United States District Court, E.D. New York
September 10, 2004.
MARTIN REFFSIN, Petitioner,
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is the motion by Martin Reffsin
("Petitioner" or "Reffsin") to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The Petitioner argues that
he was denied his right to the effective assistance of trial
counsel by John S. Wallenstein, Esq., because, among other
things, counsel failed to sufficiently confer with the Petitioner
before and during the trial and counsel did not call any expert
witnesses. For the reasons stated below, Reffsin's motion is
The complete background of this case has been set forth in
detail in prior opinions by this Court and the United States
Court of Appeals for the Second Circuit. See United States v.
Gordon et al, 291 F.3d 181 (2d Cir. 2002), cert. denied,
537 U.S. 1114, 123 S. Ct. 866, 154 L. Ed. 2d 788 (2003); United
States v. Gordon et al, 71 F. Supp. 2d 128 (E.D.N.Y. 1999);
United States v. Gordon et al, 990 F. Supp. 171 (E.D.N.Y.
1998). Therefore, only the facts and procedures necessary for the
resolution of this motion are included in this decision.
On April 7, 1998, following a thirteen-week jury trial before
this Court, Martin Reffsin was convicted of conspiring with
co-defendant Bruce Gordon ("Gordon") to impair and impede the
Internal Revenue Service, evading tax payments, and three counts
of filing false federal income tax returns, in violation of
18 U.S.C. § 371, 26 U.S.C. § 7201, and 26 U.S.C. § 7206,
respectively. Reffsin's convictions arose out of his
participation in a multi-million dollar telemarketing scheme,
devised by Gordon, to deceive individuals into purchasing
memberships in an allegedly exclusive directory or registry
commonly referred to as the "Who's Who" publications. As Gordon's
accountant, Reffsin was convicted of conspiring with him to evade
tax payments to the Internal Revenue Service and assisting Gordon
in filing false tax returns that enabled him to hide his
fraudulently obtained assets from the "Who's Who" scheme.
On March 24, 2000, this Court sentenced Reffsin to forty-one
On May 30, 2002, in a summary Order, the Second Circuit
affirmed Reffsin's convictions. See Gordon, 291 F.3d at 184. On
January 13, 2003, the United States Supreme Court denied his
petition for a writ of certiorari.
On June 20, 2003, the Petitioner filed this motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255,
arguing the sole claim that he was denied his right to the
effective assistance of trial counsel by John S. Wallenstein,
Esq., an attorney appointed by the Court to represent him
pursuant to the Criminal Justice Act. Specifically, he contends
that counsel failed to sufficiently confer with the Petitioner
before and during the trial; counsel did not call any expert
witnesses; counsel conducted an inadequate cross-examination of a
Government witness; and counsel "failed to deliver an effective
closing argument." Pet'r Response at 8.
The United States Attorney's Office, as attorneys for the
Respondent, asserts that Reffsin's motion is without merit. In
addition, the Respondent provides an affidavit from Mr.
Wallenstein addressing the Petitioner's allegation that he was
ineffective as counsel.
To prevail on an ineffective assistance of counsel claim, a
petitioner must show that counsel performed deficiently and that
the deficiency caused actual prejudice to his or her defense.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L.Ed. 2d 674 (1984). A petitioner may prove the deficiency prong by
establishing that defense counsel's conduct fell "outside the
wide range of professionally competent assistance." Strickland,
466 U.S. at 690. A petitioner may establish prejudice by showing
a "reasonable probability" exists that, but for the deficiency,
"the result of the proceeding would have been different." Id.
at 694. "A reasonable probability is one sufficient to undermine
confidence in the outcome of the trial or appeal." Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Strickland,
466 U.S. at 694).
Because "it is all too tempting for a defendant to second-guess
counsel's assistance after conviction," Strickland,
466 U.S. at 689, the Second Circuit has instructed that a reviewing court
should be "highly deferential" in assessing counsel's
performance. See Pratt v. Greiner, 306 F.3d 1190, 1196 (2d Cir.
2002) (quoting Strickland, 466 U.S. at 689). A petitioner "must
overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.'"
Strickland, 466 U.S. at 690 (internal citations omitted).
Although the test for ineffective assistance of counsel
contains two prongs, the Supreme Court specifically noted that
federal district courts need not address both components if a
petitioner fails to establish either one. Strickland,
466 U.S. at 697. In particular, "a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697.
The Petitioner contends that counsel only spent two hours with
him preparing for trial. Also, Reffsin states that he prepared
"several memoranda providing background material that [he]
believed to be pertinent to [his] case . . . [but he] did not
think that [counsel] read them." Pet'r Aff. at 2. In addition, he
claims that he only spoke to counsel twice during the
thirteen-week trial "once at breakfast, and once at lunch . . .
[and] on both occasions, our discussion were extremely general
and accomplished nothing." Id. at 2. He concludes therefore
that, because of the "complexity" of his tax fraud case and the
Petitioner's own self-proclaimed expertise in tax issues,
"counsel failed to spend a sufficient amount of time consulting
with the petitioner before the trial commenced or at any time
while the trial was in progress." Pet. at 10.
The Court finds the Petitioner's claim to be without merit.
Counsel cannot be deemed constitutionally ineffective merely
because the Petitioner does not believe that counsel read his
prepared memoranda or because, in the Petitioner's opinion, their
meetings "accomplished nothing." Moreover, as to the time spent
preparing for the Petitioner's trial, Mr. Wallenstein provides
the Court with copies of his CJA voucher and time-sheets from the
Petitioner's case which directly contradict the Petitioner's
assertions. This voucher, which was approved by the Court prior
to the commencement of this action, details how counsel "met with
or had telephone conferences with Mr. Reffsin regarding his case
22 times prior to the start of his trial on January 14, 1998,
which totaled 22.9 hours in length." Wallenstein Aff. at 3. In
addition, counsel claims that he "conferred with [the Petitioner]
out of court on 10 separate occasions, totaling 30.1 hours, not
counting the time we spent together in court during the
three-month-long trial." Id. at 3. In any event, the Petitioner
fails to show how this alleged failure to sufficiently confer
with him actually prejudiced him at trial. Strickland,
466 U.S. at 694. As to counsel's decision not to call any expert
witnesses, counsel explains in his affidavit that this decision
was "a matter of trial strategy, and made . . . in consultation
with, and with the agreement of, Mr. Reffsin." Wallenstein Aff.
at 3. Mr. Wallenstein states that a tax expert was present "in
court at various times to monitor the evidence and testimony at
Mr. Reffsin's trial." Id. at 3. However, due to the
Petitioner's expertise in tax and bankruptcy matters and the fact
that the Petitioner wished to testify, counsel made a "strategic
judgment that it was better for Mr. Reffsin's defense if he
testified directly regarding his actions and conclusions, rather
than having another expert opine on his conduct . . . [and]
expose areas where Reffsin and the expert differed." Id. at 4.
In the Court's view, Mr. Wallenstein's strategic decision falls
"within the range of professionally reasonable judgments" and his
choice not to call a tax expert witness was reasonable under the
circumstances. Strickland, 466 U.S. at 699. See also Murden v.
Artuz, 253 F. Supp. 2d 376, 389 (E.D.N.Y. 2001) (stating that
"in general, whether or not to hire an expert is the type of
strategic choice by counsel that may not be second-guessed on
habeas corpus review").
Finally, the Court finds that the Petitioner's other claims
concerning counsel's alleged inadequate cross-examination of a
Government witness and closing arguments are also without merit.
The Court personally observed counsel and notes that his
performance assisted the Petitioner in being acquitted of two of
the seven charges.
Therefore, because the Petitioner present no "objective
evidence" beyond his own "self-serving, post-conviction
testimony," United States v. Gordon, 156 F.3d 376, 380-381 (2d
Cir. 1998), the Court finds that the Petitioner was not deprived
of his right to the effective assistance of counsel.
Therefore, for the reasons stated above, Reffsin's motion to
vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 is DENIED. Pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 2253(c)(2), a certificate of
appealability is DENIED, as the Petitioner fails to make a
substantial showing of a denial of a constitutional right.
Miller-El v. Cockrell, 537 U.S. 332, 336, 123 S. Ct. 1029,
1039, 154 L. Ed. 2d 931 (2003); Luciadore v. New York State Div.
of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
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