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ROBINSON v. U.S.

February 19, 2004.

MARC ROBINSON, Petitioner, -v- UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On February 19, 2003, Marc Robinson ("Robinson") filed a timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, attacking his conviction following trial. Having been convicted on various fraud charges, Robinson was sentenced principally to 120 months in prison. In the petition Robinson contends that he received ineffective assistance of counsel at trial and in connection with his sentence. For the following reasons, the petition is denied.

  Background

  On April 24, 1998, Robinson and his co-defendant Mark Page 2 Nissenbaum were charged in a twelve count indictment with wire fraud, transportation of property taken by fraud, and conspiracy to commit those offenses. Through a motion of October 9, 1998, John Patrick Rudden, retained counsel for Robinson, made an application to be relieved as counsel and to have counsel appointed to represent Robinson. Robinson submitted an affidavit in support of the application. On October 30, CJA attorney Jeremy Schneider was appointed to represent Robinson. At a conference on November 6, a trial date of June 21, 1999 was selected. On April 14, the trial date was adjourned to January 10, 2000. At a conference of November 4, Schneider's partner, Robert Soloway, was formally substituted as counsel for Robinson. The trial was scheduled to begin on January 18.

  Both defendants proceeded to trial. Before trial the Government moved to dismiss two of the twelve counts in the indictment. The trial began on January 18, and at trial the Government proved that Robinson engaged in three separate schemes of fraud: a scheme to defraud the Ivy Corporation, a Japanese investor group, through a fraudulent investment in approximately $5 million of worthless German gold bonds; a scheme to defraud Jennifer Patterson, a recent divorcee, of approximately $10 million through an investment involving non-existent prime bank notes; and a scheme to defraud Alfred Olivolo of approximately $20,000 through a loan which Robinson told Olivolo would be repaid from the proceeds of the prime bank note trading program. Following a three week trial, the jury convicted both defendants Page 3 on each of the counts on which they were tried.

  On September 6, the Court granted a request that retained counsel appear on behalf of Robinson to assist at his sentence. At sentencing on September 29, 2000, Robinson was represented not only by Soloway, his trial counsel, but also by three additional counsel that he had retained, John Patrick Rudden, Joseph Barrett, and Franshone Winn. Robinson was sentenced to a term of imprisonment of 120 months, to be followed by three years of supervised release, $420,000 in restitution, and a mandatory $600 special assessment. Robinson appealed, and on January 8, 2002, the conviction was affirmed.

  Robinson's claims in this petition concern in principal part whether Soloway made a sufficient effort to contact defense witnesses prior to trial and whether the Court erred in denying Robinson's application to delay the trial in order to permit new counsel to represent him. On Monday, January 17, the day before the trial was scheduled to begin, Robinson provided the Court with an affidavit raising issues about the efforts Soloway had undertaken to prepare for trial and to confer with him. The Court provided copies to counsel. With the consent of the Government, the Court conducted an ex parte hearing on January 18 to explore the issue in detail with Robinson and Soloway.

  At the January 18 ex parte hearing, Robinson advised the Court orally that he was dissatisfied with Soloway and requested an opportunity to obtain replacement counsel. Soloway provided copies of his letters to Robinson and memoranda of conferences Page 4 with Robinson, and described his repeated efforts from early November to obtain Robinson's assistance in identifying and contacting witnesses. Robinson had never produced anyone who could provide evidence that any of the three transactions at issue was legitimate. As explained by Soloway, despite Robinson's failure to provide him with such assistance, he tried to develop his own list of potential witnesses and to contact them. He also worked hard to prepare a defense and was "fully prepared" to present the defense that it was possible to present "under the circumstances." Soloway represented that he was "ready for trial." Soloway described his efforts to contact as potential witnesses Maurice Garber, Jim Choate, Ron Campbell, and David Drinkwater.

  At the hearing, Robinson admitted that prior to January 13, which was the preceding Thursday, he had given Soloway contact information for only one individual, Bruce Bender. Soloway had met with Bender on November 23, 1999. On January 13, Robinson gave Soloway three additional names: Prince Kgodomo of the Royal Bank of Africa, Nigel Chadwick Healy, and Frank Barry. Robinson only gave contact information for Healy. Soloway had spent his time since January 13 preparing from trial instead of trying to contact Healy since Robinson described Healy as an attorney who was generally familiar with the instrument called a prime bank note, but not as someone who was involved with any of the transactions at issue at the trial.

  The Court refused to grant Robinson's request to substitute Page 5 counsel or to adjourn the trial. It found both that Soloway was able to provide effective representation at trial and that the application was made "for purposes of delay." The Court found that Soloway had demonstrated an excellent command of the issues and that he had worked long and hard to prepare the case for trial. The Court added,
there is no good faith basis for the complaints about a failure to work with the defendant or to contact potential defense witnesses. . . . [Soloway] has repeatedly asked his client for assistance to identify witnesses who could testify in a relevant way on his behalf at trial, . . . [and] it is fair to say that there had been no presentation of any name, or any relevant witness who was prepared to testify for the defendant before January 13. And then on January 13, the three names that were mentioned were not effectively presented to defense counsel in a way that would permit him on the eve of trial to bring [them] in as witnesses, with one possible exception, Nigel Healy. And in that case, the description that was given to defense counsel did not indicate that he would necessarily have any relevant information to give and, therefore, was not necessarily going to be a helpful defense witness.
Even during the trial, Soloway continued his efforts to contact potential witnesses. For example, the morning of January 26, Soloway reported on his efforts to contact a Timothy Hubman.

  Discussion

  In his petition, Robinson first claims that Soloway was ineffective in failing to procure defense witnesses prior to trial, and that the Court erred in not granting his request on the eve of trial, made because of Soloway's failure to obtain witnesses, for a delay in the trial to permit him to replace Soloway with retained counsel. Second, Robinson contends that his counsel at sentencing were ineffective in failing to challenge the Page 6 Probation Department's calcualtion of the loss amount and abuse of trust enhancement.

  To prevail on a Sixth Amendment claim that his counsel was ineffective, a defendant must show that the representation "fell below an objective standard of reasonableness" under "prevailing professional norms"; and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984); see also United States v. Campbell, 300 F.3d 202, 214 (2d Cir. 2002); United States v. Eyman, 313 F.3d 741, 743-44 (2d Cir. 2002).

  Courts must ensure that an accused's right to counsel is not manipulated "so as to obstruct the orderly procedure of justice in the courts or to interfere with the fair administration of justice." United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999) (citation omitted); see also United States v. John Doe No. 1, 272 F.3d 116, 122 (2d Cir. 2001). An application for new counsel on the eve of trial should not be permitted "to become a vehicle for achieving delay." Arena, 180 F.3d at 397; see also United States v. Schmidt, 105 F.3d 82, 89 ...


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