Opinion
Civil No. 01-1246 ADM, Criminal No. 98-326 ADM/AJB.
November 21, 2001
Charles L. Hawkins, Esq., Minneapolis, MN, and Deborah K. Ellis, Esq., St. Paul, MN, on behalf of Petitioner Jeffrey S. Chmielewski.
Thomas B. Heffelfinger, United States Attorney for the District of Minnesota, and David J. MacLaughlin, Assistant United States Attorney, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Jeffrey Chmielewski's ("Chmielewski") Motion to Vacate, Set Aside, or Correct Sentence [Doc. No. 1] and [Doc. No. 110] pursuant to 28 U.S.C. § 2255, and Chmielewksi's Motion for an Evidentiary Hearing [Doc. No. 114]. Chmielewski alleges as grounds for post-conviction relief (1) a failure to submit to the jury the issue of loss attributable to false statements and the failure to require that the offense level be determined by proof beyond a reasonable doubt, (2) a violation of his Sixth Amendment right to effective assistance of counsel, and (3) a violation of his Fifth Amendment Due Process, alleging actual innocence. Because Chmielewski fails to allege facts which, if true, would entitle him to relief, his motion to vacate, set aside, or correct sentence is denied, as is his request for an evidentiary hearing.
II. BACKGROUND
Chmielewski was convicted by a jury on April 15, 1999, of conspiracy to make false statements in violation of 18 U.S.C. § 371 [count 1]; of making false statements and abetting in violation of 18 U.S.C. § 1001 [counts 2-5]; of filing false tax returns in violation of 26 U.S.C. § 7206(1) [counts 6-7]; and of currency structuring in violation of 31 U.S.C. § 5324(a)(3) [counts 9-10]. He was sentenced to 46 months in prison for counts 1-5, 9 and 10, and 36 months for counts 6 and 7. The two sentences are being served concurrently. Chmielewski's conviction was affirmed in all respects on appeal. See United States v. Chmielewski, 218 F.3d 840 (8th. Cir. 2000).
III. DISCUSSION
A prisoner in custody claiming his sentence was imposed in violation of the Constitution or laws of the United States may move the court which imposed the sentence to vacate, set aside or correct the sentence. See 28 U.S.C. § 2255. Chmielewski must show that the error, if left uncorrected, would result in a "fundamental miscarriage of justice" or in a "conviction of one innocent of the crime." See McCleskey v. Zant, 499 U.S. 467, 494 (1991). The requirement of an evidentiary hearing to develop factual issues raised in a § 2255 motion is subject to the statutory qualification that the files and records of the case may be sufficient to dispose of the motion where they "conclusively show that the prisoner is entitled to no relief." Lindhorst v. United States, 585 F.2d 361, 364 (8th Cir. 1978) (citing Cain v. United States, 271 F.2d 337, 338 (8th Cir. 1959)). No evidentiary hearing is required, unless Chmielewski alleges facts which, if true, entitle him to relief. Woods v. United States, 567 F.2d 861, 863 (8th Cir. 1978) (per curiam); see also Pittman v. Warden Pontiac Correctional Ctr., 960 F.2d 688, 691 (7th Cir. 1992) (explaining that a § 2255 petitioner is not entitled to an evidentiary hearing if he does not allege facts that if proven would entitle him to relief). A petitioner seeking post-conviction relief bears the burden of establishing the need for an evidentiary hearing. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
A. Proof of Amount of Loss
Chmielewski first claims that the loss amounts attributable to his convictions should have been submitted to the jury and proved beyond a reasonable doubt. Defendant has procedurally defaulted this claim by not raising it at trial, the two sentencing hearings, or on direct appeal. "A defendant who has procedurally defaulted a claim by failing to raise it on direct review may raise that claim in a § 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence." McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
Chmielewski has not attempted to show "cause" for the default and does not show "prejudice." Consistent with current case law, the jury determined the materiality of the false statements and the trial court determined the attributable loss amount for sentencing purposes, under the United States Sentencing Guidelines, § 2F1.1. While the issue of guilt of the offense must be proved beyond reasonable doubt, the amount of loss need only be established by a preponderance of the evidence. See, e.g., United States v. Sample, 213 F.3d 1029, 1034 (8th Cir. 2000) (government bears the burden of proving the amount of loss by preponderance of the evidence) (citing United States v. Jackson, 155 F.3d 942, 947 (8th Cir. 1998)). The prosecution established the amount of loss by preponderance of evidence at an evidentiary hearing prior to sentencing.
In sum, Chmielewski fails to show either cause or prejudice. No connection is established between actual innocence and failing to submit the loss amount to the jury. Chmielewski's "loss amount" claim is denied on grounds of procedural default and lack of substantive merit.
B. Sixth Amendment Right of Effective Assistance of Counsel
Chmielewski also claims that his Sixth Amendment right of effective assistance of counsel has been violated. The Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. Amend. VI.
It stands to reason that this claim should also fall victim to procedural default. One of Chmielewski's current counsel, and an affiant attesting to ineffective assistance of counsel on this § 2255 motion, was appellate counsel on petitioner's direct appeal. This counsel, Charles Hawkins, elected which issues to raise on appeal after he was substituted as counsel of record for trial counsel Mitchell Robinson. If the constitutional rights of Chmielewski were truly prejudiced by his choice of trial counsel, the issue should have been raised two years ago in a motion for new trial or on direct appeal. There has been no change in the facts or trial record since the file review of the same counsel immediately after trial (and before sentencing).
Hawkins was substituted as counsel on April 27, 1999, while sentencing did not occur until September 7, 1999.
But, mindful of the Eighth Circuit precedent which holds that claims of ineffective assistance are best raised in the first instance to the trial court by a motion for post-conviction relief, the specifics of the claimed trial errors will now be examined. See United States v. Scott, 26 F.3d 1458 (8th Cir. 1994), cert. denied, 513 U.S. 1019; United States v. Thompson, 972 F.2d 201 (8th Cir. 1991), affirmed, 61 F.3d 586.
To prevail on this claim, Chmielewski must show (1) that his counsel's representation fell below an objective standard of reasonableness (performance prong), and (2) that any ineffectiveness prejudiced him, thereby depriving him of a fair trial and tarnishing the result of the trial as unreliable (prejudice prong). See Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
The proper measure of attorney performance is "simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. To demonstrate that counsel's performance was objectively deficient, Chmielewski must prove that counsel's errors were so serious that "counsel was not functioning as `counsel' guaranteed by the Constitution." Id. at 687. The proper "inquiry is not whether counsel's decision was correct or wise, but whether it `was an unreasonable one which only an incompetent attorney would adopt' considering all of the circumstances." United States v. Flynn, 87 F.3d 996, 1000 (quoting Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir. 1988), cert. denied, 488 U.S. 1019 (1989)). Judicial review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
To establish the prejudice prong of the Strickland test, Chmielewski must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Prejudice is not shown if the evidence is sufficiently compelling that the outcome of the case could hardly have been other than a verdict of guilty. Goeders v. Hundley, 59 F.3d 73, 77 (8th Cir. 1995).
If a defendant fails to prove unreasonable performance, then the prejudice prong of the Strickland test need not be considered, and vice versa. Flynn, 87 F.3d 996, 1000 (8th Cir. 1996). Even if a Chmielewski is able to show defective performance, he "must make a showing of both deficient performance and prejudice in order to obtain § 2255 relief based on ineffective assistance." Strickland, at 687; see also Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (emphasis in original).
All of Chmielewski's allegations under this claim are either too vague or run contrary to the facts of trial. Chmielewski first alleges that Robinson failed to "investigate customs charges or use available experts." However, Chmielewski does not specify what should be investigated or what type of expertise would have assisted his defense. A defense tax expert, Paul Walsh, was called by Robinson as a witness.
Chmielewski next alleges that Robinson failed to adequately prepare for trial by neglecting to review "tape recordings." Chmielewski is apparently referring to two tape recordings containing information which could have been used to impeach or cross-examine witnesses Mike Sohn ("Sohn") and Paula Ponsonby ("Ponsonby"). One tape seems to be a surreptitious recording of a telephone conversation between Chmielewski and Sohn, indicating that Sohn, not Chmielewski, was responsible for including false values on documents submitted to the United States. The existence of this tape was never disclosed to the prosecution or the Court until transcript excerpts appeared in this § 2255 motion. Tape two is an interview of the Government's witness Ponsonby, suggesting that Sohn was responsible and Chmielewski played a far lesser role at Casino Games International ("CGI").
Although the tapes themselves were not used to impeach and cross-examine the witnesses, the information from the tapes was used and solicited extensively in Robinson's cross-examination of the witnesses. For example, when cross-examining Sohn, Robinson asked Sohn about his prior statement that Sohn "ran" CGI. Trial Transcript Volume II ("TT II"), page 158, line 13. Robinson inquired of Sohn regarding conversations with persons at Allround Freight Forwarding. TT II at 159, lines 16-25. He also asked Sohn about several prior statements Sohn had made to Chmielewski. See TT II at 156-163. When examining Ponsonby, Robinson elicited testimony that Chmielewski was at the business premises of CGI only sporadically, and that Sohn ran the office when Chmielewski was away. Trial Transcript Volume I ("TT I") at 257-260, 265. He impeached Ponsonby with her statement that "[Sohn] bossed [Chmielewski] around." TT I at 266, lines 18-21. He brought out that Sohn told Ponsonby to "keep [her] mouth shut" about happenings around CGI if investigators came to ask questions. TT I at 267, line 18, 272, lines 16-21. He established that Sohn instructed Ponsonby to fax a false invoice to Wizard Amusements, a South African customer of CGI, and that Sohn himself had faxed a blank invoice to South African customers. TT I at 269-270, line 19. He elicited testimony that Sohn purchased inventory for CGI. TT I at 272, lines 6-9.
Robinson's questioning shows he prepared for trial by familiarizing himself with the prior statements of the government witnesses, and preparing a defense. There is nothing to suggest he exercised less than the customary skills and diligence of a competent attorney.
Chmielewski alleges that Robinson failed to prepare Paul Walsh, his expert witness, for trial. This allegation is also belied by the record. Walsh's testimony was precise and raised significant issues concerning the government experts analysis. Robinson introduced several exhibits through Walsh to support the defense theory of the case. See Trial Transcript Volume VI ("TT VI") at 119-183.
Chmielewski next alleges that Robinson failed to cross-examine customs agents regarding reports confirming that sometimes consignees filed Shippers Expert Declaration ("SED") forms. Generally cross-examination techniques, like other matters of trial strategy, are entrusted to the professional discretion of counsel. Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997), cert. denied, 522 U.S. 1129 (1998). Appropriate trial strategy includes presenting a rebuttal witness rather than cross-examining an opposing witness. See Bruns v. Thalacker, 973 F.2d 625, 630 (8th Cir. 1992). While some strategy decisions are so unreasonable that they can support a claim of ineffective assistance of counsel, (see United States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001)), a review of the record does not show Robinson's choice of trial strategy went beyond the wide range of reasonableness. Contrary to present assertions, Robinson did call the customs agent as a defense witness and specifically elicit information about values included on the SEDs. See TT VI at 109-115. The agent testified that "he sometimes accepted invoices with values for slot machines from the consignee." TT VI at 114, lines 15-18.
Next on his laundry list of complaints about his trial counsel, Chmielewski alleges that Robinson failed to "cross-examine Dave Hakes regarding threats made to him to get him to testify for the government." In Anderson v. Bowersox, the Court refused movant's ineffective assistance of counsel claim based on attorney's failure to cross-examine a witness concerning whether a deal had been made to the witness to testify for the government, where the movant failed to allege that such a deal existed. Anderson, 262 F.3d 839, 841 (8th Cir. 2001). Similarly, Chmielewski has made no showing that Dave Hakes was ever threatened with prosecution or that any consideration was given by the government to secure his testimony.
Chmielewski alleges that Robinson failed to cross-examine government witnesses regarding a $300,000 loan. Again, Chmielewski does not specify which witness and which transaction he is referring to, and how the evidence is exculpatory to the tax counts. Chmielewski has not satisfied either the performance prong or the prejudice prong.
Chmielewski's argument that Robinson failed to object to an improper closing argument regarding use of 404(b) evidence has been implicitly rejected on direct appeal. The Eighth Circuit affirmed the admission of the 404(b) evidence now claimed to be objectionable. Robinson's decision not to object to the use of 404(b) evidence in opposing counsel's closing argument was appropriate.
Each of Chmielewski's claims of ineffective assistance of counsel fail the two-prong test of Strickland and its progeny. Robinson's conduct did not fall below the objective standard of reasonableness. There is no showing which approaches a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
C. Fifth Amendment Due Process
In an attempt to raise a constitutional Fifth Amendment Due Process claim, Chmielewski argues he was actually innocent of Counts 1-5 as a matter of law. The argument is, because SEDs must be signed in order to constitute legal declarations under 15 C.F.R. § 30.4, his convictions are based on legally insufficient evidence.
Chmielewski's claim is procedurally defaulted for not having been raised on direct appeal. The same counsel presently making this argument did not include it in the original attack on the sufficiency of the evidence argument. The Eighth Circuit affirmed the conviction without questioning the status of the SED's. See Chmielewski, 218 F.3d 840 (8th. Cir. 2000).
An additional basis for rejecting this argument is that there is no legal requirement that the exporter has to sign the SED to be criminally responsible under 18 U.S.C. § 1001. Chmielewski argues that, because the general requirements for SEDs at the time under the Code of Federal Regulations, 15 C.F.R. § 30.4(c), required SEDs to be "signed in ink," an unsigned SED cannot constitute a false statement to the government for want of a declarant. However, the jury found sufficient evidence that Chmielewski made false statements to the United States through the SEDs introduced at trial to convict him of the elements of that offense under 18 U.S.C. § 1001. The Eighth Circuit has held that the jury had sufficient evidence to make that finding, and affirmed the conviction in all respects. See Chmielewski, 218 F.3d 840 (8th. Cir. 2000).
For both of these reasons, Chmielewski's 5th Amendment claim is denied.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Chmielewski's Motion to Vacate, Set Aside or Correct Sentence [Doc. No. 1] and [Doc. No. 110] is DENIED;
2. Chmielewski's Motion for an Evidentiary Hearing [Doc. No. 114] is DENIED; and
3. Chmielewski's Motion to Stay § 2255 Motion [Doc. No. 117] is MOOT.