Appeal from an order of the United States District Court for the Southern District of New York, Paul A. Crotty, Judge, following an evidentiary hearing on a remand pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), denying petitioner's motion under 28 U.S.C. § 2255 to set aside certain convictions on the ground of ineffective assistance of counsel. See 2009 WL 3614613 (S.D.N.Y. Nov. 3, 2009).
The opinion of the court was delivered by: Kearse, Circuit Judge:
Submitted: March 30, 2011
Before: KEARSE, SACK, and KATZMANN, Circuit Judges.
This appeal returns to us from the United States District Court for the Southern District 7 of New York, Paul A. Crotty, Judge, following an evidentiary hearing and findings on a Jacobson 8 remand from this Court, see United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), with respect to 9 the district court's denial of petitioner Patrick Bennett's motion pursuant to 28 U.S.C. § 2255 to vacate 10 his convictions--following two trials--for securities fraud, bank fraud, and money laundering on the 11 ground that he received ineffective assistance of counsel. In support of that claim, Bennett alleged that 12 there were numerous defects in counsel's performance; he was granted a certificate of appealability to 13 seek review with respect to two such allegations, to wit, (1) that his attorneys overrode his desire to 14 testify at his second trial, and (2) that counsel interfered with his right to testify by failing to object to 15 jury instructions on intent and good faith ("mens rea" instructions). The district court, following its 16 evidentiary hearing on remand with respect to those two issues, found that counsel had advised Bennett 17 of his absolute right to testify and to decide for himself whether or not to testify, and that Bennett had 18 accepted, without complaint, their advice that he not testify; the court found Bennett's testimony to the 19 contrary not credible. The court also found that the unchallenged mens rea instructions caused Bennett 20 no prejudice. On this reinstated appeal, Bennett contends principally that the district court erred in its 21 credibility assessments and that this Court should grant him a new trial on the ground that his attorneys 22 (a) failed to inform him that he had the rights to testify and to decide whether or not to testify at his 23 second trial, (b) overrode his desire to testify at that trial, or (c) failed to protect his right to testify 1 because they failed to object to the mens rea instructions. Bennett also contends that the certificate of 2 appealability should be expanded to encompass other alleged errors of counsel. For the reasons that 3 follow, we reject his contentions and affirm the district court's denial of the § 2255 motion.
The proceedings leading to this appeal--beginning with a 106-count indictment and 6 including two trials (before different judges) resulting in Bennett's conviction on a total of 49 counts, 7 a § 2255 motion (and a supplement thereto) before a third judge, three appeals, and two remands--are 8 summarized below.
A. Bennett's Convictions and Direct Appeals
Bennett was the chief financial officer of a family business called Bennett Financial 11 Group ("BFG"). The crimes of which he was convicted are described generally in United States v. 12 Bennett, No. 00-1330 (2d Cir. May 31, 2001) ("Bennett I") (summary order), and United States v. 13 Bennett, 252 F.3d 559 (2d Cir. 2001) ("Bennett II"), cert. denied, 535 U.S. 932 (2002).
The indictment alleged offenses of four kinds. First, Bennett allegedly 15 ran a massive pyramid scheme through BFG, selling fictitious leases to 16 investors and pledging or selling legitimate leases twice over to different 17 parties. These pyramid scheme allegations supported mail fraud and securities 18 fraud counts. Second, Bennett allegedly shifted the cash generated by pyramid 19 sales into an unaudited shell company, supporting several money laundering 20 counts. Third, Bennett allegedly inflated BFG's profitability in financial 21 statements submitted to banks and investors who loaned money to BFG. These 22 allegations supported bank fraud and additional securities fraud counts. Fourth, 23 Bennett deceived SEC investigators, supporting public integrity counts such as 24 perjury and obstruction of justice.
There have been two trials. At each trial, the Government submitted evidence that would have permitted conviction on all the counts . . .
Bennett II, 252 F.3d at 560-61.
At his first trial, which ended in March 1999, Bennett testified that in connection with 5 an investigation into BFG by the Securities and Exchange Commission ("SEC") he, inter alia, gave the 6 SEC sworn testimony that was false, submitted documents that he had fabricated or backdated, and 7 instructed others to give false statements and fictitious documents. At that trial, Bennett was convicted 8 on one count of obstruction of justice, two counts of conspiracy to obstruct justice and commit perjury, 9 and four counts of perjury, see generally id. at 561; Bennett I at 2. The jury was not able to reach 10 verdicts on other counts, and a second trial on those counts was held in May-June 1999. At the second 11 trial--at which Bennett did not testify--the jury, although unable to reach verdicts on certain mail fraud 12 and securities fraud counts, found Bennett guilty on two counts of securities fraud, five counts of bank 13 fraud, five counts of engaging in monetary transactions with criminally derived property, and 30 counts 14 of money laundering, see generally Bennett II, 252 F.3d at 561; Bennett I at 2. Following the second 15 trial, Bennett was sentenced principally to 30 years' imprisonment and was ordered to forfeit 16 $109,088,889.11.
In Bennett I, we affirmed Bennett's convictions, albeit not his sentence. We rejected 18 all of Bennett's claims of trial error, including, as discussed in greater detail in Part II.B below, his 19 contention that he was entitled to a new trial on the ground that the court at his second trial gave the 20 jury erroneous or incomplete instructions with respect to mens rea on the fraud counts, see Bennett I 21 at 5-6.
Simultaneously with our summary order in Bennett I, we filed a published opinion 23 vacating Bennett's sentence and remanding to the district court for resentencing, ruling that the trial 24 judge had departed upward from the Guidelines-recommended imprisonment range on an 1 impermissible basis. See Bennett II, 252 F.3d at 564-65. On remand, the court resentenced Bennett, 2 imposing the same nonincarceratory penalties but imposing a prison term of 22 years rather than 30. 3 This Court affirmed the new sentence. See United States v. Bennett, No. 02-1379, 2003 U.S. App. 4 LEXIS 19394 (2d Cir. Sept. 18, 2003) ("Bennett III") (summary order), cert. denied, 540 U.S. 1134 5 (2004).
B. Bennett's § 2255 Motion Claiming Ineffective Assistance of Counsel
At his first trial, Bennett had been represented by David Levitt and Mark Gombiner, 8 attorneys from the Federal Defender Division of the Legal Aid Society ("Legal Aid"); at his second 9 trial, he was represented by Gombiner and Legal Aid attorney Ian Yankwitt. In 2003, represented by 10 new counsel, Bennett filed a motion pursuant to 28 U.S.C. § 2255 (which was supplemented in 2004 11 to add a claim that is not pertinent to this appeal), seeking to vacate his sentence and conviction on the 12 principal ground that he had received ineffective assistance of counsel at his second trial.
13 In support of his ineffective-assistance-of-counsel (or "IAC") claim, Bennett specified 14 19 instances in which he claimed his attorneys' performance had been deficient. Items labeled Errors 15 1-11 alleged "errors and omissions relating to the jury instructions"; Errors 4-5 asserted that counsel 16 failed to object to mens rea instructions that did not inform the jury that in order to find Bennett guilty 17 on the bank fraud counts it must find an intent to harm the banks, and failed to object to the wording 18 of an instruction on good faith as a defense. Items labeled Errors 12-19 alleged "errors and omissions 19 relating to trial conduct," including alleged failures to object to the indictment, to government evidence, 20 or to government conduct, and failures to recognize and present effective defenses. Number 17 21 asserted as follows:
Error 17. Defense counsels [sic] performance improperly interfered with Movants [sic] constitutional right to testify at trial.
On the second day of trial, prior to any evidence being submitted against 4 Movant, a discussion took place at a social luncheon between the district court, 5 then U.S. Attorney for Southern District of New York, Mary Jo White, and head 6 of Legal Aid Society, Leonard Joy concerning Movant's case. Based on the 7 version of this discussion relayed to Movant by Mr. Joy, Movant became very 8 upset and expressed his immediate concern to Mr. Joy and Mr. Gombiner, that 9 Movant felt the district court was predisposed of his guilt. Neither Mr. Joy, Mr. 10 Gombiner, nor anyone at Legal Aid Society, advised Movant, after expressing 11 these concerns, of his legal right to immediately put this incident on the record 12 to seek clarification from the district court; and, or ask for recusal. Movant's 13 "fear" of the district court's predisposition of his guilt, became a primary reason 14 Movant did not testify at the second trial. See Bennett affidavit. Ultimately, a 15 recusal request was filed months after trial, for the balance of the proceedings, 16 and the district court put on the record, January 28, 2000 hearing, pages 1-8, the 17 contents of the above discussion. Movant has sworn that this was a materially 18 different version from that told to him by Mr. Joy, and that if the district court's 19 comments had been on the record immediately at trial, it would have clarified 20 what took place, relieved Movant's concern, at the time, over the district courts 21 [sic] predisposition. Movant's testimony was important to his defense, Movant 22 has stated, if made aware of his rights by counsel, he would have immediately 23 requested this incident been [sic] put on the record. Further, Mr. Gombiner was 24 [sic] further interfered with Movants [sic] right to testify in erroneously 25 advising Movants [sic] early in the trial, that Movant's first trial testimony could 26 and would be entered into evidence and as a result spent no time preparing with 27 Movant for his direct examinating [sic], then informing Movant at the end of 28 trial, he had been mistaken and all of Movant's First Trial Testimony could not 29 be entered into the record.
Here, we have a "unique" set of circumstances. No speculation is 31 needed as to how Movant would testify or its probable results. Movant had 32 testified at his first trial. All second trial counts of conviction ended in jury 33 deadlock and mis-trial. 34 (Bennett § 2255 Motion, Attachment A at 22-23 (emphasis added).)
35 The "Bennett affidavit" referred to in "Error 17" stated, inter alia, that Legal Aid 36 attorney Joy told Bennett and Gombiner that at the luncheon in question, Judge John Martin, who was 37 presiding over Bennett's second trial, suggested to Joy and the United States Attorney that Bennett's 1 case should be resolved by plea of guilty and that a 10-year sentence would be appropriate (see 2 Affidavit of Patrick R. Bennett dated March 6, 2003 ("First Bennett Aff." or "First Affidavit"), 3 ¶¶ 61-64). Bennett stated that "[b]ased on those events in paragraphs 61-64, I believed at the time that 4 Judge Martin had a predisposition of my guilt. This haunted me throughout trial and greatly affected 5 my decision not to testify at the second trial." (Id. ¶ 65; see also id. ¶ 70 ("my fear . . . of the Judge's 6 pre-disposition of my guilt . . . weighed heavily in my decision not to testify at the second trial").)
7 In a detailed Memorandum Decision and Order dated March 22, 2006, Judge Crotty 8 denied Bennett's § 2255 motion. See Bennett v. United States, No. 03 Civ. 1852(PAC), 2006 WL 9 738162 (S.D.N.Y. Mar. 22, 2006) ("Bennett IV"). Rejecting Bennett's claim in Error 17 "that trial 10 counsel interfered with his right to testify by leading him to believe that the Court was predisposed to 11 believe he was guilty and by failing to devote time to prepare him to testify," the court noted that 12 "Bennett does not deny that he was aware of his right to testify" or claim that counsel advised him that 13 he could not testify. Bennett IV at *14. The court found that counsel had--competently--recommended 14 that he not testify:
15 In view of the fact that Bennett had been found guilty of perjury and obstruction 16 of justice, no competent lawyer would have recommended that he testify since 17 he would have had to tell the jury that he had been convicted of these crimes. 18 Moreover, even if counsel had been ineffective in this regard there is no reason 19 to conclude that, if Bennett had testified, "the result of the proceeding would 20 have been different." Strickland [v. Washington], 466 U.S. [668,] 698 [(1984)].
21 Bennett IV at *14. As to Bennett's contention with regard to the trial court's instructions on mens rea, 22 the district court noted that those instructions had been challenged on Bennett's direct appeal and that 23 this Court had found no basis for reversal. See id. at *11. Exploring all of the 19 alleged defects in 24 counsel's performance, see id. at *9-*14, as well as their cumulative effect, see id. at *14-*15, the court 25 concluded that, in light of the overwhelming evidence presented at trial, Bennett could not show that 1 the result of the trial would have been different but for the alleged errors, "either individually (as 2 explained above) or in the aggregate," id. at *14.
C. Bennett's Appeal from the Denial of His § 2255 Motion
The district court declined to grant Bennett a certificate of appealability (or "COA") to 5 appeal its denial of his § 2255 motion. See Bennett IV at *16. Bennett thereafter applied to this Court 6 for a COA with respect to 11 of the 19 IAC issues raised in his § 2255 motion. This Court, in an order 7 dated January 12, 2007, granted a certificate limited to the two issues that Bennett had described as 8 Errors 17 and 4-5, to wit,
9 (1) whether defense counsel was ineffective for allegedly overriding 10 [Bennett's] desire to exercise his constitutional right to testify in his own 11 defense . . . ; and
12 (2) whether [Bennett] was prejudiced by defense counsel's alleged 13 failure to ensure the right to testify when the issue is analyzed in connection 14 with counsel's failure to object to either the district court's omission of an intent 15 to harm instruction, or the wording of the instruction on the 'good faith' defense, 16 particularly in light of evidence of jury confusion as to intent .
Following briefing and argument of the two certificated issues, this Court ordered a 18 Jacobson remand to permit the district court to conduct an evidentiary hearing, including receiving 19 testimony from Bennett's trial counsel, and to make findings with respect to those issues. See Bennett 20 v. United States, No. 06-2443, 301 F. App'x 31 (2d Cir. Dec. 3, 2008) ("Bennett V"). We stated:
We think it would be useful to us in deciding this appeal for the district 22 court to determine, with the assistance of evidence, in affidavit form or 23 otherwise, from the petitioner's trial counsel, and such other evidence as may 24 be available and relevant, the circumstances under which counsel undertook the 25 actions and omissions that the petitioner alleges overrode his desire to testify. 26 More specifically, we hesitate to determine whether counsel's assistance was 27 ineffective without first affording him "an opportunity to be heard and to 28 present evidence, in the form of live testimony, affidavits, or briefs." Sparman 29 v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam).
Bennett V, 301 F. App'x at 32. Our order provided that, following those proceedings and findings, the 2 appeal could be restored to this Court.
D. The Evidentiary Hearing on Remand
Prior to and during the hearing on remand, Bennett attempted to expand the proceedings 5 beyond the two issues as to which this Court had granted the certificate of appealability--and indeed 6 beyond the 11 issues as to which he had requested us to grant a COA and even beyond the 19 IAC 7 issues raised in his § 2255 motion. See generally Bennett v. United States, No. 03 Civ. 1852(PAC), 8 97 cr. 639-1(PAC), 2009 WL 3614613, at *2 (S.D.N.Y. Nov. 3, 2009) ("Bennett VI"); id. at *1 n.2. 9 For example, shortly after entry of our order in Bennett V, Bennett filed a supplemental affidavit 10 alleging, for the first time, that 11 [a]t no time did my court appointed attorneys or anyone else, advise me, or 12 explain to me, that the ultimate decision to testify at trial was mine, and mine 13 alone to make.
(Affidavit of Patrick R. Bennett dated December 18, 2008 ("Second Bennett Aff." or "Second 15 Affidavit"), ¶ 3.) In May 2009, he moved to amend his § 2255 motion to assert, inter alia, this failure- 16 to-advise claim, stating as follows: 17 Bennett wishes to formally amend his Petition to include as a basis for his 18 ineffective trial counsel claim that it was improper for his attorneys . . . to fail 19 to inform him that it was his decision alone as to whether he could testify at trial 20 . Bennett also asks that he be permitted to prove that his trial attorneys' 21 failure to advise him as to his right to testify constituted an independent ground 22 unrelated to his ineffective assistance of counsel claim for which he is entitled 23 to habeas relief.
(Petitioner's Memorandum of Law in Support of His Motion Pursuant to Rule 15 of the Federal Rule 25 [sic] of Civil Procedure To Amend His Habeas Corpus Petition dated May 8, 2009, at 5.) Bennett 1 argued that the failure to advise him of his right to decide whether or not to testify both constituted an 2 independent ground for relief and ...