Seifer v. United States of America

Filing 28

ORDER signed by Judge J.P. Stadtmueller on 9/20/2017: DENYING 1 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255; DENYING certificate of appealability; and DISMISSING action with prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER A. SEIFER,

v.

Petitioner,

Case No. 16-CV-1465-JPS

UNITED STATES OF AMERICA,
Respondent.
1.

ORDER

INTRODUCTION
On June 19, 2014, Petitioner Christopher A. Seifer (“Seifer”) was

convicted by a jury of four counts of mail fraud and one count of theft of
government property. On September 19, 2014, Seifer was sentenced to
fifteen months imprisonment to be followed by three years of supervised
release. (Docket #1 at 2). After his direct appeal concluded, Seifer filed a
motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on November 1,
2016. See generally id. Respondent opposed the motion on May 3, 2017.
(Docket #24). Seifer offered a reply on May 15, 2017. (Docket #27). For the
reasons explained below, Seifer’s motion must be denied.
2.

BACKGROUND
In its opinion on Seifer’s direct appeal, the Seventh Circuit succinctly

described the basic facts of his case:
Seifer worked for the Bureau of Prisons at the Federal
Correctional Institution in Oxford, Wisconsin. He injured his
back on the job, and the Department of Labor’s Office of
Workers’ Compensation Programs [(“OWCP”)] determined
that he had a permanent work-related disability. This
designation entitled him to reimbursement for travel
expenses incurred for medical treatments. To obtain

reimbursement Seifer completed and submitted a form
OWCP–957. A private administrator, Xerox, processed these
forms and issued Seifer reimbursement checks for trips to
health clubs and gyms, where he reportedly was using heated
pools to rehabilitate his back.
From March 2006 to October 2012, Seifer submitted
more than 1,300 reimbursement claims for travel to facilities
with pools. Most of these claims were false. At the Prairie
Athletic Club, for example, his reimbursement forms show
858 visits between March 2006 and August 2009, yet his key
card was swiped only 17 times. At another club, Adventure
212, Seifer was not a member from February through April
2011, but during those months he purportedly had traveled to
the club and used the pool 37 times. Overall, Seifer netted
more than $80,000 from his fraudulent travel claims.
United States v. Seifer, 800 F.3d 328, 329 (7th Cir. 2015).
Seifer’s instant motion offers two different theories as to why his trial
counsel, Louis Sirkin (“Sirkin”), provided him ineffective legal assistance.
First, Seifer contends that Sirkin failed to conduct a reasonable investigation
into his defense. (Docket #1 at 6). Specifically, Seifer argues that Sirkin
should have interviewed his wife, Cynthia Seifer (“Cynthia”), his stepson,
Kevin Kern (“Kern”), and his neighbor, Dominic Ferraro (“Ferraro”),
because each could have provided at least some corroboration of Seifer’s
testimony about making the therapy trips. (Docket #1-2 at 1-3; Docket #2 at
6-7). Second, Seifer maintains that Sirkin should have called each of these
witnesses at trial to provide that testimony to the jury. (Docket #1 at 7).
Seifer also alleges that Sirkin should have offered evidence of his
automobile mileage during the relevant period as another potential source
of corroboration. (Docket #1-2 at 3-4).1

Seifer initially included this issue as part of his failure-to-investigate
ground but has since withdrawn that aspect of the claim. (Docket #11).
1

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3.

LEGAL STANDARD
The Court of Appeal’s Blake opinion neatly summarizes the

standards applicable to Seifer’s motion:
A party asserting ineffective assistance of counsel
bears the burden of establishing two elements: (1) that his trial
counsel's performance fell below objective standards for
reasonably effective representation, and (2) that counsel's
deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687–88 . . . (1984)[.]
To satisfy the first element of the Strickland test,
appellant must direct the Court to specific acts or omissions
by his counsel. In that context, the Court considers whether in
light of all the circumstances counsel’s performance was
outside the wide range of professionally competent
assistance. The Court’s assessment of counsel’s performance
is “highly deferential[,] . . . indulg[ing] a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” [Id. at 689.]
...
To satisfy the second Strickland element, appellant
must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have
been different, such that the proceedings were fundamentally
unfair or unreliable. A reasonable probability is defined as
one that is sufficient to undermine confidence in an outcome.
Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations and
quotations omitted).
4.

ANALYSIS
Seifer’s ineffective assistance claims turn on the evidence adduced at

trial, the evidence Sirkin allegedly missed, and what Sirkin knew of or
thought about each. In sum, the evidence at trial was as follows. Seifer’s
travel reimbursements were so enormous that they triggered an audit in
2011, which eventually led to his criminal prosecution. While the

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government argued that Seifer’s scheme to defraud spanned from 2006 to
2012, the actual charges referenced relatively limited specific time periods
ranging from July 2010 to October 2012. United States v. Christopher A. Seifer,
14-CR-19-JPS (E.D. Wis.) (Docket #30). At trial, an agent of the Department
of Labor testified that he analyzed Seifer’s trips to determine which were
actually supported by documentary evidence. The graphs and tables he
produced, showing that vast majority of the trips were unsupported, were
admitted into evidence. See (Docket #24-1, #24-2, and #24-3).
This evidence was buttressed by testimony and documents from the
various health clubs Seifer claimed to have visited so frequently. Seifer
submitted claims for visits to Prairie Athletic Club (“PAC”) from 2006 to
2012. Of the 926 reimbursement requests for travel to PAC, only 17 were
supported evidence that he actually swiped his membership card to gain
access to PAC, either at the front door or the front desk. Seifer also sought
reimbursement for 68 visits to PAC when he had no valid membership at
all.2 Seven of the claimed visit dates were days when the therapy pool was
closed for cleaning.3 Finally, PAC employees testified that they did not
recognize Seifer, in particular the people who primarily staffed the therapy

Seifer had in fact cancelled his membership in November 2009, stating that
he was medically unable to go the gym. He e-mailed PAC in December 2012,
inquiring about renewing his membership because he was now physically able to
resume exercise. The 68 non-membership claims arose from May 2011 to January
2012.
2

During September 2011, federal agents surveilled Seifer and, on days
when he claimed trips to PAC, they testified that he never went there. Seifer claims
that: 1) the agents were surveilling the wrong car, and 2) he often went to and
returned from the pool therapy before the agents even began to watch him.
(Docket #2 at 9 n.1). The government questions whether these propositions are
entirely true. (Docket #24 at 12-13, 21). The surveillance issue is ultimately
immaterial, so the Court gives no weight to the surveillance evidence.
3

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pool area, and they would have if he had actually made 926 trips to their
facility.
The story is similar for the UW Health Sports Fitness Center (“UW
Fitness Center”), for which Seifer submitted claims from 2010 to 2012. Only
16 of his 291 visits to the UW fitness center were supported by both a valid
membership and a swipe-in. Unlike PAC, where the swipe-in occurred at
the front desk, an active membership card was needed to unlock the door
to the UW Fitness Center. During the relatively limited periods where Seifer
did have a valid membership, only ten percent of his claimed visits matched
a swipe-in. At all other times, Seifer’s only option was to sneak into the
building, which the management staff testified would have been difficult,
especially the nearly 200 times for which Seifer made claims. Seifer’s
reimbursement claims were also inconsistent with statements made to his
medical providers around this time, which suggested that he had not been
consistently using therapy pool treatment. And as with PAC, the staff at the
UW Fitness Center did not recognize Seifer despite his purportedly
extensive pool use.
Seifer also made claims for trips to the Princeton Club East (“PCE”)
between June and August 2011, despite never having a membership there.
Seifer had been to the PCE a few times at the turn of 2011, and his physical
therapist said she likely gave him a 12-day pass that was only valid for 60
days. Thus, it would have been no use to Seifer during the times he claims
to have visited the facility. The PCE manager said that staff are trained to
ensure that all people entering the facility have a valid membership. In his
estimation, Seifer gaining unauthorized entry for his 60 claimed visits was
ridiculous.

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Two other facilities, Harbor Athletic Club (“HAC”) and Adventure
212, allegedly received visits from Seifer. As to HAC, the visits came
between March and June 2007. Seifer’s PAC membership would have
permitted him access to HAC, but he would still have been obliged to
swipe-in. The facility had no record of such swipe-ins and management
testified that staff would have stopped Seifer from entering without doing
so. Seifer claimed to have gone to Adventure 212 from February to April
2011 while having no membership. As with the other facilities, there were
no attendance records confirming Seifer’s account. The manager testified
that the front desk of Adventure 212 is always staffed, so Seifer could not
have gained access at the time and in the manner he claimed.
Seifer’s defense was largely a straightforward rebuttal of the
government’s evidence. He testified that he did in fact take every trip
associated with every travel reimbursement claim form he submitted. Seifer
further stated that he had no problem entering and using any facility even
when he had no active membership. He would simply walk past the front
desk, without swiping in, and claimed that this conduct was rarely
challenged by staff. When he was stopped, he would produce a “guest
pass” to allow him to enter. For PAC and the UW Fitness Center in
particular, Seifer maintained that he did not know that he was supposed to
swipe-in at those facilities. As to staff not recognizing him, Seifer countered
that he often went to the pools very early in the morning and kept to
himself.4

The government counters that most of Seifer’s swipe-ins, few as they were,
occurred in the mid-morning or later. (Docket #24 at 21).
4

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In the instant motion, Seifer adds the following evidence via affidavit
testimony. Cynthia, now his wife, states that she began dating Seifer in
September 2010 and moved in with him in April 2012. (Docket #18 at 1).
Seifer regularly mentioned to Cynthia that he was going to the pool, and
would send her text messages about his travel. Id. Before they lived
together, Cynthia would occasionally wash Seifer’s swimsuit, and
afterwards, she did so with greater (though unspecified) regularity. Id.
Cynthia further states that after she moved in, Seifer rarely drove his Chevy
Impala save for going to his pool therapy or medical appointments. Id.
Seifer otherwise drove Cynthia’s own vehicle, a Ford Ranger. Id. at 2.
Cynthia met with Sirkin twice during the pendency of Seifer’s case, and she
told him about both Seifer’s vehicle use and that Kern and Ferraro might
have relevant testimony. Id.
Kern, Seifer’s stepson, states that he lived with Seifer for
approximately six months in 2008. (Docket #19 at 1). He observed Seifer
leaving home at 4:00 or 5:00 a.m., saying he was on his way to the gym. Id.
Seifer would return at about 7:00 a.m. smelling of chlorine. Id. at 2. Kern
also went with Seifer to the gym a few days each week. Id. at 1-2. Kern was
never interviewed by Sirkin or the government. Id. at 2.
Ferraro, Seifer’s former neighbor, lived a few doors away from Seifer
in Westfield, Wisconsin from 2004 to 2013. (Docket #20 at 1). Ferraro
sometimes saw Seifer leaving his home in the early morning hours, but he
cannot remember any specific dates when this occurred. Id. Seifer spoke to
Ferraro about his pool therapy but Ferraro does not recall how often Seifer
said he went to that therapy. Id. Like Kern, Ferraro was not interviewed by
Sirkin or the government, though he did provide a statement in the context
of Seifer’s sentencing. Id. at 1-2.
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Seifer himself avers that he rarely drove the Impala except to therapy
and other medical appointments. (Docket #23 at 1). He further states that
his prior attorneys forwarded maintenance records for the Impala to Sirkin
once he was hired. Id. Seifer says he told Sirkin about his vehicle use and
the possibility of using Kern and Ferraro to corroborate his story. Id. at 1-2.
Sirkin states that he took over as Seifer’s trial counsel in April 2014.
(Docket #12-1). He understood that Seifer’s defense was that the
government’s case was flat wrong—Seifer maintained that he in fact made
the pool therapy trips for which he sought reimbursement. Id. Sirkin knew
that Seifer went to therapy to treat his ongoing back pain, and that Seifer
liked to go in the morning before the pools became crowded. Id. As to the
lack of swipe ins at the various pool facilities, Seifer told Sirkin that because
he used a cane or walker, it was easier for him to follow behind the person
who opened the facility without the need to swipe in. Id.
Seifer’s trial testimony tracked Sirkin’s prior understanding. Id.
Sirkin knew that the government’s case was largely circumstantial, so the
outcome of the case would turn on Seifer’s credibility. Id. at 2. Sirkin claims
that he was never made aware of Kern or Ferraro’s potential testimony. Id.
He considered Cynthia as a potential witness, but decided against using her
in the face of the government’s countervailing evidence for the years of
2006, 2007, and 2008. Id. Sirkin also knew about the mileage Seifer claimed
to have put on the Impala driving to and from pool therapy. Id. Because the
government did not appear to challenge the mileage evidence, Sirkin
concluded that it was best to present that evidence through Seifer’s
testimony alone. Id.; (Docket #26).
Seifer’s allegation of ineffective assistance of counsel fails on the
second element—prejudice. This failure derives from his misapprehension
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of the nature and effect of the testimony to be adduced from Cynthia, Kern,
and Ferraro. The evidence at trial fostered a battle of credibility between
Seifer on one hand, and the documentary evidence and facility employee
testimony on the other. The critical ground for this battle was Seifer’s claim
that he simply walked in to the facilities, sometimes without a membership
and rarely swiping in, simply by arriving early in the morning, following
behind the employee opening the facility or other lawful patrons, or
otherwise conning his way past the front desk. The facility employees and
managers directly contradicted this claim, stating that it would have been
nigh impossible for Seifer to have accomplished this so many times without
them noticing or recognizing him from his repeated visits.
What Seifer needed in order to respond to the facility personnel was
corroboration that someone saw him enter the facilities, get past the front
desk, and get into the pools—day after day. Most of Cynthia, Kern, and
Ferraro’s testimony, however, has no bearing on this point, and Seifer
acknowledges as much:
The only portion of Seifer’s account that is not directly
corroborated by the new evidence – that he was able to enter
the health clubs without swiping in – is corroborated
indirectly by the facts that he told Kern, Ferraro, and Cynthia
contemporaneously with the travel that he was going to
Madison for the pool therapy, by the timing of his returns, by
the otherwise unexplained mileage put on Seifer’s car, and by
the fact that Cynthia had to wash out his swimsuit on a
regular basis.
(Docket #2 at 10).
Distilled to its essence, the government prosecution was for Seifer’s
deceit. It is reasonable to conclude that this deception extended to his family
and friends, not just the OWCP. Thus, it is no stretch to infer from the
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evidence presented that Seifer lied to Cynthia and Kern about going to the
gym and left early in the morning to further that lie (roping in Ferraro as
well). The mileage evidence falls into the same category of indirect, and
thus unhelpful, proof of Seifer’s pool therapy.
The points which might directly support Seifer’s story are two. The
first is Cynthia’s handling of a wet swimsuit and Kern’s detection of a
chlorine smell upon Seifer’s return home. These, of course, could be
contrived to reinforce Seifer’s overarching fraud. Further, the government’s
theory was not that every claim Seifer submitted was false. A smattering of
actual pool visits makes the chlorine issue more believable for the
prosecution; Seifer did not need to fake a chlorine smell each time he
returned home. Finally, both Cynthia and Kern’s observations were for
relatively short periods within Seifer’s overall scheme, which lasted from
March 2006 to October 2012. From September 2010 to April 2012, Cynthia
and Seifer did not live together, so her swimsuit-washing activity was only
occasional. Only when they moved in together in April 2012 could Cynthia
have directly observed Seifer leaving the house or returning with a wet
swimsuit. Outside of a six-month period in 2008, Kern had nothing to say
about Seifer’s pool use.
The second potentially favorable piece of direct evidence is that
Kern drove Seifer to the gym a couple of times per week. This might seem
like perfect corroboration of Seifer’s entry into and use of the facilities, but
the omissions in Kern’s testimony are glaring. Kern merely states that he
“went with [Seifer] to Stevens Point a couple of times a week to the gym[.]”

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(Docket #19 at 1).5 Kern does not assert that he personally observed or knew
of Seifer actually entering a gym, maneuvering past the front desk, and
entering the therapy pool. Thus, as with the testimony of all of Seifer’s
witnesses, Kern does not offer anything which truly corroborates the
lynchpin of Seifer’s theory or which undermines the testimony of the
facility employees.
To prove his claim of ineffective assistance of counsel, Seifer is
required to show that “there is a reasonable probability that, but for
[Sirkin’s] errors, the result of the proceedings would have been different,
such that the proceedings were fundamentally unfair or unreliable.” Blake,
723 F.3d at 879. Seifer’s testimony and the government’s evidence,
particularly the testimony of the facility employees, stand in direct
opposition on Seifer’s ability to enter and use the facilities. Most of Seifer’s
proposed witness testimony, by contrast, has no bearing on this point. Even
that which arguably does, the portions of Cynthia’s and Kern’s testimony
described above, is at best tangential.
In other words, the primary players at trial were the facility
employees and Seifer himself, and the jury was called upon to weigh their
respective levels of credibility. The jury assigned Seifer none, and
accordingly found him guilty. The testimony of Cynthia, Kern, and Ferraro

Kern’s reference to “Stevens Point” is curious. The only facility Seifer
visited in Stevens Point, Wisconsin is Adventure 212. The false claims for
Adventure 212 were submitted in 2011, long after Kern’s stay with Seifer ended.
During the period of Kern’s residence in 2008, PAC was the only target for Seifer’s
mileage claims. This discrepancy might be explained in a few ways: 1) a simple
drafting error in Kern’s affidavit; 2) it is evidence that Seifer went to Adventure
212 in 2008 and never made any travel claims; or 3) it calls into question Kern’s
recollection of the events from 2008 and his truthfulness generally.
5

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raises a miniscule, and certainly less than a reasonable, probability that the
outcome of the trial would have been different had their testimony been
investigated or presented to the jury as Seifer desires. Their absence at trial
did not make the proceeding fundamentally unfair.6
5.

CONCLUSION
Seifer’s proffered testimony in no way shakes the Court’s confidence

as to the outcome of his trial. Blake, 723 F.3d at 879. His motion to vacate his
sentence must, therefore, be denied.7 Under Rule 11(a) of the Rules
Governing Section 2255 Cases, “the district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability under 28 U.S.C.

Seifer offers various critiques of the facility employees’ testimony. These
include claiming a lack of foundation that the employees who testified regularly
worked at the time Seifer came to their facilities, the employees’ bias in favor of
“people believing that they or others invariably follow supposed pool policies,”
and the employees’ potential lack of diligence in enforcing the swipe in rules in
the early morning hours. (Docket #27 at 9-10). Seifer cannot now offer a crossexamination of the facility employees under the guise of an ineffective assistance
claim. His opportunity to do so was at trial. Seifer’s instant motion alleges no fault
on Sirkin’s part in examining witnesses.
6

In light of the prior motion practice in this matter, Seifer may protest the
lack of a hearing on his motion. For two reasons, the Court concludes that no
hearing is necessary. First, the relevant facts, namely the testimony of Sirkin,
Seifer, and the other witnesses, is almost entirely undisputed. As to any of the
disputed evidence, such as the surveillance issue, it is immaterial to the outcome
(and, in any event, the Court construed the evidence in Seifer’s favor). Second, the
affidavit testimony of Cynthia, Kern, and Ferraro confirms that Seifer’s motion
lacks merit. As noted above, the omissions in their testimony are as telling as what
was included. Seifer might complain that he could have drawn out additional
testimony upon live examination. This speculation is improper. The witnesses’
affidavits were prepared in conjunction with Seifer’s counsel and they should have
included all relevant testimony. To the extent they are lacking in material detail
(such as Kern’s affidavit), it must be because the witnesses had no more specific
testimony to offer.
7

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§ 2253(c)(2), Seifer must make a “substantial showing of the denial of a
constitutional right” by establishing that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal citations omitted). As the Court discussed above,
no reasonable jurists could debate whether Seifer’s motion has merit
because his evidence of ineffectiveness fell so far short of the required
showing. As a consequence, the Court is compelled to deny a certificate of
appealability as to Seifer’s motion.
Accordingly,
IT IS ORDERED that Petitioner’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 (Docket #1) be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
the Petitioner’s motion be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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