Opinion
98 CR 691 (DLC) 00 CIV. 8480 (DLC)
December 7, 2001
OPINION AND ORDER
On November 6, 2000, Lawrence X. Cusack, Jr. ("Cusack") filed a petition pro se for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, challenging his conviction by a jury on charges of mail and wire fraud. Cusack amended his petition on March 1, 2001. Through the voluminous submissions in support of the petition, Cusack claims that his attorneys, both retained and appointed, were ineffective at every stage of the prosecution, that is, at trial, at sentence, and on appeal. Cusack also asserts that the Government engaged in misconduct, and that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following reasons, the petition is denied.
BACKGROUND
The facts established at trial are summarized in the Court's Opinion addressed to sentencing issues. United States v. Cusack, 66 F. Supp.2d 493 (S.D.N.Y. 1999). Familiarity with that Opinion is assumed, and the facts recited here are limited to those necessary to put the petitioner's claims in context.
Cusack earned millions of dollars by selling scores of documents ("Documents") through falsely representing that they were authentic documents he had found in the files of his deceased father, an attorney who had performed legal work for the Archdiocese of the City of New York. Knowing the Documents to be forgeries, Cusack represented that they contained the handwriting of President John F. Kennedy and others associated with President Kennedy. The fabricated Documents reflected, among other things, a relationship between the President and the actress Marilyn Monroe.
Represented by able, retained counsel at trial, Cusack's defense largely conceded that the Documents were not genuine but argued that Cusack did not forge them and had acted in good faith in selling them. The Government offered overwhelming evidence that the Documents were not genuine, including proof that some of the Documents included zip codes even though the Documents were purportedly written at a time before zip codes had been invented and proof that others were typed on equipment that did not yet exist at the time of the dates given in the Documents. Cusack's agent in selling the Documents testified that as the scheme was unraveling, Cusack had confessed to him that he had forged the Documents, although Cusack had almost immediately retracted that confession. Cusack did not take the stand at trial.
On April 30, 1999, the jury convicted Cusack of five counts of mail fraud, in violation of Title 18, United States Code, Section 1341, and eight counts of wire fraud in violation of Title 18, United States Code, Section 1343. Following trial, since Cusack had exhausted his funds to retain counsel, the Court appointed counsel to represent Cusack at sentencing, although trial counsel remained available to assist. On September 17, 1999, the Court sentenced Cusack principally to 115 months in prison by imposing a sentence of 60 months on count one, to be followed by 55 months on the remaining counts.
On appeal, Cusack's appointed counsel principally argued that the Court erred in (1) admitting evidence regarding the defendant's false claims of military service and the defendant's expenditures, (2) denying the defendant's request, in the middle of trial, for a two to three week continuance to allow a defense handwriting expert to recover from an eye injury and develop a final opinion, and (3) imposing enhancements for abuse of trust and obstruction of justice. The conviction was affirmed on November 9, 2000.
DISCUSSION
A habeas petition brought pursuant to 28 U.S.C. § 2255 "is not a substitute for an appeal," and a defendant who did not raise his claims on appeal will be barred from raising them for the first time in a habeas petition unless the defendant can demonstrate (1) "`cause for failing to raise the issue, and prejudice resulting therefrom'" or (2) "`actual innocence.'" United States v. Rosario, 164 F.3d 729, 732 (2d Cir. 1998) (citations omitted). Because petitioner has neither provided cause for failing to raise these claims, nor demonstrated that he is actually innocent, all of the claims Cusack raises in his petition are procedurally barred. Nonetheless, this Opinion lists the claims Cusack presses in his petition and discusses those where it is appropriate to do so.
1. Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show: (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) there is a "reasonable probability" that the outcome would have been different but for counsel's error. United States v. Davis, 239 F.3d 283, 286 (2d Cir. 2001). A "reasonable probability" is one "`sufficient to undermine confidence in the outcome.'" Flores v. Demskie, 215 F.3d 293, 304 (2d Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)) There is a strong presumption that counsel's conduct falls within the "`wide range of reasonable professional assistance.'" Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 689).
Cusack asserts that trial counsel failed to prepare adequately for trial. He asserts specifically that his retained counsel failed (1) to offer available evidence in defense of the charges, including testimony from eleven expert witnesses, testimony from over a dozen fact witnesses, including the defendant himself, and exculpatory documents in his possession to prove that the Documents are authentic and that Cusack could not have forged them; (2) to argue that the Documents were authentic; (3) to object to the testimony of or adequately cross-examine the Government's witnesses; (4) to cross-examine adequately John Reznikoff, his sales agent and a dealer in historic memorabilia; (5) to have Cusack testify; (6) to call copyright attorney Neil Rosini as a witness to describe a meeting in May 1993, with the defendant, which would have shown that the drafts of the forged Documents in the defendant's notebooks were made to comply with the copyright fair use doctrine; (7) to cooperate with the defendant and others assisting the defendant in order to obtain the benefit of the information they had gathered in his defense; (8) to complain to the Court regarding prosecutorial misconduct; (9) to obtain certain documents in the Government's possession; (10) to call Donald Wolfe as a witness to establish that Wolfe had made a copy of Marilyn Monroe's will in the Surrogate's Court in September 1997, that is, after the date the defendant was accused of stealing the will from those same files; (11) to call chauffeur Mugsy O'Leary as a witness to establish that President Kennedy had driven from the Archdiocese's offices to the home of Cusack's father; (12) to arrange for a handwriting expert to show that the defendant had not forged the Documents; and (13) to establish that the defendant's wearing of a military uniform at Annapolis was a joke. Cusack also asserts that trial counsel (14) required the defendant to sign a waiver of his right to sue counsel after the defendant was no longer able to pay counsel; and (15) agreed to a stipulation of facts concerning the "Secretary of Education" which contained false and misleading statements.
With few exceptions, these allegations concern one overarching issue: Cusack contends that the Documents are authentic and that his attorney was ineffective in choosing not to contest their forgery. The decision not to argue that the Documents were genuine was entirely reasonable in the face of the Government's overwhelming evidence that the Documents were fabrications. It was entirely reasonable to conclude that embarking on a strategy to contest the point would have undermined the credibility of the defense such that the jury would have viewed with a jaundiced eye the other arguments pressed by the defendant, including that Cusack had acted innocently and in good faith in selling materials he had discovered in his deceased father's files.
An attorney's pursuit of a particular trial strategy, so long as it is a reasonable one, does not constitute ineffective assistance. United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). In this vein, "`[t]he 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.'" Id. (citation omitted). See also Pavel v. Hollins, 261 F.3d 210, 217 (2d Cir. 2001); United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000); Clark v. Stinson, 214 F.3d at 324.
Another set of issues concerns the adequacy of trial counsel's cross-examination of the Government's witnesses. Any decision not to challenge extensively those witnesses called to establish the Government's contention that the Documents were fabrications was, as just discussed, a reasonable tactical decision. Where appropriate, counsel conducted pointed, well prepared and skillful examinations of the Government's witnesses. Cusack has not identified any reasonable line of cross-examination not pursued by his attorney. In any event, the scope and substance of cross-examination is a matter left to the discretion of trial counsel. United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992).
Only a few of the remaining attacks on the performance of trial counsel deserve discussion. Cusack contends that trial counsel "failed to have [Cusack] testify in his own behalf." Cusack has not offered any evidence of any professional lapse on the part of his attorney in connection with Cusack's decision to not testify. Instead, he has offered statements by Donald Wolfe, an author of a biography of Marilyn Monroe, and Lu Ann Horstman, a paralegal for Cusack's civil attorney, volunteering essentially their opinions that Cusack would have made a credible witness.
Cusack contends that his attorney failed to call certain witnesses who would have provided information favorable to him. One such witness is Neil Rosini, who Cusack contends would explain why drafts of certain forged documents were in Cusack's notebooks. Cusack has offered only a draft affidavit for Rosini that Rosini refused to sign. Another such witness is Donald Wolfe, who Cusack contends would prove that a copy of Marilyn Monroe's will was still in the Surrogate Court's file after the date Cusack "was accused of stealing it." Wolfe's affidavit indicates that he saw the copy of the will in the Surrogate's files in October 1997. The Government witness testified that the copy was missing from the Surrogate's files three months later, in January 1998. Cusack asserts that trial counsel refused to speak with Wolfe, dismissing him as an unreliable witness, but does not identify any conversation in which the attorney was told by Cusack or anyone else that Wolfe had seen the copy of the will in the Surrogate's files in October 1997. In any event, this document was only one of many at issue at trial, and the argument that it came from the Surrogate's files was peripheral to its role in the Government's case. Finally in this regard, Cusack contends that his attorney should have called witnesses to explain that he wore an officer's uniform while visiting Annapolis as part of a joke. A decision not to highlight the evidence that Cusack impersonated a decorated naval officer during a trip to Annapolis by explaining it as a joke was entirely reasonable and one traditionally left to counsel.
Cusack argues that Wolfe's sighting of the copy of the Monroe will in the Surrogate's files in October 1997, proves that Cusack did not steal it and forge Monroe's signature to it, since the Government proved that he had given a Monroe will to his agent, John Reznikoff, long before October 1997. He argues that the will he gave to Reznikoff could only have come from his father's law firm's files.
The Government argued in its summation that the "original" signatures on the conformed copy of the will introduced as an exhibit at trial were forgeries and that Cusack, and not the agents he used to sell the Documents — John Reznikoff and Thomas Cloud — had access to the Documents and the opportunity to forge them. Whether the will came from the Surrogate's Court or the law firm files where he had worked as a paralegal, the thrust of the Government's argument remains unchallenged.
Another group of complaints concerns trial counsel's failure to bring to the Court's attention the Government's alleged misconduct, and counsel's alleged failure to press the Government to disclose Brady material. As described below, Cusack fails to explain why the Government's alleged misconduct was not raised on appeal. Cusack was represented by new counsel on appeal. To the extent there was an inadequately developed record to support a claim of prosecutorial misconduct, the Circuit Court could have remanded the issue for a hearing. The invocation of the claim of ineffective assistance of trial counsel cannot serve as a substitute for an adequate excuse for the failure to raise these issues in a timely manner.
Cusack complains that his trial counsel did not ask the Court to interrupt the trial to obtain the deposition testimony of Robert Phillips, a forensic document examiner, who Cusack asserts was prepared to testify "concerning authenticity" of the Documents but whose eye injury during the trial prevented him from doing so. Phillips was never identified at trial as someone who could testify regarding the authenticity of the Documents. Some brief background is helpful here.
On direct appeal, Cusack argued unsuccessfully that the Court's decision not to grant the defendant's request for a two to three week continuance was reversible error.
Prior to trial the defendant identified two experts neither of whom was Mr. Phillips, to testify that Cusack could not have been the author of the Documents. In response, the Government retained an expert who provided a report to the effect that Cusack had the ability to create the forgeries on the Documents. At the time of trial, Mr. Phillips had formed only a "preliminary" conclusion, not regarding the authenticity of the Documents, but to the effect that there was insufficient evidence to support the conclusion of the Government's handwriting expert that the defendant had the ability to replicate President Kennedy's handwriting. Because of his injury he never developed a final opinion on the subject or testified at trial. The testimony from the expert the defendant did call at trial, Harry Teltscher, to the effect that Cusack could not have forged the documents because his handwriting was not sufficiently controlled, was effectively demolished by cross-examination. Only after the trial did Mr. Phillips render an opinion regarding authenticity of the Documents, but even that was extremely circumscribed.
Mr. Phillips also had a preliminary opinion regarding the issue of whether the defendant had attempted to disguise his handwriting when providing exemplars to the Government, but the Government did not offer expert testimony on that issue at trial.
On January 24, 2000, Mr. Phillips submitted an affidavit in support of Cusack's civil litigation. Based on the documents he had examined at that time, he opined that evidence of "fast writing" and certain other features "strongly suggest" that the Documents were genuine, that is, written by President Kennedy. Even if this opinion had been available at the time of the trial, which it was not, and even if it were admissible, it would have been contradicted by the compelling evidence at trial that the Documents could only have been written after the President's death.
2. Ineffective Assistance of Counsel at Sentencing
Cusack contends that counsel at sentence (1) failed to show him the letter of Dr. Dennis Wolf before it was provided to the Court. Cusack contends that inaccuracies in Dr. Wolf's letter made its conclusions unreliable. He next contends that counsel (2) failed to advise him to admit to prior drug use during his interview by the Probation Department so that he could obtain a reduced sentence from the Bureau of Prisons through participation in a drug program; and (3) failed to advise him to admit his guilt to the Probation Department so that he could obtain an adjustment for "acceptance of responsibility." Cusack also contends that his retained counsel (4) failed after Cusack's sentence to offer to the Government Cusack's "substantial assistance.
The Court assigned counsel to represent Cusack at sentence because Cusack wished to be represented by new counsel, but was no longer financially able to retain counsel.
Cusack's assigned counsel for sentence and appeal arranged for a psychiatrist, Dr. Dennis Wolf, to evaluate the defendant and prepare a report to be used in connection with the sentence. In his two and half page report, Dr. Wolf related the defendant's explanations for the crime, including his admission that he had forged the Documents because he was under financial stress. Dr. Wolf opined that, while Cusack did not suffer from a major mental illness, he had "an odd and maladaptive method of dealing with emotional distress." The defendant also submitted the report of Dr. Frank Miller, who opined that Cusack suffered from diminished mental capacity. At sentence, the Court noted that the defendant had falsely described his participation in the crime to each doctor. The Court declined to depart on the ground of diminished capacity. United States v. Cusack, 66 F. Supp. 2d at 513.
Cusack contends that he only read Dr. Wolf's report after the sentence, although he heard portions of the report being read during the sentence. Cusack was obviously aware of the existence of the report; he was interviewed in order for the report to be prepared and heard it discussed at sentence. He does not assert that he ever asked to see the report or that a request to see it was rebuffed by his attorney. Nor does Cusack identify with any specificity the inaccuracies in the report. He has not, therefore, shown any failure on the part of counsel or identified any prejudice.
Regarding Cusack's assertion that counsel failed to advise him to admit to prior drug use, there is no basis to believe counsel failed to fulfill any obligation to her client or ever instructed Cusack to deceive the Probation Department when responding to its questions. The presentence report reflects that Cusack admitted to prior use of both marijuana and LSD.
The last two contentions do not merit any extended discussion. Cusack continues to deny his guilt. In light of that position, he has failed to show that he would have been willing to "accept responsibility" during his Probation Department interview or at anytime following sentence as part of an effort to win a reduced sentence by tendering his cooperation to the Government. See United States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001); United States v. Hirsch, 239 F.3d 221, 226 (2d Cir. 2001).
3. Ineffective Assistance of Appellate Counsel
Cusack contends that assigned counsel on appeal was ineffective in failing to notify the Second Circuit during or after oral argument of the Supreme Court's Apprendi decision of June 26, 2000. As described below, the Apprendi decision does not affect Cusack's sentence, and there was therefore no error by counsel in not raising the issue on appeal.
In sum, Cusack's claims that his trial and appellate counsel were ineffective are denied. In essence, Cusack continues to assert that the Documents are genuine and that he is innocent of any wrongdoing. Although he was ably represented by counsel at each stage of the prosecution, the Government proved through overwhelming evidence that the Documents were fabricated and that Cusack sold them for millions of dollars knowing that to be the case.
4. Prosecutorial Misconduct
Cusack contends that the Government violated his rights when it (1) threatened to indict Cusack's wife if she testified at trial; (2) threatened the defendant with additional charges if he continued civil suits against ABC and CBS, which had aired programs about the Documents, and asked for the Court to increase the defendant's sentence because he pursued those lawsuits; (3) threatened Cusack's civil attorney Carl Person ("Person") with indictment if he did not shut down his website concerning the ABC and CBS lawsuits or withdraw subpoenas served in those lawsuits on the Government's experts; (4) tried to force Cusack and his co-plaintiffs to dismiss their lawsuits against ABC and CBS; (5) threatened his criminal trial counsel with indictment for the actions by civil attorney Person; (6) "leaked" Grand Jury information, specifically one of the defendant's notebooks, to ABC to use during Peter Jennings' television interview of Cusack in September 1997, and otherwise violated the requirements of secrecy during the investigation; (7) harassed Cusack's wife by requiring her to provide handwriting exemplars and fingerprints without any intention of using them; (8) lied to Cusack's prior counsel by representing that Cusack was not a "target" of its investigation at the time Cusack made a "proffer" to the Government; (9) refused to listen to exculpatory evidence from Donald Wolfe and withheld exculpatory evidence presented to it by Norman Darvick; (10) suborned perjury by trial witnesses; (11) offered unqualified witnesses to give expert testimony, and threatened one of those experts in order to obtain his testimony; (12) used a cooperating witness to obtain information from Cusack during its investigation of Cusack; (13) either failed to perform available scientific examinations on the documents or, if it did perform those examinations, withheld the results from the defense; (14) allowed the criminal process to be used to further the private interests of the Kennedy family and others; (15) interfered with Cusack's efforts to obtain bail by asking those willing to sign a bond whether they had been convicted of a crime; (16) requested bail in an amount that interfered with Cusack's ability to use his assets to defend himself; (17) filed press releases to bias the venire; (18) withheld documents unrelated to this prosecution which should be returned to Cusack; (19) failed to give the defense adequate time to inspect and copy documents; (20) failed to give the defendant a copy of documents subpoenaed from one of his prior attorneys, Thomas Sergeant; (21) did not provide its expert reports to the defendant in sufficient time before trial; (22) did not try to locate evidence that would exculpate the defendant; (23) ignored death threats made against Cusack and others close to him; (24) arrested Cusack for the purpose of exposing him to an "illegal `perp walk'"; and (25) used testimony from Seymour Hersch without requiring him to produce the notes of his interviews of witnesses or drafts of chapters he had written for a book regarding the Documents.
Although represented by experienced and able retained counsel at trial, and experienced and able assigned counsel at sentence and on appeal, Cusack did not raise any of these claims of prosecutorial misconduct either at trial or on appeal. Cusack has not shown cause for failing to raise these claims on direct appeal or demonstrated his actual innocence. As a consequence, they are barred from habeas review. As already noted, a petition for a writ of habeas corpus is not a substitute for direct appeal. See United States v. Rosario, 164 F.3d at 732.
5. Apprendi Issue
Cusack claims that his sentence was enhanced in violation of Apprendi. Cusack contends that his sentence was illegal in that the Sentencing Guidelines' computation resulted in a sentence greater than the five year statutory maximum on each of the counts of conviction. Cusack was sentenced to 9 years and 7 months.
"`Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count.'" Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001) (quoting United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001)). Thus, "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury." United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001). In United States v. White, 240 F.3d 127, 135 (2d Cir. 2001), the Second Circuit held that Apprendi does not prohibit a district court from sentencing a defendant to consecutive sentences on multiple counts of a conviction, so long as the court does not exceed the statutory maximum for any individual count. Here, Cusack was not sentenced on any count to a term of imprisonment longer than the statutory maximum for the count. Accordingly, there was no violation of Apprendi. Id.
CONCLUSION
Cusack's petition is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Should the petitioner seek leave to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith.Coopedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED