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United States of America v. Kissone Frederick

June 5, 2012

UNITED STATES OF AMERICA
v.
KISSONE FREDERICK, DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

On December 10, 2009, defendant Kissone Frederick ("defendant") was convicted by a jury of all counts of a six-count Indictment charging defendant and others for crimes in connection with two Hobbs Act armed robberies and related firearms charges. Presently before the court is defendant's Federal Rule of Criminal Procedure 33 motion for a new trial asserting that he was denied the effective assistance of counsel during pretrial plea negotiations in violation of the Sixth Amendment.

Having considered the appropriate burdens of production and proof, the testimony of witnesses at a hearing conducted on April 12, 2012, the hearing exhibits, the parties' written submissions, and having resolved issues of credibility, the court denies defendant's motion in its entirety for the reasons discussed below.

I.BACKGROUND*fn1

A.Arrest and State Prosecution

On March 14, 2006, defendant was arrested by New York City Police Department officers in connection with the offenses for which he was subsequently convicted in federal court, which are described below. (See Presentence Investigation Report ("PSR"), Exhibit C to Petition for Habeas Corpus, No. 12-CV-1171, Frederick v. United States (E.D.N.Y. Mar. 9, 2012), ECF No. 2 ¶ 17.) He was separately and previously prosecuted in Brooklyn Supreme Court and pleaded guilty to Attempted Robbery in the Second Degree, for which he was sentenced to five years imprisonment in October 2007. (Id. ¶¶ 17, 75-76.) On May 7, 2009, defendant was arrested in connection with the instant federal case. (Id. ¶ 17.)

B.The Federal Charges

On April 24, 2009, a grand jury returned a six-count Indictment charging defendant and others with a conspiracy to commit Hobbs Act armed robbery, attempted Hobbs Act armed robbery, Hobbs Act armed robbery, and three related weapons charges. (See ECF No. 59, Redacted Indictment ("Indictment").)*fn2

Specifically, Count One of the Indictment charged defendant with a Hobbs Act Robbery Conspiracy in or about May 2006 in violation of 18 U.S.C. § 1951(a). Count Two charged defendant with an attempted Hobbs Act Robbery on May 14, 2006 of an employee of a cellular phone and check-cashing store located at 787 Rogers Avenue in Brooklyn, New York known as Satellite Communications (the "Satellite Robbery") in violation of 18 U.S.C. §§ 2, 1951(a). Count Three charged defendant with unlawful use of a firearm in connection with the attempted Satellite Robbery in Count Two in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(i). Count Four charged defendant with a Hobbs Act Robbery on May 14, 2006 of two employees of a gift and greeting card store located at 7005 Avenue U in Brooklyn, New York known as Card Corner (the "Card Robbery") in violation of 18 U.S.C. §§ 2, 1951(a). Count Five charged defendant with unlawful use of a firearm in connection with the Card Robbery in Count Four in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii). Finally, Count Six charged defendant with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

At defendant's arraignment on May 12, 2009, Ephraim Savitt, Esq. ("Mr. Savitt") was appointed to represent defendant pursuant to the Criminal Justice Act ("CJA"). Mr. Savitt represented defendant during both pretrial plea negotiations and trial.

C.Trial

A four-day jury trial was held on December 7-10, 2009, during which the government offered extensive testimony by a cooperating witness and co-conspirator who was the getaway driver for the robberies, video surveillance footage and victim witness testimony providing direct evidence that a firearm was used or possessed in connection with the attempted Satellite Robbery, and defendant's sworn statements made in state court during his guilty plea to Second Degree Attempted Robbery for the Card Robbery. See United States v. Frederick, No. 09-CR-258(KAM), 2010 U.S. Dist. LEXIS 58560, at *3-8 (E.D.N.Y. June 14, 2010); United States v. Frederick, 702 F. Supp. 2d 32, 38 (E.D.N.Y. 2009). On December 10, 2009, the jury returned a verdict convicting the defendant on all six counts of the Indictment.

D. Post-Trial Motions

In January 2010, Mr. Savitt filed a timely motion for judgment of acquittal and an alternative motion for a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33, respectively, challenging defendant's conviction on the § 924(c) firearms charge in connection with the attempted Satellite Robbery (Count Three). The court denied the motions on June 14, 2010. See generally Frederick, 2010 U.S. Dist. LEXIS 58560; (ECF No. 69, Order dated June 14, 2010).

As discussed in detail further below, the defendant requested new counsel in a pro se letter dated July 4, 2010, which the court granted. (See ECF No. 70, Letter from Defendant Requesting New Counsel.)

E. The Instant Rule 33 Motion

On March 9, 2012, defendant filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 in a separate civil proceeding seeking to vacate and set aside the jury verdict based upon the ineffective assistance of Mr. Savitt during pretrial plea negotiations. (See Petition for Habeas Corpus, No. 12-CV-1171, Frederick v. United States (E.D.N.Y. Mar. 9, 2012), ECF. No. 1.) As an exhibit in support of his habeas corpus petition, defendant filed an affidavit. (Exhibit A to Petition for Habeas Corpus ("Def. Aff.").)

On March 23, 2012, because defendant had not yet been sentenced, the court converted defendant's habeas corpus petition into a Federal Rule of Criminal Procedure 33 motion for a new trial (the "Rule 33 motion"). (See Order dated Mar. 23, 2012 (citing United States v. Brown, 623 F.3d 104, 113 n.5 (2d Cir. 2010)).) In addition, the court ordered (1) defendant to show cause why his failure to file the Rule 33 motion within 14 days after the jury verdict on December 10, 2009 amounted to "excusable neglect," see Fed. R. Crim. P. 33(b)(2), 45(b)(1)(B), which was filed by Ms. London on March 29, 2012 (see ECF No. 89, Defendant's Response to Order to Show Cause); and (2) Mr. Savitt to file an affidavit in response to defendant's allegations, which was filed by Mr. Savitt on March 29, 2012 (see ECF No. 90, Attorney Affirmation in Response to Defendant's Allegations in His Habeas Petition ("Savitt Aff.")). On April 9, 2012, the government filed a response to defendant's response to the order to show cause. (See ECF No. 96, Government's Letter Regarding "Excusable Delay.")

On April 12, 2012, the court held an evidentiary hearing on defendant's Rule 33 motion, at which Mr. Savitt was the sole witness. (See ECF No. 111, Transcript of Apr. 12, 2012 Hearing on Ineffective Assistance ("Tr.").) The parties subsequently filed post-hearing briefs (see ECF No. 107, Government's Letter Opposing Pre-Sentencing Ineffective Assistance Claim ("Gov't Mem."); ECF No. 108, Supplemental Memorandum of Law in Support of Defendant's Rule 33 Motion ("Def. Mem.")) and replies (see ECF No. 109, Reply to Government's Brief Opposing Defendant's Rule 33 Motion ("Def. Reply"); ECF No. 110, Government's Letter in Reply to Defendant's Post-Hearing Submission ("Gov't Reply")).

II.STATEMENT OF RELEVANT FACTS

The following facts are undisputed unless otherwise indicated.

A.The Applicable Statutory Mandatory Minimum Sentences

Based on the two firearms charges in Counts Three and Five alone, defendant is subject to a statutory mandatory minimum sentence of 32 years imprisonment. Specifically, there is a seven-year mandatory minimum term of imprisonment for brandishing a firearm in connection with the attempted Satellite Robbery for Count Three, see 18 U.S.C. § 924(c)(1)(A)(ii), and a 25-year mandatory minimum term of imprisonment for a second firearms conviction for Count Five, see 18 U.S.C. § 924(c)(1)(C). These seven-year and 25-year mandatory terms of imprisonment must run consecutively to each other and any other term of imprisonment imposed on defendant. See id. § 924 (c)(1)(D)(ii).

B.The Government's Plea Offer

In or around October 2009, approximately two months prior to trial, the government extended a plea offer to defendant and provided Mr. Savitt with a plea agreement (the "Plea Agreement"). (See Tr. 15-19; Def. Hr'g Ex. C ("Plea Agr.").)*fn3 Although the Plea Agreement required the defendant to plead guilty by October 12, 2009 (Plea Agr. ¶ 2), Mr. Savitt understood that such date was a "soft date" and that it may be extended (Tr. at 21).

Pursuant to the terms of the Plea Agreement, defendant was required to plead guilty to (1) Count One for the Hobbs Act Robbery Conspiracy, which would subject defendant to a statutory maximum term of imprisonment of 20 years, and (2) Count Five for brandishing a firearm in connection with the Card Robbery, which would subject defendant to a statutory minimum term of imprisonment of seven years to run consecutive to any term of imprisonment imposed on Count One. (Plea Agr. ¶ 1.) The Plea Agreement also contained an estimated sentencing range under the Advisory Sentencing Guidelines of 161-180 months, based on the assumption that defendant was in Criminal History Category V. (Id. ¶ 2.) This estimated sentencing range included the 84-month mandatory minimum term of imprisonment for Count Five. (Id.)

On October 12, 2009, Mr. Savitt visited defendant at the Metropolitan Detention Center ("MDC") to discuss the Plea Agreement and showed defendant a copy of the Plea Agreement. (Tr. 19; Def. Aff. ¶ 3; Def. Hr'g Ex. A at 3.) Mr. Savitt also later provided defendant with a copy of the Plea Agreement. (Def. Aff. ¶ 3.) During his visit with the defendant, Mr. Savitt explained all of the provisions of the Plea Agreement, specifically that defendant would have to plead guilty to Counts One and Five and that he was facing six-and-a-half to eight years imprisonment on Count One with an additional seven consecutive years on Count Five, for a total Advisory Sentencing Guidelines range of 13.5 to 15 years imprisonment. (Id. ¶ 4.) Mr. Savitt further advised defendant that the court had the discretion to sentence him to life in prison under the terms of the Plea Agreement, but that he would likely receive a sentence within the Advisory Sentencing Guidelines range. (Tr. 67-68, 92.)

C.Defendant's Affidavit Regarding Trial Counsel's Advice

Defendant did not testify at the evidentiary hearing, but he submitted a sworn affidavit in which he asserts that he and Mr. Savitt spent approximately ten minutes discussing the Plea Agreement on October 12, 2009, and that he agreed to sign the Plea Agreement on that day. (Def. Aff. ¶¶ 4-5.) When the defendant, however, asked Mr. Savitt if the prison time he had already served in state custody on the same robbery would be credited to his federal sentence, Mr. Savitt responded that such credit was not part of the Plea Agreement and the defendant thus "needed more time to think about the offer." (Id. ¶ 5.) According to the defendant, at that October 12, 2009 meeting, Mr. Savitt did not express an opinion as to whether defendant should accept the plea offer. (Id. ¶ 6.)

Approximately two weeks after the October 12, 2009 meeting, on or about October 26, 2009, Mr. Savitt once again visited the defendant and advised him that the plea offer was still on the table. (Id. ¶ 7.) Mr. Savitt then advised defendant that if was convicted at trial, defendant was facing six-and-a-half to eight years on the Hobbs Act Robbery Conspiracy in Count One and "12 years (7 years 5 years)" on the two § 924(c) firearms charges in Counts Three and Five, which would run consecutive to any sentence imposed on Count One. (Id. ¶ 7.) Defendant therefore asserts that he believed that if he went to trial and was convicted on all six counts of the Indictment, he was facing 18.5 to 20 years imprisonment. (Id. ¶ 8.)

Additionally, defendant further believed that if he proceeded to trial and was convicted on all counts, the court would give him credit for the time he spent in state custody for the same robberies because "there would be no plea agreement to preclude it." (Id. ¶ 9.) Once defendant factored in this credit of approximately three years for his state custody (see Def. Mem. at 12), defendant believed that he would likely be facing about the same amount of prison time whether he pleaded guilty pursuant to the terms of the Plea Agreement or proceeded to trial and was convicted of all counts (Def. Aff. ¶ 9). Defendant thus rejected the plea offer. (Id.)

Defendant also asserts that Mr. Savitt did not inform him that his state court conviction in connection with the Card Robbery would be admitted into evidence at trial, which defendant claims he first learned about at the Final Pretrial Conference held on November 17, 2009, the day the court read into the record its opinion regarding the issue. (Id. ¶ 10; Tr. 73); see Frederick, 702 F. Supp. 2d at 35-38. At the time defendant learned that his state court guilty plea would be admitted into evidence, defendant contends that "it was [his] understanding that the plea offer had been withdrawn." (Def. Aff. ¶ 11.)

Moreover, defendant states that Mr. Savitt did not inform him that if he went to trial and was convicted of Count Six for being a felon in possession of a firearm, he would be deemed an "Armed Career Criminal" under the Armed Career Criminal Act (the "ACCA"), see 18 U.S.C. § 924(e)(1), because he had three prior convictions for a "violent felony." (Def. Aff. ¶ 12.) The defendant does not state that he advised Mr. Savitt of any felony convictions beyond what was listed in his criminal history produced by the government in Rule 16 discovery. (See Def. ...


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