The opinion of the court was delivered by: Trager, J.
After pleading guilty pursuant to a plea agreement and later entering into an 84-month sentencing stipulation, defendant Mayer Vaknin ("Vaknin") filed the instant motion under 28 U.S.C. § 2255 seeking to vacate his sentence and conviction. Vaknin raises Brady and ineffective assistance of counsel claims. For the reasons explained below, his motion is denied.
Defendant Mayer Vaknin operated fourteen cell phones stores in downtown Brooklyn under the names "Cellular Island" and "Cellular Tropics." Aff. of Mayer Vaknin in Supp. Motion to Vacate Sentence and Resentence Def. ("First Vaknin Aff.") ¶ 14; Supp. Decl. Mayer Vaknin in Supp. Habeas Corpus Pet. ("Supp. Vaknin Decl.") ¶¶ 4-5. Although Vaknin's stores represented different wireless carriers, most of the stores' revenue was generated with T-Mobile USA, Inc. ("T-Mobile"). Supp. Vaknin Decl. ¶ 4. Cellular Island was authorized to: (1) enter into new customer service agreements on behalf of T-Mobile; (2) renew existing T-Mobile customer service agreements; and (3) modify existing T-Mobile customer service agreements by adding additional lines of service. Presentence Investigation Report ("PSR") ¶ 9. This enabled Cellular Island to earn commissions and other incentive payments from T-Mobile. Sept. 26, 2006 Letter from T-Mobile to Probation Department ("T-Mobile Letter") at 2. Cellular Island, which maintained its own inventory of T-Mobile phones, would also generate profits selling phones.
Id. Vaknin dealt with T-Mobile through a "Master Dealer," American Telecommunications, Inc. ("Ameritel"), which was owned by Nathan Yonovitch. Supp. Vaknin Decl. ¶ 4.
On February 9, 2006, Vaknin and Cellular Island employees Patrick Rodriguez and Kinda George (collectively "defendants") were indicted. Vaknin and George were charged with conspiracy to commit wire fraud (Count 1), wire fraud (Counts 2-11) and aggravated identify theft (Counts 13-22) in connection with a scheme to obtain commissions from T-Mobile by fraudulently renewing contracts of T-Mobile customers. In addition, Vaknin and Rodriguez were charged with conspiracy to commit mail fraud (Count 12), aggravated identify theft (Count 23) and access device fraud (Count 24) in connection with a scheme to sell customers' names and social security numbers to other conspirators who then used the information to fraudulently order and receive mobile telephone handsets through the mail. The indictment also included two criminal forfeiture counts that sought the proceeds of the schemes.
On May 9, 2006, a superseding indictment was issued, which explained the alleged schemes in greater depth and added an obstruction of justice charge against Vaknin (Count 25). According to the superseding indictment, Vaknin engaged in three different schemes. In the first two schemes alleged (charged, collectively, in Counts 1-11 and 13-22), Vaknin obtained the names and social security numbers of T-Mobile customers from customer service agreements and credit reports as well as from an electronically stored list of T-Mobile customers that was purchased from another T-Mobile sub-dealer. Vaknin and George would then, without the customers' knowledge, use that information to record new service agreements, renew existing service agreements and add additional lines of service to existing customers' agreements. These actions were undertaken so that Cellular Island could receive from T-Mobile both Special Incentive Funds ("SPIF") payments ("the SPIF Fraud scheme") and additional commissions for contract renewals ("the Commission Payment Fraud scheme").
In the third scheme set forth in the superseding indictment ("the Fraudulent Handset scheme"), Vaknin, Rodriguez, George and others allegedly defrauded T-Mobile and its customers by fraudulently obtaining cellular telephone handsets (Counts 12, 23 and 24, collectively "the Fraudulent Handset scheme counts"). Specifically, the defendants and others provided and sold the names and social security numbers of "T-Mobile customers to [unindicted co-conspirators] for the purpose of enabling those co-conspirators fraudulently to place orders with T-Mobile for cellular telephone handsets." Superseding Indictment ¶ 18. Using that information, the unindicted co-conspirators would order phones from T-Mobile without the knowledge and consent of the customers. After the unindicted co-conspirators received delivery of the fraudulently obtained phones, they sold the phones to defendants and others, who resold some of the phones at Vaknin's stores.
(2) Factual Background of Criminal Activities
a. The SPIF Fraud and Commission Payment Fraud Schemes
Vaknin concedes that he is guilty of conspiring to commit the SPIF Fraud and Commission Payment Fraud schemes charged in Count 1. In these two schemes, Vaknin used the names and Social Security numbers of T-Mobile customers, without their knowledge, to renew the customers' service agreements and to add additional lines of service to the customers' accounts so that he would qualify for various incentive payments and commissions from T-Mobile. PSR ¶ 11. Although Vaknin concedes that the loss amount for those two schemes is $101,968, Mem. in Supp. 2255 Pet., Post Hearing Submission, at 32, the government maintains that much higher loss amounts are attributable to those schemes.
b. The Fraudulent Handset Scheme
Although Vaknin disputes certain facts concerning the Fraudulent Handset scheme, many of the facts surrounding this scheme and Vaknin's role in it are undisputed.*fn1 T-Mobile customers can receive new handsets when they add additional lines of services to an existing account or when they choose to upgrade the handset that is being used for their existing line of service. T-Mobile Letter at 2. When a customer orders a new handset, the handset is shipped directly to the customer's billing address and the cost of the handset is added to the customer's monthly bill. Id.
In conducting the Fraudulent Handset scheme, a group of street dealers referred to as the "hushos" (or "hushers") would obtain T-Mobile customer information from various sources.*fn2 The hushos would then contact T-Mobile and order phones, which would be charged to the accounts of the unsuspecting customers. The phones would be shipped by overnight delivery companies to addresses where the hushos, who were working in concert with shipping company employees, would intercept the phones. The hushos would then sell the phones.
In 2004, Vaknin and his employees began dealing with the "hushos," who came to Vaknin's stores to sell phones. Notes from proffer of Pimentel dated Mar. 2, 2006 ("Mar. 2 Pimentel notes").*fn3 Although there were a number of different hushos, these individuals were "all together," with one individual appearing to act as leader of the group. Notes from proffer of Rodriguez dated May 24, 2006 ("May 24 Rodriguez notes"); 3500-PR-4.
Although Vaknin has admitted selling T-Mobile customer information to the hushos and purchasing phones from the hushos, Vaknin claims that he was not aware that the hushos were using the Fraudulent Handset scheme described above to fraudulently obtain those phones from T-Mobile using customer information.
ii. Sale of Information to the Hushos
At some point, most likely in 2004, Vaknin purchased one or more CDs "containing T-Mobile customer information from [another T-Mobile sub-dealer that] had gone out of business." Mayer Vaknin Suppl. Decl. Filed Oct. 9, 2009 ("Vaknin. 2009 Supp. Decl.") ¶ 13(a). As the CD came from another sub-dealer, it did not contain the identity information of any Cellular Island customers. Supp. Vaknin Decl. ¶ 48. Vaknin used some of the information on the CD, along with information from other sources, to conduct the SPIF Fraud and Commission Payment Fraud schemes. PSR ¶ 11. In addition, Vaknin and various employees acting at his direction (including Colon and Hampton) were involved in selling some of the customer information on the CD to the hushos. See 3500-DJ-9 (stating that Colon was involved in selling information to hushos); 3500-RC-5 (admission by Colon that he would print out information for Hampton and Vaknin); Rabkin Aff. ¶ 17 (stating that Vaknin admitted that he directed his employees to sell information to the street dealers).*fn4
According to Vaknin, when he sold customer information from the CD to the hushos, he received only cash as compensation. Vaknin 2009 Supp. Decl. ¶¶ 5-6, 8. These sales appear to have occurred sometime between the summer of 2004 and spring of 2005.*fn5
Vaknin admitted selling information from the CD to a husho named "Shah" and to a number of other hushos. 3500-MC-9; 3500-MC-12; 3500-MC-14; see also 3500-JH-5 (identifying certain individuals that Vaknin sold information to as hushos); 3500-PR-4 (same); Mar. 2 Pimentel notes (same). Shah approached Vaknin and repeatedly asked Vaknin to sell him customer information until Vaknin complied. 3500-MC-9; Notes from proffer of Vaknin dated Apr. 25, 2006 ("Apr. 25 Vaknin notes").
Vaknin has made conflicting statements regarding the number of customer identities that he sold to the hushos. In one declaration submitted in the instant proceeding, Vaknin stated that "on twenty occasions or so" he sold customer information. Supp. Vaknin Decl. ¶ 48 (emphasis added). That declaration appears to be consistent with the proffer notes indicating that Vaknin admitted that he sold customer information to the hushos "about 20-30 times." 3500-MC-12; see also 3500-MC-11 (handwritten proffer notes stating "sell info on street 20-30"). Although neither the declaration nor the proffer notes explicitly address how many customer identities Vaknin sold, it can be assumed that he sold multiple identities on each "occasion." In other declarations from the instant proceeding, Vaknin asserts that "during about one week," he sold, in total, less than 20 customer identities. Vaknin Oct. 2009 Supp. Decl. ¶ 5 ("(20 or less) customer ids"); First Vaknin Aff. ¶ 98 ("five to ten items"); Vaknin Post-Hearing Decl. ¶¶ 9-11 ("5-10 sales of information"); ¶ 15 ("5-10 non-Cellular Island information"). It should be noted that, at the plea hearing, Vaknin admitted selling a "minimal amount" of social security numbers, but did not specify the amount. Plea Hr'g Tr. at 39.
After Vaknin sold information to the hushos, some hushos came to the office and complained to Colon that the information they had gotten was no good. 3500-DJ-9; 3500-DJ-10. Colon then contacted Vaknin and gave new customer information to the hushos as directed by Vaknin. 3500-DJ-9; 3500-DJ-10; 3500-RC-5.
B. Information Sold by George and Rodriguez
In 2005, George, who had access to Cellular Island's computer system, sold the identity information of Cellular Island customers to Rodriguez, Yousef Mourden and, to a lesser extent, an individual referred to as "Simon." 3500-KG-5; 3500-KG-6; PSR ¶ 43. Rodriguez and Mourden, who could not access the computer system on their own, "would then take the customer information and sell it to the 'hushers' who would then proceed with the handset scheme." Notes from proffer of St. Rose dated Dec. 21, 2005 ("Dec. 21 St. Rose notes"). As explained below, all of these sales were presumably made without Vaknin's knowledge.
George appears to have sold at least 822 Cellular Island customer identities to Rodriguez and Mourden. PSR ¶ 16; T-Mobile Letter at 3. T-Mobile was able to determine that information from those 822 Cellular Island accounts were used to fraudulently order 1,940 phones ("George & Rodriguez Phones"). Id.
Vaknin insists that he was completely unaware of the sale of Cellular Island customer information by George, Rodriguez and Mourden. Supp. Vaknin Decl. ¶ 44; Vaknin 2009 Supp. Decl. ¶ 13(c). The PSR corroborates Vaknin's claim, stating that "George sold [this] information . . . independently of Mayer Vaknin, as he was unaware of this conduct by George." PSR ¶ 43. The PSR appears to have been relying on St. Rose's proffer statement that "unknown to [Vaknin]," Rodriguez and Mourden were "paying Kinda George . . . to access the I-Cam system and get customer information."*fn6 Dec. 21 St. Rose notes.
C. Other Sources of T-Mobile Information
In addition to obtaining information from Vaknin, Rodriguez and Mourden, the hushos apparently also received T-Mobile customer information from other sources. See May 24 Rodriguez notes (indicating that one husho stated that he would also obtain information from other stores, including from his "girl," who worked in a T-Mobile store).
iii. Purchase of Stolen Phones from the Hushos
In his proffer sessions, Vaknin admitted that he "was involved in buying and selling stolen T-Mobile phones to and from street dealers."*fn7 Rabkin Aff. ¶ 17. Vaknin repeatedly instructed employees, including Rodriguez, to purchase stolen phones from the hushos. 3500-DJ-9; 3500-DJ-10; May 24 Rodriguez notes; Mar. 2. Pimentel notes; 3500-RC-5; 3500-MC-9.
The proffer notes show that Vaknin and his employees would purchase large quantities of stolen phones from the hushos. See 3500-RC-5 (indicating that, in 2005, Colon witnessed Vaknin purchase approximately 200-300 phones and Pimentel purchase stolen phones "20 times"); Notes from Feb. 2, 2006 proffer session of Pimentel ("Feb. 2 Pimentel notes") (indicating Pimentel saw Vaknin buy 200 stolen phones and Rodriguez buy 50 phones); Mar. 2 Pimentel notes; see also 3500-PR-4 (indicating that the "main husho" would come with 50-60 phones at a time). Hampton witnessed stolen phones being purchased over a hundred times. 3500-JH-6. Similarly, according to Pimentel, Vaknin would buy phones two or three times a week from the hushos.
Mar. 2 Pimentel notes. Moreover, Vaknin himself admitted that he would send hushos to one particular store once or twice a month and would direct an employee there to purchase phones from them. 3500-MC-9. It should be noted that neither Vaknin nor the cooperating employees specified what percentage of these "stolen" phones were T-Mobile phones.*fn8
Of the 1,940 George & Rodriguez Phones, 127 were activated at one of Vaknin's Cellular Island stores and, thus, presumably were sold to individual customers. PSR ¶ 16; T-Mobile Letter at 4. The fact that Vaknin consistently directed employees to purchase phones from the hushos is circumstantial evidence that these 127 phones were purchased either by Vaknin personally or at his direction. Moreover, Vaknin almost certainly purchased more than 127 of the George & Rodriguez Phones, as evidenced by the fact that Vaknin would sell phones purchased from the hushos to both individual customers and to other stores, 3500-JSR-3; 3500-DJ-9; 3500-MC-12; 3500-DJ-3; 3500-PR-4, and the 127 phone total does not include any George & Rodriguez phones that Vaknin purchased and then sold to other stores.
Although T-Mobile's evidence linked specific Cellular Island customer accounts to specific fraudulently ordered phones, T-Mobile did not provide evidence showing that any specific phones were fraudulently ordered with the T-Mobile information that Vaknin sold from the CD.*fn9 Nonetheless, there is other evidence indicating that: (1) the hushos used the information sold by Vaknin to obtain phones through the Fraudulent Handset scheme; and (2) Vaknin purchased at least some of the phones obtained with that information.
[Vaknin] would sell "Hushers" or street guys customer information for approximately $50 per, so they could use that information to call T-Mobile and change billing address. After changing billing address, "Hushers" would order handsets to the new address. They would intercept these handsets and sell them back to [Vaknin]. [Vaknin] would either sell them in his Cellular Island store or 'wholesale' them to other stores.
3500-JSR-3; see also 3500-RC-5 (indicating that Colon saw Vaknin sell info to the hushos and that the hushos would then bring back phones). Moreover, Vaknin has never disputed that he was buying stolen phones from the hushos at the same time that he was selling information to them.
Further evidence of Vaknin's stolen phone purchases comes from an inventory control system that Vaknin's stores used to track stolen phones. See 3500-RC-5 (indicating that Vaknin and Pimentel instructed Colon to track incoming "stolen" phones); PSR ¶ 17 ("system . . . was used to track the fraudulently obtained [phones]"); 3500-JH-3 (stating that system indicated which phones were "stole[n]"); 3500-JH-5 (discussing inventory of "stolen" phones). The inventory system indicated how much money was spent to purchase the stolen phones and how much money was earned after they were re-sold. PSR ¶¶ 17, 34. Based on information from the inventory control system, the PSR determined that Cellular Island sold $658,192 worth of "fraudulently obtained" T-Mobile phones and equipment.*fn10 PSR ¶ 17. The inventory control system also indicated that Vaknin's stores sold $418,268 worth of "fraudulently obtained" phones ...