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November 5, 1999


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.


A. The Government's Case

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

  salaries, wages, commissions, fees, etc., received
  from personal services rendered

  and shall include income from self-employment when
  one's physical effort is a factor in the production
  of such income.

(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. 60, Gvt.Exh.2).

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).

B. The Defense Case

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
  action ...

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