Litwok v. United States of America
Filing
25
MEMORANDUM AND OPINIONFor the reasons set forth herein, the Court denies the petition to vacate in its entirety and orders that no certificate of appealability shall issue. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/23/2016. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-4341 (JFB)
_____________________
EVELYN LITWOK,
Petitioner,
VERSUS
UNITED STATES OF AMERICA,
Respondent.
___________________
MEMORANDUM AND ORDER
November 23, 2016
___________________
For the reasons set forth below, the
petition is denied.
JOSEPH F. BIANCO, District Judge:
Evelyn Litwok (“petitioner”) petitions
this Court pro se for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255 vacating her
conviction and sentence on one count of tax
evasion in violation of 26 U.S.C. § 7201.
Petitioner asserts that her trial counsel
provided ineffective assistance by failing to
(1) file a motion to dismiss based on a
violation of the statute of limitations; (2)
present a defense based on an unauthorized
reallocation calculation; (3) understand the
tax code; (4) call a forensic accountant as a
defense witness; (5) present exculpatory
evidence allegedly proving innocence; (6)
cross-examine the government’s accountant
witnesses as to whether they had filed claims
or would be paid for their testimony with
monetary or whistleblower awards; and (7)
object to prosecutorial misconduct and to
purportedly falsified evidence.
I. BACKGROUND
The Court has adduced the following
facts from the instant petition and the
underlying record.
A. Factual Background
From 1994 to 1997, petitioner operated a
number of private equity companies,
including Kohn Investment I LP (“Kohn”),
which she managed through Kohn
Investment Management, Inc. Petitioner
routinely used corporate funds received from
her investors to pay for personal expenses
and gifts. (T. at 72-73, 127-34, 143-45, 211-
1
13. 1) The Internal Revenue Service (“IRS”)
concluded that, in 1995, petitioner withdrew
over $2.3 million from Kohn, but despite
owing more than $700,000 in taxes based on
that income, petitioner did not file a tax return
or pay any of that amount to the government.
(T. at 266-68, 289.)
petitioner or for Kohn. (T. at 55, 63-65, 22022, 247-50.)
B. Procedural History
The government arrested petitioner in
December 1997 and indicted her in April
2002 on one count of mail fraud. By
superseding indictment dated March 19,
2003, the government also charged petitioner
with three counts of tax evasion in violation
of 26 U.S.C. § 7201, for failing to file tax
returns for 1995, 1996, and 1997.
At trial, petitioner’s former accountant
Peter Testaverde testified about work
relevant to the tax evasion charge for which
petitioner was convicted. Testaverde said
that, from September 1995 to September
1996, his accounting firm worked to calculate
the losses and income for Kohn, and to
prepare 1995 K-1 tax forms, which enable
private equity investors to file their own tax
returns. (T. at 201-02.) Upon reviewing the
corporate records, Testaverde discovered that
petitioner had accrued over $2.3 million in
excess personal compensation from Kohn in
1995, and he presented this finding to
petitioner. (T. at 211-14.) Petitioner refuted
the accuracy of the Kohn documents and
forbade Testaverde from contacting the
Company to establish their veracity. (T. at
217.) Nevertheless, Testaverde sent an
August 16, 1996 letter to Kohn investors
notifying them of petitioner’s withdrawals,
and that he was unable to complete the 1995
tax return. (T. at 220-21.) Testaverde and his
firm subsequently resigned as Kohn’s
auditor. (T. at 222.)
After a jury convicted petitioner on all
four counts, the Second Circuit reversed,
finding insufficient evidence to sustain the
tax evasion charges relating to the 1996 and
1997 returns, and that the government
improperly joined the unrelated mail fraud
and 1995 tax evasion counts. United States
v. Litwok, 678 F.3d 208 (2d Cir. 2012). The
government then re-tried petitioner on the
1995 tax evasion charge alone, and she was
convicted and sentenced to two years’
imprisonment and three years of supervised
release, and ordered to pay the IRS
$1,097,634 in back taxes. Following another
appeal, the Second Circuit affirmed that
conviction and sentence on April 28, 2015.
United States v. Litwok, 611 F. App’x 12 (2d
Cir. 2015).
While the second appeal was pending,
petitioner filed the instant habeas petition on
July 11, 2014, and the Court granted the
government additional time to submit its
opposition pending resolution of the direct
appeal. The Court now considers petitioner’s
ineffective assistance of trial counsel claim
for habeas relief.
Petitioner hired other accounting firms to
complete Testaverde’s work, and her efforts
to conceal the undisclosed income, including
filing an extension request to submit a tax
return on August 15, 1997, continued into
1997. (T. at 192-93, 247-50.) As a result,
Kohn investors did not receive an accurate
accounting of the Company’s finances, and
1995 tax returns were not prepared for
1
Citations to “T.” are references to the transcript of
petitioner’s January 2013 jury trial before the
Honorable Leonard D. Wexler, United States v.
Litwok, 02-CR-427 (LDW) (E.D.N.Y. Dec. 12, 2014),
ECF No. 153.
2
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). For instance, a
“lawyer’s decision not to pursue a defense
does not constitute deficient performance if,
as is typically the case, the lawyer has a
reasonable justification for the decision,”
DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir.
1996), and “‘strategic choices made after
thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable,’” id. at 588 (quoting
Strickland, 466 U.S. at 690). “However,
‘strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.’” Id. (quoting
Strickland, 466 U.S. at 690-91).
II. STANDARD OF REVIEW
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
petition 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 § 2255(a),
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 State, 538 U.S. 500, 504 (2003).
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) that “counsel’s representation
fell below an objective standard of
reasonableness,” id. at 688; and (2) that
“there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different,”
id. at 694.
The second prong focuses on prejudice to
the petitioner, who 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.”
Strickland, 466 U.S. at 694. “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, 226 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 694). “[T]he
question to be asked in assessing the
prejudice from counsel’s errors . . . is whether
there is a reasonable probability that, absent
the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Henry v.
Poole, 409 F.3d 48, 63-64 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 695). “An
error by counsel, even if professionally
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[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
3
first requirement has been met, petitioner has
not satisfied the second Strickland standard
because there is no reasonable probability
that the proceedings would have yielded a
different outcome if petitioner’s counsel had
performed the actions at issue.
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). However, “[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) (citations omitted).
A. Statute of Limitations
Petitioner argues that her attorney should
have moved to dismiss her case because the
tax evasion charge was time-barred under the
applicable six-year statute of limitations. See
26 U.S.C. § 6531. However, failure to make
a tenuous motion does not render counsel
ineffective. See United States v. Matos, 905
F.2d 30, 32 (2d Cir. 1990) (“In order to show
ineffective assistance for the failure to make
a suppression motion, the underlying motion
must be shown to be meritorious, and there
must be a reasonable probability that the
verdict would have been different if the
evidence had been suppressed.”); Mance v.
Miller, No. 01 Civ. 5243 (JSM), 2002 WL
377533, at *8 (S.D.N.Y. 2002) (counsel was
not ineffective for failing to file motion with
low likelihood of success).
The Court proceeds to examine
petitioner’s claims, keeping in mind that she
bears the burden of establishing both
deficient performance and prejudice. United
States v. Birkin, 366 F.3d 95, 100 (2d Cir.
2004).
III. DISCUSSION
Petitioner moves to have her conviction
and sentence vacated on seven grounds of
ineffective counsel. She argues that her trial
attorney failed to (1) file a motion to dismiss
based upon a violation of the statute of
limitations; (2) present a defense based upon
an unauthorized reallocation calculation; (3)
understand the tax code; (4) call a
forensic accountant as a defense witness; (5)
present exculpatory evidence allegedly
proving innocence; (6) cross-examine the
government’s accountant witnesses as to
whether they had filed claims or would be
paid for their testimony with monetary or
whistleblower awards; and (7) object to
prosecutorial misconduct and to purportedly
falsified evidence.
Here, petitioner’s trial counsel submitted
a declaration attesting that a statute of
limitations argument “was not a bona fide
issue or defense and there was no good faith
factual basis for making such a motion.”
(Decl. of Robert A. Chapnick, ECF No. 16-2
(“Chapnick Decl.”) at ¶ 2.) Under the
deferential standard outlined above, the court
must presume that counsel acted within the
“wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689, in
making that determination, and the
applicable precedent indicates that a
limitations defense would have been
fruitless. “The law is well established that the
statute of limitations for tax evasion runs
from the day of the last act of evasion[,
which] encompasses any act of concealment
As set forth below, the Court concludes
that each of petitioner’s claims lacks merit.
With respect to the first Strickland prong,
petitioner has failed to demonstrate that
counsel’s performance fell below an
objective standard of reasonableness.
Further, even assuming arguendo that the
4
violation.” Jones v. Hollins, 884 F. Supp.
758, 765 (W.D.N.Y. 1995), aff’d, 89 F.3d
826 (2d Cir. 1995). “Counsel is not required
to present every nonfrivolous defense, but
instead, should ‘winnow out weaker
arguments’ and select witnesses and evidence
that reflect counsel’s strategy.” Osorio v.
Conway, 496 F. Supp. 2d 285, 304 (S.D.N.Y.
2007) (quoting Jones v. Barnes, 463 U.S. 745
(1983)). Thus, a “lawyer’s decision not to
pursue a defense does not constitute deficient
performance if, as is typically the case, the
lawyer has a reasonable justification for the
decision.” DeLuca, 77 F.3d at 588 n.3.
. . . .” United States v. Mui, 214 F. App’x 40,
47 (2d Cir. 2007) (emphasis in original) (and
citation omitted). Petitioner was charged
with tax evasion by superseding indictment
dated March 19, 2003, and at trial, the
government introduced acts of concealment
dating to at least mid-1997, which falls
within the limitations period.
Those
incidents include the March 1, 1997 retention
of another accounting firm to replace
Testaverde, a relationship that lasted for
approximately two months before that
accountant quit (T. at 248-50); and
petitioner’s April 15, 1997 submission of an
extension request for the filing of her tax
return (T. at 193). Had petitioner’s trial
attorney sought dismissal on limitations
grounds, the government would have argued
that those events or other post-March 19,
1997 conduct constituted acts of concealment
sufficient to toll the commencement of the
statutory period. Given that evidence of
concealment, any motion to dismiss would
have lacked merit, and counsel was not
ineffective for failing to raise that argument.
In his declaration, petitioner’s trial
counsel again states that this defense would
have been meritless, and that he “reviewed
the Government’s disclosures and prior
testimony of accountant Peter Testaverde,
and did not find any evidence suggesting
fraud or perjury.” (Chapnick Decl. at ¶¶ 2,
6.) Indeed, the Second Circuit considered
this argument on petitioner’s direct appeal
and concluded that “there is no evidence in
the record to support Litwok’s allegation that
the accountants [including Testaverde] and
IRS agents fabricated their testimony.”
Litwok, 611 F. App’x at 15. The instant
petition is similarly deficient. Although
petitioner claims that, had counsel reviewed
Testaverde’s calculations and the transcript
from her first trial, he would have been able
to identify false statements made by IRS
agents at the second trial, petitioner has failed
to provide any evidence to support this
supposition. After reviewing the record,
petitioner’s trial counsel made a strategic
choice as to how and when to attack the
credibility of the government’s witnesses and
the underlying evidence, and the fact that her
attorney could have pursued a possible
additional line of attack is not sufficient to
establish that his choice was unreasonable.
See Rosario-Dominguez v. United States, 353
F. Supp. 2d 500, 513 (S.D.N.Y. 2005).
Accordingly, this branch of petitioner’s
ineffective counsel claim fails because she
has not shown that her trial attorney was
deficient for declining to make a motion that
had no merit.
B. Unauthorized Reallocation Calculations
Defense
Petitioner also challenges her counsel’s
decision not to contest reallocation
calculations prepared by Testaverde and
presented at trial, and she claims that this
defense would have highlighted perjury
committed by IRS agents who testified
against her.
“Generally, the decision whether to
pursue a particular defense is a tactical choice
which does not rise to level of a constitutional
5
asserts that, during a May 2005 deposition by
the United States Securities and Exchange
Commission, Lackowitz testified that
petitioner had no taxable income for 1995,
and he thus could have rebutted the tax
liability calculations prepared by the IRS.
Further, even had counsel advanced this
argument, petitioner has not shown that it
would have impacted the outcome of the trial
because she has not adduced any support for
her charge that Testaverde submitted false
calculations. On the contrary, both counsel
and the Second Circuit were unable to find
any evidence of perjury.
Accordingly,
petitioner has also failed to satisfy
Strickland’s prejudice prong.
However, “the tactical decision of
whether to call specific witnesses—even
ones that might offer exculpatory evidence—
is ordinarily not viewed as a lapse in
professional representation.” United States v.
Schmidt, 105 F.3d 82, 90 (2d Cir. 1997), cert.
denied, 522 U.S. 846 (1997); see also Haynes
v. Ercole, No. 08-CV-3643 (JFB), 2011 WL
2341277, at *23 (E.D.N.Y. June 8, 2011)
(“[F]ailing to call a witness, even one that
could potentially provide exculpatory
testimony, does not ordinarily lead to the
conclusion that counsel was ineffective.”);
Bloomfield v. Senkowski, No. 02 CV 6738
(RJD)(LB), 2008 WL 2097423, at *1
(E.D.N.Y. May 15, 2008) (“[A]n attorney’s
failure to consult with or call [an] expert,
standing alone, does not necessarily meet the
first prong of Strickland.”). Therefore, a
claim that counsel was ineffective for failing
to call a defense witness is meritless if made
in a “conclusory fashion.” United States v.
Vargas, 920 F.2d 167, 170 (2d Cir. 1990),
cert. denied, 502 U.S. 826 (1991).
C. Failure to Understand the Tax Code
Petitioner also claims, without support,
that her counsel “lacked a rudimentary
understanding of the Tax Code for
partnerships . . . .” (Pet., ECF No. 1, at 14.)
It is “well established that conclusory
allegations . . . are insufficient to meet the
rigorous standard under Strickland v.
Washington.” Smalls v. McGinnis, No. 04
Civ. 0301(AJP), 2004 WL 1774578, at *23
(S.D.N.Y. Aug. 10, 2004) (collecting cases);
see also Slevin v. United States, No. 98 CIV.
0904 (PKL), 1999 WL 549010, at *5
(S.D.N.Y. July 28, 1999) (“Petitioner’s
conclusory allegations that counsel evinced
‘a general lack of preparation’ do not
demonstrate that absent the alleged errors, the
outcome of the trial would have been
different.”).
Here, petitioner relies on extra-record
evidence—the transcript of an SEC
deposition—to argue that Lackowitz would
have provided favorable testimony at trial.
However, according to her trial counsel,
petitioner “claimed she could not afford to
pay for the services of an expert witness” and
told counsel that Lackowitz “would not be
available with no explanation.” (Chapnick
Decl. at ¶ 4). Further, counsel determined
that Lackowitz’s testimony would not be
helpful because:
Thus, without more, petitioner cannot
satisfy the Strickland standard by baldly
arguing that her trial attorney lacked relevant
legal expertise. Insofar as petitioner claims
that counsel was ineffective for failure to
consult with a tax expert, the Court addresses
that claim infra.
D. Failure to Call a Forensic Accountant
Petitioner faults counsel’s decision not to
consult with or solicit expert testimony from
Ted Lackowitz, a forensic accountant. She
6
E. Failure to Impeach
first, in prior deposition testimony,
Mr. Lackwotiz stated that in his
opinion Litwok did have obligations
to file in 1995 and later years; second,
his prior testimony implied that most
of the documents used to create books
and records for Litwok’s companies,
and upon which his opinion about
whether she owed taxes was based,
were prepared and/or supplied by
Litwok and would likely have a
similar issue as with the documents
Litwok had given [counsel], ie. that
they could not be authenticated.
Petitioner also asserts that counsel was
ineffective because he failed to impeach two
government accountant witnesses, Lawrence
Goldstein and Testaverde, with documents
that purportedly undermined their testimony.
As with other aspects of trial planning,
“[d]ecisions about ‘whether to engage in
cross-examination, and if so to what extent
and in what manner, are . . . strategic in
nature’ and generally will not support an
ineffective assistance claim.” Dunham v.
Travis, 313 F.3d 724, 732 (2d Cir. 2002).
“Counsel’s conduct is only considered
unreasonable where there is no plausible trial
strategy justifying counsel’s behavior.”
Lewis v. United States, No. 10-CV-00718
(ENV), 2012 WL 2394810, at *4 (E.D.N.Y.
June 25, 2012) (citing Jackson v. Leonardo,
162 F.3d 81, 85 (2d Cir. 1998)).
(Id.) As a result, counsel “felt that in the
balance [Lackowitz’s] testimony would
likely be more damaging than helpful to
Litwok.” (Id.)
This
reasonable
inquiry
and
determination is the sort of tactical decisionmaking that courts are reluctant to secondguess, and merely presenting a “vague hope
that another expert might have reached a
different result than the government expert”
is insufficient to overcome that deference.
Batchilly v. Nance, No. 08 Civ. 7150
(GBD)(AJP), 2010 WL 1253921, at *39
(S.D.N.Y. Apr. 2, 2010), report and
recommendation adopted, 2011 WL 1226260
(S.D.N.Y. Mar. 30, 2011). The Court finds
that counsel fairly assessed that the probative
value of any testimony that Lackowitz might
have given would have been outweighed by
Lackowitz’s contradictory assertions and the
lack of admissible supporting evidence.
Further, even if arguendo trial counsel erred,
such error was not prejudicial because the
government adduced sufficient evidence of
petitioner’s guilt, and a jury may have still
convicted petitioner. See Graziano v. United
States, No. 12-CV-738 (JFB), 2013 WL
298116, at *17 (E.D.N.Y. Jan. 25, 2013).
Petitioner’s counsel stated that he did not
make use of the materials at issue because
“there was no good faith basis with which to
proffer any of the documents.” (Chapnick
Decl. at ¶ 5.) “Litwok either offered no
explanation for the source [of the
documents], or offered an explanation that
would be impracticable to verify. Several
times [counsel] felt compelled to ask Litwok
if she herself had in fact prepared the
document, which she denied.” (Id.) In
addition, counsel believed “that most of the
documents were so complicated that they
would be unhelpful to proffer at trial without
the use of an expert witness to explain them
to the jury.” (Id.)
Again, a court may not “second-guess
matters of trial strategy simply because the
chosen strategy was not successful,” Cuevas
v. Henderson, 801 F.2d 586, 590 (2d Cir.
1986) (citation omitted), and the Court finds
no reason to question counsel’s conclusion
7
F. Failure to Cross-Examine as to Bias
that he lacked grounds to impeach the
government’s witnesses with the documents
provided by petitioner. A criminal defendant
“‘does not have an unfettered right to offer’”
evidence that is inadmissible, see McCall v.
Capra, 102 F. Supp. 3d 427, 441 (E.D.N.Y.
2015) (quoting Holmes v. S. Carolina, 547
U.S. 319, 326 (2006)), and, in any case,
petitioner has not demonstrated that
counsel’s reasoning was flawed. Thus, there
is no basis to find that counsel’s performance
was deficient because there are “plausible
evidentiary and strategic reasons why
counsel did not pursue [petitioner’s
preferred] impeachment strategy.” Lewis,
2012 WL 2394810, at *4.
Petitioner further argues that counsel
should have asked the accountant witnesses
about whether they would receive a
whistleblower or other financial reward in
return for their testimony on behalf of the
government.
This claim fails for the same reason
identified above, namely, petitioner has not
overcome the substantial deference accorded
to counsel’s strategy vis-à-vis questioning
witnesses. See Dunham, 313 F.3d at 732.
She offers no support for her supposition that
the witnesses may have received a pecuniary
inducement from the government and has
thus “failed to lay out an adequate factual
basis upon which to ground relief.” Susana
v. United States, No. 94 Civ. 0700 (CSH),
1994 WL 577722, at *4 (S.D.N.Y. Oct. 19,
1994); see also Smalls, 2004 WL 1774578, at
*23. Wheeler v. United States, 351 F.2d 946
(1st Cir. 1965), the case that petitioner relies
on to advance her claim that counsel should
have asked about remuneration, is
distinguishable on the grounds that there, the
district court precluded cross-examination of
the government witness’s financial interests.
Id. at 947. Here, counsel elected not to
pursue this line of questioning, and petitioner
has not demonstrated why this choice
rendered him constitutionally effective. In
addition, as noted supra, counsel crossexamined both witnesses extensively and
sought to vitiate their credibility; therefore,
petitioner has also failed to show prejudice,
even assuming that counsel erred. See Bari,
750 F.2d at 1182.
Further, “[w]hether counsel’s failure to
impeach violates the Sixth Amendment
depends upon the extent to which the
impeachment evidence would have affected
the outcome of the case . . . .” Rodriguez v.
Portuondo, No. 01 Civ. 0547 (PAC), 2006
WL 2168314, at *10 (S.D.N.Y. Aug. 1,
2006). Here, petitioner has not established
how the documents in question would have
actually
undermined
the
witnesses’
credibility, see Litwok, 611 F. App’x at 15
(no evidence of false testimony), and the
record shows that counsel extensively crossexamined both accountant witnesses,
including as to the veracity of financial
analyses that their firms prepared (T. at 7587, 226-37). Accordingly, petitioner has not
demonstrated prejudice by showing that “but
for counsel’s errors, [s]he would not have
been convicted.” United States v. Eltayib, 88
F.3d 157, 169 (2d Cir. 1996); see also United
States v. Bari, 750 F.2d. 1169, 1182 (2d Cir.
1984) (no further cross-examination required
when
initial
cross-examination
was
“vigorous and comprehensive”). Thus, this
branch of her ineffective assistance of
counsel claim also fails.
G. Failure to Object to Prosecutorial
Misconduct
Finally, petitioner alleges that her counsel
should have objected to false statements in
the government’s summation and the
8
“remarks must ‘so infect[ ] the trial with
unfairness as to make the resulting conviction
a denial of due process.’” Gonzalez v.
Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)
(quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)) (alteration in original).
Misrepresentations made during the opening
or summation are not unlawful if the verdict
is supported by overwhelming evidence. See
Bentley v. Scully, 41 F.3d 818, 825 (2d Cir.
1994). Accordingly, even if counsel erred in
failing to object to the government’s remarks,
petitioner has not shown that this omission
prejudiced her because her conviction was
supported by substantial evidence, and the
statements at issue were not so pervasive or
grave as to undermine the trial’s fairness.
introduction of fraudulent evidence, namely,
the financial statements prepared by
Testevarde and an engagement letter signed
by another one of petitioner’s accountants.
On appeal, the Second Circuit found that
petitioner’s prosecutorial misconduct claim
was meritless because her essential allegation
was that the government “referenced the
allegedly perjured testimony of Government
witnesses” in its opening and closing
statements. Litwok, 611 F. App’x at 16.
Because the Second Circuit determined that
there was no evidence of witness perjury, it
rejected this assertion.
Id.
Likewise,
petitioner’s habeas claim also alleges that
counsel should have protested when the
government said that petitioner “‘took’, or
had ‘taken’, millions of dollars in investor
funds to which she was not entitled” during
opening and closing arguments. (Pet. at 33.)
As in her appellate challenge, petitioner
claims that the government should have
known that this allegation stemmed from
forged financial analyses prepared by
Testevarde, and that trial counsel should have
objected to those and similar statements, as
well as to the introduction of the underlying
documents.
IV. CONCLUSION
For the foregoing reasons, the Court finds
that petitioner has demonstrated no basis for
relief under 28 U.S.C. § 2255. Therefore, the
petition to vacate is denied in its entirety.
Furthermore, for the reasons set forth above,
the Court concludes that the petitioner has
failed to make a substantial showing of the
denial of a constitutional right, and therefore
a certificate of appealability shall not be
issued. See 28 U.S.C. § 2253(c)(1)-(2).
As previously stated, and as the Second
Circuit concluded, petitioner has adduced no
evidence of fraud or perjury. Therefore, she
has not shown that counsel was deficient for
failing to object to the statements or evidence
at issue. Specifically, with respect to the
engagement letter, counsel has said that
“[t]here was no evidence to suggest a factual
basis for her allegation [that it was a forgery,]
and there was no good faith basis for making
such a claim at trial.” (Chapnick Decl.
at ¶ 3.) Petitioner has not demonstrated why
the Court should reject that reasoned
decision. See Lewis, 2012 WL 2394810, at
*4. Further, for prosecutorial statements to
be unconstitutional, the government’s
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated: November 23, 2016
Central Islip, New York
***
Petitioner appears pro se. The attorneys
for respondent are Burton T. Ryan, Jr. and
Kelly T. Currie, Assistant United States
9
Attorneys, Office of the United States
Attorney for the Eastern District of New
York, 610 Federal Plaza, Central Islip, NY
11722.
10
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?