United States District Court, S.D. New York
PAUL A. ENGELMAYER, District Judge.
Winifred Jiau was convicted by a jury of conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371, and securities fraud, in violation of 15 U.S.C. §§ 78j(b) & 78ff, 15 C.F.R. 240.10b-5, and 18 U.S.C. § 2. See United States v. Jiau, No. 11 Crim. 161 (JSR) (S.D.N.Y. Oct. 4, 2011) (" U.S. v. Jiau "), Dkt. 124, aff'd 734 F.3d 147 (2d Cir. 2013). Jiau, now proceeding pro se, sues the attorney who represented her at trial and sentencing, Joanna Hendon, for legal malpractice and related claims. Hendon moves to dismiss. For the reasons that follow, that motion is granted.
The gravamen of Jiau's complaint is that Hendon rendered inadequate legal services to her in connection with her criminal trial and sentencing. Accordingly, the Court has reviewed in detail, and recounts here before addressing the parties' legal arguments, the relevant events in Jiau's criminal case.
A. Jiau's Criminal Case and Allegations against Hendon
On March 4, 2011, Hendon was appointed as Jiau's counsel. SAC ¶ 8. On March 10, 2011, Jiau's case, originally assigned to Judge Patterson, was reassigned to Judge Rakoff. Id. ¶ 10. Jiau states that Hendon did not ask Jiau's consent for this change, that Judge Patterson had been inclined to grant Jiau's bail application, and that the criminal cases of other defendants in the related civil case of Securities and Exchange Commission v. Longoria et al, No. 11 Civ. 753 (JSR), were not similarly reassigned. SAC ¶ 10.
1. The Bail Application
On March 14, 2011, Jiau moved for release on bail. U.S. v. Jiau, Dkt. 37. The parties made written submissions as to bail. Id. On March 16, 2011, the Court heard argument. Id. On March 22, 2011, the Court conducted an evidentiary hearing, at which both Jiau and her proposed suretor, Terry Peng, testified. Id. "At the conclusion of the evidentiary hearing, the Court gave its tentative view that bail would likely be denied, but gave the parties the opportunity to submit further written submissions before a final determination was made." Id.
On or about March 23, 2011, Jiau and Hendon communicated about continuing to pursue bail and, if Jiau's bail application were denied, appealing the denial. SAC ¶ 11. On March 28, 2011, Hendon moved to withdraw Jiau's bail application "without prejudice to her making a further application should changed circumstances in particular - in particular, the availability of additional or substitute suretors - warrant it." U.S. v. Jiau, Dkt. 38. On March 30, 2011, Judge Rakoff issued an order regarding Jiau's bail eligibility. He stated that "the Court deems it unlikely that the mere availability of additional or substitute suretors would be sufficient to change the Court's view that no combination of conditions would reasonably assure defendant's appearance if she were not detained." Id. Dkt. 37.
Jiau alleges that Hendon, in withdrawing Jiau's bail application, was "[c]onspiring with investigators, " that Hendon "misled Jiau [in]to believing that a bail application would be resubmitted later, " and that Hendon withdrew the bail application to hide from Jiau the fact that Hendon had lost Jiau's passport. SAC ¶¶ 11, 16. Jiau states that her pretrial detention caused her harm, in part because it prevented her from accessing the Internet, which, she states, would have allowed her to detect various misrepresentations by Hendon, including an allegedly false resume. Id. ¶ 11.
2. The Alleged Failure to Negotiate a Plea Agreement
Jiau alleges that Hendon repeatedly refused her requests, including in April 2011 and on May 12, 2011 and June 7, 2011, to negotiate a plea agreement. Id. ¶ 12. Jiau states that other insider trading defendants received favorable plea agreements but she did not. Id. ¶ 18.
3. The Suppression Hearing
On March 28, 2011, Hendon filed a motion to suppress the recordings of certain telephone conversations with tippees that she argued were inadmissible under Title III, 18 U.S.C. §§ 2510-22. U.S. v. Jiau, Dkt. 33-34. On April 27, 2011, the Court held a suppression hearing. Id. Dkt. 98. After the hearing, the Court denied the motion to suppress. Id. On May 12, 2011, after additional briefing and live testimony, the Court again, orally, denied the motion to suppress. Id. That day, Jiau alleges, she requested that Hendon negotiate a plea agreement, but Hendon refused. SAC ¶ 12.
On June 30, 2011, the Court issued a decision explaining its denial of the suppression motion. U.S. v. Jiau, Dkt. 98 (opinion also available at United States v. Jiau, 794 F.Supp.2d 484, 485 (S.D.N.Y. 2011)). The Second Circuit later affirmed that decision. United States v. Jiau, 734 F.3d 147 (2d Cir. 2013).
Regarding the suppression hearing, Jiau makes the following claim, which is not easily synopsized, and which the Court therefore reproduces in full: "Hendon further ignored Jiau's warning and objection without investigating the intercepted recordings provided by Pflaum. Otherwise, prosecutor's Brady Violation could be rectified by stopping Plaum to testify in suppression hearing. Hendon further conspired with prosecutors in the suppression hearing to allow Government's witness testify falsely in a material way, misled District Court admit the intercepted tape recordings which were actually recorded by Haasch without Barai's consent." SAC ¶ 12.
4. The Trial
On June 1, 2011, Jiau's trial began. U.S. v. Jiau (text minute entry June 1, 2011). On June 7, 2011, Jiau states, she asked Hendon to negotiate a plea agreement. SAC ¶ 12. Jiau alleges that Hendon refused to do so, id., and ...