Mr. Meszaros never would
allow it. He didn’t want to take a plea,
period.” (Hr. Tr. 161:24-162:1.) As issues
with his defense arose in preparation for trial,
his attorneys tried to convey to him that a plea
might be in his interest; however, they were
also trying to avoid “the Charybdis of
coercing a plea” from their client who
resolutely maintained his innocence.
23
However, this case is not like those in which counsel
has been found ineffective because he or she failed to
offer any advice concerning a plea offer, for instance
because the attorney had a policy against opining on
such agreements. Compare Carrion v. Smith, 644 F.
Supp. 2d 452, 468-69 (S.D.N.Y. 2009) (finding, under
the particular circumstances of the case, counsel
ineffective who “had a strict ‘no advice’ policy,
according to which he did not advise his clients as to
the advisability of taking a plea, even when it is in their
best interests to do so” and engaged in only one
conversation regarding the plea with the defendant,
who had a limited understanding of the English
language and the justice system), aff’d, 365 F. App’x
278 (2d Cir. 2010); Young v. Zon, 827 F. Supp. 2d 144,
158 (W.D.N.Y. 2011) (finding attorney ineffective
based on his “absolute lack of advice” to the defendant
concerning the plea offer). Here, no such policy
existed; Meszaros was a sophisticated defendant, who
was in frequent contact with this attorneys, and any
limitation on the discussion of the plea offers appears
to have been as a result of a lack of interest on the part
of the client, not because of the carelessness or
indolence of the attorneys. Compare Fulton v.
Graham, 802 F.3d 257, 266 (2d Cir. 2015) (remanding
for further proceedings on issue of counsel’s efficacy
where defendant proceeded to trial after rejecting a
plea offer because he was unable to discuss the facts
or evidence with counsel and counsel “failed to
discuss the pros and cons of accepting the plea offer,
including the weaknesses in the defense and that the
evidence of guilt was overwhelming,” despite the
defendant’s interest in accepting a plea).
22
opinion on whether plea should be accepted,
by “touch[ing] upon critical factors a
defendant must consider when weighing such
a decision, including his minimum and
maximum sentencing exposure, the evidence
the state would present at trial, and the
amount of time [the defendant] had already
served”); Munoz, 2012 WL 666783, at *6
(concluding counsel’s performance was
effective where he discussed the Sentencing
Guidelines with [the defendant] and advised
[the defendant] he could receive as much as
97 to 121 months if convicted; he advised
[the defendant] as to the options of
cooperating, pleading guilty, and going to
trial; and he weighed the strengths and
weaknesses of the Government’s case and the
evidence against [the defendant], leaving to
his client the ultimate decision whether to
plead”); see also United States v. Pitcher, 559
F.3d 120, 125 (2d Cir. 2009) (noting that
defense counsel has no duty to “arm-twist a
client who maintains his innocence into
pleading guilty”); Diallo v. United States,
No. 12 CIV. 3310, 2014 WL 4460364, at *45 (S.D.N.Y. Sept. 10, 2014) (holding that it
was not unreasonable for counsel not to
pursue plea offer with the government where
the defendant repeatedly professed his
innocence); Martin v. Conway, 764 F. Supp.
2d 545, 551 (W.D.N.Y. 2011) (explaining
that if the attorney “had failed to explain the
sentencing exposure [the defendant] faced
upon a guilty verdict and the demonstrable
weaknesses in the defense case, he would
have been derelict in his duties”).
ignored [their] advice.” Ramos, 2007 WL
3071185, at *2. Finally, even if Meszaros’s
attorneys’ performance had been inadequate,
his ineffective assistance claim would
nevertheless fail because, as described below,
he cannot show he was prejudiced by the
allegedly deficient representation.
B.
Prejudice Prong
As noted above, “[t]o show prejudice
from ineffective assistance of counsel where
a plea offer has lapsed or been rejected
because of counsel’s deficient performance,
defendants must demonstrate a reasonable
probability they would have accepted the
earlier plea offer had they been afforded
effective assistance of counsel.” Frye, 132 S.
Ct. at 1409.
As proof that he would have accepted the
plea offer had he known or been adequately
counseled about it, Meszaros points to the
disparity between the 51- to 63-month
sentence in the plea offer and his 151-month
sentence (as well as his 235- to 293-month
Guidelines range), and argues that he never
would have turned down a five-year plea
offer in the face of a twelve-year sentence.
It is true that the sentence offered in the
plea is significantly less than the sentence
imposed,24 and in some cases, such a
disparity “is sufficient to support a prejudice
finding.” Pham, 317 F.3d at 182. However,
such a conclusion is not mandated where, as
here, the Court determines that the
defendant’s assertions that he would have
accepted the plea are not credible. See, e.g.,
Frederick, 526 F. App’x at 93 (although there
was a significant disparity between the
Based on the evidence, “it appears the
problem in this case was not that
[Meszaros’s] counsel was unreasonable but
that [Meszaros] either misconstrued or
There is no “magic formula” for calculating whether
the difference between two sentences is sufficiently
disparate. However, given that the imposed sentence
is just under three times the low end of the range
offered in the plea agreement, the two sentences would
24
appear to be sufficiently disparate, based on case law
from this Circuit. See, e.g., Pham, 317 F.3d at 183
(finding sufficient disparity where the sentence
imposed was “more than double” the plea).
23
sentence imposed and the sentence the
defendant would have received pursuant to
the plea agreement, the defendant failed to
show that he was prejudiced by his attorney’s
allegedly ineffective advice because the court
did not believe that he would have accepted
the plea, given that he was adamant that he
wanted to go to trial). After considering the
hearing testimony, the parties’ submissions,
and the Court’s own observations during the
trial, the Court concludes that Meszaros’s
assertion that he would have accepted the 51to 63-month plea offer had he been aware of
it or been properly advised is not credible.
not plead guilty’”); Vargas, 951 F. Supp. 2d
at 550, 553 (“[The defendant’s] claim of
prejudice is further undermined by the fact
that he asserted his innocence through his
trial and sentencing, and continued to
proclaim innocence at the evidentiary
hearing.”); Muyet, 2009 WL 2568430, at *5
(concluding that defendant had not shown
prejudice where the record contained “no
indication that [the defendant] would have
admitted guilt, as he maintained his
innocence throughout the trial,” even though
defendant submitted an affidavit swearing
that he would have accepted a twenty-year
plea offer had counsel properly informed him
that his sentence exposure if convicted was
eight life sentences plus 130 years); Kagan v.
United States, No. 02 CIV. 3886(DLC), 2003
WL 21991585, at *4 (S.D.N.Y. Aug. 20,
2003) (defendant’s inability to indicate an
“‘unequivocal willingness to plead guilty’”
was incompatible with his suggestion that he
would have pleaded guilty (quoting United
States v. Feyrer, 333 F.3d 110, 120 (2d Cir.
2003))); Gluzman v. United States, 124 F.
Supp. 2d 171, 177 (S.D.N.Y. 2000)
(observing that “it is difficult to see how [the
defendant] could pleaded (sic) guilty since
her persistent claims of innocence would
have rendered highly problematic her ability
adequately to allocate”).
First, Meszaros has consistently and
unequivocally asserted his innocence.
Scaring and Brissenden repeatedly asserted
that Meszaros genuinely believed that he was
innocent and was not receptive to evidence to
the contrary. Scaring credibly testified that,
“[Meszaros] never, ever said to us that he had
committed any crime” (Hr. Tr. 144:2-4), and
that “Mr. Meszaros was adamant in
maintaining his innocence, despite what we
viewed as problematic evidence” (Hr. Tr.
186:24-187:1). Scaring further recalled that
they attempted to confront Meszaros with
issues or discrepancies with the evidence, but
that it was “very difficult because [Meszaros]
was not buying anything. He would spin the
evidence. He had a view of what his defense
was. He believed it.” (Hr. Tr. 129:7-10.)
Meszaros’s intransigence on this topic
undermines his attempt to argue that he
would have accepted a plea. See, e.g., Shi
Yong Wei, 2013 WL 980151, at *5 (rejecting
the petitioner’s contention that he would have
accepted a plea offer, as it was “squarely
contradicted” by his attorney’s testimony that
his client was “‘adamant . . . that he would
In fact, even during the evidentiary
hearing, conducted in part for Meszaros to
establish that he would have accepted a guilty
plea, Meszaros would not admit that he was
guilty, allowing only that he “would have had
no choice” but to plead guilty if he had
known that he would be sentenced to 151
months.25 (See Hr. Tr. 80); see Logiudice v.
United States, No. 01CV88(SJ), 2008 WL
25
While the Second Circuit has recognized that a
defendant’s protestations of innocence are not
necessarily dispositive because a defendant confronted
with a “significant difference between the likely
sentencing ranges after trial and under the offered plea
bargain . . . might well . . . abandon[] his claim of
innocence,” Cullen v. United States, 194 F.3d 401, 407
(2d Cir. 1999), Meszaros has demonstrated no such
ability to relinquish his claim that he is not guilty.
24
in part, on attorney’s testimony that his client
was not interested in taking a plea in
concluding that client would not have
accepted plea offer if he had been properly
advised), aff’d, 257 F. App’x 461 (2d Cir.
2007); United States v. Crisci, No. 00 CR.
253 (DC), 2003 WL 22845669, at *3
(S.D.N.Y. Dec. 1, 2003) (refusing to credit
defendant’s assertion that he would have
accepted guilty plea where he was insistent
on going to trial and was adamant that he was
innocent), aff’d, 108 F. App’x 25 (2d Cir.
2004); United States v. Peterson, 233 F.
Supp. 2d 475, 493 (E.D.N.Y. 2002)
(defendant could not prove that he would
have accepted a plea offer involving
incarceration where he was “resolved to go to
trial,” despite the fact that he was aware of
the weaknesses in his defense and his
potentially significant sentence upon
conviction); see also Herzog v. United States,
38 F. App’x 672, 675 (2d Cir. 2002) (holding
that district court’s conclusion that defendant
would not have accepted plea offer was not
clearly erroneous where defendant, inter alia,
never showed any inclination toward
accepting a plea); Miller v. McNeil, No. 0960566-CIV, 2010 WL 2639591, at *7 (S.D.
Fla. May 7, 2010) (defendant could not
establish prejudice under Strickland in light
of his statement indicating his intent to go to
trial and the absence of any objective
evidence indicating a desire to plead guilty),
report and recommendation adopted, No. 0960566-CIV-COHN, 2010 WL 2613320 (S.D.
Fla. June 29, 2010).
835714, at *10 (E.D.N.Y. Mar. 28, 2008)
(defendant’s claim that he would have
pleaded guilty if he had known of plea offer
was not credible given that he consistently
maintained his innocence, and, even during a
hearing before the court, where the “primary
purpose was to convince the court that he
would have pled guilty had his counsel
advised him appropriately,” he was “evasive
about his guilt”).
Relatedly, Meszaros was adamant that he
wanted to go to trial and expressed no interest
in taking a plea, even when encouraged by his
attorneys, confronted with damaging
evidence, and despite the fact that he knew he
faced a significant sentence if convicted at
trial. As Brissenden credibly noted, “we
were trying to sort of pressure him all along
to consider taking a plea[,] [b]ut those
conversations didn’t really go anywhere”
(see Hr. Tr. 206:3-6), and “there was never
the slightest inclination on the part of our
client to go down that road” (Hr. Tr. 205:1114). He further credibly testified that, even
after the meeting with Ms. Meszaros, where
he and Scaring attempted to lay out all of the
damaging evidence, Meszaros still remained
committed to trying the case. (See Hr. Tr.
187.) Scaring credibly explained that “[w]e
never got to the point where there was ever
any discussion about taking a plea. Mr.
Meszaros never would allow it. He didn’t
want to take a plea, period. So that wasn’t
our primary focus.” (Hr. Tr. 161:24-162:2.)
Meszaros’s apparent resolve to try his case
further weakens the credibility of his
assertion that he would have accepted a deal.
See, e.g., Pierre v. United States, No. 06-cv1573(NGG), 2008 WL 3992152, at *8
(E.D.N.Y. Aug. 22, 2008) (concluding that
petitioner had not shown that he would have
pleaded guilty where he insisted on going to
trial, even after being warned of his
sentencing exposure after conviction);
Mickens, 2005 WL 2038589, at *5 (relying,
Having observed Meszaros during the
trial and evidentiary hearing and, in light of
the attorneys’ credible testimony, the Court
concludes that Meszaros was unable or
unwilling to accept that he was guilty. The
Court does not credit his assertion that he
would have accepted the government’s plea
offers and, therefore, concludes that he has
failed to establish prejudice.
25
Because Meszaros has not satisfied his
burden to show that his counsel was
ineffective or that he suffered prejudice as a
result of any allegedly deficient advice, his
claim for ineffective assistance of counsel
must fail.
VII. CONCLUSION
For the foregoing reasons, Meszaros’s
motion to vacate his conviction under Section
2255 is denied. The Clerk of the Court is
requested to enter judgment and close the
case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 15, 2016
Central Islip, New York
*
*
*
Meszaros filed the petition pro se; appointed
counsel, Gary Schoer, Esq., 6800 Jericho
Turnpike, Syosset, NY 11791, represented
Meszaros during the evidentiary hearing and
related briefing.
The government is
represented by Allen Lee Bode, United States
Attorney’s Office, Eastern District of New
York, 610 Federal Plaza, Central Islip, NY
11722.
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?