United States District Court, S.D. New York
July 15, 2004.
RONALD MOSKOWITZ, Petitioner,
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION AND ORDER
This petition pursuant to 28 U.S.C. § 2255 (2000), whereby
Ronald Moskowitz seeks to vacate the judgment of conviction
entered against him on the ground that his trial counsel was
ineffective, is here on remand from the Court of Appeals after
this court relied in part on Billy-Eko v. United States,
8 F.3d 111 (2d Cir. 1993), in denying Moskowitz's claims to the
extent they were based on the trial record because he had not
raised those claims on direct appeal. See Moskowitz v. United
States, 01 Civ. 10644 (MBM), 2002 WL 31119269, *2 (S.D.N.Y.
Sept. 24, 2002). The holding in Billy-Eko that record-based
ineffective assistance claims must be raised on direct appeal or
waived, absent a showing of cause, if the defendant is
represented on appeal by a lawyer other than the one who
represented him at trial, was rejected by the Supreme Court in
Massaro v. United States, 538 U.S. 500, 509 (2003).
Accordingly, I have been directed to rule on the merits of
Moskowitz's record-based claims. For the reasons set forth below,
those claims lack merit, the requested relief is again denied and
the petition is dismissed. No certificate of appealability will
Familiarity with the court's prior opinion in this case is
assumed for current purposes. That opinion, which includes a
section summarizing the proof at trial and includes also the
conclusion of the Court of Appeals on Moskowitz's direct appeal that that proof showed "direct and overwhelming evidence of
Moskowitz's guilt," United States v. Moskowitz, 215 F.3d 265,
270 (2d Cir. 2000), is incorporated herein by reference.
A defendant who presses a claim of ineffective assistance
assumes a formidable two-part burden. He must, first, "show that
counsel's performance fell below an objective standard of
reasonableness" under "prevailing professional norms," and,
second, "affirmatively prove prejudice" which is to say, he
must demonstrate 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, 687-89, 693-94 (1984). To satisfy the
first part of that test, the defendant must show that his lawyer
"made errors so serious that counsel was not functioning as the
`counsel' guaranteed . . . by the Sixth Amendment." Id. at 687.
Here, "[a]ctions or omissions by counsel that might be
considered sound trial strategy do not constitute ineffective
assistance." United States v. Best, 219 F.3d 192, 201 (2d
Cir. 2000) (internal quotation marks omitted). A court should not
"second-guess trial counsel's defense strategy simply because the
chosen strategy has failed." United States v. DiTommaso,
817 F.2d 201, 215 (2d Cir. 1987). Therefore, a court faced with an
ineffective assistance claim "`must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `[t]here are
countless ways to provide effective assistance in any given case'
and that `[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.'" United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 689). The reviewing court's focus
should be on the "fundamental fairness of the proceeding whose
result is being challenged," with the emphasis not on grading
counsel's performance but on "whether . . . despite the strong
presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just
results." Strickland, 466 U.S. at 696. "When a true adversarial
criminal trial has been conducted even if defense counsel may
have made demonstrable errors the kind of testing envisioned by
the Sixth Amendment has occurred." United States v. Cronic,
466 U.S. 648, 656 (1984).
Even if a defendant establishes that trial counsel's
performance was deficient by the standards articulated above, he
cannot prevail on his claim of ineffective assistance unless he
shows also that there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694.
"Reasonable probability," in this context, means "a probability sufficient to undermine confidence in the outcome." Id.
In his Supplemental Brief, as in his initial memorandum of law,
Moskowitz advances essentially two categories of argument. The
first category comprises trial counsel's alleged failures in
dealing with a variety of issues relating to codefendant Jan
Kirk, and in presenting a requested jury instruction. These are
relatively straightforward, and can be treated briefly.
With respect to Kirk, Moskowitz proceeds from a premise that is
itself incorrect that "Kirk was the proven wrong-doer and that
the case against Moskowitz was co-conspirator derivative of that
guilt" (Moskowitz Supp. Br. at 16) to the necessarily erroneous
conclusion that any purported error in connection with evidence
relating to Kirk must have been catastrophic. Here, Moskowitz
omits reference to evidence of his having (i) parked stock in his
family trust and sold it without public disclosure, (ii) dealt
directly with Jerome Allen, who wrote favorable articles about
Ferrofluidics in return for under-priced warrants issued based on
back-dated minutes (Tr. 1582-87, 1608-26), and (iii) arranged to
pay a supposedly independent stock analyst through a third party
in return for a favorable report, then urged that analyst,
Sheldon Traube, to deny falsely Fortune Magazine that he had been
paid, and then himself lied to the company's board in order to
conceal the payment (Tr. 646, 1574-75, 3917-31, 4483-84, 4520-24, 4530-33). These misdeeds were carried
out with no apparent assistance from Kirk. He also fails to
grapple with the logical flaw in his reasoning, which arises from
the simple fact that Moskowitz was the main beneficiary of all
the frauds that went on at Ferrofluidics, whether they were
orchestrated principally by Kirk, as were the sham private
placements and the sham Kaiwa invoice, or principally by
Moskowitz himself, as were the frauds referred to above.
Sidestepping those significant gaps, Moskowitz taxes his lawyer
for having failed to agree to omit from the Kirk guilty plea a
reference to an unnamed employee with whom he conspired, and then
having tried to suggest in summation that that employee was Steve
Morin. The government was permitted to neutralize that
suggestion, which had no basis in the record, by simply pointing
out that it had no basis in the record, and that the employee was
not identified. No suggestion was permitted, nor was any made,
that the employee was Moskowitz. Counsel's approach to the Kirk
plea apparently was strategic. That the strategy did not succeed
does not mean that counsel was ineffective for having pursued it,
particularly when the result, although it did not help Moskowitz,
did not result in significant harm either.
In a footnote, Moskowitz also hypothesizes that trial counsel
could have sought to "require the government to grant immunity to Kirk for the defense, given how many grants of
immunity the government used to make its case." (Moskowitz Supp.
Br. at 19 n. 12) That hypothesis is without legal foundation.
"Absent extraordinary circumstances, `the Due Process Clause
imposes no requirement that defense witness immunity be ordered
"whenever it seems fair to grant it."'" United States v.
Diaz, 176 F.3d 52, 115 (2d Cir. 1999) (quoting Blissett v.
Lefevre, 924 F.2d 434, 441 (2d Cir. 1991) (quoting United
States v. Turkish, 623 F.2d 769, 777 (2d Cir. 1980). Instead,
the standard is as follows:
We apply a three-part test for determining whether
there are exceptional circumstances warranting a
directive that the government grant immunity to a
defense witness. First, the district court must find
that the government, through its own overreaching,
has forced the witness to invoke the Fifth Amendment
or, that the government has engaged in discriminatory
use of grants of immunity to gain a tactical
advantage; second, the witness' testimony must be
material, exculpatory and not cumulative; and third,
the defendant has no other sorce to obtain the
evidence. The defendant bears the burden of showing
that each of these elements is present.
Id. (citations omitted). That standard simply was not been
met here. There is no claim that the government put Kirk in the
position of invoking his Fifth Amendment rights; Kirk pleaded
guilty. Nor is there any suggestion of government misconduct in
connection with conferring immunity on anyone. Further, there has
been no showing that Kirk had "material, exculpatory" testimony
to offer. Pipe dreams about what Kirk might have testified to, or what he could not have denied, as contained in
Moskowitz's initial memorandum (Moskowitz Mem. at 28) do not
amount to such a showing, and could not have undercut the
substantial evidence of Moskowitz's own wrongdoing. Material
testimony, it must be recalled, is testimony that does more than
"bear some abstract logical relationship to the issues in the
case"; rather, it is testimony that would permit a defendant
"significantly to alter the quantum of proof in his favor."
United States v. Maniktala, 934 F.2d 25
, 28 (2d Cir. 1991)
(citation omitted). Thus, if trial counsel had moved to compel
immunity for Kirk, that application would have been denied.
Insofar as Moskowitz complains about his trial counsel's
failure to preserve a request for a jury instruction on the
subject of predictions or forecasts as contrasted with
representations of current fact, as the Court of Appeals pointed
out in its opinion on Moskowitz's direct appeal, "[i]t is hardly
clear that Moskowitz's draft charge accurately represented the
law in every respect." Moskowitz, 215 F.3d at 271 (quotation
and citation omitted). Nor was there any prejudice to Moskowitz
from the failure to give this instruction in view of "the
substantial evidence that Ferro's current books misrepresented
its financial condition." Id. at 272 (emphasis in original).
The second category of arguments consists of excerpts from the
trial record yielded by dredging the transcript of a hard-fought 12-week trial for passages that reflect exchanges
between defense counsel and the court in which defense counsel
either did not accomplish what he wished or apparently was
criticized, whether implicitly or explicitly, by the court.
(Moskowitz Supp. Br. 17-20, Ex. B at 1-16) What is notable about
this omnium-gatherum is that these passages are presented
without context. When quotations are offered, what appears is a
brief exchange, featuring principally the court's statements. In
addition to quotations, Moskowitz offers a statistical rundown of
the number of defense objections made and sustained as compared
with the number of prosecution objections made and sustained.
(Moskowitz Supp. Br. Ex. B at 17-32) These statistics establish
the unremarkable fact that a higher number and proportion of
defense objections than prosecution objections were overruled,
and a higher number and proportion of prosecution objections than
defense objections were sustained.
As I noted in the earlier opinion, there is acerbity evident in
many of the exchanges between the court and counsel, but neither
individually nor collectively do these exchanges betray
ineffective defense representation. In some instances, Moskowitz
has simply misread what happened. Thus, he quotes the court
ending a discussion with "here endeth the lesson" (Moskowitz
Supp. Br. Ex. B at 1, quoting Tr. 191), suggesting that
Moskowitz's trial counsel was being given a tutorial in the law of evidence. In fact, the comment related to a prior ruling
that the court was explaining, and the comment was a
self-deprecating one by the court about the court's own voluble
explanation. Moreover, the longer discussion ended with
defendant's trial counsel getting the ruling he wanted. (Tr. 201)
Further, the court's restatement of questions to witnesses is
presented as a criticism of the questioner, when in context it is
a direction to the witness to answer the question. (Compare,
Moskowitz Supp. Br. Ex. B at 3-4, with, Tr. 1159, 1160, 1163,
1168, 1241) Indeed, at one point the court expressed displeasure
not with defense counsel but with Moskowitz himself insofar as he
was offering responses that went far beyond counsel's questions.
(Moskowitz Supp. Br. Ex. B at 14).
In other instances, the court asked counsel to move things
along, an admonition that is the small change of daily discourse
during a lengthy trial. Indeed, a couple of the examples cited by
Moskowitz were directed at both sides. (Moskowitz Supp. Br. Ex. B
at 4, citing Tr. 1412, and 9, citing Tr. 2259) One could cite
similar admonitions to government counsel alone (see, e.g., Tr.
3649), but the point is a small one by any standard.
It would lengthen this opinion beyond what is necessary or
useful to take each of the dozens of transcript excerpts
Moskowitz offers and explain in detail what actually happened at each point. Neither individually nor collectively do they
establish that defense counsel failed to provide the
representation contemplated by the Sixth Amendment. Styles of
advocacy differ. The defendant in a criminal case can always
appeal a verdict adverse to him; the double jeopardy clause of
the Fifth Amendment bars the government from appealing a verdict
adverse to it. As a result, some defense lawyers are aggressive
and try to score whatever points they can with the jury, whether
or not they are in full compliance with the rules in doing so. It
is up to the court to try to keep what happens before the jury
within the lines that the court believes the rules establish.
That tension is sometimes manifested in exchanges of the sort
catalogued by Moskowitz. Such exchanges are not in themselves
evidence of ineffective assistance.
Nor are the statistics Moskowitz cites, of objections made and
either overruled or sustained, such evidence, for the same
reasons cited in the preceding paragraph. My experience is that
defense counsel often, although certainly not always, ask more
objectionable questions and raise more unsuccessful objections
than prosecutors. Once again, how far a defense lawyer will go in
trying to press his own examinations or limit the other side's is
a matter of judgment and strategy.
For the reasons set forth above, Moskowitz's record-based
objections to his trial counsel's performance do not establish that Moskowitz's was anything but a "true adversarial
criminal trial." Cronic, 466 U.S. at 656. They certainly do not
"undermine confidence in the outcome" of that trial.
Strickland, 466 U.S. at 694. Therefore, the application to set
aside the judgment of conviction is denied and the petition is
For the above reasons, I believe that reasonable jurists could
not dispute the result reached here, and accordingly no
certificate of appealability will issue.
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