United States District Court, E.D. New York
[Copyrighted Material Omitted]
Andrew J, Frisch, Esq., Jeremy L. Gutman, Esq., New York, NY, for Petitioners.
Loretta A. Lynch, United States Attorney for the Eastern District of New York, by: Richard T. Lunger, Assistant United States Attorney, Central Islip, NY, for Respondent.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Nat Schlesinger (" Schlesinger" or " the petitioner" ) petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, seeking to vacate or set aside his conviction and sentence on the ground that he received ineffective assistance of counsel. For the reasons discussed below, Schlesinger's petition is denied.
On May 15, 2006, a jury convicted Nat Schlesinger on twenty-eight counts of mail fraud conspiracy, substantive mail and wire fraud, money laundering conspiracy, and substantive money laundering, arising out of, among other acts, a series of five fires dating back to 1987 that occurred at a clothing factory in the Williamsburg section of Brooklyn that was owned and maintained by Nat Schlesinger and his brother Jack Schlesinger. Schlesinger was also convicted of arson in connection with a December 31, 1998 fire at the factory (" the December 31, 1998 fire" ), in violation of 18 U.S.C. § 844(i), and for the use of fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1). Specifically, the jury convicted Schlesinger of deliberately causing the fire in the factory on the night of December 31, 1998 for the purpose of submitting a false and inflated insurance claim.
Presently before the Court is Schlesinger's fourth attempt to collaterally attack his arson conviction. The facts of this case and the testimony at the trial were extensively recounted in the Court's decision on Schlesinger's motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 (" Rule 29" ), United States v. Schlesinger ( " Schlesinger I" ), 372 F.Supp.2d 711 (E.D.N.Y.2005), and his third motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 (" Rule 33" ), United States v. Schlesinger ( " Schlesinger II" ), 438 F.Supp.2d 76 (E.D.N.Y.2006).
On October 5, 2009, Schlesinger brought the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Schlesinger alleges that his defense counsel at trial, Douglas Burns, Esq. and Randy Zelin, Esq. (" trial counsel" ) were constitutionally ineffective because they failed to: (1) investigate the arson; (2) challenge the testimony of Thomas J. Russo and Fire Marshal Bernard Santangelo (" the arson experts" or " the government's experts" ) at a Daubert hearing based on their use of the " negative corpus" methodology; (3) conduct meaningful cross-examination of the arson experts and/or call a defense expert to refute the arson allegations.
By way of background, " ‘ [n]egative corpus,’ short for negative corpus delicti, is
fire investigator shorthand for the determination that a fire was incendiary based on the lack of evidence of an accidental cause." 5 Faigman, Kaye, Saks & Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony § 39:65 (2011-12 ed.) (" Modern Scientific Evidence" ). The National Fire Protection Association (" NFPA" ) is an international nonprofit that now, among other things, promotes codes and standards " intended to minimize the possibility and effects of fire and other risks." National Fire Protection Association, Codes & Standards, http:// www. nfpa. org (last visit February 2, 2012). In 1992, the Technical Committee on Fire Investigations issued NFPA 921, a " Guide for Fire and Explosion Investigations" (" NFPA 921" ). Under the version of NFPA 921 applicable at the time of Schlesinger's trial, the guidelines set forth certain circumstances under which an investigation method known as " process of elimination" could be used to determine the cause of a fire. Specifically, the 2004 version of NFPA 921 provided:
18.2.1 Any determination of fire cause should be based on evidence rather than on the absence of evidence; however, when the origin of a fire is clearly defined, it is occasionally possible to make a credible determination regarding the cause of the fire, even when there is no physical evidence of the ignition source available. This finding may be accomplished through the credible elimination of all other potential ignition sources provided that the remaining ignition source is consistent with all known facts.
18.2.3 Elimination, which actually involves the developing, testing and rejection of alternate hypotheses, becomes more difficult as the degree of destruction in the compartment of origin increases, and it is not possible in many cases. Whenever an investigator proposes the elimination of a particular system or appliance as the ignition source on the basis of appearance or visual observation, the investigator should be able to explain how the appearance or condition of that system or appliance would be different from what is observed, if that system or appliance were the ignition source for the fire.
NFPA 921 (2004). The most recent version of NFPA 921 issued in 2011 differentiates its process of elimination from negative corpus methodology, defining negative corpus as " [t]he process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source or which there is no evidence of its existence" . NFPA 921, § 18.6.5 (2011). In addition, the 2011 edition explicitly rejects the use of negative corpus to classify the cause of a fire, stating:
This process is not consistent with the Scientific Method, is inappropriate, and should not be used because it generates untestable hypotheses, and may result in incorrect determinations of the ignition sources and first fuel ignited. Any hypotheses formulated for the casual factors (e.g., first fuel, ignition source, and ignition sequence), must be based on facts. Those facts are derived from evidence, observations, calculations, experiments, and the laws of science. Speculative information cannot be included in the analysis.
( Id. )
The focus of this petition is trial counsel's failure to investigate accidental causes of the fire and to effectively challenge Russo and Santangelo's reliance on a " negative corpus" methodology, rather than the guidelines set forth in NFPA 921, to reach the conclusion that the December 31, 1998
fire was incendiary. In support of his petition, Schlesinger attached his own affidavit, as well as affidavits from Abraham Weiser and Louis Pfeifer, identifying additional information trial counsel could have obtained about other possible sources of the fire. In addition, Schlesinger encloses affidavits from purported arson experts John J. Lentini, David Smith, and Dennis Smith.
Because it is directly relevant to the instant petition, the Court briefly recounts the trial testimony of Russo, the electrical engineer James Pryor, Santangelo and Weiser as stated in Schlesinger II, the only difference being that all references to the " the defendant" have been changed to " the petitioner" . In addition, the Court summarizes the affidavits submitted in support of the petition.
A. Trial Testimony
1. Testimony of Thomas J. Russo and James Pryor
The primary investigation with regard to the December 31, 1998 fire was conducted by Thomas J. Russo of Russo Consultants, a cause and origin expert hired by Atlantic Mutual Insurance Co. (" Atlantic Mutual" ). This company was retained to investigate and ascertain the origin and cause of the fire that occurred at the petitioner's factory on December 31, 1998. Russo had 24 years of prior experience both as a New York City Firefighter and Fire Marshal. On January 7, 1999, Russo first went to the scene of the fire at the factory to investigate, at which time he conducted a physical inspection of the premises. Russo determined that the origin of the fire was in the shipping area on the third floor.
Russo then investigated the cause of the fire. The on site inspection revealed that there were no appliances, candles, machinery, chemicals, smoking material, or heating units in the area of origin. He also determined that the entire building was secured when the fire department arrived in that all of the locks on the entrances to the factory were forced open by the fire department, and by reviewing the reports of the fire department indicating the use of force to gain entry to the building.
In order to assist his investigation, Russo hired James Pryor, an electrical engineer, to review the electrical system in the area of origin. The electrical engineer testified that he determined that there were no electrical faults which could have caused the fire. Pryor testified that he inspected the circuit breaker panel which provided service to the area of the fire, as well as the wiring and lighting in the area of the fire. Pryor ruled out electrical causes for this fire. Russo also conducted witness interviews of Abraham Weiser and Jack Schlesinger. Weiser told him that he personally did not smoke and he did not observe anyone smoking on the third floor on December 31, 1998. He stated there were no candles, incense, oily rags, or cleaning agents in the area. Weiser stated that he did not notice anything unusual prior to departing and securing the area. Jack Schlesinger told Russo that a delivery man may have been on the third floor around 11:00 a.m. on December 31, 1998. He also stated that he, his brother Nat Schlesinger, and one other person were the only people with keys to the entire building.
As a result of his investigation, Russo concluded that the fire was intentionally set. Russo arrived at this conclusion by excluding all electrical and accidental causes. He was able to exclude cigarette smoking as a possible source of ignition for the following reasons: (1) there was no evidence that personnel smoked on the third floor; (2) there was no evidence of
cigarettes on the third floor; and (3) the time between the last person exiting the building and the report of the fire was too long to support the inference that a kindling cigarette could have started the fire. Russo also excluded an act of God after research indicated that there were no earthquakes or thunderstorms. Russo further excluded the possibility that the roof mounted heater caused the fire upon examination of the unit, which showed no evidence of flame impingement or any other heat source coming from the unit. After excluding all accidental causes, Russo concluded that the December 31, 1998 fire was intentionally set.
2. Testimony of Fire Marshal Bernard Santangelo
New York City Fire Marshal Bernard Santangelo testified that he opened an investigation regarding the fire in March 1999, approximately three months after it occurred. The New York City Fire Marshal was initially requested to investigate the suspicious fire the night of the fire, but was unable to respond until the following Monday due to the New Year's holiday. When the Fire Marshal responded, a quick investigation was conducted and it was determined that the cause of the fire was " not ascertained." Due to lack of resources, the investigator at the time was unable to search under the partially collapsed mezzanine, and thus labeled the location of the fire as the third floor, origin unknown. Fire Marshal Santangelo re-opened the investigation several months later when he was contacted by Charles Radtke from Russo Consultants with regard to the suspicious fire.
After commencing the investigation, Fire Marshal Santangelo requested documents from the insurance company regarding its investigation and he attempted to interview both Jack Schlesinger and Nat Schlesinger. He testified that the petitioner repeatedly changed the date of the interview and delayed his appointment on several occasions. When the petitioner finally met with Fire Marshal Santangelo, the petitioner tape recorded the meeting without Fire Marshal Santangelo's knowledge. In the interview, Nat Schlesinger told Fire Marshal Santangelo that he was the " Manager of financial operations" and held no official position in the company or on the board of directors. The petitioner also refused to answer several questions and seemed irritated. Also, the petitioner responded to several questions by asking questions such as " who are you?" The petitioner told Fire Marshal Santangelo that he had a complete set of keys to the building and left the building around 6 or 7 p.m. the night of the fire. When asked about the claim history of the building, the petitioner stated that he could only recall one other fire which occurred in 1991 when the factory was operating as Private Brands. The petitioner also denied any involvement in Private Brands.
Fire Marshal Santangelo's investigation also considered the insurance claim submitted by Goodmark Industries. He determined that the petitioner submitted a fraudulent estimate of repair to the machinery. The estimate was drafted by a company he later found to be fictitious named G.I.I. Engineering. In his report, he also included the Russo report and the report from James Pryor the electrical expert. Fire Marshal Santangelo interviewed the firefighters that responded to the scene as well as witnesses who were at the petitioner's building, including Abraham Weiser, Victor Schlesinger, and Israel Schwimmer.
Fire Marshal Santangelo also testified that on August 3, 1999, another fire broke out at the building. This fire was also later determined to be intentionally set
because it had four distinct and separate points of origin. Based upon all the interviews, reports, photographs, and his investigation, Fire Marshal Santangelo concluded that the 1998 fire was an arson and that it was ignited by the intentional application of an open flame. Fire Marshal Santangelo also concluded that the only persons who had keys to the entire building on that night were Jack and Nat Schlesinger and that the buildings were secure upon arrival of the fire department.
3. Testimony of Abraham Weiser
Abraham Weiser was called as a witness by the government. He had worked for the petitioner for approximately twelve years until the clothing business closed in 2000. At the time of the fire, Abraham Weiser was the supervisor of the shipping department located on the third floor. He was responsible for packing the manufactured garments in boxes to ship by UPS or in bags to be delivered by their own truck. Weiser testified that no other employees worked with him in the shipping area in December 1998. One of his responsibilities was to secure the two entrances to the third-floor shipping area and turn off the lights by closing the circuit breaker each night before he left. In fact, Abraham Weiser testified that it was his practice to secure both doors and turn off the circuit breaker at the end of the day and that the only other people with keys to that floor were Jack and Nat Schlesinger. However, Abraham Weiser stated that he did not have keys to the exterior entrances of the factory.
Weiser testified that on December 31, 1998, he was the only person on the third floor during the day. He testified that he did not smoke; that smoking was not permitted in the building; and he did not observe anyone smoking on the third floor on the day of the fire. Weiser stated that he " wouldn't let them smoke" because he " can't take the smoke." (Tr. at 616.) Weiser further testified that there were no flammable liquids, thinners, dyes, linseed oils or the smell of smoke or any other unusual odor before he left on December 31, 1998. Weiser stated that occasionally a small cleaning gun was used on the third floor to remove stains from the finished garments. Weiser testified that on December 31, 1998, at about 4:00 p.m., he locked up the third floor and turned off the circuit breaker providing electricity to the third floor, locked both doors, and left the building.
B. Affidavits in Support of Schlesinger's Petition
1. Abraham Weiser
Abraham Weiser was one of the petitioner's employees, who, as previously stated, at the time of the fire was the supervisor of the shipping department located on the third floor. Weiser was initially called as a witness for the government, and was subsequently recalled as a witness for the defense. According to Weiser, he was never contacted by trial counsel before he testified for the government, and trial counsel only met with him " for a very short time in a small room outside of the courtroom" immediately before he testified again. (Wesier Aff., ¶ 11.) In his affidavit, Weiser includes information that the petitioner contends his trial counsel should have elicited from Weiser, namely that the third floor area where the fire occurred contained: (1) flammable material such as " a great deal of lint" ; " fabric, including cotton" ; and plastic bags; (2) an electric hot pot used for boiling water and an electric hot plate used for warming food; (3) an electric cleaning gun; and (4) a gas heater. (Weiser Aff., ¶¶ 5-7.)
2. Louis Pfeifer
Louis Pfeifer was a mechanic and maintenance supervisor at the factory for an unspecified time period prior to 1997. Pfeifer testified at the trial for the government, and was never contacted by trial counsel. In his affidavit, Pfeifer states that, had he been interviewed by trial counsel, he would have told them that he had observed a number of accidental fires at the factory that occurred when " cotton dust or lint settled in either the gas heaters, or the steam heaters ..." (Pfeifer Aff., ¶ 3.)
3. Nat Schlesinger
In his own affidavit, Schlesinger states that both before and during the trial, he provided trial counsel " with the names of individuals who were familiar with [the factory's history fires], and who could have testified about possible causes of the December 1998 fire and other fires at the building" . (Schlesinger Aff., ¶ 9.)
4. John J. Lentini
John J. Lentini is the president and principal investigator of Scientific Fire Analysis, LLC. Lentini's main critique of the government's experts is that their determination that the December 31, 1998 fire was incendiary " was based on a discredited fire investigation methodology known as negative corpus." (Lentini Aff., ¶ 6.) According to Lentini, the use of negative corpus in this situation was in violation of the methodology set forth in NFPA 921. Lentini explains that negative corpus is dissimilar to the process of elimination methodology in NFPA 921 because NFPA 921 sets forth guidelines for when a fire investigator can use the process of elimination analysis. He explicitly states that the use of process of elimination is only appropriate where the origin of the fire is clearly defined. According to Lentini, the December 31, 1998 fire was " not one of those fires" where process of elimination can be used to determine the cause of the fire because " [w]hen the fire goes to a second alarm, and portions of the building collapse, the origin is, by definition, not clearly defined." ( Id., ¶ 7.) As a result, Lentini contends that a conclusion that the December 31, 1998 fire was incendiary could not be reached under the process of elimination methodology.
In addition, Lentini criticizes other aspects of the methodology employed by the government's experts in determining that the fire was incendiary. Lentini stated that Russo's analysis was flawed because: (1) he did not know what debris had been removed prior to his investigation and therefore could not rule out all potential ignition sources; (2) Russo did not examine the kinds of chemicals used in the factory for the purpose of finishing goods; (3) Russo and Pryor did not examine the electric hot plate or electric cleaning gun referenced in the Weiser Affidavit; (4) Russo did not consider the possibility that the fire was caused by the ignition of ubiquitous lint interacting with a transient heat source; and (5) Russo and Santangelo did not consider the numerous lint fires in the factory that were mentioned in the Pfeifer Affidavit. Lentini also noted that there were additional indicators that the fire was not incendiary, including the facts that: the alarm was not disabled; the sprinklers were functioning; there were not multiple origins of ignition; and there was no evidence of accelerant. Lentini did not conclude, however, that the fire was not incendiary, or that an expert would have testified as such. Rather, Lentini concludes that:
The determination of an incendiary cause for this fire should have been much more strongly challenged than it was, and defense counsel should have
obtained the services of an expert to advise him about the weaknesses in the government's case. Had counsel done so, the defendant would have had a reasonable opportunity to disprove the corpus delicti.
( Id., ¶ 16)
5. Dennis Smith
Dennis W. Smith is the Senior Fire Expert with Kodiak Enterprises, Inc. His affidavit primarily focused on why Russo's investigation did not comply with NFPA 921. In particular, Smith states that NFPA 921 only allows the use of the process of elimination methodology when the origin of the fire is " clearly defined" . According to Smith, Russo's use of a process of elimination methodology was improper where he located the area of origin as opposed to the point of origin— a criticism that at least one court has found does not indicate a failure to comply with NFPA 921, see Royal Ins. Co. of America v. Joseph Daniel Const., Inc., 208 F.Supp.2d 423, 427, 427 n. 3 (S.D.N.Y.2002) (holding that the fact that the arson expert claimed to rely on the NFPA but reached a conclusion after determining the " area of origin" rather than the " point of origin" did not warrant precluding his testimony). Also, Smith stated that Russo's methodology for determining the area of origin was flawed. According to Smith " [t]he misidentification of the origin is an irreversible error that will always lead to any incendiary finding using the [negative corpus methodology] because the investigator can make the incendiary finding in the absence of an ignition source" . ( Id., ¶ 51.)
Specifically, Smith argues that Russo's reliance on the area with the greatest damage to determine the area of origin was unreliable because " [a]ssuming the area of greatest damage is the origin for a fire is unreliable in fire conditions that involve fires of long duration" and is a subjective assessment that Russo should have tested. ( Id., ¶¶ 43-46.) Because the area of origin was unknown, Smith states that " every potential ignition source in the compartment or fire area should have been given consideration and examined as a potential ignition source" . ( Id., ¶ 50.) As a result, Smith asserts that because " none of the elements of a fire cause have been identified ... the fire cause can only be classified as ‘ undetermined.’ " ( Id., ¶ 53.) As Smith explains " [t]he undetermined classification is appropriate whenever the cause cannot be proven to an acceptable level of certainty" . ( Id. ) Based on his analysis, Smith concludes:
The determination of an incendiary fire based upon the unsupported and speculative beliefs proposed by the governments' investigators, who had relied [on] the Negative Corpus Methodology, could have been more vigorously challenged by an opposing expert. Had an opposing expert been retained with knowledge of fire investigative methodology and the acceptable standards for fire investigation, that expert would have been able to demonstrate and explain the unsound nature and fallacies of [negative corpus methodology] to the jury.
( Id., ¶ 65.)
6. David Smith
David M. Smith is the president and principal investigator of Associated Fire Consultants, Inc. Smith's affidavit primarily criticizes the methodology employed by Russo and Pryor in concluding that the December 31, 1998 fire was incendiary. First, Smith addresses how the electric hot plate, an electric hot pot, and a electric cleaning gun are each " known to be a competent ignition source for light combustibles (paper), clothing, " plastic" and lint" and concludes that these items " [could not] be eliminated as ‘ starting’ the
fire without examination" . (David Smith Aff., ¶ 6.) Thus, because neither Russo nor Pryor examined these items, Smith concludes that their methodology was flawed. Smith also questioned Russo's conclusion that the garments and plastics were ignitable by open flame.
In addition, Smith criticized Russo's elimination of the gas fire suspended heaters as an ignition source on the grounds that visual observation is an inadequate method of investigation and because " the ignition of ubiquitous lint" would not necessarily have resulted in any flame impingement on the heater. ( Id. ) Based on his analysis, Smith determined that " [e]ach of the building blocks used by Mr. Russo in determining the cause of this fire were inadequate and fall fellow the standard of care of professional fire investigation in 1999" . ( Id. ) With respect to Pryor's investigation, Smith stated that his results were flawed because he failed to examine the electrical portion of the suspended heaters. Ultimately, Smith ...