Petitioner (Pro Se), Foday Sillah, Philipsburg, PA.
James J. Pastore, Jr., Assistant United States Attorney, New York, NY, for Respondent.
Sean M. Maher, Esq., New York, NY, Petitioner's Former Counsel.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On March 23, 2012, pro se petitioner Foday Sillah ("Sillah") was sentenced to a term of thirty-seven months in prison after a jury convicted him of bank fraud. Sillah, represented by a new attorney, appealed arguing that: (1) the evidence was insufficient to support the verdict; (2) this Court's jury instruction regarding reasonable doubt was improper; (3) the sentence imposed by this Court was unreasonable; and (4) trial counsel was ineffective because he did not prepare Sillah to testify or request a fingerprint analysis. On April 25, 2013, the Second Circuit issued a Summary Order denying Sillah's appeal in all respects, except for the ineffective assistance claim which it ruled should be raised in this Court through a habeas proceeding.
Subsequently, Sillah filed a motion pursuant to section 2255 of Title 28 of the United States Code ("section 2255") seeking to vacate, set aside, or correct his sentence. Sillah alleges that his trial attorney rendered constitutionally ineffective assistance because he did not: (1) move to suppress evidence obtained from an allegedly illegal search of Sillah's home; (2) request a fingerprint analysis on checks the Government presented to the jury; or (3) advise Sillah of the sentencing consequences of a conviction versus those of a plea. For the reasons set forth below, Sillah's motion is denied.
A. The Offense Conduct
Sillah took part in a scheme in which he and his co-conspirators would obtain checks payable to legitimate businesses; register businesses with names similar to the intended payees; open bank accounts in the name of these fictitious businesses; deposit the stolen checks into the bank accounts; and withdraw cash from the accounts. At trial, the Government focused on accounts opened by Sillah at TD Bank, Wachovia Bank, and Citizens Bank. The Government also focused on Sillah's attempts to open additional accounts at TD Bank. Among the witnesses the Government called was Amade Souare, a co-conspirator who had entered into a plea agreement.
1. The TD Bank Account
Using the alias "Mamadu Kamara, " Sillah opened an account at TD Bank for a fictitious company named "Bollinger General Enterprises" ("Bollinger"). Sillah obtained a trade name certificate for Bollinger. At TD Bank, Sillah presented a Michigan driver's license with the name "Mamadu Kamara" and the Bollinger certificate, and then made a deposit into the new account. This transaction was recorded by surveillance cameras.
Sillah then deposited a stolen check made out to "Bollinger Incorporated" in the amount of $75, 031.08 into the TD Bank account. Surveillance cameras at another TD Bank branch recorded Sillah as he cashed a check made out to "Mamadu Kamara" for $8, 000. Sillah and Souare cashed two additional checks at a check cashing business, one made payable to "Foday Sillah" in the amount of $20, 600 and the other to Souare in the amount of $18, 000. Sillah also deposited a $43, 846.48 check payable to "Bollinger Incorporated" into the TD Bank account. TD Bank halted payment on the check, concluding that it was fraudulently endorsed.
2. The Citizens Bank Account
Sillah opened an account at Citizens Bank under the alias "Moussa Sylla." The account was registered to another fictitious entity, "Sylla Shipping, SEIU Local 32BJ" ("SEIU"). Sillah deposited a stolen check in the amount of $88, 468.62 payable to a legitimate union named "SEIU Local 32BJ." A co-conspirator informed Sillah and Souare that Citizens Bank suspected that the check was fraudulent. They subsequently elected not to withdraw the funds from the SEIU account.
3. The Wachovia Bank Account
Sillah opened an account at Wachovia Bank using the same name he used in the SEIU transaction. He deposited a check payable in the amount of $16, 604 to the real SEIU. He also deposited a check for $8, 815.86. In the span of two weeks, Sillah and Souare cashed checks on the account made payable to "Moussa Sylla, " "Foday Sillah, " and Souare totaling more than $20, 000.
4. Additional TD Accounts
Sillah attempted to open another account at TD Bank. Sillah used a Washington, D.C. license with the name "Moussa Sylla" and a trade name certificate for "Sylla Shipping." Lissette Miranda, a TD Bank employee, refused to open the account. Miranda testified that Sillah failed to provide evidence showing that Sylla Shipping had been incorporated.
One month later, Sillah again tried to open an account for Sylla Shipping. Miranda refused to open the account and notified the branch manager of the incident. She also sent copies of Sillah's documents to TD Bank's fraud investigator. She testified that several weeks later she ...