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SLEVIN v. U.S.

November 3, 1999

FRANK SLEVIN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Leisure, District Judge.

  OPINION AND ORDER

Petitioner pro se Frank Slevin is a federal prisoner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255. On September 13, 1999, this Court held an evidentiary hearing to determine whether petitioner received ineffective assistance of counsel during pretrial plea negotiations. For the following reasons, petitioner's § 2255 motion is denied.

BACKGROUND

The substantive facts and procedural history of this § 2255 petition have been set forth in detail in Slevin v. United, States. No. 98 Civ. 0904, 1999 WL 549010, at *1-*2 (S.D.N Y July 28, 1999). Hence, only those facts necessary for determination of the instant motion are stated here.

On August 16, 1994, petitioner was indicted on ten counts of mail and wire fraud, conspiracy to commit mail and wire fraud, and various other offenses relating to the tendering of surety bonds to private construction contractors. Nine days later, petitioner, represented by Harry R. Pollak, Esq. ("Pollak"), tendered a plea of not guilty. The original indictment was then superseded and redacted, and petitioner was tried on an indictment charging five counts of mail fraud in violation of 18 U.S.C. § 1341, one count of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371. Following a seven-day jury trial before the late Hon. Dominick L. DiCarlo, Senior Judge of the United States Court of International Trade, sitting in this Court by designation, on June 13, 1995, petitioner was convicted on all counts. On December 13, 1995, petitioner was sentenced by this Court to 78 months' imprisonment, followed by three years' supervised release, and a mandatory $350 special assessment.

On December 26, 1995, petitioner filed a notice of appeal. Despite efforts by petitioner to replace Pollak as his appellate counsel, Pollak again represented petitioner in those proceedings. The Second Circuit ultimately affirmed petitioner's conviction and sentence on December 18, 1996. See United States v. Slevin, 106 F.3d 1086 (2d Cir. 1996).

Petitioner now seeks § 2255 relief based on allegations that he received ineffective assistance of counsel both during and after his trial and during plea pretrial negotiations. On July 28, 1999, this Court denied petitioner relief on various claims of ineffective assistance. See Slevin, 1999 WL 549010, at *3-*9. However, this Court granted petitioner's request for an evidentiary hearing to explore two issues: "(1) whether petitioner's trial counsel provided ineffective assistance in advising petitioner with respect to the Government's plea offer; and (2) whether there is a reasonable probability that, but for counsel's allegedly erroneous advice, petitioner would have accepted the Government's plea offer rather than proceeding to trial." Id. at *13. After petitioner received the Court's July 28, 1999 Order, but prior to the evidentiary hearing, it was learned that Pollak was recently deceased. See Pet. Mem. at 2.

At the hearing, petitioner called two witnesses: himself and his wife, Margaret Slevin ("Mrs.Slevin"). The Government produced a single witness, Susan Brune ("Brune"), the former Assistant United States Attorney who had prosecuted petitioner and who had allegedly made the plea offer at issue. For the most part, petitioner reiterated the allegations he set forth in his affidavit. See September 13, 1999 Hearing Transcript ("Hearing Tr.") at 15-21. Mrs. Slevin testified that her husband had informed her that he had received a two-year plea offer from Brune, but that Pollak counseled petitioner to reject it because, according to Pollak, petitioner was only facing "two to three years" in prison. See id. at 11-12. Brune described her discussions with Pollak and explained to the best of her recollection, how she calculated petitioner's plea offer. See id. at 62-84. She acknowledged making the offer, but conceded that she had difficulty recalling its details. See id. at 66-67. Moreover, she stated that she never had any direct discussions with petitioner regarding the plea offer. See id. at 90-91.

DISCUSSION

I. Petitioner's Claim

Petitioner's sole remaining claim alleges that, during the pretrial plea negotiation process, Pollak drastically underestimated petitioner's maximum potential sentencing exposure. According to petitioner. Pollak advised him that, if convicted, he would receive "a sentence of two to three years." Hearing Tr. at 17. Moreover, Pollak allegedly told his client that "if [he] was a good person, behaved [him]self well in jail, the likelihood [was he] would only have one third of the time to do so." Id. at 18. In other words, had petitioner received the three-year sentence Pollak allegedly predicted, he would have only been incarcerated for twelve months. See id. Finally, according to petitioner's affidavit, counsel stated that petitioner "would continue to be at home release [sic] on bond during an appeal that could be taken in the event of a conviction." Pet. Aff. at ¶ 17.*fn1

In fact, as he later discovered, petitioner was facing the possibility of a much more substantial prison term. Petitioner's actual maximum exposure under the relevant statutes, 18 U.S.C. § 1341 and 1343, was five years for each of the seven counts on which he was indicated, amounting to a total possible exposure of thirty-five years.*fn2 That exposure, and even the 78-month sentence this Court eventually imposed under the United States Sentencing Guidelines (the "Guidelines", or "U.S.S.G."), were both far greater than either the "two or three years" allegedly predicted by petitioner's counsel or the twelve-month maximum based on "good time"*fn3 that counsel also allegedly advised.

Petitioner asserts that, based on Pollak's alleged erroneous estimate, he decided to reject the Government's proposed plea offer of two years' imprisonment in late 1994.*fn4 See id. at 18-10. At the September 13, 1999 hearing, petitioner alleged his version of his conversation with Pollak, in which Pollak allegedly advised him to reject the offer:

    Q: What did Mr. Pollak tell you was the plea offer that the
  [G]overnment had made to you?

A: Two years in jail.

    Q: Did you have any further discussion with him about what
  had been said?
    A: I asked him is two years a normal intelligent plea offer
  when, as you told me, I am looking at two to three and you
  advised [me that a] first time criminal would get the lower
  end, does this make sense?

Q: What did he say?

    A: And he said no, it doesn't, your exposure to going to
  trial is very, very limited.
    Q: Did he give you any recommendation as to whether you
  should accept or reject the plea offer?

A: He told me to reject the plea offer.

Petitioner further testified that, before deciding to go to trial, he discussed the offer with his wife and "looked at the risk exposure that was there." Id. at 19-20. He also stated unequivocally that, had he been adequately informed of his actual sentencing exposure, he would have accepted the Government's plea offer:

    Q: If you had been told at the time by Mr. Pollak or someone
  on his behalf that the actual exposure, the jail exposure you
  might have after being convicted at trial would be in the
  range of six and a half years, would your ...

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