Summary
rejecting ineffective-assistance claim based on counsel's failure to call a witness because the jury would have been unlikely to credit the testimony
Summary of this case from Epskamp v. United StatesOpinion
No. 01 Civ. 10644 (MBM)
September 23, 2002
JOHN J.E. MARKHAM, ESQ. from Boston, MA., Attorney for Petitioner.
JAMES F. COMEY, ESQ., United States Attorney for the Southern District of New York and DAVID RAYMOND LEWIS, ESQ., Assistant U.S. Attorney from New York, NY., Attorney for Respondent.
OPINION AND ORDER
Ronald Moskowitz was convicted of securities fraud and conspiracy to commit various securities fraud offenses following a 12-week jury trial; his conviction and sentence were affirmed on appeal, where he was represented by counsel other than the one who had represented him at trial. United States v. Moskowitz, 215 F.3d 265 (2d Cir. 2000). He petitions now pursuant to 28 U.S.C. § 2255 to set aside the judgment of conviction, arguing that he did not receive effective assistance of counsel at trial, and that the 97-month sentence imposed on him violatesApprendi v. New Jersey, 530 U.S. 466 (2000). Moskowitz's claims of ineffective assistance fall into two categories: claims based on the trial record, and claims arising outside that record. The claims arising outside the record center on trial counsel's failure to meet with one of the government's witnesses — Alvan Chorney — so as to be able to elicit testimony that would have helped Moskowitz, and his failure to call as a defense witness one of Moskowitz's principal co-conspirators, Jan Kirk, who had pleaded guilty but who had not yet been sentenced at the time Moskowitz was tried. The government sought to call Kirk as a witness, but Kirk, through counsel, invoked his Fifth Amendment rights. As a result, the government was permitted to introduce a redacted version of Kirk's guilty plea. Moskowitz attacked Kirk's credibility in part by introducing into evidence four anonymous letters that Kirk sent to the SEC, in which Kirk sought to cast blame for numerous Ferro-related frauds on Moskowitz, and deflect it from himself. (GX 3502-25)
For the reasons set forth below, the requested relief is denied and the petition is dismissed
I.
As summarized by the Court of Appeals, the proof at trial showed the following:
Moskowitz was Chief Executive Officer and [Jan] Kirk Chief Financial Officer of Ferrofluidics Corporation ("Ferro"). In the late 1980s, Moskowitz got into financial trouble and needed to sell off a sizable portion of his equity stake in Ferro. To that end, he parked his holdings in a "family trust," subdivided these trust holdings among his grandchildren to avoid SEC reporting requirements, and sold millions of shares of stock, a fact unknown to the Ferro's public shareholders or to the market generally.
During this time, Moskowitz and Kirk executed a series of frauds designed to artificially inflate share prices, a fraud from which Moskowitz — as a seller of Ferro's stock — reaped the primary gains. Among these frauds were paying off an investment reporter and stock analyst to talk up the company; executing a sham private placement in which Moskowitz and Kirk found complicit or unknowing buyers who actually invested no capital in the corporation; executing a sham $12 million purchase order to inflate expectations; and falsifying public accounts to further these and other scams.Moskowitz, 215 F.3d at 268. A part of the proof of payoffs to the investment reporter, Jerome Allen, consisted of evidence that Allen was granted Ferro warrants at prices substantially below market, and that bogus Ferro Executive Committee minutes were created to show that the warrants had been granted earlier than they in fact were, when Ferro stock was trading at lower prices. Alvan Chorney, a Ferro vice president and one of the members of the Executive Committee, testified that warrants were not granted to Allen at the meetings reflected in the bogus minutes, and that meetings did not even occur on certain of the dates appearing on those minutes. (Tr. 1582-87, 1608-26) Chorney testified also that the report of the stock analyst, Sheldon Traube — referred to at trial as the Dickinson Report after the company that published it (GX 300) — included projections based on the most aggressive calculations Chorney could produce after being instructed by Moskowitz to revise his own projections upward, and were so aggressive as to be unlikely. (Tr. 1540-45, 1551-54) The Dickinson Report was supposed to be an independent publication, and was proclaimed loudly as such by Moskowitz to investors and the financial world. However, Chorney and other witnesses testified that Moskowitz arranged to pay Traube through a third party for his favorable report on Ferro, and then urged him to lie to Fortune Magazine about whether he had been paid; Moskowitz himself lied to the Ferro board to conceal the payment. (Tr. 646, 1574-75, 3917-31, 4483-84, 4520-24, 4530-33)
Moskowitz's principal argument on appeal was that this court erred when it received in evidence Kirk's guilty plea. Moskowitz, 215 F.3d at 268. In addition to rejecting that argument, the Court of Appeals endorsed this court's view that the proof at trial showed "direct and overwhelming evidence of Moskowitz's guilt." Id. at 270.
II.
Moskowitz cites several exchanges between the court and his trial counsel, in which counsel and the court obviously disagreed about the effectiveness and permissibility of questions counsel was asking of witnesses or topics he was raising. All in all, although there is some acerbity evident in several of these exchanges, they are nothing beyond the usual tugging and hauling that goes on at a long trial when counsel seeks to push the outside of the proverbial envelope and the court seeks to maintain control and move the case along.
To the extent that Moskowitz's ineffective assistance of counsel claim rests on the record developed at trial, as it does insofar as it is based on the colloquy referred to above, it is barred because the time to have raised it was on direct appeal, and Moskowitz failed to do so. Because a § 2255 petition may not do service for an appeal, United States v. Frady, 456 U.S. 152, 165 (1982), a defendant who raises an issue for the first time in a § 2255 petition "must show both (1) `cause' excusing his . . . procedural default [in having failed to raise the issue on direct appeal], and (2) `actual prejudice' resulting from the errors of which he complains." Id. at 168. Here, Moskowitz cannot make that showing because he was represented on appeal by a lawyer other than trial counsel, and he does not even attempt to explain why that lawyer did not raise the issue on appeal. Although courts do not expect trial counsel to argue his own ineffectiveness on appeal, when a defendant is represented on appeal by someone other than trial counsel, he must raise the issue to the extent it is based on the record developed at trial, or show cause for his failure to do so. Absent such a showing, the defendant is barred from making a record-based argument for ineffective assistance in a § 2255 petition. See Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993) ("cause and prejudice test" applies "[i]f the defendant has new appellate counsel on direct appeal and the record is fully developed on the ineffectiveness issue").
It is not surprising that Moskowitz does not argue cause for his failure to raise his record-based arguments on appeal because the concept of "cause" requires that Moskowitz show some factor external to himself, such as official action, that interfered with his ability to raise the ineffectiveness issue on appeal. See Coleman v. Thompson, 501 U.S. 722, 753 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986).
Nor does Moskowitz show that he suffered prejudice as a result of the exchanges he cites — i.e., that the alleged errors of counsel in his interaction with the court had "an adverse effect on the defense" such that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 693-94 (1984). Even if Moskowitz had made an issue of these exchanges on direct appeal, they do not come anywhere near showing that trial counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 687-88.
For the above reasons, Moskowitz's record-based claims of ineffective assistance are barred.
III.
Moskowitz argues that if his attorney had interviewed Alvan Chorney, he would have discovered that Chorney had "very helpful" testimony to offer. (Moskowitz Mem. at 9) This testimony, as presented in Moskowitz's hearsay account of what Chorney allegedly told him after the trial, was that Chorney believed that Moskowitz was both more familiar with the marketing possibilities for Ferro's products than Chorney, and "determined to make the most favorable projections come true." (Moskowitz Decl. ¶ 7) Further, Chorney allegedly would have said that Moskowitz "was honest," and "would not purposely deceive anyone." Id.
Here, Moskowitz appears to overlook four significant points. First, although Chorney might have been permitted to present his personal view that Moskowitz was honest, such testimony likely would have been halted far short of what Moskowitz seems to be proffering: Chorney's articulated belief that Moskowitz did not have the intent to commit the crimes charged in the indictment. Cf. United States v. Hauert, 40 F.3d 197, 202 (7th Cir. 1994) (proper to exclude lay witness opinion as to tax protester's state of mind).
Second, Moskowitz's lawyer actually did elicit some of the proffered testimony, including that Moskowitz said he was committed to achieving the numbers he had gotten Chorney to project. (Tr. 1553, 1559).
Third, if Chorney had given character testimony of the sort now proffered by Moskowitz — including an endorsement of Moskowitz's honesty — such testimony would have been undercut by Chorney's own testimony that minutes reflecting grants of warrants to Jerome Allen contained descriptions of events that did not occur.
Fourth, the fraud relating to Chorney's projections was not limited to the projections themselves, but extended to their use in the Dickinson Report, which was supposed to be an independent report but whose author — Traube — was paid by Moskowitz through a third party, as outlined above. The fraud consisted of concealing that payment from the investing public. Even accepting Moskowitz's proffer of Chorney's testimony at face value, it does not touch that aspect of the fraud.
In sum, there could have been no prejudice to Moskowitz from a failure to elicit favorable testimony from Chorney.
IV.
Moskowitz's final ineffective assistance of counsel claim arises from the failure to call Kirk as a witness. Here, Moskowitz laces his ineffective assistance argument with a suggestion that the government purposely assured that Kirk would not be available by arranging to postpone Kirk's sentencing until Moskowitz's trial was over, and then failed to seek immunity for Kirk so as to prejudice Moskowitz's defense. Moskowitz presents two items of information outside the trial record in support of this claim: first, Moskowitz's own averment that he had urged his lawyer to call Kirk (Moskowitz Decl. ¶ 6); second, two letters from the court file in United States v. Kirk, 97 Cr. 1032, both addressed to Judge Robert W. Sweet of this court, to whom Kirk's case initially was assigned, in which the government and Kirk's counsel jointly sought to adjourn Kirk's sentencing. That sentencing was first scheduled to take place during the third week of Moskowitz's trial.
Moskowitz's claim relating to his lawyer's failure to call Kirk fails for numerous reasons, of which the following are the most obvious:
First, the claim is based principally on the trial record, the failure to call Kirk being evident from that record. Moskowitz failed to raise this claim on appeal, and therefore it is barred for the reasons discussed at pages 4-5 above.
Second, the postponement of Kirk's sentencing was entirely unremarkable. As originally scheduled, it would have taken place during Moskowitz's trial, which would have required diversion of resources and attention to meet the issues that Kirk raised in connection with his sentencing — issues treated by the Court of Appeals in the same opinion that affirmed Moskowitz's conviction and sentence. See Moskowitz, 215 F.3d at 272-73. Even if that sentencing had gone ahead as scheduled, Kirk would have retained his Fifth Amendment privilege so long as he had issues to press on appeal, as he in fact did. See United States v. Gierde, 110 F.3d 595, 603 (8th Cir. 1997) (witness who "had asserted his Fifth Amendment right against self-incrimination pending his appeal" was unavailable); United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991) (it is the "better rule" that a Fifth Amendment right to remain silent "continues until the time for appeal has expired or until the conviction has been affirmed on appeal"); Prentice v. Hsu, 280 F. Supp. 384, 388 (S.D.N.Y. 1968) (witness in civil case could assert his Fifth Amendment right to remain silent while his appeal from his criminal conviction was pending). Those issues, including whether Kirk had abused a position of trust, went to the heart of any testimony that Kirk could have given.
Third, Moskowitz's suggestion that Kirk's testimony somehow could have helped his defense is simply fanciful. Among the exhibits Moskowitz introduced at trial were four letters Kirk sent to the SEC in which he sought to lay blame for numerous Ferro-related frauds on Moskowitz and to deflect it from himself. (GX 3502-25) Moskowitz appears to argue that if Kirk had done that on the witness stand, the jury — aware of Kirk's own wrongdoing toward Moskowitz and otherwise — would have found it impossible to believe that Moskowitz had conspired with Kirk:
I believed that if a jury heard all the ways in which Jan Kirk had tried to hurt me by spreading falsehoods, and that he had done this very same thing in his past two jobs before coming to Ferro, jurors may well have doubted that I had conspired with him to do anything.
(Moskowitz Decl. ¶ 6) In essence, Moskowitz is arguing that if his attorney had managed to call Kirk, and if Kirk had been forced to testify, he would have been what the government describes aptly as a "loose cannon" (Gov't Mem. at 63), but one that would miraculously have shelled the government's case and not Moskowitz's. That is simply speculation fueled by wishful thinking, and cannot provide the basis for a claim that trial counsel's failure to do the impossible and the inadvisable by calling Kirk as a defense witness prejudiced Moskowitz's defense.
For all of these reasons, there is no substance to Moskowitz's claim that his trial counsel's failure to call Kirk was a failure to provide Moskowitz with effective assistance.
V.
Moskowitz acknowledges that governing authority in this Circuit would defeat his claim that his sentencing violated Apprendi because the court rather than the jury fixed the Sentencing Guidelines range. He says that he presses this argument solely to create a record so that he can seek a reversal of fortune before the Supreme Court. (Moskowitz Mem. at 36-38) There is nothing to be done by this court other than to agree that governing authority forecloses Moskowitz's argument, see e.g., United States v. Garcia, 240 F.3d 180, 183 (2d Cir.) ("We see nothing in the [Supreme] Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum. . . ."), cert. denied, 533 U.S. 960 (2001), and to deny relief.
* * *
For the foregoing reasons, the relief Moskowitz seeks is denied, and the petition is dismissed. For the same reasons, Moskowitz has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Accordingly, no certificate of appealability will issue.
SO ORDERED.