The opinion of the court was delivered by: Glasser, District Judge.
Petitioner James M. Svendsen brings this action pursuant to
28 U.S.C. § 2255 seeking an order vacating, setting aside or
correcting his sentence. Svendsen argues that (1) he received
ineffective assistance of counsel; (2) he was convicted on the
basis of insufficient evidence showing that he acted with the
requisite intent; (3) the jury charge in his case was so flawed
as to deprive him of a fair trial; and (4) the Government's
suppression of evidence favorable to him so undermines confidence
in the outcome of his trial as to require vacatur of his sentence
and conviction, or alternatively, an evidentiary hearing to
ascertain the facts concerning the Government's alleged conduct.
For the reasons that follow, Svendsen's petition is denied.
After a trial by jury, petitioner Svendsen was convicted of a
single count of mail fraud, in violation of
18 U.S.C. § 1341.*fn1 On January 29, 1997, Svendsen was sentenced to five
years probation (with four months of home detention), and
restitution of $17,891.82. Svendsen took no direct appeal, and on
January 27, 1998, he filed the instant § 2255 petition.
Svendsen retired from the New York Fire Department ("NYFD") on
June 1, 1989, due to a service-related disability. As a disabled
firefighter with less than 20 years of service, Svendsen was
eligible for a lifetime pension of 75% of his final salary. (Tr.
37).*fn2 Under the rules of the NYFD Pension Fund governing
disability pensions, Svendsen was allowed to earn a certain sum
in excess of his pension, before being required to refund such
outside income to the Fund. (Tr. 33-34). In 1989 Svendsen was
informed by the Pension Fund that he was allowed to earn $19,354
in outside income — a figure which when added to the amount of
Svendsen's pension generates what the Pension Bureau refers to as
his "Safeguard Limitation." (Tr. 39-40, 44-45). Between 1989,
Svendsen's Safeguard Limitation, as calculated by the Pension
Bureau, increased from $51,249.88 in 1990, to $64,503.49 in 1994.
(Tr. 64-65, 79). This meant that in 1994, Svendsen could have
earned $32,607.51 before incurring the obligation to refund
excess income to the Pension Fund. (Tr. 64-65).
In 1994, Svendsen earned income in excess of his pension.
Specifically, Svendsen received wages and salary for work
performed while in the employ of two construction companies (one
of which, All Boro Construction, Inc., he had formed and was
serving as company president). As reflected on Svendsen's federal
tax return for 1994, his adjusted gross income from these sources
came to $44,994. (Tr. 88-99, 106-110).
In 1995, the FDNY Pension Fund sent four "Safeguard
questionnaires" to Svendsen, soliciting information about income
earned in excess of his pension for the years 1991, 1992, 1993,
and 1994. (Tr. 47-48, 55, 58, 61, 71, 76). The questionnaires
were accompanied by instructions defining the scope of earnings
subject to the Safeguard Limitation. Those instructions state
that "reportable" earnings include
(Tr. 55-56, Gvt.Exh.2). The questionnaires also specifically
inquired whether the information being reported concerning
earnings was compatible with pensioner's federal income tax
returns, and requested an explanation of any discrepancies. (Tr.
On January 29, 1996, Svendsen completed and signed the four
questionnaires, and mailed them to the FDNY Pension Fund in
Brooklyn. (Tr. 30, 64). On the questionnaire for 1994, Svendsen
indicated that he had no earnings, and responded "N/A" under the
column marked "Name of Employer." In response to the question
concerning discrepancies with his 1994 federal tax return,
Svendsen wrote nothing. Svendsen entered the same information on
the other three questionnaires. (Gvt.Exh.2).
Based on the wages and salary declared on his 1994 tax return,
and not declared on the Safeguard questionnaire for 1994,
Svendsen would have been required to refund $17,891.49 to the
Pension Fund. (Tr. 59-65, 70, 84).
In testifying in his own defense, Svendsen acknowledged that
his 1994 federal tax return accurately reflected his income
earned in excess of his FDNY pension. (Tr. 131-32, 138-41). He
also admitted that he had failed to report this income on the
Safeguard questionnaire for 1994. In explanation of this failure,
Svendsen stated that (i) he had been "a little confused" by the
accompanying instructions; (ii) he had filled the forms out in an
anxious rush, because they were due the following day and he was
worried that his pension payments might be suspended; and (iii)
he had believed that he was exempted from the Safeguard reporting
requirements because he was self-employed, and also because he
did not derive income from his physical labor. (Tr. 131).
In reference to the Safeguard Limitation, Svendsen stated that,
although he had been informed in 1989 that he was permitted to
earn no more in that year than $19,354 in income beyond his
pension, he had received no additional information on the matter
since that time. (Tr. 39, 127, 132). As a result, he said, "I
never knew what the [Safeguard] threshold was. I had no way of
ever knowing how they do it." (Tr. 132).
C. The Court's Charge to the Jury
The Court instructed the jury that the Government had to prove
beyond a reasonable doubt that Svendsen intended to defraud the
Pension Fund in order to be guilty of mail fraud. In expatiating
on this concept, the Court said:
And when we speak of an intent to defraud, we mean to
act knowingly with a specific intent to deceive for
the purpose of causing some financial loss or some