Chu v. USA

Filing 27

OPINION: Chu has failed to demonstrate any basis for relief under 28 U.S.C. § 2255. The motion is therefore denied. I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal taken from this decision and order would not be taken in good faith. The Clerk of the Court shall close this case. (Signed by Judge Denny Chin on 12/5/2012) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:

DAlE FI=-LE:':':'!"D-:-Ie)-Z""'S'Z""'(-J.­

UNITED STATES OF AMERICA

OPINION

- against -

11 Civ. 4752 (DC)
07 Cr. 1143 (DC)

MICHAEL CHU,
Defendant.

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APPEARANCES:

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PREET BHARARA, ESQ.

United States Attorney for the
Southern District of New York
By: Rosemary Nidiry, Esq.
Assistant United States Attorney
One Saint Andrew's Plaza
New York, New York 10007
MICHAEL A. YOUNG, ESQ.
Attorney for Defendant
165 Christopher Street, Ste. 2D
New York, New York 10014

CHIN, Circuit Judge

On January 6, 2009, defendant Michael Chu pled guilty
to conspiracy to smuggle merchandise into the United States and
trafficking in counterfeit goods.

On July 27, 2009, I sentenced

him principally to 97 months' imprisonment.
to 28 U.S.C.

§

Chu moves pursuant

2255 to vacate, set aside, or correct his sentence

on the grounds that he did not knowingly and voluntarily enter a

I

USOcSD"NY
J
DATE SCANNEO~/_iJ.....Sj...;.(_11J...
___

guilty plea, and that he was provided ineffective assistance of
counsel.

For the reasons set forth below, the motion is denied.
BACKGROUND

A.

Procedural History

Chu was indicted on December 12, 2007, and pled guilty,
pursuant to a plea agreement, on January 6, 2009.

I sentenced

Chu on July 27, 2009, and he timely appealed to the Second
Circuit on August 10, 2009.

Nearly two years later, while his

appeal was still pending, Chu, proceeding pro se, moved pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence.

The Second Circuit stayed Chu's appeal pending the

outcome of his § 2255 motion.

Following a number of conferences,

Chu, with the assistance of counsel, filed a supplemental § 2255
motion on May 25, 2012.

I held an evidentiary hearing on July

19, 2012.
B.

The Facts

1.

The Underlying Scheme

Beginning in approximately June 2006, Chu, along with
ten co-conspirators, participated in a large international
smuggling operation.

(PSR

~

20).1

Specifically, the

1
References are as follows:
"Ind't" for the grand jury
indictment of Chu filed on December 12, 2007j "plea Agmt." for

-

2 ­

organization smuggled counterfeit merchandise, worth at least
$200 million, into the United States from China via the Port
Newark-Elizabeth Marine Terminal in New Jersey.

(I$L..).

Chu and

others then transported these goods into the Southern District of
New York and elsewhere in the metropolitan area for storage and
redistribution.

(Id. at 21).

The scheme depended on a corrupt

union official who could clear imported goods through U.S.
customs.

(Id. at 29).

Unbeknownst to the co-conspirators, the

the plea agreement, dated January 6, 2009; "Plea Tr." for the
transcript of Chu's plea allocution on January 6, 2009; "PSR" for
the Revised Presentence Investigation Report, dated July 20,
2009; "Sen. Tr." for the transcript of Chu's sentencing on July
27, 2009; "Pet. Notice of Appeal" for Chu's Notice of Appeal,
filed on August 10, 2009; "§ 2255 Mot." for Chu's original § 2255
motion, filed on July 11, 2011; "Sept. 26, 2011 Order" for an
order signed by Judge Chin on September 26, 2011; "Nov. 1, 2011
Tr." for the transcript of the conference on November 1, 2011;
"Jan. 12, 2012 Tr." for the transcript of the conference on
January 12, 2012; "Brady Feb. 1, 2012 Letter" for Brady's
February 1, 2012 letter to Judge Chin; "March 5, 2012 Tr." for
the transcript of the conference on March 5, 2012; "March 26,
2012 Order" for an order signed by Judge Chin on March 26, 2012;
"Pet. Supp. Mem." for Chu's supplemental brief in support of his
§ 2255 petition, dated May 25, 2012; "Pet. Supp. Aff." for Chu's
affirmation in support of his supplemental § 2255 motion, dated
May 25, 2012; "Gov't Mem." for the Government's memorandum in
opposition to Chuls § 2255 motion, dated June 14, 2012; "July 19,
2012 Tr." for the transcript of the evidentiary hearing on Chu's
§ 2255 petition on July 19, 2012; "Gov't July 20, 2012 Letter"
for the Government's letter to Judge Chin, dated July 20, 2012;
"Gov't Post-Hearing Mem." for the Government's Post-Hearing
Memorandum of Law in Opposition to Chuls § 2255 Petition, dated
August 13, 2012; and "Pet. Post-Hearing Mem." for Chuls Post­
Hearing Memorandum of Law, dated August 13, 2012.
- 3 ­

union official was in fact an undercover federal agent.

(rd. at

20) .
Chu bribed the undercover agent with multiple cash
payments (totaling over $100,000), and provided him with
information regarding incoming shipments -- specifically, 59
containers of counterfeit merchandise, valued at approximately
$56,765,450.
19).

(rnd't ~ 5; PSR ~~ 30, 97; Gov't Post~Hearing Mem.

Additionally, Chu monitored and coordinated the actions of

his co-conspirators.

(PSR

~~

31, 32, 36).

On December 5, 2007,

law enforcement officers raided a warehouse where the smuggled
goods were stored.
day.

(rd. at 94).

Chu was arrested later that

(rd. at 95).

2.

The Defendant
Chu emigrated to the United States from Shanghai,

China, and is a United States citizen.
Aff. 1).
diabetes.

(Plea Tr. 10; Pet. Supp.

He is seventy-five years old and suffers from advanced
(Pet. Supp. Aff. 1).
Chu speaks and understands English.

He has been living

in the United States for over three decades, working in the
textile import-export business.

(Sen. Tr. 4-5, 9-10).

During

that time, he was able to understand and converse effectively, in
English, with his lawyer, David Singer, regarding a number of
- 4

­

legal matters.

(Nov. 1, 2011 Tr. 3-5).

He was also able to

understand and converse with other counsel he retained in
relation to this proceeding.

(rd. at 8).

Additionally, Chu conversed with me, in English, in a
coherent and intelligent manner throughout the many court
proceedings in this case. 2

These conversations included a

lengthy explanation of the underlying counterfeit scheme, which
Chu described in English.

(Plea. Tr. 14-19).

Further, Chu

consistently acknowledged and demonstrated that he understood
what I was asking him.
Tr. 12-13).

(Id. at 3-4; Sen. Tr. 2, 12; Nov. 1, 2011

Prior to filing his

§

2255 motion, Chu had not

requested an interpreter for any of the proceedings in this case,
and never demonstrated the need for one.

3.

David Singer
Chu was initially represented in this case by

Singer, who had represented Chu in various other matters since
(Nov. 1, 2011 Tr. 3-4).

1978.

These included a number of minor

civil cases, commercial transactions, bankruptcy proceedings, and
one criminal case in the Eastern District of New York.

Chu

These proceedings included, for example, the plea

allocution on January 6, 2009i the sentencing on July 27, 2009;

and the status conference on November 1, 2011.

2

- 5 ­

prevailed in that case on a motion to dismiss.
2012 Tr. 36).

(Id. i July 19,

Singer has over thirty years of general litigation

experience, in both state and federal court, litigating
forfeiture, tax fraud, drug, and murder cases.

(July 19, 2012

Tr. 35).

4.

The Indictment
On December 5, 2007, a grand jury sitting in this

District indicted Chu on three counts.

First, it charged Chu

with conspiracy to smuggle merchandise into the United States and
traffic counterfeit merchandise in violation of 18 U.S.C.
(Ind't

~~

1-17).

§

371.

Second, it charged Chu with smuggling and

attempting to smuggle counterfeit merchandise into the United
States in violation of 18 U.S.C.

§

(Id. at 18-19).

545.

Third,

it charged Chu with trafficking counterfeit goods into the United
States in violation of 18 U.S.C.

5.

§

2320.

(Id. at 20-21) .

plea Negotiations
Singer entered into negotiations with the Government

about the terms of a plea agreement -- specifically, the value of
counterfeit goods attributable to Chu, his role in the scheme,
and the appropriate Guidelines range.

(Gov't July 20, 2012

Letter at 1-2; Nov. 1, 2011 Tr. 10.).

Originally, the Government

proposed a sentencing range

168-210 months if the case
- 6 ­

resolved before trial, 239-293 months if the case resolved after
trial -- based on the full Manufacturer's Suggested Retail Price
("MSRP") of the counterfeit goods.
at 2).

(Gov't July 20, 2012 Letter

Singer negotiated a 75% decrease in this figure.

Post-Hearing Mem. 19).

(Gov't

As a result, the plea agreement reflected

a Guidelines range that was based, in part, on a determination
that the goods for which Chu was responsible were valued between
$7-$20 million.

(Plea Agmt. at 2).

This was a fraction of the

estimated retail value of the goods in the 59 containers
attributable to Chu (Gov't July 20, 2012 Letter at 1), and
resulted in a significantly lower sentencing range

97-121

months -- than the Government originally calculated.

(Plea Agmt.

at 3) .
Singer did not physically examine the contents of the

containersj however, none of the counsel for the six co­
defendants who also accepted plea agreements examined the goods. 3
(Gov't July 20, 2012 Letter at 2).

Moreover, no counsel

3
Of the ten other co-defendants in this case, three pled
guilty to misdemeanors and two pled guilty pursuant to
cooperation agreements. The five remaining co-defendants pled
guilty to felonies pursuant to non-cooperation plea agreements.
Two of those defendants pled to loss calculations based on the
full MSRP of the counterfeit goods, while the remaining three
were able to negotiate a 75% discount similar to that secured by
Chu.
(Gov't July 20, 2012 Letter at 1-2).

-

7 ­

negotiated an infringement value lower than that negotiated by
Singer.
6.

(Id. at 1) .
Plea Agreement and Allocution

On January 6, 2009, Chu pled guilty, pursuant to a plea
agreement, to conspiracy and trafficking counterfeit goods.
(Plea Agmt. at 1).

The plea agreement reflected the plea

negotiations detailed above, and provided for a stipulated
Guidelines range of 97-121 months.

(Plea Agmt. at 3-4).

Chu

agreed not to file a direct appeal or litigate any sentence
within or below that range.

(Id. ) .

Singer represented Chu at the plea allocution on
January 6, 2009, which was conducted entirely in English.

Chu

confirmed that he had read the indictment and had discussed it
with his lawyer.

(Plea Tr. 5-7).

We had the following colloquy

at the outset of the hearing:
THE COURT:
You've had enough time to review
it [the plea agreement] with your client?
MR. SINGER: Yes. We've had about 15
minutes, your Honor.
THE COURT:
I want to make sure you've had
sufficient time to review it with your
client.
(Pause)

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MR. SINGER: I want to make sure my client
feels -­
THE COURT: Yes.
MR. SINGER: Yes.
MR. SINGER: Okay. Yes, your Honor, we've
had sufficient time.

THE COURT: Mr. Chu, do you understand that
you are now under oath, and that if you
answer my questions falsely, your -­
THE DEFENDANT:

Yes.

THE COURT: Your false answers could later be
used against you in another prosecution for
perjury or making false statements?
THE DEFENDANT:

Yes.

THE COURT: Have you had a full opportunity
to discuss your case with your attorney, and
to discuss the consequences of pleading
guilty?
THE DEFENDANT:

Yes.

THE COURT: Are you satisfied with your
attorney, Mr. Singer, and his representation
of you?
THE DEFENDANT:

Yes.

(rd. at 2-5).

9 ­

Additionally, Chu stated that he had read and
understood the terms of the plea agreement, and was aware that he
would forfeit certain rights by entering a guilty plea
13-14).

(Id. at

Chu also waived his right to appeal or to challenge any

sentence within or below the guideline range.

(Id. at 12-13) .

During the hearing, Chu also explained the details of the scheme
to me in English.

7.

(Id. at 14-19).

Sentencing
On July 27, 2009, Chu appeared for sentencing.

I

considered all the facts and circumstances, including, inter
alia: 1) the extent of the trafficking; 2) the amount in bribes
paid to the undercover agent; 3) Chu's central role in the
scheme; and 4) Chu's age.
agreement.

I also reviewed the PSR and the plea

Chu pled guilty to importing between $7 million and

$20 million worth of counterfeit goods in a large, international
smuggling operation, and paying approximately $107,000 in bribes
to the undercover agent.

(Sen. Tr. at 19-20).

In addition, Chu

(Id. at 20).

He was, however,

played a key role in the scheme.

seventy-one years old at the time of sentencing.

(Id. at 19-20).

Taking into account all the circumstances, I sentenced Chu to
concurrent terms of 60 and 97 months' imprisonment, with two
years of supervised release and forfeiture of specified property.
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(Id. at 20-21).

The 97-month term of imprisonment was at the
(PSR ~ 174).

bottom of the stipulated Guidelines range.

8.

Appeal and the July 8, 2011

§

2255 Petition

Chu timely appealed on August 10 1 2009.
of Appeal).

(Pet. Notice

In the years that followed l Chu changed counsel

multiple times l and thus the appellate proceedings were delayed.
On July 111 2011 1 Chu filed a pro se

§

2255 petition to vacate

I

set aside l or correct his sentence on the grounds that he did not
knowingly or voluntarily enter into the plea agreement

I

the assistance provided by counsel had been ineffective.
Mot. 1-4).

and that
(§ 2255

SpecificallYI Chu contended that he was not provided

with an interpreter l was unable to adequately understand the
proceedings or the plea agreement

I

and was denied sufficient time

to discuss the plea agreement with counsel.

Further

I

Chu alleged

that his counsel failed to adequately investigate the
infringement value of goods attributable to himl and possessed a
deficient understanding of the relevant law and procedure. 4

(Id.

Chu makes a number of other allegations in addition to
these claims including: actual innocence prosecutorial
misconduct obstruction of justice l entrapment and insufficient
evidence. Some of these claims are reiterated in Chu's
Supplemental Brief l while others are unaddressed. Many of these
claims (i.e. entrapment prosecutoria1 misconduct etc.) have not
been raised since Chu's initial § 2255 motion and were not
considered at any of the subsequent conferences or hearings or
4

I

l

I

I

I

I

l

I

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at 3).
of the

9.

The Second Circuit stayed the appeal pending the outcome
§

2255 petition.

The November 1, 2011 Conference
On November 1, 2011, I held a status conference to

address Chu's

§

2255 claims.

Chu (proceeding pro se), Singer (no

longer representing Chu) , and Alan Fraade, another of Chu's
attorneys, attended, along with the Government. s

At the

conference, in response to my questions, Singer stated that,
during his approximately thirty-year representation of Chu, he
regularly conversed with Chu in English and was confident that
Chu could understand him during the underlying proceedings.

in post-hearing briefing.
I therefore conclude that Chu waived
these claims and I do not address them in this opinion. See
United States v. Deandrade, 600 F.3d 115, 120-21 (2d Cir. 2010)
(summarily rejecting meritless pro se claims where both pro se
and counseled briefs were submitted) i Ennis v. LeFevre, 560 F.2d
1072, 1075 (2d Cir. 1977) (despite assertion of unique issues in
pro se brief, court only considered arguments asserted by
counsel) .
5
Fraade had represented Chu for approximately a year
and a half after the sentencing and before Chu filed his § 2255
petition pro se.
(Nov. 1, 2011 Tr. 8-10). Another attorney,
Lisa Scolari, had also briefly represented Chu in the interim
regarding his pending appeal.
(July 19, 2012 Tr. 20-21). After
the case was returned to me, I appointed Chu counsel under the
Criminal Justice Act -- Colleen Brady. Brady was relieved when
Chu retained his current attorney, Michael Young.

- 12 ­

(Nov. I, 2011 Tr. 4-5).

Singer confirmed that Chu could read and

write English and had reviewed the plea agreement:
MR. SINGER:
. . . And when we came here I
went in the back, and I had 15 minutes to
read it to him.
I read it to him.
I asked
him if he understood it, he said yes, and
then we came out.
THE COURT: And do you have an understanding
as to whether Mr. Chu can read and write
English?
MR. SINGER:
can

It's my understanding that he

(Id. at 6-7) .
Fraade further confirmed Chu's English proficiency;
during his representation of Chu, he also conversed regularly
with his client in English and believed Chu understood him.
at 8}.
Before the conference, Chu requested an interpreter.
This was the first time he had made such a request.

The

interpreter, however, arrived late, apparently due to train
delays.

(Id. at 13).

Nonetheless, Chu and I conversed in

English at the conference, and

Ch~

explicitly confirmed that he

understood what I was saying:
THE COURT: All right. And are you
understanding what I'm saying now, by the
way?
- 13 ­

MR. CHU: Yes, I understand.
(Id. ) .
At the conference, I inquired as to how the value of
the smuggled goods had been calculated.

The Government reported

that the parties had calculated the value of the goods following
extensive negotiations and in accordance with Guidelines
recommendations.

(Id. at 10).

appointed CJA counsel for Chu.
10.

At the end of the conference, I
(Id. at 20).

The January 10, 2012 Conference and CJA Representation
I held a status conference on January 10, 2012.

At the

conference, Brady stated that Chu no longer wished to withdraw
his plea, but was still intent on asserting an ineffective
assistance of counsel claim for the representation he received at
sentencing.

(Jan. 10, 2012 Tr. 4-5).

Brady indicated that Chu

would thereafter file an amended petitionj however, on February
1, 2012, Brady informed me that, upon further consideration, Chu
would not be filing an amended petition.
Letter).

(Brady Feb. 1, 2012

On March 5, 2012, I held another conference at which

Brady stated that Chu, in fact, still wished to pursue his

§

2255

motion, and was in the process of obtaining other counsel.
(March 5, 2012 Tr. 2-3).

On March 26, 2012, Young f.iled a notice

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of appearance on behalf of Chu, and I relieved Brady as Chu's
counsel.

11.

(March 26, 2012 Order).

The May 25, 2012 Supplemental

§

2255 Briel

On May 25, 2012, Young filed a supplemental § 2255
brief on Chu's behalf.

(Pet. Supp. Mem.).

In his supplemental

brief, Chu reiterated many of the claims outlined in his initial
petition.

(Compare

§

2255 Mot. 1-4 with Pet. Supp Mem.).

Additionally, Singer submitted an affidavit detailing his meeting
with Chu at the plea hearing and their discussion of a likely
sentence.

(Pet. Supp. Aff., Ex. A).

On July 19, 2012, I held an

evidentiary hearing at which several witnesses testified.
Specifically, Lisa Scolari, one of Chu's former lawyers,
questioned a number of Singer's tactical decisions.

(July 19,

2012 Tr. 30-31).

DISCUSSION
Chu's motion is denied.

First, Chu waived his right to

collaterally attack his conviction and sentence.

Second, even

assuming Chu did not waive his right to make this challenge, the
motion fails on the merits.

A.

Knowing and Voluntary Waiver
Chu argues that he did not knowingly and voluntarily

enter into the plea agreement because he lacked a sufficient
- 15 ­

understanding of the terms of the agreement, was

un~ble

to

effectively understand his counsel, and was denied adequate time
to review the agreement.

I find that Chu fully understood the

consequences of entering into the plea agreement, and voluntarily
waived his right to challenge the plea.

1.

Applicable Law
It is well established that a defendant may, in

entering into a plea agreement, waive his right to appeal or to
file a petition under 28 U.S.C. § 2255.

United States v. Gomez­

Perez, 215 F.3d 315, 318 (2d Cir. 2000).

When a defendant has

waived his right to appeal or collaterally attack his sentence,
any challenge to the enforceability of his plea is limited to the
constitutionality of the process by which it was entered.
States v. Hernandez, 242 F.3d 110, 114 (2d Cir. 2001)

United

(per

curiam) .
Courts have affirmed the constitutionality of this
process where a defendant "knowingly and voluntarily" enters into
a plea agreement.
(2d Cir. 2000).

United States v. DeJesus, 219 F.3d 117, 121
In making this determination, the court is

entitled to rely on a defendant's statements made at the plea
allocution, Hernandez, 242 F.3d at 112, including statements that
the defendant was previously satisfied with counsel and
16 ­

understood the terms of the plea agreement.
F.3d at 121.

I!

Id.;

D~Jesus,

219

[S]tatements at a plea allocution carry a strong

presumption of veracity.

II

United States v. Torres, 129 F.3d 710,

715 (2d Cir. 1997).
A valid plea agreement waiver precludes appellate
review of the issues within its scope.
114.

Hernandez, 242 F.3d at

And" [i]n no circumstance . . . maya defendant, who has

secured the benefits of a plea agreement and knowingly and
voluntarily waived the right to appeal a certain sentence, then
appeal the merits of a sentence conforming to the agreement.

I!

United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.
1993)

(per curiam) .

2.

Application
Chu argues that his limited grasp of the English

language, inability to effectively understand counsel, and lack
of sufficient time to review the plea agreement rendered his
waiver unknowing or involuntary -- and therefore
unconstitutional.

For the reasons outlined below, this argument

lacks merit.

a.

English Proficiency

Chu's present claim that his English was insufficient
to offer a knowing plea is belied by numerous indicia of his
- 17 ­

English proficiency.

As detailed above, Chu confirmed, on

multiple occasions, that he was proficient in speaking English.
(Nov. 1, 2011 Tr. 13; Plea Tr. 7, 13).

Given the nstrong

presumption of veracity" afforded to these statements, Torres,
129 F.3d at 715, I was entitled to rely on them.

H~rnandez,

242

F.3d at 112j see also Benitez v. Green, No. 02-Civ-63321, 2005 WL
289753

1

at *9 (S.D.N.Y. Jan. 31, 2005)

(rejecting claim, in

habeas petition, that defendant did not understand plea agreement
where he had repeatedly conversed with the court in English) .
Based on the findings of fact outlined above, I conclude that Chu
was able to effectively speak and understand English throughout
these proceedings.

b.

Request for Interpreter

Chu requested an interpreter for the first time at the
November 1, 2011 status conference. 6

Though the interpreter

arrived late, Chu nonetheless understood my direction and
consulted with counsel on legal issues.

(Nov. 1, 2011 Tr. 13).

His argument, therefore, that he required an interpreter

Chu had previously attended at least four prior
hearings without an interpreter present. Only after raising
claims that he had difficulty understanding English for the first
time in his § 2255 motion did Chu request the aid of an
interpreter.
6

- 18 ­

throughout the proceedings and Singer failed to request one on
his behalf, is rejected.

See Shahid v. United

stat~s,

Nos. 11­

cv-8261(CM), Sl 07-cr-489(CM), 2012 WL 1883699, at *4-5 (S.D.N.Y.
May 22, 2012)

(finding ineffective assistance claim based on

failure to use interpreter meritless where defendant engaged in
dialogue with the court and confirmed understanding of English).

c.

Relationship with Counsel

Chu also had a longstanding relationship with Singer,
dating back some thirty years and spanning legal representation
across a number of matters.

(Nov. 1, 2011 Tr. 3-4).

Chu and

Singer communicated effectively in English during this time
regarding various legal issues.

(Id. at 4-5).

to confer successfully in English with Fraade.

Chu was also able
(Id. at 8).

In

light of this history, Chu's post hac claim that he could not
understand Singer's advice regarding this specific allocution is
not credible.

d.

Review of Plea Agreement

At the plea allocution, Chu affirmed that he had
reviewed the indictment and discussed it with counsel.
5-7).

(Plea Tr.

He further confirmed that he understood the plea

agreement, was entering his plea free from duress and upon his

- 19 ­

own volition, and was satisfied with his counsel's
representation.

(Id. at 2-7).

The fact that Chu only reviewed the plea agreement for
fifteen minutes is insufficient to show that he lacked adequate
time to fully comprehend the agreement, and is belied by his
confirmation, at the plea allocution, that it was indeed
sufficient time.

See Hernandez, 242 F.3d at 112-14 (upholding

knowing and vOluntary waiver where defendant reviewed plea
agreement in five minutes)

i

see also united States v. Mendez, No.

S2-94-Cr-466 (JFK) , 1996 WL 665637, at *5 (S.D.N.Y. Nov. 15,
1996)

(finding that defendant's affirmation that he had enough

time to review plea agreement belies post hac claim that
defendant lacked requisite time to review agreement).

Moreover,

I offered to give him more time to review the agreement with
counsel, but Chu declined.

(Plea Tr. 2-5).

Accordingly, I find that Chu knowingly and voluntarily
waived his right to appeal or challenge the sentence.

Hence

I

this motion is barred by the waiver in his plea agreement.
B.

Merits

Even assuming Chu did not waive his right to bring a
2255

motion

l

the motion fails on the merits.

- 20 ­

§

1.

Ineffective Assistance of Counsel
Chu contends that his counsel provided ineffective

assistance, both with respect to his guilty plea and his
sentencing.

For the reasons set forth below, I reject these

arguments.
a.

Applicable Law

Courts evaluate whether an attorney has provided
ineffective assistance of counsel pursuant to the two-prong
framework established in Strickland v. Washington, 466 U.S. 668,
687 (1984).

Under the Strickland standard, a defendant must show

that his counsel's representation fell below an "objective
standard of reasonableness."

Id. at 687-88.

Reasonableness is

measured against prevailing professional norms.

Id. at 688.

Judicial scrutiny of counsel's performance is extremely
deferential and carries a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.

Id. at 689; see also United States v. Berkovich, 168

F.3d 64, 67 (2d Cir. 1999).

Further, "the court must make every

effort . . . to eliminate the distorting events of hindsight, to
reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the

- 21 ­

time."

Henry v. Poole, 409 F.3d 48, 63

(2d Cir. 2005)

(internal

quotations omitted) .
If a defendant can demonstrate deficient performance,

he must also establish that the ineffective assistance of counsel
resulted in "substantial prejudice.
687.

II

Strickland, 4E)6 U.S. at

Specifically, substantial prejudice results when there is a

reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.
Id at 694; see also United States v. Arteca, 411 F.3d 315, 320
(2d Cir. 2005)

(holding that petitioner must show that "there is

a reasonable probability that were it not for counsel's errors,
he would not have pled guilty and would have proceeded to
trial").

A defendant who swears in open court that he has

enjoyed effective assistance of counsel faces an uphill battle
when he later seeks to retract these assertions.

See Torres, 129

F.3d at 715 (addressing counsel's performance during the plea
process) .

b.

Application

Chu makes a number of related arguments regarding his
counsel's performance:

1) Singer failed to request an

interpreteri 2) Singer failed to adequately investigate or
negotiate the value of the counterfeit goods; and 3) Singer
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lacked the requisite experience to successfully represent Chu in
this matter.

Chu's additional claims regarding

Sin~erls

failure

to adequately explain the plea agreement have been addressed in
Part A(2), supra, and therefore are not reiterated here.

For the

reasons set forth below, I find that Chu did not receive
ineffective assistance of counsel.
i.

Objective Standard of Reasonableness
aa.

Failure to Request Interpreter

To the extent that Chu argues that he required an
interpreter and Singer subsequently failed to obtain one for him
or adequately recognize the need for one, this contention is
unavailing for the reasons set forth above.

Moreover, there is

no indication that Chu raised the need for an interpreter with
Singer at any time, or that Singer ignored any request for one.
Thus, this argument fails.

See United States v. Vargas, 871 F.

Supp. 623, 625 (S.D.N.Y. 1994)

(rejecting ineffective assistance

of counsel claim partly based on failure to request interpreter
where defendant did not express need for interpreter to counsel
at any time)

i

see also Vellon v. David, Nos. 01-cv-6505(JBW), 03­

misc-0066(JBW), 2003 WL 23185761, at *6-7 (E.D.N.Y. Nov. II,
2003)

(finding that, though defendant was more comfdrtable

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speaking Spanish, he was proficient enough in English to
understand court and interpreter was therefore

bb.

unwa~ranted).

Failure To Investigate

Chu further contends that Singer failed to meet the
reasonableness standard required by Strickland because he did not
independently examine the counterfeit goods or otherwise
challenge the Government's initial estimate of their value.
(Pet. Supp. Mem. 3-14).

Chu specifically argues that Singer

violated the ABA Standards for Criminal Justice by not conducting
an lIappropriate investigation and study of the case" or "an
analysis of controlling law and the evidence likely to be
introduced at trial."

(Pet. Supp. Mem. 4)

(quoting ABA Standards

for Criminal Justice R. 4-6.1 (3d ed. 1993)).

Chu states that

Singer should have hired an expert to further analyze the value
of the counterfeit merchandise attributed to him, or physically
examined the contents of the containers to determine whether the
value ascribed to the goods by the Government was appropriate.?

?
Chu makes a number of additional factual challenges
concerning the Government's calculation of the value of the
counterfeit goods.
In doing so, Chu not only relies on an
outdated spreadsheet that was later amended and produced to the
defendant (Gov't Mem. 25-26, n.5) t but makes a number of
incorrect and baseless assumptions regarding the va~ue of the
merchandise which do not warrant discussion here.
For example
Chu argues that the Government's reliance on the MSRP as a metric
t

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Singer successfully negotiated a 75% decrease in the
value of goods attributable to Chu, and, as a consequence, a
substantial decrease in his sentencing exposure.

Therefore,

Singer's decision not to examine each container could very well
be deemed strategic.

See United States v. Nersesiart, 824 F.2d

1294, 1321 (2d Cir. 1987)

(rejecting ineffective assistance of

counsel claim and holding that counsel's decision not to
investigate certain avenues of defense is accorded significant
deference in Strickland test).

Had Singer chosen to physically

open each container, examine the goods, and render an independent
valuation, it is entirely possible that, contrary to Chu's
assumption, the Government's initial calculation of value might
have proved to be too low.
Furthermore, Singer's conduct in this respect was
objectively reasonable when compared with the conduct of counsel
for Chu's co-defendants, none of whom asked to inspect the
counterfeit merchandise.

See Lundgren v. Mitchell, 440 F.3d 754,

in calculating the value of the counterfeit goods was in conflict
with the Guidelines specification that the "retail value" be
used. The Government, in fact, concedes this argument, stating
in its July 20, 2012 letter that Singer was able to "demonstrate
that such a position was not necessitated by the Gu;Lde1ines."
(Gov't July 20, 2012 Letter at 1-2). This accounted for the 75%
decrease in the MSRP that Singer was ultimately able to obtain
for his client.
- 25 ­

797 (6 th Cir. 2006).

Therefore, Chu cannot demonstrate that

Singer's failure to investigate the counterfeit merchandise fell
outside "the wide range of reasonable professional assistance.

II

Strickland, 466 U.S. at 689; see also Lundgren, 440 F.3d at 797
(1I0ne indicium of reasonableness is the conduct of other counsel
in similar situations. ") .

cc.

Lack of Experience

Chu also contends that Singer lacked the requisite
federal criminal experience to provide adequate assistance in
this case.

Specifically, he argues that Singer failed to pursue

obvious procedural routes to best protect his interests,
including failing to obtain a proffer or a cooperation agreement.
(July 19, 2012 Tr. 10, 30-31;
Mem. 16).

§

2255 Mot. 2-3; Pet. Post-Hearing

Singer is an experienced attorney whom Chu has relied

on in the past to handle complex and important matters, including
another federal criminal case (which ended in a dismissal of the
charges).

That another attorney would have pursued different

tactical routes than Singer is not determinative.

See

Strickland, 466 U.S. 689-90 (noting that "there are countless
ways to provide effective assistance in any given case" and
II

[e]ven the best criminal defense attorneys would not defend a

particular client in the same wayll)

i

- 26 ­

see also

Baske~ville

v.

Dennison, No. 04-Civ-10261 (PKC) , 2005 WL 3535067, at *3, 6
(S.D.N.Y. Dec. 27, 2005)

(rejecting ineffective assistance of

counsel claim because counsel's limited experience as criminal
defense attorney did not prejudice client).

Thus, I find that

Chu failed to demonstrate that Singer had insufficient experience
to effectively litigate this case.
ii.

Substantial Prejudice

As I hold that counsel's actions met an objective
standard of reasonableness, I need not consider whether these
actions caused substantial prejudice.

See Chang v. united

States, 250 F.3d 79, 84 (2d Cir. 2001)

(noting that because

defendant did not establish that counsel's assistance was
unreasonable, court need not address whether defendant was
prejudiced by ineffective counsel)

i

see also Bennett v. United

States, 663 F.3d 71, 85 (2d Cir. 2011).

I

note, however, that I

am not persuaded that the result would not have been any
different had Singer inspected the counterfeit goods, requested
an interpreter, or made further efforts to negotiate a reduction
in the value of the goods.

- 27 ­

CONCLUSION

For the reasons set forth above, Chu has failed to
demonstrate any basis for relief under 28 U.S.C. § 2255.
motion is therefore denied.

The

I certify pursuant to 28 U.S.C. §

1915(a) (3) that any appeal taken from this decision and order
would not be taken in good faith.
The Clerk of the Court shall close this case.
SO ORDERED.
Dated:

New York, New York
December 5, 2012

~e--:,
United States Circuit Judge
Sitting by Designation

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