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July 15, 2004.

U.S., Respondent.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


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 issue.

  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 ...

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