Fofanah v. United States of America

Filing 12

OPINION & ORDER re: 1 MOTION to Vacate. For the reasons above, Fofanah's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Court declines to issue a certificate of appealability because Fofanah has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000). Further, the Court certifies, pursuant to 28 U.S.C. § 191 5(a) (3), that any appeal from this Order would not be taken in 9ood faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to terminate the motions docketed at ECF Nos. 48 and 58 in Case No. 11 Cr. 72l(JFK). The Clerk of the Court is also respectfully directed to close Case No. 15 Civ. 6538(JFK). SO ORDERED. (Signed by Judge John F. Keenan on 10/11/2017) (anc)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 10/11/2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------ X
UNITED STATES DISTRICT COURT
ABDULAI FOFANAH,
:
SOUTHERN DISTRICT OF NEW YORK
:
-----------------------------------------------------------x
Petitioner,
In re FANNIE MAE 2008 SECURITIES:
:
08 Civ. 7831 (PAC)
:
LITIGATION
:No. 15 Civ. 6538 (PAC)
09 MD 2013 (JFK)
: No. 11 Cr. 721(JFK)
:
-against:
OPINION & ORDER
OPINION & ORDER
:
-----------------------------------------------------------x
:
UNITED STATES OF AMERICA,
:
:
Respondent.
------------------------------United States District Judge:
X
HONORABLE PAUL A. CROTTY,

APPEARANCES
FOR PETITIONER ABDULAI FOFANAH BACKGROUND1
Pro se
The early years of this decade saw a boom in home financing which was fueled, among
FOR RESPONDENT UNITED STATES OF AMERICA
Ian McGinley, Esq. rates and lax credit conditions. New lending instruments, such as
other things, by low interest
JOHN F. KEENAN, United States DistrictAlt-A mortgages (low-documentation loans)
subprime mortgages (high credit risk loans) and Judge:
Before boom going. Borrowers played a role too; they took on unmanageable risks on the
kept the the Court is Petitioner Abdulai Fofanah’s motion to
vacate, set aside, or correct continue to rise and that refinancing options would always be
assumption that the market would his sentence pursuant to 28 U.S.C.
§ 2255. Fofanah future. Lending discipline was lacking denied effective originators did
available in the asserts that: (1) he was in the system. Mortgage
assistance of counsel in violationRatherthe carry the Amendment; (2) a the
not hold these high-risk mortgage loans. of than Sixth rising risk on their books,
subsequent development in the secondary aiding market, often as securitized packages
originators sold their loans into the law of mortgage and abetting entitles
him to known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
relief; and (3) a sentencing amendment that became
effective after he was sentenced entitlesthe demand a reduced
But then the housing bubble burst. In 2006, him to for housing dropped abruptly
sentence. For the reasons stated below, Fofanah’s motion is
and home prices began to fall. In light of the changing housing market, banks modified their
denied.
lending practices and became unwilling to refinance home mortgages without refinancing.

1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
1
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1

I. Background
A. Fofanah’s Offense and Arrest
On four occasions in May and June of 2011, Fofanah
participated in the loading of shipping containers freighted
with various high-end stolen vehicles, including models produced
by BMW, Porsche, and Mercedes. (See Presentence Investigation
Report ¶¶ 24-26, 34 (Oct. 9, 2012) [hereinafter PSR].)

Fofanah

planned to export the high-end vehicles to the African nation of
Guinea using certificates of title for old, used cars produced
by different manufacturers. (Id. ¶¶ 19-23.)

In other words, the

titles did not match the vehicles that would be exported.

The

total market value of the stolen vehicles Fofanah attempted to
export was approximately $558,000. (See Sent. Tr. at 23:3-5,
Nov. 9, 2012.)
In early May 2011, Fofanah hired Fousseni Traore Sahm to
assist with the loading and transportation of the shipping
containers loaded with stolen vehicles. (PSR ¶ 18; Mem. of L. of
the United States of America in Opp’n to Abdulai Fofanah’s Mot.
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
at 5, United States v. Fofanah, No. 11 Cr. 721, ECF No. 55
(filed Dec. 29, 2015) [hereinafter Gov. Opp’n].)

Unbeknownst to

Fofanah, Sahm was an unpaid informant for the New York City
Police Department (the “NYPD”), who alerted authorities to the
2

export scheme. (PSR ¶ 18.)

On May 12 and May 20, 2011, NYPD

officers surveilled Fofanah and others as they loaded vehicles
into shipping containers in the Bronx, New York. (Id. ¶ 29.)

On

both occasions, an NYPD officer working in an undercover
capacity posed as one of Sahm’s workers and assisted in loading
the shipping containers. (Id. ¶ 28.)

At a meeting with Sahm and

the undercover officer on June 14, 2011, Fofanah explained that
Guinean officials did not verify that the vehicles in shipping
containers matched the vehicles declared on customs forms. (Id.
¶ 35.)

Fofanah also offered to sell luxury cars for prices well

below their market value. (Id.)
When Fofanah was arrested on June 20, 2011, he had in his
possession cellular telephones and numerous shipping documents
tying him to the containers that had been loaded with stolen
vehicles. (Trial Tr. at 138:3-144:14, July 10, 2012.)

After

receiving a Miranda warning, Fofanah admitted that he knew the
vehicles were “bad” and acknowledged in a written statement that
he had participated in loading six shipping containers. (Id. at
144:24-146:14, 153:3-15.)
On May 2, 2012, the Government filed a superseding
indictment charging Fofanah with nine counts:

one count of

conspiracy to transport stolen vehicles in violation of 18
U.S.C. § 371, four counts of transportation of stolen vehicles
3

in violation of 18 U.S.C. § 2312, and four counts of possession
of stolen vehicles in violation of 18 U.S.C. § 2313. (See
Superseding Indictment ¶¶ 1-12, United States v. Fofanah, No. 11
Cr. 721, ECF No. 18 (filed May 2, 2012).)

With respect to the

counts for transportation of stolen vehicles and possession of
stolen vehicles, Fofanah was also charged with aiding and
abetting, under 18 U.S.C. § 2. (Id. ¶¶ 5-12.)
B. Fofanah’s Trial and Sentencing
At trial, the Government introduced evidence consisting of,
among other things:

(1) Sahm’s testimony regarding his

interactions with Fofanah and involvement in the export scheme;
(2) testimony of the law enforcement officers who observed
Fofanah loading the vehicles into shipping containers; (3) a
video recording that captured Fofanah on one of the dates when
vehicles were loaded into shipping containers; (4) an audio
recording in which Fofanah explained to Sahm and an undercover
officer why Guinea was a good export destination and offered to
sell vehicles for below their market value; and (5) Fofanah’s
post-arrest statements to law enforcement officers. (See Gov.
Opp’n at 3 (summarizing evidence).)
Fofanah did not testify at trial.

The defense rested after

calling one witness and requesting that the jury conduct a
visual inspection of Fofanah.
4

On July 16, 2012, the jury rendered a verdict and found
Fofanah guilty on all nine counts.

The jury found Fofanah

guilty as a principal on all counts for transportation of stolen
vehicles and possession of stolen vehicles in violation of 18
U.S.C. §§ 2312 and 2313. (See Trial Tr. at 700:8-24, July 16,
2012; Verdict Sheet, United States v. Fofanah, No. 11 Cr. 721,
ECF No. 37 (filed July 16, 2012).)
On November 9, 2012, the Court imposed a sentence of
seventy-two months’ imprisonment.

Pursuant to the United States

Sentencing Commission Guidelines Manual (the “Guidelines” or
“U.S.S.G.”) and the PSR prepared by the Probation Office, the
Court increased Fofanah’s offense level by fourteen levels
because the offense resulted in intended losses greater than
$400,000 (based on the value of the stolen cars Fofanah
attempted to export). See U.S.S.G. § 2B1.1(b)(1)(H) (2012).
Fofanah appealed to the Second Circuit, which affirmed the
judgment and sentence of this Court on September 2, 2014. See
United States v. Fofanah, 765 F.3d 141, 148 (2d Cir. 2014).
D. Fofanah’s § 2255 Motion
On August 11, 2015, Fofanah filed the instant motion to
vacate, set aside, or correct his sentence. (See Mot. to Vacate
Under 28 U.S.C. 2255, United States v. Fofanah, No. 11 Cr. 721,
ECF No. 48 (filed Aug. 11, 2015).)
5

Fofanah’s claims include

that:

(1) he was deprived of effective assistance of counsel

because his attorney did not permit him to testify, failed to
call an allegedly key witness, and conducted an inadequate
investigation of the case; (2) the Supreme Court’s decision in
Rosemond v. United States, 134 S. Ct. 1240 (2014), altered the
law of aiding and abetting in a manner favorable to Fofanah; and
(3) an amendment to the Guidelines that became effective in 2015
and revised the definition of “intended loss” compels
modification of his sentence. (See generally Mem. of L. in Supp.
of Mot. Filed Under 28 U.S.C. § 2255, ECF No. 49 (filed Aug. 11,
2015) [hereinafter Pet’r’s Mem.].)
E. Testimony of Fofanah’s Trial Counsel
Fofanah was represented by Robert M. Baum throughout the
trial and sentencing.

In light of the issues raised in

Fofanah’s § 2255 motion and the fact that the trial record was
generally silent as to Fofanah’s claims, on October 16, 2015,
the Court ordered Baum to give sworn testimony in the form of an
affidavit addressing Fofanah’s allegations of ineffective
assistance of counsel. (See Order, United States v. Fofanah, No.
11 Cr. 721, ECF No. 52 (filed Oct. 16, 2015).)

Fofanah also

executed an informed consent waiving his attorney-client
privilege with Baum. (See Attorney-Client Privilege Waiver
(Informed Consent), United States v. Fofanah, No. 11 Cr. 721,
6

ECF No. 53 (filed Oct. 26, 2015.).

Baum’s affirmation was filed

as an exhibit to the Government’s opposition brief. (See Gov.
Opp’n Ex. A [hereinafter Baum Aff.].)
Dated November 19, 2015, Baum’s affirmation indicates that
Fofanah initially expressed a desire to testify on his own
behalf. (Id. ¶ 4.)

Baum advised Fofanah “that it was his

absolute right to testify,” but Baum “counseled strongly against
it.” (Id.)

Over approximately ten hours during two days, Baum,

an interpreter, and Baum’s investigator met with Fofanah to
review his direct testimony and potential cross examination.
(Id. ¶ 5-6.)

According to Baum, several potentially detrimental

issues arose during the course of this preparation, raising
questions about Fofanah’s credibility.1 (Id. ¶ 7.)

Subsequently,

Fofanah informed Baum that he did not wish to testify. (Id. ¶
8.)

Baum “again advised [Fofanah] that he had a right to

testify if he wished but that I thought he had made the correct
decision.” (Id.)
Baum also addressed the investigation that he conducted in
connection with Fofanah’s case.

1

According to Baum, he and his

Specifically, Baum stated that Fofanah’s answers to questions
about “potential false statements under oath in his citizenship
application,” “an extremely large amount of money wire
transferred into his [bank] account in Africa,” and possibly
inaccurate tax returns raised serious issues of credibility.
(Baum Aff. ¶ 7.)
7

investigator attempted to meet with Sahm—the Government’s
primary witness—on three occasions, but succeeded only in
speaking to Sahm by telephone once. (Id. ¶ 9.)

Baum

investigated Sahm’s background and uncovered “a variety of
impeachment sources” to discredit Sahm’s testimony. (Id.)

Baum

and his investigator also met with potential witnesses and took
their statements, and visited the location where the vehicles
were allegedly loaded into shipping containers. (Id. ¶¶ 10-12.)
On one occasion, Baum met and interviewed an individual
whom the parties refer to as “Habib.” (Id. ¶ 13.)

According to

Baum, Habib’s “statement made it clear that he may have had
criminal liability in this case,” making it likely that Habib
would retain counsel and possible that he would invoke his Fifth
Amendment right against self-incrimination. (Id. ¶ 13.)

As

trial approached, Baum attempted to contact Habib by telephone,
but was unsuccessful because the telephone number that Habib
left was no longer in service. (Id.)

Baum subpoenaed records

from the telephone company, but learned that no records were
available because the phone number belonged to a pre-paid
telephone. (Id.)

Baum’s investigator also tried to locate Habib

at a physical address, but was informed by witnesses that Habib
had left the country and returned to Africa. (Id.)

8

According to Baum, Fofanah never raised an alibi defense
with him. (Id. ¶ 14.)

Baum explored the possibility of an alibi

nevertheless, but his investigation did not “demonstrate with
any degree of specificity exactly where Mr. Fofanah was if he
was not at the scene of the car loadings.” (Id.)
II. Discussion
A. Legal Standard for § 2255 Motions
Under 28 U.S.C. § 2255(a), a federal prisoner may
collaterally challenge his sentence on the ground that “the
sentence was imposed in violation of the Constitution or laws of
the United States.”

To obtain relief under § 2255, a petitioner

must establish “a constitutional error, a lack of jurisdiction
in the sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” United States v. Bokun, 73
F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
Because Fofanah is appearing pro se, the Court construes
his arguments liberally and interprets them to raise the
strongest arguments that they suggest. See Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per
curiam).

9

B. Fofanah Does Not Establish That He Received Ineffective
Assistance of Counsel
Fofanah raises several arguments in support of his
contention that Baum’s representation was constitutionally
ineffective.

First, Fofanah asserts that Baum prevented him

from testifying at trial.

Second, Fofanah contends that Baum

failed to call a witness who, according to Fofanah, would have
provided exculpatory testimony.

Third, Fofanah claims that Baum

failed to conduct an adequate investigation of his case.

The

Court concludes that Fofanah’s arguments do not show that he
received ineffective assistance of counsel and, accordingly, do
not entitle him to relief.
1. Applicable Law
a. Ineffective Assistance of Counsel
Ineffective assistance of counsel is a basis for relief
under § 2255 because the Sixth Amendment guarantees a criminal
defendant the right to effective assistance of counsel. See
Morales v. United States, 635 F.3d 39, 42-43 (2d Cir. 2011); see
also Strickland v. Washington, 466 U.S. 668, 686 (1984) (“[T]he
Court has recognized that ‘the [Sixth Amendment] right to
counsel is the right to the effective assistance of counsel.’”
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))).
A claim of ineffective assistance of counsel has two components.
10

First, a petitioner must show that counsel’s performance was
deficient. Strickland, 466 U.S. at 687.

Second, the petitioner

must show that he or she suffered prejudice as a result of
counsel’s deficient performance. Id.; Tavarez v. Larkin, 814
F.3d 644, 648 (2d Cir. 2016).
To satisfy the first (or deficiency) prong of the
Strickland test, a petitioner must show that counsel’s
performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.

In assessing a

claim that counsel’s representation did not meet the
constitutional minimum, a court should “indulge a strong
presumption that counsel’s conduct f[ell] within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689; see also Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015).
To satisfy the second (or prejudice) prong of the
Strickland test, a petitioner must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.”
Strickland, 466 U.S. at 694.

In this context, a “reasonable

probability is a probability sufficient to undermine confidence
in the outcome.” Id.

A prejudice determination “may be made

with the benefit of hindsight.” Lynch, 789 F.3d at 311 (quoting
Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994)).
11

b. The Need for an Evidentiary Hearing
Under § 2255, “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).
However, the fact that certain interactions take place off the
record—for example, conversations between a criminal defendant
and his attorney regarding whether to waive the right to
testify2—does not necessarily require the Court to convene a
formal evidentiary hearing with the prisoner present in order to
resolve a matter raised in a § 2255 motion.
A “district court may use methods under Section 2255 to
expand the record without conducting a full-blown testimonial
hearing.” Chang v. United States, 250 F.3d 79, 86 (2d Cir.
2001).

Where, as here, a prisoner claims that his attorney

prevented him from testifying and denied him effective
assistance of counsel, a district court may properly request
that “the record [be] supplemented by a detailed affidavit from

2

Under Second Circuit precedent, there is “no general obligation
on the trial court to inform a defendant of the right to testify
and ascertain whether the defendant wishes to waive that right.”
Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
12

trial counsel credibly describing the circumstances concerning
[the criminal defendant’s] failure to testify.” Id. at 85.
2. Analysis
a. Counsel’s Alleged Refusal to Allow Fofanah to Testify
Fofanah’s first ground for challenging Baum’s effectiveness
is that Baum “fail[ed] to permit him to testify” at trial.
(Pet’r’s Mem. at 12.)

“[C]ounsel must inform the defendant that

the ultimate decision whether to take the stand belongs to the
defendant, and counsel must abide by the defendant’s decision on
this matter.” Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
There is no contention that Baum failed to inform Fofanah of his
right to testify.3

Instead, Fofanah asserts that Baum told him

that there was no need for his testimony because the
Government’s evidence against him was “weak.” (Pet’r’s Mem. at
3.)

Fofanah’s own account, therefore, shows that Baum did not

prevent him from testifying.

Rather, Fofanah’s description of

the events leads to the conclusion that he was “dissuaded” from
testifying as a result of “arduous discussions” with his
attorney.4 See Chang, 250 F.3d at 86 n.2.

3

Baum affirmed that he told Fofanah on several occasions that
Fofanah had the absolute right to testify and that Baum’s advice
was that Fofanah should not testify. (Baum Aff. ¶¶ 4, 8.)
4

Fofanah did not waive his right to testify on the record. See
Brown, 124 F.3d at 79 (“[T]he judge need not intervene when
13

Furthermore, Fofanah’s version of events, assuming it is
accurate, does not demonstrate that Baum’s performance was
deficient.

“[C]ounsel should always advise the defendant about

the benefits and hazards of testifying and of not testifying,
and may strongly advise the course that counsel thinks best[.]”
Brown, 124 F.3d at 79; see also United States v. Aguirre, 912
F.2d 555, 562 (2d Cir. 1990) (“[D]efense counsel is always in a
far better position to assess the wisdom of the defendant’s
testifying than is the trial judge.”).
counsel Fofanah against testifying.

Baum had good reason to

According to Baum, he, his

investigator, an interpreter, and Fofanah met for approximately
ten hours to prepare for direct and cross examination. (Baum
Aff. ¶¶ 5-6.)

This process highlighted several issues

potentially “detrimental” to Fofanah’s credibility. (Id. ¶ 7.)
Under such circumstances, Baum’s advice against testifying was
not objectively unreasonable. See Aguirre, 912 F.2d at 562-63
(where counsel believed defendant would be “a poor witness on
his own behalf,” counsel’s advice against testifying was
reasonable).

counsel announces that the defendant rests and the defendant has
not testified.”). However, Baum affirmed that during the trial
Fofanah “informed counsel that he did not wish to testify.”
(Baum Aff. ¶ 8.)
14

Even if Fofanah were to demonstrate deficient performance,
he does not demonstrate that the absence of his testimony
prejudiced him.

To establish prejudice, a petitioner “must 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.

Fofanah’s belief

that his testimony “would have helped . . . his chances of
acquittal,” (Pet’r’s Mem. at 12), does not amount to a
reasonable probability of a different outcome.

Additionally,

Fofanah’s claim that his “testimony could not have been
contradicted by any of the government’s witnesses, nor could it
have been subjected to vigorous cross-examination” is entirely
conclusory. (Id.)

Fofanah also overlooks the substantial

evidence of his guilt, which included testimony from an
informant who assisted Fofanah, testimony from law enforcement
officers who observed Fofanah, and incriminating video and audio
recordings of Fofanah. (See Gov. Opp’n at 3 (summarizing
evidence).)

The Court is persuaded that “the substance of the

testimony that [Fofanah] would have given at trial would not
have altered the outcome of this case.” Pena v. United States,
192 F. Supp. 3d 483, 493 (S.D.N.Y. 2016).

15

b. Counsel’s Alleged Failure to Call Habib as a Witness
Fofanah’s next ground for challenging Baum’s effectiveness
is that Baum did not call a witness named “Habib”, whom Fofanah
claims is a “vital witness who would have provided factual
background about the cars (or their alleged stolen nature).”
(Pet’r’s Mem. at 15.)

“The decision whether to call any

witnesses on behalf of the defendant, and if so which witnesses
to call, is a tactical decision of the sort engaged in by
defense attorneys in almost every trial.” United States v.
Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987).

In light of its

strategic dimensions, “counsel’s decision as to whether to call
specific witnesses-even ones that might offer exculpatory
evidence-is ordinarily not viewed as a lapse in professional
representation.” Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.
2005) (internal quotation marks omitted).

“Courts applying

Strickland are especially deferential to defense attorneys’
decisions concerning which witnesses to put before the jury.”
Id.
Fofanah does not establish that Baum’s inability to secure
Habib’s testimony constitutes deficient performance.

Contrary

to Fofanah’s conclusory contention that Baum did not even
interview Habib, (Pet’r’s Mem. at 16), Baum conducted an
interview with Habib at an early stage. (Baum Aff. ¶ 13.)
16

Although the interview gave Baum reason to doubt that Habib
would ultimately be a helpful witness,5 as trial approached Baum
nevertheless attempted to contact Habib by:

(1) calling a

telephone number that Habib provided; (2) subpoenaing records
from the telephone company that operated Habib’s telephone; and
(3) visiting a physical address that Habib provided. (Id.)
However, the telephone number Habib provided was not in service,
the telephone company had no records, and witnesses said that
Habib had “left the country and returned to Africa.” (Id.)
Under such circumstances, Baum’s efforts to secure Habib’s
testimony were not objectively unreasonable. See Butts v. Artuz,
No. 03-CV-5941(JG), 2005 WL 503939, at *7 (E.D.N.Y. Feb. 2,
2005) (counsel’s representation not objectively unreasonable
where witness “actively avoided the investigator”).
Moreover, Fofanah does not demonstrate that the absence of
Habib’s testimony prejudiced him.

Fofanah’s claim that “there

is a strong probability that Habib’s testimony would have
changed the outcome of the trial” is conclusory and selfserving. (Pet’r’s Mem. at 15.)

Especially given the

Government’s strong evidence against him, Fofanah’s speculation

5

According to Baum, Habib’s statement “made it clear that he may
have had criminal liability in [the] case” that might lead him
to invoke his Fifth Amendment right against self-incrimination.
(Baum Aff. ¶ 13.)
17

about the significance of Habib’s testimony falls short of
showing a “reasonable probability that . . . the result of the
proceeding would have been different,” Strickland, 466 U.S. at
694, if Habib had testified.
c. Counsel’s Alleged Failure to Investigate
Fofanah’s final ground for challenging Baum’s effectiveness
is his claim that Baum conducted an inadequate investigation
with respect to his case.

The duty to investigate requires

counsel “to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Greiner, 417 F.3d at 320-21 (quoting Strickland,
466 U.S. at 691).

“The reasonableness of an investigation is

obviously a reflection of the facts of a case” and, therefore,
is a case-by-case examination. Id. at 321.

“Strategic decisions

based on a thorough investigation of the relevant law and facts
are ‘virtually unchallengeable’ and even decisions grounded on
an incomplete investigation are countenanced if ‘reasonable
professional judgments support the limitations on
investigation.’” United States v. Daugerdas, 915 F. Supp. 2d
493, 496 (S.D.N.Y. 2013) (quoting Strickland, 466 U.S. at 69091).

“In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all

18

the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691.
Fofanah first argues that “a simple investigation” would
have revealed that Sahm, a witness for the Government, gave
“false and contradictory testimony” at trial. (Pet’r’s Mem. at
14.)

In essence, Fofanah complains that Baum’s allegedly faulty

investigation compromised Baum’s ability to impeach Sahm’s
testimony. (Id.)

However, whereas Fofanah’s allegations that

Baum did not investigate Sahm are conclusory, Baum’s
affirmations to the contrary are specific and credible. (See
Baum Aff. ¶ 9 (stating that Baum spoke with Sahm by telephone on
one occasion despite Sahm’s refusal to meet with Baum and that
Baum “thoroughly investigated the background of Mr. Sahm
including his prior arrest”).)

Accordingly, Fofanah’s

allegations regarding Baum’s investigation of Sahm do not
establish deficient performance.
Fofanah next argues that a “reasonable investigation by
counsel would have provided an [sic] alibi evidence.” (Pet’r’s
Mem. at 14.)

However, the duty to investigate does not “compel

defense counsel to investigate comprehensively every lead or
possible defense[.]” Greiner, 417 F.3d at 321.

Moreover, the

“bald assertion that counsel should have conducted a more
thorough pre-trial investigation fails to overcome the
19

presumption that counsel acted reasonably.” Matura v. United
States, 875 F. Supp. 235, 237 (S.D.N.Y. 1995).

Here, Baum

affirmed that Fofanah “never raised an alibi defense with
counsel.” (Baum Aff. ¶ 14.)

Even so, Baum explored the

possibility of an alibi, but did not discover “sufficient
evidence to demonstrate with any degree of specificity exactly
where Mr. Fofanah was if he was not at the scene of the car
loadings.” (Id.)

Accordingly, Fofanah’s allegations regarding

Baum’s investigation of an alibi do not establish deficient
performance.
Finally, Fofanah claims that Baum failed to utilize a
“private investigator or an expert who could have provide[d] a
favorable opinion about the most important questions” in the
case. (Pet’r’s Mem. at 14.)

Fofanah’s conclusory contention is

flatly contradicted by the specific and credible contents of
Baum’s affidavit.

In fact, Baum did retain an investigator, who

assisted by meeting with witnesses, obtaining copies of relevant
documents, and visiting and photographing relevant locations.
(Baum Aff. ¶¶ 9-12.)

Baum also hired an expert in voice

identification in connection with Fofanah’s case. (Id. ¶ 15.)
Accordingly, Fofanah’s allegations regarding Baum’s failure to
retain an investigator or expert do not establish deficient
performance.
20

Once again, even if Fofanah were to establish that Baum’s
performance was deficient, he does not demonstrate prejudice.
In light of the Government’s strong evidence against him,
Fofanah simply does not show that, but for Baum’s allegedly
faulty investigations, there is a “reasonable probability that
. . . the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
The plain fact is that Robert M. Baum is an experienced and
most competent trial lawyer and that in this overpowering
prosecution case he comported himself in a highly professional
manner in all respects.
C. Subsequent Developments in the Law of Aiding and Abetting Do
Not Entitle Fofanah to Relief
Fofanah also contends that the Supreme Court’s decision in
Rosemond v. United States, 134 S. Ct. 1240 (2014), entitles him
to relief because that decision altered the federal law of
aiding and abetting. (Pet’r’s Mem. at 6-10.)

Fofanah overlooks

that the jury found him guilty on all relevant counts as a
principal, not as an aider and abettor.

Accordingly, the Court

rejects Fofanah’s argument.
1. Applicable Law
Section 2 of Title 18 of the United States Code is the
federal aiding and abetting statute. See Rosemond, 134 S. Ct. at
21

1243.

It provides that:

“Whoever commits an offense against

the United States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.” 18
U.S.C. § 2.

A person “is liable under § 2 for aiding and

abetting a crime if (and only if) he (1) takes an affirmative
act in furtherance of that offense, (2) with the intent of
facilitating the offense’s commission.” Rosemond, 134 S. Ct. at
1245.

Section 2 reflects the long-held common law view that “a

person may be responsible for a crime he has not personally
carried out if he helps another to complete its commission.” Id.
In Rosemond, the Supreme Court considered the question of
how the “affirmative act and intent” elements “apply in a
prosecution for aiding and abetting” an 18 U.S.C. § 924(c)
offense. Id.

Section 924(c) prohibits the use or carriage of a

firearm “during and in relation to any crime of violence or drug
trafficking crime.” Id. at 1243 (internal quotation marks
omitted).

With respect to the intent element required for

liability under § 2, the Supreme Court held that “an unarmed
accomplice cannot aid and abet a § 924(c) violation unless he
has foreknowledge that his confederate will commit the offense
with a firearm.” Id. at 1249 (internal quotation marks omitted).
Without such “advance knowledge,” “the defendant has not shown
the requisite intent to assist a crime involving a gun.” Id.
22

2. Analysis
Fofanah’s argument that Rosemond has any relevance to his
case is meritless.

The jury found Fofanah guilty as a principal

under 18 U.S.C. §§ 2312 and 2313. (See Trial Tr. at 700:8-24;
Verdict Sheet, ECF No. 37.)

Fofanah was not found guilty for

aiding and abetting under 18 U.S.C. § 2 on any of the counts
charged.

Accordingly, Rosemond has no application here and does

not entitle Fofanah to any relief.
D. Fofanah Is Not Entitled to a Sentence Reduction
Fofanah also asserts that his sentence should be reduced
because Amendment 792 to the Guidelines—made effective
subsequent to Fofanah’s sentencing—revised the definition of
“intended loss.”

Fofanah contends that the relevant amended

language applies retroactively and to his benefit.

The Court

concludes that, even if Amendment 792’s revised definition of
“intended loss” applies retroactively, it does not compel a
reduction of Fofanah’s sentence.
1. Applicable Law
According to the Guidelines, “[t]he court shall use the
Guidelines Manual in effect on the date that the defendant is
sentenced.” U.S.S.G. § 1B1.11 (2016); see also United States v.
Adeniyi, 912 F.2d 615, 618 (2d Cir. 1990).

In 2012, when

Fofanah was sentenced, the Guidelines defined “intended loss” as
23

the “pecuniary harm that was intended to result from the
offense.” U.S.S.G. § 2B1.1, Application Note 3(A)(ii) (2012).
On November 1, 2015, Amendment 792 to the Guidelines became
effective. See U.S.S.G. Supp. to App. C, amend. 792 (2015).

As

relevant here, Amendment 792 revised the definition of “intended
loss” to “the pecuniary harm that the defendant purposely sought
to inflict[.]” U.S.S.G. § 2B1.1, Application Note 3(A)(ii)
(2015).

The purpose of the United States Sentencing Commission

(the “Sentencing Commission”) in revising the definition of
“intended loss” was to bring the federal courts into conformity
with the subjective approach followed by the Second Circuit,
among other circuits. See U.S.S.G. Supp. to App. C, amend. 792
(2015) (noting split among federal courts of appeals and
adopting approach requiring a subjective inquiry).
Section 1B1.10 of the Guidelines addresses the
circumstances under which a court may modify a defendant’s
sentence when a subsequent amendment has the effect of revising
the defendant’s sentencing range.

Subsection 1B1.10(d)

identifies the specific amendments that constitute grounds for a
modification of sentence. See U.S.S.G. § 1B1.10, Application
Note 1(A) (2016) (“Eligibility for consideration under 18 U.S.C.
§ 3582(c)(2) is triggered only by an amendment listed in
subsection (d)[.]”).

Section 1B1.10 “mandates that only certain
24

amendments—those listed in § 1B1.10(d)—may be applied when
considering a sentence reduction under Section 3582(c)(2).

If

an amendment is not included in § 1B1.10(d), the analysis ends,
and the moving defendant is not eligible for a sentence
reduction.” United States v. Fedeson, 09-CR-402(WMS), 2017 WL
3431401, at *2 (W.D.N.Y. Aug. 10, 2017) (citation omitted).
Sentencing amendments that are not specifically identified
in § 1B1.10(d) may apply retroactively, however, “if they
clarify the operation of the Guidelines rather than effecting a
substantive change of the law.” Cook v. United States, Nos. 89
Cr. 346(SWK), 03 Civ. 7922(SWK), 2006 WL 3333068, at *3
(S.D.N.Y. Nov. 15, 2006).

Accordingly, “[a] defendant sentenced

under one version of the Guidelines may . . . be given the
benefit of a later revision if the revision represents not a
substantive change, but merely a clarification of the Sentencing
Commission’s prior intent.” United States v. Kim, 193 F.3d 567,
578 (2d Cir. 1999).
2. Analysis
When Fofanah was sentenced on November 9, 2012, a fourteenlevel enhancement was applied to his offense level for causing
an “intended loss” of greater than $400,000. (See Sent. Tr. at
16:6-7, 23:3-6.)

Neither the 2015 Guidelines nor the current

version of the Guidelines identifies Amendment 792 as a basis
25

for modifying a defendant’s sentence. See U.S.S.G. § 1B1.10(d)
(2015); see also U.S.S.G. § 1B1.10(d) (2016).

Accordingly,

under § 1B1.10, Fofanah cannot benefit from a modified sentence
by way of reference to Amendment 792.
However, Fofanah contends that he is entitled to relief
because the adjusted definition of “intended loss” in Amendment
792 was a clarifying, rather than a substantive, amendment. (See
Pet’r’s Mem. at 17.)

According to Fofanah, the revised

definition of “intended loss” in Amendment 792 worked a change
in his favor by directing courts to examine a defendant’s
subjective intent. (Id.)

Fofanah now claims that he is entitled

to a sentence modification because “evidence at . . . trial
sufficiently established that [he] never subjectively and
purposely intended to inflict any loss in the offense.” (Id.)
Fofanah implicitly contends that the Court did not consider his
subjective intent in determining the “intended loss” for
sentencing purposes.
Even assuming that the revised definition of “intended
loss” set forth in Amendment 792 is a clarifying amendment that
may be applied retroactively, the Court is not persuaded that
its application compels reducing Fofanah’s sentence.

In 2012,

when Fofanah was sentenced, the Second Circuit already called
for an examination of a defendant’s subjective intent to
26

determine the “intended loss” under § 2B1.1. See United States
v. Confredo, 528 F.3d 143, 152 (2d Cir. 2008) (remanding to
district court for determination of whether defendant had
“proven a subjective intent to cause a loss of less than the
aggregate amount” of fraudulent loans).

Thus, rather than alter

the law or practice of courts in this Circuit, the Sentencing
Commission endorsed the local approach by revising the
definition of “intended loss” in Amendment 792.

It follows that

the revised definition of “intended loss” does nothing to
entitle Fofanah to relief.
Moreover, Fofanah is mistaken to the extent that he argues
that evidence at trial did not sufficiently establish that he
“subjectively and purposely intended to inflict any loss in the
offense.” (Pet’r’s Mem. at 17).

As the Court stated at

Fofanah’s sentencing, the evidence at trial showed that he
attempted to export various “stolen high-priced cars that were
going to be resold in Africa.” (Sent. Tr. at 13:3-4.)

Indeed,

Fofanah was convicted by a jury of conspiracy to transport
stolen vehicles, transportation of stolen vehicles, and
possession of stolen vehicles. See 18 U.S.C. §§ 371, 2312, 2313.
Such an endeavor is simply incompatible with the notion that
Fofanah did not at the same time intend to deprive the true
owners of the value of their vehicles.
27

Furthermore, Fofanah’s

attorney argued at sentencing for a variance but conceded that
“intended loss certainly is appropriate” to consider. (Sent. Tr.
at 16:16-17.)

Accordingly, Fofanah is not entitled to a reduced

sentence.
E. Fofanah’s Requests for Discovery Are Denied
In his reply, Fofanah requests for the first time that
various documents be produced to him.

Generally, Fofanah

requests documents created or obtained by Baum in the course of
his representation of Fofanah and investigations on Fofanah’s
behalf.

The Court declines to authorize discovery because

Fofanah has not demonstrated that the requested documents would
support any of the claims presented in his petition.
1. Applicable Law
“A habeas petitioner, unlike the usual civil litigant in
federal court, is not entitled to discovery as a matter of
ordinary course.” Pizzuti v. United States, 809 F. Supp. 2d 164,
175 (S.D.N.Y. 2011) (quoting Bracy v. Gramley, 520 U.S. 899, 904
(1997)).

Rule 6(a) of the Rules Governing Section 2255

Proceedings requires leave of the court to conduct discovery,
which may be granted for good cause. See Lewal v. United States,
No. 97-2248, 1998 WL 425877, at *2 (2d Cir. June 9, 1998) (“Rule
6(a) of the Rules Governing Section 2255 Proceedings . . .
provides that a § 2255 petitioner is entitled to undertake
28

discovery only when the judge in the exercise of his discretion
and for good cause shown grants leave to do so, but not
otherwise.” (internal quotation marks omitted) (summary order)).
To show “good cause,”
a petitioner must present specific allegations
that give the court reason to believe that the
petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled
to relief. A court may deny a petitioner’s
request for discovery where the petitioner
provides no specific evidence that the requested
discovery would support his habeas corpus
petition.
Martin v. United States, 834 F. Supp. 2d 115, 140 (E.D.N.Y.
2011) (citations and internal quotation marks omitted).
2. Analysis
As mentioned above, Fofanah, in his reply, requests for the
first time that various documents be produced to him.
requests include:

Fofanah’s

(1) all subpoenas Baum prepared as well as

any documents obtained through such subpoenas; (2) documents
related to, and produced by, the expert witness in voice
identification whom Baum retained; (3) copies of personal
documents (including records related to Fofanah’s citizenship
application, bank wire transfers, and tax returns) that,
according to Baum, might have presented credibility issues if
Fofanah had testified; (4) all witness statements; and (5) “all

29

the documentary and other evidence of investigations . . . which
[Baum] claims to have conducted.” (Pet’r’s Reply Mem. at 2-3.)
However, Fofanah does not provide “specific evidence that
the requested discovery would support” his petition. Martin, 834
F. Supp. 2d at 140 (internal quotation marks omitted).

Fofanah

indicates his desire to “review” the requested documents,
(Pet’r’s Reply Mem. at 2), but presents no specific allegations
that the requested discovery would enable him to show that he is
entitled to relief on any of the claims asserted in his
petition.

Moreover, other courts in this District have declined

to authorize discovery where a habeas petitioner’s substantive
claims were also denied. See Khan v. United States, Nos. 11 Civ.
7613(LAP), 07 Cr. 711(LAP), 2014 WL 2111677, at *12 (S.D.N.Y.
Apr. 28, 2014) (denying discovery request and collecting cases).
Accordingly, the Court declines to authorize Fofanah’s discovery
requests.
Conclusion
For the reasons above, Fofanah’s motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is
DENIED.
The Court declines to issue a certificate of appealability
because Fofanah has not made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
30

Krantz v. United States, 224 F.3d 125, 127

(2d Cir. 2000).

Further, the Court certifies, pursuant to 28 U.S.C. §
1915(a) (3), that any appeal from this Order would not be taken
in 9ood faith. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).
The Clerk of the Court is respectfully directed to
terminate the motions docketed at ECF Nos. 48 and 58 in Case No.
11 Cr. 72l(JFK).

The Clerk of the Court is also respectfully

directed to close Case No. 15 Civ. 6538(JFK).
SO ORDERED.

Dated:

~l~

New York, New York
October 11, 2017

JohnF: Keenan
United States District Judge

31