The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
This Court has previously considered and denied Patrick Bennett's ("Bennett") petition under 28 U.S.C. § 2255 to vacate, set aside, or correct the 22-year sentence he received on July 5, 2002, following his conviction, in two separate trials, on various counts of conspiracy to obstruct justice and commit perjury; obstruction of justice; perjury; securities fraud; bank fraud; money laundering; and engaging in monetary transactions with criminally-derived property.
The petition asserted two grounds for relief:
(1) Under Blakely v. Washington, 542 U.S. 296 (2004), his conviction should be set aside because 18 years of the 22-year sentence was based solely upon judicial findings of fact contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000).
(2) Ineffective assistance of trial and appellate counsel. At trial, the cumulative impact of 19 prejudicial errors and omissions by trial counsel, denied Bennett his Sixth Amendment right to the effective assistance of counsel. Appellate counsel was also ineffective for failure (i) to raise the omission of an obvious jury instruction, and (ii) to raise the "cumulative errors of his trial counsel on direct appeal.*fn1
The Court also refused to issue a Certificate of Appealability, determining there was no question of substance for appellate review, and the petition had failed to make a "substantial showing of the denial of a constitutional right." Bennett v. United States, No. 03 Civ. 1852 (PAC), 2006 WL 738162, at *16 (S.D.N.Y. Mar. 22, 2006) (28 U.S.C. § 2253(c)(2), and Fed. R. App. P. 22(b)). On June 26, 2006, the Court denied Bennett's motion for reconsideration. Bennett v. United States, No. 03 Civ. 1852 (PAC), 2006 WL 1751242 (S.D.N.Y. June 26, 2006).
Bennett appealed the Court's decision to the Second Circuit on numerous grounds. On January 12, 2007, the Second Circuit granted Bennett a Certificate of Appealability on two of the 19 issues*fn2 raised in the § 2255 petition:
(1) whether defense counsel was ineffective for allegedly overriding [Bennett's] desire to exercise his constitutional right to testify in his own defense. [citations omitted]; and
(2) whether [Bennett] was prejudiced by defense counsel's alleged failure to ensure the right to testify when the issue is analyzed in connection with counsel's failure to object to either the district court's omission of an intent to harm instruction, or the wording of the instruction on the "good faith" defense, particularly in light of evidence of jury confusion as to intent.. [citations omitted]
Bennett v. United States, 06-2443-pr, Order dated Jan. 12, 2007.
After briefing the appeal and argument, on December 3, 2008, the Second Circuit remanded the matter to this Court for the limited purpose of making findings of fact relevant to the two issues for which it granted a Certificate of Appealability:
[I]t would be useful to us in deciding this appeal for the district court to determine, with the assistance of evidence, in affidavit form or otherwise, from the petitioner's trial counsel, and such other evidence as may be available and relevant, the circumstances under which counsel undertook the actions and omissions that the petitioner alleges overrode his desire to testify. More specifically, we hesitate to determine whether counsel's assistance was ineffective without first affording him an opportunity to be heard and to present evidence, in the form of live testimony, affidavits or briefs. [citations and quotations omitted]
Bennett v. United States, 06-2443-pr, Order dated Dec. 3, 2008.
Pursuant to the procedures set forth in U.S. v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), the Court issued its mandate directing the District Court to conduct such proceedings and to determine the issues referred to above.
Accordingly, the Court held a hearing on June 8, 2009 and June 9, 2009, during which it heard testimony from Bennett; John Byrnes, from the Federal Defenders Office for the Southern District of New York; and two of Bennett's trial attorneys from the Federal Defenders, Mark Gombiner and Ian Yankwitt.*fn3 Following the hearing, both Bennett and the Government provided the Court with proposed findings of fact and conclusions of law, as well as memoranda of law supporting their proposed conclusions.
Bennett did not accept the explicit limitations contained in the Second Circuit's Orders of January 12, 2007 and December 3, 2008. He attempted to amend the 2255 petition. The Court denied the motion. Bennett v. U.S., 03 Civ. 1852 (PAC) (S.D.N.Y. June 4, 2009).
At the hearing, Bennett raised numerous issues outside the scope of the Jacobson proceeding. Indeed, Bennett raised issues which had not been included in the 19 claimed errors which served as the basis for the original 2255 petition. (See, for example, Bennett's arguments about (a) alleged failure to retain an exculpatory financial expert, Bennett's Proposed Findings of Fact, ¶¶ 86-118; and (b) alleged failure to secure exculpatory evidence of Bennett's good character, his family and community ties, Bennett's Proposed Findings of Fact, ¶¶ 119-124).
The Court made clear to Bennett that the Orders of the Second Circuit limited the Jacobson proceeding to two issues:
(1) whether defense counsel was ineffective for allegedly overriding Bennett's desire to exercise his constitutional right to testify in his own defense; and
(2) whether Bennett was prejudiced by defense counsel's alleged failure to ensure the right to testify when the issue was analyzed in connection with counsel's failure to object to either the district court's omission of an intent to harm instruction or the wording of the instruction on the good faith defense, particularly in light of the evidence of jury confusion as to intent. (Tr. 284:22-287:09; see also 189:18-23; and 204:01-13).
The first issue-whether defense counsel was ineffective for overriding Bennett's desire to exercise his constitutional right to testify-had its genesis in alleged Error 17 which raises a different issue that Bennett now asserts. Error 17 reads as follows:
Defense counsels performance improperly interfered with Movants constitutional right to testify at trial.
On the second day of trial, prior to any evidence being submitted against Movant, a discussion took place at a social luncheon between the district court, then U.S. Attorney for Southern District of New York, Mary Jo White, and head of Legal Aid Society, Leonard Joy concerning Movant's case. Based on the version of this discussion relayed to Movant by Mr. Joy, Movant became very upset and expressed his immediate concern to Mr. Joy and Mr. Gombiner, that Movant felt the district court was predisposed of his guilt. Neither Mr. Joy, Mr. Gombiner, nor anyone at Legal Aid Society, advised Movant, after expressing these concerns, of his legal right to immediately put this incident on the record to seek clarification from the district court; and, or ask for recusal. Movant's "fear" of the district court's predisposition of his guilt, became a primary reason Movant did not testify at the second trial. See Bennett affidavit. Ultimately, a recusal request was filed months after trial, for the balance of the proceedings, and the district court put on the record, January 28, 2000 hearing, pages 1-8, the contents of the above discussion. Movant has sworn that this was a materially different version from that told to him by Mr. Joy, and that if the district court's comments had been on the record immediately at trial, it would have clarified what took place, relieved Movant's concern, at the time, over the district court's predisposition. Movant's testimony was important to his defense, Movant has stated, if made aware of his rights by counsel, he would have immediately requested this incident been put on the record. Further, Mr. Gombiner was [sic] further interfered with Movants [sic] right to testify in erroneously advising Movants [sic] early in the trial, that Movant's first trial testimony could and would be entered into evidence and as a result spent no time preparing with Movant for his direct examinating, then informing Movant at the end of trial, he had been mistaken and all of Movant's First Trial Testimony could not be entered into the record.
Here, we have a "unique" set of circumstances. No speculation is needed as to how Movant would testify or its probable results. Movant had testified at his first trial. All second trial counts of conviction ended in jury deadlock and mis-trial.
The second issue-whether Bennett was prejudiced by defense counsel's alleged failure to ensure his right to testify when considered in conjunction with counsel's failure to object to the "intent to harm" and "good faith defense" jury instructions-is based on Errors 4 and 5 of the petition. Those claimed errors read:
4. Defense counsel's misunderstanding of the law in failing to request or object to lacking "intent to harm" instruction for the Bank Fraud counts was a fundamental misunderstanding of the law.
It is a long established law of the Second Circuit that "intent to harm" is an essential Element of the Bank Fraud scheme to defraud offense.
Lack of criminal intent, was Movants [sic] defense at trial, see opening pages 51, 52, 69 and closing page 2328-2329, and there was sufficient evidence in the record for a finding that there was no intent to harm the banks. The Banks received physical possession of original, over-collatorized, insured against loss leases that the Banks perfected their security interest ...